Financial Statements, Reports, Certificates. Deliver to Lender: (a) as soon as available, but in any event by no later than the earlier of (y) five (5) days after the date on which Parent files its Form 10-Q with the SEC and (z) forty five (45) days following the last day of each of Parent’s first three (3) fiscal quarters of each fiscal year, (i) a consolidated balance sheet and income statement covering the operations of Parent and its direct and indirect Subsidiaries during such period and the year-to-date period ending thereon, with comparisons against the balance sheet for the immediately preceding fiscal year and income statement for the corresponding period during the immediately preceding fiscal year, (it being agreed that the furnishing of Parent’s quarterly report on Form 10-Q for each such fiscal quarter, as filed with the SEC, will satisfy Parent’s and Borrower’s obligations under this Section 6.2(a)(i) with respect to such fiscal quarter), (ii) a Compliance Certificate signed by the chief financial officer and/or chief accounting officer of Borrower certifying that: (1) the financial statements delivered hereunder have been prepared in accordance with GAAP (except for the lack of footnotes and being subject to year-end audit adjustments) and fairly present in all material respects the financial condition of Parent and its direct and indirect Subsidiaries, and demonstrating the compliance by Parent on a consolidated basis at the end of such quarter with all financial covenants required to be tested hereunder, and (2) there does not exist any condition or event that constitutes a Default or Event of Default (or, to the extent of any non-compliance, describing such non-compliance as to which he or she may have knowledge and what action the applicable Obligated Party has taken, is taking, or proposes to take with respect thereto), (b) as soon as available, but in any event by no later than the earlier of (y) five (5) days after the date on which Parent files its Form 10-K with the SEC and (z) ninety (90) days following the last day of each of Parent’s fiscal years, consolidated financial statements of Parent and its direct and indirect Subsidiaries for each such fiscal year, audited by independent certified public accountants acceptable to Lender in Lender’s Permitted Discretion and certified, without any qualifications (including any (A) “going concern” or like qualification or exception, or (B) qualification or exception as to the scope of such audit, by such accountants to have been prepared in accordance with GAAP) (it being agreed that the furnishing of Parent’s annual report on Form 10-K for each such fiscal year as filed with the SEC, will satisfy Parent’s and Borrower’s obligation under this Section 6.2(b) with respect to such fiscal year except with respect to the requirement that such financial statements be reported on without a “going concern” or like qualification or exception, or qualification arising out of the scope of the audit), together with a certificate of such accountants addressed to Lender stating that such accountants do not have knowledge of the existence of any Default or Event of Default. Such annual financial statements shall be accompanied by a Compliance Certificate signed by the chief financial officer and/or chief accounting officer of Borrower certifying that: (1) Parent is in compliance on a consolidated basis at the end of such fiscal year with all financial covenants required to be tested hereunder, (2) the financial statements delivered hereunder have been prepared in accordance with GAAP and fairly present in all material respects the financial condition of Parent and its direct and indirect Subsidiaries, and (3) there does not exist any condition or event that constitutes a Default or Event of Default (or, to the extent of any non-compliance, describing such non-compliance as to which he or she may have knowledge and what action the applicable Obligated Party has taken, is taking, or proposes to take with respect thereto), (c) [Intentionally Deleted], (d) as soon as available, but in any event by no later than the earlier of (y) five (5) days after the date on which Parent files its Form 10-K with the SEC and (z) ninety (90) days following the last day of each of Parent’s fiscal years, copies of Projections for such fiscal year (including, for the avoidance of doubt, the 2016 Projections to be delivered on or before March 30, 2016), all as certified by the chief financial officer of Parent as being such officer’s good faith best estimate of the financial performance of Parent and its direct and indirect Subsidiaries during the period covered thereby, (e) promptly, but in any event within five (5) Business Days after Borrower has knowledge of any event or condition that constitutes a Default or an Event of Default, notice thereof and a statement of the curative action that the applicable Obligated Party proposes to take with respect thereto, (f) promptly after the commencement thereof, but in any event within five (5) Business Days after the service of process with respect thereto on any Obligated Party, notice of all actions, suits, or proceedings brought by or against such Obligated Party before any Governmental Authority which, if determined adversely to such Obligated Party, could reasonably be expected to result in a Material Adverse Change, (g) promptly, but in any event within ten (10) Business Days after Borrower has knowledge thereof, notify Lender of any material negative changes to Borrower’s customer renewal rates, and (h) upon the request of Lender, any other information reasonably requested relating to the financial condition of any Obligated Party.
Appears in 1 contract
Financial Statements, Reports, Certificates. Deliver to Lender:
(a) as soon as available, but in any event by no later than within 30 days (50 days in the earlier case of (ya month that is the end of one of the first 3 fiscal quarters in a fiscal year) five (5) days after the date on which Parent files its Form 10-Q with the SEC and (z) forty five (45) days following the last day end of each month during each of Parent’s first three (3) 's fiscal quarters of each fiscal yearyears,
(i) a company prepared consolidated balance sheet sheet, income statement, and income statement of cash flow covering the operations of Parent Parent's and its direct and indirect Subsidiaries Subsidiaries' operations during such period and the year-to-date period ending thereon, with comparisons against the balance sheet for the immediately preceding fiscal year and income statement for the corresponding period during the immediately preceding fiscal year, (it being agreed that the furnishing of Parent’s quarterly report on Form 10-Q for each such fiscal quarter, as filed with the SEC, will satisfy Parent’s and Borrower’s obligations under this Section 6.2(a)(i) with respect to such fiscal quarter)period,
(ii) a Compliance Certificate certificate signed by the chief financial officer and/or chief accounting officer of Borrower certifying Parent to the effect that:
(1) A. the financial statements delivered hereunder have been prepared in accordance with GAAP (except for the lack of footnotes and being subject to year-end audit adjustments) and fairly present in all material respects the financial condition of Parent and its direct Subsidiaries,
B. the representations and indirect Subsidiaries, warranties of Borrowers contained in this Agreement and demonstrating the compliance by Parent other Loan Documents are true and correct in all material respects on a consolidated basis at and as of the end date of such quarter with all financial covenants required certificate, as though made on and as of such date (except to be tested hereunderthe extent that such representations and warranties relate solely to an earlier date), and
(2) C. there does not exist any condition or event that constitutes a Default or Event of Default (or, to the extent of any non-compliance, describing such non-compliance as to which he or she may have knowledge and what action the applicable Obligated Party has Borrowers have taken, is are taking, or proposes propose to take with respect thereto),, and
(iii) for each month that is the date on which a financial covenant in Section 7.20 is to be tested, a Compliance Certificate demonstrating, in reasonable detail, compliance at the end of such period with the applicable financial covenants contained in Section 7.20; and
(b) as soon as available, but in any event by no later than the earlier of (y) five (5) within 90 days after the date on which Parent files its Form 10-K with the SEC and (z) ninety (90) days following the last day end of each of Parent’s 's fiscal years, consolidated ,
(i) financial statements of Parent and its direct and indirect Subsidiaries for each such fiscal year, audited by independent certified public accountants reasonably acceptable to Lender in Lender’s Permitted Discretion and certified, without any qualifications (including any (A) “going concern” or like qualification or exception, or (B) qualification or exception as to the scope of such auditqualifications, by such accountants to have been prepared in accordance with GAAP) GAAP (it being agreed that the furnishing of Parent’s annual report on Form 10-K for each such fiscal year as filed with the SEC, will satisfy Parent’s and Borrower’s obligation under this Section 6.2(b) with respect to such fiscal year except with respect to the requirement that such audited financial statements be reported on without to include a “going concern” or like qualification or exceptionbalance sheet, or qualification arising out income statement, and statement of the scope of the auditcash flow and, if prepared, such accountants' letter to management), together with ,
(ii) a certificate of such accountants addressed to Lender stating that such accountants do not have knowledge of the existence of any Default or Event of Default. Such annual financial statements shall be accompanied by a Compliance Certificate signed by the chief financial officer and/or chief accounting officer of Borrower certifying that:
(1) Parent is in compliance on a consolidated basis at the end of such fiscal year with all financial covenants required to be tested hereunder,
(2) the financial statements delivered hereunder have been prepared in accordance with GAAP and fairly present in all material respects the financial condition of Parent and its direct and indirect Subsidiaries, and
(3) there does not exist any condition or event that constitutes a Default or Event of Default (or, to the extent of any non-compliance, describing such non-compliance as to which he or she may have knowledge and what action the applicable Obligated Party has taken, is taking, or proposes to take with respect thereto)under Section 7.20,
(c) [Intentionally Deleted],
(d) as soon as available, but in any event by no later than within 30 days prior to the earlier of (y) five (5) days after the date on which Parent files its Form 10-K with the SEC and (z) ninety (90) days following the last day start of each of Parent’s 's fiscal years, ,
(i) copies of Projections for such fiscal year Borrowers' Projections, in form and substance (includingincluding as to scope and underlying assumptions) satisfactory to Lender, in its sole discretion, for the avoidance of doubtforthcoming 3 years, year by year, and for the 2016 Projections to be delivered on or before March 30forthcoming fiscal year, 2016)month by month, all as certified by the chief financial officer of Parent as being such officer’s 's good faith best estimate of the financial performance of Parent and its direct and indirect Subsidiaries during the period covered thereby,
(d) if and within 5 days of the date filed by any Borrower,
(i) Form 10-Q quarterly reports, Form 10-K annual reports, and Form 8-K current reports,
(ii) any other filings made by any Borrower with the SEC,
(iii) copies of Borrowers' federal income tax returns, and any amendments thereto, filed with the Internal Revenue Service, and
(iv) any other information that is provided by Parent to its shareholders generally,
(e) promptlyif and when filed by any Borrower and as requested by Lender, but satisfactory evidence of payment of applicable excise taxes in each jurisdictions in which (i) any event within five Borrower conducts business or is required to pay any such excise tax, (5ii) Business Days after where any Borrower's failure to pay any such applicable excise tax would result in a Lien on the properties or assets of any Borrower, or (iii) where any Borrower's failure to pay any such applicable excise tax reasonably could be expected to result in a Material Adverse Change,
(f) as soon as a Borrower has knowledge of any event or condition that constitutes a Default or an Event of Default, notice thereof and a statement of the curative action that the applicable Obligated Party proposes Borrowers propose to take with respect thereto,
(f) promptly after the commencement thereof, but in any event within five (5) Business Days after the service of process with respect thereto on any Obligated Party, notice of all actions, suits, or proceedings brought by or against such Obligated Party before any Governmental Authority which, if determined adversely to such Obligated Party, could reasonably be expected to result in a Material Adverse Change,
(g) promptly, but in any event within ten (10) Business Days after Borrower has knowledge thereof, notify Lender of any material negative changes to Borrower’s customer renewal rates, and
(hg) upon the request of Lender, any other information report reasonably requested relating to the financial condition of Borrowers. In addition to the financial statements referred to above, Borrowers agree to deliver financial statements prepared on both a consolidated and consolidating basis and that no Borrower, or any Obligated PartySubsidiary of a Borrower, will have a fiscal year different from that of Parent. Borrowers agree that their independent certified public accountants are authorized to communicate with Lender and to release to Lender whatever financial information concerning Borrowers that Lender reasonably may request. Each Borrower waives the right to assert a confidential relationship, if any, it may have with any accounting firm or service bureau in connection with any information requested by Lender pursuant to or in accordance with this Agreement, and agree that Lender may contact directly any such accounting firm or service bureau in order to obtain such information.
Appears in 1 contract
Financial Statements, Reports, Certificates. Deliver to Lender:Agent and each Lender (but without duplication of any identical reports delivered to Wells Fargo Foothill, as lender under the Revolving Loan Agreement):
(a) as soon as available, but in any event by no later than within 30 days (45 days in the earlier case of (ya month that is the end of one of the first 3 fiscal quarters in a fiscal year or 90 days in the case of a month that is the end of the fiscal year) five (5) days after the date on which Parent files its Form 10-Q with the SEC and (z) forty five (45) days following the last day end of each month during each of Parent’s first three (3) 's fiscal quarters of each fiscal yearyears,
(i) a company prepared consolidated balance sheet sheet, income statement, and income statement of cash flow covering the operations of Parent Parent's and its direct and indirect Subsidiaries Subsidiaries' operations during such period and the year-to-date period ending thereon, with comparisons against the balance sheet for the immediately preceding fiscal year and income statement for the corresponding period during the immediately preceding fiscal year, (it being agreed that the furnishing of Parent’s quarterly report on Form 10-Q for each such fiscal quarter, as filed with the SEC, will satisfy Parent’s and Borrower’s obligations under this Section 6.2(a)(i) with respect to such fiscal quarter)period,
(ii) a Compliance Certificate certificate signed by the chief financial officer and/or chief accounting officer of Borrower certifying Parent to the effect that:
(1A) the financial statements delivered hereunder have been prepared in accordance with GAAP (except for the lack of footnotes and being subject to year-end audit adjustments) and fairly present in all material respects the financial condition of Parent and its direct Subsidiaries,
(B) the representations and indirect Subsidiaries, warranties of Borrowers contained in this Agreement and demonstrating the compliance by Parent other Loan Documents are true and correct in all material respects on a consolidated basis at and as of the end date of such quarter with all financial covenants required certificate, as though made on and as of such date (except to be tested hereunderthe extent that such representations and warranties relate solely to an earlier date), and
(2C) there does not exist any condition or event that constitutes a Default or Event of Default (or, to the extent of any non-compliance, describing such non-compliance as to which he or she may have knowledge and what action the applicable Obligated Party has Borrowers have taken, is are taking, or proposes propose to take with respect thereto), and
(iii) for each month that is the date on which a financial covenant in Section 7.20 is to be tested, a Compliance Certificate demonstrating, in reasonable detail, compliance at the end of such period with the applicable financial covenants contained in Section 7.20,
(b) as soon as available, but in any event by no later than the earlier of (y) five (5) within 90 days after the date on which Parent files its Form 10-K with the SEC and (z) ninety (90) days following the last day end of each of Parent’s 's fiscal years, consolidated ,
(i) financial statements of Parent and its direct and indirect Subsidiaries for each such fiscal year, audited by independent certified public accountants reasonably acceptable to Lender in Lender’s Permitted Discretion Agent and certified, without any qualifications (including any (A) “going concern” or like qualification or exception, or (B) qualification or exception as to the scope of such auditqualifications, by such accountants to have been prepared in accordance with GAAP) GAAP (it being agreed that the furnishing of Parent’s annual report on Form 10-K for each such fiscal year as filed with the SEC, will satisfy Parent’s and Borrower’s obligation under this Section 6.2(b) with respect to such fiscal year except with respect to the requirement that such audited financial statements be reported on without to include a “going concern” or like qualification or exceptionbalance sheet, or qualification arising out income statement, and statement of the scope of the auditcash flow and, if prepared, such accountants' letter to management), together with ,
(ii) a certificate of such accountants addressed to Agent and the Lender stating that such accountants do not have knowledge of the existence of any Default or Event of Default. Such annual financial statements shall be accompanied by a Compliance Certificate signed by the chief financial officer and/or chief accounting officer of Borrower certifying that:
(1) Parent is in compliance on a consolidated basis at the end of such fiscal year with all financial covenants required to be tested hereunder,
(2) the financial statements delivered hereunder have been prepared in accordance with GAAP and fairly present in all material respects the financial condition of Parent and its direct and indirect Subsidiaries, and
(3) there does not exist any condition or event that constitutes a Default or Event of Default (or, to the extent of any non-compliance, describing such non-compliance as to which he or she may have knowledge and what action the applicable Obligated Party has taken, is taking, or proposes to take with respect thereto)under Section 7.20,
(c) [Intentionally Deleted],
(d) as soon as available, but in any event by no later than the earlier of thirty (y) five (530) days after the date on which Parent files its Form 10-K with the SEC and (z) ninety (90) days following the last day end of each of Parent’s 's fiscal years, ,
(i) copies of Projections for such fiscal year Borrowers' Projections, in form and substance (includingincluding as to scope and underlying assumptions) satisfactory to Agent, in its sole discretion, for the avoidance of doubtforthcoming fiscal year, the 2016 Projections to be delivered on or before March 30month by month, 2016), all as certified by the chief financial officer of Parent as being such officer’s 's good faith best estimate of the financial performance of Parent and its direct and indirect Subsidiaries during the period covered thereby,
(d) if and when filed by any Borrower,
(i) any filings or monthly reports submitted by any Borrower to the Louisiana Regulatory Authorities or any other Gaming Authority other than such filings or monthly reports submitted in the ordinary course of business,
(ii) any filings made by any Borrower with the SEC,
(iii) copies of Borrowers' federal income tax returns, and any amendments thereto, filed with the Internal Revenue Service, and
(iv) any other information that is provided by Parent to its shareholders in their capacities as shareholders generally,
(e) promptlyif and when filed by any Borrower and as requested by Agent, but satisfactory evidence of payment of applicable excise taxes in each jurisdictions in which (i) any event within five Borrower conducts business or is required to pay any such excise tax, (5ii) Business Days after where any Borrower's failure to pay any such applicable excise tax would result in a Lien on the properties or assets of any Borrower, or (iii) where any Borrower's failure to pay any such applicable excise tax reasonably could be expected to result in a Material Adverse Change,
(f) as soon as a Borrower has knowledge of any event or condition that constitutes a Default or an Event of Default, notice thereof and a statement of the curative action that the applicable Obligated Party proposes Borrowers propose to take with respect thereto,
(fg) promptly after as soon as any Borrower has knowledge that the commencement thereofconstruction of the Racino Project cannot be completed by Contractor, but in or has knowledge that such Borrower cannot meet its obligations under any event within five construction documents (5) Business Days after including, without limitation, the service Fixed Price Contract), notice thereof and a statement of process the curative action that Borrowers propose to take with respect thereto on any Obligated Party, notice of all actions, suits, or proceedings brought by or against such Obligated Party before any Governmental Authority which, if determined adversely to such Obligated Party, could reasonably be expected to result in a Material Adverse Changethereto,
(gh) promptly, but in as soon as any event within ten (10) Business Days after Borrower has knowledge thereof, notify Lender notice of any material negative changes proposed legislation or administrative action specifically affecting any Borrower's gaming activities or the Racino Project submitted to Borrower’s customer renewal ratesthe floor for business before any Governmental Authority in the state of Louisiana (including the state legislature or any committee thereof), and
(hi) upon the request of LenderAgent, any other information report reasonably requested relating to the financial condition of Borrowers. In addition to the financial statements referred to above, Borrowers agree to deliver financial statements prepared on both a consolidated and consolidating basis and agree that no Borrower, or any Obligated PartySubsidiary of a Borrower, will have a fiscal year different from that of Parent. Borrowers agree that their independent certified public accountants are authorized to communicate with Agent and to release to Agent whatever financial information concerning Borrowers that Agent reasonably may request. Each Borrower waives the right to assert a confidential relationship, if any, it may have with any accounting firm or service bureau in connection with any information requested by Agent pursuant to or in accordance with this Agreement, and agree that Agent may contact directly any such accounting firm or service bureau in order to obtain such information.
Appears in 1 contract
Samples: Loan and Security Agreement (Old Evangeline Downs LLC)
Financial Statements, Reports, Certificates. Deliver to Agent, with copies to each Lender:
(a) as soon as available, but in any event by no later than within 30 days (45 days (or such lesser number of days as may be required pursuant to the earlier Exchange Act) in the case of (ya month that is the end of one of the first 3 fiscal quarters in a fiscal year) five (5) days after the date on which Parent files its Form 10-Q with the SEC and (z) forty five (45) days following the last day end of each month during each of Parent’s first three (3) 's fiscal quarters of each fiscal yearyears,
(i) a company prepared consolidated and consolidating (based on internal management reports) balance sheet and sheet, income statement (including cash interest), and statement of cash flow covering the operations of Parent Parent's and its direct and indirect Subsidiaries Subsidiaries' operations during such period and the year-to-date period ending thereon, with comparisons against the balance sheet for the immediately preceding fiscal year and income statement for the corresponding period during the immediately preceding fiscal year, (it being agreed that the furnishing of Parent’s quarterly report on Form 10-Q for each such fiscal quarter, as filed with the SEC, will satisfy Parent’s and Borrower’s obligations under this Section 6.2(a)(i) with respect to such fiscal quarter)period,
(ii) a Compliance Certificate certificate signed by the chief financial officer and/or chief accounting officer of Borrower certifying Parent to the effect that:
(1) A. the consolidated financial statements delivered hereunder have been prepared in accordance with GAAP (except for the lack of footnotes and being subject to year-end audit adjustments) and fairly present in all material respects the financial condition of Parent and its direct Subsidiaries,
B. the representations and indirect Subsidiaries, warranties of the Loan Parties contained in this Agreement and demonstrating the compliance by Parent other Loan Documents are true and correct in all material respects on a consolidated basis at and as of the end date of such quarter with all financial covenants required certificate, as though made on and as of such date (except to be tested hereunderthe extent that such representations and warranties relate solely to an earlier date), and
(2) C. there does not exist any condition or event that constitutes a Default or Event of Default (or, to the extent of any non-compliance, describing such non-compliance as to which he or she may have knowledge and what action the applicable Obligated Party has Loan Parties have taken, is are taking, or proposes propose to take with respect thereto),, and
(iii) for each month that is the date on which a financial covenant in Section 7.20 is to be tested, a Compliance Certificate demonstrating, in reasonable detail, compliance at the end of such period with the applicable financial covenants contained in Section 7.20, and
(b) as soon as available, but in any event by no later than within 90 days (or such lesser number of days as may be required pursuant to the earlier of (yExchange Act) five (5) days after the date on which Parent files its Form 10-K with the SEC and (z) ninety (90) days following the last day end of each of Parent’s 's fiscal years, ,
(i) consolidated financial statements of Parent and its direct and indirect Subsidiaries for each such fiscal year, audited by independent certified public accountants reasonably acceptable to Lender in Lender’s Permitted Discretion Agent and certified, without any qualifications (including any including, without limitation, (A) “any going concern” concern or like qualification or exception, exception or (B) any qualification or exception as to the scope of such audit), by such accountants to have been prepared in accordance with GAAP) GAAP (it being agreed that the furnishing of Parent’s annual report on Form 10-K for each such fiscal year as filed with the SEC, will satisfy Parent’s and Borrower’s obligation under this Section 6.2(b) with respect to such fiscal year except with respect to the requirement that such audited financial statements be reported on without to include a “going concern” or like qualification or exceptionbalance sheet, or qualification arising out income statement, and statement of the scope of the auditcash flow and, if prepared, such accountants' letter to management), together with ,
(ii) a certificate of such accountants addressed to Lender Agent and the Lenders stating that such accountants do not have knowledge of the existence of any Default or Event of Default. Such annual financial statements shall be accompanied by a Compliance Certificate signed by the chief financial officer and/or chief accounting officer of Borrower certifying that:
(1) Parent is in compliance on a consolidated basis at the end of such fiscal year with all financial covenants required to be tested hereunder,
(2) the financial statements delivered hereunder have been prepared in accordance with GAAP and fairly present in all material respects the financial condition of Parent and its direct and indirect Subsidiaries, and
(3) there does not exist any condition or event that constitutes a Default or Event of Default (or, to the extent of any non-compliance, describing such non-compliance as to which he or she may have knowledge and what action the applicable Obligated Party has taken, is taking, or proposes to take with respect thereto)under Section 7.20,
(c) [Intentionally Deleted],
(d) as soon as available, but in any event by no later than the earlier of (y) five (5) days after the date on which Parent files its Form 10-K with the SEC and (z) ninety (90) days following or prior to the last day of each of Parent’s fiscal yearsFiscal Year, copies of Projections for such fiscal year the Loan Parties' Projections, in form and substance (includingincluding as to scope and underlying assumptions) satisfactory to Agent, in its Permitted Discretion, for the avoidance of doubtforthcoming 3 years, year by year, and for the 2016 Projections to be delivered on or before March 30next Fiscal Year, 2016)month by month, all as certified by the chief financial officer of Parent an Authorized Person as being such officer’s 's good faith best estimate of the financial performance of Parent and its direct and indirect Subsidiaries the Loan Parties during the period covered thereby, and
(d) if and when filed by any Loan Party,
(i) 10-Q quarterly reports, Form 10-K annual reports, and Form 8-K current reports,
(ii) any other filings made by any Loan Party with the SEC,
(iii) copies of Loan Parties' federal income tax returns, and any amendments thereto, filed with the Internal Revenue Service, and
(iv) any other information that is provided by Parent to its shareholders generally,
(e) promptlyif and when filed by any Loan Party and as requested by Agent, but satisfactory evidence of payment of applicable excise taxes in each jurisdictions (i) in which any event within five Loan Party conducts business or is required to pay any such excise tax, (5ii) Business Days after Borrower where any Loan Party's failure to pay any such applicable excise tax would result in a Lien on the properties or assets of any Borrower, or (iii) where any Loan Party's failure to pay any such applicable excise tax reasonably could be expected to result in a Material Adverse Change,
(f) as soon as a Loan Party has knowledge of any event or condition that constitutes a Default or an Event of Default, notice thereof and a statement of the curative action that the applicable Obligated such Loan Party proposes to take with respect thereto,
(fg) (i) promptly and in any event (A) within 10 days after any Loan Party or any ERISA Affiliate thereof knows or has reason to know that any Termination Event described in clause (i) of the commencement thereofdefinition of Termination Event with respect to any Benefit Plan has occurred, but (B) within 10 days after any Loan Party or any ERISA Affiliate thereof knows or has reason to know that any other Termination Event with respect to any Benefit Plan has occurred, or (C) within 10 days after any Loan Party or any ERISA Affiliate thereof knows or has reason to know that an accumulated funding deficiency has been incurred or an application has been made to the Secretary of the Treasury for a waiver or modification of the minimum funding standard (including installment payments) or an extension of any amortization period under Section 412 of the IRC or the equivalent provision under any federal, state, local or foreign counterparts or equivalents thereof with respect to a Benefit Plan, a statement of an Authorized Person setting forth the details of such occurrence and the action, if any, which such Loan Party or such ERISA Affiliate propose to take with respect thereto, (ii) promptly and in any event within five 3 days after receipt thereof by any Loan Party or any ERISA Affiliate thereof from the PBGC, copies of each notice received by any Loan Party or any ERISA Affiliate thereof of the PBGC's intention to terminate any Plan or to have a trustee appointed to administer any Plan, (5iii) Business Days after the service of process with respect thereto on any Obligated Party, notice of all actions, suits, or proceedings brought by or against such Obligated Party before any Governmental Authority which, if determined adversely to such Obligated Party, could reasonably be expected to result in a Material Adverse Change,
(g) promptly, but promptly and in any event within ten 10 days after the filing thereof with the Internal Revenue Service if requested by Agent, copies of each Schedule B (10Actuarial Information) Business Days or the federal, state, local or foreign equivalent thereof to the annual report (Form 5500 Series) or the federal, state, local or foreign equivalent thereof with respect to each Benefit Plan and Multiemployer Plan, (iv) promptly and in any event within 10 days after Borrower any Loan Party or any ERISA Affiliate thereof knows or has knowledge reason to know that a required installment within the meaning of Section 412 of the IRC or the equivalent provision under any federal, state, local or foreign counterparts or equivalents thereof has not been made when due with respect to a Benefit Plan, (v) promptly and in any event within 3 days after receipt thereof by any Loan Party or any ERISA Affiliate thereof from a sponsor of a Multiemployer Plan or from the PBGC, a copy of each notice received by any Loan Party or any ERISA Affiliate thereof concerning the imposition or amount of withdrawal liability under Section 4202 of ERISA or the equivalent provision under any federal, state, local or foreign counterparts or equivalents thereof or indicating that such Multiemployer Plan may enter reorganization status under Section 4241 of ERISA or the equivalent provision under any federal, state, local or foreign counterparts or equivalents thereof, notify Lender and (vi) promptly and in any event within 10 days after any Loan Party or any ERISA Affiliate thereof send notice of a plant closing or mass layoff (as defined in the Worker Adjustment and Retraining Notification Act) to employees, copies of each such notice sent by any material negative changes to Borrower’s customer renewal rates, andLoan Party or any ERISA Affiliate thereof,
(h) upon the request of LenderAgent, any other information report reasonably requested relating to the financial condition of any Obligated Party.the Loan Parties, and
Appears in 1 contract
Financial Statements, Reports, Certificates. Deliver to Agent, with copies to each Lender:
(a) as soon as available, but in any event by no later than within 30 days (45 days in the earlier case of (ya month that is the end of one of the first 3 fiscal quarters in a fiscal year) five (5) days after the date on which Parent files its Form 10-Q with the SEC and (z) forty five (45) days following the last day end of each month during each of Parent’s first three (3) Borrower's fiscal quarters of each fiscal yearyears,
(i) a company prepared consolidated balance sheet sheet, income statement, and income statement of cash flow covering the operations of Parent and its direct and indirect Subsidiaries the Borrower Parties during such period and the year-to-date period ending thereon, with comparisons against the balance sheet for the immediately preceding fiscal year and income statement for the corresponding period during the immediately preceding fiscal year, (it being agreed that the furnishing of Parent’s quarterly report on Form 10-Q for each such fiscal quarter, as filed with the SEC, will satisfy Parent’s and Borrower’s obligations under this Section 6.2(a)(i) with respect to such fiscal quarter)period,
(ii) a Compliance Certificate certificate signed by the chief financial officer and/or chief accounting officer of Borrower certifying to the effect that:
(1A) the financial statements delivered hereunder have been prepared in accordance with GAAP (except for the lack of footnotes and being subject to year-end audit adjustments) and fairly present in all material respects the financial condition of Parent the Borrower Parties;
(B) the representations and its direct warranties of Borrower contained in this Agreement and indirect Subsidiariesthe other Loan Documents were true and correct on and as of the Closing Date (except to the extent that such representations and warranties relate solely to an earlier date, in which case such representations and demonstrating the compliance by Parent warranties were true and correct on a consolidated basis at the end and as of such quarter with all financial covenants required to be tested hereunder, earlier date); and
(2C) there does not exist any condition or event that constitutes a Default, Unmatured Default or Event of Default (or, to the extent of any non-compliance, describing such non-compliance as to which he or she may have knowledge and what action the applicable Obligated Party Borrower has taken, is taking, taking or proposes to take with respect thereto),, and
(iii) for each month that is the date on which a covenant in Section 7.20 is to be tested, a Compliance Certificate demonstrating, in reasonable detail, compliance at the end of such period with the applicable covenants contained in Section 7.20;
(b) as soon as available, but in any event by no later than the earlier of (y) five (5) within 90 days after the date on which Parent files its Form 10-K with the SEC and (z) ninety (90) days following the last day end of each of Parent’s Borrower's fiscal years, ,
(i) consolidated financial statements of Parent and its direct and indirect Subsidiaries the Borrower Parties for each such fiscal year, audited by independent certified public accountants reasonably acceptable to Lender in Lender’s Permitted Discretion Agent and certified, without any qualifications qualification (including any including, without limitation, (A) “any going concern” concern or like qualification or exception, exception or (B) any qualification or exception as to the scope of such audit), by such accountants to have been prepared in accordance with GAAP) GAAP (it being agreed that the furnishing of Parent’s annual report on Form 10-K for each such fiscal year as filed with the SEC, will satisfy Parent’s and Borrower’s obligation under this Section 6.2(b) with respect to such fiscal year except with respect to the requirement that such audited financial statements be reported on without to include a “going concern” or like qualification or exceptionbalance sheet, or qualification arising out income statement and statement of the scope of the auditcash flow and, if prepared, such accountants' letter to management), together with ,
(ii) a certificate of such accountants addressed to Lender Agent and the Lenders stating that such accountants do not have knowledge of the existence of any Default or Event of Default. Such annual financial statements shall be accompanied by a Compliance Certificate signed by the chief financial officer and/or chief accounting officer of Borrower certifying that:
(1) Parent is in compliance on a consolidated basis at the end of such fiscal year with all financial covenants required to be tested hereunder,
(2) the financial statements delivered hereunder have been prepared in accordance with GAAP and fairly present in all material respects the financial condition of Parent and its direct and indirect Subsidiaries, and
(3) there does not exist any condition or event that constitutes a Default or Event of Default (or, to the extent of any non-compliance, describing such non-compliance as to which he or she may have knowledge and what action the applicable Obligated Party has taken, is taking, or proposes to take with respect thereto),under Section 7.20;
(c) [Intentionally Deleted],
(d) as soon as available, but in any event by no later than within 30 days prior to the earlier of (y) five (5) days after the date on which Parent files its Form 10-K with the SEC and (z) ninety (90) days following the last day start of each of Parent’s Borrower's fiscal years, copies of Projections for such fiscal year Borrower's Projections, in form and substance (includingincluding as to scope and underlying assumptions) satisfactory to Agent, in its sole discretion, for the avoidance of doubtforthcoming 3 years, year by year, and for the 2016 Projections to be delivered on or before March 30forthcoming fiscal year, 2016)month by month, all as certified by the chief financial officer of Parent Borrower as being such officer’s 's good faith best estimate of the financial performance of Parent and its direct and indirect Subsidiaries Borrower during the period covered thereby;
(d) if and when filed by Borrower,
(i) all prospectuses, material change reports, press releases and other documents as required to be filed with any securities commission from time to time having jurisdiction over the Borrower;
(ii) copies of Borrower's federal income tax returns, and any amendments thereto, filed with the Canada Revenue Agency, and
(iii) any other information that is provided by Borrower to its shareholders;
(e) promptlyif and when filed by any Borrower Party and as requested by Agent, but satisfactory evidence of payment of applicable excise taxes in each jurisdiction in which (i) such Borrower Party conducts business or is required to pay any event within five such excise tax, (5ii) Business Days after where such Borrower has knowledge Party's failure to pay any such applicable excise tax would result in a Lien on the properties or assets of such Borrower Party or (iii) where such Borrower Party's failure to pay any event or condition that constitutes such applicable excise tax reasonably could be expected to result in a Default or an Event of Default, notice thereof and a statement of the curative action that the applicable Obligated Party proposes to take with respect thereto,Material Adverse Change;
(f) promptly after sending or receipt thereof, copies of any material notice or other correspondence sent to, or received from, any Governmental Authority related to the Oil and Gas Properties of any Borrower Party, including, without limitation, notice of any new plugging and abandonment or other performance or other assurance bond requirements related to such Oil and Gas Properties;
(g) promptly after the commencement thereof, but in any event within five (5) Business Days days after the service of process with respect thereto on any Obligated Borrower Party, notice of all actions, suits, suits or proceedings brought by or against such Obligated any Borrower Party before any Governmental Authority which, if determined adversely to such Obligated Borrower Party, could reasonably be expected to result in a Material Adverse Change,;
(gh) promptly, but in any event within ten (10) Business Days after as soon as Borrower has knowledge thereof, notify Lender of any material negative changes event or condition that constitutes a Default or an Unmatured Default or Event of Default, notice thereof and a statement of the curative action that Borrower proposes to Borrower’s customer renewal rates, take with respect thereto; and
(hi) upon the request of LenderAgent, any other information report reasonably requested relating to the financial condition of any Obligated Partyof the Borrower Parties. In addition to the financial statements referred to above, Borrower agrees to deliver financial statements prepared on both a consolidated and consolidating basis and agrees that no Subsidiary of Borrower will have a fiscal year different from that of Borrower. Borrower agrees that its independent chartered accountants are authorized to communicate with Agent and to release to Agent whatever financial information concerning the Borrower Parties that Agent reasonably may request. Borrower waives the right to assert a confidential relationship, if any, it may have with any accounting firm or service bureau in connection with any information requested by Agent pursuant to or in accordance with this Agreement, and agrees that Agent may contact directly any such accounting firm or service bureau in order to obtain such information.
Appears in 1 contract
Financial Statements, Reports, Certificates. Deliver to Agent, with copies to each Lender:
(a) as soon as available, but within 30 days (45 days in any event by no later than the earlier case of (ya month that is the end of one of the first 3 fiscal quarters in a fiscal year) five (5) days after the date on which Parent files its Form 10-Q with the SEC and (z) forty five (45) days following the last day end of each month during each of Parent’s first three (3) 's fiscal quarters of each fiscal yearyears,
(i) a an internal company prepared consolidated balance sheet sheet, income statement, and income statement of cash flow covering the operations of Parent Parent's and its direct and indirect Subsidiaries Subsidiaries' operations during such period and the year-to-date period ending thereon, with comparisons against the balance sheet for the immediately preceding fiscal year and income statement for the corresponding period during the immediately preceding fiscal year, (it being agreed that the furnishing of Parent’s quarterly report on Form 10-Q for each such fiscal quarter, as filed with the SEC, will satisfy Parent’s and Borrower’s obligations under this Section 6.2(a)(i) with respect to such fiscal quarter)period,
(ii) a Compliance Certificate certificate signed by the chief financial officer and/or chief accounting officer of Borrower certifying Parent to the effect that:
(1) A. the financial statements delivered hereunder have been prepared in accordance with GAAP (except for the lack of footnotes footnotes, adjustments for promotional allowances and cash rebates and being subject to year-end audit adjustments) and fairly present in all material respects the financial condition of Parent and its direct Subsidiaries,
B. the representations and indirect Subsidiaries, warranties of Borrowers and demonstrating Guarantors contained in this Agreement and the compliance by Parent other Loan Documents are true and correct in all material respects on a consolidated basis at and as of the end date of such quarter with all financial covenants required certificate, as though made on and as of such date (except to be tested hereunderthe extent that such representations and warranties relate solely to an earlier date), and
(2) C. there does not exist any condition or event that constitutes a Default or Event of Default (or, to the extent of any non-compliance, describing such non-compliance as to which he or she may have knowledge and what action the applicable Obligated Party has Borrowers and Guarantors have taken, is are taking, or proposes propose to take with respect thereto),, and
(iii) for each month that is the date on which a financial covenant in Section 7.20 is to be tested, a Compliance Certificate demonstrating, in reasonable detail, compliance at the end of such period with the applicable financial covenants contained in Section 7.20, and
(b) as soon as available, but in any event by no later than the earlier of (y) five (5) within 90 days after the date on which Parent files its Form 10-K with the SEC and (z) ninety (90) days following the last day end of each of Parent’s 's fiscal years, consolidated ,
(i) financial statements of Parent and its direct and indirect Subsidiaries for each such fiscal year, audited by independent certified public accountants reasonably acceptable to Lender in Lender’s Permitted Discretion Agent and certified, without any qualifications (including any (A) “going concern” or like qualification or exception, or (B) qualification or exception as to the scope of such auditqualifications, by such accountants to have been prepared in accordance with GAAP) GAAP (it being agreed that the furnishing of Parent’s annual report on Form 10-K for each such fiscal year as filed with the SEC, will satisfy Parent’s and Borrower’s obligation under this Section 6.2(b) with respect to such fiscal year except with respect to the requirement that such audited financial statements be reported on without to include a “going concern” or like qualification or exceptionbalance sheet, or qualification arising out income statement, and statement of the scope of the auditcash flow and, if prepared, such accountants' letter to management), together with ,
(ii) a certificate of such accountants addressed to Lender Agent and the Lenders stating that such accountants do not have knowledge of the existence of any Default or Event of Default. Such annual financial statements shall be accompanied by a Compliance Certificate signed by the chief financial officer and/or chief accounting officer of Borrower certifying that:
(1) Parent is in compliance on a consolidated basis at the end of such fiscal year with all financial covenants required to be tested hereunder,
(2) the financial statements delivered hereunder have been prepared in accordance with GAAP and fairly present in all material respects the financial condition of Parent and its direct and indirect Subsidiaries, and
(3) there does not exist any condition or event that constitutes a Default or Event of Default (or, to the extent of any non-compliance, describing such non-compliance as to which he or she may have knowledge and what action the applicable Obligated Party has taken, is taking, or proposes to take with respect thereto)under Section 7.20,
(c) [Intentionally Deleted],
(d) as soon as available, but in any event by no later than within 30 days prior to the earlier of (y) five (5) days after the date on which Parent files its Form 10-K with the SEC and (z) ninety (90) days following the last day start of each of Parent’s 's fiscal years, ,
(i) copies of Projections for such fiscal year Borrowers' Projections, in form and substance (includingincluding as to scope and underlying assumptions) satisfactory to Agent, in its Permitted Discretion, for the avoidance forthcoming 3 years, year by year, and for the forthcoming fiscal year, month by month, together with an Officer's Certificate of doubt, the 2016 Projections to be delivered on or before March 30, 2016), all as certified by the chief financial officer of Parent as being that such Projections are such officer’s 's good faith best estimate of the financial performance of Parent and its direct and indirect Subsidiaries during the period covered thereby,
(d) if and when filed by any Borrower or any Guarantor,
(i) 10-Q quarterly reports, Form 10-K annual reports, and Form 8-K current reports,
(ii) any other filings made by any Borrower with the SEC,
(iii) copies of Borrowers' federal income tax returns, and any amendments thereto, filed with the Internal Revenue Service, and
(iv) any other information that is provided by Parent to its shareholders generally,
(e) promptlyif and when filed by any Borrower or Guarantor and as requested by Agent in its Permitted Discretion, but satisfactory evidence of payment of applicable excise taxes in each jurisdictions in which (i) any event within five Borrower or Guarantor conducts business or is required to pay any such excise tax, (5ii) Business Days after where any Borrower's or Guarantor's failure to pay any such applicable excise tax would result in a Lien on the properties or assets of any Borrower or Guarantor, or (iii) where any Borrower's or Guarantor's failure to pay any such applicable excise tax reasonably could be expected to result in a Material Adverse Change,
(f) as soon as a Borrower or a Guarantor has knowledge of any event or condition that constitutes a Default or an Event of Default, notice thereof and a statement of the curative action that the applicable Obligated Party proposes Borrowers and Guarantors propose to take with respect thereto,
(f) promptly after the commencement thereof, but in any event within five (5) Business Days after the service of process with respect thereto on any Obligated Party, notice of all actions, suits, or proceedings brought by or against such Obligated Party before any Governmental Authority which, if determined adversely to such Obligated Party, could reasonably be expected to result in a Material Adverse Change,
(g) promptly, but in any event within ten (10) Business Days after Borrower has knowledge thereof, notify Lender of any material negative changes to Borrower’s customer renewal rates, and
(hg) upon the request of LenderAgent, any other information reasonably requested report, relating to the financial condition of Borrowers and Guarantors, requested by Agent in its Permitted Discretion. In addition to the financial statements referred to above, Borrowers and Guarantors agree to deliver financial statements prepared on both a consolidated and consolidating basis (consolidating as to entity and as to geographic gaming market segment (i.e., each Facility plus, for this purpose, the management division)) and that no Borrower, or any Obligated PartyRestricted Subsidiary of a Borrower, will have a fiscal year different from that of Parent. Borrowers and Guarantors agree that their independent certified public accountants are authorized to communicate with Agent and to release to Agent whatever financial information concerning Borrower or Guarantor that Agent reasonably may request. Each of the Borrowers and Guarantors waives the right to assert a confidential relationship, if any, it may have with any accounting firm or service bureau in connection with any information requested by Agent pursuant to or in accordance with this Agreement, and agree that Agent may contact directly any such accounting firm or service bureau in order to obtain such information.
Appears in 1 contract
Samples: Loan and Security Agreement (Riviera Holdings Corp)
Financial Statements, Reports, Certificates. Deliver to Lender:
(a) as soon as available, but in any event by no later than within 30 days (45 days in the earlier case of (ya month that is the end of one of the first 3 fiscal quarters in a fiscal year) five (5) days after the date on which Parent files its Form 10-Q with the SEC and (z) forty five (45) days following the last day end of each month during each of Parent’s first three (3) Borrower's fiscal quarters of each fiscal yearyears,
(i) a company prepared consolidated balance sheet sheet, income statement, and income statement of cash flow covering the operations of Parent Borrower's and its direct and indirect Subsidiaries Subsidiaries' operations during such period and the year-to-date period ending thereon, with comparisons against the balance sheet for the immediately preceding fiscal year and income statement for the corresponding period during the immediately preceding fiscal year, (it being agreed that the furnishing of Parent’s quarterly report on Form 10-Q for each such fiscal quarter, as filed with the SEC, will satisfy Parent’s and Borrower’s obligations under this Section 6.2(a)(i) with respect to such fiscal quarter)period,
(ii) a Compliance Certificate certificate signed by the chief financial officer and/or chief accounting officer of Borrower certifying to the effect that:
(1A) the financial statements delivered hereunder have been prepared in accordance with GAAP (except for the lack of footnotes and being subject to year-end audit adjustments) and fairly present in all material respects the financial condition of Parent Borrower and its direct Subsidiaries,
(B) the representations and indirect Subsidiaries, warranties of Borrower contained in this Agreement and demonstrating the compliance by Parent other Loan Documents are true and correct in all material respects on a consolidated basis at and as of the end date of such quarter with all financial covenants required certificate, as though made on and as of such date (except to be tested hereunder, andthe extent that such representations and warranties relate solely to an earlier date),
(2C) there does not exist any condition or event that constitutes a Default or Event of Default (or, to the extent of any non-compliance, describing such non-compliance as to which he or she may have knowledge and what action the applicable Obligated Party Borrower has taken, is taking, or proposes to take with respect thereto),, and
(iii) for each month that is the date on which a financial covenant in Section 7.20 is to be tested, a Compliance Certificate demonstrating, in reasonable detail, compliance at the end of such period with the applicable financial covenants contained in Section 7.20, and
(b) as soon as available, but in any event by no later than the earlier of (y) five (5) within 90 days after the date on which Parent files its Form 10-K with the SEC and (z) ninety (90) days following the last day end of each of Parent’s Borrower's fiscal years, consolidated ,
(i) financial statements of Parent Borrower and its direct and indirect Subsidiaries for each such fiscal year, audited by one of the so-called "Big Five" firms of independent certified public accountants acceptable to Lender in Lender’s Permitted Discretion and certified, without any qualifications (including any (A) “going concern” or like qualification or exception, or (B) qualification or exception as to the scope of such auditqualifications, by such accountants to have been prepared in accordance with GAAP) GAAP (it being agreed that the furnishing of Parent’s annual report on Form 10-K for each such fiscal year as filed with the SEC, will satisfy Parent’s and Borrower’s obligation under this Section 6.2(b) with respect to such fiscal year except with respect to the requirement that such audited financial statements be reported on without to include a “going concern” or like qualification or exceptionbalance sheet, or qualification arising out income statement, and statement of the scope of the auditcash flow and, if prepared, such accountants' letter to management), together with ,
(ii) a certificate of such accountants addressed to Lender stating that such accountants do not have knowledge of the existence of any Default or Event of Default. Such annual financial statements shall be accompanied by a Compliance Certificate signed by the chief financial officer and/or chief accounting officer of Borrower certifying that:
(1) Parent is in compliance on a consolidated basis at the end of such fiscal year with all financial covenants required to be tested hereunder,
(2) the financial statements delivered hereunder have been prepared in accordance with GAAP and fairly present in all material respects the financial condition of Parent and its direct and indirect Subsidiaries, and
(3) there does not exist any condition or event that constitutes a Default or Event of Default (or, to the extent of any non-compliance, describing such non-compliance as to which he or she may have knowledge and what action the applicable Obligated Party has taken, is taking, or proposes to take with respect thereto)under Section 7.20,
(c) [Intentionally Deleted],
(d) as soon as available, but in any event by no later than within 30 days prior to the earlier of (y) five (5) days after the date on which Parent files its Form 10-K with the SEC and (z) ninety (90) days following the last day start of each of Parent’s Borrower's fiscal years, quarters,
(i) copies of Projections for such fiscal year Borrower's Projections, in form (includingincluding as to scope and underlying assumptions) satisfactory to Lender, in its sole discretion, for the avoidance of doubtforthcoming year, the 2016 Projections to be delivered on or before March 30quarter by quarter, 2016), all as certified by the chief financial officer of Parent Borrower as being such officer’s 's good faith best estimate of the financial performance of Parent and its direct and indirect Subsidiaries Borrower during the period covered thereby,
(d) if and when filed by Borrower,
(i) Form 10-Q quarterly reports, Form 10-K annual reports, and Form 8-K current reports,
(ii) any other filings made by Borrower with the SEC,
(iii) copies of Borrower's federal income tax returns, and any amendments thereto, filed with the Internal Revenue Service, and
(iv) any other information that is provided by Borrower to its shareholders generally,
(e) promptlyif and when filed by Borrower and as requested by Lender, but satisfactory evidence of payment of applicable excise taxes in each jurisdictions in which (i) Borrower conducts business or is required to pay any event within five such excise tax, (5ii) Business Days after where Borrower's failure to pay any such applicable excise tax would result in a Lien on the properties or assets of Borrower, or (iii) where Borrower's failure to pay any such applicable excise tax reasonably could be expected to result in a Material Adverse Change,
(f) as soon as Borrower has knowledge of any event or condition that constitutes a Default or an Event of Default, notice thereof and a statement of the curative action that the applicable Obligated Party Borrower proposes to take with respect thereto,
(f) promptly after the commencement thereof, but in any event within five (5) Business Days after the service of process with respect thereto on any Obligated Party, notice of all actions, suits, or proceedings brought by or against such Obligated Party before any Governmental Authority which, if determined adversely to such Obligated Party, could reasonably be expected to result in a Material Adverse Change,
(g) promptly, but in any event within ten (10) Business Days after Borrower has knowledge thereof, notify Lender of any material negative changes to Borrower’s customer renewal rates, and
(hg) upon the request of Lender, any other information report reasonably requested relating to the financial condition of Borrower. In addition to the financial statements referred to above, Borrower agrees to deliver financial statements prepared on both a consolidated and consolidating basis and agrees that no Subsidiary of Borrower will have a fiscal year different from that of Borrower. Borrower agrees that its independent certified public accountants are authorized to communicate with Lender and to release to Lender whatever financial information concerning Borrower Lender reasonably may request. If an Event of Default has occurred and is continuing, Borrower waives the right to assert a confidential relationship, if any, it may have with any Obligated Partyaccounting firm or service bureau in connection with any information requested by Lender pursuant to or in accordance with this Agreement, and agrees that Lender may contact directly any such accounting firm or service bureau in order to obtain such information. Unless an Event of Default has occurred and is continuing, Lender agrees to provide Borrower with notice before contacting such accounting firm and agrees that Borrower may participate in any meeting or discussions with such accounting firm and Lender (so long as the presence of Borrower would not delay the meeting or discussion and so long as the presence of Borrower would not inhibit the ability of the accounting firm to provide Lender with a candid assessment of Borrower's financial condition); it being understood that Lender shall not be liable to Borrower for failing to provide such notice so long as such failure is not wilful.
Appears in 1 contract
Financial Statements, Reports, Certificates. Deliver to Agent, with copies to each Lender:
(a) as soon as available, but in any event by no later than within 30 days (45 days in the earlier case of (ya month that is the end of one of Parent’s fiscal quarters, including its fiscal year-end) five (5) days after the date on which Parent files its Form 10-Q with the SEC and (z) forty five (45) days following the last day end of each month during each of Parent’s first three (3) fiscal quarters of each fiscal yearyears,
(i) a Parent prepared consolidated balance sheet sheet, income statement, and income statement of cash flow covering the operations of Parent and its direct and indirect Subsidiaries during such period and the year-to-date period ending thereon, with comparisons against the balance sheet for the immediately preceding fiscal year and income statement for the corresponding period during the immediately preceding fiscal year, (it being agreed that the furnishing of Parent’s quarterly report on Form 10-Q for each such fiscal quarter, as filed with the SEC, will satisfy Parent’s and Borrower’s obligations under this Section 6.2(a)(i) with respect to its Subsidiaries’ operations during such fiscal quarter)period,
(ii) a Compliance Certificate certificate of Parent signed by the chief financial officer and/or chief accounting officer of Borrower certifying Parent to the effect that:
(1A) the financial statements delivered hereunder have been prepared in accordance with GAAP (except for the lack of footnotes and being subject to quarterly (or more frequent) adjustments for reserves for price protection, warranties and returns consistent with past practices year-end audit adjustments) and fairly present in all material respects the financial condition of Parent and its direct Subsidiaries,
(B) the representations and indirect Subsidiaries, warranties of Companies contained in this Agreement and demonstrating the compliance by Parent other Loan Documents are true and correct in all material respects on a consolidated basis at and as of the end date of such quarter with all financial covenants required certificate, as though made on and as of such date (except to be tested hereunderthe extent that such representations and warranties relate solely to an earlier date), and
(2C) there does not exist any condition or event that constitutes a Default or Event of Default (or, to the extent of any non-compliance, describing such non-compliance as to which he or she may have knowledge and what action the applicable Obligated Party has Companies have taken, is are taking, or proposes propose to take with respect thereto), and
(iii) for each month that is the date on which a financial covenant in Section 7.18 is to be tested, a Compliance Certificate demonstrating, in reasonable detail, compliance at the end of such period with the applicable financial covenants contained in Section 7.18,
(b) as soon as available, but in any event by no later than the earlier of (y) five (5) within 90 days after the date on which Parent files its Form 10-K with the SEC and (z) ninety (90) days following the last day end of each of Parent’s fiscal years, ,
(i) consolidated financial statements of Parent and its direct and indirect Subsidiaries for each such fiscal year, audited by independent certified public accountants reasonably acceptable to Lender in Lender’s Permitted Discretion Agent and certified, without any qualifications (including any (A) “going concern” or like qualification or exception, or (B) qualification or exception as to the scope of such auditqualifications, by such accountants to have been prepared in accordance with GAAP) GAAP (it being agreed that the furnishing of Parent’s annual report on Form 10-K for each such fiscal year as filed with the SEC, will satisfy Parent’s and Borrower’s obligation under this Section 6.2(b) with respect to such fiscal year except with respect to the requirement that such audited financial statements be reported on without to include a “going concern” or like qualification or exceptionbalance sheet, or qualification arising out income statement, and statement of the scope of the auditcash flow and, if prepared, such accountants’ letter to management), together with and
(ii) a certificate of such accountants addressed to Lender Agent and the Lenders stating that nothing came to the attention of such accountants do not have knowledge that caused such accountants to believe that the Borrowers failed to comply with the terms, covenants, provisions or conditions of Section 7.18 insofar as they relate to accounting matters,
(c) as soon as available, but in any event prior to the existence start of any Default or Event each of Default. Such annual financial statements shall be accompanied Parent’s fiscal years,
(i) copies of Companies’ Projections, in form and substance (including as to scope and underlying assumptions) satisfactory to Agent, in its discretion, for the forthcoming three years, year by a Compliance Certificate year, and for the forthcoming fiscal year, month by month, certified by Parent and signed by the chief financial officer and/or chief accounting officer of Borrower certifying that:
(1) Parent is in compliance on a consolidated basis at the end as being such Parent’s good faith best estimate of such fiscal year with all financial covenants required to be tested hereunder,
(2) the financial statements delivered hereunder have been prepared in accordance with GAAP and fairly present in all material respects the financial condition performance of Parent and its direct Subsidiaries during the period covered thereby,
(ii) a copy of Capital Expenditure budget for the forthcoming year, which budget shall be in the form and indirect Subsidiariessubstance acceptable to Agent, and
(3iii) there does not exist any condition or event that constitutes a Default or Event schedule of Default (orthe projected release dates for videogames, to which schedule shall include for each videogame, the extent title of any non-compliancethe game, describing such non-compliance as to which he or she may have knowledge the release date, projected net sales by unit and what action the applicable Obligated Party has taken, is taking, or proposes to take with respect thereto)projected net sales by quarter,
(civ) [Intentionally Deleted]a schedule of (A) the projected revenue by fiscal quarter generated from the top 5 videogames to be sold by the Companies during the upcoming fiscal year (or the top 5 videogames and Mortal Kombat if Mortal Kombat is not in the top 5 videogames by revenue generated) and (B) the videogame titles comprising 70% of projected total annual revenue from videogame sales during the upcoming fiscal year,
(d) as soon as available, but in any event by no later than the earlier of (y) five (5) within 30 days after the date on which Parent files its Form 10-K with the SEC and (z) ninety (90) days following the last day end of each of the Parent’s fiscal yearsquarters, copies of Projections for such fiscal year revised Projections, in form and substance (includingincluding as to scope and underlying assumptions) satisfactory to Agent, in its discretion, for the avoidance of doubtcurrent fiscal year, the 2016 Projections to be delivered on or before March 30month by month, 2016), all as certified by Parent and signed by the chief financial officer of Parent as being such officerParent’s good faith best estimate of the financial performance of Parent and its direct and indirect Subsidiaries during the period covered thereby,, incorporating the actual results of all prior months of such fiscal year as well as a comparison of actual year to date results versus the Projections delivered for such fiscal year pursuant Section 6.3(c) hereof.
(e) promptlyif and when filed by any Company,
(i) 10-Q quarterly reports, but Form 10-K annual reports, and Form 8-K current reports,
(ii) any other material filings made by any Company with the SEC,
(iii) copies of Companies’ federal income tax returns, and any amendments thereto, filed with the Internal Revenue Service, and
(iv) any other information that is provided by Parent to its shareholders generally,
(f) if and when filed by any Company and as requested by Agent, satisfactory evidence of payment of applicable excise taxes in each jurisdiction in which (i) any event within five Company conducts business or is required to pay any such excise tax, (5ii) Business Days after Borrower where any Company’s failure to pay any such applicable excise tax would result in a Lien on the properties or assets of such Company, or (iii) where any Company’s failure to pay any such applicable excise tax reasonably could be expected to result in a Material Adverse Change,
(g) as soon as a Company has knowledge of any event or condition that constitutes a Default or an Event of Default, notice thereof and a statement of the curative action that the applicable Obligated Party proposes Companies propose to take with respect thereto,
(fh) promptly after the commencement thereof, but in any event within five (5) Business Days 5 days after the service of process with respect thereto on any Obligated PartyCompany, notice of all actions, suits, or proceedings brought by or against such Obligated Party any Company before any Governmental Authority which, if determined adversely to such Obligated PartyCompany, reasonably could reasonably be expected to result in a Material Adverse Change,
(gi) promptlypromptly upon delivery thereof, but in copies of any event within ten notice with respect to redemption of the Junior Notes delivered by a Company to any holder of the Junior Notes,
(10j) Business Days after Borrower as soon as a Company has knowledge thereof, notify Lender of or receipt of any material negative changes notice from a holder of a Junior Note with respect to Borrower’s customer renewal ratesa Redemption Date, telephonic and telefacsimile or electronic mail notice thereof (which telefacsimile or electronic mail notice shall include Borrowers’ estimated calculation of Liquidity after giving effect to such redemption on such Redemption Date), and
(hk) upon the request of LenderAgent, any other information report reasonably requested relating to the financial condition of any Obligated PartyCompanies. In addition to the financial statements referred to above, Companies agree to deliver unaudited financial statements prepared on a consolidating basis and agree that no Subsidiary of Parent will have a fiscal year different from that of Parent. Companies agree to cooperate with Agent to allow Agent to consult with their independent certified public accountants if Agent reasonably requests the right to do so and that, in such connection, their independent certified public accountants are authorized to communicate with Agent and to release to Agent whatever financial information concerning Companies that Agent reasonably may request.
Appears in 1 contract
Financial Statements, Reports, Certificates. Deliver to Agent, with copies to each Lender:
(a) as soon as available, but in any event by no later than within 30 days (45 days in the earlier case of (ya month that is the end of one of Parent's fiscal quarters, including its fiscal year-end) five (5) days after the date on which Parent files its Form 10-Q with the SEC and (z) forty five (45) days following the last day end of each month during each of Parent’s first three (3) 's fiscal quarters of each fiscal yearyears,
(i) a Parent prepared consolidated balance sheet sheet, income statement, and income statement of cash flow covering the operations of Parent Parent's and its direct and indirect Subsidiaries Subsidiaries' operations during such period and the year-to-date period ending thereon, with comparisons against the balance sheet for the immediately preceding fiscal year and income statement for the corresponding period during the immediately preceding fiscal year, (it being agreed that the furnishing of Parent’s quarterly report on Form 10-Q for each such fiscal quarter, as filed with the SEC, will satisfy Parent’s and Borrower’s obligations under this Section 6.2(a)(i) with respect to such fiscal quarter)period,
(ii) a Compliance Certificate certificate of Parent signed by the chief financial officer and/or chief accounting officer of Borrower certifying Parent to the effect that:
(1A) the financial statements delivered hereunder have been prepared in accordance with GAAP (except for the lack of footnotes and being subject to quarterly (or more frequent) adjustments for reserves for price protection, warranties and returns consistent with past practices year-end audit adjustments) and fairly present in all material respects the financial condition of Parent and its direct Subsidiaries,
(B) the representations and indirect Subsidiaries, warranties of Companies contained in this Agreement and demonstrating the compliance by Parent other Loan Documents are true and correct in all material respects on a consolidated basis at and as of the end date of such quarter with all financial covenants required certificate, as though made on and as of such date (except to be tested hereunderthe extent that such representations and warranties relate solely to an earlier date), and
(2C) there does not exist any condition or event that constitutes a Default or Event of Default (or, to the extent of any non-compliance, describing such non-compliance as to which he or she may have knowledge and what action the applicable Obligated Party has Companies have taken, is are taking, or proposes propose to take with respect thereto), and
(iii) for each month that is the date on which a financial covenant in SECTION 7.18 is to be tested, a Compliance Certificate demonstrating, in reasonable detail, compliance at the end of such period with the applicable financial covenants contained in SECTION 7.18,
(b) as soon as available, but in any event by no later than the earlier of (y) five (5) within 90 days after the date on which Parent files its Form 10-K with the SEC and (z) ninety (90) days following the last day end of each of Parent’s 's fiscal years, ,
(i) consolidated financial statements of Parent and its direct and indirect Subsidiaries for each such fiscal year, audited by independent certified public accountants reasonably acceptable to Lender in Lender’s Permitted Discretion Agent and certified, without any qualifications (including any (A) “going concern” or like qualification or exception, or (B) qualification or exception as to the scope of such auditqualifications, by such accountants to have been prepared in accordance with GAAP) GAAP (it being agreed that the furnishing of Parent’s annual report on Form 10-K for each such fiscal year as filed with the SEC, will satisfy Parent’s and Borrower’s obligation under this Section 6.2(b) with respect to such fiscal year except with respect to the requirement that such audited financial statements be reported on without to include a “going concern” or like qualification or exceptionbalance sheet, or qualification arising out income statement, and statement of the scope of the auditcash flow and, if prepared, such accountants' letter to management), together with and
(ii) a certificate of such accountants addressed to Lender Agent and the Lenders stating that nothing came to the attention of such accountants do not have knowledge that caused such accountants to believe that the Borrowers failed to comply with the terms, covenants, provisions or conditions of SECTION 7.18 insofar as they relate to accounting matters,
(c) as soon as available, but in any event prior to the existence start of any Default or Event each of Default. Such annual financial statements shall be accompanied Parent's fiscal years,
(i) copies of Companies' Projections, in form and substance (including as to scope and underlying assumptions) satisfactory to Agent, in its discretion, for the forthcoming three years, year by a Compliance Certificate year, and for the forthcoming fiscal year, month by month, certified by Parent and signed by the chief financial officer and/or chief accounting officer of Borrower certifying that:
(1) Parent is in compliance on a consolidated basis at the end as being such Parent's good faith best estimate of such fiscal year with all financial covenants required to be tested hereunder,
(2) the financial statements delivered hereunder have been prepared in accordance with GAAP and fairly present in all material respects the financial condition performance of Parent and its direct Subsidiaries during the period covered thereby,
(ii) a copy of Capital Expenditure budget for the forthcoming year, which budget shall be in the form and indirect Subsidiariessubstance acceptable to Agent, and
(3iii) there does not exist any condition or event that constitutes a Default or Event schedule of Default (orthe projected release dates for videogames, to which schedule shall include for each videogame, the extent title of any non-compliancethe game, describing such non-compliance as to which he or she may have knowledge the release date, projected net sales by unit and what action the applicable Obligated Party has taken, is taking, or proposes to take with respect thereto)projected net sales by quarter,
(civ) [Intentionally Deleted]a schedule of (A) the projected revenue by fiscal quarter generated from the top 5 videogames to be sold by the Companies during the upcoming fiscal year (or the top 5 videogames and Mortal Kombat if Mortal Kombat is not in the top 5 videogames by revenue generated) and (B) the videogame titles comprising 70% of projected total annual revenue from videogame sales during the upcoming fiscal year,
(d) as soon as available, but in any event by no later than the earlier of (y) five (5) within 30 days after the date on which Parent files its Form 10-K with the SEC and (z) ninety (90) days following the last day end of each of the Parent’s 's fiscal yearsquarters, copies of Projections for such fiscal year revised Projections, in form and substance (includingincluding as to scope and underlying assumptions) satisfactory to Agent, in its discretion, for the avoidance of doubtcurrent fiscal year, the 2016 Projections to be delivered on or before March 30month by month, 2016), all as certified by Parent and signed by the chief financial officer of Parent as being such officer’s Parent's good faith best estimate of the financial performance of Parent and its direct and indirect Subsidiaries during the period covered thereby,, incorporating the actual results of all prior months of such fiscal year as well as a comparison of actual year to date results versus the Projections delivered for such fiscal year pursuant SECTION 6.3(c) hereof.
(e) promptlyif and when filed by any Company, but in any event within five (5i) Business Days after Borrower has knowledge of any event or condition that constitutes a Default or an Event of Default10-Q quarterly reports, notice thereof Form 10-K annual reports, and a statement of the curative action that the applicable Obligated Party proposes to take with respect theretoForm 8-K current reports,
(f) promptly after the commencement thereof, but in any event within five (5) Business Days after the service of process with respect thereto on any Obligated Party, notice of all actions, suits, or proceedings brought by or against such Obligated Party before any Governmental Authority which, if determined adversely to such Obligated Party, could reasonably be expected to result in a Material Adverse Change,
(g) promptly, but in any event within ten (10) Business Days after Borrower has knowledge thereof, notify Lender of any material negative changes to Borrower’s customer renewal rates, and
(h) upon the request of Lender, any other information reasonably requested relating to the financial condition of any Obligated Party.
Appears in 1 contract
Financial Statements, Reports, Certificates. Deliver to Agent and the Specified Appointee, with copies to each Lender:
(a) as soon as available, but in any event by no later than within 30 days (45 days in the earlier case of (ya month that is the end of one of the first 3 fiscal quarters in a fiscal year) five (5) days after the date on which Parent files its Form 10-Q with the SEC and (z) forty five (45) days following the last day end of each month during each of Parent’s first three (3) Borrower's fiscal quarters of each fiscal yearyears,
(i) a company prepared consolidated balance sheet sheet, income statement, and income statement of cash flow covering the operations of Parent Borrower's and its direct and indirect Subsidiaries Subsidiaries' operations during such period and the year-to-date period ending thereon, with comparisons against the balance sheet for the immediately preceding fiscal year and income statement for the corresponding period during the immediately preceding fiscal year, (it being agreed that the furnishing of Parent’s quarterly report on Form 10-Q for each such fiscal quarter, as filed with the SEC, will satisfy Parent’s and Borrower’s obligations under this Section 6.2(a)(i) with respect to such fiscal quarter)period,
(ii) a Compliance Certificate certificate signed by the chief financial officer and/or chief accounting officer of Borrower certifying to the effect that:
(1A) the financial statements delivered hereunder have been prepared in accordance with GAAP (except for the lack of footnotes and being subject to year-end audit adjustments) and fairly present in all material respects the financial condition of Parent Borrower and its direct Subsidiaries,
(B) the representations and indirect Subsidiaries, warranties of Borrower contained in this Agreement and demonstrating the compliance by Parent other Loan Documents are true and correct in all material respects on a consolidated basis at and as of the end date of such quarter with all financial covenants required certificate, as though made on and as of such date (except to be tested hereunderthe extent that such representations and warranties relate solely to an earlier date), and
(2C) there does not exist any condition or event that constitutes a Default or Event of Default (or, to the extent of any non-compliance, describing such non-compliance as to which he or she may have knowledge and what action the applicable Obligated Party Borrower has taken, is taking, or proposes to take with respect thereto),, and
(iii) for each month that is the date on which a covenant in Section 7.20 is to be tested, a Compliance Certificate demonstrating, in reasonable detail, compliance at the end of such period with the applicable covenants contained in Section 7.20, and
(b) as soon as available, but in any event by no later than the earlier of (y) five (5) within 90 days after the date on which Parent files its Form 10-K with the SEC and (z) ninety (90) days following the last day end of each of Parent’s Borrower's fiscal years, consolidated ,
(i) financial statements of Parent Borrower and its direct and indirect Subsidiaries for each such fiscal year, audited by independent certified public accountants reasonably acceptable to Lender in Lender’s Permitted Discretion Agent and the Specified Appointee and certified, without any qualifications (including any including, without limitation, (A) “any going concern” concern or like qualification or exception, exception or (B) any qualification or exception as to the scope of such audit), by such accountants to have been prepared in accordance with GAAP) GAAP (it being agreed that the furnishing of Parent’s annual report on Form 10-K for each such fiscal year as filed with the SEC, will satisfy Parent’s and Borrower’s obligation under this Section 6.2(b) with respect to such fiscal year except with respect to the requirement that such audited financial statements be reported on without to include a “going concern” or like qualification or exceptionbalance sheet, or qualification arising out income statement, and statement of the scope of the auditcash flow and, if prepared, such accountants' letter to management), together with ,
(ii) a certificate of such accountants addressed to Lender Agent, the Specified Appointee and the Lenders stating that such accountants do not have knowledge of the existence of any Default or Event of Default. Such annual financial statements shall be accompanied by a Compliance Certificate signed by the chief financial officer and/or chief accounting officer of Borrower certifying that:
(1) Parent is in compliance on a consolidated basis at the end of such fiscal year with all financial covenants required to be tested hereunder,
(2) the financial statements delivered hereunder have been prepared in accordance with GAAP and fairly present in all material respects the financial condition of Parent and its direct and indirect Subsidiaries, and
(3) there does not exist any condition or event that constitutes a Default or Event of Default (or, to the extent of any non-compliance, describing such non-compliance as to which he or she may have knowledge and what action the applicable Obligated Party has taken, is taking, or proposes to take with respect thereto)under Section 7.20,
(c) [Intentionally Deleted],
(d) as soon as available, but in any event by no later than within 30 days prior to the earlier of (y) five (5) days after the date on which Parent files its Form 10-K with the SEC and (z) ninety (90) days following the last day start of each of Parent’s Borrower's fiscal years, copies of Projections for such fiscal year Borrower's Projections, in form and substance (includingincluding as to scope and underlying assumptions) satisfactory to Agent and the Specified Appointee, in their sole discretions, for the avoidance of doubtforthcoming 3 years, year by year, and for the 2016 Projections to be delivered on or before March 30forthcoming fiscal year, 2016)month by month, all as certified by the chief financial officer of Parent Borrower as being such officer’s 's good faith best estimate of the financial performance of Parent and its direct and indirect Subsidiaries Borrower during the period covered thereby,
(d) if and when filed by Borrower,
(i) Form 10-Q quarterly reports, Form 10-K annual reports, and Form 8-K current reports,
(ii) any other filings made by Borrower with the SEC,
(iii) copies of Borrower's federal income tax returns, and any amendments thereto, filed with the Internal Revenue Service, and
(iv) any other information that is provided by Borrower to its shareholders,
(e) promptlyif and when filed by any Loan Party and as requested by Agent or the Specified Appointee, satisfactory evidence of payment of applicable excise taxes in each jurisdictions in which (i) such Loan Party conducts business or is required to pay any such excise tax, (ii) where such Loan Party's failure to pay any such applicable excise tax would result in a Lien on the properties or assets of such Loan Party, or (iii) where such Loan Party's failure to pay any such applicable excise tax reasonably could be expected to result in a Material Adverse Change,
(f) promptly after sending or receipt thereof, copies of any material notice or other correspondence sent to, or received from, any Governmental Authority related to the Oil and Gas Properties of any Loan Party, including, without limitation, notice of any new plugging and abandonment or other performance or other assurance bond requirements related to such Oil and Gas Properties,
(g) promptly after the commencement thereof, but in any event within five days after the service of process with respect thereto on any Loan Party, notice of all actions, suits or proceedings brought by or against any Loan Party before any Governmental Authority which, if determined adversely to such Loan Party, could result in a Material Adverse Change,
(5h) Business Days after as soon as Borrower has knowledge of any event or condition that constitutes a Default or an Event of Default, notice thereof and a statement of the curative action that the applicable Obligated Party Borrower proposes to take with respect thereto,
(fi) promptly after the commencement receipt or delivery thereof, but in any event within five (5) Business Days after the service of process with respect thereto on any Obligated Party, notice of all actions, suits, or proceedings brought by or against such Obligated Party before any Governmental Authority which, if determined adversely to such Obligated Party, could reasonably be expected to result in a Material Adverse Change,
(g) promptly, but in any event within ten (10) Business Days after Borrower has knowledge thereof, notify Lender copies of any material negative notices that any Loan Party receives from or sends to any Person in connection with the New Notes Documents and (ii) at least 3 Business Days prior to the effective date thereof, any amendments, modifications, waivers or other changes to Borrower’s customer renewal ratesany of the New Notes Documents, and
(hj) upon the request of LenderAgent or the Specified Appointee, any other information report reasonably requested relating to the financial condition of Borrower or any Obligated Partyof its Subsidiaries. In addition to the financial statements referred to above, Borrower agrees to deliver financial statements prepared on both a consolidated and consolidating basis and agrees that no Subsidiary of Borrower will have a fiscal year different from that of Borrower. Borrower agrees that its independent certified public accountants are authorized to communicate with Agent and the Specified Appointee and to release to Agent and the Specified Appointee whatever financial information concerning Borrower Agent or the Specified Appointee reasonably may request. Borrower waives the right to assert a confidential relationship, if any, it may have with any accounting firm or service bureau in connection with any request for information by Agent or the Specified Appointee pursuant to or in accordance with this Agreement, and agrees that Agent and the Specified Appointee may contact directly any such accounting firm or service bureau in order to obtain such information.
Appears in 1 contract
Samples: Loan and Security Agreement (Abraxas Petroleum Corp)
Financial Statements, Reports, Certificates. Deliver to Lender:
(a) as soon as available, but in any event by no later than the earlier of (y) five (5) within 45 days after the date on which Parent files its Form 10-Q with the SEC and end of each fiscal quarter (z) forty five (45) days following other than the last day fiscal quarter of each fiscal year) during each of Parent’s 's fiscal years (provided, that if and when Parent's systems are able to generate monthly financials, Parent shall deliver such monthly financials within 30 days (45 days in the case of a month that is the end of one of the first three (3) fiscal quarters in a fiscal year) after the end of each month during each of Parent's fiscal yearyears),
(i) a company prepared consolidated balance sheet sheet, income statement, and income statement of cash flow covering the operations of Parent Parent's and its direct and indirect Subsidiaries Subsidiaries' operations during such period and the year-to-date period ending thereon, with comparisons against the balance sheet for the immediately preceding fiscal year and income statement for the corresponding period during the immediately preceding fiscal year, (it being agreed that the furnishing of Parent’s quarterly report on Form 10-Q for each such fiscal quarter, as filed with the SEC, will satisfy Parent’s and Borrower’s obligations under this Section 6.2(a)(i) with respect to such fiscal quarter)period,
(ii) a Compliance Certificate certificate signed by the chief financial officer and/or chief accounting officer of Borrower certifying Parent to the effect that:
(1) A. the financial statements delivered hereunder have been prepared in accordance with GAAP (except for the lack of footnotes and being subject to year-end audit adjustments) and fairly present in all material respects the financial condition of Parent and its direct Subsidiaries,
B. the representations and indirect Subsidiaries, warranties of Borrowers contained in this Agreement and demonstrating the compliance by Parent other Loan Documents are true and correct in all material respects on a consolidated basis at and as of the end date of such quarter with all financial covenants required certificate, as though made on and as of such date (except to be tested hereunderthe extent that such representations and warranties relate solely to an earlier date), and
(2) C. there does not exist any condition or event that constitutes a Default or Event of Default (or, to the extent of any non-compliance, describing such non-compliance as to which he or she may have -63- knowledge and what action the applicable Obligated Party has Borrowers have taken, is are taking, or proposes propose to take with respect thereto), and
(iii) for each month that is the end of a fiscal quarter on which a financial covenant in Section 7.20 is to be tested, a Compliance Certificate demonstrating, in reasonable detail, compliance at the end of such period with the applicable financial covenants contained in Section 7.20,
(b) as soon as available, but in any event by no later than the earlier of (y) five (5) within 90 days after the date on which Parent files its Form 10-K with the SEC and (z) ninety (90) days following the last day end of each of Parent’s 's fiscal years, consolidated ,
(i) financial statements of Parent and its direct and indirect Subsidiaries for each such fiscal year, audited by independent certified public accountants reasonably acceptable to Lender in Lender’s Permitted Discretion and certified, without any qualifications (including any (A) “going concern” or like qualification or exception, or (B) qualification or exception as to the scope of such auditqualifications, by such accountants to have been prepared in accordance with GAAP) GAAP (it being agreed that the furnishing of Parent’s annual report on Form 10-K for each such fiscal year as filed with the SEC, will satisfy Parent’s and Borrower’s obligation under this Section 6.2(b) with respect to such fiscal year except with respect to the requirement that such audited financial statements be reported on without to include a “going concern” or like qualification or exceptionbalance sheet, or qualification arising out income statement, and statement of the scope of the auditcash flow and, if prepared, such accountants' letter to management), together with ,
(ii) a certificate of such accountants addressed to Lender stating that such accountants do not have knowledge of the existence of any Default or Event of Default. Such annual financial statements shall be accompanied by a Compliance Certificate signed by the chief financial officer and/or chief accounting officer of Borrower certifying that:
(1) Parent is in compliance on a consolidated basis at the end of such fiscal year with all financial covenants required to be tested hereunder,
(2) the financial statements delivered hereunder have been prepared in accordance with GAAP and fairly present in all material respects the financial condition of Parent and its direct and indirect Subsidiaries, and
(3) there does not exist any condition or event that constitutes a Default or Event of Default (or, to the extent of any non-compliance, describing such non-compliance as to which he or she may have knowledge and what action the applicable Obligated Party has taken, is taking, or proposes to take with respect thereto)under Section 7.20,
(c) [Intentionally Deleted],
(d) as soon as available, but in any event by no later than within 30 days prior to the earlier of (y) five (5) days after the date on which Parent files its Form 10-K with the SEC and (z) ninety (90) days following the last day start of each of Parent’s 's fiscal years, ,
(i) copies of Projections for such fiscal year Borrowers' Operating Budget, in form and substance (includingincluding as to scope and underlying assumptions) reasonably satisfactory to Lender, in its Permitted Discretion, for the avoidance of doubtforthcoming three (3) years, year by year, and for the 2016 Projections to be delivered on or before March 30forthcoming fiscal year, 2016)month by month, all as certified by the chief financial officer of Parent as being such officer’s 's good faith best estimate of the financial performance of Parent and its direct and indirect Subsidiaries during the period covered thereby,
(d) if and when filed by any Borrower,
(i) 10-Q quarterly reports, Form 10-K annual reports, and Form 8-K current reports,
(ii) any other filings made by any Borrower with the SEC,
(iii) copies of Borrowers' federal income tax returns, and any amendments thereto, filed with the Internal Revenue Service (or, if applicable, Borrowers' tax returns filed with the United Kingdom tax authorities), and
(e) promptlyif and when provided, but any other information that is provided by Parent to its shareholders generally,
(f) if and when filed by any Borrower and as requested by Lender, satisfactory evidence of payment of applicable excise taxes in each jurisdictions in which (i) any event within five Borrower conducts business or is required to pay any such excise tax, (5ii) Business Days after where any Borrower's failure to pay any such applicable excise tax would result in a Lien on the properties or assets of any Borrower, or (iii) where any Borrower's failure to pay any such applicable excise tax reasonably could be expected to result in a Material Adverse Change,
(g) as soon as a Borrower has knowledge of any event or condition that constitutes a Default or an Event of Default, notice thereof and a statement of the curative action that the applicable Obligated Party proposes Borrowers propose to take with respect thereto,
(fh) promptly after the commencement thereofas soon as available, but in any event within five (5) Business Days 15 days after the service end of process with respect thereto on any Obligated Partyeach month during each of Parent's fiscal years, notice of all actions, suits, or proceedings brought by or against a monthly flash report detailing Parent's revenues for each such Obligated Party before any Governmental Authority which, if determined adversely to such Obligated Party, could reasonably be expected to result in a Material Adverse Change,
(g) promptly, but in any event within ten (10) Business Days after Borrower has knowledge thereof, notify Lender of any material negative changes to Borrower’s customer renewal ratesmonth, and
(hi) upon the request of Lender, any other information report reasonably requested relating to the financial condition of Borrowers. In addition to the financial statements referred to above, Borrowers agree to deliver financial statements prepared on both a consolidated and consolidating basis and that no Borrower, or any Obligated PartySubsidiary of a Borrower, will have a fiscal year different from that of Parent. Borrowers agree that their independent certified public accountants are authorized to communicate with Lender and to release to Lender whatever financial information concerning Borrowers that Lender reasonably may request. Each Borrower waives the right to assert a confidential relationship, if any, it may have with any accounting firm or service bureau in connection with any information requested by Lender pursuant to or in accordance with this Agreement, and agree that Lender may contact directly any such accounting firm or service bureau in order to obtain such information.
