Appears in 12 contracts

Samples: Incremental Assumption and Amendment Agreement (ADT Inc.), Incremental Assumption and Amendment Agreement (ADT Inc.), Incremental Assumption and Amendment Agreement (ADT Inc.)

Appears in 7 contracts

Samples: Incremental Assumption and Amendment Agreement (PlayAGS, Inc.), Incremental Assumption and Amendment Agreement (PlayAGS, Inc.), Incremental Assumption and Amendment Agreement (PlayAGS, Inc.)

Appears in 5 contracts

Samples: First Lien Credit Agreement (Hostess Brands, Inc.), First Lien Credit Agreement (Hostess Brands, Inc.), First Lien Credit Agreement (Hostess Brands, Inc.)

Appears in 4 contracts

Samples: Credit Agreement (Mallinckrodt PLC), Credit Agreement (Mallinckrodt PLC), Credit Agreement (Mallinckrodt PLC)

Financial Statements, Reports, etc. Furnish to the Administrative Agent (which will promptly furnish such information to the Lenders): (a) ~~within~~ As soon as available, and in any event not later than five Business Days after the date by which Holdings is required to file its annual report on Form 10-K with the SEC (after giving effect to any permitted extensions or, if such financial statements are not required to be filed with the SEC, not later than 90 days after the end of ~~each~~ such fiscal ~~year (commencing with the fiscal year ending December 31, 2016~~year), (i) a consolidated balance sheet and related statements of operations, cash flows and owners’ equity showing the financial position of ~~the Borrower~~ Holdings and its Subsidiaries as of the close of such fiscal year and the consolidated results of ~~their~~ its operations during such year (the “Annual Financial Statements”); provided that if Holdings includes the financial results of any person that is not a Restricted Subsidiary in such Annual Financial Statements, Holdings shall also provide a supplement showing consolidating information for Holdings and the Restricted Subsidiaries; (ii) a narrative discussion of management’s discussion and analysis of results; and (iii) setting forth in comparative form the corresponding figures for the prior fiscal year, which consolidated balance sheet and related statements of operations, cash flows and owners’ equity shall be ~~accompanied by customary management’s discussion and analysis and~~ audited by Holdings’ independent public accountants of recognized national standing and accompanied by an opinion of such accountants (which ~~opinion~~ shall not be qualified as to scope of audit or as to the status of ~~the Borrower~~ Holdings or ~~any Material Subsidiary~~ its Subsidiaries as a going ~~concern,~~ concern other than any such qualification or exception that is solely with respect to, or resulting solely from, an upcoming maturity date under the Credit Facilities or any ~~series of~~ other Material Indebtedness occurring within one year from the time such ~~opinion~~ report is delivered or any ~~potential inability to satisfy a~~ prospective default of any financial ~~maintenance covenant on a future date or in a future period~~covenant) to the effect that such consolidated financial statements fairly present, in all material respects, the financial position and results of operations of ~~the Borrower~~ Holdings and its Subsidiaries on a consolidated basis in accordance with GAAP (it being understood that the delivery by the Borrower of annual reports on Form 10-K of the Borrower and its consolidated Subsidiaries shall satisfy the requirements of this Section 5.04(a) to the extent such annual reports include the information specified herein)GAAP; (b) ~~within~~ As soon as available, and in any event not later than five Business Days after the date by which Holdings is required to file its quarterly report on Form 10-Q with the SEC (after giving effect to any permitted extensions or, if such financial statements are not required to be filed with the SEC, not later than 45 days after the end of ~~each of the first three~~ such fiscal ~~quarters of each fiscal year (commencing with the fiscal quarter ending June 30, 2016~~quarter), (i) a consolidated balance sheet and related statements of operations and cash flows showing (x) the financial position of ~~the Borrower~~ Holdings and its Subsidiaries as of the close of such fiscal quarter and the consolidated and consolidating results of ~~their~~ its operations during such fiscal quarter and (y) the then-elapsed portion of the fiscal year ~~and, starting with the fiscal quarter ending September 30, 2016,~~ and setting forth in comparative form the corresponding figures for the corresponding periods of the prior fiscal ~~year~~year (the “Quarterly Financial Statements” and, ~~all~~ together with the Annual Financial Statements, the “Required Financial Statements”); provided that if Holdings includes the financial results of ~~which~~ any person that is not a Restricted Subsidiary in such Quarterly Financial Statements, Holdings shall ~~be in reasonable detail, which consolidated balance sheet~~ also provide a supplement showing consolidating information for Holdings and ~~related statements~~ the Restricted Subsidiaries; and (ii) a narrative discussion of ~~operations and cash flows shall be accompanied by customary~~ management’s discussion and analysis ~~and which consolidated balance sheet and related statements~~ of ~~operations and cash flows shall be~~ results, certified by a ~~Financial~~ Responsible Officer of ~~the Borrower~~ Holdings on behalf of ~~the Borrower~~ Holdings as fairly presenting, in all material respects, the financial position and results of operations of ~~the Borrower~~ Holdings and its Subsidiaries on a consolidated basis in accordance with GAAP (subject to normal year-end audit adjustments and the absence of footnotes); (c) concurrently with any delivery of Required Financial Statements under paragraphs (~~it being understood~~ a) and (b) of this Section 5.04, a certificate of a Financial Officer of the Borrower (i) certifying that no Default or Event of Default has occurred and is continuing or, if a Default or Event of Default has occurred and is continuing, specifying the nature and extent thereof and any corrective action taken or proposed to be taken with respect thereto, (ii) certifying a list of all Immaterial Subsidiaries, that each Subsidiary set forth on such list individually qualifies as an Immaterial Subsidiary and that all such Subsidiaries in the aggregate do not exceed the limitation set forth in clause (b) of the definition of the term “Immaterial Subsidiary”, (iii) certifying a list of all Unrestricted Subsidiaries at such time and that each Subsidiary set forth on such list qualifies as an Unrestricted Subsidiary and (iv) setting forth computations in reasonable detail calculating the Fixed Charge Coverage Ratio for the fiscal quarter then ended (irrespective of whether a Covenant Trigger Event is then in effect); (d) promptly after the same become publicly available, copies of all periodic and other publicly available reports, proxy statements and, to the extent requested by the Administrative Agent, other materials filed by Holdings or its Subsidiaries with the SEC or, after an initial public offering, distributed to its stockholders generally, as applicable; (e) upon the reasonable request of the Administrative Agent, concurrently with the delivery of the Annual Financial Statements, provide an update to the information set forth on the schedules to the Collateral Agreement, together with (i) information about deposit accounts, securities accounts and commodities accounts entered into by the Borrower or any of ~~quarterly reports~~ the Loan Parties and (ii) information regarding Material Real Property acquired by the Borrower or any of the Loan Parties, in the case of each of (i) and (ii), since the First Restatement Effective Date or the delivery of the previous year’s Annual Financial Statements, as applicable, to the extent not previously notified to the Administrative Agent; (f) within 90 days following the end of each fiscal year, a reasonably detailed consolidated annual budget for the succeeding fiscal year (including a projected consolidated balance sheet of Holdings and its Subsidiaries as of the end of each fiscal quarter for such fiscal year and annual consolidated statements of projected cash flow and projected income), including a description of underlying assumptions with respect thereto (collectively, the “Budget”), which Budget shall in each case be accompanied by the statement of a Financial Officer of Holdings to the effect that the Budget is based on ~~Form 10~~assumptions believed by such Financial Officer to be reasonable as of the date of delivery thereof; (g) promptly, from time to time, such other information regarding the operations, business affairs (including self-Q insurance) and financial condition of the Borrower and its ~~consolidated Subsidiaries shall satisfy~~ Subsidiaries, or compliance with the ~~requirements~~ terms of any Loan Document, in each case, as the Administrative Agent may reasonably request (for itself or on behalf of any Lender); (h) In connection with the covenants set forth in this Section ~~5.04(b~~5.04(h), it is understood and agreed that: (i) Subject to Section 5.04(h)(ii), on or before the 15th Business Day after the end of each fiscal quarter, a Borrowing Base Certificate as of the last day of such fiscal quarter, with such supporting materials as the Administrative Agent shall reasonably request. Notwithstanding the foregoing, (x) upon the making of any Loans or the issuance of any Letters of Credit that would cause the Revolving L/C Exposure to exceed $5,000,000 (a “Funding Date”) at any time where immediately prior to the making of such Loans or issuance of any Letters of Credit, the Aggregate Credit Exposure solely in respect of Revolving Loans was $0 and the Revolving L/C Exposure was $5,000,000 or less, the Borrower shall furnish a Borrowing Base Certificate as of the last day of the immediately preceding month ended at least 15 Business Days prior to such Funding Date, with supporting materials as the Administrative Agent shall reasonably request, (y) at any time that any Loans or Letters of Credit are outstanding, the Borrower shall furnish a Borrowing Base Certificate on or before the 15th Business Day of each month calculated as of the last day of the immediately preceding month, with supporting materials as the Administrative Agent shall reasonably request and (z) after the occurrence and during the continuance of a Cash Dominion Event, on Wednesday of each week (or, if Wednesday is not a Business Day, on the next succeeding Business Day), the Borrower shall furnish a Borrowing Base Certificate calculated as of the close of business on Saturday of the immediately preceding calendar week. (ii) At any time and from time to time the Borrower is entitled to calculate the Borrowing Base on a Pro Forma Basis to give effect to a Permitted Business Acquisition (including an acquisition of inventory or accounts receivable), and to adjust the Borrowing Base accordingly, prior to completion of the applicable field examination or appraisal; provided that, if, on or prior to the date that is 90 days following the consummation of such Permitted Business Acquisition, the Borrower shall not have delivered the appropriate field examination or appraisal with respect to any asset included in the Borrowing Base pursuant to this Section 5.04(h)(ii), then on the date that is 90 days following the consummation of such Permitted Business Acquisition such asset shall be removed from the Borrowing Base until the completion of the applicable field examination or appraisal with respect to such asset. (i) promptly upon request by the Administrative Agent (so long as the following are obtainable using commercially reasonable measures), copies of (i) each Schedule SB (Single-Employer Defined Benefit Plan Actuarial Information) to the ~~extent~~ most recent annual report (Form 5500 Series) filed with the IRS with respect to a Plan, (ii) the most recent actuarial valuation report for any Plan, (iii) all notices received from a Multiemployer Plan sponsor, a plan administrator or any governmental agency, or provided to any Multiemployer Plan by the Borrower, its Subsidiaries or any ERISA Affiliate, concerning an ERISA Event and (iv) with respect to each Foreign Benefit Plan, any available annual reports, actuarial valuation reports or notices from plan sponsors, plan administrators or any Governmental Authority with respect to such ~~quarterly reports include~~ plan; and (j) promptly following any request therefor by the ~~information specified herein~~Administrative Agent (so long as the following are obtainable using commercially reasonable measures);, copies of (i) any documents described in Section 101(k)(1) of ERISA that the Borrower, its Subsidiaries or any ERISA Affiliate may request with respect to any Multiemployer Plan and (ii) any notices described in Section 101(l)(1) of ERISA that the Borrower, its Subsidiaries or any ERISA Affiliate may request with respect to any Multiemployer Plan; provided that if the Borrower, its Subsidiaries or any ERISA Affiliate has not requested such documents or notices from the administrator or sponsor of the applicable Multiemployer Plan, the Borrower, its Subsidiaries or such ERISA Affiliate shall promptly make a request for such documents or notices from the such administrator or sponsor and shall provide copies of such documents and notices promptly after receipt thereof; provided that documents required to be delivered pursuant to paragraphs (a), (b) and (d) shall be deemed to have been delivered on the earlier of the date on which (A) Holdings posts such documents or provides a link thereto on Holdings’ website, with notification to the Administrative Agent of the posting of such documents and (B) such documents are filed with the SEC; provided, further, if requested by the Administrative Agent in writing, Holdings shall also provide such documents by electronic mail to the Administrative Agent.

Appears in 4 contracts

Samples: Revolving Credit Agreement (AZEK Co Inc.), Revolving Credit Agreement (AZEK Co Inc.), Revolving Credit Agreement (AZEK Co Inc.)

Financial Statements, Reports, etc. ~~Furnish~~ So long as the Minimum Hold Condition is satisfied, furnish to the ~~Administrative Agent~~ Holders (~~which will promptly~~ or, with respect to Section 1.2(b)(iii), use its reasonable best efforts to furnish ~~such information~~ to the ~~Lenders~~Preferred Majority Holder): (ai) within 90 days after the end of each fiscal year (commencing with the fiscal year ending December 31, ~~2016~~2017), a consolidated balance sheet and related statements of operations, cash flows and owners’ equity showing the financial position of the Borrower and its Subsidiaries as of the close of such fiscal year and the consolidated results of their operations during such year and setting forth in comparative form the corresponding figures for the prior fiscal year, which consolidated balance sheet and related statements of operations, cash flows and owners’ equity shall be accompanied by customary management’s discussion and analysis and audited by independent public accountants of recognized national standing and accompanied by an opinion of such accountants (which opinion shall not be qualified as to scope of audit or as to the status of the Borrower or any of its Material ~~Subsidiary~~ Subsidiaries as a going concern, other than solely with respect to, or resulting solely from, an upcoming maturity date under any series of Indebtedness occurring within one year from the time such opinion is delivered or any potential inability to satisfy a financial maintenance covenant on a future date or in a future period) to the effect that such consolidated financial statements fairly present, in all material respects, the financial position and results of operations of the Borrower and its Subsidiaries on a consolidated basis in accordance with GAAP (it being understood that the delivery by the ~~Borrower~~ Company of annual reports on Form 10-K of the Borrower and its consolidated Subsidiaries shall satisfy the requirements of this Section ~~5.04(a~~1.2(b)(i) to the extent such annual reports include the information specified herein), and unaudited consolidating information that explains in reasonable detail the material differences, if any, between the information relating to the Borrower and its Subsidiaries, on the one hand, and the information relating to the Company and its Subsidiaries on a standalone basis, on the other hand; (bii) within 45 days after the end of each of the first three fiscal quarters of each fiscal year (commencing with the fiscal quarter ending ~~June 30~~March 31, ~~2016~~2017), a consolidated balance sheet and related statements of operations and cash flows showing the financial position of the Borrower and its Subsidiaries as of the close of such fiscal quarter and the consolidated results of their operations during such fiscal quarter and the then-elapsed portion of the fiscal year and, starting with the fiscal quarter ending ~~September 30~~March 31, ~~2016~~2017, setting forth in comparative form the corresponding figures for the corresponding periods of the prior fiscal year, all of which shall be in reasonable detail, which consolidated balance sheet and related statements of operations and cash flows shall be accompanied by customary management’s discussion and analysis and which consolidated balance sheet and related statements of operations and cash flows shall be certified by a Financial Officer of the ~~Borrower~~ Company on behalf of the ~~Borrower~~ Company as fairly presenting, in all material respects, the financial position and results of operations of the Borrower and its Subsidiaries on a consolidated basis in accordance with GAAP (subject to normal year-end audit adjustments and the absence of footnotes) (it being understood that the delivery by the ~~Borrower~~ Company of quarterly reports on Form 10-Q of the Borrower and its consolidated Subsidiaries shall satisfy the requirements of this Section ~~5.04(b~~1.2(b)(ii) to the extent such quarterly reports include the information specified herein), and unaudited consolidating information that explains in reasonable detail the material differences, if any, between the information relating to the Borrower and its Subsidiaries, on the one hand, and the information relating to the Company and its Subsidiaries on a standalone basis, on the other hand; (iii) commencing on the date that is one month following the Agreement Date, the standard monthly reporting package showing the financial position of the Borrower and its Subsidiaries, solely to the extent prepared internally by management; (iv) (x) concurrently with any delivery of financial statements under Section 1.2(b)(i) or Section 1.2(b)(ii) above, a certificate of a Financial Officer of the Company (A) certifying that no Event of Default has occurred since the date of the last certificate delivered pursuant to this Section 1.2(b)(iv) or, if such an Event of Default has occurred, specifying the nature and extent thereof and any corrective action taken or proposed to be taken with respect thereto and (B) setting forth computations in reasonable detail satisfactory to the Holders demonstrating compliance with the Financial Covenant and (y) concurrently with any delivery of financial statements under Section 1.2(b)(i) above, if the accounting firm is not restricted from providing such a certificate by its policies office, a certificate of the accounting firm opining on or certifying such statements stating whether they obtained knowledge during the course of their examination of such statements of any Event of Default (which certificate may be limited to accounting matters and disclaim responsibility for legal interpretations); (v) promptly after the same become publicly available, copies of all periodic and other publicly available reports, proxy statements and, to the extent requested by any Holder, other materials filed by the Member, the General Partner, Parent, the Company or any of its Subsidiaries with the Securities and Exchange Commission or, after an Initial Public Offering, distributed to its equity holders generally, as applicable; provided that such reports, proxy statements, filings and other materials required to be delivered pursuant to this Section 1.2(b)(v) shall be deemed delivered for purposes of this Agreement when posted to the website of the Member, the General Partner, Parent, the Company or any of its Subsidiaries or the website of the Securities and Exchange Commission and written notice of such posting has been delivered to the Holders; (vi) within 90 days (or such later date as the Preferred Majority Holder may agree in its reasonable discretion) after the beginning of each fiscal year (commencing with the fiscal year ending December 31, 2017), a consolidated annual budget for such fiscal year consisting of a projected consolidated balance sheet of the Borrower and its Subsidiaries as of the end of the following fiscal year and the related consolidated statements of projected cash flow and projected income (collectively, the “Budget”), which Budget shall in each case be accompanied by the statement of a Financial Officer of the Company to the effect that the Budget is based on assumptions believed by the Company to be reasonable as of the date of delivery thereof, and information that explains in reasonable detail the material differences, if any, between the information relating to the Borrower and its Subsidiaries, on the one hand, and the information relating to the Company and its Subsidiaries on a standalone basis, on the other hand; (vii) promptly, from time to time, such other information regarding the operations, business affairs and financial condition of the Member, the General Partner, Parent, the Company or any of its Subsidiaries, or compliance with the terms of this Agreement, any other Related Agreement or any Loan Document as in each case any Holder may reasonably request (for itself or on behalf of any other such Holder); (viii) in the event that the Member, the General Partner, Parent, the Company or Holdings reports on a consolidated basis, such consolidated reporting at the Member’s, the General Partner’s, Parent’s, the Company’s or Holdings’ level in a manner consistent with that described in Section 1.2(b)(i) and Section 1.2(b)(ii) for the Borrower (together with a reconciliation showing the adjustments necessary to determine compliance by the Company and its Subsidiaries with the Financial Covenant) shall satisfy the requirements of such paragraphs; and (ix) at a time mutually agreed with the Preferred Majority Holder after the delivery of the financial statements required pursuant to Section 1.2(b)(i) and Section 1.2(b)(ii) (but not later than 10 Business Days after such delivery), upon request of the Preferred Majority Holder, the Company shall cause appropriate Financial Officers or other officers with reasonably equivalent duties of the Company to participate in one conference call for the Holders to discuss the financial condition and results of operations of the Company and its Subsidiaries for the most recently ended fiscal period. The Company hereby acknowledges and agrees that all financial statements furnished pursuant to Sections 1.2(b)(i), 1.2(b)(ii) and 1.2(b)(iv) are hereby deemed to be information suitable for distribution, and to be made available, to Public Side Holders as contemplated in the immediately succeeding paragraph and may be treated by the Holders as if the same had been marked “PUBLIC” in accordance with such paragraph. The Company hereby acknowledges that certain of the Holders may be Public Side Holders (i.e., Holders that do not wish to receive Private Holder Information). The Company hereby agrees that it will use commercially reasonable efforts to identify that portion of the materials and/or information provided by or on behalf of the Company hereunder (collectively, “Company Materials”) that may be distributed to Public Side Holders and that (i) all such Company Materials shall be clearly and conspicuously marked “PUBLIC” which, at a minimum, shall mean that the word “PUBLIC” shall appear prominently on the first page thereof and (ii) by marking Company Materials “PUBLIC”, the Company shall be deemed to have authorized the Holders to treat such Company Materials as solely containing information that is Public Holder Information.

Appears in 4 contracts

Samples: Series a Investors Rights Agreement, Series a Investors Rights Agreement (ADT Inc.), Series a Investors Rights Agreement (ADT, Inc.)

Appears in 4 contracts

Samples: Second Lien Bridge Credit Agreement (Berry Global Group Inc), Second Lien Bridge Credit Agreement, Second Lien Bridge Credit Agreement (Berry Global Group Inc)

Financial Statements, Reports, etc. Furnish to the Administrative Agent (which will promptly furnish such information to the Lenders): (a) within 90 120 days after the end of each fiscal ~~year (commencing with the fiscal year ending December 31, 2016)~~year, a consolidated balance sheet and related statements of operations, cash flows and owners’ equity showing the financial position of the Borrower and its Subsidiaries and, if different, the Borrower and the Restricted Subsidiaries, in each case as of the close of such fiscal year and the consolidated results of their operations during such year and setting forth in comparative form the corresponding figures for the prior fiscal ~~year, which consolidated balance sheet and related~~ year (or in lieu of such audited financial statements of ~~operations~~the Borrower and the Restricted Subsidiaries, ~~cash flows~~ a detailed reconciliation, reflecting such financial information for the Borrower and ~~owners’ equity shall be accompanied by customary management’s discussion~~ the Restricted Subsidiaries, on the one hand, and ~~analysis~~ the Borrower and the Subsidiaries, on the other hand, reflecting adjustments necessary to eliminate the accounts of Unrestricted Subsidiaries (if any) from such consolidated financial statements), all (except with respect to such reconciliation) audited by independent ~~public~~ accountants of recognized national standing reasonably acceptable to the Administrative Agent and accompanied by an opinion of such accountants (which opinion shall ~~not~~ be ~~qualified as~~ without a “going concern” or like qualification (other than an exception or explanatory paragraph with respect to ~~scope~~ the maturity of ~~audit~~ the Facilities for an opinion delivered in the fiscal year in which such Indebtedness matures) and without any qualification or exception as to the ~~status~~ scope of the Borrower or any Material Subsidiary as a going concern, other than solely with respect to, or resulting solely from, an upcoming maturity date under any series of Indebtedness occurring within one year from the time such ~~opinion is delivered or any potential inability to satisfy a financial maintenance covenant on a future date or in a future period~~audit) to the effect that such consolidated financial statements fairly present, in all material respects, the financial position and results of operations of the Borrower and its Subsidiaries on a consolidated basis in accordance with GAAP (it being understood that the delivery by the Borrower of annual reports on Form 10-K of the Borrower and its consolidated Subsidiaries shall satisfy the requirements of this Section 5.04(a) to the extent such annual reports include the information specified herein)GAAP; (b) within 45 60 days after the end of each of the first three fiscal quarters of each fiscal ~~year (commencing with the fiscal quarter ending June 30, 2016)~~year, a consolidated balance sheet and related statements of operations and cash flows showing the financial position of the Borrower and its Subsidiaries and, if different, the Borrower and the Restricted Subsidiaries, in each case as of the close of such fiscal quarter and the consolidated results of their operations during such fiscal quarter and the then-elapsed portion of the fiscal year ~~and, starting with the fiscal quarter ending September 30, 2016,~~ and setting forth in comparative form the corresponding figures for the corresponding periods of the prior fiscal ~~year~~year (or in lieu of such unaudited financial statements of the Borrower and the Restricted Subsidiaries, a detailed reconciliation, reflecting such financial information for the Borrower and the Restricted Subsidiaries, on the one hand, and the Borrower and the Subsidiaries, on the other hand, reflecting adjustments necessary to eliminate the accounts of Unrestricted Subsidiaries (if any) from such consolidated financial statements), all of which shall be in reasonable detail, which consolidated balance sheet and related statements of operations and cash flows shall be accompanied by customary management’s discussion and analysis and which consolidated balance sheet and related statements of operations and cash flows shall be certified by Crestwood GP or a Financial Officer of the ~~Borrower~~ Borrower, on behalf of the ~~Borrower~~ Borrower, as fairly presenting, in all material respects, the financial position and results of operations of the Borrower and its Subsidiaries on a consolidated basis in accordance with GAAP (subject to normal year-end audit adjustments and the absence of footnotes); (c) concurrently with any delivery of financial statements under (~~it being understood~~ a) or (b) above, a certificate of Crestwood GP or a Financial Officer of the Borrower (i) certifying that no Event of Default or Default has occurred or, if such an Event of Default or Default has occurred, specifying the nature and extent thereof and any corrective action taken or proposed to be taken with respect thereto, (ii) setting forth a computation of the Financial Performance Covenants in detail reasonably satisfactory to the Administrative Agent and (iii) certifying that the ~~delivery by~~ Mortgage Requirement is satisfied at the end of the applicable fiscal period; (i) upon the consummation of (A) any Permitted Business Acquisition, (B) the acquisition of any Relevant Subsidiary, (C) any Person becoming a Relevant Subsidiary or (D) the contribution to the Borrower of ~~quarterly reports~~ Equity Interests in any Person acquired pursuant to a Group Acquisition, in each case if the aggregate consideration for such transaction (or, in the case of clause (D), such Group Acquisition) exceeds $25.0 million, or upon the reasonable request of the Administrative Agent (but not, in the case of such request, more often than annually), an updated Perfection Certificate (or, to the extent such request relates to specified information contained in the Perfection Certificate, such information) reflecting all changes since the date of the information most recently received pursuant to Section 4.02(e), this Section 5.04(d) or Section 5.10(e) and (ii) concurrently with the delivery of financial statements under Section 5.04(a), a certificate executed by a Responsible Officer of the Borrower certifying compliance with Section 5.02(c) and providing evidence of such compliance, including without limitation copies of any flood hazard determination forms required to be delivered pursuant to Section 5.02(c); (e) promptly, from time to time, such other information regarding the operations, business affairs and financial condition of the Borrower or any of its Relevant Subsidiaries, or compliance with the terms of any Loan Document, or such consolidating financial statements, as in each case the Administrative Agent may reasonably request (for itself or on ~~Form 10-Q~~ behalf of any Lender); and (f) no later than one hundred and twenty (120) days following the first day of each fiscal year of the Borrower, a budget for such fiscal year in form customarily prepared by the Borrower; provided that, if the Holding Company Condition is satisfied as of the date of the relevant financial statements (or in the case of a budget on the first day of the applicable fiscal year), the obligations in clauses (a), (b) and (f) of this Section 5.04 may be satisfied with respect to financial information of the Borrower and ~~its consolidated~~ the Restricted Subsidiaries ~~shall satisfy~~ by furnishing the ~~requirements~~ applicable financial statements of ~~this Section 5.04(b)~~ Crestwood Equity Partners; provided that to the extent such ~~quarterly reports include~~ information relates to Crestwood Equity Partners, the Borrower shall promptly provide to the Administrative Agent, upon request from the Administrative Agent, consolidating or other information that explains in reasonable detail the differences between the information ~~specified herein);~~relating to Crestwood Equity Partners, on the one hand, and the information relating to the Borrower and the Restricted Subsidiaries on a standalone basis, on the other hand; provided further that to the extent any such documents required to be delivered pursuant to Section 5.04 are included in materials filed with the SEC, such documents shall be deemed to have been delivered to the Administrative Agent under this Agreement on the date such documents are made publicly available by the SEC.

Appears in 3 contracts

Samples: Amendment (Crestwood Equity Partners LP), Credit Agreement (Crestwood Midstream Partners LP), Credit Agreement (Crestwood Equity Partners LP)

Financial Statements, Reports, etc. (a) Furnish to the Administrative ~~Agent (~~Agent, which ~~will promptly~~ shall furnish ~~such information~~ to ~~the Lenders):~~each Issuing Bank and each Lender: (ai) within 90 days after the end of each fiscal year (commencing with the fiscal year ~~ending~~ ended December 31, ~~2016~~2018), a the Administrative Borrower’s consolidated balance sheet and related statements of ~~operations~~income, partners’ equity and cash flows ~~and owners’ equity~~ showing the financial ~~position~~ condition of the Administrative Borrower and its consolidated Subsidiaries as of the close of such fiscal year and the ~~consolidated~~ results of ~~their~~ its operations and the operations of such Subsidiaries during such ~~year and setting forth in~~ year, together with comparative ~~form the corresponding~~ figures for the ~~prior~~ immediately preceding fiscal year, ~~which consolidated balance sheet and related statements of operations, cash flows and owners’ equity shall be accompanied by customary management’s discussion and analysis and~~ all audited by KPMG LLP or other independent public accountants of recognized national standing and accompanied by an opinion of such accountants (which opinion shall ~~not~~ be ~~qualified as~~ without a “going concern” or like qualification or exception (except for any such qualification or exception pertaining to ~~scope~~ (x) one or more debt maturities occurring within 12 months of the relevant audit or (y) a breach or anticipated breach of financial covenants) and without any qualification or exception as to the ~~status~~ scope of the Borrower or any Material Subsidiary as a going concern, other than solely with respect to, or resulting solely from, an upcoming maturity date under any series of Indebtedness occurring within one year from the time such ~~opinion is delivered or any potential inability to satisfy a financial maintenance covenant on a future date or in a future period~~audit) to the effect that such consolidated financial statements fairly ~~present, in all material respects,~~ present the financial ~~position~~ condition and results of operations of the Administrative Borrower and its consolidated Subsidiaries on a consolidated basis in all material respects in accordance with GAAP ~~(it being understood that the delivery by the Borrower of annual reports on Form 10-K of the Borrower~~ consistently applied, together with a customary “management discussion and ~~its consolidated Subsidiaries shall satisfy the requirements of this Section 5.04(a) to the extent such annual reports include the information specified herein)~~analysis” provision; (bii) within 45 days after the end of each fiscal quarter (other than the final fiscal quarter of ~~the first three~~ any fiscal ~~quarters of each fiscal year~~ year) (commencing with the fiscal quarter ~~ending June~~ ended September 30, ~~2016~~2018), a the Administrative Borrower’s consolidated balance sheet and related statements of ~~operations~~ income, partners’ equity and cash flows showing the financial ~~position~~ condition of the Administrative Borrower and its consolidated Subsidiaries as of the close of such fiscal quarter and the ~~consolidated~~ results of ~~their~~ its operations and the operations of such Subsidiaries during such fiscal quarter and the ~~then-~~then elapsed portion of the fiscal ~~year and~~year, ~~starting with the fiscal quarter ending September 30, 2016, setting forth in~~ and comparative ~~form the corresponding~~ figures for the ~~corresponding~~ same periods of in the ~~prior~~ immediately preceding fiscal year, all of which shall be in reasonable detail, which consolidated balance sheet and related statements of operations and cash flows shall be accompanied by customary management’s discussion and analysis and which consolidated balance sheet and related statements of operations and cash flows shall be certified by a one of its Financial ~~Officer of the Borrower on behalf of the Borrower~~ Officers as fairly ~~presenting, in all material respects,~~ presenting the financial ~~position~~ condition and results of operations of the Administrative Borrower and its consolidated Subsidiaries on a consolidated basis in all material respects in accordance with GAAP (consistently applied, subject to normal year-end audit ~~adjustments~~ adjustments, together with a customary “management discussion and analysis” provision; (iii) concurrently with any delivery of financial statements under paragraph (i) or (ii) above, a certificate of a Financial Officer (the ~~absence~~ “Compliance Certificate”) in the form of ~~footnotes~~Exhibit J (x) certifying that no Event of Default or Default has occurred and is continuing or, if such an Event of Default or Default has occurred and is continuing, specifying the nature and extent thereof and any corrective action taken or proposed to be taken with respect thereto and (~~it being understood that~~ y) setting forth computations in reasonable detail reasonably satisfactory to the Administrative Agent demonstrating compliance with the Financial Covenants; (iv) concurrently with any delivery ~~by the Borrower~~ of ~~quarterly reports on Form 10-Q~~ financial statements under paragraph (i) above, an annual business plan and budget of the Administrative Borrower and its Restricted Subsidiaries on a consolidated ~~Subsidiaries shall satisfy~~ basis; (v) promptly after the ~~requirements~~ request by any Lender, all documentation and other information that such Lender reasonably requests in order to comply with its ongoing obligations under applicable “know your customer” and anti-money laundering rules and regulations, including the USA PATRIOT Act and the Beneficial Ownership Regulation; (vi) promptly after the occurrence thereof, notice of ~~this Section 5.04(b~~any change in the information provided in the mostly recently delivered Beneficial Ownership Certification (if any) that would result in a change to the ~~extent~~ list of beneficial owners identified in parts (c) or (d) of such Certification; (vii) (x) concurrently with any delivery of financial statements under paragraph (i) or (ii) above, a list of all Secured Hedging Agreements entered into in the relevant fiscal quarter and the relevant Qualified Counterparties party thereto and (y) if reasonably requested by the Administrative Agent, any documentation reasonably necessary to preserve and protect the priority of the Lien of the Collateral Agent for the benefit of the Secured Parties securing the Obligations under the Security Documents as may be contemplated by Section 5.13; and (viii) promptly, from time to time, such other information regarding the operations, business affairs and financial condition of any Borrower or any Restricted Subsidiary, or compliance with the terms of any Loan Document, as the Administrative Agent or any Lender may reasonably request. Information required to be delivered pursuant to Section 5.04(a)(i) and Section 5.04(a)(ii) above shall be deemed to have been delivered if such information, or one or more annual or quarterly reports ~~include~~ containing such information, shall be available on the website of the Securities Exchange Commission at xxxx://xxx.xxx.xxx and the Compliance Certificate delivered pursuant to Section 5.04(a)(iii) provides a statement regarding the availability of such information ~~specified herein);~~on such website.

Appears in 3 contracts

Samples: Credit Agreement (Enviva Inc.), Credit Agreement (Enviva Inc.), Credit Agreement (Enviva Inc.)

Financial Statements, Reports, etc. Furnish to the Administrative Agent (which will promptly furnish such information to the Lenders): (a1) within 90 days ~~after~~ following the end of each fiscal year ended after the Closing Date (~~commencing with the fiscal year ending December 31, 2016~~i), a consolidated balance sheet and related statements of operations, cash flows and owners’ equity showing the financial position of the Borrower and ~~its~~ the Restricted Subsidiaries as of the close of such fiscal year and the consolidated results of ~~their~~ its operations during such fiscal year ~~and~~ and, in each case, starting with the following fiscal year, setting forth in comparative form the corresponding figures for the prior fiscal year, which consolidated balance sheet and related statements of operations, cash flows and owners’ equity ~~shall~~ will be ~~accompanied by customary management’s discussion and analysis and~~ audited by independent public accountants of recognized national ~~standing~~ standing, or such other accountants as are reasonably acceptable to the Administrative Agent, and accompanied by an opinion of such accountants (which opinion shall not be ~~qualified as~~ subject to ~~scope of audit or as to the status of the Borrower or~~ any ~~Material Subsidiary as a~~ “going concern” statement, explanatory note or like qualification or exception (other than ~~solely with respect to~~a “going concern” statement, explanatory note or like qualification or exception resulting ~~solely from,~~ from an upcoming maturity date ~~under any series of Indebtedness~~ occurring within one year from the time such opinion is delivered or ~~any potential inability to satisfy a financial maintenance~~ anticipated (but not actual) covenant ~~on a future date or in a future period~~non-compliance)) to the effect that such consolidated financial statements fairly present, in all material respects, the financial position and results of operations of the Borrower and ~~its~~ the Restricted Subsidiaries on a consolidated basis in accordance with GAAP (it the applicable financial statements delivered pursuant to this clause (1) being ~~understood that~~ the ~~delivery by~~ “Annual Financial Statements”) and (ii) a management’s discussion and analysis of financial conditions and results of operations, discussing and analyzing the ~~Borrower~~ results of ~~annual reports on Form 10-K~~ operations of the Borrower ~~and its consolidated Subsidiaries shall satisfy~~ for the ~~requirements of this Section 5.04(a) to the extent~~ period covered by such ~~annual reports include the information specified herein)~~Annual Financial Statements; (b2) within 45 days ~~after~~ following the end of each of the first three fiscal quarters of each fiscal ~~year~~ year, (~~commencing with the fiscal quarter ending June 30, 2016),~~ i) a consolidated balance sheet and related statements of operations and cash flows showing the financial position of the Borrower and ~~its~~ the Restricted Subsidiaries as of the close of such fiscal quarter and the consolidated results of ~~their~~ its operations during such fiscal quarter ~~and~~ and, in each case, the then-elapsed portion of the fiscal year ~~and, starting with the fiscal quarter ending September 30, 2016,~~ and setting forth in comparative form the corresponding figures for the corresponding periods of the prior fiscal year, ~~all of which shall be in reasonable detail,~~ which consolidated balance sheet and related statements of operations and cash flows ~~shall be accompanied by customary management’s discussion and analysis and which consolidated balance sheet and related statements of operations and cash flows shall~~ will be certified by a ~~Financial~~ Responsible Officer of the Borrower on behalf of the Borrower as fairly presenting, in all material respects, the financial position and results of operations of the Borrower and ~~its~~ the Restricted Subsidiaries on a consolidated basis in accordance with ~~GAAP (~~GAAP, subject to normal year-end audit adjustments and the absence of footnotes, and (ii) a management’s discussion and analysis of financial condition and results of operations, discussing and analyzing the results of operations of the Borrower for such fiscal quarter (the applicable financial statements delivered pursuant to this clause (2) being the “Quarterly Financial Statements” and, together with the Annual Financial Statements, the “Required Financial Statements”); (3) concurrently with any delivery of Required Financial Statements, a certificate of a Financial Officer of the Borrower: (a) certifying that no Default or Event of Default has occurred and is continuing or, if a Default or Event of Default has occurred and is continuing, specifying the nature and extent thereof and any corrective action taken or proposed to be taken with respect thereto; (b) setting forth the calculation and uses of the Available Amount for the fiscal period then ended if the Borrower has used the Available Amount for any purpose during such fiscal period; (c) certifying a list of all Immaterial Subsidiaries, that each Subsidiary set forth on such list individually qualifies as an Immaterial Subsidiary and that all such Subsidiaries in the aggregate do not exceed the limitation set forth in clause (ii) of the definition of the term “Immaterial Subsidiary”; (d) setting forth, in reasonable detail, the calculation of the Senior Secured First Lien Net Leverage Ratio for the most recent period of four consecutive fiscal quarters as of the close of such fiscal year or such fiscal quarter, as applicable; and (e) certifying a list of all Unrestricted Subsidiaries at such time and that each Subsidiary set forth on such list qualifies as an Unrestricted Subsidiary; (4) promptly after the same become publicly available, copies of all periodic and other publicly available reports, proxy statements and, to the extent requested by the Administrative Agent, other materials publicly filed by Holdings, the Borrower or any Restricted Subsidiary with the SEC or, after an initial public offering, distributed to its stockholders generally, as applicable; (5) within 90 days following the end of each full fiscal year ended after the Closing Date, a consolidated annual budget for such fiscal year in the form customarily prepared by the Borrower (the “Budget”), which Budget will in each case be accompanied by the statement of a Financial Officer of the Borrower on behalf of the Borrower to the effect that the Budget is based on assumptions believed by the Borrower to be reasonable as of the date of delivery thereof; (6) upon the reasonable request of the Collateral Agent, concurrently with the delivery of the Annual Financial Statements, an updated Perfection Certificate (or, to the extent such request relates to specified information contained in the Perfection Certificate, such information) reflecting all changes since the date of the information most recently received pursuant to this paragraph (6) or Section 5.10; (7) promptly, from time to time, such other information regarding the operations, business affairs and financial condition of Holdings, the Borrower or any Restricted Subsidiary, in each case, as the Administrative Agent may reasonably request (for itself or on behalf of any Lender); and (8) on a quarterly basis, at a time mutually agreed with Administrative Agent that is promptly after the delivery of the information required pursuant to clauses (1) and (2) for each fiscal quarter, participate in a conference call for Lenders to discuss the financial condition and results of operations of the Borrower and its Subsidiaries for the most recently-ended period for which financial statements have been delivered. Anything to the contrary notwithstanding, the obligations in clauses (1) and (2) of this Section 5.04 may be satisfied with respect to financial information of the Borrower and the Restricted Subsidiaries by furnishing (1) the applicable financial statements of Holdings (or any other Parent Entity) or (2) the Borrower’s or Holdings’ (or any such other Parent Entity’s), as applicable, Form 10 K or 10 Q, as applicable, filed with the SEC; provided that with respect to each of the foregoing clauses (1) and (2) (a) to the extent such information relates to Holdings (or a Parent Entity), such information is accompanied by consolidating information that explains in reasonable detail the differences between the information relating to Holdings (or such Parent Entity), on the one hand, and the information relating to the Borrower and the Restricted Subsidiaries on a standalone basis, on the other hand, and (b) to the extent such information is in lieu of information required to be provided under Section 5.04(1), such materials are accompanied by a report and opinion of independent public accountants of recognized national standing, or such other accountants as are reasonably acceptable to the Administrative Agent, and accompanied by an opinion of such accountants (which opinion shall not be subject to any “going concern” statement, explanatory note or like qualification or exception (other than a “going concern” statement, explanatory note or like qualification or exception resulting from an upcoming maturity date occurring within one year from the time such opinion is delivered or anticipated (but not actual) covenant non-compliance)) (it being understood and agreed that ~~the delivery by~~ if, in compliance with this paragraph, (x) the Borrower provides audited financial statements of ~~quarterly reports~~ Holdings (or any other Parent Entity) and related report and opinion of accountants with respect thereto in lieu of information required to be provided under Section 5.04(1), no such audited financial information, opinion or report shall be required with respect to the Borrower, (y) the Borrower provides unaudited financial statements of Holdings (or any other Parent Entity) in lieu of information required to be provided under Section 5.04(2), no such unaudited financial information shall be required with respect to the Borrower and (z) the Borrower provides a Budget of Holdings and accompanying statement (or any other Parent Entity) in lieu of information required to be provided under Section 5.04(5), no such Budget shall be required with respect to the Borrower; provided that for the avoidance of doubt, with respect to the foregoing clauses (x), (y) and (z) (i) to the extent such information relates to Holdings (or a Parent Entity), such information is accompanied by consolidating information that explains in reasonable detail the differences between the information relating to Holdings (or such Parent Entity), on ~~Form 10~~the one hand, and the information relating to the Borrower and the Restricted Subsidiaries on a standalone basis, on the other hand, and (ii) to the extent such information is in lieu of information required to be provided under Section 5.04(1), such materials are accompanied by a report and opinion of independent public accountants of recognized national standing, or such other accountants as are reasonably acceptable to the Administrative Agent, and accompanied by an opinion of such accountants (which opinion shall not be subject to any “going concern” statement, explanatory note or like qualification or exception (other than a “going concern” statement, explanatory note or like qualification or exception resulting solely from an upcoming maturity date occurring within one year from the time such opinion is delivered or anticipated (but not actual) covenant non-Q compliance)). The obligations in clauses (1) and (2) of this Section 5.04 may be satisfied by delivery of financial information of the Borrower and its ~~consolidated~~ Subsidiaries ~~shall satisfy~~ so long as such financial statements include a reasonably detailed presentation, either on the ~~requirements~~ face of the financial statements or in the footnotes thereto, of the financial condition and results of operations of the Borrower and the Restricted Subsidiaries separate from the financial condition and results of operations of the Unrestricted Subsidiaries of the Borrower. Documents required to be delivered pursuant to this Section ~~5.04(b) to the extent such quarterly reports include the information specified herein~~5.04 may be delivered electronically in accordance with Section 10.01(5);.

Appears in 3 contracts

Samples: First Lien Term Loan Credit Agreement (BJ's Wholesale Club Holdings, Inc.), First Lien Term Loan Credit Agreement (BJ's Wholesale Club Holdings, Inc.), First Lien Term Loan Credit Agreement (BJ's Wholesale Club Holdings, Inc.)

Financial Statements, Reports, etc. ~~Furnish~~ Guarantor shall deliver (or cause to ~~the Administrative Agent (which will promptly furnish such information~~ be delivered) to ~~the Lenders):~~Buyer: (a) as soon as available and in any event within 90 forty-five (45) days after the end of each of the first three quarterly fiscal periods of each fiscal year of Guarantor, the unaudited balance sheet and income statement of Guarantor, which shall incorporate its consolidated Subsidiaries (including Pledgor and Seller), as at the end of such period, setting forth in each case in comparative form the figures for the previous year, accompanied by an Officer’s Certificate of Guarantor, which certificate shall state that said consolidated financial statements fairly present the consolidated financial condition and results of operations of Guarantor and its consolidated Subsidiaries in accordance with GAAP, consistently applied, as at the end of, and for, such period (subject to normal year-end audit adjustments); (b) as soon as available and in any event within one hundred twenty (120) days after the end of each fiscal year of Guarantor: (~~commencing with~~ i) the unaudited, balance sheet and income statement of Guarantor, which shall incorporate its consolidated Subsidiaries as at the end of such fiscal year ~~ending December 31~~, ~~2016)~~accompanied by an Officer’s Certificate of Guarantor, a which certificate shall state that said consolidated financial statements fairly present the consolidated financial condition and results of operations of Guarantor and its consolidated Subsidiaries in accordance with GAAP, consistently applied, as at the end of, and for, such period; (ii) the combined, consolidated balance sheet and ~~related statements~~ statement of ~~operations~~equity of REIT, ~~cash flows and owners’ equity showing~~ which shall incorporate its consolidated Subsidiaries, as at the ~~financial position of the Borrower and its Subsidiaries as of the close~~ end of such fiscal year and the related combined, consolidated ~~results~~ statements of ~~their~~ operations ~~during~~ and of cash flows for REIT, which shall incorporate its consolidated Subsidiaries, for such ~~year and setting forth in comparative form the corresponding figures for the prior fiscal~~ year, ~~which consolidated balance sheet and related statements of operations, cash flows and owners’ equity shall be~~ accompanied by ~~customary management’s discussion and analysis and audited by~~ an opinion thereon of Deloitte Consulting LLP or other independent certified public accountants of recognized national ~~standing and accompanied by an opinion of such accountants (~~standing, which opinion shall not be qualified as to scope of audit or ~~as to the status of the Borrower or any Material Subsidiary as a~~ going ~~concern~~concern and shall state that said combined, other than solely with respect to, or resulting solely from, an upcoming maturity date under any series of Indebtedness occurring within one year from the time such opinion is delivered or any potential inability to satisfy a financial maintenance covenant on a future date or in a future period) to the effect that such consolidated financial statements fairly ~~present~~present the combined, ~~in all material respects, the~~ consolidated financial ~~position~~ condition and results of operations of ~~the Borrower and its Subsidiaries on a consolidated basis in accordance with GAAP (it being understood that the delivery by the Borrower of annual reports on Form 10-K of the Borrower~~ REIT and its consolidated Subsidiaries ~~shall satisfy the requirements of this Section 5.04(a) to the extent such annual reports include the information specified herein); (b) within 45 days after~~ as at the end ~~of each of the first three fiscal quarters of each~~ of, and for, such fiscal year (commencing with the fiscal quarter ending June 30, 2016), a consolidated balance sheet and related statements of operations and cash flows showing the financial position of the Borrower and its Subsidiaries as of the close of such fiscal quarter and the consolidated results of their operations during such fiscal quarter and the then-elapsed portion of the fiscal year and, starting with the fiscal quarter ending September 30, 2016, setting forth in comparative form the corresponding figures for the corresponding periods of the prior fiscal year, all of which shall be in reasonable detail, which consolidated balance sheet and related statements of operations and cash flows shall be accompanied by customary management’s discussion and analysis and which consolidated balance sheet and related statements of operations and cash flows shall be certified by a Financial Officer of the Borrower on behalf of the Borrower as fairly presenting, in all material respects, the financial position and results of operations of the Borrower and its Subsidiaries on a consolidated basis in accordance with GAAP (subject to normal year-end audit adjustments and the absence of footnotes) (it being understood that the delivery by the Borrower of quarterly reports on Form 10-Q of the Borrower and its consolidated Subsidiaries shall satisfy the requirements of this Section 5.04(b) to the extent such quarterly reports include the information specified herein)GAAP;

Appears in 3 contracts

Samples: Guaranty Agreement (KKR Real Estate Finance Trust Inc.), Guaranty Agreement (KKR Real Estate Finance Trust Inc.), Guaranty Agreement (KKR Real Estate Finance Trust Inc.)

Financial Statements, Reports, etc. Furnish to the Administrative Agent (which will promptly furnish such information to the Lenders): (a) within 90 days after the end of each fiscal year (commencing with the first fiscal year ending ~~December 31, 2016~~after the Closing Date), a consolidated balance sheet and related statements of ~~operations~~income, stockholders’ equity, and cash ~~flows and owners’ equity~~ flow showing the financial position of ~~the Borrower~~ Parent and its Subsidiaries as of the close of such fiscal year and the consolidated results of their operations during such year and setting forth in comparative form the corresponding figures for the prior fiscal year, which consolidated balance sheet and related statements of ~~operations~~income, stockholders’ equity, and cash ~~flows and owners’ equity~~ flow shall be accompanied by customary management’s discussion and analysis and audited by independent public accountants of recognized national standing and accompanied by an opinion of such accountants (which opinion shall not be qualified as to scope of audit or as to the status of ~~the Borrower~~ Parent or any Material Subsidiary as a going concern, other than solely with respect to, or resulting solely from, an upcoming maturity date under any series of Indebtedness incurred under this Agreement occurring within one year from the time such opinion is ~~delivered or any potential inability to satisfy a financial maintenance covenant on a future date or in a future period~~delivered) to the effect that such consolidated financial statements fairly present, in all material respects, the financial position and results of operations of ~~the Borrower~~ Parent and its Subsidiaries on a consolidated basis in accordance with GAAP (it being understood that the delivery by the ~~Borrower~~ Parent of annual reports on Form 10-K of ~~the Borrower~~ Parent and its consolidated Subsidiaries shall satisfy the requirements of this Section 5.04(a) to the extent such annual reports include the information specified ~~herein~~herein and are delivered within the time period specified above); (b) within 45 days after the end of each of the first three fiscal quarters of each fiscal year (commencing with the first fiscal quarter ending ~~June 30, 2016~~after the Closing Date), a consolidated balance sheet and related statements of operations and cash flows showing the financial position of ~~the Borrower~~ Parent and its Subsidiaries as of the close of such fiscal quarter and the consolidated results of their operations during such fiscal quarter and the then-elapsed portion of the fiscal year ~~and, starting with the fiscal quarter ending September 30, 2016,~~ and setting forth in comparative form the corresponding figures for the corresponding periods of the prior fiscal ~~year~~year or, to the extent permitted by the SEC, prior fiscal period, all of which shall be in reasonable detail, which consolidated balance sheet and related statements of operations and cash flows shall be accompanied by customary management’s discussion and analysis and which consolidated balance sheet and related statements of operations and cash flows shall be certified by a Financial Officer of ~~the Borrower~~ Parent on behalf of ~~the Borrower~~ Parent as fairly presenting, in all material respects, the financial position and results of operations of ~~the Borrower~~ Parent and its Subsidiaries on a consolidated basis in accordance with GAAP (subject to normal year-end audit adjustments and the absence of footnotes) (it being understood that the delivery by the ~~Borrower~~ Parent of quarterly reports on Form 10-Q of ~~the Borrower~~ Parent and its consolidated Subsidiaries shall satisfy the requirements of this Section 5.04(b) to the extent such quarterly reports include the information specified ~~herein~~herein and are delivered within the time period specified above); (c) on or prior to the tenth Business Day following any delivery of financial statements under clause (a) or (b) above, a certificate of a Financial Officer of Parent (i) certifying that no Event of Default or Default has occurred since the date of the last certificate delivered pursuant to this Section 5.04(c) (or since the Closing Date in the case of the first such certificate) or, if such an Event of Default or Default has occurred, specifying the nature and extent thereof and any corrective action taken or proposed to be taken with respect thereto, (ii) commencing with the end of the first full fiscal quarter after the Closing Date, setting forth computations in reasonable detail satisfactory to the Administrative Agent demonstrating compliance with the Financial Covenants (if applicable) and (iii) setting forth the calculation and uses of the Available Amount for the fiscal period then ended if the Parent shall have used the Available Amount for any purpose during such fiscal period; (d) promptly after the same become publicly available, copies of all periodic and other publicly available reports, proxy statements and, to the extent requested by the Administrative Agent, other materials filed by the Parent or any of the Subsidiaries with the SEC, or distributed to its stockholders generally, as applicable; provided, however, that such reports, proxy statements, filings and other materials required to be delivered pursuant to this clause (d) shall be deemed delivered for purposes of this Agreement when posted to the website of Parent or the website of the SEC; (e) within 90 days after the beginning of each fiscal year that commences after the Closing Date, a consolidated annual budget for such fiscal year consisting of a projected consolidated balance sheet of Parent and its Subsidiaries as of the end of such fiscal year and the related consolidated statements of projected cash flow and projected income (collectively, the “Budget”), which Budget shall in each case be accompanied by the statement of a Financial Officer of Parent to the effect that the Budget is based on assumptions believed by the Parent to be reasonable as of the date of delivery thereof; (f) on or prior to the tenth Business Day following the delivery of financial statements under clause (a) above, an updated Perfection Certificate reflecting all changes since the date of the information most recently received pursuant to this clause (f) or Section 5.10(c) (or a certificate of a Responsible Officer certifying as to the absence of any changes to the previously delivered update, if applicable); and (g) promptly, from time to time, such other information regarding the operations, business affairs and financial condition of Parent or any of the Subsidiaries, or compliance with the terms of any Loan Document as in each case the Administrative Agent may reasonably request (for itself or on behalf of any Lender). The Borrowers hereby acknowledge that (a) the Administrative Agent and/or the Arrangers may, but shall not be obligated to, make available to the Lenders and the Issuing Banks materials and/or information provided by or on behalf of the Borrowers hereunder (collectively, “Borrower Materials”) by posting the Borrower Materials on IntraLinks, Syndtrak, ClearPar, or a substantially similar electronic transmission system (the “Platform”) and (b) certain of the Lenders (each, a “Public Lender”) may have personnel who do not wish to receive material non-public information with respect to the Parent or its Affiliates, or the respective securities of any of the foregoing, and who may be engaged in investment and other market-related activities with respect to such persons’ securities. The Borrowers hereby agree that (w) the Borrower Materials that are to be distributed to the Public Lenders shall be clearly and conspicuously marked “PUBLIC” which, at a minimum, shall mean that the word “PUBLIC” shall appear prominently on the first page thereof; (x) by marking Borrower Materials “PUBLIC,” the Borrowers shall be deemed to have authorized the Administrative Agent, the Arrangers, the Issuing Banks and the Lenders to treat such Borrower Materials as not containing any material non-public information (although it may be sensitive and proprietary) with respect to the Parent, its Subsidiaries or any of their respective securities for purposes of United States Federal securities laws (provided, however, that such Borrower Materials shall be treated as set forth in Section 9.16, to the extent such Borrower Materials constitute information subject to the terms thereof); (y) all Borrower Materials marked “PUBLIC” are permitted to be made available through a portion of the Platform designated “Public Side Information”; and (z) the Administrative Agent and the Arrangers shall be entitled to treat any Borrower Materials that are not marked “PUBLIC” as being suitable only for posting on a portion of the Platform not designated “Public Side Information.” The Parent acknowledges and agrees that all financial statements furnished pursuant to paragraphs (a), (b) and (d) above are hereby deemed to be Borrower Materials suitable for distribution, and to be made available, to Public Lenders as contemplated above and may be treated by the Administrative Agent and the Lenders as if the same had been marked “PUBLIC” in accordance with such paragraph (unless the Parent otherwise notifies the Administrative Agent in writing on or prior to delivery thereof).

Appears in 3 contracts

Samples: Credit Agreement (Jazz Pharmaceuticals PLC), Credit Agreement (Jazz Pharmaceuticals PLC), Credit Agreement (Jazz Pharmaceuticals PLC)

Financial Statements, Reports, etc. Furnish to the Administrative Agent (~~which~~ who will ~~promptly furnish such information~~ distribute to ~~the Lenders~~each Lender): (a) ~~within 90 days~~ as soon as available but in any event not later than the fifth Business Day after the 90th day following the end of each fiscal year of the Borrower, (~~commencing with the fiscal year ending December 31, 2016), a~~ i) its consolidated balance sheet and related statements of ~~operations~~income, stockholders’ equity and cash flows ~~and owners’ equity~~ showing the financial ~~position~~ condition of the Borrower and its ~~Subsidiaries~~ consolidated subsidiaries as of the close of such fiscal year and the ~~consolidated~~ results of ~~their~~ its operations and the operations of such Persons during such ~~year and setting forth in~~ year, together with comparative ~~form the corresponding~~ figures for the ~~prior~~ immediately preceding fiscal year, ~~which consolidated balance sheet~~ all in reasonable detail and ~~related statements of operations~~prepared in accordance with GAAP, ~~cash flows and owners’ equity shall be accompanied by customary management’s discussion and analysis and~~ all audited by PricewaterhouseCoopers LLP or other independent public accountants of recognized national standing and ~~accompanied by~~ (ii) an opinion of such accountants (which opinion shall ~~not~~ be ~~qualified as to scope of audit~~ without a “going concern” or like qualification or exception and without any qualification or exception as to the ~~status~~ scope of the Borrower or any Material Subsidiary as a going concern, other than solely with respect to, or resulting solely from, an upcoming maturity date under any series of Indebtedness occurring within one year from the time such ~~opinion is delivered or any potential inability to satisfy a financial maintenance covenant on a future date or in a future period~~audit) to the effect that such consolidated financial statements fairly ~~present, in all material respects,~~ present the financial ~~position~~ condition and results of operations of the Borrower and its ~~Subsidiaries~~ consolidated subsidiaries on a consolidated basis in accordance with GAAP (it being ~~understood~~ agreed that the ~~delivery by~~ furnishing of the ~~Borrower of~~ Borrower’s annual ~~reports~~ report on Form 10-K of for such year, as filed with the ~~Borrower and its consolidated Subsidiaries shall~~ SEC, will satisfy the ~~requirements of~~ Borrower’s obligation under this Section ~~5.04(a) to the extent such annual reports include the information specified herein~~5.04(a)(i)); (b) ~~within 45 days~~ as soon as available, but in any event not later than the fifth Business Day after the 45th day following the end of each of the first three fiscal quarters of each fiscal year ~~(commencing with~~ of the ~~fiscal quarter ending June 30~~Borrower, ~~2016), a~~ its consolidated balance sheet and related statements of ~~operations~~ income, stockholders’ equity and cash flows showing the financial ~~position~~ condition of the Borrower and its ~~Subsidiaries~~ consolidated subsidiaries as of the close of such fiscal quarter and the ~~consolidated~~ results of ~~their~~ its operations and the operations of such Persons during such fiscal quarter and the ~~then-~~then elapsed portion of the fiscal ~~year and~~year, ~~starting with the~~ and for each fiscal quarter ~~ending September 30~~occurring after the first anniversary of the Closing Date, ~~2016, setting forth in~~ comparative ~~form the corresponding~~ figures for the ~~corresponding~~ same periods of in the ~~prior~~ immediately preceding fiscal year, all of which shall be in reasonable detail, which consolidated balance sheet and related statements of operations and cash flows shall be accompanied by customary management’s discussion and analysis and which consolidated balance sheet and related statements of operations and cash flows shall be certified by a one of its Financial ~~Officer of the Borrower on behalf of the Borrower~~ Officers as fairly ~~presenting,~~ presenting in all material ~~respects,~~ respects the financial ~~position~~ condition and results of operations of the Borrower and its ~~Subsidiaries~~ consolidated subsidiaries on a consolidated basis in accordance with ~~GAAP (~~GAAP, subject to normal year-end audit adjustments and the absence of ~~footnotes)~~ footnotes (it being ~~understood~~ agreed that the ~~delivery by~~ furnishing of the ~~Borrower of~~ Borrower’s quarterly ~~reports~~ report on Form 10-Q for such quarter, as filed with the SEC will satisfy the Borrower’s obligation under this Section 5.04(b) with respect to such quarter); (c) concurrently with any delivery of Section 5.04 Financials, a certificate of a Financial Officer of the Borrower (i) certifying that to such Financial Officer’s knowledge, no Event of Default or Default has occurred and is continuing or, if such an Event of Default or Default has occurred and is continuing, reasonably specifying the nature thereof, (ii) setting forth (x) to the extent applicable, computations in reasonable detail demonstrating the Total Net Leverage Ratio and the Senior Secured Leverage Ratio as of the date of such financial statements, (y) to the extent applicable, computations in reasonable detail necessary for determining compliance by the Borrower with the provisions of Section 6.11 as of the last day of the fiscal quarter or fiscal year of the Borrower, as the case may be and (z) in the case of a certificate delivered with the financial statements required by paragraph (a) above (commencing with the fiscal year ended December 31, 2008), setting forth the Borrower’s calculation of Excess Cash Flow; (d) as soon as available, but in any event not later than the fifth Business Day after the 90th day after the commencement of each fiscal year of the Borrower, copy of the projections by the Borrower of the operating budget and cash flow budget of the Borrower and its subsidiaries for such fiscal year, such projections to be accompanied by a certificate of a Financial Officer of the Borrower to the effect that such Financial Officer believes such projections to have been prepared on the basis of reasonable assumptions; (e) simultaneously with the delivery of any Section 5.04 Financials, the related consolidating financial statements reflecting the adjustments necessary to eliminate the accounts of Unrestricted Subsidiaries from such consolidated ~~Subsidiaries shall satisfy the requirements of this Section 5.04(b)~~ financial statements (but only to the extent such Unrestricted Subsidiaries would not be considered “minor” under Rule 3-10 of Regulation S-X under the Securities Act); (f) simultaneously with the delivery of any Section 5.04 Financials, management’s discussion and analysis of the important operational and financial developments of the Borrower and its Restricted Subsidiaries during the respect fiscal year or fiscal quarter, as the case may be; it being agreed that the furnishing of the Borrower’s annual report on Form 10-K or quarterly report on Form 10-Q, as filed with the SEC, will satisfy the Borrower’s obligations under this Section 5.04(f); (g) after the request by any Lender (through the Administrative Agent), all documentation and other information that such Lender reasonably requests in order to comply with its ongoing obligations under applicable “know your customer” and anti-money laundering rules and regulations, including the USA PATRIOT Act; and (h) promptly, from time to time, such other information regarding the operations, business, legal or corporate affairs and financial condition of any Loan Party or any Restricted Subsidiary, or compliance with the terms of any Loan Document, as the Administrative Agent or any Lender (through the Administrative Agent) may reasonably request. Information required to be delivered pursuant to this Section 5.04 shall be deemed to have been delivered if such information, or one or more annual or quarterly reports ~~include~~ containing such information, shall have been posted by the Administrative Agent on a SyndTrak, IntraLinks or similar site to which the Lenders have been granted access or shall be available (the “Platform”) on the website of the Securities and Exchange Commission at xxxx://xxx.xxx.xxx or on the website of the Borrower. Information required to be delivered pursuant to this Section may also be delivered by electronic communications pursuant to procedures approved by the Administrative Agent. Each Lender shall be solely responsible for timely accessing posted documents and maintaining its copies of such documents. The Borrower hereby acknowledges that (a) the Administrative Agent will make available to the Lenders materials and/or information ~~specified herein~~provided by or on behalf of the Borrower hereunder (collectively, “Borrower Materials”) by posting the Borrower Materials on the Platform and (b) certain of the Lenders (each, a “Public Lender”) may have personnel who do not wish to receive material non-public information with respect to the Borrower or its Affiliates, or the respective securities of any of the foregoing, and who may be engaged in investment and other market-related activities with respect to such Persons’ securities. The Borrower hereby agrees that it will use commercially reasonable efforts to identify that portion of the Borrower Materials that may be distributed to the Public Lenders and that (w) all such Borrower Materials shall be clearly and conspicuously marked “PUBLIC” which, at a minimum, shall mean that the word “PUBLIC” shall appear prominently on the first page thereof; (x) by marking Borrower Materials “PUBLIC,” the Borrower shall be deemed to have authorized the Administrative Agent and the Lenders to treat such Borrower Materials as not containing any material non-public information (although it may be sensitive and proprietary) with respect to the Borrower or its securities for purposes of United States Federal and state securities laws (provided, however, that to the extent such Borrower Materials constitute Information, they shall be treated as set forth in Section 11.07);; (y) all Borrower Materials marked “PUBLIC” are permitted to be made available through a portion of the Platform designated “Public Investor”; and (z) the Administrative Agent shall be entitled to treat any Borrower Materials that are not marked “PUBLIC” as being suitable only for posting on a portion of the Platform not designated “Public Investor.”

Appears in 3 contracts

Samples: Term Loan Agreement (CDW Finance Corp), Term Loan Agreement (CDW Corp), Term Loan Agreement (CDW Finance Corp)

Appears in 3 contracts

Samples: Term Loan Credit Agreement (Rotech Healthcare Inc), Term Loan Credit Agreement (Rotech Healthcare Inc), Term Loan Credit Agreement (Rotech Healthcare Inc)

Financial Statements, Reports, etc. ~~Furnish~~ In the case of the Borrower, furnish to the Administrative ~~Agent (~~Agent, which ~~will promptly~~ shall furnish ~~such information~~ to ~~the Lenders):~~each Lender: (a) within 90 days after the end of each fiscal ~~year (~~year, commencing with the fiscal year ~~ending~~ ended December 31, 2016), a its consolidated balance sheet and related statements of ~~operations~~income, stockholders’ equity and cash flows ~~and owners’ equity~~ showing the financial ~~position~~ condition of the Borrower and its consolidated Subsidiaries as of the close of such fiscal year and the ~~consolidated~~ results of ~~their~~ its operations and the operations of such Subsidiaries during such ~~year and~~ year, including the notes thereto, all in reasonable detail, setting forth in comparative ~~form the corresponding~~ figures for the ~~prior~~ immediately preceding fiscal year, ~~which consolidated balance sheet~~ and, if applicable, containing disclosure of the effect on the financial position or results of operations of any change in the application of accounting principles and ~~related~~ practices during the year; provided that such financial statements for the fiscal year ending December 31, 2016 may provide such information for the period from the Closing Date until the close of such fiscal year, and a written statement of the Borrower’s management setting forth a discussion of the Borrower’s financial condition and results of operations, ~~cash flows and owners’ equity~~ in each case, for the fiscal year then ended; Such financial statements shall be ~~accompanied by customary management’s discussion and analysis and~~ audited by PricewaterhouseCoopers LLP or other independent public accountants of recognized national standing and accompanied by an opinion of such accountants (which opinion shall not be qualified as to the scope of such audit or as to the status of the Borrower ~~or any Material Subsidiary~~ and its Subsidiaries as a “going concern, other than solely with respect to, or resulting solely from, an upcoming maturity date under any series of Indebtedness occurring within one year from the time such opinion is delivered or any potential inability to satisfy a financial maintenance covenant on a future date or in a future period”) to the effect that such consolidated financial statements fairly ~~present,~~ present in all material ~~respects,~~ respects the financial ~~position~~ condition and results of operations of the Borrower and its Subsidiaries on a consolidated basis in accordance with GAAP consistently (~~it being understood that the delivery by the Borrower of annual reports on Form 10-K of the Borrower and its consolidated Subsidiaries shall satisfy the requirements of this Section 5.04(a~~except as otherwise disclosed therein) ~~to the extent such annual reports include the information specified herein)~~applied; (b) within 45 days (or by such earlier date as the SEC may require for the filing of quarterly reports on Form 10-Q) after the end of each of the first three fiscal quarters of each fiscal ~~year (commencing with the fiscal quarter ending June 30~~year, ~~2016), a~~ its consolidated and consolidating balance sheet and related statements of ~~operations~~ income, stockholders’ equity and cash flows showing the financial ~~position~~ condition of the Borrower and its consolidated Subsidiaries as of the close of such fiscal quarter, together with a customary management discussion and analysis, in each case, for the fiscal quarter then ended and the ~~consolidated results of their operations during such fiscal quarter and the then-~~then elapsed portion of the fiscal year, all in reasonable detail setting forth comparative figures for the same periods in the immediately preceding fiscal year ~~and~~(provided that, ~~starting with~~ for each fiscal quarter from the Closing Date until the fiscal quarter ending prior to September 30, ~~2016~~2017, ~~setting forth in~~ such comparative ~~form~~ figures shall be required for only the ~~corresponding figures for the corresponding periods~~ Cetera Entities) and, if applicable, containing disclosure of the ~~prior fiscal year~~effect on the financial position or results of operations of any change in the application of accounting principles and practices during the period, all of which shall be in reasonable detail, which consolidated balance sheet and related statements of operations and cash flows shall be accompanied by customary management’s discussion and analysis and which consolidated balance sheet and related statements of operations and cash flows shall be certified by a one of its Financial ~~Officer of the Borrower on behalf of the Borrower~~ Officers as fairly ~~presenting,~~ presenting in all material ~~respects,~~ respects the financial ~~position~~ condition and results of operations of the Borrower and its consolidated Subsidiaries on a consolidated basis in accordance with GAAP consistently (except as otherwise disclosed therein) applied, subject to normal year-end audit adjustments and the absence of ~~footnotes~~required footnote disclosures; (c) concurrently with any delivery of financial statements under paragraph (a) or (b) above, a certificate of a Financial Officer substantially in the form of Exhibit F (a “Compliance Certificate”) (~~it being understood~~ i) certifying that no Default or Event of Default has occurred or, if such a Default or Event of Default has occurred, specifying the ~~delivery~~ nature and extent thereof and any corrective action taken or proposed to be taken with respect thereto, (ii) setting forth computations in reasonable detail demonstrating compliance with the covenants contained in Section 6.07 and (iii) setting forth the amount of any Pro Forma Basis calculation not previously set forth in any Pro Forma Basis Adjustment Certificate or any change in the amount of any such Pro Forma Basis calculation set forth in any Pro Forma Basis Adjustment Certificate previously provided and, in either case, in reasonable detail, the calculations and basis therefor; (d) within 90 days after the beginning of each fiscal year of the Borrower beginning with the fiscal year starting January 1, 2017, a detailed consolidated budget for such fiscal year (including projected operations and key cash flows) and, promptly when available, any significant revisions of such budget, which budget shall be in form, scope and detail reasonably satisfactory to the Required Lenders; (e) the Borrower shall, (i) on a date (which shall be a Business Day) following the last day of each of its fiscal years (which date will be specified by the Borrower to the Administrative Agent in writing at least 10 days prior to such date and which date shall be no later than 120 days following the last day of ~~quarterly reports~~ each such fiscal year), hold a meeting (which may be telephonic) and (ii) on ~~Form 10-Q~~ a date (which shall be a Business Day) following the last day of each of the first three fiscal quarters of each fiscal year (which date will be specified by the Borrower to the Administrative Agent in writing at least 7 days prior to such date and which date shall be no later than 60 days following the end of each such fiscal quarter), participate in a conference call, in each case, with the Administrative Agent and the Lenders that choose to attend, to discuss the financial condition and results of operations of the Borrower and its consolidated Subsidiaries ~~shall satisfy~~ for such fiscal year or such fiscal quarter (and for the ~~requirements~~ period from the beginning of ~~this Section 5.04(b~~the current fiscal year to the end of such fiscal quarter), as the case may be; (f) promptly upon filing thereof, copies of any filings (including on Form 10-K, 10-Q or 8-K) or registration statements with, and reports to, the SEC or any analogous Governmental Authority in any relevant jurisdiction by any Company (other than amendments to any registration statement (to the extent such ~~quarterly~~ registration statement, in the form it becomes effective, is delivered to the Administrative Agent), exhibits to any registration statement and, if applicable, any registration statements on Form S-8) and copies of all financial statements, proxy statements, notices and reports ~~include~~ that any Company shall send to the ~~information specified herein~~holders of any publicly issued debt of any Company, in their capacity as such holders, lenders or agents (in each case to the extent not theretofore delivered to the Administrative Agent pursuant to this Agreement); (g) promptly after the request by any Lender, all documentation and other information that such Lender reasonably requests in order to comply with its ongoing obligations under applicable “know your customer” and anti-money laundering rules and regulations, including the USA PATRIOT Act; (h) promptly, from time to time, and subject to the limitations set forth in the last sentence of Section 5.07(a), such other information regarding the operations, business affairs and financial condition of any Company, or compliance with the terms of any Loan Document, as the Administrative Agent or any Lender may reasonably request; (i) promptly provide the Administrative Agent and the Lenders with (A) all Financial and Operational Combined Uniform Single (FOCUS) Reports provided to FINRA or filed with the SEC in respect of each Broker-Dealer; (B) for each Broker-Dealer that does not qualify for an exemption from Rule 15c3-3 under the Exchange Act pursuant to paragraph (k) thereof, a weekly report setting forth the 15c3-3 reserve calculations of such Broker-Dealer, including without limitation, the underlying calculation used to produce such reserve calculations; (C) [reserved]; (D) all other material written presentations and reports with respect to one or more Broker-Dealers provided to any Regulatory Supervising Organization or any of the clearinghouses, clearing banks or clearing brokers through which such Broker-Dealer transacts (together with the Regulatory Supervising Organizations, collectively, the “Relevant Organizations”) with respect to such Broker-Dealer’s net capital, liquidity and compliance with financial responsibility rules; (E) any “early warning” notification of reductions in its level of Regulatory Net Capital delivered by a Broker-Dealer to a Regulatory Supervising Organization, including those under Rule 17a-11 under the Securities Exchange Act of 1934 or FINRA Rule 4120; (F) any notice received by a Broker-Dealer under FINRA Rule 4110; and (G) any written communications received by the Borrower or any other Company from a Relevant Organization with respect to any material investigation or inquiry that could reasonably be expected to lead to an enforcement action against a Company that has not discontinued operations; and (ii) provide the Administrative Agent and the Lenders on a quarterly basis, or such other frequency as may be agreed between the Borrower and the Required Lenders, with an oral report with regard to all communications with the Relevant Organizations relating to the matters described in clause (i) above; To the extent any document required to be delivered pursuant to this Section 5.04 is filed with the SEC electronically and is fully available to the public generally at or prior to the time such document is required to be delivered pursuant to this Section 5.04, such document shall be deemed to have been delivered on the date on which such document is filed and posted unless the Borrower provides the Administrative Agent with prior written notice that such filing is not intended to satisfy any delivery requirement hereunder.

