Financial Statements, Reports, etc. In the case of the Company, furnish directly to the Administrative Agent and to each of the Banks: (a) within 120 days after the end of each fiscal year of the Company (being December 31 in each calendar year), its Consolidated balance sheets, Consolidated statements of income and Consolidated statements of cash flows showing the Consolidated financial condition of the Company and the Subsidiaries as of the close of such fiscal year and the results of its operations and the operations of the Subsidiaries during such year, all the foregoing consolidated financial statements to be audited by Coopers & Xxxxxxx, independent public accountants, or other independent public accountants acceptable to the Required Banks and accompanied by an opinion of such accountant (which shall not be qualified in any material respect) to the effect that such consolidated financial statements fairly present the financial condition and results of operations of the Company and the Subsidiaries on a consolidated basis in accordance with GAAP; (b) within 60 days after the end of each of the first three fiscal quarters of each fiscal year, unaudited Consolidated balance sheets, Consolidated statements of income and Consolidated statements of cash flows showing the financial condition and results of operations of the Company and the Subsidiaries on a consolidated basis as of the end of each such quarter and for the then elapsed portion of the fiscal year, certified by a Financial Officer of the Company as presenting fairly the financial position and results of operations of the Company and such Subsidiaries and as having been prepared in accordance with GAAP (except for such changes therein as are approved by the independent accountants for the Company), in each case subject to normal year-end audit adjustments; (c) concurrently with (a) and (b) above, a certificate of the firm or person referred to therein (which certificate furnished by the independent accountants referred to in paragraph (a) above may be limited to the best of its knowledge and to accounting matters and may disclaim responsibility for legal interpretations) (i) 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, in the case of the certificate furnished by a Financial Officer of the Company, specifying 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 6.05 and 6.06; (d) promptly after the same become publicly available and to the extent not required to be furnished by any other provision of this Section 5.04, (i) copies of all proxy statements, financial statements and reports that the Company sends to its stockholders and (ii) copies of all regular, periodic and special reports, and all registration statements relating to transactions requiring a vote of stockholders of the Company or filed on Form X-0, X-0 or S-3 under the Securities Act of 1933, which the Company or any Subsidiary files with the Securities and Exchange Commission, or any Governmental Authority which may be substituted therefor, or with any national securities exchange, or distributed to its shareholders, as the case may be; and (e) promptly, from time to time, such other information regarding the operations, business affairs and condition (financial or otherwise) of the Company and the Subsidiaries as each Bank through the Administrative Agent may reasonably request; provided, however, that the Company shall not be obligated to disclose, or to permit any examination which will disclose, technical knowledge or confidential trade information, except where appropriate safeguards exist that prevent dissemination of such information in a manner detrimental to the Company's competitive position.
Appears in 2 contracts
Samples: Credit Facility Agreement (Ethyl Corp), Revolving Credit Facility and Term Loan Agreement (Ethyl Corp)
Financial Statements, Reports, etc. In the case of the CompanyBorrower and the Guarantors, furnish directly deliver to the Administrative Agent and to each of the BanksLenders:
(a) within 120 90 days after the end of each fiscal year of the Company (being December 31 in each calendar year), its Consolidated consolidated and consolidating balance sheets, Consolidated sheets and related statements of income and Consolidated statements of cash flows for the Domestic Entities and the Global Entities, showing the Consolidated financial condition of the Company such entities on a consolidated and the Subsidiaries consolidating basis as of the close of such fiscal year and the results of its their respective operations and the operations of the Subsidiaries during such year, all the foregoing consolidated financial statements of the Domestic Entities and the Global Entities to be audited by Coopers & Xxxxxxx, independent public accountants, Deloitte and Touche LP or other independent public accountants acceptable to the Required Banks of recognized national standing and accompanied by an opinion of such accountant accountants (which shall not be qualified in any material respect) respect other than with respect to the Cases or, in the case of the Domestic Entities, a going concern qualification), the consolidating financial statements to be subjected to the auditing procedures applied to the audit of consolidated financial statements and to be certified by a Financial Officer of the Parent or the Borrower to the effect that such consolidated financial statements fairly present the financial condition and results of operations of the Company Domestic Entities on a consolidated basis and the Subsidiaries Global Entities on a consolidated basis in accordance with GAAP;
(b) within 60 45 days after the end of each of the first three fiscal quarters of each fiscal yearquarters, unaudited Consolidated the consolidated and consolidating balance sheets, Consolidated sheets and related statements of income and Consolidated statements of cash flows of the Domestic Entities and the Global Entities, showing the financial condition of such entities on a consolidated and consolidating basis as of the close of such fiscal quarter and the results of their operations during such fiscal quarter and the then elapsed portion of the fiscal year, each certified by a Financial Officer of the Parent or the Borrower as fairly presenting the financial condition and results of operations of the Company Domestic Entities and the Subsidiaries Global Entities on a consolidated and consolidating basis in accordance with GAAP, subject to normal year-end audit adjustments and the absence of footnotes;
(c) commencing with the first fiscal month following the Closing Date, as of soon as practicable, but in no event later than 30 days after the end of each fiscal month of the Parent (unless such quarter monthly fiscal period ends at the end of a fiscal quarter, in which case the financial statements required to be delivered pursuant to this clause (c) may be delivered within 45 days after the end of such fiscal month) (i) monthly unaudited balance sheets of the Domestic Entities and the Global Entities and related statements of earnings and cash flows of such entities for the then elapsed portion of the prior fiscal yearmonth, each certified by a Financial Officer of the Company as presenting fairly Parent or the Borrower and (ii) a monthly report detailing professional fees and expenses that have been billed and paid or billed but unpaid to date, the accumulated "hold-back" of professional fees and expenses to date, material adverse events or changes to the financial position and results of operations condition, operations, business, properties or assets of the Company Domestic Entities or the Global Entities (if any) and such Subsidiaries and as having been prepared in accordance with GAAP material litigation (except for such changes therein as are approved by the independent accountants for the Companyif any), in each case subject to normal year-end audit adjustments;
(cd) commencing with the first fiscal month following the Closing Date, as soon as practicable, but in no event later than 30 days after the end of each fiscal month of the Parent, monthly financial projections of the Domestic Entities and the Foreign Entities in a form reasonably satisfactory to the Agent and the Borrower, each certified by a Financial Officer of the Parent or the Borrower;
(i) concurrently with any delivery of financial statements under (a) and (b) above, a certificate of the firm Financial Officer of the Parent or person referred to therein the Borrower certifying such statements (which certificate furnished by the independent accountants referred to in paragraph (a) above may be limited to the best of its knowledge and to accounting matters and may disclaim responsibility for legal interpretations) (iA) certifying that no Event of Default or event which upon notice or lapse of time or both would constitute an Event of Default has occurred, or, if such a Default or an Event of Default or event has occurred, specifying the nature and extent thereof and, in the case of the certificate furnished by a Financial Officer of the Company, specifying and any corrective action taken or proposed to be taken with respect thereto and (iiB) setting forth computations in reasonable detail satisfactory to the Administrative Agent demonstrating compliance with the covenants contained in Section provisions of Sections 6.01, 6.03, 6.04, 6.05 and 6.06;
(d) promptly after the same become publicly available and to the extent not required to be furnished by any other provision of this Section 5.04, (i) copies of all proxy statements, financial statements and reports that the Company sends to its stockholders 6.10 and (ii) copies concurrently with any delivery of all regularfinancial statements under (a) above, periodic and special reports, and all registration statements relating to transactions requiring a vote of stockholders of the Company or filed on Form X-0, X-0 or S-3 under the Securities Act of 1933, certificate (which the Company or any Subsidiary files with the Securities and Exchange Commission, or any Governmental Authority which certificate may be substituted therefor, or with any national securities exchange, or distributed limited to its shareholders, as the case may be; and
(e) promptly, from time to time, such other information regarding the operations, business affairs accounting matters and condition (financial or otherwisedisclaim responsibility for legal interpretations) of the Company accountants auditing the consolidated financial statements delivered under (a) above certifying that, in the course of the regular audit of the business of the Parent and its Subsidiaries, such accountants have obtained no knowledge that an Event of Default has occurred and is continuing with respect to the Subsidiaries as each Bank through the Administrative Agent may reasonably request; provided, however, that the Company shall not be obligated to disclosefinancial covenants set forth in Sections 6.04 and 6.05, or to permit any examination which will discloseif, technical knowledge or confidential trade information, except where appropriate safeguards exist that prevent dissemination in the opinion of such information in a manner detrimental to accountants, such an Event of Default has occurred and is continuing, specifying the Company's competitive position.nature thereof and all relevant facts with respect thereto;
Appears in 2 contracts
Samples: Revolving Credit, Term Loan and Guaranty Agreement (Tower Automotive Inc), Revolving Credit, Term Loan and Guaranty Agreement (Tower Automotive Inc)
Financial Statements, Reports, etc. In the case of the Company, furnish directly The Borrower shall deliver or cause to be delivered to the Administrative Agent and to each of the BanksLender:
(a) within 120 days after the end of each fiscal year of the Company (being December 31 in each calendar year), its Consolidated balance sheets, Consolidated statements of income and Consolidated statements of cash flows showing the Consolidated financial condition of the Company and the Subsidiaries as of the close of such fiscal year and the results of its operations and the operations of the Subsidiaries during such year, all the foregoing consolidated financial statements to be audited by Coopers & Xxxxxxx, independent public accountants, or other independent public accountants acceptable to the Required Banks and accompanied by an opinion of such accountant (which shall not be qualified in any material respect) to the effect that such consolidated financial statements fairly present the financial condition and results of operations of the Company and the Subsidiaries on a consolidated basis in accordance with GAAP;
(b) within 60 Not later than 50 days after the end of each of the first three fiscal quarters of each fiscal yearFiscal Year, unaudited Consolidated a balance sheets, Consolidated statements sheet and a statement of income of the Borrower and its Consolidated statements Entities on a consolidated basis and a statement of cash flows showing flow of the Borrower and its Consolidated Entities on a consolidated basis for such calendar quarter and for the period beginning on the first day of such Fiscal Year and ending on the last day of such quarter (in sufficient detail to indicate the Borrower's and each Consolidated Entity's compliance with the financial covenants set forth in Section 8.1), together with statements in comparative form for the corresponding date or period in the preceding Fiscal Year as summarized in the Borrower's Form 10-Q for the corresponding period, and certified as to fairness, accuracy and completeness by the chief executive officer, chief financial officer or Treasurer of the Borrower.
(b) Not later than 100 days after the end of each Fiscal Year, financial statements (including a balance sheet, a statement of income, a statement of changes in shareholders' equity and a statement of cash flow) of the Borrower and its Consolidated Entities on a consolidated basis for such Fiscal Year (in sufficient detail to indicate the Borrower's and each Consolidated Entity's compliance with the financial covenants set forth in Section 8.1), together with statements in comparative form as of the end of and for the preceding Fiscal Year as summarized in the Borrower's Form 10-K for the corresponding period, and accompanied by an opinion of certified public accountants acceptable to the Agent, which opinion shall state in effect that such financial statements (A) were audited using generally accepted auditing standards, (B) were prepared in accordance with generally accepted accounting principles applied on a Consistent Basis, and (C) present fairly the financial condition and results of operations of the Company Borrower and the Subsidiaries on a consolidated basis as of the end of each such quarter and its Consolidated Entities for the then elapsed portion of the fiscal year, certified by a Financial Officer of the Company as presenting fairly the financial position and results of operations of the Company and such Subsidiaries and as having been prepared in accordance with GAAP (except for such changes therein as are approved by the independent accountants for the Company), in each case subject to normal year-end audit adjustments;periods covered.
(c) concurrently Together with the financial statements required by subsections (a) and (b) above, above a compliance certificate duly executed by the chief executive officer or chief financial officer or Treasurer of the firm or person referred to therein (which certificate furnished by the independent accountants referred to in paragraph (a) above may be limited to the best of its knowledge and to accounting matters and may disclaim responsibility for legal interpretations) (i) 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, Borrower in the case form of the certificate furnished by a Financial Officer of the Company, specifying any corrective action taken or proposed to be taken with respect thereto and Exhibit I (ii) setting forth computations in reasonable detail satisfactory to the Administrative Agent demonstrating compliance with the covenants contained in Section 6.05 and 6.06;"Compliance Certificate").
(d) promptly after Contemporaneously with the same become publicly available and distribution thereof to the extent not required to be furnished by any other provision of this Section 5.04, (i) copies of all proxy statements, financial statements and reports that the Company sends to its stockholders and (ii) copies of all regular, periodic and special reports, and all registration statements relating to transactions requiring a vote of stockholders of the Company or filed on Form X-0, X-0 or S-3 under the Securities Act of 1933, which the Company Borrower's or any Subsidiary files Consolidated Entity's stockholders or partners or the filing thereof with the Securities and Exchange Commission, or any Governmental Authority which may be substituted therefor, or with any national securities exchange, or distributed to its shareholders, as the case may be; and, copies of all statements, reports, notices and filings distributed by the Borrower or any Consolidated Entity to its stockholders or partners or filed with the Securities and Exchange Commission (including reports on SEC Forms 10-K, 10-Q and 8-K).
(e) promptlyPromptly after the Borrower knows or has reason to know of the occurrence of any "reportable event" under Section 4043 of ERISA applicable to the Borrower or any ERISA Affiliate, a certificate of the president or chief financial officer of the Borrower setting forth the details as to such "reportable event" and the action that the Borrower or the ERISA Affiliate has taken or will take with respect thereto, and promptly after the filing or receiving thereof, copies of all reports and notices that the Borrower and each Consolidated Entity files under ERISA with the Internal Revenue Service or the PBGC or the United States Department of Labor.
(f) Promptly after the Borrower or any of its Consolidated Entities becomes aware of the commencement thereof, notice of any investigation, action, suit or proceeding before any Governmental Authority involving the condemnation or taking under the power of eminent domain of any of its property or the revocation or suspension of any permit, license, certificate of need or other governmental requirement applicable to any Facility.
(g) Within 10 days of the receipt by the Borrower or any of its Consolidated Entities, copies of all material deficiency notices, compliance orders or adverse reports issued by any Governmental Authority or accreditation commission having jurisdiction over licensing, accreditation or operation of a Facility or by any Governmental Authority or private insurance company pursuant to a provider agreement, which, if not promptly complied with or cured, could result in the suspension or forfeiture of any license, certification or accreditation necessary in order for such Facility to carry on its business as then conducted or the termination of any material insurance or reimbursement program available to such Facility.
(h) Such other information regarding any Facility or the financial condition or operations of the Borrower or its Consolidated Entities as the Agent shall reasonably request from time to time or at any time, such other information regarding the operations, business affairs and condition (financial or otherwise) of the Company and the Subsidiaries as each Bank through the Administrative Agent may reasonably request; provided, however, that the Company shall not be obligated to disclose, or to permit any examination which will disclose, technical knowledge or confidential trade information, except where appropriate safeguards exist that prevent dissemination of such information in a manner detrimental to the Company's competitive position.
Appears in 2 contracts
Samples: Short Term Credit Agreement (Healthsouth Corp), Credit Agreement (Healthsouth Corp)
Financial Statements, Reports, etc. In the case of the Companyeach Borrower, furnish directly to the Administrative Agent and (which shall promptly furnish to each of the Banks:Lender):
(a) within 120 95 days after the end of each fiscal year of the Company (being December 31 in each calendar year), its Consolidated consolidated balance sheets, Consolidated sheets and related statements of income earnings and Consolidated statements of cash flows flows, together with the notes thereto, showing the Consolidated financial condition position of the Company such Borrower and the its consolidated Subsidiaries as of the close of such fiscal year and the results of its their operations and the operations of the Subsidiaries such subsidiaries during such year, all the foregoing consolidated financial statements to be audited by Coopers & Xxxxxxx, independent public accountants, KPMG LLP or other independent public accountants of recognized national standing acceptable to the Required Banks Lenders and accompanied by an opinion of such accountant accountants (which shall not be qualified in any material respect) to the effect that such consolidated financial statements fairly present the financial condition position and results of operations of the Company each such Borrower and the its consolidated Subsidiaries on a consolidated basis in accordance with GAAPGAAP consistently applied, except as therein noted;
(b) within 60 50 days after the end of each of the first three fiscal quarters of each fiscal year, unaudited Consolidated its consolidated balance sheets, Consolidated sheets and related statements of income and Consolidated earnings and, with respect to Weyerhaeuser, statements of cash flows flows, showing the financial condition position of Weyerhaeuser and results of operations of the Company and the its consolidated Subsidiaries on a consolidated basis as of the end close of each such fiscal quarter and for the results of its operations and the operations of such consolidated Subsidiaries during such fiscal quarter and the then elapsed portion of the fiscal year, all certified (in the form of Exhibits D-1 and D-2, with respect to Weyerhaeuser and WRECO, respectively) by a one of its Financial Officer of the Company Officers as fairly presenting fairly the financial position and results of operations of the Company each such Borrower and such its consolidated Subsidiaries and as having been prepared on a consolidated basis in accordance with GAAP (consistently applied, except for such changes as therein as are approved by the independent accountants for the Company)noted, in each case subject to normal appropriate year-end audit adjustments;
(c) concurrently with any delivery of financial statements under (a) and or (b) above, a certificate (in the form of Exhibits D-3 and D-4, with respect to Weyerhaeuser and WRECO, respectively) of the accounting firm or person referred to therein Financial Officer of such Borrower opining on or certifying such statements (which certificate certificate, when furnished by the independent accountants referred to in paragraph (a) above an accounting firm, may be limited to the best of its knowledge and to accounting matters and may disclaim responsibility for legal interpretations) (i) certifying that no Default or Event of Default or Default has occurred, occurred or, if such a an Event of Default or Event of Default has occurred, specifying the nature and extent thereof and, in the case of the certificate furnished by a Financial Officer of the Company, specifying and any corrective action taken or proposed to be taken with respect thereto and thereto, (ii) in the case of Weyerhaeuser setting forth computations in reasonable detail satisfactory to the Administrative Agent demonstrating compliance with the covenants contained in Section 6.05 Sections 6.01(d) and 6.066.01(e) and (iii) including a reconciliation setting forth adjustments made to such financial statements in order to make the calculations set forth in clause (ii) above;
(d) promptly after the same become publicly available and to the extent not required to be furnished by any other provision of this Section 5.04available, (i) copies of all periodic and other reports, proxy statements, financial statements and reports that the Company sends to its stockholders and (ii) copies of all regular, periodic and special reports, and all registration statements relating to transactions requiring a vote of stockholders of the Company or other materials filed on Form X-0, X-0 or S-3 under the Securities Act of 1933, which the Company by it or any Subsidiary files of its Subsidiaries with the Securities and Exchange Commission, or any Governmental Authority which may be substituted thereforSEC, or with any national securities exchange, or distributed to its shareholders, as the case may be; and;
(e) as soon as practicable, copies of such further financial statements and reports as such Borrower shall send to banks with which it has lines of credit, and all such financial statements and reports as such Borrower shall send to its shareholders (unless all of the outstanding shares of capital stock of such Borrower are held by one Person);
(f) promptly, from time to time, such other information regarding the operations, business affairs and financial condition of such Borrower or any of its Subsidiaries, or compliance with the terms of any Loan Document, as the Administrative Agent, any Swing Line Bank, any Fronting Bank or any Lender may reasonably request (financial it being understood that neither Borrower shall be required to provide any information or otherwisedocuments which are subject to confidentiality provisions the nature of which prohibit such disclosure);
(g) promptly, and in any event within 2 days, upon becoming aware thereof, notice of any proposed or actual down-grade, suspension or withdrawal of the Company rating provided by S&P or Mxxxx’x to Weyerhaeuser in respect of its Senior Unsecured Long-Term Debt; and
(h) information required to be delivered pursuant to paragraphs (a), (b), (d) and (e) shall be deemed to have been delivered on the Subsidiaries as each Bank through date on which Weyerhaeuser provides notice to the Administrative Agent may reasonably request; provided, however, that the Company shall not be obligated to disclose, or to permit any examination which will disclose, technical knowledge or confidential trade information, except where appropriate safeguards exist that prevent dissemination of such information has been posted on Weyerhaeuser’s website on the internet at the website address listed on the signature pages thereof, at wxx.xxx.xxx or at another website identified in a manner detrimental such notice and accessible by the Lenders without charge; provided that Weyerhaeuser shall deliver paper copies of the reports and financial statements referred to in paragraphs (a), (b), (d) and (e) of this Section 5.04 to the Company's competitive positionAdministrative Agent, any Swing Line Bank, any Fronting Bank or any Lender who requests Weyerhaeuser to deliver such paper copies until written notice to cease delivering paper copies is given by such Administrative Agent, Swing Line Bank, Fronting Bank or Lender to Weyerhaeuser.
Appears in 2 contracts
Samples: Competitive Advance and Revolving Credit Facility Agreement (Weyerhaeuser Co), Competitive Advance and Revolving Credit Facility Agreement (Weyerhaeuser Co)
Financial Statements, Reports, etc. In the case of the CompanyBorrower, furnish directly to the Administrative Agent (for further delivery by the Administrative Agent to the Issuing Bank and to each of the Banks:Lenders in accordance with its customary practice):
(a) within 120 90 days after the end of each fiscal year of the Company (being December 31 in each calendar year), its Consolidated audited consolidated balance sheets, Consolidated sheets and related statements of income and Consolidated statements of cash flows flow, showing the Consolidated financial condition of the Company Borrower and the its consolidated Subsidiaries as of the close of such fiscal year and the results of its operations and the operations of the such Subsidiaries during such year, all the foregoing consolidated financial statements to be audited by Coopers & Xxxxxxx, independent public accountants, or other independent public accountants of recognized national standing reasonably acceptable to the Required Banks Administrative Agent and accompanied by an opinion of such accountant accountants (which shall not be qualified in any material respect) to the effect that such consolidated financial statements fairly present the financial condition and results of operations of the Company and the Subsidiaries Borrower on a consolidated basis in accordance with GAAPGAAP consistently applied;
(b) within 60 50 days after the end of each of the first three fiscal quarters of each fiscal year, its unaudited Consolidated consolidated balance sheets, Consolidated sheets and related statements of income and Consolidated statements cash flow, showing the financial condition of cash flows showing the Borrower and its consolidated Subsidiaries as of the close of such fiscal quarter and the results of its operations and the operations of such Subsidiaries during such fiscal quarter and the then elapsed portion of the fiscal year, all certified by the Financial Officer of the Borrower as fairly presenting in all material respects the financial condition and results of operations of the Company and the Subsidiaries Borrower on a consolidated basis as of the end of each such quarter and for the then elapsed portion of the fiscal year, certified by a Financial Officer of the Company as presenting fairly the financial position and results of operations of the Company and such Subsidiaries and as having been prepared in accordance with GAAP (except for such changes therein as are approved by the independent accountants for the Company)consistently applied, in each case subject to normal year-end audit adjustmentsadjustments and the absence of footnotes;
(c) concurrently with any delivery of financial statements under clause (a) and or (b) above, a certificate of the accounting firm or person referred to therein the Financial Officer of the Borrower opining on or certifying such statements (which certificate certificate, when furnished by the independent accountants referred to in paragraph (a) above an accounting firm, may be limited to the best of its knowledge and to accounting matters and may disclaim responsibility for legal interpretations) and in any event will be based on the actual knowledge after due inquiry of the Person giving the certificate, and:
(i) certifying that no Default or Event of Default or Default has occurred, occurred or, if such a an Event of Default or Event of Default has occurred, specifying the nature and extent thereof and, in the case of the certificate furnished by a Financial Officer of the Company, specifying and any corrective action taken or proposed to be taken with respect thereto and thereto;
(ii) 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
(iii) with respect to the computations delivered pursuant to Section 6.05 5.04(c)(ii), the Financial Officer shall break out and 6.06separately provide the financial information relating solely to the Unrestricted Subsidiaries and certify the accuracy of such information;
(d) promptly after the same become publicly available and to the extent not required to available, copies (which such deliveries may be furnished made by any other provision of this Section 5.04, (iemail or facsimile) copies of all periodic and other reports, proxy statements, financial statements and reports that the Company sends to its stockholders and (ii) copies of all regular, periodic and special reports, and all registration statements relating to transactions requiring a vote of stockholders of the Company or other materials filed on Form X-0, X-0 or S-3 under the Securities Act of 1933, which the Company or any Subsidiary files by it with the Securities and Exchange Commission, or any Governmental Authority which may be substituted thereforsucceeding to any of or all the functions of said Commission, or with any national securities exchange, or distributed to its shareholders, as the case may be; and
(e) promptly, from time to time, such other information regarding the operations, business affairs and financial condition (financial or otherwise) of the Company and Borrower or any Restricted Subsidiary, or compliance with the Subsidiaries terms of any Loan Document, as each Bank through the Administrative Agent or any Lender may reasonably request. Any of the deliveries required by this Section 5.04 may be made by email or facsimile to the Administrative Agent in accordance with Section 9.01; provided that the financial statements required to be delivered pursuant to paragraphs (a) and (b) above and the information required to be delivered pursuant to paragraph (d) above shall be deemed to have been delivered on the date on which the Borrower has posted, and has provided notice to the Administrative Agent of such posting of, such information on the Borrower’s and/or the Securities and Exchange Commission’s website on the internet at the website address provided in such notice, or at another website accessible by the Lenders without charge. Notwithstanding the foregoing, (i) the Borrower shall deliver paper copies of the reports and financial statements referred to in paragraphs (a) and (b) of this Section 5.04 to the Administrative Agent or any Lender who requests the Borrower to deliver such paper copies until written notice to cease delivering paper copies is given by the Administrative Agent or such Lender and (ii) upon request of the Administrative Agent, the Borrower shall deliver a paper copy of the certificate required by paragraph (c) of this Section 5.04. The Borrower hereby acknowledges that (a) the Administrative Agent will make available to the Lenders and the Issuing Bank materials and/or information provided by or on behalf of the Borrower hereunder (collectively, “Borrower Materials”) by posting the Borrower Materials on SyndTrak Online or another similar electronic system (the “Platform”) and (b) certain of the Lenders may be “public-side” Lenders (i.e., Lenders that do not wish to receive material non-public information with respect to the Borrower or its securities) (each, a “Public Lender”). The Borrower hereby agrees that, if requested by the Administrative Agent, 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, the Issuing Lender 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 the Company shall not be obligated to disclose, or to permit any examination which will disclose, technical knowledge or confidential trade information, except where appropriate safeguards exist that prevent dissemination of such information in a manner detrimental to the Company's competitive positionextent such Borrower Materials constitute Proprietary Information, they shall be treated as set forth in Section 9.15); (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.” Notwithstanding the foregoing, (i) the Borrower shall be under no Obligation to xxxx any Borrower Materials “PUBLIC” and (ii) each Public Lender shall designate to the Administrative Agent one or more persons who are entitled to receive and view Borrower Materials containing material non-public information to the same extent as Lenders that are not Public Lenders.
Appears in 2 contracts
Samples: Senior Unsecured Revolving Credit Agreement, Senior Unsecured Revolving Credit Agreement (Choice Hotels International Inc /De)
Financial Statements, Reports, etc. In the case of the CompanyHoldings, furnish directly to the Administrative Agent and Agent, which shall furnish to each of the BanksLender:
(a) within 120 90 days after the end of each fiscal year, beginning with the fiscal year of the Company (being ending December 31 in each calendar year)31, 2007, its Consolidated consolidated balance sheets, Consolidated sheet and related statements of income income, stockholders’ equity and Consolidated statements of cash flows showing the Consolidated financial condition of the Company Holdings and the its consolidated Subsidiaries as of the close of such fiscal year and the results of its operations and the operations of the such Subsidiaries during such year, together with comparative figures for the immediately preceding fiscal year, all the foregoing consolidated financial statements to be audited by Coopers & BDO Xxxxxxx, independent public accountants, LLP or other independent public accountants acceptable to the Required Banks of recognized national standing and accompanied by an opinion of such accountant accountants (which opinion shall not be qualified in without a “going concern” or like qualification or exception and without any material respectqualification or exception as to the scope of such audit) to the effect that such consolidated financial statements fairly present the financial condition and results of operations of the Company Holdings and the its consolidated Subsidiaries on a consolidated basis in accordance with GAAPGAAP consistently applied;
(b) within 60 45 days after the end of each of the first three fiscal quarters of each fiscal year, unaudited Consolidated beginning with the fiscal quarter ending September 30, 2007, its consolidated balance sheets, Consolidated sheet and related statements of income income, stockholders’ equity and Consolidated statements of cash flows showing the financial condition of Holdings and results of operations of the Company and the its consolidated Subsidiaries on a consolidated basis as of the end close of each such fiscal quarter and for the results of its operations and the operations of such Subsidiaries during such fiscal quarter and the then elapsed portion of the fiscal year, and comparative figures for the same periods in the immediately preceding fiscal year, all certified by a one of its Financial Officer of the Company Officers as fairly presenting fairly the financial position condition and results of operations of the Company Holdings and such its consolidated Subsidiaries and as having been prepared on a consolidated basis in accordance with GAAP (except for such changes therein as are approved by the independent accountants for the Company)consistently applied, in each case subject to normal year-end audit adjustments;
(c) concurrently with any delivery of financial statements under paragraph (a) and ), or (b) above, a certificate of the accounting firm or person referred to therein (which certificate furnished by in the independent accountants referred to in case of paragraph (a)) above or Financial Officer (in the case of paragraph (a), to the extent not included in a certificate of the accounting firm, and paragraph (b)) opining on or certifying such statements (which certificate, when furnished by an accounting firm, may be limited to the best of its knowledge and to accounting matters and/or compliance with the financial covenants hereunder and may disclaim responsibility for legal interpretations) (i) certifying that no Default or Event of Default or Default has occurred, occurred or, if such a an Event of Default or Event of Default has occurred, specifying the nature and extent thereof and, in the case of the certificate furnished by a Financial Officer of the Company, specifying 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 6.05 Sections 6.10, 6.11, 6.12 and 6.066.13 and, in the case of a certificate delivered with the financial statements required by paragraph (a) above, setting forth Holdings’ calculation of Excess Cash Flow;
(d) within 90 days after the beginning of each fiscal year of Holdings, 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 and to the extent not required to be furnished by any other provision of this Section 5.04available, (i) copies of all periodic and other reports, proxy statements, financial statements and reports that other materials filed by Holdings, the Company sends to its stockholders and (ii) copies of all regular, periodic and special reports, and all registration statements relating to transactions requiring a vote of stockholders of the Company or filed on Form X-0, X-0 or S-3 under the Securities Act of 1933, which the Company Borrower or any Subsidiary files with the Securities and Exchange Commission, or any Governmental Authority which may be substituted thereforsucceeding to any or all of the functions of said Commission, or with any national securities exchange, or distributed to its shareholdersshareholders generally, as the case may be;
(f) promptly after the receipt thereof by Holdings or the Borrower 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) 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 after the request by the Administrative Agent or any Lender, on and after the effectiveness of the applicable provisions of the Pension Act, 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
(ei) promptly, from time to time, such other information regarding the operations, business affairs and financial condition (financial of Holdings, the Borrower or otherwise) any Subsidiary, or compliance with the terms of the Company and the Subsidiaries any Loan Document, as each Bank through the Administrative Agent or any Lender may reasonably request; provided, however, that the Company shall not be obligated to disclose, or to permit any examination which will disclose, technical knowledge or confidential trade information, except where appropriate safeguards exist that prevent dissemination of such information in a manner detrimental to the Company's competitive position.
Appears in 2 contracts
Samples: First Lien Credit Agreement (Itc Deltacom Inc), Second Lien Credit Agreement (Itc Deltacom Inc)
Financial Statements, Reports, etc. In the case of the CompanyBorrower, furnish directly to the Administrative Agent and for distribution by the Administrative Agent to each of the BanksLender:
(a) within 120 90 days after the end of each fiscal year of the Company (being December 31 in each calendar year), its Consolidated consolidated and consolidating balance sheets, Consolidated sheets and related statements of income operations, stockholders' equity and Consolidated statements of cash flows showing the Consolidated financial condition of the Company Borrower and the its consolidated Subsidiaries as of the close of such fiscal year and the results of its operations and the operations of the such Subsidiaries during such year, all the foregoing consolidated financial statements to be audited by Coopers & Xxxxxxx, independent public accountants, PricewaterhouseCoopers LLP or other independent public accountants of recognized national standing or otherwise reasonably acceptable to the Required Banks Lenders and accompanied by an opinion of such accountant accountants (which shall not be qualified in any material respect) to the effect that such consolidated financial statements fairly present the financial condition and results of operations of the Company Borrower and the its consolidated Subsidiaries on a consolidated basis in accordance with GAAPGAAP consistently applied;
(b) within 60 45 days after the end of each of the first three fiscal quarters of each fiscal year, unaudited Consolidated its consolidated and consolidating balance sheets, Consolidated sheets and related statements of income operations, stockholders' equity and Consolidated statements of cash flows showing the financial condition of the Borrower and its consolidated Subsidiaries as of the close of such fiscal quarter and the results of its operations and the operations of such Subsidiaries during such fiscal quarter and the then elapsed portion of the fiscal year, all certified by one of its Financial Officers as fairly presenting in all material respects the financial condition and results of operations of the Company Borrower and the its consolidated Subsidiaries on a consolidated basis as of the end of each such quarter and for the then elapsed portion of the fiscal year, certified by a Financial Officer of the Company as presenting fairly the financial position and results of operations of the Company and such Subsidiaries and as having been prepared in accordance with GAAP (except for such changes therein as are approved by the independent accountants for the Company)consistently applied, in each case subject to normal year-end audit adjustments;
(c) concurrently with any delivery of financial statements under sub-paragraph (a) and or (b) above, a certificate of the accounting firm (unless at such time it is the practice and policy of such accounting firm not to deliver such certificates) or person referred to therein Financial Officer opining on or certifying such statements (which certificate certificate, when furnished by the independent accountants referred to in paragraph (a) above an accounting firm, may be limited to the best of its knowledge and to accounting matters and may disclaim responsibility for legal interpretations) (i) certifying that no Default or Event of Default or Default has occurred, occurred or, if such a an Event of Default or Event of Default has occurred, specifying the nature and extent thereof and, in the case of the certificate furnished by a Financial Officer of the Company, specifying and any corrective action taken or proposed to be taken with respect thereto thereto; and (ii) in the case of any such letter from such Financial Officer, setting forth computations in reasonable detail satisfactory to the Administrative Agent reasonably detailed calculations demonstrating compliance with the covenants contained in Section 6.05 Sections 6.10, 6.11, 6.12 and 6.066.13;
(d) promptly after the same become publicly available and to the extent not required to be furnished by any other provision of this Section 5.04available, (i) copies of all periodic and other reports, proxy statements, financial statements and reports that other materials filed by the Company sends to its stockholders and (ii) copies of all regular, periodic and special reports, and all registration statements relating to transactions requiring a vote of stockholders of the Company or filed on Form X-0, X-0 or S-3 under the Securities Act of 1933, which the Company Borrower or any Subsidiary files with the Securities and Exchange Commission, or any Governmental Authority which may be substituted thereforsucceeding 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) as promptly as practicable, but in no event later than 10 Business Days after the last day of each fiscal year of the Borrower, a copy of the budget for its consolidated balance sheet and related statements of income and selected working capital and capital expenditure analyses for each quarter of the following fiscal year; and
(ef) promptly, from time to time, such other information regarding the operations, business affairs and financial condition (financial or otherwise) of the Company and Borrower or any Subsidiary, or compliance with the Subsidiaries terms of any Loan Document, as each Bank through the Administrative Agent or any Lender may reasonably request; provided, however, that the Company shall not be obligated to disclose, or to permit any examination which will disclose, technical knowledge or confidential trade information, except where appropriate safeguards exist that prevent dissemination of such information in a manner detrimental to the Company's competitive position.