Appears in 1 contract
Financial Statements, Reports, Certificates. Deliver to Lender:
(a) as soon as available, but in any event by no later than within 30 days (45 days in the earlier case of (ya month that is the end of one of the first 3 fiscal quarters in a fiscal year) five (5) days after the date on which Parent files its Form 10-Q with the SEC and (z) forty five (45) days following the last day end of each month during each of Parent’s first three (3) 's fiscal quarters of each fiscal yearyears,
(i) a company prepared consolidated balance sheet sheet, income statement, and income statement of cash flow covering the operations of Parent Parent's and its direct and indirect Subsidiaries Subsidiaries' operations during such period and the year-to-date period ending thereon, with comparisons against the balance sheet for the immediately preceding fiscal year and income statement for the corresponding period during the immediately preceding fiscal year, (it being agreed that the furnishing of Parent’s quarterly report on Form 10-Q for each such fiscal quarter, as filed with the SEC, will satisfy Parent’s and Borrower’s obligations under this Section 6.2(a)(i) with respect to such fiscal quarter)period,
(ii) a Compliance Certificate certificate signed by the chief financial officer and/or chief accounting officer of Borrower certifying Parent to the effect that:
(1) A. the financial statements delivered hereunder have been prepared in accordance with GAAP (except for the lack of footnotes and being subject to year-end audit adjustments) and fairly present in all material respects the financial condition of Parent and its direct Subsidiaries,
B. the representations and indirect Subsidiaries, warranties of Borrowers contained in this Agreement and demonstrating the compliance by Parent other Loan Documents are true and correct in all material respects on a consolidated basis at and as of the end date of such quarter with all financial covenants required certificate, as though made on and as of such date (except to be tested hereunderthe extent that such representations and warranties relate solely to an earlier date), and
(2) C. there does not exist any condition or event that constitutes a Default or Event of Default (or, to the extent of any non-compliance, describing such non-compliance as to which he or she may have knowledge and what action the applicable Obligated Party has Borrowers have taken, is are taking, or proposes propose to take with respect thereto),, and
(iii) for each month that is the date on which a financial covenant in Section 7.20 is to be tested, a Compliance Certificate demonstrating, in reasonable detail, compliance at the end of such period with the applicable financial covenants contained in Section 7.20, and -57- 64
(b) as soon as available, but in any event by no later than the earlier of (y) five (5) within 90 days after the date on which Parent files its Form 10-K with the SEC and (z) ninety (90) days following the last day end of each of Parent’s 's fiscal years, consolidated ,
(i) financial statements of Parent and its direct and indirect Subsidiaries for each such fiscal year, audited by independent certified public accountants reasonably acceptable to Lender in Lender’s Permitted Discretion and certified, without any qualifications (including any (A) “going concern” or like qualification or exception, or (B) qualification or exception as to the scope of such auditqualifications, by such accountants to have been prepared in accordance with GAAP) GAAP (it being agreed that the furnishing of Parent’s annual report on Form 10-K for each such fiscal year as filed with the SEC, will satisfy Parent’s and Borrower’s obligation under this Section 6.2(b) with respect to such fiscal year except with respect to the requirement that such audited financial statements be reported on without to include a “going concern” or like qualification or exceptionbalance sheet, or qualification arising out income statement, and statement of the scope of the auditcash flow and, if prepared, such accountants' letter to management), together with ,
(ii) a certificate of such accountants addressed to Lender stating that such accountants do not have knowledge of the existence of any Default or Event of Default. Such annual financial statements shall be accompanied by a Compliance Certificate signed by the chief financial officer and/or chief accounting officer of Borrower certifying that:
(1) Parent is in compliance on a consolidated basis at the end of such fiscal year with all financial covenants required to be tested hereunder,
(2) the financial statements delivered hereunder have been prepared in accordance with GAAP and fairly present in all material respects the financial condition of Parent and its direct and indirect Subsidiaries, and
(3) there does not exist any condition or event that constitutes a Default or Event of Default (or, to the extent of any non-compliance, describing such non-compliance as to which he or she may have knowledge and what action the applicable Obligated Party has taken, is taking, or proposes to take with respect thereto)under Section 7.20,
(c) [Intentionally Deleted],
(d) as soon as available, but in any event by no later than within 30 days prior to the earlier of (y) five (5) days after the date on which Parent files its Form 10-K with the SEC and (z) ninety (90) days following the last day start of each of Parent’s 's fiscal years, ,
(i) copies of Projections for such fiscal year Borrowers' Projections, in form and substance (includingincluding as to scope and underlying assumptions) satisfactory to Lender, in its sole discretion, for the avoidance of doubtforthcoming 2 years, year by year, and for the 2016 Projections to be delivered on or before March 30forthcoming fiscal year, 2016)month by month, all as certified by the chief financial officer of Parent as being such officer’s 's good faith best estimate of the financial performance of Parent and its direct and indirect Subsidiaries during the period covered thereby,
(d) if and when filed by any Borrower,
(i) 10-Q quarterly reports, Form 10-K annual reports, and Form 8-K current reports,
(ii) any other filings made by any Borrower with the SEC,
(iii) copies of Borrowers' federal income tax returns, and any amendments thereto, filed with the Internal Revenue Service, and
(iv) any other information that is provided by Parent to its shareholders generally,
(e) promptlyif and when filed by any Borrower or Canadian Obligor and as requested by Lender, but satisfactory evidence of payment of applicable excise taxes in each jurisdictions in which (i) any event within five Borrower or Canadian Obligor conducts business or is required to pay any such excise tax, (5ii) Business Days after where any Borrower's or Canadian Obligor's failure to pay any such applicable excise tax would result in a Lien on the properties or assets of any Borrower or Canadian Obligor, as applicable, or (iii) where any Borrower's or Canadian Obligor's failure to pay any such applicable excise tax reasonably could be expected to result in a Material Adverse Change,
(f) as soon as a Borrower has knowledge of any event or condition that constitutes a Default or an Event of Default, notice thereof and a statement of the curative action that the applicable Obligated Party proposes Borrowers propose to take with respect thereto,
(f) promptly after the commencement thereof, but in any event within five (5) Business Days after the service of process with respect thereto on any Obligated Party, notice of all actions, suits, or proceedings brought by or against such Obligated Party before any Governmental Authority which, if determined adversely to such Obligated Party, could reasonably be expected to result in a Material Adverse Change,
(g) promptly, but in any event within ten (10) Business Days after Borrower has knowledge thereof, notify Lender of any material negative changes to Borrower’s customer renewal rates, and
(hg) upon the request of Lender, any other information report reasonably requested relating to the financial condition of Borrowers. In addition to the financial statements referred to above, Borrowers agree to deliver financial statements prepared on both a consolidated and consolidating basis and that no Borrower, or any Obligated PartySubsidiary of a Borrower, will have a fiscal year different from that of Parent. Borrowers agree that their independent certified public accountants are authorized to communicate with Lender and to release to Lender whatever financial information concerning Borrowers that Lender reasonably may request. Each Borrower waives the right to assert a confidential relationship, if any, it may have with any accounting firm or service bureau in connection with any information requested by Lender pursuant to or in accordance with this Agreement, and agree that Lender may contact directly any such accounting firm or service bureau in order to obtain such information.
Appears in 1 contract
Financial Statements, Reports, Certificates. Deliver to Lender:
(a) as soon as available, but in any event by no later than within 30 days (45 days in the earlier case of (ya month that is the end of one of Borrower's fiscal quarters) five (5) days after the date on which Parent files its Form 10-Q with the SEC and (z) forty five (45) days following the last day end of each month during each of Parent’s first three (3) Borrower's fiscal quarters of each fiscal yearyears,
(i) a company prepared consolidated balance sheet sheet, income statement, and income statement of cash flow covering the operations of Parent Borrower's and its direct and indirect Subsidiaries Subsidiaries' operations during such period and the year-to-date period ending thereon, with comparisons against the balance sheet for the immediately preceding fiscal year and income statement for the corresponding period during the immediately preceding fiscal year, (it being agreed that the furnishing of Parent’s quarterly report on Form 10-Q for each such fiscal quarter, as filed with the SEC, will satisfy Parent’s and Borrower’s obligations under this Section 6.2(a)(i) with respect to such fiscal quarter)period,
(ii) a Compliance Certificate certificate signed by the chief financial officer and/or chief accounting officer of Borrower certifying to the effect that:
(1A) the financial statements delivered hereunder have been prepared in accordance with GAAP (except for the lack of footnotes and being subject to year-end audit adjustments) and fairly present in all material respects the financial condition of Parent Borrower and its direct Subsidiaries,
(B) if at any time the Revolver Usage is greater than or equal to $5,000,000, the representations and indirect Subsidiaries, warranties of Borrower contained in this Agreement and demonstrating the compliance by Parent other Loan Documents are true and correct in all material respects on a consolidated basis at and as of the end date of such quarter with all financial covenants required certificate, as though made on and as of such date (except to be tested hereunderthe extent that such representations and warranties relate solely to an earlier date), and
(2C) there does not exist any condition or event that constitutes a Default or Event of Default (or, to the extent of any non-compliance, describing such non-compliance as to which he or she may have knowledge and what action the applicable Obligated Party Borrower has taken, is taking, or proposes to take with respect thereto), and
(iii) for each month that is the date on which the financial covenant in SECTION 7.18 is to be tested, a Compliance Certificate demonstrating, in reasonable detail, compliance at the end of such period with such financial covenant contained in SECTION 7.18,
(b) as soon as available, but in any event by no later than the earlier of (y) five (5) within 45 days after the end of each quarter during each of Borrower's fiscal years,
(i) if at any time the Revolver Usage is greater than $0 but less than $5,000,000, a certificate signed by the chief financial officer of Borrower to the effect that the representations and warranties of Borrower contained in this Agreement and the other Loan Documents are true and correct in all material respects on and as of the date of such certificate, as though made on which Parent files its Form 10-K with and as of such date (except to the SEC extent that such representations and warranties relate solely to an earlier date), and
(zc) ninety (90) as soon as available, but in any event within 90 days following after the last day end of each of Parent’s Borrower's fiscal years, ,
(i) consolidated financial statements of Parent Borrower and its direct and indirect Subsidiaries for each such fiscal year, audited by independent certified public accountants reasonably acceptable to Lender in Lender’s Permitted Discretion and certified, without any qualifications (including any (A) “going concern” or like qualification or exception, or (B) qualification or exception as to the scope of such auditmaterial qualifications, by such accountants to have been prepared in accordance with GAAP) GAAP (it being agreed that the furnishing of Parent’s annual report on Form 10-K for each such fiscal year as filed with the SEC, will satisfy Parent’s and Borrower’s obligation under this Section 6.2(b) with respect to such fiscal year except with respect to the requirement that such audited financial statements be reported on without to include a “going concern” or like qualification or exceptionbalance sheet, or qualification arising out income statement, and statement of the scope of the auditcash flow and, if prepared, such accountants' letter to management), together with and
(ii) a certificate of such accountants addressed to Lender stating that such accountants do not have knowledge of the existence of any Default or Event of Default. Such annual financial statements shall be accompanied by a Compliance Certificate signed by the chief financial officer and/or chief accounting officer of Borrower certifying that:
(1) Parent is in compliance on a consolidated basis at the end of such fiscal year with all financial covenants required to be tested hereunder,
(2) the financial statements delivered hereunder have been prepared in accordance with GAAP and fairly present in all material respects the financial condition of Parent and its direct and indirect Subsidiaries, and
(3) there does not exist any condition or event that constitutes a Default or Event of Default (or, to the extent of any non-compliance, describing such non-compliance as to which he or she may have knowledge and what action the applicable Obligated Party has taken, is taking, or proposes to take with respect thereto),
(c) [Intentionally Deleted]under SECTION 7.18,
(d) as soon as available, but in any event by no later than the earlier of (y) five (5) within 30 days after the date on which Parent files its Form 10-K with the SEC and (z) ninety (90) days following the last day start of each of Parent’s Borrower's fiscal years, copies of Projections for such fiscal year Borrower's Projections, in form and substance (includingincluding as to scope and underlying assumptions) reasonably satisfactory to Lender, in its Permitted Discretion, for the avoidance of doubtforthcoming 3 years, year by year, and for the 2016 Projections to be delivered on or before March 30forthcoming fiscal year, 2016)month by month, all as certified by the chief financial officer of Parent Borrower as being such officer’s 's good faith best estimate of the financial performance of Parent and its direct and indirect Subsidiaries Borrower during the period covered thereby,
(e) promptlyif and when filed by Borrower,
(i) Form 10-Q quarterly reports, but Form 10-K annual reports, and Form 8-K current reports,
(ii) any other filings made by Borrower with the SEC,
(f) if and when filed by Borrower or its Subsidiaries and as requested by Lender, satisfactory evidence of payment of applicable excise taxes in each jurisdiction in which (i) Borrower or its Subsidiaries (other than Inactive Subsidiaries for whose taxes neither Borrower nor any event within five of Domestic Subsidiary is liable) conducts business or is required to pay any such excise tax; (5ii) Business Days after where Borrower's or any Domestic Subsidiary's (other than Inactive Subsidiaries for whose taxes neither Borrower nor any of Domestic Subsidiary is liable) failure to pay any such applicable excise tax would result in a Lien on the properties or assets of Borrower or its Subsidiaries, or (iii) where Borrower's or its Subsidiaries' (other than Inactive Subsidiaries for whose taxes neither Borrower nor any of Domestic Subsidiary is liable) failure to pay any such applicable excise tax reasonably could be expected to result in a Material Adverse Change,
(g) as soon as Borrower has knowledge of any event or condition that constitutes a Default or an Event of Default, notice thereof and a statement of the curative action that the applicable Obligated Party Borrower proposes to take with respect thereto,
(fh) promptly after the commencement thereof, but in any event within five (5) Business Days 5 days after the service of process with respect thereto on Borrower or any Obligated Partyof its Subsidiaries (other than Inactive Subsidiaries for whose actions neither Borrower nor any of Domestic Subsidiary is liable), notice of all actions, suits, or proceedings brought by or against such Obligated Party before Borrower or any of its Subsidiaries (other than Inactive Subsidiaries for whose actions neither Borrower nor any of Domestic Subsidiary is liable)before any Governmental Authority which, if determined adversely to Borrower or such Obligated PartySubsidiary, reasonably could reasonably be expected to result in a Material Adverse Change,
(g) promptly, but in any event within ten (10) Business Days after Borrower has knowledge thereof, notify Lender of any material negative changes to Borrower’s customer renewal rates, and
(h) upon the request of Lender, any other information reasonably requested relating to the financial condition of any Obligated Party.
Appears in 1 contract
Samples: Loan and Security Agreement (Mortons Restaurant Group Inc)
Financial Statements, Reports, Certificates. Deliver to Agent (and if so requested by Agent, with copies for each Lender:
(a) each of the financial statements, reports, or other items set forth below at the following times in form satisfactory to Agent: as soon as available, but in any event by no later than the earlier of (y) five (5) days 45th day after the date on which Parent files its Form 10-Q with end of each fiscal quarter during each of Borrower’s fiscal years, except the SEC and fourth fiscal quarter, (za) forty five (45) days following an unaudited consolidated balance sheet as of the last day of each of ParentBorrower’s first three (3) fiscal quarters of each fiscal year,
(i) a consolidated balance sheet and an income statement and statement of cash flow, covering the operations of Parent and its direct and indirect Subsidiaries during such period and the year-to-date period ending thereon, with comparisons against the balance sheet for the immediately preceding fiscal year and income statement for the corresponding period during the immediately preceding fiscal year, (it being agreed that the furnishing of Parent’s quarterly report on Form 10-Q for each such fiscal quarter, as filed with the SEC, will satisfy Parent’s and Borrower’s obligations under this Section 6.2(a)(i) with respect to such fiscal quarter),
(ii) a Compliance Certificate signed by the chief financial officer and/or chief accounting officer of Borrower certifying that:
(1) the financial statements delivered hereunder have been prepared in accordance with GAAP (except for the lack of footnotes and being subject to year-end audit adjustments) and fairly present in all material respects the financial condition of Parent and its direct and indirect Subsidiaries, and demonstrating the compliance by Parent operations on a consolidated basis at the end of for such quarter with all financial covenants required to be tested hereunder, and
(2) there does not exist any condition or event that constitutes a Default or Event of Default (or, period and compared to the extent of any non-complianceprior quarter, describing such non-compliance as to which he or she may have knowledge and what action the applicable Obligated Party has taken, is taking, or proposes to take with respect thereto),
(b) a reconciliation of billed and unbilled Accounts and trade accounts payable of Borrower’s general ledger accounts to its quarterly financial statements including any book reserves related to each category, and (c) a Compliance Certificate. as soon as available, but in any event by no later than the earlier of (y) five (5) days 90th day after the date on which Parent files its Form 10-K with end of each of Borrower’s fiscal years during the SEC and term of the Agreement, (zd) ninety (90) days following consolidated balance sheet as of the last day of each of ParentBorrower’s fiscal yearsyear, and an income statement and statement of cash flow covering Borrower’s operations on a consolidated financial statements of Parent and its direct and indirect Subsidiaries basis for each such fiscal year, audited by independent certified public accountants reasonably acceptable to Lender in Lender’s Permitted Discretion Agent and certified, without any of the following qualifications (including any (A) “going concern” or like qualification or exception, or other than for fiscal year 2013 provided such “going concern” qualification is solely with respect the pending maturities of Borrower’s existing Indebtedness, its recurring net losses and its excess of liabilities over its assets, (B) qualification or exception as to the scope of such audit, or (C) qualification which relates to the treatment or classification of any item and which, as a condition to the removal of such qualification, would require an adjustment to such item, the effect of which would be to cause any noncompliance with the provisions of Section 5.07 of the Agreement), by such accountants to have been prepared in accordance with GAAP) GAAP (it being agreed that the furnishing of Parent’s annual report on Form 10-K for each such fiscal year as filed with the SEC, will satisfy Parent’s and Borrower’s obligation under this Section 6.2(b) with respect to such fiscal year except with respect to the requirement that such audited financial statements be reported on without to include a “going concern” or like qualification or exceptionbalance sheet, or qualification arising out income statement, statement of the scope cash flow, and statement of the auditshareholder’s equity, and, if prepared, such accountants’ letter to management), together with a certificate of such accountants addressed to Lender stating that such accountants do not have knowledge of the existence of any Default or Event of Default. Such annual financial statements shall be accompanied by and (e) a Compliance Certificate signed by the chief financial officer and/or chief accounting officer of Borrower certifying that:
(1) Parent is in compliance on a consolidated basis at the end of such fiscal year with all financial covenants required to be tested hereunder,
(2) the financial statements delivered hereunder have been prepared in accordance with GAAP and fairly present in all material respects the financial condition of Parent and its direct and indirect Subsidiaries, and
(3) there does not exist any condition or event that constitutes a Default or Event of Default (or, to the extent of any non-compliance, describing such non-compliance as to which he or she may have knowledge and what action the applicable Obligated Party has taken, is taking, or proposes to take with respect thereto),
(c) [Intentionally Deleted],
(d) Certificate. as soon as available, but in any event by no later than within 30 days prior to the earlier of (y) five (5) days after the date on which Parent files its Form 10-K with the SEC and (z) ninety (90) days following the last day start of each of ParentBorrower’s fiscal years, or more (f) copies of Borrower’s Projections for such fiscal year (includingincluding management’s projected (and audited and non-reviewed) income statements, balance sheets and cash flow statements), in form and substance satisfactory to Agent, in its sole but reasonable discretion, for the avoidance of doubtforthcoming fiscal year, the 2016 Projections to be delivered on or before March 30month by month, 2016), all as certified by the chief financial officer of Parent Borrower as being such officerthe Borrower’s good faith best estimate projection of the financial performance of Parent and its direct and indirect Subsidiaries Borrower during the period covered thereby,
thereby subject to frequently upon any material change to Borrower’s business, assumptions believed by Borrower to be reasonable at the time of the delivery of such Projections to Agent (eit being understood that such Projections are subject to significant uncertainties and contingencies, many of which are beyond the control of the Loan Parties and their Subsidiaries, and no assurances can be given that such Projections will be realized, and although reflecting Borrower’s good faith estimate, projections or forecasts based on methods and assumptions which Borrower believed to be reasonable at the time such Projections were prepared, are not to be viewed as facts, and that actual results during the period or periods covered by the Projections may differ materially from projected or estimated results. if and when filed by Borrower, (g) Form 10-Q quarterly reports, Form 10-K annual reports, and Form 8-K current reports, all within 5 days of filing (h) any other filings made by Borrower with the SEC, and (i) any other information that is provided by Borrower to its shareholders generally in their capacity as shareholders and not information generally provided to individuals in their capacity as employees. promptly, but in any event within five (5) no later than 5 Business Days after Borrower has knowledge of any event or condition that constitutes a Default or an Event of Default, (j) notice thereof of such event or condition and a statement of the curative action that the applicable Obligated Party Borrower proposes to take with respect thereto,
(f) . promptly after the commencement thereof, but in any event within five (5) no later than 5 Business Days after the service of process with respect thereto on Borrower or any Obligated Partyof its Subsidiaries, (k) notice of all actions, suits, or proceedings brought by or against such Obligated Party Borrower or any of its Subsidiaries before any Governmental Authority which, if determined adversely to such Obligated Party, which reasonably could reasonably be expected to result in a Material Adverse Change,
(g) promptly, but in any event within ten (10) Business Days after Borrower has knowledge thereof, notify Lender of any material negative changes to Borrower’s customer renewal rates, and
(h) Effect. upon the request of LenderAgent, (l) true, correct and complete copies of all Material Government Contracts (including current and ongoing modifications) which support any Loan Party’s receivables. (m) any other information reasonably requested relating to the financial condition of Borrower or its Subsidiaries. as soon as practicable and in any Obligated Partyevent (i) no later than 10 Business Days after receipt, by the Borrower’s Board of Directors and the Borrower’s ESOP Committee of the annual valuation report prepared for the ESOP for each fiscal year, (n) true, correct and complete copies of such semi-annual valuation report prepared for the ESOP for each fiscal year. Borrower shall alert Agent within 10 days of completion of each valuation, and Borrower agrees to make such valuations available at Borrower’s office for Agent to review such valuations. on the date that is the second anniversary of the delivery of the most recent repurchase liability study of the Borrower prepared for the ESOP (o) true, correct and complete copies of a repurchase liability study of Borrower prepared for the ESOP as of a recent date, in each case in form and substance reasonably acceptable to the Agent.
Appears in 1 contract
Financial Statements, Reports, Certificates. Deliver to Agent, with copies to each Lender:
(a) as soon as available, but in any event by no later than within 30 days (45 days in the earlier case of (ya month that is the end of one of the first 3 fiscal quarters in a fiscal year) five (5) days after the date on which Parent files its Form 10-Q with the SEC and (z) forty five (45) days following the last day end of each month during each of Parent’s first three (3) fiscal quarters of each fiscal yearyears,
(i) a company prepared consolidated balance sheet sheet, income statement, and income statement of cash flow covering the operations of Parent and its direct and indirect Subsidiaries during such period and the year-to-date period ending thereon, with comparisons against the balance sheet for the immediately preceding fiscal year and income statement for the corresponding period during the immediately preceding fiscal year, (it being agreed that the furnishing of Parent’s quarterly report on Form 10-Q for each such fiscal quarter, as filed with the SEC, will satisfy Parent’s and Borrower’s obligations under this Section 6.2(a)(i) with respect to its Subsidiaries’ operations during such fiscal quarter)period,
(ii) a Compliance Certificate certificate signed by the chief financial officer and/or chief accounting officer of Borrower certifying Parent to the effect that:
(1A) the financial statements delivered hereunder have been prepared in accordance with GAAP (except for the lack of footnotes and being subject to year-end audit adjustments) and fairly present in all material respects the financial condition of Parent and its direct Subsidiaries,
(B) the representations and indirect Subsidiaries, warranties of Companies contained in this Agreement and demonstrating the compliance by Parent other Loan Documents are true and correct in all material respects on a consolidated basis at and as of the end date of such quarter with all financial covenants required certificate, as though made on and as of such date (except to be tested hereunderthe extent that such representations and warranties relate solely to an earlier date), and
(2C) there does not exist any condition or event that constitutes a Default or Event of Default (or, to the extent of any non-compliance, describing such non-compliance as to which he or she may have knowledge and what action the applicable Obligated Party has Companies have taken, is are taking, or proposes propose to take with respect thereto),, and
(iii) for each month that is the date on which a financial covenant in Section 7.20 is to be tested, a Compliance Certificate demonstrating, in reasonable detail, compliance at the end of such period with the applicable financial covenants contained in Section 7.20, and
(b) as soon as available, but in any event by no later than the earlier of (y) five (5) within 90 days after the date on which Parent files its Form 10-K with the SEC and (z) ninety (90) days following the last day end of each of Parent’s fiscal years, consolidated ,
(i) financial statements of Parent and its direct and indirect Subsidiaries for each such fiscal year, audited by independent certified public accountants reasonably acceptable to Lender in Lender’s Permitted Discretion Agent and certified, without any qualifications (including any (A) “going concern” or like qualification or exception, or (B) qualification or exception as to the scope of such auditqualifications, by such accountants to have been prepared in accordance with GAAP) GAAP (it being agreed that the furnishing of Parent’s annual report on Form 10-K for each such fiscal year as filed with the SEC, will satisfy Parent’s and Borrower’s obligation under this Section 6.2(b) with respect to such fiscal year except with respect to the requirement that such audited financial statements be reported on without to include a “going concern” or like qualification or exceptionbalance sheet, or qualification arising out income statement, and statement of the scope of the auditcash flow and, if prepared, such accountants’ letter to management), together with ,
(ii) a certificate of such accountants addressed to Lender Agent and the Lenders stating that such accountants do not have knowledge of the existence of any Default or Event of Default. Such annual financial statements shall be accompanied by a Compliance Certificate signed by the chief financial officer and/or chief accounting officer of Borrower certifying that:
(1) Parent is in compliance on a consolidated basis at the end of such fiscal year with all financial covenants required to be tested hereunder,
(2) the financial statements delivered hereunder have been prepared in accordance with GAAP and fairly present in all material respects the financial condition of Parent and its direct and indirect Subsidiaries, and
(3) there does not exist any condition or event that constitutes a Default or Event of Default (or, to the extent of any non-compliance, describing such non-compliance as to which he or she may have knowledge and what action the applicable Obligated Party has taken, is taking, or proposes to take with respect thereto)under Section 7.20,
(c) [Intentionally Deleted],
(d) as soon as available, but in any event by no later than within 30 days prior to the earlier of (y) five (5) days after the date on which Parent files its Form 10-K with the SEC and (z) ninety (90) days following the last day start of each of Parent’s fiscal years, ,
(i) copies of Projections for such fiscal year Companies’ Projections, in form and substance (includingincluding as to scope and underlying assumptions) satisfactory to Agent, in its sole discretion, for the avoidance of doubtforthcoming three years, year by year, and for the 2016 Projections to be delivered on or before March 30forthcoming fiscal year, 2016)month by month, all as certified by the chief financial officer of Parent as being such officer’s good faith best estimate of the financial performance of Parent and its direct and indirect Subsidiaries during the period covered thereby,
(d) if and when filed by any Company,
(i) 10-Q quarterly reports, Form 10-K annual reports, and Form 8-K current reports,
(ii) any other filings made by any Company with the SEC,
(iii) copies of Companies’ federal income tax returns, and any amendments thereto, filed with the Internal Revenue Service, and
(iv) any other information that is provided by Parent to its shareholders generally,
(e) promptlyif and when filed by any Company and as requested by Agent, but satisfactory evidence of payment of applicable excise taxes in each jurisdictions in which (i) any event within five Company conducts business or is required to pay any such excise tax, (5ii) Business Days after Borrower where any Company’s failure to pay any such applicable excise tax would result in a Lien on the properties or assets of any Company, or (iii) where any Company’s failure to pay any such applicable excise tax reasonably could be expected to result in a Material Adverse Change,
(f) as soon as a Company has knowledge of any event or condition that constitutes a Default or an Event of Default, notice thereof and a statement of the curative action that the applicable Obligated Party proposes Companies propose to take with respect thereto,
(f) promptly after the commencement thereof, but in any event within five (5) Business Days after the service of process with respect thereto on any Obligated Party, notice of all actions, suits, or proceedings brought by or against such Obligated Party before any Governmental Authority which, if determined adversely to such Obligated Party, could reasonably be expected to result in a Material Adverse Change,
(g) promptly, but in any event within ten (10) Business Days after Borrower has knowledge thereof, notify Lender of any material negative changes to Borrower’s customer renewal rates, and
(hg) upon the request of LenderAgent, any other information report reasonably requested relating to the financial condition of Companies. In addition to the financial statements referred to above, Companies agree to deliver financial statements prepared on both a consolidated and consolidating basis and that no Company, or any Obligated PartySubsidiary of a Company, will have a fiscal year different from that of Parent. Companies agree that their independent certified public accountants are authorized to communicate with Agent and to release to Agent whatever financial information concerning Companies that Agent reasonably may request. Each Company waives the right to assert a confidential relationship, if any, it may have with any accounting firm or service bureau in connection with any information requested by Agent pursuant to or in accordance with this Agreement, and agree that Agent may contact directly any such accounting firm or service bureau in order to obtain such information.
Appears in 1 contract
Financial Statements, Reports, Certificates. Deliver to Agent, with copies to each Lender:
(a) as soon as available, but in any event by no later than the earlier of within thirty (y) five (530) days after the date on which Parent files its Form 10-Q with the SEC and (z) forty five (45) days following the last day end of each of Parent’s the first three (3) two fiscal quarters months of each fiscal yearquarter of Borrower,
(i) a an unaudited consolidated balance sheet and sheet, income statement and statement of cash flow (if applicable) covering the operations of Parent such Person’s and its direct and indirect Subsidiaries Subsidiaries’ operations during such period and the year-to-date period ending thereon, with comparisons against in each case setting forth in comparative form the balance sheet for the immediately preceding fiscal year and income statement figures for the corresponding period during periods in the immediately preceding fiscal prior year, (it being agreed that the furnishing of Parent’s quarterly report on Form 10-Q for each such fiscal quarterin form acceptable to Agent, as filed with the SEC, will satisfy Parent’s and Borrower’s obligations under this Section 6.2(a)(i) with respect to such fiscal quarter),and
(ii) a Compliance Certificate signed by the chief financial officer and/or chief accounting officer of Borrower certifying that:
demonstrating in reasonable detail (1A) the financial statements delivered hereunder have been prepared in accordance with GAAP (except for the lack of footnotes and being subject to year-end audit adjustments) and fairly present in all material respects the financial condition of Parent and its direct and indirect Subsidiaries, and demonstrating the Borrower’s compliance by Parent on a consolidated basis at the end of such quarter period with all financial covenants required to be tested hereunder, and
(2) there does not exist any condition or event that constitutes a Default or Event of Default (or, to the extent of any non-compliance, describing such non-compliance as to which he or she may have knowledge and what action the applicable Obligated Party has takenfinancial and portfolio covenants contained in Sections 7.16 and 7.17 that are measured on a monthly basis, is taking, or proposes to take and (B) HTGC’s compliance at the end of such period with respect theretothe minimum portfolio funding liquidity covenant contained in Sections 7.16(f),;
(b) as soon as available, but in any event by no later than the earlier of (y) within forty-five (545) days after the end of each fiscal quarter of Borrower and HTGC,
(i) an unaudited consolidated and consolidating balance sheet, income statement and statement of cash flow covering HTGC’s and its Subsidiaries’ operations during such period and the year-to-date period ending thereon, in each case setting forth in comparative form the figures for the corresponding periods in the prior year, in form acceptable to Agent; provided, that the availability via XXXXX, or any successor system of the SEC, of the financial statements in HTGC’s applicable quarterly report on which Parent files its Form 10-K Q shall be deemed delivery to Agent of the financial statements required to be delivered pursuant to this clause (b)(i), on the date such documents are made so available, and
(ii) a Compliance Certificate demonstrating in reasonable detail Borrower’s and HTGC’s compliance at the end of such period with the SEC applicable financial and portfolio covenants contained in Sections 7.16 and 7.17 that are measured on a quarterly basis;
(zc) as soon as available, but in any event within ninety (90) days following after the last day end of each fiscal year of Parent’s fiscal years, Borrower and HTGC,
(i) consolidated financial statements of Parent HTGC and its direct and indirect Subsidiaries for each such fiscal year, audited by PricewaterhouseCoopers LLP or other independent certified public accountants reasonably acceptable to Lender in Lender’s Permitted Discretion Agent and certified, without any qualifications (including any (A) “going concern” or like qualification or exception, or (B) qualification or exception as to the scope of such audit, or (C) qualification which relates to the treatment or classification of any item and which, as a condition to the removal of such qualification, would require an adjustment to such item, the effect of which would be to cause any noncompliance with the provisions of Sections 7.16 or 7.17), by such accountants to have been prepared in accordance with GAAP) GAAP (it being agreed such audited financial statements to include a balance sheet, income statement, and statement of cash flow and, if prepared, such accountants’ letter to management); provided, that the furnishing availability via XXXXX, or any successor system of Parentthe SEC, of the financial statements in HTGC’s annual report on Form 10-K for each such fiscal year as filed with shall be deemed delivery to Agent of the SEC, will satisfy Parent’s and Borrower’s obligation under this Section 6.2(b) with respect to such fiscal year except with respect to the requirement that such financial statements required to be reported on without a “going concern” or like qualification or exception, or qualification arising out of the scope of the auditdelivered pursuant to this clause (c)(i), together with a certificate of on the date such accountants addressed to Lender stating that such accountants do not have knowledge of the existence of any Default or Event of Default. Such annual financial statements shall be accompanied by documents are made so available, and
(ii) a Compliance Certificate signed by the chief financial officer and/or chief accounting officer of Borrower certifying that:
(1) Parent is demonstrating in reasonable detail Borrower’s and HTGC’s compliance on a consolidated basis at the end of such fiscal year period with all financial covenants required to be tested hereunder,
(2) the financial statements delivered hereunder have been prepared in accordance with GAAP and fairly present in all material respects the financial condition of Parent and its direct and indirect Subsidiaries, and
(3) there does not exist any condition or event that constitutes a Default or Event of Default (or, to the extent of any non-compliance, describing such non-compliance as to which he or she may have knowledge and what action the applicable Obligated Party has taken, is taking, or proposes to take with respect thereto),
(c) [Intentionally Deleted],financial and portfolio covenants contained in Sections 7.16 and 7.17;
(d) as soon as available, but in any event by no later not less than the earlier of thirty (y) five (530) days after prior to the date on which Parent files its Form 10-K with the SEC and (z) ninety (90) days following the last day commencement of each fiscal year of Parent’s fiscal yearsBorrower and HTGC, copies of Projections for such fiscal year (including, Borrower and HTGC that have been provided to the Board of Directors of Borrower or HTGC for the avoidance of doubtforthcoming fiscal year, the 2016 Projections to be delivered on or before March 30, 2016), all as certified by the chief financial officer of Parent Borrower and the chief financial officer of HTGC, as applicable, as being such officer’s good faith best estimate of the financial performance of Parent Borrower and its direct and indirect Subsidiaries HTGC during the period covered thereby,
(e) if requested by Agent, and if and when filed by Borrower or HTGC, copies of Borrower’s or HTGC’s federal income tax returns, and any amendments thereto, filed with the Internal Revenue Service,
(f) promptly notify Agent of the following regarding each Note Receivable and Note Receivable Collateral which secures such Note Receivable:
(i) the occurrence of any event which may materially impair the prospect of payment of such Note Receivable;
(ii) the sending by Servicer or Borrower of any notice of default, recordation by Servicer or Borrower of any notice of foreclosure and the date of any scheduled foreclosure sale thereon, or filing by Servicer or Borrower of any lawsuit (including case number and court) on a Note Receivable or related Note Receivable Collateral;
(iii) the consummation of any foreclosure sale or any deed or xxxx of sale in lieu of foreclosure, retention of collateral in satisfaction of debt or similar transaction, and deliver to Agent true and complete copies of all documentation executed in respect thereof (in the case of notices, postings and the like, and in the case of deeds, bills of sale or retention of collateral transactions, all documents related to consummation of such transaction or transfer of such property); and
(iv) the receipt by Servicer or Borrower of a notice by any Person of (x) a default with respect to any agreement evidencing or governing a Lien on any Note Receivable Collateral or (y) any foreclosure sale with respect to any Note Receivable Collateral;
(g) promptly, but in any event within five (5) Business Days days after Borrower has knowledge of any event or condition that constitutes a Default or an Event of Default, notice thereof and a statement of the curative action that the applicable Obligated Party Borrower proposes to take with respect thereto,
(fh) promptly after the commencement thereof, but in any event within five (5) Business Days days after the service of process with respect thereto on HTGC, Borrower or any Obligated Partyof their respective Subsidiaries, notice of all actions, suits, or proceedings brought by or against such Obligated Party HTGC, Borrower or any of their respective Subsidiaries before any Governmental Authority which, if determined adversely to HTGC, Borrower or such Obligated PartySubsidiary, reasonably could reasonably be expected to result in a Material Adverse Change,
(gi) (A) promptly, notice that a new proposed Split-Funded Note Receivable will be initially included in the calculation of availability for extensions of credit under any credit facility for an Affiliate of Borrower or HTGC (in each case before the application of any concentration limits under the loan documents for such credit facility), and (B) promptly, but in any event within ten (10) 3 Business Days after an Executive Officer of Borrower or HTGC has knowledge thereof, notify Lender notice that a Split-Funded Note Receivable or newly-proposed Split-Funded Note Receivable has been or will be excluded from the calculation of availability for extensions of credit under any credit facility for an Affiliate of Borrower or HTGC (in each case before the application of any material negative changes concentration limits under the loan documents for such credit facility); provided, that with respect to Borrower’s customer renewal ratesany proposed Split-Funded Note Receivable that will be excluded from the calculation of availability for extensions of credit under any credit facility for an Affiliate of Borrower or HTGC (subject in each case to application of concentration limits under the loan documents for such credit facility) before actually initially being included thereunder, the notice to be provided by this clause (B) will be delivered to Agent prior to the making of any extension of credit with respect thereto under this Agreement, and
(hi) upon the request of LenderAgent, any other information reasonably requested relating to the financial condition of HTGC, Borrower or any Obligated Partyof their respective Subsidiaries. In addition, Borrower agrees to deliver financial statements prepared on both a consolidated and consolidating basis to the extent required by this Section 6.3, and agrees that Borrower will not have fiscal year different from that of HTGC and that no Subsidiary of Borrower will have a fiscal year different from that of Borrower. Borrower also agrees to cooperate with Agent to allow Agent to (A) audit Borrower or its Subsidiaries, and HTGC, and (B) consult with its and each such other Person’s independent certified public accountants if Agent reasonably requests the right to do so. In such connection, Borrower authorizes, and will cooperate with Agent to cause its Subsidiaries and HTGC to authorize, its independent certified public accountants to communicate with Agent and to release to Agent whatever financial information concerning such Person as Agent reasonably may request.
Appears in 1 contract
Samples: Loan and Security Agreement (Hercules Capital, Inc.)
Financial Statements, Reports, Certificates. Deliver to Agent, with copies to each Lender:
(a) as soon as available, but in any event by no later than the earlier of (y) five (5) within 45 days after the date on which end of each fiscal quarter of Parent files its Form 10-Q with the SEC and (z) forty five (45) days following the last day of during each of Parent’s first three (3) 's fiscal quarters of each fiscal yearyears,
(i) a company prepared consolidating and consolidated balance sheet and income statement and a consolidated statement of cash flow, in each case covering the operations of Parent and its direct and indirect Subsidiaries during such period and the year-to-date period ending thereon, with comparisons against the balance sheet for the immediately preceding fiscal year and income statement for the corresponding period during the immediately preceding fiscal year, (it being agreed that the furnishing of Parent’s quarterly report on Form 10-Q for each such fiscal quarter, as filed with the SEC, will satisfy Parent’s and Borrower’s obligations under this Section 6.2(a)(i) with respect to such fiscal quarter)period,
(ii) a Compliance Certificate certificate signed by the chief financial officer and/or chief accounting officer of Borrower certifying Parent to the effect that:
(1) A. the financial statements delivered hereunder have been prepared in accordance with GAAP (except for the lack of footnotes and being subject to year-end audit adjustments) and fairly present in all material respects the financial condition of Parent and its direct Subsidiaries,
B. the financial statements delivered hereunder are true and indirect Subsidiaries, accurate in all material respects and demonstrating are not incomplete by omitting to state any fact necessary to make such information (taken as a whole) not misleading in any material respect at such time in light of the compliance by Parent circumstances under which such information was provided,
C. the representations and warranties of Borrowers contained in this Agreement and the other Loan Documents are true and correct in all material respects on a consolidated basis at and as of the end date of such quarter with all financial covenants required certificate, as though made on and as of such date (except to be tested hereunderthe extent that such representations and warranties expressly relate solely to an earlier date), and
(2) D. there does not exist any condition or event that constitutes a Default or Event of Default (or, to the extent of any non-compliance, describing such non-compliance as to which he or she may have knowledge and what action the applicable Obligated Party has Borrowers have taken, is are taking, or proposes propose to take with respect thereto), and
(iii) for each fiscal quarter of Borrowers, a Compliance Certificate demonstrating, in reasonable detail, compliance at the end of such period with the applicable financial covenants contained in Section 7.19,
(b) as soon as available, but in any event by no later than the earlier of (y) five (5) within 90 days after the date on which Parent files its Form 10-K with the SEC and (z) ninety (90) days following the last day end of each of Parent’s 's fiscal years, consolidated financial statements of Parent and its direct and indirect Subsidiaries for each such fiscal year, audited by independent certified public accountants reasonably acceptable to Lender in Lender’s Permitted Discretion Agent and certified, without any qualifications (including including, without limitation, (i) any (A) “"going concern” " or like qualification or exception, or (Bii) any qualification or exception as to the scope of such audit), by such accountants to have been prepared in accordance with GAAP) GAAP (it being agreed that the furnishing of Parent’s annual report on Form 10-K for each such fiscal year as filed with the SEC, will satisfy Parent’s and Borrower’s obligation under this Section 6.2(b) with respect to such fiscal year except with respect to the requirement that such audited financial statements be reported on without to include a “going concern” or like qualification or exceptionbalance sheet, or qualification arising out income statement, and statement of the scope of the audit)cash flow and, together with a certificate of if prepared, such accountants addressed accountants' letter to Lender stating that such accountants do not have knowledge of the existence of any Default or Event of Default. Such annual financial statements shall be accompanied by a Compliance Certificate signed by the chief financial officer and/or chief accounting officer of Borrower certifying that:
(1) Parent is in compliance on a consolidated basis at the end of such fiscal year with all financial covenants required to be tested hereunder,
(2) the financial statements delivered hereunder have been prepared in accordance with GAAP and fairly present in all material respects the financial condition of Parent and its direct and indirect Subsidiaries, and
(3) there does not exist any condition or event that constitutes a Default or Event of Default (or, to the extent of any non-compliance, describing such non-compliance as to which he or she may have knowledge and what action the applicable Obligated Party has taken, is taking, or proposes to take with respect theretomanagement),
(c) [Intentionally Deleted]if and when filed by any Borrower,
(i) 10-Q or 10-QSB quarterly reports, Form 10-K or 10-KSB annual reports, and Form 8-K or 8-KSB current reports,
(ii) any other filings made by any Borrower with the SEC,
(iii) copies of Borrowers' federal income tax returns, and any amendments thereto, filed with the Internal Revenue Service, and
(iv) any other information that is provided by Parent to its shareholders generally,
(d) as soon as available, but in any event by no later than the earlier of (y) five (5) days promptly after the date on which Parent files its Form 10-K with the SEC and (z) ninety (90) days following the last day of each of Parent’s fiscal years, copies of Projections for such fiscal year (including, for the avoidance of doubt, the 2016 Projections to be delivered on or before March 30, 2016), all as certified by the chief financial officer of Parent as being such officer’s good faith best estimate of the financial performance of Parent and its direct and indirect Subsidiaries during the period covered thereby,
(e) promptlycommencement thereof, but in any event within five 5 days after the service of process with respect thereto on any Borrower, notice of all actions, suits or proceedings brought by or against any Borrower before any Governmental Authority which, if determined adversely to such Borrower, could reasonably be expected to cause a Material Adverse Change,
(5e) Business Days after as soon as a Borrower has knowledge of any event or condition that constitutes a Default or an Event of Default, notice thereof and a statement of the curative action that the applicable Obligated Party proposes Borrowers propose to take with respect thereto,
(f) promptly after the commencement thereof, but in any event within five (5) Business Days after the service of process with respect thereto on any Obligated Party, notice of all actions, suits, or proceedings brought by or against such Obligated Party before any Governmental Authority which, if determined adversely to such Obligated Party, could reasonably be expected to result in a Material Adverse Change,
(g) promptly, but in any event within ten (10) Business Days after Borrower has knowledge thereof, notify Lender of any material negative changes to Borrower’s customer renewal rates, and
(hf) upon the request of LenderAgent, any other information report reasonably requested relating to the financial condition of any Obligated PartyBorrower.
Appears in 1 contract
Financial Statements, Reports, Certificates. Deliver The Company shall deliver to Lenderthe Trustee:
(a) as soon as available, but in any event by no later than the earlier of (y) five (5) within 45 days after the date on which Parent files its Form 10-Q with the SEC and (z) forty five (45) days following the last day end of each month during each of Parent’s first three (3) the Company's fiscal quarters of each fiscal yearyears,
(i) a consolidated Company prepared Consolidated balance sheet sheet, income statement, and income statement of cash flow covering the operations of Parent Company's and its direct and indirect Subsidiaries Subsidiaries' operations during such period month and the year-to-date period ending thereon, with comparisons against the balance sheet for the immediately preceding fiscal year to date, together with a comparison of such financial statements to (A) Company's Projections (as defined in the New Credit Agreement) delivered prior to the Issue Date or pursuant to Section 4.04(c) and (B) the Consolidated balance sheet, income statement, and statement of cash flow covering Company's and its Subsidiaries' operations for the such corresponding period during in the immediately preceding fiscal year, (it being agreed that the furnishing of Parent’s quarterly report on Form 10-Q for each such fiscal quarter, as filed with the SEC, will satisfy Parent’s and Borrower’s obligations under this Section 6.2(a)(i) with respect to such fiscal quarter),
(ii) a Compliance Certificate company prepared schedule detailing Company's Consolidated EBITDA as of the end of each month for the 13-month period then ended,
(iii) a certificate signed by the a chief financial officer and/or chief or a principal accounting officer of Borrower certifying the Company to the effect that:
(1A) the financial statements and other financial information delivered hereunder have been prepared in accordance with GAAP (except for the lack of footnotes and being subject to year-end audit adjustments) and fairly present in all material respects the financial condition of Parent the Company and its direct Subsidiaries,
(B) the representations and indirect Subsidiaries, warranties of Borrowers contained in the New Credit Agreement and demonstrating the compliance by Parent other Loan Documents (as defined in the New Credit Agreement) are true and correct in all material respects on a consolidated basis at and as of the end date of such quarter with all financial covenants required certificate, as though made on and as of such date (except to be tested hereunderthe extent that such representations and warranties relate solely to an earlier date), and
(2C) there does not exist any condition or event that constitutes a Default or Event of Default (or, to the extent of any non-compliance, describing such non-compliance as to which he or she may have knowledge and what action the applicable Obligated Party has Note Parties have taken, is are taking, or proposes propose to take with respect thereto); and
(iv) for each month that is the date on which a financial covenant in Section 5.19 is to be tested, a Compliance Certificate (as defined in the New Credit Agreement) demonstrating, in reasonable detail, compliance at the end of such period with the applicable financial covenants contained in Section 5.19, together with a reconciliation of the company prepared Consolidated balance sheet, income statement, and statement of cash flow for Company and its Subsidiaries for the 3-month period then ended to the audited financial statements contained in the 4 most recent Form 10-Q quarterly reports and the most recent Form 10-K annual report filed by Company and its Subsidiaries,
(b) as soon as available, but in any event by no later than the earlier of (y) five (5) within 120 days after the date on which Parent files its Form 10-K with the SEC and (z) ninety (90) days following the last day end of each of Parent’s Company's fiscal years, consolidated ,
(i) financial statements of Parent the Company and its direct and indirect Subsidiaries for each such fiscal year, audited by independent certified public accountants reasonably acceptable to Lender in Lender’s Permitted Discretion Trustee and certified, without any qualifications (including any (A) “going concern” or like qualification or exception, or (B) qualification or exception as to the scope of such auditqualifications, by such accountants to have been prepared in accordance with GAAP) GAAP (it being agreed that the furnishing of Parent’s annual report on Form 10-K for each such fiscal year as filed with the SEC, will satisfy Parent’s and Borrower’s obligation under this Section 6.2(b) with respect to such fiscal year except with respect to the requirement that such audited financial statements be reported on without to include a “going concern” or like qualification or exceptionbalance sheet, or qualification arising out income statement, and statement of the scope of the auditcash flow and, if prepared, such accountants' letter to management), together with and
(ii) a certificate of such accountants addressed to Lender the Trustee stating that such accountants do not have knowledge of the existence of any Default or Event of Default. Such annual financial statements shall be accompanied by a Compliance Certificate signed by the chief financial officer and/or chief accounting officer of Borrower certifying that:
(1) Parent is in compliance on a consolidated basis at the end of such fiscal year with all financial covenants required to be tested hereunder,
(2) the financial statements delivered hereunder have been prepared in accordance with GAAP and fairly present in all material respects the financial condition of Parent and its direct and indirect Subsidiaries, and
(3) there does not exist any condition or event that constitutes a Default or Event of Default (or, to the extent of any non-compliance, describing such non-compliance as to which he or she may have knowledge and what action the applicable Obligated Party has taken, is taking, or proposes to take with respect thereto)under Section 6.01,
(c) [Intentionally Deleted],
(d) as soon as available, but in any event by no later than within 30 days prior to the earlier of (y) five (5) days after the date on which Parent files its Form 10-K with the SEC and (z) ninety (90) days following the last day start of each of Parent’s Company's fiscal years, copies of Company's Projections for such fiscal year (includingas defined in the New Credit Agreement), in form and substance (including as to scope and underlying assumptions) reasonably satisfactory to the Bank Lenders, in their Permitted Discretion (as defined in the New Credit Agreement), for the avoidance of doubtforthcoming 3 years, year by year, and for the 2016 Projections to be delivered on or before March 30forthcoming fiscal year, 2016)month by month, all as certified by the chief financial officer of Parent Company as being such officer’s 's good faith best estimate of the financial performance of Parent Company and its direct and indirect Subsidiaries on a Consolidated basis during the period covered thereby,
(d) if, when and to the extent filed by any Note Party with the SEC or any other Governmental Authority,
(i) Form 10-Q quarterly reports, Form 10-K annual reports, and Form 8-K current reports,
(ii) any other filings made by any Note Party with the SEC,
(iii) copies of Borrowers' federal income tax returns, and any amendments thereto, filed with the IRS, and
(iv) any other information that is provided by the Company to its shareholders generally,
(e) promptlyif and when filed by any Note Party and if requested by Trustee, but reasonably satisfactory evidence of payment of applicable excise and property taxes in each jurisdictions in which (i) any event within five Note Party conducts business, owns real property or is required to pay any such excise or real property tax, (5ii) Business Days where any Note Party's failure to pay any such applicable excise or property tax would result in a Lien on the properties or assets of any Note Party, or (iii) where any Note Party's failure to pay any such applicable excise tax reasonably could be expected to result in a Material Adverse Change,
(f) promptly after the commencement thereof, notice of all actions, suits or proceedings brought by or against any Note Party before any Governmental Authority that, if determined adversely to such Note Party, could reasonably be expected to result in a Material Adverse Change,
(g) as soon as a Borrower has knowledge of any event or condition that constitutes a Default or an Event of Default, notice thereof and a statement of the curative action that Borrowers propose to take with respect thereto and annually a statement regarding compliance with this Agreement,
(h) as soon as a Borrower has actual knowledge of any event or condition that constitutes a default or an event of default under the applicable Obligated New AMERCO Note Documents, the New Credit Agreement or the Loan Documents (as defined in the New Credit Agreement), or any Funded Debt (including, without limitation, any TRAC Lease Transaction, the PMCC Like Kind Exchange Lease or the PMCC Leveraged Lease) or any notice, call, default of event of default under any Support Party proposes Agreement, notice thereof and a statement of the curative action that Borrowers or Guarantors, as applicable, propose to take with respect thereto,
(fi) promptly after the commencement thereofsuch information as may, but in from time to time, be necessary to comply with any event within five (5) Business Days after the service applicable provision of process with respect thereto on any Obligated Party, notice of all actions, suits, or proceedings brought by or against such Obligated Party before any Governmental Authority which, if determined adversely to such Obligated Party, could reasonably be expected to result in a Material Adverse Change,
(g) promptly, but in any event within ten (10) Business Days after Borrower has knowledge thereof, notify Lender of any material negative changes to Borrower’s customer renewal ratesTIA Section 314(a), and
(hj) upon if requested by the request of LenderTrustee, any other such information reasonably requested provided to the Bank Lenders' Agent relating to the financial condition Collateral pursuant to Section 6.2 of the New Credit Agreement. To satisfy the delivery requirements, the Company and the Guarantors, if applicable, may file or post electronically such information required to be delivered to the Trustee and the Holders of the Notes, if applicable, pursuant to this Section 4.04 and Section 4.05 in a manner and method mutually acceptable to the Company and provide for the Trustee's access to such information. Delivery of such reports, information and documents to the Trustee is for informational purposes only and the Trustee's receipt of such shall not constitute constructive notice of any Obligated Partyinformation contained therein or determinable therefrom, including compliance with any of the Company's covenants hereunder. The Trustee shall not disclose any material, non-public information (all information received pursuant to this Section 4.04 or pursuant to other provisions of this Agreement and identified as such in writing by the Company on the face thereof, except for information received pursuant to Section 4.04(a)(iii), Section 4.04(b), Section 4.04(d), Section 4.04(g) and Section 4.04(i)) received from any Note Party to a Holder of the Notes unless such Holder enters into a standstill and confidentiality agreement in a form and substance satisfactory to the Company and the Trustee, and which shall provide for indemnification by the recipients of such information of the Trustee against any misuse or improper disclosure of such information.
Appears in 1 contract
Samples: Indenture (Amerco /Nv/)
Financial Statements, Reports, Certificates. Deliver to Lender:
(a) as soon as available, but in any event by no later than within 30 days (45 days in the earlier case of (y) five (5) days after a month that is the date on which Parent files its Form 10-Q with end of one of the SEC and (z) forty five (45) days following the last day of each of Parent’s first three (3) fiscal quarters in a fiscal year) after the end of each month during each of Borrower’s fiscal yearyears,
(i) a company prepared consolidated balance sheet sheet, income statement, and income statement of cash flow covering the operations of Parent Borrower’s and its direct and indirect Subsidiaries Subsidiaries’ operations during such period and the year-to-date period ending thereon, with comparisons against the balance sheet for the immediately preceding fiscal year and income statement for the corresponding period during the immediately preceding fiscal year, (it being agreed that the furnishing of Parent’s quarterly report on Form 10-Q for each such fiscal quarter, as filed with the SEC, will satisfy Parent’s and Borrower’s obligations under this Section 6.2(a)(i) with respect to such fiscal quarter)period,
(ii) a Compliance Certificate certificate signed by the chief financial officer and/or chief accounting officer of Borrower certifying to the effect that:
(1A) the financial statements delivered hereunder have been prepared in accordance with GAAP (except for the lack of footnotes and being subject to year-end audit adjustments) and fairly present in all material respects the financial condition of Parent Borrower and its direct Subsidiaries,
(B) the representations and indirect Subsidiaries, warranties of Borrower contained in this Agreement and demonstrating the compliance by Parent other Loan Documents are true and correct in all material respects on a consolidated basis at and as of the end date of such quarter with all financial covenants required certificate, as though made on and as of such date (except to be tested hereunderthe extent that such representations and warranties relate solely to an earlier date), and
(2C) there does not exist any condition or event that constitutes a Default or Event of Default (or, to the extent of any non-compliance, describing such non-compliance as to which he or she may have knowledge and what action the applicable Obligated Party Borrower has taken, is taking, or proposes to take with respect thereto),, and
(iii) for each month that is the date on which a financial covenant in Section 7.20 is to be tested, a Compliance Certificate demonstrating, in reasonable detail, compliance at the end of such period with the applicable financial covenants contained in Section 7.20, and
(b) as soon as available, but in any event by no later than the earlier of (y) five (5) within 90 days after the date on which Parent files its Form 10-K with the SEC and (z) ninety (90) days following the last day end of each of ParentBorrower’s fiscal years, consolidated ,
(i) financial statements of Parent Borrower and its direct and indirect Subsidiaries for each such fiscal year, audited by independent certified public accountants reasonably acceptable to Lender in Lender’s Permitted Discretion and certified, without any qualifications (including any (A) “going concern” or like qualification or exception, or (B) qualification or exception as to the scope of such auditqualifications, by such accountants to have been prepared in accordance with GAAP) GAAP (it being agreed that the furnishing of Parent’s annual report on Form 10-K for each such fiscal year as filed with the SEC, will satisfy Parent’s and Borrower’s obligation under this Section 6.2(b) with respect to such fiscal year except with respect to the requirement that such audited financial statements be reported on without to include a “going concern” or like qualification or exceptionbalance sheet, or qualification arising out income statement, and statement of the scope of the auditcash flow and, if prepared, such accountants’ letter to management), together with ,
(ii) a certificate of such accountants addressed to Lender stating that such accountants do not have knowledge of the existence of any Default or Event of Default. Such annual financial statements shall be accompanied by a Compliance Certificate signed by the chief financial officer and/or chief accounting officer of Borrower certifying that:
(1) Parent is in compliance on a consolidated basis at the end of such fiscal year with all financial covenants required to be tested hereunder,
(2) the financial statements delivered hereunder have been prepared in accordance with GAAP and fairly present in all material respects the financial condition of Parent and its direct and indirect Subsidiaries, and
(3) there does not exist any condition or event that constitutes a Default or Event of Default (or, to the extent of any non-compliance, describing such non-compliance as to which he or she may have knowledge and what action the applicable Obligated Party has taken, is taking, or proposes to take with respect thereto)under Section 7.20,
(c) [Intentionally Deleted],
(d) as soon as available, but in any event by no later than within 30 days prior to the earlier of (y) five (5) days after the date on which Parent files its Form 10-K with the SEC and (z) ninety (90) days following the last day start of each of ParentBorrower’s fiscal years, ,
(i) copies of Projections for such fiscal year Borrower’s Projections, in form and substance (includingincluding as to scope and underlying assumptions) satisfactory to Lender, in its sole discretion, for the avoidance of doubtforthcoming three (3) years, year by year, and for the 2016 Projections to be delivered on or before March 30forthcoming fiscal year, 2016)month by month, all as certified by the chief financial officer of Parent Borrower as being such officer’s good faith best estimate of the financial performance of Parent and its direct and indirect Subsidiaries Borrower during the period covered thereby,
(d) if and when filed by Borrower,
(i) Form 10-Q quarterly reports, Form 10-K annual reports, and Form 8-K current reports,
(ii) any other filings made by Borrower with the SEC,
(iii) copies of Borrower’s federal income tax returns, and any amendments thereto, filed with the Internal Revenue Service, and
(iv) any other information that is provided by Borrower to its shareholders generally,
(e) promptlyif and when filed by Borrower and as requested by Lender, but satisfactory evidence of payment of applicable excise taxes in each jurisdictions in which (i) Borrower conducts business or is required to pay any event such excise tax, (ii) where Borrower’s failure to pay any such applicable excise tax would result in a Lien on the properties or assets of Borrower, or (iii) where Borrower’s failure to pay any such applicable excise tax reasonably could be expected to result in a Material Adverse Change,
(f) within five 5 days after the end of each month, evidence satisfactory to Lender that all amounts owed by Borrower under the PNC Lease for the immediately preceding month shall have been paid in full by Borrower,
(5g) Business Days after as soon as Borrower has knowledge of any event or condition that constitutes a Default or an Event of Default, notice thereof and a statement of the curative action that the applicable Obligated Party Borrower proposes to take with respect thereto,
(f) promptly after the commencement thereof, but in any event within five (5) Business Days after the service of process with respect thereto on any Obligated Party, notice of all actions, suits, or proceedings brought by or against such Obligated Party before any Governmental Authority which, if determined adversely to such Obligated Party, could reasonably be expected to result in a Material Adverse Change,
(g) promptly, but in any event within ten (10) Business Days after Borrower has knowledge thereof, notify Lender of any material negative changes to Borrower’s customer renewal rates, and
(h) upon the request of Lender, any other information report reasonably requested relating to the financial condition of Borrower. In addition to the financial statements referred to above, Borrower agrees to deliver financial statements prepared on both a consolidated and consolidating basis and agrees that no Subsidiary of Borrower will have a fiscal year different from that of Borrower. Borrower agrees that its independent certified public accountants are authorized to communicate with Lender and to release to Lender whatever financial information concerning Borrower Lender reasonably may request. Borrower waives the right to assert a confidential relationship, if any, it may have with any Obligated Partyaccounting firm or service bureau in connection with any information requested by Lender pursuant to or in accordance with this Agreement, and agrees that Lender may contact directly any such accounting firm or service bureau in order to obtain such information.
Appears in 1 contract
Financial Statements, Reports, Certificates. Deliver to Agent, with copies to each Lender:
(a) as soon as available, but in any event by no later than the earlier of within thirty (y) five (530) days after the date on which Parent files its Form 10-Q with the SEC and (z) forty five (45) days following the last day of each of Parent’s first three (3) fiscal quarters end of each fiscal yearmonth of Borrower,
(i) a an unaudited consolidated balance sheet and sheet, income statement and statement of cash flow (if applicable) covering the operations of Parent such Person’s and its direct and indirect Subsidiaries Subsidiaries’ operations during such period and the year-to-date period ending thereon, with comparisons against in each case setting forth in comparative form the balance sheet for the immediately preceding fiscal year and income statement figures for the corresponding period during periods in the immediately preceding fiscal prior year, (it being agreed that the furnishing of Parent’s quarterly report on Form 10-Q for each such fiscal quarterin form acceptable to Agent, as filed with the SEC, will satisfy Parent’s and Borrower’s obligations under this Section 6.2(a)(i) with respect to such fiscal quarter),and
(ii) a Compliance Certificate signed by the chief financial officer and/or chief accounting officer of Borrower certifying that:
demonstrating in reasonable detail (1A) the financial statements delivered hereunder have been prepared in accordance with GAAP (except for the lack of footnotes and being subject to year-end audit adjustments) and fairly present in all material respects the financial condition of Parent and its direct and indirect Subsidiaries, and demonstrating the Borrower’s compliance by Parent on a consolidated basis at the end of such quarter period with all financial covenants required to be tested hereunder, and
(2) there does not exist any condition or event that constitutes a Default or Event of Default (or, to the extent of any non-compliance, describing such non-compliance as to which he or she may have knowledge and what action the applicable Obligated Party has takenfinancial and portfolio covenants contained in Sections 7.16 and 7.17 that are measured on a monthly basis, is taking, or proposes to take and (B) HTGC’s compliance at the end of such period with respect theretothe minimum portfolio funding liquidity covenant contained in Sections 7.16(f),;
(b) as soon as available, but in any event by no later than the earlier of (y) within forty-five (545) days after the end of each fiscal quarter of Borrower and HTGC,
(i) an unaudited consolidated and consolidating balance sheet, income statement and statement of cash flow covering HTGC’s and its Subsidiaries’ operations during such period and the year-to-date period ending thereon, in each case setting forth in comparative form the figures for the corresponding periods in the prior year, in form acceptable to Agent; provided, that the availability via XXXXX, or any successor system of the SEC, of the financial statements in HTGC’s applicable quarterly report on which Parent files its Form 10-K Q shall be deemed delivery to Agent of the financial statements required to be delivered pursuant to this clause (b)(i), on the date such documents are made so available, and
(ii) a Compliance Certificate demonstrating in reasonable detail Borrower’s and HTGC’s compliance at the end of such period with the SEC applicable financial and portfolio covenants contained in Sections 7.16 and 7.17 that are measured on a quarterly basis;
(zc) as soon as available, but in any event within ninety (90) days following after the last day end of each fiscal year of Parent’s fiscal years, Borrower and HTGC,
(i) consolidated financial statements of Parent HTGC and its direct and indirect Subsidiaries for each such fiscal year, audited by PricewaterhouseCoopers LLP or other independent certified public accountants reasonably acceptable to Lender in Lender’s Permitted Discretion Agent and certified, without any qualifications (including any (A) “going concern” or like qualification or exception, or (B) qualification or exception as to the scope of such audit, or (C) qualification which relates to the treatment or classification of any item and which, as a condition to the removal of such qualification, would require an adjustment to such item, the effect of which would be to cause any noncompliance with the provisions of Sections 7.16 or 7.17), by such accountants to have been prepared in accordance with GAAP) GAAP (it being agreed such audited financial statements to include a balance sheet, income statement, and statement of cash flow and, if prepared, such accountants’ letter to management); provided, that the furnishing availability via XXXXX, or any successor system of Parentthe SEC, of the financial statements in HTGC’s annual report on Form 10-K for each such fiscal year as filed with shall be deemed delivery to Agent of the SEC, will satisfy Parent’s and Borrower’s obligation under this Section 6.2(b) with respect to such fiscal year except with respect to the requirement that such financial statements required to be reported on without a “going concern” or like qualification or exception, or qualification arising out of the scope of the auditdelivered pursuant to this clause (c)(i), together with a certificate of on the date such accountants addressed to Lender stating that such accountants do not have knowledge of the existence of any Default or Event of Default. Such annual financial statements shall be accompanied by documents are made so available, and
(ii) a Compliance Certificate signed by the chief financial officer and/or chief accounting officer of Borrower certifying that:
(1) Parent is demonstrating in reasonable detail Borrower’s and HTGC’s compliance on a consolidated basis at the end of such fiscal year period with all financial covenants required to be tested hereunder,
(2) the financial statements delivered hereunder have been prepared in accordance with GAAP and fairly present in all material respects the financial condition of Parent and its direct and indirect Subsidiaries, and
(3) there does not exist any condition or event that constitutes a Default or Event of Default (or, to the extent of any non-compliance, describing such non-compliance as to which he or she may have knowledge and what action the applicable Obligated Party has taken, is taking, or proposes to take with respect thereto),
(c) [Intentionally Deleted],financial and portfolio covenants contained in Sections 7.16 and 7.17;
(d) as soon as available, but in any event by no later not less than the earlier of thirty (y) five (530) days after prior to the date on which Parent files its Form 10-K with the SEC and (z) ninety (90) days following the last day commencement of each fiscal year of Parent’s fiscal yearsBorrower and HTGC, copies of Projections for such fiscal year (including, Borrower and HTGC that have been provided to the Board of Directors of Borrower or HTGC for the avoidance of doubtforthcoming fiscal year, the 2016 Projections to be delivered on or before March 30, 2016), all as certified by the chief financial officer of Parent Borrower and the chief financial officer of HTGC, as applicable, as being such officer’s good faith best estimate of the financial performance of Parent Borrower and its direct and indirect Subsidiaries HTGC during the period covered thereby,
(e) if requested by Agent, and if and when filed by Borrower or HTGC, copies of Borrower’s or HTGC’s federal income tax returns, and any amendments thereto, filed with the Internal Revenue Service,
(f) promptly notify Agent of the following regarding each Note Receivable and Note Receivable Collateral which secures such Note Receivable:
(i) the occurrence of any event which may materially impair the prospect of payment of such Note Receivable;
(ii) the sending by Servicer or Borrower of any notice of default, recordation by Servicer or Borrower of any notice of foreclosure and the date of any scheduled foreclosure sale thereon, or filing by Servicer or Borrower of any lawsuit (including case number and court) on a Note Receivable or related Note Receivable Collateral;
(iii) the consummation of any foreclosure sale or any deed or xxxx of sale in lieu of foreclosure, retention of collateral in satisfaction of debt or similar transaction, and deliver to Agent true and complete copies of all documentation executed in respect thereof (in the case of notices, postings and the like, and in the case of deeds, bills of sale or retention of collateral transactions, all documents related to consummation of such transaction or transfer of such property); and
(iv) the receipt by Servicer or Borrower of a notice by any Person of (x) a default with respect to any agreement evidencing or governing a Lien on any Note Receivable Collateral or (y) any foreclosure sale with respect to any Note Receivable Collateral;
(g) promptly, but in any event within five (5) Business Days days after Borrower has knowledge of any event or condition that constitutes a Default or an Event of Default, notice thereof and a statement of the curative action that the applicable Obligated Party Borrower proposes to take with respect thereto,
(fh) promptly after the commencement thereof, but in any event within five (5) Business Days days after the service of process with respect thereto on HTGC, Borrower or any Obligated Partyof their respective Subsidiaries, notice of all actions, suits, or proceedings brought by or against such Obligated Party HTGC, Borrower or any of their respective Subsidiaries before any Governmental Authority which, if determined adversely to HTGC, Borrower or such Obligated PartySubsidiary, reasonably could reasonably be expected to result in a Material Adverse Change,
(g) promptly, but in any event within ten (10) Business Days after Borrower has knowledge thereof, notify Lender of any material negative changes to Borrower’s customer renewal rates, and
(hi) upon the request of LenderAgent, any other information reasonably requested relating to the financial condition of HTGC, Borrower or any Obligated Partyof their respective Subsidiaries. In addition, Borrower agrees to deliver financial statements prepared on both a consolidated and consolidating basis to the extent required by this Section 6.3, and agrees that Borrower will not have fiscal year different from that of HTGC and that no Subsidiary of Borrower will have a fiscal year different from that of Borrower. Borrower also agrees to cooperate with Agent to allow Agent to (A) audit Borrower or its Subsidiaries, and HTGC, and (B) consult with its and each such other Person’s independent certified public accountants if Agent reasonably requests the right to do so. In such connection, Borrower authorizes, and will cooperate with Agent to cause its Subsidiaries and HTGC to authorize, its independent certified public accountants to communicate with Agent and to release to Agent whatever financial information concerning such Person as Agent reasonably may request.
Appears in 1 contract
Samples: Loan and Security Agreement (Hercules Technology Growth Capital Inc)
Financial Statements, Reports, Certificates. Deliver to Agent, with copies to each Lender:
(a) as soon as available, but in any event by no later than within 30 days (45 days in the earlier case of (ya month that is the end of one of the first 3 fiscal quarters in a fiscal year) five (5) days after the date on which Parent files its Form 10-Q with the SEC and (z) forty five (45) days following the last day end of each month during each of ParentBorrower’s first three (3) fiscal quarters of each fiscal yearyears,
(i) a company prepared consolidated balance sheet sheet, income statement, and income statement of cash flow covering the operations of Parent Borrower’s and its direct and indirect Subsidiaries Subsidiaries’ operations during such period and the year-to-date period ending thereon, with comparisons against the balance sheet for the immediately preceding fiscal year and income statement for the corresponding period during the immediately preceding fiscal year, (it being agreed that the furnishing of Parent’s quarterly report on Form 10-Q for each such fiscal quarter, as filed with the SEC, will satisfy Parent’s and Borrower’s obligations under this Section 6.2(a)(i) with respect to such fiscal quarter)period,
(ii) a Compliance Certificate certificate signed by the chief financial officer and/or chief accounting officer of Borrower certifying to the effect that:
(1A) the financial statements delivered hereunder have been prepared in accordance with GAAP (except for the lack of footnotes and being subject to year-end audit adjustments) and fairly present in all material respects the financial condition of Parent Borrower and its direct Subsidiaries,
(B) the representations and indirect Subsidiarieswarranties of Borrower contained in this Agreement and the other Loan Documents are true and correct in all material respects on and as of the date of such certificate, as though made on and as of such date (except to the extent that such representations and warranties relate solely to an earlier date), and demonstrating including, without limitation, a representation that all required payments by the compliance by Parent Borrower on a consolidated basis at the end account of such quarter with all financial covenants required to be tested hereunderBenefit Plans have been timely made, and
(2C) there does not exist any condition or event that constitutes a Default or Event of Default (or, to the extent of any non-compliance, describing such non-compliance as to which he or she may have knowledge and what action the applicable Obligated Party Borrower has taken, is taking, or proposes to take with respect thereto),, and
(iii) for each month that is the date on which a financial covenant in Section 7.20 is to be tested, a Compliance Certificate demonstrating, in reasonable detail, compliance at the end of such period with the applicable financial covenants contained in Section 7.20, and
(b) as soon as available, but in any event by no later than the earlier of (y) five (5) within 90 days after the date on which Parent files its Form 10-K with the SEC and (z) ninety (90) days following the last day end of each of ParentBorrower’s fiscal years, consolidated ,
(i) financial statements of Parent Borrower and its direct and indirect Subsidiaries for each such fiscal year, audited by independent certified public accountants reasonably acceptable to Lender in Lender’s Permitted Discretion Agent and certified, without any qualifications (including any (A) “other than existing Table of Contents going concern” or like qualification or exception, or (B) qualification or exception as to the scope of such auditconcern qualifications), by such accountants to have been prepared in accordance with GAAP) GAAP (it being agreed that the furnishing of Parent’s annual report on Form 10-K for each such fiscal year as filed with the SEC, will satisfy Parent’s and Borrower’s obligation under this Section 6.2(b) with respect to such fiscal year except with respect to the requirement that such audited financial statements be reported on without to include a “going concern” or like qualification or exceptionbalance sheet, or qualification arising out income statement, and statement of the scope of the audit)cash flow and, together with a certificate of if prepared, such accountants addressed accountants’ letter to Lender stating that such accountants do not have knowledge of the existence of any Default or Event of Default. Such annual financial statements shall be accompanied by a Compliance Certificate signed by the chief financial officer and/or chief accounting officer of Borrower certifying that:
(1) Parent is in compliance on a consolidated basis at the end of such fiscal year with all financial covenants required to be tested hereunder,
(2) the financial statements delivered hereunder have been prepared in accordance with GAAP and fairly present in all material respects the financial condition of Parent and its direct and indirect Subsidiaries, and
(3) there does not exist any condition or event that constitutes a Default or Event of Default (or, to the extent of any non-compliance, describing such non-compliance as to which he or she may have knowledge and what action the applicable Obligated Party has taken, is taking, or proposes to take with respect theretomanagement),
(cii) [Intentionally Deleted]all actuarial reports and analyses with respect to all Benefit Plans and, (without requiring the following filings within 90 days of the end of each of Borrower’s fiscal years) within ten (10) days of Borrower’s receipt or execution thereof, any Form 5500 or other governmental filing on account of any Benefit Plan,
(diii) appraisals of the Real Property Collateral, in form and substance satisfactory to Agent, from an appraiser satisfactory to Agent, and which state that Agent and Lenders are entitled to rely on such appraisals,
(c) as soon as available, but in any event by no later than within 30 days prior to the earlier of (y) five (5) days after the date on which Parent files its Form 10-K with the SEC and (z) ninety (90) days following the last day start of each of ParentBorrower’s fiscal years, ,
(i) copies of Projections for such fiscal year Borrower’s Projections, in form and substance (includingincluding as to scope and underlying assumptions) satisfactory to Agent, in its sole discretion, for the avoidance of doubtforthcoming 3 years, year by year, and for the 2016 Projections to be delivered on or before March 30forthcoming fiscal year, 2016)month by month, all as certified by the chief financial officer of Parent Borrower as being such officer’s good faith best estimate of the financial performance of Parent and its direct and indirect Subsidiaries Borrower during the period covered thereby,
(d) if and when filed by Borrower,
(i) Form 10-Q quarterly reports, Form 10-K annual reports, and Form 8-K current reports,
(ii) any other filings made by Borrower or any Guarantor with the SEC, any national securities exchange or the National Association of Securities Dealers, Inc. or filed with or sent to the Subordinated Indenture Trustee or to any holder of Subordinated Notes, and
(iii) copies of Borrower’s federal income tax returns, and any amendments thereto, filed with the Internal Revenue Service.