Appears in 3 contracts

Samples: First Lien Term Loan Agreement, Second Lien Term Loan Agreement, First Lien Term Loan Agreement

Appears in 3 contracts

Samples: 364 Day Competitive Advance and Revolving Credit Agreement (Cendant Corp), 364 Day Competitive Advance and Revolving Credit Agreement (Cendant Corp), Credit Agreement (Cendant Corp)

Financial Statements, Reports, etc. Furnish to the Administrative Agent (which will promptly furnish such information to the Lenders): (a) ~~within 90~~ Within 105 days ~~after~~ (or such other time period as specified in the SEC’s rules and regulations with respect to non-accelerated filers for the filing of annual reports on Form 10-K), following the end of each fiscal year (commencing with the fiscal year ending December 31, ~~2016~~2007), a consolidated balance sheet and related statements of operations, cash flows and owners’ equity showing the financial position of the Borrower and its Subsidiaries as of the close of such fiscal year and the consolidated results of ~~their~~ its operations during such year ~~and~~ and, starting with the fiscal year ending December 31, 2007, setting forth in comparative form the corresponding figures for the prior fiscal year, which consolidated balance sheet and related statements of operations, cash flows and owners’ equity shall be ~~accompanied by customary management’s discussion and analysis and~~ audited by independent public accountants of recognized national standing and accompanied by an opinion of such accountants (which ~~opinion~~ shall not be qualified as to scope of audit or as to the status of the Borrower or any Material Subsidiary as a going concern, other than solely with respect to, or resulting solely from, an upcoming maturity date under any series of Indebtedness occurring within one year from the time such opinion is delivered or any potential inability to satisfy a financial maintenance covenant on a future date or in a future period) to the effect that such consolidated financial statements fairly present, in all material respects, the financial position and results of operations of the Borrower and its Subsidiaries on a consolidated basis in accordance with GAAP (it being understood that the delivery by the Borrower of annual reports on Form 10-K of the Borrower and its consolidated Subsidiaries shall satisfy the requirements of this Section 5.04(a) to the extent such annual reports include the information specified herein); (b) Within 60 days (or such other time period as specified in the SEC’s rules and regulations with respect to non-accelerated filers for the filing of quarterly reports on Form 10-Q) (or, in the case of the first fiscal quarter for which quarterly financial statements are required to be delivered hereunder, within 45 75 days ~~after~~ following the end of such fiscal quarter), following the end of each of the first three fiscal quarters of each fiscal ~~year (commencing with the fiscal quarter ending June 30, 2016)~~year, a consolidated balance sheet and related statements of operations and cash flows showing the financial position of the Borrower and its Subsidiaries as of the close of such fiscal quarter and the consolidated results of ~~their~~ its operations during such fiscal quarter and the then-elapsed portion of the fiscal year ~~and, starting with the fiscal quarter ending September 30, 2016,~~ and setting forth in comparative form the corresponding figures for the corresponding periods of the prior fiscal year, all of which shall be in reasonable ~~detail, which consolidated balance sheet and related statements of operations and cash flows shall be accompanied by customary management’s discussion and analysis~~ detail and which consolidated balance sheet and related statements of operations and cash flows shall be certified by a Financial Officer of Holdings or the Borrower on behalf of Holdings or the Borrower as fairly presenting, in all material respects, the financial position and results of operations of the Borrower and its Subsidiaries on a consolidated basis in accordance with GAAP (subject to normal year-end audit adjustments and the absence of footnotes) (it being understood that the delivery by the Borrower of quarterly reports on Form 10-Q of the Borrower and its consolidated Subsidiaries shall satisfy the requirements of this Section 5.04(b) to the extent such quarterly reports include the information specified herein);

Appears in 3 contracts

Samples: Amendment Agreement (CAESARS ENTERTAINMENT Corp), Amendment Agreement (CAESARS ENTERTAINMENT Corp), Credit Agreement (Harrahs Entertainment Inc)

Financial Statements, Reports, etc. ~~Furnish~~ In the case of the Borrower, deliver to the Administrative Agent ~~(which will promptly furnish such information~~ for prompt further distribution to ~~the Lenders):~~each Lender: (a) within 90 days after the end of each fiscal year of the Borrower (beginning with the fiscal year ending December 31, 2019), a consolidated balance sheet of the Borrower and its Subsidiaries as at the end of such fiscal year, and the related consolidated statements of operations, changes in shareholders’ equity and cash flows for such fiscal year, setting forth in each case in comparative form the figures for the previous fiscal year, all in reasonable detail and prepared in accordance with GAAP, audited and accompanied by a report and opinion of KPMG LLP, any other independent registered public accounting firm of nationally recognized standing or any other independent registered public accounting firm approved by the Administrative Agent and the Required Lenders (such approval not to be unreasonably withheld, conditioned or delayed), which report and opinion (i) shall be prepared in accordance with generally accepted auditing standards, (ii) shall not be subject to qualifications or exceptions as to the scope of such audit, (iii) shall be without a “going concern” disclosure or like qualification or exception (other than with respect to, or disclosure or an exception or qualification solely resulting from, (x) the impending maturity of any Indebtedness, (y) any prospective or actual default under any financial covenant or (z) the impact of COVID 19 on the business of the Borrower and its Subsidiaries) and (iv) shall be accompanied with customary management discussion and analysis; (b) within 45 days after the end of each of the first three (3) fiscal quarters of each fiscal year of the Borrower (commencing with the fiscal quarter ended September 30, 2019), a consolidated balance sheet of the Borrower and its Subsidiaries as at the end of such fiscal quarter, and the related (x) consolidated statements of income or operations for such fiscal quarter and for the portion of the fiscal year then ended and (y) consolidated statements of cash flows for such fiscal quarter and the portion of the fiscal year then ended, setting forth in each case in comparative form the figures for the corresponding fiscal quarter of the previous fiscal year and the corresponding portion of the previous fiscal year, all in reasonable detail and certified by a Responsible Officer of the Borrower as fairly presenting in all material respects the financial condition, results of operations and cash flows of the Borrower and its Subsidiaries in accordance with GAAP, subject only to normal year-end audit adjustments and the absence of footnotes and accompanied by customary management discussion and analysis; and (c) within 90 days after the end of each fiscal year (commencing with the fiscal year ending December 31, ~~2016)~~2019) of the Borrower, a reasonably detailed consolidated budget for the following fiscal year on a quarterly basis (including a projected consolidated balance sheet ~~and related statements of operations, cash flows and owners’ equity showing the financial position~~ of the Borrower and its Subsidiaries as of the ~~close~~ end of ~~such fiscal year and~~ the ~~consolidated results of their operations during such year and setting forth in comparative form the corresponding figures for the prior~~ following fiscal year, ~~which~~ the related consolidated ~~balance sheet and related~~ statements of ~~operations,~~ projected cash flows and ~~owners’ equity~~ projected income and a summary of the material underlying assumptions applicable thereto) (collectively, the “Projections”), which Projections shall in each case be accompanied by ~~customary management’s discussion and analysis and audited by independent public accountants~~ a certificate of ~~recognized national standing and accompanied by an opinion~~ a Responsible Officer stating that such Projections have been prepared in good faith on the basis of the assumptions stated therein, which assumptions were believed to be reasonable at the time of preparation of such ~~accountants (which opinion shall not be qualified~~ Projections, it being understood by the Agents and the Lenders that such projections as to ~~scope~~ future events (i) are not to be viewed as facts, (ii)(A) are subject to significant uncertainties and contingencies, which may be beyond the control of ~~audit~~ the Borrower and its Restricted Subsidiaries, (B) no assurance is given by the Borrower and its Restricted Subsidiaries that the results or as forecast in any such projections will be realized and (C) the actual results may differ from the forecast results set forth in such projections and such differences may be material and (iii) are not a guarantee of performance and that actual results during the period or periods covered by any such projections may vary significantly from the projected results and such differences may be material. Notwithstanding the foregoing, the obligations in paragraphs (a) and (b) of this Section 6.01 or Section 6.02(b) may be satisfied with respect to information of the ~~status~~ Borrower and the Subsidiaries by furnishing within the time period specified in the applicable paragraph (A) the applicable financial statements of the Borrower or (B) the Borrower’s Form 10-K or 10-Q, as applicable, filed with the SEC; provided that, with respect to clauses (A) and (B), to the extent such information is in lieu of information required to be provided under Section 6.01(a), such materials are accompanied by a report and opinion of KPMG LLP, any ~~Material Subsidiary~~ other independent registered public accounting firm of nationally recognized standing or any other independent registered public accounting firm approved by the Administrative Agent and the Required Lenders (such approval not to be unreasonably withheld, conditioned or delayed), which report and opinion (i) shall be prepared in accordance with generally accepted auditing standards, (ii) shall not be subject to qualifications or exceptions as to the scope of such audit and (iii) shall be without a “going concern, ” disclosure or like qualification or exception (other than ~~solely~~ with respect to, or disclosure or an exception or qualification solely resulting ~~solely~~ from, ~~an upcoming~~ (A) the impending maturity ~~date~~ of any Indebtedness, (B) any prospective or actual default under any ~~series~~ financial covenant or (C) the impact of ~~Indebtedness occurring within one year from~~ COVID 19 on the time such opinion is delivered or any potential inability to satisfy a financial maintenance covenant on a future date or in a future period) to the effect that such consolidated financial statements fairly present, in all material respects, the financial position and results of operations business of the Borrower and its ~~Subsidiaries~~ Subsidiaries). Documents required to be delivered pursuant to Section 6.01(a), (b), (c) and (d) or Section 6.02(b) or (c) may be delivered electronically and if so delivered, shall be deemed to have been delivered on the earliest date on which (i) Borrower posts such documents, or provides a ~~consolidated basis in accordance with GAAP~~ link thereto on Borrower’s website on the Internet and provides notice thereof to the Administrative Agent; (~~it being understood that~~ ii) such documents are posted on Borrower’s behalf on IntraLinks/IntraAgency or another website, if any, to which each Lender and the ~~delivery~~ Administrative Agent have access (whether a commercial, third-party website or whether sponsored by the Administrative Agent), or (iii) such financial statements and/or other documents are posted on the SEC’s website on the internet at xxx.xxx.xxx; provided that: (i) promptly following written request by the Administrative Agent, the Borrower shall deliver paper copies of ~~annual reports on Form 10-K~~ such documents to the Administrative Agent for further distribution to each Lender until a written request to cease delivering paper copies is given by the Administrative Agent and (ii) the Borrower shall notify (which may be by facsimile or electronic mail) the Administrative Agent of the posting of any such documents and provide to the Administrative Agent by electronic mail electronic versions (i.e., soft copies) of such documents. Each Lender shall be solely responsible for timely accessing posted documents or requesting delivery of paper copies of such documents from the Administrative Agent and maintaining its copies of such documents. Notwithstanding anything contained herein, in every instance the Borrower ~~and its consolidated Subsidiaries~~ shall ~~satisfy~~ be required to provide paper copies of the ~~requirements of this~~ Compliance Certificates required by Section ~~5.04(a~~6.02(a) to the ~~extent~~ Administrative Agent; provided, however, that if such ~~annual reports include~~ Compliance Certificate is first delivered by electronic means, the information specified herein); (b) within 45 days after the end of each of the first three fiscal quarters of each fiscal year (commencing with the fiscal quarter ending June 30, 2016), a consolidated balance sheet and related statements of operations and cash flows showing the financial position of the Borrower and its Subsidiaries as of the close date of such fiscal quarter and the consolidated results of their operations during such fiscal quarter and the then-elapsed portion of the fiscal year and, starting with the fiscal quarter ending September 30, 2016, setting forth in comparative form the corresponding figures for the corresponding periods of the prior fiscal year, all of which shall be in reasonable detail, which consolidated balance sheet and related statements of operations and cash flows shall be accompanied by customary management’s discussion and analysis and which consolidated balance sheet and related statements of operations and cash flows shall be certified by a Financial Officer of the Borrower on behalf of the Borrower as fairly presenting, in all material respects, the financial position and results of operations of the Borrower and its Subsidiaries on a consolidated basis in accordance with GAAP (subject to normal year-end audit adjustments and the absence of footnotes) (it being understood that the delivery by electronic means shall constitute the ~~Borrower~~ date of ~~quarterly reports on Form 10-Q~~ delivery for purposes of ~~the Borrower and its consolidated Subsidiaries shall satisfy the requirements of this~~ compliance with Section ~~5.04(b) to the extent such quarterly reports include the information specified herein~~6.02(a);.

Appears in 2 contracts

Samples: Credit Agreement (Yellow Corp), Credit Agreement (Yellow Corp)

Financial Statements, Reports, etc. ~~Furnish~~ In the case of the Borrower, furnish to the Administrative ~~Agent (~~Agent, which ~~will promptly~~ shall furnish ~~such information~~ to ~~the Lenders):~~each Lender: (a) within 90 120 days after the end of each fiscal ~~year (commencing with the fiscal year ending December 31~~year, ~~2016), a~~ its consolidated balance sheet and related statements of ~~operations~~income, stockholders’ equity and cash flows ~~and owners’ equity~~ showing the financial ~~position~~ condition of the Borrower and its consolidated Subsidiaries as of the close of such fiscal year and the ~~consolidated~~ results of ~~their~~ its operations and the operations of such Subsidiaries during such ~~year and setting forth in~~ year, together with comparative ~~form the corresponding~~ figures for the ~~prior~~ immediately preceding fiscal year, ~~which consolidated balance sheet and related statements of operations, cash flows and owners’ equity shall be accompanied by customary management’s discussion and analysis and~~ all audited by Deloitte & Touche LLP or other independent public accountants of recognized national standing and accompanied by an opinion of such accountants (which opinion shall not ~~be qualified~~ include (i) an explanatory paragraph expressing substantial doubt about the ability of the Borrower and its consolidated Subsidiaries to continue as ~~to scope of audit~~ a going concern or (ii) any qualification or exception as to the ~~status~~ scope of ~~the Borrower or any Material Subsidiary as a going concern~~such audit, other than solely ~~with respect to, or resulting solely from, an~~ as a result of the upcoming maturity ~~date under~~ of any ~~series of Indebtedness occurring within one year from the time such opinion is delivered~~ Obligations or any ~~potential~~ prospective inability to satisfy ~~a financial maintenance covenant~~ the covenants set forth in Section 6.10 on a future date or in for a future period) to the effect that such consolidated financial statements fairly ~~present, in all material respects,~~ present the financial ~~position~~ condition and results of operations of the Borrower and its consolidated Subsidiaries on a consolidated basis in accordance with GAAP ~~(it being understood that the delivery by the Borrower of annual reports on Form 10-K of the Borrower~~ consistently applied, together with a customary “management discussion and ~~its consolidated Subsidiaries shall satisfy the requirements of this Section 5.04(a) to the extent such annual reports include the information specified herein)~~analysis” provision; (b) within 45 60 days after ~~the end of~~ each ~~of the first three~~ fiscal ~~quarters~~ quarter of each fiscal ~~year (commencing with the fiscal quarter ending June 30~~year, ~~2016), a~~ its consolidated balance sheet and related statements of ~~operations~~ income, stockholders’ equity and cash flows showing the financial ~~position~~ condition of the Borrower and its consolidated Subsidiaries as of the close of such fiscal quarter and the ~~consolidated~~ results of ~~their~~ its operations and the operations of such Subsidiaries during such fiscal quarter and the ~~then-~~then elapsed portion of the fiscal ~~year and~~year, ~~starting with the fiscal quarter ending September 30, 2016, setting forth in~~ and comparative ~~form the corresponding~~ figures for the ~~corresponding~~ same periods of in the ~~prior~~ immediately preceding fiscal year, all of which shall be in reasonable detail, which consolidated balance sheet and related statements of operations and cash flows shall be accompanied by customary management’s discussion and analysis and which consolidated balance sheet and related statements of operations and cash flows shall be certified by a one of its Financial ~~Officer of the Borrower on behalf of the Borrower~~ Officers as fairly ~~presenting, in all material respects,~~ presenting the financial ~~position~~ condition and results of operations of the Borrower and its consolidated Subsidiaries on a consolidated basis in accordance with GAAP (consistently applied, subject to normal year-end audit ~~adjustments~~ adjustments, together with, commencing with the fiscal quarter ended March 31, 2021, a customary “management discussion and analysis” provision; (c) commencing with the ~~absence~~ fiscal month ending January 31, 2021, within 30 days after the end of ~~footnotes)~~ each fiscal month (~~it being understood that~~ or with respect to each fiscal month ending on or prior to December 31, 2021, 45 days), its consolidated balance sheet and related statements of income and cash flows showing the ~~delivery by the Borrower of quarterly reports on Form 10-Q~~ financial condition of the Borrower and its consolidated Subsidiaries during such fiscal month and the then elapsed portion of the fiscal year, all certified by one of its Financial Officers as fairly presenting the financial condition and results of operations of the Borrower and its consolidated Subsidiaries on a consolidated basis in accordance with GAAP consistently applied, subject to normal year-end audit adjustments; (d) concurrently with any delivery of financial statements under clause (a) or (b) above, a certificate of a Financial Officer in the form of Exhibit E (i) certifying that no Event of Default or Default has occurred or, if such an Event of Default or Default has occurred, specifying the nature and extent thereof and any corrective action taken or proposed to be taken with respect thereto and (ii) setting forth computations in reasonable detail satisfactory to the Administrative Agent demonstrating compliance with the covenants contained in Section 6.10; (e) within the time periods required by the Applicable Insurance Regulatory Authority, the Statutory Financial Statement of such Regulated Insurance Company for such fiscal year as filed with the Applicable Insurance Regulatory Authority in such Regulated Insurance Company’s state of domicile, as certified by one of its Financial Officers as fairly presenting the financial condition and results of operations of such Regulated Insurance Company in accordance with SAP, all audited by Deloitte & Touche LLP or other independent public accountants of recognized national standing and accompanied by an opinion of such accountants (which opinion shall not include (i) an explanatory paragraph expressing substantial doubt about the ability of such Regulated Insurance Company to continue as a going concern or (ii) any qualification or exception as to the scope of such audit, other than solely as a result of the upcoming maturity of any Obligations or the prospective inability to satisfy the ~~requirements~~ covenants set forth in Section 6.10 on a future date or for a future period) to the effect that such financial statements fairly present the financial condition and results of ~~this Section 5.04(b)~~ operations of such Regulated Insurance Company, but only to the extent such ~~quarterly reports include~~ Regulated Insurance Company is required by applicable law to obtain, or otherwise elects to obtain, such an audit and opinion; (f) within the time periods required by the Applicable Regulatory Authority, the Statutory Financial Statement of such Regulated Insurance Company for such fiscal quarter as filed with the Applicable Insurance Regulatory Authority in such Regulated Insurance Company’s state of domicile, as certified by one of its Financial Officers as fairly presenting the financial condition and results of operations of such Regulated Insurance Company in accordance with SAP; (g) within 60 days after the beginning of each fiscal year of the Borrower, a detailed consolidated budget for such fiscal year (including a projected consolidated balance sheet and related statements of projected operations and cash flows as of the end of and for such fiscal year and setting forth the assumptions used for purposes of preparing such budget) and, promptly when available and to the extent prepared by the Borrower, any significant revisions of such budget; (h) promptly after the same become publicly available, copies of all periodic and other reports, proxy statements and other materials filed by the Borrower or any Subsidiary with the Securities and Exchange Commission, or any Governmental Authority succeeding to any or all of the functions of said Commission, or with any national securities exchange, or distributed to its shareholders, as the case may be; (i) promptly after the receipt thereof by the Borrower or any of its Subsidiaries, a copy of any “management letter” received by any such Person from its certified public accountants and the management’s response thereto; (j) promptly after the request by any Lender, all documentation and other information ~~specified~~ that such Lender reasonably requests in order to comply with its ongoing obligations under applicable “know your customer” and anti-money laundering rules and regulations, including the USA PATRIOT Act; and (k) promptly, from time to time, such other information regarding the operations, business affairs and financial condition of the Borrower or any Subsidiary, or compliance with the terms of any Loan Document, as the Administrative Agent or any Lender may reasonably request. Notwithstanding anything to the contrary herein);, nothing in this Article V shall require the Borrower to provide such information (x) in respect of which disclosure is prohibited by applicable law or (y) which is subject to attorney-client or similar privilege or constitutes attorney work product.

Appears in 2 contracts

Samples: Credit Agreement (Oscar Health, Inc.), Credit Agreement (Oscar Health, Inc.)

Financial Statements, Reports, etc. Furnish to the Administrative Agent (which will promptly furnish such information to the Lenders): (a) within 120 days after the end of the fiscal year ending December 31, 2016 and within 90 days after the end of each fiscal year ~~(commencing with the fiscal year ending December 31, 2016)~~thereafter, a consolidated balance sheet and related statements of operations, cash flows and owners’ equity showing the financial position of the Borrower and its Subsidiaries as of the close of such fiscal year and the consolidated results of their operations during such year ~~and~~ and, starting with the fiscal year ending December 31, 2016, setting forth in comparative form the corresponding figures for the prior fiscal year, which consolidated balance sheet and related statements of operations, cash flows and owners’ equity shall be accompanied by customary management’s discussion and analysis and audited by independent public accountants of recognized national standing and accompanied by an opinion of such accountants (which opinion shall not be qualified as to scope of audit or as to the status of the Borrower or any Material Subsidiary as a going concern, other than solely with respect to, or resulting solely from, an upcoming maturity date under any series of Indebtedness occurring within one year from the time such opinion is delivered or any potential inability to satisfy a financial maintenance covenant on a future date or in a future period) to the effect that such consolidated financial statements fairly present, in all material respects, the financial position and results of operations of the Borrower and its Subsidiaries on a consolidated basis in accordance with GAAP (it being understood that the delivery by the Borrower of annual reports on Form 10-K (or any successor or comparable form) of the Borrower and its consolidated Subsidiaries shall satisfy the requirements of this Section 5.04(a) to the extent such annual reports include the information specified herein); (b) within 45 60 days after the end of each of the first three fiscal quarters of each fiscal year (commencing with the fiscal quarter ending ~~June~~ September 30, 2016), a consolidated balance sheet and related statements of operations and cash flows showing the financial position of the Borrower and its Subsidiaries as of the close of such fiscal quarter and the consolidated results of their operations during such fiscal quarter and the then-elapsed portion of the fiscal year and, starting with the fiscal quarter ending September 30, ~~2016~~2017, setting forth in comparative form the corresponding figures for the corresponding periods of the prior fiscal year, all of which shall be in reasonable detail, which consolidated balance sheet and related statements of operations and cash flows shall be accompanied by customary management’s discussion and analysis and which consolidated balance sheet and related statements of operations and cash flows shall be certified by a Financial Officer of the Borrower on behalf of the Borrower as fairly presenting, in all material respects, the financial position and results of operations of the Borrower and its Subsidiaries on a consolidated basis in accordance with GAAP (subject to normal year-end audit adjustments and the absence of footnotes) (it being understood that the delivery by the Borrower of quarterly reports on Form 10-Q (or any successor or comparable form) of the Borrower and its consolidated Subsidiaries shall satisfy the requirements of this Section 5.04(b) to the extent such quarterly reports include the information specified herein); provided, that with respect to the fiscal quarter ending September 30, 2016, the requirements under this clause (b) shall be satisfied if the Borrower, at its option, delivers the unaudited consolidated financial statements of the Company for the fiscal quarter ended September 30, 2016 substantially in the form of the unaudited consolidated financial statements of the Company delivered pursuant to Section 4.02(g) of the Original Credit Agreement; (c) (x) concurrently with any delivery of financial statements under clause (a) or (b) above, a certificate of a Financial Officer of the Borrower (i) certifying that no Event of Default or Default has occurred since the date of the last certificate delivered pursuant to this Section 5.04(c) or, if such an Event of Default or Default has occurred, specifying the nature and extent thereof and any corrective action taken or proposed to be taken with respect thereto, (ii) commencing with the end of the first full fiscal quarter ending after the Closing Date, setting forth computations in reasonable detail demonstrating compliance with the Financial Covenant and (iii) setting forth the calculation and uses of the Cumulative Credit for the fiscal period then ended if the Borrower shall have used the Cumulative Credit for any purpose during such fiscal period and (y) concurrently with any delivery of financial statements under clause (a) above, if the accounting firm is not restricted from providing such a certificate by its policies office, a certificate of the accounting firm opining on or certifying such statements stating whether they obtained knowledge during the course of their examination of such statements of any Default or Event of Default (which certificate may be limited to accounting matters and disclaim responsibility for legal interpretations); (d) promptly after the same become publicly available, copies of all periodic and other publicly available reports, proxy statements and, to the extent requested by the Administrative Agent, other materials filed by Holdings (prior to a Qualified IPO), the Borrower or any of the Subsidiaries with the SEC, or after an initial public offering, distributed to its stockholders generally, as applicable; provided, however, that such reports, proxy statements, filings and other materials required to be delivered pursuant to this clause (d) shall be deemed delivered for purposes of this Agreement when posted to the website of the Borrower (or Holdings or any Parent Entity referred to in Section 5.04(i)) or the website of the SEC and written notice of such posting has been delivered to the Administrative Agent; (e) within 90 days (or such later date as the Administrative Agent may agree in its reasonable discretion) after the beginning of each fiscal year (commencing with the fiscal year ending December 31, 2017), a consolidated annual budget for such fiscal year consisting of a projected consolidated balance sheet of the Borrower and its Subsidiaries as of the end of the following fiscal year and the related consolidated statements of projected cash flow and projected income (collectively, the “Budget”), which Budget shall in each case be accompanied by the statement of a Financial Officer of the Borrower to the effect that the Budget is based on assumptions believed by the Borrower to be reasonable as of the date of delivery thereof; (f) upon the reasonable request of the Administrative Agent not more frequently than once a year, an updated Perfection Certificate (or, to the extent such request relates to specified information contained in the Perfection Certificate, such information) reflecting all changes since the date of the information most recently received pursuant to this clause (f) or Section 5.10(f); (g) promptly, from time to time, such other customary information regarding the operations, business affairs and financial condition of Holdings, the Borrower or any of the Subsidiaries, or compliance with the terms of any Loan Document as in each case the Administrative Agent may reasonably request (for itself or on behalf of any Lender); (h) no later than 10 Business Days after the delivery of the financial statements required pursuant to clauses (a) and (b) of this Section 5.04, commencing with the financial statements for the first full fiscal period ending after the Closing Date, upon request of the Administrative Agent, the Borrower shall hold a customary conference call for Lenders; and (i) in the event that Holdings or any Parent Entity reports on a consolidated basis, such consolidated reporting at Holdings or such Parent Entity’s level in a manner consistent with that described in clauses (a) and (b) of this Section 5.04 for the Borrower (together with a reconciliation showing the adjustments necessary to determine compliance by the Borrower and its Subsidiaries with the Financial Covenant) will satisfy the requirements of such paragraphs. The Borrower hereby acknowledges and agrees that all financial statements furnished pursuant to clauses (a), (b) and (d) above are hereby deemed to be Borrower Materials suitable for distribution, and to be made available, to Public Lenders as contemplated by Section 9.17 and may be treated by the Administrative Agent and the Lenders as if the same had been marked “PUBLIC” in accordance with such paragraph (unless the Borrower otherwise notifies the Administrative Agent in writing on or prior to delivery thereof).

Appears in 2 contracts

Samples: Incremental Assumption Agreement (Rackspace Technology, Inc.), Incremental Assumption and Amendment Agreement (Rackspace Technology, Inc.)

Financial Statements, Reports, etc. Furnish to the Administrative Agent (which will promptly furnish such information to the Lenders): (a) within 90 days after the end of each fiscal year (commencing with the fiscal year ending December 31, ~~2016~~2021), a consolidated balance sheet and related consolidated statements of operations, stockholders’ equity and cash flows ~~and owners’ equity~~ showing the financial position of the ~~Borrower~~ Reporting Entity and its Subsidiaries as of the close of such fiscal year and the consolidated results of their operations during such year and setting forth in comparative form the corresponding figures for the prior fiscal year, which consolidated balance sheet and related statements of operations, stockholders’ equity and cash flows ~~and owners’ equity~~ shall be accompanied by customary management’s discussion and analysis and audited by independent public accountants of recognized national standing and accompanied by an opinion of such accountants (which opinion shall not be qualified as to scope of audit or as to the status of the Borrower or any Material Subsidiary as a going ~~concern~~concern on a consolidated basis, other than ~~solely~~ with respect to, or resulting ~~solely~~ from, an upcoming maturity date under any series of ~~Indebtedness occurring within one year from the time such opinion is delivered~~ indebtedness, any breach of a financial maintenance covenant or any potential inability to satisfy a financial maintenance covenant on a future date or in a future period) to the effect that such consolidated financial statements fairly present, in all material respects, the financial position and results of operations of the ~~Borrower~~ Reporting Entity and its Subsidiaries on a consolidated basis in accordance with GAAP (it being understood that the delivery by the ~~Borrower~~ Reporting Entity of annual reports on Form 10-K (or any successor or comparable form) of the ~~Borrower~~ Reporting Entity and its consolidated Subsidiaries shall satisfy the requirements of this Section 5.04(a) to the extent such annual reports include the information specified herein); (b) within 45 days after the end of each of the first three fiscal quarters of each fiscal year (commencing with the fiscal quarter ending ~~June~~ on September 30, ~~2016~~2021), a condensed consolidated balance sheet and related condensed consolidated statements of operations and cash flows showing the financial position of the ~~Borrower~~ Reporting Entity and its Subsidiaries as of the close of such fiscal quarter and the consolidated results of their operations during such fiscal quarter and the then-elapsed portion of the fiscal year ~~and, starting with the fiscal quarter ending September 30, 2016,~~ and setting forth in comparative form the corresponding figures for the corresponding periods of the prior fiscal year, all of which shall be in reasonable detail, which condensed consolidated balance sheet and related condensed consolidated statements of operations and cash flows shall be accompanied by customary management’s discussion and analysis and ~~which consolidated balance sheet and related statements of operations and cash flows~~ shall be certified by a Financial Officer of the ~~Borrower~~ Reporting Entity on behalf of the ~~Borrower~~ Reporting Entity as fairly presenting, in all material respects, the financial position and results of operations of the ~~Borrower~~ Reporting Entity and its Subsidiaries on a consolidated basis in accordance with GAAP (subject to normal year-end audit adjustments and the absence of footnotes) (it being understood that the delivery by the ~~Borrower~~ Reporting Entity of quarterly reports on Form 10-Q (or any successor or comparable form) of the ~~Borrower~~ Reporting Entity and its consolidated Subsidiaries shall satisfy the requirements of this Section 5.04(b) to the extent such quarterly reports include the information specified herein); provided that, with respect to the Transactions and any acquisition or Investments consummated after the Closing Date, the financial statements delivered pursuant to this clause (b) shall not be required to reflect purchase accounting adjustments relating thereto until the delivery of financial statements under clause (a) above; (c) (x) concurrently with any delivery of financial statements under clause (a) or (b) above, a certificate of a Financial Officer of the Borrower (i) certifying that no Event of Default or Default has occurred since the date of the last certificate delivered pursuant to this Section 5.04(c) or, if such an Event of Default or Default has occurred, specifying the nature and extent thereof and any corrective action taken or proposed to be taken with respect thereto, (ii) commencing with the end of the first full fiscal quarter ending after the Closing Date, setting forth computations in reasonable detail demonstrating compliance with the Financial Covenant and (iii) setting forth the calculation and uses of the Cumulative Credit for the fiscal period then ended if the Borrower shall have used the Cumulative Credit (other than pursuant to clause (a) of the definition of “Cumulative Credit”) for any purpose during such fiscal period and (y) concurrently with any delivery of financial statements under clause (a) above, if the accounting firm is not restricted from providing such a certificate by its policies office, use commercially reasonable efforts to deliver a certificate of the accounting firm opining on or certifying such statements stating whether they obtained knowledge during the course of their examination of such statements of any Default or Event of Default (which certificate may be limited to accounting matters and disclaim responsibility for legal interpretations); (d) promptly after the same become publicly available, copies of all periodic and other publicly available reports, proxy statements and, to the extent requested by the Administrative Agent, other materials filed by Holdings, the Borrower or any of the Subsidiaries with the SEC, or after an initial public offering, distributed to its stockholders generally, as applicable; provided, however, that such reports, proxy statements, filings and other materials required to be delivered pursuant to this clause (d) shall be deemed delivered for purposes of this Agreement when posted to the website of the Borrower or the Borrower (or Holdings or any Parent Entity referred to in Section 5.04(h)) or the website of the SEC; (e) within 90 days (or such later date as the Administrative Agent may agree in its reasonable discretion) after the beginning of each fiscal year (commencing with the fiscal year ending on December 31, 2022), a consolidated annual budget for such fiscal year consisting of a projected consolidated balance sheet of the Borrower and its Subsidiaries as of the end of the following fiscal year and the related consolidated statements of projected cash flow and projected income (collectively, the “Budget”), which Budget shall in each case be accompanied by the statement of a Financial Officer of the Borrower to the effect that the Budget is based on assumptions believed by the Borrower to be reasonable as of the date of delivery thereof;

Appears in 2 contracts

Samples: Credit Agreement (United Parks & Resorts Inc.), Credit Agreement (SeaWorld Entertainment, Inc.)

Financial Statements, Reports, etc. Furnish to the Administrative Agent (which will promptly furnish such information to the Lenders): (1) within 120 days following the end of the fiscal year ending on the earlier of (a) on or about January 30, 2016 or (b) the fiscal year ended after the Closing Date, and within 90 days ~~after~~ following the end of each fiscal year ~~(commencing with the fiscal year ending December 31, 2016)~~thereafter, a consolidated balance sheet and related statements of operations, cash flows and owners’ equity showing the financial position of the Borrower and ~~its~~ the Restricted Subsidiaries as of the close of such fiscal year and the consolidated results of ~~their~~ its operations during such fiscal year ~~and~~ and, in each case, starting with the following fiscal year, setting forth in comparative form the corresponding figures for the prior fiscal year, which consolidated balance sheet and related statements of operations, cash flows and owners’ equity ~~shall~~ will be ~~accompanied by customary management’s discussion and analysis and~~ audited by independent public accountants of recognized national ~~standing~~ standing, or such other accountants as are reasonably acceptable to the Administrative Agent, and accompanied by an opinion of such accountants (which opinion shall not be ~~qualified as~~ subject to ~~scope of audit or as to the status of the Borrower or~~ any ~~Material Subsidiary as a~~ “going concern” statement, explanatory note or like qualification or exception (other than ~~solely with respect to~~a “going concern” statement, explanatory note or like qualification or exception resulting solely ~~from,~~ from an upcoming maturity date ~~under any series of Indebtedness~~ occurring within one year from the time such opinion is delivered or ~~any potential inability to satisfy a financial maintenance~~ anticipated (but not actual) covenant ~~on a future date or in a future period~~non-compliance)) to the effect that such consolidated financial statements fairly present, in all material respects, the financial position and results of operations of the Borrower and ~~its~~ the Restricted Subsidiaries on a consolidated basis in accordance with GAAP (it the applicable financial statements delivered pursuant to this clause (1) being ~~understood that~~ the delivery by the Borrower of annual reports on Form 10-K of the Borrower and its consolidated Subsidiaries shall satisfy the requirements of this Section 5.04(a) to the extent such annual reports include the information specified herein“Annual Financial Statements”); (b2) within 60 days following the end of the fiscal quarters ending on or about April 30, 2016 and on or about July 31, 2016, and, thereafter, within 45 days ~~after~~ following the end of each of the first three fiscal quarters of each fiscal ~~year (commencing with the fiscal quarter ending June 30, 2016)~~year, a consolidated balance sheet and related statements of operations and cash flows showing the financial position of the Borrower and ~~its~~ the Restricted Subsidiaries as of the close of such fiscal quarter and the consolidated results of ~~their~~ its operations during such fiscal quarter ~~and~~ and, in each case, the then-elapsed portion of the fiscal year ~~and, starting with the fiscal quarter ending September 30, 2016,~~ and setting forth in comparative form the corresponding figures for the corresponding periods of the prior fiscal year, ~~all of which shall be in reasonable detail,~~ which consolidated balance sheet and related statements of operations and cash flows ~~shall be accompanied by customary management’s discussion and analysis and which consolidated balance sheet and related statements of operations and cash flows shall~~ will be certified by a ~~Financial~~ Responsible Officer of the Borrower on behalf of the Borrower as fairly presenting, in all material respects, the financial position and results of operations of the Borrower and ~~its~~ the Restricted Subsidiaries on a consolidated basis in accordance with ~~GAAP (~~GAAP, subject to normal year-end audit adjustments and the absence of ~~footnotes~~footnotes (the applicable financial statements delivered pursuant to this clause (2) being the “Quarterly Financial Statements” and, together with the Annual Financial Statements, the “Required Financial Statements”); (3) concurrently with any delivery of Required Financial Statements, a certificate of a Financial Officer of the Company: (a) certifying that no Default or Event of Default has occurred and is continuing or, if a Default or Event of Default has occurred and is continuing, specifying the nature and extent thereof and any corrective action taken or proposed to be taken with respect thereto; (b) setting forth the calculation and uses of the Available Amount for the fiscal period then ended if the Borrower has used the Available Amount for any purpose during such fiscal period; (c) certifying a list of all Immaterial Subsidiaries, that each Subsidiary set forth on such list individually qualifies as an Immaterial Subsidiary and that all such Subsidiaries in the aggregate do not exceed the limitation set forth in clause (ii) of the definition of the term “Immaterial Subsidiary;” (d) setting forth, in reasonable detail, the calculation of the Senior Secured First Lien Net Leverage Ratio for the most recent period of four consecutive fiscal quarters as of the close of such fiscal year or such fiscal quarter, as applicable; and (e) certifying a list of all Unrestricted Subsidiaries at such time and that each Subsidiary set forth on such list qualifies as an Unrestricted Subsidiary; (4) promptly after the same become publicly available, copies of all periodic and other publicly available reports, proxy statements and, to the extent requested by the Administrative Agent, other materials publicly filed by Holdings, the Borrower or any Restricted Subsidiary with the SEC or, after an initial public offering, distributed to its stockholders generally, as applicable; (5) within 120 days following the end of the fiscal year ending on or about January 30, 2017, and within 90 days following the end of each full fiscal year ended thereafter, a consolidated annual budget for such fiscal year in the form customarily prepared by the Borrower (the “Budget”), which Budget will in each case be accompanied by the statement of a Financial Officer of the Borrower on behalf of the Borrower to the effect that the Budget is based on assumptions believed by the Borrower to be reasonable as of the date of delivery thereof; (6) upon the reasonable request of the Collateral Agent, concurrently with the delivery of the Annual Financial Statements, an updated Perfection Certificate (or, to the extent such request relates to specified information contained in the Perfection Certificate, such information) reflecting all changes since the date of the information most recently received pursuant to this paragraph (6) or Section 5.10; (7) promptly, from time to time, such other information regarding the operations, business affairs and financial condition of Holdings, the Borrower or any Restricted Subsidiary, in each case, as the Administrative Agent may reasonably request (for itself or on behalf of any Lender); and (8) promptly upon request by the Administrative Agent (so long as the following are obtainable using commercially reasonable measures), copies of any documents described in Section 101(k)(1) of ERISA that the Borrower or any of its ERISA Affiliates may request with respect to any Multiemployer Plan; provided that if the Borrower or any of its ERISA Affiliates has not requested such documents from the administrator or sponsor of the applicable Multiemployer Plan, the Borrower or the applicable ERISA Affiliate shall promptly make a request for such documents or notices from such administrator or sponsor and shall provide copies of such documents and notices promptly after receipt thereof. Anything to the contrary notwithstanding, the obligations in clauses (1) and (2) of this Section 5.04 may be satisfied with respect to financial information of the Borrower and the Restricted Subsidiaries by furnishing (1) the applicable financial statements of Holdings (or any other Parent Entity) or (2) the Borrower’s or Holdings’ (or any such other Parent Entity’s), as applicable, Form 10-K or 10-Q, as applicable, filed with the SEC; provided that with respect to each of the foregoing clauses (1) and (2) (a) to the extent such information relates to Holdings (or a Parent Entity), such information is accompanied by consolidating information that explains in reasonable detail the differences between the information relating to Holdings (or such Parent Entity), on the one hand, and the information relating to the Borrower and the Restricted Subsidiaries on a standalone basis, on the other hand, and (b) to the extent such information is in lieu of information required to be provided under Section 5.04(1), such materials are accompanied by a report and opinion of independent public accountants of recognized national standing, or such other accountants as are reasonably acceptable to the Administrative Agent, and accompanied by an opinion of such accountants (which opinion shall not be subject to any “going concern” statement, explanatory note or like qualification or exception (other than a “going concern” statement, explanatory note or like qualification or exception resulting solely from an upcoming maturity date occurring within one year from the time such opinion is delivered or anticipated (but not actual) covenant non-compliance)) (it being understood and agreed that ~~the delivery by~~ if, in compliance with this paragraph, (x) the Borrower provides audited financial statements of ~~quarterly reports~~ Holdings (or any other Parent Entity) and related report and opinion of accountants with respect thereto in lieu of information required to be provided under Section 5.04(1), no such audited financial information, opinion or report shall be required with respect to the Borrower, (y) the Borrower provides unaudited financial statements of Holdings (or any other Parent Entity) in lieu of information required to be provided under Section 5.04(2), no such unaudited financial information shall be required with respect to the Borrower and (z) the Borrower provides a Budget of Holdings and accompanying statement (or any other Parent Entity) in lieu of information required to be provided under Section 5.04(5), no such Budget shall be required with respect to the Borrower; provided that for the avoidance of doubt, with respect to the foregoing clauses (x), (y) and (z) (i) to the extent such information relates to Holdings (or a Parent Entity), such information is accompanied by consolidating information that explains in reasonable detail the differences between the information relating to Holdings (or such Parent Entity), on ~~Form 10~~the one hand, and the information relating to the Borrower and the Restricted Subsidiaries on a standalone basis, on the other hand, and (ii) to the extent such information is in lieu of information required to be provided under Section 5.04(1), such materials are accompanied by a report and opinion of independent public accountants of recognized national standing, or such other accountants as are reasonably acceptable to the Administrative Agent, and accompanied by an opinion of such accountants (which opinion shall not be subject to any “going concern” statement, explanatory note or like qualification or exception (other than a “going concern” statement, explanatory note or like qualification or exception resulting solely from an upcoming maturity date occurring within one year from the time such opinion is delivered or anticipated (but not actual) covenant non-Q compliance). The obligations in clauses (1) and (2) of this Section 5.04 may be satisfied by delivery of financial information of the Borrower and its ~~consolidated~~ Subsidiaries ~~shall satisfy~~ so long as such financial statements include a reasonably detailed presentation, either on the ~~requirements~~ face of the financial statements or in the footnotes thereto, of the financial condition and results of operations of the Borrower and the Restricted Subsidiaries separate from the financial condition and results of operations of the Unrestricted Subsidiaries of the Borrower. Documents required to be delivered pursuant to this Section ~~5.04(b) to the extent such quarterly reports include the information specified herein~~5.04 may be delivered electronically in accordance with Section 10.01(5);.

Appears in 2 contracts

Samples: Term Loan Credit Agreement (PET Acquisition LLC), Term Loan Credit Agreement (PET Acquisition LLC)

Financial Statements, Reports, etc. ~~Furnish~~ Keep adequate records and books of account with respect to its business activities, in which proper entries are made in accordance with GAAP reflecting all financial transactions; and furnish to the Administrative Agent (which ~~will promptly~~ shall furnish ~~such information~~ to ~~the Lenders):~~each Lender: (a) as soon as available, and in any event within 90 105 days after the ~~end~~ close of each fiscal year (commencing with the fiscal year ending December 31, ~~2016~~2014), ~~a consolidated~~ balance ~~sheet~~ sheets as of the end of such fiscal year and the related statements of operations, cash ~~flows~~ flow and ~~owners~~members’ ~~equity showing the financial position~~ surplus for such fiscal year, on a consolidated basis for Holdings and its subsidiaries, which consolidated statements shall be audited and certified (without qualification) by a firm of independent certified public accountants of recognized standing selected by the Borrower and ~~its Subsidiaries as of~~ reasonably acceptable to the ~~close of such fiscal year~~ Administrative Agent (it being agreed that Deloitte & Touche LLP is acceptable to the Administrative Agent), and ~~the consolidated results of their operations during such year and setting~~ shall set forth in comparative form ~~the~~ corresponding figures for the ~~prior~~ preceding fiscal year, ~~which consolidated balance sheet and related statements of operations, cash flows and owners’ equity shall be accompanied by customary management’s~~ together with a “management discussion and ~~analysis~~ analysis” in form consistent with the “management discussion and ~~audited by independent public accountants~~ analysis” delivered in respect of ~~recognized national standing and accompanied by an opinion of such accountants~~ the Existing Notes (which ~~opinion shall not~~ may be qualified as to scope of audit or as to the status of the Borrower or any Material Subsidiary as a going concern, other than solely with respect to, or resulting solely from, an upcoming maturity date under any series of Indebtedness occurring within one year from the time such opinion is delivered or any potential inability to satisfy a financial maintenance covenant on a future date or set forth in a ~~future period) to~~ separate document and not included with the ~~effect that such consolidated~~ audited financial statements fairly present, in all material respects, the financial position and results of operations of the Borrower and its Subsidiaries on a consolidated basis in accordance with GAAP (it being understood that the delivery by the Borrower of annual reports on Form 10-K of the Borrower and its consolidated Subsidiaries shall satisfy the requirements of this Section 5.04(a) to the extent such annual reports include the information specified hereinstatements); (b) within 45 days after the end of each of the first three fiscal quarters of each fiscal ~~year (commencing with the fiscal quarter ending June 30~~year, ~~2016), a~~ its consolidated balance sheet and related statements of ~~operations~~ operations, cash flow and ~~cash flows~~ members’ surplus showing the financial ~~position~~ condition of ~~the Borrower~~ Holdings and its ~~Subsidiaries~~ consolidated subsidiaries as of the close of such fiscal quarter and the ~~consolidated~~ results of ~~their~~ its operations and the operations of such Subsidiaries during such fiscal quarter and the ~~then-~~then elapsed portion of the fiscal ~~year~~ year, and, ~~starting~~ other than with respect to quarterly reports during the remainder of the first fiscal ~~quarter ending September 30~~year after the Closing Date, ~~2016, setting forth in~~ comparative ~~form the corresponding~~ figures for the ~~corresponding~~ same periods of in the ~~prior~~ immediately preceding fiscal year, ~~all of~~ which financial statements shall ~~be in reasonable detail, which consolidated balance sheet and related statements of operations and cash flows~~ have been subject to a SAS 100 review (or other similar review by Holdings’s accountants if otherwise available) or shall ~~be accompanied by customary management’s discussion and analysis and which consolidated balance sheet and related statements of operations and cash flows shall be~~ have been certified by ~~a Financial Officer of the Borrower on behalf of the Borrower~~ Holdings’s chief financial officer as fairly ~~presenting, in all material respects,~~ presenting the financial ~~position~~ condition and results of operations of ~~the Borrower~~ Holdings and its ~~Subsidiaries~~ consolidated subsidiaries on a consolidated basis in accordance with GAAP (consistently applied, subject to normal year-end audit adjustments and the absence of footnotes~~) (it being understood that~~ , together with a “management discussion and analysis” in form consistent with the ~~delivery by the Borrower of quarterly reports on Form 10-Q~~ “management discussion and analysis” delivered in respect of the ~~Borrower~~ Existing Notes (which may be set forth in a separate document and ~~its consolidated Subsidiaries shall satisfy~~ not included with the ~~requirements of this Section 5.04(b~~quarterly financial statements); (c) to the extent furnished to lenders under the Revolving Credit Facility, substantially concurrently with such ~~quarterly~~ furnishing, the financial statements required by Section 4.1(a)(i) of the Revolving Credit Facility; (d) concurrently with the delivery of financial statements under clauses (a) and (b) above, (i) a Compliance Certificate executed by the chief financial officer of the Borrower (A) certifying that no Event of Default or, to the knowledge of the chief financial officer, no Default has occurred or, if such an Event of Default or Default has occurred, specifying the nature and extent thereof and any corrective action taken or proposed to be taken with respect thereto and (B) setting forth computations in reasonable detail satisfactory to the Administrative Agent of the Available Amount (and the application of amounts thereof, if any, during the period covered by such financial statements) and in the case of a certificate delivered with the financial statements required by paragraph (a) above, setting forth the Borrower’s calculation of Excess Cash Flow and (ii) in the case of a certificate delivered with the financial statements required by paragraph (a) above, beginning with the certificate delivered in respect of the fiscal year ending December 31, 2015, a Perfection Certificate Supplement or a certificate of a Financial Officer of the Borrower confirming that there has been no change in such information since the date of the Perfection Certificate or latest Perfection Certificate Supplement delivered pursuant to the Guarantee and Collateral Agreement; (e) not later than 30 days following the receipt thereof, copies of all management letters and other material reports ~~include~~ submitted to Holdings or its subsidiaries by its accountants in connection with such financial statements, if any; (f) not later than 45 days after the beginning of each fiscal year, projections of the Holding’s consolidated balance sheets and related statements of operations and cash flow for the next fiscal year, quarter by quarter; (g) promptly after the sending or filing thereof, copies of (i) any proxy statements, financial statements or reports that any Loan Party or any Restricted Subsidiary has made generally available to its members and (ii) any regular, periodic and special reports or registration statements or prospectuses that any Loan Party or any Restricted Subsidiary files with the U.S. Securities and Exchange Commission or any other Governmental Authority, or any securities exchange; provided, however, that with respect to each of the items to be furnished to the Administrative Agent and the Lenders pursuant to this clause (g), each such item shall be deemed to be so furnished to the extent it is posted to a secure, password-protected website to which the Administrative Agent has been granted access and such Loan Party has provided the Administrative Agent and the Lenders with written notice that such item has been posted; (h) [reserved]; (i) promptly after the request by any Lender, all documentation and other information ~~specified herein~~that such Lender reasonably requests in order to comply with its ongoing obligations under applicable “know your customer” and anti-money laundering rules and regulations, including the USA PATRIOT Act; (j) within 120 days after the beginning of each fiscal year, at the request of the Administrative Agent or of the Required Lenders and, upon reasonable prior notice, hold a telephonic conference call with all Lenders who choose to participate, at the expense of the participating Lenders, at which meeting the financial results of the previous fiscal year, the financial condition of Holdings and its subsidiaries and the projections presented for the current fiscal year of Holdings shall be reviewed; (k) [reserved;] (l) at any time that any of the Borrower’s Subsidiaries is an Unrestricted Subsidiary (other than with respect to Xxxx Rental Finance Corp.), then the financial statements required by Sections 5.04(a) and (b) shall attach unaudited consolidating financial statements with respect to such Unrestricted Subsidiary (or, in the case of financial statements required by Section 5.04(a), audited consolidating financial statements if required by GAAP) unless (i) such Unrestricted Subsidiary owns tangible assets that have an aggregate fair market value of less than 2.5% of the Consolidated Tangible Assets as of the last day of the most recent fiscal quarter for which financial statements have been delivered pursuant to Section 5.04(a) or (b) and has revenues that would account for less than 2.5% of the total consolidated revenues of Holdings for the last four fiscal quarters ended as of the last day of the most recent fiscal quarter for which financial statements have been delivered pursuant to Section 5.04(a) or (b) and (ii) taken together, all such Unrestricted Subsidiaries collectively own tangible assets that have an aggregate fair market value of less than 5.0% of the Consolidated Tangible Assets as of the last day of the most recent fiscal quarter for which financial statements have been delivered pursuant to Section 5.04(a) or (b) and collectively have revenue that would account for less than 5.0% of the total consolidated revenues of Holdings for the last four fiscal quarters ended as of the last day of the most recent fiscal quarter for which financial statements have been delivered pursuant to Section 5.04(a) or (b); (m) [reserved]; and (n) such other reports and information (financial or otherwise) as the Administrative Agent may reasonably request from time to time in connection with any Collateral or any Loan Party’s financial condition or business. The Borrower hereby acknowledges and agrees that all financial statements and certificates furnished pursuant to paragraphs (a) and (b) above are hereby deemed to be Borrower Materials suitable for distribution, and to be made available, to Public Lenders as contemplated by the fourth paragraph of Section 9.01 and may be treated by the Administrative Agent and the Lenders as if the same had been marked “PUBLIC” in accordance with such paragraph.

Appears in 2 contracts

Samples: Second Lien Credit Agreement (Neff Corp), Second Lien Credit Agreement (Neff Corp)

Appears in 2 contracts

Samples: Credit Agreement (Calpine Corp), Credit Agreement (Calpine Corp)

Appears in 2 contracts

Samples: Credit Agreement (School Specialty Inc), Credit Agreement (School Specialty Inc)

Financial Statements, Reports, etc. ~~Furnish~~ In the case of the Borrower, furnish to the Administrative ~~Agent (~~Agent, which ~~will promptly~~ shall furnish ~~such information~~ to ~~the Lenders):~~each Lender: (a) ~~within 90 days after the end of each fiscal year~~ (~~commencing with~~ i) subject to any Financial Statement Margin Increases required pursuant to Section 2.06(d), for the fiscal year ending December 31, ~~2016)~~2011, a on or prior to September 30, 2012 and (ii) for each fiscal year thereafter, by April 15 of the following fiscal year, its consolidated balance sheet and related statements of ~~operations~~income, stockholders’ equity and cash flows ~~and owners’ equity~~ showing the financial ~~position~~ condition of the Borrower and its consolidated Subsidiaries as of the close of such fiscal year and the ~~consolidated~~ results of ~~their~~ its operations and the operations of such Subsidiaries during such ~~year and setting forth in~~ fiscal year, together with comparative ~~form the corresponding~~ figures for the ~~prior~~ immediately preceding fiscal ~~year~~year commencing with the fiscal year ended December 31, ~~which consolidated balance sheet and related statements of operations~~2013, ~~cash flows and owners’ equity shall be accompanied by customary management’s discussion and analysis and~~ all audited by Ernst & Young LLP or other independent public accountants of recognized national standing and accompanied by an opinion of such accountants (which opinion shall ~~not~~ be ~~qualified as to scope of audit~~ without a “going concern” or like qualification or exception and without any qualification or exception as to the ~~status~~ scope of ~~the Borrower or any Material Subsidiary as~~ such audit (other than a “going concern~~, other than~~ ” explanatory note or similar qualification or exception solely with respect to, or resulting ~~solely~~ from, ~~an upcoming~~ the fact that the final maturity date ~~under~~ of any ~~series~~ of ~~Indebtedness occurring within~~ the Term Loans hereunder is less than one year ~~from~~ after the ~~time~~ date of such ~~opinion is delivered or any potential inability to satisfy a financial maintenance covenant on a future date or in a future period~~opinion)) to the effect that such consolidated financial statements fairly ~~present, in all material respects,~~ present the financial ~~position~~ condition and results of operations of the Borrower and its consolidated Subsidiaries on a consolidated basis in accordance with GAAP ~~(it being understood that the delivery by the Borrower of annual reports on Form 10-K of the Borrower and its consolidated Subsidiaries shall satisfy the requirements of this Section 5.04(a)~~ consistently applied, together with a discussion provision reasonably acceptable to the ~~extent such annual reports include the information specified herein)~~Administrative Agent; (b) (i) subject to any Financial Statement Margin Increases required pursuant to Section 2.06(d), for each of the fiscal quarters ending September 30, 2011, March 31, 2012 and June 30, 2012, on or prior to September 30, 2012 and (ii) for each of the first three fiscal quarters of each fiscal year thereafter, within 45 60 days after the end of each of the first three fiscal quarters of each fiscal ~~year (commencing with the fiscal quarter ending June 30~~year, ~~2016), a~~ its consolidated balance sheet and related statements of ~~operations~~ income, and cash flows showing the financial ~~position~~ condition of the Borrower and its consolidated Subsidiaries as of the close of such fiscal quarter and the ~~consolidated~~ results of ~~their~~ its operations and the operations of such Subsidiaries during such fiscal quarter and the ~~then-~~then elapsed portion of the fiscal year, and comparative figures for the same periods in the immediately preceding fiscal year ~~and, starting~~ commencing with the fiscal ~~quarter ending September 30~~year ended December 31, ~~2016, setting forth in comparative form the corresponding figures for the corresponding periods of the prior fiscal year~~2013 (or earlier if available), all of which shall be in reasonable detail, which consolidated balance sheet and related statements of operations and cash flows shall be accompanied by customary management’s discussion and analysis and which consolidated balance sheet and related statements of operations and cash flows shall be certified by a one of its Financial ~~Officer of the Borrower on behalf of the Borrower~~ Officers as fairly ~~presenting, in all material respects,~~ presenting the financial ~~position~~ condition and results of operations of the Borrower and its consolidated Subsidiaries on a consolidated basis in accordance with GAAP (consistently applied, subject to normal year-end audit ~~adjustments~~ adjustments, together with a discussion provision reasonably acceptable to the Administrative Agent and ~~the~~ absence of footnotes; (c) concurrently with any delivery of financial statements under paragraph (~~it being understood~~ a) or (b) above, a certificate of a Financial Officer in the form of Exhibit H (i) certifying that no Event of Default or Default has occurred or, if such an Event of Default or Default has occurred, specifying the ~~delivery~~ nature and extent thereof and any corrective action taken or proposed to be taken with respect thereto, (ii) setting forth computations in reasonable detail reasonably satisfactory to the Administrative Agent demonstrating compliance with the covenant contained in Section 6.10 and, in the case of a certificate delivered with the financial statements required by paragraph (a) above, setting forth the Borrower’s calculation of Excess Cash Flow and (iii) setting forth the net xxxx-to-market position for the Interest Rate/Currency Hedging Agreements and Eligible Commodity Hedging Agreements, in each case secured by Liens permitted pursuant to Section 6.02(k), respectively, then outstanding for each counterparty, as reasonably determined by the ~~Borrower~~ Borrower; (d) if, as a result of ~~quarterly reports on Form 10-Q~~ any change in accounting principles and policies from those used in the preparation of the financial statements delivered pursuant to Section 3.05(a), the consolidated financial statements of the Borrower and its ~~consolidated~~ Subsidiaries ~~shall satisfy the requirements of this~~ delivered pursuant to Section 5.04(a) or 5.04(b) will differ in any material respect from the consolidated financial statements that would have been delivered pursuant to such subdivisions had no such change in accounting principles and policies been made and if (and only if) the Borrower has made a request as described in the last paragraph of Section 1.02 with respect to one or more such changes (unless and until an amendment as contemplated by such last paragraph of Section 1.02 has been approved by the Required Lenders), then, together with the first delivery of such financial statements after such change, one or more statements of reconciliation in form and substance reasonably satisfactory to Administrative Agent; (e) within 30 days after the beginning of each fiscal year of the Borrower, a detailed consolidated budget for such fiscal year (including a projected consolidated balance sheet and related statements of projected operations and cash flows as of the end of and for such fiscal year and setting forth the assumptions used for purposes of preparing such budget) and, promptly when available, any significant revisions of such budget; (f) promptly after the same become publicly available, copies of all periodic and other reports, proxy statements and other materials filed by Intermediate Holdings, the Borrower or any Subsidiary with the Securities and Exchange Commission, or any Governmental Authority succeeding to any or all of the functions of said Commission, or with any national securities exchange, or distributed to its shareholders, as the case may be; (g) promptly after the receipt thereof by Intermediate Holdings or the Borrower or any of their respective subsidiaries, a copy of any “management letter” received by any such Person from its certified public accountants and the management’s response thereto; (h) promptly after the request by any Lender, all documentation and other information that such Lender reasonably requests in order to comply with its ongoing obligations under applicable “know your customer” and anti-money laundering rules and regulations, including the USA PATRIOT Act; and (i) promptly, from time to time, such other information regarding the operations, business affairs and financial condition of Intermediate Holdings, the Borrower or any Subsidiary, or compliance with the terms of any Loan Document, as the Administrative Agent may reasonably request. Documents required to be delivered pursuant to Section 5.04(a), (b) or (f) (to the extent any such ~~quarterly reports include~~ documents are filed with the ~~information specified herein);~~Securities and Exchange Commission) may be delivered electronically and if so delivered, shall be deemed to have been delivered on the date on which such documents are posted on the publicly available website of the Securities and Exchange Commission.

Appears in 2 contracts

Samples: Credit Agreement (Dynegy Inc.), Credit Agreement (Dynegy Inc.)

Financial Statements, Reports, etc. Furnish to the Administrative Agent (~~which~~ who will ~~promptly furnish such information~~ distribute to ~~the Lenders~~each Lender): (a) after the Effective Date, within 90 days after the end of each fiscal year (~~commencing with~~ or, in the case of the fiscal year ~~ending December 31~~in which the Effective Date occurs, ~~2016~~120 days), a its consolidated balance sheet and related statements of ~~operations,~~ income and cash flows ~~and owners’ equity~~ showing the financial ~~position~~ condition of the Borrower and its ~~Subsidiaries~~ consolidated subsidiaries as of the close of such fiscal year and the ~~consolidated~~ results of ~~their~~ its operations and the operations of such Persons during such ~~year and setting forth in~~ year, together with comparative ~~form the corresponding~~ figures for the ~~prior~~ immediately preceding fiscal year, ~~which consolidated balance sheet~~ all in reasonable detail and ~~related statements of operations~~prepared in accordance with GAAP, ~~cash flows and owners’ equity shall be accompanied by customary management’s discussion and analysis and~~ all audited by KPMG LLP or other independent public accountants of recognized national standing and accompanied by an opinion of such accountants (which opinion shall ~~not~~ be ~~qualified as to scope of audit~~ without a “going concern” or like qualification or exception and without any qualification or exception as to the ~~status~~ scope of ~~the Borrower or any Material Subsidiary as a going concern,~~ such audit (other than solely with respect to, or solely resulting ~~solely~~ from, an upcoming ~~maturity date~~ Maturity Date under ~~any series of Indebtedness~~ this Agreement occurring within ~~one year~~ twelve months from the time such opinion is ~~delivered or any potential inability to satisfy a financial maintenance covenant on a future date or in a future period~~delivered)) to the effect that such consolidated financial statements fairly ~~present,~~ present in all material ~~respects,~~ respects the financial ~~position~~ condition and results of operations of the Borrower and its ~~Subsidiaries~~ consolidated subsidiaries on a consolidated basis in accordance with GAAP (it being understood that the delivery by the Borrower of annual reports on Form 10-K of the Borrower and its consolidated Subsidiaries shall satisfy the requirements of this Section 5.04(a) to the extent such annual reports include the information specified herein)GAAP; (b) after the Effective Date, within 45 days (or, in the case of the fiscal quarter in which the Effective Date occurs and the first full fiscal quarter ending after the Effective Date, 60 days) after the end of each of the first three fiscal quarters of each fiscal ~~year (commencing with the fiscal quarter ending June 30~~year, ~~2016), a~~ its consolidated balance sheet and related statements of ~~operations~~ income and cash flows showing the financial ~~position~~ condition of the Borrower and its ~~Subsidiaries~~ consolidated subsidiaries as of the close of such fiscal quarter and the ~~consolidated~~ results of ~~their~~ its operations and the operations of such Persons during such fiscal quarter and the ~~then-~~then elapsed portion of the fiscal ~~year and~~year, ~~starting with the~~ and for each fiscal quarter ~~ending September 30~~occurring after the first anniversary of the Effective Date, ~~2016, setting forth in~~ comparative ~~form the corresponding~~ figures for the ~~corresponding~~ same periods of in the ~~prior~~ immediately preceding fiscal year, all of which shall be in reasonable detail, which consolidated balance sheet and related statements of operations and cash flows shall be accompanied by customary management’s discussion and analysis and which consolidated balance sheet and related statements of operations and cash flows shall be certified by a Financial Officer ~~of the Borrower on behalf of the Borrower~~ as fairly ~~presenting,~~ presenting in all material ~~respects,~~ respects the financial ~~position~~ condition and results of operations of the Borrower and its ~~Subsidiaries~~ consolidated subsidiaries on a consolidated basis in accordance with ~~GAAP (~~GAAP, subject to normal year-end audit adjustments and the absence of footnotes; (c) concurrently with any delivery of Section 5.04 Financials, a certificate of a Financial Officer of the Borrower (~~it being understood~~ i) certifying that to such Financial Officer’s knowledge, no Event of Default or Default has occurred and is continuing or, if such an Event of Default or Default has occurred and is continuing, reasonably specifying the nature thereof and (ii) setting forth (x) to the extent applicable, computations in reasonable detail of the Adjusted Consolidated First Lien Leverage Ratio as of the last day of the fiscal quarter or year, as the case may be, covered by such Section 5.04 Financials and demonstrating compliance with Section 6.10 and (y) in the case of a certificate delivered with the financial statements required by paragraph (a) above, setting forth the Borrower’s calculation of Excess Cash Flow; (d) within 90 days after the commencement of each fiscal year of the Borrower that begins after the Effective Date, a detailed consolidated budget for such fiscal year, including a projected consolidated balance sheet and related statements of projected operations and cash flows as of the end of and for such fiscal year and setting forth the material assumptions used for purposes of preparing such budget; (e) simultaneously with the delivery by of the ~~Borrower~~ Section 5.04 Financials, the related consolidating financial statements reflecting the adjustments necessary to eliminate the accounts of ~~quarterly reports on Form 10~~Unrestricted Subsidiaries from such consolidated financial statements (but only to the extent such Unrestricted Subsidiaries would not be considered “minor” under Rule 3-Q 10 of Regulation S-X under the Securities Act); (f) simultaneously with the delivery of the Section 5.04 Financial Statements, management’s discussion and analysis of the important operational and financial developments of the Borrower and its ~~consolidated~~ Restricted Subsidiaries during the respect fiscal year or fiscal quarter, as the case may be; (g) after the request by any Lender (through the Administrative Agent), all documentation and other information that such Lender reasonably requests in order to comply with its ongoing obligations under applicable “know your customer” and anti-money laundering rules and regulations, including the USA PATRIOT Act; (h) promptly, from time to time, such other information regarding the operations, business, legal or corporate affairs and financial condition of the Borrower or any Restricted Subsidiary, or compliance with the terms of any Loan Document, as the Administrative Agent or any Lender (through the Administrative Agent) may reasonably request; (i) concurrently with the delivery of the Pricing Certificate, the Borrower shall ~~satisfy~~ deliver to the ~~requirements~~ Collateral Agent a certificate executed by a Responsible Officer of ~~this Section 5.04(b~~the Borrower attaching updated versions of the Schedules (other than Schedule IV) to the ~~extent~~ Guarantee and Collateral Agreement or in the alternative, setting forth any and all changes to (or confirming that there has been no change in) the information set forth in or contemplated by such Schedules since the date of the most recent certificate delivered pursuant to this paragraph (i); and (j) within the time frame set forth in Section 7.02, on each occasion permitted therein, a Notice of Intent to Cure if a Cure Right will be exercised thereunder. Information required to be delivered pursuant to this Section 5.04 shall be deemed to have been delivered if such information, or one or more annual or quarterly reports ~~include~~ containing such information, shall have been posted by the ~~information specified herein);~~Administrative Agent on a SyndTrak, IntraLinks or similar site to which the Lenders have been granted access or shall be available on the website of the Securities and Exchange Commission at xxxx://xxx.xxx.xxx or on the website of the Borrower. Information required to be delivered pursuant to this Section 5.04 may also be delivered by electronic communications pursuant to procedures approved by the Administrative Agent. Each Lender shall be solely responsible for timely accessing posted documents and maintaining its copies of such documents. Notwithstanding the foregoing, if (i) the Borrower’s financial statements are consolidated with any Parent’s financial statements or (ii) any Parent is subject to periodic reporting requirements of the Securities Exchange Act of 1934 and the Borrower is not, then the requirement to deliver consolidated financial statements of the Borrower and its Restricted Subsidiaries (and the related opinion from independent public accountants) pursuant to Section 5.04(a) and (b) may be satisfied by delivering consolidated financial statements of such Parent (and the related opinion from independent public accountants) accompanied by a schedule showing, in reasonable detail, consolidating adjustments, if any, attributable solely to such Parent and any of their Subsidiaries that are not the Borrower or any of its Restricted Subsidiaries.

Appears in 2 contracts

Samples: Credit Agreement (Ceridian HCM Holding Inc.), Credit Agreement (Ceridian HCM Holding Inc.)

Financial Statements, Reports, etc. Furnish to the Administrative Agent (which will promptly furnish such information to the Lenders): (a) ~~within~~ Within 90 days ~~after~~ (or such other time period as specified in the ~~end~~ SEC’s rules and regulations for the filing of annual reports on Form 10-K), for each fiscal year (commencing with the fiscal year ending December 31, ~~2016~~2008), a consolidated balance sheet and related statements of operations, cash flows and owners’ equity showing the financial position of the Borrower and its Subsidiaries as of the close of such fiscal year and the consolidated results of ~~their~~ its operations during such year ~~and~~ and, starting with the fiscal year ending December 31, 2008, setting forth in comparative form the corresponding figures for the prior fiscal year, which consolidated balance sheet and related statements of operations, cash flows and owners’ equity shall be ~~accompanied by customary management’s discussion and analysis and~~ audited by independent public accountants of recognized national standing and accompanied by an opinion of such accountants (which ~~opinion~~ shall not be qualified as to scope of audit or as to the status of the Borrower or any Material Subsidiary as a going concern, other than solely with respect to, or resulting solely from, an upcoming maturity date under any series of Indebtedness occurring within one year from the time such opinion is delivered or any potential inability to satisfy a financial maintenance covenant on a future date or in a future period) to the effect that such consolidated financial statements fairly present, in all material respects, the financial position and results of operations of the Borrower and its Subsidiaries on a consolidated basis in accordance with GAAP (it being understood that the delivery by the Borrower of annual reports on Form 10-K of the Borrower and its consolidated Subsidiaries shall satisfy the requirements of this Section 5.04(a) to the extent such annual reports include the information specified herein); (b) ~~within~~ Within 45 days ~~after~~ (or such other time period as specified in the SEC’s rules and regulations for the filing of quarterly reports on Form 10 Q) (or, in the case of the first fiscal quarter for which quarterly financial statements are required to be delivered hereunder, within 75 days following the end of such fiscal quarter), for each of the first three fiscal quarters of each fiscal ~~year (commencing with the fiscal quarter ending June 30, 2016)~~year, a consolidated balance sheet and related statements of operations and cash flows showing the financial position of the Borrower and its Subsidiaries as of the close of such fiscal quarter and the consolidated results of ~~their~~ its operations during such fiscal quarter and the ~~then-~~then elapsed portion of the fiscal year ~~and, starting with the fiscal quarter ending September 30, 2016,~~ and setting forth in comparative form the corresponding figures for the corresponding periods of the prior fiscal year, all of which shall be in reasonable ~~detail, which consolidated balance sheet and related statements of operations and cash flows shall be accompanied by customary management’s discussion and analysis~~ detail and which consolidated balance sheet and related statements of operations and cash flows shall be certified by a Financial Officer of the Borrower on behalf of the Borrower as fairly presenting, in all material respects, the financial position and results of operations of the Borrower and its Subsidiaries on a consolidated basis in accordance with GAAP (subject to normal ~~year-~~year end audit adjustments and the absence of footnotes) (it being understood that the delivery by the Borrower of quarterly reports on Form ~~10-~~10 Q of the Borrower and its consolidated Subsidiaries shall satisfy the requirements of this Section 5.04(b) to the extent such quarterly reports include the information specified herein);

Appears in 2 contracts

Samples: Credit Agreement (Verso Paper Corp.), Credit Agreement (Verso Paper Corp.)

Financial Statements, Reports, etc. Furnish to the Administrative Agent (~~which will promptly furnish such information to the Lenders~~with sufficient copies for each Lender): (a) ~~within~~ as soon as available and in any event before the earlier to occur of 90 days ~~after~~ following the end of ~~each~~ a fiscal year ~~(commencing~~ of the Company and the date such statements are required to be filed with the ~~fiscal year ending December 31~~Securities and Exchange Commission after giving effect to any permitted extension pursuant to Rule 12b-25 of the Securities and Exchange Commission as it may be amended or replaced and which is applied for by the Company, ~~2016), a consolidated balance sheet and related~~ audited Consolidated financial statements of ~~operations, cash flows and owners’ equity showing~~ the ~~financial position of the Borrower~~ Company and its Subsidiaries as which shall include consolidated and consolidating balance sheets, income statements and statements of cash flow for the ~~close of~~ Company and its Subsidiaries for such fiscal year and ~~the consolidated results~~ as of ~~their operations during such year~~ and ~~setting forth in comparative form the corresponding figures~~ for the prior fiscal ~~year, which consolidated balance sheet and related~~ year (provided that in the case of consolidating statements of ~~operations,~~ cash flows ~~and owners’ equity~~ only, such consolidating statements shall be ~~accompanied by customary management’s discussion and analysis and audited by independent public accountants of recognized national standing and~~ prepared on a Segment Level Basis), accompanied by an unqualified opinion thereon of ~~such accountants (which opinion shall not be qualified as to scope of audit~~ KPMG, LLP or as another nationally recognized independent registered public accounting firm reasonably acceptable to the ~~status of~~ Lenders (the Borrower or any Material Subsidiary as a going concern, other than solely with respect to, or resulting solely from, an upcoming maturity date under any series of Indebtedness occurring within one year from the time such opinion is delivered or any potential inability to satisfy a financial maintenance covenant on a future date or in a future period) to the effect that such consolidated financial statements fairly present, in all material respects, the financial position and results of operations of the Borrower and its Subsidiaries on a consolidated basis in accordance with GAAP (it being understood that the delivery by the Borrower of annual reports on Form 10-K of the Borrower and its consolidated Subsidiaries shall satisfy the requirements of this Section 5.04(a) to the extent such annual reports include the information specified herein“Auditor”); (b) ~~within 45~~ as soon as available and in any event before the earlier to occur of 50 days ~~after~~ following the end of each of the first three fiscal quarters of ~~each fiscal year (commencing~~ the Company and the date such statements are required to be filed with the ~~fiscal quarter ending June 30~~Securities and Exchange Commission after giving effect to any permitted extension pursuant to Rule 12b-25 as it may be amended or replaced and which is applied for by the Company, ~~2016), a~~ interim management-prepared consolidated ~~balance sheet~~ and ~~related~~ consolidating financial statements of ~~operations and cash flows showing~~ the ~~financial position of the Borrower~~ Company and its Subsidiaries which shall include consolidated balance sheets, income statements and statements of cash flow for the Company and its Subsidiaries (provided that in the case of consolidating statements of cash flows only, such consolidating statements shall be prepared on a Segment Level Basis) (and, in each instance, such financial information shall be in substantially the same format and presentation as reflected in the financial statements publicly filed by the Company with the Securities and Exchange Commission as of the ~~close~~ Closing Date), with respect to each such quarter and for the period commencing at the end of the previous fiscal year and ending with the end of such ~~fiscal quarter and the consolidated results of their operations during such fiscal quarter and the then-elapsed portion of the fiscal year and~~quarter, ~~starting with the fiscal quarter ending September 30, 2016, setting forth~~ all in reasonable detail stating in comparative form the ~~corresponding~~ respective figures for the corresponding ~~periods of~~ date and period in the ~~prior~~ previous fiscal year, all prepared by or under the supervision of which shall be in reasonable detail, which consolidated balance sheet and related statements of operations and cash flows shall be accompanied by customary management’s discussion and analysis and which consolidated balance sheet and related statements of operations and cash flows shall be certified by a the Chief Financial Officer of the ~~Borrower on behalf of the Borrower as fairly presenting, in all material respects, the financial position and results of operations of the Borrower and its Subsidiaries on a consolidated basis~~ Company in accordance with ~~GAAP~~ Generally Accepted Accounting Principles (subject to normal year-end audit adjustments and the absence of complete footnotes); (c) a certificate prepared and signed by the Chief Financial Officer with each delivery required by clauses (~~it being understood~~ a) and (b) stating whether the Chief Financial Officer shall have obtained actual knowledge of any Default or Event of Default hereunder and demonstrating that as of the last day of the relevant fiscal year or quarter, as applicable, the Company was in compliance with the financial condition covenants set forth in Section 7.12 hereof which certificate shall include detail reasonably acceptable to the Administrative Agent, including, if applicable, detail regarding the effect of any accounting rule changes applicable to the Company; (d) simultaneously with the delivery of the financial statements pursuant to clause (a) above, (i) a copy of the management letter, if any, prepared by the Auditor, (ii) annual financial projections (including a balance sheet, income statement and statement of cash flow) of the Company and its Subsidiaries, on a Consolidated basis, for the then current fiscal year, which projections shall be prepared in a manner consistent with the interim management-prepared Consolidated financial statements described in Section 6.03(b) above and (iii) a certificate or certificates of insurance from an independent insurance broker or brokers confirming that the ~~delivery~~ insurance required to be maintained by the ~~Borrower~~ Company and the Guarantors pursuant to Section 6.01 hereof is in full force and effect as of ~~quarterly~~ such date; and (e) if applicable, promptly and in any event, within five (5) days after filing thereof, copies of all regular and periodic financial information, proxy materials and other information and reports ~~on Form 10-Q~~ which the Company or any Guarantor shall file with the Securities and Exchange Commission; (f) promptly after submission to any government or regulatory agency, all documents and information furnished to such government or regulatory agency other than such documents and information prepared in the normal course of business and which could not reasonably be expected to result in a Material Adverse Effect; (g) simultaneously with the delivery thereof to the Trustee (under and as defined in the Indenture), copies of all notices delivered by the Company to the Trustee pursuant to the Indenture; and (h) promptly, from time to time, such other information regarding the operations, business affairs and condition (financial or otherwise) of the ~~Borrower~~ Company or any Subsidiary of the Company as any Lender may reasonably request, which information would include, without limitation, accounts receivable agings, accounts payable agings, analysts reports and projections. The Company may satisfy its ~~consolidated Subsidiaries shall satisfy the~~ requirements of under this Section ~~5.04(b)~~ 6.03 by making the applicable financial statement, other filing or notice, available by link or otherwise on its corporate website provided that such website continues to be maintained and that there then exist no circumstances which would prevent access to the ~~extent~~ website on more than a temporary basis not in excess of one Business Day. The Company shall notify the Administrative Agent and the Lenders of all such ~~quarterly reports include~~ postings and shall provide written copies, sufficient for delivery to the ~~information specified herein);~~Lenders, of any financial statement, filing or notice to the Administrative Agent upon request.