Appears in 2 contracts
Samples: Credit Agreement (Terex Corp), Tranche C Credit Agreement (Terex Corp)
Financial Statements, Reports, etc. In the case of the CompanyHoldings, furnish directly to the Administrative Agent and (who will distribute to each of the Banks:Lender):
(a) within 120 days after the end of each fiscal year of the Company (being December 31 in each calendar year), its Consolidated consolidated balance sheets, Consolidated sheet and related statements of income income, stockholders’ equity and Consolidated statements of cash flows showing the Consolidated financial condition of the Company Holdings and the its consolidated Subsidiaries as of the close of such fiscal year and the results of its operations and the operations of the Subsidiaries such persons during such year, together with comparative figures for the immediately preceding fiscal year, all the foregoing consolidated financial statements to be in reasonable detail and prepared in accordance with GAAP, all audited by Coopers & Xxxxxxx, independent public accountants, KPMG LLP or other independent public accountants acceptable to the Required Banks of recognized national standing and accompanied by an opinion of such accountant accountants (which opinion shall not be qualified in without a “going concern” or like qualification or exception and without any material respectqualification or exception as to the scope of such audit) to the effect that such consolidated financial statements fairly present the financial condition and results of operations of the Company Holdings and the its consolidated Subsidiaries on a consolidated basis in accordance with GAAP;
(b) within 60 days after the end of each of the first three fiscal quarters of each fiscal year, unaudited Consolidated its consolidated balance sheets, Consolidated sheet and related statements of income income, stockholders’ equity and Consolidated statements of cash flows showing the financial condition of Holdings and results of operations of the Company and the its consolidated Subsidiaries on a consolidated basis as of the end close of each such fiscal quarter and for the results of its operations and the operations of such persons during such fiscal quarter and the then elapsed portion of the fiscal year, and comparative figures for the same periods in the immediately preceding fiscal year, all certified by a one of its Financial Officer of the Company Officers as fairly presenting fairly in all material respects the financial position condition and results of operations of the Company Holdings and such its consolidated Subsidiaries and as having been prepared on a consolidated basis in accordance with GAAP (except for such changes therein as are approved by the independent accountants for the Company)GAAP, in each case subject to normal year-end audit adjustmentsadjustments and the absence of footnotes;
(c) concurrently with any delivery of financial statements under paragraph (a) and or (b) above, a certificate of the firm or person referred to therein (which certificate furnished by the independent accountants referred to in paragraph (a) above may be limited to the best a Financial Officer of its knowledge and to accounting matters and may disclaim responsibility for legal interpretations) Holdings (i) certifying that to such Financial Officer’s knowledge no Event of Default or Default has occurred or, if such an Event of Default or Default has occurred, or, if such a Default or Event of Default has occurred, reasonably specifying the nature and extent thereof and, in the case of the certificate furnished by a Financial Officer of the Company, specifying any corrective action taken or proposed to be taken with respect thereto and (ii) setting forth computations in reasonable detail reasonably satisfactory to the Administrative Agent demonstrating compliance with the covenants covenant contained in Section 6.05 6.10 and, in the case of a certificate delivered with the financial statements required by paragraph (a) above (commencing with the fiscal year ended December 31, 2007), setting forth Holdings’ calculation of Excess Cash Flow; and 6.06concurrently 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 under Section 6.10 or, if such accounting firm shall have become aware of such an Event of Default, specifying the nature thereof (which certificate, is limited to such accounting matters and may disclaim responsibility for legal interpretations);
(d) within 60 days after the commencement of each fiscal year of Holdings, 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) promptly after the same become publicly available and to the extent not required to be furnished by any other provision of this Section 5.04available, (i) copies of all proxy statementsperiodic 10Q and 10K filings, financial statements and reports that which shall satisfy the Company sends to its stockholders Borrower’s obligations under Sections 5.01(a) and (iib) copies of above (if containing the items required thereby);
(f) after the request by any Lender, all regulardocumentation 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, periodic and special reports, and all registration statements relating to transactions requiring a vote of stockholders including the USA PATRIOT Act;
(g) concurrently with the delivery of the Company certificate pursuant to clause (c) above (or filed on Form X-0such later date on which a distribution may be made), X-0 a certificate of a Financial Officer of Holdings setting forth computations of the amount of any Tax Distribution or S-3 under Specified Tax Payment made during the Securities Act of 1933, which the Company or any Subsidiary files period covered thereby;
(h) concurrently with the Securities delivery of the certificate delivered pursuant to clause (c) above with respect to the end of a fiscal year, a certificate of a Financial Officer of Holdings setting forth the amount of Capital Expenditures during the relevant fiscal year, any Rollover Amount or Carryback Amount and Exchange Commission, or any Governmental Authority which may be substituted therefor, or with any national securities exchange, or distributed to its shareholders, as the case may be; andbase amount for the next succeeding Fiscal Year;
(ei) promptly, from time to time, such other information regarding the operations, business affairs and financial condition (financial of Holdings, the Borrower or otherwise) any Subsidiary, or compliance with the terms of the Company and the Subsidiaries any Loan Document, as each Bank through the Administrative Agent or any Lender may reasonably request; provided, however, that and
(j) Concurrently with the Company shall not be obligated delivery of the certificate delivered pursuant to disclose, or to permit any examination which will disclose, technical knowledge or confidential trade information, except where appropriate safeguards exist that prevent dissemination of such information in a manner detrimental clause (c) above with respect to the Company's competitive positionend of a fiscal year, the Borrower shall deliver to the Collateral Agent a certificate executed by a Responsible Officer of the Borrower attaching updated versions of the Schedules (other than Schedule IV) to the Second Lien 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 (j).
Appears in 2 contracts
Samples: Second Lien Credit Agreement (Hawkeye Holdings, Inc.), Second Lien Credit Agreement (Hawkeye Holdings, Inc.)
Financial Statements, Reports, etc. In the case of the Company, furnish directly to the Administrative Agent and to each of the BanksAgent:
(a) within 120 65 days after the end of each fiscal year of the Company (being December 31 in each calendar year), its Consolidated consolidated balance sheets, Consolidated sheets and related statements of income income, changes in stockholders’ equity and Consolidated statements of cash flows flows, showing the Consolidated financial condition of the Company and the its Subsidiaries as of the close of such fiscal year and the results of its operations and the operations of the its Subsidiaries during such year, all the foregoing consolidated financial statements to be audited by Coopers & Xxxxxxx, independent public accountants, PricewaterhouseCoopers LLP or other independent public accountants of recognized national standing acceptable to the Required Banks Lenders and accompanied by an opinion of such accountant accountants (which shall not be qualified in any material respect) to the effect that such consolidated financial statements fairly present the financial condition and results of operations of the Company and the Subsidiaries on a consolidated basis in accordance with GAAPGAAP consistently applied;
(b) within 60 45 days after the end of each of the first three fiscal quarters of each fiscal year, unaudited Consolidated its consolidated balance sheets, Consolidated sheets and related statements of income and Consolidated statements cash flows, showing the financial condition of cash flows showing the Company and its Subsidiaries as of the close of such fiscal quarter and the results of its operations and the operations of its Subsidiaries during such fiscal quarter and the then elapsed portion of such fiscal year, all certified by one of its Financial Officers as fairly presenting the financial condition and results of operations of the Company and the Subsidiaries on a consolidated basis as of the end of each such quarter and for the then elapsed portion of the fiscal year, certified by a Financial Officer of the Company as presenting fairly the financial position and results of operations of the Company and such Subsidiaries and as having been prepared in accordance with GAAP (except for such changes therein as are approved by the independent accountants for the Company)consistently applied, in each case subject to normal year-end audit adjustments;
(c) concurrently with any delivery of financial statements under (a) and or (b) above, a certificate of the accounting firm or person referred to therein Financial Officer opining on or certifying such statements (which certificate certificate, when furnished by the independent accountants referred to in paragraph (a) above an accounting firm, may be limited to the best of its knowledge and to accounting matters and may disclaim responsibility for legal interpretations) (i) certifying that no Default or Event of Default or Default has occurred, occurred or, if such a an Event of Default or Event of Default has occurred, specifying the nature and extent thereof and, in the case of the certificate furnished by a Financial Officer of the Company, specifying 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 6.05 Sections 6.06, 6.07 and 6.066.08;
(d) promptly after the same become publicly available and to the extent not required to be furnished by any other provision of this Section 5.04available, (i) copies of all periodic and other reports, proxy statements, financial statements and reports that the Company sends to its stockholders and other materials (iiother than materials ministerial or administrative in nature) copies of all regular, periodic and special reports, and all registration statements relating to transactions requiring a vote of stockholders of the Company or filed on Form X-0, X-0 or S-3 under the Securities Act of 1933, which the Company or any Subsidiary files by it with the Securities and Exchange Commission, or any Governmental Authority which may be substituted therefor, succeeding to any of or with any national securities exchangeall the functions of such Commission, or distributed to its shareholders, as the case may be; and
(e) promptly, from time to time, such other information regarding the operations, business affairs and financial condition (financial or otherwise) of the Company and or any Subsidiary, or compliance with the Subsidiaries terms of any Loan Document, as each Bank through the Administrative Agent or any Lender may reasonably request; provided. Documents required to be delivered under this Section 5.04 may be delivered electronically and if so delivered, however, that shall be deemed to have been delivered on the Company shall not be obligated to discloseearliest date on which such documents are posted on, or a link to permit any examination which will disclose, technical knowledge or confidential trade information, except where appropriate safeguards exist that prevent dissemination of such information in a manner detrimental to documents is provided on (i) the Company's competitive position’s website on the internet at xxx.xxxxxx.xxx, (ii) the website of the U.S. Securities and Exchange Commission or (iii) the Platform.
Appears in 2 contracts
Samples: Credit Agreement (Harsco Corp), Five Year Credit Agreement (Harsco Corp)
Financial Statements, Reports, etc. In the case of the CompanyHoldings, furnish directly to the Administrative Agent and (who will distribute to each of the Banks:Lender):
(a) within 120 days after the end of each fiscal year of the Company (being December 31 in each calendar year), its Consolidated consolidated balance sheets, Consolidated sheet and related statements of income income, stockholders’ equity and Consolidated statements of cash flows showing the Consolidated financial condition of the Company Holdings and the its consolidated Subsidiaries as of the close of such fiscal year and the results of its operations and the operations of the Subsidiaries such persons during such year, together with comparative figures for the immediately preceding fiscal year, all the foregoing consolidated financial statements to be in reasonable detail and prepared in accordance with GAAP, all audited by Coopers & Xxxxxxx, independent public accountants, KPMG LLP or other independent public accountants acceptable to the Required Banks of recognized national standing and accompanied by an opinion of such accountant accountants (which opinion shall not be qualified in without a “going concern” or like qualification or exception and without any material respectqualification or exception as to the scope of such audit) to the effect that such consolidated financial statements fairly present the financial condition and results of operations of the Company Holdings and the its consolidated Subsidiaries on a consolidated basis in accordance with GAAP;
(b) within 60 days after the end of each of the first three fiscal quarters of each fiscal year, unaudited Consolidated its consolidated balance sheets, Consolidated sheet and related statements of income income, stockholders’ equity and Consolidated statements of cash flows showing the financial condition of Holdings and results of operations of the Company and the its consolidated Subsidiaries on a consolidated basis as of the end close of each such fiscal quarter and for the results of its operations and the operations of such persons during such fiscal quarter and the then elapsed portion of the fiscal year, and comparative figures for the same periods in the immediately preceding fiscal year, all certified by a one of its Financial Officer of the Company Officers as fairly presenting fairly in all material respects the financial position condition and results of operations of the Company Holdings and such its consolidated Subsidiaries and as having been prepared on a consolidated basis in accordance with GAAP (except for such changes therein as are approved by the independent accountants for the Company)GAAP, in each case subject to normal year-end audit adjustmentsadjustments and the absence of footnotes;
(c) concurrently with any delivery of financial statements under paragraph (a) and or (b) above, a certificate of the firm or person referred to therein (which certificate furnished by the independent accountants referred to in paragraph (a) above may be limited to the best a Financial Officer of its knowledge and to accounting matters and may disclaim responsibility for legal interpretations) Holdings (i) certifying that to such Financial Officer’s knowledge no Event of Default or Default has occurred or, if such an Event of Default or Default has occurred, or, if such a Default or Event of Default has occurred, reasonably specifying the nature and extent thereof and, in the case of the certificate furnished by a Financial Officer of the Company, specifying any corrective action taken or proposed to be taken with respect thereto and (ii) setting forth computations in reasonable detail reasonably satisfactory to the Administrative Agent demonstrating compliance with the covenants contained in Section 6.05 Sections 6.10, 6.11 and 6.066.12 and, in the case of a certificate delivered with the financial statements required by paragraph (a) above (commencing with the fiscal year ended December 31, 2007), setting forth Holdings’ calculation of Excess Cash Flow; 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 under Sections 6.11 or 6.12 or, if such accounting firm shall have become aware of such an Event of Default, specifying the nature thereof (which certificate, is limited to such accounting matters and may disclaim responsibility for legal interpretations);
(d) within 60 days after the commencement of each fiscal year of Holdings, 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) promptly after the same become publicly available and to the extent not required to be furnished by any other provision of this Section 5.04available, (i) copies of all proxy statementsperiodic 10Q and 10K filings, financial statements and reports that which shall satisfy the Company sends to its stockholders Borrower’s obligations under Sections 5.01(a) and (iib) copies of above (if containing the items required thereby);
(f) after the request by any Lender, all regulardocumentation 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, periodic and special reports, and all registration statements relating to transactions requiring a vote of stockholders including the USA PATRIOT Act;
(g) concurrently with the delivery of the Company certificate pursuant to clause (c) above (or filed on Form X-0such later date on which a distribution may be made), X-0 a certificate of a Financial Officer of Holdings setting forth computations of the amount of any Tax Distribution or S-3 under Specified Tax Payment made during the Securities Act of 1933, which the Company or any Subsidiary files period covered thereby;
(h) concurrently with the Securities delivery of the certificate delivered pursuant to clause (c) above with respect to the end of a fiscal year, a certificate of a Financial Officer of Holdings setting forth the amount of Capital Expenditures during the relevant fiscal year, any Rollover Amount or Carryback Amount and Exchange Commission, or any Governmental Authority which may be substituted therefor, or with any national securities exchange, or distributed to its shareholders, as the case may be; andbase amount for the next succeeding Fiscal Year;
(ei) promptly, from time to time, such other information regarding the operations, business affairs and financial condition (financial of Holdings, the Borrower or otherwise) any Subsidiary, or compliance with the terms of the Company and the Subsidiaries any Loan Document, as each Bank through the Administrative Agent or any Lender may reasonably request; provided, however, that and
(j) Concurrently with the Company shall not be obligated delivery of the certificate delivered pursuant to disclose, or to permit any examination which will disclose, technical knowledge or confidential trade information, except where appropriate safeguards exist that prevent dissemination of such information in a manner detrimental clause (c) above with respect to the Company's competitive positionend of a fiscal year, the Borrower shall deliver to the Collateral Agent a certificate executed by a Responsible Officer of the Borrower attaching updated versions of the Schedules (other than Schedule IV) to the First Lien 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 (j).
Appears in 2 contracts
Samples: First Lien Credit Agreement (Hawkeye Holdings, Inc.), First Lien Credit Agreement (Hawkeye Holdings, Inc.)
Financial Statements, Reports, etc. In the case of the CompanyParent, furnish directly to the Administrative Agent and to each of the BanksAgent:
(a) within 120 90 days (or within 5 days after any shorter period as the SEC shall specify for the filing of Annual Reports on Form 10-K) after the end of each fiscal year of the Company (being December 31 in each calendar year), its Consolidated consolidated balance sheets, Consolidated sheets and related statements of income operations, stockholders’ equity and Consolidated statements of cash flows showing the Consolidated financial condition of the Company Parent and the consolidated Subsidiaries as of the close of such fiscal year and the results of its operations and the operations of the such Subsidiaries during such year, all the foregoing consolidated financial statements to be audited by Coopers & Xxxxxxx, independent public accountants, KPMG LLP or other independent public accountants acceptable to the Required Banks of recognized national standing and accompanied by an opinion of such accountant accountants (which shall not be qualified in any material respect) to the effect that such consolidated financial statements fairly present the financial condition and results of operations of the Company Parent and the consolidated Subsidiaries on a consolidated basis in accordance with GAAPGAAP consistently applied;
(b) within 60 45 days (or within 5 days after any 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, unaudited Consolidated year its consolidated balance sheets, Consolidated sheets and related statements of income operations, stockholders’ equity and Consolidated statements of cash flows showing the financial condition and results of operations of the Company Parent and the consolidated Subsidiaries on a consolidated basis as of the end close of each such fiscal quarter and for the results of its operations and the operations of such Subsidiaries during such fiscal quarter and the then elapsed portion of the fiscal year, all certified by a one of its Financial Officer of the Company Officers as fairly presenting fairly the financial position condition and results of operations of Parent and the Company and such consolidated Subsidiaries and as having been prepared on a consolidated basis in accordance with GAAP (except for such changes therein as are approved by the independent accountants for the Company)consistently applied, in each case subject to normal year-end audit adjustments;
(c) Reserved;
(d) concurrently with any delivery of financial statements under paragraph (a) and or (b) above, a certificate Compliance Certificate of the firm or person referred to therein (which certificate furnished by the independent accountants referred to a Financial Officer, substantially as set forth in paragraph (a) above may be limited to the best of its knowledge and to accounting matters and may disclaim responsibility for legal interpretations) Exhibit E, (i) opining on or certifying such statements and certifying that no Default or Event of Default or Default has occurred, occurred or, if such a an Event of Default or Event of Default has occurred, specifying the nature and extent thereof and, in the case of the certificate furnished by a Financial Officer of the Company, specifying and any corrective action taken or proposed to be taken with respect thereto and (ii) setting forth computations (A)(w) the amount of Net Cash Proceeds received from each Asset Sale, the Net Cash Proceeds from which are to be applied to acquire Reinvestment Assets pursuant to Section 2.07(b), (x) the date of such Asset Sale, (y) the amount of such Net Cash Proceeds applied to acquire Reinvestment Assets during such period and the nature of such Reinvestment Assets (if any) and (z) the amount of such Net Cash Proceeds required to be applied to reduce the Loans and cash collaterize the Letters of Credit as set forth in reasonable detail satisfactory Section 2.07(b), (B)(x) the amount of Net Cash Proceeds received from each equity issuance or capital contribution, (y) the date of such equity issuance or capital contribution and (z) the amount of such Net Cash Proceeds required to be applied to reduce the Administrative Agent Loans and cash collateralize the Letters of Credit as set forth in Section 2.07(b) and (C) reasonably detailed calculations demonstrating compliance with the covenants contained in Section 6.05 Sections 6.10, 6.11, 6.12 and 6.066.13;
(de) promptly after the same become publicly available and to the extent not required to be furnished by any other provision of this Section 5.04available, (i) copies of all periodic and other reports, proxy statements, financial statements and reports that the Company sends to its stockholders and (ii) copies of all regular, periodic and special reports, and all registration statements relating to transactions requiring a vote of stockholders of the Company or other materials filed on Form X-0, X-0 or S-3 under the Securities Act of 1933, which the Company by Parent or any Subsidiary files with the Securities and Exchange Commission, or any Governmental Authority which may be substituted thereforSEC, or with any national securities exchange, or distributed to its shareholders, as the case may be;
(f) not later than March 31 of each year, projections prepared by the management of Parent of statements concerning selected financial data (consisting of net sales, earnings before interest and taxes, working capital items, capital expenditures and depreciation), balance sheets, income statements and cash flow statements, on a quarterly basis, for such fiscal year; and
(eg) promptly, from time to time, such other information regarding the operations, business affairs and financial condition (financial of Parent, any Borrower or otherwise) any Subsidiary, or compliance with the terms of the Company and the Subsidiaries any Loan Document, as each Bank through the Administrative Agent or any Lender may reasonably request; provided, however, that the Company shall not be obligated to disclose, or to permit any examination which will disclose, technical knowledge or confidential trade information, except where appropriate safeguards exist that prevent dissemination of such information in a manner detrimental to the Company's competitive position.
Appears in 2 contracts
Samples: Credit Agreement (Dennys Corp), Credit Agreement (Dennys Corp)
Financial Statements, Reports, etc. In the case of the CompanyCorel, furnish directly to the Administrative Agent and to for each of the BanksLender:
(a) within 120 90 days after the end of each fiscal year of the Company (being December 31 in each calendar year), its Consolidated consolidated balance sheets, Consolidated sheet and related statements of income operations, shareholders' equity and Consolidated statements of cash flows showing the Consolidated financial condition of the Company Corel and the its consolidated Subsidiaries as of the close of such fiscal year and the results of its operations and the operations of the such Subsidiaries during such fiscal year, together with comparative figures for the immediately preceding fiscal year, all the foregoing consolidated financial statements to be audited by Coopers & Xxxxxxx, independent public accountants, PricewaterhouseCoopers or other independent public accountants acceptable to the Required Banks of recognized national standing and accompanied by an opinion of such accountant accountants (which shall not be qualified in any material respect) to the effect that such consolidated financial statements fairly present in all material respects the financial condition and results of operations of the Company Corel and the its consolidated Subsidiaries on a consolidated basis in accordance with GAAP;
(b) within 60 45 days after the end of each of the first three fiscal quarters of each fiscal year, its unaudited Consolidated consolidated balance sheets, Consolidated sheet and related statements of income operations and Consolidated statements of cash flows showing the financial condition of Corel and results of operations of the Company and the its consolidated Subsidiaries on a consolidated basis as of the end close of each such fiscal quarter and for the results of its operations and the operations of such Subsidiaries during such fiscal quarter and the then elapsed portion of the fiscal year, and comparative figures for the same periods in the immediately preceding fiscal year, all certified by a Financial Officer of the Company Corel as fairly presenting fairly the financial position condition and results of operations of the Company Corel and such its consolidated Subsidiaries and as having been prepared on a consolidated basis in accordance with GAAP (except for such changes therein as are approved by the independent accountants for the Company)GAAP, in each case subject to normal year-end audit adjustments;
(c) concurrently with any delivery of financial statements under paragraph (a) and or (b) aboveof this Section, a certificate of the firm or person referred to therein (which certificate furnished by the independent accountants referred to in paragraph (a) above may be limited to the best a Financial Officer of its knowledge and to accounting matters and may disclaim responsibility for legal interpretations) Corel (i) certifying that no Default or Event of Default has occurred, occurred or, if such a Default or an Event of Default has occurred, specifying the nature and extent thereof and, in the case of the certificate furnished by a Financial Officer of the Company, specifying 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 6.05 Sections 6.13 and 6.066.14 and, in the case of a certificate delivered with the financial statements required by paragraph (a) of this Section, setting forth the Borrower's calculation of Excess Cash Flow;
(d) within 90 days after the beginning of each fiscal year of Corel, 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 and to the extent not required to be furnished by any other provision of this Section 5.04available, (i) copies of all periodic and other reports, proxy statements, financial statements and reports that the Company sends to its stockholders and (ii) copies of all regular, periodic and special reports, and all registration statements relating to transactions requiring a vote of stockholders of the Company or other materials filed on Form X-0, X-0 or S-3 under the Securities Act of 1933, which the Company by Corel or any Subsidiary files with the Securities and Exchange Commission, or any Governmental Authority which may be substituted therefor, or with any national securities exchange, or distributed to its shareholders, as the case may be;
(f) 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
(eg) promptly, from time to time, such other information regarding the operations, business affairs and financial condition (financial or otherwise) of the Company and Borrowers or any Subsidiary, or compliance with the Subsidiaries terms of any Loan Document, as each Bank the Administrative Agent or any Lender (acting through the Administrative Agent Agent) may reasonably request; provided, however, that the Company shall not be obligated to disclose, or to permit any examination which will disclose, technical knowledge or confidential trade information, except where appropriate safeguards exist that prevent dissemination of such information in a manner detrimental to the Company's competitive position.
Appears in 2 contracts
Samples: Credit Agreement (Corel Corp), Credit Agreement (Corel Corp)
Financial Statements, Reports, etc. In The Borrower will maintain, for itself and each Subsidiary (other than the case Excluded Subsidiary), a system of the Companyaccounting established and administered in accordance with GAAP or IFRS, as applicable, and will furnish directly to the Administrative Agent and to each of Lender (through the Banks:Administrative Agent):
(a) within 120 90 days after the end of each of its fiscal year of the Company (being December 31 in each calendar year)years, its Consolidated audited consolidated balance sheets, Consolidated sheets and related consolidated statements of income income, changes in stockholders’ equity and Consolidated statements of cash flows showing the Consolidated financial condition of the Company and the Subsidiaries as of the close end of and for such fiscal year, setting forth in each case in comparative form the figures for the prior fiscal year, in the case of such fiscal year and the results of its operations and the operations of the Subsidiaries during such year, all the foregoing consolidated financial statements to be audited by Coopers & Xxxxxxx, independent public accountants, or other independent public accountants acceptable to the Required Banks and accompanied by an opinion unqualified (except for qualifications relating to changes in accounting principles or practices reflecting changes in GAAP and required or approved by the Borrower’s independent certified public accountants) audit report certified by an independent registered public accounting firm of such accountant (which shall not be qualified in any material respect) nationally recognized standing to the effect that such consolidated financial statements fairly present fairly, in all material respects, the financial condition and position, results of operations and cash flows of the Company Borrower and the Consolidated Subsidiaries on a consolidated basis as of the end of and for such year in accordance with GAAP;
(b) within 60 45 days after the end of each of the first three fiscal quarters of each of its fiscal years, its consolidated balance sheet and related consolidated statements of income, changes in stockholders’ equity and cash flows as of the end of and for such fiscal quarter and the then elapsed portion of the fiscal year, unaudited Consolidated setting forth in each case in comparative form the figures for the corresponding period or periods of (or, in the case of the balance sheetssheet, Consolidated statements as of income and Consolidated statements the end of) the prior fiscal year, all certified by a Financial Officer of cash flows showing the Borrower as presenting fairly, in all material respects, the financial condition and position, results of operations and cash flows of the Company Borrower and the Consolidated Subsidiaries on a consolidated basis as of the end of each and for such fiscal quarter and for the then elapsed such portion of the fiscal year, certified by a Financial Officer of the Company as presenting fairly the financial position and results of operations of the Company and such Subsidiaries and as having been prepared year in accordance with GAAP (except for such changes therein as are approved by the independent accountants for the Company)GAAP, in each case subject to normal year-end audit adjustmentsadjustments and the absence of certain footnotes;
(c) concurrently together with each delivery of financial statements under clause (a) and or (b) aboveof this Section 5.04, a compliance certificate substantially in the form of Exhibit C signed by a Financial Officer of the firm or person referred to therein (which certificate furnished by the independent accountants referred to in paragraph (a) above may be limited to the best of its knowledge and to accounting matters and may disclaim responsibility for legal interpretations) Borrower, (i) certifying that no Default or Event of as to whether a Default has occurred, oroccurred and, if such a Default or Event of Default has occurred, specifying the nature details thereof and extent thereof and, in the case of the certificate furnished by a Financial Officer of the Company, specifying any corrective action taken or proposed to be taken with respect thereto and thereto, (ii) setting forth computations in reasonable detail satisfactory to the Administrative Agent reasonably detailed calculations demonstrating compliance with Section 6.07 and (iii) stating whether any change in GAAP or in the covenants contained application thereof has occurred since the date of the consolidated balance sheet of the Borrower most recently theretofore delivered under clause (a) or (b) of this Section 5.04 (or, prior to the first such delivery, referred to in Section 6.05 and 6.063.05) and, if any such change has occurred, specifying the effect of such change on the financial statements (including those for the prior periods) accompanying such certificate;
(d) promptly as soon as possible and in any event within 10 Business Days after any Responsible Officer of the same become publicly available and to the extent not required to be furnished by any other provision of this Section 5.04, Borrower knows that (i) any Reportable Event has occurred with respect to any Plan, (ii) any Withdrawal Liability has been incurred with respect to any Multiemployer Plan or (iii) the Borrower or any member of the Controlled Group has received any notice concerning the imposition of Withdrawal Liability or a determination that a Multiemployer Plan is, or is expected to be, insolvent or in reorganization within the meaning of Title IV of ERISA or in endangered or critical status within the meaning of Section 305 of ERISA or Section 432 of the Code, a statement, signed by a Financial Officer of the Borrower, describing such Reportable Event, Withdrawal Liability or notice and the action which the Borrower proposes to take with respect thereto;
(e) promptly upon the furnishing thereof to the shareholders of the Borrower, copies of all proxy financial statements, financial reports and proxy statements and reports that so furnished;
(f) promptly upon the Company sends to its stockholders and (ii) filing thereof, copies of all regular, periodic and special reports, and all registration statements relating to transactions requiring a vote of stockholders of the Company and annual, quarterly, monthly or filed on Form X-0, X-0 or S-3 under the Securities Act of 1933, other regular reports which the Company Borrower or any Consolidated Subsidiary files with the Securities and Exchange CommissionCommission or financial reports material to the interests of the Lenders or to the ability of the Borrower to perform its obligations under the Loan Documents;
(g) promptly after Xxxxx’x or S&P shall have announced a downgrade of the rating in effect for the Index Debt, or any Governmental Authority which may be substituted therefor, or with any national securities exchange, or distributed to its shareholders, as the case may bewritten notice of such change; and
(eh) promptly, such other information (including financial information and any information required by the Patriot Act or any other “know your customer” or similar laws or regulations) as the Administrative Agent or any Lender may from time to time, such other information regarding time reasonably request. The financial statements (and the operations, business affairs related audit opinions and condition certifications) required to be delivered by the Borrower pursuant to clauses (financial or otherwisea) and (b) of the Company this Section 5.04 and the Subsidiaries as each Bank through reports and statements required to be delivered by the Borrower pursuant to clauses (e) and (f) of this Section 5.04 shall be deemed to have been delivered (i) when reports containing such financial statements (and the related audit opinions and certifications) or other materials are posted on the Borrower’s website on the internet at xxxx://xx.xxxxx.xxx (or any successor page identified in a notice given to the Administrative Agent may reasonably request; providedand the Lenders) or on the SEC’s website on the internet at xxx.xxx.xxx and the Borrower has notified the Administrative Agent (who in turn shall notify the Lenders) that such reports have been so posted or (ii) when such financial statements, however, that the Company shall not be obligated to disclose, reports or to permit any examination which will disclose, technical knowledge or confidential trade information, except where appropriate safeguards exist that prevent dissemination of such information statements are delivered in a manner detrimental to the Company's competitive positionaccordance with Section 9.17(a).
Appears in 2 contracts
Samples: Revolving Credit Facility Agreement (Janus Capital Group Inc), Revolving Credit Facility Agreement (Janus Capital Group Inc)
Financial Statements, Reports, etc. In the case of the CompanyBorrower, furnish directly to the Administrative Agent and to each of the BanksAgent:
(a) within 120 90 days after the end of each fiscal year of the Company (being December 31 in each calendar year), its Consolidated consolidated balance sheets, Consolidated sheet and related statements of income income, stockholders’ equity and Consolidated statements of cash flows showing the Consolidated financial condition of the Company Borrower and the its consolidated Subsidiaries as of the close of such fiscal year and the results of its operations and the operations of the such Subsidiaries during such year, together with comparative figures for the immediately preceding fiscal year, all the foregoing consolidated financial statements to be audited by Coopers Deloitte & Xxxxxxx, independent public accountants, Touche LLP or other independent public accountants acceptable to the Required Banks of recognized national standing and accompanied by an opinion of such accountant accountants (which shall not be qualified in any material respect) to the effect that such consolidated financial statements fairly present the financial condition and results of operations of the Company Borrower and the its consolidated Subsidiaries on a consolidated basis in accordance with GAAPGAAP consistently applied;
(b) within 60 45 days after the end of each of the first three fiscal quarters of each fiscal year, unaudited Consolidated its consolidated balance sheets, Consolidated sheet and related statements of income income, stockholders’ equity and Consolidated statements of cash flows showing the financial condition of the Borrower and its consolidated Subsidiaries as of the close of such fiscal quarter and the results of its operations and the operations of such Subsidiaries during such fiscal quarter and the then elapsed portion of the fiscal year, and 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 financial condition and results of operations of the Company Borrower and the its consolidated Subsidiaries on a consolidated basis as of the end of each such quarter and for the then elapsed portion of the fiscal year, certified by a Financial Officer of the Company as presenting fairly the financial position and results of operations of the Company and such Subsidiaries and as having been prepared in accordance with GAAP (except for such changes therein as are approved by the independent accountants for the Company)consistently applied, in each case subject to normal year-end audit adjustments;
(c) concurrently with any delivery of financial statements under paragraph (a) and or (b) above, a certificate of the accounting firm or person referred to therein (which certificate furnished by in the independent accountants referred to in case of paragraph (a)) above 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 the best of its knowledge and to accounting matters and may disclaim responsibility for legal interpretations) (i) certifying that no Default or Event of Default or Default has occurred, occurred or, if such a an Event of Default or Event of Default has occurred, specifying the nature and extent thereof and, in the case of the certificate furnished by a Financial Officer of the Company, specifying and any corrective action taken or proposed to be taken with respect thereto and thereto, (ii) setting forth computations in reasonable detail satisfactory to the Administrative Agent demonstrating compliance with the covenants contained in Sections 6.11 and 6.12 and (iii) setting forth the amount, if any, of the Initial Pro Forma Adjustment included in the calculation of Consolidated EBITDA for such period and, in the case of a certificate delivered with the financial statements required by paragraph (a) above, (x) setting forth the Borrower’s calculation of Excess Cash Flow and (y) certifying that there has been no change in the business activities, assets or liabilities of Holdings, or if there has been any such change, describing such change in reasonable detail and certifying that Holdings is in compliance with Section 6.05 and 6.066.08;
(d) at least 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 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 and to the extent not required to be furnished by any other provision of this Section 5.04available, (i) copies of all periodic and other reports, final proxy statements, financial statements and reports that upon notice of filing to the Company sends to its stockholders Administrative Agent and (ii) copies of all regular, periodic and special reports, and all registration statements relating to transactions requiring a vote of stockholders upon the request of the Company or Administrative Agent, other materials filed on Form X-0by Holdings, X-0 or S-3 under the Securities Act of 1933, which the Company Borrower or any Subsidiary files with the Securities and Exchange Commission, or any Governmental Authority which may be substituted thereforsucceeding 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 after the receipt thereof by Holdings, the Borrower or any Subsidiary, a copy of any “management letter” (in final form) received by any such person from its certified public accountants and the management’s response thereto; and
(eg) promptly, from time to time, such other information regarding the operations, business affairs and financial condition (financial of Holdings, the Borrower or otherwise) any Subsidiary, or compliance with the terms of the Company and the Subsidiaries any Loan Document, as each Bank through the Administrative Agent or any Lender may reasonably request; provided, however, that the Company shall not be obligated to disclose, or to permit any examination which will disclose, technical knowledge or confidential trade information, except where appropriate safeguards exist that prevent dissemination of such information in a manner detrimental to the Company's competitive position.
Appears in 2 contracts
Samples: Credit Agreement (Ryan's Restaurant Leasing Company, LLC), Amendment Agreement (Buffets Holdings, Inc.)