(e) promptlyif and when filed by Borrower and as requested by Agent, but satisfactory evidence of payment of applicable excise taxes in each jurisdictions in which (i) Borrower conducts business or is required to pay any event within five such excise tax, (5ii) Business Days after where Borrower’s failure to pay any such applicable excise tax would result in a Lien on the properties or assets of Borrower, or (iii) where Borrower’s failure to pay any such applicable excise tax reasonably could be expected to result in a Material Adverse Change, Table of Contents
(f) as soon as Borrower has knowledge of any event or condition that constitutes a Default or an Event of Default, notice thereof and a statement of the curative action that the applicable Obligated Party Borrower proposes to take with respect thereto,
(fg) promptly after the commencement thereofupon Agent’s request, Borrower shall, at its expense, no more than twice in each calendar year, but at any time or times as Agent may request on or after an Event of Default, deliver or cause to be delivered to Agent written appraisals as to the Inventory and Equipment in any event within five (5) Business Days after the service of process with respect thereto on any Obligated Partyform, notice of all actionsscope and methodology acceptable to Agent and by an appraiser acceptable to Agent, suits, or proceedings brought by or against such Obligated Party before any Governmental Authority which, if determined adversely addressed to such Obligated Party, could reasonably be expected Agent and Lenders and upon which Agent and Lenders are expressly permitted to result in a Material Adverse Change,
(g) promptly, but in any event within ten (10) Business Days after Borrower has knowledge thereof, notify Lender of any material negative changes to Borrower’s customer renewal ratesrely, and
(h) upon the request of LenderAgent, any other information report reasonably requested relating to the financial condition of Borrower. In addition to the financial statements referred to above, Borrower agrees to deliver financial statements prepared on both a consolidated and consolidating basis and agrees that no Subsidiary of Borrower will have a fiscal year different from that of Borrower. Borrower agrees that its independent certified public accountants are authorized to communicate with Agent and to release to Agent whatever financial information concerning Borrower Agent reasonably may request. Borrower waives the right to assert a confidential relationship, if any, it may have with any Obligated Partyaccounting firm or service bureau in connection with any information requested by Agent pursuant to or in accordance with this Agreement, and agrees that Agent may contact directly any such accounting firm or service bureau in order to obtain such information.
Appears in 1 contract
Financial Statements, Reports, Certificates. Deliver to Agent, with copies to each Lender:
(a) as soon as available, but in any event by no later than the earlier of (y) five (5) within 45 days after the date on which Parent files its Form 10-Q with the SEC and (z) forty five (45) days following the last day end of each of Parent’s the first three (3) fiscal quarters during each of each Parent's fiscal yearyears,
(i) a company prepared consolidated balance sheet sheet, income statement, and income statement of cash flow covering the operations of Parent Parent's and its direct and indirect Subsidiaries Subsidiaries' operations during such period and the year-to-date period ending thereonperiod, together with comparisons against the balance sheet for the immediately preceding fiscal year and income statement for the corresponding period during the immediately preceding fiscal year, (it being agreed that the furnishing a copy of Parent’s quarterly report on Borrower's Form 10-Q quarterly report for each such fiscal quarter, as period filed with the SEC, will satisfy Parent’s and Borrower’s obligations under this Section 6.2(a)(i) with respect to such fiscal quarter),
(ii) a Compliance Certificate certificate signed by the chief financial officer and/or chief accounting officer of Borrower certifying Parent to the effect that:
(1A) the financial statements delivered hereunder have been prepared in accordance with GAAP (except for the lack of footnotes and being subject to year-end audit adjustments) and fairly present in all material respects the financial condition of Parent and its direct Subsidiaries,
(B) the representations and indirect Subsidiaries, warranties of Parent contained in this Agreement and demonstrating the compliance by Parent other Loan Documents are true and correct in all material respects on a consolidated basis at and as of the end date of such quarter with all financial covenants required certificate, as though made on and as of such date (except to be tested hereunderthe extent that such representations and warranties relate solely to an earlier date), and
(2C) there does not exist any condition or event that constitutes a Default or Event of Default (or, to the extent of any non-compliance, describing such non-compliance as to which he or she may have knowledge and what action the applicable Obligated Party has Borrowers have taken, is are taking, or proposes propose to take with respect thereto),, and (iii) for each month that is the date on which a financial covenant in Section 7.20 is to be tested, a Compliance Certificate demonstrating, in reasonable detail, compliance at the end of such period with the applicable financial covenants contained in Section 7.20, and
(b) as soon as available, but in any event by no later than the earlier of (y) five (5) within 120 days after the date on which Parent files its Form 10-K with the SEC and (z) ninety (90) days following the last day end of each of Parent’s 's fiscal years, ,
(i) consolidated financial statements of Parent and its direct and indirect Subsidiaries for each such fiscal year, audited by independent certified public accountants reasonably acceptable to Lender in Lender’s Permitted Discretion Agent and certified, without any qualifications (including any (A) “going concern” or like qualification or exception, or (B) qualification or exception as to the scope of such auditqualifications, by such accountants to have been prepared in accordance with GAAP) GAAP (it being agreed that the furnishing such audited financial statements to include a balance sheet, income statement, and statement of Parent’s annual report on cash flow and, if prepared, such accountants' letter to management), together with a copy of Borrower's Form 10-K annual report for each such fiscal year as filed with the SEC, will satisfy Parent’s SEC and a copy of Borrower’s obligation under this Section 6.2(b) with respect to 's consolidating financial statement for such fiscal year except with respect to the requirement that such financial statements be reported on without a “going concern” or like qualification or exception, or qualification arising out of the scope of the audit), together with year,
(ii) a certificate of such accountants addressed to Lender Agent and the Lenders stating that such accountants do not have knowledge of the existence of any Default or Event of Default. Such annual financial statements shall be accompanied by a Compliance Certificate signed by the chief financial officer and/or chief accounting officer of Borrower certifying that:
(1) Parent is in compliance on a consolidated basis at the end of such fiscal year with all financial covenants required to be tested hereunder,
(2) the financial statements delivered hereunder have been prepared in accordance with GAAP and fairly present in all material respects the financial condition of Parent and its direct and indirect Subsidiaries, and
(3) there does not exist any condition or event that constitutes a Default or Event of Default (or, to the extent of any non-compliance, describing such non-compliance as to which he or she may have knowledge and what action the applicable Obligated Party has taken, is taking, or proposes to take with respect thereto)under Section 7.20,
(c) [Intentionally Deleted]if and when filed by any Borrower,
(i) any other filings made by Borrower with the SEC, and
(d) as soon as available, but in any event other information that is provided by no later than the earlier of (y) five (5) days after the date on which Parent files to its Form 10-K with the SEC and (z) ninety (90) days following the last day of each of Parent’s fiscal years, copies of Projections for such fiscal year (including, for the avoidance of doubt, the 2016 Projections to be delivered on or before March 30, 2016), all as certified by the chief financial officer of Parent as being such officer’s good faith best estimate of the financial performance of Parent and its direct and indirect Subsidiaries during the period covered therebyshareholders generally,
(e) promptly, but in any event within five (5) Business Days after as soon as a Borrower has knowledge of any event or condition that constitutes a Default or an Event of Default, notice thereof and a statement of the curative action that the applicable Obligated Party proposes Borrowers propose to take with respect thereto,
(f) promptly after the commencement thereof, but in any event within five (5) Business Days after the service of process with respect thereto on any Obligated Party, notice of all actions, suits, or proceedings brought by or against such Obligated Party before any Governmental Authority which, if determined adversely to such Obligated Party, could reasonably be expected to result in a Material Adverse Change,
(g) promptly, but in any event within ten (10) Business Days after Borrower has knowledge thereof, notify Lender of any material negative changes to Borrower’s customer renewal rates, and
(hf) upon the request of LenderAgent, any other information report reasonably requested relating to the financial condition of Borrowers. In addition to the financial statements referred to above, Borrowers agree to deliver financial statements prepared on both a consolidated and consolidating basis and that no Borrower, or any Obligated Party.Subsidiary of a Borrower, will have a fiscal year different from that of Parent. Borrowers agree that their independent certified public accountants are authorized to communicate with Agent and to release to Agent whatever financial information concerning Borrowers that Agent reasonably may request. Each Borrower hereby irrevocably authorizes and directs all auditors, accountants, or other third parties to deliver to Agent, at Borrowers' expense, copies of Borrowers' financial statements, papers related thereto, and other accounting records of any nature in their possession (collectively, the "Financial Papers"), and to disclose to Agent any information they may have regarding Borrowers' business affairs and financial conditions (together with the Financial Papers, the "Financial Information"). Agent agrees to keep the Financial Information strictly confidential and Agent will not, without the prior written consent of Parent, disclose the Financial Information to any third party in any manner whatsoever, in whole or in part, except that Agent may disclose the Financial Information to those of its
Appears in 1 contract
Financial Statements, Reports, Certificates. Deliver to Agent, with copies to each Lender:
(a) as soon as available, but in any event by no later than the earlier of (y) five (5) within 60 days after the date on which Parent files its Form 10-Q with the SEC and (z) forty five (45) days following the last day end of each fiscal quarter during each of Parent’s first three (3) fiscal quarters of each fiscal yearyears,
(i) a consolidated balance sheet sheet, income statement, and income statement of cash flow covering the operations of Parent and its direct and indirect Subsidiaries during such period and the year-to-date period ending thereon, with comparisons against the balance sheet for the immediately preceding fiscal year and income statement for the corresponding period during the immediately preceding fiscal year, (it being agreed that the furnishing of Parent’s quarterly report on Form 10-Q for each such fiscal quarter, as filed with the SEC, will satisfy Parent’s and Borrower’s obligations under this Section 6.2(a)(i) with respect to its Subsidiaries’ operations during such fiscal quarter)period,
(ii) a Compliance Certificate signed by to the chief financial officer and/or chief accounting officer of Borrower certifying effect that:
(1) A. the financial statements delivered hereunder have been prepared in accordance with GAAP (except for the lack of footnotes and being subject to year-end audit adjustments) and fairly present in all material respects the consolidated financial condition of Parent and its direct Subsidiaries,
B. the representations and indirect Subsidiaries, warranties of Obligors contained in this Agreement and demonstrating the compliance by Parent other Loan Documents are true and correct in all material respects on a consolidated basis at and as of the end date of such quarter financial statements, as though made on and as of such date (except to the extent that such representations and warranties relate solely to an earlier date), (or, to the extent that such representations and warranties are not true and correct in all material respects on and as of such date, describing such inaccuracy as to which he or she may have knowledge and what action, if any, Obligors have taken, are taking, or propose to take with all financial covenants required to be tested hereunderrespect thereto), and
(2) C. on and as of the date of such financial statements, there does not exist any condition or event that constitutes a Default or Event of Default (or, to the extent of any non-compliance, describing such non-compliance as to which he or she may have knowledge and what action the applicable Obligated Party has action, if any, Obligors have taken, is are taking, or proposes propose to take with respect thereto),
(b) as soon as available, but in any event by no later than the earlier of (y) five (5) within 120 days after the date on which Parent files its Form 10-K with the SEC and (z) ninety (90) days following the last day end of each of Parent’s fiscal years, ,
(i) consolidated financial statements of Parent and its direct and indirect Subsidiaries for each such fiscal year, audited by independent certified public accountants reasonably acceptable to Lender in Lender’s Permitted Discretion Agent and certified, without any qualifications (including any (A) “going concern” or like qualification or exception, or (B) qualification or exception as to the scope of such auditqualifications, by such accountants to have been prepared in accordance with GAAP) GAAP (it being agreed that the furnishing of Parent’s annual report on Form 10-K for each such fiscal year as filed with the SEC, will satisfy Parent’s and Borrower’s obligation under this Section 6.2(b) with respect to such fiscal year except with respect to the requirement that such audited financial statements be reported on without to include a “going concern” or like qualification or exceptionbalance sheet, or qualification arising out income statement, and statement of the scope of the auditcash flow and, if prepared, such accountants’ letter to management), together with and
(ii) a certificate of such accountants addressed to Lender Agent and the Lenders stating that such accountants do not have knowledge of the existence of any Default or Event of Default. Such annual financial statements shall be accompanied by a Compliance Certificate signed by the chief financial officer and/or chief accounting officer Default under Section 7.17 as of Borrower certifying that:
(1) Parent is in compliance on a consolidated basis at the end of such fiscal year with all year, provided, that for purposes of clauses (a) and (b) above, the financial covenants statements required to be tested hereunder,
delivered pursuant to clauses (2a) the financial statements and (b) above shall be deemed delivered hereunder have been prepared in accordance with GAAP to Agent upon and fairly present in all material respects the financial condition of Parent and its direct and indirect Subsidiaries, and
(3) there does not exist any condition or event that constitutes a Default or Event of Default (or, to the extent of any non-compliance, describing that such non-compliance as to which he or she may have knowledge financial statements are filed with the SEC and what action such financial statements are made publicly available by the applicable Obligated Party has taken, is taking, or proposes to take with respect thereto)SEC,
(c) [Intentionally Deleted],
(d) as soon as available, but in any event by no later than the earlier of (y) five (5) 30 days after the date on which Parent files its Form 10-K with the SEC and (z) ninety (90) days following the last day start of each of Parent’s fiscal years, copies of the Projections for such fiscal year year, in form and substance (includingincluding as to scope and underlying assumptions) satisfactory to Agent, for the avoidance of doubtin its Permitted Discretion, the 2016 Projections to be delivered on or before March 30, 2016), all as certified by the chief financial officer of Parent as being such officer’s prepared in good faith best estimate based on assumptions believed to be reasonable at the time of preparation thereof,
(d) if and when filed by any Obligor,
(i) (A) within 60 days after the financial performance of applicable Obligor’s fiscal quarter end, 10-Q quarterly reports, (B) within 120 days after the applicable Obligor’s fiscal year end, Form 10-K annual reports and (C) within 10 days after filing, Form 8-K current reports, and any other filings made by any Obligor with the SEC, it being understood that, as to any such filings, Obligors may deliver the same by electronic mail (to such email address(es) as may be provided for such purpose from time to time by Agent), including any such electronic mail specifying the applicable filing, and
(ii) any other information that is provided by Parent and to its direct and indirect Subsidiaries during the period covered therebyshareholders generally,
(e) promptly, but in Intentionally Omitted,
(f) as soon as any event within five (5) Business Days after Borrower Responsible Officer of any Obligor has knowledge of any event or condition that constitutes a Default or an Event of Default, notice thereof and a statement of the curative action that the applicable Obligated Party proposes Obligors propose to take with respect thereto,, and
(fg) promptly after the commencement thereof, but in any event within five (5) 3 Business Days after the service of process with respect thereto on any Obligated PartyObligor or any Subsidiary of any Obligor, notice of all actions, suits, or proceedings brought by or against such Obligated Party any Obligor or any Subsidiary of any Obligor before any Governmental Authority which, if determined adversely to such Obligated Party, which reasonably could reasonably be expected to result in a Material Adverse Change,
(g) promptly, but in any event within ten (10) Business Days after Borrower has knowledge thereof, notify Lender of any material negative changes to Borrower’s customer renewal rates, and
(h) upon the request of Lender, any other information reasonably requested relating . In addition to the financial condition statements referred to above, Borrowers agree to deliver the financial statements described in Sections 6.3(a)(i) and 6.3(b)(i) prepared on both a consolidated and consolidating basis and agree that no Subsidiary of any Obligated PartyParent will have a fiscal year different from that of Parent. Obligors agree to cooperate with Agent to allow Agent to consult with their independent certified public accountants if Agent reasonably requests the right to do so (and Agent shall notify Obligors as to the timing of such consultations and permit Obligors an opportunity to be present thereat or to otherwise participate therein) and that, in such connection, their independent certified public accountants are authorized to communicate with Agent and to release to Agent whatever financial information concerning Obligors or their Subsidiaries that Agent reasonably may request.
Appears in 1 contract
Samples: Loan and Security Agreement (SMART Modular Technologies (WWH), Inc.)
Financial Statements, Reports, Certificates. Deliver to Agent, with copies to each Lender:
(a) as soon as available, but in any event by no later than within 30 days (45 days in the earlier case of (ya month that is the end of one of the first 3 Fiscal Quarters in a Fiscal Year) five (5) days after the date on which Parent files its Form 10-Q with the SEC and (z) forty five (45) days following the last day end of each Fiscal Period during each of Parent’s first three (3) fiscal quarters of each fiscal year's Fiscal Years,
(i) a company prepared consolidated balance sheet sheet, income statement, and income statement of cash flow covering the operations of Parent Parent's and its direct and indirect Subsidiaries Subsidiaries' operations during such period and the year-to-date period ending thereon, with comparisons against the balance sheet for the immediately preceding fiscal year and income statement for the corresponding period during the immediately preceding fiscal year, (it being agreed that the furnishing of Parent’s quarterly report on Form 10-Q for each such fiscal quarter, as filed with the SEC, will satisfy Parent’s and Borrower’s obligations under this Section 6.2(a)(i) with respect to such fiscal quarter)period,
(ii) a Compliance Certificate signed by the chief financial officer and/or chief accounting officer of Borrower certifying Parent to the effect that:
(1A) the financial statements delivered hereunder have been prepared in accordance with GAAP (except for the lack of footnotes and being subject to year-end audit adjustments) and fairly present in all material respects the financial condition of Parent and its direct Subsidiaries,
(B) the representations and indirect Subsidiaries, warranties of Borrowers contained in this Agreement and demonstrating the compliance by Parent other Loan Documents are true and correct in all material respects on a consolidated basis at and as of the end date of such quarter with all financial covenants required certificate, as though made on and as of such date (except to be tested hereunder, andthe extent that such representations and warranties relate solely to an earlier date),
(2C) there does not exist any condition or event that constitutes a Default or Event of Default (or, to the extent of any non-compliance, describing such non-compliance as to which he or she may have knowledge and what action the applicable Obligated Party has Borrowers have taken, is are taking, or proposes propose to take with respect thereto),, and
(D) Borrowers have complied with each financial covenant in Section 7.21 or, alternatively, indicating Borrowers' non-compliance with such financial covenants, and in either event demonstrating, in reasonable detail, the calculations of such financial covenant.
(b) as soon as available, but in any event by no later than the earlier of (yi) five (5) within 45 days after the date on which Parent files its Form 10-K with the SEC and (z) ninety (90) days following the last day end of each of the Parent’s fiscal years's Fiscal Years, consolidated drafts of the financial statements of Parent and its direct and indirect Subsidiaries for each such fiscal yearFiscal Year, prepared by the Parent but excluding footnote disclosure (such draft financial statements to include a balance sheet, income statement, and statement of cash flow), and (ii) within 90 days after the end of each of Parent's Fiscal Years, financial statements of Parent and its Subsidiaries for each such Fiscal Year, audited by independent certified public accountants reasonably acceptable to Lender in Lender’s Permitted Discretion Agent and certified, without any qualifications (including any (A) “going concern” or like qualification or exception, or (B) qualification or exception as to the scope of such auditqualifications, by such accountants to have been prepared in accordance with GAAP) GAAP (it being agreed that the furnishing of Parent’s annual report on Form 10-K for each such fiscal year as filed with the SEC, will satisfy Parent’s and Borrower’s obligation under this Section 6.2(b) with respect to such fiscal year except with respect to the requirement that such audited financial statements be reported on without to include a “going concern” or like qualification or exceptionbalance sheet, or qualification arising out income statement, and statement of the scope of the auditcash flow and, if prepared, such accountants' letter to management), together with a certificate of such accountants addressed to Lender stating that such accountants do not have knowledge of the existence of any Default or Event of Default. Such annual financial statements shall be accompanied by a Compliance Certificate signed by the chief financial officer and/or chief accounting officer of Borrower certifying that:
(1) Parent is in compliance on a consolidated basis at the end of such fiscal year with all financial covenants required to be tested hereunder,
(2) the financial statements delivered hereunder have been prepared in accordance with GAAP and fairly present in all material respects the financial condition of Parent and its direct and indirect Subsidiaries, and
(3) there does not exist any condition or event that constitutes a Default or Event of Default (or, to the extent of any non-compliance, describing such non-compliance as to which he or she may have knowledge and what action the applicable Obligated Party has taken, is taking, or proposes to take with respect thereto),.
(c) [Intentionally Deleted],
(d) as soon as available, but in any event by no later than within 30 days prior to the earlier of (y) five (5) days after the date on which Parent files its Form 10-K with the SEC and (z) ninety (90) days following the last day start of each of Parent’s fiscal years's Fiscal Years, copies of Projections for Borrowers' Business Plan, in form and substance satisfactory to Agent in its Permitted Discretion (without limiting the foregoing each Business Plan submitted after the Closing Date shall include Parent's forecasted (i) consolidated balance sheets, (ii) consolidated profit and loss statements, and (iii) consolidated cash flow statements, in each case prepared on a basis consistent with Parent's historical financial statements and in a format similar to the Business Plan attached to this Agreement as Exhibit D-1 with such fiscal year (includingmodifications as Agent may require and shall also include such supporting details and a statement of the underlying assumptions in form and detail satisfactory to Agent), for the avoidance of doubtforthcoming 2 Fiscal Years (on a year by year basis, and for the 2016 Projections to be delivered immediately following Fiscal Year on or before March 30, 2016a month by month basis), all in form and substance (including as to scope and underlying assumptions, which underlying assumptions shall be disclosed in writing to Agent) satisfactory to Agent and, certified by the chief financial officer of Parent as being such officer’s 's good faith best estimate of the financial performance of Parent and its direct and indirect Subsidiaries during the period covered therebythereby (it being understood that Agent may in its Permitted Discretion, but shall not be under any obligation to, revise the covenants set forth in Section 7.21 as a result of its review of such Business Plans and/or create or expand Reserves),
(d) if and when filed by any Borrower,
(i) Form 10-Q quarterly reports, Form 10-K annual reports, and Form 8-K current reports,
(ii) any other filings made by any Borrower with the SEC,
(iii) copies of Borrowers' federal income tax returns, and any amendments thereto, filed with the Internal Revenue Service, and
(iv) any other information that is provided by Parent to its shareholders generally,
(e) promptlyif and when filed by any Borrower and as requested by Agent, but satisfactory evidence of payment of applicable excise taxes in each jurisdictions in which (i) any event within five Borrower conducts business or is required to pay any such excise tax, (5ii) Business Days after where any Borrower's failure to pay any such applicable excise tax would result in a Lien on the properties or assets of any Borrower, or (iii) where any Borrower's failure to pay any such applicable excise tax reasonably could be expected to result in a Material Adverse Change,
(f) as soon as a Borrower has knowledge of any event or condition that constitutes a Default or an Event of Default, notice thereof and a statement of the curative action that the applicable Obligated Party proposes Borrowers propose to take with respect thereto,
(fg) promptly after the commencement thereof, but in any event within five (5together with each Compliance Certificate delivered to Agent pursuant to Section 6.3(a) Business Days after the service of process preceding with respect thereto to the last Fiscal Period of a Fiscal Quarter, a certified schedule describing any additional trademarks and copyrights that have been registered by any Borrower or any Guarantor during the period since the last such schedule (or the execution of this Agreement) delivered to Agent hereunder, which description shall be sufficient for Agent to supplement its Copyright Security Agreement and Trademark Security Agreements delivered on any Obligated Party, notice of all actions, suits, or proceedings brought by or against such Obligated Party before any Governmental Authority which, if determined adversely to such Obligated Party, could reasonably be expected to result in a Material Adverse Change,
(g) promptly, but in any event within ten (10) Business Days after Borrower has knowledge thereof, notify Lender of any material negative changes to Borrower’s customer renewal ratesthe Closing Date, and
(h) upon the request of LenderAgent, any other information report reasonably requested relating to the financial condition of Borrowers. In addition to the financial statements referred to above, Borrowers agree to deliver financial statements prepared on both a consolidated and consolidating basis and that no Borrower or any Obligated PartySubsidiary of a Borrower will have a Fiscal Year different from that of Parent. Borrowers agree that their independent certified public accountants are authorized to communicate with Agent and to release to Agent whatever financial information concerning Borrowers that Agent reasonably may request. Each Borrower waives the right to assert a confidential relationship, if any, it may have with any accounting firm or service bureau in connection with any information requested by Agent pursuant to or in accordance with this Agreement, and agree that Agent may contact directly any such accounting firm or service bureau in order to obtain such information.
Appears in 1 contract
Financial Statements, Reports, Certificates. Deliver to Agent, with copies to each Lender:
(a) as soon as available, but in any event by no later than within 30 days (45 days in the earlier case of (ya month that is the end of one of the fiscal quarters in a fiscal year) five (5) days after the date on which Parent files its Form 10-Q with the SEC and (z) forty five (45) days following the last day end of each month during each of Parent’s first three (3) Borrower's fiscal quarters of each fiscal yearyears,
(i) a company prepared consolidated balance sheet sheet, income statement, and income statement of cash flow covering the CPI Parties' operations of Parent and its direct and indirect Subsidiaries during such period and the year-to-date period ending thereon, with comparisons against the balance sheet for the immediately preceding fiscal year and income statement for the corresponding period during the immediately preceding fiscal year, (it being agreed that the furnishing of Parent’s quarterly report on Form 10-Q for each such fiscal quarter, as filed with the SEC, will satisfy Parent’s and Borrower’s obligations under this Section 6.2(a)(i) with respect to such fiscal quarter)period,
(ii) a Compliance Certificate certificate signed by the chief financial officer and/or chief accounting officer of Borrower certifying to the effect that:
(1A) the financial statements delivered hereunder have been prepared in accordance with GAAP (except for the lack of footnotes and being subject to year-end audit adjustments) and fairly present in all material respects the financial condition of Parent the CPI Parties,
(B) the representations and its direct warranties of Obligors contained in this Agreement and indirect Subsidiaries, the other Loan Documents are true and demonstrating correct in all material respects on and as of the compliance by Parent on a consolidated basis at the end date of such quarter with all financial covenants required certificate, as though made on and as of such date (except to be tested hereunderthe extent that such representations and warranties relate solely to an earlier date), and
(2C) there does not exist any condition or event that constitutes a Default or Event of Default (or, to the extent of any non-compliance, describing such non-compliance as to which he or she may have knowledge and what action the applicable Obligated Party Borrower has taken, is taking, or proposes to take with respect thereto), and
(iii) for each month that is the date on which a financial covenant in Section 7.20 is to be tested, a Compliance Certificate demonstrating, in reasonable detail, compliance at the end of such period with the applicable financial covenants contained in Section 7.20,
(b) as soon as available, but in any event by no later than the earlier of (y) five (5) within 45 days after the date on which Parent files its Form 10-K end of each fiscal quarter of Borrower's fiscal year, commencing with the SEC first fiscal quarter of Borrower's fiscal quarter 2002, a certificate signed by the chief financial officer of Borrower, setting forth in reasonable detail the computation of EBITDA and the Debt Coverage Ratio for the immediately preceding fiscal quarter,
(zc) ninety (90) as soon as available, but in any event within 90 days following after the last day end of each of Parent’s Borrower's fiscal years,
(i) consolidated and, consolidated if available, consolidating, financial statements of Parent and its direct and indirect Subsidiaries the CPI Parties for each such fiscal year, audited by independent certified public accountants reasonably acceptable to Lender in Lender’s Permitted Discretion Agent and certified, without any qualifications (including any (A) “going concern” or like qualification or exception, or (B) qualification or exception as to the scope of such auditqualifications, by such accountants to have been prepared in accordance with GAAP) GAAP (it being agreed that the furnishing of Parent’s annual report on Form 10-K for each such fiscal year as filed with the SEC, will satisfy Parent’s and Borrower’s obligation under this Section 6.2(b) with respect to such fiscal year except with respect to the requirement that such audited financial statements be reported on without to include a “going concern” or like qualification or exceptionbalance sheet, or qualification arising out income statement, and statement of the scope of the auditcash flow and, if prepared, such accountants' letter to management), together with ,
(ii) a certificate of such accountants addressed to Lender Agent and the Lenders stating that such accountants do not have knowledge of the existence of any Default or Event of Default. Such annual financial statements shall be accompanied by a Compliance Certificate signed by the chief financial officer and/or chief accounting officer of Borrower certifying that:
(1) Parent is in compliance on a consolidated basis at the end of such fiscal year with all financial covenants required to be tested hereunder,
(2) the financial statements delivered hereunder have been prepared in accordance with GAAP and fairly present in all material respects the financial condition of Parent and its direct and indirect Subsidiaries, and
(3) there does not exist any condition or event that constitutes a Default or Event of Default (or, to the extent of any non-compliance, describing such non-compliance as to which he or she may have knowledge and what action the applicable Obligated Party has taken, is taking, or proposes to take with respect thereto),
(c) [Intentionally Deleted]under Section 7.20,
(d) as soon as available, but in any event by no later than the earlier of (y) five (5) within 30 days after the date on which Parent files its Form 10-K with the SEC and (z) ninety (90) days following the last day start of each of Parent’s Borrower's fiscal years, ,
(i) copies of Projections for such fiscal year the Projections, in form and substance (includingincluding as to scope and underlying assumptions) satisfactory to Agent, in its reasonable discretion, for the avoidance of doubtforthcoming 2 years, year by year (for the 2016 Projections forthcoming fiscal year, month by month, and on a quarter to be delivered on or before March 30quarter basis for the second year) , 2016), all as certified by the chief financial officer of Parent Borrower as being such officer’s 's good faith best estimate of the financial performance of Parent and its direct and indirect Subsidiaries Obligors during the period covered thereby,
(e) promptlyif and when filed by any Obligor,
(i) Form 10-Q quarterly reports, but Form 10-K annual reports, and Form 8-K current reports,
(ii) any other filings made by any Obligor with the SEC,
(iii) copies of Obligors' federal income tax returns, and any amendments thereto, filed with the Internal Revenue Service, and
(iv) any other information that is provided by any Obligor to its shareholders generally,
(f) if and when filed by any Obligor and as requested by Agent, satisfactory evidence of payment of applicable excise taxes in each jurisdiction in which (i) such Obligor conducts business or is required to pay any event within five such excise tax, (5ii) Business Days after Borrower where such Obligor's failure to pay any such applicable excise tax would result in a Lien on the properties or assets of such Obligor, or (iii) where such Obligor's failure to pay any such applicable excise tax reasonably could be expected to result in a Material Adverse Change,
(g) as soon as any Obligor has knowledge of any event or condition that constitutes a Default or an Event of Default, notice thereof and a statement of the curative action that the applicable Obligated Party Borrower proposes to take with respect thereto,
(fh) promptly after a report on all actions upon which Borrower is required to report to Lender pursuant to Section 5.16 or the commencement thereof, but in any event within five (5) Business Days after the service of process with respect thereto on any Obligated Party, notice of all actions, suits, or proceedings brought by or against such Obligated Party before any Governmental Authority which, if determined adversely to such Obligated Party, could reasonably be expected to result in a Material Adverse Change,
(g) promptly, but in any event within ten (10) Business Days after Borrower has knowledge thereof, notify Lender of any material negative changes to Borrower’s customer renewal ratesIntellectual Property Security Agreement, and
(hi) upon the request of LenderAgent, any other information report reasonably requested relating to the financial condition of any Obligated Partythe Obligors. Each Obligor agrees that no CPI Party will have a fiscal year different from that of Borrower. At the request of Agent, Borrower shall, from time to time, cause its certified public accountants to meet and confer with Agent's representatives, in the presence of Borrower's management, to discuss with Agent's representatives the financial and business affairs of the CPI Parties.
Appears in 1 contract
Samples: Loan and Security Agreement (Communications & Power Industries Inc)
Financial Statements, Reports, Certificates. Deliver to Lender:
(a) as soon as available, but in any event by no later than within 30 days (45 days in the earlier case of (ya month that is the end of one of Parent's fiscal quarters) five (5) days after the date on which Parent files its Form 10-Q with the SEC and (z) forty five (45) days following the last day end of each month during each of Parent’s first three (3) 's fiscal quarters of each fiscal yearyears,
(i) a company prepared consolidated balance sheet sheet, income statement, and income statement of cash flow covering the operations of Parent Parent's and its direct and indirect Subsidiaries Subsidiaries' operations during such period and the year-to-date period ending thereon, with comparisons against the balance sheet for the immediately preceding fiscal year and income statement for the corresponding period during the immediately preceding fiscal year, (it being agreed that the furnishing of Parent’s quarterly report on Form 10-Q for each such fiscal quarter, as filed with the SEC, will satisfy Parent’s and Borrower’s obligations under this Section 6.2(a)(i) with respect to such fiscal quarter)period,
(ii) a Compliance Certificate signed by the chief financial officer and/or chief accounting officer of Borrower certifying to the effect that:
(1A) the financial statements delivered hereunder have been prepared in accordance with GAAP (except for the lack of footnotes and being subject to year-end audit adjustments) and fairly present in all material respects the financial condition of Parent and its direct Subsidiaries,
(B) the representations and indirect Subsidiaries, warranties of Borrower contained in this Agreement and demonstrating the compliance by Parent other Loan Documents are true and correct in all material respects on a consolidated basis at and as of the end date of such quarter with all financial covenants required certificate, as though made on and as of such date (except to be tested hereunder, andthe extent that such representations and warranties relate solely to an earlier date),
(2C) there does not exist any condition or event that constitutes a Default or Event of Default (or, to the extent of any non-compliance, describing such non-compliance as to which he or she may have knowledge and what action the applicable Obligated Party Borrower has taken, is taking, or proposes to take with respect thereto),
(D) all rent, tax, and insurance payments required to be made hereunder have been timely paid, and
(E) Borrower is in compliance at the end of such month with the applicable financial covenants contained in Section 7.18, and demonstrating such compliance in reasonable detail,
(b) as soon as available, but in any event by no later than the earlier of (y) five (5) within 120 days after the date on which Parent files its Form 10-K with the SEC and (z) ninety (90) days following the last day end of each of Parent’s 's fiscal years, consolidated ,
(i) financial statements of Parent and its direct and indirect Subsidiaries for each such fiscal year, audited by independent certified public accountants reasonably acceptable to Lender in Lender’s Permitted Discretion and certified, without any qualifications (including any (A) “going concern” or like qualification or exception, or (B) qualification or exception as to the scope of such auditqualifications, by such accountants to have been prepared in accordance with GAAP) GAAP (it being agreed that the furnishing of Parent’s annual report on Form 10-K for each such fiscal year as filed with the SEC, will satisfy Parent’s and Borrower’s obligation under this Section 6.2(b) with respect to such fiscal year except with respect to the requirement that such audited financial statements be reported on without to include a “going concern” or like qualification or exceptionbalance sheet, or qualification arising out income statement, and statement of the scope of the auditcash flow and, if prepared, such accountants' letter to management), together with and
(ii) a certificate of such accountants addressed to Lender and the Lenders stating that such accountants do not have knowledge of the existence of any Default or Event of Default. Such annual financial statements shall be accompanied by a Compliance Certificate signed by the chief financial officer and/or chief accounting officer of Borrower certifying that:
(1) Parent is in compliance on a consolidated basis at the end of such fiscal year with all financial covenants required to be tested hereunder,
(2) the financial statements delivered hereunder have been prepared in accordance with GAAP and fairly present in all material respects the financial condition of Parent and its direct and indirect Subsidiaries, and
(3) there does not exist any condition or event that constitutes a Default or Event of Default (or, to the extent of any non-compliance, describing such non-compliance as to which he or she may have knowledge and what action the applicable Obligated Party has taken, is taking, or proposes to take with respect thereto)under Section 7.18,
(c) [Intentionally Deleted],
(d) as soon as available, but in any event by no later than the earlier of (y) five (5) within 30 days after the date on which Parent files its Form 10-K with the SEC and (z) ninety (90) days following the last day start of each of Parent’s Borrower's fiscal years, copies of Projections for such fiscal year Borrower's Projections, in form and substance (includingincluding as to scope and underlying assumptions) satisfactory to Lender, in its sole discretion, for the avoidance of doubtforthcoming fiscal year, the 2016 Projections to be delivered on or before March 30month by month, 2016), all as certified by the chief financial officer of Parent Borrower as being such officer’s 's good faith best estimate of the financial performance of Parent and its direct and indirect Subsidiaries Borrower during the period covered therebythereby (it being understood that Lender may agree to revise financial covenants set forth in Section 7.18 (but shall not be under any obligation to do so) and that Lender may create or expand reserves (in its Permitted Discretion) as a result of its review of such Projections),
(d) if and when filed by Parent or Borrower,
(i) Form 10-Q quarterly reports, Form 10-K annual reports, and Form 8-K current reports,
(ii) any other filings made by Parent with the SEC,
(iii) copies of Parent's and Borrower's federal income tax returns, and any amendments thereto, filed with the Internal Revenue Service, and
(iv) any other information that is provided by Parent to its shareholders generally,
(e) promptlyif and when filed by Parent or its Subsidiaries and as requested by Lender, but satisfactory evidence of payment of applicable excise taxes in each jurisdictions in which (i) Parent or its Subsidiaries conducts business or is required to pay any event within five such excise tax, (5ii) Business Days after where Parent's or its Subsidiaries' failure to pay any such applicable excise tax would result in a Lien on the properties or assets of Parent or its Subsidiaries, or (iii) where Parent's or its Subsidiaries' failure to pay any such applicable excise tax reasonably could be expected to result in a Material Adverse Change,
(f) as soon as Borrower has knowledge of any event or condition that constitutes a Default or an Event of Default, notice thereof and a statement of the curative action that the applicable Obligated Party Borrower proposes to take with respect thereto,
(fg) promptly after the commencement thereof, but in any event within five (5) Business Days 5 days after the service of process with respect thereto on Borrower or any Obligated Partyof its Subsidiaries, notice of all actions, suits, or proceedings brought by or against such Obligated Party Borrower or any of its Subsidiaries before any Governmental Authority which, if determined adversely to Borrower or such Obligated PartySubsidiary, reasonably could reasonably be expected to result in a Material Adverse Change,
(gh) promptlyas soon as available, but in any event within ten (10) Business Days 45 days after Borrower has knowledge thereofthe end of each of Parent's fiscal years, notify Lender interim "draft" financial statements, inclusive of any material negative changes subsequent periods until the audited year-end statements are delivered to Borrower’s customer renewal ratesLender, and
(hi) upon the request of Lender, any other information report reasonably requested relating to the financial condition of any Obligated PartyParent or its Subsidiaries. In addition to the financial statements referred to above, Borrower agrees to deliver financial statements prepared on both a consolidated and consolidating basis and agrees that no Subsidiary of Parent will have a fiscal year different from that of Parent. Borrower agrees to cooperate with Lender to allow Lender to consult with its independent certified public accountants if Lender reasonably requests the right to do so and that, in such connection, its independent certified public accountants are authorized to communicate with Lender and to release to Lender whatever financial information concerning Parent or its Subsidiaries Lender reasonably may request.
Appears in 1 contract
Financial Statements, Reports, Certificates. Deliver to Agent, which shall deliver copies to each Lender:
(a) (i) prior to the occurrence of a Triggering Event, unless the average of the sum of the Revolver Usage, Irish Loan Usage and UK Loan Usage (taken as a whole) over the immediately preceding 30 day period exceeds $75,000,000, as soon as possible, but in any event, within 45 days after the end of each fiscal quarter, and (ii) if clause (i) is not applicable, as soon as available, but in any event by no later than within 30 days (45 days in the earlier case of (ya fiscal month that is the end of one of the first 3 fiscal quarters in a fiscal year) five (5) days after the date on which Parent files its Form 10-Q with the SEC and (z) forty five (45) days following the last day of each of Parent’s first three (3) fiscal quarters end of each fiscal yearmonth during each of Borrower’s fiscal years,
(i) a company prepared consolidated balance sheet sheet, income statement, and income statement of cash flow covering the operations of Parent Borrower’s and its direct and indirect Subsidiaries Subsidiaries’ operations during such period and the year-to-date period ending thereon, with comparisons against the balance sheet for the immediately preceding fiscal year and income statement for the corresponding period during the immediately preceding fiscal year, (it being agreed that the furnishing of Parent’s quarterly report on Form 10-Q for each such fiscal quarter, as filed with the SEC, will satisfy Parent’s and Borrower’s obligations under this Section 6.2(a)(i) with respect to such fiscal quarter)period,
(ii) a Compliance Certificate certificate signed by the chief financial officer and/or chief accounting officer of Borrower certifying to the effect that:
(1A) the financial statements delivered hereunder have been prepared in accordance with GAAP (except for the lack of footnotes and being subject to year-end audit adjustments) and fairly present in all material respects the financial condition of Parent Borrower and its direct Subsidiaries,
(B) the representations and indirect Subsidiaries, warranties of Borrower contained in this Agreement and demonstrating the compliance by Parent other Loan Documents are true and correct in all material respects on a consolidated basis at and as of the end date of such quarter with all financial covenants required certificate, as though made on and as of such date (except to be tested hereunderthe extent that such representations and warranties relate solely to an earlier date), and
(2C) there does not exist any condition or event that constitutes a Default or Event of Default (or, to the extent of any non-compliance, describing such non-compliance as to which he or she may have knowledge and what action the applicable Obligated Party Borrower has taken, is taking, or proposes to take with respect thereto),
(be) as soon as available, but in any event by no later than the earlier of (y) five (5) days after the date on which Parent files its Form 10-K with the SEC and (z) ninety (90) days following the last day of each of Parent’s fiscal years, consolidated financial statements of Parent and its direct and indirect Subsidiaries for each such fiscal year, audited by independent certified public accountants acceptable to Lender in Lender’s Permitted Discretion and certified, without any qualifications (including any (A) “going concern” or like qualification or exception, or (B) qualification or exception as to the scope of such audit, by such accountants to have been prepared in accordance with GAAP) (it being agreed that the furnishing of Parent’s annual report on Form 10-K for each such fiscal year as filed with the SEC, will satisfy Parent’s and Borrower’s obligation under this Section 6.2(b) with respect to such fiscal year except with respect to the requirement that such financial statements be reported on without a “going concern” or like qualification or exception, or qualification arising out 7.3 of the scope of Loan Agreement hereby is amended by (i) deleting the audit), together with a certificate of such accountants addressed to Lender stating that such accountants do not have knowledge of the existence of any Default or Event of Default. Such annual financial statements shall be accompanied by a Compliance Certificate signed by the chief financial officer and/or chief accounting officer of Borrower certifying that:
(1) Parent is in compliance on a consolidated basis semi-colon at the end of such fiscal year with all financial covenants required to be tested hereunder,
subsection (2a) the financial statements delivered hereunder have been prepared thereof and inserting in accordance with GAAP lieu thereof a period, and fairly present in all material respects the financial condition of Parent and its direct and indirect Subsidiaries, and
(3ii) there does not exist any condition or event that constitutes a Default or Event of Default (or, to the extent of any non-compliance, describing such non-compliance as to which he or she may have knowledge and what action the applicable Obligated Party has taken, is taking, or proposes to take with respect thereto),
deleting subsection (c) [Intentionally Deleted],
(d) as soon as available, but in any event by no later than the earlier of (y) five (5) days after the date on which Parent files its Form 10-K with the SEC and (z) ninety (90) days following the last day of each of Parent’s fiscal years, copies of Projections for such fiscal year (including, for the avoidance of doubt, the 2016 Projections to be delivered on or before March 30, 2016), all as certified by the chief financial officer of Parent as being such officer’s good faith best estimate of the financial performance of Parent and its direct and indirect Subsidiaries during the period covered thereby,
(e) promptly, but in any event within five (5) Business Days after Borrower has knowledge of any event or condition that constitutes a Default or an Event of Default, notice thereof and a statement of inserting the curative action that the applicable Obligated Party proposes to take with respect thereto,
(f) promptly after the commencement following in lieu thereof, but in any event within five (5) Business Days after the service of process with respect thereto on any Obligated Party, notice of all actions, suits, or proceedings brought by or against such Obligated Party before any Governmental Authority which, if determined adversely to such Obligated Party, could reasonably be expected to result in a Material Adverse Change,
(g) promptly, but in any event within ten (10) Business Days after Borrower has knowledge thereof, notify Lender of any material negative changes to Borrower’s customer renewal rates, and
(h) upon the request of Lender, any other information reasonably requested relating to the financial condition of any Obligated Party.:
Appears in 1 contract
Samples: Loan Agreement (Palm Inc)
Financial Statements, Reports, Certificates. Deliver to Agent, with ------------------------------------------- copies to each Lender:
(a) as soon as available, but in any event by no later than within 30 days (45 days in the earlier case of (ya month that is the end of the first 3 fiscal quarters in a fiscal year) five (5) days after the date on which Parent files its Form 10-Q with the SEC and (z) forty five (45) days following the last day end of each month during each of Parent’s first three (3) Borrower's fiscal quarters of each fiscal yearyears,
(i) a company prepared consolidated balance sheet sheet, income statement, and income statement of cash flow covering the operations of Parent Borrower's and its direct and indirect Subsidiaries Subsidiaries' operations during such period and the year-to-date period ending thereon, with comparisons against the balance sheet for the immediately preceding fiscal year and income statement for the corresponding period during the immediately preceding fiscal year, (it being agreed that the furnishing of Parent’s quarterly report on Form 10-Q for each such fiscal quarter, as filed with the SEC, will satisfy Parent’s and Borrower’s obligations under this Section 6.2(a)(i) with respect to such fiscal quarter)period,
(ii) a Compliance Certificate certificate signed by the chief financial officer and/or chief accounting officer of Borrower certifying to the effect that:;
(1) A. the financial statements delivered hereunder have been prepared in accordance with GAAP (except for the lack of footnotes and being subject to year-end audit adjustments) and fairly present in all material respects the financial condition of Parent Borrower and its direct Subsidiaries,
B. the representations and indirect Subsidiaries, warranties of Borrower contained in this Agreement and demonstrating the compliance by Parent other Loan Documents are true and correct in all material respects on a consolidated basis at and as of the end date of such quarter with all financial covenants required certificate, as though made on and as of such date (except to be tested hereunderthe extent that such representations and warranties relate solely to an earlier date), and
(2) C. there does not exist any condition or event that constitutes a Default or Event of Default (or, to the extent of any non-compliance, describing such non-compliance as to which he or she may have knowledge and what action the applicable Obligated Party Borrower has taken, is taking, or proposes to take with respect thereto),, and
(iii) for each month that is the date on which a financial covenant in Section 7.20 is to be tested, a Compliance Certificate ------------ demonstrating, in reasonable detail, compliance at the end of such period with the applicable financial covenants contained in Section ------- 7.20, and ----
(b) as soon as available, but in any event by no later than the earlier of (y) five (5) within 90 days after the date on which Parent files its Form 10-K with the SEC and (z) ninety (90) days following the last day end of each of Parent’s Borrower's fiscal years, consolidated ,
(i) financial statements of Parent Borrower and its direct and indirect Subsidiaries for each such fiscal year, audited by independent certified public accountants reasonably acceptable to Lender in Lender’s Permitted Discretion Agent and certified, without any qualifications (including any (A) “going concern” or like qualification or exception, or (B) qualification or exception as to the scope of such auditqualifications, by such accountants to have been prepared in accordance with GAAP) GAAP (it being agreed that the furnishing of Parent’s annual report on Form 10-K for each such fiscal year as filed with the SEC, will satisfy Parent’s and Borrower’s obligation under this Section 6.2(b) with respect to such fiscal year except with respect to the requirement that such audited financial statements be reported on without to include a “going concern” or like qualification or exceptionbalance sheet, or qualification arising out income statement, and statement of the scope of the auditcash flow and, if prepared, such accountants' letter to management), together with ,
(ii) a certificate of such accountants addressed to Lender Agent and the Lenders stating that such accountants do not have knowledge of the existence of any Default or Event of DefaultDefault under Section 7.20. Such annual financial statements shall be accompanied by a Compliance Certificate signed by the chief financial officer and/or chief accounting officer of Borrower certifying that:
(1) Parent is in compliance on a consolidated basis at the end of such fiscal year with all financial covenants required to be tested hereunder,
(2) the financial statements delivered hereunder have been prepared in accordance with GAAP and fairly present in all material respects the financial condition of Parent and its direct and indirect Subsidiaries, and
(3) there does not exist any condition or event that constitutes a Default or Event of Default (or, to the extent of any non-compliance, describing such non-compliance as to which he or she may have knowledge and what action the applicable Obligated Party has taken, is taking, or proposes to take with respect thereto),------------
(c) [Intentionally Deleted],
(d) as soon as available, but in any event by no later than within 30 days prior to the earlier of (y) five (5) days after the date on which Parent files its Form 10-K with the SEC and (z) ninety (90) days following the last day start of each of Parent’s Borrower's fiscal years, copies of Borrower's Projections for such fiscal year and a business plan, in form and substance (includingincluding as to scope and underlying assumptions) satisfactory to Agent, in all respects, in its sole discretion, for the avoidance of doubtforthcoming 3 years, year by year, and for the 2016 Projections to be delivered on or before March 30forthcoming fiscal year, 2016)month by month, all as certified by the chief financial officer of Parent Borrower as being such officer’s 's good faith best estimate of the financial performance of Parent and its direct and indirect Subsidiaries Borrower during the period covered thereby,
(ed) promptly, but in any event within five (5) Business Days after Borrower has knowledge of any event or condition that constitutes a Default or an Event of Default, notice thereof if and a statement of the curative action that the applicable Obligated Party proposes to take with respect theretowhen filed by Borrower,
(fi) promptly after the commencement thereof10-Q quarterly reports, but in any event within five (5) Business Days after the service of process with respect thereto on any Obligated PartyForm 10-K annual reports, notice of all actions, suits, or proceedings brought by or against such Obligated Party before any Governmental Authority which, if determined adversely to such Obligated Party, could reasonably be expected to result in a Material Adverse Changeand Form 8-K current reports,
(gii) promptly, but in any event within ten (10) Business Days after Borrower has knowledge thereof, notify Lender of any material negative changes to Borrower’s customer renewal rates, and
(h) upon the request of Lender, any other information reasonably requested relating to filings made by Borrower with the financial condition of any Obligated Party.SEC,
Appears in 1 contract
Samples: Loan and Security Agreement (DSG International LTD)
Financial Statements, Reports, Certificates. Deliver to Agent, with copies to each Lender:
(a) as soon as available, but in any event by no later than within 30 days (45 days in the earlier case of (ya month that is the end of one of the first 3 fiscal quarters in a fiscal year) five (5) days after the date on which Parent files its Form 10-Q with the SEC and (z) forty five (45) days following the last day end of each month during each of Parent’s first three (3) Borrower's fiscal quarters of each fiscal yearyears,
(i) a company prepared consolidated balance sheet sheet, income statement, and income statement of cash flow covering the operations of Parent and its direct and indirect Subsidiaries the Borrower Parties during such period and the year-to-date period ending thereon, with comparisons against the balance sheet for the immediately preceding fiscal year and income statement for the corresponding period during the immediately preceding fiscal year, (it being agreed that the furnishing of Parent’s quarterly report on Form 10-Q for each such fiscal quarter, as filed with the SEC, will satisfy Parent’s and Borrower’s obligations under this Section 6.2(a)(i) with respect to such fiscal quarter)period,
(ii) a Compliance Certificate certificate signed by the chief financial officer and/or chief accounting officer of Borrower certifying to the effect that:
(1A) the financial statements delivered hereunder have been prepared in accordance with GAAP (except for the lack of footnotes and being subject to year-end audit adjustments) and fairly present in all material respects the financial condition of Parent the Borrower Parties;
(B) the representations and its direct warranties of the Loan Parties contained in this Agreement and indirect Subsidiariesthe other Loan Documents were true and correct on and as of the Closing Date (except to the extent that such representations and warranties relate solely to an earlier date, in which case such representations and demonstrating the compliance by Parent warranties were true and correct on a consolidated basis at the end and as of such quarter with all financial covenants required to be tested hereunder, earlier date); and
(2C) there does not exist any condition or event that constitutes a Default, Unmatured Default or Event of Default (or, to the extent of any non-compliance, describing such non-compliance as to which he or she may have knowledge and what action the applicable Obligated Party Borrower has taken, is taking, taking or proposes to take with respect thereto),, and
(iii) for each month that is the date on which the covenant in Section 7.18 is to be tested, a Compliance Certificate demonstrating, in reasonable detail, compliance at the end of such period with such covenant;
(b) as soon as available, but in any event by no later than the earlier of (y) five (5) within 90 days after the date on which Parent files its Form 10-K with the SEC and (z) ninety (90) days following the last day end of each of Parent’s Borrower's fiscal years, consolidated ,
(i) financial statements of Parent and its direct and indirect Subsidiaries the Borrower Parties for each such fiscal year, audited by independent certified public accountants reasonably acceptable to Lender in Lender’s Permitted Discretion Agent and certified, without any qualifications qualification (including any including, without limitation, (A) “any going concern” concern or like qualification or exception, exception or (B) any qualification or exception as to the scope of such audit), by such accountants to have been prepared in accordance with GAAP) GAAP (it being agreed that the furnishing of Parent’s annual report on Form 10-K for each such fiscal year as filed with the SEC, will satisfy Parent’s and Borrower’s obligation under this Section 6.2(b) with respect to such fiscal year except with respect to the requirement that such audited financial statements be reported on without to include a “going concern” or like qualification or exceptionbalance sheet, or qualification arising out income statement and statement of the scope of the auditcash flow and, if prepared, such accountants' letter to management), together with ,
(ii) a certificate of such accountants addressed to Lender Agent and the Lenders stating that such accountants do not have knowledge of the existence of any Default or Event of Default. Such annual financial statements shall be accompanied by a Compliance Certificate signed by the chief financial officer and/or chief accounting officer of Borrower certifying that:
(1) Parent is in compliance on a consolidated basis at the end of such fiscal year with all financial covenants required to be tested hereunder,
(2) the financial statements delivered hereunder have been prepared in accordance with GAAP and fairly present in all material respects the financial condition of Parent and its direct and indirect Subsidiaries, and
(3) there does not exist any condition or event that constitutes a Default or Event of Default (or, to the extent of any non-compliance, describing such non-compliance as to which he or she may have knowledge and what action the applicable Obligated Party has taken, is taking, or proposes to take with respect thereto),under Section 7.18;
(c) [Intentionally Deleted],
(d) as soon as available, but in any event by no later than within 30 days prior to the earlier of (y) five (5) days after the date on which Parent files its Form 10-K with the SEC and (z) ninety (90) days following the last day start of each of Parent’s Borrower's fiscal years, copies of Projections for such fiscal year Borrower's Projections, in form and substance (includingincluding as to scope and underlying assumptions) satisfactory to Agent, in its sole discretion, for the avoidance of doubtforthcoming 3 years, year by year, and for the 2016 Projections to be delivered on or before March 30forthcoming fiscal year, 2016)month by month, all as certified by the chief financial officer of Parent Borrower as being such officer’s 's good faith best estimate of the financial performance of Parent and its direct and indirect Subsidiaries Borrower during the period covered thereby;
(d) if and when filed by Borrower,
(i) Form 10-Q quarterly reports, Form 10-K annual reports and Form 8-K current reports,
(ii) any other filings made by Borrower with the SEC,
(iii) copies of Borrower's federal income tax returns, and any amendments thereto, filed with the Internal Revenue Service, and
(iv) any other information that is provided by Borrower to its shareholders or to the holders of the New Notes;
(e) promptlyif and when filed by any Loan Party and as requested by Agent, satisfactory evidence of payment of applicable excise taxes in each jurisdiction in which (i) such Loan Party conducts business or is required to pay any such excise tax, (ii) where such Loan Party's failure to pay any such applicable excise tax would result in a Lien on the properties or assets of such Loan Party or (iii) where such Loan Party's failure to pay any such applicable excise tax reasonably could be expected to result in a Material Adverse Change;
(f) promptly after sending or receipt thereof, copies of any material notice or other correspondence sent to, or received from, any Governmental Authority related to the Oil and Gas Properties of any Loan Party, including, without limitation, notice of any new plugging and abandonment or other performance or other assurance bond requirements related to such Oil and Gas Properties;
(g) promptly after the commencement thereof, but in any event within five (5) Business Days days after the service of process with respect thereto on any Loan Party, notice of all actions, suits or proceedings brought by or against any Loan Party before any Governmental Authority which, if determined adversely to such Loan Party, could result in a Material Adverse Change;
(h) as soon as Borrower has knowledge of any event or condition that constitutes a Default or an Unmatured Default or an Event of Default, notice thereof and a statement of the curative action that the applicable Obligated Party Borrower proposes to take with respect thereto,;
(fi) promptly after the commencement receipt or delivery thereof, but in any event within five (5) Business Days after the service of process with respect thereto on any Obligated Party, notice of all actions, suits, or proceedings brought by or against such Obligated Party before any Governmental Authority which, if determined adversely to such Obligated Party, could reasonably be expected to result in a Material Adverse Change,
(g) promptly, but in any event within ten (10) Business Days after Borrower has knowledge thereof, notify Lender copies of any material negative changes notice that any Borrower Party receives from or sends to Borrower’s customer renewal ratesany Person in connection with the Capital Restructuring Documents and (ii) at least 3 Business Days prior to the effective date thereof, any amendment, modification, waiver or other change to any of the Capital Restructuring Documents; and
(hj) upon the request of LenderAgent, any other information report reasonably requested relating to the financial condition of any Obligated Partyof the Borrower Parties. In addition to the financial statements referred to above, Borrower agrees to deliver financial statements prepared on both a consolidated and consolidating basis, and for it and its Restricted Subsidiaries and for Grey Wolf so long as Grey Wolf is a Subsidiary of Borrower, and agrees that no Subsidiary of Borrower will have a fiscal year different from that of Borrower. Borrower agrees that its independent certified public accountants are authorized to communicate with Agent and to release to Agent whatever financial information concerning Borrower that Agent reasonably may request. Borrower waives the right to assert a confidential relationship, if any, it may have with any accounting firm or service bureau in connection with any information requested by Agent pursuant to or in accordance with this Agreement, and agrees that Agent may contact directly any such accounting firm or service bureau in order to obtain such information.
Appears in 1 contract
Financial Statements, Reports, Certificates. Deliver to Agent, with copies to each Lender:
(a) as soon as available, but in any event by no later than within 30 days (or 45 days, in the earlier case of (ya month that is the end of one of Ultimate Parent’s fiscal quarters) five (5) days after the date on which Parent files its Form 10-Q with the SEC and (z) forty five (45) days following the last day of each of Parent’s first three (3) fiscal quarters end of each fiscal yearmonth during each of Ultimate Parent’s fiscal years,
(i) a company prepared consolidated balance sheet sheet, income statement, and income statement of cash flow covering the operations of Parent and its direct and indirect Subsidiaries during such period and the year-to-date period ending thereon, with comparisons against the balance sheet for the immediately preceding fiscal year and income statement for the corresponding period during the immediately preceding fiscal year, (it being agreed that the furnishing of Parent’s quarterly report on Form 10-Q for each such fiscal quarter, as filed with the SEC, will satisfy Ultimate Parent’s and Borrower’s obligations under this Section 6.2(a)(i) its Subsidiaries’ current period operations and year to date operations with respect a comparison to projections for such fiscal quarter)year and for prior year,
(ii) a Compliance Certificate signed by the chief financial officer and/or chief accounting officer of Borrower certifying to the effect that:
(1A) the financial statements delivered hereunder have been prepared in accordance with GAAP (except for the lack of footnotes and being subject to year-end audit adjustments) and fairly present in all material respects the financial condition of Ultimate Parent and its direct Subsidiaries,
(B) to his or her Knowledge, the representations and indirect Subsidiaries, warranties of each Credit Party contained in this Agreement and demonstrating the compliance by Parent other Loan Documents are true and correct in all material respects on a consolidated basis at and as of the end date of such quarter with all financial covenants required certificate, as though made on and as of such date (except to be tested hereunder, andthe extent that such representations and warranties relate solely to an earlier date and except to the extent that such representations and warranties have become untrue or incorrect solely as a result of changes permitted by this Agreement),
(2C) to his or her Knowledge, there does not exist any condition or event that constitutes a Default or Event of Default (or, to the extent of any non-compliance, describing such non-compliance as to which he or she may have knowledge and what action the applicable Obligated Party has Credit Parties have taken, is are taking, or proposes propose to take with respect thereto),
(D) as of the most recently ended Computation Period, the Borrower complies with the covenants contained in Section 7.16 (and attaching a schedule showing the calculation of such covenants for such Computation Period), and
(E) a statement that, to his or her Knowledge, each Credit Party and its Subsidiaries are not delinquent with respect to all rent, tax and insurance payments (other than any rent, tax or insurance payment subject to a Permitted Protest).
(b) as soon as available, but in any event by no later than the earlier of (y) five (5) within 90 days after the date on which Parent files its Form 10-K with the SEC and (z) ninety (90) days following the last day end of each of ParentBorrower’s fiscal years, consolidated financial statements of Ultimate Parent and its direct and indirect Subsidiaries for each such fiscal year, audited by independent certified public accountants reasonably acceptable to Lender in Lender’s Permitted Discretion Agent and certified, without any qualifications (including any (A) “going concern” or like other than a qualification or exception, or (B) qualification or exception as to going concern or other similar qualification solely as a result of the scope impending maturity of such auditthe Term Loans and/or the Revolver Debt), by such accountants to have been prepared in accordance with GAAP) GAAP (it being agreed that the furnishing of Parent’s annual report on Form 10-K for each such fiscal year as filed with the SEC, will satisfy Parent’s and Borrower’s obligation under this Section 6.2(b) with respect to such fiscal year except with respect to the requirement that such audited financial statements be reported on without to include a “going concern” or like qualification or exceptionbalance sheet, or qualification arising out income statement, and statement of the scope of the auditcash flow and, if prepared, such accountants’ letter to management), together with a certificate of such accountants addressed to Lender stating that such accountants do not have knowledge of the existence of any Default or Event of Default. Such annual financial statements shall be accompanied by a Compliance Certificate signed by the chief financial officer and/or chief accounting officer of Borrower certifying that:
(1) Parent is in compliance on a consolidated basis at the end of such fiscal year with all financial covenants required to be tested hereunder,
(2) the financial statements delivered hereunder have been prepared in accordance with GAAP and fairly present in all material respects the financial condition of Parent and its direct and indirect Subsidiaries, and
(3) there does not exist any condition or event that constitutes a Default or Event of Default (or, to the extent of any non-compliance, describing such non-compliance as to which he or she may have knowledge and what action the applicable Obligated Party has taken, is taking, or proposes to take with respect thereto),;
(c) [Intentionally Deleted],
(d) as soon as available, but in any event by no later than the earlier of (y) five (5) within 30 days after the date on which Parent files its Form 10-K with the SEC and (z) ninety (90) days following the last day start of each of ParentBorrower’s fiscal years, copies of Projections for such fiscal year Borrower’s Projections, in form and detail (includingincluding as to scope) reasonably satisfactory to Agent, in its Permitted Discretion, for the avoidance of doubtforthcoming 3 years, year by year, and for the 2016 Projections to be delivered on forthcoming fiscal year, month by month (or before March 30, 2016by such shorter periods as are reasonably requested by the Agent), all as certified by the chief financial officer of Parent Borrower and approved by the Board of Directors as being such officer’s good faith best estimate of the financial performance of Parent and its direct and indirect Subsidiaries Borrower during the period covered thereby, it being understood that such Projections as to future performance are not to be viewed as facts and that actual results during the periods covered by the Projections may differ from the projected results and no assurances can be given that the Projections will be realized,
(d) if and when filed by Borrower or Ultimate Parent,
(i) Form 10-Q quarterly reports, Form 10-K annual reports, and Form 8-K current reports,
(ii) any other filings made by Borrower or Ultimate Parent with the SEC, and
(iii) upon reasonable request of Agent, copies of Borrower’s federal income tax returns, and any amendments thereto, filed with the Internal Revenue Service,
(e) promptlyif and when filed by any Credit Party and as requested by Agent, but satisfactory evidence of payment, and extent of nonpayment (if applicable), by such Credit Party of applicable excise taxes in each jurisdiction in which (i) such Credit Party conducts business or is required to pay any event within five such excise tax (5ii) Business Days where such Credit Party’s failure to pay any such applicable excise tax would result in a Lien on the properties or assets of such Credit Party, or (iii) where such Credit Party’s failure to pay any such applicable excise tax reasonably could be expected to result in a Material Adverse Change,
(f) promptly after Borrower any Credit Party has knowledge of any event or condition that constitutes a Default or an Event of Default, notice thereof and a statement of the curative action that the applicable Obligated such Credit Party proposes to take with respect thereto,
(fg) promptly after the commencement thereof, but in any event within five (5) Business Days 5 days after the service of process with respect thereto on any Obligated Credit Party, notice of all actions, suits, or proceedings brought by or against such Obligated any Credit Party before any Governmental Authority which, if determined adversely to such Obligated Party, reasonably could reasonably be expected to result in a Material Adverse Change,
(gh) promptly, but promptly notify Agent in any event within ten (10) Business Days after Borrower has knowledge thereof, notify Lender writing of any material negative changes default under any of its leases (irrespective of whether such material default could reasonably be expected to Borrower’s customer renewal rates, andcause a Material Adverse Change),
(hi) upon the request of LenderAgent, any other information report reasonably requested relating to the financial condition of any Obligated PartyCredit Parties, provided that such reports shall not be overly burdensome for any Credit Party to prepare, and
(j) concurrently with delivery thereof to the Revolving Credit Agent (but only to the extent not duplicative of items required hereunder), delivery of the material notices, certificates (including borrowing base certificates), reports and other information required by Sections 6.2 and 6.3 of the Revolver Agreement. No Subsidiary of Ultimate Parent will have a fiscal year different from that of Ultimate Parent. Borrower agrees to cooperate with Agent to allow Agent to consult with its independent certified public accountants if Agent reasonably requests the right to do so (and Agent shall notify Borrower as to the timing of such consultations and permit Borrower to be present thereat or to otherwise participate therein) and that, in such connection, its independent certified public accountants are authorized to communicate with Agent and to release to Agent whatever financial information concerning any Credit Party that Agent reasonably may request.
Appears in 1 contract
Financial Statements, Reports, Certificates. Deliver to Agent, with copies to each Lender:
(a) as soon as available, but in any event by no later than within 30 days (45 days in the earlier case of (ya month that is the end of one of the first 3 fiscal quarters in a fiscal year) five (5) days after the date on which Parent files its Form 10-Q with the SEC and (z) forty five (45) days following the last day end of each month during each of Parent’s first three (3) 's fiscal quarters of each fiscal yearyears,
(ia) a company prepared consolidated balance sheet sheet, income statement, and income statement of cash flow covering Parent's, its Subsidiaries' and the Excluded Subsidiaries' operations of Parent and its direct and indirect Subsidiaries during such period and the year-to-date period ending thereon, with comparisons against the balance sheet for the immediately preceding fiscal year and income statement for the corresponding period during the immediately preceding fiscal year, (it being agreed that the furnishing of Parent’s quarterly report on Form 10-Q for each such fiscal quarter, as filed with the SEC, will satisfy Parent’s and Borrower’s obligations under this Section 6.2(a)(i) with respect to such fiscal quarter)period,
(iib) a Compliance Certificate certificate signed by the chief financial officer and/or and chief accounting executive officer of Borrower certifying Parent to the effect that:
(1A) the financial statements delivered hereunder have been prepared in accordance with GAAP (except for the lack of footnotes and being subject to year-end audit adjustments) and fairly present in all material respects the financial condition of Parent and Parent, its direct and indirect Subsidiaries, and demonstrating the compliance by Parent Excluded Subsidiaries,
(B) the representations and warranties of Borrowers contained in this Agreement and the other Loan Documents are true and correct in all material respects on a consolidated basis at and as of the end date of such quarter with all financial covenants required certificate, as though made on and as of such date (except to be tested hereunderthe extent that such representations and warranties relate solely to an earlier date), and
(2C) there does not exist any condition or event that constitutes a Default or Event of Default (or, to the extent of any non-compliance, describing such non-compliance as to which he or she may have knowledge and what action the applicable Obligated Party has Borrowers have taken, is are taking, or proposes propose to take with respect thereto),, and
(c) for each month that is the date on which a financial covenant in Section 7.20 is to be tested, a Compliance Certificate demonstrating, in reasonable detail, compliance at the end of such period with the applicable financial covenants contained in Section 7.20, and
(b) as soon as available, but in any event by no later than the earlier of (y) five (5) within 90 days after the date on which Parent files its Form 10-K with the SEC and (z) ninety (90) days following the last day end of each of Parent’s 's fiscal years, ,
(a) consolidated financial statements of Parent Parent, its Subsidiaries and its direct and indirect Subsidiaries the Excluded Subsidiaries, for each such fiscal year, audited by independent certified public accountants reasonably acceptable to Lender in Lender’s Permitted Discretion Agent and certified, without any qualifications (including any (A) “going concern” or like qualification or exception, or (B) qualification or exception as to the scope of such auditqualifications, by such accountants to have been prepared in accordance with GAAP) GAAP (it being agreed that the furnishing of Parent’s annual report on Form 10-K for each such fiscal year as filed with the SEC, will satisfy Parent’s and Borrower’s obligation under this Section 6.2(b) with respect to such fiscal year except with respect to the requirement that such audited financial statements be reported on without to include a “going concern” or like qualification or exceptionbalance sheet, or qualification arising out income statement, and statement of the scope of the auditcash flow and, if prepared, such accountants' letter to management), together with ,
(b) a certificate of such accountants addressed to Lender Agent and the Lenders stating that such accountants do not have knowledge of the existence of any Default or Event of Default. Such annual financial statements shall be accompanied by a Compliance Certificate signed by the chief financial officer and/or chief accounting officer of Borrower certifying that:
(1) Parent is in compliance on a consolidated basis at the end of such fiscal year with all financial covenants required to be tested hereunder,
(2) the financial statements delivered hereunder have been prepared in accordance with GAAP and fairly present in all material respects the financial condition of Parent and its direct and indirect Subsidiaries, and
(3) there does not exist any condition or event that constitutes a Default or Event of Default (or, to the extent of any non-compliance, describing such non-compliance as to which he or she may have knowledge and what action the applicable Obligated Party has taken, is taking, or proposes to take with respect thereto)under Section 7.20,
(c) [Intentionally Deleted],
(d) as soon as available, but in any event by no later than within 5 Business Days prior to the earlier of (y) five (5) days after the date on which Parent files its Form 10-K with the SEC and (z) ninety (90) days following the last day start of each of Parent’s 's fiscal years, ,
(a) copies of Projections for such fiscal year Parent's Projections, in form and substance (includingincluding as to scope and underlying assumptions) satisfactory to Agent, in its sole discretion, for the avoidance of doubtforthcoming 3 years, year by year, and for the 2016 Projections to be delivered on or before March 30forthcoming fiscal year, 2016)month by month, all as certified by the chief financial officer of Parent as being such officer’s 's good faith best estimate of the financial performance of Parent Parent, its respective Subsidiaries and its direct and indirect the Excluded Subsidiaries during the period covered thereby,
(d) if and when filed by Parent,
(a) Form 10-Q quarterly reports, Form 10-K annual reports, and Form 8-K current reports,
(b) any other reports made by Parent with the SEC,
(c) copies of Parent's federal income tax returns, and any amendments thereto, filed with the Internal Revenue Service, and
(d) any other information that is provided by Parent to its shareholders generally,
(e) promptlyif and when filed by any Borrower and as requested by Agent, but satisfactory evidence of payment of applicable excise taxes in each jurisdictions in which (i) any event within five Borrower conducts business or is required to pay any such excise tax, (5ii) Business Days after where any Borrower's failure to pay any such applicable excise tax would result in a Lien on the properties or assets of any Borrower, or (iii) where any Borrower's failure to pay any such applicable excise tax reasonably could be expected to result in a Material Adverse Change,
(f) as soon as a Borrower has knowledge of any event or condition that constitutes a Default or an Event of Default, notice thereof and a statement of the curative action that the applicable Obligated Party proposes Borrowers propose to take with respect thereto,
(f) promptly after the commencement thereof, but in any event within five (5) Business Days after the service of process with respect thereto on any Obligated Party, notice of all actions, suits, or proceedings brought by or against such Obligated Party before any Governmental Authority which, if determined adversely to such Obligated Party, could reasonably be expected to result in a Material Adverse Change,
(g) promptly, but in any event within ten (10) Business Days after Borrower has knowledge thereof, notify Lender of any material negative changes to Borrower’s customer renewal rates, and
(hg) upon the request of LenderAgent, any other information report reasonably requested relating to the financial condition of Borrowers. In addition to the financial statements referred to above, Borrowers agree to deliver financial statements for Borrowers and Parent prepared on both a consolidated and consolidating basis and that no Borrower, any Obligated PartySubsidiary of a Borrower, or any Excluded Subsidiary will have a fiscal year different from that of Parent. Borrowers agree that their independent certified public accountants are authorized to communicate with Agent and to release to Agent whatever financial information concerning Borrowers that Agent reasonably may request. Each Borrower agrees that Agent may contact directly any such accounting firm or service bureau in order to obtain such information.