Appears in 2 contracts

Samples: Credit Agreement (Comtech Telecommunications Corp /De/), Credit Agreement (Comtech Telecommunications Corp /De/)

Financial Statements, Reports, etc. Furnish to the Administrative Agent (which will promptly furnish such information to the Lenders): (a) ~~within 90~~ Within 95 days after the end of each fiscal year (~~commencing with~~ or, in the case of the fiscal year ending December 31, ~~2016~~2012, within 120 days after the end of such fiscal year), a consolidated balance sheet and related statements of operations, cash flows and owners’ equity showing the financial position of the ~~Borrower~~ Ultimate Parent and its Subsidiaries as of the close of such fiscal year and the consolidated results of ~~their~~ its operations during such year and setting forth in comparative form the corresponding figures for the prior fiscal year, which consolidated balance sheet and related statements of operations, cash flows and owners’ equity shall be ~~accompanied by customary management’s discussion and analysis and~~ audited by independent public accountants of recognized national standing and accompanied by an opinion of such accountants (which opinion shall not be qualified as to scope of audit or as to the status of the Borrower or any Material Subsidiary as a going concern, other than solely with respect to, or resulting solely from, an upcoming maturity date under any series of Indebtedness occurring within one year from the time such opinion is delivered or any potential inability to satisfy a financial maintenance covenant on a future date or in a future period) to the effect that such consolidated financial statements fairly present, in all material respects, the financial position and results of operations of the Borrower and its Subsidiaries on a consolidated basis in accordance with ~~GAAP (it being understood that~~ the delivery by the Borrower of annual reports on Form 10-K of the Borrower and its consolidated Subsidiaries shall satisfy the requirements of this Section 5.04(a) to the extent such annual reports include the information specified herein)Applicable Accounting Rules; (b) within 45 50 days after the end of each of the first three fiscal quarters of each fiscal year ~~(commencing~~ beginning with the fiscal quarter ending June 30, ~~2016~~2012 (or, in the case of the fiscal quarters ending June 30, 2012, September 30, 2012 and March 31, 2013, within 60 days after the end of such fiscal quarter), (i) a consolidated balance sheet and related statements of operations and cash flows showing the financial position of the Borrower and its Subsidiaries as of the close of such fiscal quarter and the consolidated results of ~~their~~ its operations during such fiscal quarter and the ~~then-~~then elapsed portion of the fiscal year ~~and, starting with the fiscal quarter ending September 30, 2016,~~ and setting forth in comparative form the corresponding figures for the corresponding periods of the prior fiscal year, ~~all of which shall be in reasonable detail, which consolidated balance sheet~~ and ~~related statements of operations and cash flows shall be accompanied by customary~~ (ii) management’s discussion and analysis of significant operational and financial developments of the Borrower and its Subsidiaries during such quarterly period, and which consolidated balance sheet and related statements of operations and cash flows shall be certified by a Financial Officer of the Borrower on behalf of the Borrower as fairly presenting, in all material respects, the financial position and results of operations of the Borrower and its Subsidiaries on a consolidated basis in accordance with ~~GAAP~~ the Applicable Accounting Rules (subject to normal year-end audit adjustments and the absence of footnotes); (c) within 35 days after the end of each of the each fiscal month of each fiscal year (~~it being understood that~~ including the ~~delivery by~~ last fiscal month of each fiscal year) beginning with the ~~Borrower~~ fiscal month ending June 30, 2012, a consolidated balance sheet and related statements of ~~quarterly reports on Form 10-Q~~ operations and cash flows showing the financial position of the Borrower and its Subsidiaries as of the close of such fiscal month and the consolidated results of its operations during such fiscal month and the then elapsed portion of the fiscal year and setting forth in comparative form the corresponding figures for the corresponding periods of the prior fiscal year, and which consolidated balance sheet and related statements of operations and cash flows shall be certified by a Financial Officer of the Borrower on behalf of the Borrower as fairly presenting, in all material respects, the financial position and results of operations of the Borrower and its Subsidiaries on a consolidated basis in accordance with the Applicable Accounting Rules (subject to normal year-end audit adjustments and the absence of footnotes); (d) concurrently with any delivery of financial statements under paragraphs (a) or (b) above, a certificate of a Financial Officer of the Borrower (i) certifying that no Event of Default or Default has occurred or, if such an Event of Default or Default has occurred, specifying the nature and extent thereof and any corrective action taken or proposed to be taken with respect thereto, (ii) setting forth computations in reasonable detail satisfactory to the Administrative Agent of the Fixed Charge Coverage Ratio, (iii) setting forth computations in reasonable detail satisfactory to the Administrative Agent of the Average Quarterly Excess Availability, (iv) certifying a list of names of all Immaterial Subsidiaries, that each Subsidiary set forth on such list individually qualifies as an Immaterial Subsidiary and that all such Subsidiaries in the aggregate do not exceed the limitation set forth in clause (ii) of the definition of the term Immaterial Subsidiary, (v) certifying a list of names of all Unrestricted Subsidiaries, that each Subsidiary set forth on such list individually qualifies as an Unrestricted Subsidiary and (vi) setting forth a list and related amounts of all Availability Cure Contributions and repayments thereof during the relevant period; (e) within 90 days after the beginning of each fiscal year, a reasonably detailed consolidated annual budget for each fiscal quarter during such fiscal year (including a projected consolidated balance sheet of the Borrower and its Subsidiaries as of the end of the following fiscal year, and the related consolidated statements of projected cash flow and projected income), including a description of underlying assumptions with respect thereto (collectively, the “Budget”), which Budget shall ~~satisfy~~ in each case be accompanied by the ~~requirements~~ statement of ~~this Section 5.04(b~~a Financial Officer of the Borrower to the effect that the Budget is based on assumptions believed by such Financial Officer to be reasonable as of the date of delivery thereof; (f) upon the reasonable request of the Administrative Agent, an updated Perfection Certificate (or, to the extent such ~~quarterly reports include~~ request relates to specified information contained in the Perfection Certificate, such information) reflecting all changes since the date of the information ~~specified herein~~most recently received pursuant to this paragraph (f) or Section 6.10(f); (g) (i) promptly, from time to time, such other information regarding the operations, business affairs and financial condition of the Holdcos, the Borrower or any of its Subsidiaries, or compliance with the terms of any Loan Document, or such consolidating financial statements as in each case the Administrative Agent may reasonably request (for itself or on behalf of any Lender) and (ii) prior written notice in the event that the Borrower changes its fiscal year end; (h) [Reserved]; (i) promptly upon request by the Administrative Agent, copies of: (i) each Schedule B (Actuarial Information) to the most recent annual report (Form 5500 Series) filed with the Internal Revenue Service with respect to a Plan; (ii) the most recent actuarial valuation report for any Plan; (iii) all notices received from a Multiemployer Plan sponsor, a plan administrator or any governmental agency, or provided to any Multiemployer Plan by the Holdcos, the Borrower, a Subsidiary or any ERISA Affiliate, concerning an ERISA Event; and (iv) such other documents or governmental reports or filings relating to any Plan or Multiemployer Plan as the Administrative Agent shall reasonably request; and (j) Borrowing Base Certificates, at the times specified in Section 6.14.

Appears in 2 contracts

Samples: Abl Credit Agreement (Constellium Holdco B.V.), Abl Credit Agreement (Constellium Holdco B.V.)

Financial Statements, Reports, etc. Furnish to the Administrative Agent (which will promptly furnish such information to the Lenders): (a) within 90 days after the end of each fiscal ~~year (~~year, commencing ~~with the fiscal year ending December~~ January 31, ~~2016)~~2015, a consolidated balance sheet and related statements of operations, cash flows and owners’ equity showing the financial position of the Borrower and its Subsidiaries as of the close of such fiscal year and the consolidated results of their operations during such year and setting forth in comparative form the corresponding figures for the prior fiscal year, which consolidated balance sheet and related statements of operations, cash flows and owners’ equity shall be accompanied by customary management’s discussion and analysis and audited by independent public accountants of recognized national standing and accompanied by an opinion of such accountants (which opinion shall not be qualified as to scope of audit or as to the status of the Borrower or any Material Subsidiary as a going concern, other than solely with respect to, or resulting solely from, an upcoming maturity date under any series of Indebtedness incurred under this Agreement occurring within one year from the time such opinion is ~~delivered or any potential inability to satisfy a financial maintenance covenant on a future date or in a future period~~delivered) to the effect that such consolidated financial statements fairly present, in all material respects, the financial position and results of operations of the Borrower and its Subsidiaries on a consolidated basis in accordance with GAAP (it being understood that the delivery by the Borrower of annual reports on Form ~~10-K~~ 10‑K of the Borrower and its consolidated Subsidiaries shall satisfy the requirements of this Section 5.04(a) to the extent such annual reports include the information specified ~~herein~~herein and are delivered within the time period specified above); (b) within 45 days after the end of each of the first three fiscal quarters of each fiscal year (commencing with the first fiscal quarter ending ~~June 30, 2016~~after the Effective Date), a consolidated balance sheet and related statements of operations and cash flows showing the financial position of the Borrower and its Subsidiaries as of the close of such fiscal quarter and the consolidated results of their operations during such fiscal quarter and the then-elapsed portion of the fiscal year ~~and, starting with the fiscal quarter ending September 30, 2016,~~ and setting forth in comparative form the corresponding figures for the corresponding periods of the prior fiscal year, all of which shall be in reasonable detail, which consolidated balance sheet and related statements of operations and cash flows shall be accompanied by customary management’s discussion and analysis and which consolidated balance sheet and related statements of operations and cash flows shall be certified by a Financial Officer of the Borrower on behalf of the Borrower as fairly presenting, in all material respects, the financial position and results of operations of the Borrower and its Subsidiaries on a consolidated basis in accordance with GAAP (subject to normal year-end audit adjustments and the absence of footnotes) (it being understood that the delivery by the Borrower of quarterly reports on Form 10-Q of the Borrower and its consolidated Subsidiaries shall satisfy the requirements of this Section 5.04(b) to the extent such quarterly reports include the information specified ~~herein~~herein and are delivered within the time period specified above); (c) (x) concurrently with any delivery of financial statements under clause (a) or (b) above, a certificate of a Financial Officer of the Borrower (i) certifying that no Event of Default or Default has occurred since the date of the last certificate delivered pursuant to this Section 5.04(c) (or since the Closing Date in the case of the first such certificate) or, if such an Event of Default or Default has occurred, specifying the nature and extent thereof and any corrective action taken or proposed to be taken with respect thereto, (ii) commencing with the end of the first full fiscal quarter after the Closing Date, setting forth computations in reasonable detail satisfactory to the Administrative Agent demonstrating compliance with the Financial Covenant (if applicable) and (iii) setting forth the calculation and uses of the Available Amount for the fiscal period then ended if the Borrower shall have used the Available Amount for any purpose during such fiscal period and (y) concurrently with any delivery of financial statements under clause (a) above, if the accounting firm is not restricted from providing such a certificate by its policies office, a certificate of the accounting firm opining on or certifying such statements stating whether they obtained knowledge during the course of their examination of such statements of any Default or Event of Default (which certificate may be limited to accounting matters and disclaim responsibility for legal interpretations); (d) promptly after the same become publicly available, copies of all periodic and other publicly available reports, proxy statements and, to the extent requested by the Administrative Agent, other materials filed by the Borrower or any of the Subsidiaries with the SEC, or distributed to its stockholders generally, as applicable; provided, however, that such reports, proxy statements, filings and other materials required to be delivered pursuant to this clause (d) shall be deemed delivered for purposes of this Agreement when posted to the website of the Borrower or the website of the SEC and written notice of such posting has been delivered to the Administrative Agent; (e) within 90 days after the beginning of each fiscal year that commences after the Closing Date, a consolidated annual budget for such fiscal year consisting of a projected consolidated balance sheet of the Borrower and its Subsidiaries as of the end of such fiscal year and the related consolidated statements of projected cash flow and projected income (collectively, the “Budget”), which Budget shall in each case be accompanied by the statement of a Financial Officer of the Borrower to the effect that the Budget is based on assumptions believed by the Borrower to be reasonable as of the date of delivery thereof; provided, however, that the Budget relating to the fiscal year that ends January 31, 2016, shall be provided within 120 days of the Closing Date; (f) concurrently with the delivery of financial statements under clause (a) above, an updated Perfection Certificate reflecting all changes since the date of the information most recently received pursuant to this clause (f) or Section 5.10(c) (or a certificate of a Responsible Officer certifying as to the absence of any changes to the previously delivered update, if applicable); and (g) promptly, from time to time, such other information regarding the operations, business affairs and financial condition of the Borrower or any of the Subsidiaries, or compliance with the terms of any Loan Document as in each case the Administrative Agent may reasonably request (for itself or on behalf of any Lender). The Borrower acknowledges and agrees that all financial statements furnished pursuant to paragraphs (a), (b) and (d) above are hereby deemed to be Borrower Materials suitable for distribution, and to be made available, to Public Lenders as contemplated by Section 9.17 and may be treated by the Administrative Agent and the Lenders as if the same had been marked “PUBLIC” in accordance with such paragraph (unless the Borrower otherwise notifies the Administrative Agent in writing on or prior to delivery thereof).

Appears in 2 contracts

Samples: Credit Agreement (Dollar Tree Inc), Credit Agreement (Dollar Tree Inc)

Appears in 2 contracts

Samples: Abl Credit Agreement (Smurfit Stone Container Corp), Abl Credit Agreement (Smurfit Stone Container Corp)

Financial Statements, Reports, etc. Furnish to the Administrative Agent (which will promptly furnish such information to the Lenders): (a1) within 90 days ~~after~~ following the end of each fiscal ~~year (~~year, commencing with the fiscal year ~~ending~~ ended December 31, ~~2016)~~2018, a consolidated balance sheet and related statements of operations, cash flows and owners’ equity showing the financial position of the Borrower and ~~its~~ the Restricted Subsidiaries as of the close of such fiscal year and the consolidated results of ~~their~~ its operations during such fiscal year ~~and~~ and, in each case, commencing with the fiscal year ending December 31, 2019, setting forth in comparative form the corresponding figures for the prior fiscal year, which consolidated balance sheet and related statements of operations, cash flows and owners’ equity ~~shall~~ will be ~~accompanied by customary management’s discussion and analysis and~~ prepared in accordance with GAAP, audited by any independent public accountants of recognized national ~~standing~~ standing, or such other accountants as are reasonably acceptable to the Administrative Agent, and accompanied by an opinion of such accountants (which opinion shall not be ~~qualified as~~ subject to ~~scope of audit or as to the status of the Borrower or~~ any ~~Material Subsidiary as a~~ “going concern” statement, explanatory note or like qualification or exception (other than ~~solely with respect to~~a “going concern” statement, explanatory note or ~~resulting solely from~~like qualification or exception relating to an anticipated, but not actual, financial covenant default or an upcoming maturity ~~date under any series of Indebtedness occurring within one year from~~ date) (the ~~time such opinion is delivered or any potential inability to satisfy a financial maintenance covenant on a future date or in a future period) to the effect that such consolidated~~ applicable financial statements ~~fairly present, in all material respects,~~ delivered pursuant to this clause (1) being the financial position and results of operations of the Borrower and its Subsidiaries on a consolidated basis in accordance with GAAP (it being understood that the delivery by the Borrower of annual reports on Form 10-K of the Borrower and its consolidated Subsidiaries shall satisfy the requirements of this Section 5.04(a) to the extent such annual reports include the information specified herein“Annual Financial Statements”); (b2) ~~within 45 days after the end of each of~~ for the first three fiscal quarters of each fiscal ~~year (~~year, commencing with the fiscal quarter ended March 31, 2018, (a) within 71 days following the Closing Date, for the fiscal quarter ending March 31, 2018, (i) (A) a consolidated balance sheet for the Borrower and its Restricted Subsidiaries (excluding, for the avoidance of doubt, Impax and its subsidiaries) as of the close of such fiscal quarter and (B) the consolidated results of its operations and cash flows for the Borrower and its Restricted Subsidiaries (excluding, for the avoidance of doubt, Impax and its subsidiaries) during such fiscal quarter and the then-elapsed portion of the fiscal year and (ii) (A) a consolidated balance sheet for Impax and its Restricted Subsidiaries (excluding, for the avoidance of doubt, the Borrower and its subsidiaries), as of the close of such fiscal quarter and (B) the consolidated results of operations and cash flows for Impax and its Restricted Subsidiaries (excluding, for the avoidance of doubt, the Borrower and its subsidiaries) during such fiscal quarter and the then-elapsed portion of the fiscal year; (b) for the fiscal quarter ending June 30, ~~2016)~~2018, within 45 days of such fiscal quarter end, (A) a consolidated balance sheet ~~and related statements of operations and cash flows showing the financial position of~~ for the Borrower and its Restricted Subsidiaries as of the close of such fiscal quarter and (B) the consolidated statement of operations and cash flows for the Borrower and its Restricted Subsidiaries (which will include Impax and its Restricted Subsidiaries for the period from the Closing Date to such fiscal quarter end) during such fiscal quarter and the then-elapsed portion of the fiscal year; and (ii) an unaudited pro forma condensed combined statement of operations for the Borrower and its Restricted Subsidiaries (which will include Impax and its Restricted Subsidiaries) during such fiscal quarter (which pro forma financial statements will be certified by a Responsible Officer of the Borrower on behalf of the Borrower as having been prepared in good faith, based on assumptions believed by the Borrower to be reasonable as of the date of delivery thereof, and present fairly in all material respects on a pro forma basis the estimated results of operations of the Borrower and its Restricted Subsidiaries during such fiscal quarter end); and (c) for each such fiscal quarter thereafter, within 45 days of such fiscal quarter end, (A) a consolidated balance sheet for the Borrower and the Restricted Subsidiaries as of the close of such fiscal quarter and (B) the consolidated results of ~~their~~ operations and cash flows for the Borrower and the Restricted Subsidiaries during such fiscal quarter and the then-elapsed portion of the fiscal year and, ~~starting~~ commencing with the fiscal quarter ending September 30, ~~2016~~2019, setting forth in comparative form the corresponding figures for the corresponding periods of the prior fiscal year, ~~all of which shall be~~ in ~~reasonable detail~~each case (other than the preceding clause (ii)), which consolidated balance sheet and related statements of operations and cash flows shall be accompanied by customary management’s discussion and analysis and which consolidated balance sheet and related statements of operations and cash flows shall be certified by a ~~Financial~~ Responsible Officer of the Borrower on behalf of the Borrower as fairly presenting, in all material respects, the financial position and results of operations of the Borrower and the Restricted Subsidiaries (or Impax and its ~~Subsidiaries~~ Restricted Subsidiaries, as applicable) on a consolidated basis in accordance with ~~GAAP (~~GAAP, subject to normal year-end audit adjustments and the absence of ~~footnotes~~footnotes (the applicable financial statements delivered pursuant to this clause (2) being the “Quarterly Financial Statements” and, together with the Annual Financial Statements, the “Required Financial Statements”). (~~it being understood that~~ 3) no later than five (5) days after the delivery of any Required Financial Statements, a certificate of a Financial Officer of the Borrower: (a) certifying that no Default or Event of Default has occurred and is continuing or, if a Default or Event of Default has occurred and is continuing, specifying the nature and extent thereof and any corrective action taken or proposed to be taken with respect thereto; (b) upon the occurrence and during the continuance of a Covenant Trigger Event, setting forth in reasonable detail calculations of the Fixed Charge Coverage Ratio for the most recent period of four consecutive fiscal quarters as of the close of the fiscal year or fiscal quarter, as applicable; (c) certifying a list of all Immaterial Subsidiaries, that each Subsidiary set forth on such list individually qualifies as an Immaterial Subsidiary and that all such Subsidiaries in the aggregate do not exceed the limitation set forth in clause (ii) of the definition of the term “Immaterial Subsidiary;” and (d) certifying a list of all Unrestricted Subsidiaries at such time and that each Subsidiary set forth on such list qualifies as an Unrestricted Subsidiary; (4) promptly after the same become publicly available, copies of all periodic and other publicly available reports, proxy statements and, to the extent requested by the Administrative Agent, other materials publicly filed by the Borrower or any Restricted Subsidiary with the SEC or, after an initial public offering, distributed to its stockholders generally, as applicable, and in any case not otherwise required to be delivered to the Administrative Agent pursuant to any Loan Document; (5) within 60 days following the end of ~~quarterly reports~~ each fiscal year, commencing with the fiscal year ending December 31, 2018, a consolidated annual budget for such fiscal year in the form customarily prepared by the Borrower (the “Budget”), which Budget will in each case be accompanied by the statement of a Financial Officer of the Borrower on behalf of the Borrower to the effect that the Budget is based on assumptions believed by the Borrower to be reasonable as of the date of delivery thereof; provided that no Budget will be required to be delivered with respect to the fiscal year ending December 31, 2018; (6) upon the reasonable written request of the Collateral Agent, concurrently with the delivery of the Annual Financial Statements, an updated Perfection Certificate (or, to the extent such request relates to specified information contained in the Perfection Certificate, such information) reflecting all changes since the date of the information most recently received pursuant to this paragraph (6) or Section 5.10, as applicable; (7) promptly, from time to time, such other information regarding the operations, business affairs and financial condition of the Borrower or any Restricted Subsidiary, in each case, as the Administrative Agent may reasonably request (for itself or on behalf of any Lender) in writing; (8) promptly upon reasonable written request by the Administrative Agent (so long as the following are obtainable using commercially reasonable measures), copies of any documents described in Section 101(k)(1) of ERISA that the Borrower or any of its ERISA Affiliates may request with respect to any Multiemployer Plan; provided that if the Borrower or any of its ERISA Affiliates has not requested such documents from the administrator or sponsor of the applicable Multiemployer Plan, the Borrower or the applicable ERISA Affiliate shall promptly make a request for such documents or notices from such administrator or sponsor and shall provide copies of such documents and notices promptly after receipt thereof; and (9) a Borrowing Base Certificate from the Borrower on the Initial Borrowing Base Date and, thereafter, as soon as available but in any event on or before the 20th day after the end of each calendar month (or, if such date is not a Business Day, the next succeeding Business Day) (or on a more frequent basis at the discretion of the Borrower; provided that once a more frequent basis is elected it must be continued for no less than 30 days after the date of such election), with such supplemental information and supporting materials as the Administrative Agent may reasonably request and with supplemental information regarding the amount of Eligible Cash held with institutions other than the Administrative Agent being provided to the Administrative Agent on a bi-weekly basis (or, at any time that no Loans are then outstanding and the aggregate stated amounts of all then-outstanding Letters of Credit is less than $10 million, on a monthly basis); provided, that after the occurrence and during the continuance of an Increased Reporting Period, the Borrower shall be required to deliver a Borrowing Base Certificate on a weekly basis. Notwithstanding the foregoing, the Administrative Agent may not require the Borrower to deliver a Borrowing Base Certificate more frequently than weekly, and in the case of such weekly reporting the Borrowing Base Certificate will be due on Wednesday of each week (or, if Wednesday is not a Business Day, on the next succeeding Business Day) calculated as of the close of business on Saturday of the immediately preceding calendar week. Anything to the contrary notwithstanding, the obligations in clauses (1) and (2) of this Section 5.04 may be satisfied with respect to financial information of the Borrower and the Restricted Subsidiaries by furnishing (1) the applicable financial statements of any Parent Entity or (2) the Borrower’s (or any such other Parent Entity’s), as applicable, Form 10-Q K or 10-Q, as applicable, filed with the SEC; provided that with respect to each of the foregoing clauses (1) and (2) (a) to the extent such information relates to a Parent Entity, such information is accompanied by consolidating information (which need not be audited) that explains in reasonable detail the differences between the information relating to such Parent Entity, on the one hand, and the information relating to the Borrower and the Restricted Subsidiaries on a standalone basis, on the other hand, and (b) to the extent such information is in lieu of information required to be provided under Section 5.04(1), such materials are prepared in accordance with GAAP and accompanied by a report and opinion of any independent public accountants of recognized national standing, or such other accountants as are reasonably acceptable to the Administrative Agent, and accompanied by an opinion of such accountants (which opinion shall not be subject to any “going concern” statement, explanatory note or like qualification or exception (other than a “going concern” statement, explanatory note or like qualification or exception relating to an anticipated, but not actual, financial covenant default or an upcoming maturity date). The obligations in clauses (1) and (2) of this Section 5.04 may be satisfied by delivery of financial information of the Borrower and its ~~consolidated~~ Subsidiaries ~~shall satisfy~~ so long as such financial statements include a reasonably detailed presentation (which need not be audited), either on the ~~requirements~~ face of the financial statements or in the footnotes thereto, of the financial condition and results of operations of the Borrower and the Restricted Subsidiaries separate from the financial condition and results of operations of the Unrestricted Subsidiaries of the Borrower. Documents required to be delivered pursuant to this Section ~~5.04(b) to the extent such quarterly reports include the information specified herein~~5.04 may be delivered electronically in accordance with Section 10.01(5);.

Appears in 2 contracts

Samples: Revolving Credit Agreement (Amneal Pharmaceuticals, Inc.), Revolving Credit Agreement (Amneal Pharmaceuticals, Inc.)

Financial Statements, Reports, etc. Furnish to the Administrative Agent ~~(which will promptly furnish such information~~ for distribution to the Lenders):: (a) During any Sweep Period, within 90 30 days after the end of each of the first two fiscal ~~year~~ months in each fiscal quarter of Equistar, unaudited consolidated financial statements (~~commencing with the fiscal year ending December 31, 2016),~~ which shall include a ~~consolidated~~ balance sheet and ~~related~~ income statement, as well as statements of ~~operations, cash flows and owners~~partners’ equity and cash flow) showing the financial ~~position~~ condition and results of operation of Equistar and its Consolidated Subsidiaries as of the ~~Borrower~~ end of and ~~its Subsidiaries~~ for such fiscal month and that portion of the current Fiscal Year ending as of the close of such ~~fiscal year~~ month, in each case certified by a Principal Financial Officer as being the same monthly financial statements generated in accordance with Equistar’s normal procedures and submitted to management of Equistar. The Administrative Agent and the Lenders acknowledge that any monthly unaudited consolidated ~~results~~ financial statements furnished pursuant to this Section 5.05(a) will not be accompanied by the footnotes and other disclosures that would be necessary for fair presentation in accordance with GAAP. (b) Subject to the last paragraph of ~~their operations during such year and setting forth in comparative form~~ this Section 5.05, within 55 days after the ~~corresponding figures for~~ end of each of the ~~prior~~ first three fiscal ~~year~~quarters of each Fiscal Year, unaudited consolidated financial statements (which ~~consolidated~~ shall include a balance sheet and ~~related~~ income statement, as well as statements of ~~operations, cash flows and owners~~partners’ equity ~~shall be accompanied by customary management’s discussion~~ and ~~analysis~~ cash flow) showing the financial condition and ~~audited by independent public accountants~~ results of ~~recognized national standing~~ operations of Equistar and ~~accompanied by an opinion of such accountants (which opinion shall not be qualified~~ its Consolidated Subsidiaries as ~~to scope of audit or as to the status~~ of the ~~Borrower or any Material Subsidiary~~ end of and for such fiscal quarter, in each case certified by a Principal Financial Officer as a going concern, other than solely with respect to, or resulting solely from, an upcoming maturity date under any series of Indebtedness occurring within one year from the time such opinion is delivered or any potential inability to satisfy a financial maintenance covenant on a future date or in a future period) to the effect that such consolidated financial statements fairly presentpresenting fairly, in all material respects, the financial position and results of operations of ~~the Borrower~~ Equistar and its Consolidated Subsidiaries ~~on a consolidated basis~~ and as having been prepared in accordance with ~~GAAP (it being understood that~~ the ~~delivery by~~ rules and regulations of the ~~Borrower of annual~~ SEC applicable to quarterly reports on Form 10-~~K of~~ Q. (c) Subject to the ~~Borrower and its consolidated Subsidiaries shall satisfy the requirements~~ last paragraph of this Section ~~5.04(a) to the extent such annual reports include the information specified herein); (b)~~ 5.05, within 45 100 days after the end of each ~~of the first three fiscal quarters of each fiscal year~~ Fiscal Year, consolidated and consolidating financial statements (~~commencing with the fiscal quarter ending June 30, 2016),~~ which shall include a ~~consolidated~~ balance sheet and ~~related~~ income statement, as well as statements of ~~operations~~ partners’ equity and cash ~~flows~~ flows) showing the financial position of the Borrower and its Subsidiaries as of the close of such fiscal quarter and the consolidated results of their operations during such fiscal quarter and the then-elapsed portion of the fiscal year and, starting with the fiscal quarter ending September 30, 2016, setting forth in comparative form the corresponding figures for the corresponding periods of the prior fiscal year, all of which shall be in reasonable detail, which consolidated balance sheet and related statements of operations and cash flows shall be accompanied by customary management’s discussion and analysis and which consolidated balance sheet and related statements of operations and cash flows shall be certified by a Financial Officer of the Borrower on behalf of the Borrower as fairly presenting, in all material respects, the financial position condition and results of operations of Equistar and its Consolidated Subsidiaries as of the ~~Borrower~~ end of and for such Fiscal Year. The consolidated financial statements of Equistar and its Consolidated Subsidiaries delivered pursuant to this paragraph will be audited and reported on by independent public accountants of recognized standing and shall be accompanied by a statement of such firm of independent public accountants (i) stating whether during the course of their examination of such financial statements they obtained knowledge of any Default existing on the date of such statements and (ii) confirming the calculations set forth in the officer’s certificate delivered simultaneously therewith pursuant to (e) below (which statement may be limited to the extent required by accounting rules or guidelines including the rules and guidelines of the public accounting firm giving such statement). (d) Subject to the last paragraph of this Section 5.05, promptly after the same shall have been filed or furnished as described below, copies of such registration statements, annual, periodic and other reports, and such proxy statements and other information, if any, as shall be filed by Equistar or any Subsidiary with the SEC pursuant to the requirements of the Securities Act of 1933 or the Securities Exchange Act of 1934 or the rules promulgated thereunder. (e) Concurrently with (b) and (c) above, a certificate of a Principal Financial Officer, (i) certifying compliance, as of the dates of the financial statements being furnished at such time and for the periods then ended, with the covenants set forth in Sections 6.01 and 6.11 and demonstrating compliance with the covenant set forth in Section 6.02, when applicable, and the provisions of Section 7.01(o); (ii) certifying that to the best knowledge of such Principal Financial Officer no Default has occurred and is continuing or, if a Default has occurred and is continuing, specifying the nature and extent thereof and any corrective action taken or proposed to be taken with respect thereto; and (iii) solely in the case of (c) above, certifying that except as previously notified to the Administrative Agent pursuant to Section 5.12 there has been no change in any Loan Party’s name, form of organization, jurisdiction of organization and organizational number or Federal Taxpayer Identification Number. (f) Within five Business Days of the date of receipt of Net Cash Proceeds in excess of $10,000,000 in respect of any Asset Sale or a series of related Asset Sales, or the receipt of Major Casualty Proceeds, a certificate of a Principal Financial Officer setting forth in reasonable detail the amount of such Net Cash Proceeds or Major Casualty Proceeds. (g) Not later than the earlier of (i) 15 days after Equistar has received the approval of its Partnership Governance Committee and (ii) 30 days after the commencement of each Fiscal Year, the Annual Plan. For purposes hereof, “Annual Plan” shall mean, for any Fiscal Year before the Termination Date, the financial projections of Equistar and its Subsidiaries ~~on a consolidated basis in accordance with GAAP (subject to normal year-end audit adjustments and the absence~~ for such Fiscal Year prepared by management of ~~footnotes) (it being understood that the delivery by the Borrower of quarterly reports on Form 10-Q~~ Equistar for approval of the ~~Borrower~~ Partnership Governance Committee and ~~its consolidated Subsidiaries shall satisfy~~ substantially in the ~~requirements of this Section 5.04(b)~~ form heretofore provided to the ~~extent such quarterly reports include the information specified herein~~Administrative Agent pursuant to Section 4.02(o);.

Appears in 2 contracts

Samples: Credit Agreement (Lyondell Chemical Co), Credit Agreement (Equistar Chemicals Lp)

Financial Statements, Reports, etc. Furnish to the Administrative Agent ~~(which will promptly furnish such information to the Lenders):~~and each Lender: (a) ~~within 90~~ Within ninety (90) days after the end of each ~~fiscal year (commencing with~~ Fiscal Year of the ~~fiscal year ending December 31~~Borrower, ~~2016), a~~ its audited consolidated and unaudited consolidating balance sheet and related statements of operations, stockholders’ equity and cash flows ~~and owners’ equity showing the financial position of the Borrower and its Subsidiaries~~ as of the ~~close~~ end of and for such ~~fiscal year and the consolidated results of their operations during such year and~~ year, setting forth in each case in comparative form the ~~corresponding~~ figures for the ~~prior fiscal year~~previous Fiscal Year, ~~which consolidated balance sheet and related statements~~ all reported on (in the case of ~~operations, cash flows and owners’ equity shall be accompanied~~ audited statements) by ~~customary management’s discussion and analysis and audited by~~ Ernst & Young LLP or other independent public accountants of recognized national standing (without a “going concern” or like qualification or exception and ~~accompanied by an opinion of such accountants (which opinion shall not be qualified as to scope of audit~~ without any qualification or exception as to the ~~status~~ scope of the Borrower or any Material Subsidiary as a going concern, other than solely with respect to, or resulting solely from, an upcoming maturity date under any series of Indebtedness occurring within one year from the time such ~~opinion is delivered or any potential inability to satisfy a financial maintenance covenant on a future date or in a future period~~audit) to the effect that such consolidated financial statements present fairly ~~present,~~ in all material ~~respects,~~ respects the financial ~~position~~ condition and results of operations of the Borrower and its consolidated Subsidiaries on a consolidated basis in accordance with GAAP consistently applied (it being understood and agreed that ~~the delivery by the Borrower~~ unaudited consolidating financial information provided pursuant to this subsection (a) shall, in respect of annual reports on Form 10-K of the Borrower and its consolidated Subsidiaries shall satisfy the requirements of this Section 5.04(a) to the extent such annual reports include the information specified hereinSubsidiaries, only show individually Significant Subsidiaries); (b) ~~within 45~~ Within forty-five (45) days after the end of each of the first three ~~fiscal quarters~~ Fiscal Quarters of ~~each fiscal year (commencing with~~ the ~~fiscal quarter ending June 30~~Borrower, ~~2016), a~~ its consolidated and consolidating balance sheet and related statements of ~~operations~~ operations, stockholders’ equity and cash flows ~~showing the financial position of the Borrower and its Subsidiaries~~ as of the ~~close~~ end of and for such ~~fiscal quarter~~ Fiscal Quarter and the ~~consolidated results of their operations during such fiscal quarter and the then-~~then elapsed portion of the ~~fiscal year and, starting with the fiscal quarter ending September 30, 2016~~Fiscal Year, setting forth in each case in comparative form the ~~corresponding~~ figures for the corresponding period or periods of (or, in the ~~prior fiscal year~~case of the balance sheet, as of the end of) the previous Fiscal Year, all of which shall be in reasonable detail, which consolidated balance sheet and related statements of operations and cash flows shall be accompanied by customary management’s discussion and analysis and which consolidated balance sheet and related statements of operations and cash flows shall be certified by a one of its Financial ~~Officer of the Borrower on behalf of the Borrower~~ Officers as presenting fairly ~~presenting,~~ in all material ~~respects,~~ respects the financial ~~position~~ condition and results of operations of the Borrower and its consolidated Subsidiaries on a consolidated and consolidating basis in accordance with GAAP consistently applied, subject to normal year-end audit adjustments and the absence of footnotes (it being understood and agreed that unaudited consolidating financial information provided pursuant to this subsection (b) shall, in respect of Subsidiaries, only show individually Significant Subsidiaries); (c) Within thirty (30) days after the end of each calendar month of the Borrower, excluding the months of January, March, June, September and December, its consolidated and consolidating balance sheet and related statements of operations, stockholders’ equity and cash flows as of the end of and for such calendar month and the then elapsed portion of the Fiscal Year, setting forth in each case in comparative form the figures for the corresponding period or periods of (or, in the case of the balance sheet, as of the end of) the previous Fiscal Year, all certified by one of its Financial Officers as presenting fairly in all material respects the financial condition and results of operations of the Borrower and its consolidated Subsidiaries on a consolidated and consolidating basis in accordance with GAAP consistently applied, subject to normal year-end audit adjustments and the absence of footnotes (it being understood and agreed that unaudited consolidating financial information provided pursuant to this subsection (c) shall, in respect of Subsidiaries, only show individually Significant Subsidiaries); (d) Concurrently with any delivery of financial statements under clauses (a), (b), or (c), a Compliance Certificate (i) certifying, in the case of the financial statements delivered under clause (b) or (c), as presenting fairly in all material respects the financial condition and results of operations of the Borrower and its consolidated Subsidiaries on a consolidated basis in accordance with GAAP (consistently applied, subject to normal year-end audit adjustments and the absence of footnotes, (ii) certifying as to whether a Default has occurred and, if a Default has occurred, specifying the details thereof and any action taken or proposed to be taken with respect thereto, (~~it being understood~~ iii) setting forth reasonably detailed calculations of the Fixed Charge Coverage Ratio, the aggregate amount of Capital Expenditures and EBITDA (and, if applicable, Indebtedness) for the most recently ended Test Period and demonstrating compliance with Section 6.10 and (iv) stating whether any change in GAAP or in the application thereof has occurred since the date of the audited financial statements referred to in Section 3.04 and, if any such change has occurred, specifying the effect of such change on the financial statements accompanying such certificate; (e) Concurrently with any delivery of financial statements under clause (a) above, a certificate of the accounting firm that reported on such financial statements stating whether they obtained knowledge during the ~~delivery~~ course of their examination of such financial statements of any Default (which certificate may be limited to the extent required by accounting rules or guidelines); (f) As soon as available, but in any event not later than the fifteenth calendar day of each Fiscal Year of the Borrower, a copy of the plan and forecast (including a projected consolidated and consolidating balance sheet, income statement and funds flow statement) of the Borrower for each month of the upcoming Fiscal Year (the “Projections”) in a form heretofore provided to the Administrative Agent; (g) Promptly after the same become publicly available, copies of all periodic and other reports, proxy statements and other materials filed by the Borrower or any Subsidiary with the Securities and Exchange Commission, or any Governmental Authority succeeding to any or all of ~~quarterly reports on Form 10-Q~~ the functions of said Commission, or with any national securities exchange, or distributed by the Borrower to its shareholders generally, as the case may be; (h) Promptly following any request therefor, such other information regarding the operations, business affairs and financial condition of the Borrower or any Subsidiary, or compliance with the terms of this Agreement, as the Administrative Agent, the Collateral Agent or any Lender may reasonably request; (i) Copies of all Borrowing Base Certificates (as defined in the First Lien Credit Agreement), appraisals and ~~its consolidated Subsidiaries shall satisfy~~ field examinations or similar reports or information as and when provided under the ~~requirements~~ First Lien Loan Documents; (j) Monthly, a report specifying the amounts outstanding under Sections 6.01(l) and (m). (k) Concurrently with any delivery of financial statements under Section 5.01(a), a certificate of a Financial Officer setting forth the information required pursuant to the Security Agreement or confirming that there has been no change in such information since the date of the Security Agreement; (l) Concurrently with any delivery of financial statements under Section 5.01(a), an accurate organizational chart as required by Section 3.15(a), or confirmation that there are no changes to Exhibit A to the Security Agreement; (m) Provide copies of any Organizational Documents that have been amended or modified in accordance with the terms hereof within 15 days after such amendment or modification and deliver a copy of any notice of default given or received by any Company under any Organizational Document within 15 days after such Company gives or receives such notice; Documents required to be delivered pursuant to clauses (a) and (b) of this Section ~~5.04(b~~5.01 may be delivered electronically and if so delivered, shall be deemed to have been delivered on the date on which such documents are filed for public availability on the Securities and Exchange Commission’s Electronic Data Gathering and Retrieval System; provided that Borrower shall notify (which may be by facsimile or electronic mail) the Administrative Agent of the filing of any such documents and provide to the ~~extent~~ Administrative Agent by electronic mail electronic versions (i.e., soft copies) of such ~~quarterly reports include the information specified herein);~~documents.

Appears in 2 contracts

Samples: Senior Secured Credit Agreement (Lifetime Brands, Inc), Senior Secured Credit Agreement (Lifetime Brands, Inc)

Financial Statements, Reports, etc. Furnish to the Administrative Agent (~~which~~ and the Administrative Agent will promptly furnish such information to the Lenders): (a) ~~within~~ Within 90 days (or such longer time period as specified in the SEC’s rules and regulations for the filing of annual reports on Form 10-K) after the end of each fiscal year ~~(commencing with~~ of the ~~fiscal year ending December 31, 2016)~~Borrower, a ~~consolidated~~ balance sheet and related statements of operations, cash flows and owners’ equity showing the financial position of the Borrower and ~~its~~ the other Subsidiaries of Holdings on an Adjusted Consolidated Basis, as of the close of such fiscal year and the ~~consolidated~~ results of their operations on an Adjusted Consolidated Basis during such year and setting forth in comparative form the corresponding figures for the prior fiscal year, which ~~consolidated~~ balance sheet and related statements of operations, cash flows and owners’ equity shall be ~~accompanied by customary management’s discussion and analysis and~~ audited by Deloitte & Touche LLP or other independent public accountants of recognized national standing and accompanied by an opinion of such accountants (which ~~opinion~~ shall ~~not~~ be ~~qualified~~ unqualified as to the scope of audit or as to the status of ~~the Borrower or~~ any ~~Material Subsidiary~~ Loan Party or, as applicable, any Parent Entity as a “going concern, other than solely with respect to, or resulting solely from, an upcoming maturity date under any series of Indebtedness occurring within one year from the time such opinion is delivered or any potential inability to satisfy a financial maintenance covenant on a future date or in a future period”) to the effect that such ~~consolidated~~ financial statements fairly present, in all material respects, the financial position and results of operations and cash flows of the Borrower and ~~its~~ the other Subsidiaries of Holdings on ~~a consolidated basis~~ an Adjusted Consolidated Basis in accordance with ~~GAAP~~ GAAP, accompanied by a customary management’s discussion and analysis of the financial condition and results of operations of the Borrower and the other Subsidiaries of Holdings (it being understood that the delivery by the Borrower of annual reports on Form 10-K of the ~~Borrower and its consolidated Subsidiaries~~ Borrower, Holdings or any Parent Entity shall satisfy the requirements of this Section 5.04(a) to the extent such annual reports include the information specified herein); (b) ~~within~~ Within 45 days (or such longer time period as specified in the SEC’s rules and regulations with respect to non-accelerated filers for the filing of quarterly reports on Form 10-Q) after the end of each of the first three fiscal quarters of each fiscal year ~~(commencing with~~ of the ~~fiscal quarter ending June 30, 2016)~~Borrower, a ~~consolidated~~ balance sheet and related statements of operations and cash flows ~~showing~~ showing, on an Adjusted Consolidated Basis, the financial position of the Borrower and ~~its~~ the other Subsidiaries of Holdings as of the close of such fiscal quarter and the ~~consolidated~~ results of their operations on an Adjusted Consolidated Basis during such fiscal quarter and the ~~then-~~then elapsed portion of the fiscal year ~~and, starting with the fiscal quarter ending September 30, 2016,~~ and setting forth in comparative form the corresponding figures for the corresponding periods of the prior fiscal year, all of which shall be in reasonable ~~detail, which consolidated balance sheet and related statements of operations and cash flows shall be accompanied by customary management’s discussion and analysis~~ detail and which ~~consolidated~~ balance sheet and related statements of operations and cash flows shall be certified by a Financial Officer of the ~~Borrower~~ Borrower, on behalf of the ~~Borrower~~ Borrower, as fairly presenting, in all material respects, the financial position and results of operations and cash flows of the Borrower and ~~its~~ the other Subsidiaries of Holdings on ~~a consolidated basis~~ an Adjusted Consolidated Basis in accordance with GAAP (subject to normal year-end audit adjustments and the absence of footnotes) ), accompanied by a customary management’s discussion and analysis of the financial condition and results of operations of the Borrower and the other Subsidiaries of Holdings (it being understood that the delivery by the Borrower of quarterly reports on Form 10-Q of the ~~Borrower and its consolidated Subsidiaries~~ Borrower, Holdings or any Parent Entity shall satisfy the requirements of this Section 5.04(b) to the extent such quarterly reports include the information specified herein); (c) If an Availability Triggering Event has occurred and is continuing, within 30 days (or, in the case of a fiscal month that ends on the same day as the end of a fiscal quarter, 45 days) after the end of each fiscal month of each fiscal year of the Borrower, a balance sheet and related statements of operations and cash flows showing the financial position of the Borrower and the other Subsidiaries of Holdings on an Adjusted Consolidated Basis, as of the close of such fiscal month and the results of their operations on an Adjusted Consolidated Basis during such fiscal month and which balance sheet and related statements of operations and cash flows shall be certified by a Financial Officer of the Borrower, on behalf of the Borrower, as fairly presenting, in all material respects, the financial position and results of operations and cash flows of the Borrower and the other Subsidiaries of Holdings on an Adjusted Consolidated Basis in accordance with GAAP (subject to normal year-end audit adjustments and the absence of footnotes); (d) Concurrently with any delivery of financial statements under Section 5.04(a), (b) and (c) above, a certificate of a Financial Officer of the Borrower substantially in the form of Exhibit K, (i) certifying that no Event of Default or Default has occurred or, if such an Event of Default or Default has occurred, specifying the nature and extent thereof and any corrective action taken or proposed to be taken with respect thereto, (ii) if the EBITDA attributable to Unrestricted Subsidiaries exceeds $5.0 million in the aggregate, attaching a reconciliation schedule in reasonable detail showing (A) EBITDA attributable to Unrestricted Subsidiaries and (B) any adjustments to the financial information provided in the financial statements delivered concurrently with such certificate necessary to make the computations with respect to Section 6.10, (iii) setting forth computations in reasonable detail with respect to Section 6.10, whether or not a Covenant Triggering Event has occurred and is continuing, and demonstrating the calculation of Excess Availability as of the end of the period covered by such financial statements or fiscal month, (iv) certifying a list of names of all Immaterial Subsidiaries, that each Subsidiary set forth on such list individually qualifies as an Immaterial Subsidiary and that all such Subsidiaries in the aggregate do not exceed the limitation set forth in clause (b) of the definition of the term “Immaterial Subsidiary”, and (v) certifying a list of names of all Unrestricted Subsidiaries and that each Subsidiary set forth on such list qualifies as an Unrestricted Subsidiary; (e) Promptly after the same become publicly available, copies of all periodic and other publicly available reports, proxy statements and, to the extent requested by the Administrative Agent, other materials filed by Holdings, the Borrower, any of the Subsidiaries or any Parent Entity with the SEC or distributed to its stockholders generally, as applicable; provided, however, that such reports, proxy statements, filings and other materials required to be delivered pursuant to this Section 5.04(e) shall be deemed delivered for purposes of this Agreement when posted to the website of the Borrower or available on the SEC’s XXXXX service (or any successor thereto); (f) Within 90 days after the beginning of each fiscal year of the Borrower, a reasonably detailed annual budget (prepared on a quarterly basis), on an Adjusted Consolidated Basis, for such fiscal year (including a projected balance sheet of the Borrower and the other Subsidiaries of Holdings as of the end of the following fiscal year, and the related statements of projected cash flow and projected income on an Adjusted Consolidated Basis), including a description of underlying assumptions with respect thereto (collectively, the “Budget”), which Budget shall in each case be accompanied by the statement of a Financial Officer of the Borrower substantially in the form of Exhibit L to the effect that, the Budget has been prepared in good faith based on assumptions believed by such Financial Officer to be reasonable as of the date of delivery thereof; (g) Promptly, from time to time, such other information regarding the operations, business affairs, assets and financial condition of Holdings, the Borrower or any of the Subsidiaries, or compliance with the terms of any Loan Document as the Administrative Agent may reasonably request (in each case, for itself or on behalf of any Lender); (h) On or before the date set forth therein with respect thereto, the information and reports specified on Schedule 5.04(h); (i) On or before the fifteenth Business Day of each month, a Borrowing Base Certificate from the Borrower substantially in the form of Exhibit D as of the last day of the immediately preceding month, with such supporting materials as the Administrative Agent shall reasonably request. Notwithstanding the foregoing, after the occurrence and during the continuance of an Availability Triggering Event, the Borrower shall execute and deliver to the Administrative Agent Borrowing Base Certificates weekly on or before the fifth Business Day following the end of the week. In the event that an Availability Triggering Event has occurred, the Borrower shall deliver Borrowing Base Certificates on a weekly basis for a minimum of four weeks, regardless of whether an Availability Triggering Event is continuing during such period. The Borrower may, at its option, deliver Borrowing Base Certificates more frequently than required by the foregoing provisions of this Section 5.04(i), but only if the Borrower continues to deliver Borrowing Base Certificates at the same increased frequency for four weeks. The Administrative Agent, the Lenders and the Borrower hereby acknowledge that (i) information with respect to any Eligible Accounts or Eligible Inventory included in any Borrowing Base Certificate delivered by the Borrower as of any day other than the last day of a month may include the Borrower’s good faith estimates of such items, and (ii) the Administrative Agent may, in its Permitted Discretion, establish a reserve in respect of any estimated amounts included in such calculation; (j) Within 90 days after the beginning of each fiscal year, or as the Administrative Agent may request (but not more than once in any fiscal year unless an Availability Triggering Event has occurred and is continuing), an updated Perfection Certificate reflecting all changes since the date of the information most recently received pursuant to this paragraph (j), Section 4.02 or Section 5.10(e); and (k) At the time of consummation of any Asset Sale in a single transaction or series of related transactions consisting of Collateral having a value in excess of $25.0 million (other than in the ordinary course of business), an updated Borrowing Base Certificate reflecting such Asset Sale. In the event that Holdings or any Parent Entity reports on a consolidated basis, such consolidated reporting at the level of Holdings or such Parent Entity in a manner consistent with that described in paragraphs (a), (b) and (c) of this Section 5.04 for the Borrower and the other Subsidiaries of Holdings will satisfy the requirements of such paragraphs; provided that, in the event that (i) the Borrower delivers financial statements of Holdings or any Parent Entity and (ii) more than 10% of the total assets of Holdings or such Parent Entity and its consolidated subsidiaries as set forth in such financial statements are held by subsidiaries of such person that are not Loan Parties, then the Borrower shall provide consolidating schedules with respect to such financial statements at the time such financial statements are delivered pursuant to paragraphs (a), (b) and (c) of this Section 5.04.

Appears in 2 contracts

Samples: Credit Agreement (Verso Corp), Credit Agreement (Verso Corp)

Appears in 2 contracts

Samples: Credit Agreement (Dollar Tree Inc), Credit Agreement (Dollar Tree Inc)

Financial Statements, Reports, etc. ~~Furnish~~ In the case of the Borrower, furnish to the Administrative ~~Agent (~~Agent, which ~~will promptly~~ shall furnish ~~such information~~ to ~~the Lenders):~~each Lender: (a) within 90 days after the end of each fiscal ~~year (commencing with the fiscal year ending December 31~~year, ~~2016), a~~ its consolidated balance sheet and related statements of ~~operations~~income, stockholders’ equity and cash flows ~~and owners’ equity~~ showing the financial ~~position~~ condition of the Borrower and its consolidated Subsidiaries as of the close of such fiscal year and the ~~consolidated~~ results of ~~their~~ its operations and the operations of such Subsidiaries during such ~~year and setting forth in~~ year, together with comparative ~~form the corresponding~~ figures for the ~~prior~~ immediately preceding fiscal year, ~~which consolidated balance sheet and related statements of operations, cash flows and owners’ equity shall be accompanied by customary management’s discussion and analysis and~~ all audited by McGladrey & Xxxxxx, LLP or other independent public accountants of recognized national standing and accompanied by an opinion of such accountants (which opinion shall not ~~be qualified~~ include (i) an explanatory paragraph expressing doubt about the ability of the Borrower and its consolidated Subsidiaries to continue as ~~to scope of audit~~ a going concern or (ii) any qualification or exception as to the ~~status~~ scope of the Borrower or any Material Subsidiary as a going concern, other than solely with respect to, or resulting solely from, an upcoming maturity date under any series of Indebtedness occurring within one year from the time such ~~opinion is delivered or any potential inability to satisfy a financial maintenance covenant on a future date or in a future period~~audit) to the effect that such consolidated financial statements fairly ~~present, in all material respects,~~ present the financial ~~position~~ condition and results of operations of the Borrower and its consolidated Subsidiaries on a consolidated basis in accordance with GAAP (it being understood that the delivery by the Borrower of annual reports on Form 10-K of the Borrower and its consolidated Subsidiaries shall satisfy the requirements of this Section 5.04(a) to the extent such annual reports include the information specified herein)consistently applied; (b) commencing with the fiscal quarter ended March 31, 2011, within 60 days of the end of such fiscal quarter and, thereafter, within 45 days after the end of each of the first three fiscal quarters of each fiscal ~~year (commencing with the fiscal quarter ending June 30~~year, ~~2016), a~~ its consolidated balance sheet and related statements of ~~operations~~ income, stockholders’ equity and cash flows showing the financial ~~position~~ condition of the Borrower and its consolidated Subsidiaries as of the close of such fiscal quarter and the ~~consolidated~~ results of ~~their~~ its operations and the operations of such Subsidiaries during such fiscal quarter and the ~~then-~~then elapsed portion of the fiscal ~~year and~~year, ~~starting with the fiscal quarter ending September 30, 2016, setting forth in~~ and comparative ~~form the corresponding~~ figures for the ~~corresponding~~ same periods of in the ~~prior~~ immediately preceding fiscal year, all of which shall be in reasonable detail, which consolidated balance sheet and related statements of operations and cash flows shall be accompanied by customary management’s discussion and analysis and which consolidated balance sheet and related statements of operations and cash flows shall be certified by a one of its Financial ~~Officer of the Borrower on behalf of the Borrower~~ Officers as fairly ~~presenting, in all material respects,~~ presenting the financial ~~position~~ condition and results of operations of the Borrower and its consolidated Subsidiaries on a consolidated basis in accordance with GAAP (consistently applied, subject to normal year-end audit ~~adjustments~~ adjustments; provided, however, that with respect to the fiscal quarter ending March 31, 2011, the furnished consolidated balance sheets and related statements of income, stockholders’ equity and cash flows shall be those of Checksmart Financial Holdings Corp., shall be delivered together with a “Management’s Discussion and Analysis of Financial Condition and Results of Operations”, with respect to the ~~absence~~ interim financial information contained therein, prepared on a basis substantially consistent with, and with the same level of ~~footnotes~~detail as, the corresponding information included in the Senior Secured Notes Offering Circular or, at the option of the Borrower, the then applicable SEC requirements and shall be certified by a Financial Officer as provided herein; (c) concurrently with any delivery of financial statements under paragraph (a) or (b) of this Section 5.04, a certificate of the accounting firm (in the case of paragraph (a)) or Financial Officer (in the case of paragraph (b)) opining on or certifying such statements (which certificate, when furnished by an accounting firm, may be limited to accounting matters and disclaim responsibility for legal interpretations) (~~it being understood~~ i) certifying that no Event of Default or Default has occurred or, if such an Event of Default or Default has occurred, specifying the ~~delivery~~ nature and extent thereof and any corrective action taken or proposed to be taken with respect thereto and (ii) setting forth computations in reasonable detail satisfactory to the Administrative Agent demonstrating the Leverage Ratio (whether or not compliance with the covenant contained in Section 6.09 is then required); (d) within 90 days after the beginning of each fiscal year of the Borrower, a detailed consolidated budget for such fiscal year (including a projected consolidated balance sheet and related statements of projected operations and cash flows as of the end of and for such fiscal year and setting forth the assumptions used for purposes of preparing such budget) and, promptly when available, any significant revisions of such budget; (e) promptly after the same become publicly available, copies of all periodic and other reports, proxy statements and other materials filed by the Borrower or any Restricted Subsidiary with the Securities and Exchange Commission, or any Governmental Authority succeeding to any or all of ~~quarterly reports on Form 10~~the functions of said Commission, or with any national securities exchange, or distributed to its shareholders, as the case may be; (f) promptly after the receipt thereof by the Borrower or any Subsidiary, a copy of any “management letter” received by any such Person from its certified public accountants and the management’s response thereto; (g) promptly after the request by any Lender, all documentation and other information that such Lender reasonably requests in order to comply with its ongoing obligations under applicable “know your customer” and anti-Q money laundering rules and regulations, including the USA PATRIOT Act; (h) promptly after the request by the Administrative Agent or any Lender, copies of (i) any documents described in Section 101(k)(1) of ERISA that the Borrower or any of its ERISA Affiliates may request with respect to any Multiemployer Plan and (ii) any notices described in Section 101(l)(1) of ERISA that the Borrower or any of its ERISA Affiliates may request with respect to any Multiemployer Plan; provided that if the Borrower or any of its ERISA Affiliates has not requested such documents or notices from the administrator or sponsor of the applicable Multiemployer Plan, the Borrower or the applicable ERISA Affiliate shall promptly make a request for such documents or notices from such administrator or sponsor and shall provide copies of such documents and notices promptly after receipt thereof; and (i) promptly, from time to time, such other information regarding the operations, business affairs and financial condition of the Borrower ~~and its consolidated Subsidiaries shall satisfy~~ or any Subsidiary, or compliance with the ~~requirements~~ terms of ~~this Section 5.04(b) to~~ any Loan Document, as the ~~extent such quarterly reports include the information specified herein);~~Administrative Agent or any Lender may reasonably request.

Appears in 2 contracts

Samples: Revolving Credit Agreement (Reliant Software, Inc.), Revolving Credit Agreement (Community Choice Financial Inc.)

Financial Statements, Reports, etc. ~~Furnish~~ Deliver to ~~the Administrative Agent (which will promptly furnish such information to the Lenders):~~each Lender: (a) As soon as is practicable, but in any event within 90 days after the end of each fiscal year of the Borrower, (~~commencing with the fiscal year ending December 31, 2016), a~~ i) either (A) consolidated ~~balance sheet and related~~ statements of income (or operations, ) and consolidated statements of cash flows and ~~owners~~changes in stockholders’ equity ~~showing the financial position~~ of the Borrower and its Consolidated Subsidiaries ~~as of the close of~~ for such ~~fiscal~~ year and the related consolidated ~~results~~ balance sheets as at the end of ~~their operations during~~ such ~~year and setting forth in comparative form the corresponding figures for the prior fiscal~~ year, ~~which consolidated balance sheet~~ or (B) the Form 10-K filed by the Borrower with the Securities and ~~related statements~~ Exchange Commission and (ii) if not included in such Form 10-K, an opinion of ~~operations, cash flows and owners’ equity shall be accompanied by customary management’s discussion and analysis and audited by~~ independent certified public accountants of recognized national ~~standing and accompanied by an opinion of such accountants (~~standing, which opinion shall not be qualified as to scope of audit or as to the status of the Borrower or any Material Subsidiary as a going concern, other than solely with respect to, or resulting solely from, an upcoming maturity date under any series of Indebtedness occurring within one year from the time such opinion is delivered or any potential inability to satisfy a financial maintenance covenant on a future date or in a future period) to the effect state that ~~such~~ said consolidated financial statements fairly ~~present, in all material respects,~~ present the consolidated financial position and results of operations of the Borrower and its Consolidated Subsidiaries ~~on a consolidated basis~~ as at the end of, and for, such fiscal year and that such financial statements were prepared in accordance with GAAP ~~(it being understood that~~ applied consistently throughout the ~~delivery by the Borrower of annual reports on Form 10-K of the Borrower~~ periods reflected therein and ~~its consolidated Subsidiaries shall satisfy the requirements of this Section 5.04(a) to the extent such annual reports include the information specified herein)~~with prior periods; (b) As soon as is practicable, but in any event within 45 days after the end of each of the first three fiscal quarters of each fiscal ~~year~~ year, either (~~commencing~~ i) the Form 10-Q filed by the Borrower with the ~~fiscal quarter ending June 30, 2016), a~~ Securities and Exchange Commission or (ii) the unaudited consolidated balance sheet of the Borrower and its Consolidated Subsidiaries, as at the end of such fiscal quarter, and the related unaudited statements of ~~operations~~ income and cash flows ~~showing~~ for such quarter and for the period from the beginning of the then current fiscal year to the end of such fiscal quarter and the corresponding figures as of the end of the preceding fiscal year, and for the corresponding period in the preceding fiscal year, in each case, together with a certificate (substantially in the form of Exhibit C) signed by the chief financial officer, the chief accounting officer or a vice president responsible for financial administration of the Borrower to the effect that such financial statements, while not examined by independent public accountants, reflect, in his opinion and in the opinion of the Borrower, all adjustments necessary to present fairly the financial position of the Borrower and its ~~Subsidiaries~~ Consolidated Subsidiaries, as the case may be, as at the end of the ~~close of such~~ fiscal quarter and the ~~consolidated~~ results of their operations ~~during~~ for the quarter then ended in conformity with GAAP consistently applied, subject only to year-end and audit adjustments and to the absence of footnote disclosure; (c) Together with the delivery of the statements referred to in paragraphs (a) and (b) of this Section 5.1, a certificate of the chief financial officer, chief accounting officer or a vice president responsible for financial administration of the Borrower, substantially in the form of Exhibit C hereto (i) stating whether or not the signer has knowledge of any Default or Event of Default and, if so, specifying each such ~~fiscal quarter~~ Default or Event of Default of which the signer has knowledge and the ~~then-elapsed portion of the fiscal year and~~nature thereof, ~~starting~~ (ii) demonstrating in reasonable detail compliance with the ~~fiscal quarter ending September 30~~provisions of Sections 6.6, ~~2016,~~ 6.7 and 6.10 and (iii) setting forth in ~~comparative~~ a schedule (in the form ~~the corresponding figures for the corresponding periods~~ of Schedule 5.1(c) attached hereto) a description of the ~~prior fiscal year, all of which shall be~~ Mortgage Warehouse Facilities and Servicing Advance Facilities in reasonable detail, which consolidated balance sheet and related statements of operations and cash flows shall be accompanied by customary management’s discussion and analysis and which consolidated balance sheet and related statements of operations and cash flows shall be certified by a Financial Officer effect on the last day of the ~~Borrower on behalf~~ most recently ended fiscal quarter; (d) As soon as practicable, but in any event within 90 days after the end of each fiscal year of the ~~Borrower as fairly presenting~~Borrower, ~~in all material respects, the financial position and results of operations~~ detailed projections of the Borrower and its Consolidated Subsidiaries ~~on a consolidated basis in accordance with GAAP~~ for the following fiscal year and, as soon as available, significant revisions of any such projections; (~~subject to normal year-end audit adjustments and the absence of footnotes~~e) ~~(it being understood that the delivery by the Borrower of quarterly reports on Form 10-Q~~ Promptly upon any executive officer of the Borrower or any of its Subsidiaries obtaining knowledge of the occurrence of any Default or Event of Default, a certificate of the president, chief financial officer or chief accounting officer of the Borrower specifying the nature and period of existence of such Default or Event of Default and what action the Borrower has taken, is taking and proposes to take with respect thereto; and (f) Promptly upon any executive officer of the Borrower or any of its ~~consolidated~~ Subsidiaries ~~shall satisfy~~ obtaining knowledge of (i) the ~~requirements~~ institution of ~~this Section 5.04(b~~any action, suit, proceeding, investigation or arbitration by any Governmental Authority or other Person against or affecting the Borrower or any of its Subsidiaries or any of their assets, or (ii) any material development in any such action, suit, proceeding, investigation or arbitration (whether or not previously disclosed to the Lenders), which, in each case might reasonably be expected to have a Material Adverse Effect, prompt notice thereof and such other information as may be reasonably available to it (without waiver of any applicable evidentiary privilege) to enable the ~~extent~~ Lenders to evaluate such ~~quarterly reports include the information specified herein);~~matters.

Appears in 2 contracts

Samples: Competitive Advance and Revolving Credit Agreement (PHH Corp), Competitive Advance and Revolving Credit Agreement (PHH Corp)

Financial Statements, Reports, etc. ~~Furnish~~ In the case of the Borrower, furnish to the Administrative ~~Agent (~~Agent, which ~~will promptly~~ shall furnish ~~such information~~ to ~~the Lenders):~~each Lender: (a) ~~within~~ no later than the date that is the earlier of (i) the date by which the Annual Report on Form 10-K of the Borrower for each fiscal year is required to be filed under the rules and regulations of the SEC and (ii) 90 days after the end of ~~each~~ such fiscal ~~year (commencing with the fiscal year ending December 31~~year, ~~2016), a~~ its consolidated balance ~~sheet~~ sheets and related statements of operations, stockholders’ equity and cash flows ~~and owners’ equity~~ showing the financial ~~position~~ condition of the Borrower and its consolidated Subsidiaries as of the close of such fiscal year and the ~~consolidated~~ results of ~~their~~ its operations and the operations of such Subsidiaries during such ~~year and setting forth in~~ year, together with comparative ~~form the corresponding~~ figures for the ~~prior~~ immediately preceding fiscal year, ~~which consolidated balance sheet and related statements of operations, cash flows and owners’ equity shall be accompanied by customary management’s discussion and analysis and~~ all audited by PricewaterhouseCoopers LLP or other independent public accountants of recognized national standing reasonably acceptable to the Required Lenders and accompanied by an opinion of such accountants (which ~~opinion~~ shall not be qualified ~~as to scope of audit~~ in any material respect (it being agreed that any “going concern” or like qualification or exception or exception as to the ~~status~~ scope of ~~the Borrower or any Material Subsidiary as~~ such audit shall be deemed to be a going concern, other than solely with respect to, or resulting solely from, an upcoming maturity date under any series of Indebtedness occurring within one year from the time such opinion is delivered or any potential inability to satisfy a financial maintenance covenant on a future date or in a future periodmaterial qualification)) to the effect that such consolidated financial statements fairly ~~present,~~ present in all material ~~respects,~~ respects the financial ~~position~~ condition and results of operations of the Borrower and its consolidated Subsidiaries on a consolidated basis in accordance with GAAP ~~(it being understood that the delivery by the Borrower of annual reports on Form 10-K of the Borrower~~ consistently applied, together with a customary “management discussion and ~~its consolidated Subsidiaries shall satisfy the requirements of this Section 5.04(a) to the extent such annual reports include the information specified herein)~~analysis” provision; (b) ~~within 45 days after~~ no later than the ~~end~~ date that is the earlier of (i) the date by which the Quarterly Report on Form 10-Q of the Borrower for each of the first three fiscal quarters of each fiscal year is required to be filed under the rules and regulations of the SEC and (~~commencing with~~ ii) 45 days after the end of such fiscal ~~quarter ending June 30~~quarter, ~~2016), a~~ its consolidated balance ~~sheet~~ sheets and related statements of ~~operations~~ operations, stockholders’ equity and cash flows showing the financial ~~position~~ condition of the Borrower and its consolidated Subsidiaries as of the close of such fiscal quarter and the ~~consolidated~~ results of ~~their~~ its operations and the operations of such Subsidiaries during such fiscal quarter and the ~~then-~~then elapsed portion of the fiscal ~~year~~ year, and, ~~starting~~ other than with respect to quarterly reports during the remainder of the first fiscal ~~quarter ending September 30~~year after the Amendment No. 1 Effective Date, ~~2016, setting forth in~~ comparative ~~form the corresponding~~ figures for the ~~corresponding~~ same periods of in the ~~prior~~ immediately preceding fiscal year, all of which shall be in reasonable detail, which consolidated balance sheet and related statements of operations and cash flows shall be accompanied by customary management’s discussion and analysis and which consolidated balance sheet and related statements of operations and cash flows shall be certified by a one of its Financial ~~Officer of the Borrower on behalf of the Borrower~~ Officers as fairly ~~presenting,~~ presenting in all material ~~respects,~~ respects the financial ~~position~~ condition and results of operations of the Borrower and its consolidated Subsidiaries on a consolidated basis in accordance with GAAP (consistently applied, subject to normal year-end audit ~~adjustments~~ adjustments, together with a customary “management discussion and analysis” provision; (c) concurrently with any delivery of financial statements under paragraph (a) or (b) above, a certificate of a Financial Officer in the ~~absence~~ form of ~~footnotes~~Exhibit H (i) certifying that no Event of Default or Default has occurred or, if such an Event of Default or Default has occurred, specifying the nature and extent thereof and any corrective action taken or proposed to be taken with respect thereto and (~~it being understood~~ ii) setting forth computations in reasonable detail satisfactory to the Administrative Agent demonstrating compliance with the covenants contained in Sections 6.10, 6.11 and 6.12 and, in the case of a certificate delivered with the financial statements required by paragraph (a) above, setting forth the Borrower’s calculation of Excess Cash Flow; (d) concurrently with any delivery of financial statements under paragraph (a) above, a certificate of the accounting firm that reported on such statements (which certificate may be prepared in accordance with professional accounting standards and may be limited to accounting matters and disclaim responsibility for legal interpretations) stating that in performing the audit necessary therefor, no knowledge was obtained of the existence of any Event of Default or Default with respect to Sections 6.10, 6.11 or 6.12 or, if such knowledge was obtained, specifying the existence thereof in reasonable detail; (e) on or prior to each date of delivery by of financial statements under paragraph (a) above, the Borrower shall provide to each Lender a business plan for the following two years, in a form satisfactory to the Administrative Agent; (f) promptly after the same become publicly available, copies of ~~quarterly~~ all reports (excluding, in any event, copies of press releases) which the Borrower sends to its stockholders, and copies of all registration statements, reports on Form 10-K, Form 10-Q or Form 8-K (or, in each case, any successor form) and other material reports which the Borrower or any Subsidiary files with the SEC or any successor or analogous Governmental Authority (other than public offerings of securities under employee benefit plans or dividend reinvestment plans); (g) promptly after the receipt thereof by the Borrower or any Subsidiary, a copy of any “management letter” received by any such person from its certified public accountants and the management’s response thereto; (h) promptly after the request by any Lender, all documentation and other information that such Lender reasonably requests in order to comply with its ongoing obligations under applicable “know your customer” and anti-money laundering rules and regulations, including the Patriot Act; and (i) promptly, from time to time, such other information regarding the operations, business affairs and financial condition of the Borrower ~~and its consolidated Subsidiaries shall satisfy~~ or any Subsidiary, or compliance with the ~~requirements~~ terms of ~~this Section 5.04(b) to~~ any Loan Document, as the ~~extent such quarterly reports include the information specified herein);~~Administrative Agent or any Lender may reasonably request.

Appears in 2 contracts

Samples: Credit Agreement (Alpharma Inc), Credit Agreement (King Pharmaceuticals Inc)

Financial Statements, Reports, etc. ~~Furnish~~ In the case of the Borrower, furnish to the Administrative ~~Agent (~~Agent, which will ~~promptly furnish such information~~ distribute to ~~the Lenders):~~each Lender: (a) within 90 days after the end of each fiscal year (commencing with the fiscal year ending December 31, 2016), a consolidated balance sheet and related statements of operations, cash flows and owners’ equity showing the financial position of the Borrower and its Subsidiaries as of the close of such fiscal year and the consolidated results of their operations during such year and setting forth in comparative form the corresponding figures for the prior fiscal year, which consolidated balance sheet and related statements of operations, cash flows and owners’ equity shall be accompanied by customary management’s discussion and analysis and audited by independent public accountants of recognized national standing and accompanied by an opinion of such accountants (which opinion shall not be qualified as to scope of audit or as to the status of the Borrower or any Material Subsidiary as a going concern, other than solely with respect to, or resulting solely from, an upcoming maturity date under any series of Indebtedness occurring within one year from the time such opinion is delivered or any potential inability to satisfy a financial maintenance covenant on a future date or in a future period) to the effect that such consolidated financial statements fairly present, in all material respects, the financial position and results of operations of the Borrower and its Subsidiaries on a consolidated basis in accordance with GAAP (it being understood that the delivery by the Borrower of annual reports on Form 10-K of the Borrower and its consolidated Subsidiaries shall satisfy the requirements of this Section 5.04(a) to the extent such annual reports include the information specified herein); (b) within 45 days after the end of each fiscal quarter (or, if such fiscal quarter end is also the end of the ~~first three~~ Borrower’s fiscal ~~quarters~~ year, 90 days after the end of ~~each~~ such fiscal ~~year (commencing with the fiscal quarter ending June 30, 2016~~year), a the Borrower’s consolidated and consolidating balance sheet and related consolidated and consolidating statements of ~~operations~~ income and cash ~~flows~~ flows, showing the financial ~~position~~ condition of the Borrower and its ~~Subsidiaries~~ consolidated subsidiaries as of the close of such fiscal quarter and the ~~consolidated~~ results of their operations ~~during~~ and cash flows for such fiscal quarter and the ~~then-~~then elapsed portion of the fiscal year ~~and, starting~~ with ~~the fiscal quarter ending September 30, 2016, setting forth in~~ comparative ~~form the corresponding~~ figures for the ~~corresponding~~ same periods of in the ~~prior~~ immediately preceding fiscal year, all of which shall be in reasonable detail, which consolidated balance sheet and related statements of operations and cash flows shall be accompanied by customary management’s discussion and analysis and which consolidated balance sheet and related statements of operations and cash flows shall be certified by a Financial Officer of the Borrower ~~on behalf of the Borrower~~ as fairly ~~presenting, in all material respects,~~ presenting the financial ~~position~~ condition and results of operations and cash flows of the Borrower and its ~~Subsidiaries~~ consolidated subsidiaries on a consolidated and consolidating basis in accordance with GAAP (consistently applied, subject to normal year-end audit adjustments and the absence of ~~footnotes) (it being understood~~ certain footnotes provided, however, that such obligation shall be satisfied if the Borrower timely files with the SEC all quarterly and annual reports that the ~~delivery by~~ Borrower is required to file with the ~~Borrower of quarterly reports~~ SEC on ~~Form~~ Forms 10-Q and 10-K, provided, further, that the availability of the foregoing materials on the SEC’s XXXXX service (or its successor) will be deemed to satisfy the Borrower’s delivery obligation; (b) concurrently with any delivery, or deemed delivery, of financial statements under paragraph (a) above, a certificate of a Responsible Officer certifying that no Event of Default or Default has occurred or, if such an Event of Default or Default has occurred, specifying the nature and extent thereof and any corrective action taken or proposed to be taken with respect thereto; (c) promptly, following a request by any Lender, all documentation and other information that such Lender reasonably requests in order to comply with its ongoing obligations under applicable “know your customer” and anti-money laundering rules and regulations, including the USA Patriot Act; and (d) promptly, from time to time, such other information regarding the operations, business affairs and financial condition of the Borrower ~~and~~ or any of its ~~consolidated Subsidiaries shall satisfy~~ subsidiaries, or compliance with the ~~requirements~~ terms of ~~this Section 5.04(b) to~~ any Loan Document, as the ~~extent such quarterly reports include the information specified herein);~~Administrative Agent or any Lender may reasonably request.

Appears in 2 contracts

Samples: Credit Agreement (Alon USA Energy, Inc.), Credit Agreement (Alon Refining Krotz Springs, Inc.)