Financial Statements, Reports, etc. In the case of the Company, The Borrowers shall furnish directly and deliver to the Administrative Agent and to each of the BanksLender:
(a1) within not later than 30 days after the end of each month that is not the end of a fiscal quarter and not later than 45 days after the end of each month that is the end of a fiscal quarter, a balance sheet and a statement of revenues and expenses of the Borrowers and its Consolidated Entities on a consolidated and consolidating basis for such month and for the period beginning on the first day of the fiscal year and ending on the last day of such month and certified by the President, chief financial officer or chief accounting officer of the Borrowers, and such other information and documentation contained in a sample delivered by the Borrowers to the Lender prior to the Closing Date);
(2) not later than 120 days after the end of each fiscal year year, financial statements (including a balance sheet, a statement of operations, a statement of changes in stockholders' equity and a statement of cash flows) of the Company (being December 31 in each calendar year), Borrowers and its Consolidated balance sheets, Consolidated statements of income and Consolidated statements of cash flows showing the Consolidated financial condition of the Company and the Subsidiaries as of the close of Entities on a consolidated basis (including consolidating entries) for such fiscal year in sufficient detail to indicate the Borrowers' and each other Consolidated Entity's compliance with the results of its operations and financial covenants set forth in this Article, together with statements in comparative form for the operations of the Subsidiaries during such preceding fiscal year, all the foregoing consolidated financial statements to be audited by Coopers & Xxxxxxx, independent public accountants, or other independent public accountants acceptable to the Required Banks and accompanied by an opinion of such accountant (which shall not be qualified in any material respect) certified public accountants acceptable to the Lender, which opinion shall state in effect that such consolidated financial statements (A) were audited using generally accepted auditing standards, (B) were prepared in accordance with generally accepted accounting principles applied on a consistent basis, and (C) present fairly present the financial condition and results of operations of the Company Borrowers and its Consolidated Entities for the Subsidiaries on a consolidated basis in accordance with GAAPperiods covered;
(b3) within 60 not later than 45 days after the end of each fiscal quarter, a compliance certificate duly executed by the President, chief financial officer or chief accounting officer of the first three fiscal quarters of each fiscal year, unaudited Consolidated balance sheets, Consolidated statements of income and Consolidated statements of cash flows showing Borrowers in a form acceptable to the financial condition and results of operations of the Company and the Subsidiaries on a consolidated basis as of the end of each such quarter and for the then elapsed portion of the fiscal year, certified by a Financial Officer of the Company as presenting fairly the financial position and results of operations of the Company and such Subsidiaries and as having been prepared in accordance with GAAP Lender (except for such changes therein as are approved by the independent accountants for the Company"Compliance Certificate"), in each case subject to normal year-end audit adjustments;
(c4) concurrently promptly upon receipt thereof, copies of all reports, management letters and other documents submitted to the Borrowers or any other Consolidated Entity by independent accountants in connection with (a) and (b) above, a certificate any annual or interim audit of the firm or person referred to therein (which certificate furnished by the independent accountants referred to in paragraph (a) above may be limited to the best of its knowledge and to accounting matters and may disclaim responsibility for legal interpretations) (i) 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, in the case books of the certificate furnished Borrowers or other Consolidated Entity made by a Financial Officer of the Company, specifying 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 6.05 and 6.06such accountants;
(d5) promptly after contemporaneously with the same become publicly available and distribution thereof to the extent not required to be furnished by any other provision of this Section 5.04, (i) copies of all proxy statements, financial statements and reports that the Company sends to its stockholders and (ii) copies of all regular, periodic and special reports, and all registration statements relating to transactions requiring a vote of stockholders or partners of the Company Borrowers or filed on Form X-0, X-0 other Consolidated Entity (or S-3 under the Securities Act of 1933, which the Company or any Subsidiary files filing thereof with the Securities and Exchange Commission, or any Governmental Authority which may be substituted therefor, or with any national securities exchange, or distributed to its shareholders), as the case may be, copies of all statements, reports, notices and filings distributed by the Borrowers or other Consolidated Entity to its stockholders or partners (or filed with the 27 28 Securities and Exchange Commission, including reports on SEC Forms l0-K, l0-Q and 8-k);
(6) promptly after the Borrowers know or have reason to know of the occurrence of any "reportable event" under Section 4043 of ERISA applicable to the Borrowers or other ERISA Affiliate, a certificate of the president or chief financial officer of the Borrowers setting forth the details as to such "reportable event" and the action that the Borrowers or other ERISA Affiliate has taken or will take with respect thereto, and promptly after the filing or receiving thereof, copies of all reports and notices respecting such reportable event that the Borrowers or other ERISA Affiliate files under ERISA with the Internal Revenue Service, the Pension Benefit Guaranty Corporation or the United States Department of Labor;
(7) promptly after the Borrowers or any other Consolidated Entity becomes aware of the commencement thereof, notice of any investigation, action, suit or proceeding before any Governmental Authority involving the condemnation or taking under the power of eminent domain of any of its property or the revocation or suspension of any permit, license, certificate of need or other Governmental Requirement;
(8) within ten (10) days of the receipt by the Borrowers or any other Consolidated Entity, copies of (A) all notices of default or breach under any subrogation and recovery services agreement; and (B) all other material notices of noncompliance, adverse reports issued by any Governmental Authority or private insurance company pursuant to a subrogation and recovery services agreement, which, if not promptly complied with or cured, could result in the suspension or forfeiture of any license or certification, necessary for the Borrowers to carry on its business as then conducted or the termination of any subrogation and recovery services agreement;
(9) on the Closing Date and at any time the Lender requests, copies of certificates of insurance issued by the insurers for all insurance maintained by the Borrowers and its Consolidated Entities and, if the Lender shall so request, copies of the policies providing such insurance; provided, however, the Borrowers shall promptly notify the Lender of any material change in insurance coverages; and
(e10) promptly, from time to timeas soon as practicable, such other information regarding the operationsbusiness affairs, business affairs and financial condition (financial or otherwise) operations of the Company Borrowers or its Consolidated Entities (including a detailed listing of subrogation and recovery services agreements and a summary aging of accounts receivable of the Subsidiaries Borrowers and its Consolidated Entities) as each Bank through the Administrative Agent may reasonably request; providedLender shall request from time to time or at any time. The Lender shall have no obligation to make Advances if at any time at which the Borrowers is delinquent in the preparation and delivery of any of the items described above, however, that the Company shall whether or not be obligated to disclose, or to permit any examination which will disclose, technical knowledge or confidential trade information, except where appropriate safeguards exist that prevent dissemination such delinquency constitutes an Event of such information in a manner detrimental to the Company's competitive positionDefault.
Appears in 2 contracts
Samples: Credit Agreement (Healthcare Recoveries Inc), Credit Agreement (Healthcare Recoveries Inc)
Financial Statements, Reports, etc. In the case of the Company, furnish directly to the Administrative Agent and to each of the BanksAgent:
(a) within 120 65 days after the end of each fiscal year of the Company (being December 31 in each calendar year), its Consolidated consolidated balance sheets, Consolidated sheets and related statements of income income, changes in stockholders’ equity and Consolidated statements of cash flows flows, showing the Consolidated financial condition of the Company and the its Subsidiaries as of the close of such fiscal year and the results of its operations and the operations of the its Subsidiaries during such year, all the foregoing consolidated financial statements to be audited by Coopers & Xxxxxxx, independent public accountants, PricewaterhouseCoopers LLP or other independent public accountants of recognized national standing acceptable to the Required Banks Lenders and accompanied by an opinion of such accountant accountants (which shall not be qualified in any material respect) to the effect that such consolidated financial statements fairly present the financial condition and results of operations of the Company and the Subsidiaries on a consolidated basis in accordance with GAAPGAAP consistently applied;
(b) within 60 45 days after the end of each of the first three fiscal quarters of each fiscal year, unaudited Consolidated its consolidated balance sheets, Consolidated sheets and related statements of income and Consolidated statements cash flows, showing the financial condition of cash flows showing the Company and its Subsidiaries as of the close of such fiscal quarter and the results of its operations and the operations of its Subsidiaries during such fiscal quarter and the then elapsed portion of such fiscal year, all certified by one of its Financial Officers as fairly presenting the financial condition and results of operations of the Company and the Subsidiaries on a consolidated basis as of the end of each such quarter and for the then elapsed portion of the fiscal year, certified by a Financial Officer of the Company as presenting fairly the financial position and results of operations of the Company and such Subsidiaries and as having been prepared in accordance with GAAP (except for such changes therein as are approved by the independent accountants for the Company)consistently applied, in each case subject to normal year-end audit adjustments;
(c) concurrently with any delivery of financial statements under (a) and or (b) above, a certificate of the accounting firm or person referred to therein Financial Officer opining on or certifying such statements (which certificate certificate, when furnished by the independent accountants referred to in paragraph (a) above an accounting firm, may be limited to the best of its knowledge and to accounting matters and may disclaim responsibility for legal interpretations) (i) certifying that no Default or Event of Default or Default has occurred, occurred or, if such a an Event of Default or Event of Default has occurred, specifying the nature and extent thereof and, in the case of the certificate furnished by a Financial Officer of the Company, specifying 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 6.05 Sections 6.06 and 6.066.07;
(d) promptly after the same become publicly available and to the extent not required to be furnished by any other provision of this Section 5.04available, (i) copies of all periodic and other reports, proxy statements, financial statements and reports that the Company sends to its stockholders and other materials (iiother than materials ministerial or administrative in nature) copies of all regular, periodic and special reports, and all registration statements relating to transactions requiring a vote of stockholders of the Company or filed on Form X-0, X-0 or S-3 under the Securities Act of 1933, which the Company or any Subsidiary files by it with the Securities and Exchange Commission, or any Governmental Authority which may be substituted therefor, succeeding to any of or with any national securities exchangeall the functions of such Commission, or distributed to its shareholders, as the case may be; and
(e) promptly, from time to time, such other information regarding the operations, business affairs and financial condition (financial or otherwise) of the Company and or any Subsidiary, or compliance with the Subsidiaries terms of any Loan Document, as each Bank through the Administrative Agent or any Lender may reasonably request; provided. Documents required to be delivered under this Section 5.04 may be delivered electronically and if so delivered, however, that shall be deemed to have been delivered on the Company shall not be obligated to discloseearliest date on which such documents are posted on, or a link to permit any examination which will disclose, technical knowledge or confidential trade information, except where appropriate safeguards exist that prevent dissemination of such information in a manner detrimental to documents is provided on (i) the Company's competitive position’s website on the internet at xxx.xxxxxx.xxx, (ii) the website of the U.S. Securities and Exchange Commission or (iii) the Platform.
Appears in 2 contracts
Samples: Credit Agreement (Harsco Corp), Credit Agreement (Harsco Corp)
Financial Statements, Reports, etc. In the case of the CompanyHoldings, furnish directly to the Administrative Agent and (which shall furnish such statements, certificates or other documents received pursuant to this Section 5.04 to each of the Banks:Lender and Issuing Bank):
(a) within 120 90 days after the end of each fiscal year of the Company (being December 31 in each calendar year), its Consolidated consolidated balance sheets, Consolidated sheet and related statements of income income, stockholders’ equity and Consolidated statements of cash flows showing the Consolidated financial condition of the Company Holdings and the Subsidiaries its consolidated subsidiaries as of the close of such fiscal year and the results of its operations and the operations of the Subsidiaries during such consolidated subsidiaries for such year, together with comparative figures for the immediately preceding fiscal year, all the foregoing consolidated financial statements to be audited by Coopers & Xxxxxxx, independent public accountants, KPMG LLP or other independent public accountants acceptable to the Required Banks of recognized national standing and accompanied by an opinion of such accountant accountants (which shall not be qualified in any material respectas to the scope of such audit or as to “going concern”) to the effect that such consolidated financial statements fairly present in all material respects the financial condition and results of operations of the Company Holdings and the Subsidiaries its consolidated subsidiaries on a consolidated basis in accordance with GAAPGAAP consistently applied;
(b) within 60 45 days after the end of each of the first three fiscal quarters of each fiscal year, unaudited Consolidated its consolidated balance sheets, Consolidated sheet and related statements of income income, stockholders’ equity and Consolidated statements of cash flows showing the financial condition of Holdings and results of operations of the Company and the Subsidiaries on a its consolidated basis subsidiaries as of the end close of each such fiscal quarter and for the results of its operations and the operations of such consolidated subsidiaries during such fiscal quarter and the then elapsed portion of the fiscal year, and comparative figures for the same periods in the immediately preceding fiscal year, all certified by a one of its Financial Officer of the Company Officers as fairly presenting fairly in all material respects the financial position condition and results of operations of the Company Holdings and such Subsidiaries and as having been prepared its consolidated subsidiaries on a consolidated basis in accordance with GAAP (except for such changes therein as are approved by the independent accountants for the Company)consistently applied, in each case subject to normal year-end audit adjustmentsadjustments and the absence of footnotes;
(c) concurrently with any delivery of financial statements under paragraph (a) and or (b) above, a certificate of the firm or person referred to therein (which certificate furnished by the independent accountants referred to in paragraph (a) above may be limited to the best of its knowledge and to accounting matters and may disclaim responsibility for legal interpretations) a Financial Officer (i) certifying that no Default or Event of Default or Default has occurred, occurred or, if such a an Event of Default or Event of Default has occurred, specifying the nature and extent thereof and, in the case of the certificate furnished by a Financial Officer of the Company, specifying 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 Sections 6.05 and 6.06;
(d) 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 course of their examination of such financial statements of any Default or Event of Default with respect to the covenants contained in Sections 6.05 and 6.06 has occurred (which certificate may be limited to the extent required by accounting rules or guidelines);
(e) [Reserved];
(f) promptly after the same become publicly available and to the extent not required to be furnished by any other provision of this Section 5.04available, (i) copies of all proxy statements, financial statements material reports filed by Holdings and reports that the Company sends to its stockholders and (ii) copies of all regular, periodic and special reports, and all registration statements relating to transactions requiring a vote of stockholders of the Company or filed on Form X-0, X-0 or S-3 under the Securities Act of 1933, which the Company or any Subsidiary files U.S. Borrower with the Securities and Exchange Commission, or any Governmental Authority which may be substituted thereforSEC, or with any national securities exchange, or distributed to its shareholders, as the case may be;
(g) [Reserved]; and
(eh) subject to applicable law and third party confidentiality agreements entered into by Holdings or the U.S. Borrower in the ordinary course of business, promptly, from time to time, such other information regarding the operations, business affairs and financial condition (financial of Holdings, the U.S. Borrower or otherwise) any Subsidiary, or compliance with the terms of the Company and the Subsidiaries any Loan Document, as each Bank through the Administrative Agent may reasonably request; providedrequest (including on behalf of any Lender). The U.S. Borrower and Holdings hereby acknowledge and agree that all financial statements and certificates furnished pursuant to paragraphs (a), however(b), that (c) and (d) above (i) are hereby deemed to be Borrower Materials suitable for distribution, and to be made available, to Public Lenders as contemplated by Section 9.01 and may be treated by the Company Administrative Agent and the Lenders as if the same had been marked “PUBLIC” in accordance with such section and (ii) shall not be obligated deemed to disclosehave been delivered on the date on which the U.S. Borrower or Holdings posts such documents, or provides a link thereto on the U.S. Borrower’s website on the Internet at xxxx://xxxx.xxx or such other website with respect to permit which the U.S. Borrower may from time to time notify the Administrative Agent and to which the Lenders have access or (y) files a Form 10-K or 10-Q for the relevant fiscal period, as applicable, with the SEC, or with any examination which will disclosenational securities exchange, technical knowledge or confidential trade informationdistributed to its shareholders, except where appropriate safeguards exist that prevent dissemination of such information in a manner detrimental to as the Company's competitive positioncase may be.
Appears in 2 contracts
Samples: Credit Agreement (Cbre Group, Inc.), Credit Agreement (Cbre Group, Inc.)
Financial Statements, Reports, etc. In the case of the Company, furnish directly to the Administrative Agent and (which will promptly furnish same to each of the Banks:Lender):
(a) within 120 90 days after the end of each fiscal year of the Company (being December 31 in each calendar year), its Consolidated balance sheets, sheet and related Consolidated statements of income and Consolidated statements of earnings, cash flows and shareholders’ equity, showing the Consolidated financial condition position of the Company and the its Consolidated Subsidiaries as of the close of such fiscal year and the their results of its operations and the operations of the Subsidiaries during cash flows for such year, all the foregoing consolidated financial statements to be audited by Coopers & Xxxxxxx, independent public accountants, PricewaterhouseCoopers LLP or other independent public accountants acceptable to the Required Banks of recognized national standing and accompanied by an opinion of such accountant accountants (which shall not be qualified in any material respectrespect except with the consent of the Required Lenders) to the effect that such consolidated Consolidated financial statements fairly present in all material respects the financial condition and position, results of operations and cash flows of the Company and the Subsidiaries on a consolidated Consolidated basis in accordance with GAAP consistently applied (except with respect to consistency as otherwise indicated therein), provided that if the independent auditor’s report with respect to such consolidated financial statements is a combined report (that is, one report containing both an opinion on such consolidated financial statements and an opinion on internal controls over financial reporting), then such report may include a qualification or limitation relating to the Company’s system of internal controls over financial reporting due to the exclusion of any acquired business from the management report on internal controls over financial reporting made pursuant to Item 308 of Regulation S-K of the Securities and Exchange Commission, to the extent such exclusion is permitted under provisions published by the Securities and Exchange Commission; provided further, if applicable, the independent auditor’s report may contain references to independent audits performed by other independent public accountants of recognized national standing as contemplated by AU Section 543, Part of Audit Performed by Other Independent Auditors, or any successor standard under GAAP;.
(b) within 60 45 days after the end of each of the first three fiscal quarters of each fiscal year, unaudited its Consolidated balance sheets, sheet and related Consolidated statements of income earnings and Consolidated statements of cash flows showing the financial condition and results of operations position of the Company and the its Consolidated Subsidiaries on a consolidated basis as of the end close of each such fiscal quarter and their results of operations for such fiscal quarter and the then elapsed portion of the fiscal year and their cash flows for the then elapsed portion of the fiscal year, all certified by a one of its Financial Officer Officers as fairly presenting in all material respects the financial position, results of operations and cash flows of the Company as presenting fairly the financial position and results of operations of the Company and such Subsidiaries and as having been prepared on a Consolidated basis in accordance with GAAP consistently applied (except for such changes therein with respect to consistency as are approved by the independent accountants for the Companyotherwise indicated therein), in each case subject to normal year-end audit adjustmentsadjustments and the absence of footnotes;
(c) concurrently with any delivery of financial statements under paragraph (a) and or (b) above, a certificate certificate, substantially in the form of the firm or person referred to therein (which certificate furnished by the independent accountants referred to in paragraph (a) above may be limited to the best Exhibit F hereto, of its knowledge and to accounting matters and may disclaim responsibility for legal interpretations) a Financial Officer (i) certifying that no Default or Event of Default has occurred, occurred or, if such a Default or Event of Default has occurred, specifying the nature and extent thereof and, in the case of the certificate furnished by a Financial Officer of the Company, specifying 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 Administrative Agent demonstrating compliance with the covenants contained in Section 6.05 and 6.067.01;
(d) promptly after the same become publicly available and to the extent not required to be furnished by any other provision of this Section 5.04available, (i) copies of all periodic and other reports, proxy statements, financial statements and reports that the Company sends to its stockholders and (ii) copies of all regular, periodic and special reports, and all registration statements relating to transactions requiring a vote of stockholders of the Company or other materials filed on Form X-0, X-0 or S-3 under the Securities Act of 1933, which the Company or any Subsidiary files by it with the Securities and Exchange Commission, or any Governmental Authority which may be substituted thereforsucceeding to any of or all the functions of such Commission, or with any national securities exchange, or distributed to its shareholdersshareholders generally, as the case may be; and
(e) promptly, from time to time, (x) such other information regarding the operations, business affairs and financial condition (financial or otherwise) of the Company or any Subsidiary, or compliance with the terms of the Loan Documents, as the Administrative Agent, at the request of any Lender, may reasonably request and the Subsidiaries as each Bank through (y) information and documentation reasonably requested by the Administrative Agent may reasonably request; providedor any Lender for purposes of compliance with applicable “know your customer” and anti-money laundering rules and regulations, howeverincluding the Patriot Act and the Beneficial Ownership Regulation. Information required to be delivered pursuant to paragraphs 5.04(a), that 5.04(b) or 5.04(d) above shall be deemed to have been delivered on the date on which (x) such information has been posted on the Internet by the Securities and Exchange Commission at xxxxx://xxx.xxx.xxx/xxxxx/searchedgar/webusers.htm (or any successor website) or (y) the Company shall not be obligated provides notice to disclose, or to permit any examination which will disclose, technical knowledge or confidential trade information, except where appropriate safeguards exist the Administrative Agent that prevent dissemination of such information has been posted on the Company’s website on the Internet at xxx.xxxxxxx.xxx or at another website identified in such notice and accessible by the Lenders without charge; provided that (i) such notice may be included in a manner detrimental certificate delivered pursuant to paragraph 5.04(c) and (ii) the Company's competitive positionBorrower shall deliver paper copies of the information referred to in paragraphs 5.04(a) or 5.04(b) to any Lender which requests such delivery.
Appears in 2 contracts
Samples: 364 Day Credit Agreement (Cummins Inc), Credit Agreement (Cummins Inc)
Financial Statements, Reports, etc. In the case of the CompanyBorrower, furnish directly to the Administrative Agent and to each of the BanksLender:
(a) within 120 90 days after the end of each fiscal year of the Company (being December 31 in each calendar year), its Consolidated consolidated balance sheets, Consolidated sheet and related statements of income operations, stockholders' equity and Consolidated statements of cash flows showing the Consolidated financial condition of the Company Borrower and the its consolidated Subsidiaries as of the close of such fiscal year and the results of its operations and the operations of the such Subsidiaries during such year, all the foregoing consolidated financial statements to be audited by Coopers Ernst & Xxxxxxx, independent public accountants, Young LLP or other independent public accountants of recognized national standing acceptable to the Required Banks Lenders and accompanied by an opinion of such accountant accountants (which shall not be qualified in any material respect) to the effect that such consolidated financial statements fairly present the financial condition and results of operations of the Company Borrower and the its consolidated Subsidiaries on a consolidated basis in accordance with GAAPGAAP consistently applied;
(b) within 60 45 days after the end of each of the first three fiscal quarters of each fiscal year, unaudited Consolidated its consolidated balance sheets, Consolidated sheet and related statements of income operations, stockholders' equity and Consolidated statements of cash flows showing the financial condition of the Borrower and its consolidated Subsidiaries as of the close of such fiscal quarter and the results of its operations and the operations of such Subsidiaries during such fiscal quarter and the then elapsed portion of the fiscal year, all certified by one of its Financial Officers as fairly presenting in all material respects the financial condition and results of operations of the Company Borrower and the its consolidated Subsidiaries on a consolidated basis as of the end of each such quarter and for the then elapsed portion of the fiscal year, certified by a Financial Officer of the Company as presenting fairly the financial position and results of operations of the Company and such Subsidiaries and as having been prepared in accordance with GAAP (except for such changes therein as are approved by the independent accountants for the Company)consistently applied, in each case subject to normal year-end audit adjustments;
(c) concurrently with any delivery of financial statements under sub-paragraph (a) and or (b) above, a letter of the accounting firm or certificate of the firm Financial Officer reporting on or person referred to therein certifying such statements (which certificate letter, when furnished by the independent accountants referred to in paragraph (a) above an accounting firm, may be limited to the best of its knowledge and to accounting matters and may disclaim responsibility for legal interpretations) (i) certifying reporting that no Default or they are unaware that any Event of Default has occurred, in the case of the accounting firm, or certifying that no Event of Default or Default has occurred, in the case of the Financial Officer, or, if such a an Event of Default or Event of Default has occurred, specifying the nature and extent thereof and, in the case of the certificate furnished by a Financial Officer of the Company, specifying 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 6.05 and 6.06thereto;
(d) promptly after the same become publicly available and to the extent not required to be furnished by any other provision of this Section 5.04available, (i) copies of all periodic and other reports, proxy statements, financial statements and reports that other materials filed by the Company sends to its stockholders and (ii) copies of all regular, periodic and special reports, and all registration statements relating to transactions requiring a vote of stockholders of the Company or filed on Form X-0, X-0 or S-3 under the Securities Act of 1933, which the Company Borrower or any Subsidiary files with the Securities and Exchange Commission, or any Governmental Authority which may be substituted thereforsucceeding 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
(e) prior to the beginning of each fiscal year, a copy of the budget for its consolidated balance sheet and related statements of income and cash flows for each quarter of such fiscal year; and
(f) promptly, from time to time, such other information regarding the operations, business affairs and financial condition (financial or otherwise) of the Company and Borrower or any Subsidiary, or compliance with the Subsidiaries terms of any Loan Document, as each Bank through the Administrative Agent or any Lender may reasonably request; provided, however, that the Company shall not be obligated to disclose, or to permit any examination which will disclose, technical knowledge or confidential trade information, except where appropriate safeguards exist that prevent dissemination of such information in a manner detrimental to the Company's competitive position.
Appears in 2 contracts
Samples: Credit Agreement (Hartley Controls Corp), Credit Agreement (Neenah Foundry Co)
Financial Statements, Reports, etc. In the case of the CompanyParent, furnish directly to the Administrative Agent and Agent, which shall furnish to each of the BanksLender:
(a) within 120 90 days after the end of each fiscal year of the Company (being December 31 in each calendar year), its Consolidated consolidated balance sheets, Consolidated sheet and related statements of income income, stockholders’ equity and Consolidated statements of cash flows showing the Consolidated financial condition of the Company Parent and the Subsidiaries its consolidated subsidiaries as of the close of such fiscal year and the results of its operations and the operations of the Subsidiaries such subsidiaries during such year, all the foregoing consolidated together with (commencing with such financial statements to be for the fiscal year ending on December 31, 2008) comparative figures for the immediately preceding fiscal year, all audited by Coopers Deloitte & Xxxxxxx, independent public accountants, Touche LLP or other independent public accountants acceptable to the Required Banks of recognized national standing and accompanied by an opinion of such accountant accountants (which opinion shall not be qualified in without a “going concern” or like qualification or exception or any material respectqualification or exception as to the scope of such audit) to the effect that such consolidated financial statements fairly present in all material respects the financial condition and results of operations of the Company Parent and the Subsidiaries its consolidated subsidiaries on a consolidated basis in accordance with GAAP;
(b) within 60 50 days after the end of each of the first three fiscal quarters of each fiscal year, unaudited Consolidated in each case commencing with the fiscal quarter ending September 30, 2007, its consolidated balance sheets, Consolidated sheet and related statements of income income, stockholders’ equity and Consolidated statements of cash flows showing the financial condition of Parent and results of operations of the Company and the Subsidiaries on a its consolidated basis subsidiaries as of the end close of each such fiscal quarter and for the results of its operations and the operations of such subsidiaries during such fiscal quarter and the then elapsed portion of the fiscal year, and (commencing with such financial statements delivered after the first anniversary of the Closing Date) comparative figures for the same periods in the immediately preceding fiscal year all certified by a one of its Financial Officer of the Company Officers as fairly presenting fairly in all material respects the financial position condition and results of operations of the Company Parent and such Subsidiaries and as having been prepared its consolidated subsidiaries on a consolidated basis in accordance with GAAP (except for such changes therein as are approved by the independent accountants for the Company)GAAP, in each case subject to normal year-end audit adjustments;
(c) concurrently with any delivery of financial statements under paragraph (a) and or (b) above, a certificate of a Financial Officer of the firm or person referred to therein (which certificate furnished by the independent accountants referred to in paragraph (a) above may be limited to the best of its knowledge and to accounting matters and may disclaim responsibility for legal interpretations) Borrower (i) certifying that no Default or Event of Default or Default has occurred, occurred or, if such a an Event of Default or Event of Default has occurred, specifying the nature and extent thereof and, in the case of the certificate furnished by a Financial Officer of the Company, specifying and any corrective action taken or proposed to be taken with respect thereto and thereto, (ii) setting forth computations in reasonable detail satisfactory to the Administrative Agent demonstrating compliance with the covenants contained in Section 6.05 Sections 6.11, 6.12 and 6.066.13, (iii) setting forth the identity and value of any Hospital acquired in fee by Parent or any Subsidiary during the preceding quarter and not previously identified to the Administrative Agent if the fair market value thereof is in excess of $10,000,000 and (iv) setting forth the amount, if any, of the Initial Pro Forma Adjustment included in the calculation of Consolidated EBITDA for such period, and, in the case of a certificate delivered with the financial statements required by paragraph (a) above, setting forth Parent’s calculation of Excess Cash Flow;
(d) within 90 days after the beginning of each fiscal year of Parent, 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 and to the extent not required to be furnished by any other provision of this Section 5.04available, (i) copies of all periodic and other reports, proxy statements, financial statements and reports that other materials filed by Parent, the Company sends to its stockholders and (ii) copies of all regular, periodic and special reports, and all registration statements relating to transactions requiring a vote of stockholders of the Company or filed on Form X-0, X-0 or S-3 under the Securities Act of 1933, which the Company Borrower or any Subsidiary files with the Securities and Exchange Commission, or any Governmental Authority which may be substituted thereforSEC, or with any national securities exchange, or distributed to its shareholders, as the case may be; and;
(ef) promptly after the request by any Lender (made 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;
(g) promptly after the request by the Administrative Agent or any Lender, on and after the effectiveness of the applicable provisions of the Pension Act, 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;
(h) promptly, from time to time, such other information regarding the operations, business affairs and financial condition (financial of Parent, the Borrower or otherwise) any Subsidiary, or compliance with the terms of the Company and the Subsidiaries any Loan Document, as each Bank through the Administrative Agent may reasonably requestrequest (on behalf of itself or any Lender); providedand
(i) substantially contemporaneously with each designation of a Subsidiary as an “Unrestricted Subsidiary” and each redesignation of an Unrestricted Subsidiary as a “Subsidiary”, however, that the Company shall not be obligated to disclose, or to permit any examination which will disclose, technical knowledge or confidential trade information, except where appropriate safeguards exist that prevent dissemination provide written notice of such information in a manner detrimental designation or redesignation, as applicable, to the Company's competitive positionAdministrative Agent (who shall promptly notify the Lenders).
Appears in 2 contracts
Samples: Credit Agreement (Community Health Systems Inc), Credit Agreement (Community Health Systems Inc)
Financial Statements, Reports, etc. In the case of the CompanyBorrower, furnish directly to the Administrative Agent and to each of the BanksLender:
(a) within 120 90 days after the end of each fiscal year of the Company (being December 31 in each calendar year), its Consolidated consolidated balance sheets, Consolidated sheet and related statements of income operations, stockholders' equity and Consolidated statements of cash flows showing the Consolidated financial condition of the Company Borrower and the its consolidated Subsidiaries as of the close of such fiscal year and the results of its operations and the operations of the such Subsidiaries during such year, all the foregoing consolidated financial statements to be audited by Coopers Ernst & Xxxxxxx, independent public accountants, Young LLP or other independent public accountants of recognized national standing acceptable to the Required Banks Lenders and accompanied by an opinion of such accountant accountants (which shall not be qualified in any material respect) to the effect that such consolidated financial statements fairly present the financial condition and results of operations of the Company Borrower and the its consolidated Subsidiaries on a consolidated basis in accordance with GAAPGAAP consistently applied;
(b) within 60 45 days after the end of each of the first three fiscal quarters of each fiscal year, unaudited Consolidated its consolidated balance sheets, Consolidated sheet and related statements of income operations, stockholders' equity and Consolidated statements of cash flows showing the financial condition of the Borrower and its consolidated Subsidiaries as of the close of such fiscal quarter and the results of its operations and the operations of such Subsidiaries during such fiscal quarter and the then elapsed portion of the fiscal year, all certified by one of its Financial Officers as fairly presenting in all material respects the financial condition and results of operations of the Company Borrower and the its consolidated Subsidiaries on a consolidated basis as of the end of each such quarter and for the then elapsed portion of the fiscal year, certified by a Financial Officer of the Company as presenting fairly the financial position and results of operations of the Company and such Subsidiaries and as having been prepared in accordance with GAAP (except for such changes therein as are approved by the independent accountants for the Company)consistently applied, in each case subject to normal year-end audit adjustments;
(c) concurrently with any delivery of financial statements under sub-paragraph (a) and or (b) above, a letter of the accounting firm or certificate of the firm Financial Officer reporting on or person referred to therein certifying such statements (which certificate letter, when furnished by the independent accountants referred to in paragraph (a) above an accounting firm, may be limited to the best of its knowledge and to accounting matters and may disclaim responsibility for legal interpretations) (i) certifying reporting that no Default or they are unaware that any Event of Default has occurred, in the case of the accounting firm, or certifying that no Event of Default or Default has occurred, in the case of the Financial Officer, or, if such a an Event of Default or Event of Default has occurred, specifying the nature and extent thereof and, in the case of the certificate furnished by a Financial Officer of the Company, specifying 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 6.05 and 6.06thereto;
(d) promptly after the same become publicly available and to the extent not required to be furnished by any other provision of this Section 5.04available, (i) copies of all periodic and other reports, proxy statements, financial statements and reports that other materials filed by the Company sends to its stockholders and (ii) copies of all regular, periodic and special reports, and all registration statements relating to transactions requiring a vote of stockholders of the Company or filed on Form X-0, X-0 or S-3 under the Securities Act of 1933, which the Company Borrower or any Subsidiary files with the Securities and Exchange Commission, or any Governmental Authority which may be substituted thereforsucceeding 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
(e) prior to the beginning of each fiscal year, a copy of the budget for its consolidated balance sheet and related statements of income and cash flows for each quarter of such fiscal year; and
(f) promptly, from time to time, such other information regarding the operations, business affairs and financial condition (financial or otherwise) of the Company and Borrower or any Subsidiary, or compliance with the Subsidiaries terms of any Loan Document, as each Bank through the Administrative Agent or any Lender may reasonably request; provided, however, that the Company shall not be obligated to disclose, or to permit any examination which will disclose, technical knowledge or confidential trade information, except where appropriate safeguards exist that prevent dissemination of such information in a manner detrimental to the Company's competitive position.. 61 56
Appears in 1 contract
Financial Statements, Reports, etc. In the case of the Company, furnish directly to the Administrative Agent and (which will promptly furnish same to each of the Banks:Lender):
(a) within 120 90 days after the end of each fiscal year of the Company (being December 31 in each calendar year), its Consolidated balance sheets, sheet and related Consolidated statements of income and Consolidated statements of earnings, cash flows and shareholders’ equity, showing the Consolidated financial condition position of the Company and the its Consolidated Subsidiaries as of the close of such fiscal year and the their results of its operations and the operations of the Subsidiaries during cash flows for such year, all the foregoing consolidated financial statements to be audited by Coopers & Xxxxxxx, independent public accountants, PricewaterhouseCoopers LLP or other independent public accountants acceptable to the Required Banks of recognized national standing and accompanied by an opinion of such accountant accountants (which shall not be qualified in any material respectrespect except with the consent of the Required Lenders) to the effect that such consolidated Consolidated financial statements fairly present in all material respects the financial condition and position, results of operations and cash flows of the Company and the Subsidiaries on a consolidated Consolidated basis in accordance with GAAP consistently applied (except with respect to consistency as otherwise indicated therein), provided that if the independent auditor’s report with respect to such consolidated financial statements is a combined report (that is, one report containing both an opinion on such consolidated financial statements and an opinion on internal controls over financial reporting), then such report may include a qualification or limitation relating to the Company’s system of internal controls over financial reporting due to the exclusion of any acquired business from the management report on internal controls over financial reporting made pursuant to Item 308 of Regulation S-K of the Securities and Exchange Commission, to the extent such exclusion is permitted under provisions published by the Securities and Exchange Commission; provided further, if applicable, the independent auditor’s report may contain references to independent audits performed by other independent public accountants of recognized national standing as contemplated by AU Section 543, Part of Audit Performed by Other Independent Auditors, or any successor standard under GAAP;.