Appears in 1 contract
Financial Statements, Reports, Certificates. Deliver to Agent, with copies to each Lender:
(a) as soon as available, but in any event by no later than within 30 days (45 days in the earlier case of (ya month that is the end of one of the first 3 fiscal quarters in a fiscal year) five (5) days after the date on which Parent files its Form 10-Q with the SEC and (z) forty five (45) days following the last day end of each month during each of Parent’s first three (3) Borrower's fiscal quarters of each fiscal yearyears,
(i) a company prepared consolidated balance sheet sheet, income statement, and income statement of cash flow covering the operations of Parent Borrower's and its direct and indirect Subsidiaries Subsidiaries' operations during such period and the year-to-date period ending thereon, with comparisons against the balance sheet for the immediately preceding fiscal year and income statement for the corresponding period during the immediately preceding fiscal year, (it being agreed that the furnishing of Parent’s quarterly report on Form 10-Q for each such fiscal quarter, as filed with the SEC, will satisfy Parent’s and Borrower’s obligations under this Section 6.2(a)(i) with respect to such fiscal quarter)period,
(ii) a Compliance Certificate certificate signed by the chief financial officer and/or chief accounting officer of Borrower certifying to the effect that:
(1A) the financial statements delivered hereunder have been prepared in accordance with GAAP (except for the lack of footnotes and being subject to year-end audit adjustments) and fairly present in all material respects the financial condition of Parent Borrower and its direct Subsidiaries,
(B) the representations and indirect Subsidiaries, warranties of Borrower contained in this Agreement and demonstrating the compliance by Parent other Loan Documents are true and correct in all material respects on a consolidated basis at and as of the end date of such quarter with all financial covenants required certificate, as though made on and as of such date (except to be tested hereunderthe extent that such representations and warranties relate solely to an earlier date), and
(2C) there does not exist any condition or event that constitutes a Default or Event of Default (or, to the extent of any non-compliance, describing such non-compliance as to which he or she may have knowledge and what action the applicable Obligated Party Borrower has taken, is are taking, or proposes propose to take with respect thereto),, and
(iii) for each month that is the date on which a financial covenant in Section 7.21 is to be tested, a Compliance Certificate demonstrating, in reasonable detail, compliance at the end of such period with the applicable financial covenants contained in Section 7.21, and
(b) as soon as available, but in any event by no later than the earlier of (y) five (5) within 90 days after the date on which Parent files its Form 10-K with the SEC and (z) ninety (90) days following the last day end of each of Parent’s Borrower's fiscal years, consolidated ,
(i) financial statements of Parent Borrower and its direct and indirect Subsidiaries for each such fiscal year, audited by independent certified public accountants reasonably acceptable to Lender in Lender’s Permitted Discretion Agent and certified, without any qualifications (including any (A) “going concern” or like qualification or exception, or (B) qualification or exception as to the scope of such auditqualifications, by such accountants to have been prepared in accordance with GAAP) GAAP (it being agreed that the furnishing of Parent’s annual report on Form 10-K for each such fiscal year as filed with the SEC, will satisfy Parent’s and Borrower’s obligation under this Section 6.2(b) with respect to such fiscal year except with respect to the requirement that such audited financial statements be reported on without to include a “going concern” or like qualification or exceptionbalance sheet, or qualification arising out income statement, and statement of the scope of the auditcash flow and, if prepared, such accountants' letter to management), together with ,
(ii) a certificate of such accountants addressed to Lender Agent and the Lenders stating that such accountants do not have knowledge of the existence of any Default or Event of Default. Such annual financial statements shall be accompanied by a Compliance Certificate signed by the chief financial officer and/or chief accounting officer of Borrower certifying that:
(1) Parent is in compliance on a consolidated basis at the end of such fiscal year with all financial covenants required to be tested hereunder,
(2) the financial statements delivered hereunder have been prepared in accordance with GAAP and fairly present in all material respects the financial condition of Parent and its direct and indirect Subsidiaries, and
(3) there does not exist any condition or event that constitutes a Default or Event of Default (or, to the extent of any non-compliance, describing such non-compliance as to which he or she may have knowledge and what action the applicable Obligated Party has taken, is taking, or proposes to take with respect thereto)under Section 7.21,
(c) [Intentionally Deleted],
(d) as soon as available, but in any event by no later than within 30 days prior to the earlier of (y) five (5) days after the date on which Parent files its Form 10-K with the SEC and (z) ninety (90) days following the last day start of each of Parent’s Borrower's fiscal years, ,
(i) copies of Projections for such fiscal year Borrower's Projections, in form and substance (includingincluding as to scope and underlying assumptions) satisfactory to Agent, in its sole discretion, for the avoidance of doubtforthcoming fiscal year, the 2016 Projections to be delivered on or before March 30a yearly and month by month basis, 2016), all as certified by the chief financial officer of Parent Borrower as being such officer’s 's good faith best estimate of the financial performance of Parent and its direct and indirect Subsidiaries Borrower during the period covered thereby,
(d) if and when filed by Parent,
(i) Form 10-Q quarterly reports, Form 10-K annual reports, and Form 8-K current reports,
(ii) any other filings made by Parent with the SEC,
(iii) copies of Parent's federal income tax returns, and any amendments thereto, filed with the Internal Revenue Service, and
(iv) any other information that is provided by Parent and Borrower to their respective shareholders generally,
(e) promptlyif and when filed by Borrower and as requested by Agent, but satisfactory evidence of payment of applicable excise taxes in each jurisdictions in which (i) Borrower conducts business or is required to pay any event within five such excise tax, (5ii) Business Days after where the failure to pay any such applicable excise tax would result in a Lien on the properties or assets of Borrower, or (iii) where Borrower's failure to pay any such applicable excise tax reasonably could be expected to result in a Material Adverse Change,
(f) as soon as Borrower has knowledge of any event or condition that constitutes a Default or an Event of Default, notice thereof and a statement of the curative action that the applicable Obligated Party Borrower proposes to take with respect thereto,
(f) promptly after the commencement thereof, but in any event within five (5) Business Days after the service of process with respect thereto on any Obligated Party, notice of all actions, suits, or proceedings brought by or against such Obligated Party before any Governmental Authority which, if determined adversely to such Obligated Party, could reasonably be expected to result in a Material Adverse Change,
(g) promptly, but in any event within ten (10) Business Days after Borrower has knowledge thereof, notify Lender of any material negative changes to Borrower’s customer renewal rates, and
(hg) upon the request of LenderAgent, any other information report reasonably requested relating to the financial condition of Borrower. In addition to the financial statements referred to above, Borrower agrees to deliver financial statements prepared on both a consolidated and consolidating basis and agrees that no Subsidiary of Borrower will have a fiscal year different from that of Parent. Borrower agrees that its independent certified public accountants are authorized (and Borrower shall so instruct its independent certified public accountant) to communicate with Agent and to release to Agent whatever financial information concerning Borrower Agent reasonably may request. Borrower waives the right to assert a confidential relationship, if any, it may have with any Obligated Partyaccounting firm or service bureau in connection with any information requested by Agent pursuant to or in accordance with this Agreement, and agrees that Agent may contact directly any such accounting firm or service bureau in order to obtain such information, provided, that, Agent agrees that no Event of Default shall be deemed to have occurred under this Agreement if any such accounting firm or service bureau refuses to provide any such financial information, it being understood that Borrower shall not thereby be relieved of its obligation to provide such financial information.
Appears in 1 contract
Financial Statements, Reports, Certificates. Deliver to Lender:: -------------------------------------------
(a) as soon as available, but in any event by no later than the earlier of (y) five (5) within 45 days after the date on which Parent files its Form 10-Q with the SEC and (z) forty five (45) days following the last day end of each fiscal quarter during each of Parent’s first three (3) 's fiscal quarters of each fiscal yearyears,
(i) a company prepared consolidated balance sheet sheet, income statement, and income statement of cash flow covering the operations of Parent Parent's and its direct and indirect Subsidiaries Subsidiaries' operations during such period and the year-to-date period ending thereon, with comparisons against the balance sheet for the immediately preceding fiscal year and income statement for the corresponding period during the immediately preceding fiscal year, (it being agreed that the furnishing of Parent’s quarterly report on Form 10-Q for each such fiscal quarter, as filed with the SEC, will satisfy Parent’s and Borrower’s obligations under this Section 6.2(a)(i) with respect to such fiscal quarter)period,
(ii) a Compliance Certificate certificate signed by the chief financial officer and/or chief accounting officer of Borrower certifying Parent to the effect that:
(1A) the financial statements delivered hereunder have been prepared in accordance with GAAP (except for the lack of footnotes and being subject to year-end audit adjustments) and fairly present in all material respects the financial condition of Parent and its direct Subsidiaries,
(B) the representations and indirect Subsidiaries, warranties of Parent and demonstrating its Subsidiaries contained in this Agreement and the compliance by Parent other Loan Documents are true and correct in all material respects on a consolidated basis at and as of the end date of such quarter with all financial covenants required certificate, as though made on and as of such date (except to be tested hereunderthe extent that such representations and warranties relate solely to an earlier date), and
(2C) there does not exist any condition or event that constitutes a Default or Event of Default (or, to the extent of any non-compliance, describing such non-compliance as to which he or she may have knowledge and what action the applicable Obligated Party Parent or Borrower has taken, is taking, or proposes to take with respect thereto),, and
(iii) for each quarter that is the date on which a financial covenant in Section 7.20 is to be tested, a Compliance Certificate ------------ demonstrating, in reasonable detail, compliance at the end of such period with the applicable financial covenants contained in Section 7.20, and ------------
(b) as soon as available, but in any event by no later than the earlier of (y) five (5) within 90 days after the date on which Parent files its Form 10-K with the SEC and (z) ninety (90) days following the last day end of each of Parent’s 's fiscal years, consolidated ,
(i) financial statements of Parent and its direct and indirect Subsidiaries for each such fiscal year, audited by independent certified public accountants reasonably acceptable to Lender in Lender’s Permitted Discretion and certified, without any qualifications (including any (A) “going concern” or like qualification or exception, or (B) qualification or exception as to the scope of such auditqualifications, by such accountants to have been prepared in accordance with GAAP) GAAP (it being agreed that the furnishing of Parent’s annual report on Form 10-K for each such fiscal year as filed with the SEC, will satisfy Parent’s and Borrower’s obligation under this Section 6.2(b) with respect to such fiscal year except with respect to the requirement that such audited financial statements be reported on without to include a “going concern” or like qualification or exceptionbalance sheet, or qualification arising out income statement, and statement of the scope of the auditcash flow and, if prepared, such accountants' letter to management), together with ,
(ii) a certificate of such accountants addressed to Lender stating that such accountants do not have knowledge of the existence of any Default or Event of Default. Such annual financial statements shall be accompanied Default under Section 7.20, ------------
(c) as soon as available, but in any event within 30 days prior to the start of each of Parent's fiscal years,
(i) copies of Parent's Projections, in form and substance (including as to scope and underlying assumptions) satisfactory to Lender, in its sole discretion, for the forthcoming 3 years, year by a Compliance Certificate signed year, and for the forthcoming fiscal year, quarter by quarter, certified by the chief financial officer and/or chief accounting officer of Borrower certifying that:
(1) Parent is in compliance on a consolidated basis at the end as being such officer's good faith best estimate of such fiscal year with all financial covenants required to be tested hereunder,
(2) the financial statements delivered hereunder have been prepared in accordance with GAAP and fairly present in all material respects the financial condition performance of Parent and its direct and indirect Subsidiaries, and
(3) there does not exist any condition or event that constitutes a Default or Event of Default (or, to Subsidiaries during the extent of any non-compliance, describing such non-compliance as to which he or she may have knowledge and what action the applicable Obligated Party has taken, is taking, or proposes to take with respect thereto),
(c) [Intentionally Deleted]period covered thereby,
(d) as soon as available, but in any event by no later than the earlier of (y) five (5) within 30 days after the date on which Parent files its Form 10-K with the SEC and (z) ninety (90) days following the last day end of each of the first and second months of any fiscal quarter of Parent’s fiscal years, copies of Projections for such fiscal year Parent prepared financial statements covering Parent's and its Subsidiaries' operations as Lender and Parent shall agree (including, for the avoidance of doubtsuch agreement to be a condition precedent to Lender's obligation to make any Further Advances), the 2016 Projections form and substance of such financial statements shall be satisfactory to be delivered on or before March 30, 2016), all as certified by the chief financial officer of Parent as being such officer’s good faith best estimate of the financial performance of Parent and its direct and indirect Subsidiaries during the period covered therebyLender,
(e) promptlyif and when filed by Parent,
(i) Form 10-Q quarterly reports, but Form 10-K annual reports, and Form 8-K current reports,
(ii) any other filings made by Parent with the SEC,
(iii) copies of Parent's federal income tax returns, and any amendments thereto, filed with the Internal Revenue Service, and
(iv) any other information that is provided by Parent to its shareholders generally,
(f) if and when filed by Parent or one of its Subsidiaries and as requested by Lender, satisfactory evidence of payment of applicable excise taxes in each jurisdictions in which (i) Parent or one of its Subsidiaries conducts business or is required to pay any event within five such excise tax, (5ii) Business Days after where the failure by Parent and its Subsidiaries to pay any such applicable excise tax would result in a Lien on the properties or assets of Parent or one of its Subsidiaries, or (iii) the failure by Parent and its Subsidiaries to pay any such applicable excise tax reasonably could be expected to result in a Material Adverse Change,
(g) as soon as Parent or Borrower has knowledge of any event or condition that constitutes a Default or an Event of Default, notice thereof and a statement of the curative action that the applicable Obligated Party Parent or Borrower proposes to take with respect thereto,
(f) promptly after the commencement thereof, but in any event within five (5) Business Days after the service of process with respect thereto on any Obligated Party, notice of all actions, suits, or proceedings brought by or against such Obligated Party before any Governmental Authority which, if determined adversely to such Obligated Party, could reasonably be expected to result in a Material Adverse Change,
(g) promptly, but in any event within ten (10) Business Days after Borrower has knowledge thereof, notify Lender of any material negative changes to Borrower’s customer renewal rates, and
(h) upon the request of Lender, any other information report reasonably requested relating to the financial condition of Parent and its Subsidiaries. In addition to the financial statements referred to above, Parent agrees to deliver financial statements prepared on both a consolidated and consolidating basis and that no Subsidiary of Parent will have a fiscal year different from that of Parent. Parent agrees that its independent certified public accountants are authorized to communicate with Lender and to release to Lender whatever financial information concerning Parent that Lender reasonably may request. Solely with respect to Lender and any Obligated Partyinformation that Lender may request, Parent waives the right to assert a confidential relationship, if any, it may have with any accounting firm or service bureau in connection with any information requested by Lender pursuant to or in accordance with this Agreement, and agrees that Lender may contact directly any such accounting firm or service bureau in order to obtain such information.
Appears in 1 contract
Financial Statements, Reports, Certificates. Deliver to Agent and Term Agent, with copies to each Lender:
(a) as soon as available, but in any event by no later than within 30 days (or 45 days, in the earlier case of (ya month that is the end of one of Ultimate Parent’s fiscal quarters) five (5) days after the date on which Parent files its Form 10-Q with the SEC and (z) forty five (45) days following the last day of each of Parent’s first three (3) fiscal quarters end of each fiscal yearmonth during each of Ultimate Parent’s fiscal years,
(i) a company prepared consolidated balance sheet sheet, income statement, and income statement of cash flow covering the operations of Parent and its direct and indirect Subsidiaries during such period and the year-to-date period ending thereon, with comparisons against the balance sheet for the immediately preceding fiscal year and income statement for the corresponding period during the immediately preceding fiscal year, (it being agreed that the furnishing of Parent’s quarterly report on Form 10-Q for each such fiscal quarter, as filed with the SEC, will satisfy Ultimate Parent’s and Borrower’s obligations under this Section 6.2(a)(i) its Subsidiaries’ current period operations and year to date operations with respect a comparison to projections for such fiscal quarter)year and for prior year,
(ii) a Compliance Certificate signed by the chief financial officer and/or chief accounting officer of Borrower certifying Ultimate Parent to the effect that:
(1A) the financial statements delivered hereunder have been prepared in accordance with GAAP (except for the lack of footnotes and being subject to year-end audit adjustments) and fairly present in all material respects the financial condition of Ultimate Parent and its direct Subsidiaries,
(B) to his or her Knowledge, the representations and indirect Subsidiarieswarranties of each Credit Party contained in this Agreement and the other Loan Documents are true and correct in all material respects (or, in the case of representations and warranties already qualified by “materiality”, “Material Adverse Change” or similar language, in all respects) on and as of the date of such certificate, as though made on and as of such date (except to the extent that such representations and warranties relate solely to an earlier date (in which case they are true, correct, and demonstrating the compliance by Parent on a consolidated basis at the end complete, in all material respects (or in all respects, as appropriate), as of such quarter with all financial covenants required earlier date) and except to be tested hereunder, andthe extent that such representations and warranties have become untrue or incorrect solely as a result of changes permitted by this Agreement),
(2C) to his or her Knowledge, there does not exist any condition or event that constitutes a Default or Event of Default (or, to the extent of any non-compliance, describing such non-compliance as to which he or she may have knowledge and what action the applicable Obligated Party has Credit Parties have taken, is are taking, or proposes propose to take with respect thereto),
(D) RESERVED, and
(E) a statement that, to his or her Knowledge, eachnone of the Credit Party and itsParties or their Subsidiaries are not delinquent with respect to allany (i) rent, tax and(ii) insurance, or (iii) federal or material state or other taxes or payments (other than any such rent, tax or insurance, tax or other payment that is the subject toof a Permitted Protest).
(b) as soon as available, but in any event by no later than the earlier of (y) five (5) within 90 days after the date on which Parent files its Form 10-K with the SEC and (z) ninety (90) days following the last day end of each of Ultimate Parent’s fiscal years, consolidated financial statements of Ultimate Parent and its direct and indirect Subsidiaries for each such fiscal year, audited by independent certified public accountants reasonably acceptable to Lender in Lender’s Permitted Discretion Agent and certified, without any qualifications (including any (A) “going concern” or like other than a qualification or exception, or (B) qualification or exception as to going concern or other similar qualification solely as a result of the scope impending maturity of such auditthe Term Loan Indebtedness and/or the Obligations), by such accountants to have been prepared in accordance with GAAP) GAAP (it being agreed that the furnishing of Parent’s annual report on Form 10-K for each such fiscal year as filed with the SEC, will satisfy Parent’s and Borrower’s obligation under this Section 6.2(b) with respect to such fiscal year except with respect to the requirement that such audited financial statements be reported on without to include a “going concern” or like qualification or exceptionbalance sheet, or qualification arising out income statement, and statement of the scope of the auditcash flow and, if prepared, such accountants’ letter to management), together with a certificate of such accountants addressed to Lender stating that such accountants do not have knowledge of the existence of any Default or Event of Default. Such annual financial statements shall be accompanied by a Compliance Certificate signed by the chief financial officer and/or chief accounting officer of Borrower certifying that:
(1) Parent is in compliance on a consolidated basis at the end of such fiscal year with all financial covenants required to be tested hereunder,
(2) the financial statements delivered hereunder have been prepared in accordance with GAAP and fairly present in all material respects the financial condition of Parent and its direct and indirect Subsidiaries, and
(3) there does not exist any condition or event that constitutes a Default or Event of Default (or, to the extent of any non-compliance, describing such non-compliance as to which he or she may have knowledge and what action the applicable Obligated Party has taken, is taking, or proposes to take with respect thereto),;
(c) [Intentionally Deleted],
(d) as soon as available, but in any event by no later than the earlier of (y) five (5) within 30 days after the date on which Parent files its Form 10-K with the SEC and (z) ninety (90) days following the last day start of each of ParentBorrower’s fiscal years, copies of Projections for such fiscal year Borrower’s Projections, in form and detail (includingincluding as to scope) reasonably satisfactory to Agent, in its Permitted Discretion, for the avoidance of doubtforthcoming 3 years, year by year, and for the 2016 Projections to be delivered on forthcoming fiscal year, month by month (or before March 30, 2016by such shorter periods as are reasonably requested by the Agent), all as certified by the chief financial officer of Parent Borrower and approved by the Board of Directors as being such officer’s good faith best estimate of the financial performance of Parent and its direct and indirect Subsidiaries Borrower during the period covered thereby, it being understood that such Projections as to future performance are not to be viewed as facts and that actual results during the periods covered by the Projections may differ from the projected results and no assurances can be given that the Projections will be realized,
(ed) promptly, but in any event within five (5) Business Days after if and when filed by Borrower has knowledge of any event or condition that constitutes a Default or an Event of Default, notice thereof and a statement of the curative action that the applicable Obligated Party proposes to take with respect theretoUltimate Parent,
(fi) promptly after the commencement thereofForm 10-Q quarterly reports, but in any event within five (5) Business Days after the service of process with respect thereto on any Obligated PartyForm 10-K annual reports, notice of all actions, suits, or proceedings brought by or against such Obligated Party before any Governmental Authority which, if determined adversely to such Obligated Party, could reasonably be expected to result in a Material Adverse Changeand Form 8-K current reports,
(gii) promptly, but in any event within ten (10) Business Days after other filings made by Borrower has knowledge thereof, notify Lender of any material negative changes to Borrower’s customer renewal ratesor Ultimate Parent with the SEC, and
(hiii) upon the reasonable request of LenderAgent, copies of Borrower’s federal income tax returns, and any other information reasonably requested relating to amendments thereto, filed with the financial condition of any Obligated Party.Internal Revenue Service,
Appears in 1 contract
Samples: Loan, Guaranty and Security Agreement (Gordmans Stores, Inc.)
Financial Statements, Reports, Certificates. Deliver to Agent, with sufficient copies for each Lender:
(a) as soon as available, but in any event by no later than the earlier of (y) five (5) within 45 days after the date on which Parent files its Form 10-Q with the SEC and (z) forty five (45) days following the last day end of each month during each of Parent’s first three (3) 's fiscal quarters of each fiscal yearyears,
(i) a company prepared consolidated and consolidating balance sheet sheet, income statement, and income statement of cash flow covering the operations of Parent Parent's and its direct and indirect Subsidiaries operations during such period and the year-to-date period ending thereon, with comparisons against the balance sheet for the immediately preceding fiscal year and income statement for the corresponding period during the immediately preceding fiscal year, (it being agreed that the furnishing of Parent’s quarterly report on Form 10-Q for each such fiscal quarter, as filed with the SEC, will satisfy Parent’s and Borrower’s obligations under this Section 6.2(a)(i) with respect to such fiscal quarter)period,
(ii) a Compliance Certificate certificate signed by the chief financial officer and/or chief accounting officer of Borrower certifying Parent to the effect that:
(1A) the financial statements delivered hereunder have been prepared in accordance with GAAP (except for the lack of footnotes and being subject to year-end audit adjustments) and present fairly present in all material respects the financial condition of Parent and its direct Subsidiaries,
(B) the representations and indirect Subsidiaries, warranties of the Obligors contained in this Agreement and demonstrating the compliance by Parent other Loan Documents are true and correct in all material respects on a consolidated basis at and as of the end date of such quarter with all financial covenants required certificate, as though made on and as of such date (except to be tested hereunder, andthe extent that such representations and warranties relate solely to an earlier date),
(2C) there does not exist any condition or event that constitutes a Default or Event of Default (or, to the extent of any non-compliance, describing such non-compliance as to which he or she may have knowledge and what action the applicable Obligated Party Obligor has taken, is taking, or proposes to take with respect thereto),, and
(iii) for each month that is the date on which a financial covenant in SECTION 7.19 is to be tested or for which a determination of Tangible Net Worth is required to redetermine the Applicable Margin, a Compliance Certificate demonstrating, in reasonable detail, compliance at the end of such period with the applicable financial covenants contained in SECTION 7.19, or the calculation of Tangible Net Worth, as the case may be, and
(b) as soon as available, but in any event by no later than the earlier of (y) five (5) within 90 days after the date on which Parent files its Form 10-K with the SEC and (z) ninety (90) days following the last day end of each of Parent’s 's fiscal years, ,
(i) consolidated and consolidating financial statements of Parent and its direct and indirect Subsidiaries for each such fiscal year, audited by independent certified public accountants reasonably acceptable to Lender in Lender’s Permitted Discretion Agent and certified, without any qualifications (including any (A) “going concern” or like qualification or exception, or (B) qualification or exception as to the scope of such auditqualifications, by such accountants to have been prepared in accordance with GAAP) GAAP (it being agreed that the furnishing of Parent’s annual report on Form 10-K for each such fiscal year as filed with the SEC, will satisfy Parent’s and Borrower’s obligation under this Section 6.2(b) with respect to such fiscal year except with respect to the requirement that such audited financial statements be reported on without to include a “going concern” or like qualification or exceptionbalance sheet, or qualification arising out income statement, and statement of the scope of the auditcash flow and, if prepared, such accountants' letter to management), together with ,
(ii) a certificate of such accountants addressed to Lender Agent and the Lenders stating that such accountants do not have knowledge of the existence of any Default or Event of Default. Such annual financial statements shall be accompanied by a Compliance Certificate signed by the chief financial officer and/or chief accounting officer of Borrower certifying that:
(1) Parent is in compliance on a consolidated basis at the end of such fiscal year with all financial covenants required to be tested hereunder,
(2) the financial statements delivered hereunder have been prepared in accordance with GAAP and fairly present in all material respects the financial condition of Parent and its direct and indirect Subsidiaries, and
(3) there does not exist any condition or event that constitutes a Default or Event of Default (or, to the extent of any non-compliance, describing such non-compliance as to which he or she may have knowledge and what action the applicable Obligated Party has taken, is taking, or proposes to take with respect thereto)under SECTION 7.19,
(c) [Intentionally Deleted],
(d) as soon as available, but in any event by no later than 30 days prior to the earlier beginning of each of its fiscal years, consolidated and consolidating financial projections for the immediately succeeding Fiscal Year for Parent and each of its Subsidiaries, prepared on a monthly basis, and otherwise in form and substance satisfactory to the Required Lenders, all such financial projections to be reasonable, to be prepared on a reasonable basis and in good faith, and to be based on assumptions believed by Borrower to be reasonable at the time made and from the best information then available to Borrower;
(yd) five if and when filed by Parent,
(5i) days after the date on which Parent files its 10-Q quarterly reports, Form 10-K annual reports, and Form 8-K current reports,
(ii) any other filings made by Parent with the SEC and SEC, and
(ziii) ninety (90) days following the last day of each of Parent’s fiscal years, copies of Projections for such fiscal year (including, for the avoidance of doubt, the 2016 Projections any other information that is provided by Parent to be delivered on or before March 30, 2016), all as certified by the chief financial officer of Parent as being such officer’s good faith best estimate of the financial performance of Parent and its direct and indirect Subsidiaries during the period covered therebyshareholders generally,
(e) promptlyif and when filed by Borrower and as requested by Agent, but satisfactory evidence of payment of applicable excise taxes in each jurisdiction in which (i) any event within five Obligor conducts business or is required to pay any such excise tax, (5ii) Business Days after Borrower has knowledge where an Obligor's failure to pay any such applicable excise tax would result in a Lien on the Assets of any event or condition that constitutes a Default or an Event of Default, notice thereof and a statement of the curative action that the applicable Obligated Party proposes to take with respect thereto,
(f) promptly after the commencement thereof, but in any event within five (5) Business Days after the service of process with respect thereto on any Obligated Party, notice of all actions, suitssuch Obligor, or proceedings brought by or against (iii) where such Obligated Party before Obligor's failure to pay any Governmental Authority which, if determined adversely to such Obligated Party, could reasonably be expected to result in applicable excise tax would constitute a Material Adverse Change,
(g) promptly, but in any event within ten (10) Business Days after Borrower has knowledge thereof, notify Lender of any material negative changes to Borrower’s customer renewal rates, and
(hf) upon the reasonable request of LenderAgent, any other information reasonably requested report relating to the financial condition of Borrower or any Obligated Partyof the other Obligors. In addition to the financial statements referred to above, Borrower agrees to deliver financial statements prepared on both a consolidated and consolidating basis and that no Obligor will have a fiscal year different from that of Borrower.
Appears in 1 contract
Samples: Loan and Security Agreement (3do Co)
Financial Statements, Reports, Certificates. Deliver to Lender:
(a) whether or not actually required by the SEC, so long as any Obligations are outstanding, within the time periods specified in the Commission's rules and regulations (or such shorter time period or may be specified herein) and at any other time that such information may actually be distributed to any other Person:
(i) all quarterly and annual financial information that would be required to be contained in a filing with the SEC on Forms 10-Q and 10-K if the Parent were required to file such forms, including a "Management's Discussion and Analysis of Financial Condition and Results of Operations" and, with respect to the annual information only, a report thereon by the Parent's certified independent accountants,
(ii) as soon as available, but in any event within 30 days (45 days in the case of a month that is the end of one of the first 3 fiscal quarters in a fiscal year) after the end of each month during each of Parent's fiscal years, a company prepared consolidated quarterly and annual financial information required by no later than subsection (i) which shall include, with respect to the earlier Casino Entities, a reasonably detailed presentation (including the financial condition and results of operations of -38- the Casino Entities) separate from the financial condition and results of operations of the Parent's other Subsidiaries,
(yiii) five (5) on a monthly basis, as soon as available, but in any event within 20 days after the date on which Parent files its Form 10-Q end of each month, monthly financial statements of the kind required in clauses (i) and (ii) above, with respect only to the Casino Entities, including balance sheets, statements of cash flows and operations and other applicable information indicating financial condition and results of operations of the Casino Entities for such month.
(iv) all current reports that would be required to be filed with the SEC and (z) forty five (45) days following on Form 8K if the last day of each of Parent’s first three (3) fiscal quarters of each fiscal yearParent were required to file such reports,
(iv) a consolidated balance sheet and income statement covering any information that would be required to be filed or disclosed pursuant to Rule 144A(d)(4) under the operations of Securities Act if the Parent and its direct and indirect Subsidiaries during were required to comply with such period and the year-to-date period ending thereonrule, with comparisons against the balance sheet for the immediately preceding fiscal year and income statement for the corresponding period during the immediately preceding fiscal year, and
(it being agreed vi) any other information that the furnishing of Parent’s quarterly report on Form 10-Q for each such fiscal quarter, as filed with the SEC, will satisfy Parent’s and Borrower’s obligations under this Section 6.2(a)(i) with respect Parent may from time to such fiscal quarter),time provide to its shareholders generally.
(iib) To accompany each financial statement or report delivered to the Lender pursuant to Section 6.2(a), a Compliance Certificate signed by the chief financial officer and/or chief accounting officer of Borrower certifying Parent to the effect that:
(1i) the financial statements delivered hereunder pursuant to Section 6.2(a) have been prepared in accordance with GAAP (except for the lack of footnotes and being subject to year-end audit adjustments) and fairly present in all material respects the financial condition of Parent and its direct Subsidiaries,
(ii) the representations and indirect Subsidiaries, warranties of Borrowers contained in this Agreement and demonstrating the compliance by Parent other Loan Documents are true and correct in all material respects on a consolidated basis at and as of the end date of such quarter with all financial covenants required certificate, as though made on and as of such date (except to be tested hereunder, andthe extent that such representations and warranties relate solely to an earlier date),
(2iii) to such officer's best knowledge, after due inquiry and investigation, there does not exist any condition or event that constitutes a Default or Event of Default (or, to the extent of any non-compliance, describing such non-compliance as to which he or she may have knowledge and what action the applicable Obligated Party has Borrowers have taken, is are taking, or propose to take with respect thereto), and
(iv) in connection with the year-end financial statements required to be delivered under this Section 6.2: (1) a review of the activities of the Borrowers during the preceding fiscal year has been made under the supervision of the signing Officers with a view to determining whether the Borrowers have kept, observed, performed and fulfilled their -39- Obligations under this Loan Agreement and the Loan Documents, and (2) no event has occurred and remains in existence by reason of which payments on account of the principal of or interest on the Advances is prohibited, or if such event has occurred, a description of the event and what action the Borrower is taking or proposes to take with respect thereto),.
(bc) as soon as available, but in any event by no later than the earlier of (y) five (5) within 90 days after the date on which Parent files its Form 10-K with the SEC and (z) ninety (90) days following the last day end of each of Parent’s 's fiscal years, consolidated so long as not contrary to the then current recommendations of the American Institute of Certified Public Accountants, the year-end financial statements delivered pursuant to Section 6.2(a) shall be accompanied by a written statement of Parent and its direct and indirect Subsidiaries for each such fiscal year, audited by the Borrowers' independent certified public accountants acceptable to Lender (who shall be a firm of established national reputation) that in Lender’s Permitted Discretion and certified, without any qualifications (including any (A) “going concern” or like qualification or exception, or (B) qualification or exception as to making the scope examination necessary for certification of such auditfinancial statements, by such accountants to have been prepared in accordance with GAAP(1) (it being agreed that the furnishing of Parent’s annual report on Form 10-K for each such fiscal year as filed with the SEC, will satisfy Parent’s and Borrower’s obligation under this Section 6.2(b) with respect to such fiscal year except with respect to the requirement that such financial statements be reported on without a “going concern” or like qualification or exception, or qualification arising out of the scope of the audit), together with a certificate of such accountants addressed to Lender stating that such accountants do not have knowledge of the existence of any Default or Event of Default. Such annual financial statements shall be accompanied by a Compliance Certificate signed by the chief financial officer and/or chief accounting officer of Borrower certifying that:
(1) Parent is in compliance on a consolidated basis at the end of such fiscal year with all financial covenants required to be tested hereunder,
Default under Section 7.16 and (2) nothing has come to their attention that would lead them to believe that any Borrower has violated any provisions of Section 6 or Section 7 hereof or, if any such violation has occurred, specifying the nature and period of existence thereof, it being understood that such accountants shall not be liable directly or indirectly to any Person for any failure to obtain knowledge of any such violation. Borrowers agree that their independent certified public accountants are authorized to communicate with Lender and to release to Lender whatever financial statements delivered hereunder information concerning Borrowers that Lender reasonably may request. Each Borrower waives the right to assert a confidential relationship, if any, it may have been prepared with any accounting firm or service bureau in connection with any information requested by Lender pursuant to or in accordance with GAAP this Agreement, and fairly present agree that Lender may contact directly any such accounting firm or service bureau in all material respects the financial condition of Parent and its direct and indirect Subsidiaries, and
(3) there does not exist any condition or event that constitutes a Default or Event of Default (or, order to the extent of any non-compliance, describing obtain such non-compliance as to which he or she may have knowledge and what action the applicable Obligated Party has taken, is taking, or proposes to take with respect thereto),
(c) [Intentionally Deleted],information.
(d) if and when filed by any Borrower and as soon as availablerequested by Lender, but (1) satisfactory evidence of payment of applicable excise taxes in each jurisdictions in which (i) any event by no later than Borrower conducts business or is required to pay any such excise tax, (ii) where any Borrower's failure to pay any such applicable excise tax would result in a Lien on the earlier properties or assets of any Borrower, or (yiii) five where any Borrower's failure to pay any such applicable excise tax reasonably could be expected to result in a Material Adverse Change, (52) copies of Borrowers' federal income tax returns, and any amendments thereto, filed with the Internal Revenue Service, and (3) within thirty days (30) after the date on which Parent files its Form 10-K with the SEC and (z) ninety (90) days following the last day end of each of Parent’s fiscal yearsmonth, copies of Projections a tax payment report summarizing the Borrowers' tax payments for such fiscal year (including, for the avoidance of doubt, the 2016 Projections to be delivered on or before March 30, 2016), all as certified by the chief financial officer of Parent as being such officer’s good faith best estimate of the financial performance of Parent and its direct and indirect Subsidiaries during the period covered thereby,that month.
(e) promptly, but in any event within five (5) Business Days after as soon as a Borrower has knowledge of any event or condition that constitutes a Default or an Event of Default, notice thereof and a statement of the curative action that the applicable Obligated Party proposes Borrowers propose to take with respect thereto,
(f) promptly as soon as practicable after receipt or concurrently with delivery to the commencement thereofIndenture Trustee, but in the Black Hawk Business Improvement District or other Person, as applicable, copies of all material written notices received or given by any Borrower pursuant to the Indenture or the Black Hawk Bonds, and, as soon as any Borrower has -40- knowledge of any matured or unmatured event within five (5) Business Days after the service of process default with respect thereto on any Obligated Partyto the Indenture or the Black Hawk Bonds, notice of all actions, suits, or proceedings brought by or against such Obligated Party before any Governmental Authority which, if determined adversely to such Obligated Party, could reasonably be expected to result in a Material Adverse Changeevent of default,
(g) promptlywithin the same time period specified by the Gaming Authorities (as defined in the Indenture as in effect on the date hereof) or under applicable Gaming Law, but in any event within ten (10) Business Days after Borrower has knowledge thereof, notify Lender copies of any material negative changes notice, report, statement, or certificate required to Borrower’s customer renewal rates, andbe delivered by any Borrower to the Gaming Authorities.
(h) To the extent not otherwise included and separately itemized in the financial reports to be provided above (as determined by Lender in its Permitted Discretion), statements of the operation of the Real Property Collateral (including a current rent roll (to the extent there are any leases in effect), quarterly operating statements, a cash flow report for such quarter and payments, a capital expense disbursement report, and a comparison of the budgeted income and expenses and the actual income and expenses for such month and year to date for the Real Property Collateral) as of the last day of each quarter, to be delivered within thirty (30) days after the end of each quarter, and yearly statements of the operation of the Real Property Collateral, including, one time each year upon Lender's request in its sole discretion, updated appraisals of the Real Property Collateral (specifically including the Appraisal Value), to be delivered within ninety (90) days after the end of each fiscal year; provided, however, that Lender may require updated appraisals more than once a year at any time upon the occurrence and during the continuance of an Event of Default. Upon request by Lender, Borrower shall provide the operating statement for the Real Property Collateral to Lender on a monthly basis.
(i) An annual budget for the Casino Entities and the Real Property Collateral for Lender's review and approval within thirty (30) days prior to the beginning of each calendar year, and quarterly updates comparing the budget with actual results on a quarterly and year to date basis.
(j) Within thirty (30) days prior to the beginning of each calendar year, copies of Parent's Projections, in form and substance (including as to scope and underlying assumptions) satisfactory to Lender, in its Permitted Discretion, for the forthcoming 3 years, year by year, and for the forthcoming fiscal year, month by month, including separate Projections for the Casino Entities.
(k) for each month that is the date on which a financial covenant in Section 7.16 is to be tested, a Compliance Certificate delivered to Lender concurrently with the delivery of the financial statements required pursuant to Sections 6.2(a) and (b), but in no case later than 20 days after the end of such period, demonstrating, in reasonable detail, compliance at the end of such period with the applicable financial covenants contained in Section 7.16.
(l) concurrently with the delivery of the monthly financial statements delivered pursuant to Section 6.2(a)(iii), a summary indicating EBITDA for the Casino Entities for such month, and including, for purposes of calculation of the Borrowing Base, EBITDA for the Casino Entities for the preceding twelve (12) month period having -41- ended on the last day of such month, accompanied by such supporting detail and documentation as may be requested by Lender.
(m) Upon the request of Lender, any other information report reasonably requested relating to the financial condition of any Obligated PartyBorrowers.
Appears in 1 contract
Financial Statements, Reports, Certificates. Deliver to the Administrative Agent, with copies to each Lender:
(a) as soon as available, but in any event by no later than the earlier of (y) five (5) within 45 days after the date on which Parent files its Form 10-Q with end of each of the SEC and (z) forty five (45) days following the last day of 11 Fiscal Periods during each of Parent’s first three (3) fiscal quarters of each fiscal yearFiscal Years,
(i) a company prepared consolidated balance sheet sheet, income statement, and income statement of cash flow covering the operations of Parent Parent’s and its direct and indirect Subsidiaries Subsidiaries’ operations during such period and period, in each case setting forth in comparative form the year-to-date period ending thereon, with comparisons against the balance sheet for the immediately preceding fiscal year and income statement figures for the corresponding period during in the immediately preceding fiscal year, (it being agreed that the furnishing of Parent’s quarterly report on Form 10-Q for each such fiscal quarter, as filed with the SEC, will satisfy Parent’s and Borrower’s obligations under this Section 6.2(a)(i) with respect to such fiscal quarter),prior Fiscal Year;
(ii) a Compliance Certificate certificate signed by the chief financial officer and/or chief accounting officer of Borrower certifying Parent to the effect that:
(1A) the financial statements delivered hereunder have been prepared in accordance with GAAP (except for the lack of footnotes and being subject to year-end audit adjustments) and fairly present in all material respects the financial condition of Parent and its direct Subsidiaries;
(B) the representations and indirect Subsidiaries, warranties of the Borrowers contained in this Agreement and demonstrating the compliance by Parent other Loan Documents are true and correct in all material respects on a consolidated basis at and as of the end date of such quarter with all financial covenants required certificate, as though made on and as of such date (except to be tested hereunder, the extent that such representations and warranties relate solely to an earlier date); and
(2C) there does not exist any condition or event that constitutes a Default or Event of Default (or, to the extent of any non-compliance, describing such non-compliance as to which he or she may have knowledge and what action the applicable Obligated Party has Borrowers have taken, is are taking, or proposes propose to take with respect thereto),.
(iii) a Compliance Certificate.
(b) As soon as available, but in any event within 90 days after the end of each of Parent’s Fiscal Years, consolidated financial statements of Parent and its Subsidiaries for each such Fiscal Year, audited by independent certified public accountants reasonably acceptable to the Administrative Agent and certified by such accountants to have been prepared in accordance with GAAP (such audited financial statements to include a balance sheet, income statement, and statement of cash flow and, a copy of any “final” management letter delivered to Parent, its board of directors or any committees thereof), together with a certificate signed by the chief financial officer of Parent certifying as to the matters set forth in Section 5.3(a)(ii)(A)-(C) and a Compliance Certificate;
(c) as soon as available, but in any event by no later than the earlier of (y) five (5) within 90 days after the date on which Parent files its Form 10-K with the SEC and (z) ninety (90) days following the last day end of each of Parent’s fiscal years, consolidated financial statements of Parent and its direct and indirect Subsidiaries for each such fiscal year, audited by independent certified public accountants acceptable to Lender in Lender’s Permitted Discretion and certified, without any qualifications (including any (A) “going concern” or like qualification or exception, or (B) qualification or exception as to the scope of such audit, by such accountants to have been prepared in accordance with GAAP) (it being agreed that the furnishing of Parent’s annual report on Form 10-K for each such fiscal year as filed with the SEC, will satisfy Parent’s and Borrower’s obligation under this Section 6.2(b) with respect to such fiscal year except with respect to the requirement that such financial statements be reported on without a “going concern” or like qualification or exception, or qualification arising out of the scope of the audit), together with a certificate of such accountants addressed to Lender stating that such accountants do not have knowledge of the existence of any Default or Event of Default. Such annual financial statements shall be accompanied by a Compliance Certificate signed by the chief financial officer and/or chief accounting officer of Borrower certifying that:
(1) Parent is in compliance on a consolidated basis at the end of such fiscal year with all financial covenants required to be tested hereunder,
(2) the financial statements delivered hereunder have been prepared in accordance with GAAP and fairly present in all material respects the financial condition of Parent and its direct and indirect Subsidiaries, and
(3) there does not exist any condition or event that constitutes a Default or Event of Default (or, to the extent of any non-compliance, describing such non-compliance as to which he or she may have knowledge and what action the applicable Obligated Party has taken, is taking, or proposes to take with respect thereto),
(c) [Intentionally Deleted],
(d) as soon as available, but in any event by no later than the earlier of (y) five (5) days after the date on which Parent files its Form 10-K with the SEC and (z) ninety (90) days following the last day of each of Parent’s fiscal yearsFiscal Years, copies of Projections for such fiscal year the Borrowers’ Projections, in form and substance (includingincluding as to scope and underlying assumptions) satisfactory to the Administrative Agent, in its sole discretion, for the avoidance of doubtforthcoming Fiscal Year, the 2016 Projections to be delivered on or before March 30a month by month basis, 2016), all as certified by the chief financial officer of Parent as being such officer’s good faith best reasonable estimate of the financial performance of Parent and its direct and indirect Subsidiaries during the period covered thereby, it being understood that such Projections as to future events are not to be viewed as facts and that actual results during the period or periods covered by any Projections may differ from the projected results and no assurance can be given that the Projections will be realized;
(d) if and when filed by any Borrower,
(i) Form 10-Q quarterly reports, Form 10-K annual reports, and Form 8-K current reports;
(ii) any other filings made by any Borrower with the SEC;
(iii) upon request by the Administrative Agent, in its Permitted Discretion, copies of the Borrowers’ federal income tax returns, and any amendments thereto, filed with the Internal Revenue Service; and
(iv) any other information that is provided by Parent to its shareholders generally; provided, that for purposes of this clause (d), any information to be delivered hereunder shall be deemed to have been delivered when posted on the Parent’s website or otherwise made available on the website of the SEC;
(e) promptly, but in any event within five (5) Business Days after as soon as a Borrower has knowledge of any event or condition that constitutes a Default or an Event of Default, notice thereof together with a reasonably detailed description thereof and a statement of the curative action that the applicable Obligated Party proposes Borrowers propose to take with respect thereto,;
(f) promptly after the commencement thereof, but in any event within five (5) 10 Business Days after the service of process with respect thereto on any Obligated PartyGroup Member, notice of all actions, suits, or proceedings brought by or against such Obligated Party any Group Member before any Governmental Authority which, if determined adversely to such Obligated PartyGroup Member, reasonably could reasonably be expected to result in a Material Adverse Change,Effect;
(g) promptly, but in any event within ten (10) Business Days after Borrower has knowledge thereof, notify Lender of any material negative changes to Borrower’s customer renewal rates, and
(h) upon the request of Lenderthe Administrative Agent in its Permitted Discretion, any other information report reasonably requested relating to the financial condition of any Obligated PartyGroup Member; provided, that such reports shall not be overly burdensome for any Borrower to prepare; and
(h) as part of the Compliance Certificate delivered pursuant to clause (a)(iii) above, each in form and substance satisfactory to the Administrative Agent, a certificate by the Responsible Officer of the Parent certifying that (i) the Corporate Chart attached thereto (or the last Corporate Chart delivered pursuant to this clause (h)) is correct and complete as of the date of such Compliance Certificate, (ii) the Loan Parties have delivered all documents (including an updated Perfection Certificate as to locations of Collateral) they are required to deliver pursuant to any Loan Document on or prior to the date of delivery of such Compliance Certificate and (iii) complete and correct copies of all documents modifying any term of any Governing Document of any Group Member or any Subsidiary or joint venture thereof on or prior to the date of delivery of such Compliance Certificate have been delivered to the Administrative Agent or are attached to such certificate. In addition to the financial statements referred to above, the Borrowers agree to deliver financial statements prepared on both a consolidated and consolidating basis; provided, that (a) only Parent’s consolidated financial statements shall be audited, (b) consolidating financial statements shall be prepared without footnotes, and (c) the Borrowers shall only be required to deliver balance sheets and income statements on a consolidating basis. Parent agrees to cooperate with the Administrative Agent to allow the Administrative Agent to consult with its independent certified public accountants if the Administrative Agent reasonably requests the right to do so (and the Administrative Agent shall notify Parent as to the timing of such consultation and permit Parent to be present thereat or to otherwise participate therein) and that, in such connection, their independent certified public accountants are authorized to communicate with the Administrative Agent and to release to the Administrative Agent whatever financial information concerning any Group Member that the Administrative Agent reasonably may request.
Appears in 1 contract
Financial Statements, Reports, Certificates. Deliver to Lender:
(a) as soon as available, but in any event by no later than within 30 days (45 days in the earlier case of (ya month that is the end of one of the first 3 fiscal quarters in a fiscal year) five (5) days after the date on which Parent files its Form 10-Q with the SEC and (z) forty five (45) days following the last day end of each month during each of Parent’s first three (3) Borrower's fiscal quarters of each fiscal yearyears,
(i) a company prepared consolidated balance sheet and income statement covering the operations of Parent Borrower's and its direct and indirect Subsidiaries Subsidiaries' operations during such period and the year-to-date period ending thereon, with comparisons against the balance sheet for the immediately preceding fiscal year and income statement for the corresponding period during the immediately preceding fiscal year, (it being agreed that the furnishing of Parent’s quarterly report on Form 10-Q for each such fiscal quarter, as filed with the SEC, will satisfy Parent’s and Borrower’s obligations under this Section 6.2(a)(i) with respect to such fiscal quarter)period,
(ii) a Compliance Certificate certificate signed by the chief financial officer and/or or chief accounting officer of Borrower certifying to the effect that:
(1A) the financial statements delivered hereunder have been prepared in accordance with GAAP (except for the lack of footnotes and being subject to year-end audit adjustments) and fairly present in all material respects the financial condition of Parent Borrower and its direct Subsidiaries,
(B) the representations and indirect Subsidiarieswarranties of Borrower contained in this Agreement and the other Loan Documents are true and correct in all material respects on and as of the date of such certificate, as though made on and as of such date (except to the extent that such representations and warranties relate solely to an earlier date), and demonstrating the compliance by Parent on a consolidated basis at the end of such quarter with all financial covenants required to be tested hereunder, and-56-
(2C) there does not exist any condition or event that constitutes a Default or Event of Default (or, to the extent of any non-compliance, describing such non-compliance as to which he or she may have knowledge and what action the applicable Obligated Party Borrower has taken, is taking, or proposes to take with respect thereto),, and
(iii) for each month that is the date on which a financial covenant in Section 7.20 is to be tested, a Compliance Certificate (A) demonstrating, in reasonable detail, compliance at the end of such period with the applicable financial covenants contained in Section 7.20, (B) setting forth a calculation of TTM EBITDA, (C) setting forth a detailed calculation of Recurring Maintenance Revenues for the prior month, (D) setting forth an updated list of Maintenance Contracts, (E) setting forth a detailed calculation of all Royalties paid by Borrower during the prior month and the balance of Royalties payable at the end of such month, (F) certifying that all obligations for the payment of Royalties that are due and payable have been paid, and (G) certifying that no material change in Borrower's and UK Obligor's billing practices has occurred, and
(iv) for each month that is the end of a fiscal quarter of Borrower, (A) a Principal Officers Certificate and (B) a company prepared consolidated statement of cash flows for Borrower and its Subsidiaries for such period, and
(b) as soon as available, but in any event by no later than the earlier of (y) five (5) within 90 days after the date on which Parent files its Form 10-K with the SEC and (z) ninety (90) days following the last day end of each of Parent’s Borrower's fiscal years, consolidated ,
(i) financial statements of Parent Borrower and its direct and indirect Subsidiaries for each such fiscal year, audited by independent certified public accountants reasonably acceptable to Lender in Lender’s Permitted Discretion and certified, without any qualifications (including any (A) “going concern” or like qualification or exception, or (B) qualification or exception as to the scope of such auditqualifications, by such accountants to have been prepared in accordance with GAAP) GAAP (it being agreed that the furnishing of Parent’s annual report on Form 10-K for each such fiscal year as filed with the SEC, will satisfy Parent’s and Borrower’s obligation under this Section 6.2(b) with respect to such fiscal year except with respect to the requirement that such audited financial statements be reported on without to include a “going concern” or like qualification or exceptionbalance sheet, or qualification arising out income statement, and statement of the scope of the auditcash flow and, if prepared, such accountants' letter to management), together with ,
(ii) a certificate of such accountants addressed to Lender stating that such accountants do not have knowledge of the existence of any Default or Event of Default. Such annual financial statements shall be accompanied by a Compliance Certificate signed by the chief financial officer and/or chief accounting officer of Borrower certifying that:
(1) Parent is in compliance on a consolidated basis at the end of such fiscal year with all financial covenants required to be tested hereunder,
(2) the financial statements delivered hereunder have been prepared in accordance with GAAP and fairly present in all material respects the financial condition of Parent and its direct and indirect SubsidiariesDefault under Section 7.20, and
(3iii) there does not exist any condition or event that constitutes a Default or Event an updated appraisal of Default (or, the Recurring Maintenance Revenues performed by an appraiser satisfactory to the extent of any non-compliance, describing such non-compliance as to which he or she may have knowledge and what action the applicable Obligated Party has taken, is taking, or proposes to take with respect thereto)Lender,
(c) [Intentionally Deleted],
(d) as soon as available, but in any event by no later than within 30 days prior to the earlier of (y) five (5) days after the date on which Parent files its Form 10-K with the SEC and (z) ninety (90) days following the last day start of each of Parent’s Borrower's fiscal years, ,
(i) copies of Projections for such fiscal year Borrower's Projections, in form and substance (includingincluding as to scope and underlying assumptions) satisfactory to Lender, in -57- its sole discretion, for the avoidance of doubtforthcoming 3 years, year by year, and for the 2016 Projections to be delivered on or before March 30forthcoming fiscal year, 2016)month by month, all as certified by the chief financial officer or chief accounting officer of Parent Borrower as being such officer’s 's good faith best estimate of the financial performance of Parent and its direct and indirect Subsidiaries Borrower during the period covered thereby,
(d) if and when filed by Borrower,
(i) Form 10-Q quarterly reports, Form 10-K annual reports, and Form 8-K current reports,
(ii) any other filings made by Borrower with the SEC,
(iii) copies of Borrower's federal income tax returns, and any amendments thereto, filed with the Internal Revenue Service, and
(iv) any other information that is provided by Borrower to its shareholders generally,
(e) promptlyas requested by Lender, but satisfactory evidence of payment of applicable excise taxes in each jurisdiction in which (i) Borrower conducts business or is required to pay any event within five such excise tax, (5ii) Business Days after where Borrower's failure to pay any such applicable excise tax would result in a Lien on the properties or assets of Borrower, or (iii) where Borrower's failure to pay any such applicable excise tax reasonably could be expected to result in a Material Adverse Change,
(f) as soon as Borrower has knowledge of any event or condition that constitutes a Default or an Event of Default, notice thereof and and, within 5 Business Days after such knowledge is obtained, a statement of the curative action that the applicable Obligated Party Borrower proposes to take with respect thereto,
(f) promptly after the commencement thereof, but in any event within five (5) Business Days after the service of process with respect thereto on any Obligated Party, notice of all actions, suits, or proceedings brought by or against such Obligated Party before any Governmental Authority which, if determined adversely to such Obligated Party, could reasonably be expected to result in a Material Adverse Change,
(g) promptly, but in any event within ten (10) Business Days after Borrower has knowledge thereof, notify Lender of any material negative changes to Borrower’s customer renewal rates, and
(hg) upon the request of Lender, any other information report reasonably requested relating to the financial condition of Borrower. In addition to the financial statements referred to above, Borrower agrees to deliver financial statements prepared on both a consolidated and consolidating basis and agrees that, unless a Foreign Subsidiary is required to have a fiscal year that is different than that of Borrower pursuant to applicable law, no Subsidiary of Borrower will have a fiscal year different from that of Borrower. Borrower agrees that, with Borrower's prior consent, Lender may contact directly any Obligated Partysuch accounting firm or service bureau in order to obtain such information.
Appears in 1 contract
Financial Statements, Reports, Certificates. Deliver to Agent, with copies to each Lender:
(a) as soon as available, but in any event by no later than within 45 days (60 days in the earlier case of (ya month that is the end of one of the first 3 fiscal quarters in a fiscal year) five (5) days after the date on which Parent files its Form 10-Q with the SEC and (z) forty five (45) days following the last day end of each month during each of Parent’s first three (3) fiscal quarters of each fiscal yearyears,
(i) a consolidated company prepared balance sheet and income statement statement, covering the operations of Parent and its direct and indirect Subsidiaries during such period period, on both a consolidated and consolidating basis for Parent, its Subsidiaries and the year-to-date period ending thereonDomestic Business Unit, with comparisons against the balance sheet for the immediately preceding fiscal year in form and income statement for the corresponding period during the immediately preceding fiscal year, (it being agreed that the furnishing of Parent’s quarterly report on Form 10-Q for each such fiscal quarter, as filed with the SEC, will satisfy Parent’s and Borrower’s obligations under this Section 6.2(a)(i) with respect substance reasonably satisfactory to such fiscal quarter)Agent,
(ii) a Compliance Certificate company prepared statement of cash flow, covering operations on a year to date basis, on a consolidated basis for Parent in form and substance reasonably satisfactory to Agent,
(iii) a certificate signed by the chief executive officer, president, chief financial officer and/or chief accounting officer officer, treasurer or controller of Administrative Borrower certifying to the effect that:
(1) A. the financial statements delivered hereunder have been prepared in accordance with GAAP (except for the lack of footnotes and being subject to year-end audit adjustments) and fairly present in all material respects the financial condition of Parent and its direct Subsidiaries,
B. the representations and indirect Subsidiaries, warranties of Borrowers contained in this Agreement and demonstrating the compliance by Parent other Loan Documents are true and correct in all material respects on a consolidated basis at and as of the end date of such quarter with all financial covenants required certificate, as though made on and as of such date (except to be tested hereunderthe extent that such representations and warranties relate solely to an earlier date), and
(2) C. there does not exist any condition or event that constitutes a Default or Event of Default (or, to the extent of any non-compliance, describing such non-compliance as to which he or she may have knowledge and what action the applicable Obligated Party has Borrowers have taken, is are taking, or proposes propose to take with respect thereto),, and
(iv) for each month that is the date on which a financial covenant in Section 7.20 is to be tested, a Compliance Certificate demonstrating, in reasonable detail, compliance at the end of such period with the applicable financial covenants contained in Section 7.20, and
(b) as soon as available, but in any event by no later than the earlier of (y) five (5) within 120 days after the date on which Parent files its Form 10-K with the SEC and (z) ninety (90) days following the last day end of each of Parent’s fiscal years, consolidated financial statements of Parent and its direct and indirect Subsidiaries for each such fiscal year, audited by independent certified public accountants reasonably acceptable to Lender in Lender’s Permitted Discretion Agent and certified, without any qualifications (including any (A) “going concern” or like qualification or exception, or (B) qualification or exception as to the scope of such auditqualifications, by such accountants to have been prepared in accordance with GAAP) GAAP (it being agreed that the furnishing of Parent’s annual report on Form 10-K for each such fiscal year as filed with the SEC, will satisfy Parent’s and Borrower’s obligation under this Section 6.2(b) with respect to such fiscal year except with respect to the requirement that such audited financial statements be reported on without to include a “going concern” or like qualification or exceptionbalance sheet, or qualification arising out income statement, and statement of the scope of the audit)cash flow and, together with a certificate of if prepared, such accountants addressed accountants’ letter to Lender stating that such accountants do not have knowledge of the existence of any Default or Event of Default. Such annual financial statements shall be accompanied by a Compliance Certificate signed by the chief financial officer and/or chief accounting officer of Borrower certifying that:
(1) Parent is in compliance on a consolidated basis at the end of such fiscal year with all financial covenants required to be tested hereunder,
(2) the financial statements delivered hereunder have been prepared in accordance with GAAP and fairly present in all material respects the financial condition of Parent and its direct and indirect Subsidiaries, and
(3) there does not exist any condition or event that constitutes a Default or Event of Default (or, to the extent of any non-compliance, describing such non-compliance as to which he or she may have knowledge and what action the applicable Obligated Party has taken, is taking, or proposes to take with respect theretomanagement),
(c) [Intentionally Deleted],
(d) as soon as available, but in any event by no later than at least 30 days prior to the earlier of (y) five (5) days after the date on which Parent files its Form 10-K with the SEC and (z) ninety (90) days following the last day start of each of Parent’s fiscal years, ,
(i) copies of Projections for such fiscal year Projections, in form and substance (includingincluding as to scope and underlying assumptions) satisfactory to Agent, in its sole discretion, for the avoidance of doubtforthcoming 3 years, year by year, and for the 2016 Projections to be delivered on or before March 30forthcoming fiscal year, 2016)month by month, all as for the Parent and the Domestic Business Unit, in each case certified by the chief executive officer, president, chief financial officer officer, treasurer or controller of Parent Administrative Borrower as being such officer’s good faith best estimate of the financial performance of Parent and its direct and indirect Subsidiaries during the period covered thereby,
(d) if and when filed by any Borrower, within five days of such filing,
(i) 10-Q quarterly reports, Form 10-K annual reports, and Form 8-K current reports,
(ii) any other filings made by any Borrower with the SEC,
(iii) copies of Borrowers’ federal income tax returns, and any amendments thereto, filed with the Internal Revenue Service, and
(iv) any other information that is provided by Parent to its shareholders generally,
(e) promptlyif and when filed by any Borrower and as requested by Agent, but in any event within five days of the later of the filing or such request, satisfactory evidence of payment of applicable excise taxes in each jurisdictions in which (5i) Business Days after any Borrower conducts business or is required to pay any such excise tax, (ii) where any Borrower’s failure to pay any such applicable excise tax would result in a Lien on the properties or assets of any Borrower, or (iii) where any Borrower’s failure to pay any such applicable excise tax reasonably could be expected to result in a Material Adverse Change,
(f) as soon as a Borrower has knowledge of any event or condition that constitutes a Default or an Event of Default, notice thereof and a statement of the curative action that the applicable Obligated Party proposes Borrowers propose to take with respect thereto,
(fg) promptly after the commencement upon any Borrower obtaining knowledge thereof, but in any event within five (5) Business Days after the service of process with respect thereto on any Obligated Party, notice of all actionsany price decrease (without consideration of price protection agreements) established by any Material Vendor, suits, or proceedings brought affecting the value of Eligible Inventory included in the Borrowing Base by or against such Obligated Party before any Governmental Authority which, if determined adversely to such Obligated Party, could reasonably be expected to result in a Material Adverse Changemore than 5%,
(gh) promptly, but in any event within ten (10) Business Days after Borrower has promptly upon the Parent obtaining knowledge or notice thereof, notify Lender notice of any material negative changes demand for payment pursuant to Borrowerthe Parent’s customer renewal ratesguarantee of trade payables and real property operating leases of any Foreign Subsidiary,
(i) promptly upon the Parent obtaining knowledge or notice thereof, notice of any default, event of default, or request for payment from Parent pursuant to any Permitted Foreign Subsidiary Credit Facility that Parent has guaranteed, and
(hj) upon the request of LenderAgent, any other information report reasonably requested relating to the financial condition of Borrowers. In addition to the financial statements referred to above, Borrowers agree to deliver financial statements prepared on both a consolidated and consolidating basis and that no Borrower, or any Obligated PartySubsidiary of a Borrower, will have a fiscal year different from that of Parent, other than certain Foreign Subsidiaries, but only to the extent such Foreign Subsidiary’s jurisdiction of organization requires a different fiscal year by law. Borrowers agree that their independent certified public accountants are authorized to communicate with Agent and to release to Agent whatever financial information concerning Borrowers that Agent reasonably may request, provided, however, that Administrative Borrower will be provided with reasonable notice of the time and place for such communication and have the opportunity to be present during such communication. Each Borrower waives the right to assert a confidential relationship, if any, it may have with any accounting firm or service bureau in connection with any information requested by Agent pursuant to or in accordance with this Agreement, and agree that Agent may contact directly any such accounting firm or service bureau in order to obtain such information.
Appears in 1 contract
Financial Statements, Reports, Certificates. Deliver to Lender(a) Borrower shall provide Bank with the following:
(ai) a Transaction Report (in the form attached hereto as Exhibit F) weekly and at the time of each request for an Advance; provided, however, within fifteen (15) days of the end of each month for which the outstanding principal balance of Advances under the Revolving Line was $0.00 throughout the entire month;
(ii) within fifteen (15) days after the end of each month,
(A) monthly accounts receivable agings, aged by invoice date,
(B) monthly accounts payable agings, aged by invoice date, and outstanding or held check registers, if any,
(C) monthly reconciliations of accounts receivable agings (aged by invoice date), transaction reports, and general ledger,
(D) monthly customer deposit schedule,
(E) monthly Deferred Revenue report;
(iii) as soon as available, but and in any event within forty-five (45) days after the end of each month, monthly unaudited financial statements;
(iv) within forty-five (45) days after the end of each month a monthly Compliance Certificate (in the form attached hereto as Exhibit E) signed by a Responsible Officer, certifying that as of the end of such month, Borrower was in full compliance with all of the terms and conditions of this Agreement, and setting forth calculations showing compliance with the financial covenants set forth in this Agreement and such other information as Bank shall reasonably request, including, without limitation, a statement that at the end of such month there were no later than held checks;
(v) [omitted];
(vi) within forty-five (45) days prior to the earlier end of each fiscal year of Borrower, (yA) annual operating budgets (including income statements, balance sheets and cash flow statements, by month) for the upcoming fiscal year of Borrower, and (B) annual financial projections for the following fiscal year (on a quarterly basis) as approved by Borrower’s board of directors, together with any related business forecasts used in the preparation of such annual financial projections; and
(vii) as soon as available, and in any event within 180 days following the end of Borrower's fiscal year, annual financial statements certified by, and with an unqualified opinion of, independent certified public accountants acceptable to Bank.
(b) At all times that Borrower is subject to the reporting requirements under the Securities Exchange Act of 1934, as amended, within five (5) days after the date on which Parent files its Form 10-Q with the SEC and (z) forty five (45) days following the last day of each of Parent’s first three (3) fiscal quarters of each fiscal year,
(i) a consolidated balance sheet and income statement covering the operations of Parent and its direct and indirect Subsidiaries during such period and the year-to-date period ending thereonfiling, with comparisons against the balance sheet for the immediately preceding fiscal year and income statement for the corresponding period during the immediately preceding fiscal year, (it being agreed that the furnishing of Parent’s quarterly report all reports on Form 10-K, 10-Q for each such fiscal quarter, as and 8-K filed with the SEC, will satisfy Parent’s Securities and Exchange Commission or a link thereto on Borrower’s obligations under this Section 6.2(a)(i) with respect to such fiscal quarter),
(ii) a Compliance Certificate signed by or another website on the chief financial officer and/or chief accounting officer of Borrower certifying that:
(1) the financial statements delivered hereunder have been prepared in accordance with GAAP (except for the lack of footnotes and being subject to year-end audit adjustments) and fairly present in all material respects the financial condition of Parent and its direct and indirect Subsidiaries, and demonstrating the compliance by Parent on a consolidated basis at the end of such quarter with all financial covenants required to be tested hereunder, and
(2) there does not exist any condition or event that constitutes a Default or Event of Default (or, to the extent of any non-compliance, describing such non-compliance as to which he or she may have knowledge and what action the applicable Obligated Party has taken, is taking, or proposes to take with respect thereto),
(b) as soon as available, but in any event by no later than the earlier of (y) five (5) days after the date on which Parent files its Form 10-K with the SEC and (z) ninety (90) days following the last day of each of Parent’s fiscal years, consolidated financial statements of Parent and its direct and indirect Subsidiaries for each such fiscal year, audited by independent certified public accountants acceptable to Lender in Lender’s Permitted Discretion and certified, without any qualifications (including any (A) “going concern” or like qualification or exception, or (B) qualification or exception as to the scope of such audit, by such accountants to have been prepared in accordance with GAAP) (it being agreed that the furnishing of Parent’s annual report on Form 10-K for each such fiscal year as filed with the SEC, will satisfy Parent’s and Borrower’s obligation under this Section 6.2(b) with respect to such fiscal year except with respect to the requirement that such financial statements be reported on without a “going concern” or like qualification or exception, or qualification arising out of the scope of the audit), together with a certificate of such accountants addressed to Lender stating that such accountants do not have knowledge of the existence of any Default or Event of Default. Such annual financial statements shall be accompanied by a Compliance Certificate signed by the chief financial officer and/or chief accounting officer of Borrower certifying that:
(1) Parent is in compliance on a consolidated basis at the end of such fiscal year with all financial covenants required to be tested hereunder,
(2) the financial statements delivered hereunder have been prepared in accordance with GAAP and fairly present in all material respects the financial condition of Parent and its direct and indirect Subsidiaries, and
(3) there does not exist any condition or event that constitutes a Default or Event of Default (or, to the extent of any non-compliance, describing such non-compliance as to which he or she may have knowledge and what action the applicable Obligated Party has taken, is taking, or proposes to take with respect thereto),Internet.
(c) [Intentionally Deleted],
(d) as soon as available, but in any event by no later than the earlier Prompt written notice of (yi) five (5) days after any material change in the date on which Parent files its Form 10-K with the SEC and (z) ninety (90) days following the last day of each of Parent’s fiscal years, copies of Projections for such fiscal year (including, for the avoidance of doubt, the 2016 Projections to be delivered on or before March 30, 2016), all as certified by the chief financial officer of Parent as being such officer’s good faith best estimate composition of the financial performance Intellectual Property, (ii) the registration of Parent and its direct and indirect Subsidiaries during the period covered thereby,
any Copyright, including any subsequent ownership right of Borrower in or to any Copyright, Patent or Trademark not previously disclosed to Bank, or (eiii) promptly, but in any event within five (5) Business Days after Borrower has Borrower’s knowledge of any an event or condition that constitutes a Default or an Event of Default, notice thereof and a statement materially adversely affects the value of the curative action that the applicable Obligated Party proposes to take with respect thereto,
(f) promptly after the commencement thereof, but in any event within five (5) Business Days after the service of process with respect thereto on any Obligated Party, notice of all actions, suits, or proceedings brought by or against such Obligated Party before any Governmental Authority which, if determined adversely to such Obligated Party, could reasonably be expected to result in a Material Adverse Change,
(g) promptly, but in any event within ten (10) Business Days after Borrower has knowledge thereof, notify Lender of any material negative changes to Borrower’s customer renewal rates, and
(h) upon the request of Lender, any other information reasonably requested relating to the financial condition of any Obligated PartyIntellectual Property.
Appears in 1 contract
Samples: Loan and Security Agreement (DecisionPoint Systems, Inc.)
Financial Statements, Reports, Certificates. Deliver to the Agent, with copies to each Lender:
(ai) as soon as available, but in any event by no later than the earlier of (y) five (5) days after the date on which Parent files its Form 10within forty-Q with the SEC and (z) forty five (45) days following after the last day end of each month during each of ParentGroup’s first three (3) fiscal quarters of each fiscal year,Fiscal Years:
(iA) a company prepared consolidated balance sheet sheet, income statement, and income statement of cash flow covering the operations of Parent Group’s and its direct and indirect Subsidiaries during such period and the year-to-date period ending thereon, with comparisons against the balance sheet for the immediately preceding fiscal year and income statement for the corresponding period Subsidiaries’ operations during the immediately preceding fiscal year, (it being agreed that the furnishing of Parent’s quarterly report on Form 10-Q for each such fiscal quarter, as filed with the SEC, will satisfy Parent’s and Borrower’s obligations under this Section 6.2(a)(i) with respect to such fiscal quarter),previous month;
(iiB) a Compliance Certificate certificate signed by the chief financial officer and/or chief accounting officer of Borrower certifying Group to the effect that:
(1) the financial statements delivered hereunder have been prepared in accordance with GAAP (except for the lack of footnotes and being subject to year-end audit adjustments) and fairly present in all material respects the financial condition of Parent Group and its direct and indirect Subsidiaries, and demonstrating the compliance by Parent on a consolidated basis at the end of such quarter with all financial covenants required to be tested hereunder, and
(2) there does not exist any condition or event that constitutes a Default or Event of Default (or, to the extent of any non-compliance, describing such non-compliance as to which he or she may have knowledge and what action the applicable Obligated Party has taken, is taking, or proposes to take with respect thereto),
(b) as soon as available, but in any event by no later than the earlier of (y) five (5) days after the date on which Parent files its Form 10-K with the SEC and (z) ninety (90) days following the last day of each of Parent’s fiscal years, consolidated financial statements of Parent and its direct and indirect Subsidiaries for each such fiscal year, audited by independent certified public accountants acceptable to Lender in Lender’s Permitted Discretion and certified, without any qualifications (including any (A) “going concern” or like qualification or exception, or (B) qualification or exception as to the scope of such audit, by such accountants to have been prepared in accordance with GAAP) (it being agreed that the furnishing of Parent’s annual report on Form 10-K for each such fiscal year as filed with the SEC, will satisfy Parent’s and Borrower’s obligation under this Section 6.2(b) with respect to such fiscal year except with respect to the requirement that such financial statements be reported on without a “going concern” or like qualification or exception, or qualification arising out of the scope of the audit), together with a certificate of such accountants addressed to Lender stating that such accountants do not have knowledge of the existence of any Default or Event of Default. Such annual financial statements shall be accompanied by a Compliance Certificate signed by the chief financial officer and/or chief accounting officer of Borrower certifying that:
(1) Parent is in compliance on a consolidated basis at the end of such fiscal year with all financial covenants required to be tested hereunder,
(2) the financial statements delivered hereunder have been prepared representations and warranties of the Borrowers contained in accordance with GAAP this Agreement and fairly present the other Loan Documents are true and correct in all material respects on and as of the financial condition date of Parent such certificate, as though made on and its direct as of such date (except to the extent that any such representations and indirect Subsidiarieswarranties expressly relate solely to an earlier date, in which case such representations and warranties were true and correct in all material respects on such earlier date), and
(3) there does not exist any condition or event that constitutes a Default or Event of Default (or, to the extent of any non-compliance, describing such non-compliance as to which he or she may have knowledge and what action the applicable Obligated Party has Borrowers have taken, is are taking, or proposes propose to take with respect thereto),;
(c) [Intentionally Deleted],
(dii) as soon as available, but in any event by no later than the earlier of (y) five (5) days after the date on which Parent files its Form 10-K with the SEC and (z) within ninety (90) days following after the last day end of each of ParentGroup’s fiscal years:
(A) financial statements of Group and its Subsidiaries for each such fiscal year, audited by independent certified public accountants reasonably acceptable to Agent and certified, without any qualifications, by such accountants to have been prepared in accordance with GAAP (such audited financial statements to include a balance sheet, income statement, and statement of cash flow and, if prepared, such accountants’ letter to management);
(iii) as soon as available, but in any event within thirty (30) days prior to the start of each of Group’s fiscal years, copies of Projections for such fiscal year the Borrowers’ business plan, in form and substance (includingincluding as to scope and underlying assumptions) satisfactory to the Agent, in its Permitted Discretion, for the avoidance of doubtforthcoming year, the 2016 Projections to be delivered on or before March 30month by month, 2016), all as certified by the chief financial officer of Parent Group as being such officer’s good faith best estimate of the financial performance of Parent Group and its direct and indirect Subsidiaries during the period covered therebythereby (it being understood that (A) such information will be prepared by Group in good faith based upon assumptions believed to be reasonable at the time and based upon the best information then reasonably available to Group, and (B) Agent may in its Permitted Discretion, but shall not be under any obligation to, revise financial covenants set forth in Section 7.02 as a result of its review of such business plans and/or create or expand Reserves).
(iv) if and when filed by any Loan Party:
(A) Form 10-Q quarterly reports, Form 10-K annual reports, and Form 8-K current reports,
(eB) promptly, but in any event within five (5) Business Days after Borrower has knowledge of other filings made by any event or condition that constitutes a Default or an Event of Default, notice thereof and a statement of Loan Party with the curative action that the applicable Obligated Party proposes to take with respect theretoSEC,
(fC) promptly after copies of the commencement thereoffederal income tax returns of each Borrower, but and any amendments thereto, filed with the Internal Revenue Service, and
(D) any other written information that is provided by Group to the holders of its Capital Stock (as such) generally;
(v) if and when filed by any Borrower and as requested by Agent, evidence of payment satisfactory to the Agent (in its Permitted Discretion) of applicable excise taxes in each jurisdiction in (A) which any event within five Borrower conducts business or is required to pay any such excise tax, (5B) Business Days after where any Borrower’s failure to pay any such applicable excise tax would result in a Lien on the service properties or assets of process with respect thereto on any Obligated Party, notice of all actions, suitsBorrower, or proceedings brought by (C) where any Borrower’s failure to pay any such applicable excise tax, either individually or against such Obligated Party before any Governmental Authority which, if determined adversely to such Obligated Partyin the aggregate, could reasonably be expected to result in a Material Adverse Change,Effect;
(gvi) promptlyno less than two times a week, but a report on the Borrowers’ Eligible Credit Card Accounts, in form and substance reasonably satisfactory to the Agent;
(vii) promptly after submission to any Government Authority unless prohibited by applicable law, all documents and information furnished to such Government Authority in connection with any investigation of any Loan Party other than routine inquiries by such Governmental Authority;
(viii) as soon as possible, and in any event within three days after the occurrence of an Event of Default or Default or the occurrence of any event or development that could reasonably be expected to have a Material Adverse Effect, the written statement of an Authorized Officer setting forth the details of such Event of Default, Default, other event or Material Adverse Effect and the action which Group and its Subsidiaries propose to take with respect thereto;
(ix) (A) as soon as possible and in any event (1) within ten (10) days after any Loan Party or any ERISA Affiliate thereof knows or has reason to know that any Termination Event described in clause (i) of the definition of Termination Event with respect to any Employee Plan has occurred, (2) within ten (10) days after any Borrower or any ERISA Affiliate thereof knows or has reason to know that any other Termination Event with respect to any Employee Plan has occurred, or (3) within ten (10) days after any Loan Party or any ERISA Affiliate thereof knows or has reason to know that an accumulated funding deficiency has been incurred or an application has been made to the Secretary of the Treasury for a waiver or modification of the minimum funding standard (including installment payments) or an extension of any amortization period under Section 412 of the Internal Revenue Code with respect to an Employee Plan, a statement of an Authorized Officer setting forth the details of such occurrence and the action, if any, which such Loan Party or such ERISA Affiliate proposes to take with respect thereto, (B) promptly and in any event within three days after receipt thereof by any Loan Party or any ERISA Affiliate thereof from the PBGC, copies of each notice received by any Loan Party or any ERISA Affiliate thereof of the PBGC’s intention to terminate any Plan or to have a trustee appointed to administer any Plan, (C) promptly and in any event within ten (10) Business Days days after Borrower the filing thereof with the Internal Revenue Service if requested by the Agent, copies of each Schedule B (Actuarial Information) to the annual report (Form 5500 Series) with respect to each Employee Plan and Multiemployer Plan, (D) promptly and in any event within ten (10) days after any Loan Party or any ERISA Affiliate thereof knows or has reason to know that a required installment within the meaning of Section 412 of the Internal Revenue Code has not been made when due with respect to an Employee Plan, (E) promptly and in any event within three days after receipt thereof by any Loan Party or any ERISA Affiliate thereof from a sponsor of a Multiemployer Plan or from the PBGC, a copy of each notice received by any Loan Party or any ERISA Affiliate thereof concerning the imposition or amount of withdrawal liability under Section 4202 of ERISA or indicating that such Multiemployer Plan may enter reorganization status under Section 4241 of ERISA, and (F) promptly and in any event within ten (10) days after any Loan Party or any ERISA Affiliate thereof send notice of a plant closing or mass layoff (as defined in WARN) to employees, copies of each such notice sent by such Loan Party or such ERISA Affiliate thereof;
(x) promptly after the commencement thereof but in any event not later than 5 days after service of process with respect thereto on, or the obtaining of knowledge thereof by, any Loan Party, notice of each action, suit or proceeding before any court or other Governmental Authority or other regulatory body or any arbitrator which, if adversely determined, could reasonably be expected to have a Material Adverse Effect;
(xi) [Reserved].
(xii) promptly after the sending or filing thereof, notify Lender copies of all statements, reports and other information Group or any material negative changes other Loan Party sends to Borrower’s customer renewal ratesany holders of its Indebtedness or its securities or files with the SEC or any national (domestic or foreign) securities exchange, provided that the Loan Party may redact confidential information contained in any such statement, report or other information if it provides a summary of the nature of the information redacted to the Agent;
(xiii) promptly upon receipt thereof, copies of all financial reports including, without limitation, management letters), if any, submitted to any Loan Party by its auditors in connection with any annual or interim audit of the books thereof; and
(hxiv) promptly upon the request of Lenderrequest, any such other information concerning the condition or operations, financial or otherwise, of any Loan Party as the Agent may from time to time may reasonably requested relating request. In addition to the financial condition statements referred to in clauses (i) and (ii) above, the Borrowers agree to deliver financial statements prepared on both a consolidated and consolidating basis. The Borrowers agree that, upon prior notice if no Default or Event of Default exists and without any Obligated Partynotice if any Default or Event of Default exists, their independent certified public accountants are authorized to communicate with the Agent and to release to the Agent whatever financial information concerning the Borrowers that the Agent reasonably may request. Each Borrower waives the right to assert a confidential relationship, if any, it may have with any accounting firm or service bureau in connection with any information requested by the Agent pursuant to or in accordance with this Agreement, and agrees that the Agent may contact directly any such accounting firm or service bureau in order to obtain such information.