Financial Statements, Reports, etc. Furnish to the Administrative Agent (which will promptly furnish such information to the Lenders): (1) within 120 days following the end of the fiscal year ending on the earlier of (a) on or about January 30, 2016 or (b) the fiscal year ended after the Closing Date, and within 90 days ~~after~~ following the end of each fiscal year ~~(commencing with the fiscal year ending December 31, 2016)~~thereafter, a consolidated balance sheet and related statements of operations, cash flows and owners’ equity showing the financial position of the Borrower and ~~its~~ the Restricted Subsidiaries as of the close of such fiscal year and the consolidated results of ~~their~~ its operations during such fiscal year ~~and~~ and, in each case, starting with the following fiscal year, setting forth in comparative form the corresponding figures for the prior fiscal year, which consolidated balance sheet and related statements of operations, cash flows and owners’ equity ~~shall~~ will be ~~accompanied by customary management’s discussion and analysis and~~ audited by independent public accountants of recognized national ~~standing~~ standing, or such other accountants as are reasonably acceptable to the Administrative Agent, and accompanied by an opinion of such accountants (which opinion shall not be ~~qualified as~~ subject to ~~scope of audit or as to the status of the Borrower or~~ any ~~Material Subsidiary as a~~ “going concern” statement, explanatory note or like qualification or exception (other than ~~solely with respect to~~a “going concern” statement, explanatory note or like qualification or exception resulting solely ~~from,~~ from an upcoming maturity date ~~under any series of Indebtedness~~ occurring within one year from the time such opinion is delivered or ~~any potential inability to satisfy a financial maintenance~~ anticipated (but not actual) covenant ~~on a future date or in a future period~~non-compliance)) to the effect that such consolidated financial statements fairly present, in all material respects, the financial position and results of operations of the Borrower and ~~its~~ the Restricted Subsidiaries on a consolidated basis in accordance with GAAP (it the applicable financial statements delivered pursuant to this clause (1) being ~~understood that~~ the delivery by the Borrower of annual reports on Form 10-K of the Borrower and its consolidated Subsidiaries shall satisfy the requirements of this Section 5.04(a) to the extent such annual reports include the information specified herein“ Annual Financial Statements”); (b2) within 60 days following the end of the fiscal quarters ending on or about April 30, 2016 and on or about July 31, 2016, and, thereafter, within 45 days ~~after~~ following the end of each of the first three fiscal quarters of each fiscal ~~year (commencing with the fiscal quarter ending June 30, 2016)~~year, a consolidated balance sheet and related statements of operations and cash flows showing the financial position of the Borrower and ~~its~~ the Restricted Subsidiaries as of the close of such fiscal quarter and the consolidated results of ~~their~~ its operations during such fiscal quarter ~~and~~ and, in each case, the then-elapsed portion of the fiscal year ~~and, starting with the fiscal quarter ending September 30, 2016,~~ and setting forth in comparative form the corresponding figures for the corresponding periods of the prior fiscal year, ~~all of which shall be in reasonable detail,~~ which consolidated balance sheet and related statements of operations and cash flows ~~shall be accompanied by customary management’s discussion and analysis and which consolidated balance sheet and related statements of operations and cash flows shall~~ will be certified by a ~~Financial~~ Responsible Officer of the Borrower on behalf of the Borrower as fairly presenting, in all material respects, the financial position and results of operations of the Borrower and ~~its~~ the Restricted Subsidiaries on a consolidated basis in accordance with ~~GAAP (~~GAAP, subject to normal year-end audit adjustments and the absence of ~~footnotes~~footnotes (the applicable financial statements delivered pursuant to this clause (2) being the “ Quarterly Financial Statements” and, together with the Annual Financial Statements, the “Required Financial Statements”); (3) concurrently with any delivery of Required Financial Statements, a certificate of a Financial Officer of the Company: (a) certifying that no Default or Event of Default has occurred and is continuing or, if a Default or Event of Default has occurred and is continuing, specifying the nature and extent thereof and any corrective action taken or proposed to be taken with respect thereto; (b) setting forth the calculation and uses of the Available Amount for the fiscal period then ended if the Borrower has used the Available Amount for any purpose during such fiscal period; (c) certifying a list of all Immaterial Subsidiaries, that each Subsidiary set forth on such list individually qualifies as an Immaterial Subsidiary and that all such Subsidiaries in the aggregate do not exceed the limitation set forth in clause (ii) of the definition of the term “Immaterial Subsidiary;” (d) setting forth, in reasonable detail, the calculation of the Senior Secured First Lien Net Leverage Ratio for the most recent period of four consecutive fiscal quarters as of the close of such fiscal year or such fiscal quarter, as applicable; and (e) certifying a list of all Unrestricted Subsidiaries at such time and that each Subsidiary set forth on such list qualifies as an Unrestricted Subsidiary; (4) promptly after the same become publicly available, copies of all periodic and other publicly available reports, proxy statements and, to the extent requested by the Administrative Agent, other materials publicly filed by Holdings, the Borrower or any Restricted Subsidiary with the SEC or, after an initial public offering, distributed to its stockholders generally, as applicable; (5) within 120 days following the end of the fiscal year ending on or about January 30, 2017, and within 90 days following the end of each full fiscal year ended thereafter, a consolidated annual budget for such fiscal year in the form customarily prepared by the Borrower (the “ Budget”), which Budget will in each case be accompanied by the statement of a Financial Officer of the Borrower on behalf of the Borrower to the effect that the Budget is based on assumptions believed by the Borrower to be reasonable as of the date of delivery thereof; (6) upon the reasonable request of the Collateral Agent, concurrently with the delivery of the Annual Financial Statements, an updated Perfection Certificate (or, to the extent such request relates to specified information contained in the Perfection Certificate, such information) reflecting all changes since the date of the information most recently received pursuant to this paragraph (6) or Section 5.10; (7) promptly, from time to time, such other information regarding the operations, business affairs and financial condition of Holdings, the Borrower or any Restricted Subsidiary, in each case, as the Administrative Agent may reasonably request (for itself or on behalf of any Lender); and (8) promptly upon request by the Administrative Agent (so long as the following are obtainable using commercially reasonable measures), copies of any documents described in Section 101(k)(1) of ERISA that the Borrower or any of its ERISA Affiliates may request with respect to any Multiemployer Plan; provided that if the Borrower or any of its ERISA Affiliates has not requested such documents from the administrator or sponsor of the applicable Multiemployer Plan, the Borrower or the applicable ERISA Affiliate shall promptly make a request for such documents or notices from such administrator or sponsor and shall provide copies of such documents and notices promptly after receipt thereof. Anything to the contrary notwithstanding, the obligations in clauses (1) and (2) of this Section 5.04 may be satisfied with respect to financial information of the Borrower and the Restricted Subsidiaries by furnishing (1) the applicable financial statements of Holdings (or any other Parent Entity) or (2) the Borrower’s or Holdings’ (or any such other Parent Entity’s), as applicable, Form 10-K or 10-Q, as applicable, filed with the SEC; provided that with respect to each of the foregoing clauses (1) and (2) (a) to the extent such information relates to Holdings (or a Parent Entity), such information is accompanied by consolidating information that explains in reasonable detail the differences between the information relating to Holdings (or such Parent Entity), on the one hand, and the information relating to the Borrower and the Restricted Subsidiaries on a standalone basis, on the other hand, and (b) to the extent such information is in lieu of information required to be provided under Section 5.04(1), such materials are accompanied by a report and opinion of independent public accountants of recognized national standing, or such other accountants as are reasonably acceptable to the Administrative Agent, and accompanied by an opinion of such accountants (which opinion shall not be subject to any “going concern” statement, explanatory note or like qualification or exception (other than a “going concern” statement, explanatory note or like qualification or exception resulting solely from an upcoming maturity date occurring within one year from the time such opinion is delivered or anticipated (but not actual) covenant non-compliance)) (it being understood and agreed that ~~the delivery by~~ if, in compliance with this paragraph, (x) the Borrower provides audited financial statements of ~~quarterly reports~~ Holdings (or any other Parent Entity) and related report and opinion of accountants with respect thereto in lieu of information required to be provided under Section 5.04(1), no such audited financial information, opinion or report shall be required with respect to the Borrower, (y) the Borrower provides unaudited financial statements of Holdings (or any other Parent Entity) in lieu of information required to be provided under Section 5.04(2), no such unaudited financial information shall be required with respect to the Borrower and (z) the Borrower provides a Budget of Holdings and accompanying statement (or any other Parent Entity) in lieu of information required to be provided under Section 5.04(5), no such Budget shall be required with respect to the Borrower; provided that for the avoidance of doubt, with respect to the foregoing clauses (x), (y) and (z) (i) to the extent such information relates to Holdings (or a Parent Entity), such information is accompanied by consolidating information that explains in reasonable detail the differences between the information relating to Holdings (or such Parent Entity), on ~~Form 10~~the one hand, and the information relating to the Borrower and the Restricted Subsidiaries on a standalone basis, on the other hand, and (ii) to the extent such information is in lieu of information required to be provided under Section 5.04(1), such materials are accompanied by a report and opinion of independent public accountants of recognized national standing, or such other accountants as are reasonably acceptable to the Administrative Agent, and accompanied by an opinion of such accountants (which opinion shall not be subject to any “going concern” statement, explanatory note or like qualification or exception (other than a “going concern” statement, explanatory note or like qualification or exception resulting solely from an upcoming maturity date occurring within one year from the time such opinion is delivered or anticipated (but not actual) covenant non-Q compliance). The obligations in clauses (1) and (2) of this Section 5.04 may be satisfied by delivery of financial information of the Borrower and its ~~consolidated~~ Subsidiaries ~~shall satisfy~~ so long as such financial statements include a reasonably detailed presentation, either on the ~~requirements~~ face of the financial statements or in the footnotes thereto, of the financial condition and results of operations of the Borrower and the Restricted Subsidiaries separate from the financial condition and results of operations of the Unrestricted Subsidiaries of the Borrower. Documents required to be delivered pursuant to this Section ~~5.04(b) to the extent such quarterly reports include the information specified herein~~5.04 may be delivered electronically in accordance with Section 10.01(5);.

Appears in 2 contracts

Samples: Term Loan Credit Agreement (PET Acquisition LLC), Term Loan Credit Agreement (PET Acquisition LLC)

Appears in 2 contracts

Samples: Credit Agreement (Verso Paper Corp.), Credit Agreement (Verso Paper Corp.)

Financial Statements, Reports, etc. Furnish to the Administrative Agent (which will promptly furnish such information to the Lenders): (a) within 90 120 days after the end of each fiscal ~~year (commencing with the fiscal year ending December 31, 2016)~~year, a consolidated balance sheet and related statements of operations, cash flows and owners’ equity showing the financial position of the Borrower and its Subsidiaries and, if different, the Borrower and the Restricted Subsidiaries, in each case as of the close of such fiscal year and the consolidated results of their operations during such year and setting forth in comparative form the corresponding figures for the prior fiscal ~~year, which consolidated balance sheet and related~~ year (or in lieu of such audited financial statements of ~~operations~~the Borrower and the Restricted Subsidiaries, ~~cash flows~~ a detailed reconciliation, reflecting such financial information for the Borrower and ~~owners’ equity shall be accompanied by customary management’s discussion~~ the Restricted Subsidiaries, on the one hand, and ~~analysis~~ the Borrower and the Subsidiaries, on the other hand, reflecting adjustments necessary to eliminate the accounts of Unrestricted Subsidiaries (if any) from such consolidated financial statements), all (except with respect to such reconciliation) audited by independent ~~public~~ accountants of recognized national standing reasonably acceptable to the Administrative Agent and accompanied by an opinion of such accountants (which opinion shall ~~not~~ be ~~qualified as~~ without a “going concern” or like qualification (other than an exception or explanatory paragraph with respect to ~~scope~~ the maturity of ~~audit~~ the Facilities for an opinion delivered in the fiscal year in which such Indebtedness matures) and without any qualification or exception as to the ~~status~~ scope of the Borrower or any Material Subsidiary as a going concern, other than solely with respect to, or resulting solely from, an upcoming maturity date under any series of Indebtedness occurring within one year from the time such ~~opinion is delivered or any potential inability to satisfy a financial maintenance covenant on a future date or in a future period~~audit) to the effect that such consolidated financial statements fairly present, in all material respects, the financial position and results of operations of the Borrower and its Subsidiaries on a consolidated basis in accordance with GAAP (it being understood that the delivery by the Borrower of annual reports on Form 10-K of the Borrower and its consolidated Subsidiaries shall satisfy the requirements of this Section 5.04(a) to the extent such annual reports include the information specified herein)GAAP; (b) within 45 60 days after the end of each of the first three fiscal quarters of each fiscal ~~year (commencing with the fiscal quarter ending June 30, 2016)~~year, a consolidated balance sheet and related statements of operations and cash flows showing the financial position of the Borrower and its Subsidiaries and, if different, the Borrower and the Restricted Subsidiaries, in each case as of the close of such fiscal quarter and the consolidated results of their operations during such fiscal quarter and the then-elapsed portion of the fiscal year ~~and, starting with the fiscal quarter ending September 30, 2016,~~ and setting forth in comparative form the corresponding figures for the corresponding periods of the prior fiscal ~~year~~year (or in lieu of such unaudited financial statements of the Borrower and the Restricted Subsidiaries, a detailed reconciliation, reflecting such financial information for the Borrower and the Restricted Subsidiaries, on the one hand, and the Borrower and the Subsidiaries, on the other hand, reflecting adjustments necessary to eliminate the accounts of Unrestricted Subsidiaries (if any) from such consolidated financial statements), all of which shall be in reasonable detail, which consolidated balance sheet and related statements of operations and cash flows shall be accompanied by customary management’s discussion and analysis and which consolidated balance sheet and related statements of operations and cash flows shall be certified by Crestwood GP or a Financial Officer of the ~~Borrower~~ Borrower, on behalf of the ~~Borrower~~ Borrower, as fairly presenting, in all material respects, the financial position and results of operations of the Borrower and its Subsidiaries on a consolidated basis in accordance with GAAP (subject to normal year-end audit adjustments and the absence of footnotes); (c) concurrently with any delivery of financial statements under (a) or (b) above, a certificate of Crestwood GP or a Financial Officer of the Borrower (i) certifying that no Event of Default or Default has occurred or, if such an Event of Default or Default has occurred, specifying the nature and extent thereof and any corrective action taken or proposed to be taken with respect thereto, (ii) setting forth a computation of the Financial Performance Covenants in detail reasonably satisfactory to the Administrative Agent and (iii) certifying that the Mortgage Requirement is satisfied at the end of the applicable fiscal period; (d) (~~it being understood that~~ i) upon the ~~delivery by~~ consummation of (A) any Permitted Business Acquisition, (B) the acquisition of any Relevant Subsidiary, (C) any Person becoming a Relevant Subsidiary or (D) the contribution to the Borrower of ~~quarterly reports~~ Equity Interests in any Person acquired pursuant to a Group Acquisition, in each case if the aggregate consideration for such transaction (or, in the case of clause (D), such Group Acquisition) exceeds $25.0 million, or upon the reasonable request of the Administrative Agent (but not, in the case of such request, more often than annually), an updated Perfection Certificate (or, to the extent such request relates to specified information contained in the Perfection Certificate, such information) reflecting all changes since the date of the information most recently received pursuant to Section 4.02(e), this Section 5.04(d) or Section 5.10(e) and (ii) concurrently with the delivery of financial statements under Section 5.04(a), a certificate executed by a Responsible Officer of the Borrower certifying compliance with Section 5.02(c) and providing evidence of such compliance, including without limitation copies of any flood hazard determination forms required to be delivered pursuant to Section 5.02(c); (e) promptly, from time to time, such other information regarding the operations, business affairs and financial condition of the Borrower or any of its Relevant Subsidiaries, or compliance with the terms of any Loan Document, or such consolidating financial statements, as in each case the Administrative Agent may reasonably request (for itself or on ~~Form 10-Q~~ behalf of any Lender); and (f) no later than one hundred and twenty (120) days following the first day of each fiscal year of the Borrower, a budget for such fiscal year in form customarily prepared by the Borrower; provided that, if the Holding Company Condition is satisfied as of the date of the relevant financial statements (or in the case of a budget on the first day of the applicable fiscal year), the obligations in clauses (a), (b) and (f) of this Section 5.04 may be satisfied with respect to financial information of the Borrower and ~~its consolidated~~ the Restricted Subsidiaries ~~shall satisfy~~ by furnishing the ~~requirements~~ applicable financial statements of ~~this Section 5.04(b)~~ Crestwood Equity Partners; provided that to the extent such ~~quarterly reports include~~ information relates to Crestwood Equity Partners, the Borrower shall promptly provide to the Administrative Agent, upon request from the Administrative Agent, consolidating or other information that explains in reasonable detail the differences between the information ~~specified herein);~~relating to Crestwood Equity Partners, on the one hand, and the information relating to the Borrower and the Restricted Subsidiaries on a standalone basis, on the other hand; provided further that to the extent any such documents required to be delivered pursuant to Section 5.04 are included in materials filed with the SEC, such documents shall be deemed to have been delivered to the Administrative Agent under this Agreement on the date such documents are made publicly available by the SEC.

Appears in 2 contracts

Samples: Credit Agreement (Crestwood Midstream Partners LP), Credit Agreement (Crestwood Equity Partners LP)

Appears in 2 contracts

Samples: Credit Agreement (Hexion Specialty Chemicals, Inc.), Credit Agreement (Hexion Specialty Chemicals, Inc.)

Financial Statements, Reports, etc. Furnish to the Administrative Agent (which will promptly furnish such information to the Lenders): (a) within 90 120 days after the Fiscal Year end ~~of each fiscal year~~ (commencing with the ~~fiscal year~~ Fiscal Year ending on December 3125, ~~2016~~2021), or such later date as reasonably agreed by the Administrative Agent, a consolidated cash flow statement, balance sheet and related statements of ~~operations, cash flows and owners’ equity~~ income showing the financial position of the Borrower and its Subsidiaries as of the close of such ~~fiscal year~~ Fiscal Year and the consolidated results of their operations during such year and setting forth in comparative form the corresponding figures for the prior ~~fiscal year~~Fiscal Year, which consolidated cash flow statement, balance sheet and related statements of ~~operations, cash flows and owners’ equity~~ income shall be accompanied by customary management’s discussion and ~~analysis and~~ analysis. The financial statements shall be audited by independent public accountants of recognized national standing and accompanied by an opinion of such accountants (which opinion shall not be qualified as to scope of audit or as to the status of the Borrower or any Material Subsidiary as a going concern, other than solely with respect to, or resulting solely from, (x) an upcoming maturity date under any series of ~~Indebtedness occurring within one year from the time such opinion is delivered~~ Indebtedness, (y) any actual or ~~any~~ potential inability to satisfy a financial maintenance covenant ~~on a future date~~ or ~~in a future period~~(z) the activities, operations, financial results, assets or liabilities of Unrestricted Subsidiaries) to the effect that such consolidated financial statements fairly present, in all material respects, the financial position and results of operations of the Borrower and its Subsidiaries on a consolidated basis in accordance with GAAP (it being understood and agreed that the delivery or public filing by ~~the Borrower~~ Parent (or other applicable Parent Entity) of annual reports on Form 10-K (or any successor or comparable form) of ~~the Borrower~~ Parent and its consolidated ~~Subsidiaries~~ subsidiaries shall be deemed to be delivery to all Lenders of such annual reports and shall satisfy the requirements of this Section 5.04(a) to the extent such annual reports include the information specified ~~herein~~in this Section 5.04(a)); (b) within 45 days after the end of each of the first three fiscal quarters of each ~~fiscal year (commencing with~~ Fiscal Year, or such later date as reasonably agreed by the ~~fiscal quarter ending June 30, 2016)~~Administrative Agent, a consolidated balance sheet and related statements of ~~operations and cash flows~~ income showing the financial position of the Borrower and its Subsidiaries as of the close of such fiscal quarter and the consolidated results of their operations during such fiscal quarter and the then-elapsed portion of the ~~fiscal year and, starting with the fiscal quarter ending September 30, 2016,~~ Fiscal Year and setting forth in comparative form the corresponding figures for the corresponding periods of the prior ~~fiscal year~~Fiscal Year, all of which shall be in reasonable detail, which consolidated balance sheet and related statements of ~~operations~~ profit and ~~cash flows~~ loss shall be accompanied by customary management’s discussion and analysis and which consolidated balance sheet and related statements of ~~operations and cash flows~~ income shall be certified by a Financial Officer of the Borrower on behalf of the Borrower as fairly presenting, in all material respects, the financial position and results of operations of the Borrower and its Subsidiaries on a consolidated basis in accordance with GAAP (subject to normal year-end audit adjustments and the absence of footnotes) (it being understood and agreed that the delivery or public filing by ~~the Borrower~~ Parent (or other applicable Parent Entity) of quarterly reports on Form 10-Q (or any successor or comparable form) of ~~the Borrower~~ Parent and its consolidated ~~Subsidiaries~~ subsidiaries shall be deemed to be delivery to all Lenders of such quarterly reports and shall satisfy the requirements of this Section 5.04(b) to the extent such quarterly reports include the information specified ~~herein~~in this Section 5.04(b)); (c) concurrently with any delivery of financial statements under clause (a) or (b) above, a Compliance Certificate (i) certifying that no Event of Default or Default has occurred and is continuing since the date of the last Compliance Certificate delivered pursuant to this Section 5.04(c) or, if such an Event of Default or Default has occurred and is continuing, specifying the nature and extent thereof and any corrective action taken or proposed to be taken with respect thereto and (ii) setting forth computations in reasonable detail demonstrating compliance with the Financial Covenant (only to the extent the Financial Covenant is required to be tested for such fiscal quarter). (d) promptly after the same become publicly available, copies of all periodic and other publicly available reports, proxy statements and, to the extent requested by the Administrative Agent, other materials filed by Parent, Holdings the Borrower or any of its Subsidiaries with the SEC (or equivalent regulatory body in the relevant jurisdiction), or after an initial public offering, distributed to its stockholders generally, as applicable; provided, however, that such reports, proxy statements, filings and other materials required to be delivered pursuant to this clause (d) shall be deemed delivered to all Lenders for purposes of this Agreement when posted to the website of the Borrower (or Holdings or any Parent Entity) or the website of the SEC (or equivalent regulatory body in the relevant jurisdiction); (e) [reserved]; (f) upon the reasonable request of the Administrative Agent not more frequently than once a year, an updated Perfection Certificate (or, to the extent such request relates to specified information contained in the Perfection Certificate, such information) reflecting all changes since the date of the information most recently received pursuant to this clause (f) or Section 5.10(f); (g) promptly from time to time, such other customary information regarding the operations, business affairs and financial condition of the Borrower or any of the Subsidiaries, or compliance with the terms of any Loan Document as in each case the Administrative Agent may reasonably request (for itself or on behalf of any Lender) and to the extent such information is reasonably available to Borrower; (h) no later than ten (10) Business Days after delivery thereof (or such reasonable period after receipt of such financial statements as may be agreed by the Administrative Agent), if required under any Permitted Securitization Financings to which any Securitization Entities are party, copies of (x) unaudited consolidated balance sheets and unaudited consolidated statements of operations and income and cash flows for such Securitization Entities for each of the fiscal periods specified thereunder and (y) audited consolidated balance sheets and audited consolidated statements of operations and income, changes in members’ equity and cash flows of such Securitization Entities for each fiscal year, in each case of clauses (x) and (y), specified thereunder in a manner as required pursuant to such Permitted Securitization Financings; and (i) promptly following the delivery of financial statements under clause (a) and (b) above or, if later, promptly following such date of delivery of the quarterly noteholders’ report (if any) to noteholders for the applicable quarterly fiscal period under any Permitted Securitization Financing, a copy of such quarterly noteholders’ report. The Borrower hereby acknowledges and agrees that all financial statements furnished pursuant to clauses (a), (b) and (d) above are hereby deemed to be Borrower Materials suitable for distribution, and to be made available, to Public Lenders as contemplated by Section 9.17 and may be treated by the Administrative Agent and the Lenders as if the same had been marked “PUBLIC” in accordance with such paragraph (unless the Borrower otherwise notifies the Administrative Agent in writing on or prior to delivery thereof).

Appears in 2 contracts

Samples: Credit Agreement (Driven Brands Holdings Inc.), Credit Agreement (Driven Brands Holdings Inc.)

Financial Statements, Reports, etc. Furnish to the Administrative Agent (which will promptly furnish such information to the Lenders): (1) within 120 days following the end of the fiscal year ending on the earlier of (a) on or about January 30, 2016 or (b) the fiscal year ended after the Closing Date, and within 90 days ~~after~~ following the end of each fiscal year ~~(commencing with the fiscal year ending December 31, 2016)~~thereafter, a consolidated balance sheet and related statements of operations, cash flows and owners’ equity showing the financial position of the Borrower and ~~its~~ the Restricted Subsidiaries as of the close of such fiscal year and the consolidated results of ~~their~~ its operations during such fiscal year ~~and~~ and, in each case, starting with the following fiscal year, setting forth in comparative form the corresponding figures for the prior fiscal year, which consolidated balance sheet and related statements of operations, cash flows and owners’ equity ~~shall~~ will be ~~accompanied by customary management’s discussion and analysis and~~ audited by independent public accountants of recognized national ~~standing~~ standing, or such other accountants as are reasonably acceptable to the Administrative Agent, and accompanied by an opinion of such accountants (which opinion shall not be ~~qualified as~~ subject to ~~scope of audit or as to the status of the Borrower or~~ any ~~Material Subsidiary as a~~ “going concern” statement, explanatory note or like qualification or exception (other than ~~solely with respect to~~a “going concern” statement, explanatory note or like qualification or exception resulting solely ~~from,~~ from an upcoming maturity date ~~under any series of Indebtedness~~ occurring within one year from the time such opinion is delivered or ~~any potential inability to satisfy a financial maintenance~~ anticipated (but not actual) covenant ~~on a future date or in a future period~~non-compliance)) to the effect that such consolidated financial statements fairly present, in all material respects, the financial position and results of operations of the Borrower and ~~its~~ the Restricted Subsidiaries on a consolidated basis in accordance with GAAP (it the applicable financial statements delivered pursuant to this clause (1) being ~~understood that~~ the delivery by the Borrower of annual reports on Form 10-K of the Borrower and its consolidated Subsidiaries shall satisfy the requirements of this Section 5.04(a) to the extent such annual reports include the information specified herein“Annual Financial Statements”); (b2) within 60 days following the end of the fiscal quarters ending on or about April 30, 2016 and on or about July 31, 2016, and, thereafter, within 45 days ~~after~~ following the end of each of the first three fiscal quarters of each fiscal ~~year (commencing with the fiscal quarter ending June 30, 2016)~~year, a consolidated balance sheet and related statements of operations and cash flows showing the financial position of the Borrower and ~~its~~ the Restricted Subsidiaries as of the close of such fiscal quarter and the consolidated results of ~~their~~ its operations during such fiscal quarter ~~and~~ and, in each case, the then-elapsed portion of the fiscal year ~~and, starting with the fiscal quarter ending September 30, 2016,~~ and setting forth in comparative form the corresponding figures for the corresponding periods of the prior fiscal year, ~~all of which shall be in reasonable detail,~~ which consolidated balance sheet and related statements of operations and cash flows ~~shall be accompanied by customary management’s discussion and analysis and which consolidated balance sheet and related statements of operations and cash flows shall~~ will be certified by a ~~Financial~~ Responsible Officer of the Borrower on behalf of the Borrower as fairly presenting, in all material respects, the financial position and results of operations of the Borrower and ~~its~~ the Restricted Subsidiaries on a consolidated basis in accordance with ~~GAAP (~~GAAP, subject to normal year-end audit adjustments and the absence of ~~footnotes~~footnotes (the applicable financial statements delivered pursuant to this clause (2) being the “Quarterly Financial Statements” and, together with the Annual Financial Statements, the “Required Financial Statements”); (3) concurrently with any delivery of Required Financial Statements, a certificate of a Financial Officer of the Company: (a) certifying that no Default or Event of Default has occurred and is continuing or, if a Default or Event of Default has occurred and is continuing, specifying the nature and extent thereof and any corrective action taken or proposed to be taken with respect thereto; (b) setting forth in reasonable detail calculations of the Fixed Charge Coverage Ratio for the most recent period of four consecutive fiscal quarters as of the close of the fiscal year or fiscal quarter, as applicable; (c) certifying a list of all Immaterial Subsidiaries, that each Subsidiary set forth on such list individually qualifies as an Immaterial Subsidiary and that all such Subsidiaries in the aggregate do not exceed the limitation set forth in clause (ii) of the definition of the term “Immaterial Subsidiary;” and (d) certifying a list of all Unrestricted Subsidiaries at such time and that each Subsidiary set forth on such list qualifies as an Unrestricted Subsidiary; (4) promptly after the same become publicly available, copies of all periodic and other publicly available reports, proxy statements and, to the extent requested by the Administrative Agent, other materials publicly filed by Holdings, the Borrower or any Restricted Subsidiary with the SEC or, after an initial public offering, distributed to its stockholders generally, as applicable; (5) within 120 days following the end of the fiscal year ending on or about January 30, 2017 and within 90 days following the end of each full fiscal year ended thereafter, a consolidated annual budget for such fiscal year in the form customarily prepared by the Borrower (the “Budget”), which Budget will in each case be accompanied by the statement of a Financial Officer of the Borrower on behalf of the Borrower to the effect that the Budget is based on assumptions believed by the Borrower to be reasonable as of the date of delivery thereof; (6) upon the reasonable request of the Collateral Agent, concurrently with the delivery of the Annual Financial Statements, an updated Perfection Certificate (or, to the extent such request relates to specified information contained in the Perfection Certificate, such information) reflecting all changes since the date of the information most recently received pursuant to this paragraph (6) or Section 5.10; (7) promptly, from time to time, such other information regarding the operations, business affairs and financial condition of Holdings, the Borrower or any Restricted Subsidiary, in each case, as the Administrative Agent may reasonably request (for itself or on behalf of any Lender); (8) promptly upon request by the Administrative Agent (so long as the following are obtainable using commercially reasonable measures), copies of any documents described in Section 101(k)(1) of ERISA that the Borrower or any of its ERISA Affiliates may request with respect to any Multiemployer Plan; provided that if the Borrower or any of its ERISA Affiliates has not requested such documents from the administrator or sponsor of the applicable Multiemployer Plan, the Borrower or the applicable ERISA Affiliate shall promptly make a request for such documents or notices from such administrator or sponsor and shall provide copies of such documents and notices promptly after receipt thereof; and (9) on or before the 15th Business Day of each month from and after the Closing Date, a Borrowing Base Certificate from the Borrower as of the last day of the immediately preceding month, with such supporting materials as the Administrative Agent may reasonably request (which requests may be more frequent with respect to information regarding Qualified Cash); provided that, after the occurrence and during the continuance of a Liquidity Condition or a Designated Event of Default, the Administrative Agent may require the Borrower to deliver the Borrowing Base Certificate more frequently as reasonably determined by the Administrative Agent. Notwithstanding the foregoing, the Administrative Agent may not require the Borrower to deliver a Borrowing Base Certificate more frequently than weekly, and in the case of such weekly reporting the Borrowing Base Certificate will be due on Wednesday of each week (or, if Wednesday is not a Business Day, on the next succeeding Business Day) calculated as of the close of business on Saturday of the immediately preceding calendar week. Anything to the contrary notwithstanding, the obligations in clauses (1) and (2) of this Section 5.04 may be satisfied with respect to financial information of the Borrower and the Restricted Subsidiaries by furnishing (1) the applicable financial statements of Holdings (or any other Parent Entity) or (2) the Borrower’s or Holdings’ (or any such other Parent Entity’s), as applicable, Form 10-K or 10-Q, as applicable, filed with the SEC; provided that with respect to each of the foregoing clauses (1) and (2)(a) to the extent such information relates to Holdings (or a Parent Entity), such information is accompanied by consolidating information that explains in reasonable detail the differences between the information relating to Holdings (or such Parent Entity), on the one hand, and the information relating to the Borrower and the Restricted Subsidiaries on a standalone basis, on the other hand, and (b) to the extent such information is in lieu of information required to be provided under Section 5.04(1), such materials are accompanied by a report and opinion of independent public accountants of recognized national standing, or such other accountants as are reasonably acceptable to the Administrative Agent, and accompanied by an opinion of such accountants (which opinion shall not be subject to any “going concern” statement, explanatory note or like qualification or exception (other than a “going concern” statement, explanatory note or like qualification or exception resulting solely from an upcoming maturity date occurring within one year from the time such opinion is delivered or anticipated (but not actual) covenant non-compliance)) (it being understood and agreed that ~~the delivery by~~ if, in compliance with this paragraph, (x) the Borrower provides audited financial statements of ~~quarterly reports~~ Holdings (or any other Parent Entity) and related report and opinion of accountants with respect thereto in lieu of information required to be provided under Section 5.04(1), no such audited financial information, opinion or report shall be required with respect to the Borrower, (y) the Borrower provides unaudited financial statements of Holdings (or any other Parent Entity) in lieu of information required to be provided under Section 5.04(2), no such unaudited financial information shall be required with respect to the Borrower and (z) the Borrower provides a Budget of Holdings and accompanying statement (or any other Parent Entity) in lieu of information required to be provided under Section 5.04(5), no such Budget shall be required with respect to the Borrower; provided that for the avoidance of doubt, with respect to the foregoing clauses (x), (y) and (z) (i) to the extent such information relates to Holdings (or a Parent Entity), such information is accompanied by consolidating information that explains in reasonable detail the differences between the information relating to Holdings (or such Parent Entity), on ~~Form 10~~the one hand, and the information relating to the Borrower and the Restricted Subsidiaries on a standalone basis, on the other hand, and (ii) to the extent such information is in lieu of information required to be provided under Section 5.04(1), such materials are accompanied by a report and opinion of independent public accountants of recognized national standing, or such other accountants as are reasonably acceptable to the Administrative Agent, and accompanied by an opinion of such accountants (which opinion shall not be subject to any “going concern” statement, explanatory note or like qualification or exception (other than a “going concern” statement, explanatory note or like qualification or exception resulting solely from an upcoming maturity date occurring within one year from the time such opinion is delivered or anticipated (but not actual) covenant non-Q compliance). The obligations in clauses (1) and (2) of this Section 5.04 may be satisfied by delivery of financial information of the Borrower and its ~~consolidated~~ Subsidiaries ~~shall satisfy~~ so long as such financial statements include a reasonably detailed presentation, either on the ~~requirements~~ face of the financial statements or in the footnotes thereto, of the financial condition and results of operations of the Borrower and the Restricted Subsidiaries separate from the financial condition and results of operations of the Unrestricted Subsidiaries of the Borrower. Documents required to be delivered pursuant to this Section ~~5.04(b) to the extent such quarterly reports include the information specified herein~~5.04 may be delivered electronically in accordance with Section 10.01(5);.

Appears in 2 contracts

Samples: Revolving Credit Agreement (PET Acquisition LLC), Revolving Credit Agreement (PET Acquisition LLC)

Appears in 2 contracts

Samples: Credit Agreement (United Parks & Resorts Inc.), Credit Agreement (SeaWorld Entertainment, Inc.)

Appears in 2 contracts

Samples: Credit Agreement (Johnson Controls Inc), Credit Agreement (Adient LTD)

Appears in 2 contracts

Samples: Credit Agreement (Presidio, Inc.), Credit Agreement (Presidio, Inc.)

Financial Statements, Reports, etc. Furnish to the Administrative Agent (which will promptly furnish such information to the ~~Lenders~~Lenders and L/C Issuers): (a) ~~within~~ Within 90 days (or such later day that Parent is permitted to file a Form 10-K pursuant to the Exchange Act after giving effect to Rule 12b-25 thereunder, but in any event within 105 days) following the end of each fiscal year (commencing with the fiscal year ending December 31, ~~2016~~2018), a consolidated balance sheet and related statements of operations, cash flows and ~~owners~~stockholders’ equity showing the financial position of ~~the Borrower~~ Parent and its ~~Subsidiaries~~ subsidiaries as of the close of such fiscal year and the consolidated results of ~~their~~ its operations during such year and setting forth in comparative form the corresponding figures for the prior fiscal year, which consolidated balance sheet and related statements of operations, cash flows and ~~owners~~stockholders’ equity shall be ~~accompanied by customary management’s discussion and analysis and~~ audited by independent public accountants of recognized national standing and accompanied by an opinion of such accountants (which ~~opinion~~ shall not be qualified as to scope of audit or as to the status of Parent, the Borrower or any Material Subsidiary as a going concern, ~~other than~~ but may contain a going concern or like qualification that is solely ~~with respect to, or resulting solely from,~~ due to an upcoming maturity date ~~under~~ of any ~~series of Indebtedness occurring~~ Facility within one year from the time such opinion is ~~delivered or any potential inability to satisfy a financial maintenance covenant on a future date or in a future period~~delivered) to the effect that such consolidated financial statements fairly present, in all material respects, the financial position and results of operations of ~~the Borrower~~ Parent and its ~~Subsidiaries~~ subsidiaries on a consolidated basis in accordance with GAAP (it being understood that the delivery by ~~the Borrower~~ Parent of annual reports on Form 10-K of ~~the Borrower~~ Parent and its consolidated ~~Subsidiaries~~ subsidiaries shall satisfy the requirements of this Section 5.04(a) to the extent such annual reports include the information specified herein); (b) ~~within~~ Within 45 days ~~after~~ following the end of each of the first three fiscal quarters of each fiscal year (commencing with the fiscal quarter ending ~~June 30~~March 31, ~~2016~~2019), a consolidated balance sheet and related statements of operations and cash flows showing the financial position of ~~the Borrower~~ Parent and its ~~Subsidiaries~~ subsidiaries as of the close of such fiscal quarter and the consolidated results of ~~their~~ its operations during such fiscal quarter and the then-elapsed portion of the fiscal year ~~and, starting with the fiscal quarter ending September 30, 2016,~~ and setting forth in comparative form the corresponding figures for the corresponding periods of the prior fiscal year, all of which shall be in reasonable ~~detail, which consolidated balance sheet and related statements of operations and cash flows shall be accompanied by customary management’s discussion and analysis~~ detail and which consolidated balance sheet and related statements of operations and cash flows shall be certified by a Financial Officer of ~~the Borrower on behalf of the Borrower~~ Parent as fairly presenting, in all material respects, the financial position and results of operations of ~~the Borrower~~ Parent and its ~~Subsidiaries~~ subsidiaries on a consolidated basis in accordance with GAAP (subject to normal year-end audit adjustments and the absence of footnotes) (it being understood that the delivery by ~~the Borrower~~ Parent of quarterly reports on Form 10-Q of ~~the Borrower~~ Parent and its consolidated ~~Subsidiaries~~ subsidiaries shall satisfy the requirements of this Section 5.04(b) to the extent such quarterly reports include the information specified herein);

Appears in 2 contracts

Samples: Credit Agreement (EVERTEC, Inc.), Credit Agreement (EVERTEC, Inc.)

Financial Statements, Reports, etc. Furnish to the Administrative Agent (which will promptly furnish such information to the Lenders): (1) within 120 days following the end of the fiscal year ending on the earlier of (a) on or about January 30, 2016 or (b) the fiscal year ended after the Closing Date, and within 90 days ~~after~~ following the end of each fiscal year ~~(commencing with the fiscal year ending December 31, 2016)~~thereafter, a consolidated balance sheet and related statements of operations, cash flows and owners’ equity showing the financial position of the Borrower and ~~its~~ the Restricted Subsidiaries as of the close of such fiscal year and the consolidated results of ~~their~~ its operations during such fiscal year ~~and~~ and, in each case, starting with the following fiscal year, setting forth in comparative form the corresponding figures for the prior fiscal year, which consolidated balance sheet and related statements of operations, cash flows and owners’ equity ~~shall~~ will be ~~accompanied by customary management’s discussion and analysis and~~ audited by independent public accountants of recognized national ~~standing~~ standing, or such other accountants as are reasonably acceptable to the Administrative Agent, and accompanied by an opinion of such accountants (which opinion shall not be ~~qualified as~~ subject to ~~scope of audit or as to the status of the Borrower or~~ any ~~Material Subsidiary as a~~ “going concern” statement, explanatory note or like qualification or exception (other than ~~solely with respect to~~a “going concern” statement, explanatory note or like qualification or exception resulting solely ~~from,~~ from an upcoming maturity date ~~under any series of Indebtedness~~ occurring within one year from the time such opinion is delivered or ~~any potential inability to satisfy a financial maintenance~~ anticipated (but not actual) covenant ~~on a future date or in a future period~~non-compliance)) to the effect that such consolidated financial statements fairly present, in all material respects, the financial position and results of operations of the Borrower and ~~its~~ the Restricted Subsidiaries on a consolidated basis in accordance with GAAP (it the applicable financial statements delivered pursuant to this clause (1) being ~~understood that~~ the delivery by the Borrower of annual reports on Form 10-K of the Borrower and its consolidated Subsidiaries shall satisfy the requirements of this Section 5.04(a) to the extent such annual reports include the information specified herein“Annual Financial Statements”); (b2) within 60 days following the end of the fiscal quarters ending on or about April 30, 2016 and on or about July 31, 2016, and, thereafter, within 45 days ~~after~~ following the end of each of the first three fiscal quarters of each fiscal ~~year (commencing with the fiscal quarter ending June 30, 2016)~~year, a consolidated balance sheet and related statements of operations and cash flows showing the financial position of the Borrower and ~~its~~ the Restricted Subsidiaries as of the close of such fiscal quarter and the consolidated results of ~~their~~ its operations during such fiscal quarter ~~and~~ and, in each case, the then-elapsed portion of the fiscal year ~~and, starting with the fiscal quarter ending September 30, 2016,~~ and setting forth in comparative form the corresponding figures for the corresponding periods of the prior fiscal year, ~~all of which shall be in reasonable detail,~~ which consolidated balance sheet and related statements of operations and cash flows ~~shall be accompanied by customary management’s discussion and analysis and which consolidated balance sheet and related statements of operations and cash flows shall~~ will be certified by a ~~Financial~~ Responsible Officer of the Borrower on behalf of the Borrower as fairly presenting, in all material respects, the financial position and results of operations of the Borrower and ~~its~~ the Restricted Subsidiaries on a consolidated basis in accordance with ~~GAAP (~~GAAP, subject to normal year-end audit adjustments and the absence of ~~footnotes~~footnotes (the applicable financial statements delivered pursuant to this clause (2) being the “Quarterly Financial Statements” and, together with the Annual Financial Statements, the “Required Financial Statements”); (3) concurrently with any delivery of Required Financial Statements, a certificate of a Financial Officer of the Company: (a) certifying that no Default or Event of Default has occurred and is continuing or, if a Default or Event of Default has occurred and is continuing, specifying the nature and extent thereof and any corrective action taken or proposed to be taken with respect thereto; (b) setting forth in reasonable detail calculations of the Fixed Charge Coverage Ratio for the most recent period of four consecutive fiscal quarters as of the close of the fiscal year or fiscal quarter, as applicable; (c) certifying a list of all Immaterial Subsidiaries, that each Subsidiary set forth on such list individually qualifies as an Immaterial Subsidiary and that all such Subsidiaries in the aggregate do not exceed the limitation set forth in clause (ii) of the definition of the term “Immaterial Subsidiary;” and (d) certifying a list of all Unrestricted Subsidiaries at such time and that each Subsidiary set forth on such list qualifies as an Unrestricted Subsidiary; (4) promptly after the same become publicly available, copies of all periodic and other publicly available reports, proxy statements and, to the extent requested by the Administrative Agent, other materials publicly filed by Holdings, the Borrower or any Restricted Subsidiary with the SEC or, after an initial public offering, distributed to its stockholders generally, as applicable; (5) within 120 days following the end of the fiscal year ending on or about January 30, 2017 and within 90 days following the end of each full fiscal year ended thereafter, a consolidated annual budget for such fiscal year in the form customarily prepared by the Borrower (the “Budget”), which Budget will in each case be accompanied by the statement of a Financial Officer of the Borrower on behalf of the Borrower to the effect that the Budget is based on assumptions believed by the Borrower to be reasonable as of the date of delivery thereof; (6) upon the reasonable request of the Collateral Agent, concurrently with the delivery of the Annual Financial Statements, an updated Perfection Certificate (or, to the extent such request relates to specified information contained in the Perfection Certificate, such information) reflecting all changes since the date of the information most recently received pursuant to this paragraph (6) or Section 5.10; (7) promptly, from time to time, such other information regarding the operations, business affairs and financial condition of Holdings, the Borrower or any Restricted Subsidiary, in each case, as the Administrative Agent may reasonably request (for itself or on behalf of any Lender); (8) promptly upon request by the Administrative Agent (so long as the following are obtainable using commercially reasonable measures), copies of any documents described in Section 101(k)(1) of ERISA that the Borrower or any of its ERISA Affiliates may request with respect to any Multiemployer Plan; provided that if the Borrower or any of its ERISA Affiliates has not requested such documents from the administrator or sponsor of the applicable Multiemployer Plan, the Borrower or the applicable ERISA Affiliate shall promptly make a request for such documents or notices from such administrator or sponsor and shall provide copies of such documents and notices promptly after receipt thereof; and (9) on or before the 15th Business Day of each month from and after the Closing Date, a Borrowing Base Certificate from the Borrower as of the last day of the immediately preceding month, with such supporting materials as the Administrative Agent may reasonably request (which requests may be more frequent with respect to information regarding Qualified Cash); provided that, after the occurrence and during the continuance of a Liquidity Condition or a Designated Event of Default, the Administrative Agent may require the Borrower to deliver the Borrowing Base Certificate more frequently as reasonably determined by the Administrative Agent. Notwithstanding the foregoing, the Administrative Agent may not require the Borrower to deliver a Borrowing Base Certificate more frequently than weekly, and in the case of such weekly reporting the Borrowing Base Certificate will be due on Wednesday of each week (or, if Wednesday is not a Business Day, on the next succeeding Business Day) calculated as of the close of business on Saturday of the immediately preceding calendar week. Anything to the contrary notwithstanding, the obligations in clauses (1) and (2) of this Section 5.04 may be satisfied with respect to financial information of the Borrower and the Restricted Subsidiaries by furnishing (1) the applicable financial statements of Holdings (or any other Parent Entity) or (2) the Borrower’s or Holdings’ (or any such other Parent Entity’s), as applicable, Form 10-K or 10-Q, as applicable, filed with the SEC; provided that with respect to each of the foregoing clauses (1) and (2)(a) to the extent such information relates to Holdings (or a Parent Entity), such information is accompanied by consolidating information that explains in reasonable detail the differences between the information relating to Holdings (or such Parent Entity), on the one hand, and the information relating to the Borrower and the Restricted Subsidiaries on a standalone basis, on the other hand, and (b) to the extent such information is in lieu of information required to be provided under Section 5.04(1), such materials are accompanied by a report and opinion of independent public accountants of recognized national standing, or such other accountants as are reasonably acceptable to the Administrative Agent, and accompanied by an opinion of such accountants (which opinion shall not be subject to any “going concern” statement, explanatory note or like qualification or exception (other than a “going concern” statement, explanatory note or like qualification or exception resulting solely from an upcoming maturity date occurring within one year from the time such opinion is delivered or anticipated (but not actual) covenant non-compliance)) (it being understood and agreed that ~~the delivery by~~ if, in compliance with this paragraph, (x) the Borrower provides audited financial statements of ~~quarterly reports~~ Holdings (or any other Parent Entity) and related report and opinion of accountants with respect thereto in lieu of information required to be provided under Section 5.04(1), no such audited financial information, opinion or report shall be required with respect to the Borrower, (y) the Borrower provides unaudited financial statements of Holdings (or any other Parent Entity) in lieu of information required to be provided under Section 5.04(2), no such unaudited financial information shall be required with respect to the Borrower and (z) the Borrower provides a Budget of Holdings and accompanying statement (or any other Parent Entity) in lieu of information required to be provided under Section 5.04(5), no such Budget shall be required with respect to the Borrower; provided that for the avoidance of doubt, with respect to the foregoing clauses (x), (y) and (z) (i) to the extent such information relates to Holdings (or a Parent Entity), such information is accompanied by consolidating information that explains in reasonable detail the differences between the information relating to Holdings (or such Parent Entity), on ~~Form 10~~the one hand, and the information relating to the Borrower and the Restricted Subsidiaries on a standalone basis, on the other hand, and (ii) to the extent such information is in lieu of information required to be provided under Section 5.04(1), such materials are accompanied by a report and opinion of independent public accountants of recognized national standing, or such other accountants as are reasonably acceptable to the Administrative Agent, and accompanied by an opinion of such accountants (which opinion shall not be subject to any “going concern” statement, explanatory note or like qualification or exception (other than a “going concern” statement, explanatory note or like qualification or exception resulting solely from an upcoming maturity date occurring within one year from the time such opinion is delivered or anticipated (but not actual) covenant non-Q compliance). The obligations in clauses (1) and (2) of this Section 5.04 may be satisfied by delivery of financial information of the Borrower and its ~~consolidated~~ Subsidiaries ~~shall satisfy~~ so long as such financial statements include a reasonably detailed presentation, either on the ~~requirements~~ face of the financial statements or in the footnotes thereto, of the financial condition and results of operations of the Borrower and the Restricted Subsidiaries separate from the financial condition and results of operations of the Unrestricted Subsidiaries of the Borrower. Documents required to be delivered pursuant to this Section ~~5.04(b) to the extent such quarterly reports include the information specified herein~~5.04 may be delivered electronically in accordance with Section 10.01(5);.

Appears in 2 contracts

Samples: Revolving Credit Agreement (PET Acquisition LLC), Revolving Credit Agreement (PET Acquisition LLC)

Financial Statements, Reports, etc. Furnish to the Administrative Agent (which will promptly furnish such information to the Lenders): (a1) within 90 days ~~after~~ following the end of each fiscal ~~year (~~year, commencing with the fiscal year ~~ending~~ ended December 31, ~~2016)~~2018, a consolidated balance sheet and related statements of operations, cash flows and owners’ equity showing the financial position of the Borrower and ~~its~~ the Restricted Subsidiaries as of the close of such fiscal year and the consolidated results of ~~their~~ its operations during such fiscal year ~~and~~ and, in each case, commencing with the fiscal year ending December 31, 2019, setting forth in comparative form the corresponding figures for the prior fiscal year, which consolidated balance sheet and related statements of operations, cash flows and owners’ equity ~~shall~~ will be ~~accompanied by customary management’s discussion and analysis and~~ prepared in accordance with GAAP, audited by any independent public accountants of recognized national ~~standing~~ standing, or such other accountants as are reasonably acceptable to the Administrative Agent, and accompanied by an opinion of such accountants (which opinion shall not be ~~qualified as~~ subject to ~~scope of audit or as to the status of the Borrower or~~ any ~~Material Subsidiary as a~~ “going concern” statement, explanatory note or like qualification or exception (other than ~~solely with respect to~~a “going concern” statement, explanatory note or ~~resulting solely from~~like qualification or exception relating to an anticipated, but not actual, financial covenant default or an upcoming maturity ~~date under any series of Indebtedness occurring within one year from~~ date) (the ~~time such opinion is delivered or any potential inability to satisfy a financial maintenance covenant on a future date or in a future period) to the effect that such consolidated~~ applicable financial statements ~~fairly present, in all material respects,~~ delivered pursuant to this clause (1) being the financial position and results of operations of the Borrower and its Subsidiaries on a consolidated basis in accordance with GAAP (it being understood that the delivery by the Borrower of annual reports on Form 10-K of the Borrower and its consolidated Subsidiaries shall satisfy the requirements of this Section 5.04(a) to the extent such annual reports include the information specified herein“Annual Financial Statements”); (b2) ~~within 45 days after the end of each of~~ for the first three fiscal quarters of each fiscal ~~year (~~year, commencing with the fiscal quarter ended March 31, 2018, (a) within 71 days following the Closing Date, for the fiscal quarter ending March 31, 2018, (i) (A) a consolidated balance sheet for the Borrower and its Restricted Subsidiaries (excluding, for the avoidance of doubt, Impax and its subsidiaries) as of the close of such fiscal quarter and (B) the consolidated results of its operations and cash flows for the Borrower and its Restricted Subsidiaries (excluding, for the avoidance of doubt, Impax and its subsidiaries) during such fiscal quarter and the then-elapsed portion of the fiscal year and (ii) (A) a consolidated balance sheet for Impax and its Restricted Subsidiaries (excluding, for the avoidance of doubt, the Borrower and its subsidiaries), as of the close of such fiscal quarter and (B) the consolidated results of operations and cash flows for Impax and its Restricted Subsidiaries (excluding, for the avoidance of doubt, the Borrower and its subsidiaries) during such fiscal quarter and the then-elapsed portion of the fiscal year; (b) for the fiscal quarter ending June 30, ~~2016)~~2018, within 45 days of such fiscal quarter end, (A) a consolidated balance sheet ~~and related statements of operations and cash flows showing the financial position of~~ for the Borrower and its Restricted Subsidiaries as of the close of such fiscal quarter and (B) the consolidated statement of operations and cash flows for the Borrower and its Restricted Subsidiaries (which will include Impax and its Restricted Subsidiaries for the period from the Closing Date to such fiscal quarter end) during such fiscal quarter and the then-elapsed portion of the fiscal year; and (ii) an unaudited pro forma condensed combined statement of operations for the Borrower and its Restricted Subsidiaries (which will include Impax and its Restricted Subsidiaries) during such fiscal quarter (which pro forma financial statements will be certified by a Responsible Officer of the Borrower on behalf of the Borrower as having been prepared in good faith, based on assumptions believed by the Borrower to be reasonable as of the date of delivery thereof, and present fairly in all material respects on a pro forma basis the estimated results of operations of the Borrower and its Restricted Subsidiaries during such fiscal quarter end); and (c) for each such fiscal quarter thereafter, within 45 days of such fiscal quarter end, (A) a consolidated balance sheet for the Borrower and the Restricted Subsidiaries as of the close of such fiscal quarter and (B) the consolidated results of ~~their~~ operations and cash flows for the Borrower and the Restricted Subsidiaries during such fiscal quarter and the then-elapsed portion of the fiscal year and, ~~starting~~ commencing with the fiscal quarter ending September 30, ~~2016~~2019, setting forth in comparative form the corresponding figures for the corresponding periods of the prior fiscal year, ~~all of which shall be~~ in ~~reasonable detail~~each case (other than the preceding clause (ii)), which consolidated balance sheet and related statements of operations and cash flows shall be accompanied by customary management’s discussion and analysis and which consolidated balance sheet and related statements of operations and cash flows shall be certified by a ~~Financial~~ Responsible Officer of the Borrower on behalf of the Borrower as fairly presenting, in all material respects, the financial position and results of operations of the Borrower and the Restricted Subsidiaries (or Impax and its ~~Subsidiaries~~ Restricted Subsidiaries, as applicable) on a consolidated basis in accordance with ~~GAAP (~~GAAP, subject to normal year-end audit adjustments and the absence of ~~footnotes~~footnotes (the applicable financial statements delivered pursuant to this clause (2) being the “Quarterly Financial Statements” and, together with the Annual Financial Statements, the “Required Financial Statements”). (~~it being understood that~~ 3) no later than five (5) days after the delivery of any Required Financial Statements, a certificate of a Financial Officer of the Borrower: (a) certifying that no Default or Event of Default has occurred and is continuing or, if a Default or Event of Default has occurred and is continuing, specifying the nature and extent thereof and any corrective action taken or proposed to be taken with respect thereto; (b) setting forth the calculation and uses of the Available Amount for the fiscal period then ended if the Borrower has used the Available Amount for any purpose during such fiscal period; (c) certifying a list of all Immaterial Subsidiaries, that each Subsidiary set forth on such list individually qualifies as an Immaterial Subsidiary and that all such Subsidiaries in the aggregate do not exceed the limitation set forth in clause (ii) of the definition of the term “Immaterial Subsidiary;” (d) setting forth, in reasonable detail, the calculation of the First Lien Net Leverage Ratio for the most recent period of four consecutive fiscal quarters as of the close of such fiscal year or such fiscal quarter, as applicable; (e) certifying a list of all Unrestricted Subsidiaries at such time and that each Subsidiary set forth on such list qualifies as an Unrestricted Subsidiary; and (f) with respect to the Financial Officer certificate delivered with regard to Annual Financial Statements only, setting forth the calculation of Excess Cash Flow for such Excess Cash Flow Period. (4) promptly after the same become publicly available, copies of all periodic and other publicly available reports, proxy statements and, to the extent requested by the Administrative Agent, other materials publicly filed by the Borrower or any Restricted Subsidiary with the SEC or, after an initial public offering, distributed to its stockholders generally, as applicable, and in any case not otherwise required to be delivered to the Administrative Agent pursuant to any Loan Document; (5) within 60 days following the end of ~~quarterly reports~~ each fiscal year, commencing with the fiscal year ending December 31, 2018, a consolidated annual budget for such fiscal year in the form customarily prepared by the Borrower (the “Budget”), which Budget will in each case be accompanied by the statement of a Financial Officer of the Borrower on behalf of the Borrower to the effect that the Budget is based on assumptions believed by the Borrower to be reasonable as of the date of delivery thereof; provided that no Budget will be required to be delivered with respect to the fiscal year ending December 31, 2018; (6) upon the reasonable written request of the Collateral Agent, concurrently with the delivery of the Annual Financial Statements, an updated Perfection Certificate (or, to the extent such request relates to specified information contained in the Perfection Certificate, such information) reflecting all changes since the date of the information most recently received pursuant to this paragraph (6) or Section 5.10, as applicable; (7) promptly, from time to time, such other information regarding the operations, business affairs and financial condition of the Borrower or any Restricted Subsidiary, in each case, as the Administrative Agent may reasonably request (for itself or on behalf of any Lender) in writing; and (8) promptly upon reasonable written request by the Administrative Agent (so long as the following are obtainable using commercially reasonable measures), copies of any documents described in Section 101(k)(1) of ERISA that the Borrower or any of its ERISA Affiliates may request with respect to any Multiemployer Plan; provided that if the Borrower or any of its ERISA Affiliates has not requested such documents from the administrator or sponsor of the applicable Multiemployer Plan, the Borrower or the applicable ERISA Affiliate shall promptly make a request for such documents or notices from such administrator or sponsor and shall provide copies of such documents and notices promptly after receipt thereof. Anything to the contrary notwithstanding, the obligations in clauses (1) and (2) of this Section 5.04 may be satisfied with respect to financial information of the Borrower and the Restricted Subsidiaries by furnishing (1) the applicable financial statements of any Parent Entity or (2) the Borrower’s (or any such other Parent Entity’s), as applicable, Form 10-Q K or 10-Q, as applicable, filed with the SEC; provided that with respect to each of the foregoing clauses (1) and (2) (a) to the extent such information relates to a Parent Entity, such information is accompanied by consolidating information (which need not be audited) that explains in reasonable detail the differences between the information relating to such Parent Entity, on the one hand, and the information relating to the Borrower and the Restricted Subsidiaries on a standalone basis, on the other hand, and (b) to the extent such information is in lieu of information required to be provided under Section 5.04(1), such materials are prepared in accordance with GAAP and accompanied by a report and opinion of any independent public accountants of recognized national standing, or such other accountants as are reasonably acceptable to the Administrative Agent, and accompanied by an opinion of such accountants (which opinion shall not be subject to any “going concern” statement, explanatory note or like qualification or exception (other than a “going concern” statement, explanatory note or like qualification or exception relating to an anticipated, but not actual, financial covenant default or an upcoming maturity date). The obligations in clauses (1) and (2) of this Section 5.04 may be satisfied by delivery of financial information of the Borrower and its ~~consolidated~~ Subsidiaries ~~shall satisfy~~ so long as such financial statements include a reasonably detailed presentation (which need not be audited), either on the ~~requirements~~ face of the financial statements or in the footnotes thereto, of the financial condition and results of operations of the Borrower and the Restricted Subsidiaries separate from the financial condition and results of operations of the Unrestricted Subsidiaries of the Borrower. Documents required to be delivered pursuant to this Section ~~5.04(b) to the extent such quarterly reports include the information specified herein~~5.04 may be delivered electronically in accordance with Section 10.01(5);.

Appears in 2 contracts

Samples: Term Loan Credit Agreement (Impax Laboratories, LLC), Term Loan Credit Agreement (Amneal Pharmaceuticals, Inc.)

Financial Statements, Reports, etc. Furnish to the Administrative Agent (which will promptly furnish such information to the Lenders): (1) within 120 days following the end of the fiscal year ending on the earlier of (a) on or about January 30, 2016 or (b) the fiscal year ended after the Closing Date, and within 90 days ~~after~~ following the end of each fiscal year ~~(commencing with the fiscal year ending December 31, 2016)~~thereafter, a consolidated balance sheet and related statements of operations, cash flows and owners’ equity showing the financial position of the Borrower and ~~its~~ the Restricted Subsidiaries as of the close of such fiscal year and the consolidated results of ~~their~~ its operations during such fiscal year ~~and~~ and, in each case, starting with the following fiscal year, setting forth in comparative form the corresponding figures for the prior fiscal year, which consolidated balance sheet and related statements of operations, cash flows and owners’ equity ~~shall~~ will be ~~accompanied by customary management’s discussion and analysis and~~ audited by independent public accountants of recognized national ~~standing~~ standing, or such other accountants as are reasonably acceptable to the Administrative Agent, and accompanied by an opinion of such accountants (which opinion shall not be ~~qualified as~~ subject to ~~scope of audit or as to the status of the Borrower or~~ any ~~Material Subsidiary as a~~ “going concern” statement, explanatory note or like qualification or exception (other than ~~solely with respect to~~a “going concern” statement, explanatory note or like qualification or exception resulting solely ~~from,~~ from an upcoming maturity date ~~under any series of Indebtedness~~ occurring within one year from the time such opinion is delivered or ~~any potential inability to satisfy a financial maintenance~~ anticipated (but not actual) covenant ~~on a future date or in a future period~~non-compliance)) to the effect that such consolidated financial statements fairly present, in all material respects, the financial position and results of operations of the Borrower and ~~its~~ the Restricted Subsidiaries on a consolidated basis in accordance with GAAP (it the applicable financial statements delivered pursuant to this clause (1) being ~~understood that~~ the delivery by the Borrower of annual reports on Form 10-K of the Borrower and its consolidated Subsidiaries shall satisfy the requirements of this Section 5.04(a) to the extent such annual reports include the information specified herein“Annual Financial Statements”); (b2) within 60 days following the end of the fiscal quarters ending on or about April 30, 2016 and on or about July 31, 2016, and, thereafter, within 45 days ~~after~~ following the end of each of the first three fiscal quarters of each fiscal ~~year (commencing with the fiscal quarter ending June 30, 2016)~~year, a consolidated balance sheet and related statements of operations and cash flows showing the financial position of the Borrower and ~~its~~ the Restricted Subsidiaries as of the close of such fiscal quarter and the consolidated results of ~~their~~ its operations during such fiscal quarter ~~and~~ and, in each case, the then-elapsed portion of the fiscal year ~~and, starting with the fiscal quarter ending September 30, 2016,~~ and setting forth in comparative form the corresponding figures for the corresponding periods of the prior fiscal year, ~~all of which shall be in reasonable detail,~~ which consolidated balance sheet and related statements of operations and cash flows ~~shall be accompanied by customary management’s discussion and analysis and which consolidated balance sheet and related statements of operations and cash flows shall~~ will be certified by a ~~Financial~~ Responsible Officer of the Borrower on behalf of the Borrower as fairly presenting, in all material respects, the financial position and results of operations of the Borrower and ~~its~~ the Restricted Subsidiaries on a consolidated basis in accordance with ~~GAAP (~~GAAP, subject to normal year-end audit adjustments and the absence of ~~footnotes~~footnotes (the applicable financial statements delivered pursuant to this clause (2) being the “Quarterly Financial Statements” and, together with the Annual Financial Statements, the “Required Financial Statements”); (3) concurrently with any delivery of Required Financial Statements, a certificate of a Financial Officer of the Company: (a) certifying that no Default or Event of Default has occurred and is continuing or, if a Default or Event of Default has occurred and is continuing, specifying the nature and extent thereof and any corrective action taken or proposed to be taken with respect thereto; (b) setting forth the calculation and uses of the Available Amount for the fiscal period then ended if the Borrower has used the Available Amount for any purpose during such fiscal period; (c) certifying a list of all Immaterial Subsidiaries, that each Subsidiary set forth on such list individually qualifies as an Immaterial Subsidiary and that all such Subsidiaries in the aggregate do not exceed the limitation set forth in clause (ii) of the definition of the term “Immaterial Subsidiary;” (d) setting forth, in reasonable detail, the calculation of the Senior Secured First Lien Net Leverage Ratio for the most recent period of four consecutive fiscal quarters as of the close of such fiscal year or such fiscal quarter, as applicable; and (e) certifying a list of all Unrestricted Subsidiaries at such time and that each Subsidiary set forth on such list qualifies as an Unrestricted Subsidiary; (4) promptly after the same become publicly available, copies of all periodic and other publicly available reports, proxy statements and, to the extent requested by the Administrative Agent, other materials publicly filed by Holdings, the Borrower or any Restricted Subsidiary with the SEC or, after an initial public offering, distributed to its stockholders generally, as applicable; (5) within 120 days following the end of the fiscal year ending on or about January 30, 2017, and within 90 days following the end of each full fiscal year ended thereafter, a consolidated annual budget for such fiscal year in the form customarily prepared by the Borrower (the “Budget”), which Budget will in each case be accompanied by the statement of a Financial Officer of the Borrower on behalf of the Borrower to the effect that the Budget is based on assumptions believed by the Borrower to be reasonable as of the date of delivery thereof; (6) upon the reasonable request of the Collateral Agent, concurrently with the delivery of the Annual Financial Statements, an updated Perfection Certificate (or, to the extent such request relates to specified information contained in the Perfection Certificate, such information) reflecting all changes since the date of the information most recently received pursuant to this paragraph (6) or Section 5.10; (7) promptly, from time to time, such other information regarding the operations, business affairs and financial condition of Holdings, the Borrower or any Restricted Subsidiary, in each case, as the Administrative Agent may reasonably request (for itself or on behalf of any Lender); and (8) promptly upon request by the Administrative Agent (so long as the following are obtainable using commercially reasonable measures), copies of any documents described in Section 101(k)(1) of ERISA that the Borrower or any of its ERISA Affiliates may request with respect to any Multiemployer Plan; provided that if the Borrower or any of its ERISA Affiliates has not requested such documents from the administrator or sponsor of the applicable Multiemployer Plan, the Borrower or the applicable ERISA Affiliate shall promptly make a request for such documents or notices from such administrator or sponsor and shall provide copies of such documents and notices promptly after receipt thereof. Anything to the contrary notwithstanding, the obligations in clauses (1) and (2) of this Section 5.04 may be satisfied with respect to financial information of the Borrower and the Restricted Subsidiaries by furnishing (1) the applicable financial statements of Holdings (or any other Parent Entity) or (2) the Borrower’s or Holdings’ (or any such other Parent Entity’s), as applicable, Form 10-K or 10-Q, as applicable, filed with the SEC; provided that with respect to each of the foregoing clauses (1) and (2) (a) to the extent such information relates to Holdings (or a Parent Entity), such information is accompanied by consolidating information that explains in reasonable detail the differences between the information relating to Holdings (or such Parent Entity), on the one hand, and the information relating to the Borrower and the Restricted Subsidiaries on a standalone basis, on the other hand, and (b) to the extent such information is in lieu of information required to be provided under Section 5.04(1), such materials are accompanied by a report and opinion of independent public accountants of recognized national standing, or such other accountants as are reasonably acceptable to the Administrative Agent, and accompanied by an opinion of such accountants (which opinion shall not be subject to any “going concern” statement, explanatory note or like qualification or exception (other than a “going concern” statement, explanatory note or like qualification or exception resulting solely from an upcoming maturity date occurring within one year from the time such opinion is delivered or anticipated (but not actual) covenant non-compliance)) (it being understood and agreed that ~~the delivery by~~ if, in compliance with this paragraph, (x) the Borrower provides audited financial statements of ~~quarterly reports on Form 10-Q~~ Holdings (or any other Parent Entity) and related report and opinion of accountants with respect thereto in lieu of information required to be provided under Section 5.04(1), no such audited financial information, opinion or report shall be required with respect to the Borrower, (y) the Borrower provides unaudited financial statements of Holdings (or any other Parent Entity) in lieu of information required to be provided under Section 5.04(2), no such unaudited financial information shall be required with respect to the Borrower and ~~its consolidated Subsidiaries~~ (z) the Borrower provides a Budget of Holdings and accompanying statement (or any other Parent Entity) in lieu of information required to be provided under Section 5.04(5), no such Budget shall ~~satisfy~~ be required with respect to the ~~requirements~~ Borrower; provided that for the avoidance of ~~this Section 5.04(b~~doubt, with respect to the foregoing clauses (x), (y) and (z) (i) to the extent such ~~quarterly reports include~~ information relates to Holdings (or a Parent Entity), such information is accompanied by consolidating information that explains in reasonable detail the differences between the information ~~specified herein~~relating to Holdings (or such Parent Entity);, on the one hand, and the information relating to the Borrower and the Restricted Subsidiaries on a standalone basis, on the other hand, and (ii) to the extent such information is in lieu of information required to be provided under Section 5.04(1), such materials are accompanied by a report and opinion of independent public accountants of recognized national standing, or such other accountants as are reasonably acceptable to the Administrative Agent, and accompanied by an opinion of such accountants (which opinion shall not be subject to any “going concern” statement, explanatory note or like qualification or exception (other than a “going concern” statement, explanatory note or like qualification or exception resulting solely from an upcoming maturity date occurring within one year from the time such opinion is delivered or anticipated (but not actual) covenant non-compliance). The obligations in clauses (1) and (2) of this

Appears in 2 contracts

Samples: Term Loan Credit Agreement (PET Acquisition LLC), Term Loan Credit Agreement (PET Acquisition LLC)

Financial Statements, Reports, etc. Furnish to the Administrative Agent (which will promptly furnish such information to the Lenders): (a) within 90 days after the end of each fiscal ~~year (~~year, commencing with the first fiscal year ending ~~December 31, 2016)~~after the Closing Date, a consolidated balance sheet and related statements of operations, cash flows and owners’ equity showing the financial position of ~~the Borrower~~ Parent and its Subsidiaries as of the close of such fiscal year and the consolidated results of their operations during such year and setting forth in comparative form the corresponding figures for the prior fiscal year, which consolidated balance sheet and related statements of operations, cash flows and owners’ equity shall be accompanied by customary management’s discussion and analysis and audited by independent public accountants of recognized national standing and accompanied by an opinion of such accountants (which opinion shall not be qualified as to scope of audit or as to the status of ~~the Borrower~~ Parent or any Material Subsidiary as a going concern, other than solely with respect to, or resulting solely from, an upcoming maturity date under any ~~series of~~ Indebtedness incurred under this Agreement or the ABL Credit Agreement occurring within one year from the time such opinion is ~~delivered or any potential inability to satisfy a financial maintenance covenant on a future date or in a future period~~delivered) to the effect that such consolidated financial statements fairly present, in all material respects, the financial position and results of operations of ~~the Borrower~~ Parent and its Subsidiaries on a consolidated basis in accordance with GAAP (it being understood that the delivery by ~~the Borrower~~ Parent of annual reports on Form 10-K of ~~the Borrower~~ Parent and its consolidated Subsidiaries shall satisfy the requirements of this Section 5.04(a) to the extent such annual reports include the information specified ~~herein~~herein and are delivered within the time period specified above); (b) within 45 days after the end of each of the first three fiscal quarters of each fiscal year (commencing with the first fiscal quarter ending ~~June 30, 2016~~after the Closing Date), a consolidated balance sheet and related statements of operations and cash flows showing the financial position of ~~the Borrower~~ Parent and its Subsidiaries as of the close of such fiscal quarter and the consolidated results of their operations during such fiscal quarter and the then-elapsed portion of the fiscal year ~~and, starting with the fiscal quarter ending September 30, 2016,~~ and setting forth in comparative form the corresponding figures for the corresponding periods of the prior fiscal year, all of which shall be in reasonable detail, which consolidated balance sheet and related statements of operations and cash flows shall be accompanied by customary management’s discussion and analysis and which consolidated balance sheet and related statements of operations and cash flows shall be certified by a Financial Officer of ~~the Borrower~~ Parent on behalf of ~~the Borrower~~ Parent as fairly presenting, in all material respects, the financial position and results of operations of ~~the Borrower~~ Parent and its Subsidiaries on a consolidated basis in accordance with GAAP (subject to normal year-end audit adjustments and the absence of footnotes) (it being understood that the delivery by ~~the Borrower~~ Parent of quarterly reports on Form 10-Q of ~~the Borrower~~ Parent and its consolidated Subsidiaries shall satisfy the requirements of this Section 5.04(b) to the extent such quarterly reports include the information specified ~~herein~~herein and are delivered within the time period specified above); (c) (x) concurrently with any delivery of financial statements under clause (a) or (b) above, a certificate of a Financial Officer of Parent (i) certifying that no Event of Default or Default has occurred since the date of the last certificate delivered pursuant to this Section 5.04(c) (or since the Closing Date in the case of the first such certificate) or, if such an Event of Default or Default has occurred, specifying the nature and extent thereof and any corrective action taken or proposed to be taken with respect thereto, (ii) in the case of any certificate delivered simultaneously with the delivery of the financial statements referred to in clause (a) above commencing with respect to the fiscal year ending September 30, 2021, setting forth in reasonable detail the calculations for Excess Cash Flow for such period and (iii) setting forth the calculation and uses of the Available Amount for the fiscal period then ended if the Available Amount has been used for any purpose during such fiscal period and (y) concurrently with any delivery of financial statements under clause (a) above, if the accounting firm is not restricted from providing such a certificate by its policies office, a certificate of the accounting firm opining on or certifying such statements stating whether they obtained knowledge during the course of their examination of such statements of any Default or Event of Default (which certificate may be limited to accounting matters and disclaim responsibility for legal interpretations); (d) promptly after the same become publicly available, copies of all periodic and other publicly available reports, proxy statements and, to the extent requested by the Administrative Agent, other materials filed by Parent or any of the Subsidiaries with the SEC, or distributed to its stockholders or shareholders generally, as applicable; provided, however, that such reports, proxy statements, filings and other materials required to be delivered pursuant to this clause (d) shall be deemed delivered for purposes of this Agreement when posted to the website of Parent or the Borrowers or the website of the SEC and written notice of such posting has been delivered to the Administrative Agent; (e) within 90 days after the beginning of each fiscal year that commences after the Closing Date, a consolidated annual budget for such fiscal year consisting of a projected consolidated balance sheet of Parent and its Subsidiaries as of the end of such fiscal year and the related consolidated statements of projected cash flow and projected income (collectively, the “Budget”), which Budget shall in each case be accompanied by the statement of a Financial Officer of Parent to the effect that the Budget is based on assumptions believed by Parent to be reasonable as of the date of delivery thereof; (f) concurrently with the delivery of financial statements under clause (a) above, an updated Perfection Certificate reflecting all changes since the date of the information most recently received pursuant to this clause (f) or Section 5.10(c) (or a certificate of a Responsible Officer certifying as to the absence of any changes to the previously delivered update, if applicable); (g) promptly following any request therefor, information and documentation reasonably requested by the Administrative Agent or any Lender for purposes of compliance with applicable “know your customer” and anti-money laundering rules and regulations, including the PATRIOT Act and the Beneficial Ownership Regulation; and (h) promptly, from time to time, such other information regarding the operations, business affairs and financial condition of Parent or any of the Subsidiaries, or compliance with the terms of any Loan Document as in each case the Administrative Agent may reasonably request (for itself or on behalf of any Lender). The Borrowers acknowledge and agree that all financial statements furnished pursuant to paragraphs (a), (b) and (d) above are hereby deemed to be Borrower Materials suitable for distribution, and to be made available, to Public Lenders as contemplated by Section 9.17 and may be treated by the Administrative Agent and the Lenders as if the same had been marked “PUBLIC” in accordance with such paragraph (unless the Borrower Representative otherwise notifies the Administrative Agent in writing on or prior to delivery thereof).

Appears in 2 contracts

Samples: Term Loan Credit Agreement (Adient PLC), Term Loan Credit Agreement (Adient PLC)

Financial Statements, Reports, etc. ~~Furnish~~ In the case of the Borrower, furnish to the Administrative Agent ~~(which will promptly furnish such information~~ for distribution to ~~the Lenders):~~each Lender: (a) within 90 days after the end of each fiscal ~~year (commencing with the fiscal year ending December 31~~year, ~~2016), a~~ its consolidated ~~balance sheet~~ statement of financial condition and related consolidated statements of ~~operations~~income, stockholders’ equity and comprehensive income, and cash flows ~~and owners’ equity~~ showing the consolidated financial position of the Borrower and its consolidated Subsidiaries as of the close of such fiscal year and the consolidated results of ~~their~~ its operations ~~during~~ and the operations of such ~~year and setting forth in~~ Subsidiaries for such fiscal year, together with comparative ~~form the corresponding~~ figures for the ~~prior~~ immediately preceding fiscal year, ~~which consolidated balance sheet and related statements of operations, cash flows and owners’ equity shall be accompanied by customary management’s discussion and analysis and~~ all audited by KPMG LLP or other independent public accountants of recognized national standing and accompanied by an opinion of such accountants (which opinion shall ~~not~~ be ~~qualified as to scope of audit~~ without “going concern” or ~~as to~~ like qualification or exception or any explanatory paragraph expressing doubt about the ~~status~~ ability of the Borrower ~~or any Material Subsidiary~~ and its consolidated subsidiaries to continue as a going concern, ~~other than solely with respect to,~~ and without any qualification or ~~resulting solely from, an upcoming maturity date under any series~~ exception as to the scope of ~~Indebtedness occurring within one year from the time~~ such ~~opinion is delivered or any potential inability to satisfy a financial maintenance covenant on a future date or in a future period~~audit) to the effect that such consolidated financial statements fairly ~~present,~~ present in all material ~~respects,~~ respects the financial ~~position~~ condition and results of operations of the Borrower and its consolidated Subsidiaries on a consolidated basis in accordance with GAAP (consistently applied, together with a customary “management discussion and analysis of financial condition and results of operations” provision; provided that for the fiscal year ended on December 31, 2013, it ~~being~~ is understood and agreed that the ~~delivery~~ Borrower shall also provide a separate consolidated statement of financial condition and related consolidated statements of operations, changes in members’ equity and cash flows with respect to Direct Edge and its subsidiaries, all audited by ~~the Borrower of annual reports on Form 10-K of~~ PricewaterhouseCoopers, and all references in this clause (a) to the Borrower and its ~~consolidated~~ Subsidiaries shall ~~satisfy the requirements of this Section 5.04(a)~~ also be deemed references to ~~the extent~~ Direct Edge and its subsidiaries with respect to such ~~annual reports include the information specified herein)~~financial statements; (b) within 45 (or, in the case of the fiscal quarter ending March 31, 2014, 60) days after the end of each of the first three fiscal quarters of each fiscal ~~year (commencing with the fiscal quarter ending June 30~~year, ~~2016), a~~ its unaudited consolidated ~~balance sheet~~ statement of financial condition and related consolidated statements of ~~operations~~ income and cash flows showing the financial position of the Borrower and its consolidated Subsidiaries as of the close of such fiscal quarter and the ~~consolidated~~ results of ~~their~~ its operations ~~during~~ and the operations of such Subsidiaries during, in the case of such statements of income, such fiscal quarter and the ~~then-~~then elapsed portion of the fiscal ~~year~~ year, and, ~~starting with~~ in the case of such statements of cash flows, the elapsed portion of such fiscal ~~quarter ending September 30~~year, ~~2016, setting forth in~~ and comparative ~~form the corresponding~~ figures for the ~~corresponding~~ same periods of in the ~~prior~~ immediately preceding fiscal year, all of which shall be in reasonable detail, which consolidated balance sheet and related statements of operations and cash flows shall be accompanied by customary management’s discussion and analysis and which consolidated balance sheet and related statements of operations and cash flows shall be certified by a one of its Financial ~~Officer of the Borrower on behalf of the Borrower~~ Officers as fairly ~~presenting,~~ presenting in all material ~~respects,~~ respects the financial ~~position~~ condition and results of operations of the Borrower and its consolidated Subsidiaries on a consolidated basis in accordance with GAAP (consistently applied, subject to normal year-end audit adjustments and the absence of footnotes, together with a customary “management discussion and analysis” provision; provided that for the fiscal quarter ended on March 31, 2014, it is understood and agreed that Direct Edge and its subsidiaries shall be included in such consolidated financial statements only with respect to the period following the Closing Date; (c) concurrently with any delivery of financial statements under paragraph (~~it being understood~~ a) or (b) above, a Compliance Certificate (i) certifying that no Event of Default or Default has occurred and is continuing or, if such an Event of Default or Default has occurred and is continuing, specifying the nature and extent thereof and any corrective action taken or proposed to be taken with respect thereto and (ii) setting forth computations in reasonable detail demonstrating compliance with the covenant contained in Section 6.11 and, in the case of a certificate delivered with the financial statements required by paragraph (a) above for any fiscal year ending on or after December 31, 2014, setting forth the Borrower’s calculation of Excess Cash Flow and attaching a complete schedule of the Inactive Subsidiaries, Broker Dealer Subsidiaries and Registered Securities Exchange Subsidiaries (which schedule shall amend or supplement Schedules 1.01(a) and 1.01(d)); (d) concurrently with any delivery of financial statements under clause (a) above, unless the policies of such accounting firm prohibit the making of such statement at such time, a statement of the accounting firm that reported on such financial statements (which statement may be limited to accounting matters and disclaim responsibility for legal interpretations) confirming that, as of the last day of the immediately preceding fiscal year, in making the examination necessary in connection with such financial statements no knowledge was obtained of any Event of Default with respect to Section 6.11 or, if such knowledge of any such Event of Default or Default was obtained, specifying the extent thereof in reasonable detail; (e) within 45 days after the beginning of each fiscal year of the Borrower (starting with the fiscal year beginning January 1, 2015), a detailed consolidated budget for such fiscal year (including a projected consolidated balance sheet and related statements of projected operations and cash flows as of the end of and for such fiscal year and setting forth the assumptions used for purposes of preparing such budget); (f) if the Borrower becomes a public reporting company, promptly after the same become publicly available, copies of all periodic and other reports, proxy statements and other materials filed by the Borrower with the SEC, or with any national securities exchange, or distributed generally to its shareholders as such, as the case may be; (g) promptly after the receipt thereof by the Borrower or any Subsidiary, a copy of ~~quarterly reports on Form 10~~any “management letter” received by any such Person from its certified public accountants and the management’s response thereto; (h) promptly after the request by any Lender, all documentation and other information that such Lender reasonably requests in order to comply with its ongoing obligations under applicable “know your customer” and anti-Q money laundering rules and regulations, including the USA PATRIOT Act; (i) promptly after the request by the Administrative Agent or any Lender, copies of (i) any documents described in Section 101(k)(1) of ERISA that the Borrower or any of its ERISA Affiliates may request with respect to any Multiemployer Plan and (ii) any notices described in Section 101(l)(1) of ERISA that the Borrower or any of its ERISA Affiliates may request with respect to any Multiemployer Plan; and (j) promptly, from time to time, such other information regarding the operations, business affairs and financial condition of the Borrower ~~and its consolidated Subsidiaries shall satisfy~~ or any Subsidiary, or compliance with the ~~requirements~~ terms of ~~this Section 5.04(b) to~~ any Loan Document, as the ~~extent such quarterly reports include~~ Administrative Agent, at the ~~information specified herein);~~request of any Lender, may reasonably request.