(b) within 60 45 days after the end of each of the first three fiscal quarters of each fiscal year, unaudited its Consolidated balance sheets, sheet and related Consolidated statements of income earnings and Consolidated statements of cash flows showing the financial condition and results of operations position of the Company and the its Consolidated Subsidiaries on a consolidated basis as of the end close of each such fiscal quarter and their results of operations for such fiscal quarter and the then elapsed portion of the fiscal year and their cash flows for the then elapsed portion of the fiscal year, all certified by a one of its Financial Officer Officers as fairly presenting in all material respects the financial position, results of operations and cash flows of the Company as presenting fairly the financial position and results of operations of the Company and such Subsidiaries and as having been prepared on a Consolidated basis in accordance with GAAP consistently applied (except for such changes therein with respect to consistency as are approved by the independent accountants for the Companyotherwise indicated therein), in each case subject to normal year-end audit adjustmentsadjustments and the absence of footnotes;
(c) concurrently with any delivery of financial statements under paragraph (a) and or (b) above, a certificate certificate, substantially in the form of the firm or person referred to therein (which certificate furnished by the independent accountants referred to in paragraph (a) above may be limited to the best Exhibit F hereto, of its knowledge and to accounting matters and may disclaim responsibility for legal interpretations) a Financial Officer (i) certifying that no Default or Event of Default has occurred, occurred or, if such a Default or Event of Default has occurred, specifying the nature and extent thereof and, in the case of the certificate furnished by a Financial Officer of the Company, specifying 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 Administrative Agent demonstrating compliance with the covenants contained in Section 6.05 and 6.067.01;
(d) promptly after the same become publicly available and to the extent not required to be furnished by any other provision of this Section 5.04available, (i) copies of all periodic and other reports, proxy statements, financial statements and reports that the Company sends to its stockholders and (ii) copies of all regular, periodic and special reports, and all registration statements relating to transactions requiring a vote of stockholders of the Company or other materials filed on Form X-0, X-0 or S-3 under the Securities Act of 1933, which the Company or any Subsidiary files by it with the Securities and Exchange Commission, or any Governmental Authority which may be substituted thereforsucceeding to any of or all the functions of such Commission, or with any national securities exchange, or distributed to its shareholdersshareholders generally, as the case may be; and
(e) promptly, from time to time, such other information regarding the operations, business affairs and financial condition (financial or otherwise) of the Company or any Subsidiary, or compliance with the terms of the Loan Documents, as the Administrative Agent, at the request of any Lender, may reasonably request. Information required to be delivered pursuant to paragraphs 5.04(a), 5.04(b) or 5.04(d) above shall be deemed to have been delivered on the date on which (x) such information has been posted on the Internet by the Securities and Exchange Commission at xxxxx://xxx.xxx.xxx/xxxxx/searchedgar/webusers.htm (or any successor website) or (y) the Subsidiaries as each Bank through Company provides notice to the Administrative Agent may reasonably request; provided, however, that the Company shall not be obligated to disclose, or to permit any examination which will disclose, technical knowledge or confidential trade information, except where appropriate safeguards exist that prevent dissemination of such information has been posted on the Company’s website on the Internet at xxx.xxxxxxx.xxx or at another website identified in such notice and accessible by the Lenders without charge; provided that (i) such notice may be included in a manner detrimental certificate delivered pursuant to paragraph 5.04(c) and (ii) the Company's competitive positionBorrower shall deliver paper copies of the information referred to in paragraphs 5.04(a) or 5.04(b) to any Lender which requests such delivery.
Appears in 1 contract
Financial Statements, Reports, etc. In the case of the Company, furnish directly Furnish to the Administrative Agent and to each of the BanksLender:
(a) within 120 as soon as available, and in no event later than 105 days after the end of each fiscal year (or 90 days during any time that the Borrower is subject to the periodic reporting requirements of the Company (being December 31 in each calendar yearSecurities Exchange Act of 1934, as amended), its Consolidated the consolidated and consolidating balance sheets, Consolidated sheets and related statements of income and Consolidated statements of cash flows flow, showing the Consolidated consolidated financial condition of the Company Borrower and the Subsidiaries its consolidated subsidiaries as of the close of such fiscal year and the results of its their operations and the operations of the Subsidiaries during such year, all the foregoing consolidated financial statements to be audited by Coopers & Xxxxxxx, independent public accountants, Price Waterhouse or other independent public accountants of recognized national standing reasonably acceptable to the Required Banks Lenders and accompanied by an opinion of such accountant accountants (which shall not be qualified in any material respect) to the effect that such consolidated financial statements fairly present the consolidated financial condition and results of operations of the Company Borrower and the Subsidiaries its consolidated subsidiaries on a consolidated basis in accordance with GAAPGAAP consistently applied;
(b) within as soon as available, and in no event later than 60 days (or 45 days during any time that the Borrower is subject to the periodic reporting requirements of the Securities Exchange Act of 1934, as amended) after the end of each of the first three fiscal quarters of each fiscal year, the unaudited Consolidated consolidated and consolidating balance sheets, Consolidated sheets and related statements of income and Consolidated statements of cash flows changes in financial position, showing the consolidated financial condition and results of operations of the Company Borrower and the Subsidiaries on a its consolidated basis subsidiaries as of the end close of each such fiscal quarter and for the results of their operations during such fiscal quarter and the then elapsed portion of the fiscal year, all certified by a Financial Officer of the Company Borrower as fairly presenting fairly the consolidated financial position condition and results of operations of the Company Borrower and such Subsidiaries and as having been prepared its consolidated subsidiaries in accordance with GAAP (except for such changes therein as are approved by the independent accountants for the Company)consistently applied, in each case subject to normal year-end audit adjustmentsadjustments and the absence of footnotes required by GAAP;
(c) concurrently with any delivery of financial statements under (a) and or (b) above, a certificate of the accounting firm or person referred to therein a Financial Officer of the Borrower opining on or certifying such statements (which certificate certificate, when furnished by the independent accountants referred to in paragraph (a) above an accounting firm, may be limited to the best of its knowledge and to accounting matters and may disclaim responsibility for legal interpretations) (i) certifying that no Default or Event of Default or Default has occurred, occurred or, if such a an Event of Default or Event of Default has occurred, specifying the nature and extent thereof and, in the case of the certificate furnished by a Financial Officer of the Company, specifying 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 6.05 Sections 7.13. 7.14, 7.15, 7.16 and 6.067.17;
(d) promptly after the same become publicly available and to the extent not required to be furnished by any other provision of this Section 5.04available, (i) copies of all periodic and other reports, proxy statements, financial statements and reports that other materials filed by the Company sends to its stockholders and (ii) copies of all regular, periodic and special reports, and all registration statements relating to transactions requiring a vote of stockholders of the Company or filed on Form X-0, X-0 or S-3 under the Securities Act of 1933, which the Company Borrower or any Subsidiary files of its subsidiaries with the Securities and Exchange Commission, or any Governmental Authority which may be substituted thereforgovernmental authority succeeding to any of or all the functions of said Commission, or with any national securities exchange, or distributed to its any of their shareholders, as the case may be; and;
(e) promptly following the preparation thereof, copies of each management letter prepared by the Borrower's, either Guarantor's or TAFSI's auditors (together with any response thereto prepared by the Borrower, such Guarantor or TAFSI);
(f) as soon as available, and in any event no later than 105 days after the end of each fiscal year historical summary data for the immediately preceding year and forecasted financial projections and summary data through the end of the then current fiscal year, in substantially the same form and format as set forth in Section 10 of the Confidential Information Memorandum (including a specification of the underlying assumptions and a management discussion of historical results), all certified by a Financial Officer of the Borrower to be a fair summary of its results and its good faith estimate of the forecasted financial projections and results of operations for the period through the then-current fiscal year;
(g) upon the earlier of (i) 105 days after the end of each fiscal year of the Borrower (commencing with the fiscal year ending December 31, 1997) and (ii) the date on which the financial statements with respect to such period are delivered pursuant to paragraph (a) above, a certificate of a Financial Officer of the Borrower setting forth, in detail satisfactory to the Agent, the amount of Excess Cash Flow, if any, for such period;
(h) promptly, from time to time, such other information regarding the operations, business affairs and financial condition (financial of either Guarantor, TAFSI or otherwise) the Borrower, or compliance with the terms of any Loan Document, as the Company and Agent, the Subsidiaries as each Bank through Fronting Bank, the Administrative Agent Swingline Lender or any Lender may reasonably request; provided;
(i) promptly, howevera copy of any amendment or waiver of any provisions of any agreement referenced in Section 7.10, that any amendment or waiver of any provision of the Company shall Tranche A Exchange Note Documents not be obligated to disclose, requiring the consent or to permit approval of the Lenders or any examination which will disclose, technical knowledge other amendment or confidential trade information, except where appropriate safeguards exist that prevent dissemination waiver of such information in a manner detrimental any provisions of any agreement to the Company's competitive positionextent that such amendment or waiver is required hereunder to be furnished to the Agent, the Fronting Bank or any Lender;
(j) promptly, a copy of any notice of a default received by the Borrower, TAFSI or either Guarantor under any other Loan Document;
(k) promptly a copy of any notice of default received by the Borrower, TAFSI or either Guarantor (i) from any Tranche A Exchange Note Purchaser under the Tranche A Exchange Note Purchase Agreements or (ii) under the Subordinated Note Indenture;
(l) a copy of all notices (other than regarding any scheduled or mandatory repayments), certificates, financial statements and reports, as and when delivered by or on behalf of the Borrower, TAFSI or either Guarantor (i) to the Tranche A Exchange Note Purchasers under the Tranche A Exchange Note Purchase Agreements or (ii) under the Subordinated Note Indenture (except to the extent any such notice, certificate, financial statement or report is otherwise required to be delivered pursuant to this Agreement); and
(m) a copy of all solicitations or requests for any proposed waiver or amendment of any of the provisions of the Tranche A Exchange Note Documents or Subordinated Note Indenture (but only if the consent or approval of the Lenders is required in connection therewith).
Appears in 1 contract
Samples: Credit Agreement (Ta Operating Corp)
Financial Statements, Reports, etc. In the case of Holdings and the CompanyBorrower, furnish directly to the Administrative Agent and to each of the BanksLender:
(a) within 120 105 days after the end of each fiscal year of the Company (being December 31 in each calendar year), its Consolidated consolidated balance sheets, Consolidated sheets and related statements of income and Consolidated statements of operations, cash flows and stockholders' equity showing the Consolidated financial condition of the Company Holdings and the Subsidiaries Borrower and their consolidated subsidiaries as of the close of such fiscal year and the results of its their operations and the operations of the Subsidiaries such subsidiaries during such year and the immediately preceding year, all the foregoing consolidated financial statements to be audited by Coopers Deloitte & Xxxxxxx, independent public accountants, Touche LLP or other independent public accountants acceptable to the Required Banks of recognized national standing and accompanied by an opinion of such accountant accountants (which shall not be qualified in any material respect) to the effect that such consolidated financial statements fairly present in all material respects the financial condition and results of operations of the Company Holdings and the Subsidiaries Borrower and their consolidated subsidiaries on a consolidated basis in accordance with GAAP;
(b) within 60 days after the end of each of the first three fiscal quarters of each fiscal year, unaudited Consolidated consolidated balance sheets, Consolidated sheets and related statements of income and Consolidated statements of operations, cash flows and stockholders' equity showing the financial condition of Holdings and the Borrower and their consolidated subsidiaries as of the close of such fiscal quarter and the results of their operations and the operations of such subsidiaries during such fiscal quarter and the then elapsed portion of the fiscal year and during the corresponding periods in the immediately preceding fiscal year, all certified by a Financial Officer of the Borrower as fairly presenting in all material respects the financial condition and results of operations of the Company Holdings and the Subsidiaries Borrower and their consolidated subsidiaries on a consolidated basis as of the end of each such quarter and for the then elapsed portion of the fiscal year, certified by a Financial Officer of the Company as presenting fairly the financial position and results of operations of the Company and such Subsidiaries and as having been prepared in accordance with GAAP (except for such changes therein as are approved by the independent accountants for the Company)GAAP, in each case subject to normal year-end audit adjustments;
(c) within 60 days after the end of each fiscal quarter of each fiscal year, a management report in form satisfactory to the Administrative Agent setting forth the consolidating revenues of Holdings and the Borrower and their consolidated subsidiaries for such quarter, the operating income before depreciation and amortization for each Station during such quarter and a summary report of the most recent Xxxxxxx ratings available for such Stations;
(d) concurrently with any delivery of financial statements under paragraph (a) and or (b) above, a certificate of the firm or person referred to therein a Financial Officer (which certificate furnished by the independent accountants referred to in paragraph (a) above may be limited qualified as being to the best knowledge of its knowledge and to accounting matters and may disclaim responsibility for legal interpretationssuch Financial Officer) (i) certifying that no Default or Event of Default or Default has occurred, occurred or, if such a an Event of Default or Event of Default has occurred, specifying the nature and extent thereof and, in the case of the certificate furnished by a Financial Officer of the Company, specifying and any corrective action taken or proposed to be taken with respect thereto and thereto, (ii) setting forth computations in reasonable detail satisfactory to the Administrative Agent demonstrating compliance with the financial covenants contained in Section 6.05 Article VI, (iii) in the case of delivery of financial statements under paragraph (a) above, accompanied by an auditor's negative assurance letter in customary form relating to the calculation of and 6.06compliance with such financial covenants and (iv) describing any applicable change in GAAP reflected in such financial statements and not reflected in any financial statements previously delivered and setting forth in reasonable detail the results thereof;
(de) concurrently with each delivery of financial statements under paragraph (a) above, beginning with the financial statements for the fiscal year ending December 31, 2002, a certificate of a Financial Officer in form and detail satisfactory to the Administrative Agent setting forth a calculation of Excess Cash Flow for the fiscal year to which such statements relate;
(f) promptly after the same become publicly available and to the extent not required to be furnished by any other provision of this Section 5.04available, (i) copies of all periodic and other reports, proxy statements, financial statements and reports that other materials filed by Group, Holdings, the Company sends to its stockholders and (ii) copies of all regular, periodic and special reports, and all registration statements relating to transactions requiring a vote of stockholders Borrower or any of the Company or filed on Form X-0, X-0 or S-3 under the Securities Act of 1933, which the Company or any Subsidiary files Subsidiaries with the Securities and Exchange Commission, or any Governmental Authority which may be substituted thereforsucceeding to any or all of the functions of said Commission, or with any national securities exchange;
(g) promptly following their submission with the FCC or any other Federal, state or distributed local Governmental Authority, copies of any and all periodic or special reports filed by Group or any of the Subsidiaries, if such reports indicate any material adverse change in the business, operations or financial condition of Group, Holdings, the Borrower or any of the Subsidiaries or if copies thereof are requested by any Lender or the Administrative Agent, and copies of any and all material notices and other material communications from the FCC or from any other Federal, state or local Governmental Authority with respect to its shareholders, as Group or any of the case may beSubsidiaries or any Station; and
(eh) promptly, from time to time, such other information regarding the operations, business affairs and financial condition (financial of Holdings, the Borrower or otherwise) any of the Company and Subsidiaries, or compliance with the Subsidiaries terms of any Loan Document, as each Bank through the Administrative Agent or any Lender may reasonably request; provided, however, that the Company shall not be obligated to disclose, or to permit any examination which will disclose, technical knowledge or confidential trade information, except where appropriate safeguards exist that prevent dissemination of such information in a manner detrimental to the Company's competitive position.
Appears in 1 contract
Financial Statements, Reports, etc. In the case of the CompanyBorrower, furnish directly to the Administrative Agent and who will distribute to each of the BanksLender:
(a) within 120 90 days after the end of each fiscal year of the Company (being December 31 in each calendar year), its Consolidated consolidated balance sheets, Consolidated sheet and related statements of income income, stockholders’ equity and Consolidated statements of cash flows showing the Consolidated financial condition of the Company Borrower and the its consolidated Subsidiaries as of the close of such fiscal year and the results of its operations and the operations of the such Subsidiaries during such year, together with comparative figures for the immediately preceding fiscal year, all the foregoing consolidated financial statements to be audited by Coopers Ernst & Xxxxxxx, independent public accountants, Young LL.P. or other independent public accountants acceptable to the Required Banks of recognized national standing and accompanied by an opinion of such accountant accountants (which shall not be qualified in any material respect) to the effect that such consolidated financial statements fairly present in all material respects the financial condition and results of operations of the Company Borrower and the its consolidated Subsidiaries on a consolidated basis in accordance with GAAPGAAP consistently applied;
(b) within 60 45 days after the end of each of the first three fiscal quarters of each fiscal year, unaudited Consolidated its consolidated balance sheets, Consolidated sheet and related statements of income and Consolidated statements of cash flows showing the financial condition of the Borrower and its consolidated Subsidiaries as of the close of such fiscal quarter and the results of its operations and the operations of such Subsidiaries during such fiscal quarter and the then elapsed portion of the fiscal year, and comparative figures for the same periods in the immediately preceding fiscal year, all certified by one of its Financial Officers as fairly presenting the financial condition and results of operations of the Company Borrower and the its consolidated Subsidiaries on a consolidated basis as of the end of each such quarter and for the then elapsed portion of the fiscal year, certified by a Financial Officer of the Company as presenting fairly the financial position and results of operations of the Company and such Subsidiaries and as having been prepared in accordance with GAAP (except for such changes therein as are approved by the independent accountants for the Company)consistently applied, in each case subject to normal year-end audit adjustmentsadjustments and the absence of footnotes;
(c) concurrently with any delivery of financial statements under paragraph (a) and or (b) above, a certificate of the firm or person referred to therein (which certificate furnished by the independent accountants referred to in paragraph (a) above may be limited to the best of its knowledge and to accounting matters and may disclaim responsibility for legal interpretations) a Financial Officer (i) certifying that no Default or Event of Default or Default has occurred, occurred or, if such a an Event of Default or Event of Default has occurred, specifying the nature and extent thereof and, in the case of the certificate furnished by a Financial Officer of the Company, specifying 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 6.05 Sections 6.11 and 6.066.12 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) at least 90 days after the end of each fiscal year of the Borrower, detailed consolidated projected income statements as of the end of and for such following fiscal year and setting forth the assumptions used for purposes of preparing such income statements) and, promptly when available, any significant revisions of such income statements;
(e) promptly after the same become publicly available and to the extent not required to be furnished by any other provision of this Section 5.04available, (i) copies of all periodic and other reports, proxy statements, financial statements and reports that other materials filed by the Company sends to its stockholders and (ii) copies of all regular, periodic and special reports, and all registration statements relating to transactions requiring a vote of stockholders of the Company or filed on Form X-0, X-0 or S-3 under the Securities Act of 1933, which the Company Borrower or any Subsidiary files with the Securities and Exchange Commission, or any Governmental Authority which may be substituted thereforsucceeding to any or all of the functions of said Commission, or with any national securities exchange;
(f) promptly after the receipt thereof by the Borrower or any of the Subsidiaries, a copy of any “management letter” (whether in final or distributed draft form) received by any such person from its certified public accountants and the management’s response thereto;
(g) promptly, from time to its shareholderstime, as all documentation and other information required by bank regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the case may be; U.S.A. Patriot Act and
(eh) promptly, from time to time, such other information regarding the operations, business affairs and financial condition (financial or otherwise) of the Company and Borrower or any Subsidiary, or compliance with the Subsidiaries terms of any Loan Document, as each Bank through the Administrative Agent may reasonably request; provided. Documents required to be delivered pursuant to Section 5.04(a), however(b) or (e) (to the extent any such documents are included in materials otherwise filed with the Securities and Exchange Commission) may be delivered by electronic mail, provided that the Company Borrower shall not be obligated to disclose, or to permit any examination which will disclose, technical knowledge or confidential trade information, except where appropriate safeguards exist that prevent dissemination deliver paper copies of such information in a manner detrimental documents to the Company's competitive positionAdministrative Agent upon written request.
Appears in 1 contract
Samples: Credit Agreement (Blackboard Inc)
Financial Statements, Reports, etc. In the case of the CompanyParent, furnish directly to the Administrative Agent and Agent, which shall furnish to each of the BanksLender:
(a) within 120 90 days after the end of each fiscal year of the Company (being December 31 in each calendar year), its Consolidated consolidated balance sheets, Consolidated sheet and related statements of income income, stockholders’ equity and Consolidated statements of cash flows showing the Consolidated financial condition of the Company Parent and the Subsidiaries its consolidated subsidiaries as of the close of such fiscal year and the results of its operations and the operations of the Subsidiaries such subsidiaries during such year, together with comparative figures for the immediately preceding fiscal year, all the foregoing consolidated financial statements to be audited by Coopers Deloitte & Xxxxxxx, independent public accountants, Touche LLP or other independent public accountants acceptable to the Required Banks of recognized national standing and accompanied by an opinion of such accountant accountants (which opinion shall not be qualified in without a “going concern” or like qualification or exception or any material respectqualification or exception as to the scope of such audit) to the effect that such consolidated financial statements fairly present in all material respects the financial condition and results of operations of the Company Parent and the Subsidiaries its consolidated subsidiaries on a consolidated basis in accordance with GAAP;
(b) within 60 50 days after the end of each of the first three fiscal quarters of each fiscal year, unaudited Consolidated its consolidated balance sheets, Consolidated sheet and related statements of income income, stockholders’ equity and Consolidated statements of cash flows showing the financial condition of Parent and results of operations of the Company and the Subsidiaries on a its consolidated basis subsidiaries as of the end close of each such fiscal quarter and for the results of its operations and the operations of such subsidiaries during such fiscal quarter and the then elapsed portion of the fiscal year, and comparative figures for the same periods in the immediately preceding fiscal year, all certified by a one of its Financial Officer of the Company Officers as fairly presenting fairly in all material respects the financial position condition and results of operations of the Company Parent and such Subsidiaries and as having been prepared its consolidated subsidiaries on a consolidated basis in accordance with GAAP (except for such changes therein as are approved by the independent accountants for the Company)GAAP, in each case subject to normal year-end audit adjustments;
(c) concurrently with any delivery of financial statements under paragraph (a) and or (b) above, a certificate of a Financial Officer of the firm or person referred to therein (which certificate furnished by the independent accountants referred to in paragraph (a) above may be limited to the best of its knowledge and to accounting matters and may disclaim responsibility for legal interpretations) Borrower (i) certifying that no Default or Event of Default or Default has occurred, occurred or, if such a an Event of Default or Event of Default has occurred, specifying the nature and extent thereof and, in the case of the certificate furnished by a Financial Officer of the Company, specifying and any corrective action taken or proposed to be taken with respect thereto and thereto, (ii) setting forth computations in reasonable detail satisfactory to the Administrative Agent of the Consolidated Fixed Charge Coverage Ratio (whether or not the financial covenant set forth in Section 6.13 is then required to be complied with) and, with respect to any Permitted Acquisition consummated during the preceding quarter for total consideration in excess of $100,000,000, demonstrating compliance with Section 6.04(h) and (iii) setting forth the covenants contained identity and value of any Hospital acquired in Section 6.05 fee by Parent or any Subsidiary during the preceding quarter and 6.06not previously identified to the Administrative Agent if the fair market value thereof is in excess of $10,000,000;
(d) (i) on or before the 20th day of each month (which monthly Borrowing Base Certificate shall be furnished regardless of whether weekly Borrowing Base Certificates are required to be furnished pursuant to clause (ii) below), the Borrower shall deliver to the Administrative Agent a Borrowing Base Certificate, prepared as of the immediately preceding Borrowing Base Reporting Date, together with customary supporting documentation (it being understood that all calculations of Excess Availability in any Borrowing Base Certificate shall originally be made by the Borrower and certified by a Financial Officer of the Borrower, provided that the Administrative Agent may from time to time review and adjust any such calculation in its Permitted Credit Judgment to the extent the calculation is not made in accordance with this Agreement or does not accurately reflect the Total Reserves), (ii) upon the occurrence and during the continuation of a Cash Dominion Period, the Borrower shall deliver to the Administrative Agent a weekly Borrowing Base Certificate on the Friday following the immediately preceding Borrowing Base Reporting Date, updated as of the close of business on such preceding Borrowing Base Reporting Date, together with available and customary supporting documentation which may include reasonable estimates and assumptions consistent with the Borrower’s accounting and reporting conventions and (iii) prior to the transfer of Accounts to any Person (other than the Borrower or a Loan Party) pursuant to any Asset Sale or other transaction or series of related transactions permitted hereunder (including any designation of a Subsidiary as an Unrestricted Subsidiary), (x) if such transaction or transactions (A) would result in Excess Availability of less than the greater of (I) $125,000,000 and (II) 15.0% of the Line Cap or (B) provides for the transfer of assets in an aggregate amount in excess of $100,000,000, the Borrower shall deliver to the Administrative Agent an updated Borrowing Base Certificate giving pro forma effect to such transaction or transactions and (y) if such transaction or series of transactions would not result in Excess Availability of less than the greater of (I) $125,000,000 and (II) 15.0% of the Line Cap and provides for the transfer of assets in an aggregate amount of greater than $25,000,000 (but less than or equal to $100,000,000), the Borrower shall deliver to the Administrative Agent an officer’s certificate certifying that after giving pro forma effect to such transaction or transactions, Excess Availability will be greater than the greater of (A) $95,000,000 and (B) 10% of the Line Cap;
(e) within 120 days after the beginning of each fiscal year of Parent, 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 and to the extent not required to be furnished by any other provision of this Section 5.04available, (i) copies of all periodic and other reports, proxy statements, financial statements and reports that other materials filed by Parent, the Company sends to its stockholders and (ii) copies of all regular, periodic and special reports, and all registration statements relating to transactions requiring a vote of stockholders of the Company or filed on Form X-0, X-0 or S-3 under the Securities Act of 1933, which the Company Borrower or any Subsidiary files with the Securities and Exchange Commission, or any Governmental Authority which may be substituted thereforSEC, or with any national securities exchange, or distributed to its shareholders, as the case may be; and;
(eg) promptly after the request by any Lender (made 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 the Beneficial Ownership Regulation;
(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;
(i) promptly, from time to time, such other information regarding the operations, business affairs and financial condition (financial of Parent, the Borrower or otherwise) any Subsidiary, or compliance with the terms of the Company and the Subsidiaries any Loan Document, as each Bank through the Administrative Agent may reasonably requestrequest (on behalf of itself or any Lender); providedand
(j) substantially contemporaneously with each designation of a Subsidiary as an “Unrestricted Subsidiary” and each redesignation of an Unrestricted Subsidiary as a “Subsidiary”, however, that the Company shall not be obligated to disclose, or to permit any examination which will disclose, technical knowledge or confidential trade information, except where appropriate safeguards exist that prevent dissemination provide written notice of such information in a manner detrimental designation or redesignation, as applicable, to the Company's competitive positionAdministrative Agent (who shall promptly notify the Lenders).
Appears in 1 contract
Samples: Abl Credit Agreement (Community Health Systems Inc)
Financial Statements, Reports, etc. In the case of the CompanySun, furnish directly to the Administrative Agent and Agent, which shall furnish to each of the BanksLender:
(a) within 120 90 days after the end of each fiscal year of (or such earlier date required by the Company (being December 31 in each calendar yearSEC), its Consolidated consolidated balance sheets, Consolidated sheet and related statements of income income, stockholders’ equity and Consolidated statements of cash flows showing the Consolidated financial condition of the Company Sun and the Subsidiaries its consolidated subsidiaries as of the close of such fiscal year and the results of its operations and the operations of the Subsidiaries such subsidiaries during such year, together with comparative figures for the immediately preceding fiscal year, all the foregoing consolidated financial statements to be audited by Coopers & Xxxxxxx, independent public accountants, PricewaterhouseCoopers LLP or other independent public accountants acceptable to the Required Banks of recognized national standing and accompanied by an opinion of such accountant accountants (which opinion shall not be qualified in without a “going concern” explanatory note or any material respectsimilar qualification or exception and without any qualification or exception as to the scope of such audit) to the effect that such consolidated financial statements fairly present in all material respects the financial condition and results of operations of the Company Sun and the Subsidiaries its consolidated subsidiaries on a consolidated basis in accordance with GAAPGAAP consistently applied;
(b) within 60 45 days after the end of each of the first three fiscal quarters of each fiscal yearyear (or such earlier date required by the SEC), unaudited Consolidated its consolidated balance sheets, Consolidated sheet and related statements of income and Consolidated statements of cash flows showing the financial condition of Sun and results of operations of the Company and the Subsidiaries on a its consolidated basis subsidiaries as of the end close of each such fiscal quarter and for the results of its operations and the operations of such subsidiaries during such fiscal quarter and the then elapsed portion of the fiscal year, and comparative figures for the same periods in the immediately preceding fiscal year, all certified by a one of its Financial Officer of the Company Officers as fairly presenting fairly in all material respects the financial position condition and results of operations of the Company Sun and such Subsidiaries and as having been prepared its consolidated subsidiaries on a consolidated basis in accordance with GAAP (except for such changes therein as are approved by the independent accountants for the Company)consistently applied, in each case subject to normal year-end audit adjustments;
(c) concurrently with any delivery of financial statements under paragraph (a) and or (b) above, a certificate of the firm or person referred to therein (which certificate furnished by the independent accountants referred to in paragraph (a) above may be limited to the best a Financial Officer of its knowledge and to accounting matters and may disclaim responsibility for legal interpretations) Sun (i) certifying that no Default or Event of Default or Default has occurred, occurred or, if such a an Event of Default or Event of Default has occurred, specifying the nature and extent thereof and, in the case of the certificate furnished by a Financial Officer of the Company, specifying 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 6.05 Sections 6.10, 6.11 and 6.066.12 and, in the case of a certificate delivered with the financial statements required by paragraph (a) above, setting forth Sun’s calculation of Excess Cash Flow;
(d) promptly after approval by Sun’s board of directors and in any event not later than 60 days after the beginning of each fiscal year of Sun, (i) a detailed consolidated budget for such fiscal year (including a projected consolidated balance sheet and related statements of projected operations and cash flows (including projected capital expenditures), as of the end of and for such fiscal year and on a quarter by quarter basis and setting forth the assumptions used for purposes of preparing such budget) and (ii) a detailed reconciliation of such projected financial results to the financial covenants set forth in Sections 6.11 and 6.12 hereof and, promptly when available, any significant revisions of such budget or covenant reconciliation;
(e) promptly after the same become publicly available and to the extent not required to be furnished by any other provision of this Section 5.04available, (i) copies of all periodic and other reports, proxy statements, financial statements and reports that the Company sends to its stockholders and (ii) copies of all regular, periodic and special reports, and all registration statements relating to transactions requiring a vote of stockholders of the Company or other materials filed on Form X-0, X-0 or S-3 under the Securities Act of 1933, which the Company by Sun or any Subsidiary files with the Securities and Exchange CommissionSEC, or any Governmental Authority which may be substituted thereforsucceeding 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;
(f) promptly after the receipt thereof by Sun 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;
(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 following any request therefor, copies of (i) any documents described in Section 101(k)(1) of ERISA that Sun 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 Sun or any of its ERISA Affiliates may request with respect to any Multiemployer Plan; provided that if Sun or any of its ERISA Affiliates has not requested such documents or notices from the administrator or sponsor of the applicable Multiemployer Plan, Sun or its ERISA Affiliates shall promptly after the request of any Lender 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; and
(ei) promptly, from time to time, such other information regarding the operations, business affairs and financial condition (financial of Sun or otherwise) any Subsidiary, or compliance with the terms of the Company and the Subsidiaries any Loan Document, as each Bank through the Administrative Agent or any Lender may reasonably request; provided, however, that the Company shall not be obligated to disclose, or to permit any examination which will disclose, technical knowledge or confidential trade information, except where appropriate safeguards exist that prevent dissemination of such information in a manner detrimental to the Company's competitive position.
Appears in 1 contract
Financial Statements, Reports, etc. In the case of the CompanyBorrower, furnish directly to the Administrative Agent and for distribution to each of the BanksLender:
(a) within 120 105 days after the end of each fiscal year of the Company (being December 31 in each calendar year)Borrower, its Consolidated annual report on Form 10-K as filed with the SEC, including its consolidated balance sheets, Consolidated sheet and the related consolidated statements of income earnings and Consolidated statements of cash flows showing the Consolidated its consolidated financial condition of the Company and the Subsidiaries position as of the close end of such fiscal year and the consolidated results of its operations and the operations of the Subsidiaries during cash flows for such year, all the foregoing consolidated financial statements to be audited by Coopers & Xxxxxxx, independent public accountants, PricewaterhouseCoopers LLP or other independent registered public accountants acceptable to accounting firm of recognized national standing selected by the Required Banks Borrower and accompanied by an opinion of such accountant (which shall not be qualified in any material respect) accounting firm to the effect that such consolidated financial statements present fairly present in all material respects the Borrower’s financial condition position and results of operations of the Company and the Subsidiaries cash flows on a consolidated basis in accordance with GAAP;
(b) within 60 days after the end of each of the first three fiscal quarters of each fiscal yearyear of the Borrower, its quarterly report on Form 10-Q as filed with the SEC, including its unaudited Consolidated consolidated balance sheets, Consolidated sheet and related consolidated statements of income earnings and Consolidated statements of cash flows flows, showing the its consolidated financial condition and results of operations of the Company and the Subsidiaries on a consolidated basis position as of the end of each such fiscal quarter and the consolidated results of its operations and cash flows for such fiscal quarter and the then elapsed portion of the fiscal year, certified year (and each delivery of such statements shall be deemed a representation by a Financial Officer of the Company as presenting Borrower that such statements present fairly in all material respects the Borrower’s financial position and results of operations of the Company and such Subsidiaries and as having been prepared cash flows on a consolidated basis in accordance with GAAP (except for such changes therein as are approved by the independent accountants for the Company)GAAP, in each case subject to normal year-end audit adjustmentsadjustments and the absence of footnotes);
(c) concurrently with (aany delivery of financial statements under Section 8.03(a) and (b) aboveor 8.03(b), a certificate of a Financial Officer of the firm or person referred to therein (which certificate furnished by the independent accountants referred to in paragraph (a) above may be limited to the best of its knowledge and to accounting matters and may disclaim responsibility for legal interpretations) Borrower (i) certifying that no Default or Event of Default or Default has occurred, occurred or, if such a an Event of Default or Event of Default has occurred, specifying the nature and extent thereof and, in the case of the certificate furnished by a Financial Officer of the Company, specifying and any corrective action taken or proposed to be taken with respect thereto and (ii) setting forth computations demonstrating in reasonable detail satisfactory to calculation of the Administrative Agent demonstrating compliance with the covenants contained covenant set forth in Section 6.05 and 6.069.04 as of the last day of the period covered by such financial statements;
(d) promptly after the same become publicly available and to the extent not required to be furnished by any other provision of this Section 5.04available, (i) copies of all proxy statements, financial statements and reports that the Company sends to its stockholders and (ii) copies of all regular, periodic and special reports, and all registration statements relating to transactions requiring a vote of stockholders of the Company or filed on Form X-0, X-0 or S-3 under the Securities Act of 1933, which the Company or any Subsidiary files 8-K filed by it with the Securities and Exchange CommissionSEC, or any Governmental Authority which may be substituted thereforsucceeding to any of or all the functions of the SEC, or with any national securities exchange, or and copies of all reports distributed to its shareholders, as the case may be; and
(e) promptlypromptly upon request, from time (i) all documentation and other information that any Lender reasonably requests through the Administrative Agent in order to timecomply with obligations under applicable “know your customer” and anti-money laundering rules and regulations, including the USA PATRIOT Act and the Beneficial Ownership Regulation, and (ii) such other information regarding the operationsBorrower and its Subsidiaries, business affairs and condition (financial or otherwise) the compliance by the Borrower with the terms of the Company and the Subsidiaries Loan Documents, as each Bank any Lender shall reasonably request through the Administrative Agent (it being understood that, in the case of this clause (ii), the Borrower shall not be required to provide any information or documents which are subject to confidentiality provisions the nature of which prohibit such disclosure). Information required to be delivered pursuant to this Section 8.03 (other than Section 8.03(c) or 8.03(e)(i)) shall be deemed to have been delivered on the date on which the Borrower provides notice (reasonably identifying where the applicable disclosure may reasonably request; providedbe obtained) to the Administrative Agent that such information has been publicly posted on the Borrower’s website on the internet at xxx.xxxxxxxxxxxx.xxx, howeveror on the SEC’s website on the internet at xxx.xxx.xxx or at another website identified in such notice and accessible by the Lenders without charge. The Borrower hereby acknowledges that (a) the Administrative Agent and/or the Arrangers may, that the Company but shall not be obligated to, make available to disclosethe Lenders materials and/or information provided by or on behalf of the Borrower hereunder (collectively, the “Borrower Materials”) by posting the Borrower Materials on an Electronic System and (b) certain of the Lenders (each, a “Public Lender”) may have personnel who do not wish to receive material non-public information with respect to the Borrower or its Subsidiaries, or the respective securities of any of the foregoing, and who may be engaged in investment and other market-related activities with respect to permit any examination which such Persons’ securities. The Borrower hereby agrees that it will disclose, technical knowledge or confidential trade information, except where appropriate safeguards exist use commercially reasonable efforts to identify that prevent dissemination portion of such information in a manner detrimental the Borrower Materials that may be distributed to the Company's competitive positionPublic Lenders and that (w) all Borrower Materials that are to be made available to Public Lenders shall be clearly and conspicuously marked “PUBLIC”, which, at a minimum, shall mean that the word “PUBLIC” shall appear prominently on the first page thereof; (x) by marking Borrower Materials “PUBLIC”, the Borrower shall be deemed to have authorized the Administrative Agent, the Arrangers and the Lenders to treat such Borrower Materials as not containing any material non-public information with respect to the Borrower, its Subsidiaries or the respective securities of any of the foregoing for purposes of United States Federal and state securities laws (provided that to the extent such Borrower Materials constitute Confidential Information, they shall be treated as set forth in Section 12.15); (y) all Borrower Materials marked “PUBLIC” are permitted to be made available through a portion of the Electronic System 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 Electronic System not designated “Public Side Information.” Notwithstanding the foregoing, the Borrower shall be under no obligation to xxxx any Borrower Materials “PUBLIC.”