Appears in 1 contract
Financial Statements, Reports, Certificates. Deliver to Agent, with copies to each Lender:
(a) as soon as available, but in any event by no later than the earlier of (y) five (5) within 45 days after the date on which Parent files its Form 10-Q with the SEC and (z) forty five (45) days following the last day end of each of the first 11 Fiscal Periods during each of Parent’s first three (3) fiscal quarters of each fiscal year's Fiscal Years,
(i) a company prepared consolidated balance sheet sheet, income statement, and income statement of cash flow covering the operations of Parent Parent's and its direct and indirect Subsidiaries Subsidiaries' operations during such period and the year-to-date period ending thereon, with comparisons against the balance sheet for the immediately preceding fiscal year and income statement for the corresponding period during the immediately preceding fiscal year, (it being agreed that the furnishing of Parent’s quarterly report on Form 10-Q for each such fiscal quarter, as filed with the SEC, will satisfy Parent’s and Borrower’s obligations under this Section 6.2(a)(i) with respect to such fiscal quarter)period,
(ii) a Compliance Certificate certificate signed by the chief financial officer and/or chief accounting officer of Borrower certifying Parent to the effect that:
(1) A. the financial statements delivered hereunder have been prepared in accordance with GAAP (except for the lack of footnotes and being subject to year-end audit adjustments) and fairly present in all material respects the financial condition of Parent and its direct and indirect Subsidiaries, 90
B. the representations and demonstrating warranties of Borrowers contained in this Agreement and the compliance by Parent other Loan Documents are true and correct in all material respects on a consolidated basis at and as of the end date of such quarter with all financial covenants required certificate, as though made on and as of such date (except to be tested hereunderthe extent that such representations and warranties relate solely to an earlier date), and
(2) C. there does not exist any condition or event that constitutes a Default or Event of Default (or, to the extent of any non-compliance, describing such non-compliance as to which he or she may have knowledge and what action the applicable Obligated Party has Borrowers have taken, is are taking, or proposes propose to take with respect thereto), and
(iii) for each month that is the date on which a financial covenant in Section 7.21 is to be tested, a Compliance Certificate demonstrating, in reasonable detail, compliance at the end of such period with the financial covenant contained in Section 7.21,
(b) As soon as available, but in any event within 90 days after the end of each of Parent's Fiscal Years, consolidated financial statements of Parent and its Subsidiaries for each such Fiscal Year, audited by independent certified public accountants reasonably acceptable to Agent and certified by such accountants to have been prepared in accordance with GAAP (such audited financial statements to include a balance sheet, income statement, and statement of cash flow and, if prepared, such accountants' letter to management),
(c) as soon as available, but in any event by no later than the earlier of (y) five (5) within 90 days after the date on which Parent files its Form 10-K with the SEC and (z) ninety (90) days following the last day end of each of Parent’s fiscal years, consolidated financial statements of Parent and its direct and indirect Subsidiaries for each such fiscal year, audited by independent certified public accountants acceptable to Lender in Lender’s Permitted Discretion and certified, without any qualifications (including any (A) “going concern” or like qualification or exception, or (B) qualification or exception as to the scope of such audit, by such accountants to have been prepared in accordance with GAAP) (it being agreed that the furnishing of Parent’s annual report on Form 10-K for each such fiscal year as filed with the SEC, will satisfy Parent’s and Borrower’s obligation under this Section 6.2(b) with respect to such fiscal year except with respect to the requirement that such financial statements be reported on without a “going concern” or like qualification or exception, or qualification arising out of the scope of the audit), together with a certificate of such accountants addressed to Lender stating that such accountants do not have knowledge of the existence of any Default or Event of Default. Such annual financial statements shall be accompanied by a Compliance Certificate signed by the chief financial officer and/or chief accounting officer of Borrower certifying that:
(1) Parent is in compliance on a consolidated basis at the end of such fiscal year with all financial covenants required to be tested hereunder,
(2) the financial statements delivered hereunder have been prepared in accordance with GAAP and fairly present in all material respects the financial condition of Parent and its direct and indirect Subsidiaries, and
(3) there does not exist any condition or event that constitutes a Default or Event of Default (or, to the extent of any non-compliance, describing such non-compliance as to which he or she may have knowledge and what action the applicable Obligated Party has taken, is taking, or proposes to take with respect thereto),
(c) [Intentionally Deleted],
(d) as soon as available, but in any event by no later than the earlier of (y) five (5) days after the date on which Parent files its Form 10-K with the SEC and (z) ninety (90) days following the last day of each of Parent’s fiscal years's Fiscal Years, copies of Projections for such fiscal year Borrowers' Projections, in form and substance (includingincluding as to scope and underlying assumptions) satisfactory to Agent, in its sole discretion, for the avoidance of doubtforthcoming Fiscal Year, the 2016 Projections to be delivered on or before March 30a month by month basis, 2016), all as certified by the chief financial officer of Parent as being such officer’s 's good faith best reasonable estimate of the financial performance of Parent and its direct and indirect Subsidiaries during the period covered thereby, it being understood that such Projections as to future events are not to be viewed as facts and that actual results during the period or periods covered by any Projections may differ from the projected results and no assurance can be given that the Projections will be realized,
(d) if and when filed by any Borrower,
(i) Form 10-Q quarterly reports, Form 10-K annual reports, and Form 8-K current reports,
(ii) any other filings made by any Borrower with the SEC,
(iii) upon request by Agent, in its Permitted Discretion, copies of Borrowers' federal income tax returns, and any amendments thereto, filed with the Internal Revenue Service, and 91
(iv) any other information that is provided by Parent to its shareholders generally, (provided, that for purposes of this clause (d), any information to be delivered hereunder shall be deemed to have been delivered when posted on the Parent's website or otherwise made available on the website of the SEC),
(e) promptly, but in any event within five (5) Business Days after as soon as a Borrower has knowledge of any event or condition that constitutes a Default or an Event of Default, notice thereof together with a reasonably detailed description thereof and a statement of the curative action that the applicable Obligated Party proposes Borrowers propose to take with respect thereto,
(f) promptly after the commencement thereof, but in any event within five (5) 10 Business Days after the service of process with respect thereto on any Obligated PartyBorrower or any Subsidiary of a Borrower, notice of all actions, suits, or proceedings brought by or against such Obligated Party any Borrower or any Subsidiary of a Borrower before any Governmental Authority which, if determined adversely to such Obligated PartyBorrower or such Subsidiary, reasonably could reasonably be expected to result in a Material Adverse Change,
(g) promptly, but in any event within ten (10) Business Days after Borrower has knowledge thereof, notify Lender of any material negative changes to Borrower’s customer renewal rates, and
(hg) upon the request of LenderAgent in its Permitted Discretion, any other information report reasonably requested relating to the financial condition of Borrowers or their Subsidiaries, provided that such reports shall not be overly burdensome for any Obligated PartyBorrower to prepare. In addition to the financial statements referred to above, Borrowers agree to deliver financial statements prepared on both a consolidated and consolidating basis, provided that (a) only Parent's consolidated financial statements shall be audited, (b) consolidating financial statements shall be prepared without footnotes, and (c) Borrowers shall only be required to deliver balance sheets and income statements on a consolidating basis. Parent agrees to cooperate with Agent to allow Agent to consult with its independent certified public accountants if Agent reasonably requests the right to do so (and Agent shall notify Parent as to the timing of such consultation and permit Parent to be present thereat or to otherwise participate therein) and that, in such connection, their independent certified public accountants are authorized to communicate with Agent and to release to Agent whatever financial information concerning Borrowers or their Subsidiaries that Agent reasonably may request.
Appears in 1 contract
Financial Statements, Reports, Certificates. Deliver to Agent, with copies to each Lender:
(a) as soon as available, but in any event by no later than within 30 days (45 days in the earlier case of (ya month that is the end of one of the first 3 fiscal quarters in a fiscal year) five (5) days after the date on which Parent files its Form 10-Q with the SEC and (z) forty five (45) days following the last day end of each month during each of Parent’s first three (3) 's fiscal quarters of each fiscal yearyears,
(iA) a company prepared consolidated balance sheet sheet, income statement, and income statement of cash flow covering the operations of Parent Parent's and its direct and indirect Subsidiaries Subsidiaries' operations during such period period, and the year-to-date period ending thereon, with comparisons against the balance sheet for the immediately preceding fiscal year and (B) a company prepared income statement for the corresponding period each retail convenience store owned by a Loan Party during the immediately preceding fiscal year, (it being agreed that the furnishing of Parent’s quarterly report on Form 10-Q for each such fiscal quarter, as filed with the SEC, will satisfy Parent’s and Borrower’s obligations under this Section 6.2(a)(i) with respect to such fiscal quarter)period,
(ii) a Compliance Certificate certificate signed by the chief financial officer and/or chief accounting officer of Borrower certifying Parent to the effect that:
(1A) the financial statements delivered hereunder have been prepared in accordance with GAAP (except for the lack of footnotes and being subject to year-end audit adjustments) ), or as otherwise shall be acceptable to Agent in its Permitted Discretion, and fairly present in all material respects the financial condition of Parent and its direct Subsidiaries,
(B) the representations and indirect Subsidiaries, warranties of Borrowers contained in this Agreement and demonstrating the compliance by Parent other Loan Documents are true and correct in all material respects on a consolidated basis at and as of the end date of such quarter with all financial covenants required certificate, as though made on and as of such date (except to be tested hereunderthe extent that such representations and warranties relate solely to an earlier date), and
(2C) there does not exist any condition or event that constitutes a Default or Event of Default (or, to the extent of any non-compliance, describing such non-compliance as to which he or she may have knowledge and what action the applicable Obligated Party each Borrower has taken, is taking, or proposes to take with respect thereto),, and
(iii) for each month that is the date on which a financial covenant in SECTION 7.20 is to be tested, a Compliance Certificate demonstrating, in reasonable detail, compliance at the end of such period with the applicable financial covenants contained in SECTION 7.20, and
(b) as soon as available, but in any event by no later than the earlier of (y) five (5) within 90 days after the date on which Parent files its Form 10-K with the SEC and (z) ninety (90) days following the last day end of each of Parent’s Borrower's fiscal years, consolidated ,
(i) financial statements of Parent and its direct and indirect Subsidiaries for each such fiscal year, audited by independent certified public accountants reasonably acceptable to Lender in Lender’s Permitted Discretion Agent and certified, without any qualifications (including any (A) “going concern” or like qualification or exception, or (B) qualification or exception as to the scope of such auditother than a going-concern qualification), by such accountants to have been prepared in accordance with GAAP) GAAP (it being agreed that the furnishing of Parent’s annual report on Form 10-K for each such fiscal year as filed with the SEC, will satisfy Parent’s and Borrower’s obligation under this Section 6.2(b) with respect to such fiscal year except with respect to the requirement that such audited financial statements be reported on without to include a “going concern” or like qualification or exceptionbalance sheet, or qualification arising out income statement, and statement of the scope of the auditcash flow and, if prepared, such accountants' letter to management), together with ,
(ii) a certificate of such accountants addressed to Lender Agent and the Lenders stating that such accountants do not have knowledge of the existence of any Default or Event of Default. Such annual financial statements shall be accompanied by a Compliance Certificate signed by the chief financial officer and/or chief accounting officer of Borrower certifying that:
(1) Parent is in compliance on a consolidated basis at the end of such fiscal year with all financial covenants required to be tested hereunder,
(2) the financial statements delivered hereunder have been prepared in accordance with GAAP and fairly present in all material respects the financial condition of Parent and its direct and indirect Subsidiaries, and
(3) there does not exist any condition or event that constitutes a Default or Event of Default (or, to the extent of any non-compliance, describing such non-compliance as to which he or she may have knowledge and what action the applicable Obligated Party has taken, is taking, or proposes to take with respect thereto)under SECTION 7.20,
(c) [Intentionally Deleted],
(d) as soon as available, but in any event by no later than within 30 days prior to the earlier of (y) five (5) days after the date on which Parent files its Form 10-K with the SEC and (z) ninety (90) days following the last day start of each of Parent’s 's fiscal years, ,
(i) copies of Projections for such fiscal year Borrowers' Projections, in form and substance (includingincluding as to scope and underlying assumptions) reasonably satisfactory to Agent, in its Permitted Discretion, for the avoidance of doubtforthcoming fiscal year, the 2016 Projections to be delivered on or before March 30month by month, 2016), all as certified by the chief financial officer of Parent as being such officer’s 's good faith best estimate of the financial performance of Parent and its direct and indirect Subsidiaries Borrowers during the period covered thereby,
(d) if and when filed by any Borrower,
(i) Form 10-Q quarterly reports, Form 10-K annual reports, and Form 8-K current reports,
(ii) any other filings made by any Borrower with the SEC,
(iii) copies of each Borrower's federal income tax returns, and any amendments thereto, filed with the Internal Revenue Service, and
(iv) any other information that is provided by any Borrower to its shareholders generally,
(e) promptlyif and when filed by each Loan Party and as requested by Agent, but reasonably satisfactory evidence of payment of applicable excise taxes in each jurisdictions in which (i) each Loan Party conducts business or is required to pay any event within five such excise tax, (5ii) Business Days after where each Loan Party's failure to pay any such applicable excise tax would result in a Lien on the properties or assets of each Loan Party, or (iii) where each Loan Party's failure to pay any such applicable excise tax reasonably could be expected to result in a Material Adverse Change,
(f) as soon as any Borrower has knowledge of any event or condition that constitutes a Default or an Event of Default, notice thereof and a statement of the curative action that the applicable Obligated Party proposes Borrowers propose to take with respect thereto,
(fg) promptly after submission to any Government Authority, (i) all material documents and information furnished to such Government Authority and (ii) a copy of the cover letter and a summary of all documents and information furnished to such Governmental Authority in connection with any investigation of any Loan Party other than routine inquiries by such Governmental Authority; the Loan Parties agree promptly to furnish copies of any documents or information described in any such summary and to furnish additional copies of such submissions to any consultant or adviser to the Lenders or the Agent as the Agent may reasonably request,
(i) as soon as possible and in any event (A) within 10 Business Days after Parent or any ERISA Affiliate thereof knows or has reason to know that any Termination Event described in clause (i) of the definition of Termination Event with respect to any Benefit Plan has occurred, (B) within 10 Business Days after Parent or any ERISA Affiliate thereof knows or has reason to know that any other Termination Event with respect to any Benefit Plan has occurred, or (C) within 10 Business Days after Parent or any ERISA Affiliate thereof knows or has reason to know that an accumulated funding deficiency has been incurred or an application has been made to the Secretary of the Treasury for a waiver or modification of the minimum funding standard (including installment payments) or an extension of any amortization period under Section 412 of the IRC with respect to a Benefit Plan, a statement of an Authorized Person setting forth the details of such occurrence and the action, if any, which Parent or such ERISA Affiliate propose to take with respect thereto, (ii) promptly and in any event within three Business Days after receipt thereof by Parent or any ERISA Affiliate thereof from the PBGC, copies of each notice received by Parent or any ERISA Affiliate thereof of the PBGC's intention to terminate any Plan or to have a trustee appointed to administer any Plan, (iii) promptly and in any event within 10 Business Days after the filing thereof with the Internal Revenue Service if requested by Lender, copies of each Schedule B (Actuarial Information) to the annual report (Form 5500 Series) with respect to each Benefit Plan and Multiemployer Plan, (iv) promptly and in any event within 10 Business Days after Parent or any ERISA Affiliate thereof knows or has reason to know that a required installment within the meaning of Section 412 of the IRC has not been made when due with respect to a Benefit Plan, (v) promptly and in any event within three days after receipt thereof by Parent or any ERISA Affiliate thereof from a sponsor of a Multiemployer Plan or from the PBGC, a copy of each notice received by Parent or any ERISA Affiliate thereof concerning the imposition or amount of withdrawal liability under Section 4202 of ERISA or indicating that such Multiemployer Plan may enter reorganization status under Section 4241 of ERISA, and (vi) promptly and in any event within 10 Business Days after Parent or any ERISA Affiliate thereof send notice of a plant closing or mass layoff (as defined in the Worker Adjustment and Retraining Notification Act) to employees, copies of each such notice sent by Parent or any ERISA Affiliate thereof,
(i) as soon as available and in any event within 5 Business Days after the execution, receipt or delivery thereof, copies of any material notices that any Loan Party executes or receives in connection with any Material Contract,
(j) promptly after the commencement thereof, thereof but in any event within five (5) Business Days not later than 5 days after the service of process with respect thereto on on, or the obtaining of knowledge thereof by, any Obligated Partyof the Loan Parties, notice of all actionseach action, suits, suit or proceedings brought by or against such Obligated Party proceeding before any court or other Governmental Authority which, or other regulatory body or any arbitrator which if adversely determined adversely to such Obligated Party, could reasonably be expected to result in have a Material Adverse Change,
(g) promptly, but in any event within ten (10) Business Days after Borrower has knowledge thereof, notify Lender of any material negative changes to Borrower’s customer renewal rates, and
(hk) upon the request of LenderAgent, any other information report reasonably requested relating to the financial condition of any Obligated Loan Party. Parent agrees that no Subsidiary of Parent will have a fiscal year different from that of Parent. Each Borrower agrees that its independent certified public accountants are authorized to communicate with Agent and to release to Agent whatever financial information concerning such Borrower that Agent reasonably may request. Each Borrower waives the right to assert a confidential relationship, if any, it may have with any accounting firm or service bureau in connection with any information reasonably requested by Agent pursuant to or in accordance with this Agreement, and agrees that Agent may contact directly any such accounting firm or service bureau in order to obtain such information.
Appears in 1 contract
Samples: Loan and Security Agreement (Dairy Mart Convenience Stores Inc)
Financial Statements, Reports, Certificates. Deliver to Agent, with copies to each Lender:
(a) as soon as available, but in any event by no later than within 30 days (45 days in the earlier case of (ya month that is the end of one of the first three fiscal quarters in a fiscal year) five (5) days after the date on which Parent files its Form 10-Q with the SEC and (z) forty five (45) days following the last day end of each month during each of Parent’s first three (3) Borrower's fiscal quarters of each fiscal yearyears,
(i) a company prepared consolidated balance sheet sheet, income statement, and income statement of cash flow covering the operations of Parent Borrower's and its direct and indirect Subsidiaries Subsidiaries' operations during such period and the year-to-date period ending thereon, with comparisons against the balance sheet for the immediately preceding fiscal year and income statement for the corresponding period during the immediately preceding fiscal year, (it being agreed that the furnishing of Parent’s quarterly report on Form 10-Q for each such fiscal quarter, as filed with the SEC, will satisfy Parent’s and Borrower’s obligations under this Section 6.2(a)(i) with respect to such fiscal quarter)period,
(ii) a Compliance Certificate certificate signed by the chief financial officer and/or chief accounting officer of Borrower certifying to the effect that:
(1A) the financial statements delivered hereunder have been prepared in accordance with GAAP (except for the lack of footnotes and being subject to year-end audit adjustments) and fairly present in all material respects the financial condition of Parent Borrower and its direct Subsidiaries,
(B) the representations and indirect Subsidiaries, warranties of Borrower contained in this Agreement and demonstrating the compliance by Parent other Loan Documents are true and correct in all material respects on a consolidated basis at and as of the end date of such quarter with all financial covenants required certificate, as though made on and as of such date (except to be tested hereunderthe extent that such representations and warranties relate solely to an earlier date), and
(2C) there does not exist any condition or event that constitutes a Default or Event of Default (or, to the extent of any non-compliance, describing such non-compliance as to which he or she may have knowledge and what action the applicable Obligated Party Borrower has taken, is taking, or proposes to take with respect thereto), and
(iii) for each month that is the date on which a financial covenant in Section 7.20 is to be tested, a Compliance Certificate demonstrating, in reasonable detail, compliance at the end of such period with the applicable financial covenants contained in Section 7.20,
(b) as soon as available, but in any event by no later than the earlier of (y) five (5) within 90 days after the date on which Parent files its Form 10-K with the SEC and (z) ninety (90) days following the last day end of each of Parent’s Borrower's fiscal years, consolidated ,
(i) financial statements of Parent Borrower and its direct and indirect Subsidiaries for each such fiscal year, audited by independent certified public accountants reasonably acceptable to Lender in Lender’s Permitted Discretion Agent and certified, without any qualifications (including any (A) “going concern” or like qualification or exception, or (B) qualification or exception as to the scope of such auditqualifications, by such accountants to have been prepared in accordance with GAAP) GAAP (it being agreed that the furnishing of Parent’s annual report on Form 10-K for each such fiscal year as filed with the SEC, will satisfy Parent’s and Borrower’s obligation under this Section 6.2(b) with respect to such fiscal year except with respect to the requirement that such audited financial statements be reported on without to include a “going concern” or like qualification or exceptionbalance sheet, or qualification arising out income statement, and statement of the scope of the auditcash flow and, if prepared, such accountants' letter to management), together with ,
(ii) a certificate of such accountants addressed to Lender Borrower stating that such accountants do not have knowledge of the existence of any Default or Event of Default. Such annual financial statements shall be accompanied by a Compliance Certificate signed by the chief financial officer and/or chief accounting officer of Borrower certifying that:
(1) Parent is in compliance on a consolidated basis at the end of such fiscal year with all financial covenants required to be tested hereunderDefault under Sections 7.21 or 7.22,
(2) the financial statements delivered hereunder have been prepared in accordance with GAAP and fairly present in all material respects the financial condition of Parent and its direct and indirect Subsidiaries, and
(3) there does not exist any condition or event that constitutes a Default or Event of Default (or, to the extent of any non-compliance, describing such non-compliance as to which he or she may have knowledge and what action the applicable Obligated Party has taken, is taking, or proposes to take with respect thereto),
(c) [Intentionally Deleted],
(d) as soon as available, but in any event by no later than the earlier of (y) five (5) days after the date on which Parent files its Form 10-K with the SEC and (z) ninety (90) days following the last day of each of Parent’s fiscal years, copies of Projections for such fiscal year (including, for the avoidance of doubt, the 2016 Projections to be delivered on or before March 30, 2016), all as certified by the chief financial officer of Parent as being such officer’s good faith best estimate of the financial performance of Parent and its direct and indirect Subsidiaries during the period covered thereby,
(e) promptly, but in any event within five (5) Business Days after Borrower has knowledge of any event or condition that constitutes a Default or an Event of Default, notice thereof and a statement of the curative action that the applicable Obligated Party proposes to take with respect thereto,
(f) promptly after the commencement thereof, but in any event within five (5) Business Days after the service of process with respect thereto on any Obligated Party, notice of all actions, suits, or proceedings brought by or against such Obligated Party before any Governmental Authority which, if determined adversely to such Obligated Party, could reasonably be expected to result in a Material Adverse Change,
(g) promptly, but in any event within ten (10) Business Days after Borrower has knowledge thereof, notify Lender of any material negative changes to Borrower’s customer renewal rates, and
(h) upon the request of Lender, any other information reasonably requested relating to the financial condition of any Obligated Party.
Appears in 1 contract
Samples: Loan and Security Agreement (Factory Card Outlet Corp)
Financial Statements, Reports, Certificates. Deliver to Lender:
(a) as soon as available, but in any event by no later than the earlier of within thirty (y) five (530) days after the date on which Parent files its Form 10(or forty-Q with the SEC and (z) forty five (45) days following in the last day case of each a month that is the end of Parent’s one of the first three (3) fiscal quarters in a fiscal year) after the end of each month during each of Borrower's fiscal yearyears,
(i) a company prepared consolidated balance sheet sheet, income statement, and income statement of cash flow covering the operations of Parent Borrower's and its direct and indirect Subsidiaries Subsidiaries' operations during such period and the year-to-date period ending thereon, with comparisons against the balance sheet for the immediately preceding fiscal year and income statement for the corresponding period during the immediately preceding fiscal year, (it being agreed that the furnishing of Parent’s quarterly report on Form 10-Q for each such fiscal quarter, as filed with the SEC, will satisfy Parent’s and Borrower’s obligations under this Section 6.2(a)(i) with respect to such fiscal quarter)period,
(ii) a Compliance Certificate certificate signed by the chief financial officer and/or chief accounting officer of Borrower certifying to the effect that:
(1) A. the financial statements delivered hereunder have been prepared in accordance with GAAP (except for the lack of footnotes and being subject to quarter-end and year-end audit adjustments) and fairly present in all material respects the financial condition of Parent Borrower and its direct and indirect Subsidiaries, and demonstrating the compliance by Parent on a consolidated basis ,
(i) with respect to any such certificate delivered at the end of any fiscal quarter, the representations and warranties of Borrower contained in this Agreement and the other Loan Documents are true and correct in all material respects on and as of the date of such certificate, as though made on and as of such date (except to the extent that such representations and warranties relate solely to an earlier date), and (ii) with respect to any such certificate delivered at the end of any month that is not a quarter with end, to the knowledge of such chief financial officer, the representations and warranties of Borrower contained in this Agreement and the other Loan Documents are true and correct in all financial covenants required material respects on and as of the date of such certificate, as though made on and as of such date (except to be tested hereunderthe extent that such representations and warranties relate solely to an earlier date), and
C. (2i) with respect to any such certificate delivered at the end of any fiscal quarter, there does not exist any condition or event that constitutes a Default or Event of Default (or, to the extent of any non-compliance, describing such non-compliance as to which he or she may have knowledge and what action the applicable Obligated Party Borrower has taken, is taking, or proposes to take with respect thereto),
(b) as soon as available, but in any event by no later than the earlier of (y) five (5) days after the date on which Parent files its Form 10-K with the SEC and (z) ninety (90) days following the last day of each of Parent’s fiscal years, consolidated financial statements of Parent and its direct and indirect Subsidiaries for each such fiscal year, audited by independent certified public accountants acceptable to Lender in Lender’s Permitted Discretion and certified, without any qualifications (including any (A) “going concern” or like qualification or exception, or (B) qualification or exception as to the scope of such audit, by such accountants to have been prepared in accordance with GAAP) (it being agreed that the furnishing of Parent’s annual report on Form 10-K for each such fiscal year as filed with the SEC, will satisfy Parent’s and Borrower’s obligation under this Section 6.2(bii) with respect to any such fiscal year except with respect to the requirement that such financial statements be reported on without a “going concern” or like qualification or exception, or qualification arising out of the scope of the audit), together with a certificate of such accountants addressed to Lender stating that such accountants do not have knowledge of the existence of any Default or Event of Default. Such annual financial statements shall be accompanied by a Compliance Certificate signed by the chief financial officer and/or chief accounting officer of Borrower certifying that:
(1) Parent is in compliance on a consolidated basis delivered at the end of any month that is not a quarter end, to the knowledge of such fiscal year with all chief financial covenants required to be tested hereunder,
(2) the financial statements delivered hereunder have been prepared in accordance with GAAP and fairly present in all material respects the financial condition of Parent and its direct and indirect Subsidiariesofficer, and
(3) there does not exist any condition or event that constitutes a Default or Event of Default (or, to the extent of any non-compliance, describing such non-compliance as to which he or she may have knowledge and what action the applicable Obligated Party Borrower has taken, is taking, or proposes to take with respect thereto),, and
(ciii) [Intentionally Deleted],for each month that is the date on which a financial covenant in Section 7.20 is to be tested, a Compliance Certificate demonstrating, in reasonable detail, compliance at the end of such period with the applicable financial covenants contained in Section 7.20, together with an updated Schedule 2.7 to the extent required by Section 2.7(d); provided, however, that, so long as no Event of Default has occurred and is continuing, Borrower may report capital expenditures under Section 7.20(b)(i)(x) and (y) on a combined basis, and
(db) as soon as available, but in any event by no later than the earlier of (y) five (5) days after the date on which Parent files its Form 10-K with the SEC and (z) within ninety (90) days following after the last day end of each of Parent’s Borrower's fiscal years,
(i) financial statements of Borrower and its Subsidiaries for each such fiscal year, audited by independent certified public accountants reasonably acceptable to Lender and certified, without any qualifications, by such accountants to have been prepared in accordance with GAAP (such audited financial statements to include a balance sheet, income statement, and statement of cash flow and, if prepared, such accountants' letter to management),
(ii) a certificate of such accountants addressed to Lender stating that such accountants do not have knowledge of the existence of any Default or Event of Default under Section 7.20,
(c) as soon as available, but in any event within thirty (30) days prior to the start of each of Borrower's fiscal years,
(i) copies of Projections for such fiscal year Borrower's Projections, in form and substance (includingincluding as to scope and underlying assumptions) satisfactory to Lender, in its sole discretion, for the avoidance of doubt, forthcoming three (3) years (on a month by month basis for the 2016 Projections to be delivered following fiscal year and on or before March 30, 2016a quarterly basis for each fiscal year thereafter), all as certified by the chief financial officer of Parent Borrower as being such officer’s 's good faith best estimate of the financial performance of Parent and its direct and indirect Subsidiaries Borrower during the period covered thereby,
(ed) promptly, but if and when filed or provided to a Person (other than Lender) by Borrower (in any event within no later than five (5) Business Days after Borrower has knowledge days following the date of any event filing or condition that constitutes a Default or an Event the date of Default, notice thereof and a statement of the curative action that the applicable Obligated Party proposes to take with respect thereto,
(f) promptly after the commencement thereof, but in any event within five (5) Business Days after the service of process with respect thereto on any Obligated Party, notice of all actions, suits, or proceedings brought by or against such Obligated Party before any Governmental Authority which, if determined adversely delivery to such Obligated PartyPerson), could reasonably be expected to result in a Material Adverse Change(i) 10-Q quarterly reports, Form 10-K annual reports, and Form 8-K current reports,
(g) promptly, but in any event within ten (10) Business Days after Borrower has knowledge thereof, notify Lender of any material negative changes to Borrower’s customer renewal rates, and
(h) upon the request of Lender, any other information reasonably requested relating to the financial condition of any Obligated Party.
Appears in 1 contract
Financial Statements, Reports, Certificates. Deliver to Agent, with copies to each Lender:
(a) as soon as available, but in any event by no later than the earlier of within thirty (y) five (530) days after the date on which Parent files its Form 10-Q with the SEC and (z) forty five (45) days following the last day of each of Parent’s first three (3) fiscal quarters end of each fiscal yearmonth of Borrower,
(i) a an unaudited consolidated balance sheet and sheet, income statement and, if available, statement of cash flow covering the Borrower’s operations of Parent and its direct and indirect Subsidiaries during such period and the year-to-date period ending thereon, with comparisons against in each case setting forth in comparative form the balance sheet for the immediately preceding fiscal year and income statement figures for the corresponding period during periods in the immediately preceding fiscal prior year, (it being agreed that the furnishing of Parent’s quarterly report on Form 10-Q for each such fiscal quarter, as filed with the SEC, will satisfy Parent’s and Borrower’s obligations under this Section 6.2(a)(i) with respect in form acceptable to such fiscal quarter),Agent. and
(ii) a Compliance Certificate signed by the chief financial officer and/or chief accounting officer of Borrower certifying that:
demonstrating in reasonable detail (1A) the financial statements delivered hereunder have been prepared in accordance with GAAP (except for the lack of footnotes and being subject to year-end audit adjustments) and fairly present in all material respects the financial condition of Parent and its direct and indirect Subsidiaries, and demonstrating the Borrower’s compliance by Parent on a consolidated basis at the end of such quarter period with all financial covenants required to be tested hereunder, and
(2) there does not exist any condition or event that constitutes a Default or Event of Default (or, to the extent of any non-compliance, describing such non-compliance as to which he or she may have knowledge and what action the applicable Obligated Party has takenfinancial and portfolio covenants contained in Sections 7.17 and 7.18 that are measured on a monthly basis, is taking, or proposes to take and (B) HCI’s compliance at the end of such period with respect theretothe minimum portfolio funding liquidity covenant contained in Sections 7.17(i),;
(b) as soon as available, but in any event by no later than the earlier of (y) within forty-five (545) days after the end of the first three fiscal quarters of each fiscal year of Borrower and HCI,
(i) an unaudited consolidated and consolidating balance sheet, income statement and statement of cash flow covering (A) Borrower, and (B) HCI’s and its Subsidiaries’ operations during such period and the year-to-date period ending thereon, in each case setting forth in comparative form the figures for the corresponding periods in the prior year; provided, that the availability via XXXXX, or any successor system of the SEC, of the financial statements in HCI’s applicable quarterly report on which Parent files its Form 10-K Q shall be deemed delivery to Agent of the financial statements required to be delivered pursuant to this clause (b)(i), on the date such documents are made so available, and
(ii) a Compliance Certificate demonstrating in reasonable detail Borrower’s and HCI’s compliance at the end of such period with the SEC applicable financial and portfolio covenants contained in Sections 7.17 and 7.18 that are measured on a quarterly basis;
(zc) as soon as available, but in any event within ninety (90) days following after the last day end of each fiscal year of Parent’s fiscal years, Borrower and HCI,
(i) consolidated and consolidating financial statements of Parent HCI and its direct and indirect Subsidiaries Subsidiaries, in each case for each such fiscal year, audited by independent certified public accountants acceptable to Lender in Lender’s Permitted Discretion of recognized national standing and certified, without any qualifications (including any (A) as to “going concern” or like qualification or exception, or (B) qualification or exception as to the scope of such audit, or (C) qualification which relates to the treatment or classification of any item and which, as a condition to the removal of such qualification, would require an adjustment to such item, the effect of which would be to cause any noncompliance with the provisions of Sections 7.17 or 7.18), by such accountants to have been prepared in accordance with GAAP) GAAP (it being agreed such audited financial statements to include a balance sheet, income statement, and statement of cash flow and, if prepared, such accountants’ letter to management); provided, that the furnishing availability via XXXXX, or any successor system of Parentthe SEC, of the financial statements in HCI’s annual report on Form 10-K for each such fiscal year as filed with shall be deemed delivery to Agent of the SEC, will satisfy Parent’s and Borrower’s obligation under this Section 6.2(b) with respect to such fiscal year except with respect to the requirement that such financial statements required to be reported on without a “going concern” or like qualification or exception, or qualification arising out of the scope of the auditdelivered pursuant to this clause (c)(i), together with a certificate of on the date such accountants addressed to Lender stating that such accountants do not have knowledge of the existence of any Default or Event of Default. Such annual financial statements shall be accompanied by documents are made so available, and
(ii) a Compliance Certificate signed by the chief financial officer and/or chief accounting officer of Borrower certifying that:
(1) Parent is demonstrating in reasonable detail Borrower’s and HCI’s compliance on a consolidated basis at the end of such fiscal year period with all financial covenants required to be tested hereunder,
(2) the financial statements delivered hereunder have been prepared in accordance with GAAP and fairly present in all material respects the financial condition of Parent and its direct and indirect Subsidiaries, and
(3) there does not exist any condition or event that constitutes a Default or Event of Default (or, to the extent of any non-compliance, describing such non-compliance as to which he or she may have knowledge and what action the applicable Obligated Party has taken, is taking, or proposes to take with respect thereto),
(c) [Intentionally Deleted],financial and portfolio covenants contained in Sections 7.17 and 7.18;
(d) as soon as available, but in any event by no later not less than the earlier of thirty (y) five (530) days after prior to the date on which Parent files its Form 10-K with the SEC and (z) ninety (90) days following the last day commencement of each fiscal year of Parent’s fiscal yearsBorrower and HCI, copies of Projections for such fiscal year (including, Borrower and HCI that have been provided to the Board of Directors of Borrower or HCI for the avoidance of doubtforthcoming fiscal year, the 2016 Projections to be delivered on or before March 30, 2016), all as certified by the chief financial officer of Parent Borrower and the chief financial officer of HCI, as applicable, as being such officer’s good faith best estimate of the financial performance of Parent Borrower and its direct and indirect Subsidiaries HCI during the period covered thereby,
(e) if requested by Agent, and if and when filed by Borrower, copies of Borrower’s federal income tax returns, and any amendments thereto, filed with the Internal Revenue Service,
(f) promptly upon having knowledge thereof (after diligent inquiry) and provided that, Borrower’s “knowledge” under this clause (f), shall include any circumstances where Borrower could be reasonably expected to have such “knowledge”, notify Agent of the following regarding each Note Receivable and Collateral which secures such Note Receivable:
(i) the occurrence of any event which may materially impair the prospect of payment of such Note Receivable;
(ii) the sending by Servicer or Borrower or any other Person of which Servicer or Borrower is actually aware of any notice of default, recordation by Servicer or Borrower of any notice of foreclosure and the date of any scheduled foreclosure sale thereon, or filing by Servicer or Borrower of any lawsuit (including case number and court) on a Note Receivable or related Note Receivable Collateral;
(iii) the consummation of any foreclosure sale or any deed or xxxx of sale in lieu of foreclosure, retention of collateral in satisfaction of debt or similar transaction, and deliver to Agent true and complete copies of all documentation executed in respect thereof (in the case of notices, postings and the like, and in the case of deeds, bills of sale or retention of collateral transactions, all documents related to consummation of such transaction or transfer of such property); and
(iv) the receipt by Servicer or Borrower of a notice by any Person of which Servicer or Borrower is actually aware of (x) a default with respect to any agreement evidencing or governing a Lien on any Note Receivable Collateral or (y) any foreclosure sale with respect to any Note Receivable Collateral;
(g) promptly, but in any event within five (5) Business Days after Borrower has knowledge of any event or condition that constitutes a Default or an Event of Default, notice thereof and a statement of the curative action that the applicable Obligated Party Borrower proposes to take with respect thereto,
(fh) promptly after the commencement thereof, but in any event within five (5) Business Days after the service of process with respect thereto on HCI, Borrower or any Obligated PartySubsidiary of HCI that is then an obligor under Funded Indebtedness, notice of all actions, suits, or proceedings brought by or against HCI, Borrower or any such Obligated Party Subsidiary before any Governmental Authority which, if determined adversely to HCI, Borrower or such Obligated PartySubsidiary, reasonably could reasonably be expected to result in a Material Adverse Change,, and
(gi) with respect to the Xxxxx Fargo Facility, promptly (but in any event within two (2) Business Days) upon (A) having knowledge of the occurrence of any default or event of default (however styled) thereunder, notice thereof and a statement of the curative action proposed to be taken with respect thereto, (B) the occurrence of any amendment or modification thereto or refinancing thereof, notice of such amendment, modification or refinancing, and in each case copies of all documents and agreements pertaining thereto;
(A) promptly, notice that a new proposed Split-Funded Note Receivable will be initially included in the calculation of availability for extensions of credit under any credit facility for an Affiliate of Borrower or HCI (in each case before the application of any concentration limits under the loan documents for such credit facility and in each case such notice shall include all relevant and applicable inputs and information used in calculating availability), and (B) promptly, but in any event within ten three (103) Business Days after Borrower an Authorized Person has knowledge thereof, notify Lender notice that a Split-Funded Note Receivable or newly-proposed Split-Funded Note Receivable has been or will be excluded from the calculation of availability for extensions of credit under any credit facility for an Affiliate of Borrower or HCI (in each case before the application of any material negative changes concentration limits under the loan documents for such credit facility and in each case such notice shall include all relevant and applicable inputs and information used in calculating availability); provided, that with respect to Borrower’s customer renewal ratesany proposed Split-Funded Note Receivable that will be excluded from the calculation of availability for extensions of credit under any credit facility for an Affiliate of Borrower or HCI (subject in each case to application of concentration limits under the loan documents for such credit facility) before actually initially being included thereunder, the notice to be provided by this clause (B) will be delivered to Agent prior to the making of any extension of credit with respect thereto under this Agreement, and
(hk) upon the request of LenderAgent, any other information reasonably requested relating to the financial condition of Borrower or HCI or any Obligated Partyof its Subsidiaries. In addition, Borrower agrees to deliver financial statements prepared on both a consolidated and consolidating basis to the extent required by this Section 6.3, and agrees that Borrower will not have fiscal year different from that of HCI. Borrower also agrees to cooperate with Agent to allow Agent to (A) audit Borrower and HCI, and (B) consult with its and each such other Person’s independent certified public accountants if Agent reasonably requests the right to do so. In such connection, Borrower authorizes, and will cooperate with Agent to cause HCI to authorize, its independent certified public accountants to communicate with Agent and to release to Agent whatever financial information concerning such Person as Agent reasonably may request.
Appears in 1 contract
Samples: Loan and Security Agreement (Hercules Capital, Inc.)
Financial Statements, Reports, Certificates. Deliver to Agent, with copies to each Lender:
(a) as soon as available, but in any event by no later than within 30 days (45 days in the earlier case of (ya month that is the end of one of the first 3 fiscal quarters in a fiscal year) five (5) days after the date on which Parent files its Form 10-Q with the SEC and (z) forty five (45) days following the last day end of each month during each of Parent’s first three (3) Borrower's fiscal quarters of each fiscal yearyears,
(i) a company prepared consolidated balance sheet sheet, income statement, and income statement of cash flow covering the operations of Parent Borrower's and its direct and indirect Subsidiaries Subsidiaries' operations during such period and the year-to-date period ending thereon, with comparisons against the balance sheet for the immediately preceding fiscal year and income statement for the corresponding period during the immediately preceding fiscal year, (it being agreed that the furnishing of Parent’s quarterly report on Form 10-Q for each such fiscal quarter, as filed with the SEC, will satisfy Parent’s and Borrower’s obligations under this Section 6.2(a)(i) with respect to such fiscal quarter)period,
(ii) a Compliance Certificate certificate signed by the chief financial officer and/or chief accounting officer of Borrower certifying to the effect that:
(1A) the financial statements delivered hereunder have been prepared in accordance with GAAP (except for the lack of footnotes and being subject to year-end audit adjustments) and fairly present in all material respects the financial condition of Parent Borrower and its direct Subsidiaries,
(B) the representations and indirect Subsidiaries, warranties of Borrower contained in this Agreement and demonstrating the compliance by Parent other Loan Documents are true and correct in all material respects on a consolidated basis at and as of the end date of such quarter with all financial covenants required certificate, as though made on and as of such date (except to be tested hereunderthe extent that such representations and warranties relate solely to an earlier date), and
(2C) there does not exist any condition or event that constitutes a Default or Event of Default (or, to the extent of any non-compliance, describing such non-compliance as to which he or she may have knowledge and what action the applicable Obligated Party Borrower has taken, is are taking, or proposes propose to take with respect thereto), and
(iii) for each month that is the date on which a financial covenant in Section 7.21 is to be tested, a Compliance Certificate demonstrating, in reasonable detail, compliance at the end of such period with the applicable financial covenants contained in Section 7.21,
(b) as soon as available, but in any event by no later than the earlier of (y) five (5) within 90 days after the date on which Parent files its Form 10-K with end of the SEC and (z) ninety (90) days following the last day of each of Parent’s Borrower's fiscal years, consolidated ,
(i) financial statements of Parent Borrower and its direct and indirect Subsidiaries for each such fiscal year, audited by independent certified public accountants reasonably acceptable to Lender in Lender’s Permitted Discretion Agent and certified, without any qualifications (including any (A) “going concern” or like qualification or exception, or (B) qualification or exception as to the scope of such auditqualifications, by such accountants to have been prepared in accordance with GAAP) GAAP (it being agreed such audited financial statements to include a balance sheet, income statement, and statement of cash flow and, if prepared, such accountants' letter to management), provided further that the furnishing of Parent’s annual report on Form 10-K for each such interim "draft" fiscal year as filed with the SEC, financial statements will satisfy Parent’s and Borrower’s obligation under this Section 6.2(b) with respect to such fiscal year except with respect be delivered to the requirement that such financial statements be reported on without a “going concern” or like qualification or exceptionAgent, or qualification arising out with copies to each Lender, within 45 days after the end of the scope of the audit), together with Borrower's fiscal years,
(ii) a certificate of such accountants addressed to Lender Agent and the Lenders stating that such accountants do not have knowledge of the existence of any Default or Event of Default. Such annual financial statements shall be accompanied by a Compliance Certificate signed by the chief financial officer and/or chief accounting officer of Borrower certifying that:
(1) Parent is in compliance on a consolidated basis at the end of such fiscal year with all financial covenants required to be tested hereunder,
(2) the financial statements delivered hereunder have been prepared in accordance with GAAP and fairly present in all material respects the financial condition of Parent and its direct and indirect Subsidiaries, and
(3) there does not exist any condition or event that constitutes a Default or Event of Default (or, to the extent of any non-compliance, describing such non-compliance as to which he or she may have knowledge and what action the applicable Obligated Party has taken, is taking, or proposes to take with respect thereto)under Section 7.21,
(c) [Intentionally Deleted],
(d) as soon as available, but in any event by no later than within 30 days prior to the earlier start of (y) five (5) days after the date on which Parent files its Form 10-K with the SEC and (z) ninety (90) days following the last day of each of Parent’s Borrower's fiscal years, ,
(i) copies of Projections for such fiscal year Borrower's Business Plan, in form and substance (includingincluding as to scope and underlying assumptions) satisfactory to Agent, in its commercially reasonable discretion, for the avoidance of doubtforthcoming 2 years (or through the Maturity Date, the 2016 Projections to be delivered on or before March 30, 2016whichever is earlier), all as year by year, and for the forthcoming fiscal year, month by month, certified by the chief financial officer of Parent Borrower as being such officer’s 's good faith best estimate of the financial performance of Parent Borrower and its direct and indirect Subsidiaries during the period covered therebythereby (it being understood that Agent may in its Permitted Discretion, but shall not be under any obligation to, revise financial and Excess Availability covenants set forth in Section 7.21 as a result of its review of such Business Plans and/or create or expand Reserves),
(d) if and when filed by the Borrower,
(i) Form 10-Q quarterly reports, Form 10-K annual reports, and Form 8-K current reports,
(ii) any other filings made by the Borrower with the SEC,
(iii) copies of Borrower's federal income tax returns, and any amendments thereto, filed with the Internal Revenue Service, and
(iv) any other material information that is provided by Borrower to its shareholders generally,
(e) promptlywithin 30 days of filing by the Borrower and as requested by Agent, but satisfactory evidence of payment of applicable excise taxes in each jurisdictions in which the Borrower conducts business or is required to pay any event within five such excise tax and either (5x) Business Days after the Borrower's failure to pay any such applicable excise tax would result in a Lien on the properties or assets of the Borrower, or (y) where the Borrower's failure to pay any such applicable excise tax reasonably could be expected to result in a Material Adverse Change,
(f) as soon as the Borrower has knowledge of any event or condition that constitutes a Default or an Event of Default, notice thereof and and, within 5 Business Days thereof, a statement of the curative action that the applicable Obligated Party Borrower proposes to take with respect thereto,
(f) promptly after the commencement thereof, but in any event within five (5) Business Days after the service of process with respect thereto on any Obligated Party, notice of all actions, suits, or proceedings brought by or against such Obligated Party before any Governmental Authority which, if determined adversely to such Obligated Party, could reasonably be expected to result in a Material Adverse Change,and
(g) promptlywithin 30 days of request, but in any event within ten (10) Business Days after Borrower has knowledge thereof, notify Lender of any material negative changes to Borrower’s customer renewal rates, and
(h) upon the request of LenderAgent, any other information report reasonably requested relating to the financial condition of Borrower. In addition to the financial statements referred to above, Borrower agrees to deliver financial statements prepared on both a consolidated and consolidating basis and that neither the Borrower nor any Obligated PartySubsidiary of the Borrower will have a fiscal year different from that of Borrower. Borrower agrees that its independent certified public accountants are authorized to communicate with Agent and to release to Agent whatever financial information concerning Borrower that Agent reasonably may request. The Borrower waives the right to assert a confidential relationship, if any, it may have with any accounting firm or service bureau in connection with any information requested by Agent pursuant to or in accordance with this Agreement, and agrees that Agent may contact directly any such accounting firm or service bureau in order to obtain such information.
Appears in 1 contract
Financial Statements, Reports, Certificates. Deliver to Agent, with copies to each Lender:
(a) as soon as available, but in any event by no later than within 30 days (45 days in the earlier case of (ya month that is the end of one of the first 3 fiscal quarters in a fiscal year or that is the month immediately following the Closing Date) five (5) days after the date on which Parent files its Form 10-Q with the SEC and (z) forty five (45) days following the last day end of each month during each of Parent’s first three (3) Borrower's fiscal quarters of each fiscal yearyears,
(i) a company prepared consolidated balance sheet sheet, income statement, and income statement of cash flow covering the operations of Parent Borrower's and its direct and indirect Subsidiaries Subsidiaries' operations during such period and the year-to-date period ending thereon, with comparisons against the balance sheet for the immediately preceding fiscal year and income statement for the corresponding period during the immediately preceding fiscal year, (it being agreed that the furnishing of Parent’s quarterly report on Form 10-Q for each such fiscal quarter, as filed with the SEC, will satisfy Parent’s and Borrower’s obligations under this Section 6.2(a)(i) with respect to such fiscal quarter)period,
(ii) a Compliance Certificate certificate signed by the chief financial officer and/or chief accounting officer of Borrower certifying to the effect that:
(1A) the financial statements delivered hereunder have been prepared in accordance with GAAP (except for the lack of footnotes and being subject to year-end audit adjustments) and fairly present in all material respects the financial condition of Parent Borrower and its direct Subsidiaries,
(B) the representations and indirect Subsidiaries, warranties of Borrower contained in this Agreement and demonstrating the compliance by Parent other Loan Documents are true and correct in all material respects on a consolidated basis at and as of the end date of such quarter with all financial covenants required certificate, as though made on and as of such date (except to be tested hereunderthe extent that such representations and warranties relate solely to an earlier date), and
(2C) there does not exist any condition or event that constitutes a Default or Event of Default (or, to the extent of any non-compliance, describing such non-compliance as to which he or she may have knowledge and what action the applicable Obligated Party Borrower has taken, is taking, or proposes to take with respect thereto),, and
(iii) for each month that is the date on which a financial covenant in Section 7.20 is to be tested, a Compliance Certificate demonstrating, in reasonable detail, compliance at the end of such period with the applicable financial covenants contained in Section 7.20, and
(b) as soon as available, but in any event by no later than the earlier of (y) five (5) within 120 days after the date on which Parent files its Form 10-K with the SEC and (z) ninety (90) days following the last day end of each of Parent’s Borrower's fiscal years, consolidated ,
(i) financial statements of Parent Borrower and its direct and indirect Subsidiaries for each such fiscal year, audited by independent certified public accountants reasonably acceptable to Lender in Lender’s Permitted Discretion Agent and certified, without any qualifications (including including, without limitation, (i) any (A) “going concern” concern or like qualification or exception, exception or (Bii) any qualification or exception as to the scope of such audit), by such accountants to have been prepared in accordance with GAAP) GAAP (it being agreed that the furnishing of Parent’s annual report on Form 10-K for each such fiscal year as filed with the SEC, will satisfy Parent’s and Borrower’s obligation under this Section 6.2(b) with respect to such fiscal year except with respect to the requirement that such audited financial statements be reported on without to include a “going concern” or like qualification or exceptionbalance sheet, or qualification arising out income statement, and statement of the scope of the auditcash flow and, if prepared, such accountants' letter to management), together with ,
(ii) a certificate of such accountants addressed to Lender Agent and the Lenders stating that such accountants do not have knowledge of the existence of any Default or Event of Default. Such annual financial statements shall be accompanied by a Compliance Certificate signed by the chief financial officer and/or chief accounting officer of Borrower certifying that:
(1) Parent is in compliance on a consolidated basis at the end of such fiscal year with all financial covenants required to be tested hereunder,
(2) the financial statements delivered hereunder have been prepared in accordance with GAAP and fairly present in all material respects the financial condition of Parent and its direct and indirect Subsidiaries, and
(3) there does not exist any condition or event that constitutes a Default or Event of Default (or, to the extent of any non-compliance, describing such non-compliance as to which he or she may have knowledge and what action the applicable Obligated Party has taken, is taking, or proposes to take with respect thereto)under Section 7.20,
(c) [Intentionally Deleted],
(d) as soon as available, but in any event by no later than within 30 days prior to the earlier of (y) five (5) days after the date on which Parent files its Form 10-K with the SEC and (z) ninety (90) days following the last day start of each of Parent’s Borrower's fiscal years, ,
(i) copies of Projections for such fiscal year Borrower's Projections, in form and substance (includingincluding as to scope and underlying assumptions) satisfactory to Agent, in its sole discretion, for the avoidance of doubtforthcoming 3 years, year by year, and for the 2016 Projections to be delivered on or before March 30forthcoming fiscal year, 2016)month by month, all as certified by the chief financial officer of Parent Borrower as being such officer’s 's good faith best estimate of the financial performance of Parent and its direct and indirect Subsidiaries Borrower during the period covered thereby,
(d) if and when filed by Borrower,
(i) Form 10-Q quarterly reports, Form 10-K annual reports, and Form 8-K current reports,
(ii) any other filings made by Borrower with the SEC,
(iii) copies of Borrower's federal income tax returns, and any amendments thereto, filed with the Internal Revenue Service, and
(iv) any other information that is provided by Borrower to its shareholders generally,
(e) promptlyif and when filed by Borrower and as requested by Agent, but satisfactory evidence of payment of applicable excise taxes in each jurisdictions in which (i) Borrower conducts business or is required to pay any event within five such excise tax, (5ii) Business Days after where Borrower's failure to pay any such applicable excise tax would result in a Lien on the properties or assets of Borrower, or (iii) where Borrower's failure to pay any such applicable excise tax reasonably could be expected to result in a Material Adverse Change,
(f) as soon as Borrower has knowledge of any event or condition that constitutes a Default or an Event of Default, notice thereof and a statement of the curative action that the applicable Obligated Party Borrower proposes to take with respect thereto,
(f) promptly after the commencement thereof, but in any event within five (5) Business Days after the service of process with respect thereto on any Obligated Party, notice of all actions, suits, or proceedings brought by or against such Obligated Party before any Governmental Authority which, if determined adversely to such Obligated Party, could reasonably be expected to result in a Material Adverse Change,
(g) promptly, but in any event within ten (10) Business Days after Borrower has knowledge thereof, notify Lender of any material negative changes to Borrower’s customer renewal rates, and
(hg) upon the request of LenderAgent, any other information report reasonably requested relating to the financial condition of Borrower. In addition to the financial statements referred to above, Borrower agrees to deliver financial statements prepared on both a consolidated and consolidating basis and agrees that no Subsidiary of Borrower will have a fiscal year different from that of Borrower. Borrower agrees that its independent certified public accountants are authorized to communicate with Agent and to release to Agent whatever financial information concerning Borrower Agent reasonably may request. Borrower waives the right to assert a confidential relationship, if any, it may have with any Obligated Partyaccounting firm or service bureau in connection with any information requested by Agent pursuant to or in accordance with this Agreement, and agrees that Agent may contact directly any such accounting firm or service bureau in order to obtain such information.
Appears in 1 contract
Samples: Loan and Security Agreement (Northland Cranberries Inc /Wi/)
Financial Statements, Reports, Certificates. Deliver to Agent, with copies to each Lender:
(a) as soon as available, but in any event by no later than within 30 days (45 days in the earlier case of (ya month that is the end of one of the first 3 fiscal quarters in a fiscal year) five (5) days after the date on which Parent files its Form 10-Q with the SEC and (z) forty five (45) days following the last day end of each month during each of Parent’s first three (3) 's fiscal quarters of each fiscal yearyears,
(i) a company prepared consolidated balance sheet sheet, income statement, and income statement of cash flow covering the operations of Parent Parent's and its direct and indirect Subsidiaries Subsidiaries' operations during such period and the year-to-date period ending thereon, with comparisons against the balance sheet for the immediately preceding fiscal year and income statement for the corresponding period during the immediately preceding fiscal year, (it being agreed that the furnishing of Parent’s quarterly report on Form 10-Q for each such fiscal quarter, as filed with the SEC, will satisfy Parent’s and Borrower’s obligations under this Section 6.2(a)(i) with respect to such fiscal quarter)period,
(ii) a Compliance Certificate certificate signed by the chief financial officer and/or chief accounting officer of Borrower certifying Parent to the effect that:
(1) A. the financial statements delivered hereunder have been prepared in accordance with GAAP (except for the lack of footnotes and being subject to year-end audit adjustments) and fairly present in all material respects the financial condition of Parent and its direct and indirect Subsidiaries, and demonstrating provided that the compliance by Parent on financial statements for any month (other than a consolidated basis at month that is the end of such quarter with all financial covenants a fiscal quarter) are not required to be tested hereunderprepared in accordance with GAAP,
B. the representations and warranties of Borrowers contained in this Agreement and the other Loan Documents are true and correct in all material respects on and as of the date of such certificate, as though made on and as of such date (except to the extent that such representations and warranties relate solely to an earlier date), and
(2) C. there does not exist any condition or event that constitutes a Default or Event of Default (or, to the extent of any non-compliance, describing such non-compliance as to which he or she may have knowledge and what action the applicable Obligated Party has Borrowers have taken, is are taking, or proposes propose to take with respect thereto),, and
(iii) for each month that is the date on which a financial covenant in SECTION 7.20 is to be tested, a Compliance Certificate demonstrating, in reasonable detail, compliance at the end of such period with the applicable financial covenants contained in SECTION 7.20, and
(b) as soon as available, but in any event by no later than the earlier of (y) five (5) within 90 days after the date on which Parent files its Form 10-K with the SEC and (z) ninety (90) days following the last day end of each of Parent’s 's fiscal years, consolidated ,
(i) financial statements of Parent and its direct and indirect Subsidiaries for each such fiscal year, audited by independent certified public accountants reasonably acceptable to Lender in Lender’s Permitted Discretion Agent and certified, without any qualifications (including any (A) “going concern” or like qualification or exception, or (B) qualification or exception as to the scope of such auditqualifications, by such accountants to have been prepared in accordance with GAAP) GAAP (it being agreed that the furnishing of Parent’s annual report on Form 10-K for each such fiscal year as filed with the SEC, will satisfy Parent’s and Borrower’s obligation under this Section 6.2(b) with respect to such fiscal year except with respect to the requirement that such audited financial statements be reported on without to include a “going concern” or like qualification or exceptionbalance sheet, or qualification arising out income statement, and statement of the scope of the auditcash flow and, if prepared, such accountants' letter to management), together with ,
(ii) a certificate of such accountants addressed to Lender Agent and the Lenders stating that such accountants do not have knowledge of the existence of any Default or Event of Default. Such annual financial statements shall be accompanied by a Compliance Certificate signed by the chief financial officer and/or chief accounting officer of Borrower certifying that:
(1) Parent is in compliance on a consolidated basis at the end of such fiscal year with all financial covenants required to be tested hereunder,
(2) the financial statements delivered hereunder have been prepared in accordance with GAAP and fairly present in all material respects the financial condition of Parent and its direct and indirect Subsidiaries, and
(3) there does not exist any condition or event that constitutes a Default or Event of Default (or, to the extent of any non-compliance, describing such non-compliance as to which he or she may have knowledge and what action the applicable Obligated Party has taken, is taking, or proposes to take with respect thereto)under SECTION 7.20,
(c) [Intentionally Deleted],
(d) as soon as available, but in any event by no later than within 30 days prior to the earlier of (y) five (5) days after the date on which Parent files its Form 10-K with the SEC and (z) ninety (90) days following the last day start of each of Parent’s 's fiscal years, ,
(i) copies of Projections for such fiscal year Borrowers' Projections, in form and substance (includingincluding as to scope and underlying assumptions) satisfactory to Agent, in its sole discretion, for the avoidance of doubtforthcoming 3 years, year by year, and for the 2016 Projections to be delivered on or before March 30forthcoming fiscal year, 2016)month by month, all as certified by the chief financial officer of Parent as being such officer’s 's good faith best estimate of the financial performance of Parent and its direct and indirect Subsidiaries during the period covered thereby,
(d) if and when filed by any Borrower,
(i) 10-Q quarterly reports, Form 10-K annual reports, and Form 8-K current reports,
(ii) any other filings made by any Borrower with the SEC,
(iii) copies of Borrowers' federal income tax returns, and any amendments thereto, filed with the Internal Revenue Service, and
(iv) any other information that is provided by Parent to its shareholders generally,
(e) if and when filed by any Borrower and as requested by Agent, satisfactory evidence of payment of applicable excise taxes in each jurisdictions in which (i) any Borrower conducts business or is required to pay any such excise tax, (ii) where any Borrower's failure to pay any such applicable excise tax would result in a Lien on the properties or assets of any Borrower, or (iii) where any Borrower's failure to pay any such applicable excise tax reasonably could be expected to result in a Material Adverse Change,
(f) if and when filed by the Parent, but in any event by September 30, 2001, a copy of the certificate of merger or other applicable document filed with the Secretary of State of the State of Ohio in respect of the merger of brightwhite with and into the Parent in accordance with SECTION 6.13;
(g) promptly, but in any event within five (5) 3 Business Days after the release of any deposit materials under any agreement between DSI and any Borrower or any of their respective predecessors including, without limitation, that certain Sourceflex Software Source Code Escrow Agreement - Sourcefile Number 7470 between FileSafe, Inc. and Symix Computer Systems, Inc., notice of the release of such deposit materials,
(h) as soon as a Borrower has knowledge of any event or condition that constitutes a Default or an Event of Default, notice thereof and a statement of the curative action that the applicable Obligated Party proposes Borrowers propose to take with respect thereto,
(f) promptly after the commencement thereof, but in any event within five (5) Business Days after the service of process with respect thereto on any Obligated Party, notice of all actions, suits, or proceedings brought by or against such Obligated Party before any Governmental Authority which, if determined adversely to such Obligated Party, could reasonably be expected to result in a Material Adverse Change,
(g) promptly, but in any event within ten (10) Business Days after Borrower has knowledge thereof, notify Lender of any material negative changes to Borrower’s customer renewal rates, and
(hi) upon the request of LenderAgent, any other information report reasonably requested relating to the financial condition of Borrowers. In addition to the financial statements referred to above, Borrowers agree to deliver financial statements prepared on both a consolidated and consolidating basis and that no Borrower, or any Obligated PartySubsidiary of a Borrower, will have a fiscal year different from that of Parent. Borrowers agree that their independent certified public accountants are authorized to communicate with Agent and to release to Agent whatever financial information concerning Borrowers that Agent reasonably may request. Each Borrower waives the right to assert a confidential relationship, if any, it may have with any accounting firm or service bureau in connection with any information requested by Agent pursuant to or in accordance with this Agreement, and agree that Agent may contact directly any such accounting firm or service bureau in order to obtain such information.
Appears in 1 contract
Financial Statements, Reports, Certificates. Deliver to Agent, with copies to each Lender:
(a) as soon as available, but in any event by no later than the earlier of within thirty (y) five (530) days after the date on which Parent files its Form 10-Q with the SEC and (z) forty five (45) days following the last day of each of Parent’s first three (3) fiscal quarters end of each fiscal yearmonth of Borrower,
(i) a an unaudited consolidated balance sheet and sheet, income statement and, if available, statement of cash flow covering the Borrower’s operations of Parent and its direct and indirect Subsidiaries during such period and the year-to-date period ending thereon, with comparisons against the balance sheet for the immediately preceding fiscal year and income statement for the corresponding period during the immediately preceding fiscal year, (it being agreed that the furnishing of Parent’s quarterly report on Form 10-Q for each such fiscal quarter, as filed with the SEC, will satisfy Parent’s and Borrower’s obligations under this Section 6.2(a)(i) with respect to such fiscal quarter),and
(ii) a Compliance Certificate signed by the chief financial officer and/or chief accounting officer of Borrower certifying that:
demonstrating in reasonable detail (1A) the financial statements delivered hereunder have been prepared in accordance with GAAP (except for the lack of footnotes and being subject to year-end audit adjustments) and fairly present in all material respects the financial condition of Parent and its direct and indirect Subsidiaries, and demonstrating the Borrower’s compliance by Parent on a consolidated basis at the end of such quarter period with all financial covenants required to be tested hereunder, and
(2) there does not exist any condition or event that constitutes a Default or Event of Default (or, to the extent of any non-compliance, describing such non-compliance as to which he or she may have knowledge and what action the applicable Obligated Party has takenfinancial and portfolio covenants contained in Sections 7.16 and 7.17 that are measured on a monthly basis, is taking, or proposes to take and (B) HTGC’s compliance at the end of such period with respect theretothe minimum portfolio funding liquidity covenant contained in Sections 7.16(i),;
(b) as soon as available, but in any event by no later than the earlier of (y) within forty-five (545) days after the end of each fiscal quarter of Borrower and HTGC,
(i) an unaudited consolidated balance sheet, income statement and statement of cash flow covering (A) Borrower, and (B) HTGC’s and its Subsidiaries’ operations during such period and the year-to-date period ending thereon; provided, that the availability via XXXXX, or any successor system of the SEC, of the financial statements in HTGC’s applicable quarterly report on which Parent files its Form 10-K Q shall be deemed delivery to Agent of the financial statements required to be delivered pursuant to this clause (b)(i), on the date such documents are made so available, and
(ii) a Compliance Certificate demonstrating in reasonable detail Borrower’s and HTGC’s compliance at the end of such period with the SEC applicable financial and portfolio covenants contained in Sections 7.16 and 7.17 that are measured on a quarterly basis;
(zc) as soon as available, but in any event within ninety (90) days following after the last day end of each fiscal year of Parent’s fiscal years, Borrower and HTGC,
(i) consolidated and consolidating financial statements of Parent HTGC and its direct and indirect Subsidiaries Subsidiaries, in each case for each such fiscal year, audited by independent certified public accountants reasonably acceptable to Lender in Lender’s Permitted Discretion Agent and certified, without any qualifications (including any (A) “going concern” or like qualification or exception, or (B) qualification or exception as to the scope of such audit, or (C) qualification which relates to the treatment or classification of any item and which, as a condition to the removal of such qualification, would require an adjustment to such item, the effect of which would be to cause any noncompliance with the provisions of Sections 7.16 or 7.17), by such accountants to have been prepared in accordance with GAAP) GAAP (it being agreed such audited financial statements to include a balance sheet, income statement, and statement of cash flow and, if prepared, such accountants’ letter to management); provided, that the furnishing availability via XXXXX, or any successor system of Parentthe SEC, of the financial statements in HTGC’s annual report on Form 10-K for each such fiscal year as filed with shall be deemed delivery to Agent of the SEC, will satisfy Parent’s and Borrower’s obligation under this Section 6.2(b) with respect to such fiscal year except with respect to the requirement that such financial statements required to be reported on without a “going concern” or like qualification or exception, or qualification arising out of the scope of the auditdelivered pursuant to this clause (c)(i), together with a certificate of on the date such accountants addressed to Lender stating that such accountants do not have knowledge of the existence of any Default or Event of Default. Such annual financial statements shall be accompanied by documents are made so available, and
(ii) a Compliance Certificate signed by the chief financial officer and/or chief accounting officer of Borrower certifying that:
(1) Parent is demonstrating in reasonable detail Borrower’s and HTGC’s compliance on a consolidated basis at the end of such fiscal year period with all financial covenants required to be tested hereunder,
(2) the financial statements delivered hereunder have been prepared in accordance with GAAP and fairly present in all material respects the financial condition of Parent and its direct and indirect Subsidiaries, and
(3) there does not exist any condition or event that constitutes a Default or Event of Default (or, to the extent of any non-compliance, describing such non-compliance as to which he or she may have knowledge and what action the applicable Obligated Party has taken, is taking, or proposes to take with respect thereto),
(c) [Intentionally Deleted],financial and portfolio covenants contained in Sections 7.16 and 7.17;
(d) as soon as available, but in any event by no later not less than the earlier of thirty (y) five (530) days after prior to the date on which Parent files its Form 10-K with the SEC and (z) ninety (90) days following the last day commencement of each fiscal year of Parent’s fiscal yearsBorrower and HTGC, copies of Projections for such fiscal year (including, Borrower and HTGC that have been provided to the Board of Directors of Borrower or HTGC for the avoidance of doubtforthcoming fiscal year, the 2016 Projections to be delivered on or before March 30, 2016), all as certified by the chief financial officer of Parent Borrower and the chief financial officer of HTGC, as applicable, as being such officer’s good faith best estimate of the financial performance of Parent Borrower and its direct and indirect Subsidiaries HTGC during the period covered thereby,
(e) if requested by Agent, and if and when filed by Borrower or HTGC, copies of Borrower’s or HTGC’s federal income tax returns, and any amendments thereto, filed with the Internal Revenue Service,
(f) promptly notify Agent of the following regarding each Note Receivable and Collateral which secures such Note Receivable:
(i) the occurrence of any event which may materially impair the prospect of payment of such Note Receivable;
(ii) the sending by Servicer or Borrower or any other Person of which the Servicer or the Borrower is actually aware of any notice of default, recordation by Servicer or Borrower of any notice of foreclosure and the date of any scheduled foreclosure sale thereon, or filing by Servicer or Borrower of any lawsuit (including case number and court) on a Note Receivable or related Note Receivable Collateral;
(iii) the consummation of any foreclosure sale or any deed or xxxx of sale in lieu of foreclosure, retention of collateral in satisfaction of debt or similar transaction, and deliver to Agent copies of all documentation executed in respect thereof (in the case of notices, postings and the like, and in the case of deeds, bills of sale or retention of collateral transactions, all documents related to consummation of such transaction or transfer of such property); and
(iv) the receipt by Servicer or Borrower of a notice by any Person of which Servicer or Borrower is actually aware of (x) a default with respect to any agreement evidencing or governing a Lien on any Note Receivable Collateral or (y) any foreclosure sale with respect to any Note Receivable Collateral;
(g) promptly, but in any event within five (5) Business Days after Borrower has knowledge of any event or condition that constitutes a Default or an Event of Default, notice thereof and a statement of the curative action that the applicable Obligated Party Borrower proposes to take with respect thereto,
(fh) promptly after the commencement thereof, but in any event within five (5) Business Days after the service of process with respect thereto on HTGC, Borrower or any Obligated PartySubsidiary of HTGC that is then an obligor under Funded Indebtedness, notice of all actions, suits, or proceedings brought by or against HTGC, Borrower or any such Obligated Party Subsidiary before any Governmental Authority which, if determined adversely to HTGC, Borrower or such Obligated PartySubsidiary, reasonably could reasonably be expected to result in a Material Adverse Change,, and
(gi) promptlywith respect to the Xxxxx Fargo Facility, promptly (but in any event within ten two (102) Business Days after Borrower has knowledge Days) upon the occurrence of (A) any default or event of default (however styled) thereunder, notice thereof and a statement of the curative action proposed to be taken with respect thereto, (B) any amendment or modification thereto or refinancing thereof, notify Lender notice of any material negative changes to Borrower’s customer renewal ratessuch amendment, andmodification or refinancing, and in each case copies of all documents and agreements pertaining thereto;
(hj) upon the request of LenderAgent, any other information reasonably requested relating to the financial condition of Borrower or HTGC or any Obligated Partyof its Subsidiaries. In addition, Borrower agrees to deliver financial statements prepared on both a consolidated and consolidating basis to the extent required by this Section 6.3, and agrees that Borrower will not have fiscal year different from that of HTGC. Borrower also agrees to cooperate with Agent to allow Agent to (A) audit Borrower and HTGC, and (B) consult with its and each such other Person’s independent certified public accountants if Agent reasonably requests the right to do so. In such connection, Borrower authorizes, and will cooperate with Agent to cause HTGC to authorize, its independent certified public accountants to communicate with Agent and to release to Agent whatever financial information concerning such Person as Agent reasonably may request.
Appears in 1 contract
Samples: Loan and Security Agreement (Hercules Capital, Inc.)
Financial Statements, Reports, Certificates. Deliver The Company shall deliver to Lenderthe Trustee:
(a) as soon as available, but in any event by no later than the earlier of (y) five (5) within 45 days after the date on which Parent files its Form 10-Q with the SEC and (z) forty five (45) days following the last day end of each month during each of Parent’s first three (3) the Company's fiscal quarters of each fiscal yearyears,
(i) a consolidated Company prepared Consolidated balance sheet sheet, income statement, and income statement of cash flow covering the operations of Parent Company's and its direct and indirect Subsidiaries Subsidiaries' operations during such period month and the year-to-date period ending thereon, with comparisons against the balance sheet for the immediately preceding fiscal year to date, together with a comparison of such financial statements to (A) Company's Projections (as defined in the New Credit Agreement) delivered prior to the Issue Date or pursuant to Section 4.04(c) and (B) the Consolidated balance sheet, income statement, and statement of cash flow covering Company's and its Subsidiaries' operations for the such corresponding period during in the immediately preceding fiscal year, (it being agreed that the furnishing of Parent’s quarterly report on Form 10-Q for each such fiscal quarter, as filed with the SEC, will satisfy Parent’s and Borrower’s obligations under this Section 6.2(a)(i) with respect to such fiscal quarter),
(ii) a Compliance Certificate company prepared schedule detailing Company's Consolidated EBITDA as of the end of each month for the 13-month period then ended,
(iii) a certificate signed by the a chief financial officer and/or chief or a principal accounting officer of Borrower certifying the Company to the effect that:
(1A) the financial statements and other financial information delivered hereunder have been prepared in accordance with GAAP (except for the lack of footnotes and being subject to year-end audit adjustments) and fairly present in all material respects the financial condition of Parent the Company and its direct Subsidiaries,
(B) the representations and indirect Subsidiaries, warranties of Borrowers contained in the New Credit Agreement and demonstrating the compliance by Parent other Loan Documents (as defined in the New Credit Agreement) are true and correct in all material respects on a consolidated basis at and as of the end date of such quarter with all financial covenants required certificate, as though made on and as of such date (except to be tested hereunderthe extent that such representations and warranties relate solely to an earlier date), and
(2C) there does not exist any condition or event that constitutes a Default or Event of Default (or, to the extent of any non-compliance, describing such non-compliance as to which he or she may have knowledge and what action the applicable Obligated Party has Note Parties have taken, is are taking, or proposes propose to take with respect thereto); and
(iv) for each month that is the date on which a financial covenant in Section 5.19 is to be tested, a Compliance Certificate (as defined in the New Credit Agreement) demonstrating, in reasonable detail, compliance at the end of such period with the applicable financial covenants contained in Section 5.19, together with a reconciliation of the company prepared Consolidated balance sheet, income statement, and statement of cash flow for Company and its Subsidiaries for the 3-month period then ended to the audited financial statements contained in the 4 most recent Form 10-Q quarterly reports and the most recent Form 10-K annual report filed by Company and its Subsidiaries,
(b) as soon as available, but in any event by no later than the earlier of (y) five (5) within 120 days after the date on which Parent files its Form 10-K with the SEC and (z) ninety (90) days following the last day end of each of Parent’s Company's fiscal years, consolidated ,
(i) Consolidated financial statements of Parent the Company and its direct and indirect Subsidiaries for each such fiscal year, audited by nationally recognized independent certified public accountants acceptable to Lender in Lender’s Permitted Discretion and certified, without any qualifications (including any (A) “going concern” or like qualification or exception, or (B) qualification or exception as to the scope of such auditqualifications, by such accountants to have been prepared in accordance with GAAP) GAAP (it being agreed that the furnishing of Parent’s annual report on Form 10-K for each such fiscal year as filed with the SEC, will satisfy Parent’s and Borrower’s obligation under this Section 6.2(b) with respect to such fiscal year except with respect to the requirement that such audited financial statements be reported on without to include a “going concern” or like qualification or exceptionbalance sheet, or qualification arising out income statement, and statement of the scope of the auditcash flow and, if prepared, such accountants' letter to management), together with and
(ii) a certificate of such accountants addressed to Lender the Trustee stating that such accountants do not have knowledge of the existence of any Default or Event of Default. Such annual financial statements shall be accompanied by a Compliance Certificate signed by the chief financial officer and/or chief accounting officer of Borrower certifying that:
(1) Parent is in compliance on a consolidated basis at the end of such fiscal year with all financial covenants required to be tested hereunder,
(2) the financial statements delivered hereunder have been prepared in accordance with GAAP and fairly present in all material respects the financial condition of Parent and its direct and indirect Subsidiaries, and
(3) there does not exist any condition or event that constitutes a Default or Event of Default (or, to the extent of any non-compliance, describing such non-compliance as to which he or she may have knowledge and what action the applicable Obligated Party has taken, is taking, or proposes to take with respect thereto)under Section 6.01,
(c) [Intentionally Deleted],
(d) as soon as available, but in any event by no later than within 30 days prior to the earlier of (y) five (5) days after the date on which Parent files its Form 10-K with the SEC and (z) ninety (90) days following the last day start of each of Parent’s Company's fiscal years, copies of Company's Projections for such fiscal year (includingas defined in the New Credit Agreement), for the avoidance of doubtforthcoming 3 years, year by year, and for the 2016 Projections to be delivered on or before March 30forthcoming fiscal year, 2016)month by month, all as certified by the chief financial officer of Parent Company (i) as being such officer’s 's good faith best estimate of the financial performance of Parent Company and its direct and indirect Subsidiaries on a 50 Consolidated basis during the period covered therebythereby and (ii) as being in form and substance (including as to scope and underlying assumptions) as delivered to the Bank Lenders' Agent,
(d) if, when and to the extent filed by any Note Party with the SEC or any other Governmental Authority,
(i) Form 10-Q quarterly reports, Form 10-K annual reports, and Form 8-K current reports,
(ii) any other filings made by any Note Party with the SEC,
(iii) copies of Borrowers' federal income tax returns, and any amendments thereto, filed with the IRS, and
(iv) any other information that is provided by the Company to its shareholders generally,
(e) promptlyif and when filed by any Note Party and if requested by Trustee, but reasonably satisfactory evidence of payment of applicable excise and property taxes in each jurisdictions in which (i) any event within five Note Party conducts business, owns real property or is required to pay any such excise or real property tax, (5ii) Business Days where any Note Party's failure to pay any such applicable excise or property tax would result in a Lien on the properties or assets of any Note Party, or (iii) where any Note Party's failure to pay any such applicable excise tax reasonably could be expected to result in a Material Adverse Change,
(f) promptly after the commencement thereof, notice of all actions, suits or proceedings brought by or against any Note Party before any Governmental Authority that, if determined adversely to such Note Party, could reasonably be expected to result in a Material Adverse Change,
(g) as soon as a Borrower has knowledge of any event or condition that constitutes a Default or an Event of Default, notice thereof and a statement of the curative action that the applicable Obligated Party proposes Borrowers propose to take with respect thereto,
(fh) promptly after the commencement thereof, but in as soon as a Borrower has actual knowledge of any event within five or condition that constitutes a default or an event of default under the New AMERCO Note Documents, the New Credit Agreement or the other Loan Documents (5as defined in the New Credit Agreement), or any Funded Debt (including, without limitation, any TRAC Lease Transaction, the PMCC Like Kind Exchange Lease or the PMCC Leveraged Lease) Business Days after or any notice, call, default of event of default under any Support Party Agreement, notice thereof and a statement of the service of process curative action that Borrowers or Guarantors, as applicable, propose to take with respect thereto on any Obligated Party, notice of all actions, suits, or proceedings brought by or against such Obligated Party before any Governmental Authority which, if determined adversely to such Obligated Party, could reasonably be expected to result in a Material Adverse Changethereto,
(gi) promptlysuch information as may, but in from time to time, be necessary to comply with any event within ten (10) Business Days after Borrower has knowledge thereof, notify Lender applicable provision of any material negative changes to Borrower’s customer renewal ratesTIA Section 314(a), and
(hj) upon such information provided to the request of Lender, any other information reasonably requested Bank Lenders' Agent relating to the financial condition Collateral pursuant to Section 6.2 of the New Credit Agreement. To satisfy the delivery requirements, the Company and the Guarantors, if applicable, may file or post electronically such information required to be delivered to the Trustee and the Holders of the Notes, if applicable, pursuant to this Section 4.04 and Section 4.05 in a manner and method mutually acceptable to the Company and the Trustee and that provides for the access to such information by the Trustee, and upon request of any Obligated PartyHolder in accordance with Section 7.06, the access to such information by such Holder. Delivery of all reports, information and documents to the Trustee under this Agreement is for informational purposes only and the Trustee's receipt of such shall not constitute constructive notice of any information contained therein or determinable therefrom, including compliance with any of the Company's covenants hereunder. The Trustee shall not disclose any material, non-public information (all information received pursuant to this Section 4.04 or pursuant to other provisions of this Agreement and identified as such in writing by the Company on the face thereof, except for information received pursuant to Section 4.04(d) and Section 4.04(i)) received from any Note Party to a Holder of the Notes unless such Holder enters into a standstill and confidentiality agreement in a form and substance satisfactory to the Company and the Trustee, and which shall provide that the recipients of such information shall indemnify the Trustee against any misuse or improper disclosure of such information. In addition to the financial statements referred to above, Xxxxxxxxx agree to deliver financial statements prepared on both a consolidated and consolidating basis (in accordance with GAAP) and a Consolidated basis (as defined herein) and that, except for the Insurance Subsidiaries, no Borrower, or any Subsidiary of a Borrower, will have a fiscal year different from that of the Company. Borrowers agree to cooperate with the Bank Lenders' Agent to allow Bank Lenders' Agent to consult with their certified public accountants if Bank Lenders' Agent reasonably requests the right to do so and that, in such connection, their independent certified public accountants are authorized to communicate with Bank Lenders' Agent and to release to Bank Lenders' Agent whatever financial information concerning Borrowers or their Subsidiaries that Bank Lenders' Agent reasonably may request and shall deliver copies of such information to the Trustee. Each Borrower waives the right to assert a confidential relationship, if any, it may have with any accounting firm or service bureau in connection with any information requested by Bank Lenders' Agent pursuant to or in accordance with this Agreement, and agree that Bank Lenders' Agent may contact directly any such accounting firm or service bureau in order to obtain such information; provided, however, so long as no Event of Default has occurred and is continuing, Bank Lenders' Agent shall give Borrowers a copy of any written request for information from Bank Lenders' Agent to such accounting firm or bureau services and Borrowers shall have an opportunity to attend any meeting between Bank Lenders' Agent and such accounting firm or bureau services with respect to such information requests.