Appears in 2 contracts

Samples: Credit Agreement (BATS Global Markets, Inc.), Credit Agreement (BATS Global Markets, Inc.)

Financial Statements, Reports, etc. Furnish to the Administrative Agent (which will promptly furnish such information to the Lenders): (a) within 90 days after the end of each fiscal year of the Borrower (~~commencing with~~ or such earlier date on which the ~~fiscal year ending December 31, 2016~~Borrower is required to file a Form 10-K under the Exchange Act), a consolidated balance sheet and related statements of operations, cash flows and owners’ ' equity showing the financial position of the Borrower and ~~its~~ the Subsidiaries as of the close of such fiscal year and the consolidated results of their operations during such year and setting forth in comparative form the corresponding figures for the prior fiscal year, which consolidated balance sheet and related statements of operations, cash flows and owners’ ' equity shall be ~~accompanied by customary management’s discussion and analysis and~~ audited by independent public accountants of recognized national standing and accompanied by an opinion of such accountants (which ~~opinion~~ shall not be qualified ~~as to scope of audit or as to the status of the Borrower or~~ in any Material Subsidiary as a going concern, other than solely with respect to, or resulting solely from, an upcoming maturity date under any series of Indebtedness occurring within one year from the time such opinion is delivered or any potential inability to satisfy a financial maintenance covenant on a future date or in a future periodmaterial respect) to the effect that such consolidated financial statements fairly present, in all material respects, the financial position and results of operations of the Borrower and its Subsidiaries on a consolidated basis in accordance with GAAP (it being ~~understood~~ understand that the ~~delivery~~ information required by clause (a) may be furnished in the ~~Borrower~~ form of ~~annual reports on~~ a Form 10-~~K of the Borrower and its consolidated Subsidiaries shall satisfy the requirements of this Section 5.04(a) to the extent such annual reports include the information specified herein~~K); (b) within 45 days after the end of each of the first three fiscal quarters of each fiscal ~~year~~ year, (~~commencing with~~ or such earlier date on which the ~~fiscal quarter ending June 30, 2016~~Borrower is required to file a Form 10-Q under the Exchange Act), a consolidated balance sheet and related statements of operations and cash flows showing the financial position of the Borrower and its Subsidiaries as of the close of such fiscal quarter and the consolidated results of ~~their~~ its operations during such fiscal quarter and the then-elapsed portion of the fiscal year ~~and, starting with the fiscal quarter ending September 30, 2016,~~ and setting forth in comparative form the corresponding figures for the corresponding periods of the prior fiscal year, all of which shall be in reasonable ~~detail, which consolidated balance sheet and related statements of operations and cash flows shall be accompanied by customary management’s discussion and analysis~~ detail and which consolidated balance sheet and related statements of operations and cash flows shall be certified by a Financial Officer of the Borrower on behalf of the Borrower as fairly presenting, in all material respects, the financial position and results of operations of the Borrower and ~~its~~ the Subsidiaries on a consolidated basis in accordance with GAAP (subject to normal year-end audit adjustments and the absence of footnotes) (it being understood that the information required by this clause (b) may be furnished in the form of a 10-Q); (c) concurrently with any delivery of financial statements under paragraph (a) or (b) above, a certificate of a Financial Officer of the Borrower (i) certifying that no Event of Default or Default has occurred or, if such an Event of Default or Default has occurred, specifying the nature and extent thereof and any corrective action taken or proposed to be taken with respect thereto and (ii) commencing with the fiscal quarter ending September 30, 2006, setting forth computations in reasonable detail satisfactory to the Administrative Agent demonstrating compliance with the Financial Performance Covenants; (d) promptly after the same become publicly available, copies of all periodic and other publicly available reports, proxy statements and, to the extent requested by the Administrative Agent, other materials filed by the Borrower or any Subsidiary with the SEC, or after an initial public offering, distributed to its stockholders generally, as applicable; (e) within 90 days after the beginning of each fiscal year, a detailed consolidated quarterly ~~reports on Form 10-Q~~ budget for such fiscal year (including a projected consolidated balance sheet of the Borrower and ~~its~~ the Subsidiaries as of the end of the following fiscal year, and the related consolidated ~~Subsidiaries~~ statements of projected cash flow and projected income) and, as soon as available, significant revisions, if any, of such budget and quarterly projections with respect to such fiscal year, including a description of underlying assumptions with respect thereto (collectively, the "Budget"), which Budget shall ~~satisfy~~ in each case be accompanied by the ~~requirements~~ statement of ~~this Section 5.04(b~~a Financial Officer of the Borrower to the effect that, to the best of his or her knowledge, the Budget is a reasonable estimate for the period covered thereby; (f) upon the reasonable request of the Administrative Agent, an updated Perfection Certificate (or, to the extent such ~~quarterly reports include~~ request relates to specified information contained in the Perfection Certificate, such information) reflecting all changes since the date of the information ~~specified herein~~most recently received pursuant to this paragraph (f) or Section 5.10(f); (g) promptly, a copy of all reports submitted to the board of directors (or any committee thereof) of the Borrower or any Subsidiary in connection with any material interim or special audit made by independent accountants of the books of the Borrower or such Subsidiary (excluding any reports which have been identified as confidential); (h) promptly following a request therefor, all documentation and other information that the Administrative Agent reasonably requests on its own behalf or on behalf of any Lender in order to comply with ongoing obligations under applicable "know your customer" and anti-money laundering rules and regulations, including the Act; and (i) promptly, from time to time, such other information regarding the operations, business affairs and financial condition of the Borrower or any Subsidiary, or compliance with the terms of any Loan Document, or such consolidated financial statements, as in each case the Administrative Agent may reasonably request on its own behalf or on behalf of any Lender.

Appears in 2 contracts

Samples: Credit Agreement (Nuance Communications, Inc.), Credit Agreement (Nuance Communications, Inc.)

Financial Statements, Reports, etc. Furnish to the Administrative Agent (which will promptly furnish such information to the Lenders): (a1) within 90 105 days ~~after~~ following the end of each fiscal year ended after the Closing Date (~~commencing with the fiscal year ending December 31, 2016~~i), a consolidated balance sheet and related statements of operations, cash flows and owners’ equity showing the financial position of the Borrower and ~~its~~ the Restricted Subsidiaries as of the close of such fiscal year and the consolidated results of ~~their~~ its operations during such fiscal year ~~and~~ and, in each case, starting with the following fiscal year, setting forth in comparative form the corresponding figures for the prior fiscal year, which consolidated balance sheet and related statements of operations, cash flows and owners’ equity ~~shall~~ will be ~~accompanied by customary management’s discussion and analysis and~~ audited by independent public accountants of recognized national ~~standing~~ standing, or such other accountants as are reasonably acceptable to the Administrative Agent, and accompanied by an opinion of such accountants (which opinion shall not be ~~qualified as~~ subject to ~~scope of audit or as to the status of the Borrower or~~ any ~~Material Subsidiary as a~~ “going concern” statement, explanatory note or like qualification or exception (other than ~~solely with respect to~~a “going concern” statement, explanatory note or like qualification or exception resulting solely ~~from,~~ from an upcoming maturity date ~~under any series of Indebtedness~~ occurring within one year from the time such opinion is delivered or ~~any potential inability to satisfy a financial maintenance~~ anticipated (but not actual) covenant ~~on a future date or in a future period~~non-compliance)) to the effect that such consolidated financial statements fairly present, in all material respects, the financial position and results of operations of the Borrower and ~~its~~ the Restricted Subsidiaries on a consolidated basis in accordance with GAAP (it the applicable financial statements delivered pursuant to this clause (1) being ~~understood that~~ the ~~delivery by~~ “Annual Financial Statements”) and (ii) a management’s discussion and analysis of financial condition and results of operations, discussing and analyzing the ~~Borrower~~ results of ~~annual reports on Form 10-K~~ operations of the Borrower ~~and its consolidated Subsidiaries shall satisfy~~ for the ~~requirements of this Section 5.04(a) to the extent~~ period covered by such ~~annual reports include the information specified herein)~~Annual Financial Statements; (b2) within 45 60 days ~~after~~ following the end of each of the first three fiscal quarters of each fiscal ~~year~~ year, (~~commencing with the fiscal quarter ending June 30, 2016),~~ i) a consolidated balance sheet and related statements of operations and cash flows showing the financial position of the Borrower and ~~its~~ the Restricted Subsidiaries as of the close of such fiscal quarter and the consolidated results of ~~their~~ its operations during such fiscal quarter ~~and~~ and, in each case, the then-elapsed portion of the fiscal year ~~and, starting with the fiscal quarter ending September 30, 2016,~~ and setting forth in comparative form the corresponding figures for the corresponding periods of the prior fiscal year, ~~all of which shall be in reasonable detail,~~ which consolidated balance sheet and related statements of operations and cash flows ~~shall be accompanied by customary management’s discussion and analysis and which consolidated balance sheet and related statements of operations and cash flows shall~~ will be certified by a ~~Financial~~ Responsible Officer of the Borrower on behalf of the Borrower as fairly presenting, in all material respects, the financial position and results of operations of the Borrower and ~~its~~ the Restricted Subsidiaries on a consolidated basis in accordance with ~~GAAP (~~GAAP, subject to normal year-end audit adjustments and the absence of footnotes, and (ii) a management’s discussion and analysis of financial condition and results of operations, discussing and analyzing the results of operations of the Borrower for such fiscal quarter (the applicable financial statements delivered pursuant to this clause (2) being the “Quarterly Financial Statements” and, together with the Annual Financial Statements, the “Required Financial Statements”); (3) concurrently with any delivery of Required Financial Statements, a certificate of a Financial Officer of the Company: (a) certifying that no Default or Event of Default has occurred and is continuing or, if a Default or Event of Default has occurred and is continuing, specifying the nature and extent thereof and any corrective action taken or proposed to be taken with respect thereto; (i) setting forth the calculation and uses of the Available Amount for the fiscal period then ended if the Borrower has used the Available Amount for any purpose during such fiscal period; (ii) certifying a list of all Immaterial Subsidiaries, that each Subsidiary set forth on such list individually qualifies as an Immaterial Subsidiary and that all such Subsidiaries in the aggregate do not exceed the limitation set forth in clause (ii) of the definition of the term “Immaterial Subsidiary”; (iii) setting forth, in reasonable detail, the calculation of the Senior Secured First Lien Net Leverage Ratio for the most recent period of four consecutive fiscal quarters as of the close of such fiscal year or such fiscal quarter, as applicable; and (iv) certifying a list of all Unrestricted Subsidiaries at such time and that each Subsidiary set forth on such list qualifies as an Unrestricted Subsidiary; (4) promptly after the same become publicly available, copies of all periodic and other publicly available reports, proxy statements and, to the extent requested by the Administrative Agent, other materials publicly filed by Holdings, the Borrower or any Restricted Subsidiary with the SEC or, after an initial public offering, distributed to its stockholders generally, as applicable; (5) within 105 days following the end of each full fiscal year ended after the Closing Date, a consolidated annual budget for such fiscal year in the form customarily prepared by the Borrower (the “Budget”), which Budget will in each case be accompanied by the statement of a Financial Officer of the Borrower on behalf of the Borrower to the effect that the Budget is based on assumptions believed by the Borrower to be reasonable as of the date of delivery thereof; (6) upon the reasonable request of the Collateral Agent, concurrently with the delivery of the Annual Financial Statements, an updated Perfection Certificate (or, to the extent such request relates to specified information contained in the Perfection Certificate, such information) reflecting all changes since the date of the information most recently received pursuant to this paragraph (6) or Section 5.10; (7) promptly, from time to time, such other information regarding the operations, business affairs and financial condition of Holdings, the Borrower or any Restricted Subsidiary, in each case, as the Administrative Agent may reasonably request (for itself or on behalf of any Lender); and (8) promptly upon request by the Administrative Agent (so long as the following are obtainable using commercially reasonable measures), copies of any documents described in Section 101(k)(1) of ERISA that the Borrower or any of its ERISA Affiliates may request with respect to any Multiemployer Plan; provided that if the Borrower or any of its ERISA Affiliates has not requested such documents from the administrator or sponsor of the applicable Multiemployer Plan, the Borrower or the applicable ERISA Affiliate shall promptly make a request for such documents or notices from such administrator or sponsor and shall provide copies of such documents and notices promptly after receipt thereof. Anything to the contrary notwithstanding, the obligations in clauses (1) and (2) of this Section 5.04 may be satisfied with respect to financial information of the Borrower and the Restricted Subsidiaries by furnishing (1) the applicable financial statements of Holdings (or any other Parent Entity) or (2) the Borrower’s or Holdings’ (or any such other Parent Entity’s), as applicable, Form 10 K or 10 Q, as applicable, filed with the SEC; provided that with respect to each of the foregoing clauses (1) and (2) (a) to the extent such information relates to Holdings (or a Parent Entity), such information is accompanied by consolidating information that explains in reasonable detail the differences between the information relating to Holdings (or such Parent Entity), on the one hand, and the information relating to the Borrower and the Restricted Subsidiaries on a standalone basis, on the other hand, and (b) to the extent such information is in lieu of information required to be provided under Section 5.04(1), such materials are accompanied by a report and opinion of independent public accountants of recognized national standing, or such other accountants as are reasonably acceptable to the Administrative Agent, and accompanied by an opinion of such accountants (which opinion shall not be subject to any “going concern” statement, explanatory note or like qualification or exception (other than a “going concern” statement, explanatory note or like qualification or exception resulting solely from an upcoming maturity date occurring within one year from the time such opinion is delivered or anticipated (but not actual) covenant non-compliance)) (it being understood and agreed that ~~the delivery by~~ if, in compliance with this paragraph, (x) the Borrower provides audited financial statements of ~~quarterly reports~~ Holdings (or any other Parent Entity) and related report and opinion of accountants with respect thereto in lieu of information required to be provided under Section 5.04(1), no such audited financial information, opinion or report shall be required with respect to the Borrower, (y) the Borrower provides unaudited financial statements of Holdings (or any other Parent Entity) in lieu of information required to be provided under Section 5.04(2), no such unaudited financial information shall be required with respect to the Borrower and (z) the Borrower provides a Budget of Holdings and accompanying statement (or any other Parent Entity) in lieu of information required to be provided under Section 5.04(5), no such Budget shall be required with respect to the Borrower; provided that for the avoidance of doubt, with respect to the foregoing clauses (x), (y) and (z) (i) to the extent such information relates to Holdings (or a Parent Entity), such information is accompanied by consolidating information that explains in reasonable detail the differences between the information relating to Holdings (or such Parent Entity), on ~~Form 10~~the one hand, and the information relating to the Borrower and the Restricted Subsidiaries on a standalone basis, on the other hand, and (ii) to the extent such information is in lieu of information required to be provided under Section 5.04(1), such materials are accompanied by a report and opinion of independent public accountants of recognized national standing, or such other accountants as are reasonably acceptable to the Administrative Agent, and accompanied by an opinion of such accountants (which opinion shall not be subject to any “going concern” statement, explanatory note or like qualification or exception (other than a “going concern” statement, explanatory note or like qualification or exception resulting solely from an upcoming maturity date occurring within one year from the time such opinion is delivered or anticipated (but not actual) covenant non-Q compliance)). The obligations in clauses (1) and (2) of this Section 5.04 may be satisfied by delivery of financial information of the Borrower and its ~~consolidated~~ Subsidiaries ~~shall satisfy~~ so long as such financial statements include a reasonably detailed presentation, either on the ~~requirements~~ face of the financial statements or in the footnotes thereto, of the financial condition and results of operations of the Borrower and the Restricted Subsidiaries separate from the financial condition and results of operations of the Unrestricted Subsidiaries of the Borrower. Documents required to be delivered pursuant to this Section ~~5.04(b) to the extent such quarterly reports include the information specified herein~~5.04 may be delivered electronically in accordance with Section 10.01(5);.

Appears in 2 contracts

Samples: Term Loan Credit Agreement (Leslie's, Inc.), Term Loan Credit Agreement (Leslie's, Inc.)

Appears in 2 contracts

Samples: Incremental Assumption Agreement (AP Gaming Holdco, Inc.), First Lien Credit Agreement (AP Gaming Holdco, Inc.)

Financial Statements, Reports, etc. Furnish to the Administrative Agent (which will promptly furnish such information to the Lenders): (a) ~~within~~ Within 90 days ~~after~~ (or such other time period as specified in the ~~end~~ SEC’s rules and regulations for the filing of annual reports on Form 10-K), for each fiscal year (commencing with the fiscal year ending December 31, ~~2016~~2006), a consolidated balance sheet and related statements of operations, cash flows and owners’ equity showing the financial position of the Borrower and its Subsidiaries as of the close of such fiscal year and the consolidated results of ~~their~~ its operations during such year ~~and~~ and, starting with the fiscal year ending December 31, 2006, setting forth in comparative form the corresponding figures for the prior fiscal year, which consolidated balance sheet and related statements of operations, cash flows and owners’ equity shall be ~~accompanied by customary management’s discussion and analysis and~~ audited by independent public accountants of recognized national standing and accompanied by an opinion of such accountants (which ~~opinion~~ shall not be qualified as to scope of audit or as to the status of the Borrower or any Material Subsidiary as a going concern, other than solely with respect to, or resulting solely from, an upcoming maturity date under any series of Indebtedness occurring within one year from the time such opinion is delivered or any potential inability to satisfy a financial maintenance covenant on a future date or in a future period) to the effect that such consolidated financial statements fairly present, in all material respects, the financial position and results of operations of the Borrower and its Subsidiaries on a consolidated basis in accordance with GAAP (it being understood that the delivery by the Borrower of annual reports on Form ~~10-~~10 K of the Borrower and its consolidated Subsidiaries shall satisfy the requirements of this Section 5.04(a) to the extent such annual reports include the information specified herein); (b) ~~within~~ Within 45 days ~~after~~ (or such other time period as specified in the SEC’s rules and regulations for the filing of quarterly reports on Form 10-Q) (or, in the case of the first fiscal quarter for which quarterly financial statements are required to be delivered hereunder, within 75 days following the end of such fiscal quarter), for each of the first three fiscal quarters of each fiscal ~~year (commencing with the fiscal quarter ending June 30, 2016)~~year, a consolidated balance sheet and related statements of operations and cash flows showing the financial position of the Borrower and its Subsidiaries as of the close of such fiscal quarter and the consolidated results of ~~their~~ its operations during such fiscal quarter and the then-elapsed portion of the fiscal year ~~and, starting with the fiscal quarter ending September 30, 2016,~~ and setting forth in comparative form the corresponding figures for the corresponding periods of the prior fiscal year, all of which shall be in reasonable ~~detail, which consolidated balance sheet and related statements of operations and cash flows shall be accompanied by customary management’s discussion and analysis~~ detail and which consolidated balance sheet and related statements of operations and cash flows shall be certified by a Financial Officer of the Borrower on behalf of the Borrower as fairly presenting, in all material respects, the financial position and results of operations of the Borrower and its Subsidiaries on a consolidated basis in accordance with GAAP (subject to normal year-end audit adjustments and the absence of footnotes) (it being understood that the delivery by the Borrower of quarterly reports on Form 10-Q of the Borrower and its consolidated Subsidiaries shall satisfy the requirements of this Section 5.04(b) to the extent such quarterly reports include the information specified herein);

Appears in 2 contracts

Samples: Credit Agreement (Verso Sartell LLC), Credit Agreement (Verso Paper Holdings LLC)

Financial Statements, Reports, etc. Furnish to the Administrative Agent (which will promptly furnish such information to the Lenders): (a) ~~within~~ Within 90 days ~~after~~ (or such other time period as specified in the ~~end~~ SEC’s rules and regulations with respect to non-accelerated filers for the filing of annual reports on Form 10-K), for each fiscal year (commencing with the fiscal year ending ~~December 31~~February 2, ~~2016~~2008), a consolidated balance sheet and related statements of operations, cash flows and owners’ equity showing the financial position of the Borrower and ~~its~~ the Subsidiaries as of the close of such fiscal year and the consolidated results of their operations during such year ~~and~~ and, starting with the fiscal year ending February 2, 2008, setting forth in comparative form the corresponding figures for the prior fiscal year, which consolidated balance sheet and related statements of operations, cash flows and owners’ equity shall be ~~accompanied by customary management’s discussion and analysis and~~ audited by independent public accountants of recognized national standing and accompanied by an opinion of such accountants (which ~~opinion~~ shall not be qualified as to scope of audit or as to the status of the Borrower or any Material Subsidiary as a going concern, other than solely with respect to, or resulting solely from, an upcoming maturity date under any series of Indebtedness occurring within one year from the time such opinion is delivered or any potential inability to satisfy a financial maintenance covenant on a future date or in a future period) to the effect that such consolidated financial statements fairly present, in all material respects, the financial position and results of operations of the Borrower and ~~its~~ the Subsidiaries on a consolidated basis in accordance with ~~GAAP~~ GAAP, subject to exceptions consistent with the presentation of financial information contained in the Notes Offering Memorandum (it being understood that the ~~delivery by~~ filing with the ~~Borrower~~ Securities and Exchange Commission of annual reports on Form ~~10-~~10 K of the Borrower and its consolidated ~~Subsidiaries~~ Subsidiaries, or delivery by the Borrower of such reports to the Administrative Agent, shall satisfy the requirements of this Section 5.04(a) to the extent such annual reports include the information specified herein); (b) ~~within~~ Within 45 days ~~after~~ (or such other time period as specified in the ~~end~~ SEC’s rules and regulations with respect to non-accelerated filers for the filing of quarterly reports on Form 10 Q), for each of the first three fiscal quarters of each fiscal ~~year (commencing with the fiscal quarter ending June 30, 2016)~~year, a consolidated balance sheet and related statements of operations and cash flows showing the financial position of the Borrower and ~~its~~ the Subsidiaries as of the close of such fiscal quarter and the consolidated results of their operations during such fiscal quarter and the ~~then-~~then elapsed portion of the fiscal year ~~and, starting with the fiscal quarter ending September 30, 2016,~~ and setting forth in comparative form the corresponding figures for the corresponding periods of the prior fiscal year, all of which shall be in reasonable ~~detail, which consolidated balance sheet and related statements of operations and cash flows shall be accompanied by customary management’s discussion and analysis~~ detail and which consolidated balance sheet and related statements of operations and cash flows shall be certified by a Financial Officer of the Borrower on behalf of the Borrower as fairly presenting, in all material respects, the financial position and results of operations of the Borrower and ~~its~~ the Subsidiaries on a consolidated basis in accordance with GAAP (subject to normal year-end audit adjustments and the absence of footnotes) , and to exceptions consistent with the presentation of financial information contained in the Notes Offering Memorandum (it being understood that the ~~delivery by~~ filing with the ~~Borrower~~ Securities and Exchange Commission of quarterly reports on Form ~~10-~~10 Q of the Borrower and its consolidated ~~Subsidiaries~~ Subsidiaries, or delivery by the Borrower of such reports to the Administrative Agent, shall satisfy the requirements of this Section 5.04(b) to the extent such quarterly reports include the information specified herein);

Appears in 2 contracts

Samples: Credit Agreement (Claires Stores Inc), Amendment No. 3 and Waiver (Claires Stores Inc)

Financial Statements, Reports, etc. Furnish to the Administrative Agent (which will promptly furnish such information to the Lenders): (a) ~~within~~ no later than 90 days (or, in the case of the fiscal year ending February 2, 2019, 120 days) after the end of each fiscal year (commencing with the fiscal year ending ~~December 31~~February 2, ~~2016~~2019), a consolidated balance sheet and related statements of operations, cash flows and owners’ equity showing the financial position of the Lead Borrower and ~~its~~ the Subsidiaries as of the close of such fiscal year and the consolidated results of ~~their~~ its operations during such year ~~and~~ setting forth in comparative form the corresponding figures for the prior fiscal year, which consolidated balance sheet and related statements of operations, cash flows and owners’ equity shall be accompanied by customary management’s discussion and analysis (commencing with the fiscal year ending February 1, 2020) and audited by independent public accountants of recognized national standing and accompanied by an opinion of such accountants (which ~~opinion~~ shall not be qualified as to scope of audit or as to the status of the Lead Borrower or any ~~Material Subsidiary~~ subsidiary as a going ~~concern,~~ concern (other than ~~solely with respect to,~~ any going concern qualification or ~~resulting solely from, an upcoming maturity date under~~ matter of emphasis arising as a result of the anticipated breach of any ~~series of Indebtedness occurring within one year from the time such opinion is delivered or any potential inability to satisfy a~~ financial ~~maintenance covenant on a future date or in a future period~~covenant)) to the effect that such consolidated financial statements fairly present, in all material respects, the financial position and results of operations of the Lead Borrower and ~~its Subsidiaries~~ the subsidiaries on a consolidated basis in accordance with GAAP (it being understood that the ~~delivery by~~ filing with the ~~Borrower~~ SEC of annual reports on Form 10-K of the Lead Borrower and its consolidated ~~Subsidiaries~~ subsidiaries, or delivery by the Lead Borrower of such reports, shall satisfy the requirements of this Section 5.04(a) to the extent such annual reports include the information specified herein); (b) ~~within~~ no later than 45 days after the end of each of the first three (3) fiscal quarters of each fiscal year (commencing with the fiscal quarter ending ~~June 30~~May 4, ~~2016~~2019), a consolidated balance sheet and related statements of operations and cash flows showing the financial position of the Lead Borrower and ~~its Subsidiaries~~ the subsidiaries as of the close of such fiscal quarter and the consolidated results of ~~their~~ its operations during such fiscal quarter and the ~~then-~~then elapsed portion of the fiscal year ~~and, starting with the fiscal quarter ending September 30, 2016,~~ and setting forth in comparative form the corresponding figures for the corresponding periods of the prior fiscal year, all of which shall be in reasonable ~~detail,~~ detail and which consolidated balance sheet and related statements of operations and cash flows shall be accompanied by customary management’s discussion and analysis (commencing with the fiscal quarter ending August 3, 2019) and ~~which consolidated balance sheet and related statements of operations and cash flows shall be~~ certified by a Financial Officer of the Lead Borrower on behalf of the Lead Borrower as fairly presenting, in all material respects, the financial position and results of operations of the Lead Borrower and ~~its Subsidiaries~~ the subsidiaries on a consolidated basis in accordance with GAAP (subject to normal year-end audit adjustments and the absence of footnotes) (it being understood that the ~~delivery by~~ filing with the ~~Borrower~~ SEC of quarterly reports on Form 10-Q of the Lead Borrower and its consolidated ~~Subsidiaries~~ subsidiaries, or the delivery by the Lead Borrower of such reports, shall satisfy the requirements of this Section 5.04(b) to the extent such quarterly reports include the information specified herein); (c) concurrently with any delivery of financial statements under paragraphs (a) or (b) above, a certificate of a Financial Officer of the Lead Borrower (i) certifying that no Event of Default or Default has occurred or, if such an Event of Default or Default has occurred, specifying the nature and extent thereof and any corrective action taken or proposed to be taken with respect thereto, (ii) to the extent that compliance with the financial covenant under Section 6.11 is (or was) required in respect of the period covered by such financial statements, certifying as to (and containing reasonably detailed calculations demonstrating) compliance with such financial covenant as of the last day of the applicable Test Period, (iii) certifying a list of names of all Immaterial Subsidiaries, that each subsidiary set forth on such list individually qualifies as an Immaterial Subsidiary and that all such Subsidiaries in the aggregate do not exceed the limitation set forth in clause (b) of the definition of the term “Immaterial Subsidiary”, and (iv) certifying a list of names of all Unrestricted Subsidiaries and that each subsidiary set forth on such list qualifies as an Unrestricted Subsidiary; (d) within 15 days after filed with the SEC, any reports of the Lead. Borrower filed on Form 8-K (it being understood that the filing with the SEC of reports on Form 8-K of the Lead Borrower and its Subsidiaries, or the delivery by the Lead Borrower of such reports, shall satisfy the requirements of this Section 5.04(d)); (e) concurrently with any delivery of financial statements under paragraphs (a) or (b) above, the related consolidated financial statements reflecting the adjustments necessary (as determined by the Administrative Agent and the Lead Borrower in good faith) to eliminate the accounts of Unrestricted Subsidiaries (if any) from such consolidated financial statements; (f) within 90 days after the beginning of each fiscal year, a reasonably detailed consolidated annual budget for such fiscal year (including a projected consolidated balance sheet of the Lead Borrower and the Subsidiaries as of the end of the following fiscal year, and the related statement or schedule of projected cash flow and projected income), including a description of underlying assumptions with respect thereto (collectively, the “Budget”), which Budget shall in each case be accompanied by the statement of a Financial Officer of the Lead Borrower to the effect that the Budget it based on assumptions believed by such Financial Officer to be reasonable as of the date of delivery thereof.

Appears in 2 contracts

Samples: Abl Credit Agreement (Claire's Holdings LLC), Abl Credit Agreement (Claire's Holdings LLC)

Appears in 2 contracts

Samples: First Lien Credit Agreement (McGraw-Hill Interamericana, Inc.), First Lien Credit Agreement (McGraw-Hill Global Education LLC)

Financial Statements, Reports, etc. Furnish to the Administrative Agent (which will promptly furnish such information to the Lenders): (a) within 90 days ~~after~~ (or such other time period as specified in the SEC’s rules and regulations with respect to non-accelerated filers for the filing of annual reports on Form 10-K), following the end of each ~~fiscal year~~ Fiscal Year (commencing with the ~~fiscal year~~ Fiscal Year ending ~~December~~ January 31, ~~2016~~2011), a consolidated balance sheet and related statements of operations, cash flows and owners’ equity showing the financial position of the Borrower and its Subsidiaries as of the close of such ~~fiscal year~~ Fiscal Year and the consolidated results of ~~their~~ its operations during such year ~~and~~ and, starting with the Fiscal Year ending January 31, 2011, setting forth in comparative form the corresponding figures for the prior ~~fiscal year~~Fiscal Year, which consolidated balance sheet and related statements of operations, cash flows and owners’ equity shall be ~~accompanied by customary management’s discussion and analysis and~~ audited by independent public accountants of recognized national standing and accompanied by an opinion of such accountants (which ~~opinion~~ shall not be qualified as to scope of audit or as to ~~the status of the Borrower or any Material Subsidiary as a~~ “going concern~~, other than solely with respect to,~~ ” or ~~resulting solely from, an upcoming maturity date under any series of Indebtedness occurring within one year from the time such opinion is delivered~~ similar qualification or ~~any potential inability to satisfy a financial maintenance covenant on a future date or in a future period~~exception) to the effect that such consolidated financial statements fairly present, in all material respects, the financial position and results of operations of the Borrower and its Subsidiaries on a consolidated basis in accordance with GAAP (it being understood that the delivery by the Borrower of annual reports on Form 10-K of the Borrower and its consolidated Subsidiaries shall satisfy the requirements of this Section 5.04(a) to the extent such annual reports include the information specified herein); (b) within 45 days (or such other time period as specified in the SEC’s rules and regulations with respect to non-accelerated filers for the filing of quarterly reports on Form 10-Q) (or, in the case of the first Fiscal Quarter after the Closing Date financial statements are required to be delivered hereunder, within 60 days following the end of such Fiscal Quarter), following the end of each of the first three ~~fiscal quarters~~ Fiscal Quarters of each ~~fiscal year (commencing with the fiscal quarter ending June 30, 2016)~~Fiscal Year, a consolidated balance sheet and related statements of operations and cash flows showing the financial position of the Borrower and its Subsidiaries as of the close of such ~~fiscal quarter~~ Fiscal Quarter and the consolidated results of ~~their~~ its operations during such ~~fiscal quarter~~ Fiscal Quarter and the then-elapsed portion of the ~~fiscal year and, starting with the fiscal quarter ending September 30, 2016,~~ Fiscal Year and setting forth in comparative form the corresponding figures for the corresponding periods of the prior ~~fiscal year~~Fiscal Year, all of which shall be in reasonable ~~detail, which consolidated balance sheet and related statements of operations and cash flows shall be accompanied by customary management’s discussion and analysis~~ detail and which consolidated balance sheet and related statements of operations and cash flows shall be certified by a Financial Officer of the Borrower on behalf of the Borrower as fairly presenting, in all material respects, the financial position and results of operations of the Borrower and its Subsidiaries on a consolidated basis in accordance with GAAP (subject to normal year-end audit adjustments and the absence of footnotes) (it being understood that the delivery by the Borrower of quarterly reports on Form 10-Q of the Borrower and its consolidated Subsidiaries shall satisfy the requirements of this Section 5.04(b) to the extent such quarterly reports include the information specified herein);

Appears in 2 contracts

Samples: Credit Agreement (Aeroways, LLC), Credit Agreement (Cke Restaurants Inc)

Financial Statements, Reports, etc. ~~Furnish~~ The Borrower will furnish, or cause to be furnished, to the ~~Administrative~~ Agent ~~(which will promptly furnish such information to the Lenders):~~and each Lender: (a) as soon as available, and in any event within 30 days after the end of each fiscal month-end, (i) financial statements, including monthly Borrower prepared consolidated and consolidating balance sheets, profit and loss statements and statements of cash flow, for the Borrower and each Permitted Asset on a practice-by-practice or unit-by-unit basis (ii) a summary of accounts receivable aging for the Borrower and its Subsidiaries and (iii) a certificate of a Financial Officer of the Borrower setting forth computations in reasonable detail satisfactory to the Agent demonstrating compliance with the covenant contained in Section 6.13(d); (b) as soon as available, and in any event within 90 days after the end of each ~~fiscal year~~ Fiscal Year, financial statements including (~~commencing with the fiscal year ending December 31, 2016), a~~ i) its consolidated and consolidating balance sheet and related consolidated and consolidating statements of ~~operations~~operations and cash flows, ~~cash flows and owners’ equity~~ showing the consolidated and consolidating financial position of the Borrower and its Consolidated Subsidiaries as of the close of such ~~fiscal year~~ Fiscal Year and the consolidated and consolidating results of their operations and cash flows during such ~~year and~~ year, in each case setting forth in comparative form the ~~corresponding~~ figures for the ~~prior fiscal year~~preceding Fiscal Year, ~~which consolidated balance sheet and related statements of operations, cash flows and owners’ equity shall be accompanied by customary management’s discussion and analysis and~~ all audited by a nationally recognized independent public ~~accountants of recognized national standing~~ accounting firm and accompanied by an opinion of such accountants (which ~~opinion~~ shall not be qualified ~~as to scope of audit or as to the status of the Borrower or~~ in any Material Subsidiary as a going concern, other than solely with respect to, or resulting solely from, an upcoming maturity date under any series of Indebtedness occurring within one year from the time such opinion is delivered or any potential inability to satisfy a financial maintenance covenant on a future date or in a future periodmaterial respect) to the effect that such ~~consolidated~~ financial statements fairly ~~present, in all material respects,~~ present the consolidated financial position and consolidated results of operations and cash flows of the ~~Borrower and~~ Borrower, its Consolidated Subsidiaries ~~on a consolidated basis~~ in accordance with GAAP consistently applied, and (~~it being understood that the delivery~~ ii) annual Borrower prepared statements of cash flow for each Permitted Asset on a practice-by-practice or unit-by-unit basis, certified by the ~~Borrower of annual reports on Form 10-K~~ Chief Financial Officer of the ~~Borrower and its consolidated Subsidiaries shall satisfy the requirements of this Section 5.04(a) to the extent such annual reports include the information specified herein)~~Borrower; (bc) as soon as available, and in any event within 45 days after the end of each of the first three fiscal quarters of each ~~fiscal year~~ Fiscal Year, financial statements including (~~commencing with the fiscal quarter ending June 30, 2016), a~~ i) Borrower prepared consolidated and consolidating balance ~~sheet~~ sheets and related consolidated and consolidating statements of operations and cash ~~flows~~ flows, showing the consolidated and consolidating financial position of the Borrower and its ~~Subsidiaries~~ Consolidated Subsidiaries, the consolidated and consolidating results of operations and cash flows during such fiscal quarter and the then elapsed portion of such Fiscal Year and the consolidated and consolidating cash flows for the then elapsed portion of such Fiscal Year and (ii) quarterly statements of cash flow for each Permitted Asset on a practice-by-practice basis or unit by unit basis, as of the close of such fiscal ~~quarter and~~ quarter, all certified by one of its Financial Officers as fairly presenting the consolidated financial position and consolidated results of their operations during such fiscal quarter and the then-elapsed portion of the fiscal year and, starting with the fiscal quarter ending September 30, 2016, setting forth in comparative form the corresponding figures for the corresponding periods of the prior fiscal year, all of which shall be in reasonable detail, which consolidated balance sheet and related statements of operations and cash flows shall be accompanied by customary management’s discussion and analysis and which consolidated balance sheet and related statements of operations and cash flows shall be certified by a Financial Officer of the ~~Borrower on behalf of the Borrower as fairly presenting~~Borrower, ~~in all material respects, the financial position~~ its Consolidated Subsidiaries and ~~results of operations of the Borrower and its Subsidiaries on a consolidated basis~~ in accordance with GAAP (consistently applied, subject to normal year-end audit ~~adjustments~~ adjustments; (d) concurrently with any delivery of financial statements under paragraph (a), (b) or (c) above, an Officer's Certificate of the Borrower certifying that no Default or Event of Default has occurred or, if such a Default or Event of Default has occurred, specifying the nature and extent thereof and any corrective action taken or proposed to be taken with respect thereto; (e) concurrently with any delivery of financial statements under paragraph (b) or (c) above, a certificate of a Financial Officer of the ~~absence~~ Borrower, substantially in the form of ~~footnotes~~Exhibit G hereto, (i) setting forth computations in reasonable detail satisfactory to the Agent demonstrating compliance with the covenants contained in Sections 6.13 and 6.14, (~~it being understood that~~ ii) stating 60 whether, since the ~~delivery~~ date of the most recent Required Financial Statements previously delivered, there has been any material change in the generally accepted accounting principles applied in the preparation of the Borrower's financial statements and, if so, describing such change, and (iii) a comparison of the actual results during the period covered by such financial statements to those originally budgeted by the Borrower prior to the beginning of the applicable Fiscal Year, along with management's discussion and analysis of variances (including variances between actual results for such period and actual results for the same period in the previous Fiscal Year); (f) promptly upon completion, but in any event not later than 30 days prior to the commencement of each Fiscal Year, a copy of projections by the Borrower of ~~quarterly reports~~ its consolidated balance sheet and related consolidated statements of operations and cash flows for such Fiscal Year (including all material assumptions to such projections) and its statement of cash flows for each Permitted Asset on ~~Form 10~~a practice-Q by-practice or unit-by-unit basis, and a budget for such Fiscal Year, all in form customarily prepared by the Borrower's management, such projected financial statements to be accompanied by a certificate of a Financial Officer to the effect that such projected financial statements have been prepared in good faith, based on assumptions that the Borrower believes to be reasonable and based on the best information available to the Borrower and that such Financial Officer has no reason to believe they are misleading in any material respect in light of the circumstances existing at the time of preparation thereof; PROVIDED, THAT, notwithstanding anything to the contrary contained herein or in any other Loan Document, the Borrower's provision of projections in accordance with this Amended Agreement or any other Loan Document shall not for any reason be deemed to be or constitute a representation by the Borrower or any of its Subsidiaries as to such information except to the extent expressly provided above in this subsection (f); (g) [Intentionally Omitted]; (h) as soon as available, and in any event within 15 days of receipt, any final management letter issued or provided by the auditors of the Borrower or any Subsidiary; (i) promptly, from time to time, such other information regarding the operations, business affairs and financial condition of the Holdings or any of its Subsidiaries, any Permitted Asset, or compliance with the terms of any Loan Document, as the Agent or any Lender may reasonably request; (j) promptly, from time to time, but not more frequently than once per calendar year absent an Event of Default, request in writing the opinion of in-house counsel or, at the Borrower's option, outside healthcare counsel as to the absence, except as disclosed in the opinion, of such counsel's actual knowledge of any actual, threatened or asserted violation of any Fraud and Abuse Law on the part of the Borrower, Holdings, any Subsidiary and/or the Providers. Absent the existence of an Event of Default, such opinions shall require no special diligence on the part of the opining attorney(s), but shall only require a report of matters then actually known to such attorneys, unless the Agent specifically requests investigation be made by the opining attorneys; PROVIDED, THAT, the Agent may only request that such an investigation be made if the Agent has actual knowledge of an actual or reasonably likely violation of a Fraud and Abuse Law by the Borrower, Holdings, any Subsidiary or the Providers, or if the Agent has a reasonable basis to believe any such violation has occurred or will occur. Such opinions shall be in form and substance reasonably acceptable to the Agent, shall be delivered to the Agent at Borrower's expense within 30 days of the date of request and shall address specifically any facts inquired of in the Agent's request. In any opinion delivered under this subsection (j), the opining attorney(s), provided they have made due inquiry pursuant to requests of the Agent as permitted above, may conclusively rely on an Officer's Certificate; and (k) promptly, from time to time, such information and financial statements, reports, public information and notices (including of default) regarding the operations, business affairs and financial conditions of USPI and its ~~consolidated~~ Subsidiaries, or compliance with the terms of any Indebtedness of USPI and its Subsidiaries, as USPI and its Subsidiaries ~~shall satisfy~~ are required to (whether or not the ~~requirements of this Section 5.04(b~~requirement is waived by the lenders under the Chase Credit Agreement) or delivers under the Chase Credit Agreement dated June 29, 1999 not including any amendments or modifications thereto (including, without limitation, the deliveries required pursuant to Sections 5.01 and 5.02 thereof), and as the ~~extent such quarterly reports include~~ Agent or the ~~information specified herein);~~Lenders may otherwise reasonably request.

Appears in 2 contracts

Samples: Credit Agreement (United Surgical Partners International Inc), Credit Agreement (United Surgical Partners International Inc)

Financial Statements, Reports, etc. ~~Furnish~~ Deliver to ~~the Administrative Agent (which will promptly furnish such information to the Lenders):~~each Lender: (a) As soon as is practicable, but in any event within 90 days after the end of each fiscal year of the Borrower, (~~commencing with the fiscal year ending December 31, 2016), a~~ i) (A) consolidated ~~balance sheet~~ and ~~related~~ consolidating statements of income (or operations, ) and consolidated and consolidating statements of cash flows and ~~owners~~changes in stockholders’ equity ~~showing the financial position~~ of the Borrower and its Consolidated Subsidiaries ~~as of the close of~~ for such ~~fiscal~~ year and the related consolidated ~~results~~ and consolidating balance sheets as at the end of ~~their operations during~~ such ~~year and setting forth in comparative form the corresponding figures for the prior fiscal~~ year, or (B) the Form 10-K filed by the Borrower with the Securities and Exchange Commission (which ~~consolidated balance sheet~~ shall contain the consolidating financial statements described in the preceding clause (A)) and ~~related statements~~ (ii) if not included in such Form 10-K, an opinion of ~~operations, cash flows and owners’ equity shall be accompanied by customary management’s discussion and analysis and audited by~~ independent certified public accountants of recognized national ~~standing and accompanied by an opinion of such accountants (~~standing, which opinion shall not be qualified as to scope of audit or as to the status of the Borrower or any Material Subsidiary as a going concern, other than solely with respect to, or resulting solely from, an upcoming maturity date under any series of Indebtedness occurring within one year from the time such opinion is delivered or any potential inability to satisfy a financial maintenance covenant on a future date or in a future period) to the effect state that ~~such~~ said consolidated financial statements fairly ~~present,~~ present in all material ~~respects,~~ respects the consolidated financial position and results of operations of the Borrower and its Consolidated Subsidiaries ~~on a consolidated basis~~ as at the end of, and for, such fiscal year and that such financial statements were prepared in accordance with GAAP ~~(it being understood that~~ applied consistently throughout the ~~delivery by the Borrower of annual reports~~ periods reflected therein and with prior periods and reported on ~~Form 10-K~~ without a “going concern” or like qualification or exception, or qualification arising out of the ~~Borrower and its consolidated Subsidiaries shall satisfy~~ scope of the ~~requirements of this Section 5.04(a) to the extent such annual reports include the information specified herein)~~audit; (b) As soon as is practicable, but in any event within 45 days after the end of each of the first three fiscal quarters of each fiscal ~~year~~ year, either (~~commencing~~ i) the Form 10-Q filed by the Borrower with the Securities and Exchange Commission (which shall contain the consolidating financial statements described in the following clause (ii)) or (ii) the unaudited consolidated and consolidating balance sheets of the Borrower and its Consolidated Subsidiaries, as at the end of such fiscal ~~quarter ending June 30~~quarter, ~~2016), a~~ and the related unaudited consolidated ~~balance sheet and related~~ statements of ~~operations~~ income and cash flows ~~showing~~ and consolidating statements of income for such quarter and for the period from the beginning of the then current fiscal year to the end of such fiscal quarter and the corresponding figures as of the end of the preceding fiscal year, and for the corresponding period in the preceding fiscal year, in each case, together with a certificate (substantially in the form of Exhibit B) signed by the chief financial officer, the chief accounting officer, treasurer or a vice president responsible for financial administration of the Borrower to the effect that such financial statements, while not examined by independent public accountants, reflect, in his opinion and in the opinion of the Borrower, all adjustments necessary to present fairly in all material respects the financial position of the Borrower and its ~~Subsidiaries~~ Consolidated Subsidiaries, as the case may be, as at the end of the ~~close of such~~ fiscal quarter and the ~~consolidated~~ results of their operations ~~during~~ for the quarter then ended in conformity with GAAP consistently applied, subject only to year-end and audit adjustments and to the absence of footnote disclosure; (c) Together with the delivery of the statements referred to in paragraphs (a) and (b) of this Section 5.1, a certificate of the chief financial officer, chief accounting officer or a vice president responsible for financial administration of the Borrower, substantially in the form of Exhibit B hereto (i) stating whether or not the signer has knowledge of any Default or Event of Default and, if so, specifying each such Default or Event of Default of which the signer has knowledge and the nature thereof, (ii) demonstrating in reasonable detail compliance with the provisions of Sections 6.6, 6.7, 6.10 and 6.15, (iii) setting forth in a schedule (in the form of Schedule 5.1(c) attached hereto) a description of the Mortgage Warehouse Facilities and Servicing Advance Facilities in effect on the last day of the most recently ended fiscal quarter and ~~the then-elapsed portion of the fiscal year and, starting with the fiscal quarter ending September 30, 2016,~~ (iv) setting forth in ~~comparative form the corresponding figures~~ reasonable detail a description of repurchased mortgage loans, repurchase requests (existing and new), indemnification requests and payments made for such quarter and year to date periods, and comparisons to comparable periods for the ~~corresponding periods~~ prior year; (d) As soon as practicable, but in any event within 90 days after the end of each fiscal year of the ~~prior fiscal year~~Borrower, all of which shall be in reasonable detail, which consolidated balance sheet and related statements of operations and cash flows shall be accompanied by customary management’s discussion and analysis and which consolidated balance sheet and related statements of operations and cash flows shall be certified by a Financial Officer of the Borrower on behalf of the Borrower as fairly presenting, in all material respects, the financial position and results of operations detailed projections of the Borrower and its Consolidated Subsidiaries ~~on a consolidated basis in accordance with GAAP~~ for the following two fiscal years; (~~subject to normal year-end audit adjustments and the absence of footnotes~~e) ~~(it being understood that the delivery by the Borrower of quarterly reports on Form 10-Q~~ Promptly upon any executive officer of the Borrower or any of its Subsidiaries obtaining knowledge of the occurrence of any Default or Event of Default, a certificate of the president, chief financial officer or chief accounting officer of the Borrower specifying the nature and period of existence of such Default or Event of Default and what action the Borrower has taken, is taking and proposes to take with respect thereto; (f) Promptly upon any executive officer of the Borrower or any of its ~~consolidated~~ Subsidiaries ~~shall satisfy~~ obtaining knowledge of (i) the ~~requirements~~ institution of ~~this Section 5.04(b~~any action, suit, proceeding, investigation or arbitration by any Governmental Authority or other Person against or affecting the Borrower or any of its Subsidiaries or any of their assets, or (ii) any material development in any such action, suit, proceeding, investigation or arbitration (whether or not previously disclosed to the Lenders), which, in each case might reasonably be expected to have a Material Adverse Effect or which relates to any Fundamental Document, prompt notice thereof and such other information as may be reasonably available to it (without waiver of any applicable evidentiary privilege) to enable the Lenders to evaluate such matters; (g) Promptly upon any executive officer of the Borrower or any of its Subsidiaries obtaining knowledge of the failure to maintain Borrowing Base Compliance, prompt notice thereof specifying the period of such non-compliance, the extent of such ~~quarterly reports~~ non-compliance and what actions the Borrower has taken, is taking and proposes to take with respect thereto; (i) On the Closing Date, and (ii) within ten Business Days following the end of each calendar month thereafter, other than in the case of each calendar month that is also the end of a fiscal quarter, in which case, within fifteen Business Days following the end of such calendar month (or at such other times as the Administrative Agent may reasonably request), a borrowing base certificate setting forth the Borrowing Base (in each case with supporting calculations in reasonably detail) substantially in the form of Exhibit E (each, a “Borrowing Base Certificate”), which shall be prepared as of the last Business Day of such month (or, in the case of the Borrowing Base Certificate delivered on the Closing Date, as of June 29, 2012, or if any such Borrowing Base Certificate is delivered more frequently than monthly, as of the last Business Day of the week preceding such delivery). Each such Borrowing Base Certificate shall include all such supporting information as may be reasonably requested from time to time by the Administrative Agent; and (i) promptly, such additional financial and other information ~~specified herein);~~as the Administrative Agent or any Lender may from time to time reasonably request. Any financial statement or filing with the Securities and Exchange Commission required to be delivered under this Agreement shall be deemed to have been delivered on the date on which the Borrower notifies the Lenders it has posted such financial statement or filing on its website on the internet at xxx.xxx.xxx or that such financial statement or filing is posted on the website of the Securities and Exchange Commission at xxx.xxx.xxx.

Appears in 2 contracts

Samples: Credit Agreement (PHH Corp), Credit Agreement (PHH Corp)

Financial Statements, Reports, etc. Furnish to the Administrative Agent (which will promptly furnish such information to the ~~Lenders~~Lenders and L/C Issuers): (a) ~~within~~ Within 90 days (or such later day that Parent is permitted to file a Form 10-K pursuant to the Exchange Act after giving effect to Rule 12b-25 thereunder, but in any event within 105 days) following the end of each fiscal year (commencing with the fiscal year ending December 31, ~~2016~~2022), a consolidated balance sheet and related statements of operations, cash flows and ~~owners~~stockholders’ equity showing the financial position of ~~the Borrower~~ Parent and its ~~Subsidiaries~~ subsidiaries as of the close of such fiscal year and the consolidated results of ~~their~~ its operations during such year and setting forth in comparative form the corresponding figures for the prior fiscal year, which consolidated balance sheet and related statements of operations, cash flows and ~~owners~~stockholders’ equity shall be ~~accompanied by customary management’s discussion and analysis and~~ audited by independent public accountants of recognized national standing and accompanied by an opinion of such accountants (which ~~opinion~~ shall not be qualified as to scope of audit or as to the status of Parent, the Borrower or any Material Subsidiary as a going concern, ~~other than~~ but may contain a going concern or like qualification that is solely ~~with respect to, or resulting solely from,~~ due to (i) an upcoming maturity date ~~under~~ of any ~~series of Indebtedness occurring within one year from the time such opinion is delivered or any~~ Facility and/or (ii) a potential inability to satisfy a financial maintenance covenant ~~on a future date or in a future period~~under any series of Indebtedness) to the effect that such consolidated financial statements fairly present, in all material respects, the financial position and results of operations of ~~the Borrower~~ Parent and its ~~Subsidiaries~~ subsidiaries on a consolidated basis in accordance with GAAP (it being understood that the delivery by ~~the Borrower~~ Parent of annual reports on Form 10-K of ~~the Borrower~~ Parent and its consolidated ~~Subsidiaries~~ subsidiaries shall satisfy the requirements of this Section 5.04(a) to the extent such annual reports include the information specified herein); (b) ~~within~~ Within 45 days ~~after~~ following the end of each of the first three fiscal quarters of each fiscal year (commencing with the fiscal quarter ending ~~June 30~~March 31, ~~2016~~2023), a consolidated balance sheet and related statements of operations and cash flows showing the financial position of ~~the Borrower~~ Parent and its ~~Subsidiaries~~ subsidiaries as of the close of such fiscal quarter and the consolidated results of ~~their~~ its operations during such fiscal quarter and the then-elapsed portion of the fiscal year ~~and, starting with the fiscal quarter ending September 30, 2016,~~ and setting forth in comparative form the corresponding figures for the corresponding periods of the prior fiscal year, all of which shall be in reasonable ~~detail, which consolidated balance sheet and related statements of operations and cash flows shall be accompanied by customary management’s discussion and analysis~~ detail and which consolidated balance sheet and related statements of operations and cash flows shall be certified by a Financial Officer of ~~the Borrower on behalf of the Borrower~~ Parent as fairly presenting, in all material respects, the financial position and results of operations of ~~the Borrower~~ Parent and its ~~Subsidiaries~~ subsidiaries on a consolidated basis in accordance with GAAP (subject to normal year-end audit adjustments and the absence of footnotes) (it being understood that the delivery by ~~the Borrower~~ Parent of quarterly reports on Form 10-Q of ~~the Borrower~~ Parent and its consolidated ~~Subsidiaries~~ subsidiaries shall satisfy the requirements of this Section 5.04(b) to the extent such quarterly reports include the information specified herein);

Appears in 2 contracts

Samples: Credit Agreement (EVERTEC, Inc.), Credit Agreement (EVERTEC, Inc.)

Financial Statements, Reports, etc. Furnish to the Administrative Agent and, in the case of Section 5.04(f) or (~~which will promptly furnish such information to~~ g), the ~~Lenders):~~applicable Lender: (a) within ~~90 days~~ five Business Days after the ~~end of~~ date in each fiscal year ~~(commencing~~ on which the U.S. Borrower is required to file its Annual Report on Form 10-K with the ~~fiscal year ending December 31, 2016~~SEC (or would be required if the U.S. Borrower is no longer required to file regular and periodic reports with the SEC), a in each case without giving effect to any extension thereof, the audited consolidated balance sheet and related consolidated statements of ~~operations~~income, stockholders’ equity and comprehensive income and cash flows ~~and owners’ equity showing the financial position~~ of the ~~Borrower and~~ U.S. Borrower, showing its ~~Subsidiaries~~ consolidated financial condition as of the close of such fiscal year and the ~~consolidated~~ results of ~~their~~ its operations and the operations of its consolidated subsidiaries during such year and setting forth in each case in comparative form the ~~corresponding~~ figures for the ~~prior~~ previous fiscal year, ~~which consolidated balance sheet and related statements of operations, cash flows and owners’ equity shall be accompanied by customary management’s discussion and analysis and~~ audited by independent public accountants of recognized national standing and accompanied by an opinion of such accountants (which ~~opinion~~ shall not be ~~qualified as~~ subject to ~~scope of audit~~ any “going concern” or like qualification or exception or any qualification or exception as to the ~~status~~ scope of the Borrower or any Material Subsidiary as a going concern, other than solely with respect to, or resulting solely from, an upcoming maturity date under any series of Indebtedness occurring within one year from the time such ~~opinion is delivered or any potential inability to satisfy a financial maintenance covenant on a future date or in a future period~~audit) to the effect that such consolidated financial statements fairly ~~present,~~ present in all material ~~respects,~~ respects the financial ~~position~~ condition and results of operations of the U.S. Borrower and its ~~Subsidiaries~~ consolidated subsidiaries on a consolidated basis in accordance with GAAP (it being understood that the delivery by the Borrower of annual reports on Form 10-K of the Borrower and its consolidated Subsidiaries shall satisfy the requirements of this Section 5.04(a) to the extent such annual reports include the information specified herein)GAAP; (b) within ~~45 days~~ five Business Days after ~~the end of~~ each ~~of the first three fiscal quarters of~~ date in each fiscal year ~~(commencing~~ on which the U.S. Borrower is required to file a Quarterly Report on Form 10-Q with the ~~fiscal quarter ending June 30, 2016~~SEC (or would be required if the U.S. Borrower is no longer required to file regular and periodic reports with the SEC), a in each case without giving effect to any extension thereof, the unaudited consolidated balance ~~sheet~~ sheets and related condensed statements of operations and cash flows ~~showing the financial position~~ of the ~~Borrower and~~ U.S. Borrower, showing its ~~Subsidiaries~~ consolidated financial condition as of the close of such fiscal quarter and the ~~consolidated~~ results of ~~their~~ its operations and the operations of its consolidated subsidiaries during such fiscal quarter and the ~~then-~~then elapsed portion of the fiscal year ~~and, starting with the fiscal quarter ending September 30, 2016,~~ and setting forth in each case in comparative form the ~~corresponding~~ figures for the corresponding ~~periods of~~ period in the ~~prior~~ previous fiscal year, all of which shall be in reasonable detail, which consolidated balance sheet and related statements of operations and cash flows shall be accompanied by customary management’s discussion and analysis and which consolidated balance sheet and related statements of operations and cash flows shall be certified by a one of its Financial ~~Officer of the Borrower on behalf of the Borrower~~ Officers as fairly ~~presenting,~~ presenting in all material ~~respects,~~ respects the financial ~~position~~ condition and results of operations of the U.S. Borrower and its ~~Subsidiaries~~ consolidated subsidiaries on a consolidated basis in accordance with ~~GAAP (~~GAAP, subject to normal year-end audit adjustments and the absence of footnotes; (c) concurrently with any delivery of financial statements under paragraph (~~it being understood~~ a) or (b) above, a certificate in the form of Exhibit G (a “Compliance Certificate”) of a Financial Officer (i) certifying that no Event of Default or Default has occurred or, if such an Event of Default or Default has occurred, specifying the ~~delivery~~ nature and extent thereof and any corrective action taken or proposed to be taken with respect thereto and (ii) setting forth computations in detail reasonably satisfactory to the Agents demonstrating compliance with the covenants contained in Sections 6.10 and 6.11; (d) promptly upon receipt thereof, copies of any audit or other reports delivered to the board of directors of the U.S. Borrower (or the audit committee of such board) by an independent registered public accounting firm in connection with such firm’s audit of the consolidated financial statements of the U.S. Borrower if such reports identify material weaknesses in internal controls over financial reporting of the U.S. Borrower; (e) promptly after the same become publicly available, copies of all periodic and other reports, proxy statements and other materials (other than filings under Section 16 of the Securities Exchange Act of 1934) filed by the U.S. Borrower ~~of quarterly reports on Form 10-Q~~ or any Subsidiary with the SEC, or any Governmental Authority succeeding to any or all of the functions of said Commission, or with any national securities exchange, or distributed to its shareholders, as the case may be, and all press releases; (f) promptly, following a request by any Lender, all documentation and other information that such Lender reasonably requests in order to comply with its ongoing obligations under applicable “know your customer” and Anti-Money Laundering Laws, including the Patriot Act; (g) promptly, following a request by any Lender, an updated organizational chart of the U.S. Borrower and its ~~consolidated Subsidiaries shall satisfy~~ subsidiaries; and (h) promptly, from time to time, such other information regarding the ~~requirements~~ operations, business affairs and financial condition of the Borrowers or any Subsidiary, or compliance with the terms of any Loan Document, as the Applicable Administrative Agent or any Lender may reasonably request. Documents required to be delivered pursuant this Section 5.04 may be delivered electronically and, in the case of Sections 5.04(a), (b) or (e) shall be deemed to have been delivered if such documents, or one or more annual, quarterly or other reports or filings containing such documents (including, in the case of certifications required pursuant to Section 5.04(b), the certifications accompanying any such quarterly report pursuant to Section 302 of the Xxxxxxxx-Xxxxx Act of 2002), (i) shall have been posted or provided a link to on the U.S. Borrower’s website on the Internet at xxx.xxxxx.xxx, (ii) shall be available on the website of the SEC at xxxx://xxx.xxx.xxx or (iii) shall have been posted on the U.S. Borrower’s behalf on SyndTrak or another website, if any, to which each Lender and the Administrative Agents have access (whether a commercial, third-party website or whether sponsored by an Administrative Agent). No Administrative Agent shall have an obligation to request the delivery or to maintain copies of the documents referred to above, and in any event shall have no responsibility to monitor compliance by the U.S. Borrower with any such request for delivery, and each Lender shall be solely responsible for requesting delivery to it or maintaining its copies of such documents. The U.S. Borrower hereby acknowledges that (a) the Agents will make available to the Lenders and the Issuing Banks materials and/or information provided by or on behalf of the Loan Parties hereunder (collectively, the “Borrower Materials”) by posting the Borrower Materials on SyndTrak or another similar electronic system (the “Platform”) and (b) certain of the Lenders may be “public-side” Lenders (i.e., Lenders that do not wish to receive material non-public information with respect to any Loan Party or its securities) (each, a “Public Lender”). If any Borrower Materials are designated by the Loan Parties as “PRIVATE”, such Borrower Materials will not be made available to that portion of the Platform designated “Public Investor,” which is intended to contain only information that (x) prior to any public offering of securities by any Loan Party, is of a type that would be contained in a customary offering circular for an offering of debt securities made in reliance on Rule 144A under the Securities Act or (y) following any public offering of securities by a Loan Party, is either publicly available or not material information (though it may be sensitive and proprietary) with respect to such Loan Party or its securities for purposes of United States Federal and State securities laws. The Agents shall be entitled to treat any Borrower Materials that are not marked “PRIVATE” or “CONFIDENTIAL” as not containing any material non-public information with respect to the Loan Parties or any securities for purposes of United States Federal and state securities laws (provided, however, that to the extent such ~~quarterly reports include the information specified herein~~Borrower Materials constitute Information, they shall be treated as set forth in Section 9.16);.

Appears in 2 contracts

Samples: Syndicated Facility Agreement (Civeo Corp), Syndicated Facility Agreement (Civeo Corp)

Financial Statements, Reports, etc. Furnish to the Administrative Agent (which will promptly furnish such information to the Lenders): (a) within 90 days (or such shorter period as the SEC shall specify for the filing of Annual Reports on Form 10-K) after the end of each fiscal ~~year (~~year, commencing with the fiscal year ~~ending~~ ended December 31, ~~2016)~~2011, a consolidated balance sheet and related statements of operations, cash flows and owners’ equity showing the financial position of the Borrower and ~~its~~ the Subsidiaries as of the close of such fiscal year and the consolidated results of their operations during such year and setting forth in comparative form the corresponding figures for the prior fiscal year, ~~which consolidated balance sheet and related statements of operations, cash flows and owners’ equity shall be accompanied by customary management’s discussion and analysis and~~ all audited by independent public accountants of recognized national standing reasonably acceptable to the Administrative Agent and accompanied by an opinion of such accountants (which ~~opinion~~ shall not be qualified ~~as to scope of audit or as to the status of the Borrower or~~ in any Material Subsidiary as a going concern, other than solely with respect to, or resulting solely from, an upcoming maturity date under any series of Indebtedness occurring within one year from the time such opinion is delivered or any potential inability to satisfy a financial maintenance covenant on a future date or in a future periodmaterial respect) to the effect that such consolidated financial statements (A) have been prepared in accordance with GAAP and (B) present fairly ~~present, in all material respects,~~ and accurately the consolidated financial ~~position~~ condition and results of operations and cash flows of the Borrower and its ~~Subsidiaries on a consolidated basis in accordance with GAAP~~ subsidiaries as of the dates and for the periods to which they relate (it being understood that the delivery by the Borrower of ~~annual reports~~ Annual Reports on Form 10-K of the Borrower and its consolidated Subsidiaries shall satisfy the requirements of this Section 5.04(a) to the extent such ~~annual reports~~ Annual Reports include the information specified herein); (b) commencing with the fiscal quarter ended June 30, 2011, within 45 days (or such shorter period as the SEC shall specify for the filing of Quarterly Reports on Form 10-Q) after the end of each of the first three fiscal quarters of each fiscal ~~year (commencing with the fiscal quarter ending June 30, 2016)~~year, a consolidated balance sheet and related statements of operations and cash flows showing the financial position of the Borrower and ~~its~~ the Subsidiaries as of the close of such fiscal quarter and the consolidated results of their operations during such fiscal quarter and the then-elapsed portion of the fiscal year ~~and, starting with the fiscal quarter ending September 30, 2016,~~ and setting forth in comparative form the corresponding figures for the corresponding periods of the prior fiscal year, all of which shall be in reasonable detail, which consolidated balance sheet and related statements of operations and cash flows shall be accompanied by customary management’s discussion and analysis and which consolidated balance sheet and related statements of operations and cash flows shall be certified by a Financial Officer of the ~~Borrower~~ Borrower, on behalf of the ~~Borrower~~ Borrower, as (A) having been prepared in accordance with GAAP and (B) presenting fairly ~~presenting, in all material respects,~~ and accurately the consolidated financial ~~position~~ condition and results of operations and cash flows of the Borrower and its ~~Subsidiaries on a consolidated basis~~ subsidiaries as of the dates and for the periods to which they relate, subject, in ~~accordance with GAAP~~ the case of clauses (~~subject~~ A) and (B), to the absence of footnotes and to normal year-end audit ~~adjustments and the absence of footnotes)~~ (it being understood that the delivery by the Borrower of ~~quarterly reports~~ Quarterly Reports on Form 10-Q of the Borrower and its consolidated Subsidiaries shall satisfy the requirements of this Section 5.04(b) to the extent such ~~quarterly reports~~ Quarterly Reports include the information specified herein); (c) (x) concurrently with any delivery of financial statements under (a) or (b) above, a certificate of a Financial Officer of the Borrower (i) certifying that no Event of Default or Default has occurred or, if such an Event of Default or Default has occurred, specifying the nature and extent thereof and any corrective action taken or proposed to be taken with respect thereto and (ii) commencing with the fiscal period ending June 30, 2011, setting forth computations in reasonable detail satisfactory to the Administrative Agent demonstrating compliance with the covenants contained in Sections 6.10 and 6.11 and (y) concurrently with any delivery of financial statements under (a) above, a certificate of the accounting firm opining on or certifying such statements stating whether they obtained knowledge during the course of their examination of such statements of any Event of Default resulting from a breach of Section 6.10 or 6.11 (which certificate may be limited to accounting matters and disclaim responsibility for legal interpretations); (d) promptly after the same become publicly available, copies of all periodic and other publicly available reports, proxy statements and, to the extent requested by the Administrative Agent, other materials filed by the Borrower or any of its Subsidiaries with the SEC or distributed to the stockholders of the Borrower generally, as applicable; (e) if, as a result of any change in accounting principles and policies from those as in effect on the Third Amendment Effective Date, the consolidated financial statements of the Borrower and the Subsidiaries delivered pursuant to paragraphs (a) or (b) above will differ in any material respect from the consolidated financial statements that would have been delivered pursuant to such clauses had no such change in accounting principles and policies been made, then, 30 days after the first delivery of financial statements pursuant to paragraphs (a) and (b) above following such change, a schedule prepared by a Financial Officer on behalf of the Borrower reconciling such changes to what the financial statements would have been without such changes; (f) within 90 days after the beginning of each fiscal year, an operating and capital expenditure budget, in form satisfactory to the Administrative Agent prepared by the Borrower for each of the four fiscal quarters of such fiscal year prepared in reasonable detail, of the Borrower and the Subsidiaries, accompanied by the statement of a Financial Officer of the Borrower to the effect that, to the best of his knowledge, the budget is a reasonable estimate for the period covered thereby; (g) concurrently with the delivery of financial statements under clause (a) above and otherwise upon the reasonable request of the Administrative Agent, updated Perfection Certificates (or, to the extent such request relates to specified information contained in the Perfection Certificates, such information) reflecting all changes since the date of the information most recently received pursuant to this paragraph (g); (h) promptly, from time to time, such other information regarding the operations, business affairs and financial condition of the Borrower or any of its Subsidiaries, or compliance with the terms of any Loan Document, or such consolidating financial statements, as in each case the Administrative Agent may reasonably request (for itself or on behalf of any Lender); (i) promptly upon request by the Administrative Agent, copies of: (i) each Schedule B (Actuarial Information) to the annual report (Form 5500 Series) filed with the Internal Revenue Service with respect to a Plan; (ii) the most recent actuarial valuation report for any Plan; (iii) all notices received from a Multiemployer Plan sponsor or any governmental agency concerning an ERISA Event; and (iv) such other documents or governmental reports or filings relating to any Plan or Multiemployer Plan as the Administrative Agent shall reasonably request; and (j) deliver to the Administrative Agent for prompt further distribution to each Lender, simultaneously with the delivery of each set of consolidated financial statements referred to in Sections 5.04(a) and (b), a summary consolidating statement of income (loss) from continuing operations, net income (loss), revenue, EBITDA, assets, liabilities and any net increase (decrease) in cash and equivalents, of Unrestricted Subsidiaries for the relevant period and use commercially reasonable efforts to make senior officers of the Borrower available to discuss such information or the information specified in Section 5.04(a) promptly after such information is delivered to the Administrative Agent. Documents required to be delivered pursuant to Section 5.04(a), 5.04(b) or 5.04(d) (to the extent any such documents are included in materials otherwise filed with the SEC) may be delivered electronically and if so delivered, shall be deemed to have been delivered on the date (i) on which the Borrower posts such documents, or provides a link thereto on the Borrower’s website on the Internet, at xxx.xxxxxxx.xxx; provided that the Borrower shall notify the Administrative Agent and each Lender (by telecopier or electronic mail) of the posting of any such documents and provide to the Administrative Agent by electronic mail electronic versions (i.e., soft copies) of such documents.

Appears in 2 contracts

Samples: Credit Agreement (Massey Energy Co), Credit Agreement (Alpha Natural Resources, Inc.)

Financial Statements, Reports, etc. ~~Furnish~~ In the case of the Borrowers, furnish to the Administrative Agent ~~(which~~ who will ~~promptly furnish such information~~ distribute to ~~the Lenders):~~each Lender: (a) within 90 days after the end of each fiscal year ending after the Third Restatement Date, (~~commencing with the fiscal year ending December 31, 2016), a~~ i) its consolidated balance sheet and related statements of ~~operations,~~ income and cash flows ~~and owners’ equity~~ showing the financial ~~position~~ condition of ~~the Borrower~~ Holdings and its consolidated Subsidiaries as of the close of such fiscal year and the ~~consolidated~~ results of ~~their~~ its operations and the operations of such subsidiaries during such ~~year and setting forth in~~ year, together with comparative ~~form the corresponding~~ figures for the ~~prior~~ immediately preceding fiscal year, ~~which consolidated balance sheet and related statements of operations, cash flows and owners’ equity shall be accompanied by customary management’s discussion and analysis and~~ all audited by Xxxxxx LLP or other independent public accountants of recognized national standing and accompanied by an opinion of such accountants (which opinion shall ~~not~~ be ~~qualified~~ without an explanatory paragraph (or other explanatory language) to the standard report about whether there is substantial doubt about the entity’s ability to continue as a going concern other than with respect to ~~scope~~ any upcoming maturity date of ~~audit~~ the Loans and any refinancings and replacements thereof or potential non-compliance with any financial covenant contained in any other Indebtedness and without any qualification or exception as to the ~~status~~ scope of the Borrower or any Material Subsidiary as a going concern, other than solely with respect to, or resulting solely from, an upcoming maturity date under any series of Indebtedness occurring within one year from the time such ~~opinion is delivered or any potential inability to satisfy a financial maintenance covenant on a future date or in a future period~~audit) to the effect that such consolidated financial statements fairly ~~present,~~ present in all material ~~respects,~~ respects the financial ~~position~~ condition and results of operations of ~~the Borrower~~ Holdings and its consolidated Subsidiaries on a consolidated basis in accordance with GAAP (except as otherwise expressly noted therein) consistently applied and (ii) a narrative report and management’s discussion and analysis of the financial condition and results of operations of Holdings and its consolidated Subsidiaries for such fiscal year, as compared to amounts for the previous fiscal year and budgeted amounts (it being understood that the delivery by the ~~Borrower~~ Borrowers to the Administrative Agent of annual reports on Form 10-K ~~of the Borrower and its consolidated Subsidiaries~~ shall satisfy the requirements of this Section 5.04(a) solely to the extent such annual reports include the information specified herein); (b) within 45 days after the end of each of the first three fiscal quarters of each fiscal year beginning March 31, 2018, (~~commencing with the fiscal quarter ending June 30, 2016), a~~ i) its consolidated balance sheet and related statements of ~~operations~~ income and cash flows showing the financial ~~position~~ condition of ~~the Borrower~~ Holdings and its consolidated Subsidiaries as of the close of such fiscal quarter and the ~~consolidated~~ results of ~~their~~ its operations and the operations of such subsidiaries during such fiscal quarter and the ~~then-~~then elapsed portion of the fiscal ~~year~~ year, and, starting with the fiscal quarter ending ~~September 30~~March 31, ~~2016~~2018, ~~setting forth in~~ comparative ~~form the corresponding~~ figures for the ~~corresponding~~ same periods of in the ~~prior~~ immediately preceding fiscal year, all of which shall be in reasonable detail, which consolidated balance sheet and related statements of operations and cash flows shall be accompanied by customary management’s discussion and analysis and which consolidated balance sheet and related statements of operations and cash flows shall be certified by a one of its Financial ~~Officer of the Borrower on behalf of the Borrower~~ Officers as fairly ~~presenting,~~ presenting in all material ~~respects,~~ respects the financial ~~position~~ condition and results of operations of ~~the Borrower~~ Holdings and its consolidated Subsidiaries on a consolidated basis in accordance with GAAP (except as otherwise expressly noted therein) consistently applied, subject to normal year-end audit adjustments and the absence of ~~footnotes~~footnotes and (ii) a narrative report and management’s discussion and analysis of the financial condition and results of operations of Holdings and its consolidated Subsidiaries for such fiscal quarter and the then elapsed portion of the fiscal year, as compared to the comparable periods in the previous fiscal year and budgeted amounts (it being understood that the delivery by the ~~Borrower~~ Borrowers to the Administrative Agent of quarterly reports on Form 10-Q ~~of the Borrower and its consolidated Subsidiaries~~ shall satisfy the requirements of this Section 5.04(b) solely to the extent such quarterly reports include the information specified herein); (c) commencing with the first full calendar month ending after the First Amendment Effective Date and ending with the calendar month ending June 30, 2021, within five (5) Business Days after the end of each such calendar month, a certificate from a Responsible Officer of Holdings setting forth reasonably detailed calculations (including specific delineations of the items described in the Liquidity Covenant) and demonstrating compliance with the Liquidity Covenant; (d) concurrently with any delivery of financial statements under paragraph (a) or (b) above in respect of any period ending after the Third Restatement Date, a certificate of a Financial Officer (i) certifying that no Event of Default or Default has occurred and is continuing or, if such an Event of Default or Default has occurred and is continuing, specifying the nature and extent thereof and any corrective action taken or proposed to be taken with respect thereto, (ii) setting forth computations in reasonable detail satisfactory to the Administrative Agent demonstrating compliance with the Leverage Covenant and (iii) together with each set of consolidated financial statements referred to in paragraph (a) or (b) above, the related consolidating financial statements reflecting the adjustments necessary to eliminate the accounts of Unrestricted Subsidiaries (if any) (which may be in footnote form only) from such consolidated financial statements; (e) within 90 days after the commencement of each fiscal year, a consolidated budget for such fiscal year and for each quarter within such fiscal year, including a projected consolidated balance sheet and related statements of projected operations and cash flows as of the end of and for such fiscal year in a form customarily prepared by Holdings and, promptly when available, any revisions of such budget (that Holdings in good faith determines to be material); (f) promptly after the same become publicly available, copies of all periodic and other material reports, proxy statements and other materials, if any, filed by Holdings or any Restricted Subsidiary with the Securities and Exchange Commission, or any Governmental Authority succeeding to any or all of the functions of said Commission (it being understood that information required to be delivered pursuant to this clause (f) shall be deemed to have been delivered if such information, or one or more annual, quarterly or other periodic reports containing such information, shall be available on the website of the SEC at xxxx://xxx.xxx.xxx); (g) promptly after the request by any Lender, all documentation and other information that such Lender reasonably requests in order to comply with its ongoing obligations under applicable “know your customer” and anti-money laundering rules and regulations, including the USA PATRIOT Act; and (h) promptly, such other non-privileged information regarding the operations, business affairs and financial condition of Holdings, each of the Borrowers or any Restricted Subsidiary, or compliance with the terms of any Loan Document, as the Administrative Agent may reasonably request. Documents required to be delivered pursuant to this Section 5.04 may be delivered electronically.