Appears in 1 contract
Samples: Revolving Credit Agreement (Zimmer Biomet Holdings, Inc.)
Financial Statements, Reports, etc. In the case of the Companyeach Borrower, furnish directly to the Administrative Agent and (which shall promptly furnish to each of the Banks:Lender):
(a) within 120 95 days after the end of each fiscal year of the Company (being December 31 in each calendar year), its Consolidated consolidated balance sheets, Consolidated sheets and related statements of income earnings and Consolidated statements of cash flows flows, together with the notes thereto, showing the Consolidated financial condition position of the Company such Borrower and the its consolidated Subsidiaries as of the close of such fiscal year and the results of its their operations and the operations of the Subsidiaries such subsidiaries during such year, all the foregoing consolidated financial statements to be audited by Coopers & Xxxxxxx, independent public accountants, KPMG LLP or other independent public accountants of recognized national standing acceptable to the Required Banks Lenders and accompanied by an opinion of such accountant accountants (which shall not be qualified in any material respect) to the effect that such consolidated financial statements fairly present the financial condition position and results of operations of the Company each such Borrower and the its consolidated Subsidiaries on a consolidated basis in accordance with GAAPGAAP consistently applied, except as therein noted;
(b) within 60 50 days after the end of each of the first three fiscal quarters of each fiscal year, unaudited Consolidated its consolidated balance sheets, Consolidated sheets and related statements of income and Consolidated earnings and, with respect to Weyerhaeuser, statements of cash flows flows, showing the financial condition position of Weyerhaeuser and results of operations of the Company and the its consolidated Subsidiaries on a consolidated basis as of the end close of each such fiscal quarter and for the results of its operations and the operations of such consolidated Subsidiaries during such fiscal quarter and the then elapsed portion of the fiscal year, all certified (in the form of Exhibits D-1 and D-2, with respect to Weyerhaeuser and WRECO, respectively) by a one of its Financial Officer of the Company Officers as fairly presenting fairly the financial position and results of operations of the Company each such Borrower and such its consolidated Subsidiaries and as having been prepared on a consolidated basis in accordance with GAAP (consistently applied, except for such changes as therein as are approved by the independent accountants for the Company)noted, in each case subject to normal appropriate year-end audit adjustments;
(c) concurrently with any delivery of financial statements under (a) and or (b) above, a certificate (in the form of Exhibits D-3 and D-4, with respect to Weyerhaeuser and WRECO, respectively) of the accounting firm or person referred to therein Financial Officer of such Borrower opining on or certifying such statements (which certificate certificate, when furnished by the independent accountants referred to in paragraph (a) above an accounting firm, may be limited to the best of its knowledge and to accounting matters and may disclaim responsibility for legal interpretations) (i) certifying that no Default or Event of Default or Default has occurred, occurred or, if such a an Event of Default or Event of Default has occurred, specifying the nature and extent thereof and, in the case of the certificate furnished by a Financial Officer of the Company, specifying and any corrective action taken or proposed to be taken with respect thereto and thereto, (ii) in the case of Weyerhaeuser setting forth computations in reasonable detail satisfactory to the Administrative Agent demonstrating compliance with the covenants contained in Section 6.05 Sections 6.01(d) and 6.066.01(e) and (iii) including a reconciliation setting forth adjustments made to such financial statements in order to make the calculations set forth in clause (ii) above;
(d) promptly after the same become publicly available and to the extent not required to be furnished by any other provision of this Section 5.04available, (i) copies of all periodic and other reports, proxy statements, financial statements and reports that the Company sends to its stockholders and (ii) copies of all regular, periodic and special reports, and all registration statements relating to transactions requiring a vote of stockholders of the Company or other materials filed on Form X-0, X-0 or S-3 under the Securities Act of 1933, which the Company by it or any Subsidiary files of its Subsidiaries with the Securities and Exchange Commission, or any Governmental Authority which may be substituted thereforSEC, or with any national securities exchange, or distributed to its shareholders, as the case may be; and;
(e) as soon as practicable, copies of such further financial statements and reports as such Borrower shall send to banks with which it has lines of credit, and all such financial statements and reports as such Borrower shall send to its shareholders (unless all of the outstanding shares of capital stock of such Borrower are held by one Person);
(f) promptly, from time to time, such other information regarding the operations, business affairs and financial condition of such Borrower or any of its Subsidiaries, or compliance with the terms of any Loan Document, as the Administrative Agent, any Fronting Bank or any Lender may reasonably request (financial it being understood that neither Borrower shall be required to provide any information or otherwisedocuments which are subject to confidentiality provisions the nature of which prohibit such disclosure);
(g) promptly, and in any event within 2 days, upon becoming aware thereof, notice of any proposed or actual down-grade, suspension or withdrawal of the Company rating provided by S&P or Xxxxx’x to Weyerhaeuser in respect of its Senior Unsecured Long-Term Debt; and
(h) information required to be delivered pursuant to paragraphs (a), (b), (d) and (e) shall be deemed to have been delivered on the Subsidiaries as each Bank through date on which Weyerhaeuser provides notice to the Administrative Agent may reasonably request; provided, however, that the Company shall not be obligated to disclose, or to permit any examination which will disclose, technical knowledge or confidential trade information, except where appropriate safeguards exist that prevent dissemination of such information has been posted on Weyerhaeuser’s website on the internet at the website address listed on the signature pages thereof, at xxx.xxx.xxx or at another website identified in a manner detrimental such notice and accessible by the Lenders without charge; provided that Weyerhaeuser shall deliver paper copies of the reports and financial statements referred to in paragraphs (a), (b), (d) and (e) of this Section 5.04 to the Company's competitive positionAdministrative Agent, any Fronting Bank or any Lender who requests Weyerhaeuser to deliver such paper copies until written notice to cease delivering paper copies is given by such Administrative Agent, Fronting Bank or Lender to Weyerhaeuser.
Appears in 1 contract
Samples: 364 Day Revolving Credit Facility Agreement (Weyerhaeuser Co)
Financial Statements, Reports, etc. In the case of the CompanyTensar Holdings, furnish directly to TCO and the Administrative Agent and to each of the BanksAgent:
(a) within 120 90 days after the end of each fiscal year of the Company (being December 31 in each calendar year), its Consolidated consolidated balance sheets, Consolidated sheet and related statements of income income, stockholders’ equity and Consolidated statements of cash flows showing the Consolidated financial condition of the Company Tensar Holdings and the Subsidiaries its consolidated subsidiaries as of the close of such fiscal year and the results of its operations and the operations of the Subsidiaries such subsidiaries during such year, together with comparative figures for the immediately preceding fiscal year, all the foregoing consolidated financial statements to be audited by Pricewaterhouse Coopers & Xxxxxxx, independent public accountants, LLP or other independent public accountants acceptable to the Required Banks of recognized national standing and accompanied by an opinion of such accountant accountants (which shall not be qualified in any material respect) to the effect that such consolidated financial statements fairly present in all material respects the financial condition and results of operations of the Company Tensar Holdings and the its consolidated Subsidiaries on a consolidated basis in accordance with GAAPGAAP consistently applied, together with all information for the final month of such fiscal year set forth in Section 1.04(c) of this Schedule 3;
(b) within 60 45 days after the end of each of the first three fiscal quarters of each fiscal year, unaudited Consolidated its consolidated balance sheets, Consolidated sheet and related statements of income income, stockholders’ equity and Consolidated statements of cash flows showing the financial condition of Tensar Holdings and results of operations of the Company and the Subsidiaries on a its consolidated basis subsidiaries as of the end close of each such fiscal quarter and for the results of its operations and the operations of such subsidiaries during such fiscal quarter and the then elapsed portion of the fiscal year, and comparative figures for the same periods in the immediately preceding fiscal year, all certified by a one of its Financial Officer of the Company Officers as fairly presenting fairly in all material respects the financial position condition and results of operations of the Company Tensar Holdings and such Subsidiaries and as having been prepared its consolidated subsidiaries on a consolidated basis in accordance with GAAP (except for such changes therein as are approved by the independent accountants for the Company)consistently applied, in each case subject to normal year-end audit adjustmentsadjustments and the absence of footnotes, together with all information for the final month of such fiscal quarter set forth in Section 1.04(c) of this Schedule 3;
(c) within 30 days after the end of the first two fiscal months of each fiscal quarter, its consolidated balance sheet and related statements of income and cash flows showing the financial condition of Tensar Holdings 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 in all material respects, the financial condition and results of operations of Tensar Holdings 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 management’s discussion and analysis with respect to such financial statements; Schedule 3, Affirmative Covenants
(d) concurrently with any delivery of financial statements under clause (a) and or (b) above, a certificate of the accounting firm (in the case of clause (a)) or person referred to therein Financial Officer (in the case of clause (b)) opining on or certifying such statements (which certificate certificate, when furnished by the independent accountants referred to in paragraph (a) above an accounting firm, may be limited to the best of its knowledge and to accounting matters and may disclaim responsibility for legal interpretations) (i) certifying that no Default or Event of Default or Default has occurred, occurred and is continuing or, if such a Default or an Event of Default or Default has occurredoccurred and is continuing, specifying the nature and extent thereof and, in the case of the certificate furnished by a Financial Officer of the Company, specifying and any corrective action taken or proposed to be taken with respect thereto and (ii) setting forth computations in reasonable detail satisfactory to TCO and the Administrative Agent demonstrating compliance with the covenants contained in Section 6.05 Sections 1.11, 1.12. 1.13 and 6.061.14 of Schedule 4 and, in the case of a certificate delivered with the financial statements required by clause (a) above, setting forth Tensar Holdings’ calculation of Excess Cash Flow;
(de) Not more than 30 days after the end of each fiscal year of Tensar Holdings, a detailed consolidated budget for the current 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 following 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 and to the extent not required to be furnished by any other provision of this Section 5.04available, (i) copies of all periodic and other reports, proxy statements, financial statements and reports that the Company sends to its stockholders and (ii) copies of all regularother materials filed by Tensar Holdings, periodic and special reports, and all registration statements relating to transactions requiring a vote of stockholders of the Company or filed on Form X-0, X-0 or S-3 under the Securities Act of 1933, which the Company Tensar or any Subsidiary files with the Securities and Exchange Commission, or any Governmental Authority which may be substituted thereforsucceeding 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 Tensar Holdings, Tensar or any of the Subsidiaries, a copy of any “management letter” (whether in final or draft form) received by any such person from its certified public accountants and the management’s response thereto; and
(eh) promptly, from time to time, such other information regarding the operations, business affairs and financial condition (financial of Tensar Holdings, Tensar or otherwise) any Subsidiary, or compliance with the terms of the Company and the Subsidiaries any Lease/Purchase Facilities Document, as each Bank through TCO or the Administrative Agent may reasonably request; provided, however, that the Company shall not be obligated to disclose, or to permit any examination which will disclose, technical knowledge or confidential trade information, except where appropriate safeguards exist that prevent dissemination of such information in a manner detrimental to the Company's competitive position.
Appears in 1 contract
Samples: Lease Financing and Purchase Option Agreement (Tensar Corp)
Financial Statements, Reports, etc. In the case of the CompanyBorrower, furnish directly to the Administrative Agent and to each of the BanksAgent:
(a) within 120 100 days after the end of each fiscal year of the Company (being commencing with Borrower’s fiscal year ending December 31 in each calendar year)31, 2010, its Consolidated consolidated balance sheets, Consolidated sheet and related statements of income income, stockholders’ equity and Consolidated statements of cash flows showing the Consolidated financial condition of the Company Borrower and the its consolidated Subsidiaries as of the close of such fiscal year and the results of its operations and the operations of the such Subsidiaries during such year, all the foregoing consolidated financial statements to be audited by Coopers & Xxxxxxx, independent public accountants, PricewaterhouseCoopers LLP or other independent public accountants acceptable to the Required Banks of recognized national standing and accompanied by an opinion of such accountant accountants (which shall not be qualified in subject to any material respect“going concern” or like qualification or exception or any qualification or exception as to the scope of such audit) to the effect that such consolidated financial statements fairly present the financial condition and results of operations of the Company Borrower and the its consolidated Subsidiaries on a consolidated basis in accordance with GAAP;
(b) within 60 50 days after the end of each of the first three fiscal quarters of each fiscal year, unaudited Consolidated its consolidated balance sheets, Consolidated sheet and related statements of income income, stockholders’ equity and Consolidated statements of cash flows showing the financial condition of the Borrower and its consolidated Subsidiaries as of the close of such fiscal quarter and the results of its operations and the operations of such Subsidiaries during such fiscal quarter and the then elapsed portion of the fiscal year, compared with the results of its operations and the operations of its Subsidiaries in the corresponding quarter from the prior fiscal year, all certified by one of its Financial Officers as fairly presenting the financial condition and results of operations of the Company Borrower and the its consolidated Subsidiaries on a consolidated basis as of the end of each such quarter and for the then elapsed portion of the fiscal year, certified by a Financial Officer of the Company as presenting fairly the financial position and results of operations of the Company and such Subsidiaries and as having been prepared in accordance with GAAP (except for such changes therein as are approved by the independent accountants for the Company)GAAP, in each case subject to normal year-end audit adjustments;
(c) concurrently with (aany delivery of financial statements under Section 7.04(a) and (bor 7.04(b) above, a certificate of the firm or person referred to therein (which certificate furnished by the independent accountants referred to in paragraph (a) above may be limited to the best of its knowledge and to accounting matters and may disclaim responsibility for legal interpretations) (i) certifying that no Default or Event of Default has occurredduly completed Compliance Certificate, or, if such a Default or Event of Default has occurred, specifying the nature and extent thereof and, in the case of the certificate furnished signed by a Financial Officer of the Company, specifying 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 6.05 and 6.06Borrower;
(d) unless the Borrower has Investment Grade Ratings, within 30 days after the end of each fiscal year of the Borrower, a detailed consolidated budget for the current fiscal year (including a projected consolidated balance sheet and related statements of projected operations and cash flow as of the end of and for each quarter of such fiscal year and as of the end of and for such fiscal year and describing 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 and to the extent not required to be furnished by any other provision of this Section 5.04available, (i) copies of all periodic and other reports, proxy statements, financial statements and reports that other materials filed by the Company sends to its stockholders and (ii) copies of all regular, periodic and special reports, and all registration statements relating to transactions requiring a vote of stockholders of the Company or filed on Form X-0, X-0 or S-3 under the Securities Act of 1933, which the Company Borrower or any Subsidiary files with the Securities and Exchange Commission, or any Governmental Authority which may be substituted therefor, SEC 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 of its Subsidiaries, a copy of any final “management letter” received by any such Person from its certified public accountants and the management’s response thereto; and
(eg) 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. Documents required to be delivered pursuant to Section 7.04(a), 7.04(b) or 7.04(e) (financial 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 otherwiseprovides a link thereto on the Borrower’s website on the Internet at the website address listed on Schedule 11.02; or (ii) on which such documents are posted on the Borrower’s behalf on an Internet or intranet website, if any, to which each Lender and the Administrative Agent have access (whether a commercial, third-party website or whether sponsored by the Administrative Agent); provided that: (i) the Borrower shall deliver paper copies of such documents to the Administrative Agent or any Lender upon its request to the Borrower to deliver such paper copies until a written request to cease delivering paper copies is given by the Administrative Agent or such Lender and (ii) the Borrower shall notify the Administrative Agent and each Lender (by telecopier or electronic mail) of the Company posting of any such documents and the Subsidiaries as each Bank through provide to the Administrative Agent by electronic mail electronic versions (i.e., soft copies) of such documents. The Administrative Agent shall have no obligation to request the delivery 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 Borrower with any such request by a Lender for delivery, and each Lender shall be solely responsible for requesting delivery to it or maintaining its copies of such documents. The Borrower hereby acknowledges that (a) the Administrative Agent and/or MLPFS will make available to the Lenders and the L/C Issuer materials and/or information provided by or on behalf of the Borrower hereunder (collectively, “Borrower Materials”) by posting the Borrower Materials on IntraLinks or another similar electronic system (the “Platform”) and (b) certain of the Lenders (each a “Public Lender”) may reasonably requesthave 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 (w) all Borrower Materials that are to be made available to Public Lenders shall be clearly and conspicuously marked “PUBLIC” which, at a minimum, shall mean that the word “PUBLIC” shall appear prominently on the first page thereof; (x) by marking Borrower Materials “PUBLIC,” the Borrower shall be deemed to have authorized the Administrative Agent, MLPFS, the L/C Issuer and the Lenders to treat such Borrower Materials as not containing any material non-public information with respect to the Borrower or its securities for purposes of United States federal and state securities laws (provided, however, that the Company shall not be obligated to disclose, or to permit any examination which will disclose, technical knowledge or confidential trade information, except where appropriate safeguards exist that prevent dissemination of such information in a manner detrimental to the Company's competitive positionextent 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 as “Public Side Information;” and (z) the Administrative Agent and MLPFS 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 that is not marked as “Public Side Information.” Notwithstanding the foregoing, the Borrower shall be under no obligation to xxxx any Borrower Materials “PUBLIC.”
Appears in 1 contract
Samples: Credit Agreement (Flowserve Corp)
Financial Statements, Reports, etc. In the case of the CompanyHoldings, furnish directly to the Administrative Agent and Agent, which shall furnish to each of the BanksLender:
(a) within 120 days after the end of each fiscal year of the Company (being December 31 in each calendar year), its Consolidated consolidated balance sheets, Consolidated sheet and related statements of income income, stockholders’ equity and Consolidated statements of cash flows showing the Consolidated financial condition of the Company Holdings and the Subsidiaries its consolidated subsidiaries as of the close of such fiscal year and the results of its operations and the operations of the Subsidiaries such subsidiaries during such year, together with comparative figures for the immediately preceding fiscal year, all the foregoing consolidated financial statements to be audited by Coopers & Xxxxxxx, independent public accountants, Xxxxx Xxxxxxxx LLP or other independent public accountants acceptable to the Required Banks of recognized national standing and accompanied by an opinion of such accountant accountants (which opinion shall not be qualified in without a “going concern” explanatory note or any material respectsimilar qualification or exception and without any qualification or exception as to the scope of such audit) to the effect that such consolidated financial statements fairly present in all material respects the financial condition and results of operations of the Company Holdings and the Subsidiaries its consolidated subsidiaries on a consolidated basis in accordance with GAAPGAAP consistently applied, together with a “management’s discussion and analysis of financial condition and results of operations” discussion;
(b) within 60 days after the end of each of the first three fiscal quarters Fiscal Quarters of each fiscal year, unaudited Consolidated its consolidated balance sheets, Consolidated sheet and related statements of income income, stockholders’ equity and Consolidated statements of cash flows showing the financial condition of Holdings and results of operations of the Company and the Subsidiaries on a its consolidated basis subsidiaries as of the end close of each such quarter Fiscal Quarter and for the results of its operations and the operations of such subsidiaries during such Fiscal Quarter and the then elapsed portion of the fiscal year, and comparative figures for the same periods in the immediately preceding fiscal year, all certified by a one of its Financial Officer of the Company Officers as fairly presenting fairly in all material respects the financial position condition and results of operations of the Company Holdings and such Subsidiaries and as having been prepared its consolidated subsidiaries on a consolidated basis in accordance with GAAP (except for such changes therein as are approved by the independent accountants for the Company)consistently applied, in each case subject to normal year-end audit adjustmentsadjustments and the absence of footnotes, together with a “management’s discussion and analysis of financial condition and results of operations” discussion;
(c) concurrently with any delivery of financial statements under paragraph (a) and ), or (b) above, a certificate of a Financial Officer in the firm or person referred to therein (which certificate furnished by the independent accountants referred to in paragraph (a) above may be limited to the best form of its knowledge and to accounting matters and may disclaim responsibility for legal interpretations) Exhibit H (i) certifying that no Default or Event of Default or Default has occurred, occurred or, if such a an Event of Default or Event of Default has occurred, specifying the nature and extent thereof and, in the case of the certificate furnished by a Financial Officer of the Company, specifying 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 6.05 Sections 6.10, 6.11 and 6.066.12 and, in the case of a certificate delivered with the financial statements required by paragraph (a) above, setting forth Holdings’ calculation of Excess Cash Flow;
(d) 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 Sections 6.10, 6.11 or 6.12 or, if such an Event of Default or Default has occurred, specifying the extent thereof in reasonable detail;
(e) within 30 days after the beginning of each fiscal year of Holdings, 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, it being understood that such budget constitutes Private Lender Information (as such term is defined in the Commitment Letter) and that the Loan Parties do not intend to make such budget, which could be considered material with respect to the Loan Parties for purposes of United States Federal and state securities laws, publicly available;
(f) promptly after the same become publicly available and to the extent not required to be furnished by any other provision of this Section 5.04available, (i) copies of all periodic and other reports, proxy statements, financial statements and reports that other materials filed by Holdings, the Company sends to its stockholders and (ii) copies of all regular, periodic and special reports, and all registration statements relating to transactions requiring a vote of stockholders of the Company or filed on Form X-0, X-0 or S-3 under the Securities Act of 1933, which the Company Borrower or any Subsidiary files with the Securities and Exchange Commission, or any Governmental Authority which may be substituted thereforsucceeding 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 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
(ei) promptly, from time to time, such other information regarding the operations, business affairs and financial condition (financial of Holdings, the Borrower or otherwise) any Subsidiary, or compliance with the terms of the Company and the Subsidiaries any Loan Document, as each Bank through the Administrative Agent or any Lender may reasonably request; provided. The Borrower hereby acknowledges and agrees that all financial statements and certificates furnished pursuant to paragraphs (a), however(b), that (c) and (d) above are hereby deemed to be Borrower Materials suitable for distribution, and to be made available, to Public Lenders as contemplated by the Company shall not fourth paragraph of Section 9.01 and may be obligated to disclose, or to permit any examination which will disclose, technical knowledge or confidential trade information, except where appropriate safeguards exist that prevent dissemination of treated by the Administrative Agent and the Lenders as if the same had been marked “PUBLIC” in accordance with such information in a manner detrimental to the Company's competitive positionparagraph.
Appears in 1 contract
Financial Statements, Reports, etc. In the case of the Company, The Issuers shall furnish directly to the Administrative Agent and to each of the BanksTrustee:
(a) The Issuers will furnish to the Trustee within 120 30 days after it files them with the SEC, copies of the Parent’s annual report, quarterly reports, current reports and the other information, documents and other reports (or copies of such portions of any of the foregoing as the SEC may by rules and regulations prescribe) that the Parent is required to file with the SEC pursuant to Sections 13 and 15(d) of the Exchange Act. Reports, information and documents filed by the Parent with the SEC via the XXXXX system will be deemed to have been furnished to the Trustee as of the time such documents are filed via XXXXX;
(b) Within 180 days after the end of the fiscal year ending December 31, 2021, and within one hundred twenty (120) days after the end of each fiscal year of the Company (being December 31 in each calendar year)thereafter, its Consolidated HoldCo1’s consolidated balance sheets, Consolidated statements sheet and related statement of income and Consolidated statements of cash flows flows, showing the Consolidated financial condition of the Company HoldCo1 and the its Subsidiaries on a consolidated basis as of the close of such fiscal year and the results of its their respective operations and the operations of the Subsidiaries during such year, all the foregoing such consolidated financial statements of HoldCo1 to be audited for HoldCo1 by Coopers & Xxxxxxx, independent public accountants, or other independent public accountants acceptable of recognized national standing and to the Required Banks and be accompanied by an opinion of such accountant accountants (which opinion shall not be qualified in any material respectunqualified as to the scope of such audit) to the effect that such consolidated financial statements fairly present in all material respects the financial condition and results of operations of the Company HoldCo1 and the its Subsidiaries on a consolidated basis in accordance with GAAP;
(bc) [reserved];
(d) Within ninety (90) days after the end of the fiscal quarter ending June 30, 2021 and thereafter within 60 sixty (60) days after the end of each of the first three fiscal quarters of each fiscal year, unaudited Consolidated HoldCo1’s consolidated balance sheets, Consolidated sheets and related statements of income and Consolidated statements cash flows, showing the financial condition of cash flows showing HoldCo1 and its Subsidiaries on a consolidated basis as of the close of such fiscal quarter and the results of their operations during such fiscal quarter and the then-elapsed portion of the fiscal year, each certified by an Officer of HoldCo1 as fairly presenting in all material respects the financial condition and results of operations of the Company HoldCo1 and the its Subsidiaries on a consolidated basis as in accordance with GAAP, subject to normal year end audit adjustments and the absence of footnotes;
(e) Within ninety (90) days after the end of each such quarter and for the then elapsed portion of the fiscal year, certified by a Financial Officer of the Company as presenting fairly the financial position and results of operations of the Company and such Subsidiaries and as having been prepared in accordance with GAAP (except for such changes therein as are approved by the independent accountants for the Company), in each case subject to normal year-end audit adjustments;
(c) concurrently with (a) and (b) above, a certificate of the firm or person referred to therein (which certificate furnished by the independent accountants referred to in paragraph (a) above may be limited an Officer of American certifying that, to the best knowledge of its knowledge and to accounting matters and may disclaim responsibility for legal interpretations) (i) certifying that such Officer, no Default Early Amortization Event or Event of Default has occurredoccurred and is continuing, or, if if, to the knowledge of such a Default Officer, such an Early Amortization Event or Event of Default has occurredoccurred and is continuing, specifying the nature and extent thereof and, in the case of the certificate furnished by a Financial Officer of the Company, specifying and any corrective action taken or proposed to be taken with respect thereto thereto;
(f) On or prior to each Determination Date with respect to each Related Quarterly Reporting Period, an Officer’s Certificate demonstrating in reasonable detail compliance with (i) Section 4.27 as of the last day of the Related Quarterly Reporting Period and (ii) setting forth computations in reasonable detail satisfactory to the Administrative Agent demonstrating compliance with Peak Debt Service Coverage Ratio Test as of the covenants contained in Section 6.05 and 6.06last day of the Related Quarterly Reporting Period;
(dg) No later than each Determination Date with respect to each Related Quarterly Reporting Period, a certificate of an Officer of American, (i) setting forth the name of each new AAdvantage Agreement entered into as of such date and each of the parties thereto, (ii) certifying compliance with deposit requirements with respect to such AAdvantage Agreements and (iii) certifying that Transaction Revenues representing 90% of all AAdvantage Revenues for such Quarterly Reporting Period were deposited directly into the Collection Account;
(h) [Reserved];
(i) [Reserved];
(j) [Reserved];
(k) Subject to any confidentiality restrictions under binding agreements or limitations imposed by applicable law, a notice (which will be posted on a password protected website to which the Trustee will have access to such notice (or which will otherwise be delivered to the Trustee, including, without limitation, by electronic mail) with respect to the occurrence of: (i) any material amendment, restatement, supplement, waiver or other material modification to any Material AAdvantage Agreement (with such notice posted or delivered, as applicable, promptly but in each case within thirty (30) days of the effectiveness of such material amendment, restatement, supplement, waiver or other material modification) and (ii) any termination, cancellation or expiration of a Material AAdvantage Agreement (with such notice posted or delivered, as applicable, as soon as reasonably practicable after such termination, cancellation or expiration); and
(l) On each Determination Date, a Payment Date Statement to the same become publicly Trustee and the Master Collateral Agent. The Trustee may, prior to the related Payment Date, provide notice to the Issuers and the Master Collateral Agent of any information contained in the Payment Date Statement that the Trustee believes to be incorrect. If the Trustee provides such a notice, the Issuers shall use their reasonable efforts to resolve the discrepancy and provide an updated Payment Date Statement on or prior to the related Payment Date. If the discrepancy is not resolved and a replacement Payment Date Statement is not received by the Trustee prior to the payment of Available Funds on the related Payment Date pursuant to Section 4.01 and it is later determined that the information identified by the Trustee as incorrect was in fact incorrect and such error resulted in a party receiving a smaller distribution on the Payment Date than they would have received had there not been such an error, then the Issuers shall indemnify such party for such shortfall. For the avoidance of doubt and, notwithstanding anything to the contrary in this Indenture or in any Collateral Document, the Trustee shall have no obligation to inquire into, investigate, verify or perform any calculations in connection with a Payment Date Statement or notice from the Trustee in respect of the same; it being understood and agreed that the Trustee shall be entitled to conclusively rely, and shall not be liable for so relying, on the Payment Date Statement last received by it on or prior to each Payment Date and the Trustee shall have no obligation, responsibility or liability in connection with any indemnification payment of the Issuers pursuant to the immediately preceding sentence. In no event shall the Trustee be entitled to inspect, receive and make copies of materials, (i) except in connection with any enforcement or exercise of remedies, that constitute non-registered AAdvantage Intellectual Property, non-financial Trade Secrets (including the AAdvantage Customer Data) or non-financial proprietary information, (ii) in respect of which disclosure to the Trustee, the Master Collateral Agent or any Holder (or their respective representatives or contractors) is prohibited by law or any binding agreement (or would otherwise cause a breach or default thereunder) (including, but not limited to, copies of any AAdvantage Agreements or any information thereof) or (iii) that are subject to attorney client or similar privilege or constitute attorney work product or constitute Excluded Intellectual Property or an AAdvantage Agreement. The Issuers agree to provide copies of any notices or any deliverables given or received under the Collateral Agency and Accounts Agreement to the Trustee, including any notice or deliverable required to be provided to the Senior Secured Debt Representatives. Subject to the next succeeding sentence, information required to be delivered pursuant to this Section 4.02 to the Trustee may be made available by American to the Holders by posting such information on a private, restricted website to which Holders, prospective investors, broker-dealers and securities analysts are given access. Information other than information required to be delivered pursuant to this Section 4.02 by any Issuer Party shall be delivered pursuant to Section 12.02 hereto. Information required to be delivered pursuant to this Section 4.02 (solely to the extent not required already made available as set forth above) shall be deemed to be furnished by any other provision of this Section 5.04have been delivered to the Trustee on the date on which Loyalty Co provides written notice to the Trustee that such information has been posted on American’s general commercial website (to the extent such information has been posted or is available as described in such notice), (i) copies of all proxy statements, financial statements and reports that the Company sends to its stockholders and (ii) copies of all regular, periodic and special reports, and all registration statements relating to transactions requiring a vote of stockholders of the Company or filed on Form X-0, X-0 or S-3 under the Securities Act of 1933, which the Company or any Subsidiary files with the Securities and Exchange Commission, or any Governmental Authority which as such website may be substituted therefor, or with any national securities exchange, or distributed specified by Loyalty Co to its shareholders, as the case may be; and
(e) promptly, Trustee from time to time. Information required to be delivered pursuant to this Section 4.02 shall be in a format which is suitable for transmission. Any notice or other communication delivered pursuant to this Section 4.02, or otherwise pursuant to this Indenture, shall be deemed to contain non-public information unless (i) expressly marked by an Issuer Party as “PUBLIC”, (ii) such notice or communication consists of copies of any Issuer Party’s public filings with the SEC or (iii) such notice or communication has been posted on American’s general commercial website, as such website may be specified by Loyalty Co or American to the Trustee from time to time. Delivery of reports, information and documents to the Trustee is for informational purposes only, and its receipt of such reports, information and documents shall not constitute constructive notice of any information contained therein or determinable from information contained therein, including any Issuer Party’s or any other Person’s compliance with any of its covenants under this Indenture or any other Notes Document. The Trustee shall have no liability or responsibility for the content, filing or timeliness of any report or other information regarding delivered, filed or posted under or in connection with this Indenture, the operationsother Notes Documents or the transactions contemplated hereunder or thereunder. For the avoidance of doubt, business affairs and condition (financial the Trustee shall have no duty to monitor or otherwise) access any website of the Company an Issuer Party or any other Person referenced herein, shall not have any duty to monitor, determine or inquire as to compliance or performance by any Issuer Party or any other Person of its obligations under this Section 4.02 or otherwise and the Subsidiaries as each Bank through the Administrative Agent may reasonably request; provided, however, that the Company Trustee shall not be obligated to disclose, responsible or to permit liable for any examination which will disclose, technical knowledge Issuer Party’s or confidential trade information, except where appropriate safeguards exist that prevent dissemination of any other Person’s non-performance or non-compliance with such information in a manner detrimental to the Company's competitive positionobligations.
Appears in 1 contract
Samples: Indenture (American Airlines, Inc.)
Financial Statements, Reports, etc. In Furnish to the Administrative Agent for distribution to each Lender (except in the case of the Companymaterials required by paragraphs (d) below, furnish directly which shall only be furnished to the Administrative Agent and to each of the Banks:Agent):
(a) within 120 105 days after the end of each fiscal year of the Company (being December 31 in each calendar year), its Consolidated annual report on Form 10-K as filed with the SEC, including its consolidated balance sheets, Consolidated statements of income sheet and Consolidated statements of cash flows the related consolidated earnings statement showing the Consolidated its consolidated financial condition of the Company and the Subsidiaries as of the close of such fiscal year and the consolidated results of its operations and the operations of the Subsidiaries during such year, all the foregoing consolidated financial statements to be audited by Coopers & Xxxxxxx, independent public accountants, PricewaterhouseCoopers LLP or other independent certified public accountants acceptable to of recognized national standing selected by the Required Banks Company and accompanied by an opinion of such accountant (which shall not be qualified in any material respect) accountants to the effect that such consolidated financial statements fairly present the Company’s financial condition and results of operations of the Company and the Subsidiaries on a consolidated basis in accordance with GAAP;
(b) within 60 days after the end of each of the first three fiscal quarters of each fiscal year, its quarterly report on Form 10-Q as filed with the SEC, including its unaudited Consolidated consolidated balance sheetssheet and related consolidated earnings statement, Consolidated statements of income and Consolidated statements of cash flows showing the its consolidated financial condition and results of operations of the Company and the Subsidiaries on a consolidated basis as of the end close of each such fiscal quarter and for the consolidated results of its operations during such fiscal quarter and the then elapsed portion of the fiscal year, certified by year (and each delivery of such statements shall be deemed a Financial Officer of representation that such statements fairly present the Company as presenting fairly the Company’s financial position condition and results of operations of the Company and such Subsidiaries and as having been prepared on a consolidated basis in accordance with GAAP (except for such changes therein as are approved by the independent accountants for the Company)GAAP, in each case subject to normal year-end audit adjustmentsadjustments and the absence of footnotes);
(c) concurrently with any delivery of financial statements under paragraph (a) and or (b) above, a certificate of the firm or person referred to therein (which certificate furnished by the independent accountants referred to in paragraph (a) above may be limited to the best of its knowledge and to accounting matters and may disclaim responsibility for legal interpretations) a Financial Officer (i) certifying that no Default or Event of Default or Default has occurred, occurred or, if such a an Event of Default or Event of Default has occurred, specifying the nature and extent thereof and, in the case of the certificate furnished by a Financial Officer of the Company, specifying and any corrective action taken or proposed to be taken with respect thereto and (ii) setting forth computations demonstrating in reasonable detail satisfactory to calculation of the Administrative Agent demonstrating compliance with the covenants contained covenant set forth in Section 6.05 and 6.067.04 as of the last day of the period covered by such financial statements;
(d) promptly after the same become publicly available and to the extent not required to be furnished by any other provision of this Section 5.04available, (i) copies of all proxy statements, financial statements and reports that the Company sends to its stockholders and (ii) copies of all regular, periodic and special reports, and all registration statements relating to transactions requiring a vote of stockholders of the Company or filed on Form X-0, X-0 or S-3 under the Securities Act of 1933, which the Company or any Subsidiary files 8-K filed by it with the Securities and Exchange CommissionSEC, or any Governmental Authority which may be substituted thereforsucceeding to any of or all the functions of the SEC, or with any national securities exchange, or copies of all reports distributed to its shareholders, as the case may be; and
(e) promptly, from time to time, such other information regarding the operations, business affairs and condition (financial or otherwise) of the Company and the Subsidiaries as each Bank any Lender shall reasonably request through the Administrative Agent may reasonably request; providedAgent, howeverincluding any additional information relating to the Consolidated Transaction Costs and Consolidated Cost Savings referred to in clauses (h) and (i), respectively, in the definition of the term “Consolidated EBITDA” (it being understood that the Company shall not be obligated required to discloseprovide any information or documents which are subject to confidentiality provisions the nature of which prohibit such disclosure). Information required to be delivered pursuant to this Section shall be deemed to have been delivered on the date on which the Company provides notice (reasonably identifying where the applicable disclosure may be obtained) to the Administrative Agent that such information has been posted on the Company’s website on the internet at xxx.xxxxxx.xxx, or to permit any examination which will disclose, technical knowledge on the SEC’s website on the internet at xxx.xxx.xxx or confidential trade information, except where appropriate safeguards exist that prevent dissemination of at another website identified in such information in a manner detrimental to notice and accessible by the Company's competitive positionLenders without charge.