Appears in 1 contract
Samples: Indenture (Amerco /Nv/)
Financial Statements, Reports, Certificates. Deliver to Lender:
(a) as soon as available, but in any event by no later than within 30 days (45 days in the earlier case of (ya month that is the end of one of the first 3 fiscal quarters in a fiscal year) five (5) days after the date on which Parent files its Form 10-Q with the SEC and (z) forty five (45) days following the last day end of each month during each of Parent’s first three (3) Borrower's fiscal quarters of each fiscal yearyears,
(i) a company prepared consolidated balance sheet sheet, income statement, and income statement of cash flow covering the operations of Parent Borrower's and its direct and indirect Subsidiaries Subsidiaries' operations during such period and the year-to-date period ending thereon, with comparisons against the balance sheet for the immediately preceding fiscal year and income statement for the corresponding period during the immediately preceding fiscal year, (it being agreed that the furnishing of Parent’s quarterly report on Form 10-Q for each such fiscal quarter, as filed with the SEC, will satisfy Parent’s and Borrower’s obligations under this Section 6.2(a)(i) with respect to such fiscal quarter)period,
(ii) a Compliance Certificate certificate signed by the chief financial officer and/or chief accounting officer of Borrower certifying to the effect that:
(1A) the financial statements delivered hereunder have been prepared in accordance with GAAP (except for the lack of footnotes and being subject to year-end audit adjustments) and fairly present in all material respects the financial condition of Parent Borrower and its direct Subsidiaries,
(B) the representations and indirect Subsidiaries, warranties of Borrower contained in this Agreement and demonstrating the compliance by Parent other Loan Documents are true and correct in all material respects on a consolidated basis at and as of the end date of such quarter with all financial covenants required certificate, as though made on and as of such date (except to be tested hereunderthe extent that such representations and warranties relate solely to an earlier date), and
(2C) there does not exist any condition or event that constitutes a Default or Event of Default (or, to the extent of any non-compliance, describing such non-compliance as to which he or she may have knowledge and what action the applicable Obligated Party Borrower has taken, is taking, or proposes to take with respect thereto),, and
(iii) for each month that is the date on which a financial covenant in Section 7.20 is to be tested, a Compliance Certificate demonstrating, in reasonable detail, compliance at the end of such period with the applicable financial covenants contained in Section 7.20, and -45-
(b) as soon as available, but in any event by no later than the earlier of (y) five (5) within 90 days after the date on which Parent files its Form 10-K with the SEC and (z) ninety (90) days following the last day end of each of Parent’s Borrower's fiscal years, consolidated ,
(i) financial statements of Parent Borrower and its direct and indirect Subsidiaries for each such fiscal year, audited by independent certified public accountants reasonably acceptable to Lender in Lender’s Permitted Discretion and certified, without any qualifications (including any (A) “going concern” or like qualification or exception, or (B) qualification or exception as to the scope of such auditqualifications, by such accountants to have been prepared in accordance with GAAP) GAAP (it being agreed that the furnishing of Parent’s annual report on Form 10-K for each such fiscal year as filed with the SEC, will satisfy Parent’s and Borrower’s obligation under this Section 6.2(b) with respect to such fiscal year except with respect to the requirement that such audited financial statements be reported on without to include a “going concern” or like qualification or exceptionbalance sheet, or qualification arising out income statement, and statement of the scope of the auditcash flow and, if prepared, such accountants' letter to management), together with ,
(ii) a certificate of such accountants addressed to Lender stating that such accountants do not have knowledge of the existence of any Default or Event of Default. Such annual financial statements shall be accompanied by a Compliance Certificate signed by the chief financial officer and/or chief accounting officer of Borrower certifying that:
(1) Parent is in compliance on a consolidated basis at the end of such fiscal year with all financial covenants required to be tested hereunder,
(2) the financial statements delivered hereunder have been prepared in accordance with GAAP and fairly present in all material respects the financial condition of Parent and its direct and indirect Subsidiaries, and
(3) there does not exist any condition or event that constitutes a Default or Event of Default (or, to the extent of any non-compliance, describing such non-compliance as to which he or she may have knowledge and what action the applicable Obligated Party has taken, is taking, or proposes to take with respect thereto)under Section 7.20,
(c) [Intentionally Deleted],
(d) as soon as available, but in any event by no later than within 30 days prior to the earlier of (y) five (5) days after the date on which Parent files its Form 10-K with the SEC and (z) ninety (90) days following the last day start of each of Parent’s Borrower's fiscal years, ,
(i) copies of Projections for such fiscal year Borrower's Projections, in form and substance (includingincluding as to scope and underlying assumptions) reasonably satisfactory to Lender, in its sole discretion, for the avoidance of doubtforthcoming fiscal year, the 2016 Projections to be delivered on or before March 30quarter by quarter, 2016), all as certified by the chief financial officer of Parent Borrower as being such officer’s 's good faith best estimate of the financial performance of Parent and its direct and indirect Subsidiaries Borrower during the period covered thereby,
(d) if and when filed by Borrower,
(i) Form 10-Q quarterly reports, Form 10-K annual reports, and Form 8-K current reports,
(ii) any other filings made by Borrower with the SEC,
(iii) copies of Borrower's federal income tax returns, and any amendments thereto, filed with the Internal Revenue Service, and
(iv) any other information that is provided by Borrower to its shareholders generally,
(e) promptlyif and when filed by Borrower and as requested by Lender, but satisfactory evidence of payment of applicable excise taxes in each jurisdictions in which (i) Borrower conducts business or is required to pay any event within five such excise tax, (5ii) Business Days after where Borrower's failure to pay any such applicable excise tax would result in a Lien on the properties or assets of Borrower, or (iii) where Borrower's failure to pay any such applicable excise tax reasonably could be expected to result in a Material Adverse Change,
(f) as soon as Borrower has knowledge of any event or condition that constitutes a Default or an Event of Default, notice thereof and a statement of the curative action that the applicable Obligated Party Borrower proposes to take with respect thereto,
(f) promptly after the commencement thereof, but in any event within five (5) Business Days after the service of process with respect thereto on any Obligated Party, notice of all actions, suits, or proceedings brought by or against such Obligated Party before any Governmental Authority which, if determined adversely to such Obligated Party, could reasonably be expected to result in a Material Adverse Change,
(g) promptly, but in any event within ten (10) Business Days after Borrower has knowledge thereof, notify Lender of any material negative changes to Borrower’s customer renewal rates, and
(hg) upon the request of Lender, any other information report reasonably requested relating to the financial condition of Borrower. In addition to the financial statements referred to above, Borrower agrees to deliver financial statements prepared on both a consolidated and consolidating basis and agrees that no Subsidiary of Borrower will have a fiscal year different from that of Borrower. Borrower agrees that its independent certified public accountants are authorized to communicate with Lender and to release to Lender whatever financial information concerning Borrower Lender reasonably may request. Borrower waives the right to assert a confidential relationship, if any, it may have with any Obligated Partyaccounting firm or service bureau in connection with any information requested by Lender pursuant to or in accordance with this Agreement, and agrees that Lender may contact directly any such accounting firm or service bureau in order to obtain such information.
Appears in 1 contract
Financial Statements, Reports, Certificates. Deliver to LenderAgent:
(a) as soon as available, but in any event by no later than the earlier of (y) five (5) within 50 days after the date on which Parent files its Form 10-Q with the SEC and (z) forty five (45) days following the last day of each of Parent’s first three (3) fiscal quarters end of each fiscal yearquarter during each of Holdings' fiscal years, or, after the occurrence and during the continuance of an Event of Default, within 50 days after the end of each 4 week accounting period,
(i) a consolidated company prepared balance sheet and income statement covering the Holdings' operations of Parent and its direct and indirect Subsidiaries during such period and the year-to-date period ending thereon, with comparisons against the balance sheet for the immediately preceding fiscal year and income statement for the corresponding period during the immediately preceding fiscal year, (it being agreed that the furnishing of Parent’s quarterly report on Form 10-Q for each such fiscal quarter, as filed with the SEC, will satisfy Parent’s and Borrower’s obligations under this Section 6.2(a)(i) with respect to such fiscal quarter)period,
(ii) a Compliance Certificate certificate signed by the its chief executive officer, its chief financial officer and/or officer, or its chief accounting officer of Borrower certifying to the effect that:
(1A) the financial statements delivered hereunder have been prepared in accordance with GAAP (except for the lack of footnotes and being subject to year-end audit adjustments) and fairly present in all material respects the financial condition of Parent Holdings,
(B) the representations and its direct warranties of the Obligors contained in this Agreement and indirect Subsidiaries, the other Loan Documents are true and demonstrating correct in all material respects on and as of the compliance by Parent on a consolidated basis at the end date of such quarter with all financial covenants required certificate, as though made on and as of such date (except to be tested hereunder, andthe extent that such representations and warranties relate solely to an earlier date),
(2C) there does not exist any condition or event that constitutes a Default or Event of Default (or, to the extent of any non-compliance, describing such non-compliance as to which he or she may have knowledge and what action action, if any, the applicable Obligated Party has Obligors have taken, is are taking, or proposes propose to take with respect thereto),
(iii) a Compliance Certificate demonstrating, in reasonable detail, compliance at the end of such period with the applicable financial covenants contained in Section 7.20,
(b) as soon as available, but in any event by no later than the earlier of (y) five (5) within 110 days after the date on which Parent files its Form 10-K with the SEC and (z) ninety (90) days following the last day end of each of Parent’s Holding's fiscal years, consolidated ,
(i) financial statements of Parent and its direct and indirect Subsidiaries Holdings for each such fiscal year, audited by independent certified public accountants acceptable to Lender Agent in Lender’s its Permitted Discretion and certified, without any qualifications (including any (A) “going concern” or like qualification or exception, or (B) qualification or exception as to the scope of such auditmaterial qualifications, by such accountants to have been prepared in accordance with GAAP) GAAP (it being agreed that the furnishing of Parent’s annual report on Form 10-K for each such fiscal year as filed with the SEC, will satisfy Parent’s and Borrower’s obligation under this Section 6.2(b) with respect to such fiscal year except with respect to the requirement that such audited financial statements be reported on without to include a “going concern” or like qualification or exceptionbalance sheet, or qualification arising out income statement, and statement of the scope of the auditcash flow and, if prepared, such accountants' letter to management), together with ,
(ii) a certificate of such accountants addressed to Lender stating Agent stating, if accurate, that such accountants do not have knowledge of the existence of any Default or Event of Default. Such annual financial statements shall be accompanied by a Compliance Certificate signed by the chief financial officer and/or chief accounting officer of Borrower certifying that:
(1) Parent is in compliance on a consolidated basis at the end of such fiscal year with all financial covenants required to be tested hereunder,
(2) the financial statements delivered hereunder have been prepared in accordance with GAAP and fairly present in all material respects the financial condition of Parent and its direct and indirect Subsidiaries, and
(3) there does not exist any condition or event that constitutes a Default or Event of Default (or, to the extent of any non-compliance, describing such non-compliance as to which he or she may have knowledge and what action the applicable Obligated Party has taken, is taking, or proposes to take with respect thereto)under Section 7.20,
(c) [Intentionally Deleted]if filed by Holdings, within 5 days of filing
(i) 10-Q quarterly reports, Form 10-K annual reports, and Form 8-K current reports,
(ii) any other filings made by Holdings with the SEC, and
(iii) any other information that is provided by Holdings to its shareholders generally,
(d) as soon as available, but in any event by no later than the earlier of (y) five (5) days after the date on which Parent files its Form 10-K with the SEC and (z) ninety (90) days following the last day of each of Parent’s fiscal years, copies of Projections for such fiscal year (including, for the avoidance of doubt, the 2016 Projections to be delivered on or before March 30, 2016), all as certified by the chief financial officer of Parent as being such officer’s good faith best estimate of the financial performance of Parent and its direct and indirect Subsidiaries during the period covered thereby,
(e) promptly, but in any event within five (5) Business Days after Borrower has knowledge of any event or condition that constitutes a Default or an Event of Default, notice thereof and a statement of the curative action that the applicable Obligated Party proposes to take with respect thereto,
(f) promptly after the commencement thereof, but in any event within five (5) Business Days after the service of process with respect thereto on any Obligated Party, notice of all actions, suits, or proceedings brought by or against such Obligated Party before any Governmental Authority which, if determined adversely to such Obligated Party, could reasonably be expected to result in a Material Adverse Change,
(g) promptly, but in any event within ten (10) Business Days after Borrower has knowledge thereof, notify Lender of any material negative changes to Borrower’s customer renewal rates, and
(h) upon the request of LenderAgent, any other information reasonably report requested by Agent in its Permitted Discretion relating to the financial condition of any Obligated Partythe Obligors.
Appears in 1 contract
Financial Statements, Reports, Certificates. Deliver to Agent, with ------------------------------------------- copies to each Lender:
(a) as soon as available, but in any event by no later than within 30 days (45 days in the earlier case of (ya month that is the end of one of the first 3 fiscal quarters in a fiscal year) five (5) days after the date on which Parent files its Form 10-Q with the SEC and (z) forty five (45) days following the last day end of each month during each of Parent’s first three (3) 's fiscal quarters of each fiscal yearyears,
(i) a company prepared consolidated balance sheet sheet, income statement, and income statement of cash flow covering the operations of Parent Parent's and its direct and indirect Subsidiaries Subsidiaries' operations during such period and the year-to-date period ending thereon, with comparisons against the balance sheet for the immediately preceding fiscal year and income statement for the corresponding period during the immediately preceding fiscal year, (it being agreed that the furnishing of Parent’s quarterly report on Form 10-Q for each such fiscal quarter, as filed with the SEC, will satisfy Parent’s and Borrower’s obligations under this Section 6.2(a)(i) with respect to such fiscal quarter),period; and
(ii) a Compliance Certificate certificate signed by the chief financial officer and/or chief accounting officer of Borrower certifying Parent to the effect that:
(1A) the financial statements delivered hereunder have been prepared in accordance with GAAP (except for the lack of footnotes and being subject to year-end audit adjustments) and fairly present in all material respects the financial condition of Parent and its direct Subsidiaries,
(B) the representations and indirect Subsidiaries, warranties of Borrowers contained in this Agreement and demonstrating the compliance by Parent other Loan Documents are true and correct in all material respects on a consolidated basis at and as of the end date of such quarter with all financial covenants required certificate, as though made on and as of such date (except to be tested hereunderthe extent that such representations and warranties relate solely to an earlier date), and
(2C) there does not exist any condition or event that constitutes a Default or Event of Default (or, to the extent of any non-compliance, describing such non-compliance as to which he or she may have knowledge and what action the applicable Obligated Party has Borrowers have taken, is are taking, or proposes propose to take with respect thereto),, and
(iii) for each month that is the date on which a financial covenant in Section 7.20 is to be tested, a Compliance Certificate ------------ demonstrating, in reasonable detail, compliance at the end of such period with the applicable financial covenants contained in Section 7.20; ------------
(b) as soon as possible, but in any event within 45 days (90 days in the case of the final fiscal quarter in a fiscal year) after the end of each Parent's fiscal quarters, a detailed calculation of Borrowers' Trailing Four Quarter EBITDA;
(c) as soon as available, but in any event by no later than the earlier of (y) five (5) within 90 days after the date on which Parent files its Form 10-K with the SEC and (z) ninety (90) days following the last day end of each of Parent’s 's fiscal years, consolidated ,
(i) financial statements of Parent and its direct and indirect Subsidiaries for each such fiscal year, audited by Xxxxxx Xxxxxxxx or other independent certified public accountants reasonably acceptable to Lender in Lender’s Permitted Discretion Agent and certified, without any qualifications (including any (A) “going concern” or like qualification or exception, or (B) qualification or exception as to the scope of such auditqualifications, by such accountants to have been prepared in accordance with GAAP) GAAP (it being agreed that the furnishing of Parent’s annual report on Form 10-K for each such fiscal year as filed with the SEC, will satisfy Parent’s and Borrower’s obligation under this Section 6.2(b) with respect to such fiscal year except with respect to the requirement that such audited financial statements be reported on without to include a “going concern” or like qualification or exceptionbalance sheet, or qualification arising out income statement, and statement of the scope of the auditcash flow and, if prepared, such accountants' letter to management), together with ; and
(ii) a certificate of such accountants addressed to Lender stating that such accountants do not have knowledge of Agent and the existence of any Default or Event of Default. Such annual financial statements shall be accompanied by a Compliance Certificate signed by Lenders certifying as to the chief financial officer and/or chief accounting officer of Borrower certifying that:
(1) Parent is in compliance on a consolidated basis at the end of such fiscal year with all financial covenants required to be tested hereunder,
(2) the financial statements delivered hereunder have been prepared set forth in accordance with GAAP and fairly present in all material respects the financial condition of Parent and its direct and indirect Subsidiaries, and
(3) there does not exist any condition or event that constitutes a Default or Event of Default (or, to the extent of any non-compliance, describing such non-compliance as to which he or she may have knowledge and what action the applicable Obligated Party has taken, is taking, or proposes to take with respect thereto),
(c) [Intentionally Deleted],Section ------- 7.20. ----
(d) as soon as available, but in any event by no later than within 30 days prior to the earlier of (y) five (5) days after the date on which Parent files its Form 10-K with the SEC and (z) ninety (90) days following the last day start of each of Parent’s 's fiscal years, copies of Projections for such fiscal year Borrowers' Projections, in form and substance (includingincluding as to scope and underlying assumptions) satisfactory to Agent, in its sole discretion, for the avoidance of doubtforthcoming 3 years, year by year, and for the 2016 Projections to be delivered on or before March 30forthcoming fiscal year, 2016)month by month, all as certified by the chief financial officer of Parent as being such officer’s 's good faith best estimate of the financial performance of Parent and its direct and indirect Subsidiaries during the period covered thereby,;
(e) promptlywhen filed by any Borrower,
(i) Form 10-Q quarterly reports, but Form 10-K annual reports, and Form 8-K current reports,
(ii) any other filings made by any Borrower with the SEC,
(iii) copies of Borrowers' federal income tax returns, and any amendments thereto, filed with the Internal Revenue Service, and
(iv) any other information that is provided by Parent to its shareholders generally;
(f) if and when filed by any Borrower and as requested by Agent, satisfactory evidence of payment of applicable excise taxes in each jurisdictions in which (i) any event within five Borrower conducts business or is required to pay any such excise tax, (5ii) Business Days after where any Borrower's failure to pay any such applicable excise tax would result in a Lien on the properties or assets of any Borrower, or (iii) where any Borrower's failure to pay any such applicable excise tax reasonably could be expected to result in a Material Adverse Change;
(g) as soon as a Borrower has knowledge of any event or condition that constitutes a Default or an Event of Default, notice thereof and a statement of the curative action that the applicable Obligated Party proposes Borrowers propose to take with respect thereto,
(f) promptly after the commencement thereof, but in any event within five (5) Business Days after the service of process with respect thereto on any Obligated Party, notice of all actions, suits, or proceedings brought by or against such Obligated Party before any Governmental Authority which, if determined adversely to such Obligated Party, could reasonably be expected to result in a Material Adverse Change,
(g) promptly, but in any event within ten (10) Business Days after Borrower has knowledge thereof, notify Lender of any material negative changes to Borrower’s customer renewal rates, ; and
(h) upon the request of LenderAgent, any other information report reasonably requested relating to the financial condition of Borrowers. In addition to the financial statements referred to above, Borrowers agree to deliver financial statements prepared on both a consolidated and consolidating basis and agree that no Borrower, or any Obligated PartySubsidiary of a Borrower, will have a fiscal year different from that of Parent. Borrowers agree that their independent certified public accountants are authorized to communicate with Agent and to release to Agent whatever financial information concerning Borrowers that Agent reasonably may request. Each Borrower waives the right to assert a confidential relationship, if any, it may have with any accounting firm or service bureau in connection with any information requested by Agent pursuant to or in accordance with this Agreement, and agrees that Agent may contact directly any such accounting firm or service bureau in order to obtain such information.
Appears in 1 contract
Financial Statements, Reports, Certificates. Deliver to Agent, with copies to each Lender:
(a) as soon as available, but in any event by no later than within 30 days (45 days in the earlier case of (ya month that is the end of one of the fiscal quarters in a fiscal year) five (5) days after the date on which Parent files its Form 10-Q with the SEC and (z) forty five (45) days following the last day end of each month during each of Parent’s first three (3) fiscal quarters of each fiscal yearyears,
(i) a company prepared consolidated balance sheet sheet, income statement, and income statement of cash flow covering the operations of Parent and its direct and indirect Subsidiaries during such period and the year-to-date period ending thereon, with comparisons against the balance sheet for the immediately preceding fiscal year and income statement for the corresponding period during the immediately preceding fiscal year, (it being agreed that the furnishing of Parent’s quarterly report on Form 10-Q for each such fiscal quarter, as filed with the SEC, will satisfy Parent’s and Borrower’s obligations under this Section 6.2(a)(i) with respect to its Subsidiaries’ operations during such fiscal quarter)period,
(ii) a Compliance Certificate certificate signed by the chief financial officer and/or or chief accounting executive officer of Borrower certifying Parent to the effect that:
(1) A. the financial statements delivered hereunder have been prepared in accordance with GAAP (except for the lack of footnotes and being subject to year-end audit adjustments) and fairly present in all material respects the consolidated financial condition of Parent and its direct Subsidiaries,
B. to the best of his knowledge, the representations and indirect Subsidiaries, warranties of Borrowers contained in this Agreement and demonstrating the compliance by Parent other Loan Documents are true and correct in all material respects on a consolidated basis at and as of the end date of such quarter with all financial covenants required certificate, as though made on and as of such date (except to be tested hereunderthe extent that such representations and warranties relate solely to an earlier date), and
(2) C. to the best of his knowledge, there does not exist any condition or event that constitutes a Default or Event of Default (or, to the extent of any non-compliance, describing such non-compliance as to which he or she may have knowledge and what action the applicable Obligated Party has Borrowers have taken, is are taking, or proposes propose to take with respect thereto),, and
(iii) for each month that is the date on which a financial covenant in Section 7.20 is to be tested, a Compliance Certificate demonstrating, in reasonable detail, compliance at the end of such period with the applicable financial covenants contained in Section 7.20, and
(b) as soon as available, but in any event by no later than the earlier of (y) five (5) within 90 days after the date on which Parent files its Form 10-K with the SEC and (z) ninety (90) days following the last day end of each of Parent’s fiscal years, ,
(i) consolidated financial statements of Parent and its direct and indirect Subsidiaries for each such fiscal year, audited by independent certified public accountants reasonably acceptable to Lender in Lender’s Permitted Discretion Agent and certified, without any qualifications (including any (A) “going concern” or like qualification or exception, or (B) qualification or exception as to the scope of such auditqualifications, by such accountants to have been prepared in accordance with GAAP) GAAP (it being agreed that the furnishing of Parent’s annual report on Form 10-K for each such fiscal year as filed with the SEC, will satisfy Parent’s and Borrower’s obligation under this Section 6.2(b) with respect to such fiscal year except with respect to the requirement that such audited financial statements be reported on without to include a “going concern” or like qualification or exceptionbalance sheet, or qualification arising out income statement, and statement of the scope of the auditcash flow and, if prepared, such accountants’ letter to management), together with ,
(ii) a certificate of such accountants addressed to Lender Agent and the Lenders stating that such accountants do not have knowledge of the existence of any Default or Event of Default. Such annual financial statements shall be accompanied by a Compliance Certificate signed by the chief financial officer and/or chief accounting officer of Borrower certifying that:
(1) Parent is in compliance on a consolidated basis at the end of such fiscal year with all financial covenants required to be tested hereunder,
(2) the financial statements delivered hereunder have been prepared in accordance with GAAP and fairly present in all material respects the financial condition of Parent and its direct and indirect Subsidiaries, and
(3) there does not exist any condition or event that constitutes a Default or Event of Default (or, to the extent of any non-compliance, describing such non-compliance as to which he or she may have knowledge and what action the applicable Obligated Party has taken, is taking, or proposes to take with respect thereto)under Section 7.20,
(c) [Intentionally Deleted],
(d) as soon as available, but in any event by no later than within 30 days prior to the earlier of (y) five (5) days after the date on which Parent files its Form 10-K with the SEC and (z) ninety (90) days following the last day start of each of Parent’s fiscal third quarters and fiscal years, ,
(i) copies of Projections for such fiscal year Borrowers’ Projections, in form and substance (includingincluding as to scope and underlying assumptions) satisfactory to Agent, in its sole discretion, for the avoidance of doubtforthcoming three (3) years, year by year, and for the 2016 Projections to be delivered on or before March 30forthcoming fiscal year, 2016)month by month, all as certified by the chief financial officer or chief executive officer of Parent as being such officer’s good faith best estimate of the financial performance of Parent and its direct and indirect Subsidiaries during the period covered thereby,
(d) if and when filed by any Borrower,
(i) Form 10-Q quarterly reports, Form 10-K annual reports, and Form 8-K current reports,
(ii) any other filings made by any Borrower with the SEC, and
(iii) copies of Borrowers’ federal income tax returns, and any amendments thereto, filed with the Internal Revenue Service (or, if applicable, Borrowers’ tax returns filed with the United Kingdom tax authorities),
(e) promptlyif and when provided, but any other information that is provided by Parent to its shareholders generally,
(f) if and when filed by any Borrower and as requested by Agent, satisfactory evidence of payment of applicable excise taxes in each jurisdictions in which (i) any event within five Borrower conducts business or is required to pay any such excise tax, (5ii) Business Days after where any Borrower’s failure to pay any such applicable excise tax would result in a Lien on the properties or assets of any Borrower, or (iii) where any Borrower’s failure to pay any such applicable excise tax reasonably could be expected to result in a Material Adverse Change,
(g) as soon as a Borrower has knowledge of any event or condition that constitutes a Default or an Event of Default, notice thereof and a statement of the curative action that the applicable Obligated Party proposes Borrowers propose to take with respect thereto,
(f) promptly after the commencement thereof, but in any event within five (5) Business Days after the service of process with respect thereto on any Obligated Party, notice of all actions, suits, or proceedings brought by or against such Obligated Party before any Governmental Authority which, if determined adversely to such Obligated Party, could reasonably be expected to result in a Material Adverse Change,
(g) promptly, but in any event within ten (10) Business Days after Borrower has knowledge thereof, notify Lender of any material negative changes to Borrower’s customer renewal rates, and
(h) upon the request of LenderAgent, any other information report reasonably requested relating to the financial condition of Borrowers. In addition to the financial statements referred to above, Borrowers agree to deliver financial statements prepared on both a consolidated and, with respect to all periods after the month ended March 31, 2003, consolidating basis and that no Borrower, or any Obligated PartySubsidiary of a Borrower, will have a fiscal year different from that of Parent. Borrowers agree that their independent certified public accountants are authorized to communicate with Agent and to release to Agent whatever financial information concerning Borrowers that Agent reasonably may request. Each Borrower waives the right to assert a confidential relationship, if any, it may have with any accounting firm or service bureau in connection with any information requested by Agent pursuant to or in accordance with this Agreement, and agree that Agent may contact directly any such accounting firm or service bureau in order to obtain such information.
Appears in 1 contract
Samples: Loan and Security Agreement (Mercator Software Inc)
Financial Statements, Reports, Certificates. Deliver to Agent, with copies to each Lender:
(a) as soon as available, but in any event by no later than the earlier of (y) five (5) within 45 days after the date on which Parent files its Form 10-Q with the SEC and (z) forty five (45) days following the last day end of each month during each of Parent’s first three (3) GCI's fiscal quarters of each fiscal yearyears,
(i) a company prepared balance sheet, income statement, and statement of cash flow covering GCI's consolidated balance sheet and income statement covering the operations of Parent and its direct and indirect Subsidiaries during such period and the year-to-date period ending thereonperiod, with comparisons against the balance sheet for the immediately preceding fiscal year and income statement for the corresponding period during the immediately preceding fiscal year, (it being agreed that the furnishing of Parent’s quarterly report on Form 10-Q for each such fiscal quarter, as filed with the SEC, will satisfy Parent’s and Borrower’s obligations under this Section 6.2(a)(i) with respect to such fiscal quarter),and
(ii) a Compliance Certificate certificate signed by the chief financial officer and/or chief accounting officer of Administrative Borrower certifying to the effect that:
(1A) the financial statements delivered hereunder have been prepared in accordance with GAAP (except for the lack of footnotes and being subject to year-end audit adjustments) and fairly present the consolidated financial condition of GCI in all material respects,
(B) the representations and warranties of each Obligor contained in this Agreement and the other Loan Documents are true and correct in all material respects on and as of the financial condition of Parent and its direct and indirect Subsidiaries, and demonstrating the compliance by Parent on a consolidated basis at the end date of such quarter with all financial covenants required certificate, as though made on and as of such date (except to be tested hereunderthe extent that such representations and warranties relate solely to an earlier date), and
(2C) there does not exist any condition or event that constitutes a Default or Event of Default (or, to the extent of any non-compliance, describing such non-compliance as to which he or she may have knowledge and what action Borrowers have taken, are taking, or propose to take with respect thereto).
(b) as soon as available, but in any event within 45 days after the end of each fiscal quarter during each of GCI's fiscal years,
(i) a company prepared balance sheet, income statement, and statement of cash flow covering GCI's consolidated operations during such period,
(ii) a company prepared segmented balance sheet and profit and loss statement for the operations of each of the American Music Division and MFI during such period, and for the consolidated operations of GCI and GCS during such period,
(iii) a certificate signed by the chief financial officer of Administrative Borrower to the effect that:
(A) the financial statements delivered hereunder have been prepared in accordance with GAAP (except for the lack of footnotes and being subject to year-end audit adjustments) and fairly present the consolidated financial condition of GCI in all material respects,
(B) the representations and warranties of GCI and the Obligors contained in this Agreement and the other Loan Documents are true and correct in all material respects on and as of the date of such certificate, as though made on and as of such date (except to the extent that such representations and warranties relate solely to an earlier date),
(C) there does not exist any condition or event that constitutes a Default or Event of Default (or, to the extent of any non-compliance, describing such non-compliance as to which he or she may have knowledge and what action the applicable Obligated Party has Obligors have taken, is are taking, or proposes propose to take with respect thereto),
(biv) a Compliance Certificate demonstrating, in reasonable detail, compliance at the end of such quarter period with the financial covenants contained in Section 7.20, and
(v) a detailed calculation of average Availability for such fiscal quarter, certified as correct by the chief financial officer of Administrative Borrower, in sufficient detail as determined by Agent in its Permitted Discretion, to permit the redetermination of the applicable interest rate margins.
(c) as soon as available, but in any event by no later than the earlier of (y) five (5) within 105 days after the date on which Parent files its Form 10-K with the SEC and (z) ninety (90) days following the last day end of each of Parent’s GCI's fiscal years, consolidated financial statements of Parent and its direct and indirect Subsidiaries GCI for each such fiscal year, audited by independent certified public accountants reasonably acceptable to Lender in Lender’s Permitted Discretion Agent and certified, without any qualifications (including any (A) “going concern” or like qualification or exception, or (B) qualification or exception as to the scope of such auditqualifications, by such accountants to have been prepared in accordance with GAAP) GAAP (it being agreed that such audited financial statements to include a balance sheet, income statement, and statement of cash flow and, if prepared, such accountants' letter to management), and the furnishing delivery by GCI of Parent’s annual report on its Form 10-K for each such fiscal year as filed with the SEC, will satisfy Parent’s and Borrower’s obligation under this Section 6.2(b) with respect to such fiscal year except with respect annual report to the requirement that such financial statements be reported on without a “going concern” or like qualification or exception, or qualification arising out Lender Group within 105 days of the scope of the audit), together with a certificate of such accountants addressed to Lender stating that such accountants do not have knowledge of the existence of any Default or Event of Default. Such annual financial statements shall be accompanied by a Compliance Certificate signed by the chief financial officer and/or chief accounting officer of Borrower certifying that:
(1) Parent is in compliance on a consolidated basis at the end of such its fiscal year year, which report is otherwise in compliance with all financial covenants required to be tested hereunder,
(2) the financial statements delivered hereunder have been prepared in accordance with GAAP and fairly present in all material respects the financial condition auditors' certification requirements of Parent and its direct and indirect Subsidiaries, and
(3) there does not exist any condition or event that constitutes a Default or Event of Default (or, to the extent of any non-compliance, describing such non-compliance as to which he or she may have knowledge and what action the applicable Obligated Party has taken, is taking, or proposes to take with respect thereto),
this clause (c) [Intentionally Deleted]), shall be deemed to satisfy the delivery requirement of this clause (c),
(d) as soon as availableif filed by GCI, but in any event by no later than the earlier of within 5 Business Days following such filing,
(yi) five (5) days after the date on which Parent files its 10-Q quarterly reports, Form 10-K annual reports, and Form 8-K current reports,
(ii) any other filings made by GCI with the SEC and SEC, and
(ziii) ninety (90) days following the last day of each of Parent’s fiscal years, copies of Projections for such fiscal year (including, for the avoidance of doubt, the 2016 Projections any other material information that is provided by GCI to be delivered on or before March 30, 2016), all as certified by the chief financial officer of Parent as being such officer’s good faith best estimate of the financial performance of Parent and its direct and indirect Subsidiaries during the period covered therebyshareholders generally,
(e) promptlyif and when filed by any Borrower and as requested by Agent in the exercise of its Permitted Discretion, but satisfactory evidence of payment of applicable excise taxes in each jurisdictions in which (i) any event within five Borrower conducts business or is required to pay any such excise tax, (5ii) Business Days after Borrower has knowledge where any Borrower's failure to pay any such applicable excise tax would result in a Lien on the properties or assets of any event or condition that constitutes a Default or an Event of Defaultsuch Borrower, notice thereof and a statement of the curative action that the applicable Obligated Party proposes to take with respect thereto,
(f) promptly after the commencement thereof, but in any event within five (5) Business Days after the service of process with respect thereto on any Obligated Party, notice of all actions, suitsas applicable, or proceedings brought by or against (iii) where any Borrower's failure to pay any such Obligated Party before any Governmental Authority which, if determined adversely to such Obligated Party, could reasonably be expected to result in applicable excise tax would constitute a Material Adverse Change,
(gf) promptlynot later than 45 days after the end of each of GCI's fiscal quarters, but in any event within ten (10) Business Days after Borrower has knowledge thereof, notify Lender a "Same Store Sales Analysis" comparing the sales of any material negative changes each Borrower's retail locations for such fiscal quarter to Borrower’s customer renewal rates, the comparable period for each such retail location for the immediately preceding fiscal year; and
(hg) upon the request of LenderAgent, in the exercise of its Permitted Discretion, any other information report reasonably requested relating to the financial condition of any Obligated PartyBorrowers. Each Borrower agrees to deliver financial statements prepared on a consolidated basis and that no Obligor will have a fiscal year different from that of GCI.
Appears in 1 contract
Financial Statements, Reports, Certificates. Deliver to Lender:: -41- 48
(a) as soon as available, but in any event by no later than within 30 days (45 days in the earlier case of (ya month that is the end of one of the first 3 fiscal quarters in a fiscal year) five (5) days after the date on which Parent files its Form 10-Q with the SEC and (z) forty five (45) days following the last day end of each month during each of Parent’s first three (3) Borrower's fiscal quarters of each fiscal yearyears,
(i) a company prepared consolidated balance sheet sheet, income statement, and income statement of cash flow covering the operations of Parent Borrower's and its direct and indirect Subsidiaries Subsidiaries' operations during such period and the year-to-date period ending thereon, with comparisons against the balance sheet for the immediately preceding fiscal year and income statement for the corresponding period during the immediately preceding fiscal year, (it being agreed that the furnishing of Parent’s quarterly report on Form 10-Q for each such fiscal quarter, as filed with the SEC, will satisfy Parent’s and Borrower’s obligations under this Section 6.2(a)(i) with respect to such fiscal quarter)period,
(ii) a Compliance Certificate certificate signed by the chief financial officer and/or chief accounting officer of Borrower certifying to the effect that:
(1A) the financial statements delivered hereunder have been prepared in accordance with GAAP (except for the lack of footnotes and being subject to year-end audit adjustments) and fairly present in all material respects the financial condition of Parent Borrower and its direct Subsidiaries,
(B) the representations and indirect Subsidiaries, warranties of Borrower and demonstrating Canadian Subsidiary contained in this Agreement and the compliance by Parent other Loan Documents are true and correct in all material respects on a consolidated basis at and as of the end date of such quarter with all financial covenants required certificate, as though made on and as of such date (except to be tested hereunderthe extent that such representations and warranties relate solely to an earlier date), and
(2C) there does not exist any condition or event that constitutes a Default or Event of Default (or, to the extent of any non-compliance, describing such non-compliance as to which he or she may have knowledge and what action the applicable Obligated Party Borrower has taken, is taking, or proposes to take with respect thereto),
(iii) for each month that is the date on which a financial covenant in Section 7.20 is to be tested, a Compliance Certificate demonstrating, in reasonable detail, compliance at the end of such period with the applicable financial covenants contained in Section 7.20, and
(iv) within 30 days after the end of each fiscal quarter during each of Borrower's fiscal years, a Compliance Certificate setting forth, in reasonable detail, the Twelve Month Trailing EBITDA, and
(b) as soon as available, but in any event by no later than the earlier of (y) five (5) within 90 days after the date on which Parent files its Form 10-K with the SEC and (z) ninety (90) days following the last day end of each of Parent’s Borrower's fiscal years, consolidated ,
(i) financial statements of Parent Borrower and its direct and indirect Subsidiaries for each such fiscal year, audited by independent certified public accountants reasonably acceptable to Lender in (and Ernst & Young and any other nationally recognized public accounting firm shall be deemed reasonably acceptable to Lender’s Permitted Discretion ) and certified, without any qualifications (including any (A) “going concern” or like qualification or exception, or (B) qualification or exception as to the scope of such auditqualifications, by such accountants to have been prepared in accordance with GAAP) GAAP (it being agreed that the furnishing of Parent’s annual report on Form 10-K for each such fiscal year as filed with the SEC, will satisfy Parent’s and Borrower’s obligation under this Section 6.2(b) with respect to such fiscal year except with respect to the requirement that such audited financial statements be reported on without to include a “going concern” or like qualification or exceptionbalance sheet, or qualification arising out income statement, and statement of the scope of the auditcash flow and, if prepared, such accountants' letter to management), together with ,
(ii) a certificate of such accountants addressed to Lender stating that such accountants do not have knowledge of the existence of any Default or Event of Default. Such annual financial statements shall be accompanied by a Compliance Certificate signed by the chief financial officer and/or chief accounting officer of Borrower certifying that:
(1Default under Sections 7.20(a) Parent is in compliance on a consolidated basis at the end of such fiscal year with all financial covenants required to be tested hereunder,
(2) the financial statements delivered hereunder have been prepared in accordance with GAAP and fairly present in all material respects the financial condition of Parent and its direct and indirect Subsidiaries, and
(3) there does not exist any condition or event that constitutes a Default or Event of Default (or, to the extent of any non-compliance, describing such non-compliance as to which he or she may have knowledge and what action the applicable Obligated Party has taken, is taking, or proposes to take with respect thereto7.20(b),
(c) [Intentionally Deleted],
(d) as soon as available, but in any event by no later than within 30 days prior to the earlier of (y) five (5) days after the date on which Parent files its Form 10-K with the SEC and (z) ninety (90) days following the last day start of each of Parent’s Borrower's fiscal years, ,
(i) copies of Borrower's Projections, in form, substance (including as to scope and underlying assumptions) and detail comparable to Projections for such fiscal year (including, either previously delivered to Lender and/or otherwise reasonably acceptable to Lender for the avoidance of doubtforthcoming three years, year by year, and for the 2016 Projections to be delivered on or before March 30forthcoming fiscal year, 2016)month by month, all as certified by the chief financial officer of Parent Borrower as being such officer’s 's good faith best estimate of the financial performance of Parent and its direct and indirect Subsidiaries Borrower during the period covered thereby,
(d) if and when filed by Borrower, and to the extent not already delivered,
(i) Form 10-Q quarterly reports, Form 10-K annual reports, and Form 8-K current reports,
(ii) any other filings made by Borrower with the SEC,
(iii) copies of Borrower's federal income tax returns, and any amendments thereto, filed with the Internal Revenue Service, and
(iv) any other information that is provided by Borrower to its shareholders generally,
(e) promptlyif and when filed by Borrower and as requested by Lender, but satisfactory evidence of payment of applicable excise taxes in each jurisdictions in which (i) Borrower conducts business or is required to pay any event within five such excise tax, (5ii) Business Days after where Borrower's failure to pay any such applicable excise tax would result in a Lien on the properties or assets of Borrower, or (iii) where Borrower's failure to pay any such applicable excise tax reasonably could be expected to result in a Material Adverse Change,
(f) as soon as Borrower has knowledge of any event or condition that constitutes a Default or an Event of Default, notice thereof and a statement of the curative action that the applicable Obligated Party Borrower proposes to take with respect thereto,
(f) promptly after the commencement thereof, but in any event within five (5) Business Days after the service of process with respect thereto on any Obligated Party, notice of all actions, suits, or proceedings brought by or against such Obligated Party before any Governmental Authority which, if determined adversely to such Obligated Party, could reasonably be expected to result in a Material Adverse Change,
(g) promptly, but in any event within ten (10) Business Days after Borrower has knowledge thereof, notify Lender of any material negative changes to Borrower’s customer renewal rates, and
(hg) upon the request of Lender, any other information report reasonably requested relating to the financial condition of Borrower and Canadian Subsidiary. In addition to the financial statements referred to above, Borrower agrees to deliver financial statements prepared on both a consolidated and consolidating basis and agrees that no Subsidiary of Borrower will have a fiscal year different from that of Borrower. Borrower agrees that its independent certified public accountants are authorized to communicate with Lender and to release to Lender whatever financial information concerning Borrower Lender reasonably may request. Borrower waives the right to assert a confidential relationship, if any, it may have with any Obligated Partyaccounting firm or service bureau in connection with any information requested by Lender pursuant to or in accordance with this Agreement, and agrees that Lender may contact directly any such accounting firm or service bureau in order to obtain such information.
Appears in 1 contract
Financial Statements, Reports, Certificates. Deliver Holdings or AMTROL (as the case may be) shall deliver to Agent, with copies to each Lender:
(a) as soon as available, but in any event by no later within 30 days (45 days in the case of a month that is the end of one of the first 3 fiscal quarters in a fiscal year) after the end of each month (other than the earlier of (y) five (5) days after the date on which Parent files its Form 10-Q with the SEC and (z) forty five (45) days following the last day of each of Parent’s first three (3) fiscal quarters month of each fiscal year) during each of AMTROL's fiscal years,
(i) balance sheets, income statements, and statements of cash flow prepared on a consolidated balance sheet and income statement covering the operations of Parent basis for AMTROL's and its direct Subsidiaries' operations and indirect Subsidiaries separately for the North American Operations during such period and the year-to-date period ending thereon, with comparisons against the balance sheet for the immediately preceding fiscal year and income statement for the corresponding period during the immediately preceding fiscal year, (it being agreed that the furnishing of Parent’s quarterly report on Form 10-Q for each such fiscal quarter, as filed with the SEC, will satisfy Parent’s and Borrower’s obligations under this Section 6.2(a)(i) with respect to such fiscal quarter)period,
(ii) a Compliance Certificate certificate signed by the chief financial officer and/or chief accounting officer of Borrower certifying AMTROL to the effect that:
(1) A. the financial statements delivered hereunder have been prepared in accordance with GAAP (except for the lack of footnotes and being subject to year-end audit adjustments) and fairly present in all material respects the financial condition of Parent AMTROL and its direct Subsidiaries and indirect Subsidiaries, and demonstrating the compliance by Parent on a consolidated basis at the end of such quarter with all financial covenants required to be tested hereunderNorth American Operations (as applicable), and
(2) B. there does not exist any condition or event that constitutes a Default or Event of Default (or, to the extent of any non-compliance, describing such non-compliance as to which he or she may have knowledge and what action the applicable Obligated Party has Borrowers have taken, is are taking, or proposes propose to take with respect thereto),, and
(iii) for each month that is the date on which a financial covenant in SECTION 7.20 is to be tested, a Compliance Certificate demonstrating, in -71- reasonable detail, compliance at the end of such period with the applicable financial covenants contained in SECTION 7.20, and
(b) as soon as available, but in any event by no later than the earlier of (y) five (5) within 90 days after the date on which Parent files its Form 10-K with the SEC and (z) ninety (90) days following the last day end of each of Parent’s AMTROL's fiscal years, ,
(i) consolidated financial statements of Parent AMTROL and its direct and indirect Subsidiaries for each such fiscal year, audited by independent certified public accountants reasonably acceptable to Lender in Lender’s Permitted Discretion Agent and certified, without any qualifications (including any (A) “going concern” or like qualification or exception, or (B) qualification or exception as to the scope of such auditqualifications, by such accountants to have been prepared in accordance with GAAP) GAAP (it being agreed that the furnishing of Parent’s annual report on Form 10-K for each such fiscal year as filed with the SEC, will satisfy Parent’s and Borrower’s obligation under this Section 6.2(b) with respect to such fiscal year except with respect to the requirement that such audited financial statements be reported on without to include a “going concern” or like qualification or exceptionbalance sheet, or qualification arising out income statement, and statement of the scope of the auditcash flow and, if prepared, such accountants' letter to management), together with ,
(ii) a certificate of such accountants addressed to Lender Agent and the Lenders stating that such accountants do not have knowledge of the existence of any Default or Event of Default. Such annual financial statements shall be accompanied by a Compliance Certificate signed by the chief financial officer and/or chief accounting officer of Borrower certifying that:
(1) Parent is in compliance on a consolidated basis at the end of such fiscal year with all financial covenants required to be tested hereunder,
(2) the financial statements delivered hereunder have been prepared in accordance with GAAP and fairly present in all material respects the financial condition of Parent and its direct and indirect Subsidiaries, and
(3) there does not exist any condition or event that constitutes a Default or Event of Default (or, to the extent of any non-compliance, describing such non-compliance as to which he or she may have knowledge and what action the applicable Obligated Party has taken, is taking, or proposes to take with respect thereto)under SECTION 7.20,
(c) [Intentionally Deleted],
(d) as soon as available, but in any event by no later than the earlier of (y) five (5) within 30 days after the date on which Parent files its Form 10-K with the SEC and (z) ninety (90) days following the last day start of each of Parent’s AMTROL's fiscal years, copies of Projections for such fiscal year the Projections, in form and substance (includingincluding as to scope and underlying assumptions) satisfactory to Agent, in its sole discretion, for the avoidance of doubtforthcoming 3 years, year by year, and for the 2016 Projections to be delivered on or before March 30forthcoming fiscal year, 2016)month by month, all as certified by the chief financial officer of Parent AMTROL as being such officer’s 's good faith best estimate of the financial performance of Parent AMTROL and its direct and indirect Subsidiaries during the period covered thereby,
(d) if and when filed by Holdings or any Borrower,
(i) 10-Q quarterly reports, Form 10-K annual reports, and Form 8-K current reports, and
(ii) any other filings made by Holdings or any Borrower with the SEC,
(e) promptlyif and when reasonably requested by Agent, but copies of Holdings' or Borrowers' federal income tax returns, and any amendments thereto, filed with the Internal Revenue Service,
(f) if and when filed by any Borrower and as reasonably requested by Agent, satisfactory evidence of payment of applicable excise taxes in each jurisdictions in which (i) any event within five Borrower conducts business or is required to pay any such excise tax, (5ii) Business Days after where any Borrower's failure to pay any such applicable excise tax would result in a Lien on the properties or assets of any Borrower, or (iii) where any Borrower's failure to pay any such applicable excise tax reasonably could be expected to result in a Material Adverse Change,
(g) as soon as Holdings or a Borrower has knowledge of any event or condition that constitutes a Default or an Event of Default, notice thereof and a statement of the curative action that the applicable Obligated Party proposes Holdings or Borrowers propose to take with respect thereto,
(fh) as soon as available, (i) copies of any amendment or other modification of any Other Senior Debt Loan Document or the Indenture, (ii) copies of material notices and other correspondence that Holdings or any Borrower executes, receives or sends in connection with (A) any Other Senior Debt Loan Document to an Other Senior Lender in its capacity as a lender thereunder or (B) the Indenture, and (iii) written notice of any potential or actual default under any Other Senior Debt Loan Document or the Indenture,
(i) promptly after the commencement thereof, but in any event within five (5) Business Days 5 days after the service of process with respect thereto on any Obligated Loan Party, notice of all actions, suits, suits or proceedings brought by or against such Obligated any Loan Party before any Governmental Authority which, if determined adversely to such Obligated Party, which could reasonably be expected to result in a Material Adverse Change,
(gj) promptlyafter December 31, but in any event within ten (10) 2001, not less than 10 Business Days after Borrower has knowledge thereof, notify Lender Days' prior to the making of any material negative changes regularly scheduled semi-annual payment of interest on the Senior Subordinated Notes, Borrowers shall deliver a certificate stating that after giving effect to Borrower’s customer renewal ratessuch interest payment Availability will not be less than $1,500,000, and
(hk) upon the request of LenderAgent, any other information report reasonably requested relating to the financial condition of Borrowers. In addition to the financial statements referred to above, AMTROL agrees that no Borrower, or any Obligated PartySubsidiary of a Borrower, will have a fiscal year different from that of AMTROL. Borrowers agree that their independent certified public accountants are authorized to communicate with Agent and to release to Agent whatever financial information relating to the affairs, finances or accounts of Borrowers that Agent reasonably may request; PROVIDED, that Agent shall provide notice to Administrative Borrower promptly after Agent communicates with such accountants. Each Borrower waives the right to assert a confidential relationship, if any, it may have with any accounting firm or service bureau in connection with any information requested by Agent pursuant to or in accordance with this Agreement (other than with respect to information protected by the attorney-client privilege), and agree that Agent may contact directly any such accounting firm or service bureau in order to obtain such information.
Appears in 1 contract
Financial Statements, Reports, Certificates. Deliver to Lender:
(a) as soon as available, but in any event by no later than within 30 days (45 days in the earlier case of (ya month that is the end of one of the first 3 fiscal quarters in a fiscal year) five (5) days after the date on which Parent files its Form 10-Q with the SEC and (z) forty five (45) days following the last day end of each month during each of Parent’s first three (3) Borrower's fiscal quarters of each fiscal yearyears,
(i) a company prepared consolidated balance sheet sheet, income statement, and income a calendar quarter end statement of cash flow covering the operations of Parent Borrower's and its direct and indirect Subsidiaries Subsidiaries' operations during such period and the year-to-date period ending thereon, with comparisons against the balance sheet for the immediately preceding fiscal year and income statement for the corresponding period during the immediately preceding fiscal year, (it being agreed that the furnishing of Parent’s quarterly report on Form 10-Q for each such fiscal quarter, as filed with the SEC, will satisfy Parent’s and Borrower’s obligations under this Section 6.2(a)(i) with respect to such fiscal quarter)period,
(ii) a Compliance Certificate certificate signed by the chief financial officer and/or chief accounting officer of Borrower certifying to the effect that:
, to the best of his or her knowledge or belief: (1x) the financial statements delivered hereunder have been prepared representations and warranties of Borrower contained in accordance with GAAP (except for Section 5 of this Agreement and in the lack of footnotes other Loan Documents are true and being subject to year-end audit adjustments) and fairly present correct in all material respects on and as of the financial condition of Parent and its direct and indirect Subsidiaries, and demonstrating the compliance by Parent on a consolidated basis at the end date of such quarter with all financial covenants required certificate, as though made on and as of such date (except to be tested hereunder, and
the extent that such representations and warranties relate solely to an earlier date); and (2y) there does not exist any condition or event that constitutes a Default or Event of Default (or, to the extent of any non-compliance, describing such non-compliance as to which he or she may have knowledge and what action the applicable Obligated Party Borrower has taken, is taking, or proposes to take with respect thereto),, and
(iii) for each month that is the date on which a financial covenant in Section 7.20 is to be tested, a Compliance Certificate demonstrating, in reasonable detail, compliance at the end of such period with the applicable financial covenants contained in Section 7.20;
(b) as soon as available, but in any event by no later than the earlier of (y) five (5) within 90 days after the date on which Parent files its Form 10-K with the SEC and (z) ninety (90) days following the last day end of each of Parent’s Borrower's fiscal years, consolidated ,
(i) financial statements of Parent Borrower and its direct and indirect Subsidiaries for each such fiscal year, audited by independent certified public accountants reasonably acceptable to Lender in Lender’s Permitted Discretion and certified, without any qualifications (including any (A) “going concern” or like qualification or exception, or (B) qualification or exception as to the scope of such auditqualifications, by such accountants to have been prepared in accordance with GAAP) GAAP (it being agreed that the furnishing such audited financial statements to include a balance sheet, income statement, and statement of Parent’s annual report on Form 10-K for each cash flow and, if prepared, such fiscal year as filed with the SEC, will satisfy Parent’s and Borrower’s obligation under this Section 6.2(b) with respect to such fiscal year except with respect accountants' management letter regarding internal accounting controls to the requirement that such financial statements be reported on without a “going concern” or like qualification or exception, or qualification arising out audit committee of the scope Borrower's board of the auditdirectors), together with and
(ii) a certificate of such accountants addressed to Lender stating that such accountants do not have knowledge of the existence of any Default or Event of Default. Such Default under Section 7.20;
(c) as soon as available, but in any event within 30 days prior to the start of each of Borrower's fiscal years, copies of Borrower's Projections, substantially similar in form to the form of the Closing Date Business Plan and satisfactory in substance to Lender, in its Permitted Discretion, for the forthcoming fiscal year, on a quarterly basis, certified by the chief financial officer of Borrower as being Borrower's good faith best estimate of the financial performance of Borrower during the period covered thereby;
(d) if and when filed by Borrower,
(i) Form 10-Q quarterly reports, Form 10-K annual financial statements shall be accompanied reports, and Form 8-K current reports,
(ii) any other filings made by Borrower with the SEC,
(iii) copies of Borrower's federal income tax returns, and any amendments thereto, filed with the Internal Revenue Service, and
(iv) any other information that is provided by Borrower to its shareholders generally;
(e) as soon as available, but in any event within 45 days after the end of each fiscal quarter during each of Borrower's fiscal years, a Compliance Certificate certificate signed by the chief financial officer and/or chief accounting officer of Borrower certifying to the effect that:
(1) Parent is in compliance on a consolidated basis at , to the end best of such fiscal year with all financial covenants required to be tested hereunder,
(2) his or her knowledge, the quarterly financial statements delivered hereunder have been prepared in accordance with GAAP (except for the lack of footnotes and being subject to year-end audit adjustments) and fairly present in all material respects the financial condition of Parent Borrower and its direct and indirect Subsidiaries, and;
(3f) there does not exist any condition or event that constitutes a Default or Event if and when filed by Borrower and as requested by Lender, satisfactory evidence of Default payment of all applicable excise taxes (or, to the extent such taxes exceed $500,000 in the aggregate) in each jurisdiction in which (i) Borrower is required to pay any such excise tax, (ii) where Borrower's failure to pay any such applicable excise tax would result in a Lien on the properties or assets of any non-compliance, describing such non-compliance as to which he or she may have knowledge and what action the applicable Obligated Party has taken, is takingBorrower, or proposes (iii) where Borrower's failure to take with respect thereto),pay any such applicable excise tax reasonably could be expected to result in a Material Adverse Change;
(c) [Intentionally Deleted],
(dg) as soon as available, but in any event by no later than the earlier of (y) five (5) days after the date on which Parent files its Form 10-K with the SEC and (z) ninety (90) days following the last day of each of Parent’s fiscal years, copies of Projections for such fiscal year (including, for the avoidance of doubt, the 2016 Projections to be delivered on or before March 30, 2016), all as certified by the chief financial officer of Parent as being such officer’s good faith best estimate of the financial performance of Parent and its direct and indirect Subsidiaries during the period covered thereby,
(e) promptly, but in any event within five (5) Business Days after Borrower has knowledge of any event or condition that constitutes a Default or an Event of Default, notice thereof and a statement of the curative action that the applicable Obligated Party Borrower proposes to take with respect thereto,
(f) promptly after the commencement thereof, but in any event within five (5) Business Days after the service of process with respect thereto on any Obligated Party, notice of all actions, suits, or proceedings brought by or against such Obligated Party before any Governmental Authority which, if determined adversely to such Obligated Party, could reasonably be expected to result in a Material Adverse Change,
(g) promptly, but in any event within ten (10) Business Days after Borrower has knowledge thereof, notify Lender of any material negative changes to Borrower’s customer renewal rates, ; and
(h) upon the request of Lender, in its Permitted Discretion, any other information reasonably requested report relating to the financial condition of Borrower. In addition to the financial statements referred to above, Borrower agrees to deliver financial statements prepared on both a consolidated (including, without limitation, a calendar quarter end statement of cash flows) and consolidating (excluding statement of cash flows) basis and agrees that no Subsidiary of Borrower will have a fiscal year different from that of Borrower. Borrower agrees that its independent certified public accountants are authorized to communicate with Lender and to release to Lender whatever financial information concerning Borrower Lender reasonably may request. Borrower waives the right to assert a confidential relationship, if any, it may have with any Obligated Partyaccounting firm or service bureau in connection with any reasonable information requested by Lender pursuant to or in accordance with this Agreement, and agrees that Lender may contact directly any such accounting firm or service bureau in order to obtain such information.
Appears in 1 contract
Financial Statements, Reports, Certificates. Deliver to Lender:
(a) as soon as available, but in any event by no later than within 30 days (45 days in the earlier case of (ya month that is the end of one of the first 3 fiscal quarters in a fiscal year) five (5) days after the date on which Parent files its Form 10-Q with the SEC and (z) forty five (45) days following the last day end of each month during each of Parent’s first three (3) Borrowers' fiscal quarters of each fiscal yearyears,
(i) a company-prepared unaudited consolidated (and, to the extent available, consolidating) balance sheet sheet, income statement, and income statement of cash flow covering the Borrowers' operations of Parent and its direct and indirect Subsidiaries during such period and the year-to-date period ending thereon, with comparisons against the balance sheet for the immediately preceding fiscal year and income statement for the corresponding period during the immediately preceding fiscal year, (it being agreed that the furnishing of Parent’s quarterly report on Form 10-Q for each such fiscal quarter, as filed with the SEC, will satisfy Parent’s and Borrower’s obligations under this Section 6.2(a)(i) with respect to such fiscal quarter)period,
(ii) a Compliance Certificate certificate signed by an Authorized Person to the chief financial officer and/or chief accounting officer of Borrower certifying effect that:
(1) A. the financial statements delivered hereunder have been prepared in accordance with GAAP (except for the lack of footnotes and being subject to quarter and year-end audit adjustments) and fairly present in all material respects the financial condition of Parent and its direct and indirect Subsidiaries, and demonstrating the compliance by Parent on a consolidated basis at the end of such quarter with all financial covenants required to be tested hereunderBorrowers, and
(2) B. there does not exist any condition or event that constitutes a Default or Event of Default (or, to the extent of any non-compliance, describing such non-compliance as to which he or she may have knowledge and what action the applicable Obligated Party has Borrowers have taken, is are taking, or proposes to take with respect thereto),, and
(iii) for each month that is the date on which a financial covenant in Section 7.20 is to be tested, a Compliance Certificate demonstrating, in reasonable detail, compliance at the end of such period with the applicable financial covenants contained in Section 7.20, and
(b) as soon as available, but in any event by no later than the earlier of (y) five (5) within 90 days after the date on which Parent files its Form 10-K with the SEC and (z) ninety (90) days following the last day end of each of Parent’s Borrowers' fiscal years, ,
(i) consolidated financial statements of Parent ARG and its direct and indirect Subsidiaries for each such fiscal year, audited by independent certified public accountants reasonably acceptable to Lender in Lender’s Permitted Discretion and certified, without any qualifications (including any (A) “going concern” or like qualification or exception, or (B) qualification or exception as to the scope of such auditqualifications, by such accountants to have been prepared in accordance with GAAP) GAAP (it being agreed that the furnishing of Parent’s annual report on Form 10-K for each such fiscal year as filed with the SEC, will satisfy Parent’s and Borrower’s obligation under this Section 6.2(b) with respect to such fiscal year except with respect to the requirement that such audited financial statements be reported on without to include a “going concern” or like qualification or exceptionbalance sheet, or qualification arising out income statement, and statement of the scope of the auditcash flow and, if prepared, such accountants' letter to management), together with ,
(ii) a certificate of such accountants addressed to Lender stating that such accountants do not have knowledge of the existence of any Default or Event of Default. Such annual financial statements shall be accompanied by a Compliance Certificate signed by the chief financial officer and/or chief accounting officer of Borrower certifying that:
(1) Parent is in compliance on a consolidated basis at the end of such fiscal year with all financial covenants required to be tested hereunder,
(2) the financial statements delivered hereunder have been prepared in accordance with GAAP and fairly present in all material respects the financial condition of Parent and its direct and indirect Subsidiaries, and
(3) there does not exist any condition or event that constitutes a Default or Event of Default (or, to the extent of any non-compliance, describing such non-compliance as to which he or she may have knowledge and what action the applicable Obligated Party has taken, is taking, or proposes to take with respect thereto)under Section 7.20,
(c) [Intentionally Deleted],
(d) as soon as available, but in any event by no later than within 30 days prior to the earlier of (y) five (5) days after the date on which Parent files its Form 10-K with the SEC and (z) ninety (90) days following the last day start of each of Parent’s Borrowers' fiscal years, copies of Projections for such fiscal year (includingARG's consolidated Projections, comparable in scope and underlying assumptions to the Closing Date Business Plan or in scope and containing underlying assumptions reasonably satisfactory to Lender, for the avoidance forthcoming 2 years or lesser period of doubttime until the Maturity Date, year by year, and for the 2016 Projections to be delivered on or before March 30forthcoming fiscal year, 2016)month by month, all as certified by the chief financial officer of Parent an Authorized Person as being such officer’s good Authorized Person's good-faith best estimate of the financial performance of Parent and its direct and indirect Subsidiaries Borrowers during the period covered thereby,
(d) if and when filed by any Borrower or its Subsidiaries, as applicable,
(i) 10-Q quarterly reports, Form 10-K annual reports, and Form 8-K current reports,
(ii) any other filings made by any Borrower with the SEC,
(iii) if requested by Lender, copies of Borrowers' and its Subsidiaries' federal income tax returns, and any amendments thereto, filed with the Internal Revenue Service, and
(iv) any other information that is provided by any Borrower to its shareholders generally,
(e) promptlyif and when filed by any Borrower or any of its Subsidiaries and as requested by Lender, but satisfactory evidence of payment of applicable taxes in each jurisdictions in which (i) such Borrower or such Subsidiary conducts business or is required to pay any event within five such tax, (5ii) Business Days after where such Borrower's or such Subsidiary's failure to pay any such applicable tax would result in a Lien on the properties or assets of such Borrower has or such Subsidiary, or (iii) where such Borrower's or such Subsidiary's failure to pay any such applicable tax reasonably could be expected to result in a Material Adverse Change,
(f) as soon as Borrowers have knowledge of any event or condition that constitutes a Default or an Event of Default, notice thereof and a statement of the curative action that the applicable Obligated Party proposes Borrowers propose to take with respect thereto,
(f) promptly after the commencement thereof, but in any event within five (5) Business Days after the service of process with respect thereto on any Obligated Party, notice of all actions, suits, or proceedings brought by or against such Obligated Party before any Governmental Authority which, if determined adversely to such Obligated Party, could reasonably be expected to result in a Material Adverse Change,
(g) promptly, but in any event within ten (10) Business Days after Borrower has knowledge thereof, notify Lender of any material negative changes to Borrower’s customer renewal rates, and
(hg) upon the request of Lender, any other information report reasonably requested relating to the financial condition of Borrowers or their respective Subsidiaries. In addition to the financial statements referred to above, Borrowers agree to deliver financial statements prepared on both a consolidated (and, to the extent available, consolidating) basis and each agrees that no Subsidiary of any Obligated PartyBorrower will have a fiscal year different from that of ARG. ARG agrees on behalf of itself and its Subsidiaries that its independent certified public accountants are authorized to communicate with Lender and to release to Lender (with a copy to Borrowers) whatever financial information concerning any Borrower or its Subsidiaries that Lender reasonably may request. ARG waives for itself and its Subsidiaries the right to assert a confidential relationship, if any, they may have with any accounting firm or service bureau in connection with any information requested by Lender pursuant to or in accordance with this Agreement, and agrees that Lender may contact directly any such accounting firm or service bureau in order to obtain such information.
Appears in 1 contract
Financial Statements, Reports, Certificates. Deliver to the Agent, with copies to each Lender:
(ai) as soon as available, but in any event by no later than the earlier of (y) five (5) days after the date on which Parent files its Form 10within forty-Q with the SEC and (z) forty five (45) days following after the last day end of each month during each of ParentGroup’s first three (3) fiscal quarters of each fiscal year,Fiscal Years:
(iA) company prepared financial statements containing such financial information as is either distributed to Xxxxx Fargo or is utilized by management for internal review and oversight of operations, covering the previous month;
(B) a consolidated balance sheet and income statement covering the operations of Parent and its direct and indirect Subsidiaries during such period and the year-to-date period ending thereon, with comparisons against the balance sheet for the immediately preceding fiscal year and income statement for the corresponding period during the immediately preceding fiscal year, (it being agreed that the furnishing of Parent’s quarterly report on Form 10-Q for each such fiscal quarter, as filed with the SEC, will satisfy Parent’s and Borrower’s obligations under this Section 6.2(a)(i) with respect to such fiscal quarter),
(ii) a Compliance Certificate certificate signed by the chief financial officer and/or chief accounting officer of Borrower certifying Group to the effect that:
(1) the financial statements delivered hereunder have been prepared in accordance with GAAP (except for the lack of footnotes and being subject to year-end audit adjustments) and fairly present in all material respects the financial condition of Parent Group and its direct and indirect Subsidiaries, and demonstrating the compliance by Parent on a consolidated basis at the end of such quarter with all financial covenants required to be tested hereunder, and
(2) there does not exist any condition or event that constitutes a Default or Event of Default (or, to the extent of any non-compliance, describing such non-compliance as to which he or she may have knowledge and what action the applicable Obligated Party has taken, is taking, or proposes to take with respect thereto),
(b) as soon as available, but in any event by no later than the earlier of (y) five (5) days after the date on which Parent files its Form 10-K with the SEC and (z) ninety (90) days following the last day of each of Parent’s fiscal years, consolidated financial statements of Parent and its direct and indirect Subsidiaries for each such fiscal year, audited by independent certified public accountants acceptable to Lender in Lender’s Permitted Discretion and certified, without any qualifications (including any (A) “going concern” or like qualification or exception, or (B) qualification or exception as to the scope of such audit, by such accountants to have been prepared in accordance with GAAP) (it being agreed that the furnishing of Parent’s annual report on Form 10-K for each such fiscal year as filed with the SEC, will satisfy Parent’s and Borrower’s obligation under this Section 6.2(b) with respect to such fiscal year except with respect to the requirement that such financial statements be reported on without a “going concern” or like qualification or exception, or qualification arising out of the scope of the audit), together with a certificate of such accountants addressed to Lender stating that such accountants do not have knowledge of the existence of any Default or Event of Default. Such annual financial statements shall be accompanied by a Compliance Certificate signed by the chief financial officer and/or chief accounting officer of Borrower certifying that:
(1) Parent is in compliance on a consolidated basis at the end of such fiscal year with all financial covenants required to be tested hereunder,
(2) the financial statements delivered hereunder have been prepared representations and warranties of the Borrowers contained in accordance with GAAP this Agreement and fairly present the other Loan Documents are true and correct in all material respects on and as of the financial condition date of Parent such certificate, as though made on and its direct as of such date (except to the extent that any such representations and indirect Subsidiarieswarranties expressly relate solely to an earlier date, in which case such representations and warranties were true and correct in all material respects on such earlier date), and
(3) there does not exist any condition or event that constitutes a Default or Event of Default (or, to the extent of any non-compliance, describing such non-compliance as to which he or she may have knowledge and what action the applicable Obligated Party has Borrowers have taken, is are taking, or proposes propose to take with respect thereto),;
(c) [Intentionally Deleted],
(dii) as soon as available, but in any event by no later than the earlier of (y) within forty-five (545) days after the end of each quarter during each of Group’s Fiscal Years:
(A) a company prepared consolidated balance sheet, income statement, and statement of cash flow covering Group’s and its Subsidiaries’ operations during the previous month;
(B) a certificate signed by the chief financial officer of Group to the effect that:
(1) the financial statements delivered hereunder have been reviewed by an independent certified public accountant reasonably acceptable to the Agent (and for this purpose, MHM Xxxxxxx Xxxxx CPAs (the New York practice of Xxxxx Xxxxxxx XxXxxx P.C.) is deemed acceptable to the Agent), and have been prepared in accordance with GAAP (except for the lack of footnotes and being subject to year-end audit adjustments) and fairly present in all material respects the financial condition of Group and its Subsidiaries;
(2) the representations and warranties of the Borrowers contained in this Agreement and the other Loan Documents are true and correct in all material respects on and as of the date of such certificate, as though made on and as of such date (except to the extent that any such representations and warranties expressly relate solely to an earlier date, in which Parent files its Form 10case such representations and warranties were true and correct in all material respects on such earlier date),
(3) there does not exist any condition or event that constitutes a Default or Event of Default (or, to the extent of any non-K compliance, describing such non-compliance as to which he or she may have knowledge and what action the Borrowers have taken, are taking, or propose to take with respect thereto); and
(4) the SEC computation of the Debt Service Coverage Ratio attached to such certificate is true and correct.
(ziii) as soon as available, but in any event within ninety (90) days following after the last day end of each of ParentGroup’s fiscal yearsFiscal Years:
(A) financial statements of Group and its Subsidiaries for each such Fiscal Year, audited by independent certified public accountants reasonably acceptable to Agent (and for this purpose, MHM Xxxxxxx Xxxxx CPAs (the New York practice of Xxxxx Xxxxxxx XxXxxx P.C.) is deemed acceptable to the Agent) and certified, without any qualifications, by such accountants to have been prepared in accordance with GAAP (such audited financial statements to include a balance sheet, income statement, and statement of cash flow and, if prepared, such accountants’ letter to management); and
(B) a certificate signed by the chief financial officer of Group a containing a computation of the Debt Service Coverage Ratio.
(iv) as soon as available, but in any event within thirty (30) days prior to the start of each of Group’s Fiscal Years, copies of Projections for such fiscal year the Borrowers’ business plan, in form and substance (includingincluding as to scope and underlying assumptions and including all anticipated Capital Expenditures, store openings, and store closings during the covered period) satisfactory to the Agent, in its Permitted Discretion (the “Business Plan”), for the avoidance of doubtforthcoming year, the 2016 Projections to be delivered on or before March 30month by month, 2016), all as certified by the chief financial officer of Parent Group as being such officer’s good faith best estimate of the financial performance of Parent Group and its direct and indirect Subsidiaries during the period covered therebythereby (it being understood that (A) such information will be prepared by Group in good faith based upon assumptions believed to be reasonable at the time and based upon the best information then reasonably available to Group, and (B) Agent may in its Permitted Discretion, but shall not be under any obligation to, revise financial covenants set forth in Section 6.01(s) as a result of its review of such business plans, and to the extent Borrowers’ results of operations during the period covered by the Business Plan materially deviate from the Business Plan for the period covered.