Appears in 2 contracts

Samples: Incremental Assumption Agreement and Third Amendment to Third Amended and Restated Credit Agreement (Lindblad Expeditions Holdings, Inc.), Credit Agreement (Lindblad Expeditions Holdings, Inc.)

Appears in 2 contracts

Samples: First Lien Credit Agreement (Rackspace Technology, Inc.), Incremental Assumption and Amendment Agreement (Rackspace Technology, Inc.)

Financial Statements, Reports, etc. ~~Furnish~~ In the case of the Borrower, furnish to the Administrative Agent (~~which~~ who will ~~promptly furnish such information~~ distribute to ~~the Lenders~~each Lender): (a) within 90 days after the end of each ~~fiscal year (commencing with the fiscal year ending December 31~~Fiscal Year, ~~2016), a~~ its consolidated balance sheet and related statements of ~~operations~~income, stockholders’ equity and cash flows ~~and owners’ equity~~ showing the financial ~~position~~ condition of the Borrower and its consolidated Subsidiaries as of the close of such ~~fiscal year~~ Fiscal Year and the ~~consolidated~~ results of ~~their~~ its operations and the operations of such persons during such ~~year and setting forth in~~ year, together with comparative ~~form the corresponding~~ figures for the ~~prior fiscal year~~immediately preceding Fiscal Year, ~~which consolidated balance sheet~~ all in reasonable detail and ~~related statements of operations~~prepared in accordance with GAAP, ~~cash flows and owners’ equity shall be accompanied by customary management’s discussion and analysis and~~ all audited by UHY Mxxx Frankfort Sxxxx & Lxxx CPAs, LLP, or other independent public accountants of recognized national standing and accompanied by an opinion of such accountants (which opinion shall ~~not~~ be ~~qualified as to scope of audit~~ without a “going concern” or like qualification or exception and without any qualification or exception as to the ~~status~~ scope of the Borrower or any Material Subsidiary as a going concern, other than solely with respect to, or resulting solely from, an upcoming maturity date under any series of Indebtedness occurring within one year from the time such ~~opinion is delivered or any potential inability to satisfy a financial maintenance covenant on a future date or in a future period~~audit) to the effect that such consolidated financial statements fairly ~~present, in all material respects,~~ present the financial ~~position~~ condition and results of operations of the Borrower and its consolidated Subsidiaries on a consolidated basis in accordance with GAAP (it being understood that the delivery by the Borrower of annual reports on Form 10-K of the Borrower and its consolidated Subsidiaries shall satisfy the requirements of this Section 5.04(a) to the extent such annual reports include the information specified herein)GAAP; (b) within 45 days after the end of each of the first three fiscal quarters of each ~~fiscal year (commencing with the fiscal quarter ending June 30~~Fiscal Year, ~~2016), a~~ its consolidated balance sheet and related statements of ~~operations~~ income, stockholders’ equity and cash flows showing the financial ~~position~~ condition of the Borrower and its consolidated Subsidiaries as of the close of such fiscal quarter and the ~~consolidated~~ results of ~~their~~ its operations and the operations of such Persons during such fiscal quarter and the ~~then-~~then elapsed portion of the ~~fiscal year and~~Fiscal Year, ~~starting with the fiscal quarter ending September 30, 2016, setting forth in~~ and comparative ~~form the corresponding~~ figures for the ~~corresponding~~ same periods of in the ~~prior fiscal year~~immediately preceding Fiscal Year, all of which shall be in reasonable detail, which consolidated balance sheet and related statements of operations and cash flows shall be accompanied by customary management’s discussion and analysis and which consolidated balance sheet and related statements of operations and cash flows shall be certified by a one of its Financial ~~Officer of the Borrower on behalf of the Borrower~~ Officers as fairly ~~presenting,~~ presenting in all material ~~respects,~~ respects the financial ~~position~~ condition and results of operations of the Borrower and its consolidated Subsidiaries on a consolidated basis in accordance with ~~GAAP (~~GAAP, subject to normal year-end audit adjustments and the absence of footnotes; (c) concurrently with any delivery of financial statements under paragraph (~~it being understood~~ a) or (b) above, a certificate of a Financial Officer of the Borrower certifying that no Event of Default or Default has occurred or, if such an Event of Default or Default has occurred, specifying the nature and extent thereof and any corrective action taken or proposed to be taken with respect thereto; and concurrently with any delivery of financial statements under paragraph (a) above, a certificate of the accounting firm certifying that such accounting firm did not become aware of any Event of Default or Default having occurred or, if such accounting firm shall have become aware than and Event of Default or Default has occurred, specifying the nature thereof; (d) within 45 days after the commencement of each Fiscal Year of the Borrower, a detailed consolidated budget for such Fiscal Year (including a projected consolidated balance sheet and related statements of projected operations and cash flows as of the end of and for such Fiscal Year and setting forth the material assumptions used for purposes of preparing such budget) and, promptly when available, any material revisions of such budget; (e) promptly after the same become publicly available, copies of all periodic filings and other reports, proxy statements and other materials filed by the Borrower with the United States Securities and Exchange Commission, or any Governmental Authority succeeding to any or all of ~~quarterly reports on Form 10~~the functions of said Commission, or with any national securities exchange, or distributed to its shareholders or other creditors; (f) promptly after the request by the Administrative Agent, all documentation and other information that any Lender reasonably requests in order to comply with its ongoing obligations under applicable “know your customer” and anti-Q money laundering rules and regulations, including the USA PATRIOT Act; (g) promptly after the receipt thereof by the Borrower or any of its Subsidiaries, a copy of any “management letter” received by any such person from its certified public accountants and management’s response thereto; (h) concurrently with the delivery of the certificate delivered pursuant to clause (a) above with respect to the end of a Fiscal Year, a certificate of a Financial Officer of the Borrower setting forth the amount of Capital Expenditures during the relevant Fiscal Year and ~~its consolidated Subsidiaries shall satisfy~~ the ~~requirements~~ base amount for the next succeeding Fiscal Year; and (i) promptly, from time to time, such other information regarding the operations, business affairs and financial condition of ~~this Section 5.04(b) to~~ the ~~extent such quarterly reports include~~ Borrower or any Subsidiary of the ~~information specified herein);~~Borrower, or compliance with the terms of any Loan Document, as the Administrative Agent or any Lender may reasonably request.

Appears in 1 contract

Samples: Senior Unsecured Bridge Loan Agreement (Allis Chalmers Energy Inc.)

Financial Statements, Reports, etc. Furnish to the Administrative Agent (which will promptly furnish such information to the Lenders): (a1) within 120 days following the end of the fiscal year ending August 2, 2014, and within 90 days ~~after~~ following the end of each fiscal year ~~(commencing with the fiscal year ending December 31, 2016)~~thereafter, a consolidated balance sheet and related statements of operations, cash flows and owners’ equity showing the financial position of the Borrower and ~~its~~ the Restricted Subsidiaries as of the close of such fiscal year and the consolidated results of ~~their~~ its operations during such fiscal year ~~and~~ and, in each case, starting with the fiscal year ending August 2, 2014, setting forth in comparative form the corresponding figures for the prior fiscal year, which consolidated balance sheet and related statements of operations, cash flows and owners’ equity ~~shall~~ will be ~~accompanied by customary management’s discussion and analysis and~~ audited by independent public accountants of recognized national ~~standing~~ standing, or such other accountants as are reasonably acceptable to the Administrative Agent, and accompanied by an opinion of such accountants (which opinion shall not be ~~qualified as~~ subject to ~~scope of audit or as to the status of the Borrower or~~ any ~~Material Subsidiary as a~~ “going concern” statement, explanatory note or like qualification or exception (other than ~~solely with respect to~~a “going concern” statement, explanatory note or like qualification or exception resulting solely ~~from,~~ from an upcoming maturity date ~~under any series of Indebtedness~~ occurring within one year from the time such opinion is delivered or ~~any potential inability to satisfy a financial maintenance~~ anticipated (but not actual) covenant ~~on a future date or in a future period~~non-compliance)) to the effect that such consolidated financial statements fairly present, in all material respects, the financial position and results of operations of the Borrower and ~~its~~ the Restricted Subsidiaries on a consolidated basis in accordance with GAAP (it the applicable financial statements delivered pursuant to this clause (1) being ~~understood that~~ the delivery by the Borrower of annual reports on Form 10-K of the Borrower and its consolidated Subsidiaries shall satisfy the requirements of this Section 5.04(a) to the extent such annual reports include the information specified herein“Annual Financial Statements”); (b2) within 60 days following the end of the fiscal quarters ending November 2, 2013 and February 1, 2014, and, thereafter, within 45 days ~~after~~ following the end of each of the first three fiscal quarters of each fiscal ~~year (commencing with the fiscal quarter ending June 30, 2016)~~year, a consolidated balance sheet and related statements of operations and cash flows showing the financial position of the Borrower and ~~its~~ the Restricted Subsidiaries as of the close of such fiscal quarter and the consolidated results of ~~their~~ its operations during such fiscal quarter ~~and~~ and, in each case, the then-elapsed portion of the fiscal year ~~and, starting with the fiscal quarter ending September 30, 2016,~~ and setting forth in comparative form the corresponding figures for the corresponding periods of the prior fiscal year, ~~all of which shall be in reasonable detail,~~ which consolidated balance sheet and related statements of operations and cash flows ~~shall be accompanied by customary management’s discussion and analysis and which consolidated balance sheet and related statements of operations and cash flows shall~~ will be certified by a ~~Financial~~ Responsible Officer of the Borrower on behalf of the Borrower as fairly presenting, in all material respects, the financial position and results of operations of the Borrower and ~~its~~ the Restricted Subsidiaries on a consolidated basis in accordance with ~~GAAP (~~GAAP, subject to normal year-end audit adjustments and the absence of ~~footnotes~~footnotes (the applicable financial statements delivered pursuant to this clause (2) being the “Quarterly Financial Statements” and, together with the Annual Financial Statements, the “Required Financial Statements”); (~~it being understood~~ 3) concurrently with any delivery of Required Financial Statements, a certificate of a Financial Officer of the Borrower: (a) certifying that no Default or Event of Default has occurred and is continuing or, if a Default or Event of Default has occurred and is continuing, specifying the ~~delivery~~ nature and extent thereof and any corrective action taken or proposed to be taken with respect thereto; (b) setting forth in reasonable detail calculations of the Fixed Charge Coverage Ratio for the most recent period of four consecutive fiscal quarters as of the close of the fiscal year or fiscal quarter, as applicable; (c) certifying a list of all Immaterial Subsidiaries, that each Subsidiary set forth on such list individually qualifies as an Immaterial Subsidiary and that all such Subsidiaries in the aggregate do not exceed the limitation set forth in clause (ii) of the definition of the term “Immaterial Subsidiary;” and (d) certifying a list of all Unrestricted Subsidiaries at such time and that each Subsidiary set forth on such list qualifies as an Unrestricted Subsidiary; (4) promptly after the same become publicly available, copies of all periodic and other publicly available reports, proxy statements and, to the extent requested by the Administrative Agent, other materials publicly filed by Holdings, the Borrower or any Restricted Subsidiary with the SEC or, after an initial public offering, distributed to its stockholders generally, as applicable; (5) within 120 days following the end of the fiscal year ending August 2, 2014, and within 90 days following the end of each fiscal year thereafter, a consolidated annual budget for such fiscal year in the form customarily prepared by the Borrower (the “Budget”), which Budget will in each case be accompanied by the statement of ~~quarterly reports~~ a Financial Officer of the Borrower on behalf of the Borrower to the effect that the Budget is based on assumptions believed by the Borrower to be reasonable as of the date of delivery thereof; (6) upon the reasonable request of the Collateral Agent, concurrently with the delivery of the Annual Financial Statements, an updated Perfection Certificate (or, to the extent such request relates to specified information contained in the Perfection Certificate, such information) reflecting all changes since the date of the information most recently received pursuant to this paragraph (6) or Section 5.10; (7) promptly, from time to time, such other information regarding the operations, business affairs and financial condition of Holdings, the Borrower or any Restricted Subsidiary, in each case, as the Administrative Agent may reasonably request (for itself or on behalf of any Lender); (8) promptly upon request by the Administrative Agent (so long as the following are obtainable using commercially reasonable measures), copies of any documents described in Section 101(k)(1) of ERISA that the Borrower or any of its ERISA Affiliates may request with respect to any Multiemployer Plan; provided that if the Borrower or any of its ERISA Affiliates has not requested such documents from the administrator or sponsor of the applicable Multiemployer Plan, the Borrower or the applicable ERISA Affiliate shall promptly make a request for such documents or notices from such administrator or sponsor and shall provide copies of such documents and notices promptly after receipt thereof; and (9) on or before the 15th Business Day of each month from and after the Closing Date, a Borrowing Base Certificate from the Borrower as of the last day of the immediately preceding month, with such supporting materials as the Administrative Agent may reasonably request (which requests may be more frequent with respect to information regarding Eligible Cash); provided that, after the occurrence and during the continuance of a Liquidity Condition or a Designated Event of Default, the Administrative Agent may require the Borrower to deliver the Borrowing Base Certificate more frequently as reasonably determined by the Administrative Agent. Notwithstanding the foregoing, the Administrative Agent may not require the Borrower to deliver a Borrowing Base Certificate more frequently than weekly, and in the case of such weekly reporting the Borrowing Base Certificate will be due on Wednesday of each week (or, if Wednesday is not a Business Day, on the next succeeding Business Day) calculated as of the close of business on Saturday of the immediately preceding calendar week. Anything to the contrary notwithstanding, the obligations in clauses (1) and (2) of this Section 5.04 may be satisfied with respect to financial information of the Borrower and the Restricted Subsidiaries by furnishing (1) the applicable financial statements of Holdings (or any other Parent Entity) or (2) the Borrower’s or Holdings’ (or any such other Parent Entity’s), as applicable, Form 10-Q K or 10-Q, as applicable, filed with the SEC; provided that with respect to each of the foregoing clauses (1) and (2)(a) to the extent such information relates to Holdings (or a Parent Entity), such information is accompanied by consolidating information that explains in reasonable detail the differences between the information relating to Holdings (or such Parent Entity), on the one hand, and the information relating to the Borrower and the Restricted Subsidiaries on a standalone basis, on the other hand, and (b) to the extent such information is in lieu of information required to be provided under Section 5.04(1), such materials are accompanied by a report and opinion of independent public accountants of recognized national standing, or such other accountants as are reasonably acceptable to the Administrative Agent, and accompanied by an opinion of such accountants (which opinion shall not be subject to any “going concern” statement, explanatory note or like qualification or exception (other than a “going concern” statement, explanatory note or like qualification or exception resulting solely from an upcoming maturity date occurring within one year from the time such opinion is delivered or anticipated (but not actual) covenant non-compliance)). The obligations in clauses (1) and (2) of this Section 5.04 may be satisfied by delivery of financial information of the Borrower and its ~~consolidated~~ Subsidiaries ~~shall satisfy~~ so long as such financial statements include a reasonably detailed presentation, either on the ~~requirements~~ face of the financial statements or in the footnotes thereto, of the financial condition and results of operations of the Borrower and the Restricted Subsidiaries separate from the financial condition and results of operations of the Unrestricted Subsidiaries of the Borrower. Documents required to be delivered pursuant to this Section ~~5.04(b) to the extent such quarterly reports include the information specified herein~~5.04 may be delivered electronically in accordance with Section 10.01(5);.

Appears in 1 contract

Samples: Revolving Credit Agreement (Neiman Marcus Group LTD Inc.)

Financial Statements, Reports, etc. ~~Furnish~~ The Borrower will furnish to the ~~Administrative Agent (which will promptly furnish such information to the Lenders):~~Agents and each Lender: (a) as soon as available, and in any event within 90 105 days after the end of each ~~fiscal year~~ Fiscal Year (~~commencing with the fiscal year ending December 31, 2016), a~~ i) its consolidated and consolidating balance sheet and related consolidated and consolidating statements of ~~operations~~operations and cash flows, ~~cash flows and owners’ equity~~ showing the consolidated and consolidating financial position of the Borrower and its Consolidated Subsidiaries as of the close of such ~~fiscal year~~ Fiscal Year and the consolidated and consolidating results of their operations and cash flows during such ~~year and~~ year, in each case setting forth in comparative form the ~~corresponding~~ figures for the ~~prior fiscal year~~preceding Fiscal Year, ~~which~~ with all of the consolidated ~~balance sheet and related~~ statements ~~of operations, cash flows and owners’ equity shall be accompanied by customary management’s discussion and analysis and~~ having been audited by a nationally recognized independent public ~~accountants of recognized national standing~~ accounting firm and accompanied by an opinion of such accountants (which ~~opinion~~ shall not be qualified ~~as to scope of audit or as to the status of the Borrower or~~ in any Material Subsidiary as a going concern, other than solely with respect to, or resulting solely from, an upcoming maturity date under any series of Indebtedness occurring within one year from the time such opinion is delivered or any potential inability to satisfy a financial maintenance covenant on a future date or in a future periodmaterial respect) to the effect that such ~~consolidated~~ financial statements fairly ~~present, in all material respects,~~ present the consolidated financial position and consolidated results of operations and cash flows of the Borrower and its Consolidated Subsidiaries ~~on a consolidated basis~~ in accordance with GAAP consistently applied and (~~it being understood that the delivery by the Borrower~~ ii) copies of ~~annual reports~~ its Annual Report on Form 10-K ~~of the Borrower and its consolidated Subsidiaries shall satisfy~~ prepared in compliance with the requirements ~~of this Section 5.04(a) to~~ therefor and filed with the ~~extent such annual reports include the information specified herein)~~SEC; (b) as soon as available, and in any event within 45 days after the end of each of the first three fiscal quarters of each ~~fiscal year~~ Fiscal Year (~~commencing with the fiscal quarter ending June 30, 2016), a~~ i) its consolidated balance sheet and related consolidated statements of operations and cash ~~flows~~ flows, showing the consolidated financial position of the Borrower and its Consolidated Subsidiaries as of the close of such fiscal ~~quarter and~~ quarter, the consolidated results of their operations and cash flows during such fiscal quarter and the ~~then-~~then elapsed portion of such Fiscal Year and the ~~fiscal year~~ consolidated cash flows for the then elapsed portion of such Fiscal Year, all certified by one of its Financial Officers as fairly presenting the consolidated financial position and consolidated results of operations and cash flows of the Borrower and its Consolidated Subsidiaries in accordance with GAAP consistently applied, subject to normal year-end audit adjustments and (ii) copies of its Quarterly Report on form 10-Q prepared in compliance with the requirements therefore and filed with the SEC; (c) concurrently with any delivery of financial statements under paragraph (a) or (b) above, an Officer's Certificate of the Borrower certifying that no Default or Event of Default has occurred or, if such a Default or Event of Default has occurred, specifying the nature and extent thereof and any corrective action taken or proposed to be taken with respect thereto; 74 80 (d) concurrently with any delivery of financial statements under paragraph (a) or (b) above, a certificate of a Financial Officer of the Borrower, substantially in the form of Exhibit F hereto, (i) setting forth computations in reasonable detail satisfactory to the Administrative Agent demonstrating compliance with the covenants contained in Sections 6.13 and 6.14, (ii) setting forth computations in reasonable detail satisfactory to the Administrative Agent demonstrating the Consolidated Pricing Ratio, (iii) stating whether, since the date of the most recent Required Financial Statements previously delivered, there has been any material change in the generally accepted accounting principles applied in the preparation of the Borrower's financial statements and, ~~starting~~ if so, describing such change and (iv) stating whether, since the date of the most recent certificate required pursuant to this subclause (d) the Borrower or any of its Subsidiaries has received notice, including, but not limited to, management letters or any similar disclosure, from any unrelated third party with respect to the Borrower's plan to become Year 2000 Compliant, or the progress of such plan; (e) promptly upon their becoming publicly available, copies of all (i) financial statements, reports, notices and proxy statements sent or made available by the Borrower to all of its security holders in compliance with the ~~fiscal quarter ending September 30~~Exchange Act or any comparable Federal or state laws relating to the disclosure by any person of information to its security holders, ~~2016~~(ii) all regular and periodic reports and all registration statements and prospectuses filed by the Borrower with any securities exchange or with the SEC, ~~setting forth~~ and (iii) all press releases and other statements made available by the Borrower or its Subsidiaries concerning material developments in ~~comparative form~~ the ~~corresponding figures for the corresponding periods~~ business of the ~~prior fiscal year~~Borrower or any of the Subsidiaries, ~~all~~ as the case may be; (f) promptly upon completion, but in any event not later than 45 days after the commencement of ~~which shall be in reasonable detail~~each Fiscal Year, ~~which~~ a copy of projections by the Borrower of its consolidated balance sheet and related consolidated statements of operations and cash flows ~~shall~~ for such Fiscal Year (including all material assumptions to such projections) and a budget for such Fiscal Year, all in form customarily prepared by the Borrower's management, such projected financial statements to be accompanied by ~~customary management’s discussion~~ a certificate of a Financial Officer to the effect that such projected financial statements have been prepared in good faith, based on assumptions that the Borrower believes to be reasonable and ~~analysis~~ based on the best information available to the Borrower and ~~which consolidated balance sheet~~ that such Financial Officer has no reason to believe they are misleading in any material respect in light of the circumstances existing at the time of preparation thereof; (g) at least 10 but not more than 30 days prior to any Permitted Acquisition, financial projections covering the period from the date of such Permitted Acquisition through the Revolving Credit Maturity Date giving effect to such Permitted Acquisition and ~~related statements of operations~~ demonstrating compliance by the Borrower on a pro forma basis with the covenants in Article VI from and ~~cash flows shall~~ after the date of, and after giving effect to such Permitted Acquisition through the Revolving Credit Maturity Date (such projections to be certified by a Financial Officer of the Borrower as having been prepared in good faith on ~~behalf~~ the basis of assumptions believed by the Borrower to be reasonable); (h) as soon as available, and in any event within 15 days of receipt, any final management letter issued or provided by the auditors of the Borrower ~~as fairly presenting~~or any Subsidiary; and (i) promptly, ~~in all material respects~~from time to time, such other information regarding the operations, business affairs and financial ~~position and results of operations~~ condition of the Borrower ~~and its Subsidiaries on a consolidated basis in accordance~~ or any Subsidiary, or compliance with ~~GAAP (subject to normal year-end audit adjustments and~~ the ~~absence~~ terms of footnotes) (it being understood that the delivery by the Borrower of quarterly reports on Form 10-Q of the Borrower and its consolidated Subsidiaries shall satisfy the requirements of this Section 5.04(b) to the extent such quarterly reports include the information specified herein);any Loan Document, as either Agent or any Lender may reasonably request.

Appears in 1 contract

Samples: Credit Agreement (Robbins & Myers Inc)

Financial Statements, Reports, etc. ~~Furnish~~ In the case of the Lead Borrower, furnish to the Administrative ~~Agent (~~Agent, which ~~will promptly~~ shall furnish ~~such information~~ to ~~the Lenders):~~each Lender: (a) within the later of (i) 90 days after the end of each fiscal year or (~~commencing with~~ ii) by the ~~fiscal year ending December 31~~date the following statements would have been required to be filed under the rules and regulations of the SEC, ~~2016~~giving effect to any automatic extension available under Rule 12b-25 of the Securities Exchange Act of 1934 for the filing of such statements), ~~a consolidated balance sheet and related~~ the Parent’s statements of financial position, operations, shareholders’ equity and comprehensive income and cash flows ~~and owners’ equity~~ showing the financial ~~position~~ condition of the ~~Borrower~~ Parent and its consolidated Subsidiaries as of the close of such fiscal year and the ~~consolidated~~ results of ~~their~~ its operations and the operations of such Subsidiaries during such ~~year and setting forth in~~ year, together with comparative ~~form the corresponding~~ figures for the ~~prior~~ immediately preceding fiscal year, ~~which consolidated balance sheet and related statements of operations, cash flows and owners’ equity shall be accompanied by customary management’s discussion and analysis and~~ all audited by McGladrey LLP or other independent public accountants of recognized national standing and accompanied by an opinion of such accountants (which opinion shall ~~not~~ be ~~qualified as to scope of audit~~ without a “going concern” or like qualification or exception and without any qualification or exception as to the ~~status~~ scope of the Borrower or any Material Subsidiary as a going concern, other than solely with respect to, or resulting solely from, an upcoming maturity date under any series of Indebtedness occurring within one year from the time such ~~opinion is delivered or any potential inability to satisfy a financial maintenance covenant on a future date or in a future period~~audit) to the effect that such consolidated financial statements fairly ~~present, in all material respects,~~ present the financial ~~position~~ condition and results of operations of the ~~Borrower~~ Parent’s and its consolidated Subsidiaries on a consolidated basis in accordance with GAAP ~~(it being understood~~ consistently applied, together with a customary “management discussion and analysis” provision; provided that if, during the ~~delivery by~~ period to which such financial statements relate, the ~~Borrower~~ Parent carried on any business or owned any assets with an aggregate book value of ~~annual reports on Form 10-K of~~ more than $2,000,000 other than the equity in Holdings, such financial statements must be prepared for the Lead Borrower and its consolidated ~~Subsidiaries shall satisfy the requirements of this Section 5.04(a) to the extent such annual reports include the information specified herein)~~Subsidiaries; (b) within the later of (i) 45 days after the end of each of the first three ~~fiscal quarters~~ Fiscal Quarters of each fiscal year or (~~commencing with~~ ii) by the ~~fiscal quarter ending June 30~~date the following statements would have been required to be filed under the rules and regulations of the SEC, ~~2016~~giving effect to any automatic extension available under Rule 12b-25 of the Securities Exchange Act of 1934 for the filing of such statements), a the Parent’s consolidated ~~balance sheet and related~~ statements of financial position, operations and cash flows showing the financial ~~position~~ condition of the ~~Borrower~~ Parent and its consolidated Subsidiaries as of the close of such ~~fiscal quarter~~ Fiscal Quarter and the ~~consolidated~~ results of ~~their~~ its operations and the operations of such Subsidiaries during such ~~fiscal quarter~~ Fiscal Quarter and the ~~then-~~then elapsed portion of the fiscal ~~year~~ year, and, ~~starting~~ other than with respect to quarterly reports during the remainder of the first fiscal ~~quarter ending September 30~~year after the Closing Date, ~~2016, setting forth in~~ comparative ~~form the corresponding~~ figures for the ~~corresponding~~ same periods of in the ~~prior~~ immediately preceding fiscal year, all of which shall be in reasonable detail, which consolidated balance sheet and related statements of operations and cash flows shall be accompanied by customary management’s discussion and analysis and which consolidated balance sheet and related statements of operations and cash flows shall be certified by a one of its Financial ~~Officer of the Borrower on behalf of the Borrower~~ Officers as fairly ~~presenting, in all material respects,~~ presenting the financial ~~position~~ condition and results of operations of the ~~Borrower~~ Parent and its consolidated Subsidiaries on a consolidated basis in accordance with GAAP (consistently applied, subject to normal year-end audit ~~adjustments~~ adjustments, together with a customary “management discussion and analysis” provision; provided that if, during the ~~absence~~ period to which such financial statements relate, the Parent carried on any business or owned any assets with an aggregate book value of ~~footnotes) (it being understood that~~ more than $2,000,000 other than the ~~delivery by~~ equity in Holdings, such financial statements must be prepared for the ~~Borrower of quarterly reports on Form 10-Q of the~~ Lead Borrower and its consolidated Subsidiaries; (c) concurrently with any delivery of financial statements under paragraph (a) or (b) above, a duly completed Officer’s Certificate signed by the chief executive officer, chief financial officer, treasurer or controller of the Lead Borrower certifying on behalf of the Lead Borrower that, to such officer’s knowledge after due inquiry, no Default or Event of Default has occurred and is continuing or, if any Default or Event of Default has occurred and is continuing, specifying in reasonable detail the nature and extent thereof, which certificate shall (i) if delivered with the financial statements required by Section 5.04(a), set forth in reasonable detail the amount of (and the calculations required to establish the amount of) Excess Cash Flow for the respective Fiscal Year as well as the Applicable Excess Cash Flow Percentage, (ii) identify each Subsidiary of the Lead Borrower as a Restricted Subsidiary or an Unrestricted Subsidiary as of the date of delivery of such certificate or a confirmation that there is no change in such information since the later of the Closing Date and the date of the last such certificate, (iii) identify each Immaterial Subsidiary as of the date of delivery of such certificate or confirmation that there is no change in such information since the dates of the Closing Date and the date of the last such certificate, (iv) set forth in reasonable detail (and the calculations required to establish) the Cumulative Retained Excess Cash Flow Amount and the Available Amount Basket as a result of any utilizations of such Cumulative Retained Excess Cash Flow Amount since the date of the last such certificate, (v) certify that there have been no changes to the schedules to the Security Agreement since the Closing Date or, if later, since the date of the most recent certificate pursuant to this Section 5.04(c), or if there have been any such changes, provide an updated and replacement schedule reflecting such changes, (vi) details of the adjustments to the financial statements necessary to eliminate the contribution to such accounts by any Unrestricted Subsidiary or any assets of the Parent other than the equity in Holdings, and (vii) set forth in reasonable detail a calculation of the Financial Covenant solely to the extent required to be tested as of the last day of the fiscal period covered by such financial statements; (d) within 90 days after the beginning of each fiscal year of the Lead Borrower, a detailed consolidated budget for such fiscal year approved by the board of Holdings (including a projected consolidated balance sheet and related projected statement of operations as of the end of and for such fiscal year and setting forth the assumptions used for purposes of preparing such budget); (e) promptly after the same become publicly available, copies of, or links to copies of, all periodic and other reports, proxy statements and other materials filed by the Parent, Holdings, the Borrowers or any of their respective Restricted Subsidiaries ~~shall satisfy~~ with the ~~requirements~~ SEC, or any Governmental Authority succeeding to any or all of ~~this~~ the functions of the SEC, or with any national securities exchange, or distributed to its shareholders, as the case may be; (f) promptly after the receipt thereof by Holdings or the Borrowers or any of their respective subsidiaries, a copy of any final “management letter” received by any such Person from its certified public accountants and the management’s response thereto; (g) unless the Parent has had an earnings call with respect to such quarterly financial statements, within 30 days after the date of delivery of the quarterly financial statements pursuant to Section 5.04(b) (or such later date agreed to by the Administrative Agent in its reasonable discretion), the Lead Borrower will hold a conference call or teleconference, at a time selected by the Lead Borrower and reasonably acceptable to the ~~extent~~ Administrative Agent, with all of the Lenders that choose to participate, to review the financial results of the previous Fiscal Quarter and the financial condition of the Lead Borrower and its Subsidiaries and the budget for the current fiscal year; (h) promptly after the request by any Lender, all documentation and other information that such ~~quarterly reports include~~ Lender reasonably requests in order to comply with its ongoing obligations under applicable “know your customer” and anti-money laundering rules and regulations, including the USA PATRIOT Act; and (i) promptly, from time to time, such other information ~~specified herein);~~regarding the operations, business affairs and financial condition of Holdings, the Borrowers or any of the Borrowers’ respective Restricted Subsidiaries, or compliance with the terms of any Loan Document, as the Administrative Agent or any Lender through the Administrative Agent may reasonably request. Documents required to be delivered pursuant to this Section 5.04 may be delivered electronically and, if so delivered, shall be deemed to have been delivered to the Administrative Agent and the Lenders on the date on which (i) the Lead Borrower posts such documents, or provides a link thereto, on its principal publicly accessible website, (ii) such documents are posted on the Lead Borrower’s behalf on IntraLinks/IntraAgency, Syndtrak or another similar electronic system (the “Platform”) or (iii) such documents are posted on the Lead Borrower’s behalf on xxx.xxx.xxx or any successor website on the internet; provided that the Lead Borrower shall notify the Administrative Agent of the posting of any such documents and provide to the Administrative Agent by electronic mail electronic versions of such documents.

Appears in 1 contract

Samples: Credit Agreement (Hemisphere Media Group, Inc.)

Financial Statements, Reports, etc. ~~Furnish~~ In the case of the Borrowers, furnish to the Administrative Agent ~~(which will promptly furnish such information to the Lenders):~~and each Lender: (a) Within 40 days after the end of each Monthly Fiscal Period (the “Reported Month”), and in any event no less than three (3) Business Days prior to the earlier of the Subordinated Note Interest Payment Date and the Dividend Payment Date in each calendar month, commencing with the Monthly Fiscal Period ending March 31, 2005, a Monthly Report substantially in the form of Exhibit A (the “Monthly Report”) which shall include, among other things: (i) a monthly consolidated cash flow statement and a monthly consolidated balance sheet for Holdings and its Subsidiaries for the Reported Month and year-to-date; (ii) a certification from the Borrowers of (A) EBITDA and Adjusted EBITDA for the twelve Monthly Fiscal Periods ending on the last day of the Reported Month, (B) Available Cash, Distributable Cash, Dividend Shortfall Amount and Dividend Payment Amount, in each case for such Reported Month, (C) interest on the Holdings Subordinated Notes and interest on Deferred Subordinated Note Interest scheduled to be paid on the Subordinated Note Interest Payment Date immediately following the required date of delivery for such Monthly Report, (D) the aggregate outstanding amount of Deferred Subordinated Note Interest, if any, and (E) Consolidated Service Contract Capital Expenditures for such Reported Month and Cumulatively for the Annual Fiscal Period to-date; (iii) a certification from the Borrowers of the amount of any Insurance Proceeds, Asset Sale Proceeds, Debt Offering Proceeds, Unamortized Contract Value Proceeds and Equity Offering Proceeds, in each case with respect to the Reported Month and where relevant, on a cumulative annual basis; (iv) a detailed report of the additions and withdrawals of funds from the Cash Collateral Account, the Dividend/CapEx Funding Account and the CapEx Funding Account, if any, during such Monthly Fiscal Period; (v) a computation from the Borrowers in reasonable detail demonstrating the calculation of the Total Leverage Ratio, the Senior Leverage Ratio and the Interest Coverage Ratio and a certification from the Borrowers of compliance with the financial covenants contained in Sections 6.10, 6.11, 6.12, 6.18 and 6.19; (vi) confirmation from the Borrowers of the absence of a Default or Event of Default or, if such a Default or Event of Default has occurred, specifying the nature and extent thereof and any corrective action taken or proposed to be taken with respect thereto; and (vii) confirmation from the Borrowers of the absence of any default or event of default pursuant to the Holdings Subordinated Note Documents, or if such a default or event of default has occurred, specifying the nature and extent thereof and any corrective action proposed to be taken with respect thereto; (b) within 45 days after the end of each Quarterly Fiscal Period (subject to an additional extension not to exceed 10 days to the extent the Exchange Act is hereafter amended in a manner so as to permit all public companies subject to regulation by the Exchange Act to file their quarterly financial statements beyond 45 days after their fiscal quarter end, disregarding for purposes hereof any extension of the filing period that may be made by way of application for extension under the applicable Exchange Act rules and regulations) an unaudited consolidated balance sheet and related statements of operations, cash flows and stockholders’ equity showing the financial condition of the Loan Parties on a consolidated basis as of the close of such Quarterly Fiscal Period and the consolidated results of their operations during such Quarterly Fiscal Period, together with the corresponding consolidating statements prepared in a manner consistent with the consolidating financial statements delivered to the Lenders prior to the Closing Date, provided that the filing of Form 10-Q with the Securities and Exchange Commission shall satisfy the requirements of this paragraph solely with respect to the financial statements required to be delivered pursuant to this paragraph (b) so long as such filing is made within 45 days after the end of each Quarterly Fiscal Period (subject to an additional extension not to exceed 10 days to the extent the Exchange Act is hereafter amended in a manner so as to permit all public companies subject to regulation by the Exchange Act to file their quarterly financial statements beyond 45 days after their fiscal quarter end, disregarding for purposes hereof any extension of the filing period that may be made by way of application for extension under the applicable Exchange Act rules and regulations); (c) within 90 days after the end of each Annual Fiscal Period (subject to an additional extension not to exceed 10 days to the extent the Exchange Act is hereafter amended in a manner so as to permit all public companies subject to regulation by the Exchange Act to file their annual financial statements beyond 90 days after their fiscal year ~~(commencing with~~ end, disregarding for purposes hereof any extension of the ~~fiscal year ending December 31, 2016~~filing period that may be made by way of application for extension under the applicable Exchange Act rules and regulations), a consolidated balance sheet and related statements of operations, cash flows and ~~owners~~stockholders’ equity showing the financial ~~position~~ condition of the ~~Borrower and its Subsidiaries~~ Loan Parties on a consolidated basis as of the close of such ~~fiscal year~~ Annual Fiscal Period and the consolidated results of their operations during such ~~year and setting forth in comparative form~~ Annual Fiscal Period, together with the corresponding ~~figures~~ consolidating statements prepared in a manner consistent with the consolidating financial statements delivered to the Lenders prior to the Closing Date, all audited by independent certified public accountants acceptable to the Administrative Agent and accompanied by an opinion of such accountants (which shall not be qualified in any material respect, provided that disclosures by such accountants of changes in accounting principles shall not be deemed such a qualification) to the effect that such consolidated financial statements fairly present the financial condition and results of operations of the Loan Parties on a consolidated basis in accordance with GAAP, together with a written discussion by management of annual results compared to prior year results and management letters, if available, provided that the filing of Form 10-K with the Securities and Exchange Commission shall satisfy the requirements of this paragraph solely with respect to the delivery of the financial statements required pursuant to this paragraph (c) so long as such filing is made within 90 days after the end of the applicable Annual Fiscal Period (subject to an additional extension not to exceed 10 days to the extent the Exchange Act is hereafter amended in a manner so as to permit all public companies subject to regulation by the Exchange Act to file their annual financial statements beyond 90 days after their fiscal year end, disregarding for purposes hereof any extension of the ~~prior fiscal year~~filing period that may be made by way of application for extension under the applicable Exchange Act rules and regulations); (d) if, ~~which~~ as a result of any change in accounting principles and policies from those as in effect on the date of this Agreement, the financial statements of the Loan Parties on a consolidated basis delivered pursuant to paragraph (a), (b) or (c) above will differ in any material respect from the consolidated financial statements that would have been delivered pursuant to such clauses had no such change in accounting principles and policies been made, then, together with the first delivery of financial statements pursuant to paragraph (a), (b) or (c) above following such change, a schedule prepared by a Financial Officer on behalf of Holdings and the Borrowers reconciling such changes to what the financial statements would have been without such changes; (e) simultaneously with the delivery of any financial statements pursuant to paragraph (b) or (c) above, a balance sheet and related statements of operations, cash flows and ~~owners~~stockholders’ equity shall be accompanied by customary management’s discussion and analysis and audited by independent public accountants of recognized national standing and accompanied by an opinion of such accountants (which opinion shall not be qualified as to scope of audit or as to for each unconsolidated Subsidiary for the status of the Borrower or any Material Subsidiary as a going concern, other than solely with respect to, or resulting solely from, an upcoming maturity date under any series of Indebtedness occurring within one year from the time such opinion is delivered or any potential inability to satisfy a financial maintenance covenant on a future date or in a future applicable period) to the effect that such consolidated financial statements fairly present, in all material respects, the financial position and results of operations of the Borrower and its Subsidiaries on a consolidated basis in accordance with GAAP (it being understood that the delivery by the Borrower of annual reports on Form 10-K of the Borrower and its consolidated Subsidiaries shall satisfy the requirements of this Section 5.04(a) to the extent such annual reports include the information specified herein); (bf) ~~within 45~~ as soon as available, but not later than 90 days after the end of each Fiscal Year, an annual operating plan for the Borrowers, on a consolidated basis, approved by the Board of Directors of the ~~first three fiscal quarters~~ Borrowers, for the following Fiscal Year, which includes a statement of ~~each fiscal year (commencing with the fiscal quarter ending June 30, 2016), a consolidated balance sheet and related statements of operations and cash flows showing the financial position~~ all of the ~~Borrower and its Subsidiaries as of the close of~~ material assumptions on which such ~~fiscal quarter and the consolidated results of their operations during such fiscal quarter and the then-elapsed portion of the fiscal year and~~plan is based, ~~starting~~ together with ~~the fiscal quarter ending September 30, 2016, setting forth in comparative form the corresponding figures~~ updated monthly Projections for the ~~corresponding periods of~~ following year and updated annual Projections for the ~~prior fiscal~~ four year period commencing after such following year, all prepared in a manner consistent with the manner in which annual operating plans have previously been provided to the Lead Arranger prior to the Closing Date (and in the case of ~~which shall be in reasonable detail~~cash flow projections, representing management’s good faith estimates of future financial performance based on historical performance), and including plans for Capital Expenditures; (g) promptly following the creation or acquisition of any Subsidiary, a certificate from Responsible Officer identifying such new Subsidiary and the ownership interest of each of the Borrowers and the Subsidiaries therein, which ~~consolidated balance sheet~~ certificate shall further specify whether or not such Subsidiary is required to become a Guarantor; (h) promptly following entry into any Service Contract or the purchase, lease or acquisition of all or any substantial part of the assets of any other Person involving Capital Expenditures in excess of $7,500,000, a certificate from a Responsible Officer identifying such Service Contract or such purchase, lease or acquisition and ~~related statements~~ confirming that it is a Permitted Service Contract or Permitted Business Acquisition, as the case may be; (i) promptly, a copy of ~~operations~~ all reports submitted in connection with any material interim or special audit made by independent accountants of the books of Holdings, the Borrowers or any Subsidiary; (j) within ninety (90) days after the beginning of each Annual Fiscal Period, an updated version of the schedule of insurance policies delivered as Schedule 3.21; (k) promptly, and ~~cash flows shall be accompanied~~ in any event within three Business Days after any officer of any Borrower or any of its Subsidiaries obtains knowledge thereof, notice of the occurrence of any event which constitutes a default or an event of default under the Holdings Subordinated Note Documents; (l) promptly upon receipt thereof, and in any event within three Business Days, a copy of any written notice received by ~~customary management’s discussion~~ any Loan Party or Subsidiary stating or alleging that (i) such Loan Party or Subsidiary has breached its obligations under a Service Contract, (ii) any other event has occurred that permits the early termination of a Service Contract or (iii) a Service Contract has been terminated; (m) promptly, and ~~analysis~~ in any event within three Business Days after any officer of any Borrower or any of its Subsidiaries obtains knowledge thereof, (i) notice that any Service Contract has terminated prior to its stated date of termination or has not been renewed following termination at its stated date of termination, and ~~which consolidated balance sheet and related statements~~ (ii) if such Service Contract is a Significant Service Contract or a Material Service Contract, a certificate of ~~operations and cash flows shall be certified by~~ a Financial Officer of the ~~Borrower~~ Borrowers demonstrating compliance with Section 6.9(e); (n) (i) promptly (and in any event within three Business Days) after any Loan Party enters into any Service Contract (or any extension or renewal thereof) that contains any restrictions on ~~behalf~~ the granting of Liens on equipment owned by any Loan Party, provide written notice to the Administrative Agent thereof, which notice shall include an estimate of the ~~Borrower as fairly presenting~~total Capital Expenditures to be made or incurred by the Loan Parties after the Closing Date with respect to any such Service Contracts that constitute New Client Service Contracts; (ii) promptly provide the Administrative Agent with written notice of the total amount of Capital Expenditures made or incurred by the Loan Parties after the Closing Date with respect to any such Service Contracts that constitute New Client Service Contracts once expended, (iii) promptly (and in ~~all material respects~~any event within three Business Days) after any Non-Wholly-Owned Entity enters into any joint venture agreement or joint venture arrangement (or any extension or renewal thereof) that contains any restrictions on the granting of Liens on equipment owned by any Loan Party and purchased or acquired with Permitted Non-Wholly-Owned Entity Capital Expenditures, provide written notice to the Administrative Agent thereof, which notice shall include an estimate of the total Permitted Non-Wholly-Owned Entity Capital Expenditures to be made or incurred by the Loan Parties after the Closing Date with respect to any such joint venture agreement or joint venture arrangement; (iv) promptly provide the Administrative Agent with written notice of the total amount of Permitted Non-Wholly-Owned Entity Capital Expenditures made or incurred by the Loan Parties after the Closing Date with respect to any such joint venture agreement or joint venture arrangement of type referred to in the immediately preceding clause (iii) once expended, and (v) promptly provide the Administrative Agent with any other information that the Administrative Agent may reasonably request in order to verify compliance with the condition set forth in clause (b) of the definition of Permitted Lien Restriction and clause (b) of the definition of Permitted JX Xxxx Restriction; (o) promptly, from time to time, such other information and reports regarding the operations, business affairs and financial condition of any Loan Party, the Collateral or compliance with the terms of any Loan Document, or such consolidating financial ~~position and results~~ statements, as in each case the Administrative Agent or any Lender, acting through the Administrative Agent, may reasonably request; and (p) within 5 Business Days after receipt thereof by any Loan Party, copies of ~~operations of the Borrower and~~ all management letters, exception reports or similar letters or reports received by such Loan Party from its Subsidiaries on a consolidated basis in accordance with GAAP (subject to normal year-end audit adjustments and the absence of footnotes) (it being understood that the delivery by the Borrower of quarterly reports on Form 10-Q of the Borrower and its consolidated Subsidiaries shall satisfy the requirements of this Section 5.04(b) to the extent such quarterly reports include the information specified herein);independent certified public accountants.

Appears in 1 contract

Samples: Credit Agreement (Centerplate, Inc.)

Financial Statements, Reports, etc. ~~Furnish~~ Such Borrower shall furnish to the ~~Administrative~~ Agent and the Lenders (~~which will promptly furnish such information to the Lenders~~except as otherwise provided herein): (a) within 90 one hundred twenty (120) days after the end of each fiscal year of such Borrower, two sets of annual consolidated and consolidating financial statements for KMC Holdings (~~commencing with the fiscal year ending December 31, 2016~~one excluding Excluded Subsidiaries and one including Excluded Subsidiaries), ~~a consolidated~~ and combined financial statements for the Borrowers, including the balance ~~sheet~~ sheets and ~~related~~ statements of operations, income, stockholders' equity and cash ~~flows~~ flows, for such fiscal year, prepared in accordance with GAAP, which consolidated financial statements and ~~owners’ equity showing~~ other above described financial information shall have been audited by a nationally recognized independent certified public accounting firm satisfactory to the ~~financial position~~ Agent, and accompanied by such independent certified public accounting firm's unqualified opinion; (b) within forty-five (45) days after the end of each month and each fiscal quarter during each fiscal year of such Borrowers, consolidated and consolidating unaudited balance sheets and statements of operations for KMC Holdings, and combined unaudited balance sheets and statements of operations for the Borrower and ~~its Subsidiaries~~ consolidated and consolidating statements of stockholders' equity and cash flows of KMC Holdings, and combined consolidated statements of stockholders' equity and cash flows of the Borrowers as of the ~~close~~ end of each such month or fiscal quarter, as applicable, and for the then elapsed portion of the fiscal year; PROVIDED that with respect to the consolidated and consolidating unaudited balance sheets and statements of operations for KMC Holdings and statements of stockholders' equity and cash flows of KMC Holdings delivered as of the end of each fiscal quarter, such Borrower shall provide two sets of such ~~fiscal year~~ statements (one excluding Excluded Subsidiaries and ~~the consolidated results of their operations during~~ one including Excluded Subsidiaries); PROVIDED, further, that such year and setting forth in comparative form the corresponding figures for the prior fiscal year, which consolidated balance sheet and related statements of operations, cash flows and owners’ equity shall be accompanied by customary management’s discussion and analysis and audited by independent public accountants of recognized national standing and accompanied by an opinion of such accountants (which opinion Borrower shall not be ~~qualified as~~ required to ~~scope of audit or as to~~ deliver the ~~status~~ items described in this SECTION 5.06(B) on a monthly basis at any time that, and only for so long as, the Borrowers have achieved positive EBITDA; (c) concurrently with provision of the ~~Borrower~~ financial statements referred to in CLAUSES (A) and (B) above, a certificate of KMC Holdings' independent certified public accountant or ~~any Material Subsidiary~~ KMC Holdings' chief financial officer, as ~~a going concern~~applicable, other than solely with respect to, or resulting solely from, an upcoming maturity date under any series of Indebtedness occurring within one year from the time such opinion is delivered or any potential inability to satisfy a financial maintenance covenant on a future date or in a future period) to the effect that ~~such consolidated~~ the financial statements referred to in CLAUSE (A) or (B) above, present fairly ~~present, in all material respects,~~ the financial position and results of operations of KMC Holdings, and the ~~Borrower~~ Borrowers and ~~its Subsidiaries on a consolidated basis~~ as having been prepared in accordance with GAAP consistently applied, in each case, subject to normal year end audit adjustments except for the statements referred to in CLAUSE (~~it being understood that the delivery by the Borrower of annual reports on Form 10-K~~ A) above; (d) concurrently with (a) above, and any statements delivered pursuant to (b) above in respect of the ~~Borrower~~ month of March and ~~its consolidated Subsidiaries shall satisfy~~ the ~~requirements~~ period ending March 31, the month of June and the period ending June 30 or the month of September and the period ending September 30, a Periodic Reporting Certificate of the chief financial officer of KMC Holdings setting forth the calculations contemplated in ARTICLE VII, the number of Completed Systems and certifying as to the fact that such Person has examined the provisions of this ~~Section 5.04(a~~Agreement and that no Event of Default or any Default, shall have occurred and be continuing or if such an event has occurred, a statement explaining its nature and extent and setting forth the steps the Borrowers propose to take to cure such Event of Default; (i) not later than December 1 of each calendar year, consolidating and consolidated projected and annual revenue and income statements, including detailed revenue and expense statements, balance sheets and cash flow statements for KMC Holdings for the succeeding fiscal year, such statements to be reasonably acceptable to the Agents, and (ii) not later than July 1, 1999, an annual operating budget on a monthly basis for such calendar year and not later than January 15 of each calendar year beginning January 15, 2000, an annual operating budget on a quarterly basis for such calendar year, with each such budget to be in compliance with the KMC III Tier III Plan; (f) to the ~~extent such annual reports include~~ Agent, all material agreements or licenses affecting the ~~information specified herein)~~Governmental Approvals of the any Borrower or any System promptly after any execution, or material amendment thereto; (bg) to the Agent, promptly upon their becoming available, copies of any material periodic or special documents, statements or other information filed by any Borrower with the FCC, PUC or other Governmental Authority in connection with the construction and/or operation of any System or with respect to the 57 transactions contemplated by any of the Loan Documents, and copies of any material notices and other material communications from the FCC, PUC or from any other Governmental Authority; (h) immediately upon any officer of any Borrower obtaining knowledge of any condition or event (i) which either constitutes an Event of Default or a Default, (ii) which renders any representation or warranty contained herein materially false or misleading, or when made, renders any document materially false or misleading, or (iii) which would result in any financial results for any fiscal year to materially deviate from the financial results projected for such fiscal year in the KMC III Tier III Plan or the financial projections described in CLAUSE (E) above, a certificate signed by an authorized officer of such Borrower specifying in reasonable detail the nature and period of existence thereof and what corrective action such Borrower has taken or proposes to take with respect thereto; (i) within 45 thirty (30) days after the end of each fiscal year of such Borrower, a certificate signed by an authorized officer of such Borrower (x) setting forth all the Real Property, Easements, licenses, rights of way and other similar interests in real property acquired by such Borrower in the preceding year and (y) confirming that no Default or Event of Default has occurred and is continuing; (j) evidence in the manner set forth in SECTION 5.04(E) of insurance complying with SECTION 5.04; (k) following the written request of the ~~first three fiscal quarters~~ Agent, not later than forty-five (45) days after the end of each fiscal ~~year~~ month, reports on accounts receivable and accounts payable of such Borrower in such detail and format as may be reasonably requested by the Agent; (~~commencing~~ l) promptly upon the filing thereof, copies of all registration statements and annual, quarterly, monthly or other regular reports which such Borrower or KMC Holdings files with the ~~fiscal quarter ending June 30~~Securities and Exchange Commission; and (m) promptly from time to time such other information regarding the operations (including, ~~2016~~without limitation, construction budgeting and System completion), ~~a consolidated balance sheet~~ business affairs and ~~related statements of operations and cash flows showing the~~ condition (financial ~~position of the Borrower and its Subsidiaries as of the close~~ or otherwise) of such ~~fiscal quarter and~~ Borrower or KMC Holdings as the consolidated results of their operations during such fiscal quarter and the then-elapsed portion of the fiscal year and, starting with the fiscal quarter ending September 30, 2016, setting forth in comparative form the corresponding figures for the corresponding periods of the prior fiscal year, all of which shall be in reasonable detail, which consolidated balance sheet and related statements of operations and cash flows shall be accompanied by customary management’s discussion and analysis and which consolidated balance sheet and related statements of operations and cash flows shall be certified by a Financial Officer of the Borrower on behalf of the Borrower as fairly presenting, in all material respects, the financial position and results of operations of the Borrower and its Subsidiaries on a consolidated basis in accordance with GAAP (subject to normal year-end audit adjustments and the absence of footnotes) (it being understood that the delivery by the Borrower of quarterly reports on Form 10-Q of the Borrower and its consolidated Subsidiaries shall satisfy the requirements of this Section 5.04(b) to the extent such quarterly reports include the information specified herein);Agent may reasonably request.

Appears in 1 contract

Samples: Loan and Security Agreement (KMC Telecom Holdings Inc)

Financial Statements, Reports, etc. ~~Furnish~~ In the case of the Borrower, furnish to the Administrative Agent ~~(which will promptly furnish such information~~ for distribution to ~~the Lenders):~~each Lender: (a) within 90 days after the end of each fiscal year ~~(commencing~~ beginning with the fiscal year ending on December 31, 2016), a its consolidated balance sheet and related statements of ~~operations~~income, stockholders’ equity and cash flows ~~and owners’ equity~~ showing the financial ~~position of the Borrower and its Subsidiaries~~ condition as of the close of such fiscal year of the Borrower and its consolidated Subsidiaries at such time and the ~~consolidated~~ results of ~~their~~ its operations and the operations of such Subsidiaries during such ~~year and setting forth in~~ year, together with comparative ~~form the corresponding~~ figures for the ~~prior~~ immediately preceding fiscal year, ~~which consolidated balance sheet and related statements of operations, cash flows and owners’ equity shall be accompanied by customary management’s discussion and analysis and~~ all audited by KPMG LLP or other independent public accountants of recognized national standing and accompanied by an opinion of such accountants reasonably satisfactory to the Administrative Agent (which ~~opinion~~ shall not be qualified in any material respect, except for qualifications (A) as a result of maturities of Indebtedness within the following twelve-month period, (B) relating to ~~scope of audit~~ accounting changes (with which such independent public accountants shall concur) in response to FASB releases or as other authoritative pronouncements, (C) relating to the ~~status~~ activities, operations, assets or liabilities of ~~the Borrower~~ any Unrestricted Subsidiary, and/or (D) relating to any breach or anticipated breach of any Material Subsidiary as a going concern, other than solely with respect to, or resulting solely from, an upcoming maturity date under any series of Indebtedness occurring within one year from the time such opinion is delivered or any potential inability to satisfy a financial ~~maintenance covenant on a future date or in a future period~~covenant) to the effect that such consolidated financial statements fairly ~~present, in all material respects,~~ present the financial ~~position~~ condition and results of operations of the Borrower and its consolidated Subsidiaries on a consolidated basis in accordance with GAAP (it being understood that the delivery by the Borrower of annual reports on Form 10-K of the Borrower and its consolidated Subsidiaries shall satisfy the requirements of this Section 5.04(a) to the extent such annual reports include the information specified herein)consistently applied; (b) within 45 days after the end of each of the first three fiscal quarters of each fiscal year ~~(commencing~~ beginning with the fiscal quarter ending on June 30, 2016), a its unaudited consolidated balance sheet and related statements of ~~operations~~ income, stockholders’ equity and cash flows showing the financial ~~position of the Borrower and its Subsidiaries~~ condition as of the close of such fiscal quarter of the Borrower and its consolidated Subsidiaries at such time and the ~~consolidated~~ results of ~~their~~ its operations and the operations of such Subsidiaries during such fiscal quarter and the ~~then-~~then elapsed portion of the fiscal ~~year and~~year, ~~starting with the fiscal quarter ending September 30, 2016, setting forth in~~ and comparative ~~form the corresponding~~ figures for the ~~corresponding~~ same periods of in the ~~prior~~ immediately preceding fiscal year, all of which shall be in reasonable detail, which consolidated balance sheet and related statements of operations and cash flows shall be accompanied by customary management’s discussion and analysis and which consolidated balance sheet and related statements of operations and cash flows shall be certified by a one of its Financial ~~Officer~~ Officers to the effect that such financial statements, while not examined by independent public accountants, reflect in the opinion of the Borrower ~~on behalf of the Borrower as~~ all adjustments necessary to present fairly ~~presenting,~~ in all material ~~respects,~~ respects the financial ~~position~~ condition and results of operations of the Borrower and its consolidated Subsidiaries on a consolidated basis as of the end of and for such periods in accordance with GAAP (consistently applied, subject to normal year-end audit adjustments and the absence of footnotes; (c) (~~it being understood~~ i) concurrently with any delivery of financial statements under Section 5.04(a), a letter from the independent public accountants rendering the opinion on such statements (which letter may be limited to accounting matters and disclaim responsibility for legal interpretations) stating whether, in connection with their audit examination, anything has come to their attention which would cause them to believe that any Default or Event of Default existed on the date of such financial statements and if such a condition or event has come to their attention and (ii) concurrently with any delivery ~~by the Borrower~~ of ~~quarterly reports on Form 10-Q~~ financial statements under Section 5.04(a) or 5.04(b), an Officer’s Certificate of a Financial Officer of the Borrower (A) certifying that no Event of Default or Default has occurred or, if such an Event of Default or Default has occurred, specifying the nature and ~~its consolidated Subsidiaries shall satisfy the requirements of this Section 5.04(b~~extent thereof and any corrective action taken or proposed to be taken with respect thereto and (B) to the extent such ~~quarterly reports include~~ Officer’s Certificate is being delivered for a fiscal quarter or fiscal year in which a Test Period is in effect, setting forth computations in reasonable detail as is reasonably satisfactory to the Administrative Agent demonstrating compliance with the financial covenant set forth in Section 6.12 as of the last day of the fiscal year or fiscal quarter with respect to which such financial statements are being delivered; (d) within 30 days following the commencement of each fiscal year of the Borrower, a detailed consolidated budget for such fiscal year (including a projected consolidated balance sheet and related statements of projected operations and cash flows as of the end of and for such fiscal year and setting forth the assumptions used for purposes of preparing such budget) and, promptly when available, any significant revisions of such budget; (e) within 135 days after the end of each fiscal year beginning with the fiscal year ending December 31, 2019, a Pricing Certificate setting forth the calculations of the Applicable Sustainability Adjustment for the preceding fiscal year and, if applicable, the quantity set forth in clause (i) of the definition of “Baseline Sustainability Amount” (as it may have been previously adjusted pursuant to this Section 5.04(e)) for the preceding fiscal year calculated after giving pro forma effect to any acquisition or disposition of assets (including, without limitation, in the form of Equity Interests) consummated by the Borrower or any of its Subsidiaries during such fiscal year in accordance with the Credit Agreement (each, a “Pro Forma Greenhouse Gas Emission Amount”), and all information ~~specified herein)~~supporting such calculations reasonably requested by Administrative Agent; (f) promptly after the same become publicly available, copies of all periodic and other reports, proxy statements and other materials filed by the Borrower or any Restricted Subsidiary with the Securities and Exchange Commission, or any Governmental Authority succeeding to any or all of the functions of said Commission, or with any domestic national securities exchange, or distributed to its shareholders generally, as the case may be; (g) promptly after the receipt thereof by the Borrower or any of the Restricted Subsidiaries, a copy of any “management letter” received by any such Person from its certified public accountants and the management’s response thereto; and (h) promptly, from time to time, such other information regarding the operations, business affairs and financial condition of the Borrower or any Restricted Subsidiary, or compliance with the terms of any Loan Document, as the Administrative Agent or any Lender (acting through the Administrative Agent) may reasonably request.

Appears in 1 contract

Samples: Credit Agreement (NRG Energy, Inc.)

Financial Statements, Reports, etc. Furnish to the Administrative Agent and, in the case of Section 5.04(f) or (~~which will promptly furnish such information to~~ g), the ~~Lenders):~~ applicable Lender: (a) within ~~90 days~~ five Business Days after the ~~end of~~ date in each fiscal year ~~(commencing~~ on which the Parent Borrower is required to file its Annual Report on Form 10-K with the ~~fiscal year ending December 31, 2016~~SEC (or would be required if the Parent Borrower is no longer required to file regular and periodic reports with the SEC), a in each case without giving effect to any extension thereof, the audited consolidated balance sheet and related consolidated statements of operations, changes in shareholders’ equity, comprehensive income and cash flows ~~and owners’ equity showing the financial position~~ of the ~~Borrower and~~ Parent Borrower, showing its ~~Subsidiaries~~ consolidated financial condition as of the close of such fiscal year and the ~~consolidated~~ results of ~~their~~ its operations and the operations of its consolidated subsidiaries during such year and setting forth in each case in comparative form the ~~corresponding~~ figures for the ~~prior~~ previous fiscal year, ~~which consolidated balance sheet and related statements of operations, cash flows and owners’ equity shall be accompanied by customary management’s discussion and analysis and~~ audited by independent public accountants of recognized national standing and accompanied by an opinion of such accountants (which ~~opinion~~ shall not be ~~qualified as~~ subject to ~~scope of audit~~ any “going concern” or like qualification or exception or any qualification or exception as to the ~~status~~ scope of the Borrower or any Material Subsidiary as a going concern, other than solely with respect to, or resulting solely from, an upcoming maturity date under any series of Indebtedness occurring within one year from the time such ~~opinion is delivered or any potential inability to satisfy a financial maintenance covenant on a future date or in a future period~~audit) to the effect that such consolidated financial statements fairly ~~present,~~ present in all material ~~respects,~~ respects the financial ~~position~~ condition and results of operations of the Parent Borrower and its ~~Subsidiaries~~ consolidated subsidiaries on a consolidated basis in accordance with ~~GAAP~~ GAAP; (~~it being understood that~~ b) within five Business Days after each date in each fiscal year on which the ~~delivery by the~~ Parent Borrower ~~of annual reports~~ is required to file a Quarterly Report on Form 10-K of the Borrower and its consolidated Subsidiaries shall satisfy the requirements of this Section 5.04(a) to the extent such annual reports include the information specified herein); (b) within 45 days after the end of each of the first three fiscal quarters of each fiscal year (commencing Q with the ~~fiscal quarter ending June 30, 2016~~SEC (or would be required if the Parent Borrower is no longer required to file regular and periodic reports with the SEC), a in each case without giving effect to any extension thereof, the unaudited consolidated balance ~~sheet~~ sheets and related consolidated statements of operations and cash flows ~~showing the financial position~~ of the ~~Borrower and~~ Parent Borrower, showing its ~~Subsidiaries~~ consolidated financial condition as of the close of such fiscal quarter and the ~~consolidated~~ results of ~~their~~ its operations and the operations of its consolidated subsidiaries during such fiscal quarter and the ~~then-~~then elapsed portion of the fiscal year ~~and, starting with the fiscal quarter ending September 30, 2016,~~ and setting forth in each case in comparative form the ~~corresponding~~ figures for the corresponding ~~periods of~~ period in the ~~prior~~ previous fiscal year, all of which shall be in reasonable detail, which consolidated balance sheet and related statements of operations and cash flows shall be accompanied by customary management’s discussion and analysis and which consolidated balance sheet and related statements of operations and cash flows shall be certified by a one of its Financial ~~Officer of the Borrower on behalf of the Borrower~~ Officers as fairly ~~presenting,~~ presenting in all material ~~respects,~~ respects the financial ~~position~~ condition and results of operations of the Parent Borrower and its ~~Subsidiaries~~ consolidated subsidiaries on a consolidated basis in accordance with ~~GAAP (~~GAAP, subject to normal year-end audit adjustments and the absence of footnotes; (c) concurrently with any delivery of financial statements under paragraph (~~it being understood~~ a) or (b) above, a certificate in the form of Exhibit F (a “Compliance Certificate”) of a Financial Officer (i) certifying that no Event of Default or Default has occurred or, if such an Event of Default or Default has occurred, specifying the ~~delivery~~ nature and extent thereof and any corrective action taken or proposed to be taken with respect thereto and (ii) setting forth computations in detail reasonably satisfactory to the Agents demonstrating compliance with the Financial Covenants; (d) promptly upon receipt thereof, copies of any audit or other reports delivered to the board of directors of the Parent Borrower (or the audit committee of such board) by an independent registered public accounting firm in connection with such firm’s audit of the consolidated financial statements of the Parent Borrower if such reports identify material weaknesses in internal controls over financial reporting of the Parent Borrower; (e) promptly after the same become publicly available, copies of all periodic and other reports, proxy statements and other materials (other than filings under Section 16 of the Securities Exchange Act of 1934) filed by the Parent Borrower ~~of quarterly reports on Form 10-Q~~ or any Subsidiary with the SEC, or any Governmental Authority succeeding to any or all of the functions of said Commission, or with any national securities exchange, or distributed to its shareholders, as the case may be, and all press releases; (f) promptly, following a request by any Lender, all documentation and other information that such Lender reasonably requests in order to comply with its ongoing obligations under applicable “know your customer” and Anti-Money Laundering Laws, including the Patriot Act; (g) promptly, following a request by any Lender, an updated organizational chart of the Parent Borrower and its ~~consolidated Subsidiaries shall satisfy~~ subsidiaries; and (h) promptly, from time to time, such other information regarding the ~~requirements~~ operations, business affairs and financial condition of the Borrowers or any Subsidiary, or compliance with the terms of any Loan Document, as the Applicable Administrative Agent or any Lender may reasonably request. Documents required to be delivered pursuant to this Section 5.04 may be delivered electronically and, in the case of Sections 5.04(a), (b) or (e) shall be deemed to have been delivered if such documents, or one or more annual, quarterly or other reports or filings containing such documents (including, in the case of certifications required pursuant to Section 5.04(b~~) to~~ ), the ~~extent~~ certifications accompanying any such quarterly ~~reports include~~ report pursuant to Section 302 of the ~~information specified herein);~~Xxxxxxxx-

Appears in 1 contract

Samples: Syndicated Facility Agreement (Civeo Corp)

Financial Statements, Reports, etc. Furnish to the Administrative Agent (which will promptly furnish such information to the Lenders): (a) ~~within 90~~ no later than one hundred and fifty (150) days after the end of each fiscal year ~~(commencing~~ starting with the fiscal year ~~ending~~ ended December 31, ~~2016)~~2017, a consolidated balance ~~sheet~~ sheets and related statements of operations, cash flows and owners’ equity showing the financial position of the Borrower and its consolidated Subsidiaries as of the close of such fiscal year and the consolidated results of their operations during such year and (other than with respect to those for the fiscal years ending on December 31, 2017 and December 31, 2018) setting forth in comparative form the corresponding figures (if any) for the prior fiscal year, ~~which consolidated balance sheet and related statements of operations~~all (other than those for the fiscal year ending on December 31, ~~cash flows and owners’ equity shall be accompanied by customary management’s discussion and analysis and~~ 2017) audited by independent ~~public~~ accountants of recognized national standing reasonably acceptable to the Administrative Agent and accompanied by an opinion of such accountants (which ~~opinion~~ shall not be qualified ~~as to scope of audit or as to the status of the Borrower or~~ in any Material Subsidiary as a going concern, other than solely with respect to, or resulting solely from, an upcoming maturity date under any series of Indebtedness occurring within one year from the time such opinion is delivered or any potential inability to satisfy a financial maintenance covenant on a future date or in a future periodmaterial respect) to the effect that such consolidated financial statements fairly present, in all material respects, the financial position and results of operations of the Borrower and its Subsidiaries on a consolidated basis in accordance with GAAP (it being understood that the delivery by the Borrower of annual reports on Form 10-K of the Borrower and its consolidated Subsidiaries shall satisfy the requirements of this Section 5.04(a) to the extent such annual reports include the information specified herein)GAAP; (b) ~~within 45~~ no later than seventy five (75) days after the end of each of the first three (3) fiscal quarters of each fiscal ~~year (commencing~~ year, starting with the fiscal quarter ~~ending June 30~~ended March 31, ~~2016)~~2018, a consolidated balance ~~sheet~~ sheets and related statements of operations and cash flows showing the financial position of the Borrower and its consolidated Subsidiaries as of the close of such fiscal quarter and the consolidated results of their operations during such fiscal quarter and the then-elapsed portion of the fiscal year ~~and, starting~~ and (other than with respect to those for the fiscal ~~quarter~~ quarters ending ~~September 30, 2016,~~ during the 2018 fiscal year) setting forth in comparative form the corresponding figures (if any) for the corresponding periods of the prior fiscal year, all of which shall be in reasonable detail, which consolidated balance sheet and related statements of operations and cash flows shall be accompanied by customary management’s discussion and analysis and which consolidated balance sheet and related statements of operations and cash flows shall be certified by a Financial Officer of the ~~Borrower~~ Borrower, on behalf of the ~~Borrower~~ Borrower, as fairly presenting, in all material respects, the financial position and results of operations of the Borrower and its Subsidiaries on a consolidated basis in accordance with GAAP (subject to normal year-end audit adjustments and the absence of footnotes); (c) no later than two (2) Business Days after each Quarterly Date, with respect to the Test Quarter then ended on such Quarterly Date, a certificate of a Financial Officer of the Borrower in substantially the form of Exhibit G-2 or such other form as shall be approved by the Administrative Agent, (i) certifying that no Event of Default or Default has occurred and is continuing or, if such an Event of Default or Default has occurred and is continuing, specifying the nature and extent thereof and any corrective action taken or proposed to be taken with respect thereto, (ii) setting forth a computation of Available Cash for such Test Quarter in detail reasonably satisfactory to the Administrative Agent, (iii) providing evidence of the current balances in the Depositary Accounts (it being ~~understood~~ agreed that a screenshot of such balances as of such date or other similar statement from the Depositary Bank shall satisfy this clause (iii)) and (iv) setting forth a computation of the Financial Performance Covenant for such Test Quarter in detail reasonably satisfactory to the Administrative Agent; (d) (i) no later than five (5) Business Days after delivery thereof pursuant to any Project Level Financing Document, any audited annual financial statements of ExGen Renewables JV, Renewable Power Generation, LLC, Continental Wind, LLC, SolGen, LLC and AV Solar Ranch 1, LLC delivered to the agents, lenders or investors party thereto; (ii) no later than five (5) Business Days after delivery thereof pursuant to any Project Level Financing Document, unaudited quarterly financial statements of ExGen Renewables JV, Renewable Power Generation, LLC, Continental Wind, LLC, SolGen, LLC and AV Solar Ranch 1, LLC delivered to the agents, lenders or investors party thereto; and (iii) no later than five (5) Business Days after delivery thereof pursuant to any Project Level Financing Document, an officer’s certificate required thereunder relating to the satisfaction of distribution conditions and including calculations of any ratio tests required to be submitted with any such certificate pursuant to the terms of the applicable Project Level Financing Document; (e) no later than two (2) Business Days after each Excess Cash Flow Period, the Borrower will deliver to the Administrative Agent a certificate signed by a Financial Officer of the Borrower setting forth the amount, if any, of Excess Cash Flow for such Excess Cash Flow Period and the calculation thereof in reasonable detail, including the proposed allocation of such Excess Cash Flow pursuant to Section 2.19(c)(vii), in substantially the form of Exhibit G-1 or such other form as shall be approved by the Administrative Agent (which certificate shall serve as notice of prepayment pursuant to Section 2.08(d)); (f) promptly, from time to time, (i) copies of any original statement for the Local Accounts provided to the Borrower by the applicable depositary bank and (ii) such other information regarding the operations, business affairs and financial condition of any Loan Party or any Subsidiary of any Loan Party, or compliance with the terms of any Loan Document, as in each case the Administrative Agent may reasonably request (for itself or on behalf of any Lender); (g) (i) promptly (but in any event no later than five (5) Business Days) after consummation of the AG Disposition to a Person other than ExGen Renewables JV, certified copies of any Organization Documents and any other joint venture or similar agreements entered into in connection with such AG Disposition of any Additional Albany Green Entities and (ii) promptly upon receipt thereof, a copy of any “Interest Notice” (as defined in the Credit Support Reimbursement Agreement); (h) after the execution and delivery of any material amendment, modification, extension, assignment, variance or waiver of timely compliance of any terms or conditions of any Material Project Level Agreement or Organizational Documents of any Subsidiary of the Borrower or any new Material Project Level Agreement, the Borrower shall promptly furnish the Administrative Agent certified copies of such amendment, modification, extension, assignment, variance or waiver or new Material Project Level Agreement; and (i) on the Closing Date and no later than one hundred and fifty (150) days following the first day of each fiscal year of the Borrower, a budget (which budgets may be prepared on a cash basis) for the Loan Parties for such fiscal year setting forth (i) the projected Available Cash to be received by the Borrower or Holding during such fiscal year and (ii) the projected Operating Expenses of ~~quarterly reports on Form 10-Q~~ the Loan Parties during such fiscal year, together with (except in the case of the budget for the Closing Date) a comparison of the prior fiscal year’s budget to actual results, accompanied by a certificate of a Responsible Officer of the Borrower ~~and its consolidated Subsidiaries shall satisfy the requirements of this Section 5.04(b)~~ certifying to the ~~extent~~ knowledge of the person signatory thereto that such ~~quarterly reports include~~ budget is accurate and complete in all material respects based upon the Borrower’s good faith reasonable estimates of information ~~specified herein);~~contained therein.