Appears in 1 contract
Financial Statements, Reports, etc. In the case of the CompanyBorrower, furnish directly to the Administrative Agent (and the Administrative Agent shall then furnish to each of the Banks:Lender):
(a) within 120 90 days after the end of each fiscal year of the Company (being December 31 in each calendar year), its Consolidated consolidated balance sheets, Consolidated sheets and related statements of income and Consolidated statements of operations, cash flows and stockholders' equity showing the Consolidated financial condition of the Company Borrower and the Subsidiaries its consolidated subsidiaries as of the close of such fiscal year and the results of its operations and the operations of the Subsidiaries such subsidiaries during such year and the immediately preceding year, all the foregoing consolidated financial statements to be audited by Coopers & Xxxxxxx, independent public accountants, PricewaterhouseCoopers LLP or other independent public accountants of recognized national standing acceptable to the Required Banks Lenders, and accompanied by an opinion of such accountant accountants (which shall not be qualified in any material respect) to the effect that such consolidated financial statements fairly present in all material respects the financial condition and results of operations of the Company Borrower and the Subsidiaries its consolidated subsidiaries on a consolidated basis in accordance with GAAP;
(b) within 60 45 days after the end of each of the first three fiscal quarters of each fiscal year, unaudited Consolidated consolidated balance sheets, Consolidated sheets and related statements of income and Consolidated statements of operations, cash flows and stockholders' equity showing the financial condition of the Borrower and its consolidated subsidiaries as of the close of such fiscal quarter and the results of its operations and the operations of such subsidiaries during such fiscal quarter and the then elapsed portion of the fiscal year and during the corresponding periods in the immediately preceding fiscal year, all certified by a Financial Officer of the Borrower as fairly presenting in all material respects the financial condition and results of operations of the Company Borrower and the Subsidiaries its consolidated subsidiaries on a consolidated basis as of the end of each such quarter and for the then elapsed portion of the fiscal year, certified by a Financial Officer of the Company as presenting fairly the financial position and results of operations of the Company and such Subsidiaries and as having been prepared in accordance with GAAP (except for such changes therein as are approved by the independent accountants for the Company)GAAP, in each case subject to normal year-end audit adjustments;
(c) concurrently with any delivery of financial statements under paragraph (a) and or (b) above, a certificate of the accounting firm or person referred to therein Financial Officer opining on or certifying such statements (which certificate certificate, when furnished by the independent accountants referred to in paragraph (a) above an accounting firm, may be limited to the best of its knowledge and to accounting matters and may disclaim responsibility for legal interpretations) (i) certifying that no Default or Event of Default or Default has occurred, occurred or, if such a an Event of Default or Event of Default has occurred, specifying the nature and extent thereof and, in the case of the certificate furnished by a Financial Officer of the Company, specifying and any corrective action taken or proposed to be taken with respect thereto and thereto, (ii) setting forth computations in reasonable detail satisfactory to the Administrative Agent demonstrating compliance with the financial covenants contained in Section 6.05 Article VI and 6.06(iii) identifying the Determination Date associated with the delivery of such financial statements;
(d) concurrently with each delivery of financial statements under paragraph (a) above beginning with the financial statements for the fiscal year ending November 30, 2000, a certificate of a Financial Officer (i) certifying that at the date of such certificate the Collateral and Guarantee Requirement is satisfied and (ii) setting forth in form and detail satisfactory to the Administrative Agent a calculation of Excess Cash Flow for the fiscal year to which such statements relate;
(e) promptly after the same become publicly available and to the extent not required to be furnished by any other provision of this Section 5.04available, (i) copies of all periodic and other reports, proxy statements, financial statements and reports that other materials filed by the Company sends to its stockholders and (ii) copies of all regular, periodic and special reports, and all registration statements relating to transactions requiring a vote of stockholders Borrower or any of the Company or filed on Form X-0, X-0 or S-3 under the Securities Act of 1933, which the Company or any Subsidiary files Subsidiaries with the Securities and Exchange CommissionCommission (other than filings relating solely to benefit plans and employee compensation), or any Governmental Authority which may be substituted thereforsucceeding to any or all of the functions of said Commission, or with any national securities exchange;
(f) not later than the anniversary of the date of this Agreement in each year (or any earlier date on which the Borrower's Board of Directors shall have approved the same), or distributed to its shareholders, as (i) an annual business plan for the case may besucceeding fiscal year and (ii) updated projections for the five-year period commencing with the next succeeding fiscal year; and
(eg) promptly, from time to time, such other information regarding the operationsbusiness, business affairs operations and condition (financial or otherwise) of the Company and Borrower or any of the Subsidiaries Subsidiaries, or compliance with the terms of any Loan Document, as each Bank the Administrative Agent, or any Lender through the Administrative Agent Agent, may reasonably request; provided, however, that the Company shall not be obligated to disclose, or to permit any examination which will disclose, technical knowledge or confidential trade information, except where appropriate safeguards exist that prevent dissemination of such information in a manner detrimental to the Company's competitive position.
Appears in 1 contract
Financial Statements, Reports, etc. In the case of the Company, furnish directly to the Administrative Agent and (which will promptly furnish same to each of the Banks:Lender):
(a) within 120 90 days after the end of each fiscal year of the Company (being December 31 in each calendar year), its Consolidated balance sheets, sheet and related Consolidated statements of income and Consolidated statements of earnings, cash flows and shareholders’ equity, showing the Consolidated financial condition position of the Company and the its Consolidated Subsidiaries as of the close of such fiscal year and the their results of its operations and the operations of the Subsidiaries during cash flows for such year, all the foregoing consolidated financial statements to be audited by Coopers & Xxxxxxx, independent public accountants, PricewaterhouseCoopers LLP or other independent public accountants acceptable to the Required Banks of recognized national standing and accompanied by an opinion of such accountant accountants (which shall not be qualified in any material respectrespect except with the consent of the Required Lenders) to the effect that such consolidated Consolidated financial statements fairly present in all material respects the financial condition and position, results of operations and cash flows of the Company and the Subsidiaries on a consolidated Consolidated basis in accordance with GAAPGAAP consistently applied (except with respect to consistency as otherwise indicated therein), provided that if the independent auditor’s report with respect to such consolidated financial statements is a combined report (that is, one report containing both an opinion on such consolidated financial statements and an opinion on internal controls over financial reporting), then such report may include a qualification or limitation relating to the Company’s system of internal controls over financial reporting due to the exclusion of any acquired business from the management report on internal controls over financial reporting made pursuant to Item 308 of Regulation S-K of the Securities and Exchange Commission, to the extent such exclusion is permitted under provisions published by the Securities and Exchange Commission;
(b) within 60 45 days after the end of each of the first three fiscal quarters of each fiscal year, unaudited its Consolidated balance sheets, sheet and related Consolidated statements of income earnings and Consolidated statements of cash flows showing the financial condition and results of operations position of the Company and the its Consolidated Subsidiaries on a consolidated basis as of the end close of each such fiscal quarter and their results of operations for such fiscal quarter and the then elapsed portion of the fiscal year and their cash flows for the then elapsed portion of the fiscal year, all certified by a one of its Financial Officer Officers as fairly presenting the financial position, results of operations and cash flows of the Company as presenting fairly the financial position and results of operations of the Company and such Subsidiaries and as having been prepared on a Consolidated basis in accordance with GAAP consistently applied (except for such changes therein with respect to consistency as are approved by the independent accountants for the Companyotherwise indicated therein), in each case subject to normal year-end audit adjustmentsadjustments and the absence of footnotes;
(c) concurrently with any delivery of financial statements under paragraph (a) and or (b) above, a certificate certificate, substantially in the form of the firm or person referred to therein (which certificate furnished by the independent accountants referred to in paragraph (a) above may be limited to the best Exhibit G hereto, of its knowledge and to accounting matters and may disclaim responsibility for legal interpretations) a Financial Officer (i) certifying that no Default or Event of Default has occurred, occurred or, if such a Default or Event of Default has occurred, specifying the nature and extent thereof and, in the case of the certificate furnished by a Financial Officer of the Company, specifying 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 Administrative Agent demonstrating compliance with the covenants contained in Section 6.05 Sections 7.01 and 6.067.02;
(d) promptly after the same become publicly available and to the extent not required to be furnished by any other provision of this Section 5.04available, (i) copies of all periodic and other reports, proxy statements, financial statements and reports that the Company sends to its stockholders and (ii) copies of all regular, periodic and special reports, and all registration statements relating to transactions requiring a vote of stockholders of the Company or other materials filed on Form X-0, X-0 or S-3 under the Securities Act of 1933, which the Company or any Subsidiary files by it with the Securities and Exchange Commission, or any Governmental Authority which may be substituted thereforsucceeding to any of or all the functions of such Commission, or with any national securities exchange, or distributed to its shareholdersshareholders generally, as the case may be; and
(e) promptly, from time to time, such other information regarding the operations, business affairs and financial condition (financial or otherwise) of the Company and or any Subsidiary, or compliance with the Subsidiaries terms of the Loan Documents, as each Bank through the Administrative Agent, at the request of any Lender, may reasonably request. Information required to be delivered pursuant to paragraphs 5.04(a), 5.04(b) or 5.04(d) above shall be deemed to have been delivered on the date on which the Company provides notice to the Administrative Agent may reasonably request; provided, however, that the Company shall not be obligated to disclose, or to permit any examination which will disclose, technical knowledge or confidential trade information, except where appropriate safeguards exist that prevent dissemination of such information has been posted on the Company’s website on the Internet at xxx.xxxxxxx.xxx, at xxx.xxx/xxxxx/xxxxxxxx.xxx or at another website identified in such notice and accessible by the Lenders without charge; provided that (i) such notice may be included in a manner detrimental certificate delivered pursuant to paragraph 5.04(c) and (ii) the Company's competitive positionBorrower shall deliver paper copies of the information referred to in paragraphs 5.04(a) or 5.04(b) to any Lender which requests such delivery.
Appears in 1 contract
Samples: Credit Agreement (Cummins Inc)
Financial Statements, Reports, etc. In Furnish to the Administrative Agents for distribution to each Lender (except in the case of the Companymaterials required by paragraphs (d) below, furnish directly which shall only be furnished to the General Administrative Agent, the Japanese Administrative Agent and to each of the Banks:Japanese Lenders):
(a) within 120 105 days after the end of each fiscal year of the Company (being December 31 in each calendar year), its Consolidated annual report on Form 10-K as filed with the SEC, including its consolidated balance sheets, Consolidated statements of income sheet and Consolidated statements of cash flows the related consolidated earnings statement showing the Consolidated its consolidated financial condition of the Company and the Subsidiaries as of the close of such fiscal year and the consolidated results of its operations and the operations of the Subsidiaries during such year, all the foregoing consolidated financial statements to be audited by Coopers & Xxxxxxx, independent public accountants, PricewaterhouseCoopers LLP or other independent certified public accountants acceptable to of recognized national standing selected by the Required Banks Company and accompanied by an opinion of such accountant (which shall not be qualified in any material respect) accountants to the effect that such consolidated financial statements fairly present the Company’s financial condition and results of operations of the Company and the Subsidiaries on a consolidated basis in accordance with GAAP;
(b) within 60 days after the end of each of the first three fiscal quarters of each fiscal year, its quarterly report on Form 10-Q as filed with the SEC, including its unaudited Consolidated consolidated balance sheetssheet and related consolidated earnings statement, Consolidated statements of income and Consolidated statements of cash flows showing the its consolidated financial condition and results of operations of the Company and the Subsidiaries on a consolidated basis as of the end close of each such fiscal quarter and for the consolidated results of its operations during such fiscal quarter and the then elapsed portion of the fiscal year, certified by year (and each delivery of such statements shall be deemed a Financial Officer of representation that such statements fairly present the Company as presenting fairly the Company’s financial position condition and results of operations of the Company and such Subsidiaries and as having been prepared on a consolidated basis in accordance with GAAP (except for such changes therein as are approved by the independent accountants for the Company)GAAP, in each case subject to normal year-end audit adjustmentsadjustments and the absence of footnotes);
(c) concurrently with any delivery of financial statements under paragraph (a) and or (b) above, a certificate of the firm or person referred to therein (which certificate furnished by the independent accountants referred to in paragraph (a) above may be limited to the best of its knowledge and to accounting matters and may disclaim responsibility for legal interpretations) a Financial Officer (i) certifying that no Default or Event of Default or Default has occurred, occurred or, if such a an Event of Default or Event of Default has occurred, specifying the nature and extent thereof and, in the case of the certificate furnished by a Financial Officer of the Company, specifying and any corrective action taken or proposed to be taken with respect thereto and (ii) setting forth computations demonstrating in reasonable detail satisfactory to calculation of the Administrative Agent demonstrating compliance with the covenants contained covenant set forth in Section 6.05 and 6.0610.04 as of the last day of the period covered by such financial statements;
(d) promptly after the same become publicly available and to the extent not required to be furnished by any other provision of this Section 5.04available, (i) copies of all proxy statements, financial statements and reports that the Company sends to its stockholders and (ii) copies of all regular, periodic and special reports, and all registration statements relating to transactions requiring a vote of stockholders of the Company or filed on Form X-0, X-0 or S-3 under the Securities Act of 1933, which the Company or any Subsidiary files 8-K filed by it with the Securities and Exchange CommissionSEC, or any Governmental Authority which may be substituted thereforsucceeding to any of or all the functions of the SEC, or with any national securities exchange, or copies of all reports distributed to its shareholders, as the case may be; and
(e) promptly, from time to time, such other information regarding the operations, business affairs and condition (financial or otherwise) of the Company and the Subsidiaries as each Bank any Lender shall reasonably request through the General Administrative Agent may reasonably request; provided, however, (it being understood that the Company shall not be obligated required to discloseprovide any information or documents which are subject to confidentiality provisions the nature of which prohibit such disclosure). Information required to be delivered pursuant to this Section shall be deemed to have been delivered on the date on which the Company provides notice (reasonably identifying where the applicable disclosure may be obtained) to the General Administrative Agent that such information has been posted on the Company’s website on the internet at xxx.xxxxxx.xxx, or to permit any examination which will disclose, technical knowledge on the SEC’s website on the internet at xxx.xxx.xxx or confidential trade information, except where appropriate safeguards exist that prevent dissemination of at another website identified in such information in a manner detrimental to notice and accessible by the Company's competitive positionLenders without charge.
Appears in 1 contract
Financial Statements, Reports, etc. In The Borrower and the case of the Company, furnish directly to the Administrative Agent and Guarantors shall deliver to each of the BanksLenders:
(ai) within 120 Within 90 days after the end of each fiscal year of year, the Company (being December 31 in each calendar year), its Consolidated Borrower's consolidated and consolidating balance sheets, Consolidated statements sheet and related statement of income and Consolidated statements of cash flows flows, showing the Consolidated financial condition of the Company Borrower and the Subsidiaries Guarantors on a consolidated and consolidating basis as of the close of such fiscal year and the results of its their respective operations and the operations of the Subsidiaries during such year, all the foregoing consolidated financial statements statement of the Borrower to be audited for the Borrower and its consolidated Subsidiaries by Coopers & Xxxxxxx, independent public accountants, or other independent public accountants of recognized national standing acceptable to the Required Banks Lenders and accompanied by an opinion of such accountant Sunshine's outside auditors (which shall not be qualified in any material respect) respect other than with respect to the Cases), and the consolidating statement to be subject to the auditing procedures applied to such audit of the consolidated statement, and to be certified by the Chief Financial Officer of the Borrower to the effect that such consolidated financial statements fairly present the financial condition and results of operations of the Company Borrower and the Subsidiaries Guarantors on a consolidated basis in accordance with GAAPGAAP consistently applied;
(bii) within 60 45 days after the end of each of the first three fiscal quarters and within 90 days after the end of the fourth fiscal quarter of each fiscal year, unaudited Consolidated the Borrower's consolidated and consolidating balance sheets, Consolidated sheets and related statements of income and Consolidated statements cash flows, showing the financial condition of cash flows showing the Borrower and the Guarantors on a consolidated and consolidating basis as of the close of such fiscal quarter and the results of their operations during such fiscal quarter and the then elapsed portion of the fiscal year, each certified by the Chief Financial Officer of the Borrower as fairly presenting the financial condition and results of operations of the Company Borrower and the Subsidiaries Guarantors on a consolidated and consolidating basis as of the end of each such quarter and for the then elapsed portion of the fiscal year, certified by a Financial Officer of the Company as presenting fairly the financial position and results of operations of the Company and such Subsidiaries and as having been prepared in accordance with GAAP (except for such changes therein as are approved by the independent accountants for the Company)consistently applied, in each case subject to normal year-end audit adjustments;
(ciii) concurrently with any delivery of financial statements under paragraphs (ac) and and/or (bd) (i) or (ii) above, (i) a certificate of the firm or person referred to therein (which certificate furnished by the independent accountants referred to in paragraph (a) above may be limited to the best of its knowledge Chief Financial Officer, certifying such financial statements and to accounting matters and may disclaim responsibility for legal interpretations) (i) certifying that no Event of Default or event which upon notice or lapse of time or both would constitute an Event of Default has occurred, or, if such a Default or an Event of Default or event has occurred, specifying the nature and extent thereof and, in the case of the certificate furnished by a Financial Officer of the Company, specifying and any corrective action taken or proposed to be taken with respect thereto and (ii) setting forth computations a certificate (which certificate may be limited to accounting matters and disclaim responsibility for legal interpretations) of Sunshine's outside auditors accompanying the audited consolidated financial statements delivered under (d)(i) above certifying that, in reasonable detail satisfactory to the Administrative Agent demonstrating compliance course of the audit of the business of the Borrower and its consolidated Subsidiaries, such accountants have obtained no knowledge that an Event of Default has occurred and is continuing, or if, in the opinion of such accountants, an Event of Default has occurred and is continuing, specifying the nature thereof and all relevant facts with the covenants contained in Section 6.05 and 6.06respect thereto;
(div) promptly after concurrently with any delivery of the same become publicly available Budgets under paragraphs (b) above, a certificate of the Chief Financial Officer, certifying such Budget and to certifying that no Event of Default or event which upon notice or lapse of time or both would constitute an Event of Default has occurred, or, if such Event of Default or event has occurred, specifying the nature and extent not required thereof and any corrective actions taken or proposed to be furnished by any other provision of this Section 5.04, (i) copies of all proxy statements, financial statements and reports that the Company sends to its stockholders and (ii) copies of all regular, periodic and special reports, and all registration statements relating to transactions requiring a vote of stockholders of the Company or filed on Form X-0, X-0 or S-3 under the Securities Act of 1933, which the Company or any Subsidiary files taken with the Securities and Exchange Commission, or any Governmental Authority which may be substituted therefor, or with any national securities exchange, or distributed to its shareholders, as the case may berespect thereto; and
(ev) promptly, from time to time, such other information regarding the operations, business affairs and financial condition (financial or otherwise) of the Company and Borrower or any Guarantor, or compliance with the Subsidiaries terms of any material loan or financing agreements as each Bank through the Administrative Agent any Lender may reasonably request; provided, however, that the Company shall not be obligated to disclose, or to permit any examination which will disclose, technical knowledge or confidential trade information, except where appropriate safeguards exist that prevent dissemination of such information in a manner detrimental to the Company's competitive position.
Appears in 1 contract
Financial Statements, Reports, etc. In the case of the CompanyBorrower, furnish directly to the Administrative Agent and for distribution by the Administrative Agent to each of the BanksLender:
(a) within 120 90 days after the end of each fiscal year of the Company (being December 31 in each calendar year), its Consolidated consolidated and consolidating balance sheets, Consolidated sheets and related statements of income operations, stockholders' equity and Consolidated statements of cash flows showing the Consolidated financial condition of the Company Borrower and the its consolidated Subsidiaries as of the close of such fiscal year and the results of its operations and the operations of the such Subsidiaries during such year, all the foregoing consolidated financial statements to be audited by Coopers & Xxxxxxx, independent public accountants, PricewaterhouseCoopers LLP or other independent public accountants of recognized national standing or otherwise reasonably acceptable to the Required Banks Lenders and accompanied by an opinion of such accountant accountants (which shall not be qualified in any material respect) to the effect that such consolidated financial statements fairly present the financial condition and results of operations of the Company Borrower and the its consolidated Subsidiaries on a consolidated basis in accordance with GAAPGAAP consistently applied;
(b) within 60 45 days after the end of each of the first three fiscal quarters of each fiscal year, unaudited Consolidated its consolidated and consolidating balance sheets, Consolidated sheets and related statements of income operations, stockholders' equity and Consolidated statements of cash flows showing the financial condition of the Borrower and its consolidated Subsidiaries as of the close of such fiscal quarter and the results of its operations and the operations of such Subsidiaries during such fiscal quarter and the then elapsed portion of the fiscal year, all certified by one of its Financial Officers as fairly presenting in all material respects the financial condition and results of operations of the Company Borrower and the its consolidated Subsidiaries on a consolidated basis as of the end of each such quarter and for the then elapsed portion of the fiscal year, certified by a Financial Officer of the Company as presenting fairly the financial position and results of operations of the Company and such Subsidiaries and as having been prepared in accordance with GAAP (except for such changes therein as are approved by the independent accountants for the Company)consistently applied, in each case subject to normal year-end audit adjustments;
(c) concurrently with any delivery of financial statements under sub-paragraph (a) and or (b) aboveabove (i) if there shall have been any Unrestricted Subsidiaries during the relevant period, comparable financial statements (which need not be audited or contain footnotes) for such period covering the Borrower and its Restricted Subsidiaries, and (ii) a certificate of the accounting firm (unless at such time it is the practice and policy of such accounting firm not to deliver such certificates) or person referred to therein Financial Officer opining on or certifying such statements (which certificate certificate, when furnished by the independent accountants referred to in paragraph (a) above an accounting firm, may be limited to the best of its knowledge and to accounting matters and may disclaim responsibility for legal interpretations) (ix) certifying that no Default or Event of Default or Default has occurred, occurred or, if such a an Event of Default or Event of Default has occurred, specifying the nature and extent thereof and, in the case of the certificate furnished by a Financial Officer of the Company, specifying and any corrective action taken or proposed to be taken with respect thereto thereto; and (iiy) in the case of any such letter from such Financial Officer, setting forth computations in reasonable detail satisfactory to the Administrative Agent reasonably detailed calculations demonstrating compliance with the covenants contained in Section 6.05 Sections 6.10, 6.11, 6.12 and 6.066.13;
(d) promptly after the same become publicly available and to the extent not required to be furnished by any other provision of this Section 5.04available, (i) copies of all periodic and other reports, proxy statements, financial statements and reports that other materials filed by the Company sends to its stockholders and (ii) copies of all regular, periodic and special reports, and all registration statements relating to transactions requiring a vote of stockholders of the Company or filed on Form X-0, X-0 or S-3 under the Securities Act of 1933, which the Company Borrower or any Restricted Subsidiary files with the Securities and Exchange Commission, or any Governmental Authority which may be substituted thereforsucceeding 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) as promptly as practicable, but in no event later than 10 Business Days after the last day of each fiscal year of the Borrower, a copy of the budget for its consolidated balance sheet and related statements of income and selected working capital and capital expenditure analyses for each quarter of the following fiscal year; and
(ef) promptly, from time to time, such other information regarding the operations, business affairs and financial condition (financial or otherwise) of the Company and Borrower or any Restricted Subsidiary, or compliance with the Subsidiaries terms of any Loan Document, as each Bank through the Administrative Agent or any Lender may reasonably request; provided, however, that the Company shall not be obligated to disclose, or to permit any examination which will disclose, technical knowledge or confidential trade information, except where appropriate safeguards exist that prevent dissemination of such information in a manner detrimental to the Company's competitive position.
Appears in 1 contract
Samples: Amendment Agreement (Terex Corp)
Financial Statements, Reports, etc. In the case of the Company, furnish directly to the Administrative Agent and to each of the BanksLender:
(a) within 120 75 days after the end of each fiscal year of the Company (being December 31 in each calendar year), its Consolidated consolidated balance sheets, Consolidated sheets and related statements of income income, changes in stockholders' equity and Consolidated statements of cash flows flows, showing the Consolidated financial condition of the Company and the its Subsidiaries as of the close of such fiscal year and the results of its operations and the operations of the its Subsidiaries during such year, all the foregoing consolidated financial statements to be audited by Coopers & Xxxxxxx, independent public accountants, PricewaterhouseCoopers LLP or other independent public accountants of recognized national standing acceptable to the Required Banks Lenders and accompanied by an opinion of such accountant accountants (which shall not be qualified in any material respect) to the effect that such consolidated financial statements fairly present the financial condition and results of operations of the Company and the Subsidiaries on a consolidated basis in accordance with GAAPGAAP consistently applied;
(b) within 60 40 days after the end of each of the first three fiscal quarters of each fiscal year, unaudited Consolidated its consolidated balance sheets, Consolidated sheets and related statements of income income, changes in stockholders' equity and Consolidated statements cash flows, showing the financial condition of cash flows showing the Company and its Subsidiaries as of the close of such fiscal quarter and the results of its operations and the operations of its Subsidiaries during such fiscal quarter and the then elapsed portion of such fiscal year, all certified by one of its Financial Officers as fairly presenting the financial condition and results of operations of the Company and the Subsidiaries on a consolidated basis as of the end of each such quarter and for the then elapsed portion of the fiscal year, certified by a Financial Officer of the Company as presenting fairly the financial position and results of operations of the Company and such Subsidiaries and as having been prepared in accordance with GAAP (except for such changes therein as are approved by the independent accountants for the Company)consistently applied, in each case subject to normal year-end audit adjustments;
(c) concurrently with any delivery of financial statements under (a) and or (b) above, a certificate of the accounting firm or person referred to therein Financial Officer opining on or certifying such statements (which certificate certificate, when furnished by the independent accountants referred to in paragraph (a) above an accounting firm, may be limited to the best of its knowledge and to accounting matters and may disclaim responsibility for legal interpretations) legal
(i) certifying that no Default or Event of Default or Default has occurred, occurred or, if such a an Event of Default or Event of Default has occurred, specifying the nature and extent thereof and, in the case of the certificate furnished by a Financial Officer of the Company, specifying 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 covenant contained in Section 6.05 and 6.06;
(d) promptly after the same become publicly available and to the extent not required to be furnished by any other provision of this Section 5.04available, (i) copies of all periodic and other reports, proxy statements, financial statements and reports that the Company sends to its stockholders and (ii) copies of all regular, periodic and special reports, and all registration statements relating to transactions requiring a vote of stockholders of the Company or other materials filed on Form X-0, X-0 or S-3 under the Securities Act of 1933, which the Company or any Subsidiary files by it with the Securities and Exchange Commission, or any Governmental Authority which may be substituted thereforsucceeding to any of or all the functions of such Commission, or with any national securities exchange, or distributed to its shareholders, as the case may be; and
(e) promptly, from time to time, such other information regarding the operations, business affairs and financial condition (financial or otherwise) of the Company and or any Subsidiary, or compliance with the Subsidiaries terms of any Loan Document, as each Bank through the Administrative Agent or any Lender may reasonably request; provided, however, that the Company shall not be obligated to disclose, or to permit any examination which will disclose, technical knowledge or confidential trade information, except where appropriate safeguards exist that prevent dissemination of such information in a manner detrimental to the Company's competitive position.
Appears in 1 contract
Financial Statements, Reports, etc. In the case of the CompanyBorrower, furnish directly to the Administrative Agent and to each of the BanksLender:
(a) within 120 90 days after the end of each fiscal year of the Company (being December 31 in each calendar year), its Consolidated consolidated balance sheets, Consolidated sheets and related statements of income operations, stockholders' equity and Consolidated statements of cash flows showing the Consolidated financial condition of the Company Borrower and the Subsidiaries its consolidated subsidiaries as of the close of such fiscal year and the results of its operations and the operations of the Subsidiaries such subsidiaries during such year, all the foregoing consolidated financial statements to be audited by Coopers Arthxx Xxxexxxx & Xxxxxxx, independent public accountants, Co. or other independent public accountants of recognized national standing reasonably acceptable to the Required Banks Lenders and accompanied by an opinion of such accountant accountants (which shall not be qualified in any material respect) to the effect that such consolidated financial statements fairly present the financial condition and results of operations of the Company and the Subsidiaries Borrower on a consolidated basis in accordance with GAAPGAAP consistently applied;
(b) within 60 45 days after the end of each of the first three fiscal quarters of each fiscal year, its unaudited Consolidated consolidated balance sheets, Consolidated sheets and related statements of income operations, stockholders' equity and Consolidated statements of cash flows showing the financial condition of the Borrower and its consolidated subsidiaries as of the close of such fiscal quarter and the results of its operations and the operations of such subsidiaries during such fiscal quarter 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 Company and the Subsidiaries Borrower on a consolidated basis as of the end of each such quarter and for the then elapsed portion of the fiscal year, certified by a Financial Officer of the Company as presenting fairly the financial position and results of operations of the Company and such Subsidiaries and as having been prepared in accordance with GAAP (except for such changes therein as are approved by the independent accountants for the Company)GAAP, in each case subject to normal year-end audit adjustmentsadjustments and the absence of notes;
(c) concurrently with any delivery of any such financial statements, a certificate of a Financial Officer (and, in the case of any financial statements being delivered under clause (a) and (b) above, a certificate of the firm or person referred to therein (opining accounting firm, which certificate furnished by the independent accountants referred to in paragraph (a) above may be limited to the best of its knowledge and to accounting matters and may disclaim responsibility for legal interpretations) ), (i) certifying that no Default or Event of Default or Default has occurred, occurred or, if such a an Event of Default or Event of Default has occurred, specifying the nature and extent thereof and, in the case of the certificate furnished by a Financial Officer of the Company, specifying 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 (A) compliance with the covenants contained in Section 6.05 Sections 6.13 and 6.066.14 and (B) the Applicable Percentage based upon the Leverage Ratio;
(d) promptly after the same become publicly available and to the extent not required to be furnished by any other provision of this Section 5.04available, (i) copies of all periodic and other reports, proxy statements, financial statements and reports that other materials filed by the Company sends to its stockholders and (ii) copies of all regular, periodic and special reports, and all registration statements relating to transactions requiring a vote of stockholders of the Company or filed on Form X-0, X-0 or S-3 under the Securities Act of 1933, which the Company Borrower or any Subsidiary files with the Securities and Exchange Commission, or any Governmental Authority which may be substituted thereforsucceeding to any of or all the functions of said Commission, or with any national securities exchange, or distributed to its shareholders, as the case may be;
(e) as soon as available, and in any event no later than 95 days after the end of each fiscal year thereafter, historical summary data for the immediately preceding year and forecasted financial projections and summary data through the end of the then-current fiscal year, in substantially the same form and format as set forth in the Confidential Information Memorandum (including a specification of the underlying assumptions and management's discussion of historical results), all certified by a Financial Officer of the Borrower to be a fair summary of such entity's results and such entity's good faith estimate of the forecasted financial projections and results of operations for the period through the then-current fiscal year;
(f) upon the earlier of (i) 95 days after the end of each fiscal year of the Borrower and (ii) the date on which the financial statements with respect to such period are delivered pursuant to clause (a) above, a certificate of a Financial Officer of the Borrower setting forth, in detail satisfactory to the Administrative Agent, the calculation and amount of Excess Cash Flow, if any, for such period; and
(eg) promptly, from time to time, such other information regarding the operations, business affairs and financial condition (financial or otherwise) of the Company and Borrower, or compliance with the Subsidiaries terms of any Loan Document, as each Bank through the Administrative Agent any Lender may reasonably request; provided, however, that the Company shall not be obligated to disclose, or to permit any examination which will disclose, technical knowledge or confidential trade information, except where appropriate safeguards exist that prevent dissemination of such information in a manner detrimental to the Company's competitive position.
Appears in 1 contract
Financial Statements, Reports, etc. In the case of the Company, furnish directly to the Administrative Agent and to each of the BanksLender:
(a) within 120 90 days after the end of each fiscal year of the Company (being December 31 in each calendar year), its Consolidated balance sheets, statement of financial position and related Consolidated statements of income and Consolidated statements of earnings, cash flows and shareholders' investment, showing the Consolidated financial condition position of the Company and the its Consolidated Subsidiaries as of the close of such fiscal year and the their results of its operations and the operations of the Subsidiaries during cash flows for such year, all the foregoing consolidated financial statements to be audited by Coopers & Xxxxxxx, independent public accountants, PricewaterhouseCoopers LLP or other independent public accountants acceptable to the Required Banks of recognized national standing and accompanied by an opinion of such accountant accountants (which shall not be qualified in any material respectrespect except with the consent of the Required Lenders) to the effect that such consolidated Consolidated financial statements fairly present in all material respects the financial condition and position, results of operations and cash flows of the Company and the Subsidiaries on a consolidated Consolidated basis in accordance with GAAPGAAP consistently applied;
(b) within 60 45 days after the end of each of the first three fiscal quarters of each fiscal year, unaudited its Consolidated balance sheets, statement of financial position and related Consolidated statements of income earnings and Consolidated statements of cash flows showing the financial condition and results of operations position of the Company and the its Consolidated Subsidiaries on a consolidated basis as of the end close of each such fiscal quarter and their results of operations for such fiscal quarter and the then elapsed portion of the fiscal year and their cash flows for the then elapsed portion of the fiscal year, all certified by a one of its Financial Officer Officers as fairly presenting the financial position, results of operations and cash flows of the Company as presenting fairly the financial position and results of operations of the Company and such Subsidiaries and as having been prepared on a Consolidated basis in accordance with GAAP (except for such changes therein as are approved by the independent accountants for the Company)consistently applied, in each case subject to normal year-end audit adjustments;
(c) concurrently with any delivery of financial statements under paragraph (a) and or (b) above, a certificate corresponding consolidating statement of financial position and related consolidating statements of earnings, cash flow and shareholders' investment (which need not be audited), showing the financial position of the firm or person referred Company and its Subsidiaries as of the end of the corresponding period, and their results of operations and cash flows for such period, all certified by one of the Company's Financial Officers as fairly presenting the financial position, results of operations and cash flows of the Company and its Subsidiaries on a consolidating basis in accordance with GAAP consistently applied, subject to therein normal year-end adjustments;
(which certificate furnished by the independent accountants referred to in d) concurrently with any delivery of financial statements under paragraph (a) above or (b) above, a certificate, substantially in the form of Exhibit G hereto, 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 the best of its knowledge and to accounting matters and may disclaim responsibility for legal interpretations) legal
(i) certifying that no Default or Event of Default has occurred, occurred or, if such a Default or Event of Default has occurred, specifying the nature and extent thereof and, in the case of the certificate furnished by a Financial Officer of the Company, specifying 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 Administrative Agent demonstrating compliance with the covenants contained in Sections 7.01, 7.02 and Section 6.05 and 6.067.03;
(de) promptly after the occurrence of any event or condition which makes the information thereon inaccurate, incomplete or untrue, an update to Schedule 3.07;
(f) promptly after the same become publicly available and to the extent not required to be furnished by any other provision of this Section 5.04available, (i) copies of all periodic and other reports, proxy statements, financial statements and reports that the Company sends to its stockholders and (ii) copies of all regular, periodic and special reports, and all registration statements relating to transactions requiring a vote of stockholders of the Company or other materials filed on Form X-0, X-0 or S-3 under the Securities Act of 1933, which the Company or any Subsidiary files by it with the Securities and Exchange Commission, or any Governmental Authority which may be substituted thereforgovernmental authority succeeding to any of or all the functions of such Commission, or with any national securities exchange, or distributed to its shareholders, as the case may be; and
(eg) promptly, from time to time, such other information regarding the operations, business affairs and financial condition (financial or otherwise) of the Company and or any Subsidiary, or compliance with the Subsidiaries terms of the Loan Documents, as each Bank through the Administrative Agent may reasonably request; provided. Information required to be delivered pursuant to paragraphs 5.04(a), however, that 5.04(b) or 5.04(f) above shall be deemed to have been delivered on the date on which the Company shall not be obligated provides notice to disclose, or to permit any examination which will disclose, technical knowledge or confidential trade information, except where appropriate safeguards exist the Lenders that prevent dissemination of such information in a manner detrimental to has been posted on the Company's competitive positionwebsite on the Internet at xxx.xxxxxxx.xxx, at xxx.xxx/xxxxx/xxxxxxxx.xxx or at another website identified in such notice and accessible by the Lenders without charge; PROVIDED that (i) such notice may be included in a certificate delivered pursuant to paragraph 5.04(d) and (ii) the Borrower shall deliver paper copies of the information referred to in paragraphs 5.04(a), 5.04(b) or 5.04(f) to any Lender which requests such delivery.