(v) if and when filed by any Loan Party:
(A) Form 10-Q quarterly reports, Form 10-K annual reports, and Form 8-K current reports,
(eB) promptly, but in any event within five (5) Business Days after Borrower has knowledge of other filings made by any event or condition that constitutes a Default or an Event of Default, notice thereof and a statement of Loan Party with the curative action that the applicable Obligated Party proposes to take with respect theretoSEC,
(fC) promptly after copies of the commencement thereoffederal income tax returns of each Borrower, but and any amendments thereto, filed with the Internal Revenue Service, and
(D) any other written information that is provided by Group to the holders of its Capital Stock (as such) generally;
(vi) if and when filed by any Borrower and as requested by Agent, evidence of payment satisfactory to the Agent (in its Permitted Discretion) of applicable excise taxes in each jurisdiction in (A) which any event within five Borrower conducts business or is required to pay any such excise tax, (5B) Business Days after where any Borrower’s failure to pay any such applicable excise tax would result in a Lien on the service properties or assets of process with respect thereto on any Obligated Party, notice of all actions, suitsBorrower, or proceedings brought by (C) where any Borrower’s failure to pay any such applicable excise tax, either individually or against such Obligated Party before any Governmental Authority which, if determined adversely to such Obligated Partyin the aggregate, could reasonably be expected to result in a Material Adverse Change,Effect;
(gvii) promptlypromptly after submission to any Government Authority unless prohibited by applicable law, but all documents and information furnished to such Government Authority in connection with any investigation of any Loan Party other than routine inquiries by such Governmental Authority;
(viii) as soon as possible, and in any event within three days after the occurrence of an Event of Default or Default or the occurrence of any event or development that could reasonably be expected to have a Material Adverse Effect, the written statement of an Authorized Officer setting forth the details of such Event of Default, Default, other event or Material Adverse Effect and the action which Group and its Subsidiaries propose to take with respect thereto;
(A) as soon as possible and in any event (1) within ten (10) days after any Loan Party or any ERISA Affiliate thereof knows or has reason to know that any Termination Event described in clause (i) of the definition of Termination Event with respect to any Employee Plan has occurred, (2) within ten (10) days after any Borrower or any ERISA Affiliate thereof knows or has reason to know that any other Termination Event with respect to any Employee Plan has occurred, or (3) within ten (10) days after any Loan Party or any ERISA Affiliate thereof knows or has reason to know that an accumulated funding deficiency has been incurred or an application has been made to the Secretary of the Treasury for a waiver or modification of the minimum funding standard (including installment payments) or an extension of any amortization period under Section 412 of the Internal Revenue Code with respect to an Employee Plan, a statement of an Authorized Officer setting forth the details of such occurrence and the action, if any, which such Loan Party or such ERISA Affiliate proposes to take with respect thereto, (B) promptly and in any event within three days after receipt thereof by any Loan Party or any ERISA Affiliate thereof from the PBGC, copies of each notice received by any Loan Party or any ERISA Affiliate thereof of the PBGC’s intention to terminate any Plan or to have a trustee appointed to administer any Plan, (C) promptly and in any event within ten (10) Business Days days after Borrower the filing thereof with the Internal Revenue Service if requested by the Agent, copies of each Schedule B (Actuarial Information) to the annual report (Form 5500 Series) with respect to each Employee Plan and Multiemployer Plan, (D) promptly and in any event within ten (10) days after any Loan Party or any ERISA Affiliate thereof knows or has reason to know that a required installment within the meaning of Section 412 of the Internal Revenue Code has not been made when due with respect to an Employee Plan, (E) promptly and in any event within three days after receipt thereof by any Loan Party or any ERISA Affiliate thereof from a sponsor of a Multiemployer Plan or from the PBGC, a copy of each notice received by any Loan Party or any ERISA Affiliate thereof concerning the imposition or amount of withdrawal liability under Section 4202 of ERISA or indicating that such Multiemployer Plan may enter reorganization status under Section 4241 of ERISA, and (F) promptly and in any event within ten (10) days after any Loan Party or any ERISA Affiliate thereof send notice of a plant closing or mass layoff (as defined in WARN) to employees, copies of each such notice sent by such Loan Party or such ERISA Affiliate thereof;
(x) promptly after the commencement thereof but in any event not later than 5 days after service of process with respect thereto on, or the obtaining of knowledge thereof by, any Loan Party, notice of each action, suit or proceeding before any court or other Governmental Authority or other regulatory body or any arbitrator which, if adversely determined, could reasonably be expected to have a Material Adverse Effect;
(xi) promptly after the sending or filing thereof, notify Lender copies of all statements, reports and other information Group or any material negative changes other Loan Party sends to Borrower’s customer renewal ratesany holders of its Indebtedness or its securities or files with the SEC or any national (domestic or foreign) securities exchange, provided that the Loan Party may redact confidential information contained in any such statement, report or other information if it provides a summary of the nature of the information redacted to the Agent;
(xii) promptly upon receipt thereof, copies of all financial reports including, without limitation, management letters), if any, submitted to any Loan Party by its auditors in connection with any annual or interim audit of the books thereof; and
(hxiii) promptly upon the request of Lenderrequest, any such other information concerning the condition or operations, financial or otherwise, of any Loan Party as the Agent may from time to time may reasonably requested relating request. In addition to the financial condition statements referred to in clauses (i) and (ii) above, the Borrowers agree to deliver financial statements prepared on both a consolidated and consolidating basis. The Borrowers agree that, upon prior notice if no Default or Event of Default exists and without any Obligated Partynotice if any Default or Event of Default exists, their independent certified public accountants are authorized to communicate with the Agent and to release to the Agent whatever financial information concerning the Borrowers that the Agent reasonably may request. Each Borrower waives the right to assert a confidential relationship, if any, it may have with any accounting firm or service bureau in connection with any information requested by the Agent pursuant to or in accordance with this Agreement, and agrees that the Agent may contact directly any such accounting firm or service bureau in order to obtain such information.
Appears in 1 contract
Samples: Financing Agreement (Frederick's of Hollywood Group Inc /Ny/)
Financial Statements, Reports, Certificates. Deliver to Lender:
(a) as soon as available, but in any event by no later than within 30 days (45 days in the earlier case of (ya month that is the end of one of Borrower’s fiscal quarters) five (5) days after the date on which Parent files its Form 10-Q with the SEC and (z) forty five (45) days following the last day end of each month during each of ParentBorrower’s first three (3) fiscal quarters of each fiscal yearyears,
(i) a an unaudited consolidated and consolidating balance sheet sheet, income statement, and income statement of cash flow covering the operations of Parent Borrower’s and its direct and indirect Subsidiaries Subsidiaries’ operations during such period and the year-to-date period ending thereonperiod, with comparisons against the balance sheet for the immediately preceding fiscal year and income statement for the corresponding period during the immediately preceding fiscal year, (it being agreed that the furnishing of Parent’s quarterly report on Form 10-Q for each such fiscal quarter, as filed with the SEC, will satisfy Parent’s and Borrower’s obligations under this Section 6.2(a)(i) with respect to such fiscal quarter),and
(ii) a Compliance Certificate signed by the chief financial officer and/or chief accounting officer of Borrower certifying that:
(1) the financial statements delivered hereunder have been prepared in accordance with GAAP (except for the lack of footnotes and being subject to year-end audit adjustments) and fairly present in all material respects the financial condition of Parent and its direct and indirect Subsidiaries, and demonstrating the compliance by Parent on a consolidated basis at the end of such quarter with all financial covenants required to be tested hereunder, and
(2) there does not exist any condition or event that constitutes a Default or Event of Default (or, to the extent of any non-compliance, describing such non-compliance as to which he or she may have knowledge and what action the applicable Obligated Party has taken, is taking, or proposes to take with respect thereto)Certificate,
(b) as soon as available, but in any event by no later than the earlier of (y) five (5) within 90 days after the date on which Parent files its Form 10-K with the SEC and (z) ninety (90) days following the last day end of each of ParentBorrower’s fiscal years, ,
(i) consolidated and consolidating financial statements of Parent Borrower and its direct and indirect Subsidiaries for each such fiscal year, audited by independent certified public accountants reasonably acceptable to Lender in Lender’s Permitted Discretion and certified, without any qualifications (including any (A) “”going concern” or like qualification or exception, or (B) qualification or exception as to the scope of such audit, or (C) qualification which relates to the treatment or classification of any item and which, as a condition to the removal of such qualification, would require an adjustment to such item, the effect of which would be to cause any noncompliance with the provisions of Section 7.18), by such accountants to have been prepared in accordance with GAAP) GAAP (it being agreed that the furnishing of Parent’s annual report on Form 10-K for each such fiscal year as filed with the SEC, will satisfy Parent’s and Borrower’s obligation under this Section 6.2(b) with respect to such fiscal year except with respect to the requirement that such audited financial statements be reported on without to include a “going concern” or like qualification or exceptionbalance sheet, or qualification arising out income statement, and statement of the scope of the auditcash flow and, if prepared, such accountants’ letter to management), together with ,
(ii) a certificate of such accountants addressed to Lender stating that such accountants do not have knowledge of the existence of any Default or Event of Default. Such annual financial statements shall be accompanied by a Compliance Certificate signed by the chief financial officer and/or chief accounting officer of Borrower certifying that:
(1) Parent is in compliance on a consolidated basis at the end of such fiscal year with all financial covenants required to be tested hereunder,
(2) the financial statements delivered hereunder have been prepared in accordance with GAAP and fairly present in all material respects the financial condition of Parent and its direct and indirect SubsidiariesDefault under Section 7.18, and
(3iii) there does not exist any condition or event that constitutes a Default or Event of Default (or, to the extent of any non-compliance, describing such non-compliance as to which he or she may have knowledge and what action the applicable Obligated Party has taken, is taking, or proposes to take with respect thereto)Compliance Certificate,
(c) [Intentionally Deleted],
(d) as soon as available, but in any event by no later than within 30 days prior to the earlier of (y) five (5) days after the date on which Parent files its Form 10-K with the SEC and (z) ninety (90) days following the last day start of each of ParentBorrower’s fiscal years, copies of Projections for such fiscal year Borrower’s Projections, in form and substance (includingincluding as to scope and underlying assumptions) satisfactory to Lender, in its Permitted Discretion, for the avoidance of doubtforthcoming 3 years, year by year, and for the 2016 Projections to be delivered on or before March 30forthcoming fiscal year, 2016)month by month, all as certified by the chief financial officer of Parent Borrower as being such officer’s good faith best estimate of the financial performance of Parent and its direct and indirect Subsidiaries Borrower during the period covered thereby,
(d) if and when filed by Borrower,
(i) Form 10-Q quarterly reports, Form 10-K annual reports, and Form 8-K current reports,
(ii) any other filings made by Borrower with the SEC, and
(iii) copies of Borrower’s federal income tax returns, and any amendments thereto, filed with the Internal Revenue Service; provided, however, that the public filing of any document with the SEC shall be deemed to be delivery to Lender for purposes of this subsection (d),
(e) if and when provided, any other information that is provided by Borrower to its shareholders generally; provided, however, that the public filing of any document with the SEC shall be deemed to be delivery to Lender for purposes of this subsection (e),
(f) if and when filed by Borrower or its Subsidiaries and as requested by Lender, satisfactory evidence of payment of applicable excise taxes in each jurisdiction in which (i) Borrower or its Subsidiaries conducts business or is required to pay any such excise tax, (ii) where Borrower’s or its Subsidiaries’ failure to pay any such applicable excise tax would result in a Lien on the properties or assets of Borrower or such Subsidiaries, or (iii) where Borrower’s or its Subsidiaries’ failure to pay any such applicable excise tax reasonably could be expected to result in a Material Adverse Change,
(g) promptly, but in any event within five (5) Business Days 5 days after Borrower has knowledge of any event or condition that constitutes a Default or an Event of Default, notice thereof and a statement of the curative action that the applicable Obligated Party Borrower proposes to take with respect thereto,
(fh) promptly after the commencement thereof, but in any event within five (5) Business Days 5 days after the service of process with respect thereto on Borrower or any Obligated Partyof its Subsidiaries, notice of all actions, suits, or proceedings brought by or against such Obligated Party Borrower or any of its Subsidiaries before any Governmental Authority which, if determined adversely to such Obligated Party, which reasonably could reasonably be expected to result in a Material Adverse Change,
(gi) promptly, but in any event within ten (10) Business Days after Borrower has knowledge thereof, notify Lender notice of any material negative changes to Borrower’s customer renewal ratesreturn practices and policies, and
(hj) upon the request of Lender, any other information reasonably requested relating to the financial condition of any Obligated PartyBorrower or its Subsidiaries. In addition, Borrower agrees that no Subsidiary of Borrower will have a fiscal year different from that of Borrower. Borrower also agrees to cooperate with Lender to allow Lender to consult with its independent certified public accountants if Lender reasonably requests the right to do so and that, in such connection, its independent certified public accountants are authorized to communicate with Lender and to release to whatever financial information concerning Borrower or its Subsidiaries that Lender reasonably may request.
Appears in 1 contract
Financial Statements, Reports, Certificates. Deliver to Agent, with copies to each Lender:
(a) as soon as available, but in any event by no later than within 30 days (45 days in the earlier case of (ya month that is the end of one of the first 3 fiscal quarters in a fiscal year) five (5) days after the date on which Parent files its Form 10-Q with the SEC and (z) forty five (45) days following the last day end of each month during each of Parent’s first three (3) 's fiscal quarters of each fiscal year,years:
(i) a company prepared consolidated balance sheet and income statement covering the operations of Parent Parent's and its direct and indirect Subsidiaries Subsidiaries' operations during such period and the year-to-date period ending thereon, with comparisons against the balance sheet for the immediately preceding fiscal year and income statement for the corresponding period during the immediately preceding fiscal year, (it being agreed that the furnishing of Parent’s quarterly report on Form 10-Q for each such fiscal quarter, as filed with the SEC, will satisfy Parent’s and Borrower’s obligations under this Section 6.2(a)(i) with respect to such fiscal quarter),period;
(ii) a Compliance Certificate schedule of principal debt payments and a schedule of Capital Expenditures detailed as to financed and non-financed Capital Expenditures for Parent and its Subsidiaries during such period;
(iii) a certificate signed by the chief financial officer and/or chief accounting officer of Borrower certifying Parent to the effect that:
(1A) the financial statements delivered hereunder have been prepared consistent with past practices in accordance with GAAP (except for the lack of footnotes and being subject to year-end audit adjustments) and fairly present in all material respects the financial condition of Parent and its direct Subsidiaries,
(B) the representations and indirect Subsidiaries, warranties of Borrowers contained in this Agreement and demonstrating the compliance by Parent other Loan Documents are true and correct in all material respects on a consolidated basis at and as of the end date of such quarter with all financial covenants required certificate, as though made on and as of such date (except to be tested hereunder, the extent that such representations and warranties relate solely to an earlier date) and
(2C) there does not exist any condition or event that constitutes a Default or Event of Default (or, to the extent of any non-compliance, describing such non-compliance as to which he or she may have knowledge and what action the applicable Obligated Party has Borrowers have taken, is are taking, or proposes propose to take with respect thereto),;
(iv) for each month that is the date on which a financial covenant in Section 7.19 is to be tested, a Compliance Certificate demonstrating, in reasonable detail, compliance at the end of such period with the applicable financial covenants contained in Section 7.19;
(b) as soon as available, but in any event by no later than the earlier of (y) five (5) within 45 days after the date on which Parent files its Form 10-K with the SEC and end of each fiscal quarter (z) ninety (90) days following other than the last day fiscal quarter in a fiscal year), a company prepared statement of cash flow covering Parent's and its Subsidiaries' operations during such fiscal quarter;
(c) as soon as available, but in any event within 90 days after the end of each of Parent’s 's fiscal years, consolidated :
(i) financial statements of Parent and its direct and indirect Subsidiaries for each such fiscal year, audited by independent certified public accountants reasonably acceptable to Lender in Lender’s Permitted Discretion Agent and certified, without any qualifications (including any (A) “going concern” or like qualification or exception, or (B) qualification or exception as to the scope of such auditqualifications, by such accountants to have been prepared in accordance with GAAP) GAAP (it being agreed that the furnishing of Parent’s annual report on Form 10-K for each such fiscal year as filed with the SEC, will satisfy Parent’s and Borrower’s obligation under this Section 6.2(b) with respect to such fiscal year except with respect to the requirement that such audited financial statements be reported on without to include a “going concern” or like qualification or exceptionbalance sheet, or qualification arising out income statement, and statement of the scope of the auditcash flow and, if prepared, such accountants' letter to management), together with and
(ii) a certificate of such accountants addressed to Lender Agent and the Lenders stating that such accountants do not have knowledge of the existence of any Default or Event of Default. Such annual financial statements shall be accompanied by a Compliance Certificate signed by the chief financial officer and/or chief accounting officer of Borrower certifying that:
(1) Parent is in compliance on a consolidated basis at the end of such fiscal year with all financial covenants required to be tested hereunder,
(2) the financial statements delivered hereunder have been prepared in accordance with GAAP and fairly present in all material respects the financial condition of Parent and its direct and indirect Subsidiaries, and
(3) there does not exist any condition or event that constitutes a Default or Event of Default (or, to the extent of any non-compliance, describing such non-compliance as to which he or she may have knowledge and what action the applicable Obligated Party has taken, is taking, or proposes to take with respect thereto),
(c) [Intentionally Deleted],under Section 7.19;
(d) as soon as available, but in any event by no later than within 30 days prior to the earlier of (y) five (5) days after the date on which Parent files its Form 10-K with the SEC and (z) ninety (90) days following the last day start of each fiscal year of Parent’s fiscal years, copies of Projections for such fiscal year Borrowers' Projections, in form and substance (includingincluding as to scope and underlying assumptions) satisfactory to Agent, in its sole discretion, for the avoidance of doubtforthcoming 3 years, year by year, and for the 2016 Projections to be delivered on or before March 30forthcoming fiscal year, 2016)quarter by quarter, all as certified by the chief financial officer of Parent as being such officer’s 's good faith best estimate of the financial performance of Parent and its direct and indirect Subsidiaries during the period covered thereby,;
(e) promptlyif and when filed by any Borrower:
(i) 10-Q quarterly reports, but Form 10-K annual reports, and Form 8-K current reports,
(ii) any other filings made by any Borrower with the SEC,
(iii) copies of (A) Parent's federal income tax returns, and any amendments thereto, filed with the Internal Revenue Service and (B) upon request by Agent, such of the other Borrowers' federal income tax returns, and any amendments thereto, filed with the Internal Revenue Service as Agent may request, and
(iv) any other information that is provided by Parent to its shareholders generally;
(f) if and when filed by any Borrower and as requested by Agent, satisfactory evidence of payment of applicable excise taxes in each jurisdictions in which (i) any event within five Borrower conducts business or is required to pay any such excise tax, (5ii) Business Days after where any Borrower's failure to pay any such applicable excise tax would result in a Lien on the properties or assets of any Borrower, or (iii) where any Borrower's failure to pay any such applicable excise tax reasonably could be expected to result in a Material Adverse Change;
(g) as soon as a Borrower has knowledge of any event or condition that constitutes a Default or an Event of Default, notice thereof and a statement of the curative action that the applicable Obligated Party proposes Borrowers propose to take with respect thereto,;
(fh) promptly after as and when delivered by Parent or any Borrower to Whitney: (i) the commencement thereof, but in any event within five "Compliance Certificate" required to be delivered under the terms of Section 8.1(c) of the Whitney Agreement and (5ii) Business Days after the service projections required to be delivered under the terms of process with respect thereto on any Obligated Party, notice Section 8.1(f) of all actions, suits, or proceedings brought by or against such Obligated Party before any Governmental Authority which, if determined adversely to such Obligated Party, could reasonably be expected to result in a Material Adverse Change,
(g) promptly, but in any event within ten (10) Business Days after Borrower has knowledge thereof, notify Lender of any material negative changes to Borrower’s customer renewal rates, the Whitney Agreement; and
(hi) upon the request of LenderAgent, any other information report reasonably requested relating to the financial condition of Borrowers. In addition to the financial statements referred to above, Borrowers agree to deliver to Agent with copies for each Lender, as and when set forth above, annual financial statements prepared on both a consolidated and consolidating basis. Borrowers agree that no Borrower, or any Obligated PartySubsidiary of a Borrower, will have a fiscal year different from that of Parent. Borrowers agree that their independent certified public accountants are authorized to communicate with Agent and to release to Agent whatever financial information concerning Borrowers that Agent reasonably may request. Each Borrower waives the right to assert a confidential relationship, if any, it may have with any accounting firm or service bureau in connection with any information requested by Agent pursuant to or in accordance with this Agreement, and agree that Agent may contact directly any such accounting firm or service bureau in order to obtain such information.
Appears in 1 contract
Samples: Loan and Security Agreement (Mercury Air Group Inc)
Financial Statements, Reports, Certificates. Deliver to Agent, with copies to each Lender:
(a) as soon as available, but in any event by no later than within 30 days (45 days in the earlier case of (ya month that is the end of one of Parent’s fiscal quarters) five (5) days after the date on which Parent files its Form 10-Q with the SEC and (z) forty five (45) days following the last day end of each month during each of Parent’s first three (3) fiscal quarters of each fiscal yearyears,
(i) a company prepared consolidated balance sheet sheet, income statement, and income statement of cash flow covering the operations of Parent and its direct and indirect Subsidiaries during such period and the year-to-date period ending thereon, with comparisons against the balance sheet for the immediately preceding fiscal year and income statement for the corresponding period during the immediately preceding fiscal year, (it being agreed that the furnishing of Parent’s quarterly report on Form 10-Q for each such fiscal quarter, as filed with the SEC, will satisfy Parent’s and Borrower’s obligations under this Section 6.2(a)(i) with respect to its Subsidiaries’ operations during such fiscal quarter)period,
(ii) a Compliance Certificate certificate signed by the chief financial officer and/or chief accounting officer of Borrower certifying Parent to the effect that:
(1) A. the financial statements delivered hereunder have been prepared in accordance with GAAP (except for the lack of footnotes and being subject to year-end audit adjustments) and fairly present in all material respects the financial condition of Parent and its direct Subsidiaries,
B. the representations and indirect Subsidiaries, warranties of Borrowers contained in this Agreement and demonstrating the compliance by Parent other Loan Documents are true and correct in all material respects on a consolidated basis at and as of the end date of such quarter with all financial covenants required certificate, as though made on and as of such date (except to be tested hereunderthe extent that such representations and warranties relate solely to an earlier date), and
(2) C. there does not exist any condition or event that constitutes a Default or Event of Default (or, to the extent of any non-compliance, describing such non-compliance as to which he or she may have knowledge and what action the applicable Obligated Party has Borrowers have taken, is are taking, or proposes propose to take with respect thereto), and
(iii) for each month that is the date on which a financial covenant in Section 7.18 is to be tested, a Compliance Certificate demonstrating, in reasonable detail, compliance at the end of such period with the applicable financial covenants contained in Section 7.18,
(b) as soon as available, but in any event by no later than the earlier of (y) five (5) within 90 days after the date on which Parent files its Form 10-K with the SEC and (z) ninety (90) days following the last day end of each of Parent’s fiscal years, consolidated ,
(i) financial statements of Parent and its direct and indirect Subsidiaries for each such fiscal year, audited by independent certified public accountants reasonably acceptable to Lender in Lender’s Permitted Discretion Agent and certified, without any qualifications (including any (A) “going concern” or like qualification or exception, or (B) qualification or exception as to the scope of such auditqualifications, by such accountants to have been prepared in accordance with GAAP) GAAP (it being agreed that the furnishing of Parent’s annual report on Form 10-K for each such fiscal year as filed with the SEC, will satisfy Parent’s and Borrower’s obligation under this Section 6.2(b) with respect to such fiscal year except with respect to the requirement that such audited financial statements be reported on without to include a “going concern” or like qualification or exceptionbalance sheet, or qualification arising out income statement, and statement of the scope of the auditcash flow and, if prepared, such accountants’ letter to management), together with and
(ii) a certificate of such accountants addressed to Lender Agent and the Lenders stating that such accountants do not have knowledge of the existence of any Default or Event of Default. Such annual financial statements shall be accompanied by a Compliance Certificate signed by the chief financial officer and/or chief accounting officer of Borrower certifying that:
(1) Parent is in compliance on a consolidated basis at the end of such fiscal year with all financial covenants required to be tested hereunder,
(2) the financial statements delivered hereunder have been prepared in accordance with GAAP and fairly present in all material respects the financial condition of Parent and its direct and indirect Subsidiaries, and
(3) there does not exist any condition or event that constitutes a Default or Event of Default (or, to the extent of any non-compliance, describing such non-compliance as to which he or she may have knowledge and what action the applicable Obligated Party has taken, is taking, or proposes to take with respect thereto)under Section 7.18,
(c) [Intentionally Deleted],
(d) as soon as available, but in any event by no later than within 30 days prior to the earlier of (y) five (5) days after the date on which Parent files its Form 10-K with the SEC and (z) ninety (90) days following the last day start of each of Parent’s fiscal years, copies of Projections for such fiscal year Borrowers’ Projections, in form and substance (includingincluding as to scope and underlying assumptions) reasonably satisfactory to Agent, in its sole discretion, for the avoidance of doubtforthcoming 3 years, year by year, and for the 2016 Projections to be delivered on or before March 30forthcoming fiscal year, 2016)month by month, all as certified by the chief financial officer of Parent as being such officer’s good faith best estimate of the financial performance of Parent and its direct and indirect Subsidiaries during the period covered thereby,
(d) if and when filed by any Borrower,
(i) 10-Q quarterly reports, Form 10-K annual reports, and Form 8-K current reports,
(ii) any other filings made by any Borrower with the SEC,
(iii) copies of Borrowers’ federal income tax returns, and any amendments thereto, filed with the Internal Revenue Service, and
(iv) any other information that is provided by Parent to its shareholders generally,
(e) promptlyif and when filed by any Borrower or any Subsidiary of a Borrower and as reasonably requested by Agent, but reasonably satisfactory evidence of payment of material applicable excise taxes in each jurisdiction in which any event within five Borrower or any Subsidiary of a Borrower conducts business or is required to pay any such excise tax,
(5f) Business Days after as soon as a Borrower has knowledge of any event or condition that constitutes a Default or an Event of Default, notice thereof and a statement of the curative action that the applicable Obligated Party proposes Borrowers propose to take with respect thereto,
(fg) promptly after the commencement thereof, but in any event within five (5) 5 Business Days after the service of process with respect thereto on any Obligated PartyBorrower or any Subsidiary of a Borrower, notice of all actions, suits, or proceedings brought by or against such Obligated Party any Borrower or any Subsidiary of a Borrower before any Governmental Authority which, if determined adversely to such Obligated PartyBorrower or such Subsidiary, reasonably could reasonably be expected to result in a Material Adverse Change,
(g) promptly, but in any event within ten (10) Business Days after Borrower has knowledge thereof, notify Lender of any material negative changes to Borrower’s customer renewal rates, and
(h) upon the request of LenderAgent, any other information report reasonably requested relating to the financial condition of any Obligated PartyBorrowers or their Subsidiaries. In addition to the financial statements referred to above, Borrowers agree to deliver financial statements prepared on both a consolidated and consolidating basis and agree that no Subsidiary of Parent will have a fiscal year different from that of Parent. Borrowers agree to cooperate with Agent to allow Agent to consult with their independent certified public accountants if Agent reasonably requests the right to do so and that, in such connection, their independent certified public accountants are authorized to communicate with Agent and to release to Agent whatever financial information concerning Borrowers or their Subsidiaries that Agent reasonably may request.
Appears in 1 contract
Financial Statements, Reports, Certificates. Deliver to Agent, with copies to each Lender:
(a) as soon as available, but in any event by no later than within 30 days (60 days in the earlier case of (ya month that is the end of one of Borrower’s fiscal quarters) five (5) days after the date on which Parent files its Form 10-Q with the SEC and (z) forty five (45) days following the last day end of each month during each of ParentBorrower’s first three (3) fiscal quarters of each fiscal yearyears,
(i) a company prepared consolidated balance sheet sheet, income statement, and income statement of cash flow covering the operations of Parent Borrower’s and its direct and indirect Subsidiaries Subsidiaries’ operations during such period and the year-to-date period ending thereon, with comparisons against the balance sheet for the immediately preceding fiscal year and income statement for the corresponding period during the immediately preceding fiscal year, (it being agreed that the furnishing of Parent’s quarterly report on Form 10-Q for each such fiscal quarter, as filed with the SEC, will satisfy Parent’s and Borrower’s obligations under this Section 6.2(a)(i) with respect to such fiscal quarter)period,
(ii) a Compliance Certificate signed by the chief financial officer and/or chief accounting officer or VP of Finance of Borrower certifying to the effect that:
(1A) the financial statements delivered hereunder have been prepared in accordance with GAAP (except for the lack of footnotes and being subject to year-end audit adjustments) and fairly present in all material respects the financial condition of Parent Borrower and its direct Subsidiaries,
(B) the representations and indirect Subsidiaries, warranties of Borrower contained in this Agreement and demonstrating the compliance by Parent other Loan Documents are true and correct in all material respects on a consolidated basis at and as of the end date of such quarter with all financial covenants required certificate, as though made on and as of such date (except to be tested hereunderthe extent that such representations and warranties relate solely to an earlier date), and
(2C) there does not exist any condition or event that constitutes a Default or Event of Default (or, to the extent of any non-compliance, describing such non-compliance as to which he or she may have knowledge and what action the applicable Obligated Party Borrower has taken, is taking, or proposes to take with respect thereto), and
(iii) for each month that is the date on which a financial covenant in Section 7.18 is to be tested, a Compliance Certificate demonstrating, in reasonable detail, compliance at the end of such period with the applicable financial covenants contained in Section 7.18,
(b) as soon as available, but in any event by no later than the earlier of (y) five (5) within 120 days after the date on which Parent files its Form 10-K with the SEC and (z) ninety (90) days following the last day end of each of ParentBorrower’s fiscal years, consolidated financial statements of Parent Borrower and its direct and indirect Subsidiaries for each such fiscal year, audited by independent certified public accountants reasonably acceptable to Lender in Lender’s Permitted Discretion Agent and certified, without any with only such qualifications (including any (A) “going concern” or like qualification or exception, or (B) qualification or exception as may be satisfactory to the scope of such auditAgent in its sole discretion, by such accountants to have been prepared in accordance with GAAP) GAAP (it being agreed that the furnishing of Parent’s annual report on Form 10-K for each such fiscal year as filed with the SEC, will satisfy Parent’s and Borrower’s obligation under this Section 6.2(b) with respect to such fiscal year except with respect to the requirement that such audited financial statements be reported on without to include a “going concern” or like qualification or exceptionbalance sheet, or qualification arising out income statement, and statement of the scope of the audit)cash flow and, together with a certificate of if prepared, such accountants addressed accountants’ letter to Lender stating that such accountants do not have knowledge of the existence of any Default or Event of Default. Such annual financial statements shall be accompanied by a Compliance Certificate signed by the chief financial officer and/or chief accounting officer of Borrower certifying that:
(1) Parent is in compliance on a consolidated basis at the end of such fiscal year with all financial covenants required to be tested hereunder,
(2) the financial statements delivered hereunder have been prepared in accordance with GAAP and fairly present in all material respects the financial condition of Parent and its direct and indirect Subsidiaries, and
(3) there does not exist any condition or event that constitutes a Default or Event of Default (or, to the extent of any non-compliance, describing such non-compliance as to which he or she may have knowledge and what action the applicable Obligated Party has taken, is taking, or proposes to take with respect theretomanagement),
(c) [Intentionally Deleted],
(d) as soon as available, but in any event by no later than the earlier of (y) five (5) within 45 days after the date on which Parent files its Form 10-K with start of the SEC Borrower’s 2008 fiscal year, and (z) ninety (90) 30 days following after the last day start of each of ParentBorrower’s fiscal yearsyears thereafter, copies of Projections for such fiscal year Borrower’s Projections, in form and substance (includingincluding as to scope and underlying assumptions) satisfactory to Agent, in its sole discretion, for the avoidance of doubtforthcoming fiscal year, the 2016 Projections to be delivered on or before March 30month by month, 2016), all as certified by the chief financial officer or VP of Parent Finance of Borrower as being such officer’s prepared in good faith best estimate based on assumptions believed to be reasonable at the time of preparation thereof,
(d) if and when filed by Borrower (or promptly thereafter),
(i) Form 10-Q quarterly reports, Form 10-K annual reports, and Form 8-K current reports, and any other filings made by Borrower with the financial performance of Parent and SEC, it being understood that, as to any such filings, Borrower may deliver the same by electronic mail (to such email address(es) as may be provided for such purpose from time to time by Agent), including any such electronic mail specifying the applicable filing, and
(ii) any other information that is provided by Borrower to its direct and indirect Subsidiaries during the period covered therebyshareholders generally,
(e) promptlyupon request by Agent, but satisfactory evidence of payment, and extent of nonpayment (if applicable), by Borrower and its Subsidiaries of applicable excise taxes in each jurisdiction in which (i) Borrower or its Subsidiaries conducts business or is required to pay any event within five such excise tax, (5ii) Business Days where Borrower’s or its Subsidiaries’ failure to pay any such applicable excise tax would result in a Lien on the properties or assets of Borrower or its Subsidiaries, or (iii) where Borrower’s or its Subsidiaries’ failure to pay any such applicable excise tax reasonably could be expected to result in a Material Adverse Change,
(f) Intentionally Omitted,
(g) promptly after Borrower has knowledge of any event or condition that constitutes a Default or an Event of Default, notice thereof and a statement of the curative action that the applicable Obligated Party Borrower proposes to take with respect thereto,
(fh) promptly after the commencement thereof, but in any event within five (5) 5 Business Days after the service of process with respect thereto on Borrower or any Obligated Partyof its Subsidiaries, notice of all actions, suits, or proceedings brought by or against such Obligated Party Borrower or any of its Subsidiaries before any Governmental Authority which, if determined adversely to Borrower or such Obligated PartySubsidiary, reasonably could reasonably be expected to result in a Material Adverse Change,
(g) promptly, but in any event within ten (10) Business Days after Borrower has knowledge thereof, notify Lender of any material negative changes to Borrower’s customer renewal rates, and
(hi) upon the request of LenderAgent, any other information report reasonably requested relating to the financial condition of Borrower or its Subsidiaries. In addition to the financial statements referred to above, Borrower agrees (if and when it has any Obligated PartySubsidiaries) to deliver financial statements prepared on both a consolidated and consolidating basis and agrees that no Subsidiary of Borrower will have a fiscal year different from that of Borrower. Borrower agrees to cooperate with Agent to allow Agent to consult with its independent certified public accountants if Agent reasonably requests the right to do so (and Agent shall notify Borrower as to the timing of such consultations and permit Borrower an opportunity to be present thereat or to otherwise participate therein) and that, in such connection, its independent certified public accountants are authorized to communicate with Agent and to release to Agent whatever financial information concerning Borrower or its Subsidiaries Agent reasonably may request.
Appears in 1 contract
Financial Statements, Reports, Certificates. Deliver to Agent, with copies to each Lender:
(a) as soon as available, but in any event by no later than the earlier of (y) five (5) within 45 days after the date on which Parent files its Form 10-Q with the SEC and (z) forty five (45) days following the last day end of each month during each of Parent’s first three (3) 's fiscal quarters of each fiscal yearyears,
(i) a consolidated company prepared Consolidated balance sheet sheet, income statement, and income statement of cash flow covering the operations of Parent Parent's and its direct and indirect Subsidiaries Subsidiaries' operations during such period and the year-to-date period ending thereon, with comparisons against the balance sheet for the immediately preceding fiscal year and income statement for the corresponding period during the immediately preceding fiscal year, (it being agreed that the furnishing of Parent’s quarterly report on Form 10-Q for each such fiscal quarter, as filed with the SEC, will satisfy Parent’s and Borrower’s obligations under this Section 6.2(a)(i) with respect to such fiscal quarter)period,
(ii) a Compliance Certificate certificate signed by the chief financial officer and/or chief accounting officer of Borrower certifying Parent to the effect that:
(1A) the financial statements delivered hereunder have been prepared in accordance with GAAP (except for the lack of footnotes and being subject to year-end audit adjustments) and fairly present in all material respects the financial condition of Parent and its direct Subsidiaries,
(B) the representations and indirect Subsidiaries, warranties of Borrowers contained in this Agreement and demonstrating the compliance by Parent other Loan Documents are true and correct in all material respects on a consolidated basis at and as of the end date of such quarter with all financial covenants required certificate, as though made on and as of such date (except to be tested hereunderthe extent that such representations and warranties relate solely to an earlier date), and
(2C) there does not exist any condition or event that constitutes a Default or Event of Default (or, to the extent of any non-compliance, describing such non-compliance as to which he or she may have knowledge and what action the applicable Obligated Party has Borrowers have taken, is are taking, or proposes propose to take with respect thereto), and 77
(iii) for each month that is the date on which a financial covenant in Section 7.20 is to be tested, a Compliance Certificate demonstrating, in reasonable detail, compliance at the end of such period with the applicable financial covenants contained in Section 7.20,
(b) as soon as available, but in any event by no later than the earlier of (y) five (5) within 120 days after the date on which Parent files its Form 10-K with the SEC and (z) ninety (90) days following the last day end of each of Parent’s 's fiscal years, consolidated ,
(i) financial statements of Parent and its direct and indirect Subsidiaries for each such fiscal year, audited by independent certified public accountants reasonably acceptable to Lender in Lender’s Permitted Discretion Agent and certified, without any qualifications (including any (A) “going concern” or like qualification or exception, or (B) qualification or exception as to the scope of such auditqualifications, by such accountants to have been prepared in accordance with GAAP) GAAP (it being agreed that the furnishing of Parent’s annual report on Form 10-K for each such fiscal year as filed with the SEC, will satisfy Parent’s and Borrower’s obligation under this Section 6.2(b) with respect to such fiscal year except with respect to the requirement that such audited financial statements be reported on without to include a “going concern” or like qualification or exceptionbalance sheet, or qualification arising out income statement, and statement of the scope of the auditcash flow and, if prepared, such accountants' letter to management), together with and
(ii) a certificate of such accountants addressed to Lender Agent and the Lenders stating that such accountants do not have knowledge of the existence of any Default or Event of Default. Such annual financial statements shall be accompanied by a Compliance Certificate signed by the chief financial officer and/or chief accounting officer of Borrower certifying that:
(1) Parent is in compliance on a consolidated basis at the end of such fiscal year with all financial covenants required to be tested hereunder,
(2) the financial statements delivered hereunder have been prepared in accordance with GAAP and fairly present in all material respects the financial condition of Parent and its direct and indirect Subsidiaries, and
(3) there does not exist any condition or event that constitutes a Default or Event of Default (or, to the extent of any non-compliance, describing such non-compliance as to which he or she may have knowledge and what action the applicable Obligated Party has taken, is taking, or proposes to take with respect thereto)under Section 7.20,
(c) [Intentionally Deleted],
(d) as soon as available, but in any event by no later than within 30 days prior to the earlier of (y) five (5) days after the date on which Parent files its Form 10-K with the SEC and (z) ninety (90) days following the last day start of each of Parent’s 's fiscal years, copies of Projections for such fiscal year Borrowers' Projections, in form and substance (includingincluding as to scope and underlying assumptions) satisfactory to the Lender Group, in its sole discretion, for the avoidance of doubtforthcoming 3 years, year by year, and for the 2016 Projections to be delivered on or before March 30forthcoming fiscal year, 2016)month by month, all as certified by the chief financial officer of Parent as being such officer’s 's good faith best estimate of the financial performance of Parent and its direct and indirect Subsidiaries during the period covered thereby,
(d) if, when and to the extent filed by any Loan Party with the Court, the SEC or any other Governmental Authority,
(i) 10-Q quarterly reports, Form 10-K annual reports, and Form 8-K current reports,
(ii) any other filings made by any Loan Party with the SEC,
(iii) any other financial information filed in the Chapter 11 Case or otherwise shared with the Committee,
(iv) copies of Borrowers' federal income tax returns, and any amendments thereto, filed with the Internal Revenue Service, and
(v) any other information that is provided by Parent to its shareholders generally,
(e) promptlyif and when filed by any Loan Party and as requested by Agent, but reasonably satisfactory evidence of payment of applicable excise and property taxes in each jurisdictions in which (i) any event within five Loan Party conducts business, owns real property or is required to pay any such excise or real property tax, (5ii) Business Days where any Loan Party's failure to pay any such applicable excise or property tax would result in a Lien on the properties or assets of any Loan Party, or (iii) where any Loan Party's failure to pay any such applicable excise tax reasonably could be expected to result in a Material Adverse Change,
(f) promptly after the commencement thereof, notice of all actions, suits or proceedings brought by or against any Loan Party before any Governmental Authority that, if determined adversely to such Loan Party, could reasonably be expected to result in a Material Adverse Change,
(g) as soon as a Borrower has knowledge of any event or condition that constitutes a Default or an Event of Default, notice thereof and a statement of the curative action that the applicable Obligated Party proposes Borrowers propose to take with respect thereto,
(f) promptly after the commencement thereof, but in any event within five (5) Business Days after the service of process with respect thereto on any Obligated Party, notice of all actions, suits, or proceedings brought by or against such Obligated Party before any Governmental Authority which, if determined adversely to such Obligated Party, could reasonably be expected to result in a Material Adverse Change,
(g) promptly, but in any event within ten (10) Business Days after Borrower has knowledge thereof, notify Lender of any material negative changes to Borrower’s customer renewal rates, and
(h) upon the request of LenderAgent or the Lender Group, any other information report reasonably requested relating to the financial condition of any Obligated Loan Party. In addition to the financial statements referred to above, Borrowers agree to deliver financial statements prepared on both a consolidated and consolidating basis (in accordance with GAAP) and a Consolidated basis (as defined herein) and that, except for the Insurance Subsidiaries, no Borrower, or any Subsidiary of a Borrower, will have a fiscal year different from that of Parent. Borrowers agree to cooperate with Agent to allow Agent to consult with their certified public accountants if Agent reasonably requests the right to do so and that, in such connection, their independent certified public accountants are authorized to communicate with Agent and to release to Agent whatever financial information concerning Borrowers or their Subsidiaries that Agent reasonably may request. Each Borrower waives the right to assert a confidential relationship, if any, it may have with any accounting firm or service bureau in connection with any information requested by Agent pursuant to or in accordance with this Agreement, and agree that Agent may contact directly any such accounting firm or service bureau in order to obtain such information.
Appears in 1 contract
Samples: Loan and Security Agreement (U Haul International Inc)
Financial Statements, Reports, Certificates. Deliver to Agent, with copies to each Lender:
(a) as soon as available, but in any event by no later than within 30 days (45 days in the earlier case of (ya month that is the end of one of the first 3 fiscal quarters in a fiscal year) five (5) days after the date on which Parent files its Form 10-Q with the SEC and (z) forty five (45) days following the last day end of each month during each of Parent’s first three (3) Borrower's fiscal quarters of each fiscal yearyears,
(i) a company prepared consolidated balance sheet sheet, income statement, and income statement of cash flow covering the operations of Parent Borrower's and its direct and indirect Subsidiaries Subsidiaries' operations during such period and the year-to-date period ending thereon, with comparisons against the balance sheet for the immediately preceding fiscal year and income statement for the corresponding period during the immediately preceding fiscal year, (it being agreed that the furnishing of Parent’s quarterly report on Form 10-Q for each such fiscal quarter, as filed with the SEC, will satisfy Parent’s and Borrower’s obligations under this Section 6.2(a)(i) with respect to such fiscal quarter)period,
(ii) a Compliance Certificate certificate signed by the chief financial officer and/or chief accounting officer of Borrower certifying to the effect that:
(1A) the financial statements delivered hereunder have been prepared in accordance with GAAP (except for the lack of footnotes and being subject to year-end audit adjustments) and fairly present in all material respects the financial condition of Parent Borrower and its direct Subsidiaries,
(B) the representations and indirect Subsidiaries, warranties of Borrower contained in this Agreement and demonstrating the compliance by Parent other Loan Documents are true and correct in all material respects on a consolidated basis at and as of the end date of such quarter with all financial covenants required certificate, as though made on and as of such date (except to be tested hereunderthe extent that such representations and warranties relate solely to an earlier date), and
(2C) there does not exist any condition or event that constitutes a Default, Unmatured Default or Event of Default (or, to the extent of any non-compliance, describing such non-compliance as to which he or she may have knowledge and what action the applicable Obligated Party Borrower has taken, is taking, or proposes to take with respect thereto),, and
(iii) for each month that is the date on which a financial covenant in Section 7.20 is to be tested, a Compliance Certificate demonstrating, in reasonable detail, compliance at the end of such period with the applicable financial covenants contained in Section 7.20, and
(b) as soon as available, but in any event by no later than the earlier of (y) five (5) within 90 days after the date on which Parent files its Form 10-K with the SEC and (z) ninety (90) days following the last day end of each of Parent’s Borrower's fiscal years, consolidated ,
(i) financial statements of Parent Borrower and its direct and indirect Subsidiaries for each such fiscal year, audited by independent certified public accountants reasonably acceptable to Lender in Lender’s Permitted Discretion Agent and certified, without any qualifications (including any including, without limitation, (A) “any going concern” concern or like qualification or exception, exception or (B) any qualification or exception as to the scope of such audit), by such accountants to have been prepared in accordance with GAAP) GAAP (it being agreed that the furnishing of Parent’s annual report on Form 10-K for each such fiscal year as filed with the SEC, will satisfy Parent’s and Borrower’s obligation under this Section 6.2(b) with respect to such fiscal year except with respect to the requirement that such audited financial statements be reported on without to include a “going concern” or like qualification or exceptionbalance sheet, or qualification arising out income statement, and statement of the scope of the auditcash flow and, if prepared, such accountants' letter to management), together with ,
(ii) a certificate of such accountants addressed to Lender Agent and the Lenders stating that such accountants do not have knowledge of the existence of any Default or Event of Default. Such annual financial statements shall be accompanied by a Compliance Certificate signed by the chief financial officer and/or chief accounting officer of Borrower certifying that:
(1) Parent is in compliance on a consolidated basis at the end of such fiscal year with all financial covenants required to be tested hereunder,
(2) the financial statements delivered hereunder have been prepared in accordance with GAAP and fairly present in all material respects the financial condition of Parent and its direct and indirect Subsidiaries, and
(3) there does not exist any condition or event that constitutes a Unmatured Default or Event of Default (or, to the extent of any non-compliance, describing such non-compliance as to which he or she may have knowledge and what action the applicable Obligated Party has taken, is taking, or proposes to take with respect thereto)under Section 7.20,
(c) [Intentionally Deleted],
(d) as soon as available, but in any event by no later than within 30 days prior to the earlier of (y) five (5) days after the date on which Parent files its Form 10-K with the SEC and (z) ninety (90) days following the last day start of each of Parent’s Borrower's fiscal years, copies of Projections for such fiscal year Borrower's Projections, in form and substance (includingincluding as to scope and underlying assumptions) satisfactory to Agent, in its sole discretion, for the avoidance of doubtforthcoming 3 years, year by year, and for the 2016 Projections to be delivered on or before March 30forthcoming fiscal year, 2016)month by month, all as certified by the chief financial officer of Parent Borrower as being such officer’s 's good faith best estimate of the financial performance of Parent and its direct and indirect Subsidiaries Borrower during the period covered thereby,
(d) if and when filed by Borrower,
(i) Form 10-Q quarterly reports, Form 10-K annual reports, and Form 8-K current reports,
(ii) any other filings made by Borrower with the SEC,
(iii) copies of Borrower's federal income tax returns, and any amendments thereto, filed with the Internal Revenue Service, and
(iv) any other information that is provided by Borrower to its shareholders,
(e) promptlyif and when filed by any Loan Party and as requested by Agent, satisfactory evidence of payment of applicable excise taxes in each jurisdictions in which (i) such Loan Party conducts business or is required to pay any such excise tax, (ii) where such Loan Party's failure to pay any such applicable excise tax would result in a Lien on the properties or assets of such Loan Party, or (iii) where such Loan Party's failure to pay any such applicable excise tax reasonably could be expected to result in a Material Adverse Change,
(f) promptly after sending or receipt thereof, copies of any material notice or other correspondence sent to, or received from, any Governmental Authority related to the Oil and Gas Properties of any Loan Party, including, without limitation, notice of any new plugging and abandonment or other performance or other assurance bond requirements related to such Oil and Gas Properties,
(g) promptly after the commencement thereof, but in any event within five days after the service of process with respect thereto on any Loan Party, notice of all actions, suits or proceedings brought by or against any Loan Party before any Governmental Authority which, if determined adversely to such Loan Party, could result in a Material Adverse Change,
(5h) Business Days after as soon as Borrower has knowledge of any event or condition that constitutes a Default or an Unmatured Default or an Event of Default, notice thereof and a statement of the curative action that the applicable Obligated Party Borrower proposes to take with respect thereto,
(fi) promptly after the commencement receipt or delivery thereof, but in any event within five (5) Business Days after the service of process with respect thereto on any Obligated Party, notice of all actions, suits, or proceedings brought by or against such Obligated Party before any Governmental Authority which, if determined adversely to such Obligated Party, could reasonably be expected to result in a Material Adverse Change,
(g) promptly, but in any event within ten (10) Business Days after Borrower has knowledge thereof, notify Lender copies of any material negative notices that any Loan Party receives from or sends to any Person in connection with the Senior Notes Documents or the Bridge Loan Documents and (ii) at least 3 Business Days prior to the effective date thereof, any amendments, modifications, waivers or other changes to Borrower’s customer renewal ratesany of the Senior Notes Documents or the Bridge Loan Documents, and
(hj) upon the request of LenderAgent, any other information report reasonably requested relating to the financial condition of Borrower or any Obligated Partyof its Subsidiaries. In addition to the financial statements referred to above, Borrower agrees to deliver financial statements prepared on both a consolidated and consolidating basis, and for it and its Restricted Subsidiaries and for Grey Wolf so long as Grey Wolf is a Subsidiary of Borrower, and agrees that no Subsidiary of Borrower will have a fiscal year different from that of Borrower. Borrower agrees that its independent certified public accountants are authorized to communicate with Agent and to release to Agent whatever financial information concerning Borrower Agent reasonably may request. Borrower waives the right to assert a confidential relationship, if any, it may have with any accounting firm or service bureau in connection with any information requested by Agent pursuant to or in accordance with this Agreement, and agrees that Agent may contact directly any such accounting firm or service bureau in order to obtain such information.
Appears in 1 contract
Financial Statements, Reports, Certificates. Deliver to Lender:
(a) as soon as available, but in any event by no later than within 30 days (45 days in the earlier case of (ya month that is the end of one of the first 3 fiscal quarters in a fiscal year or 90 days in the case of a month that is the end of the fiscal year) five (5) days after the date on which Parent files its Form 10-Q with the SEC and (z) forty five (45) days following the last day end of each month during each of Parent’s first three (3) 's fiscal quarters of each fiscal yearyears,
(i) a company prepared consolidated balance sheet sheet, income statement, and income statement of cash flow covering the operations of Parent Parent's and its direct and indirect Subsidiaries Subsidiaries' operations during such period and the year-to-date period ending thereon, with comparisons against the balance sheet for the immediately preceding fiscal year and income statement for the corresponding period during the immediately preceding fiscal year, (it being agreed that the furnishing of Parent’s quarterly report on Form 10-Q for each such fiscal quarter, as filed with the SEC, will satisfy Parent’s and Borrower’s obligations under this Section 6.2(a)(i) with respect to such fiscal quarter)period,
(ii) a Compliance Certificate certificate signed by the chief financial officer and/or chief accounting officer of Borrower certifying Parent to the effect that:
(1A) the financial statements delivered hereunder have been prepared in accordance with GAAP (except for the lack of footnotes and being subject to year-end audit adjustments) and fairly present in all material respects the financial condition of Parent and its direct Subsidiaries,
(B) the representations and indirect Subsidiaries, warranties of Borrowers contained in this Agreement and demonstrating the compliance by Parent other Loan Documents are true and correct in all material respects on a consolidated basis at and as of the end date of such quarter with all financial covenants required certificate, as though made on and as of such date (except to be tested hereunderthe extent that such representations and warranties relate solely to an earlier date), and
(2C) there does not exist any condition or event that constitutes a Default or Event of Default (or, to the extent of any non-compliance, describing such non-compliance as to which he or she may have knowledge and what action the applicable Obligated Party has Borrowers have taken, is are taking, or proposes propose to take with respect thereto), and
(iii) for each month that is the date on which a financial covenant in Section 7.20 is to be tested, a Compliance Certificate demonstrating, in reasonable detail, compliance at the end of such period with the applicable financial covenants contained in Section 7.20,
(b) as soon as available, but in any event by no later than the earlier of (y) five (5) within 90 days after the date on which Parent files its Form 10-K with the SEC and (z) ninety (90) days following the last day end of each of Parent’s 's fiscal years, consolidated ,
(i) financial statements of Parent and its direct and indirect Subsidiaries for each such fiscal year, audited by independent certified public accountants reasonably acceptable to Lender in Lender’s Permitted Discretion and certified, without any qualifications (including any (A) “going concern” or like qualification or exception, or (B) qualification or exception as to the scope of such auditqualifications, by such accountants to have been prepared in accordance with GAAP) GAAP (it being agreed that the furnishing of Parent’s annual report on Form 10-K for each such fiscal year as filed with the SEC, will satisfy Parent’s and Borrower’s obligation under this Section 6.2(b) with respect to such fiscal year except with respect to the requirement that such audited financial statements be reported on without to include a “going concern” or like qualification or exceptionbalance sheet, or qualification arising out income statement, and statement of the scope of the auditcash flow and, if prepared, such accountants' letter to management), together with ,
(ii) a certificate of such accountants addressed to Lender stating that such accountants do not have knowledge of the existence of any Default or Event of Default. Such annual financial statements shall be accompanied by a Compliance Certificate signed by the chief financial officer and/or chief accounting officer of Borrower certifying that:
(1) Parent is in compliance on a consolidated basis at the end of such fiscal year with all financial covenants required to be tested hereunder,
(2) the financial statements delivered hereunder have been prepared in accordance with GAAP and fairly present in all material respects the financial condition of Parent and its direct and indirect Subsidiaries, and
(3) there does not exist any condition or event that constitutes a Default or Event of Default (or, to the extent of any non-compliance, describing such non-compliance as to which he or she may have knowledge and what action the applicable Obligated Party has taken, is taking, or proposes to take with respect thereto)under Section 7.20,
(c) [Intentionally Deleted],
(d) as soon as available, but in any event by no later than the earlier of thirty (y) five (530) days after the date on which Parent files its Form 10-K with the SEC and (z) ninety (90) days following the last day end of each of the Parent’s 's fiscal years, ,
(i) copies of Projections for such fiscal year Borrowers' Projections, in form and substance (includingincluding as to scope and underlying assumptions) satisfactory to Lender, in its sole discretion, for the avoidance of doubtforthcoming fiscal year, the 2016 Projections to be delivered on or before March 30month by month, 2016), all as certified by the chief financial officer of Parent as being such officer’s 's good faith best estimate of the financial performance of Parent and its direct and indirect Subsidiaries during the period covered thereby,
(d) if and when filed by any Borrower,
(i) any filings or monthly reports submitted by any Borrower to the Louisiana Regulatory Authorities or any other Gaming Authority other than such filings or monthly reports submitted in the ordinary course of business,
(ii) any filings made by any Borrower with the SEC,
(iii) copies of Borrowers' federal income tax returns, and any amendments thereto, filed with the Internal Revenue Service, and
(iv) any other information that is provided by Parent to its shareholders in their capacities as shareholders generally,
(e) promptlyif and when filed by any Borrower and as requested by Lender, but satisfactory evidence of payment of applicable excise taxes in each jurisdictions in which (i) any event within five Borrower conducts business or is required to pay any such excise tax, (5ii) Business Days after where any Borrower's failure to pay any such applicable excise tax would result in a Lien on the properties or assets of any Borrower, or (iii) where any Borrower's failure to pay any such applicable excise tax reasonably could be expected to result in a Material Adverse Change,
(f) as soon as a Borrower has knowledge of any event or condition that constitutes a Default or an Event of Default, notice thereof and a statement of the curative action that the applicable Obligated Party proposes Borrowers propose to take with respect thereto,
(fg) promptly after as soon as any Borrower has knowledge that the commencement thereofconstruction of the Racino Project cannot be completed by Contractor, but in or has knowledge that such Borrower cannot meet its obligations under any event within five construction documents (5) Business Days after including, without limitation, the service Fixed Price Contract), notice thereof and a statement of process the curative action that Borrowers propose to take with respect thereto on any Obligated Party, notice of all actions, suits, or proceedings brought by or against such Obligated Party before any Governmental Authority which, if determined adversely to such Obligated Party, could reasonably be expected to result in a Material Adverse Changethereto,
(gh) promptly, but in as soon as any event within ten (10) Business Days after Borrower has knowledge thereof, notify Lender notice of any material negative changes proposed legislation or administrative action specifically affecting any Borrower's gaming activities or the Racino Project submitted to Borrower’s customer renewal ratesthe floor for business before any Governmental Authority in the state of Louisiana (including the state legislature or any committee thereof),
(i) upon the delivery of any updated Enterprise Valuation and on each date monthly financial statements required pursuant to clause (a) above are delivered, a detailed calculation of the Borrowing Base; and
(hj) upon the request of Lender, any other information report reasonably requested relating to the financial condition of Borrowers. In addition to the financial statements referred to above, Borrowers agree to deliver financial statements prepared on both a consolidated and consolidating basis and agree that no Borrower, or any Obligated PartySubsidiary of a Borrower, will have a fiscal year different from that of Parent. Borrowers agree that their independent certified public accountants are authorized to communicate with Lender and to release to Lender whatever financial information concerning Borrowers that Lender reasonably may request. Each Borrower waives the right to assert a confidential relationship, if any, it may have with any accounting firm or service bureau in connection with any information requested by Lender pursuant to or in accordance with this Agreement, and agree that Lender may contact directly any such accounting firm or service bureau in order to obtain such information.
Appears in 1 contract
Samples: Loan and Security Agreement (Peninsula Gaming Corp)
Financial Statements, Reports, Certificates. Deliver to LenderAgent:
(a) as soon as available, but in any event by no later than within 30 days (45 days in the earlier case of (ya month that is the end of one of the first 3 fiscal quarters in a fiscal year) five (5) days after the date on which Parent files its Form 10-Q with the SEC and (z) forty five (45) days following the last day end of each month during each of Parent’s first three (3) Borrower's fiscal quarters of each fiscal yearyears,
(i) a company prepared consolidated and consolidating balance sheet sheet, income statement, and income statement of cash flow covering the operations of Parent Borrower's and its direct and indirect Subsidiaries Subsidiaries' operations during such period and the year-to-date period ending thereon, with comparisons against the balance sheet for the immediately preceding fiscal year and income statement for the corresponding period during the immediately preceding fiscal year, (it being agreed that the furnishing of Parent’s quarterly report on Form 10-Q for each such fiscal quarter, as filed with the SEC, will satisfy Parent’s and Borrower’s obligations under this Section 6.2(a)(i) with respect to such fiscal quarter)period,
(ii) a Compliance Certificate certificate signed by the chief financial officer and/or chief accounting officer of Borrower certifying to the effect that:
(1A) the financial statements delivered hereunder have been prepared in accordance with GAAP (except for the lack of footnotes and being subject to year-end audit adjustments) and fairly present in all material respects the financial condition of Parent Borrower and its direct Subsidiaries,
(B) the representations and indirect Subsidiaries, warranties of Borrower contained in this Agreement and demonstrating the compliance by Parent other Loan Documents are true and correct in all material respects on a consolidated basis at and as of the end date of such quarter with all financial covenants required certificate, as though made on and as of such date (except to be tested hereunderthe extent that such representations and warranties relate solely to an earlier date), and
(2C) there does not exist any condition or event that constitutes a Default or Event of Default (or, to the extent of any non-compliance, describing such non-compliance as to which he or she may have knowledge and what action the applicable Obligated Party Borrower has taken, is taking, or proposes to take with respect thereto), and
(iii) for each month that is the date on which a financial covenant in Section 7.21 is to be tested, a Compliance Certificate demonstrating, in reasonable detail, compliance at the end of such period with the applicable financial covenants contained in Section 7.21,
(b) as soon as available, but in any event by no later than the earlier of (y) five (5) within 90 days after the date on which Parent files its Form 10-K with the SEC and (z) ninety (90) days following the last day end of each of Parent’s Borrower's fiscal years, consolidated financial statements of Parent Borrower and its direct and indirect Subsidiaries for each such fiscal year, audited by independent certified public accountants reasonably acceptable to Lender in Lender’s Permitted Discretion Agent and certified, without any qualifications (including any (A) “going concern” or like qualification or exception, or (B) qualification or exception as to the scope of such auditqualifications, by such accountants to have been prepared in accordance with GAAP) GAAP (it being agreed that the furnishing of Parent’s annual report on Form 10-K for each such fiscal year as filed with the SEC, will satisfy Parent’s and Borrower’s obligation under this Section 6.2(b) with respect to such fiscal year except with respect to the requirement that such audited financial statements be reported on without to include a “going concern” or like qualification or exceptionbalance sheet, or qualification arising out income statement, and statement of the scope of the audit)cash flow and, together with a certificate of if prepared, such accountants addressed accountants' letter to Lender stating that such accountants do not have knowledge of the existence of any Default or Event of Default. Such annual financial statements shall be accompanied by a Compliance Certificate signed by the chief financial officer and/or chief accounting officer of Borrower certifying that:
(1) Parent is in compliance on a consolidated basis at the end of such fiscal year with all financial covenants required to be tested hereunder,
(2) the financial statements delivered hereunder have been prepared in accordance with GAAP and fairly present in all material respects the financial condition of Parent and its direct and indirect Subsidiaries, and
(3) there does not exist any condition or event that constitutes a Default or Event of Default (or, to the extent of any non-compliance, describing such non-compliance as to which he or she may have knowledge and what action the applicable Obligated Party has taken, is taking, or proposes to take with respect theretomanagement),
(c) [Intentionally Deleted],
(d) as soon as available, but in any event by no later than within 30 days prior to the earlier of (y) five (5) days after the date on which Parent files its Form 10-K with the SEC and (z) ninety (90) days following the last day start of each of Parent’s Borrower's fiscal years, ,
(i) copies of Projections for such fiscal year the Business Plan, in form and substance (includingincluding as to scope and underlying assumptions) satisfactory to Agent, in its sole discretion, for the avoidance of doubtforthcoming 3 years, year by year, and for the 2016 Projections to be delivered on or before March 30forthcoming fiscal year, 2016)month by month, all as certified by the chief financial officer of Parent Borrower as being such officer’s 's good faith best estimate of the financial performance of Parent Borrower and its direct and indirect Subsidiaries during the period covered therebythereby (it being understood that Agent may in its Permitted Discretion, but shall not be under any obligation to, revise financial, Excess Availability and retail covenants set forth in Sections 7.20 and 7.21 as a result of its review of such Business Plans and/or create or expand Reserves),
(d) if and when filed by Borrower,
(i) Form 10-Q quarterly reports, Form 10-K annual reports, and Form 8-K current reports,
(ii) any other filings made by Borrower with the SEC,
(iii) copies of Borrower's federal income tax returns, and any amendments thereto, filed with the Internal Revenue Service, and
(iv) any other information that is provided by Borrower to its shareholders generally,
(e) promptlywhen filed by Borrower and, but if requested by Agent, satisfactory evidence of payment of applicable excise taxes in each jurisdictions in which (i) Borrower conducts business or is required to pay any such excise tax, (ii) where Borrower's failure to pay any such applicable excise tax would result in a Lien on the properties or assets of Borrower, or (iii) where Borrower's failure to pay any such applicable excise tax reasonably could be expected to result in a Material Adverse Change,
(f) as soon as and in any event within five two (52) Business Days after Borrower has knowledge of any event or condition that constitutes a Default or an Event of Default, notice thereof and a statement of the curative action that the applicable Obligated Party Borrower proposes to take with respect thereto,
(f) promptly after the commencement thereof, but in any event within five (5) Business Days after the service of process with respect thereto on any Obligated Party, notice of all actions, suits, or proceedings brought by or against such Obligated Party before any Governmental Authority which, if determined adversely to such Obligated Party, could reasonably be expected to result in a Material Adverse Change,
(g) promptly, but in any event within ten (10) Business Days after Borrower has knowledge thereof, notify Lender of any material negative changes to Borrower’s customer renewal rates, and
(hg) upon the request of LenderAgent, any other information report reasonably requested relating to the financial condition of Borrower. In addition to the financial statements referred to above, Borrower agrees to deliver financial statements prepared on both a consolidated and consolidating basis and that neither Borrower nor any Obligated PartySubsidiary of Borrower will have a fiscal year different from that of Borrower. Borrower agrees that its independent certified public accountants are authorized to communicate with Agent (with prior notice to Borrower and subject to the right of the Borrower to participate in any conference) and to release to Agent whatever financial information (with copies to Borrower) concerning Borrower that Agent reasonably may request. Borrower waives the right to assert a confidential relationship, if any, it may have with any accounting firm or service bureau in connection with any information requested by Agent pursuant to or in accordance with this Agreement, and agree that Agent may contact directly any such accounting firm or service bureau in order to obtain such information.
Appears in 1 contract
Financial Statements, Reports, Certificates. Deliver to Lender:
(a) as soon as available, but in any event by no later than the earlier of (y) five (5) within 30 days after the date on which Parent files its Form 10-Q with the SEC and (z) forty five (45) days following the last day end of each month during each of Parent’s Borrower's fiscal years (except in the case of a month that is the end of one of the first three (3) 3 fiscal quarters in a fiscal year or in the case of each a month that is the end of the fiscal year), commencing April 2001,
(i) a company prepared consolidated balance sheet sheet, income statement, and income statement of cash flow covering the operations of Parent Borrower's and its direct and indirect Subsidiaries Subsidiaries' operations during such period and the year-to-date period ending thereon, with comparisons against the balance sheet for the immediately preceding fiscal year and income statement for the corresponding period during the immediately preceding fiscal year, (it being agreed that the furnishing of Parent’s quarterly report on Form 10-Q for each such fiscal quarter, as filed with the SEC, will satisfy Parent’s and Borrower’s obligations under this Section 6.2(a)(i) with respect to such fiscal quarter)period,
(ii) a Compliance Certificate certificate signed by the chief financial officer and/or chief accounting officer of Borrower certifying to the effect that:
(1) A. the financial statements delivered hereunder have been prepared in accordance with GAAP (except for the lack of footnotes and being subject to year-end audit adjustments) and fairly present in all material respects the financial condition of Parent Borrower and its direct Subsidiaries,
B. the representations and indirect Subsidiaries, warranties of Borrower contained in this Agreement and demonstrating the compliance by Parent other Loan Documents are true and correct in all material respects on a consolidated basis at and as of the end date of such quarter with all financial covenants required certificate, as though made on and as of such date (except to be tested hereunderthe extent that such representations and warranties relate solely to an earlier date), and
(2) C. there does not exist any condition or event that constitutes a Default or Event of Default (or, to the extent of any non-compliance, describing such non-compliance as to which he or she may have knowledge and what action the applicable Obligated Party Borrower has taken, is taking, or proposes to take with respect thereto),, and
(iii) for each month that is the date on which a financial covenant in Section 7.20 is to be tested, a Compliance Certificate demonstrating, in reasonable detail, compliance at the end of such period with the applicable financial covenants contained in Section 7.20, and
(b) as soon as available, but in any event by no later than the earlier of (y) five (5) within 90 days after the date on which Parent files its Form 10-K with the SEC and (z) ninety (90) days following the last day end of each of Parent’s Borrower's fiscal years, consolidated ,
(i) financial statements of Parent Borrower and its direct and indirect Subsidiaries for each such fiscal year, audited by independent certified public accountants reasonably acceptable to Lender in Lender’s Permitted Discretion and certified, without any qualifications (including any (A) “going concern” or like qualification or exception, or (B) qualification or exception as to the scope of such auditqualifications, by such accountants to have been prepared in accordance with GAAP) GAAP (it being agreed that the furnishing of Parent’s annual report on Form 10-K for each such fiscal year as filed with the SEC, will satisfy Parent’s and Borrower’s obligation under this Section 6.2(b) with respect to such fiscal year except with respect to the requirement that such audited financial statements be reported on without to include a “going concern” or like qualification or exceptionbalance sheet, or qualification arising out income statement, and statement of the scope of the auditcash flow and, if prepared, such accountants' letter to management), together with and
(ii) a certificate of such accountants addressed to Lender stating that such accountants do not have knowledge of the existence of any Default or Event of Default. Such annual financial statements shall be accompanied by a Compliance Certificate signed by the chief financial officer and/or chief accounting officer of Borrower certifying that:
(1) Parent is in compliance on a consolidated basis at the end of such fiscal year with all financial covenants required to be tested hereunder,
(2) the financial statements delivered hereunder have been prepared in accordance with GAAP and fairly present in all material respects the financial condition of Parent and its direct and indirect Subsidiaries, and
(3) there does not exist any condition or event that constitutes a Default or Event of Default (or, to the extent of any non-compliance, describing such non-compliance as to which he or she may have knowledge and what action the applicable Obligated Party has taken, is taking, or proposes to take with respect thereto)under Section 7.20,
(c) [Intentionally Deleted],
(d) as soon as available, but in any event by no later than the earlier of (y) five (5) within 30 days after the date on which Parent files its Form 10-K with the SEC and (z) ninety (90) days following the last day start of each of Parent’s Borrower's fiscal years, ,
(i) copies of Projections for such fiscal year Borrower's Projections, in form and substance (includingincluding as to scope and underlying assumptions) satisfactory to Lender, in its Permitted Discretion, for the avoidance of doubtforthcoming fiscal year, the 2016 Projections to be delivered on or before March 30month by month, 2016), all as certified by the chief financial officer of Parent Borrower as being such officer’s 's good faith best estimate of the financial performance of Parent and its direct and indirect Subsidiaries Borrower during the period covered thereby,
(d) if and when filed by Borrower,
(i) Form 10-Q quarterly reports, Form 10-K annual reports, and Form 8-K current reports,
(ii) any other filings made by Borrower with the SEC,
(iii) copies of Borrower's federal income tax returns, and any amendments thereto, filed with the Internal Revenue Service, and
(iv) any other information that is provided by Borrower to its shareholders generally,
(e) promptlyif and when filed by Borrower and as requested by Lender, but satisfactory evidence of payment of applicable excise taxes in each jurisdiction in which (i) Borrower conducts business or is required to pay any event within five such excise tax, (5ii) Business Days after where Borrower's failure to pay any such applicable excise tax would result in a Lien on the properties or assets of Borrower, or (iii) where Borrower's failure to pay any such applicable excise tax reasonably could be expected to result in a Material Adverse Change,
(f) as soon as Borrower has knowledge of any event or condition that constitutes a Default or an Event of Default, notice thereof and a statement of the curative action that the applicable Obligated Party Borrower proposes to take with respect thereto,
(f) promptly after the commencement thereof, but in any event within five (5) Business Days after the service of process with respect thereto on any Obligated Party, notice of all actions, suits, or proceedings brought by or against such Obligated Party before any Governmental Authority which, if determined adversely to such Obligated Party, could reasonably be expected to result in a Material Adverse Change,
(g) promptly, but in any event within ten (10) Business Days after Borrower has knowledge thereof, notify Lender of any material negative changes to Borrower’s customer renewal rates, and
(hg) upon the request of Lender, any other information report reasonably requested relating to the financial condition of any Obligated Party.Borrower. In addition to the financial statements referred to above, Borrower agrees to deliver to Lender within 30 days after the end of each month, Borrower's calculation of its EBITDA and financial statements, as well as a Borrowing Base Certificate, prepared on both
Appears in 1 contract
Financial Statements, Reports, Certificates. Deliver to Agent with copies to each Lender:
(a) within fifteen (15) days of the end of the previous month, a report which shall contain a comparison of the prior month showing actual performance and any variance of such actual performance from the projected performance in the Budget, together with a certificate signed by the chief financial officer of the Parent to the effect that such information is true and correct,
(b) as soon as available, but in any event by no later than within 30 days (45 days in the earlier case of (ya month that is the end of one of the first 3 fiscal quarters in a fiscal year) five (5) days after the date on which Parent files its Form 10-Q with the SEC and (z) forty five (45) days following the last day end of each month during each of Parent’s first three (3) fiscal quarters of each fiscal yearyears,
(i) a company prepared consolidated balance sheet sheet, income statement, and income statement of cash flow covering the operations of Parent and its direct and indirect Subsidiaries during such period and the year-to-date period ending thereon, with comparisons against the balance sheet for the immediately preceding fiscal year and income statement for the corresponding period during the immediately preceding fiscal year, (it being agreed that the furnishing of Parent’s quarterly report on Form 10-Q for each such fiscal quarter, as filed with the SEC, will satisfy Parent’s and Borrower’s obligations under this Section 6.2(a)(i) with respect to its Subsidiaries’ operations during such fiscal quarter)period,
(ii) an inventory certificate, and
(iii) a Compliance Certificate certificate signed by the chief financial officer and/or chief accounting officer of Borrower certifying Parent to the effect that:
(1) A. the financial statements delivered hereunder have been prepared in accordance with GAAP (except for the lack of footnotes and being subject to year-end audit adjustments) and fairly present in all material respects the consolidated financial condition of Parent and its direct Subsidiaries,
B. the representations and indirect Subsidiaries, warranties of Borrowers contained in this Agreement and demonstrating the compliance by Parent other Loan Documents are true and correct in all material respects on a consolidated basis at and as of the end date of such quarter with all financial covenants required certificate, as though made on and as of such date (except to be tested hereunderthe extent that such representations and warranties relate solely to an earlier date), andor, if not so true and correct, a description of such inaccuracy,
(2) C. there does not exist any condition or event that constitutes a Default or Event of Default (or, to the extent of any non-compliance, describing such non-compliance as to which he or she may have knowledge and what action the applicable Obligated Party has Borrowers have taken, is are taking, or proposes propose to take with respect thereto),;
D. all rent and additional rent due pursuant to any store lease have or have not been paid (and if not paid, broken down by store location); provided, however, that Borrowers need not report unpaid additional rent based on year end adjustments for common area expenses to the extent such additional rent is unknown to or disputed by such Borrower, and
E. premiums for insurance required under Section 7.9 hereof have or have not been paid.
(biv) for each month that is the date on which a financial covenant in Section 8.23 is to be tested, a Compliance Certificate demonstrating, in reasonable detail, compliance or the absence of compliance at the end of such period with the applicable financial covenants contained in Section 8.23; and
(c) as soon as available, but in any event by no later than the earlier of (y) five (5) within 90 days after the date on which Parent files its Form 10-K with the SEC and (z) ninety (90) days following the last day end of each of Parent’s fiscal years, consolidated ,
(i) financial statements of Parent and its direct and indirect Subsidiaries for each such fiscal year, audited by independent certified public accountants reasonably acceptable to Lender in Lender’s Permitted Discretion Agent and certified, without any qualifications (including any (A) “other than in respect of the filing of the Cases or a going concern” or like qualification or exception, or (B) qualification or exception as to the scope of such auditconcern qualification), by such accountants to have been prepared in accordance with GAAP) GAAP (it being agreed that the furnishing of Parent’s annual report on Form 10-K for each such fiscal year as filed with the SEC, will satisfy Parent’s and Borrower’s obligation under this Section 6.2(b) with respect to such fiscal year except with respect to the requirement that such audited financial statements be reported on without to include a “going concern” or like qualification or exceptionbalance sheet, or qualification arising out income statement, and statement of the scope of the auditcash flow and, if prepared, such accountants’ letter to management), together with and
(ii) a certificate of such accountants addressed to Lender Agent and the Lenders stating that such accountants either do not have knowledge of the existence of any Default or Event of Default. Such annual financial statements shall be accompanied by a Compliance Certificate signed by Default under Section 8.23 or, to their knowledge, the chief financial officer and/or chief accounting officer of Borrower certifying that:
(1) Parent is in compliance on a consolidated basis at the end extent of such fiscal year with all financial covenants required to be tested hereunder,
(2) the financial statements delivered hereunder have been prepared in accordance with GAAP and fairly present in all material respects the financial condition of Parent and its direct and indirect Subsidiaries, and
(3) there does not exist any condition or event that constitutes a Default or Event of Default (or, to the extent of any non-compliance, describing such non-compliance as to which he or she may have knowledge and what action the applicable Obligated Party has taken, is taking, or proposes to take with respect thereto),
(c) [Intentionally Deleted]Default,
(d) as soon as availableon or before fiscal month ending April 30, but in any event by no later than the earlier of (y) five (5) days after the date on which Parent files its Form 10-K with the SEC and (z) ninety (90) days following the last day of each of Parent’s fiscal years2005, copies of Projections for such fiscal year Borrowers’ Projections, in form and substance (includingas to scope and underlying assumptions) satisfactory to Agent, in its Permitted Discretion, for the avoidance of doubtperiod commencing May 1, 2005 through the 2016 Projections to be delivered on or before March 30Termination Date, 2016)month by month, all as certified by the chief financial officer of Parent as being such officer’s good faith best estimate of the financial performance of Parent and its direct and indirect Subsidiaries during the period covered thereby,;
(e) promptlyif and when filed by any Borrower,
(i) Form 10-Q quarterly reports, but Form 10-K annual reports, and Form 8-K current reports,
(ii) any other filings made by any Borrower with the SEC,
(iii) copies of Borrowers’ federal income tax returns, and any amendments thereto, filed with the Internal Revenue Service, and
(iv) any other information that is provided by Parent to its shareholders generally,
(f) if and when filed by any Borrower and as requested by Agent, satisfactory evidence of payment of applicable excise taxes in each jurisdictions in which (i) any event within five Borrower conducts business or is required to pay any such excise tax, (5ii) Business Days after where any Borrower’s failure to pay any such applicable excise tax would result in a Lien on the properties or assets of any Borrower, or (iii) where any Borrower’s failure to pay any such applicable excise tax reasonably could be expected to result in a Material Adverse Change,
(g) at such times and with such frequency as is requested by Agent, such information and documentation as is determined by Agent to be appropriate based upon Agent’s review and analysis of the Accounts and the information and documentation from time to time available to Agent,
(h) as soon as a Borrower has knowledge of any event or condition that constitutes a Default or an Event of Default, notice thereof and a statement of the curative action that the applicable Obligated Party proposes Borrowers propose to take with respect thereto,
(f) promptly after the commencement thereof, but in any event within five (5) Business Days after the service of process with respect thereto on any Obligated Party, notice of all actions, suits, or proceedings brought by or against such Obligated Party before any Governmental Authority which, if determined adversely to such Obligated Party, could reasonably be expected to result in a Material Adverse Change,
(g) promptly, but in any event within ten (10) Business Days after Borrower has knowledge thereof, notify Lender of any material negative changes to Borrower’s customer renewal rates, and
(hi) upon the request of LenderAgent, any other information report reasonably requested relating to the financial condition of Borrowers, and
(j) cause any Obligated Partyguarantor of any of the Obligations to deliver its annual financial statements at the time when Borrower provides its audited financial statements to Agent and each Tranche B Lender and copies of all federal income tax returns as soon as the same are available and in any event no later than 30 days after the same are required to be filed by law. In addition to the financial statements referred to above, Borrowers agree to deliver financial statements prepared on a consolidated basis and that no Borrower, or any Subsidiary of a Borrower, will have a fiscal year different from that of Parent. Borrowers agree that their independent certified public accountants are authorized to communicate with Agent and the Lenders and to release to Agent and the Lenders whatever financial information concerning Borrowers that Agent or the Lenders reasonably may request. Borrowers further agree to permit the Agent and the Lender or any other designated representative of the Agent or Lenders to visit and inspect any of the properties of the Borrowers, to examine the books of account of the Borrowers (and to make copies thereof and extracts therefrom), and to discuss the affairs, finances and accounts of the Borrowers with, and to be advised as to the same by, their officers. Each Borrower waives the right to assert a confidential relationship, if any, it may have with any accounting firm or service bureau in connection with any information requested by Agent and the Lenders pursuant to or in accordance with this Agreement, and agrees that Agent and Lenders may contact directly any such accounting firm or service bureau in order to obtain such information. Agent and the Lenders hereby agree to use its best efforts to give such Borrower at least simultaneous notice that Agent or the Lenders is so contacting directly any such accounting firm or service bureau.