Appears in 1 contract

Samples: Credit Agreement (Potomac Electric Power Co)

Financial Statements, Reports, etc. Furnish to the Administrative Agent (which will promptly furnish such information to the Lenders): (a) ~~within 90~~ no later than one hundred and fifty (150) days after the end of each fiscal year ~~(commencing~~ starting with the fiscal year ~~ending~~ ended December 31, ~~2016)~~2013, a consolidated balance ~~sheet~~ sheets and related statements of operations, cash flows and owners’ equity showing the financial position of the Borrower and its consolidated Subsidiaries as of the close of such fiscal year and the consolidated results of their operations during such year and setting forth in comparative form the corresponding figures (if any) for the prior fiscal year, ~~which consolidated balance sheet and related statements of operations, cash flows and owners’ equity shall be accompanied by customary management’s discussion and analysis and~~ all audited by independent ~~public~~ accountants of recognized national standing reasonably acceptable to the Administrative Agent and accompanied by an opinion of such accountants (which ~~opinion~~ shall not be qualified ~~as to scope of audit or as to the status of the Borrower or~~ in any Material Subsidiary as a going concern, other than solely with respect to, or resulting solely from, an upcoming maturity date under any series of Indebtedness occurring within one year from the time such opinion is delivered or any potential inability to satisfy a financial maintenance covenant on a future date or in a future periodmaterial respect) to the effect that such consolidated financial statements fairly present, in all material respects, the financial position and results of operations of the Borrower and its Subsidiaries on a consolidated basis in accordance with GAAP (it being understood that the delivery by the Borrower of annual reports on Form 10-K of the Borrower and its consolidated Subsidiaries shall satisfy the requirements of this Section 5.04(a) to the extent such annual reports include the information specified herein)GAAP; (b) ~~within 45~~ no later than seventy five (75) days after the end of each of the first three (3) fiscal quarters of each fiscal ~~year (commencing~~ year, starting with the fiscal quarter ~~ending~~ ended June 30, ~~2016)~~2014, a consolidated balance ~~sheet~~ sheets and related statements of operations and cash flows showing the financial position of the Borrower and its consolidated Subsidiaries as of the close of such fiscal quarter and the consolidated results of their operations during such fiscal quarter and the then-elapsed portion of the fiscal year ~~and, starting with the fiscal quarter ending September 30, 2016,~~ and setting forth in comparative form the corresponding figures (if any) for the corresponding periods of the prior fiscal year, all of which shall be in reasonable detail, which consolidated balance sheet and related statements of operations and cash flows shall be accompanied by customary management’s discussion and analysis and which consolidated balance sheet and related statements of operations and cash flows shall be certified by a Financial Officer of the ~~Borrower~~ Borrower, on behalf of the ~~Borrower~~ Borrower, as fairly presenting, in all material respects, the financial position and results of operations of the Borrower and its Subsidiaries on a consolidated basis in accordance with GAAP (subject to normal year-end audit adjustments and the absence of footnotes); (c) no later than two (2) Business Days after each Quarterly Date, with respect to the Test Quarter then ended on such Quarterly Date, a certificate of a Financial Officer of the Borrower in substantially the form of Exhibit G-2 or such other form as shall be approved by the Administrative Agent, (i) certifying that no Event of Default or Default has occurred and is continuing or, if such an Event of Default or Default has occurred and is continuing, specifying the nature and extent thereof and any corrective action taken or proposed to be taken with respect thereto, (ii) setting forth a computation of Available Cash for such Test Quarter in detail reasonably satisfactory to the Administrative Agent, (iii) providing evidence of the current balances in the Depositary Accounts (it being ~~understood~~ agreed that a screenshot of such balances as of such date or other similar statement from the Depositary Bank shall satisfy this clause (iii)) and (iv) setting forth a computation of the Financial Performance Covenant for such Test Quarter in detail reasonably satisfactory to the Administrative Agent; (d) (i) no later than five (5) Business Days after delivery thereof pursuant to Section 5.1(a)(ii) of the Project Credit Agreement (or similar Section under any other Continental Wind Bond Document), any audited annual financial statements of Continental Wind and its Subsidiaries delivered to the Project Bank Agent pursuant to such Section (or similar Section under any other Continental Wind Bond Document); (ii) no later than five (5) Business Days after delivery thereof pursuant to Section 5.1(a)(i) of the Project Credit Agreement (or similar Section under any other Continental Wind Bond Document), unaudited quarterly financial statements of Continental Wind and its Subsidiaries delivered to the Project Bank Agent pursuant to such Section (or similar Section under any other Continental Wind Bond Document); (iii) no later than five (5) Business Days after delivery thereof pursuant to Section 5.1(a)(iii), (iv) or (v) of the Project Credit Agreement (or similar Section under any other Continental Wind Bond Document), the officer’s certificate, operating report, operating plan and operating forecast referred to therein and any other financial statements, operations reports, operating plans, forecasts or budgets, capital or major maintenance expenditure plans or other similar reports, and compliance certificates delivered by Continental Wind to the Project Bank Agent pursuant to such Sections of the Project Credit Agreement (or similar Section under any other Continental Wind Bond Document) and (iv) no later than five (5) Business Days after delivery thereof pursuant to Section 6.1 of the Project Credit Agreement (or similar Section under any other Continental Wind Bond Document), the officer’s certificate referred to therein relating to distribution conditions; (e) no later than two (2) Business Days after each Excess Cash Flow Period, the Borrower will deliver to the Administrative Agent a certificate signed by a Financial Officer of the Borrower setting forth the amount, if any, of Excess Cash Flow for such Excess Cash Flow Period and the calculation thereof in reasonable detail, in substantially the form of Exhibit G-1 or such other form as shall be approved by the Administrative Agent (which certificate shall serve as notice of prepayment pursuant to Section 2.08(d)); (f) promptly, from time to time, such other information regarding the operations, business affairs and financial condition of any Loan Party or any Subsidiary of any Loan Party, or compliance with the terms of any Loan Document, as in each case the Administrative Agent may reasonably request (for itself or on behalf of any Lender); (g) after the execution and delivery of any material amendment, modification, extension, assignment, variance or waiver of timely compliance of any terms or conditions of any Material Project Level Agreement or Organizational Documents of any Subsidiary of the Borrower or any new Material Project Level Agreement, the Borrower shall promptly furnish the Administrative Agent certified copies of such amendment, modification, extension, assignment, variance or waiver or new Material Project Level Agreement; and (h) on the Closing Date and no later than one hundred and fifty (150) days following the first day of each fiscal year of the Borrower, a budget (which budgets may be prepared on a cash basis) for the Loan Parties for such fiscal year setting forth (i) the projected Available Cash to be received by the Borrower or Holdings during such fiscal year and (ii) the projected Operating Expenses of ~~quarterly reports on Form 10-Q~~ the Loan Parties during such fiscal year, together with a comparison of the prior fiscal year’s budget to actual results accompanied by an certificate of a Responsible Officer of the Borrower ~~and its consolidated Subsidiaries shall satisfy the requirements of this Section 5.04(b)~~ certifying to the ~~extent~~ knowledge of the person signatory thereto that such ~~quarterly reports include~~ budget is accurate and complete in all material respects based upon the Borrower’s good faith reasonable estimates of information ~~specified herein);~~contained therein.

Appears in 1 contract

Samples: Credit Agreement (Exelon Generation Co LLC)

Financial Statements, Reports, etc. Furnish to the Administrative Agent (which will promptly furnish such information to the Lenders): (a) within 90 days (or, if applicable, such shorter period as the SEC shall specify for the filing of Annual Reports on Form 10-K or, if applicable, such longer period permitted under Rule 12b-25 under the Exchange Act) after the end of each fiscal ~~year~~ year, (~~commencing with the fiscal year ending December 31, 2016),~~ i) a consolidated balance sheet and related statements of operations, cash flows and owners’ equity showing the financial position of the U.S. Borrower and its Subsidiaries as of the close of such fiscal year and the consolidated results of their operations during such year and setting forth in comparative form the corresponding figures for the prior fiscal year and (ii) management’s discussion and analysis of significant operational and financial developments during such fiscal year, which consolidated balance sheet and related statements of operations, cash flows and owners’ equity shall be ~~accompanied by customary management’s discussion and analysis and~~ audited by independent public accountants of recognized national standing and accompanied by an opinion of such accountants (which opinion shall not be qualified as to scope of audit or as to the status of the U.S. Borrower or any Material Subsidiary as a going concern, other than solely with respect to, or resulting solely from, an upcoming maturity date under any series of Indebtedness occurring within one year from the time such opinion is delivered or any potential inability to satisfy a financial maintenance covenant on a future date or in a future period) to the effect that such consolidated financial statements fairly present, in all material respects, the financial position and results of operations of the U.S. Borrower and its Subsidiaries on a consolidated basis in accordance with GAAP (it being understood that the delivery by the U.S. Borrower of ~~annual reports~~ Annual Reports on Form 10-K of the U.S. Borrower and its consolidated Subsidiaries shall satisfy the requirements of this Section 5.04(a) to the extent such ~~annual reports~~ Annual Reports include the information specified herein); (b) within 45 days (or, if applicable, such shorter period as the SEC shall specify for the filing of Quarterly Reports on Form 10-Q or, if applicable, such longer period permitted under Rule 12b-25 under the Exchange Act) after the end of each of the first three fiscal quarters of each fiscal ~~year~~ year, (~~commencing with the fiscal quarter ending June 30, 2016),~~ i) a consolidated balance sheet and related statements of operations and cash flows showing the financial position of the U.S. Borrower and its Subsidiaries as of the close of such fiscal quarter and the consolidated results of their operations during such fiscal quarter and the then-elapsed portion of the fiscal year ~~and, starting with the fiscal quarter ending September 30, 2016,~~ and setting forth in comparative form the corresponding figures for the corresponding periods of the prior fiscal ~~year~~year and (ii) management’s discussion and analysis of significant operational and financial developments during such quarterly period, all of which shall be in reasonable ~~detail, which consolidated balance sheet and related statements of operations and cash flows shall be accompanied by customary management’s discussion and analysis~~ detail and which consolidated balance sheet and related statements of operations and cash flows shall be certified by a Financial Officer of the U.S. Borrower on behalf of the U.S. Borrower as fairly presenting, in all material respects, the financial position and results of operations of the U.S. Borrower and its Subsidiaries on a consolidated basis in accordance with GAAP (subject to normal year-end audit adjustments and the absence of footnotes) (it being understood that the delivery by the U.S. Borrower of ~~quarterly reports~~ Quarterly Reports on Form 10-Q of the U.S. Borrower and its consolidated Subsidiaries shall satisfy the requirements of this Section 5.04(b) to the extent such quarterly reports include the information specified herein); (c) (x) concurrently with any delivery of financial statements under paragraph (a) or (b) above, a certificate of a Financial Officer of the U.S. Borrower (i) certifying that no Event of Default or Default has occurred or, if such an Event of Default or Default has occurred, specifying the nature and extent thereof and any corrective action taken or proposed to be taken with respect thereto, (ii) setting forth computations in reasonable detail demonstrating calculations of the Financial Performance Covenant (irrespective of the occurrence of the Availability Trigger Event), (iii) certifying a list of the names of all Unrestricted Subsidiaries and that each Subsidiary set forth on such list qualifies as an Unrestricted Subsidiary and (iv) setting forth the calculation of Excess Availability, each as of the end of the applicable fiscal period, and (y) concurrently with any delivery of financial statements under paragraph (a) above, if the accounting firm agrees to provide such report after the U.S. Borrower’s commercially reasonable efforts to obtain such report, a report of the accounting firm opining on or certifying such statements stating whether they obtained knowledge during the course of their examination of such statements of any Default or Event of Default resulting from non-compliance with the Financial Performance Covenant (which certificate may be limited to accounting matters and disclaims responsibility for legal interpretations); (d) promptly after the same become publicly available, copies of all periodic and other publicly available reports, proxy statements and, to the extent requested by the Administrative Agent, other materials filed by Holdings (prior to a Qualified IPO), the U.S. Borrower or any of its subsidiaries with the SEC, or after an initial public offering, distributed to its stockholders generally, as applicable; provided, however, that such reports, proxy statements, filings and other materials required to be delivered pursuant to this clause (d) shall be deemed delivered for purposes of this Agreement when posted to the website of the U.S. Borrower or publicly available through the XXXXX system; (e) within 90 days after the beginning of each fiscal year, a reasonably detailed consolidated annual budget for such fiscal year, including a description of underlying assumptions with respect thereto, which budget shall in each case be accompanied by the statement of a Financial Officer of the U.S. Borrower to the effect that such budget is based on assumptions believed by such Financial Officer to be reasonable as of the date of delivery thereof; (f) on or before the twentieth (20th) day following the end of each month, a Borrowing Base Certificate from the U.S. Borrower (on behalf of each Borrower) as of the last day of such immediately preceding month. Notwithstanding the foregoing, after the occurrence and during the continuance of an Availability Trigger Event, the U.S. Borrower shall, if requested by the Administrative Agent, execute and deliver to the Administrative Agent Borrowing Base Certificates weekly. The U.S. Borrower may, at its option, deliver Borrowing Base Certificates more frequently than required by the foregoing provisions of this Section 5.04(f); (g) upon the reasonable request of the Administrative Agent (not more than once annually), deliver an updated Perfection Certificate (or, to the extent such request relates to specified information contained in the Perfection Certificate, such information) reflecting all changes since the date of the information most recently received pursuant to this paragraph (g) or Section 5.10(e); (h) promptly, from time to time, such other information regarding the operations, business affairs and financial condition of Holdings (prior to a Qualified IPO), the U.S. Borrower or any of its Subsidiaries, or compliance with the terms of any Loan Document, as in each case the Administrative Agent may reasonably request (for itself or on behalf of any Lender); and (i) promptly upon request by the Administrative Agent, copies of: (i) each Schedule B (Actuarial Information) to the most recent annual report (Form 5500 Series) filed with the Internal Revenue Service with respect to a Plan; (ii) the most recent actuarial valuation report for any Plan; (iii) all notices received from a Multiemployer Plan sponsor, a plan administrator or any governmental agency, or provided to any Multiemployer Plan by Holdings (prior to a Qualified IPO), the U.S. Borrower, any Subsidiary or any ERISA Affiliate, concerning an ERISA Event; and (iv) such other documents or governmental reports or filings relating to any Plan or Multiemployer Plan as the Administrative Agent shall reasonably request and, with respect to any employee pension benefit plan or other employee benefit plan governed by the laws of a jurisdiction other than the United States of America, any available annual reports, actuarial valuation reports or notices from plan sponsors or any governmental entity with respect to such plans; (i) promptly following receipt thereof, copies of (i) any documents described in Section 101(k) of ERISA that Holdings, any Subsidiary or any ERISA Affiliate may request with respect to any Multiemployer Plan and (ii) any notices described in Section 101(l) of ERISA that Holdings (prior to a Qualified IPO), the U.S. Borrower, any Subsidiary or any ERISA Affiliate may request with respect to any Plan or Multiemployer Plan. (k) (i) if requested by the Administrative Agent, copies of each annual and other return, report or valuation with respect to each Canadian Pension Plan as filed with any applicable Governmental Authority; (ii) promptly after receipt thereof, a copy of any material direction, order, notice, ruling or opinion that any Loan Party may receive from any applicable Governmental Authority with respect to any Canadian Pension Plan; (iii) notification within 30 days of any increases having a cost to one or more of the Loan Parties in excess of $1,000,000 per annum in the aggregate, in the benefits of any existing Canadian Pension Plan or Canadian Benefit Plan, or the establishment of any new Canadian Pension Plan or Canadian Benefit Plan, or the commencement of contributions to any such plan to which any Loan Party was not previously contributing; and (iv) notification within 30 days of any voluntary or involuntary termination of, or participation in, a Canadian Pension Plan or a Canadian Benefit Plan, which could, in each case, reasonably be expected to (x) have a Material Adverse Effect or (y) result in a deficiency or any unfunded liability with respect to such Canadian Pension Plan.

Appears in 1 contract

Samples: Asset Based Revolving Credit Agreement (Momentive Specialty Chemicals Inc.)

Financial Statements, Reports, etc. Furnish to the Administrative Agent ~~(which will promptly furnish such information to the Lenders):~~and each Lender: (a) within 90 75 days after the end of each fiscal ~~year (commencing with the fiscal year ending December 31, 2016)~~year, a consolidated balance sheet and related consolidated statements of operations, cash flows and ~~owners~~stockholders’ equity showing the consolidated financial ~~position~~ condition of GrafTech, Global, the Borrower and ~~its~~ the Subsidiaries as of the close of such fiscal year and the consolidated results of their operations during such ~~year and setting forth in comparative form the corresponding figures for the prior fiscal~~ year, ~~which consolidated balance sheet and related statements of operations, cash flows and owners’ equity shall be accompanied by customary management’s discussion and analysis and~~ all audited by PricewaterhouseCoopers LLP or other independent public accountants of recognized national standing acceptable to the Administrative Agent (which acceptance shall not be unreasonably withheld) and accompanied by an opinion of such accountants (which ~~opinion~~ shall not be qualified ~~as to scope of audit or as to the status of the Borrower or~~ in any Material Subsidiary as a going concern, other than solely with respect to, or resulting solely from, an upcoming maturity date under any series of Indebtedness occurring within one year from the time such opinion is delivered or any potential inability to satisfy a financial maintenance covenant on a future date or in a future periodmaterial respect) to the effect that such consolidated financial statements fairly ~~present, in all material respects,~~ present the financial ~~position~~ condition and results of operations of GrafTech, Global, the Borrower and ~~its~~ the Subsidiaries on a consolidated basis in accordance with GAAP (it being understood that the delivery by the Borrower of annual reports on Form 10-K of the Borrower and its consolidated Subsidiaries shall satisfy the requirements of this Section 5.04(a) to the extent such annual reports include the information specified herein)GAAP; (b) within 45 40 days after the end of each of the first three fiscal quarters of each fiscal ~~year (commencing with the fiscal quarter ending June 30, 2016)~~year, a consolidated balance sheet and related consolidated statements of ~~operations and~~ operations, cash flows and stockholders’ equity showing the consolidated financial ~~position~~ condition of GrafTech, Global, the Borrower and ~~its~~ the Subsidiaries as of the close of such fiscal quarter and the consolidated results of their operations during such fiscal quarter and the then-elapsed portion of the fiscal ~~year and, starting with the fiscal quarter ending September 30, 2016, setting forth in comparative form the corresponding figures for the corresponding periods of the prior fiscal~~ year, all of which shall be in reasonable detail, which consolidated balance sheet and related statements of operations and cash flows shall be accompanied by customary management’s discussion and analysis and which consolidated balance sheet and related statements of operations and cash flows shall be certified ~~by a Financial Officer of the Borrower~~ on behalf of ~~the Borrower~~ Global by one of its Financial Officers as fairly ~~presenting, in all material respects,~~ presenting the financial ~~position~~ condition and results of operations of GrafTech, Global, the Borrower and ~~its~~ the Subsidiaries on a consolidated basis in accordance with GAAP (except for the absence of footnotes), subject to normal year-end audit ~~adjustments~~ adjustments; (c) concurrently with any delivery of financial statements under paragraph (a) or (b) above, (i) a certificate of such accountants or of Global signed by one of its Financial Officers opining on or certifying (which certificate, when furnished by such accountants, may be limited to accounting matters and disclaim responsibility for legal interpretations) (A) that no Event of Default or Default has occurred or, if an Event of Default or Default has occurred, specifying the nature and extent thereof and any corrective action taken or proposed to be taken with respect thereto, (B) as to computations which are set forth in detail reasonably satisfactory to the Administrative Agent demonstrating compliance with the covenants contained in Sections 7.10, 7.11 and 7.12 and (C) as to the amount of Available Disposition Proceeds, Equity Proceeds and the ~~absence~~ Base Credit Limit as of ~~footnotes)~~ the last day of the fiscal period reported on in such financial statements and setting forth computations in detail reasonably satisfactory to the Administrative Agent showing all transactions or other events increasing or decreasing such amounts (it being understood that the ~~delivery~~ information required by clauses (B) and (C) may be provided in a certificate of Global signed by one of its Financial Officers instead of from such accountants) and (ii) a certificate on behalf of Global signed by one of its Financial Officers certifying the outstanding principal amount and current rate of interest of each Intercompany Note and each Intercompany Foreign Borrower Note as of such fiscal quarter or fiscal year end, as the case may be; (d) promptly after the same become publicly available, copies of all periodic and other publicly available reports, proxy statements and, to the extent requested by the Administrative Agent, other publicly available materials filed by GrafTech, Global, the Borrower or any Subsidiary with the Securities and Exchange Commission, or any Governmental Authority succeeding to any or all the functions of ~~quarterly~~ said Commission, or with any national securities exchange, or distributed to its shareholders generally, as the case may be; (e) if, as a result of any change in accounting principles and policies from those as in effect on the date of this Agreement, the consolidated financial statements of GrafTech, Global, the Borrower and the Subsidiaries delivered pursuant to paragraph (a) or (b) above will differ in any material respect from the consolidated financial statements that would have been delivered pursuant to such paragraphs had no such change in accounting principles and policies been made, then, together with the first delivery of financial statements pursuant to paragraph (a) and (b) above following such change, a schedule prepared by Global signed by one of its Financial Officers reconciling such changes to what the financial statements would have been without such changes; (f) within 90 days after the beginning of each fiscal year, a copy of an operating and capital expenditure budget of GrafTech on a consolidated basis for such fiscal year; (g) promptly following the creation of or the initial acquisition of any equity interest in any Subsidiary, a certificate of Global signed by a Responsible Officer of Global identifying such new Subsidiary and the ownership interest of Global and the Subsidiaries therein; (h) within 90 days after the beginning of each fiscal year, and within 45 days after the end of each of the first three fiscal quarters of each fiscal year (or, in each case, sooner if available), a balance sheet and related statements of operations, cash flows and stockholder’s equity, for such fiscal year or such fiscal quarter and the fiscal year to date through the end of such fiscal quarter, respectively, for each Unrestricted Subsidiary and for each minority interest in respect of which the Loan Parties shall, directly or indirectly, have an aggregate outstanding investment in excess of $1,000,000; (i) promptly, a copy of all final reports ~~on Form~~ submitted in connection with any material interim or material special audit made by independent accountants of the books of GrafTech, Global, the Borrower or any Subsidiary; (j) within 180 days after the beginning of each fiscal year, the statutory accounts of Swissco for such fiscal year, audited by PricewaterhouseCoopers LLP or other independent public accountants of recognized standing internationally or in Switzerland acceptable to the Administrative Agent (which acceptance shall not be unreasonably withheld) and accompanied by (i) an opinion of such accountants (which shall not be qualified in any material respect) to the effect that such accounts present the financial condition and results of operations of Swissco in accordance with Swiss auditing standards, and (ii) a certificate of Swissco or Global signed by a Financial Officer of Swissco or Global setting forth (A) the Swissco Guarantee Amount as of the end of such fiscal year, (B) a description of any developments since the end of such fiscal year of which any Responsible Officer of Global or Swissco shall have obtained actual knowledge and which could reasonably be expected to result in a change in the Swissco Guarantee Amount of not less than the greater of $10,000,000 and 10% of the Swissco Guarantee Amount (or certifying that no such developments shall have occurred), and (C) a computation of the Swissco Guarantee Amount as of the date of such certificate in detail reasonably satisfactory to the Administrative Agent; (k) within 120 days after the beginning of each fiscal year, the Borrower shall deliver to the Administrative Agent a bring-Q down perfection certificate of the Borrower signed by one of its Financial Officers setting forth any information required so that the perfection certificate(s) delivered under the Security Agreements on the Effective Date shall be complete and ~~its consolidated Subsidiaries~~ correct as of the date of such bring-down perfection certificate; (l) promptly after Xxxxx’x or S&P shall ~~satisfy~~ have announced a change in (i) the ~~requirements~~ rating in effect for the senior, unsecured, long-term indebtedness for borrowed money of ~~this Section 5.04(b~~GrafTech, Global or the Borrower that is not guaranteed by any person (other than GrafTech, Global or the Borrower) or subject to any other credit enhancement or (ii) the ~~extent~~ issuer (or senior implied) rating in effect for GrafTech, written notice of such ~~quarterly reports include~~ rating change; (m) promptly following any request therefor, all documentation and other information required by bank regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the USA. Patriot Act; and (n) promptly, from time to time, such other information ~~specified herein);~~regarding the operations, business affairs and financial condition of GrafTech, Global, the Borrower or any Subsidiary or compliance with the terms of any Loan Document, or such consolidating financial statements, or such financial statements showing the results of operations of any Unrestricted Subsidiary, as in each case the Administrative Agent or any Lender, acting through the Administrative Agent, may reasonably request.

Appears in 1 contract

Samples: Credit Agreement (Graftech International LTD)

Financial Statements, Reports, etc. Furnish to the Administrative Agent and, in the case of Section 5.04(f) or (~~which will promptly furnish such information to~~ g), the ~~Lenders):~~applicable Lender: (a) within ~~90 days~~ five Business Days after the ~~end of~~ date in each fiscal year ~~(commencing~~ on which the Borrower is required to file its Annual Report on Form 10-K with the ~~fiscal year ending December 31, 2016~~SEC (or would be required if the Borrower is no longer required to file regular and periodic reports with the SEC), a in each case without giving effect to any extension thereof, the audited consolidated balance sheet and related consolidated statements of ~~operations~~income, stockholders’ equity and comprehensive income and cash flows ~~and owners’ equity showing the financial position~~ of the Borrower and its ~~Subsidiaries~~ Subsidiaries, showing its consolidated financial condition as of the close of such fiscal year and the ~~consolidated~~ results of ~~their~~ its operations and the operations of its consolidated Subsidiaries during such year and setting forth in each case in comparative form the ~~corresponding~~ figures for the ~~prior~~ previous fiscal year, ~~which consolidated balance sheet and related statements of operations, cash flows and owners’ equity shall be accompanied by customary management’s discussion and analysis and~~ audited by independent public accountants of recognized national standing and accompanied by an opinion of such accountants (which ~~opinion~~ shall not be ~~qualified as~~ subject to ~~scope of audit~~ any “going concern” or like qualification or exception or any qualification or exception as to the ~~status~~ scope of the Borrower or any Material Subsidiary as a going concern, other than solely with respect to, or resulting solely from, an upcoming maturity date under any series of Indebtedness occurring within one year from the time such ~~opinion is delivered or any potential inability to satisfy a financial maintenance covenant on a future date or in a future period~~audit) to the effect that such consolidated financial statements fairly ~~present,~~ present in all material ~~respects,~~ respects the financial ~~position~~ condition and results of operations of the Borrower and its consolidated Subsidiaries on a consolidated basis in accordance with GAAP (it being understood that the delivery by the Borrower of annual reports on Form 10-K of the Borrower and its consolidated Subsidiaries shall satisfy the requirements of this Section 5.04(a) to the extent such annual reports include the information specified herein)GAAP; (b) within ~~45 days~~ five Business Days after ~~the end of~~ each ~~of the first three fiscal quarters of~~ date in each fiscal year ~~(commencing~~ on which the Borrower is required to file a Quarterly Report on Form 10-Q with the ~~fiscal quarter ending June 30, 2016~~SEC (or would be required if the Borrower is no longer required to file regular and periodic reports with the SEC), a in each case without giving effect to any extension thereof, the unaudited consolidated balance ~~sheet~~ sheets and related condensed statements of operations and cash flows ~~showing the financial position~~ of the Borrower and its ~~Subsidiaries~~ Subsidiaries, showing its consolidated financial condition as of the close of such fiscal quarter and the ~~consolidated~~ results of ~~their~~ its operations and the operations of its consolidated Subsidiaries during such fiscal quarter and the ~~then-~~then elapsed portion of the fiscal year ~~and, starting with the fiscal quarter ending September 30, 2016,~~ and setting forth in each case in comparative form the ~~corresponding~~ figures for the corresponding ~~periods of~~ period in the ~~prior~~ previous fiscal year, all of which shall be in reasonable detail, which consolidated balance sheet and related statements of operations and cash flows shall be accompanied by customary management’s discussion and analysis and which consolidated balance sheet and related statements of operations and cash flows shall be certified by a one of its Financial ~~Officer of the Borrower on behalf of the Borrower~~ Officers as fairly ~~presenting,~~ presenting in all material ~~respects,~~ respects the financial ~~position~~ condition and results of operations of the Borrower and its consolidated Subsidiaries on a consolidated basis in accordance with ~~GAAP (~~GAAP, subject to normal year-end audit adjustments and the absence of footnotes; (c) concurrently with any delivery of financial statements under paragraph (~~it being understood~~ a) or (b) above, a certificate in the form of Exhibit I (a “Compliance Certificate”) of a Financial Officer (i) certifying that no Event of Default or Default has occurred or, if such an Event of Default or Default has occurred, specifying the ~~delivery~~ nature and extent thereof and any corrective action taken or proposed to be taken with respect thereto and (ii) setting forth computations in detail reasonably satisfactory to the Administrative Agent demonstrating compliance with the covenants contained in Sections 6.10, 6.11 and 6.12; (d) promptly upon receipt thereof, copies of any audit or other reports delivered to the board of directors of the Borrower (or the audit committee of such board) by an independent registered public accounting firm in connection with such firm’s audit of the consolidated financial statements of the Borrower if such reports identify material weaknesses in internal controls over financial reporting of the Borrower; (e) promptly after the same become publicly available, copies of all periodic and other reports, proxy statements and other materials (other than filings under Section 16 of the Securities Exchange Act of 1934) filed by the Borrower or any Subsidiary with the SEC, or any Governmental Authority succeeding to any or all of ~~quarterly reports~~ the functions of said Commission, or with any national securities exchange, or distributed to its shareholders, as the case may be, and all press releases; (f) promptly, following a request by any Lender, all documentation and other information that such Lender reasonably requests in order to comply with its ongoing obligations under applicable “know your customer” and anti-money laundering rules and regulations, including the Patriot Act; and the Beneficial Ownership Regulation; (g) promptly, from time to time, such other information regarding the operations, business affairs and financial condition of the Borrower or any Subsidiary, or compliance with the terms of any Loan Document, as the Administrative Agent or any Lender may reasonably request.; (h) on ~~Form 10-Q~~ or prior to June 30, 2020, (i) the unaudited consolidated balance sheet of the Borrower and its Subsidiaries, showing its consolidated financial condition as of May 31, 2020 certified by one of its Financial Officers as fairly presenting in all material respects the financial condition of the Borrower and its consolidated Subsidiaries ~~shall satisfy~~ on a consolidated basis in accordance with GAAP, subject to normal year-end audit adjustments and the ~~requirements~~ absence of ~~this~~ footnote, and (ii) a Borrowing Base Certificate calculating the Borrowing Base based on the monthly balance sheet delivered concurrently therewith; (i) as soon as available and in any event not later than 30 days after each calendar month end (commencing with June 30, 2020 and continuing through and including the calendar month end that occurs immediately prior to the delivery of the quarterly financial statements for the fiscal quarter ending March 31, 2021 as required under Section 5.04(b) above), (i) the monthly unaudited consolidated balance sheet of the Borrower and its Subsidiaries, showing its consolidated financial condition as of such calendar month end certified by one of its Financial Officers as fairly presenting in all material respects the financial condition on a consolidated basis in accordance with GAAP, subject to normal year-end audit adjustments and the ~~extent~~ absence of footnote, and (ii) a Borrowing Base Certificate certified by one of its Financial Officers calculating the Borrowing Base based on the monthly balance sheet delivered concurrently therewith; and (j) if the Cash Balance as of the last Business Day of any calendar week is greater than the Cash Balance Sweep Limit (or if otherwise requested by the Administrative Agent), a report by the immediately following Cash Balance Sweep Date setting forth the calculation of the Cash Balance as of such ~~quarterly reports include~~ last Business Day of the ~~information specified herein);~~subject calendar week and certified by a Financial Officer of the Borrower.

Appears in 1 contract

Samples: Amended and Restated Credit Agreement (Oil States International, Inc)

Financial Statements, Reports, etc. ~~Furnish~~ The Borrower will furnish to the ~~Administrative Agent (which will promptly furnish such information to the Lenders):~~Agents and each Lender: (a) as soon as available, and in any event within 90 105 days after the end of each ~~fiscal year~~ Fiscal Year (~~commencing with the fiscal year ending December 31, 2016), a~~ i) its consolidated and consolidating balance sheet and related consolidated and consolidating statements of ~~operations~~operations and cash flows, ~~cash flows and owners’ equity~~ showing the consolidated and consolidating financial position of the Borrower and its Consolidated Subsidiaries as of the close of such ~~fiscal year~~ Fiscal Year and the consolidated and consolidating results of their operations and cash flows during such ~~year and~~ year, in each case setting forth in comparative form the ~~corresponding~~ figures for the ~~prior fiscal year~~preceding Fiscal Year, ~~which~~ with all of the consolidated ~~balance sheet and related~~ statements ~~of operations, cash flows and owners’ equity shall be accompanied by customary management’s discussion and analysis and~~ having been audited by a nationally recognized independent public ~~accountants of recognized national standing~~ accounting firm and accompanied by an opinion of such accountants (which ~~opinion~~ shall not be qualified ~~as to scope of audit or as to the status of the Borrower or~~ in any Material Subsidiary as a going concern, other than solely with respect to, or resulting solely from, an upcoming maturity date under any series of Indebtedness occurring within one year from the time such opinion is delivered or any potential inability to satisfy a financial maintenance covenant on a future date or in a future periodmaterial respect) to the effect that such ~~consolidated~~ financial statements fairly ~~present, in all material respects,~~ present the consolidated financial position and consolidated results of operations and cash flows of the Borrower and its Consolidated Subsidiaries ~~on a consolidated basis~~ in accordance with GAAP consistently applied and (~~it being understood that the delivery by the Borrower~~ ii) copies of ~~annual reports~~ its Annual Report on Form 10-K ~~of the Borrower and its consolidated Subsidiaries shall satisfy~~ prepared in compliance with the requirements ~~of this Section 5.04(a) to~~ therefor and filed with the ~~extent such annual reports include the information specified herein)~~SEC; (b) as soon as available, and in any event within 45 days after the end of each of the first three fiscal quarters of each ~~fiscal year~~ Fiscal Year (~~commencing with the fiscal quarter ending June 30, 2016), a~~ i) its consolidated balance sheet and related consolidated statements of operations and cash ~~flows~~ flows, showing the consolidated financial position of the Borrower and its Consolidated Subsidiaries as of the close of such fiscal ~~quarter and~~ quarter, the consolidated results of their operations and cash flows during such fiscal quarter and the ~~then-~~then elapsed portion of such Fiscal Year and the ~~fiscal year~~ consolidated cash flows for the then elapsed portion of such Fiscal Year, all certified by one of its Financial Officers as fairly presenting the consolidated financial position and consolidated results of operations and cash flows of the Borrower and its Consolidated Subsidiaries in accordance with GAAP consistently applied, subject to normal year-end audit adjustments and (ii) copies of its Quarterly Report on form 10-Q prepared in compliance with the requirements therefore and filed with the SEC; (c) concurrently with any delivery of financial statements under paragraph (a) or (b) above, an Officer's Certificate of the Borrower certifying that no Default or Event of Default has occurred or, if such a Default or Event of Default has occurred, specifying the nature and extent thereof and any corrective action taken or proposed to be taken with respect thereto; (d) concurrently with any delivery of financial statements under paragraph (a) or (b) above, a certificate of a Financial Officer of the Borrower, substantially in the form of Exhibit F hereto, (i) setting forth computations in reasonable detail satisfactory to the Administrative Agent demonstrating compliance with the covenants contained in Sections 6.13 and 6.14, (ii) setting forth computations in reasonable detail satisfactory to the Administrative Agent demonstrating the Consolidated Pricing Ratio and (iii) stating whether, since the date of the most recent Required Financial Statements previously delivered, there has been any material change in the generally accepted accounting principles applied in the preparation of the Borrower's financial statements and, ~~starting~~ if so, describing such change; (e) promptly upon their becoming publicly available, copies of all (i) financial statements, reports, notices and proxy statements sent or made available by the Borrower to all of its security holders in compliance with the ~~fiscal quarter ending September 30~~Exchange Act or any comparable Federal or state laws relating to the disclosure by any person of information to its security holders, ~~2016~~(ii) all regular and periodic reports and all registration statements and prospectuses filed by the Borrower with any securities exchange or with the SEC, ~~setting forth~~ and (iii) all press releases and other statements made available by the Borrower or its Subsidiaries concerning material developments in ~~comparative form~~ the ~~corresponding figures for the corresponding periods~~ business of the ~~prior fiscal year~~Borrower or any of the Subsidiaries, ~~all~~ as the case may be; (f) promptly upon completion, but in any event not later than 45 days after the commencement of ~~which shall be in reasonable detail~~each Fiscal Year, ~~which~~ a copy of projections by the Borrower of its consolidated balance sheet and related consolidated statements of operations and cash flows ~~shall~~ for such Fiscal Year (including all material assumptions to such projections) and a budget for such Fiscal Year, all in form customarily prepared by the Borrower's management, such projected financial statements to be accompanied by ~~customary management’s discussion~~ a certificate of a Financial Officer to the effect that such projected financial statements have been prepared in good faith, based on assumptions that the Borrower believes to be reasonable and ~~analysis~~ based on the best information available to the Borrower and ~~which consolidated balance sheet~~ that such Financial Officer has no reason to believe they are misleading in any material respect in light of the circumstances existing at the time of preparation thereof; (g) at least 10 but not more than 30 days prior to any Permitted Acquisition, financial projections covering the period from the date of such Permitted Acquisition through the Revolving Credit Maturity Date giving effect to such Permitted Acquisition and ~~related statements of operations~~ demonstrating compliance by the Borrower on a pro forma basis with the covenants in Article VI from and ~~cash flows shall~~ after the date of, and after giving effect to such Permitted Acquisition through the Revolving Credit Maturity Date (such projections to be certified by a Financial Officer of the Borrower as having been prepared in good faith on ~~behalf~~ the basis of assumptions believed by the Borrower to be reasonable); (h) as soon as available, and in any event within 15 days of receipt, any final management letter issued or provided by the auditors of the Borrower ~~as fairly presenting~~or any Subsidiary; and (i) promptly, ~~in all material respects~~from time to time, such other information regarding the operations, business affairs and financial ~~position and results of operations~~ condition of the Borrower ~~and its Subsidiaries on a consolidated basis in accordance~~ or any Subsidiary, or compliance with ~~GAAP (subject to normal year-end audit adjustments and~~ the ~~absence~~ terms of footnotes) (it being understood that the delivery by the Borrower of quarterly reports on Form 10-Q of the Borrower and its consolidated Subsidiaries shall satisfy the requirements of this Section 5.04(b) to the extent such quarterly reports include the information specified herein);any Loan Document, as either Agent or any Lender may reasonably request.

Appears in 1 contract

Samples: Credit Agreement (Robbins & Myers Inc)

Financial Statements, Reports, etc. Furnish to the Administrative Agent (~~which~~ who will ~~promptly furnish such information~~ distribute to ~~the Lenders~~each Lender): (a) after the Effective Date, within 90 days after the end of each fiscal year (~~commencing with~~ or, in the case of the fiscal year ~~ending December 31~~in which the Effective Date occurs, ~~2016~~120 days), a its consolidated balance sheet and related statements of ~~operations,~~ income and cash flows ~~and owners’ equity~~ showing the financial ~~position~~ condition of the Borrower and its ~~Subsidiaries~~ consolidated subsidiaries as of the close of such fiscal year and the ~~consolidated~~ results of ~~their~~ its operations and the operations of such Persons during such ~~year and setting forth in~~ year, together with comparative ~~form the corresponding~~ figures for the ~~prior~~ immediately preceding fiscal year, ~~which consolidated balance sheet~~ all in reasonable detail and ~~related statements of operations~~prepared in accordance with GAAP, ~~cash flows and owners’ equity shall be accompanied by customary management’s discussion and analysis and~~ all audited by KPMG LLP or other independent public accountants of recognized national standing and accompanied by an opinion of such accountants (which opinion shall ~~not~~ be ~~qualified as to scope of audit~~ without a “going concern” or like qualification or exception and without any qualification or exception as to the ~~status~~ scope of such audit (except as resulting from (A) the impending maturity of any Indebtedness prior to the expiry of the ~~Borrower~~ four full fiscal quarter period following the relevant audit date, (B) the breach or anticipated breach of any ~~Material Subsidiary as a going concern, other than solely with respect to,~~ financial covenant and/or (C) the activities or ~~resulting solely from, an upcoming maturity date under~~ operations of any ~~series of Indebtedness occurring within one year from the time such opinion is delivered or any potential inability to satisfy a financial maintenance covenant on a future date or in a future period~~Unrestricted Subsidiaries)) to the effect that such consolidated financial statements fairly ~~present,~~ present in all material ~~respects,~~ respects the financial ~~position~~ condition and results of operations of the Borrower and its ~~Subsidiaries~~ consolidated subsidiaries on a consolidated basis in accordance with GAAP (it being understood that the delivery by the Borrower of annual reports on Form 10-K of the Borrower and its consolidated Subsidiaries shall satisfy the requirements of this Section 5.04(a) to the extent such annual reports include the information specified herein)GAAP; (b) commencing with the fiscal quarter ended March 31, 2018, within 45 days (or, in the case of the fiscal quarter ended March 31, 2018, the fiscal quarter in which the Effective Date occurs and the first full fiscal quarter ending after the Effective Date, 60 days) after the end of each of the first three fiscal quarters of each fiscal ~~year (commencing with the fiscal quarter ending June 30~~year, ~~2016), a~~ its consolidated balance sheet and related statements of ~~operations~~ income and cash flows showing the financial ~~position~~ condition of the Borrower and its ~~Subsidiaries~~ consolidated subsidiaries as of the close of such fiscal quarter and the ~~consolidated~~ results of ~~their~~ its operations and the operations of such Persons during such fiscal quarter and the ~~then-~~then elapsed portion of the fiscal ~~year and~~year, ~~starting with the~~ and for each fiscal quarter ~~ending September 30~~occurring after the first anniversary of the Effective Date, ~~2016, setting forth in~~ comparative ~~form the corresponding~~ figures for the ~~corresponding~~ same periods of in the ~~prior~~ immediately preceding fiscal year, all of which shall be in reasonable detail, which consolidated balance sheet and related statements of operations and cash flows shall be accompanied by customary management’s discussion and analysis and which consolidated balance sheet and related statements of operations and cash flows shall be certified by a Financial Officer ~~of the Borrower on behalf of the Borrower~~ as fairly ~~presenting,~~ presenting in all material ~~respects,~~ respects the financial ~~position~~ condition and results of operations of the Borrower and its ~~Subsidiaries~~ consolidated subsidiaries on a consolidated basis in accordance with ~~GAAP (~~GAAP, subject to normal year-end audit adjustments and the absence of footnotes; (c) concurrently with any delivery of Section 5.04 Financials, a certificate of a Financial Officer of the Borrower setting forth (~~it being understood~~ x) to the extent then in effect, computations in reasonable detail of the Consolidated First Lien Leverage Ratio as of the last day of the fiscal quarter or year, as the case may be, covered by such Section 5.04 Financials and demonstrating compliance with Section 6.10 and (y) in the case of a certificate delivered with the financial statements required by paragraph (a) above, setting forth the Borrower’s calculation of Excess Cash Flow; provided that such calculation shall not be required under this clause (y) to the extent no prepayment would be required under Section 2.13(c) with respect to the Fiscal Year to which such financial statements relate; (d) [reserved]; (e) simultaneously with the delivery of the Section 5.04 Financials, the related consolidating financial statements reflecting the adjustments necessary to eliminate the accounts of Unrestricted Subsidiaries from such consolidated financial statements (but only to the extent such Unrestricted Subsidiaries would not be considered “minor” under Rule 3-10 of Regulation S-X under the Securities Act); (f) [reserved]; (g) after the request by any Lender (through the ~~Borrower of quarterly~~ Administrative Agent), all documentation and other information that such Lender reasonably requests in order to comply with its ongoing obligations under applicable “know your customer” and anti-money laundering rules and regulations, including the USA PATRIOT Act; (h) promptly, from time to time, such other reports ~~on Form 10-Q~~ and information (financial or otherwise) as the Administrative Agent may reasonably request from time to time regarding the financial condition or business of the Borrower and its ~~consolidated Subsidiaries~~ Restricted Subsidiaries; provided, however, that none of the Borrower nor any Restricted Subsidiary shall ~~satisfy~~ be required to disclose or provide any information (a) that constitutes non-financial trade secrets or non-financial proprietary information of the Borrower or any of its subsidiaries or any of their respective customers and/or suppliers, (b) in respect of which disclosure to the Administrative Agent or any Lender (or any of their respective representatives) is prohibited by applicable law, (c) that is subject to attorney-client or similar privilege or constitutes attorney work product or (d) in respect of which the Borrower or any subsidiary owes confidentiality obligations to any third party (provided such confidentiality obligations were not entered into in contemplation of the requirements of this Section ~~5.04(b)~~ 5.04(h)); provided that in the event that the Borrower does not provide information that otherwise would be required to be provided hereunder in reliance on the exclusions in this paragraph relating to violation of any obligation of confidentiality, the Borrower shall use commercially reasonable efforts to provide notice to the ~~extent~~ Administrative Agent promptly upon obtaining knowledge that such information is being withheld (but solely if providing such notice would not violate such obligation of confidentiality); (i) [reserved]; and (j) within the time frame set forth in Section 7.02, on each occasion permitted therein, a Notice of Intent to Cure if a Cure Right will be exercised thereunder. Information required to be delivered pursuant to this Section 5.04 shall be deemed to have been delivered if such information, or one or more annual or quarterly reports ~~include~~ containing such information, shall have been posted by the ~~information specified herein);~~Administrative Agent on a SyndTrak, IntraLinks or similar site to which the Lenders have been granted access or shall be available on the website of the Securities and Exchange Commission at hxxx://xxx.xxx.xxx or on the website of the Borrower. Information required to be delivered pursuant to this Section 5.04 may also be delivered by electronic communications pursuant to procedures approved by the Administrative Agent. Each Lender shall be solely responsible for timely accessing posted documents and maintaining its copies of such documents. Notwithstanding the foregoing, if (i) the Borrower’s financial statements are consolidated with any Parent’s financial statements or (ii) any Parent is subject to periodic reporting requirements of the Securities Exchange Act of 1934 and the Borrower is not, then the requirement to deliver consolidated financial statements of the Borrower and its Restricted Subsidiaries (and the related opinion from independent public accountants) pursuant to Section 5.04(a) and (b) may be satisfied by delivering consolidated financial statements of such Parent (and the related opinion from independent public accountants) accompanied by a schedule showing, in reasonable detail, consolidating adjustments, if any, attributable solely to such Parent and any of their Subsidiaries that are not the Borrower or any of its Restricted Subsidiaries.

Appears in 1 contract

Samples: Credit Agreement (Ceridian HCM Holding Inc.)

Financial Statements, Reports, etc. Furnish to the Administrative Agent (which will promptly furnish such information to the Lenders): (a) within 90 one hundred twenty (120) days after the end of each fiscal year (commencing with ~~the~~ fiscal year 2019 ending ~~December 31~~on February 1, ~~2016~~2020), (x) a consolidated balance sheet and related statements of operations, cash flows and ~~owners~~stockholders’ equity showing the financial position of ~~the Borrower~~ Parent (or any Parent Entity) and its Subsidiaries as of the close of such fiscal year and the consolidated results of ~~their~~ its operations during such year and setting forth in comparative form the corresponding figures for the prior fiscal year, which consolidated balance sheet and related statements of operations, cash flows and ~~owners~~stockholders’ equity shall be ~~accompanied by customary management’s discussion and analysis and~~ audited by independent public accountants of recognized national standing and accompanied by an opinion of such accountants (which opinion shall not ~~be qualified as to scope~~ include (i) a “going concern” or like qualification or exception (other than a “going concern” qualification resulting from the maturity of Indebtedness within twelve (12) months of the relevant audit opinion or the breach or anticipated breach of any financial covenant) and (ii) any qualification or exception as to the ~~status~~ scope of the Borrower or any Material Subsidiary as a going concern, other than solely with respect to, or resulting solely from, an upcoming maturity date under any series of Indebtedness occurring within one year from the time such ~~opinion is delivered or any potential inability to satisfy a financial maintenance covenant on a future date or in a future period~~audit) to the effect that such consolidated financial statements fairly present, in all material respects, the financial ~~position~~ condition and results of operations of ~~the Borrower~~ Parent (or such Parent Entity) and its Subsidiaries on a consolidated basis in accordance with GAAP and (y) supporting schedules reconciling the consolidated balance sheet and related statements of operations and cash flows delivered pursuant to this paragraph with the consolidated financial condition and results of operations of the Lead Borrower for the relevant period (it being understood that the delivery by the Lead Borrower of annual reports on Form ~~10-K~~ 10‑K of the Lead Borrower (or any Parent Entity) and its consolidated Subsidiaries shall satisfy the requirements of this Section 5.04(a) to the extent such annual reports include the information specified herein); (b) within 45 sixty (60) days after the end of each of the first three (3) fiscal quarters of each fiscal year (commencing with the first fiscal quarter ~~ending June 30, 2016~~of the 2019 fiscal year), (x) a consolidated balance sheet and related statements of operations and cash flows showing the financial position of ~~the Borrower~~ Parent (or any Parent Entity) and its Subsidiaries as of the close of such fiscal quarter and the consolidated results of ~~their~~ its operations during such fiscal quarter and the then-elapsed portion of the fiscal year ~~and, starting with the fiscal quarter ending September 30, 2016,~~ and setting forth in comparative form the corresponding figures for the corresponding periods of the prior fiscal year, all of which shall be in reasonable ~~detail, which consolidated balance sheet and related statements of operations and cash flows shall be accompanied by customary management’s discussion and analysis~~ detail and which consolidated balance sheet and related statements of operations and cash flows shall be certified by a Financial Officer of the Parent (or such Parent Entity) as fairly presenting, in all material respects, the financial position and results of operations of Parent (or such Parent Entity) and its Subsidiaries on a consolidated basis in accordance with GAAP (subject to normal year-end audit adjustments and the absence of footnotes) and (y) supporting schedules reconciling the consolidated balance sheet and related statements of operations and cash flows delivered pursuant to this paragraph with the consolidated financial position and results of operations of the Lead Borrower for the relevant period (it being understood that the delivery by the Lead Borrower of quarterly reports on Form 10‑Q of the Lead Borrower (or any Parent Entity) and its consolidated Subsidiaries shall satisfy the requirements of this Section 5.04(b) to the extent such quarterly reports include the information specified herein); (c) concurrently with any delivery of financial statements under paragraphs (a) and (b) above, a certificate of a Financial Officer of the Lead Borrower in substantially the form attached hereto as Exhibit I (each, a “Compliance Certificate”), (i) which shall include a management’s discussion and analysis with respect to such financial statements (which shall be deemed provided by the delivery or filing with the SEC of a Form 10-K or Form 10-Q containing the MD&A required by applicable SEC rules), (ii) certifying that no Default or Event of Default has occurred or, if such a Default or an Event of Default has occurred, specifying the nature and extent thereof and any corrective action taken or proposed to be taken with respect thereto, (iii) setting forth the reasonably detailed calculations with respect to (A) the Consolidated Fixed Charge Coverage Ratio for such period and (B) the Available Basket Amount and the Excluded Contributions as of the last day of the fiscal quarter or fiscal year, as the case may be, covered by such financial statements or stating that there has been no change to such amounts since the date of delivery of the last compliance certificate, (iv) if applicable, providing (x) pro forma adjustments necessary to eliminate the accounts of Unrestricted Subsidiaries (if any) from the respective financial statements, (y) a list of each Immaterial Subsidiary as of the date of delivery of such certificate and (z) a list of each Unrestricted Subsidiary as of the date of delivery of such certificate; (d) promptly after the same become publicly available, copies of all periodic and other publicly available reports, proxy statements and, to the extent requested by the Administrative Agent, other materials filed by Parent, the Lead Borrower or any of its Subsidiaries with the SEC or any securities exchange or distributed to its stockholders generally, as applicable and all press releases and other statements made available generally by Parent or any of its Subsidiaries to the public concerning material developments in the business of Parent or any of its Subsidiaries; (e) within one hundred twenty (120) days after the beginning of each fiscal year, a detailed consolidated quarterly budget for such fiscal year (including a projected consolidated balance sheet of the Lead Borrower and its Subsidiaries as of the end of such fiscal year, and the related consolidated statements of projected cash flow and projected income) and, as soon as available, significant revisions, if any, of such budget and quarterly projections with respect to such fiscal year (to the extent that such revisions have been approved by the Lead Borrower’s (or any Parent Entity’s, as applicable) board of directors (or equivalent governing body)), including a description of underlying assumptions with respect thereto (collectively, the “Budget”), which Budget shall in each case be accompanied by the statement of a Financial Officer of the Lead Borrower to the effect that, to such Financial Officer’s knowledge, the Budget is a reasonable estimate for the period covered thereby (it being understood that the delivery by the Lead Borrower of annual reports on Form 10‑K of the Lead Borrower (or any Parent Entity) and its consolidated Subsidiaries shall satisfy the requirements of this Section 5.04(e) to the extent such annual reports include the information specified herein); (f) promptly following a request therefor, all documentation and other information that the Administrative Agent reasonably requests on its behalf or on behalf of any Lender in order to comply with its ongoing obligations under applicable “know your customer” and anti-money laundering rules and regulations, including the USA PATRIOT Act; (g) together with the delivery of the annual compliance certificate required by Section 5.04(c), deliver an updated Collateral Questionnaire reflecting any changes since the date of the information most recently received pursuant to this paragraph (g) or Section 5.09(f) (or, where relevant, notice that there have been no changes); (h) promptly following a reasonable request therefore from the Administrative Agent, copies of (i) any documents described in Sections 101(f) and/or (j) of ERISA with respect to any Plan, and/or (ii) any notices or documents described in Sections 101(f), (k) and/or (l) of ERISA requested with respect to any Multiemployer Plan; provided, that if any Loan Party or any ERISA Affiliate has not requested such documents or notices from the administrator or sponsor of the applicable Plan or Multiemployer Plan, then, upon reasonable request of the Administrative Agent, the Loan Party(ies) and/or the ERISA Affiliate(s) shall promptly make a request for such documents or notices from such administer or sponsor and the Borrowers shall provide copies of such documents and notices to the Administrative Agent promptly after receipt thereof; (i) promptly following a reasonable request from the Administrative Agent (for itself or on behalf of any Lender), from time to time, such other information regarding the operations, business affairs and financial condition of Parent, the Borrowers or any of their respective Subsidiaries, or compliance with the terms of any Loan Document; (j) as soon as reasonably practicable following a reasonable request from the Administrative Agent (for itself or on behalf of any Lender), from time to time, but no more frequently than quarterly (unless a Specified Event of Default then exists), a listing of each Borrower’s accounts receivables, specifying the account debtor and balance due, and a detailed aging report; (k) as soon as practicable after the end of each month and in any event no later than thirty (30) days after the end of each month, a retail stock ledger which shall be in form and detail reasonably satisfactory to the Administrative Agent; (l) during any Liquidity Period, within thirty (30) days after the end of each of the first two (2) fiscal months of each fiscal quarter, (x) a consolidated balance sheet and related statements of operations and cash flows showing the financial position of the Lead Borrower and its Subsidiaries as of the close of such fiscal month and the consolidated results of its operations during such fiscal month and the then-elapsed portion of the fiscal year and setting forth in comparative form the corresponding figures for the corresponding periods of the prior fiscal year, all of which shall be in reasonable detail and which consolidated balance sheet and related statements of operations and cash flows shall be certified by a Financial Officer of the Lead Borrower on behalf of the Lead Borrower as fairly presenting, in all material respects, the financial position and results of operations of the Lead Borrower and its Subsidiaries on a consolidated basis in accordance with GAAP (subject to normal year-end audit adjustments and the absence of footnotes) and (~~it being understood~~ y) management’s discussion and analysis with respect to such financial statements; and (m) the Borrowers shall promptly notify the Administrative Agent of any change in the information provided in the Beneficial Ownership Certification that would result in a change to the ~~delivery~~ list of beneficial owners identified in such certification. Documents required to be delivered pursuant to this Section 5.04 may be delivered electronically and if so delivered, shall be deemed to have been delivered on the date (unless received after 4:00 p.m. Local Time, in which case on the Business Day following the date) (i) on which a Borrower (or a representative thereof) (x) posts such documents or (y) provides a link thereto on the website of such Borrower on the Internet at the web address provided in Section 9.01 hereof; provided that, such Borrower shall promptly notify (which may be by facsimile or electronic mail) the Administrative Agent of the posting of any such documents on the website of such Borrower (or its applicable Subsidiary) and provide to the Administrative Agent by electronic mail electronic versions (i.e., soft copies) of such documents; (ii) on which such documents are delivered by a Borrower to the Administrative Agent for posting on behalf of such Borrower on SyndTrak or another relevant website, if any, to which each Lender and the Administrative Agent have access (whether a commercial, third-party website or whether sponsored by the ~~Borrower~~ Administrative Agent); (iii) on which executed certificates or other documents are faxed to the Administrative Agent (or electronically mailed to an address provided by the Administrative Agent); or (iv) in respect of ~~quarterly reports on~~ the items required to be delivered pursuant to Section 5.04(d) in respect of information filed by Parent or its direct or indirect parent with any securities exchange or with the SEC or any analogous governmental or private regulatory authority with jurisdiction over matters relating to securities (other than Form 10-Q reports and Form 10-K reports described in Sections 5.04(a) and (b)), on which such items have been made available on the SEC website or the website of the ~~Borrower~~ relevant analogous governmental or private regulatory authority or securities exchange. The Administrative Agent shall have no obligation to request the delivery of or to maintain paper copies of the documents referred to above and in any event shall have no responsibility to monitor compliance by the Borrowers with any such request by a Lender for delivery and each Lender shall be solely responsible for requesting delivery to it or maintaining its ~~consolidated Subsidiaries shall satisfy the requirements~~ copies of ~~this Section 5.04(b) to the extent~~ such ~~quarterly reports include the information specified herein);~~documents.

Appears in 1 contract

Samples: Credit Agreement (Ollie's Bargain Outlet Holdings, Inc.)

Financial Statements, Reports, etc. Furnish to the Administrative Agent (which will promptly furnish such information to the Lenders): (a1) Within 120 days following the end of the first fiscal year ended after the Closing Date, and within 90 days ~~after~~ following the end of each fiscal year ~~(commencing with the fiscal year ending December 31, 2016)~~thereafter, a consolidated balance sheet and related statements of operations, cash flows and owners’ equity showing the financial position of Holdings and the ~~Borrower and its~~ Restricted Subsidiaries as of the close of such fiscal year and the consolidated results of ~~their~~ its operations during such fiscal year ~~and~~ and, in each case, starting with the following fiscal year, setting forth in comparative form the corresponding figures for the prior fiscal year, which consolidated balance sheet and related statements of operations, cash flows and owners’ equity ~~shall~~ will be ~~accompanied by customary management’s discussion and analysis and~~ audited by independent public accountants of recognized national ~~standing~~ standing, or such other accountants as are reasonably acceptable to the Administrative Agent, and accompanied by an opinion of such accountants (which opinion shall not be ~~qualified as~~ subject to ~~scope of audit or as to the status of the Borrower or~~ any ~~Material Subsidiary as a~~ “going concern” statement, explanatory note or like qualification or exception (other than ~~solely with respect to~~a “going concern” statement, explanatory note or like qualification or exception resulting solely ~~from,~~ from an upcoming maturity date under ~~any series of Indebtedness~~ the ABL Facility or the Term Facility occurring within one year from the time such opinion is delivered or anticipated (but not actual) financial covenant non-compliance under the ABL Facility); provided that any ~~potential~~ such statement, explanatory note or like qualification or exception resulting from the actual inability to satisfy a financial ~~maintenance~~ covenant on in the ABL Facility shall be treated as a ~~future date or in a future period~~Financial Covenant Default for the purposes of Article VIII) to the effect that such consolidated financial statements fairly present, in all material respects, the financial position and results of operations of Holdings and the ~~Borrower and its~~ Restricted Subsidiaries on a consolidated basis in accordance with GAAP (it the applicable financial statements delivered pursuant to this clause (1) being ~~understood that~~ the delivery by the Borrower of annual reports on Form 10-K of the Borrower and its consolidated Subsidiaries shall satisfy the requirements of this Section 5.04(a) to the extent such annual reports include the information specified herein“Annual Financial Statements”); (b2) Within 75 days following the end of the first fiscal quarter ended after the Closing Date, and within 60 days following the end of the second fiscal quarter ended after the Closing Date (unless in each case such fiscal quarter is the last fiscal quarter of a fiscal year, in which case this clause (2) does not apply to such last fiscal quarter), and, thereafter, within 45 days ~~after~~ following the end of each of the first three fiscal quarters of each fiscal ~~year (commencing with the fiscal quarter ending June 30, 2016)~~year, a consolidated balance sheet and related statements of operations and cash flows showing the financial position of Holdings and the ~~Borrower and its~~ Restricted Subsidiaries as of the close of such fiscal quarter and the consolidated results of ~~their~~ its operations during such fiscal quarter ~~and~~ and, in each case, the then-elapsed portion of the fiscal year and, starting with the second fiscal ~~quarter ending September 30, 2016~~year after the Closing Date, setting forth in comparative form the corresponding figures for the corresponding periods of the prior fiscal year, ~~all of which shall be in reasonable detail,~~ which consolidated balance sheet and related statements of operations and cash flows ~~shall be accompanied by customary management’s discussion and analysis and which consolidated balance sheet and related statements of operations and cash flows shall~~ will be certified by a ~~Financial~~ Responsible Officer of ~~the Borrower~~ Holdings on behalf of ~~the Borrower~~ Holdings as fairly presenting, in all material respects, the financial position and results of operations of Holdings and the ~~Borrower and its~~ Restricted Subsidiaries on a consolidated basis in accordance with ~~GAAP (~~GAAP, subject to normal year-end audit adjustments and the absence of ~~footnotes~~footnotes (the applicable financial statements delivered pursuant to this clause (2) being the “Quarterly Financial Statements” and, together with the Annual Financial Statements, the “Required Financial Statements”); (3) concurrently with any delivery of Required Financial Statements, a certificate of a Financial Officer of the Company: (a) certifying that no Default or Event of Default has occurred and is continuing or, if a Default or Event of Default has occurred and is continuing, specifying the nature and extent thereof and any corrective action taken or proposed to be taken with respect thereto; and (b) in the case of Annual Financial Statements only, certifying (x) a list of all Immaterial Subsidiaries, that each Subsidiary set forth on such list individually qualifies as an Immaterial Subsidiary and that all such Subsidiaries in the aggregate do not exceed the limitation set forth in clause (ii) of the definition of the term “Immaterial Subsidiary” and (y) a list of all Unrestricted Subsidiaries at such time and that each Subsidiary set forth on such list qualifies as an Unrestricted Subsidiary; (4) [reserved]; (5) within 120 days following the end of the first fiscal year ended after the Closing Date, and within 90 days following the end of each full fiscal year ended thereafter, a consolidated annual budget for such fiscal year in the form customarily prepared by Holdings (the “Budget”), which Budget will in each case be accompanied by the statement of a Financial Officer of Holdings on behalf of Holdings to the effect that the Budget is based on assumptions believed by Holdings to be reasonable as of the date of delivery thereof; (6) upon the reasonable request of the Collateral Agent, concurrently with the delivery of the Annual Financial Statements, an updated Perfection Certificate (or, to the extent such request relates to specified information contained in the Perfection Certificate, such information), or in the case of any non-US Loan Party, updated information relating to the Collateral consistent with such information provided on the Closing Date, in each case, reflecting all changes since the date of the information most recently received pursuant to this paragraph (6) or Section 5.10; (7) promptly, from time to time, such other information regarding the operations, business affairs, pension profile and financial condition of Holdings, the Borrowers or any Restricted Subsidiary, in each case, as the Administrative Agent may reasonably request (for itself or on behalf of any Lender); and (8) promptly upon the reasonable request of the Administrative Agent (so long as the following are obtainable using commercially reasonable measures), copies of any documents described in Section 101(k)(1) of ERISA that Holdings or any of its ERISA Affiliates may request with respect to any Multiemployer Plan; provided that if Holdings or any of its ERISA Affiliates has not requested such documents from the administrator or sponsor of the applicable Multiemployer Plan, Holdings or the applicable ERISA Affiliate shall be in compliance with this Section 5.04(8) by promptly making a request for such documents or notices from such administrator or sponsor and providing copies of such documents and notices to the Administrative Agent promptly after receipt thereof from the applicable administrator or sponsor of the applicable Multiemployer Plan. Anything to the contrary notwithstanding, the obligations in clauses (1) and (2) of this Section 5.04 may be satisfied with respect to financial information of Holdings and the Restricted Subsidiaries by furnishing (1) the applicable financial statements of any other Parent Entity or (2) Holdings’ (or any such other Parent Entity’s), as applicable, Form 10-K or 10-Q, as applicable, filed with the SEC; provided that with respect to each of the foregoing clauses (1) and (2), (a) to the extent such information relates to another Parent Entity, such information is accompanied by consolidating information that explains in reasonable detail the differences between the information relating to such Parent Entity, on the one hand, and the information relating to Holdings and the Restricted Subsidiaries on a standalone basis, on the other hand, and (b) to the extent such information is in lieu of information required to be provided under Section 5.04(1), such materials are accompanied by a report and opinion of independent public accountants of recognized national standing, or such other accountants as are reasonably acceptable to the Administrative Agent, and accompanied by an opinion of such accountants (which opinion shall not be subject to any “going concern” statement, explanatory note or like qualification or exception (other than a “going concern” statement, explanatory note or like qualification or exception resulting solely from an upcoming maturity date under the ABL Facility or the Term Facility occurring within one year from the time such opinion is delivered or anticipated (but not actual) financial covenant non-compliance under the ABL Facility); provided that any such statement, explanatory note or like qualification or exception resulting from the actual inability to satisfy a financial covenant in the ABL Facility shall be treated as a Financial Covenant Default for the purposes of Article VIII) (it being understood and agreed that if, in compliance with this paragraph, (x) Holdings provides audited financial statements of another Parent Entity and related report and opinion of accountants with respect thereto in lieu of information required to be provided under Section 5.04(1), no such audited financial information, opinion or report shall be required with respect to Holdings, (y) Holdings provides unaudited financial statements such Parent Entity in lieu of information required to be provided under Section 5.04(2), no such unaudited financial information shall be required with respect to Holdings and (z) Holdings provides a Budget of such Parent Entity in lieu of information required to be provided under Section 5.04(5), no such Budget shall be required with respect to Holdings; provided that for the ~~delivery by~~ avoidance of doubt, with respect to the ~~Borrower of quarterly reports on Form 10-Q of the Borrower~~ foregoing clauses (x), (y) and ~~its consolidated Subsidiaries shall satisfy the requirements of this Section 5.04(b~~(z), (i) to the extent such ~~quarterly reports include~~ information relates to a Parent Entity, such information is accompanied by consolidating information that explains in reasonable detail the differences between the information ~~specified herein~~relating to such Parent Entity, on the one hand, and the information relating to Holdings and the Restricted Subsidiaries on a standalone basis, on the other hand, and (ii) to the extent such information is in lieu of information required to be provided under Section 5.04(1);, such materials are accompanied by a report and opinion of independent public accountants of recognized national standing, or such other accountants as are reasonably acceptable to the Administrative Agent, and accompanied by an opinion of such accountants (which opinion shall not be subject to any “going concern” statement, explanatory note or like qualification or exception (other than a “going concern” statement, explanatory note or like qualification or exception resulting solely from an upcoming maturity date under the ABL Facility or the Term Facility occurring within one year from the time such opinion is delivered or anticipated or actual financial covenant non-compliance under the ABL Facility))). The obligations in clauses (1) and (2) of this Section 5.04 may be satisfied by delivery of financial information of Holdings and its Subsidiaries so long as such financial statements include a reasonably detailed presentation, either on the face of the financial statements or in the footnotes thereto, of the financial condition and results of operations of Holdings and the Restricted Subsidiaries separate from the financial condition and results of operations of the Unrestricted Subsidiaries of Holdings. Documents required to be delivered pursuant to this Section 5.04 may be delivered electronically in accordance with Section 10.01(5).

Appears in 1 contract

Samples: Term Loan Credit Agreement (Venator Materials PLC)

Financial Statements, Reports, etc. ~~Furnish~~ Guarantor shall deliver (or cause to ~~the Administrative Agent (which will promptly furnish such information~~ be delivered) to ~~the Lenders):~~Buyer: (a) as soon as available, but in any event within 90 days after the end of each fiscal year ~~(commencing with the fiscal year ending December 31, 2016)~~of Guarantor, a consolidated balance sheet ~~and related statements~~ of ~~operations, cash flows and owners’ equity showing the financial position of the Borrower~~ Guarantor and its Subsidiaries as of at the ~~close~~ end of such fiscal ~~year~~ year, and the related consolidated ~~results~~ statements of ~~their operations during~~ income or operations, changes in shareholders’ equity, and cash flows for such ~~year and~~ fiscal year, setting forth in each case in comparative form the ~~corresponding~~ figures for the ~~prior~~ previous fiscal year, ~~which consolidated balance sheet~~ all in reasonable detail and ~~related statements of operations~~prepared in accordance with GAAP, ~~cash flows and owners’ equity shall be accompanied by customary management’s discussion and analysis and~~ audited ~~by independent public accountants of recognized national standing~~ and accompanied by an a report and opinion of ~~such accountants (~~an independent certified public accountant of nationally recognized standing reasonably acceptable to the Buyer, which report and opinion shall be prepared in accordance with generally accepted auditing standards and shall not be ~~qualified as~~ subject to ~~scope of audit~~ any “going concern” or like qualification or exception or any qualification or exception as to the ~~status~~ scope of the Borrower or any Material Subsidiary as a going concern, other than solely with respect to, or resulting solely from, an upcoming maturity date under any series of Indebtedness occurring within one year from the time such opinion is delivered or any potential inability to satisfy a financial maintenance covenant on a future date or in a future period) to the effect that such consolidated financial statements fairly present, in all material respects, the financial position and results of operations of the Borrower and its Subsidiaries on a consolidated basis in accordance with GAAP (it being understood that the delivery by the Borrower of annual reports on Form 10-K of the Borrower and its consolidated Subsidiaries shall satisfy the requirements of this Section 5.04(a) to the extent such annual reports include the information specified herein)audit; (b) as soon as available, but in any event within 45 days after the end of each of the first three fiscal quarters of each fiscal year ~~(commencing with the fiscal quarter ending June 30, 2016)~~of Guarantor, a ~~consolidated~~ balance sheet ~~and related statements~~ of ~~operations and cash flows showing the financial position of the Borrower~~ Guarantor and its Subsidiaries as at the end of such fiscal quarter, the ~~close~~ related consolidated statements of income or operations for such fiscal quarter and for the ~~consolidated results~~ portion of ~~their operations during such~~ Guarantor’s fiscal ~~quarter~~ year then ended, and the ~~then-elapsed~~ related consolidated statements of changes in shareholders’ equity, and cash flows for the portion of ~~the~~ Guarantor’s fiscal year ~~and~~then ended, ~~starting with the fiscal quarter ending September 30, 2016,~~ in each case setting forth in comparative ~~form~~ form, as applicable, the ~~corresponding~~ figures for the corresponding ~~periods~~ fiscal quarter of the ~~prior~~ previous fiscal year and the corresponding portion of the previous fiscal year, all ~~of which shall be~~ in reasonable detail, ~~which consolidated balance sheet and related statements~~ certified by the chief executive officer, chief financial officer, treasurer or controller of ~~operations~~ Guarantor as fairly presenting the financial condition, results of operations, shareholders’ equity and cash flows ~~shall be accompanied by customary management’s discussion and analysis and which consolidated balance sheet and related statements~~ of operations and cash flows shall be certified by a Financial Officer of the Borrower on behalf of the Borrower as fairly presenting, in all material respects, the financial position and results of operations of the Borrower Guarantor and its Subsidiaries ~~on a consolidated basis~~ in accordance with ~~GAAP (~~GAAP, subject only to normal year-end audit adjustments and the absence of footnotes; and (c) promptly after Buyer’s request, such further information with respect to the financial affairs of Guarantor as may be reasonably requested by Buyer. Documents required to be delivered pursuant to the foregoing may be delivered by electronic communication (~~it being understood that~~ including email or otherwise) and if so delivered, shall be deemed to have been delivered on the ~~delivery~~ date (i) on which the applicable party transmits such documents via email, (ii) on which the applicable party posts such documents (excluding such documents with respect to Guarantor and its Subsidiaries), or provides a link thereto, on the applicable party’s website on the Internet at the website address listed on Schedule 1 hereto (which website address may be updated by Seller by notice to the Buyer), or (iii) on which such documents (excluding such documents with respect to Guarantor and its Subsidiaries) are posted on the applicable party’s behalf on an Internet or intranet website, if any, to which the Buyer has access (whether a commercial, third-party website or whether sponsored by the Borrower of quarterly reports on Form 10-Q of the Borrower and its consolidated Subsidiaries shall satisfy the requirements of this Section 5.04(b) to the extent such quarterly reports include the information specified hereinBuyer);.

Appears in 1 contract

Samples: Guaranty Agreement (Colony NorthStar Credit Real Estate, Inc.)