Appears in 1 contract
Samples: Credit Agreement (Cummins Inc)
Financial Statements, Reports, etc. In the case of the CompanyParent, furnish directly to the Administrative Agent and Agent, which shall furnish to each of the BanksLender:
(a) within 120 90 days after the end of each fiscal year of the Company (being December 31 in each calendar year), its Consolidated consolidated balance sheets, Consolidated sheet and related statements of income income, stockholders’ equity and Consolidated statements of cash flows showing the Consolidated financial condition of the Company Parent and the Subsidiaries its consolidated subsidiaries as of the close of such fiscal year and the results of its operations and the operations of the Subsidiaries such subsidiaries during such year, together with comparative figures for the immediately preceding fiscal year, all the foregoing consolidated financial statements to be audited by Coopers Deloitte & Xxxxxxx, independent public accountants, Touche LLP or other independent public accountants acceptable to the Required Banks of recognized national standing and accompanied by an opinion of such accountant accountants (which opinion shall not be qualified in without a “going concern” or like qualification or exception or any material respectqualification or exception as to the scope of such audit) to the effect that such consolidated financial statements fairly present in all material respects the financial condition and results of operations of the Company Parent and the Subsidiaries its consolidated subsidiaries on a consolidated basis in accordance with GAAP;
(b) within 60 50 days after the end of each of the first three fiscal quarters of each fiscal year, unaudited Consolidated its consolidated balance sheets, Consolidated sheet and related statements of income income, stockholders’ equity and Consolidated statements of cash flows showing the financial condition of Parent and results of operations of the Company and the Subsidiaries on a its consolidated basis subsidiaries as of the end close of each such fiscal quarter and for the results of its operations and the operations of such subsidiaries during such fiscal quarter and the then elapsed portion of the fiscal year, and comparative figures for the same periods in the immediately preceding fiscal year all certified by a one of its Financial Officer of the Company Officers as fairly presenting fairly in all material respects the financial position condition and results of operations of the Company Parent and such Subsidiaries and as having been prepared its consolidated subsidiaries on a consolidated basis in accordance with GAAP (except for such changes therein as are approved by the independent accountants for the Company)GAAP, in each case subject to normal year-end audit adjustments;
(c) concurrently with any delivery of financial statements under paragraph (a) and or (b) above, a certificate of a Financial Officer of the firm or person referred to therein (which certificate furnished by the independent accountants referred to in paragraph (a) above may be limited to the best of its knowledge and to accounting matters and may disclaim responsibility for legal interpretations) Borrower (i) certifying that no Default or Event of Default or Default has occurred, occurred or, if such a an Event of Default or Event of Default has occurred, specifying the nature and extent thereof and, in the case of the certificate furnished by a Financial Officer of the Company, specifying and any corrective action taken or proposed to be taken with respect thereto and thereto, (ii) setting forth computations in reasonable detail satisfactory to the Administrative Agent demonstrating compliance with the covenants contained in Section 6.05 Sections 6.11 (in the case of the financial statements delivered under paragraph (a) only), 6.12 and 6.066.13 and, with respect to any Permitted Acquisition consummated during the preceding quarter for total consideration in excess of $100,000,000, 6.04(h), (iii) setting forth the identity and value of any Hospital acquired in fee by Parent or any Subsidiary during the preceding quarter and not previously identified to the Administrative Agent if the fair market value thereof is in excess of $10,000,000 and (iv) setting forth computations in reasonable detail satisfactory to the Administrative Agent of the Secured Net Leverage Ratio and the Leverage Ratio and, in the case of a certificate delivered with the financial statements required by paragraph (a) above, setting forth Parent’s calculation of Excess Cash Flow;
(d) within 120 days after the beginning of each fiscal year of Parent, 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 and to the extent not required to be furnished by any other provision of this Section 5.04available, (i) copies of all periodic and other reports, proxy statements, financial statements and reports that other materials filed by Parent, the Company sends to its stockholders and (ii) copies of all regular, periodic and special reports, and all registration statements relating to transactions requiring a vote of stockholders of the Company or filed on Form X-0, X-0 or S-3 under the Securities Act of 1933, which the Company Borrower or any Subsidiary files with the Securities and Exchange Commission, or any Governmental Authority which may be substituted thereforSEC, or with any national securities exchange, or distributed to its shareholders, as the case may be; and;
(ef) promptly after the request by any Lender (made 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;
(g) 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;
(h) promptly, from time to time, such other information regarding the operations, business affairs and financial condition (financial of Parent, the Borrower or otherwise) any Subsidiary, or compliance with the terms of the Company and the Subsidiaries any Loan Document, as each Bank through the Administrative Agent may reasonably requestrequest (on behalf of itself or any Lender); providedand
(i) substantially contemporaneously with each designation of a Subsidiary as an “Unrestricted Subsidiary” and each redesignation of an Unrestricted Subsidiary as a “Subsidiary”, however, that the Company shall not be obligated to disclose, or to permit any examination which will disclose, technical knowledge or confidential trade information, except where appropriate safeguards exist that prevent dissemination provide written notice of such information in a manner detrimental designation or redesignation, as applicable, to the Company's competitive positionAdministrative Agent (who shall promptly notify the Lenders).
Appears in 1 contract
Financial Statements, Reports, etc. In the case of the Company, furnish directly to the Administrative Agent and to each of the BanksAgent:
(a) within 120 65 days after the end of each fiscal year of the Company (being December 31 in each calendar year), its Consolidated consolidated balance sheets, Consolidated sheets and related statements of income income, changes in stockholders’ equity and Consolidated statements of cash flows flows, showing the Consolidated financial condition of the Company and the its Subsidiaries as of the close of such fiscal year and the results of its operations and the operations of the its Subsidiaries during such year, all the foregoing consolidated financial statements to be audited by Coopers & Xxxxxxx, independent public accountants, PricewaterhouseCoopers LLP or other independent public accountants of recognized national standing acceptable to the Required Banks Lenders and accompanied by an opinion of such accountant accountants (which shall not be qualified in any material respect) to the effect that such consolidated financial statements fairly present the financial condition and results of operations of the Company and the Subsidiaries on a consolidated basis in accordance with GAAPGAAP consistently applied;
(b) within 60 45 days after the end of each of the first three fiscal quarters of each fiscal year, unaudited Consolidated its consolidated balance sheets, Consolidated sheets and related statements of income and Consolidated statements cash flows, showing the financial condition of cash flows showing the Company and its Subsidiaries as of the close of such fiscal quarter and the results of its operations and the operations of its Subsidiaries during such fiscal quarter and the then elapsed portion of such fiscal year, all certified by one of its Financial Officers as fairly presenting the financial condition and results of operations of the Company and the Subsidiaries on a consolidated basis as of the end of each such quarter and for the then elapsed portion of the fiscal year, certified by a Financial Officer of the Company as presenting fairly the financial position and results of operations of the Company and such Subsidiaries and as having been prepared in accordance with GAAP (except for such changes therein as are approved by the independent accountants for the Company)consistently applied, in each case subject to normal year-end audit adjustments;
(c) concurrently with any delivery of financial statements under (a) and or (b) above, a certificate of the accounting firm or person referred to therein Financial Officer opining on or certifying such statements (which certificate certificate, when furnished by the independent accountants referred to in paragraph (a) above an accounting firm, may be limited to the best of its knowledge and to accounting matters and may disclaim responsibility for legal interpretations) (i) certifying that no Default or Event of Default or Default has occurred, occurred or, if such a an Event of Default or Event of Default has occurred, specifying the nature and extent thereof and, in the case of the certificate furnished by a Financial Officer of the Company, specifying 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 covenant contained in Section 6.05 and 6.06;
(d) promptly after the same become publicly available and to the extent not required to be furnished by any other provision of this Section 5.04available, (i) copies of all periodic and other reports, proxy statements, financial statements and reports that the Company sends to its stockholders and other materials (iiother than materials ministerial or administrative in nature) copies of all regular, periodic and special reports, and all registration statements relating to transactions requiring a vote of stockholders of the Company or filed on Form X-0, X-0 or S-3 under the Securities Act of 1933, which the Company or any Subsidiary files by it with the Securities and Exchange Commission, or any Governmental Authority which may be substituted thereforsucceeding to any of or all the functions of such Commission, or with any national securities exchange, or distributed to its shareholders, as the case may be; and
(e) promptly, from time to time, such other information regarding the operations, business affairs and financial condition (financial or otherwise) of the Company and or any Subsidiary, or compliance with the Subsidiaries terms of any Loan Document, as each Bank through the Administrative Agent or any Lender may reasonably request; provided. Documents required to be delivered under this Section 5.04 may be delivered electronically and if so delivered, however, that shall be deemed to have been delivered on the Company shall not be obligated to discloseearliest date on which such documents are posted on, or a link to permit any examination which will disclose, technical knowledge or confidential trade information, except where appropriate safeguards exist that prevent dissemination of such information in a manner detrimental to documents is provided on (i) the Company's competitive position’s website on the internet at wxx.xxxxxx.xxx, (ii) the website of the U.S. Securities and Exchange Commission or (iii) the Platform.
Appears in 1 contract
Financial Statements, Reports, etc. In the case of the CompanyBorrower, furnish directly to the Administrative Agent and for distribution to each of the BanksLender:
(a) within 120 105 days after the end of each fiscal year of the Company (being December 31 in each calendar year)Borrower, its Consolidated annual report on Form 10-K as filed with the SEC, including its consolidated balance sheets, Consolidated sheet and the related consolidated statements of income earnings and Consolidated statements of cash flows showing the Consolidated its consolidated financial condition of the Company and the Subsidiaries position as of the close end of such fiscal year and the consolidated results of its operations and the operations of the Subsidiaries during cash flows for such year, all the foregoing consolidated financial statements to be audited by Coopers & Xxxxxxx, independent public accountants, PricewaterhouseCoopers LLP or other independent registered public accountants acceptable to accounting firm of recognized national standing selected by the Required Banks Borrower and accompanied by an opinion of such accountant (which shall not be qualified in any material respect) accounting firm to the effect that such consolidated financial statements present fairly present in all material respects the Borrower’s financial condition position and results of operations of the Company and the Subsidiaries cash flows on a consolidated basis in accordance with GAAP;
(b) within 60 days after the end of each of the first three fiscal quarters of each fiscal yearyear of the Borrower, its quarterly report on Form 10-Q as filed with the SEC, including its unaudited Consolidated consolidated balance sheets, Consolidated sheet and related consolidated statements of income earnings and Consolidated statements of cash flows flows, showing the its consolidated financial condition and results of operations of the Company and the Subsidiaries on a consolidated basis position as of the end of each such fiscal quarter and the consolidated results of its operations and cash flows for such fiscal quarter and the then elapsed portion of the fiscal year, certified by year (and each delivery of such statements shall be deemed a Financial Officer of representation that such statements present fairly in all material respects the Company as presenting fairly the Borrower’s financial position and results of operations of the Company and such Subsidiaries and as having been prepared cash flows on a consolidated basis in accordance with GAAP (except for such changes therein as are approved by the independent accountants for the Company)GAAP, in each case subject to normal year-end audit adjustmentsadjustments and the absence of footnotes);
(c) concurrently with (aany delivery of financial statements under Sections 6.03(a) and or (b) above), a certificate of a Financial Officer of the firm or person referred to therein (which certificate furnished by the independent accountants referred to in paragraph (a) above may be limited to the best of its knowledge and to accounting matters and may disclaim responsibility for legal interpretations) Borrower (i) certifying that no Default or Event of Default or Default has occurred, occurred or, if such a an Event of Default or Event of Default has occurred, specifying the nature and extent thereof and, in the case of the certificate furnished by a Financial Officer of the Company, specifying and any corrective action taken or proposed to be taken with respect thereto and (ii) setting forth computations demonstrating in reasonable detail satisfactory to calculation of the Administrative Agent demonstrating compliance with the covenants contained covenant set forth in Section 6.05 and 6.067.04 as of the last day of the period covered by such financial statements;
(d) promptly after the same become publicly available and to the extent not required to be furnished by any other provision of this Section 5.04available, (i) copies of all proxy statements, financial statements and reports that the Company sends to its stockholders and (ii) copies of all regular, periodic and special reports, and all registration statements relating to transactions requiring a vote of stockholders of the Company or filed on Form X-0, X-0 or S-3 under the Securities Act of 1933, which the Company or any Subsidiary files 8-K filed by it with the Securities and Exchange CommissionSEC, or any Governmental Authority which may be substituted thereforsucceeding to any of or all the functions of the SEC, or with any national securities exchange, or and copies of all reports distributed to its shareholders, as the case may be; and
(e) promptly, from time upon request, (i) all documentation and other information that a Lender reasonably requests through the Administrative Agent in order to timecomply with obligations under applicable “know your customer” and anti-money laundering rules and regulations, including the USA PATRIOT Act and the Beneficial Ownership Regulation, and (ii) such other information regarding the operationsBorrower and its Subsidiaries, business affairs and condition (financial or otherwise) the compliance by the Borrower with the terms of the Company and the Subsidiaries Loan Documents, as each Bank any Lender shall reasonably request through the Administrative Agent (it being understood that, in the case of this clause (ii), the Borrower shall not be required to provide any information or documents which are subject to confidentiality provisions the nature of which prohibit such disclosure). Information required to be delivered pursuant to this Section (other than Sections 6.03(c) or 6.03(e)(i)) shall be deemed to have been delivered on the date on which the Borrower provides notice (reasonably identifying where the applicable disclosure may reasonably request; providedbe obtained) to the Administrative Agent that such information has been posted on the Borrower’s website on the internet at wxx.xxxxxxxxxxxx.xxx, howeveror on the SEC’s website on the internet at wxx.xxx.xxx or at another website identified in such notice and accessible by the Lenders without charge. The Borrower hereby acknowledges that (a) the Administrative Agent and/or the Arrangers may, that the Company but shall not be obligated to, make available to disclosethe Lenders materials and/or information provided by or on behalf of the Borrower hereunder (collectively, “Borrower Materials”) by posting the Borrower Materials on IntraLinks, Syndtrak, ClearPar, or a 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 permit any examination which will disclose, technical knowledge or confidential trade information, except where appropriate safeguards exist that prevent dissemination of such receive material non-public information in a manner detrimental with respect to the Company's competitive positionBorrower 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 Borrower Materials that are to be made available to Public Lenders shall be clearly and conspicuously marked “PUBLIC” which, at a minimum, shall mean that the word “PUBLIC” shall appear prominently on the first page thereof; (x) by marking Borrower Materials “PUBLIC,” the Borrower shall be deemed to have authorized the Administrative Agent, the Arrangers, and the Lenders to treat such Borrower Materials as not containing any material non-public information with respect to the Borrower or its securities for purposes of United States Federal and state securities laws (provided, that, to the extent such Borrower Materials constitute Confidential Information, they shall be treated as set forth in Section 10.15); (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.” Notwithstanding the foregoing, the Borrower shall be under no obligation to mxxx any Borrower Materials “PUBLIC.”
Appears in 1 contract
Financial Statements, Reports, etc. In the case of the Company, furnish directly Furnish to the Administrative Agent and for distribution to each of the BanksLender:
(a) within 120 90 days after the end of each fiscal year of year, the Company (being December 31 in each calendar year), its Consolidated consolidated balance sheets, Consolidated sheet and related statements of income operations, stockholders’ equity and Consolidated statements of cash flows showing the Consolidated financial condition of the Company Parent and the its consolidated Subsidiaries as of the close of such fiscal year and the results of its operations and the operations of the such Subsidiaries during such year, together with comparative figures for the immediately preceding fiscal year, all the foregoing consolidated financial statements to be audited by Coopers & Xxxxxxx, independent public accountants, or other independent public accountants acceptable to the Required Banks of recognized national standing and accompanied by an opinion of such accountant accountants (which opinion shall not be qualified in any material respectwithout a “going concern” statement or like qualification or exception) to the effect that such consolidated financial statements fairly present present, in all material respects, the financial condition and results of operations of the Company Parent and the its consolidated Subsidiaries on a consolidated basis in accordance with GAAPGAAP consistently applied;
(b) within 60 45 days after the end of each of the first three fiscal quarters of each fiscal year, unaudited Consolidated the consolidated balance sheets, Consolidated sheet and related statements of income operations and Consolidated statements of cash flows showing the financial condition of Parent and results of operations of the Company and the its consolidated Subsidiaries on a consolidated basis as of the end close of each such fiscal quarter and for the results of its operations and the operations of such Subsidiaries during such fiscal quarter and the then elapsed portion of the fiscal year, and comparative figures for the same periods in the immediately preceding fiscal year, all certified by a one of its Financial Officer of the Company Officers as presenting fairly presenting, in all material respects, the financial position condition and results of operations of the Company Parent and such its consolidated Subsidiaries and as having been prepared on a consolidated basis in accordance with GAAP (except for such changes therein as are approved by the independent accountants for the Company)consistently applied, in each case subject to the absence of footnotes and normal year-end audit adjustments;
(c) concurrently with any delivery of financial statements under paragraph (a) and or (b) above, a certificate of the firm or person referred to therein (which certificate furnished by the independent accountants referred to in paragraph (a) above may be limited to the best of its knowledge and to accounting matters and may disclaim responsibility for legal interpretations) a Financial Officer (i) certifying that no Default or Event of Default or Default has occurred, occurred or, if such a an Event of Default or Event of Default has occurred, specifying the nature and extent thereof and, in the case of the certificate furnished by a Financial Officer of the Company, specifying and any corrective action taken or proposed to be taken with respect thereto and (ii) in the case of a certificate delivered with the financial statements required by paragraph (a) above, setting forth computations in reasonable detail satisfactory the calculation of Excess Cash Flow as of the end of the fiscal year to the Administrative Agent demonstrating compliance with the covenants contained in which such financial statements relate once such calculation is required pursuant to Section 6.05 and 6.062.13;
(d) as soon as available, but in any event no later than 60 days after the end of each fiscal year, for so long as Parent or the Borrower is required to deliver similar forecasts to the Revolving Facility Lenders or the lenders under any refinancing or replacement of the Revolving Facility Credit Agreement, forecasts prepared by management of Parent, of consolidated balance sheets, income statements and cash flow statements of Parent and its Subsidiaries. All forecasts delivered hereunder shall be prepared on an annual basis for the fiscal year following such fiscal year then ended);
(e) promptly after the same become publicly available and to the extent not required to be furnished by any other provision of this Section 5.04available, (i) copies of all proxy statements, financial statements and reports that the Company sends to its stockholders and (ii) copies of all regular, periodic and special other reports, and all registration proxy statements relating to transactions requiring a vote of stockholders and, upon the request of the Company or Administrative Agent, other materials filed on Form X-0by Parent, X-0 or S-3 under the Securities Act of 1933, which the Company Borrower or any Restricted Subsidiary files with the Securities and Exchange Commission, or any Governmental Authority which may be substituted thereforsucceeding to any or all of the functions of said Commission, or with any national securities exchange, or publicly distributed to its shareholders, as the case may be. If Parent has complied with the reporting requirements of Section 13 or 15(d) of the Exchange Act, if applicable, and filed electronically with the Securities and Exchange Commission’s Electronic Data Gathering, Analysis and Retrieval System (or any successor system), the reports, proxy statements and other materials required pursuant to this Section 5.04(e) with respect to Parent, the requirements of this Section 5.04(e) shall be deemed satisfied;
(f) 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
(eg) promptly, from time to time, such other information regarding the operations, business affairs and financial condition (financial of Parent, the Borrower or otherwise) any Restricted Subsidiary, or compliance with the terms of any Loan Document, as the Company and the Subsidiaries as each Bank Administrative Agent or any Lender through the Administrative Agent may reasonably request; provided, however, that the Company . Information required to be delivered pursuant to this Section 5.04 shall not be obligated deemed to disclosehave been delivered if such information, or to permit any examination which will disclose, technical knowledge one or confidential trade more annual or quarterly reports containing such information, except where appropriate safeguards exist shall have been posted by the Administrative Agent on SyndTrak, IntraLinks or a similar site to which the Lenders have been granted access; provided that prevent dissemination upon written request by the Administrative Agent, the Borrower shall deliver paper copies of such information in a manner detrimental documents to the Company's competitive positionAdministrative Agent for further distribution to each Lender until a written request to cease delivering paper copies is given by the Administrative Agent. 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.
Appears in 1 contract
Financial Statements, Reports, etc. In The Borrowers and the case of the Company, furnish directly Subsidiaries will deliver to the Administrative Agent and to each of the BanksLenders:
(a) within 120 ninety (90) days after the end of each fiscal year of the Company (being December 31 in each calendar year), its Consolidated consolidated balance sheets, Consolidated sheets and related statements of income income, stockholders' equity, and Consolidated statements of cash flows flows, showing the Consolidated financial condition of the Company Borrowers and the their Subsidiaries as of the close of such fiscal year and the results of its their respective operations and the operations of the Subsidiaries during such year, all the foregoing consolidated financial statements to be audited for the Borrowers by Coopers & Xxxxxxx, their current independent public accountants, auditors or other independent public accountants acceptable to the Required Banks of recognized national standing and accompanied by an opinion of such accountant accountants (which shall not be qualified in any material respectother than with respect to the Cases or a going concern qualification) and to be certified by a Financial Officer of each of the Borrowers to the effect that such consolidated financial statements fairly present the financial condition and results of operations of the Company and the Subsidiaries Borrowers on a consolidated basis in accordance with GAAP;
(b) commencing with the financial statements for the Borrowers' fiscal quarter ending November 13, 2004, which shall be delivered to the Administrative Agent and each of the Lenders not later than December 28, 2004, and thereafter within 60 forty-five (45) days after the end of each of the first three fiscal quarters of each fiscal year of the Borrowers, and within ninety (90) days after the end of the fourth fiscal quarter of each fiscal year, unaudited Consolidated consolidated balance sheets, Consolidated sheets and related statements of income income, stockholders' equity and Consolidated statements cash flows, showing the financial condition of cash flows showing the Borrowers and their Subsidiaries on a consolidated basis, in each case as of the close of such fiscal quarter and the results of their operations during such fiscal quarter and the then elapsed portion of the fiscal year, each certified by a Financial Officer of each of the Borrowers as fairly presenting the financial condition and results of operations of the Company and the Subsidiaries Borrowers on a consolidated basis as of the end of each such quarter and for the then elapsed portion of the fiscal year, certified by a Financial Officer of the Company as presenting fairly the financial position and results of operations of the Company and such Subsidiaries and as having been prepared in accordance with GAAP (except for such changes therein as are approved by the independent accountants for the Company)GAAP, in each case subject to normal year-end audit adjustments;
(c) concurrently with any delivery of financial statements under (a) and or (b) aboveabove as applicable, (i) a certificate of a Financial Officer of each of the firm or person referred to therein Borrowers (which certificate furnished by the independent accountants referred to in paragraph (a) above may be limited to the best of its knowledge and to accounting matters and may disclaim responsibility for legal interpretations) (iA) certifying that no Event of Default or event which upon notice or lapse of time or both would constitute an Event of Default has occurred, or, if such a Default or an Event of Default or event has occurred, specifying the nature and extent thereof and, in the case of the certificate furnished by a Financial Officer of the Company, specifying and any corrective action taken or proposed to be taken with respect thereto and (iiB) setting forth computations in reasonable detail satisfactory to the Administrative Agent demonstrating compliance with the covenants contained provisions of Sections 6.3, 6.4, 6.5 and 6.10 and (ii) a certificate of such accountants accompanying the audited consolidated financial statements delivered under (a) above certifying that, in Section 6.05 the course of the regular audit of the business of the Borrowers and 6.06their Subsidiaries, such accountants have obtained no knowledge that an Event of Default has occurred and is continuing, or if, in the opinion of such accountants, an Event of Default has occurred and is continuing, specifying the nature thereof and all relevant facts with respect thereto;
(d) commencing with monthly financial statements for the Borrowers' fiscal month ending September 18, 2004, which shall be delivered to the Administrative Agent and the Lenders as soon as possible, and in any event no later than November 22, 2004, and thereafter within forty-five (45) days after the end of each fiscal month, unaudited monthly consolidated balance sheets and related statements of income and cash flows of the Borrowers and their Subsidiaries, in form and substance satisfactory to the Administrative Agent and showing the results of the Borrowers operations during such fiscal month and the then elapsed portion of the fiscal year;
(e) as soon as possible, and in any event no later than October 22, 2004, a forecast of the sources and uses of cash by the Borrowers on a weekly basis for the succeeding thirteen (13) calendar weeks, in form and substance satisfactory to the Administrative Agent and Loughlin Meghji & Company or such other financial advisor as may xx xxxxxxxxxx to the Administrative Agent (as updated from time to time pursuant to Section 5.1(f), the "Forecast");
(f) commencing on the date which is two (2) weeks after the Borrowers' delivery of the Forecast pursuant to Section 5.1(e), and every two (2) weeks thereafter, an update of the Forecast for the then succeeding thirteen (13) calendar weeks, in form and substance satisfactory to the Administrative Agent and Loughlin Meghji & Company or such other financial advisor as may xx xxxxxxxxxx to the Administrative Agent;
(g) as soon as possible, and in any event no later than January 20, 2005, a projected operating budget (which shall include income statements, balance sheets and cash flow statements) detailing, on a monthly and quarterly basis, the Borrowers' anticipated cash receipts and disbursements for the period ending on the Maturity Date, and setting forth the anticipated uses of the Commitment, in form and substance satisfactory to the Administrative Agent and Loughlin Meghji & Company, or such other financial advisor as max xx xxxxxxxxxx to the Administrative Agent (as updated from time to time pursuant to Section 5.1(h), the "Budget");
(h) commencing as soon as possible, and in any event not later than January 20, 2005, within forty-five (45) days after the end of each fiscal month, a summary of the results of the Borrowers' business operations for the preceding month as compared to the corresponding period in the Budget, including a discussion of significant variances, which summary shall describe results on the basis of the Borrowers and their respective Subsidiaries on a consolidated basis;
(i) commencing with an update for the Borrowers' fiscal quarter ending March 5, 2005, which shall be delivered to the Administrative Agent and the Lenders no later than April 19, 2005, and thereafter within forty-five (45) days after the end of each of the first three fiscal quarters of each fiscal year of the Borrowers, and within sixty (60) days from the end of the last fiscal quarter of each fiscal year of the Borrowers, an update of the Budget satisfactory in form and substance to the Administrative Agent and Loughlin Meghji & Company or such other financial advisor as may xx xxxxxxxxxx to Administrative Agent, and be available to discuss such updated Budget with the Administrative Agent upon the Administrative Agent's reasonable request;
(j) promptly after the same become publicly available and to the extent not required to be furnished by any other provision of this Section 5.04available, (i) copies of all periodic and other reports, proxy statements, financial statements and reports that the Company sends to its stockholders and (ii) copies of all regular, periodic and special reports, and all registration statements relating to transactions requiring a vote of stockholders of the Company or other materials filed on Form X-0, X-0 or S-3 under the Securities Act of 1933, which the Company or any Subsidiary files by it with the Securities and Exchange Commission, or any Governmental Authority which may be substituted thereforgovernmental authority succeeding to any of or all the functions of said commission, or with any national securities exchange, or distributed to its shareholders, as the case may be; and
(e) promptly, from time to time, such other information regarding the operations, business affairs and condition (financial or otherwise) of the Company and the Subsidiaries as each Bank through the Administrative Agent may reasonably request; provided, however, that the Company shall not be obligated to disclose, or to permit any examination which will disclose, technical knowledge or confidential trade information, except where appropriate safeguards exist that prevent dissemination of such information in a manner detrimental to the Company's competitive position.;
Appears in 1 contract
Samples: Revolving Credit Agreement (Interstate Bakeries Corp/De/)
Financial Statements, Reports, etc. In the case of the CompanyBorrower, furnish directly to the Administrative Agent and to each of the BanksAgent:
(a) i. within 120 100 days after the end of each fiscal year of the Company (being commencing with Xxxxxxxx’s fiscal year ending December 31 in each calendar year)31, 2021, its Consolidated consolidated balance sheets, Consolidated sheet and related statements of income income, stockholders’ equity and Consolidated statements of cash flows showing the Consolidated financial condition of the Company Borrower and the its consolidated Subsidiaries as of the close of such fiscal year and the results of its operations and the operations of the such Subsidiaries during such year, all the foregoing consolidated financial statements to be audited by Coopers & Xxxxxxx, independent public accountants, PricewaterhouseCoopers LLP or other independent public accountants acceptable to the Required Banks of recognized national standing and accompanied by an opinion of such accountant accountants (which shall not be qualified in subject to any material respect“going concern” or like qualification or exception or any qualification or exception as to the scope of such audit) to the effect that such consolidated financial statements fairly present the financial condition and results of operations of the Company Borrower and the its consolidated Subsidiaries on a consolidated basis in accordance with GAAP;
(b) ii. within 60 50 days after the end of each of the first three fiscal quarters of each fiscal year, unaudited Consolidated its consolidated balance sheets, Consolidated sheet and related statements of income income, stockholders’ equity and Consolidated statements of cash flows showing the financial condition of the Borrower and its consolidated Subsidiaries as of the close of such fiscal quarter and the results of its operations and the operations of such Subsidiaries during such fiscal quarter and the then elapsed portion of the fiscal year, compared with the results of its operations and the operations of its Subsidiaries in the corresponding quarter from the prior fiscal year, all certified by one of its Financial Officers as fairly presenting the financial condition and results of operations of the Company Borrower and the its consolidated Subsidiaries on a consolidated basis as of the end of each such quarter and for the then elapsed portion of the fiscal year, certified by a Financial Officer of the Company as presenting fairly the financial position and results of operations of the Company and such Subsidiaries and as having been prepared in accordance with GAAP (except for such changes therein as are approved by the independent accountants for the Company)GAAP, in each case subject to normal year-end audit adjustments;
(c) iii. concurrently with (aany delivery of financial statements under Section 7.04(a) and (bor 7.04(b) above, a certificate of the firm or person referred to therein (which certificate furnished by the independent accountants referred to in paragraph (a) above may be limited to the best of its knowledge and to accounting matters and may disclaim responsibility for legal interpretations) (i) certifying that no Default or Event of Default has occurredduly completed Compliance Certificate, or, if such a Default or Event of Default has occurred, specifying the nature and extent thereof and, in the case of the certificate furnished signed by a Financial Officer of the Company, specifying 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 6.05 and 6.06Borrower;
(d) iv. [reserved];
v. promptly after the same become publicly available and to the extent not required to be furnished by any other provision of this Section 5.04available, (i) copies of all periodic and other reports, proxy statements, financial statements and reports that other materials filed by the Company sends to its stockholders and (ii) copies of all regular, periodic and special reports, and all registration statements relating to transactions requiring a vote of stockholders of the Company or filed on Form X-0, X-0 or S-3 under the Securities Act of 1933, which the Company Borrower or any Subsidiary files with the Securities and Exchange Commission, or any Governmental Authority which may be substituted therefor, SEC or with any national securities exchange, or distributed to its shareholders, as the case may be;
vi. promptly after the receipt thereof by the Borrower or any of its Subsidiaries, a copy of any final “management letter” received by any such Person from its certified public accountants and management’s response thereto;
vii. 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” requirements under the PATRIOT Act, the Beneficial Ownership Regulation or other applicable anti-money laundering laws; and
(e) viii. 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. Documents required to be delivered pursuant to Section 7.04(a), 7.04(b) or 7.04(e) (financial 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 otherwiseprovides a link thereto, on the Borrower’s website on the Internet at the website address listed on Schedule 11.02; or (ii) on which such documents are posted on the Borrower’s behalf on an Internet or intranet website, if any, to which each Lender and the Administrative Agent have access (whether a commercial, third-party website or whether sponsored by the Administrative Agent); provided that the Borrower shall notify (which may be by facsimile or electronic mail) the Administrative Agent (which shall notify each Lender) of the Company and posting of any such document and, promptly upon request by the Subsidiaries as each Bank through Administrative Agent, provide to the Administrative Agent by electronic mail an electronic version (i.e., a soft copy) of any such document specifically requested by the Administrative Agent. The Administrative Agent shall have no obligation to request the delivery or to maintain copies of the documents referred to above, and in any event shall have no responsibility to monitor compliance by the Borrower with any such request for delivery, and each Lender shall be solely responsible for requesting delivery to it or maintaining its copies of such documents. The Borrower hereby acknowledges that (a) the Administrative Agent and/or BAS may, but shall not be obligated to, make available to the Lenders and the L/C Issuer materials and/or information provided by or on behalf of the Borrower hereunder (collectively, “Borrower Materials”) by posting the Borrower Materials on ClearPar, IntraLinks, Syndtrak or another similar electronic transmission system (as applicable, the “Platform”) and (b) certain of the Lenders (each, a “Public Lender”) may reasonably requesthave 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 (w) all Borrower Materials that are to be made available to Public Lenders shall be clearly and conspicuously marked “PUBLIC” which, at a minimum, shall mean that the word “PUBLIC” shall appear prominently on the first page thereof; (x) by marking Borrower Materials “PUBLIC,” the Borrower shall be deemed to have authorized the Administrative Agent, BAS, the L/C Issuer and the Lenders to treat such Borrower Materials as not containing any material non-public information with respect to the Borrower or its securities for purposes of United States Federal and state securities laws (provided, however, that the Company shall not be obligated to disclose, or to permit any examination which will disclose, technical knowledge or confidential trade information, except where appropriate safeguards exist that prevent dissemination of such information in a manner detrimental to the Company's competitive positionextent 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 Side Information;” and (z) the Administrative Agent and BAS 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 as “Public Side Information.” Notwithstanding the foregoing, the Borrower shall be under no obligation to mark any Borrower Materials “PUBLIC.”