Appears in 1 contract
Samples: Loan and Security Agreement (Ultimate Electronics Inc)
Financial Statements, Reports, Certificates. Deliver to Agent, with copies to each Lender:
(a) as soon as available, but in any event by no later than within 30 days (45 days in the earlier case of (ya month that is the end of one of Borrower's fiscal quarters) five (5) days after the date on which Parent files its Form 10-Q with the SEC and (z) forty five (45) days following the last day end of each month during each of Parent’s first three (3) Borrower's fiscal quarters of each fiscal yearyears,
(i) a company prepared consolidated balance sheet sheet, income statement, and income statement of cash flow covering Borrower's and the Restricted Subsidiaries' operations of Parent and its direct and indirect Subsidiaries during such period and the year-to-date period ending thereon, with comparisons against the balance sheet for the immediately preceding fiscal year and income statement for the corresponding period during the immediately preceding fiscal year, (it being agreed that the furnishing of Parent’s quarterly report on Form 10-Q for each such fiscal quarter, as filed with the SEC, will satisfy Parent’s and Borrower’s obligations under this Section 6.2(a)(i) with respect to such fiscal quarter)period,
(ii) a Compliance Certificate certificate signed by the chief financial officer and/or chief accounting officer of Borrower certifying to the effect that:
(1A) the financial statements delivered hereunder have been prepared in accordance with GAAP (except for the lack of footnotes and being subject to year-end audit adjustments) and fairly present in all material respects the consolidated financial condition of Parent Borrower and its direct and indirect the Restricted Subsidiaries, and demonstrating the compliance by Parent on a consolidated basis at the end of such quarter with all financial covenants required to be tested hereunder, and
(2B) there does not exist any condition or event that constitutes a Default or Event of Default (or, to the extent of any non-compliance, describing such non-compliance as to which he or she may have knowledge and what action the applicable Obligated Party Borrower has taken, is taking, or proposes to take with respect thereto), and
(iii) for each month that is the date on which a financial covenant in Section 7.18 is to be tested, a Compliance Certificate demonstrating, in reasonable detail, compliance at the end of such period with the applicable financial covenants contained in Section 7.18,
(b) as soon as available, but in any event by no later than the earlier of (y) five (5) within 90 days after the date on which Parent files its Form 10-K with the SEC and (z) ninety (90) days following the last day end of each of Parent’s Borrower's fiscal years, consolidated and consolidating financial statements of Parent Borrower and its direct and indirect Subsidiaries for each such fiscal year, audited by independent certified public accountants reasonably acceptable to Lender in Lender’s Permitted Discretion Agent and certified, without any qualifications (including any (A) “going concern” or like qualification or exception, or (B) qualification or exception as to the scope of such auditqualifications, by such accountants to have been prepared in accordance with GAAP) GAAP (it being agreed that the furnishing of Parent’s annual report on Form 10-K for each such fiscal year as filed with the SEC, will satisfy Parent’s and Borrower’s obligation under this Section 6.2(b) with respect to such fiscal year except with respect to the requirement that such audited financial statements be reported on without to include a “going concern” or like qualification or exceptionbalance sheet, or qualification arising out income statement, and statement of the scope of the audit)cash flow and, together with a certificate of if prepared, such accountants addressed accountants' letter to Lender stating that such accountants do not have knowledge of the existence of any Default or Event of Default. Such annual financial statements shall be accompanied by a Compliance Certificate signed by the chief financial officer and/or chief accounting officer of Borrower certifying that:
(1) Parent is in compliance on a consolidated basis at the end of such fiscal year with all financial covenants required to be tested hereunder,
(2) the financial statements delivered hereunder have been prepared in accordance with GAAP and fairly present in all material respects the financial condition of Parent and its direct and indirect Subsidiaries, and
(3) there does not exist any condition or event that constitutes a Default or Event of Default (or, to the extent of any non-compliance, describing such non-compliance as to which he or she may have knowledge and what action the applicable Obligated Party has taken, is taking, or proposes to take with respect theretomanagement),
(c) [Intentionally Deleted],
(d) as soon as available, but in any event by no later than prior to the earlier of (y) five (5) days after the date on which Parent files its Form 10-K with the SEC and (z) ninety (90) days following the last day start of each of Parent’s Borrower's fiscal years, copies of Projections for such fiscal year Borrower's Projections, in form and substance (includingincluding as to scope and underlying assumptions) satisfactory to Agent, in its sole discretion, for the avoidance of doubtforthcoming fiscal year, the 2016 Projections to be delivered on or before March 30month by month, 2016), all as certified by the chief financial officer of Parent Borrower as being such officer’s 's good faith best estimate of the financial performance of Parent and its direct and indirect Subsidiaries Borrower during the period covered thereby,
(d) if and when filed by Borrower,
(i) Form 10-Q quarterly reports, Form 10-K annual reports, and Form 8-K current reports,
(ii) any other filings made by Borrower with the SEC,
(iii) copies of Borrower's federal income tax returns, and any amendments thereto, filed with the Internal Revenue Service, and
(iv) any other information that is provided by Borrower to its shareholders generally,
(e) promptlyif and when filed by Borrower or its Subsidiaries and as requested by Agent, but satisfactory evidence of payment of applicable excise taxes in each jurisdiction in which (i) Borrower or its Subsidiaries conducts business or is required to pay any event within five such excise tax, (5ii) Business Days after where Borrower's or its Subsidiaries' failure to pay any such applicable excise tax would result in a Lien on the properties or assets of Borrower or its Subsidiaries, or (iii) where Borrower's or its Subsidiaries' failure to pay any such applicable excise tax reasonably could be expected to result in a Material Adverse Change,
(f) as soon as Borrower has knowledge of any event or condition that constitutes a Default or an Event of Default, notice thereof and a statement of the curative action that the applicable Obligated Party Borrower proposes to take with respect thereto,
(fg) promptly after the commencement thereof, but in any event within five (5) Business Days 5 days after the service of process with respect thereto on Borrower or any Obligated Partyof its Subsidiaries, notice of all actions, suits, or proceedings brought by or against such Obligated Party Borrower or any of its Subsidiaries before any Governmental Authority which, if determined adversely to Borrower or such Obligated PartySubsidiary, reasonably could reasonably be expected to result in a Material Adverse Change,
(gh) promptly, but in any event within ten (10) Business Days promptly after Borrower has knowledge receipt thereof, notify Lender of any notices, complaints, orders, or other communications from the U.S. Food and Drug Administration with respect to any material negative changes violation of or non-compliance with regulations applicable to Borrower’s customer renewal ratesBorrower or its Subsidiaries or permits or licenses held by Borrower or its Subsidiaries, and
(hi) upon the request of LenderAgent, any other information report reasonably requested relating to the financial condition of Borrower or its Subsidiaries. In addition to the financial statements referred to above, Borrower agrees to deliver financial statements prepared on both a consolidated and consolidating basis and agrees that no Subsidiary of Borrower will have a fiscal year different from that of Borrower. Borrower agrees to cooperate with Agent to allow Agent to consult with its independent certified public accountants if Agent reasonably requests the right to do so and that, in such connection, its independent certified public accountants are authorized to communicate with Agent and to release to Agent whatever financial information concerning Borrower or its Subsidiaries Agent reasonably may request, provided , in all cases, that Borrower shall have received notice of any Obligated Partysuch proposed consultation and have the right to be present at such consultation.
Appears in 1 contract
Samples: Loan and Security Agreement (Hudson Respiratory Care Inc)
Financial Statements, Reports, Certificates. Deliver to Agent, with copies to each Lender:
(a) as soon as available, but in any event by no later than within 30 days (45 days in the earlier case of (ya month that is the end of one of Parent's fiscal quarters) five (5) days after the date on which Parent files its Form 10-Q with the SEC and (z) forty five (45) days following the last day end of each month during each of Parent’s first three (3) fiscal quarters of each fiscal year's Fiscal Years,
(i) a consolidated company prepared balance sheet sheet, income statement, and income statement of cash flow covering the operations of Parent Parent's and its direct and indirect Subsidiaries Subsidiaries' operations during such period period, on both a consolidated and the year-to-date period ending thereon, with comparisons against the balance sheet for the immediately preceding fiscal year consolidating basis and income statement for the corresponding period during the immediately preceding fiscal year, (it being agreed that the furnishing of Parent’s quarterly report on Form 10-Q for each such fiscal quarter, as filed with the SEC, will satisfy Parent’s and Borrower’s obligations under this Section 6.2(a)(i) with respect to such fiscal quarter)by Business Segment,
(ii) a Compliance Certificate certificate signed by the chief financial officer and/or chief accounting officer of Borrower certifying Parent to the effect that:
(1A) the financial statements delivered hereunder have been prepared in accordance with GAAP (except for the lack of footnotes and being subject to year-end audit adjustments) and fairly present in all material respects the financial condition of Parent and its direct Subsidiaries,
(B) the representations and indirect Subsidiaries, warranties of Loan Parties contained in this Agreement and demonstrating the compliance by Parent other Loan Documents are true and correct in all material respects on a consolidated basis at and as of the end date of such quarter with all financial covenants required certificate, as though made on and as of such date (except to be tested hereunderthe extent that such representations and warranties relate solely to an earlier date), and
(2C) there does not exist any condition or event that constitutes a Default or Event of Default (or, to the extent of any non-compliance, describing such non-compliance as to which he or she may have knowledge and what action the applicable Obligated Party has Borrowers have taken, is are taking, or proposes propose to take with respect thereto),
(iii) for each month that is the date on which a financial covenant in Section 7.18 is to be tested, a Compliance Certificate demonstrating, in reasonable detail, compliance at the end of such period with the applicable financial covenants contained in Section 7.18, and
(iv) a general ledger reconciliation
(b) as soon as available, but in any event by no later than the earlier of (y) five (5) within 90 days after the date on which Parent files its Form 10-K with the SEC and (z) ninety (90) days following the last day end of each of Parent’s fiscal years, consolidated 's Fiscal Years,
(i) financial statements of Parent and its direct and indirect Subsidiaries for each such fiscal yearFiscal Year, on both a consolidated and consolidating basis and by Business Segment, audited by independent certified public accountants reasonably acceptable to Lender in Lender’s Permitted Discretion Agent (it being understood that such audit may be performed and presented on a consolidated basis only) and certified, without any qualifications (including any (A) “going concern” or like qualification or exception, or (B) qualification or exception as to the scope of such auditqualifications, by such accountants to have been prepared in accordance with GAAP) GAAP (it being agreed that the furnishing of Parent’s annual report on Form 10-K for each such fiscal year as filed with the SEC, will satisfy Parent’s and Borrower’s obligation under this Section 6.2(b) with respect to such fiscal year except with respect to the requirement that such audited financial statements be reported on without to include a “going concern” or like qualification or exceptionbalance sheet, or qualification arising out income statement, and statement of the scope of the auditcash flow and, if prepared, such accountants' letter to management), together with and
(ii) a certificate of such accountants addressed to Lender Agent and the Lenders stating that such accountants do not have knowledge of the existence of any Default or Event of Default. Such annual financial statements shall be accompanied by a Compliance Certificate signed by the chief financial officer and/or chief accounting officer of Borrower certifying that:
(1) Parent is in compliance on a consolidated basis at the end of such fiscal year with all financial covenants required to be tested hereunder,
(2) the financial statements delivered hereunder have been prepared in accordance with GAAP and fairly present in all material respects the financial condition of Parent and its direct and indirect Subsidiaries, and
(3) there does not exist any condition or event that constitutes a Default or Event of Default (or, to the extent of any non-compliance, describing such non-compliance as to which he or she may have knowledge and what action the applicable Obligated Party has taken, is taking, or proposes to take with respect thereto)under Section 7.18,
(c) [Intentionally Deleted],
(d) as soon as available, but in any event by no later than within 30 days prior to the earlier of (y) five (5) days after the date on which Parent files its Form 10-K with the SEC and (z) ninety (90) days following the last day start of each of Parent’s fiscal years's Fiscal Years, copies of Projections for such fiscal year Loan Parties' Projections, in form and substance (includingincluding as to scope and underlying assumptions) satisfactory to Agent, in its sole discretion, for the avoidance of doubtforthcoming 3 years, year by year, and for the 2016 Projections to be delivered forthcoming Fiscal Year, month by month, on or before March 30both a consolidated and consolidating basis and by Business Segment, 2016), all as certified by the chief financial officer of Parent as being such officer’s 's good faith best estimate of the financial performance of Parent and its direct and indirect Subsidiaries during the period covered thereby,
(d) if and when filed by any Loan Party,
(i) 10-Q quarterly reports, Form 10-K annual reports, and Form 8-K current reports,
(ii) any other filings made by any Loan Party with the SEC,
(iii) copies of Loan Parties' federal income tax returns, and any amendments thereto, filed with the Internal Revenue Service, and
(iv) any other information that is provided by Parent to its shareholders generally,
(e) promptlyif and when filed by any Loan Party or any Subsidiary of a Loan Party and as requested by Agent, but satisfactory evidence of payment of applicable excise taxes in each jurisdiction in which (i) any event within five Loan Party or any Subsidiary of a Loan Party conducts business or is required to pay any such excise tax, (5ii) Business Days after where any Loan Party's or any Subsidiary of a Loan Party's failure to pay any such applicable excise tax would result in a Lien on the properties or assets of such Loan Party or such Subsidiary, or (iii) where any Loan Party's or any Subsidiary of a Loan Party's failure to pay any such applicable excise tax reasonably could be expected to result in a Material Adverse Change,
(f) as soon as a Borrower has knowledge of any event or condition that constitutes a Default or an Event of Default, notice thereof and a statement of the curative action that the applicable Obligated Party proposes Loan Parties propose to take with respect thereto,
(fg) promptly after the commencement thereof, but in any event within five (5) Business Days 5 days after the service of process with respect thereto on any Obligated Loan Party or any Subsidiary of a Loan Party, notice of all actions, suits, or proceedings brought by or against such Obligated any Loan Party or any Subsidiary of a Loan Party before any Governmental Authority which, if determined adversely to such Obligated PartyLoan Party or such Subsidiary, reasonably could reasonably be expected to result in a Material Adverse Change,
(gi) promptlypromptly and in any event (A) within 10 days after any Loan Party or any ERISA Affiliate thereof knows or has reason to know that any Termination Event described in clause (i) of the definition of Termination Event with respect to any Benefit Plan has occurred, but (B) within 10 days after any Loan Party or any ERISA Affiliate thereof knows or has reason to know that any other Termination Event with respect to any Benefit Plan has occurred, or (C) within 10 days after any Loan Party or any ERISA Affiliate thereof knows or has reason to know that an accumulated funding deficiency has been incurred or an application has been made to the Secretary of the Treasury for a waiver or modification of the minimum funding standard (including installment payments) or an extension of any amortization period under Section 412 of the IRC or the equivalent provision under any federal, state, local or foreign counterparts or equivalents thereof with respect to a Benefit Plan, a statement of an Authorized Person setting forth the details of such occurrence and the action, if any, which such Loan Party or such ERISA Affiliate propose to take with respect thereto, (ii) promptly and in any event within ten 3 days after receipt thereof by any Loan Party or any ERISA Affiliate thereof from the PBGC, copies of each notice received by any Loan Party or any ERISA Affiliate thereof of the PBGC's intention to terminate any Plan or to have a trustee appointed to administer any Plan, (10iii) Business Days promptly and in any event within 10 days after Borrower the filing thereof with the Internal Revenue Service if requested by Agent, copies of each Schedule B (Actuarial Information) or the federal, state, local or foreign equivalent thereof to the annual report (Form 5500 Series) or the federal, state, local or foreign equivalent thereof with respect to each Benefit Plan and Multiemployer Plan, (iv) promptly and in any event within 10 days after any Loan Party or any ERISA Affiliate thereof knows or has reason to know that a required installment within the meaning of Section 412 of the IRC or the equivalent provision under any federal, state, local or foreign counterparts or equivalents thereof has not been made when due with respect to a Benefit Plan, (v) promptly and in any event within 3 days after receipt thereof by any Loan Party or any ERISA Affiliate thereof from a sponsor of a Multiemployer Plan or from the PBGC, a copy of each notice received by any Loan Party or any ERISA Affiliate thereof concerning the imposition or amount of withdrawal liability under Section 4202 of ERISA or the equivalent provision under any federal, state, local or foreign counterparts or equivalents thereof or indicating that such Multiemployer Plan may enter reorganization status under Section 4241 of ERISA or the equivalent provision under any federal, state, local or foreign counterparts or equivalents thereof, and (vi) promptly and in any event within 10 days after any Loan Party or any ERISA Affiliate thereof send notice of a plant closing or mass layoff (as defined in the Worker Adjustment and Retraining Notification Act) to employees, copies of each such notice sent by any Loan Party or any ERISA Affiliate thereof,
(i) immediately upon obtaining knowledge thereof, notify Lender notice of the termination of any customer contract or any Material Contract or any material negative changes in the terms of any such contract or any Material Contract, provided that, in the case of customer contracts that are not Material Contracts, this Section 6.3(i) shall not apply to Borrower’s customer renewal ratesthe extent that (i) any such contract both (A) generated gross revenue of less than $250,000 for the most recently completed Fiscal Year of the Parent and (B) has a remaining term of more than one year or (ii) any such contract both (A) generated gross revenue of less than $500,000 for the most recently completed Fiscal Year of the Parent and (B) has a remaining term of less than one year,
(j) concurrently with delivery to or receipt from the Revolver Agent or any Revolver Lender, a copy of each notice, demand, report, statement or other document delivered to or received from the Revolver Agent or any Revolver Lender (unless otherwise required to be delivered hereunder), and
(hk) upon the request of LenderAgent, any other information report reasonably requested relating to the financial condition of any Obligated PartyLoan Parties or their Subsidiaries. In addition to the financial statements referred to above, Loan Parties agree to deliver financial statements prepared on both a consolidated and consolidating basis and agree that no Subsidiary of Parent will have a Fiscal Year different from that of Parent, provided that each of IPD, Huck NC and Huck Xxxxxx xxx have the Fiscal Year specified in the definition of such term. Loan Parties agree to cooperate with Agent to allow Agent to consult with their independent certified public accountants if Agent reasonably requests the right to do so and that, in such connection, their independent certified public accountants are authorized to communicate with Agent and to release to Agent whatever financial information concerning Loan Parties or their Subsidiaries that Agent reasonably may request.
Appears in 1 contract
Financial Statements, Reports, Certificates. Deliver to Agent, with copies to each Lender:
(a) as soon as available, but in any event by no later than within 30 days (45 days (or, if such Person has filed a filing extension with the earlier SEC, 50 days) in the case of (ya month that is the end of one of the first 3 fiscal quarters in a fiscal year) five (5) days after the date on which Parent files its Form 10-Q with the SEC and (z) forty five (45) days following the last day end of each month during each of Parent’s first three (3) and ThermaClime’s fiscal quarters of each fiscal yearyears,
(i) a company prepared consolidated and consolidating balance sheet sheet, income statement, and income statement of cash flow covering the operations of Parent and its direct and indirect Subsidiaries during such period and the year-to-date period ending thereon, with comparisons against the balance sheet for the immediately preceding fiscal year and income statement for the corresponding period during the immediately preceding fiscal year, (it being agreed that the furnishing of Parent’s quarterly report on Form 10-Q for each such fiscal quarter, as filed with the SEC, will satisfy Parent’s and Borrowerits Subsidiaries’ and ThermaClime’s obligations under this Section 6.2(a)(i) with respect to and its Subsidiaries’ operations during such fiscal quarter)period,
(ii) a Compliance Certificate certificate signed by the chief financial officer and/or chief accounting officer or vice president/controller of Borrower certifying Parent and of ThermaClime to the effect that:
(1) A. the financial statements delivered hereunder have been prepared in accordance with GAAP (except for the lack of footnotes and being subject to year-end audit adjustments) and fairly present in all material respects the financial condition of Parent and its direct Subsidiaries and indirect ThermaClime and its Subsidiaries, as the case may be,
B. the representations and demonstrating warranties of Borrowers contained in this Agreement and the compliance by Parent other Loan Documents are true and correct in all material respects on a consolidated basis at and as of the end date of such quarter with all financial covenants required certificate, as though made on and as of such date (except to be tested hereunderthe extent that such representations and warranties relate solely to an earlier date), and
(2) C. there does not exist any condition or event that constitutes a Default or Event of Default (or, to the extent of any non-compliance, describing such non-compliance as to which he or she may have knowledge and what action the applicable Obligated Party has Borrowers have taken, is are taking, or proposes propose to take with respect thereto),, and
(iii) for each month that is the date on which a financial covenant in Section 7.20 is to be tested, a Compliance Certificate demonstrating, in reasonable detail, compliance at the end of such period with the applicable financial covenants contained in Section 7.20, and
(b) as soon as available, but in any event by no later than within 90 days (or, if such Person has filed a filing extension with the earlier of (ySEC, 105 days) five (5) days after the date on which Parent files its Form 10-K with the SEC and (z) ninety (90) days following the last day end of each of Parent’s and ThermaClime’s fiscal years, consolidated ,
(i) financial statements of Parent and its direct Subsidiaries and indirect of ThermaClime and its Subsidiaries for each such fiscal year, prepared on a consolidated and consolidating basis, audited (in the case of the consolidated financial statements) by independent certified public accountants reasonably acceptable to Lender in Lender’s Permitted Discretion Agent and certified, without any qualifications (including any (A) “going concern” or like qualification or exception, or (B) qualification or exception as to the scope of such auditqualifications, by such accountants to have been prepared in accordance with GAAP) GAAP (it being agreed that the furnishing of Parent’s annual report on Form 10-K for each such fiscal year as filed with the SEC, will satisfy Parent’s and Borrower’s obligation under this Section 6.2(b) with respect to such fiscal year except with respect to the requirement that such audited financial statements be reported on without to include a “going concern” or like qualification or exceptionbalance sheet, or qualification arising out income statement, and statement of the scope of the auditcash flow and, if prepared, such accountants’ letter to management), together with ,
(ii) a certificate of such accountants addressed to Lender Agent and the Lenders stating that such accountants do not have knowledge of the existence of any Default or Event of Default. Such annual financial statements shall be accompanied by a Compliance Certificate signed by the chief financial officer and/or chief accounting officer of Borrower certifying that:
(1) Parent is in compliance on a consolidated basis at the end of such fiscal year with all financial covenants required to be tested hereunder,
(2) the financial statements delivered hereunder have been prepared in accordance with GAAP and fairly present in all material respects the financial condition of Parent and its direct and indirect Subsidiaries, and
(3) there does not exist any condition or event that constitutes a continuing Default or Event of Default (or, to the extent of any non-compliance, describing such non-compliance as to which he or she may have knowledge and what action the applicable Obligated Party has taken, is taking, or proposes to take with respect thereto)under Section 7.20,
(c) [Intentionally Deleted],
(d) as soon as available, but in any event by no later than at least 1 day prior to the earlier of (y) five (5) days after the date on which Parent files its Form 10-K with the SEC and (z) ninety (90) days following the last day start of each of Parent’s and ThermaClime’s fiscal years, ,
(i) copies of Projections for such fiscal year Borrowers’ Projections, in form and substance (includingincluding as to scope and underlying assumptions) satisfactory to Agent, in its sole discretion, for the avoidance of doubtforthcoming year, the 2016 Projections to be delivered on or before March 30month by month, 2016), all as certified by the chief financial officer or vice president/controller of Parent and of ThermaClime as being such officer’s good faith best estimate of the financial performance of Parent and its direct Subsidiaries and indirect Subsidiaries of ThermaClime and its Subsidiaries, as the case may be, during the period covered thereby,
(d) if and when filed by any Borrower or by Parent or ThermaClime,
(i) 10-Q quarterly reports, Form 10-K annual reports, and Form 8-K current reports,
(ii) any other filings made by any Borrower, Parent or ThermaClime with the SEC,
(iii) copies of Borrowers’, Parent’s and ThermaClime’s federal income tax returns (if requested by Agent), and any amendments thereto, filed with the Internal Revenue Service, and
(iv) any other information that is provided by Parent to its shareholders generally,
(e) promptlyif and when filed by any Borrower and as requested by Agent, but satisfactory evidence of payment of applicable excise taxes in each jurisdictions in which (i) any event within five Borrower conducts business or is required to pay any such excise tax, (5ii) Business Days after where any Borrower’s failure to pay any such applicable excise tax would result in a Lien on the properties or assets of any Borrower, or (iii) where any Borrower’s failure to pay any such applicable excise tax reasonably could be expected to result in a Material Adverse Change,
(f) as soon as a Borrower has knowledge of any event or condition that constitutes a Default or an Event of Default, notice thereof and a statement of the curative action that the applicable Obligated Party proposes Borrowers propose to take with respect thereto,
(fg) promptly after the commencement thereofas soon as available, but in no later than Wednesday of each week, a report listing (i) all cash distributions and advances made by EDN to any event within five Borrower and Guarantor (5other than Parent and Cherokee) Business Days after during the service of process with respect thereto on preceding week and (ii) all cash distributions and advances made by any Obligated Party, notice of all actions, suits, or proceedings brought by or against such Obligated Party before any Governmental Authority which, if determined adversely Borrower and Guarantor (other than Parent and Cherokee) to such Obligated Party, could reasonably be expected to result in a Material Adverse Change,
(g) promptly, but in any event within ten (10) Business Days after Borrower has knowledge thereof, notify Lender of any material negative changes to Borrower’s customer renewal ratesEDN during the preceding week, and
(h) upon the request of LenderAgent, any other information report reasonably requested relating to the financial condition of Borrowers. In addition to the financial statements referred to above, Borrowers agree to deliver financial statements prepared on both a consolidated and consolidating basis and that no Borrower, or any Obligated PartySubsidiary of a Borrower, will have a fiscal year different from that of ThermaClime. Parent, ThermaClime and Borrowers agree that their independent certified public accountants are authorized to communicate with Agent and to release to Agent whatever financial information concerning Parent, ThermaClime or Borrowers that Agent reasonably may request. Parent, ThermaClime and each Borrower waives the right to assert a confidential relationship, if any, it may have with any accounting firm or service bureau in connection with any information requested by Agent pursuant to or in accordance with this Agreement, and agree that Agent may contact directly any such accounting firm or service bureau in order to obtain such information. Notwithstanding the foregoing, the Agent will use reasonable good faith efforts to permit a representative of Borrowers to be present or participate in any communication with such accountants.
Appears in 1 contract
Financial Statements, Reports, Certificates. Deliver to Agent, with copies to each Lender:
(a) as soon as available, but in any event by no later than within 30 days (45 days in the earlier case of (ya month that is the end of one of the first 3 fiscal quarters in a fiscal year) five (5) days after the date on which Parent files its Form 10-Q with the SEC and (z) forty five (45) days following the last day end of each month during each of Parent’s first three (3) 's fiscal quarters of each fiscal yearyears,
(i) a company prepared consolidated balance sheet sheet, income statement, and income statement of cash flow covering the operations of Parent Parent's and its direct and indirect Subsidiaries Subsidiaries' operations during such period and the year-to-date period ending thereon, with comparisons against the balance sheet for the immediately preceding fiscal year and income statement for the corresponding period during the immediately preceding fiscal year, (it being agreed that the furnishing of Parent’s quarterly report on Form 10-Q for each such fiscal quarter, as filed with the SEC, will satisfy Parent’s and Borrower’s obligations under this Section 6.2(a)(i) with respect to such fiscal quarter)period,
(ii) a Compliance Certificate certificate signed by the chief financial officer and/or chief accounting officer of Borrower certifying Parent to the effect that:
(1) A. the financial statements delivered hereunder have been prepared in accordance with GAAP (except for the order and details of presentation, the lack of footnotes and being subject to year-end audit adjustments, so long as such exceptions are consistent with financial statements delivered to Agent prior to the execution and delivery of this Agreement) and fairly present in all material respects the financial condition of Parent and its direct Subsidiaries,
B. the representations and indirect Subsidiaries, warranties of Borrowers contained in this Agreement and demonstrating the compliance by Parent other Loan Documents are true and correct in all material respects on a consolidated basis at and as of the end date of such quarter with all financial covenants required certificate, as though made on and as of such date (except to be tested hereunderthe extent that such representations and warranties relate solely to an earlier date), and
(2) C. there does not exist any condition or event that constitutes a Default or Event of Default (or, to the extent of any non-compliance, describing such non-compliance as to which he or she may have knowledge and what action the applicable Obligated Party has Borrowers have taken, is are taking, or proposes propose to take with respect thereto),
(iii) for each month that is the date on which a financial covenant in Section 7.20 is to be tested, a Compliance Certificate demonstrating, in reasonable detail, compliance at the end of such period with the applicable financial covenants contained in Section 7.20,
(iv) a Solvency Certificate, and
(b) as soon as available, but in any event by no later than the earlier of (y) five (5) within 90 days after the date on which Parent files its Form 10-K with the SEC and (z) ninety (90) days following the last day end of each of Parent’s 's fiscal years, consolidated ,
(i) financial statements of Parent and its direct and indirect Subsidiaries on a consolidated basis for each such fiscal year, audited by independent certified public accountants reasonably acceptable to Lender in Lender’s Permitted Discretion Agent and certified, without any qualifications (including any (A) “"going concern” " exception or like qualification or exception, or (B) qualification or exception as to the scope of such auditqualification), by such accountants to have been prepared in accordance with GAAP) GAAP (it being agreed that the furnishing of Parent’s annual report on Form 10-K for each such fiscal year as filed with the SEC, will satisfy Parent’s and Borrower’s obligation under this Section 6.2(b) with respect to such fiscal year except with respect to the requirement that such audited financial statements be reported on without to include a “going concern” or like qualification or exceptionbalance sheet, or qualification arising out income statement, and statement of the scope of the auditcash flow and, if prepared, such accountants' letter to management), together with ,
(ii) a certificate of such accountants addressed to Lender Agent and the Lenders stating that such accountants do not have knowledge of the existence of any Default or Event of Default. Such annual financial statements shall be accompanied by Default under Section 7.20, and
(iii) a Compliance Certificate signed certificate executed by the chief financial officer and/or chief accounting officer of Borrower certifying that:
(1) Parent is in compliance on a consolidated basis at stating that Parent and Loan Parties have paid all applicable deemed dividend taxes for the end preceding fiscal year and setting forth the amount of such fiscal year with all financial covenants required to be tested hereunder,
(2) the financial statements delivered hereunder have been prepared in accordance with GAAP and fairly present in all material respects the financial condition of Parent and its direct and indirect Subsidiaries, and
(3) there does not exist any condition or event that constitutes a Default or Event of Default (or, to the extent of any non-compliance, describing such non-compliance as to which he or she may have knowledge and what action the applicable Obligated Party has taken, is taking, or proposes to take with respect thereto)taxes,
(c) [Intentionally Deleted],
(d) as soon as available, but in any event by no later than the earlier of (y) five (5) within 30 days after the date on which Parent files its Form 10-K with the SEC and (z) ninety (90) days following the last day start of each of Parent’s 's fiscal years, ,
(i) copies of Projections for such fiscal year Loan Parties' Projections, in form and substance (includingincluding as to scope and underlying assumptions) satisfactory to Agent, in its sole discretion, for the avoidance of doubtforthcoming 3 years, year by year, and for the 2016 Projections to be delivered on or before March 30forthcoming fiscal year, 2016)month by month, all as certified by the chief financial officer of Parent as being such officer’s 's good faith best estimate of the financial performance of Parent and its direct and indirect Subsidiaries during the period covered thereby,
(d) if and when filed by Parent or any Borrower,
(i) 10-Q quarterly reports, Form 10-K annual reports, and Form 8-K current reports,
(ii) any other filings made by Parent or any Borrower with the SEC,
(iii) copies of Loan Parties' federal income tax returns, and any amendments thereto, filed with the Internal Revenue Service or Canada Customs and Revenue Agency, and
(iv) any other information that is provided by Parent to its shareholders generally,
(e) promptlyif and when filed by any Loan Party and as requested by Agent, but satisfactory evidence of payment of applicable excise taxes in each jurisdictions in which (i) any event within five Loan Party conducts business or is required to pay any such excise tax, (5ii) Business Days after Borrower where any Loan Party's failure to pay any such applicable excise tax would result in a Lien on the properties or assets of any Loan Party, or (iii) where any Loan Party's failure to pay any such applicable excise tax reasonably could be expected to result in a Material Adverse Change,
(f) as soon as any Loan Party has knowledge of any event or condition that constitutes a Default or an Event of Default, notice thereof and a statement of the curative action that the applicable Obligated Party proposes Loan Parties propose to take with respect thereto,
(f) promptly after the commencement thereof, but in any event within five (5) Business Days after the service of process with respect thereto on any Obligated Party, notice of all actions, suits, or proceedings brought by or against such Obligated Party before any Governmental Authority which, if determined adversely to such Obligated Party, could reasonably be expected to result in a Material Adverse Change,
(g) promptly, but in any event within ten (10) Business Days after Borrower has knowledge thereof, notify Lender of any material negative changes to Borrower’s customer renewal rates, and
(hg) upon the request of LenderAgent, any other information report reasonably requested relating to the financial condition of Loan Parties. In addition to the financial statements referred to above, Parent and Borrowers agree to deliver financial statements prepared on both a consolidated and consolidating basis and that no Borrower, or any Obligated PartyRestricted Subsidiary of a Borrower, will have a fiscal year different from that of Parent. Borrowers agree that their independent certified public accountants are authorized to communicate with Agent and to release to Agent whatever financial information concerning Borrowers that Agent reasonably may request. Each Borrower waives the right to assert a confidential relationship, if any, it may have with any accounting firm or service bureau in connection with any information requested by Agent pursuant to or in accordance with this Agreement, and agree that Agent may contact directly any such accounting firm or service bureau in order to obtain such information.
Appears in 1 contract
Samples: Loan and Security Agreement (Outsourcing Services Group Inc)
Financial Statements, Reports, Certificates. Deliver to Agent, with copies to each Lender:
(a) as soon as available, but in any event by no later than within 30 days (45 days in the earlier case of (ya month that is the end of one of Borrower's fiscal quarters) five (5) days after the date on which Parent files its Form 10-Q with the SEC and (z) forty five (45) days following the last day end of each month during each of Parent’s first three (3) Borrower's fiscal quarters of each fiscal yearyears,
(i) a company prepared consolidated balance sheet sheet, income statement, and income statement of cash flow covering the operations of Parent Borrower's and Parent's and its direct and indirect Subsidiaries Subsidiaries' operations during such period and the year-to-date period ending thereon, with comparisons against the balance sheet for the immediately preceding fiscal year and income statement for the corresponding period during the immediately preceding fiscal year, (it being agreed that the furnishing of Parent’s quarterly report on Form 10-Q for each such fiscal quarter, as filed with the SEC, will satisfy Parent’s and Borrower’s obligations under this Section 6.2(a)(i) with respect to such fiscal quarter)period,
(ii) a Compliance Certificate signed by the chief financial officer and/or chief accounting officer of Borrower certifying to the effect that:
(1A) the financial statements delivered hereunder have been prepared in accordance with GAAP (except for the lack of footnotes and being subject to quarterly and year-end audit adjustments) and fairly present in all material respects the financial condition of Parent and its direct Subsidiaries,
(B) the representations and indirect Subsidiaries, warranties of each Credit Party contained in this Agreement and demonstrating the compliance by Parent other Loan Documents are true and correct in all material respects on a consolidated basis at and as of the end date of such quarter with all financial covenants required certificate, as though made on and as of such date (except to be tested hereunderthe extent that such representations and warranties relate solely to an earlier date), and
(2C) there does not exist any condition or event that constitutes a Default or Event of Default (or, to the extent of any non-compliance, describing such non-compliance as to which he or she may have knowledge and what action the applicable Obligated Party has Credit Parties have taken, is are taking, or proposes propose to take with respect thereto), and
(iii) a Compliance Certificate demonstrating, in reasonable detail, compliance at the end of such period with the covenant contained in Section 7.14,
(b) as soon as available, but in any event by no later than the earlier of (y) five (5) within 90 days after the date on which Parent files its Form 10-K with the SEC and (z) ninety (90) days following the last day end of each of Parent’s Borrower's fiscal years, consolidated financial statements of Parent and its direct Subsidiaries (and indirect Subsidiaries consolidating financial statements of Parent and its Subsidiaries, to the extent produced by Parent in the normal course of its operations) for each such fiscal year, audited by independent certified public accountants reasonably acceptable to Lender in Lender’s Permitted Discretion Agent and certified, without any qualifications (including any (A) “going concern” or like qualification or exception, or (B) qualification or exception as to the scope of such auditqualifications, by such accountants to have been prepared in accordance with GAAP) GAAP (it being agreed that the furnishing of Parent’s annual report on Form 10-K for each such fiscal year as filed with the SEC, will satisfy Parent’s and Borrower’s obligation under this Section 6.2(b) with respect to such fiscal year except with respect to the requirement that such audited financial statements be reported on without to include a “going concern” or like qualification or exceptionbalance sheet, or qualification arising out income statement, and statement of the scope of the audit)cash flow and, together with a certificate of if prepared, such accountants addressed accountants' letter to Lender stating that such accountants do not have knowledge of the existence of any Default or Event of Default. Such annual financial statements shall be accompanied by a Compliance Certificate signed by the chief financial officer and/or chief accounting officer of Borrower certifying that:
(1) Parent is in compliance on a consolidated basis at the end of such fiscal year with all financial covenants required to be tested hereunder,
(2) the financial statements delivered hereunder have been prepared in accordance with GAAP and fairly present in all material respects the financial condition of Parent and its direct and indirect Subsidiaries, and
(3) there does not exist any condition or event that constitutes a Default or Event of Default (or, to the extent of any non-compliance, describing such non-compliance as to which he or she may have knowledge and what action the applicable Obligated Party has taken, is taking, or proposes to take with respect theretomanagement),
(c) [Intentionally Deleted],
(d) as soon as available, but in any event by no later than the earlier of (y) five (5) within 30 days after the date on which Parent files its Form 10-K with the SEC and (z) ninety (90) days following the last day start of each of Parent’s Borrower's fiscal years, copies of Projections the Projections, in form and substance (including as to scope and underlying assumptions) satisfactory to Agent, in its sole discretion, for such fiscal year year, quarter by quarter (including, for or by such shorter periods as are reasonably requested by the avoidance of doubt, the 2016 Projections to be delivered on or before March 30, 2016Agent), all as certified by the chief financial officer of Parent as being such officer’s which Projections shall represent Borrower's good faith best estimate of the financial performance of Parent and its direct and indirect Subsidiaries during the period covered thereby, it being understood that such Projections as to future events are not to be viewed as facts and that actual results during the period or periods covered by any Projections may differ from the projected results and no assurance can be given that the Projections will be realized,
(d) if and when filed by Parent,
(i) Form 10-Q quarterly reports, Form 10-K annual reports, and Form 8-K current reports,
(ii) any other filings made by Parent with the SEC, and
(iii) any other information that is provided by Parent to its shareholders generally (provided, that for purposes of this clause (d), any information to be delivered hereunder shall be deemed to have been delivered when posted on the Parent's website or otherwise made available on the website of the SEC),
(e) promptly, but in as soon as any event within five (5) Business Days after Borrower Credit Party has knowledge of any event or condition that constitutes a Default or an Event of Default, notice thereof and a statement of the curative action that the applicable Obligated such Credit Party proposes to take with respect thereto,
(f) promptly within 30 days after the commencement thereof, but in any event within five later of (5i) Business Days after the service of process with respect thereto on any Obligated PartyCredit Party or (ii) such time as exposure of the Credit Party could be reasonably determined, notice of all actions, suits, or proceedings brought by or against such Obligated any Credit Party before any Governmental Authority which, if determined adversely to such Obligated Credit Party, reasonably could reasonably be expected to result in a Material Adverse Change,
(g) promptly, but in any event within ten (10) Business Days after Borrower has knowledge thereof, notify Lender of any material negative changes to Borrower’s customer renewal rates, and
(hg) upon the request of LenderAgent, any other information report reasonably requested relating to the financial condition of any Obligated PartyCredit Parties; provided that such reports shall not be overly burdensome for any Credit Party to prepare. In addition, no Credit Party will have a fiscal year different from that of Borrower. Borrower agrees to cooperate with Agent to allow Agent to consult with its independent certified public accountants if Agent reasonably requests the right to do so (and Agent shall notify Borrower as to the timing of such consultations and permit Borrower to be present thereat or to otherwise participate therein) and that, in such connection, its independent certified public accountants are authorized to communicate with Agent and to release to Agent whatever financial information concerning any Credit Party that Agent reasonably may request.
Appears in 1 contract
Samples: Loan, Guaranty and Security Agreement (Payless Shoesource Inc /De/)
Financial Statements, Reports, Certificates. Deliver to Lender:
(a) as soon as available, but in any event by no later than within 45 days (30 days in the earlier case of (ya month that is the first month of any fiscal quarter) five (5) days after the date on which Parent files its Form 10-Q with the SEC and (z) forty five (45) days following the last day end of each month during each of Parent’s first three (3) 's fiscal quarters of each fiscal yearyears,
(i) a company prepared consolidated and consolidating balance sheet and income statement, and consolidated statement of cash flow covering the operations of Parent Parent's and its direct and indirect Subsidiaries Subsidiaries' operations during such period and the year-to-date period ending thereon, with comparisons against the balance sheet for the immediately preceding fiscal year and income statement for the corresponding period during the immediately preceding fiscal year, (it being agreed that the furnishing of Parent’s quarterly report on Form 10-Q for each such fiscal quarter, as filed with the SEC, will satisfy Parent’s and Borrower’s obligations under this Section 6.2(a)(i) with respect to such fiscal quarter)period,
(ii) a Compliance Certificate statement signed by the chief financial officer and/or chief accounting officer of Borrower certifying Parent to the effect that:
(1) A. the financial statements delivered hereunder (except for the first month of each quarter) have been prepared in accordance with GAAP (except for the lack of footnotes and being subject to year-end audit adjustments) and fairly present in all material respects the financial condition of Parent and its direct Subsidiaries,
B. the representations and indirect Subsidiaries, warranties of Parent and demonstrating Borrower contained in this Agreement and the compliance by Parent other Loan Documents are true and correct in all material respects on a consolidated basis at and as of the end date of such quarter with all financial covenants required certificate, as though made on and as of such date (except to be tested hereunderthe extent that such representations and warranties relate solely to an earlier date), and
(2) C. there does not exist any condition or event that constitutes a Default or Event of Default (or, to the extent of any non-compliance, describing such non-compliance as to which he or she may have knowledge and what action the applicable Obligated Party Parent or Borrower has taken, is are taking, or proposes propose to take with respect thereto),, and
(iii) for each month that is the date on which a financial covenant in Section 7.19 is to be tested, a Compliance Certificate demonstrating, in reasonable detail, compliance at the end of such period with the applicable financial covenants contained in Section 7.19, and
(b) as soon as available, but in any event by no later than the earlier of (y) five (5) within 90 days after the date on which Parent files its Form 10-K with the SEC and (z) ninety (90) days following the last day end of each of Parent’s 's fiscal years, ,
(i) consolidated financial statements of Parent and its direct and indirect Subsidiaries for each such fiscal year, audited by independent certified public accountants reasonably acceptable to Lender in Lender’s Permitted Discretion and certified, without any qualifications (including any (A) “going concern” or like qualification or exception, or (B) qualification or exception as to the scope of such auditqualifications, by such accountants to have been prepared in accordance with GAAP) GAAP (it being agreed that the furnishing of Parent’s annual report on Form 10-K for each such fiscal year as filed with the SEC, will satisfy Parent’s and Borrower’s obligation under this Section 6.2(b) with respect to such fiscal year except with respect to the requirement that such audited financial statements be reported on without to include a “going concern” or like qualification or exceptionbalance sheet, or qualification arising out income statement, and statement of the scope of the auditcash flow and, if prepared, such accountants' letter to management), together with ,
(ii) a certificate of such accountants addressed to Lender stating that such accountants do not have knowledge of the existence of any Default or Event of Default. Such annual financial statements shall be accompanied by a Compliance Certificate signed by the chief financial officer and/or chief accounting officer of Borrower certifying that:
(1) Parent is in compliance on a consolidated basis at the end of such fiscal year with all financial covenants required to be tested hereunder,
(2) the financial statements delivered hereunder have been prepared in accordance with GAAP and fairly present in all material respects the financial condition of Parent and its direct and indirect Subsidiaries, and
(3) there does not exist any condition or event that constitutes a Default or Event of Default (or, to the extent of any non-compliance, describing such non-compliance as to which he or she may have knowledge and what action the applicable Obligated Party has taken, is taking, or proposes to take with respect thereto)under Section 7.19,
(c) [Intentionally Deleted],
(d) as soon as available, but in any event by no later than prior to the earlier of (y) five (5) days after the date on which Parent files its Form 10-K with the SEC and (z) ninety (90) days following the last day start of each of Parent’s 's fiscal years, ,
(i) copies of Projections for such fiscal year Parent's Projections, in form and substance (includingincluding as to scope and underlying assumptions) satisfactory to Lender, in its sole discretion, for the avoidance of doubtforthcoming 2 years, year by year, and for the 2016 Projections to be delivered on or before March 30forthcoming fiscal year, 2016)month by month, all as certified accompanied by a statement from the chief financial officer of Parent as being such officer’s 's good faith best estimate of the financial performance of Parent and its direct and indirect Subsidiaries during the period covered thereby,
(d) if and when filed by Parent,
(i) notice of Form 10-Q quarterly reports, Form 10-K annual reports, and Form 8-K current reports (if available online, no hard copies need be provided),
(ii) notice of any other filings made by Borrower with the SEC (if available online, no hard copies need be provided),
(iii) copies of Parent's federal income tax returns, and any amendments thereto, filed with the Internal Revenue Service, and
(iv) notice of any other information provided by Parent to its shareholders generally (if not available online, hard copies shall be provided),
(e) promptlyif and when filed by any Guarantor or Borrower and as requested by Lender, but satisfactory evidence of payment of applicable excise taxes in each jurisdictions in which (i) any event within five Guarantor or Borrower conducts business or is required to pay any such excise tax, (5ii) Business Days after where the failure to pay any such applicable excise tax would result in a Lien on the properties or assets of any Guarantor or Borrower, or (iii) where any Guarantor's or Borrower's failure to pay any such applicable excise tax reasonably could be expected to result in a Material Adverse Change,
(f) as soon as Parent or Borrower has knowledge of any event or condition that constitutes a Default or an Event of Default, Default notice thereof and a statement of the curative action that the applicable Obligated Party proposes Guarantors or Borrower propose to take with respect thereto,
(f) promptly after the commencement thereof, but in any event within five (5) Business Days after the service of process with respect thereto on any Obligated Party, notice of all actions, suits, or proceedings brought by or against such Obligated Party before any Governmental Authority which, if determined adversely to such Obligated Party, could reasonably be expected to result in a Material Adverse Change,
(g) promptly, but in any event within ten (10) Business Days after Borrower has knowledge thereof, notify Lender of any material negative changes to Borrower’s customer renewal rates, and
(hg) upon the request of Lender, any other information report reasonably requested relating to the financial condition of Borrower or any Obligated PartyGuarantor. Parent agrees that neither Borrower, nor any Subsidiary of Parent, will have a fiscal year different from that of Parent. Parent and Borrower agree that their independent certified public accountants are authorized to communicate with Lender and to release to Lender whatever financial information concerning Borrower and any Guarantor that Lender reasonably may request. Parent and Borrower waive the right to assert a confidential relationship, if any, it may have with any accounting firm or service bureau in connection with any information requested by Lender pursuant to or in accordance with this Agreement, and agree that Lender may contact directly any such accounting firm or service bureau in order to obtain such information.
Appears in 1 contract
Samples: Loan and Security Agreement (Paradyne Networks Inc)
Financial Statements, Reports, Certificates. Deliver to Agent, with copies to each Lender:
(a) as soon as available, but in any event by no later than within 30 days (45 days in the earlier case of (ya month that is the end of one of the first 3 fiscal quarters in a fiscal year) five (5) days after the date on which Parent files its Form 10-Q with the SEC and (z) forty five (45) days following the last day end of each month during each of Parent’s first three (3) 's fiscal quarters of each fiscal yearyears,
(i) a company prepared consolidated balance sheet sheet, income statement, and income statement of cash flow covering the operations of Parent Parent's and its direct and indirect Subsidiaries Subsidiaries' operations during such period and the year-to-date period ending thereon, with comparisons against the balance sheet for the immediately preceding fiscal year and income statement for the corresponding period during the immediately preceding fiscal year, (it being agreed that the furnishing of Parent’s quarterly report on Form 10-Q for each such fiscal quarter, as filed with the SEC, will satisfy Parent’s and Borrower’s obligations under this Section 6.2(a)(i) with respect to such fiscal quarter)period,
(ii) a Compliance Certificate certificate signed by the chief financial officer and/or chief accounting officer of Borrower certifying Parent to the effect that:
(1A) the financial statements delivered hereunder have been prepared in accordance with GAAP (except for the lack of footnotes and being subject to year-end audit adjustments) and adjustments)and fairly present in all material respects the financial condition of Parent and its direct Subsidiaries,
(B) the representations and indirect Subsidiaries, warranties of Parent and demonstrating Borrowers contained in this Agreement and the compliance by Parent other Loan Documents are true and correct in all material respects on a consolidated basis at and as of the end date of such quarter with all financial covenants required certificate, as though made on and as of such date (except to be tested hereunderthe extent that such representations and warranties relate solely to an earlier date), and
(2C) there does not exist any condition or event that constitutes a Default or Event of Default (or, to the extent of any non-compliance, describing such non-compliance as to which he or she may have knowledge and what action the applicable Obligated Party has Parent or Borrowers have taken, is are taking, or proposes propose to take with respect thereto),, and
(iii) for each month that is the date on which a financial covenant in Section 7.21 is to be tested, a Compliance Certificate demonstrating, in reasonable detail, compliance at the end of such period with the applicable financial covenants contained in Section 7.21, and
(b) as soon as available, but in any event by no later than the earlier of (y) five (5) within 105 days after the date on which Parent files its Form 10-K with the SEC and (z) ninety (90) days following the last day end of each of Parent’s 's fiscal years, consolidated ,
(i) financial statements of Parent and its direct and indirect Subsidiaries for each such fiscal year, audited by independent certified public accountants reasonably acceptable to Lender in Lender’s Permitted Discretion Agent and certified, without any qualifications (including any (A) “going concern” or like qualification or exception, or (B) qualification or exception as to the scope of such auditqualifications, by such accountants to have been prepared in accordance with GAAP) GAAP (it being agreed that the furnishing of Parent’s annual report on Form 10-K for each such fiscal year as filed with the SEC, will satisfy Parent’s and Borrower’s obligation under this Section 6.2(b) with respect to such fiscal year except with respect to the requirement that such audited financial statements be reported on without to include a “going concern” or like qualification or exceptionbalance sheet, or qualification arising out income statement, and statement of the scope of the auditcash flow and, if prepared, such accountants' letter to management), together with ,
(ii) a certificate of such accountants addressed to Lender Agent and the Lenders stating that such accountants do not have knowledge of the existence of any Default or Event of Default. Such annual financial statements shall be accompanied by a Compliance Certificate signed by the chief financial officer and/or chief accounting officer of Borrower certifying that:
(1) Parent is in compliance on a consolidated basis at the end of such fiscal year with all financial covenants required to be tested hereunder,
(2) the financial statements delivered hereunder have been prepared in accordance with GAAP and fairly present in all material respects the financial condition of Parent and its direct and indirect Subsidiaries, and
(3) there does not exist any condition or event that constitutes a Default or Event of Default (or, to the extent of any non-compliance, describing such non-compliance as to which he or she may have knowledge and what action the applicable Obligated Party has taken, is taking, or proposes to take with respect thereto)under Section 7.21,
(c) [Intentionally Deleted],
(d) as soon as available, but in any event by no later than within 30 days prior to the earlier of (y) five (5) days after the date on which Parent files its Form 10-K with the SEC and (z) ninety (90) days following the last day start of each of Parent’s 's fiscal years, ,
(i) copies of Projections for such fiscal year Parent's and each Borrower's Projections, in form and substance (includingincluding as to scope and underlying assumptions) satisfactory to Agent, in its sole discretion, for the avoidance of doubtforthcoming fiscal year, the 2016 Projections to be delivered on or before March 30a yearly and month by month basis, 2016), all as certified by the chief financial officer of Parent or Borrower as being such officer’s 's good faith best estimate of the financial performance of Parent and its direct and indirect Subsidiaries Bank during the period covered thereby,
(d) if and when filed by Parent,
(i) Form 10-Q quarterly reports, Form 10-K annual reports, and Form 8-K current reports,
(ii) any other filings made by Parent with the SEC,
(iii) copies of Parent's federal income tax returns, and any amendments thereto, filed with the Internal Revenue Service, and
(iv) any other information that is provided by Parent to its shareholders generally,
(e) promptlyif and when filed by any Borrower and as requested by Agent, but satisfactory evidence of payment of applicable excise taxes in each jurisdictions in which (i) any event within five Borrower conducts business or is required to pay any such excise tax, (5ii) Business Days after where the failure to pay any such applicable excise tax would result in a Lien on the properties or assets of any Borrower, or (iii) where any Borrower's failure to pay any such applicable excise tax reasonably could be expected to result in a Material Adverse Change,
(f) as soon as either Parent or a Borrower has knowledge of any event or condition that constitutes a Default or an Event of Default, notice thereof and a statement of the curative action that the applicable Obligated Party proposes Parent or Borrowers propose to take with respect thereto,
(f) promptly after the commencement thereof, but in any event within five (5) Business Days after the service of process with respect thereto on any Obligated Party, notice of all actions, suits, or proceedings brought by or against such Obligated Party before any Governmental Authority which, if determined adversely to such Obligated Party, could reasonably be expected to result in a Material Adverse Change,
(g) promptly, but in any event within ten (10) Business Days after Borrower has knowledge thereof, notify Lender of any material negative changes to Borrower’s customer renewal rates, and
(hg) upon the request of LenderAgent, any other information report reasonably requested relating to the financial condition of Parent or Borrowers. In addition to the financial statements referred to above, Parent agrees to deliver financial statements prepared on both a consolidated and consolidating basis and agrees that no Subsidiary of Parent will have a fiscal year different from that of Parent. Parent and each Borrower agrees that their independent certified public accountants are authorized to communicate with Agent and to release to Agent whatever financial information concerning Parent or Borrowers Agent reasonably may request. Parent and each Borrower waives the right to assert a confidential relationship, if any, it may have with any Obligated Partyaccounting firm or service bureau in connection with any information requested by Agent pursuant to or in accordance with this Agreement, and agrees that Agent may contact directly any such accounting firm or service bureau in order to obtain such information.
Appears in 1 contract
Financial Statements, Reports, Certificates. Deliver to Agent, with copies to each Lender:
(a) as soon as available, but in any event by no later than within 30 days (45 days in the earlier case of (ya month that is the end of one of Parent's fiscal quarters) five (5) days after the date on which Parent files its Form 10-Q with the SEC and (z) forty five (45) days following the last day end of each month during each of Parent’s first three (3) 's fiscal quarters of each fiscal yearyears,
(i) a company prepared consolidated balance sheet sheet, income statement, and income statement of cash flow covering the operations of Parent Parent's and its direct and indirect Subsidiaries Subsidiaries' operations during such period and the year-to-date period ending thereon, with comparisons against the balance sheet for the immediately preceding fiscal year and income statement for the corresponding period during the immediately preceding fiscal year, (it being agreed that the furnishing of Parent’s quarterly report on Form 10-Q for each such fiscal quarter, as filed with the SEC, will satisfy Parent’s and Borrower’s obligations under this Section 6.2(a)(i) with respect to such fiscal quarter)period,
(ii) a Compliance Certificate certificate signed by the chief financial officer and/or chief accounting officer of Borrower certifying Parent to the effect that:
(1) A. the financial statements delivered hereunder have been prepared in accordance with GAAP (except for the lack of footnotes and being subject to year-end audit adjustments) and fairly present in all material respects the financial condition of Parent and its direct Subsidiaries,
B. the representations and indirect Subsidiaries, warranties of Borrowers contained in this Agreement and demonstrating the compliance by Parent other Loan Documents are true and correct in all material respects on a consolidated basis at and as of the end date of such quarter with all financial covenants required certificate, as though made on and as of such date (except to be tested hereunderthe extent that such representations and warranties relate solely to an earlier date), and
(2) C. there does not exist any condition or event that constitutes a Default or Event of Default (or, to the extent of any non-compliance, describing such non-compliance as to which he or she may have knowledge and what action the applicable Obligated Party has Borrowers have taken, is are taking, or proposes propose to take with respect thereto), and
(iii) for each month, quarter, or year that is a month, quarter, or year as to which a financial covenant in Section 7.18 is to be tested, a Compliance Certificate demonstrating, in reasonable detail, compliance at the end of such period with the applicable financial covenants contained in Section 7.18,
(b) as soon as available, but in any event by no later than the earlier of (y) five (5) within 90 days after the date on which Parent files its Form 10-K with the SEC and (z) ninety (90) days following the last day end of each of Parent’s 's fiscal years, consolidated ,
(i) financial statements of Parent and its direct and indirect Subsidiaries for each such fiscal year, audited by independent certified public accountants reasonably acceptable to Lender in Lender’s Permitted Discretion Agent and certified, without any qualifications (including any (A) “going concern” or like qualification or exception, or (B) qualification or exception as to the scope of such auditqualifications, by such accountants to have been prepared in accordance with GAAP) GAAP (it being agreed that the furnishing of Parent’s annual report on Form 10-K for each such fiscal year as filed with the SEC, will satisfy Parent’s and Borrower’s obligation under this Section 6.2(b) with respect to such fiscal year except with respect to the requirement that such audited financial statements be reported on without to include a “going concern” or like qualification or exceptionbalance sheet, or qualification arising out income statement, and statement of the scope of the auditcash flow and, if prepared, such accountants' letter to management), together with and
(ii) a certificate of such accountants addressed to Lender Agent and the Lenders stating that such accountants do not have knowledge of the existence of any Default or Event of Default. Such annual financial statements shall be accompanied by a Compliance Certificate signed by the chief financial officer and/or chief accounting officer of Borrower certifying that:
(1) Parent is in compliance on a consolidated basis at the end of such fiscal year with all financial covenants required to be tested hereunder,
(2) the financial statements delivered hereunder have been prepared in accordance with GAAP and fairly present in all material respects the financial condition of Parent and its direct and indirect Subsidiaries, and
(3) there does not exist any condition or event that constitutes a Default or Event of Default (or, to the extent of any non-compliance, describing such non-compliance as to which he or she may have knowledge and what action the applicable Obligated Party has taken, is taking, or proposes to take with respect thereto)under Section 7.18,
(c) [Intentionally Deleted],
(d) as soon as available, but in any event by no later than within 30 days prior to the earlier of (y) five (5) days after the date on which Parent files its Form 10-K with the SEC and (z) ninety (90) days following the last day start of each of Parent’s 's fiscal years, copies of Projections for such fiscal year Borrowers' Projections, in form and substance (includingincluding as to scope and underlying assumptions) satisfactory to Agent, in its sole discretion, for the avoidance of doubtforthcoming 3 years, year by year, and for the 2016 Projections to be delivered on or before March 30forthcoming fiscal year, 2016)month by month, all as certified by the chief financial officer of Parent as being such officer’s 's good faith best estimate of the financial performance of Parent and its direct and indirect Subsidiaries during the period covered thereby,
(d) if and when filed by any Borrower,
(i) quarterly reports on Form 10-Q, annual reports on Form 10-K, and current reports on Form 8-K,
(ii) any other filings made by any Borrower with the SEC,
(iii) copies of Borrowers' federal income tax returns, and any amendments thereto, filed with the Internal Revenue Service, and
(iv) any other information that is provided by Parent to its shareholders generally,
(e) promptlyif and when filed by any Borrower or any Subsidiary of a Borrower and as requested by Agent, but satisfactory evidence of payment of applicable excise taxes in each jurisdiction in which (i) any event within five Borrower or any Subsidiary of a Borrower conducts business or is required to pay any such excise tax, (5ii) Business Days after where any Borrower's or any Subsidiary of a Borrower's failure to pay any such applicable excise tax would result in a Lien on the properties or assets of such Borrower or such Subsidiary, or (iii) where any Borrower's or any Subsidiary of a Borrower's failure to pay any such applicable excise tax reasonably could be expected to result in a Material Adverse Change,
(f) as soon as a Borrower has knowledge of any event or condition that constitutes a Default or an Event of Default, notice thereof and a statement of the curative action that the applicable Obligated Party proposes Borrowers propose to take with respect thereto,
(fg) promptly after the commencement thereof, but in any event within five (5) Business Days 5 days after the service of process with respect thereto on any Obligated PartyBorrower or any Subsidiary of a Borrower, notice of all actions, suits, or proceedings brought by or against such Obligated Party any Borrower or any Subsidiary of a Borrower before any Governmental Authority which, if determined adversely to such Obligated PartyBorrower or such Subsidiary, reasonably could reasonably be expected to result in a Material Adverse Change,
(g) promptly, but in any event within ten (10) Business Days after Borrower has knowledge thereof, notify Lender of any material negative changes to Borrower’s customer renewal rates, and
(h) upon the request of LenderAgent, any other information report reasonably requested relating to the financial condition of any Obligated PartyBorrowers or their Subsidiaries. In addition to the financial statements referred to above, Borrowers agree to deliver financial statements prepared on both a consolidated and consolidating basis and agree that no Subsidiary of Parent will have a fiscal year different from that of Parent. Borrowers agree to cooperate with Agent to allow Agent to consult with their independent certified public accountants if Agent reasonably requests the right to do so and that, in such connection, their independent certified public accountants are authorized to communicate with Agent and to release to Agent whatever financial information concerning Borrowers or their Subsidiaries that Agent reasonably may request.
Appears in 1 contract
Samples: Loan and Security Agreement (Aegis Communications Group Inc)
Financial Statements, Reports, Certificates. Deliver to Agent, with copies to each Lender:
(a) as soon as available, but in any event by no later than within 30 days (45 days in the earlier case of (ya month that is the end of one of the first 3 fiscal quarters in a fiscal year) five (5) days after the date on which Parent files its Form 10-Q with the SEC and (z) forty five (45) days following the last day end of each month during each of Parent’s first three (3) 's fiscal quarters of each fiscal yearyears,
(i) a company prepared consolidated balance sheet sheet, income statement, and income statement of cash flow covering the operations of Parent Parent's and its direct and indirect Subsidiaries Subsidiaries' operations during such period and the year-to-date period ending thereon, with comparisons against the balance sheet for the immediately preceding fiscal year and income statement for the corresponding period during the immediately preceding fiscal year, (it being agreed that the furnishing of Parent’s quarterly report on Form 10-Q for each such fiscal quarter, as filed with the SEC, will satisfy Parent’s and Borrower’s obligations under this Section 6.2(a)(i) with respect to such fiscal quarter)period,
(ii) a Compliance Certificate certificate signed by the chief financial officer and/or chief accounting officer of Borrower certifying Parent to the effect that:
(1A) the financial statements delivered hereunder have been prepared in accordance with GAAP (except for the lack of footnotes and being subject to year-end audit adjustments) and fairly present in all material respects the financial condition of Parent and its direct Subsidiaries,
(B) the representations and indirect Subsidiaries, warranties of Parent and demonstrating Borrowers contained in this Agreement and the compliance by Parent other Loan Documents are true and correct in all material respects on a consolidated basis at and as of the end date of such quarter with all financial covenants required certificate, as though made on and as of such date (except to be tested hereunderthe extent that such representations and warranties relate solely to an earlier date), and
(2C) there does not exist any condition or event that constitutes a Default or Event of Default (or, to the extent of any non-compliance, describing such non-compliance as to which he or she may have knowledge and what action the applicable Obligated Party has Parent or Borrowers have taken, is are taking, or proposes propose to take with respect thereto),, and
(iii) for each month that is the date on which a financial covenant in Section 7.21 is to be tested, a Compliance Certificate demonstrating, in reasonable detail, compliance at the end of such period with the applicable financial covenants contained in Section 7.21, and
(b) as soon as available, but in any event by no later than the earlier of (y) five (5) within 105 days after the date on which Parent files its Form 10-K with the SEC and (z) ninety (90) days following the last day end of each of Parent’s 's fiscal years, consolidated ,
(i) financial statements of Parent and its direct and indirect Subsidiaries for each such fiscal year, audited by independent certified public accountants reasonably acceptable to Lender in Lender’s Permitted Discretion Agent and certified, without any qualifications (including any (A) “going concern” or like qualification or exception, or (B) qualification or exception as to the scope of such auditqualifications, by such accountants to have been prepared in accordance with GAAP) GAAP (it being agreed that the furnishing of Parent’s annual report on Form 10-K for each such fiscal year as filed with the SEC, will satisfy Parent’s and Borrower’s obligation under this Section 6.2(b) with respect to such fiscal year except with respect to the requirement that such audited financial statements be reported on without to include a “going concern” or like qualification or exceptionbalance sheet, or qualification arising out income statement, and statement of the scope of the auditcash flow and, if prepared, such accountants' letter to management), together with ,
(ii) a certificate of such accountants addressed to Lender Agent and the Lenders stating that such accountants do not have knowledge of the existence of any Default or Event of Default. Such annual financial statements shall be accompanied by a Compliance Certificate signed by the chief financial officer and/or chief accounting officer of Borrower certifying that:
(1) Parent is in compliance on a consolidated basis at the end of such fiscal year with all financial covenants required to be tested hereunder,
(2) the financial statements delivered hereunder have been prepared in accordance with GAAP and fairly present in all material respects the financial condition of Parent and its direct and indirect Subsidiaries, and
(3) there does not exist any condition or event that constitutes a Default or Event of Default (or, to the extent of any non-compliance, describing such non-compliance as to which he or she may have knowledge and what action the applicable Obligated Party has taken, is taking, or proposes to take with respect thereto)under Section 7.21,
(c) [Intentionally Deleted],
(d) as soon as available, but in any event by no later than within 30 days prior to the earlier of (y) five (5) days after the date on which Parent files its Form 10-K with the SEC and (z) ninety (90) days following the last day start of each of Parent’s 's fiscal years, ,
(i) copies of Projections for such fiscal year Parent's Projections, in form and substance (includingincluding as to scope and underlying assumptions) satisfactory to Agent, in its sole discretion, for the avoidance of doubtforthcoming fiscal year, the 2016 Projections to be delivered on or before March 30a yearly and month by month basis, 2016), all as certified by the chief financial officer of Parent as being such officer’s 's good faith best estimate of the financial performance of Parent and its direct and indirect Subsidiaries during the period covered thereby,
(d) if and when filed by Parent,
(i) Form 10-Q quarterly reports, Form 10-K annual reports, and Form 8-K current reports,
(ii) any other filings made by Parent with the SEC,
(iii) copies of Parent's federal income tax returns, and any amendments thereto, filed with the Internal Revenue Service, and
(iv) any other information that is provided by Parent to its shareholders generally,
(e) promptlyif and when filed by any Borrower and as requested by Agent, but satisfactory evidence of payment of applicable excise taxes in each jurisdictions in which (i) any event within five Borrower conducts business or is required to pay any such excise tax, (5ii) Business Days after where the failure to pay any such applicable excise tax would result in a Lien on the properties or assets of any Borrower, or (iii) where any Borrower's failure to pay any such applicable excise tax reasonably could be expected to result in a Material Adverse Change,
(f) as soon as either Parent or a Borrower has knowledge of any event or condition that constitutes a Default or an Event of Default, notice thereof and a statement of the curative action that the applicable Obligated Party proposes Parent or Borrowers propose to take with respect thereto,
(f) promptly after the commencement thereof, but in any event within five (5) Business Days after the service of process with respect thereto on any Obligated Party, notice of all actions, suits, or proceedings brought by or against such Obligated Party before any Governmental Authority which, if determined adversely to such Obligated Party, could reasonably be expected to result in a Material Adverse Change,
(g) promptly, but in any event within ten (10) Business Days after Borrower has knowledge thereof, notify Lender of any material negative changes to Borrower’s customer renewal rates, and
(hg) upon the request of LenderAgent, any other information report reasonably requested relating to the financial condition of Parent or Borrowers. In addition to the financial statements referred to above, Parent agrees to deliver financial statements prepared on both a consolidated and consolidating basis and agrees that no Subsidiary of Parent will have a fiscal year different from that of Parent. Parent and each Borrower agrees that their independent certified public accountants are authorized to communicate with Agent and to release to Agent whatever financial information concerning Parent or Borrowers Agent reasonably may request. Parent and each Borrower waives the right to assert a confidential relationship, if any, it may have with any Obligated Partyaccounting firm or service bureau in connection with any information requested by Agent pursuant to or in accordance with this Agreement, and agrees that Agent may contact directly any such accounting firm or service bureau in order to obtain such information.
Appears in 1 contract
Financial Statements, Reports, Certificates. Deliver to Agent, with copies to each Lender:
(a) as soon as available, but in any event by no later than within 30 days (45 days in the earlier case of (ya month that is the end of one of Parent’s fiscal quarters) five (5) days after the date on which Parent files its Form 10-Q with the SEC and (z) forty five (45) days following the last day end of each month during each of Parent’s first three (3) fiscal quarters of each fiscal yearyears,
(i) a consolidated balance sheet sheet, income statement, and income statement of cash flow covering the operations of Parent and its direct and indirect Subsidiaries during such period and the year-to-date period ending thereon, with comparisons against the balance sheet for the immediately preceding fiscal year and income statement for the corresponding period during the immediately preceding fiscal year, (it being agreed that the furnishing of Parent’s quarterly report on Form 10-Q for each such fiscal quarter, as filed with the SEC, will satisfy Parent’s and Borrower’s obligations under this Section 6.2(a)(i) with respect to its Subsidiaries’ operations during such fiscal quarter)period,
(ii) a Compliance Certificate signed by to the chief financial officer and/or chief accounting officer of Borrower certifying effect that:
(1) A. the financial statements delivered hereunder have been prepared in accordance with GAAP (except for the lack of footnotes and being subject to year-end audit adjustments) and fairly present in all material respects the consolidated financial condition of Parent and its direct Subsidiaries,
B. the representations and indirect Subsidiarieswarranties of Obligors contained in this Agreement and the other Loan Documents are true and correct in all material respects on and as of the date of such financial statements, as though made on and as of such date (except to the extent that such representations and warranties relate solely to an earlier date), (or, to the extent that such representations and warranties are not true and correct in all material respects on and as of such date, describing such inaccuracy as to which he or she may have knowledge and what action, if any, Obligors have taken, are taking, or propose to take with respect thereto), and demonstrating C. on and as of the compliance by Parent on a consolidated basis at the end date of such quarter with all financial covenants required to be tested hereunderstatements, and
(2) there does not exist any condition or event that constitutes a Default or Event of Default (or, to the extent of any non-compliance, describing such non-compliance as to which he or she may have knowledge and what action the applicable Obligated Party has action, if any, Obligors have taken, is are taking, or proposes propose to take with respect thereto), and
(iii) for each quarter that is the date on which the financial covenant in Section 7.17 is to be tested, a Compliance Certificate demonstrating, in reasonable detail, compliance at the end of the applicable fiscal quarter with such financial covenant,
(b) as soon as available, but in any event by no later than the earlier of (y) five (5) within 90 days after the date on which Parent files its Form 10-K with the SEC and (z) ninety (90) days following the last day end of each of Parent’s fiscal years, ,
(i) consolidated financial statements of Parent and its direct and indirect Subsidiaries for each such fiscal year, audited by independent certified public accountants reasonably acceptable to Lender in Lender’s Permitted Discretion Agent and certified, without any qualifications (including any (A) “going concern” or like qualification or exception, or (B) qualification or exception as to the scope of such auditqualifications, by such accountants to have been prepared in accordance with GAAP) GAAP (it being agreed that the furnishing of Parent’s annual report on Form 10-K for each such fiscal year as filed with the SEC, will satisfy Parent’s and Borrower’s obligation under this Section 6.2(b) with respect to such fiscal year except with respect to the requirement that such audited financial statements be reported on without to include a “going concern” or like qualification or exceptionbalance sheet, or qualification arising out income statement, and statement of the scope of the auditcash flow and, if prepared, such accountants’ letter to management), together with and
(ii) a certificate of such accountants addressed to Lender Agent and the Lenders stating that such accountants do not have knowledge of the existence of any Default or Event of Default. Such annual financial statements shall be accompanied by a Compliance Certificate signed by the chief financial officer and/or chief accounting officer Default under Section 7.17 as of Borrower certifying that:
(1) Parent is in compliance on a consolidated basis at the end of such fiscal year with all financial covenants required to be tested hereunder,
(2) the financial statements delivered hereunder have been prepared in accordance with GAAP and fairly present in all material respects the financial condition of Parent and its direct and indirect Subsidiaries, and
(3) there does not exist any condition or event that constitutes a Default or Event of Default (or, to the extent of any non-compliance, describing such non-compliance as to which he or she may have knowledge and what action the applicable Obligated Party has taken, is taking, or proposes to take with respect thereto)year,
(c) [Intentionally Deleted],
(d) as soon as available, but in any event by no later than the earlier of (y) five (5) 30 days after the date on which Parent files its Form 10-K with the SEC and (z) ninety (90) days following the last day start of each of Parent’s fiscal years, copies of the Projections for such fiscal year year, in form and substance (includingincluding as to scope and underlying assumptions) satisfactory to Agent, for the avoidance of doubtin its Permitted Discretion, the 2016 Projections to be delivered on or before March 30, 2016), all as certified by the chief financial officer of Parent as being such officer’s prepared in good faith best estimate based on assumptions believed to be reasonable at the time of preparation thereof,
(d) if and when filed by any Obligor,
(i) 10-Q quarterly reports, Form 10-K annual reports, and Form 8-K current reports, and any other filings made by any Obligor with the financial performance SEC, it being understood that, as to any such filings, Obligors may deliver the same by electronic mail (to such email address(es) as may be provided for such purpose from time to time by Agent), including any such electronic mail specifying the applicable filing,
(ii) copies of Obligors’ federal income tax returns, and any amendments thereto, filed with the Internal Revenue Service, and
(iii) any other information that is provided by Parent and to its direct and indirect Subsidiaries during the period covered therebyshareholders generally,
(e) promptlyas soon as available, but in any event within five 30 days after the end of each quarter during each of Parent’s fiscal years, satisfactory evidence of payment of applicable excise taxes in each jurisdiction in which (5i) Business Days after Borrower any Obligor conducts business or is required to pay any such excise tax, (ii) such Obligor’s failure to pay any such applicable excise tax would result in a Lien on the properties or assets of such Obligor and (iii) such Obligor’s failure to pay any such applicable excise tax reasonably could be expected to result in a Material Adverse Change,
(f) as soon as any Responsible Officer of any Obligor has knowledge of any event or condition that constitutes a Default or an Event of Default, notice thereof and a statement of the curative action that the applicable Obligated Party proposes Obligors propose to take with respect thereto,, and
(fg) promptly after the commencement thereof, but in any event within five (5) 3 Business Days after the service of process with respect thereto on any Obligated PartyObligor or any Subsidiary of any Obligor, notice of all actions, suits, or proceedings brought by or against such Obligated Party any Obligor or any Subsidiary of any Obligor before any Governmental Authority which, if determined adversely to such Obligated PartyObligor or such Subsidiary, reasonably could reasonably be expected to result in a Material Adverse Change,
(g) promptly, but in any event within ten (10) Business Days after Borrower has knowledge thereof, notify Lender of any material negative changes to Borrower’s customer renewal rates, and
(h) upon the request of Lender, any other information reasonably requested relating . In addition to the financial condition statements referred to above, Borrowers agree to deliver the financial statements described in Sections 6.3(a)(i) and 6.3(b)(i) prepared on both a consolidated and consolidating basis and agree that no Subsidiary of any Obligated PartyParent will have a fiscal year different from that of Parent. Obligors agree to cooperate with Agent to allow Agent to consult with their independent certified public accountants if Agent reasonably requests the right to do so (and Agent shall notify Obligors as to the timing of such consultations and permit Obligors an opportunity to be present thereat or to otherwise participate therein) and that, in such connection, their independent certified public accountants are authorized to communicate with Agent and to release to Agent whatever financial information concerning Obligors or their Subsidiaries that Agent reasonably may request.
Appears in 1 contract
Samples: Loan and Security Agreement (SMART Modular Technologies (DE), Inc.)