Financial Statements, Reports, etc. Furnish to the Administrative Agent (which will promptly furnish such information to the Lenders): (a) within 90 one hundred twenty (120) days after the end of each fiscal year (commencing with ~~the~~ fiscal year 2015 ending ~~December 31~~on January 30, 2016), (x) a consolidated balance sheet and related statements of operations, cash flows and ~~owners~~stockholders’ equity showing the financial position of ~~the Borrower~~ Parent and its Subsidiaries as of the close of such fiscal year and the consolidated results of ~~their~~ its operations during such year and setting forth in comparative form the corresponding figures for the prior fiscal year, which consolidated balance sheet and related statements of operations, cash flows and ~~owners~~stockholders’ equity shall be ~~accompanied by customary management’s discussion and analysis and~~ audited by independent public accountants of recognized national standing and accompanied by an opinion of such accountants (which opinion shall ~~not~~ be ~~qualified as to scope of audit~~ without a “going concern” or like qualification or exception and without any qualification or exception as to the ~~status~~ scope of the Borrower or any Material Subsidiary as a going concern, other than solely with respect to, or resulting solely from, an upcoming maturity date under any series of Indebtedness occurring within one year from the time such ~~opinion is delivered or any potential inability to satisfy a financial maintenance covenant on a future date or in a future period~~audit) to the effect that such consolidated financial statements fairly present, in all material respects, the financial ~~position~~ condition and results of operations of ~~the Borrower~~ Parent and its Subsidiaries on a consolidated basis in accordance with GAAP and (y) supporting schedules reconciling the consolidated balance sheet and related statements of operations and cash flows delivered pursuant to this paragraph with the consolidated financial condition and results of operations of the Lead Borrower for the relevant period (it being understood that the delivery by the Lead Borrower of annual reports on Form 10-K of the Lead Borrower (or any Parent Entity) and its consolidated Subsidiaries shall satisfy the requirements of this Section 5.04(a) to the extent such annual reports include the information specified herein); (b) within 45 sixty (60) days after the end of each of the first three (3) fiscal quarters of each fiscal year (commencing with the first fiscal quarter ~~ending June 30, 2016~~of the 2016 fiscal year), (x) a consolidated balance sheet and related statements of operations and cash flows showing the financial position of ~~the Borrower~~ Parent and its Subsidiaries as of the close of such fiscal quarter and the consolidated results of ~~their~~ its operations during such fiscal quarter and the then-elapsed portion of the fiscal year ~~and, starting with the fiscal quarter ending September 30, 2016,~~ and setting forth in comparative form the corresponding figures for the corresponding periods of the prior fiscal year, all of which shall be in reasonable ~~detail, which consolidated balance sheet and related statements of operations and cash flows shall be accompanied by customary management’s discussion and analysis~~ detail and which consolidated balance sheet and related statements of operations and cash flows shall be certified by a Financial Officer of the Parent as fairly presenting, in all material respects, the financial position and results of operations of Parent and its Subsidiaries on a consolidated basis in accordance with GAAP (subject to normal year-end audit adjustments and the absence of footnotes) and (y) supporting schedules reconciling the consolidated balance sheet and related statements of operations and cash flows delivered pursuant to this paragraph with the consolidated financial position and results of operations of the Lead Borrower for the relevant period (it being understood that the delivery by the Lead Borrower of quarterly reports on Form 10-Q of the Lead Borrower (or any Parent Entity) and its consolidated Subsidiaries shall satisfy the requirements of this Section 5.04(b) to the extent such quarterly reports include the information specified herein); (I) concurrently with any delivery of financial statements under paragraphs (a) and (b) above, a certificate of a Financial Officer of the Lead Borrower in substantially the form attached hereto as Exhibit I (each, a “Compliance Certificate”), (i) which shall include a management’s discussion and analysis with respect to such financial statements (which shall be deemed provided by the delivery or filing with the SEC of a Form 10-K or Form 10-Q containing the MD&A required by applicable SEC rules), (ii) certifying that no Default or Event of Default has occurred or, if such a Default or an Event of Default has occurred, specifying the nature and extent thereof and any corrective action taken or proposed to be taken with respect thereto, (iii) setting forth the reasonably detailed calculations with respect to (A) the Consolidated Fixed Charge Coverage Ratio and Total Leverage Ratio for such period and (B) the Available Basket Amount and the Excluded Contributions as of the last day of the fiscal quarter or fiscal year, as the case may be, covered by such financial statements or stating that there has been no change to such amounts since the date of delivery of the last compliance certificate, (iv) if applicable, providing (x) pro forma adjustments necessary to eliminate the accounts of Unrestricted Subsidiaries (if any) from the respective financial statements, (y) a list of each Immaterial Subsidiary as of the date of delivery of such certificate and (z) a list of each Unrestricted Subsidiary as of the date of delivery of such certificate and (II) concurrently with the delivery of financial statements under paragraph (a) above, a certificate of a Financial Officer of the Lead Borrower setting out a reasonably detailed calculation of Net Proceeds received during the applicable period by or on behalf of the Lead Borrower or any of the Restricted Subsidiaries subject to prepayment pursuant to Section 2.12(b) and the portions of such Net Proceeds that has been invested or are intended to be reinvested in accordance with the definition of “Net Proceeds”; (d) promptly after the same become publicly available, copies of all periodic and other publicly available reports, proxy statements and, to the extent requested by the Administrative Agent, other materials filed by Parent, the Lead Borrower or any of its Subsidiaries with the SEC or any securities exchange or distributed to its stockholders generally, as applicable and all press releases and other statements made available generally by Parent or any of its Subsidiaries to the public concerning material developments in the business of Parent or any of its Subsidiaries; (e) within one hundred twenty (120) days after the beginning of each fiscal year, a detailed consolidated quarterly budget for such fiscal year (including a projected consolidated balance sheet of the Lead Borrower and its Subsidiaries as of the end of such fiscal year, and the related consolidated statements of projected cash flow and projected income) and, as soon as available, significant revisions, if any, of such budget and quarterly projections with respect to such fiscal year (to the extent that such revisions have been approved by the Lead Borrower’s (or any Parent Entity’s, as applicable) board of directors (or equivalent governing body)), including a description of underlying assumptions with respect thereto (collectively, the “Budget”), which Budget shall in each case be accompanied by the statement of a Financial Officer of the Lead Borrower to the effect that, to such Financial Officer’s knowledge, the Budget is a reasonable estimate for the period covered thereby (it being understood that the delivery by the Lead Borrower of annual reports on Form 10-K of the Lead Borrower (or any Parent Entity) and its consolidated Subsidiaries shall satisfy the requirements of this Section 5.04(e) to the extent such annual reports include the information specified herein); (f) promptly following a request therefor, all documentation and other information that the Administrative Agent reasonably requests on its behalf or on behalf of any Lender in order to comply with its ongoing obligations under applicable “know your customer” and anti-money laundering rules and regulations, including the USA PATRIOT Act; (g) together with the delivery of the annual compliance certificate required by Section 5.04(c), deliver an updated Collateral Questionnaire reflecting any changes since the date of the information most recently received pursuant to this paragraph (g) or Section 5.09(f) (or, where relevant, notice that there have been no changes); (h) promptly following a reasonable request therefore from the Administrative Agent, copies of (i) any documents described in Sections 101(f) and/or (j) of ERISA with respect to any Plan, and/or (ii) any notices or documents described in Sections 101(f), (k) and/or (l) of ERISA requested with respect to any Multiemployer Plan; provided, that if any Loan Party or any ERISA Affiliate has not requested such documents or notices from the administrator or sponsor of the applicable Plan or Multiemployer Plan, then, upon reasonable request of the Administrative Agent, the Loan Party(ies) and/or the ERISA Affiliate(s) shall promptly make a request for such documents or notices from such administer or sponsor and the Borrowers shall provide copies of such documents and notices to the Administrative Agent promptly after receipt thereof; (i) promptly following a reasonable request from the Administrative Agent (for itself or on behalf of any Lender), from time to time, such other information regarding the operations, business affairs and financial condition of Parent, the Borrowers or any of their respective Subsidiaries, or compliance with the terms of any Loan Document; (j) as soon as reasonably practicable following a reasonable request from the Administrative Agent (for itself or on behalf of any Lender), from time to time, but no more frequently than quarterly (unless a Specified Event of Default then exists), a listing of each Borrower’s accounts receivables, specifying the account debtor and balance due, and a detailed aging report; (k) as soon as practicable after the end of each month and in any event no later than thirty (30) days after the end of each month, a retail stock ledger which shall be in form and detail reasonably satisfactory to the Administrative Agent; and (l) during any Liquidity Period, within thirty (30) days after the end of each of the first two (2) fiscal months of each fiscal quarter, (x) a consolidated balance sheet and related statements of operations and cash flows showing the financial position of the Lead Borrower and its Subsidiaries as of the close of such fiscal month and the consolidated results of its operations during such fiscal month and the then-elapsed portion of the fiscal year and setting forth in comparative form the corresponding figures for the corresponding periods of the prior fiscal year, all of which shall be in reasonable detail and which consolidated balance sheet and related statements of operations and cash flows shall be certified by a Financial Officer of the Lead Borrower on behalf of the Lead Borrower as fairly presenting, in all material respects, the financial position and results of operations of the Lead Borrower and its Subsidiaries on a consolidated basis in accordance with GAAP (subject to normal year-end audit adjustments and the absence of footnotes) and (~~it being understood that~~ y) management’s discussion and analysis with respect to such financial statements. Documents required to be delivered pursuant to this Section 5.04 may be delivered electronically and if so delivered, shall be deemed to have been delivered on the ~~delivery~~ date (unless received after 4:00 p.m. Local Time, in which case on the Business Day following the date) (i) on which a Borrower (or a representative thereof) (x) posts such documents or (y) provides a link thereto on the website of such Borrower on the Internet at the web address provided in Section 9.01 hereof; provided that, such Borrower shall promptly notify (which may be by facsimile or electronic mail) the Administrative Agent of the posting of any such documents on the website of such Borrower (or its applicable Subsidiary) and provide to the Administrative Agent by electronic mail electronic versions (i.e., soft copies) of such documents; (ii) on which such documents are delivered by a Borrower to the Administrative Agent for posting on behalf of such Borrower on SyndTrak or another relevant website, if any, to which each Lender and the Administrative Agent have access (whether a commercial, third-party website or whether sponsored by the ~~Borrower~~ Administrative Agent); (iii) on which executed certificates or other documents are faxed to the Administrative Agent (or electronically mailed to an address provided by the Administrative Agent); or (iv) in respect of ~~quarterly reports on~~ the items required to be delivered pursuant to Section 5.04(d) in respect of information filed by Parent or its direct or indirect parent with any securities exchange or with the SEC or any analogous governmental or private regulatory authority with jurisdiction over matters relating to securities (other than Form 10-Q reports and Form 10-K reports described in Sections 5.04(a) and (b)), on which such items have been made available on the SEC website or the website of the ~~Borrower~~ relevant analogous governmental or private regulatory authority or securities exchange. The Administrative Agent shall have no obligation to request the delivery of or to maintain paper copies of the documents referred to above and in any event shall have no responsibility to monitor compliance by the Borrowers with any such request by a Lender for delivery and each Lender shall be solely responsible for requesting delivery to it or maintaining its ~~consolidated Subsidiaries shall satisfy the requirements~~ copies of ~~this Section 5.04(b) to the extent~~ such ~~quarterly reports include the information specified herein);~~documents.

Appears in 1 contract

Samples: Credit Agreement (Ollie's Bargain Outlet Holdings, Inc.)

Financial Statements, Reports, etc. Furnish to the Administrative Agent (which will promptly furnish such information to the Lenders): (a) within 90 days (or such shorter period as the SEC shall specify for the filing of Annual Reports on Form 10-K) after the end of each fiscal ~~year (~~year, commencing with the fiscal year ~~ending~~ ended December 31, ~~2016)~~2009, a consolidated balance sheet and related statements of operations, cash flows and owners’ equity showing the financial position of Parent and the ~~Borrower and its~~ Subsidiaries as of the close of such fiscal year and the consolidated results of their operations during such year and setting forth in comparative form the corresponding figures for the prior fiscal year, ~~which consolidated balance sheet and related statements of operations, cash flows and owners’ equity shall be accompanied by customary management’s discussion and analysis and~~ all audited by independent public accountants of recognized national standing reasonably acceptable to the Administrative Agent and accompanied by an opinion of such accountants (which ~~opinion~~ shall not be qualified ~~as to scope of audit or as to the status of the Borrower or~~ in any Material Subsidiary as a going concern, other than solely with respect to, or resulting solely from, an upcoming maturity date under any series of Indebtedness occurring within one year from the time such opinion is delivered or any potential inability to satisfy a financial maintenance covenant on a future date or in a future periodmaterial respect) to the effect that such consolidated financial statements fairly present, in all material respects, the financial position and results of operations of Parent and the ~~Borrower and its~~ Subsidiaries on a consolidated basis in accordance with GAAP (it being understood that the delivery by ~~the Borrower~~ Parent of ~~annual reports~~ Annual Reports on Form 10-K of ~~the Borrower~~ Parent and its consolidated Subsidiaries shall satisfy the requirements of this Section 5.04(a) to the extent such ~~annual reports~~ Annual Reports include the information specified herein); (b) commencing with the fiscal quarter ended March 31, 2010, within 45 days (or such shorter period as the SEC shall specify for the filing of Quarterly Reports on Form 10-Q) after the end of each of the first three fiscal quarters of each fiscal ~~year (commencing with the fiscal quarter ending June 30, 2016)~~year, a consolidated balance sheet and related statements of operations and cash flows showing the financial position of Parent and the ~~Borrower and its~~ Subsidiaries as of the close of such fiscal quarter and the consolidated results of their operations during such fiscal quarter and the then-elapsed portion of the fiscal year ~~and, starting with the fiscal quarter ending September 30, 2016,~~ and setting forth in comparative form the corresponding figures for the corresponding periods of the prior fiscal year, all of which shall be in reasonable detail, which consolidated balance sheet and related statements of operations and cash flows shall be accompanied by customary management’s discussion and analysis and which consolidated balance sheet and related statements of operations and cash flows shall be certified by a Financial Officer of ~~the Borrower~~ Parent, on behalf of ~~the Borrower~~ Parent, as fairly presenting, in all material respects, the financial position and results of operations of Parent and the ~~Borrower and its~~ Subsidiaries on a consolidated basis in accordance with GAAP (subject to normal year-end audit adjustments and the absence of footnotes) (it being understood that the delivery by ~~the Borrower~~ Parent of ~~quarterly reports~~ Quarterly Reports on Form 10-Q of ~~the Borrower~~ Parent and its consolidated Subsidiaries shall satisfy the requirements of this Section 5.04(b) to the extent such ~~quarterly reports~~ Quarterly Reports include the information specified herein); (c) (x) concurrently with any delivery of financial statements under (a) or (b) above, a certificate of a Financial Officer of Parent (i) certifying that no Event of Default or Default has occurred or, if such an Event of Default or Default has occurred, specifying the nature and extent thereof and any corrective action taken or proposed to be taken with respect thereto and (ii) commencing with the fiscal period ending March 31, 2010, setting forth computations in reasonable detail satisfactory to the Administrative Agent demonstrating compliance with the covenants contained in Sections 6.10 and 6.11 and (y) concurrently with any delivery of financial statements under (a) above, a certificate of the accounting firm opining on or certifying such statements stating whether they obtained knowledge during the course of their examination of such statements of any Default or Event of Default (which certificate may be limited to accounting matters and disclaim responsibility for legal interpretations); (d) promptly after the same become publicly available, copies of all periodic and other publicly available reports, proxy statements and, to the extent requested by the Administrative Agent, other materials filed by Parent or any of its Subsidiaries with the SEC or distributed to the stockholders of Parent generally, as applicable; (e) if, as a result of any change in accounting principles and policies from those as in effect on the date hereof, the consolidated financial statements of Parent and the Subsidiaries delivered pursuant to paragraphs (a) or (b) above will differ in any material respect from the consolidated financial statements that would have been delivered pursuant to such clauses had no such change in accounting principles and policies been made, then, together with the first delivery of financial statements pursuant to paragraphs (a) and (b) above following such change, a schedule prepared by a Financial Officer on behalf of Parent reconciling such changes to what the financial statements would have been without such changes; (f) within 90 days after the beginning of each fiscal year, an operating and capital expenditure budget, in form satisfactory to the Administrative Agent prepared by Parent for each of the four fiscal quarters of such fiscal year prepared in reasonable detail, of Parent and the Subsidiaries, accompanied by the statement of a Financial Officer of Parent to the effect that, to the best of his knowledge, the budget is a reasonable estimate for the period covered thereby; (g) upon the reasonable request of the Administrative Agent, updated Perfection Certificates (or, to the extent such request relates to specified information contained in the Perfection Certificates, such information) reflecting all changes since the date of the information most recently received pursuant to this paragraph (g) or Section 5.10(e); (h) promptly, a copy of all reports submitted to the Board of Directors (or any committee thereof) of any of Parent or any Subsidiary (x) in connection with any material interim or special audit made by independent accountants of the books of Parent or any Subsidiary or (y) valuing the coal reserves or constituting, in whole or in part, a material mine plan or material change to any material mining plan; (i) promptly, from time to time, such other information regarding the operations (including all reports of reserves prepared by Parent or any of its Subsidiaries, or their consultants), business affairs and financial condition of Parent or any of the Subsidiaries, or compliance with the terms of any Loan Document, or such consolidating financial statements, as in each case the Administrative Agent may reasonably request (for itself or on behalf of any Lender); (j) promptly upon request by the Administrative Agent, copies of: (i) each Schedule B (Actuarial Information) to the annual report (Form 5500 Series) filed with the Internal Revenue Service with respect to a Plan; (ii) the most recent actuarial valuation report for any Plan; (iii) all notices received from a Multiemployer Plan sponsor or any governmental agency concerning an ERISA Event; and (iv) such other documents or governmental reports or filings relating to any Plan or Multiemployer Plan as the Administrative Agent shall reasonably request; (k) Deliver to the Administrative Agent for prompt further distribution to each Lender, simultaneously with the delivery of each set of consolidated financial statements referred to in Sections 5.04(a) and (b), a summary statement of revenues, EBITDA, assets and liabilities of subsidiaries of Parent that are Unrestricted Subsidiaries for the relevant period and use commercially reasonable efforts to make senior officers of Parent available to discuss such information or the information specified in Section 5.04(a) promptly after such information is delivered to the Administrative Agent. (l) The Borrower shall provide statutory financial information for Parent and such other financial information as the Administrative Agent shall reasonably request, together with the financial information required under Section 5.04(a) and (b). Documents required to be delivered pursuant to Section 5.04(a), 5.04(b) or 5.04(d) (to the extent any such documents are included in materials otherwise filed with the SEC) may be delivered electronically and if so delivered, shall be deemed to have been delivered on the date (i) on which Parent and the Borrower posts such documents, or provides a link thereto on the Parent’s website on the Internet, at xxx.xxxxxxx.xxx; provided that: Parent and the Borrower shall notify the Administrative Agent and each Lender (by telecopier or electronic mail) of the posting of any such documents and provide to the Administrative Agent by electronic mail electronic versions (i.e., soft copies) of such documents.

Appears in 1 contract

Samples: Credit Agreement (Alpha Natural Resources, Inc.)

Financial Statements, Reports, etc. ~~Furnish~~ Allied Waste shall furnish to the Administrative Agent (~~which will promptly~~ and the Administrative Agent shall furnish ~~such information~~ to ~~the Lenders~~each Lender): (a) within 90 ten days after the filing with the Securities and Exchange Commission of Allied Waste's Annual Report on Form 10-K with respect to each fiscal year (and in any event within 105 days after the end of ~~each~~ such fiscal ~~year (commencing with the fiscal year ending December 31, 2016~~year), ~~a consolidated~~ (x) its Consolidated balance sheet and related statements of operations, stockholders' equity and cash flows ~~and owners’ equity~~ showing the financial ~~position~~ condition of ~~the Borrower~~ Allied Waste and its Restricted Subsidiaries as of the close of such fiscal year and the ~~consolidated~~ results of ~~their~~ its operations and the operations of such Restricted Subsidiaries during such ~~year and setting forth in comparative form the corresponding figures for the prior fiscal~~ year, ~~which consolidated balance sheet and related statements of operations, cash flows and owners’ equity shall be accompanied by customary management’s discussion and analysis and~~ all audited by PricewaterhouseCoopers LLP or other independent public accountants of recognized national standing acceptable to the Administrative Agent and accompanied by an opinion of such accountants (which ~~opinion~~ shall not be qualified ~~as to scope of audit or as to the status of the Borrower or~~ in any Material Subsidiary as a going concern, other than solely with respect to, or resulting solely from, an upcoming maturity date under any series of Indebtedness occurring within one year from the time such opinion is delivered or any potential inability to satisfy a financial maintenance covenant on a future date or in a future periodmaterial respect) to the effect that such ~~consolidated~~ Consolidated financial statements fairly ~~present, in all material respects,~~ present the financial ~~position~~ condition and results of operations of ~~the Borrower~~ Allied Waste and its Restricted Subsidiaries on a ~~consolidated~~ Consolidated basis in accordance with GAAP (it being understood that such financial statements and opinion may be delivered, if included therein, in the ~~delivery by the Borrower~~ form of ~~annual reports~~ such Annual Report on Form 10-K and any related Annual Report to Stockholders); and (y) a calculation of the ~~Borrower~~ Leverage Ratio and ~~its consolidated Subsidiaries shall satisfy~~ Interest Coverage Ratio as at the ~~requirements~~ last day of ~~this Section 5.04(a) to the extent~~ and for such ~~annual reports include the information specified herein)~~fiscal year; (b) within 45 seven days after the ~~end~~ filing with the Securities and Exchange Commission of Allied Waste's Quarterly Report on Form 10-Q with respect to each of the first three fiscal quarters of each fiscal year (~~commencing with~~ and in any event within 60 days after the end of each such fiscal ~~quarter ending June 30, 2016~~quarter), ~~a consolidated~~ (x) its Consolidated balance sheet and related statements of ~~operations~~ operations, stockholders' equity and cash flows showing the financial ~~position~~ condition of ~~the Borrower~~ Allied Waste and its Restricted Subsidiaries as of the close of such fiscal quarter and the ~~consolidated~~ results of ~~their~~ its operations and the operations of such Restricted Subsidiaries during such fiscal quarter and the ~~then-~~then elapsed portion of the fiscal ~~year and, starting with the fiscal quarter ending September 30, 2016, setting forth in comparative form the corresponding figures for the corresponding periods of the prior fiscal~~ year, all of which shall be in reasonable detail, which consolidated balance sheet and related statements of operations and cash flows shall be accompanied by customary management’s discussion and analysis and which consolidated balance sheet and related statements of operations and cash flows shall be certified by a one of its Financial ~~Officer of the Borrower on behalf of the Borrower~~ Officers as fairly ~~presenting, in all material respects,~~ presenting the financial ~~position~~ condition and results of operations of ~~the Borrower~~ Allied Waste and its Restricted Subsidiaries on a ~~consolidated~~ Consolidated basis in accordance with ~~GAAP (~~GAAP, subject to normal year-end audit adjustments and ~~the absence~~ lack of ~~footnotes)~~ footnote disclosures (it being understood that such financial statements may be delivered, if included therein, in the ~~delivery by the Borrower~~ form of ~~quarterly reports~~ such Quarterly Report on Form 10-Q Q); and (y) a calculation of the ~~Borrower~~ Leverage Ratio and the Interest Coverage Ratio as at the last day of such fiscal quarter and for the Rolling Period then ended; (c) concurrently with any delivery of financial statements under paragraph (a) or (b) above, a certificate of the accounting firm or Financial Officer opining on or certifying such statements (which certificate, when furnished by an accounting firm, may be limited to accounting matters and disclaim responsibility for legal interpretations) (i) certifying that in making its examination in connection with rendering such opinion or certificate with respect to such statements, such Person has not obtained knowledge that an Event of Default or, if such certificate is of a Financial Officer, a Default has occurred or, if such Financial Officer has obtained knowledge that an Event of Default or, if such certificate is of a Financial Officer, Default has occurred, specifying the nature and extent thereof and any corrective action taken or proposed to be taken with respect thereto, (ii) setting forth computations in reasonable detail satisfactory to the Administrative Agent demonstrating compliance with the covenants contained in Sections 6.04, 6.05, 6.06, 6.08, 6.13, 6.14 and 6.15 and (iii) identifying in reasonable detail, and setting forth the amounts of, all Designated Excess Cash Expenditures and Non-Core Asset Sales made during the periods covered by such financial statements; (d) promptly upon request by the Administrative Agent (on its own behalf or at the request of any Lender), but only after the same become publicly available, copies of all periodic and other reports, proxy statements and other materials filed by any member of the Allied Group with the Securities and Exchange Commission, or any Governmental Authority succeeding to any or all of the functions of said Commission, or with any national securities exchange, or distributed to its shareholders, as the case may be; (e) at the time required for delivery of financial statements pursuant to paragraph (a) or (b) of this Section, (x) a report in form and substance reasonably satisfactory to the Administrative Agent of all Permitted Acquisitions consummated during the most recent fiscal quarter covered by such financial statements, which report shall identify, inter alia, each Permitted Acquisition having total Acquisition Consideration of $25,000,000 or more (a "Large Acquisition") and, for each Large Acquisition, a description of the total Acquisition Consideration therefor; and (y) a list of all entities that became or ceased to be Domestic Subsidiaries of Allied Waste during such fiscal quarter; (f) promptly from time to time, such other information regarding the operations, business affairs and financial condition of members of the Allied Group, or compliance with the terms of any Loan Document, as the Administrative Agent or any Lender acting through the Administrative Agent may reasonably request; and (g) within 90 days after the beginning of each fiscal year, a copy of the annual forecasts of Allied Waste, prepared by management of Allied Waste, in each case in form and detail reasonably satisfactory to the Administrative Agent, consisting of Consolidated balance sheets and related statements of operations and cash flows of Allied Waste and its ~~consolidated~~ Restricted Subsidiaries ~~shall satisfy~~ for such fiscal year and for each of the ~~requirements~~ following fiscal years occurring in whole or in part during the term of this ~~Section 5.04(b)~~ Agreement. Notwithstanding anything to the ~~extent such quarterly reports include~~ contrary in paragraphs (a) or (b) of this Section, the ~~information specified herein);~~Borrower may satisfy its obligations to deliver financial statements thereunder by delivering 100 consolidated financial statements including the results of operations, assets and liabilities of consolidated Unrestricted Subsidiaries that are Insurance Subsidiaries or RMI Subsidiaries.

Appears in 1 contract

Samples: Credit Agreement (Allied Waste Industries Inc)

Financial Statements, Reports, etc. (a) Furnish to the Administrative ~~Agent (~~Agent, which ~~will promptly~~ shall furnish ~~such information~~ to ~~the Lenders):~~each Issuing Bank and each Lender: (ai) within 90 days after the end of each fiscal year (commencing with the fiscal year ~~ending~~ ended December 31, ~~2016~~2018), a the Borrower’s consolidated balance sheet and related statements of ~~operations~~income, partners’ equity and cash flows ~~and owners’ equity~~ showing the financial ~~position~~ condition of the Borrower and its consolidated Subsidiaries as of the close of such fiscal year and the ~~consolidated~~ results of ~~their~~ its operations and the operations of such Subsidiaries during such ~~year and setting forth in~~ year, together with comparative ~~form the corresponding~~ figures for the ~~prior~~ immediately preceding fiscal year, ~~which consolidated balance sheet and related statements of operations, cash flows and owners’ equity shall be accompanied by customary management’s discussion and analysis and~~ all audited by KPMG LLP or other independent public accountants of recognized national standing and accompanied by an opinion of such accountants (which opinion shall ~~not~~ be ~~qualified as~~ without a “going concern” or like qualification or exception (except for any such qualification or exception pertaining to ~~scope~~ (x) one or more debt maturities occurring within 12 months of the relevant audit or (y) a breach or anticipated breach of financial covenants) and without any qualification or exception as to the ~~status~~ scope of the Borrower or any Material Subsidiary as a going concern, other than solely with respect to, or resulting solely from, an upcoming maturity date under any series of Indebtedness occurring within one year from the time such ~~opinion is delivered or any potential inability to satisfy a financial maintenance covenant on a future date or in a future period~~audit) to the effect that such consolidated financial statements fairly ~~present, in all material respects,~~ present the financial ~~position~~ condition and results of operations of the Borrower and its consolidated Subsidiaries on a consolidated basis in all material respects in accordance with GAAP ~~(it being understood that the delivery by the Borrower of annual reports on Form 10-K of the Borrower~~ consistently applied, together with a customary “management discussion and ~~its consolidated Subsidiaries shall satisfy the requirements of this Section 5.04(a) to the extent such annual reports include the information specified herein)~~analysis” provision; (bii) within 45 days after the end of each fiscal quarter (other than the final fiscal quarter of ~~the first three~~ any fiscal ~~quarters of each fiscal year~~ year) (commencing with the fiscal quarter ~~ending June~~ ended September 30, ~~2016~~2018), a the Borrower’s consolidated balance sheet and related statements of ~~operations~~ income, partners’ equity and cash flows showing the financial ~~position~~ condition of the Borrower and its consolidated Subsidiaries as of the close of such fiscal quarter and the ~~consolidated~~ results of ~~their~~ its operations and the operations of such Subsidiaries during such fiscal quarter and the ~~then-~~then elapsed portion of the fiscal ~~year and~~year, ~~starting with the fiscal quarter ending September 30, 2016, setting forth in~~ and comparative ~~form the corresponding~~ figures for the ~~corresponding~~ same periods of in the ~~prior~~ immediately preceding fiscal year, all of which shall be in reasonable detail, which consolidated balance sheet and related statements of operations and cash flows shall be accompanied by customary management’s discussion and analysis and which consolidated balance sheet and related statements of operations and cash flows shall be certified by a one of its Financial ~~Officer of the Borrower on behalf of the Borrower~~ Officers as fairly ~~presenting, in all material respects,~~ presenting the financial ~~position~~ condition and results of operations of the Borrower and its consolidated Subsidiaries on a consolidated basis in all material respects in accordance with GAAP (consistently applied, subject to normal year-end audit ~~adjustments~~ adjustments, together with a customary “management discussion and analysis” provision; (iii) concurrently with any delivery of financial statements under paragraph (i) or (ii) above, a certificate of a Financial Officer (the ~~absence~~ “Compliance Certificate”) in the form of ~~footnotes~~Exhibit J (x) certifying that no Event of Default or Default has occurred and is continuing or, if such an Event of Default or Default has occurred and is continuing, specifying the nature and extent thereof and any corrective action taken or proposed to be taken with respect thereto and (~~it being understood that~~ y) setting forth computations in reasonable detail reasonably satisfactory to the Administrative Agent demonstrating compliance with the Financial Covenants; (iv) concurrently with any delivery ~~by the Borrower~~ of ~~quarterly reports on Form 10-Q~~ financial statements under paragraph (i) above, an annual business plan and budget of the Borrower and its Restricted Subsidiaries on a consolidated ~~Subsidiaries shall satisfy~~ basis; (v) promptly after the ~~requirements~~ request by any Lender, all documentation and other information that such Lender reasonably requests in order to comply with its ongoing obligations under applicable “know your customer” and anti-money laundering rules and regulations, including the USA PATRIOT Act and the Beneficial Ownership Regulation; (vi) promptly after the occurrence thereof, notice of ~~this Section 5.04(b~~any change in the information provided in the mostly recently delivered Beneficial Ownership Certification (if any) that would result in a change to the ~~extent~~ list of beneficial owners identified in parts (c) or (d) of such Certification; and (vii) promptly, from time to time, such other information regarding the operations, business affairs and financial condition of the Borrower or any Restricted Subsidiary, or compliance with the terms of any Loan Document, as the Administrative Agent or any Lender may reasonably request. Information required to be delivered pursuant to Section 5.04(a)(i) and Section 5.04(a)(ii) above shall be deemed to have been delivered if such information, or one or more annual or quarterly reports ~~include~~ containing such information, shall be available on the website of the Securities Exchange Commission at xxxx://xxx.xxx.xxx and the Compliance Certificate delivered pursuant to Section 5.04(a)(iii) provides a statement regarding the availability of such information ~~specified herein);~~on such website. (b) Hold annual Lenders conference calls with management of the Borrower, no later than 30 days following the date of delivery of the documents described in Section 5.04(a)(i) above. (c) The financial statements delivered pursuant to Section 5.04(a)(i) and Section 5.04(a)(ii) above shall be accompanied by reasonably detailed segment reporting as required under GAAP, certified by a Financial Officer of the Borrower as fairly presenting the financial condition and results of operations of such segments in all material respects in accordance with GAAP consistently applied, subject to normal year-end audit adjustments.

Appears in 1 contract

Samples: Credit Agreement (Enviva Partners, LP)

Financial Statements, Reports, etc. Furnish to the Administrative Agent and, in the case of Section 5.04(f) or (~~which will promptly furnish such information to~~ g), the ~~Lenders):~~applicable Lender: (a) within ~~90 days~~ five Business Days after the ~~end of~~ date in each fiscal year ~~(commencing~~ on which the U.S. Borrower is required to file its Annual Report on Form 10-K with the ~~fiscal year ending December 31, 2016~~SEC (or would be required if the U.S. Borrower is no longer required to file regular and periodic reports with the SEC), a in each case without giving effect to any extension thereof, the audited consolidated balance sheet and related consolidated statements of ~~operations~~income, stockholders’ equity and comprehensive income and cash flows ~~and owners’ equity showing the financial position~~ of the ~~Borrower and~~ U.S. Borrower, showing its ~~Subsidiaries~~ consolidated financial condition as of the close of such fiscal year and the ~~consolidated~~ results of ~~their~~ its operations and the operations of its consolidated subsidiaries during such year and setting forth in each case in comparative form the ~~corresponding~~ figures for the ~~prior~~ previous fiscal year, ~~which consolidated balance sheet and related statements of operations, cash flows and owners’ equity shall be accompanied by customary management’s discussion and analysis and~~ audited by independent public accountants of recognized national standing and accompanied by an opinion of such accountants (which ~~opinion~~ shall not be ~~qualified as~~ subject to ~~scope of audit~~ any “going concern” or like qualification or exception or any qualification or exception as to the ~~status~~ scope of the Borrower or any Material Subsidiary as a going concern, other than solely with respect to, or resulting solely from, an upcoming maturity date under any series of Indebtedness occurring within one year from the time such ~~opinion is delivered or any potential inability to satisfy a financial maintenance covenant on a future date or in a future period~~audit) to the effect that such consolidated financial statements fairly ~~present,~~ present in all material ~~respects,~~ respects the financial ~~position~~ condition and results of operations of the U.S. Borrower and its ~~Subsidiaries~~ consolidated subsidiaries on a consolidated basis in accordance with GAAP (it being understood that the delivery by the Borrower of annual reports on Form 10-K of the Borrower and its consolidated Subsidiaries shall satisfy the requirements of this Section 5.04(a) to the extent such annual reports include the information specified herein)GAAP; (b) within ~~45 days~~ five Business Days after ~~the end of~~ each ~~of the first three fiscal quarters of~~ date in each fiscal year ~~(commencing~~ on which the U.S. Borrower is required to file a Quarterly Report on Form 10-Q with the ~~fiscal quarter ending June 30, 2016~~SEC (or would be required if the U.S. Borrower is no longer required to file regular and periodic reports with the SEC), a in each case without giving effect to any extension thereof, the unaudited consolidated balance ~~sheet~~ sheets and related condensed statements of operations and cash flows ~~showing the financial position~~ of the ~~Borrower and~~ U.S. Borrower, showing its ~~Subsidiaries~~ consolidated financial condition as of the close of such fiscal quarter and the ~~consolidated~~ results of ~~their~~ its operations and the operations of its consolidated subsidiaries during such fiscal quarter and the ~~then-~~then elapsed portion of the fiscal year ~~and, starting with the fiscal quarter ending September 30, 2016,~~ and setting forth in each case in comparative form the ~~corresponding~~ figures for the corresponding ~~periods of~~ period in the ~~prior~~ previous fiscal year, all of which shall be in reasonable detail, which consolidated balance sheet and related statements of operations and cash flows shall be accompanied by customary management’s discussion and analysis and which consolidated balance sheet and related statements of operations and cash flows shall be certified by a one of its Financial ~~Officer of the Borrower on behalf of the Borrower~~ Officers as fairly ~~presenting,~~ presenting in all material ~~respects,~~ respects the financial ~~position~~ condition and results of operations of the U.S. Borrower and its ~~Subsidiaries~~ consolidated subsidiaries on a consolidated basis in accordance with ~~GAAP (~~GAAP, subject to normal year-end audit adjustments and the absence of footnotes; (c) concurrently with any delivery of financial statements under paragraph (a) or (b) above, a certificate in the form of Exhibit I (a “Compliance Certificate”) of a Financial Officer (i) certifying that no Event of Default or Default has occurred or, if such an Event of Default or Default has occurred, specifying the nature and extent thereof and any corrective action taken or proposed to be taken with respect thereto and (ii) setting forth computations in detail reasonably satisfactory to the Agents demonstrating compliance with the covenants contained in Sections 6.10 and 6.11; (d) promptly upon receipt thereof, copies of any audit or other reports delivered to the board of directors of the U.S. Borrower (or the audit committee of such board) by an independent registered public accounting firm in connection with such firm’s audit of the consolidated financial statements of the U.S. Borrower if such reports identify material weaknesses in internal controls over financial reporting of the U.S. Borrower; (e) promptly after the same become publicly available, copies of all periodic and other reports, proxy statements and other materials (other than filings under Section 16 of the Securities Exchange Act of 1934) filed by the U.S. Borrower or any Subsidiary with the SEC, or any Governmental Authority succeeding to any or all of the functions of said Commission, or with any national securities exchange, or distributed to its shareholders, as the case may be, and all press releases; (f) promptly, following a request by any Lender, all documentation and other information that such Lender reasonably requests in order to comply with its ongoing obligations under applicable “know your customer” and anti-money laundering rules and regulations, including the Patriot Act; and (g) promptly, from time to time, such other information regarding the operations, business affairs and financial condition of the Borrowers or any Subsidiary, or compliance with the terms of any Loan Document, as the Applicable Administrative Agent or any Lender may reasonably request. Documents required to be delivered pursuant this Section 5.04 may be delivered electronically and, in the case of Sections 5.04(a), (b) or (e) shall be deemed to have been delivered if such documents, or one or more annual, quarterly or other reports or filings containing such documents (including, in the case of certifications required pursuant to Section 5.04(b), the certifications accompanying any such quarterly report pursuant to Section 302 of the Xxxxxxxx-Xxxxx Act of 2002), (i) shall have been posted or provided a link to on the U.S. Borrower’s website on the Internet at xxx.xxxxxxxxxxxxx.xxx, (ii) shall be available on the website of the SEC at xxxx://xxx.xxx.xxx or (iii) shall have been posted on the U.S. Borrower’s behalf on SyndTrak or another website, if any, to which each Lender and the Administrative Agents have access (whether a commercial, third-party website or whether sponsored by an Administrative Agent). No Administrative Agent shall have an obligation to request the delivery or to maintain copies of the documents referred to above, and in any event shall have no responsibility to monitor compliance by the U.S. Borrower with any such request for delivery, and each Lender shall be solely responsible for requesting delivery to it or maintaining its copies of such documents. The U.S. Borrower hereby acknowledges that (a) the Agents will make available to the Lenders and the Issuing Banks materials and/or information provided by or on behalf of the Loan Parties hereunder (collectively, the “Borrower Materials”) by posting the Borrower Materials on SyndTrak or another similar electronic system (the “Platform”) and (b) certain of the Lenders may be “public-side” Lenders (i.e., Lenders that do not wish to receive material non-public information with respect to any Loan Party or its securities) (~~it being understood that the delivery~~ each, a “Public Lender”). If any Borrower Materials are designated by the Loan Parties as “PRIVATE”, such Borrower ~~of quarterly reports on Form 10-Q~~ Materials will not be made available to that portion of the Platform designated “Public Investor,” which is intended to contain only information that (x) prior to any public offering of securities by any Loan Party, is of a type that would be contained in a customary offering circular for an offering of debt securities made in reliance on Rule 144A under the Securities Act or (y) following any public offering of securities by a Loan Party, is either publicly available or not material information (though it may be sensitive and proprietary) with respect to such Loan Party or its securities for purposes of United States Federal and State securities laws. The Agents shall be entitled to treat any Borrower Materials that are not marked “PRIVATE” or “CONFIDENTIAL” as not containing any material non-public information with respect to the Loan Parties or any securities for purposes of United States Federal and ~~its consolidated Subsidiaries shall satisfy the requirements of this Section 5.04(b)~~ state securities laws (provided, however, that to the extent such ~~quarterly reports include the information specified herein~~Borrower Materials constitute Information, they shall be treated as set forth in Section 9.16);.

Appears in 1 contract

Samples: Credit Agreement (Oil States International, Inc)

Financial Statements, Reports, etc. Furnish to the Administrative Agent ~~(which will promptly furnish such information to the Lenders):~~and each Lender: (a) within 90 days after the end of each fiscal ~~year (commencing with the fiscal year ending December 31, 2016)~~year, a consolidated balance sheet and related consolidated statements of operations, cash flows and ~~owners’~~ stockholders' equity showing the consolidated financial ~~position~~ condition of UCAR, Global, the Borrower and ~~its~~ the Subsidiaries as of the close of such fiscal year and the consolidated results of their operations during such ~~year and setting forth in comparative form the corresponding figures for the prior fiscal~~ year, ~~which consolidated balance sheet and related statements of operations, cash flows and owners’ equity shall be accompanied by customary management’s discussion and analysis and~~ all audited by KPMG LLP or other independent public accountants of recognized national standing reasonably acceptable to the Administrative Agent (which consent shall not be unreasonably withheld) and accompanied by an opinion of such accountants (which ~~opinion~~ shall not be qualified ~~as to scope of audit or as to the status of the Borrower or~~ in any Material Subsidiary as a going concern, other than solely with respect to, or resulting solely from, an upcoming maturity date under any series of Indebtedness occurring within one year from the time such opinion is delivered or any potential inability to satisfy a financial maintenance covenant on a future date or in a future periodmaterial respect) to the effect that such consolidated financial statements fairly ~~present, in all material respects,~~ present the financial ~~position~~ condition and results of operations of UCAR, Global, the Borrower and ~~its~~ the Subsidiaries on a consolidated basis in accordance with GAAP (it being understood that the delivery by the Borrower of annual reports on Form 10-K of the Borrower and its consolidated Subsidiaries shall satisfy the requirements of this Section 5.04(a) to the extent such annual reports include the information specified herein)GAAP; (b) within 45 days after the end of each of the first three fiscal quarters of each fiscal ~~year (commencing with the fiscal quarter ending June 30, 2016)~~year, a consolidated balance sheet and related consolidated statements of ~~operations and~~ operations, cash flows and stockholders' equity showing the consolidated financial ~~position~~ condition of UCAR, Global, the Borrower and ~~its~~ the Subsidiaries as of the close of such fiscal quarter and the consolidated results of their operations during such fiscal quarter and the then-elapsed portion of the fiscal ~~year and, starting with the fiscal quarter ending September 30, 2016, setting forth in comparative form the corresponding figures for the corresponding periods of the prior fiscal~~ year, all of which shall be in reasonable detail, which consolidated balance sheet and related statements of operations and cash flows shall be accompanied by customary management’s discussion and analysis and which consolidated balance sheet and related statements of operations and cash flows shall be certified by a one of its Financial ~~Officer of the Borrower~~ Officers on behalf of ~~the Borrower~~ Global as fairly ~~presenting, in all material respects,~~ presenting the financial ~~position~~ condition and results of operations of UCAR, Global, the Borrower and ~~its~~ the Subsidiaries on a consolidated basis in accordance with GAAP (except for the absence of footnotes), subject to normal year-end audit ~~adjustments~~ adjustments; (c) concurrently with any delivery of financial statements under paragraph (a) or (b) above, (i) a certificate of such accountants or of Global signed by one of its Financial Officers opining on or certifying such statements (which certificate, when furnished by such accountants, may be limited to accounting matters and disclaim responsibility for legal interpretations) (A) certifying that no Event of Default or Default has occurred or, if an Event of Default or Default has occurred, specifying the ~~absence of footnotes~~nature and extent thereof and any corrective action taken or proposed to be taken with respect thereto and (B) setting forth computations in detail reasonably satisfactory to the Administrative Agent demonstrating compliance with the covenants contained in Sections 7.10, 7.11 and 7.12 (it being understood that the ~~delivery~~ information required by this clause (B) may be provided in a certificate of Global signed by one of its Financial Officers instead of from such accountants) and (ii) a certificate on behalf of Global signed by a Financial Officer certifying the outstanding principal amount and current rate of interest of each Intercompany Note as of such fiscal quarter or fiscal year end, as the case may be; PROVIDED, HOWEVER, that in the event the Euro Equivalent of the outstanding principal amount of any Intercompany Note shall increase by EUR25,000,000 or more at any time between the dates on which certificates are, or are to be, delivered under this paragraph, the Borrower will give prompt notice to the Administrative Agent of such increase; (d) promptly after the same become publicly available, copies of all periodic and other publicly available reports, proxy statements and, to the extent requested by the Administrative Agent, other publicly available materials filed by UCAR, Global, the Borrower or any Subsidiary with the Securities and Exchange Commission, or any governmental authority succeeding to any or all the functions of ~~quarterly reports~~ said Commission, or with any national securities exchange, or distributed to its shareholders generally, as the case may be; (e) if, as a result of any change in accounting principles and policies from those as in effect on ~~Form 10-Q~~ the date of this Agreement, the consolidated financial statements of UCAR, Global, the Borrower and the Subsidiaries delivered pursuant to paragraph (a) or (b) above will differ in any material respect from the consolidated financial statements that would have been delivered pursuant to such paragraphs had no such change in accounting principles and policies been made, then, together with the first delivery of financial statements pursuant to paragraph (a) and (b) above following such change, a schedule prepared by Global signed by one of its ~~consolidated~~ Financial Officers reconciling such changes to what the financial statements would have been without such changes; (f) within 90 days after the beginning of each fiscal year, a copy of an operating and capital expenditure budget for such fiscal year; (g) promptly following the creation of or the initial acquisition of any equity interest in any Subsidiary, a certificate of Global signed by a Responsible Officer of Global identifying such new Subsidiary and the ownership interest of Global and the Subsidiaries ~~shall satisfy~~ therein; (h) simultaneously with the ~~requirements~~ delivery of ~~this Section 5.04(b~~any financial statements pursuant to paragraph (a) or (b) above, a balance sheet and related statements of operations, cash flows and stockholder's equity for the applicable period for each Unrestricted Subsidiary and for each minority interest in respect of which the Loan Parties shall, directly or indirectly, have an aggregate outstanding investment in excess of $1,000,000; (i) promptly, a copy of all final reports submitted in connection with any material interim or material special audit made by independent accountants of the books of UCAR, Global, the Borrower or any Subsidiary; and (j) promptly, from time to time, such other information regarding the ~~extent~~ operations, business affairs and financial condition of UCAR, Global, the Borrower or any Subsidiary or compliance with the terms of any Loan Document, or such ~~quarterly reports include~~ consolidating financial statements, or such financial statements showing the ~~information specified herein);~~results of operations of any Unrestricted Subsidiary, as in each case the Administrative Agent or any Lender, acting through the Administrative Agent, may reasonably request.

Appears in 1 contract

Samples: Credit Agreement (Ucar International Inc)

Financial Statements, Reports, etc. ~~Furnish~~ In the case of the Borrower, furnish to the Administrative ~~Agent~~ Agent, which shall furnish to each Lender: i. within one hundred twenty (~~which will promptly furnish such information to the Lenders): (a~~120) ~~within 90~~ days after the end of each fiscal ~~year (commencing with the fiscal year ending December 31~~year, ~~2016), a~~ its consolidated balance sheet and related statements of ~~operations~~income, stockholders’ equity and cash flows ~~and owners’ equity~~ showing the financial ~~position~~ condition of the Borrower and its Consolidated Subsidiaries as of the close of such fiscal year and the ~~consolidated~~ results of ~~their~~ its operations and the operations of such Subsidiaries during such ~~year and setting forth in~~ year, together with comparative ~~form the corresponding~~ figures for the ~~prior~~ immediately preceding fiscal year, ~~which consolidated balance sheet and related statements of operations, cash flows and owners’ equity shall be accompanied by customary management’s discussion and analysis and~~ all audited by Xxxx & Associates LLP or other independent public accountants of recognized national standing reasonably acceptable to the Administrative Agent and accompanied by an opinion of such accountants (which opinion shall ~~not~~ be ~~qualified as to scope of audit~~ without a “going concern” or like qualification or exception or explanatory note and without any qualification or exception as to the ~~status~~ scope of the Borrower or any Material Subsidiary as a going concern, other than solely with respect to, or resulting solely from, an upcoming maturity date under any series of Indebtedness occurring within one year from the time such ~~opinion is delivered or any potential inability to satisfy a financial maintenance covenant on a future date or in a future period~~audit) to the effect that such consolidated financial statements fairly ~~present,~~ present in all material ~~respects,~~ respects the financial ~~position~~ condition and results of operations of the Borrower and its Consolidated Subsidiaries on a consolidated basis in accordance with GAAP ~~(it being understood that the delivery by the Borrower of annual reports on Form 10-K of the Borrower~~ consistently applied, together with a customary “management’s discussion and ~~its consolidated Subsidiaries shall satisfy the requirements of this Section 5.04(a) to the extent such annual reports include the information specified herein)~~analysis”; ii. within sixty (b60) ~~within 45~~ days after the end of each of the first three fiscal quarters of each fiscal ~~year (commencing with the fiscal quarter ending June 30~~year, ~~2016), a~~ its consolidated balance sheet and related statements of ~~operations~~ income, stockholders’ equity and cash flows showing the financial ~~position~~ condition of the Borrower and its Consolidated Subsidiaries as of the close of such fiscal quarter and the ~~consolidated~~ results of ~~their~~ its operations and the operations of such Subsidiaries during such fiscal quarter and the ~~then-~~then elapsed portion of the fiscal ~~year~~ year, and, ~~starting~~ other than with respect to quarterly reports during the remainder of the first fiscal ~~quarter ending September 30~~year after the Closing Date, ~~2016, setting forth in~~ comparative ~~form the corresponding~~ figures for the ~~corresponding~~ same periods of in the ~~prior~~ immediately preceding fiscal year, all of which shall be in reasonable detail, which consolidated balance sheet and related statements of operations and cash flows shall be accompanied by customary management’s discussion and analysis and which consolidated balance sheet and related statements of operations and cash flows shall be certified by a one of its Financial ~~Officer of the Borrower on behalf of the Borrower~~ Officers as fairly ~~presenting,~~ presenting in all material ~~respects,~~ respects the financial ~~position~~ condition and results of operations of the Borrower and its Consolidated Subsidiaries on a consolidated basis in accordance with GAAP (consistently applied, subject to the absence of footnotes and normal year-end audit ~~adjustments and the absence~~ adjustments; iii. concurrently with any delivery of ~~footnotes~~financial statements under paragraph (a) or (~~it being understood that the delivery by~~ b) above, a certificate of a Financial Officer of the Borrower in the form of ~~quarterly reports on Form 10-Q~~ Exhibit D (i) certifying that no Event of Default or Default has occurred or, if such an Event of Default or Default has occurred, specifying the nature and extent thereof and any corrective action taken or proposed to be taken with respect thereto and (ii) setting forth computations in reasonable detail satisfactory to the Administrative Agent demonstrating compliance with the covenant contained in Section 6.12; iv. concurrently with any delivery of financial statements under paragraph (a) or (b) above, a certificate of a Financial Officer of the Borrower in form and substance reasonably satisfactory to the Administrative Agent setting forth as of a recent date, a true and complete list of all Hedging Agreements of the Borrower and each Subsidiary, the material terms thereof (including the type, term, effective date, termination date and notional amounts or volumes), any new credit support agreements relating thereto (other than Loan Documents), any margin required or supplied under any credit support document, and the counterparty to each such agreement; v. concurrently with any delivery of financial statements under clause (b) above and concurrently with the delivery of the Reserve Report pursuant to Section 5.15 (unless requested more frequently by the Administrative Agent), production and operating reports (the same to include information as to volumes produced and sold and the amount received by the Loan Parties) in respect of the Oil and Gas Properties of the Loan Parties given value in the most recently delivered Reserve Report; vi. as soon as available and in any event no later than 90 days after the commencement of each fiscal year of the Borrower a monthly cash flow budget and development plan for such fiscal year prepared by a Financial Officer of the Borrower detailing therein, inter alia, projected monthly production volumes and gross revenues from the Proved Reserves, general and administrative costs, operating costs, royalties and other burdens, commodity price assumptions, Taxes and budgeted Capital Expenditures together with a forecasted operating budget of the Borrower for the following year detailed on a monthly basis; vii. promptly after the same become publicly available, copies of all periodic and other reports, proxy statements and other materials filed by the Borrower or any Subsidiary with the SEC or with any national securities exchange, or distributed to its ~~consolidated Subsidiaries shall satisfy~~ shareholders, as the ~~requirements~~ case may be; viii. promptly after the receipt thereof by the Borrower or any of ~~this~~ the Subsidiaries, a copy of any “management letter” received by any such Person from its certified public accountants and the management’s response thereto; ix. promptly after the request by any Lender, all documentation and other information that such Lender reasonably requests in order to comply with its ongoing obligations under applicable “know your customer” and anti-money laundering rules and regulations, including the USA PATRIOT Act; x. promptly after the request by the Administrative Agent or any Lender, copies of (i) any documents described in Section ~~5.04(b~~101(k)(1) of ERISA that the Borrower or any of its ERISA Affiliates may request with respect to any Multiemployer Plan and (ii) any notices described in Section 101(l)(1) of ERISA that the Borrower or any of its ERISA Affiliates may request with respect to any Multiemployer Plan; xi. [reserved]; xii. promptly, from time to time, upon the Administrative Agent’s reasonable request, (i) other information that is delivered to any Person pursuant to the ~~extent~~ terms of any indenture, loan or other credit or other similar agreement with respect to Material Indebtedness, in each case, solely to such ~~quarterly reports include~~ Person in its capacity as an agent or a lender thereunder, in the same form as so delivered and (ii) such other information ~~specified herein);~~regarding the operations, business affairs and financial condition of the Borrower or any Subsidiary, or compliance with the terms of any Loan Document; and xiii. beginning with the quarter ending September 30, 2014, concurrently with any delivery of financial statements under paragraphs (a) and (b) above, notice of the date and time of a conference call with Lenders and the Administrative Agent to discuss such financial information, which conference call the Borrower shall host not later than ten (10) Business Days (or such other date as the Borrower and the Administrative Agent may agree) after such delivery.

Appears in 1 contract

Samples: Credit Agreement (Energy & Exploration Partners, Inc.)

Financial Statements, Reports, etc. ~~Furnish~~ In the case of the Borrowers, furnish to the Administrative ~~Agent (~~Agent, which ~~will promptly~~ shall furnish ~~such information~~ to ~~the Lenders):~~each Lender: (a) within 90 days after the end of each fiscal year ~~(commencing with the fiscal year ending December 31, 2016), a~~ Holdings’ consolidated balance sheet and related statements of ~~operations~~income, stockholders’ equity and cash flows ~~and owners’ equity~~ showing the financial ~~position~~ condition of ~~the Borrower~~ Holdings and its consolidated Restricted Subsidiaries as of the close of such fiscal year and the ~~consolidated~~ results of ~~their~~ its operations and the operations of such Restricted Subsidiaries during such ~~year and setting forth in~~ year, together with comparative ~~form the corresponding~~ figures for the ~~prior~~ immediately preceding fiscal year, ~~which consolidated balance sheet and related statements of operations, cash flows and owners’ equity shall be accompanied by customary management’s discussion and analysis and~~ all audited by PricewaterhouseCoopers or other independent registered public ~~accountants~~ accounting firm of recognized national standing and accompanied by an opinion of such accountants (which opinion shall ~~not~~ be ~~qualified as to scope of audit~~ without “going concern” or like qualifications or exceptions and without any qualification or exception as to the ~~status~~ scope of the Borrower or any Material Subsidiary as a going concern, other than solely with respect to, or resulting solely from, an upcoming maturity date under any series of Indebtedness occurring within one year from the time such ~~opinion is delivered or any potential inability to satisfy a financial maintenance covenant on a future date or in a future period~~audit) to the effect that such consolidated financial statements fairly ~~present,~~ present in all material ~~respects,~~ respects the financial ~~position~~ condition and results of operations of ~~the Borrower~~ Holdings and its consolidated Restricted Subsidiaries on a consolidated basis in accordance with ~~GAAP (it being understood~~ GAAP; provided that the ~~delivery by the Borrower~~ financial statements for each such fiscal year shall cover a period of ~~annual reports~~ four consecutive fiscal quarters ending on ~~Form 10-K of the Borrower and its consolidated Subsidiaries shall satisfy the requirements of this Section 5.04(a) to the extent such annual reports include the information specified herein)~~December 31; (b) within (i) 45 days after the end of each of the first three fiscal quarters of each fiscal ~~year~~ year, and (~~commencing with~~ ii) 90 days after the end of the last fiscal quarter ~~ending June 30~~of each fiscal year, ~~2016), a~~ Holdings’ consolidated balance sheet and related statements of ~~operations~~ income, stockholders’ equity and cash flows showing the financial ~~position~~ condition of ~~the Borrower~~ Holdings and its consolidated Restricted Subsidiaries as of the close of such fiscal quarter and the ~~consolidated~~ results of ~~their~~ its operations and the operations of such Restricted Subsidiaries during such fiscal quarter and the ~~then-~~then elapsed portion of the fiscal ~~year and~~year, ~~starting~~ and beginning with the fiscal quarter ending ~~September~~ June 30, ~~2016~~2012, ~~setting forth in~~ comparative ~~form the corresponding~~ figures for the ~~corresponding~~ same periods of in the ~~prior~~ immediately preceding fiscal year, all of which shall be in reasonable detail, which consolidated balance sheet and related statements of operations and cash flows shall be accompanied by customary management’s discussion and analysis and which consolidated balance sheet and related statements of operations and cash flows shall be certified by a Financial Officer of the ~~Borrower on behalf of the Borrower~~ Borrowing Agent as fairly ~~presenting,~~ presenting in all material ~~respects,~~ respects the financial ~~position~~ condition and results of operations of ~~the Borrower~~ Holdings and its consolidated Restricted Subsidiaries on a consolidated basis in accordance with ~~GAAP~~ GAAP; (~~subject~~ c) concurrently with any delivery of financial statements under paragraph (a) above, a certificate of the accounting firm (for fiscal years beginning on or after January 1, 2012), and concurrently with any delivery of financial statements under paragraph (a) or (b) above, a certificate of a Financial Officer of the Borrowing Agent opining on or certifying such statements (which certificate, when furnished by an accounting firm, may be limited to ~~normal year-end audit adjustments~~ accounting matters and ~~the absence of footnotes~~disclaim responsibility for legal interpretations) (~~it being understood~~ i) certifying that no Default has occurred or, if such a Default has occurred, specifying the ~~delivery by the Borrower of quarterly reports on Form 10-Q of the Borrower~~ nature and ~~its consolidated Subsidiaries shall satisfy the requirements of this Section 5.04(b~~extent thereof and any corrective action taken or proposed to be taken with respect thereto and (ii) setting forth computations in reasonable detail reasonably satisfactory to the ~~extent~~ Administrative Agent demonstrating compliance with the covenants contained in Section 6.10 (for certificates delivered prior to the Exit Facility Conversion Date) or Section 6.11 (for certificates delivered after the Exit Facility Conversion Date) (any such ~~quarterly reports include the information specified herein~~certificate furnished pursuant to this clause (c);, a

Appears in 1 contract

Samples: Superpriority Senior Secured Debtor in Possession and Exit Term Loan Credit Agreement (HMH Holdings (Delaware), Inc.)

Financial Statements, Reports, etc. Furnish to the Administrative Agent (which will promptly furnish such information to the Lenders): (a) within 120 days after the end of the fiscal year ending December 31, 2016 and within 90 days after the end of each fiscal year ~~(commencing with the fiscal year ending December 31, 2016)~~thereafter, a consolidated balance sheet and related statements of operations, cash flows and owners’ equity showing the financial position of the Borrower and its Subsidiaries as of the close of such fiscal year and the consolidated results of their operations during such year ~~and~~ and, starting with the fiscal year ending December 31, 2016, setting forth in comparative form the corresponding figures for the prior fiscal year, which consolidated balance sheet and related statements of operations, cash flows and owners’ equity shall be accompanied by customary management’s discussion and analysis and audited by independent public accountants of recognized national standing and accompanied by an opinion of such accountants (which opinion shall not be qualified as to scope of audit or as to the status of the Borrower or any Material Subsidiary as a going concern, other than solely with respect to, or resulting solely from, an upcoming maturity date under any series of Indebtedness occurring within one year from the time such opinion is delivered or any potential inability to satisfy a financial maintenance covenant on a future date or in a future period) to the effect that such consolidated financial statements fairly present, in all material respects, the financial position and results of operations of the Borrower and its Subsidiaries on a consolidated basis in accordance with GAAP (it being understood that the delivery by the Borrower of annual reports on Form 10-K (or any successor or comparable form) of the Borrower and its consolidated Subsidiaries shall satisfy the requirements of this Section 5.04(a) to the extent such annual reports include the information specified herein); (b) within 45 60 days after the end of each of the first three fiscal quarters of each fiscal year (commencing with the fiscal quarter ending ~~June~~ September 30, 2016), a consolidated balance sheet and related statements of operations and cash flows showing the financial position of the Borrower and its Subsidiaries as of the close of such fiscal quarter and the consolidated results of their operations during such fiscal quarter and the then-elapsed portion of the fiscal year and, starting with the fiscal quarter ending September 30, ~~2016~~2017, setting forth in comparative form the corresponding figures for the corresponding periods of the prior fiscal year, all of which shall be in reasonable detail, which consolidated balance sheet and related statements of operations and cash flows shall be accompanied by customary management’s discussion and analysis and which consolidated balance sheet and related statements of operations and cash flows shall be certified by a Financial Officer of the Borrower on behalf of the Borrower as fairly presenting, in all material respects, the financial position and results of operations of the Borrower and its Subsidiaries on a consolidated basis in accordance with GAAP (subject to normal year-end audit adjustments and the absence of footnotes) (it being understood that the delivery by the Borrower of quarterly reports on Form 10-Q (or any successor or comparable form) of the Borrower and its consolidated Subsidiaries shall satisfy the requirements of this Section 5.04(b) to the extent such quarterly reports include the information specified herein); provided, that with respect to the fiscal quarter ending September 30, 2016, the requirements under this clause (b) shall be satisfied if the Borrower, at its option, delivers the unaudited consolidated financial statements of the Company for the fiscal quarter ended September 30, 2016 substantially in the form of the unaudited consolidated financial statements of the Company delivered pursuant to Section 4.02(g); (c) (x) concurrently with any delivery of financial statements under clause (a) or (b) above, a certificate of a Financial Officer of the Borrower (i) certifying that no Event of Default or Default has occurred since the date of the last certificate delivered pursuant to this Section 5.04(c) or, if such an Event of Default or Default has occurred, specifying the nature and extent thereof and any corrective action taken or proposed to be taken with respect thereto, (ii) commencing with the end of the first full fiscal quarter ending after the Closing Date, setting forth computations in reasonable detail demonstrating compliance with the Financial Covenant and (iii) setting forth the calculation and uses of the Cumulative Credit for the fiscal period then ended if the Borrower shall have used the Cumulative Credit for any purpose during such fiscal period and (y) concurrently with any delivery of financial statements under clause (a) above, if the accounting firm is not restricted from providing such a certificate by its policies office, a certificate of the accounting firm opining on or certifying such statements stating whether they obtained knowledge during the course of their examination of such statements of any Default or Event of Default (which certificate may be limited to accounting matters and disclaim responsibility for legal interpretations); (d) promptly after the same become publicly available, copies of all periodic and other publicly available reports, proxy statements and, to the extent requested by the Administrative Agent, other materials filed by Holdings (prior to a Qualified IPO), the Borrower or any of the Subsidiaries with the SEC, or after an initial public offering, distributed to its stockholders generally, as applicable; provided, however, that such reports, proxy statements, filings and other materials required to be delivered pursuant to this clause (d) shall be deemed delivered for purposes of this Agreement when posted to the website of the Borrower (or Holdings or any Parent Entity referred to in Section 5.04(i)) or the website of the SEC and written notice of such posting has been delivered to the Administrative Agent; (e) within 90 days (or such later date as the Administrative Agent may agree in its reasonable discretion) after the beginning of each fiscal year (commencing with the fiscal year ending December 31, 2017), a consolidated annual budget for such fiscal year consisting of a projected consolidated balance sheet of the Borrower and its Subsidiaries as of the end of the following fiscal year and the related consolidated statements of projected cash flow and projected income (collectively, the “Budget”), which Budget shall in each case be accompanied by the statement of a Financial Officer of the Borrower to the effect that the Budget is based on assumptions believed by the Borrower to be reasonable as of the date of delivery thereof; (f) upon the reasonable request of the Administrative Agent not more frequently than once a year, an updated Perfection Certificate (or, to the extent such request relates to specified information contained in the Perfection Certificate, such information) reflecting all changes since the date of the information most recently received pursuant to this clause (f) or Section 5.10(f); (g) promptly, from time to time, such other customary information regarding the operations, business affairs and financial condition of Holdings, the Borrower or any of the Subsidiaries, or compliance with the terms of any Loan Document as in each case the Administrative Agent may reasonably request (for itself or on behalf of any Lender); (h) no later than 10 Business Days after the delivery of the financial statements required pursuant to clauses (a) and (b) of this Section 5.04, commencing with the financial statements for the first full fiscal period ending after the Closing Date, upon request of the Administrative Agent, the Borrower shall hold a customary conference call for Lenders; and (i) in the event that Holdings or any Parent Entity reports on a consolidated basis, such consolidated reporting at Holdings or such Parent Entity’s level in a manner consistent with that described in clauses (a) and (b) of this Section 5.04 for the Borrower (together with a reconciliation showing the adjustments necessary to determine compliance by the Borrower and its Subsidiaries with the Financial Covenant) will satisfy the requirements of such paragraphs. The Borrower hereby acknowledges and agrees that all financial statements furnished pursuant to clauses (a), (b) and (d) above are hereby deemed to be Borrower Materials suitable for distribution, and to be made available, to Public Lenders as contemplated by Section 9.17 and may be treated by the Administrative Agent and the Lenders as if the same had been marked “PUBLIC” in accordance with such paragraph (unless the Borrower otherwise notifies the Administrative Agent in writing on or prior to delivery thereof).

Appears in 1 contract

Samples: First Lien Credit Agreement (Rackspace Technology, Inc.)

Financial Statements, Reports, etc. Furnish to the Administrative Agent (~~which~~ and the Administrative Agent will promptly furnish such information to the Lenders, subject to Section 10.17): (a) ~~within~~ Within 90 days (or such longer time period as specified in the SEC’s rules and regulations for the filing of annual reports on Form 10-K) after the end of each fiscal year (commencing with the fiscal year ending December 31, 2016), a consolidated balance sheet and related statements of operations, cash flows and owners’ equity showing the financial position of the Borrower and its ~~Subsidiaries~~ consolidated subsidiaries, as of the close of such fiscal year and the consolidated results of ~~their~~ its operations during such year and setting forth in comparative form the corresponding figures for the prior fiscal year, which consolidated balance sheet and related statements of operations, cash flows and owners’ equity shall be ~~accompanied by customary management’s discussion and analysis and~~ audited by Deloitte & Touche LLP or other independent public accountants of recognized national standing and accompanied by an opinion of such accountants (which ~~opinion~~ shall ~~not~~ be ~~qualified~~ unqualified as to the scope of audit or as to the status of ~~the Borrower or~~ any ~~Material Subsidiary~~ Loan Party or, as applicable, any Parent Entity as a “going concern, other than solely with respect to, or resulting solely from, an upcoming maturity date under any series of Indebtedness occurring within one year from the time such opinion is delivered or any potential inability to satisfy a financial maintenance covenant on a future date or in a future period”) to the effect that such consolidated financial statements fairly present, in all material respects, the financial position and results of operations and cash flows of the Borrower and its ~~Subsidiaries~~ subsidiaries on a consolidated basis in accordance with ~~GAAP~~ GAAP, accompanied by a customary management’s discussion and analysis of the financial condition and results of operations of the Borrower and its consolidated subsidiaries (it being understood that the delivery by the Borrower of annual reports on Form 10-K of the ~~Borrower and its consolidated Subsidiaries~~ Borrower, Holdings or any Parent Entity shall satisfy the requirements of this Section 5.04(a) to the extent such annual reports include the information specified herein); (b) ~~within~~ Within 45 days (or such longer time period as specified in the SEC’s rules and regulations with respect to non-accelerated filers for the filing of quarterly reports on Form 10-Q) after the end of each of the first three fiscal quarters of each fiscal year (commencing with the fiscal quarter ~~ending~~ ended June 30, 2016), a consolidated balance sheet and related statements of operations and cash flows showing the financial position of the Borrower and its ~~Subsidiaries~~ consolidated subsidiaries as of the close of such fiscal quarter and the consolidated results of ~~their~~ its operations during such fiscal quarter and the ~~then-~~then elapsed portion of the fiscal year ~~and, starting with the fiscal quarter ending September 30, 2016,~~ and setting forth in comparative form the corresponding figures for the corresponding periods of the prior fiscal year, all of which shall be in reasonable ~~detail, which consolidated balance sheet and related statements of operations and cash flows shall be accompanied by customary management’s discussion and analysis~~ detail and which consolidated balance sheet and related statements of operations and cash flows shall be certified by a Financial Officer of the ~~Borrower~~ Borrower, on behalf of the ~~Borrower~~ Borrower, as fairly presenting, in all material respects, the financial position and results of operations and cash flows of the Borrower and its ~~Subsidiaries~~ subsidiaries on a consolidated basis in accordance with GAAP (subject to normal year-end audit adjustments and the absence of footnotes) ), accompanied by a customary management’s discussion and analysis of the financial condition and results of operations of the Borrower and its consolidated subsidiaries (it being understood that the delivery by the Borrower of quarterly reports on Form 10-Q of the ~~Borrower and its consolidated Subsidiaries~~ Borrower, Holdings or any Parent Entity shall satisfy the requirements of this Section 5.04(b) to the extent such quarterly reports include the information specified herein); (c) At such times as the same are required to be delivered under the ABL Loan Documents, within 30 days (or, in the case of a fiscal month that ends on the same day as the end of a fiscal quarter, 45 days) after the end of each fiscal month of each fiscal year, a consolidated balance sheet and related statements of operations and cash flows showing the financial position of the Borrower and its consolidated subsidiaries as of the close of such fiscal month and the consolidated results of its operations during such fiscal month and which consolidated balance sheet and related statements of operations and cash flows shall be certified by a Financial Officer of the Borrower, on behalf of the Borrower, as fairly presenting, in all material respects, the financial position and results of operations and cash flows of the Borrower and its subsidiaries on a consolidated basis in accordance with GAAP (subject to normal year-end audit adjustments and the absence of footnotes); (d) Concurrently with any delivery of financial statements under Section 5.04(a) and (b) above, a certificate of a Financial Officer of the Borrower substantially in the form of Exhibit I, (i) certifying that no Event of Default or Default has occurred or, if such an Event of Default or Default has occurred, specifying the nature and extent thereof and any corrective action taken or proposed to be taken with respect thereto, (ii) attaching a schedule showing EBITDA attributable to Unrestricted Subsidiaries and schedules to the financial statements delivered for such period that shall separately identify consolidating information for the Borrower and its Restricted Subsidiaries, (iii) attaching a reconciliation schedule in reasonable detail showing any adjustments to the financial information provided in the financial statements delivered concurrently with such certificate necessary to make the computations with respect to Section 6.10, (iv) setting forth in reasonable detail the calculation of Total Net Leverage Ratio, Total Net Secured Leverage Ratio and Total Net First Lien Leverage Ratio for the fiscal period then ended, (v) setting forth the calculation and uses of the Cumulative Credit for the fiscal period then ended if the Borrower shall have used the Cumulative Credit for any purpose during such fiscal period, (vi) certifying a list of names of all Immaterial Subsidiaries, that each Subsidiary set forth on such list individually qualifies as an Immaterial Subsidiary and that all such Subsidiaries in the aggregate do not exceed the limitation set forth in clause (b) of the definition of the term “Immaterial Subsidiary”, and (vii) certifying a list of names of all Unrestricted Subsidiaries and that each Subsidiary set forth on such list qualifies as an Unrestricted Subsidiary; (e) Promptly after the same become publicly available, copies of all periodic and other publicly available reports, proxy statements and, to the extent requested by the Administrative Agent, other materials filed by a Parent Entity, Holdings, the Borrower or any of the Subsidiaries with the SEC or distributed to its stockholders generally, as applicable; provided, however, that such reports, proxy statements, filings and other materials required to be delivered pursuant to this Section 5.04(e) shall be deemed delivered for purposes of this Agreement when posted to the website of the Borrower or available on the SEC’s XXXXX service (or any successor thereto); (f) Within 90 days after the beginning of each fiscal year (commencing with the fiscal year beginning January 1, 2017), a reasonably detailed consolidated annual budget (prepared on a

Appears in 1 contract

Samples: Senior Secured Term Loan Agreement (Verso Corp)

Financial Statements, Reports, etc. Furnish to the Administrative Agent ~~(which will promptly furnish such information~~ for distribution to ~~the Lenders):~~each Lender: (a) within 90 days after the end of each fiscal ~~year (commencing with the fiscal year ending December 31~~year, ~~2016), a~~ its consolidated balance sheet and related statements of ~~operations~~income, stockholders’ equity and cash flows ~~and owners’ equity~~ showing the financial ~~position~~ condition of ~~the Borrower~~ Holdings and its consolidated Subsidiaries as of the close of such fiscal year and the ~~consolidated~~ results of ~~their~~ its operations and the operations of such Subsidiaries during such ~~year and setting forth in~~ year, together with comparative ~~form the corresponding~~ figures for the ~~prior~~ immediately preceding fiscal year, ~~which consolidated balance sheet and related statements of operations, cash flows and owners’ equity shall be accompanied by customary management’s discussion and analysis and~~ all audited by KPMG LLP or other independent public accountants of recognized national standing and accompanied by an opinion of such accountants (which opinion shall not ~~be qualified~~ include (i) an explanatory paragraph expressing substantial doubt about the ability of Holdings and its consolidated Subsidiaries to continue as ~~to scope of audit~~ a “going concern” or (ii) any qualification or exception as to the ~~status~~ scope of the Borrower or any Material Subsidiary as a going concern, other than solely with respect to, or resulting solely from, an upcoming maturity date under any series of Indebtedness occurring within one year from the time such ~~opinion is delivered or any potential inability to satisfy a financial maintenance covenant on a future date or in a future period~~audit) to the effect that such consolidated financial statements fairly ~~present,~~ present in all material ~~respects,~~ respects the financial ~~position~~ condition and results of operations of the Borrower and its consolidated Subsidiaries on a consolidated basis in accordance with GAAP ~~(it being understood that the delivery by the Borrower of annual reports on Form 10-K of the Borrower~~ consistently applied, together with a customary “management discussion and ~~its consolidated Subsidiaries shall satisfy the requirements of this Section 5.04(a) to the extent such annual reports include the information specified herein)~~analysis” report; (b) within 45 days after the end of each of the first three fiscal quarters of each fiscal ~~year (commencing with the fiscal quarter ending June 30~~year, ~~2016), a~~ its consolidated balance sheet and related statements of ~~operations~~ income, stockholders’ equity and cash flows showing the financial ~~position~~ condition of ~~the Borrower~~ Holdings and its consolidated Subsidiaries as of the close of such fiscal quarter and the ~~consolidated~~ results of ~~their~~ its operations and the operations of such Subsidiaries during such fiscal quarter and the ~~then-~~then elapsed portion of the fiscal ~~year and~~year, ~~starting with the fiscal quarter ending September 30, 2016, setting forth in~~ comparative ~~form the corresponding~~ figures for the ~~corresponding~~ same periods of in the ~~prior~~ immediately preceding fiscal year, all of which shall be in reasonable detail, which consolidated balance sheet and related statements of operations and cash flows shall be accompanied by customary management’s discussion and analysis and which consolidated balance sheet and related statements of operations and cash flows shall be certified by a one of its Financial ~~Officer of the Borrower on behalf of the Borrower~~ Officers as fairly ~~presenting,~~ presenting in all material ~~respects,~~ respects the financial ~~position~~ condition and results of operations of the Borrower and its consolidated Subsidiaries on a consolidated basis in accordance with GAAP (consistently applied, subject to normal year-end audit adjustments and the absence of footnotes, together with a customary “management discussion and analysis” report; (c) ~~(it being understood that~~ within 30 days after the ~~delivery~~ end of each of the first two fiscal months of each fiscal quarter, its consolidated balance sheet and related statements of income, stockholders’ equity and cash flows showing the financial condition of Holdings and its consolidated Subsidiaries as of the close of such fiscal month and the results of its operations and the operations of such Subsidiaries during such fiscal month and the then elapsed portion of the fiscal year, comparative figures for the same periods in the immediately preceding fiscal year, all certified by one of its Financial Officers as fairly presenting in all material respects the ~~Borrower~~ financial condition and results of ~~quarterly reports on Form 10-Q~~ operations of the Borrower and its consolidated Subsidiaries ~~shall satisfy~~ on a consolidated basis in accordance with GAAP consistently applied, subject to normal year-end audit adjustments and the ~~requirements~~ absence of ~~this Section 5.04(b~~footnotes; (d) concurrently with any delivery of financial statements under paragraph (a) or (b) above, a Compliance Certificate (i) certifying that no Event of Default or Default has occurred or, if such an Event of Default or Default has occurred, specifying the nature and extent thereof and any corrective action taken or proposed to be taken with respect thereto and (ii) setting forth computations in reasonable detail satisfactory to the Administrative Agent demonstrating compliance with the Financial Covenants and, in the case of a Compliance Certificate delivered with the financial statements required by paragraph (a) above (commencing with the financial statements for the first full fiscal year commencing after the Closing Date), setting forth the Borrower’s calculation of Excess Cash Flow and the Available Amount for the fiscal year covered by such statements; (e) concurrently with any delivery of financial statements under clause (a) above, a certificate of the accounting firm that reported on such statements (which certificate may be limited to accounting matters and disclaim responsibility for legal interpretations) certifying that as of the last day of the immediately preceding fiscal year no Event of Default or Default has occurred with respect to the Financial Covenants or, if such an Event of Default or Default has occurred, specifying the extent thereof. (f) not later than the date that is 30 days prior to the last day of each fiscal year of Holdings, a detailed consolidated budget for such ~~quarterly reports include~~ fiscal year (including a projected consolidated balance sheet and related statements of projected operations and cash flows as of the end of and for the immediately following fiscal year on a monthly basis and setting forth the assumptions used for purposes of preparing such budget) and, promptly when available, any significant revisions of such budget; (g) promptly after the same become publicly available, copies of all periodic and other reports, proxy statements and other materials, if any, filed by Holdings, the Borrower or any Subsidiary with the Securities and Exchange Commission, or any Governmental Authority succeeding to any or all of the functions of the Securities and Exchange Commission, or with any national securities exchange, as the case may be; (h) promptly after the receipt thereof by Holdings or the Borrower or any of their respective Subsidiaries, a copy of any “management letter” received by any such Person from its certified public accountants and the management’s response thereto; (i) promptly after the request by any Lender, all documentation and other information ~~specified herein)~~that such Lender reasonably requests in order to comply with its ongoing obligations under applicable “know your customer” and anti-money laundering rules and regulations, including the USA PATRIOT Act; (j) promptly after the delivery thereof to the administrative agent and/or the collateral agent under the ABL Credit Agreement, copies of each Borrowing Base Certificate (as defined in the ABL Credit Agreement) with respect to each fiscal month of Holdings; (k) on a weekly basis, a comparison of same-store sales results (on an aggregate basis) for Stores that have been open for at least one year; (l) promptly after the receipt thereof by Holdings or the Borrower or any of their respective Subsidiaries, a copy of any material notices received with respect to the ABL Credit Agreement; and (m) promptly, from time to time, such other information regarding the operations, business affairs and financial condition of Holdings, the Borrower or any Subsidiary, or compliance with the terms of any Loan Document, as the Administrative Agent or any Lender (through the Administrative Agent) may reasonably request.

Appears in 1 contract

Samples: Credit Agreement (Sportsman's Warehouse Holdings, Inc.)

Common use of Financial Statements, Reports, etc Clause in Contracts