Appears in 1 contract
Samples: Credit Agreement (Flowserve Corp)
Financial Statements, Reports, etc. In Each Credit Party shall keep adequate books and records with respect to its business activities in which proper entries, reflecting all financial transactions, are made in accordance with GAAP, and in the case of the CompanyHoldings, furnish directly to the Administrative Agent and to each of the BanksLender:
(a) (i) within 120 90 days after the end of each fiscal year of the Company (being December 31 in each calendar year), its Consolidated consolidated balance sheets, Consolidated sheet and related statements of income and Consolidated statements of cash flows showing the Consolidated financial condition of the Company Holdings and the its consolidated Subsidiaries as of the close of such fiscal year and the results of its operations and the operations of the such Subsidiaries during such year, together with comparative figures for the immediately preceding fiscal year, all the foregoing consolidated financial statements to be audited by Coopers & Xxxxxxx, independent public accountants, KPMG LLP or other independent public accountants acceptable to the Required Banks of recognized national standing and accompanied by an opinion of such accountant accountants (which opinion shall not be qualified in without a “going concern” or like qualification or exception and without any material respectqualification or exception as to the scope of such audit) to the effect that such consolidated financial statements fairly present the financial condition and results of operations of the Company Holdings and the its consolidated Subsidiaries on a consolidated basis in accordance with GAAP;
GAAP consistently applied, and (bii) within 60 30 days after the end of each fiscal month of each fiscal year, its unaudited consolidated (and, for the third fiscal month of each of the first three fiscal quarters of each fiscal yearquarters, unaudited Consolidated consolidating) balance sheets, Consolidated sheet and related statements of income operations and Consolidated statements of cash flows (consolidated only) showing the financial condition of Holdings and results of operations of the Company and the its consolidated Subsidiaries on a consolidated basis as of the end close of each such quarter fiscal month and for the results of its operations and the operations of such Subsidiaries during such fiscal month and the then elapsed portion of the fiscal year, and comparative figures for the same periods in the immediately preceding fiscal year, all certified by a Financial Officer of the Company Holdings as presenting fairly fairly, in all material respects, the financial position condition and results of operations of the Company Holdings and such its consolidated Subsidiaries and as having been prepared on a consolidated basis in accordance with GAAP (except for such changes therein as are approved by other than the independent accountants for the Company)absence of footnotes, in each case and subject to normal year-end audit adjustments;).
(cb) concurrently with any delivery of financial statements under paragraph (a) and (b) above, a certificate of the accounting firm (in the case of clause (i) thereof) or person referred to therein Financial Officer (in the case of clause (ii) thereof) opining on or certifying such statements (which certificate certificate, when furnished by the independent accountants referred to in paragraph (a) above an accounting firm, may be limited to the best of its knowledge and to accounting matters and may disclaim responsibility for legal interpretations) (i) certifying that no Default or Event of Default has occurred, occurred or, if such a Default or an Event of Default has occurred, specifying the nature and extent thereof and, in the case of the certificate furnished by a Financial Officer of the Company, specifying and any corrective action taken or proposed to be taken with respect thereto and (ii) in the case of (x) reports due under Section 5.03(a)(i) and (y) reports due under Section 5.03(a)(ii) with respect to the third fiscal month of each fiscal quarter, setting forth computations in reasonable detail satisfactory to the Administrative Agent demonstrating compliance with the covenants covenant contained in Section 6.05 6.10;
(c) concurrently with any delivery of financial statements under paragraph (a) of this Section with respect to the third fiscal month of each fiscal quarter, a management report (i) describing the operations and 6.06financial condition of Holdings and its Subsidiaries for the quarter then ended and the portion of the current fiscal year then elapsed and (ii) discussing the reasons for any significant variations, which information shall be presented in reasonable detail and shall be certified by a Financial Officer of Holdings to the effect that such information presents fairly, in all material respects, the results of operations and financial condition of Holdings and its Subsidiaries as at the dates and for the periods indicated;
(d) promptly after the same become publicly available and to the extent not required to be furnished by any other provision of this Section 5.04available, (i) copies of all periodic and other reports, proxy statements, financial statements and reports that the Company sends to its stockholders and (ii) copies of all regular, periodic and special reports, and all registration statements relating to transactions requiring a vote of stockholders of the Company or other materials filed on Form X-0, X-0 or S-3 under the Securities Act of 1933, which the Company by Holdings or any Subsidiary files with the Securities and Exchange Commission, or any Governmental Authority which may be substituted thereforsucceeding 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) promptly after the receipt thereof by Holdings or any Subsidiary, a copy of any final written “management letter” received by any such Person from its certified public accountants and the management’s response thereto;
(f) as soon as practicable, copies of all material written notices given or received by any Credit Party with respect to the First Lien Facilities or any Subordinated Debt or Stock of such Person, and, within two (2) Business Days after any Credit Party obtains knowledge of any matured or unmatured event of default with respect to the First Lien Facilities or any Subordinated Debt, notice of such event of default;
(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
(eh) promptly, from time to time, such other information regarding the operations, business affairs and financial condition (financial of Holdings, the Borrowers or otherwise) any Subsidiary, or compliance with the terms of the Company and the Subsidiaries any Loan Document, as each Bank through the Administrative Agent or any Lender may reasonably request; provided, however, that the Company shall not be obligated to disclose, or to permit any examination which will disclose, technical knowledge or confidential trade information, except where appropriate safeguards exist that prevent dissemination of such information in a manner detrimental to the Company's competitive position.
Appears in 1 contract
Samples: Second Lien Credit Agreement (Thermadyne Holdings Corp /De)
Financial Statements, Reports, etc. In the case of the CompanyBorrower, furnish directly to the Administrative Agent and Agent, which shall furnish to each of the BanksLender:
(a) within 120 90 days after the end of each fiscal year of the Company (being December 31 in each calendar year), its Consolidated consolidated balance sheets, Consolidated sheet and related statements of income income, stockholders’ equity and Consolidated statements of cash flows showing the Consolidated financial condition of the Company Borrower and the its consolidated Subsidiaries as of the close of such fiscal year and the results of its operations and the operations of the such Subsidiaries during such year, together with comparative figures for the immediately preceding fiscal year, all the foregoing consolidated financial statements to be audited by Coopers Deloitte & Xxxxxxx, independent public accountants, Touche LLP or other independent public accountants acceptable to the Required Banks of recognized national standing and accompanied by an opinion of such accountant accountants (which opinion shall not be qualified in without a “going concern” explanatory note or any material respectsimilar qualification or exception and without any qualification or exception as to the scope of such audit) to the effect that such consolidated financial statements fairly present in all material respects the financial condition and results of operations of the Company Borrower and the its consolidated Subsidiaries on a consolidated basis in accordance with GAAPGAAP consistently applied;
(b) within 60 45 days after the end of each of the first three fiscal quarters of each fiscal year, unaudited Consolidated its consolidated balance sheets, Consolidated sheet and related statements of income income, stockholders’ equity and Consolidated statements of cash flows showing the financial condition of the Borrower and its consolidated Subsidiaries as of the close of such fiscal quarter and the results of its operations and the operations of such Subsidiaries during such fiscal quarter and the then elapsed portion of the fiscal year, and 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 financial condition and results of operations of the Company Borrower and the its consolidated Subsidiaries on a consolidated basis as of the end of each such quarter and for the then elapsed portion of the fiscal year, certified by a Financial Officer of the Company as presenting fairly the financial position and results of operations of the Company and such Subsidiaries and as having been prepared in accordance with GAAP (except for such changes therein as are approved by the independent accountants for the Company)consistently applied, in each case subject to normal year-end audit adjustmentsadjustments and the absence of footnotes;
(c) concurrently with any delivery of financial statements under paragraph (a) and or (b) above, a certificate of the accounting firm or person referred to therein (which certificate furnished by in the independent accountants referred to in case of paragraph (a)) above 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 the best of its knowledge and to accounting matters and may disclaim responsibility for legal interpretations) (i) certifying that no Default or Event of Default or Default has occurred, occurred or, if such a an Event of Default or Event of Default has occurred, specifying the nature and extent thereof and, in the case of the certificate furnished by a Financial Officer of the Company, specifying 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 6.05 Sections 6.10, 6.11 and 6.066.12 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) not later than 45 days after to 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 significant assumptions used for purposes of preparing such budget (it being understood that projections are subject to inherent uncertainties) and, promptly when available, any significant revisions of such budget;
(e) promptly after the same become publicly available and to the extent not required to be furnished by any other provision of this Section 5.04available, (i) copies of all periodic and other reports, proxy statements, financial statements and reports that other materials filed by the Company sends to its stockholders and (ii) copies of all regular, periodic and special reports, and all registration statements relating to transactions requiring a vote of stockholders of the Company or filed on Form X-0, X-0 or S-3 under the Securities Act of 1933, which the Company Borrower or any Subsidiary files with the Securities and Exchange Commission, or any Governmental Authority which may be substituted thereforsucceeding 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;
(f) promptly after the receipt thereof by the Borrower or any of its subsidiaries, a copy of any “management letter” (whether in final or draft form) 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-money laundering rules and regulations, including the USA PATRIOT Act; and
(eh) promptly, from time to time, such other information regarding the operations, business affairs and financial condition (financial or otherwise) of the Company and Borrower or any Subsidiary, or compliance with the Subsidiaries terms of any Loan Document, as each Bank through the Administrative Agent or any Lender may reasonably request; provided, however, that the Company shall not be obligated to disclose, or to permit any examination which will disclose, technical knowledge or confidential trade information, except where appropriate safeguards exist that prevent dissemination of such information in a manner detrimental to the Company's competitive position.
Appears in 1 contract
Samples: Credit Agreement (Deltek, Inc)
Financial Statements, Reports, etc. In the case of the CompanyParent and the Borrower, furnish directly to the Administrative Agent and to each of the BanksLender:
(a) within 120 90 days after the end of each fiscal year of the Company (being December 31 in each calendar year), its Consolidated consolidated balance sheets, Consolidated sheets and related statements of income and Consolidated statements of operations, cash flows and stockholders' equity showing the Consolidated financial condition of the Company Parent and the Subsidiaries Borrower and their consolidated subsidiaries as of the close of such fiscal year and the results of its their operations and the operations of the Subsidiaries such subsidiaries during such year and (with the exception of fiscal years prior to 1999) the immediately preceding year, all the foregoing consolidated financial statements to be audited by Coopers Deloitte & Xxxxxxx, independent public accountants, Touche LLP or other independent public accountants of recognized national standing acceptable to the Required Banks Lenders and accompanied by an opinion of such accountant accountants (which shall not be qualified in any material respect) to the effect that such consolidated financial statements fairly present in all material respects the financial condition and results of operations of the Company Parent and the Subsidiaries Borrower and their consolidated subsidiaries on a consolidated basis in accordance with GAAP;
(b) within 60 days after the end of each of the first three fiscal quarters of each fiscal year, unaudited Consolidated consolidated balance sheets, Consolidated sheets and related statements of income and Consolidated statements of operations, cash flows and stockholders' equity showing the financial condition of the Parent and the Borrower and their consolidated subsidiaries as of the close of such fiscal quarter and the results of their operations and the operations of such subsidiaries during such fiscal quarter and the then elapsed portion of the fiscal year and during the corresponding periods in the immediately preceding fiscal year (with the exception of fiscal years prior to 1999), all certified by a Financial Officer of the Borrower as fairly presenting in all material respects the financial condition and results of operations of the Company Parent and the Subsidiaries Borrower and their consolidated subsidiaries on a consolidated basis as of the end of each such quarter and for the then elapsed portion of the fiscal year, certified by a Financial Officer of the Company as presenting fairly the financial position and results of operations of the Company and such Subsidiaries and as having been prepared in accordance with GAAP (except for such changes therein as are approved by the independent accountants for the Company)GAAP, in each case subject to normal year-end audit adjustments;
(c) within 60 days after the end of each fiscal quarter of each fiscal year, a management report in form satisfactory to the Administrative Agent setting forth the consolidating revenues of the Parent and the Borrower and their consolidated subsidiaries for such quarter, the operating income before depreciation and amortization for each Station during such quarter and a summary report of the most recent Xxxxxxx ratings available for such Stations;
(d) concurrently with any delivery of financial statements under paragraph (a) and or (b) above, a certificate of the accounting firm or person referred to therein Financial Officer opining on or certifying such statements (which certificate certificate, when furnished by the independent accountants referred to in paragraph (a) above an accounting firm, may be limited to the best of its knowledge and to accounting matters and may disclaim responsibility for legal interpretationsinterpretations and, when furnished by a Financial Officer, may be qualified as being to the knowledge of such Financial Officer) (i) certifying that no Default or Event of Default or Default has occurred, occurred or, if such a an Event of Default or Event of Default has occurred, specifying the nature and extent thereof and, in the case of the certificate furnished by a Financial Officer of the Company, specifying 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 contained in Section 6.05 and 6.06Article VI;
(de) concurrently with each delivery of financial statements under paragraph (a) above, beginning with the financial statements for the fiscal year ending December 31, 1999, a certificate of a Financial Officer in form and detail satisfactory to the Administrative Agent setting forth a calculation of Excess Cash Flow for the fiscal year to which such statements relate;
(f) promptly after the same become publicly available and to the extent not required to be furnished by any other provision of this Section 5.04available, (i) copies of all periodic and other reports, proxy statements, financial statements and reports that other materials filed by the Company sends to its stockholders and (ii) copies of all regularParent, periodic and special reports, and all registration statements relating to transactions requiring a vote of stockholders the Borrower or any of the Company or filed on Form X-0, X-0 or S-3 under the Securities Act of 1933, which the Company or any Subsidiary files Subsidiaries with the Securities and Exchange Commission, or any Governmental Authority which may be substituted thereforsucceeding to any or all of the functions of said Commission, or with any national securities exchange;
(g) promptly following their submission with the FCC or any other Federal, state or distributed local Governmental Authority, copies of any and all periodic or special reports filed by the Parent or any of the Subsidiaries, if such reports indicate any material adverse change in the business, operations or financial condition of the Parent or any of the Subsidiaries or if copies thereof are requested by any Lender or the Administrative Agent, and copies of any and all material notices and other material communications from the FCC or from any other Federal, state or local Governmental Authority with respect to its shareholders, as the case may beParent or any of the Subsidiaries or any Station; and
(eh) promptly, from time to time, such other information regarding the operations, business affairs and financial condition (financial or otherwise) of the Company and Parent, the Subsidiaries Borrower or any of the Subsidiaries, or compliance with the terms of any Loan Document, as each Bank through the Administrative Agent or any Lender may reasonably request; provided, however, that the Company shall not be obligated to disclose, or to permit any examination which will disclose, technical knowledge or confidential trade information, except where appropriate safeguards exist that prevent dissemination of such information in a manner detrimental to the Company's competitive position.
Appears in 1 contract
Financial Statements, Reports, etc. In the case of the CompanyBorrower, furnish directly to the Administrative Agent and for distribution to each of the BanksLender:
(a) within 120 105 days after the end of each fiscal year of the Company (being December 31 in each calendar year)Borrower, its Consolidated annual report on Form 10-K as filed with the SEC, including its consolidated balance sheets, Consolidated sheet and the related consolidated statements of income earnings and Consolidated statements of cash flows showing the Consolidated its consolidated financial condition of the Company and the Subsidiaries position as of the close end of such fiscal year and the consolidated results of its operations and the operations of the Subsidiaries during cash flows for such year, all the foregoing consolidated financial statements to be audited by Coopers & Xxxxxxx, independent public accountants, PricewaterhouseCoopers LLP or other independent registered public accountants acceptable to accounting firm of recognized national standing selected by the Required Banks Borrower and accompanied by an opinion of such accountant (which shall not be qualified in any material respect) accounting firm to the effect that such consolidated financial statements present fairly present in all material respects the Borrower’s financial condition position and results of operations of the Company and the Subsidiaries cash flows on a consolidated basis in accordance with GAAP;
(b) within 60 days after the end of each of the first three fiscal quarters of each fiscal yearyear of the Borrower, its quarterly report on Form 10-Q as filed with the SEC, including its unaudited Consolidated consolidated balance sheets, Consolidated sheet and related consolidated statements of income earnings and Consolidated statements of cash flows flows, showing the its consolidated financial condition and results of operations of the Company and the Subsidiaries on a consolidated basis position as of the end of each such fiscal quarter and the consolidated results of its operations and cash flows for such fiscal quarter and the then elapsed portion of the fiscal year, certified year (and each delivery of such statements shall be deemed a representation by a Financial Officer of the Company as presenting Borrower that such statements present fairly in all material respects the Borrower’s financial position and results of operations of the Company and such Subsidiaries and as having been prepared cash flows on a consolidated basis in accordance with GAAP (except for such changes therein as are approved by the independent accountants for the Company)GAAP, in each case subject to normal year-end audit adjustmentsadjustments and the absence of footnotes);
(c) concurrently with (aany delivery of financial statements under Section 8.03(a) and (b) aboveor 8.03(b), a certificate of a Financial Officer of the firm or person referred to therein (which certificate furnished by the independent accountants referred to in paragraph (a) above may be limited to the best of its knowledge and to accounting matters and may disclaim responsibility for legal interpretations) Borrower (i) certifying that no Default or Event of Default or Default has occurred, occurred or, if such a an Event of Default or Event of Default has occurred, specifying the nature and extent thereof and, in the case of the certificate furnished by a Financial Officer of the Company, specifying and any corrective action taken or proposed to be taken with respect thereto and (ii) setting forth computations demonstrating in reasonable detail satisfactory to calculation of the Administrative Agent demonstrating compliance with the covenants contained covenant set forth in Section 6.05 and 6.069.04 as of the last day of the period covered by such financial statements;
(d) promptly after the same become publicly available and to the extent not required to be furnished by any other provision of this Section 5.04available, (i) copies of all proxy statements, financial statements and reports that the Company sends to its stockholders and (ii) copies of all regular, periodic and special reports, and all registration statements relating to transactions requiring a vote of stockholders of the Company or filed on Form X-0, X-0 or S-3 under the Securities Act of 1933, which the Company or any Subsidiary files 8-K filed by it with the Securities and Exchange CommissionSEC, or any Governmental Authority which may be substituted thereforsucceeding to any of or all the functions of the SEC, or with any national securities exchange, or and copies of all reports distributed to its shareholders, as the case may be; and
(e) promptlypromptly upon request, from time (i) all documentation and other information that any Lender reasonably requests through the Administrative Agent in order to timecomply with obligations under applicable “know your customer” and anti-money laundering rules and regulations, including the USA PATRIOT Act and the Beneficial Ownership Regulation, and (ii) such other information regarding the operationsBorrower and its Subsidiaries, business affairs and condition (financial or otherwise) the compliance by the Borrower with the terms of the Company and the Subsidiaries Loan Documents, as each Bank any Lender shall reasonably request through the Administrative Agent (it being understood that, in the case of this clause (ii), the Borrower shall not be required to provide any information or documents which are subject to confidentiality provisions the nature of which prohibit such disclosure). Information required to be delivered pursuant to this Section 8.03 (other than Section 8.03(c) or 8.03(e)(i)) shall be deemed to have been delivered on the date on which the Borrower provides notice (reasonably identifying where the applicable disclosure may reasonably request; providedbe obtained) to the Administrative Agent that such information has been publicly posted on the Borrower’s website on the internet at xxx.xxxxxxxxxxxx.xxx, howeveror on the SEC’s website on the internet at xxx.xxx.xxx or at another website identified in such notice and accessible by the Lenders without charge. The Borrower hereby acknowledges that (a) the Administrative Agent and/or the Arrangers may, that the Company but shall not be obligated to, make available to disclosethe Lenders materials and/or information provided by or on behalf of the Borrower hereunder (collectively, the “Borrower Materials”) by posting the Borrower Materials on an Electronic System and (b) certain of the Lenders (each, a “Public Lender”) may have personnel who do not wish to receive material non-public information with respect to the Borrower or its Subsidiaries, or the respective securities of any of the foregoing, and who may be engaged in investment and other market-related activities with respect to permit any examination which such Persons’ securities. The Borrower hereby agrees that it will disclose, technical knowledge or confidential trade information, except where appropriate safeguards exist use commercially reasonable efforts to identify that prevent dissemination portion of such information in a manner detrimental the Borrower Materials that may be distributed to the Company's competitive positionPublic Lenders and that (w) all Borrower Materials that are to be made available to Public Lenders shall be clearly and conspicuously marked “PUBLIC”, which, at a minimum, shall mean that the word “PUBLIC” shall appear prominently on the first page thereof; (x) by marking Borrower Materials “PUBLIC”, the Borrower shall be deemed to have authorized the Administrative Agent, the Arrangers and the Lenders to treat such Borrower Materials as not containing any material non-public information with respect to the Borrower, its Subsidiaries or the respective securities of any of the foregoing for purposes of United States Federal and state securities laws (provided that to the extent such Borrower Materials constitute Confidential Information, they shall be treated as set forth in Section 12.15); (y) all Borrower Materials marked “PUBLIC” are permitted to be made available through a portion of the Electronic System 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 Electronic System not designated “Public Side Information.” Notwithstanding the foregoing, the Borrower shall be under no obligation to mark any Borrower Materials “PUBLIC.”
Appears in 1 contract
Samples: Revolving Credit Agreement (Zimmer Biomet Holdings, Inc.)
Financial Statements, Reports, etc. In the case of the Company, furnish directly Furnish to the Administrative Agent and to each of the BanksLender:
(a) within 120 90 days after the end of each fiscal year of Fiscal Year, the Company (being December 31 in each calendar year), its Consolidated consolidated and consolidating balance sheets, Consolidated sheets and statements of income operations, stockholders' equity and Consolidated statements of cash flows flows, showing the Consolidated the, financial condition of the Company Borrower and the Subsidiaries its consolidated subsidiaries as of the close of such fiscal year Fiscal Year and the results of its operations and the operations of the Subsidiaries such subsidiaries during such year, all (except for the foregoing consolidated financial statements to be consolidating balance sheets for Subsidiaries other than Lincoln Telephone) audited by Coopers & Xxxxxxx, independent public accountants, KPMG Peat Marwick LLP or other independent public accountants acceptable to the Required Banks of recognized national standing and accompanied by an opinion of such accountant accountants (which shall not be qualified in any material respect) to the effect that such consolidated financial statements fairly present the financial condition and results of operations of the Company and the Subsidiaries Borrower on a consolidated basis in accordance with GAAPGAAP consistently applied;
(b) within 60 days after the end of each of the first three fiscal quarters of each fiscal yearFiscal Year, unaudited Consolidated the consolidated and consolidating balance sheets, Consolidated sheets and statements of income operations, stockholders, equity and Consolidated statements cash flows, showing the financial condition of cash flows showing the Borrower and its consolidated subsidiaries as of the close of such fiscal quarter and the results of its operations and the operations of such subsidiaries during such fiscal quarter 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 Company and the Subsidiaries Borrower on a consolidated basis as of the end of each such quarter and for the then elapsed portion of the fiscal year, certified by a Financial Officer of the Company as presenting fairly the financial position and results of operations of the Company and such Subsidiaries and as having been prepared in accordance with GAAP (except for such changes therein as are approved by the independent accountants for the Company)consistently applied, in each case subject to normal year-end audit adjustments;
(c) concurrently with any delivery of financial statements under paragraph (a) above an opinion or certificate of the accounting firm (which opinion or certificate may be limited to accounting matters and disclaim responsibility for legal interpretations) certifying that to the actual knowledge of such accounting firm no Event of Default or Potential Event of Default has occurred; and concurrently with the delivery of financial statements under paragraphs (a) and (b) above, a certificate of a Financial Officer of the firm or person referred to therein (which certificate furnished by the independent accountants referred to in paragraph Borrower (a) above may be limited certifying that to the best actual knowledge of its knowledge and to accounting matters and may disclaim responsibility for legal interpretations) (i) certifying that such Financial Officer no Event of Default or Potential Event of Default has occurred, occurred or, if such a an Event of Default or Potential Event of Default has occurred, specifying the nature and extent thereof and, in the case of the certificate furnished by a Financial Officer of the Company, specifying and any corrective action taken or proposed to be taken with respect thereto and thereto, (iib) setting forth computations and/or statements in reasonable detail satisfactory to the Administrative Agent calculating the Consolidated Debt to Cash Flow Ratio and demonstrating compliance with the covenants contained in Section 6.05 Sections 6.1 through 6.5, 6.7, 6.8 and 6.066.9;
(d) promptly after the same become publicly available and to the extent not required to be furnished by any other provision of this Section 5.04available, (i) copies of all periodic and other reports, proxy statements, financial statements and reports that other materials filed by the Company sends to its stockholders and (ii) copies of all regular, periodic and special reports, and all registration statements relating to transactions requiring a vote of stockholders of the Company or filed on Form X-0, X-0 or S-3 under the Securities Act of 1933, which the Company or any Subsidiary files Borrower with the Securities and Exchange Commission, or any Governmental Authority which may be substituted thereforgovernmental authority succeeding to any of or all the functions of said 4-42 Commission, or with any national securities exchange, or distributed to its shareholders, as the case may be;
(e) promptly following the creation or acquisition thereof, notice of any new Subsidiary of the Borrower;
(f) promptly following the publication thereof, notice of any change in the Long-Term Debt Rating of Lincoln Telephone by Standard & Poors and notice of any cessation of the publication of such rating; and
(eg) promptly, from time to time, such other information regarding the operations, business affairs and financial condition (financial or otherwise) of the Company and Borrower or any Subsidiary, or compliance with the Subsidiaries terms of any Loan Document, as each Bank through the Administrative Agent or any Lender may reasonably request; provided, however, that the Company shall not be obligated to disclose, or to permit any examination which will disclose, technical knowledge or confidential trade information, except where appropriate safeguards exist that prevent dissemination of such information in a manner detrimental to the Company's competitive position.
Appears in 1 contract
Financial Statements, Reports, etc. In the case of the CompanyBorrower, furnish directly to the Administrative Agent and to each of the BanksLender:
(a) within 120 90 days after the end of each fiscal year of the Company (being December 31 in each calendar year), its Consolidated consolidated balance sheets, Consolidated sheet and related statements of income operations, stockholders' equity and Consolidated statements of cash flows showing the Consolidated financial condition of the Company Borrower and the its consolidated Subsidiaries as of the close of such fiscal year and the results of its operations and the operations of the such Subsidiaries during such year, all the foregoing consolidated financial statements to be audited by Coopers Ernst & Xxxxxxx, independent public accountants, Young LLP or other independent public accountants of recognized national standing acceptable to the Required Banks Lenders and accompanied by an opinion of such accountant accountants (which shall not be qualified in any material respect) to the effect that such consolidated financial statements fairly present the financial condition and results of operations of the Company Borrower and the its consolidated Subsidiaries on a consolidated basis in accordance with GAAPGAAP consistently applied;
(b) within 60 45 days after the end of each of the first three fiscal quarters of each fiscal year, unaudited Consolidated its consolidated balance sheets, Consolidated sheet and related statements of income operations, stockholders' equity and Consolidated statements of cash flows showing the financial condition of the Borrower and its consolidated Subsidiaries as of the close of such fiscal quarter and the results of its operations and the operations of such Subsidiaries during such fiscal quarter and the then elapsed portion of the fiscal year, all certified by one of its Financial Officers as fairly presenting in all material respects the financial condition and results of operations of the Company Borrower and the its consolidated Subsidiaries on a consolidated basis as of the end of each such quarter and for the then elapsed portion of the fiscal year, certified by a Financial Officer of the Company as presenting fairly the financial position and results of operations of the Company and such Subsidiaries and as having been prepared in accordance with GAAP (except for such changes therein as are approved by the independent accountants for the Company)consistently applied, in each case subject to normal year-end audit adjustments;
(c) concurrently with any delivery of financial statements under sub-paragraph (a) and or (b) above, a letter of the accounting firm or certificate of the firm Financial Officer reporting on or person referred to therein certifying such statements (which certificate letter, when furnished by the independent accountants referred to in paragraph (a) above an accounting firm, may be limited to the best of its knowledge and to accounting matters and may disclaim responsibility for legal interpretations) (i) certifying reporting that no Default or they are unaware that any Event of Default has occurred, in the case of the accounting firm, or certifying that no Event of Default or Default has occurred, in the case of the Financial Officer, or, if such a an Event of Default or Event of Default has occurred, specifying the nature and extent thereof and, in the case of the certificate furnished by a Financial Officer of the Company, specifying 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 6.05 and 6.06thereto;
(d) promptly within 20 days after the same become publicly available end of each calendar month a certificate in the form of Exhibit K (a "Borrowing Base Certificate") showing the Borrowing Base as of the close of business on the last day of such calendar month, each such Certificate to be certified as complete and correct on behalf of the Borrower by a Financial Officer of the Borrower;
(f) prior to the extent not required to be furnished by any other provision beginning of this Section 5.04each fiscal year, (i) copies of all proxy statements, financial statements and reports that the Company sends to its stockholders and (ii) copies of all regular, periodic and special reports, and all registration statements relating to transactions requiring a vote of stockholders copy of the Company or filed on Form X-0, X-0 or S-3 under the Securities Act budget for its consolidated balance sheet and related statements of 1933, which the Company or any Subsidiary files with the Securities income and Exchange Commission, or any Governmental Authority which may be substituted therefor, or with any national securities exchange, or distributed to its shareholders, as the case may becash flows for each quarter of such fiscal year; and
(eg) promptly, from time to time, such other information regarding the operations, business affairs and financial condition (financial or otherwise) of the Company and Borrower or any Subsidiary, or compliance with the Subsidiaries terms of any Loan Document, as each Bank through the Administrative Agent or any Lender may reasonably request; provided, however, that the Company shall not be obligated to disclose, or to permit any examination which will disclose, technical knowledge or confidential trade information, except where appropriate safeguards exist that prevent dissemination of such information in a manner detrimental to the Company's competitive position.
Appears in 1 contract
Samples: Credit Agreement (Neenah Foundry Co)
Financial Statements, Reports, etc. In the case of the CompanyBorrower, furnish directly to the Administrative Agent and for distribution to each of the BanksLender:
(a) within 120 90 days after the end of each fiscal year of the Company (being December 31 in each calendar year), its Consolidated consolidated balance sheets, Consolidated sheet and related statements of income income, stockholders’ equity and Consolidated statements of cash flows showing the Consolidated financial condition of the Company Borrower and the its consolidated Subsidiaries as of the close of such fiscal year and the results of its operations and the operations of the such Subsidiaries during such year, together with comparative figures for the immediately preceding fiscal year, all the foregoing consolidated financial statements to be audited by Coopers & Xxxxxxx, independent public accountants, KPMG LLP or other independent public accountants acceptable to the Required Banks of recognized national standing and accompanied by an opinion of such accountant accountants (which shall not be qualified in any material respect) to the effect that such consolidated financial statements fairly present the financial condition and results of operations of the Company Borrower and the its consolidated Subsidiaries on a consolidated basis in accordance with GAAPGAAP consistently applied;
(b) within 60 45 days after the end of each of the first three fiscal quarters of each fiscal year, unaudited Consolidated its consolidated balance sheets, Consolidated sheet and related statements of income income, stockholders’ equity and Consolidated statements of cash flows showing the financial condition of the Borrower and its consolidated Subsidiaries as of the close of such fiscal quarter and the results of its operations and the operations of such Subsidiaries during such fiscal quarter and the then elapsed portion of the fiscal year, and comparative figures for the same periods in the immediately preceding fiscal year, all certified by one of its Financial Officers as fairly presenting the financial condition and results of operations of the Company Borrower and the its consolidated Subsidiaries on a consolidated basis as of the end of each such quarter and for the then elapsed portion of the fiscal year, certified by a Financial Officer of the Company as presenting fairly the financial position and results of operations of the Company and such Subsidiaries and as having been prepared in accordance with GAAP (except for such changes therein as are approved by the independent accountants for the Company)consistently applied, in each case subject to normal year-end audit adjustmentsadjustments and the absence of footnotes;
(ci) concurrently with any delivery of financial statements under paragraph (a) above, a letter from the accounting firm opining on such statements (which letter may be limited to accounting matters or other items that independent certified public accountants are permitted to cover in such letters pursuant to their professional standards and customs and may 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 there has been a violation of any of the provisions of Section 6.10 or 6.12 of this Agreement or, if any such a violation has occurred, specifying the nature thereof; provided that no such letter shall be required to the extent that (x) it is prohibited at such time by the then current recommendations of the American Institute of Certified Public Accountants or any other applicable accounting governing body or (y) such accounting firm has at such time a firm-wide policy prohibiting the delivery of such a letter and such firm does not at such time provide such letters in connection with any other credit agreements, (ii) concurrently with any delivery of financial statements under paragraph (a) above, a certificate of a Financial Officer of the Borrower identifying the assets transferred to the Foreign Target during such fiscal year and setting forth the Borrower’s election pursuant to paragraph (b)(i)(II)(b)(i) of Section 6.05 and (iii) concurrently with any delivery of financial statements under paragraph (a) or (b) above, a certificate of a Financial Officer of the firm or person referred to therein Borrower (which certificate furnished by the independent accountants referred to in paragraph (a) above may be limited to the best of its knowledge and to accounting matters and may disclaim responsibility for legal interpretations) (iA) certifying that no Default or Event of Default or Default has occurred, occurred or, if such a an Event of Default or Event of Default has occurred, specifying the nature and extent thereof and, in the case of the certificate furnished by a Financial Officer of the Company, specifying and any corrective action taken or proposed to be taken with respect thereto and (iiB) setting forth computations in reasonable detail satisfactory to the Administrative Agent demonstrating compliance with the covenants covenant contained in Section 6.05 6.12 and, in the case of a certificate delivered with the financial statements required by paragraph (a) above with respect to the fiscal year ending December 31, 2006 and 6.06each fiscal year thereafter, setting forth the Borrower’s calculation of Excess Cash Flow;
(d) within 90 days after the end of each fiscal year of the Borrower, a detailed consolidated budget for the following 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 following 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 and to the extent not required to be furnished by any other provision of this Section 5.04available, (i) copies of all periodic and other reports, proxy statements, financial statements and reports that other materials filed by Holdings, the Company sends to its stockholders and (ii) copies of all regular, periodic and special reports, and all registration statements relating to transactions requiring a vote of stockholders of the Company or filed on Form X-0, X-0 or S-3 under the Securities Act of 1933, which the Company Borrower or any Subsidiary files with the Securities and Exchange Commission, or any Governmental Authority which may be substituted thereforsucceeding to any or all of the functions of said Commission;
(f) promptly after the receipt thereof by Holdings, the Borrower or with any national securities exchangeof the Subsidiaries, or distributed to a copy of any “management letter” (in final form) received by any such person from its shareholders, as certified public accountants and the case may bemanagement’s response thereto; and
(eg) 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 (financial or otherwise) of the Company and the Subsidiaries as each Bank acting through the Administrative Agent Agent) may reasonably request; provided, however, that the Company shall not be obligated to disclose, or to permit any examination which will disclose, technical knowledge or confidential trade information, except where appropriate safeguards exist that prevent dissemination of such information in a manner detrimental to the Company's competitive position.
Appears in 1 contract
Samples: Second Lien Credit Agreement (True Temper Sports Inc)
Financial Statements, Reports, etc. In the case of Holdings and the CompanyBorrower, furnish directly to the Administrative Agent and to each of the BanksLender:
(a) within 120 90 days after the end of each fiscal year of the Company (being December 31 in each calendar year), its Consolidated consolidated and consolidating balance sheets, Consolidated sheet and related statements of income and Consolidated statements of cash flows showing the Consolidated financial condition of the Company each of Holdings and the Borrower and their respective consolidated Subsidiaries as of the close of such fiscal year and the results of its operations and the operations of the such Subsidiaries during such year, all the foregoing consolidated financial statements to be audited by Coopers Ernst & Xxxxxxx, independent public accountants, Young LLP or other independent public accountants acceptable to the Required Banks of recognized national standing and accompanied by an opinion of such accountant accountants (which shall not be qualified in any material respect) to the effect that such consolidated financial statements fairly present the financial condition and results of operations of the Company each of Holdings and the Borrower and their respective consolidated Subsidiaries on a consolidated basis in accordance with GAAPGAAP consistently applied;
(b) within 60 45 days after the end of each of the first three fiscal quarters of each fiscal year, unaudited Consolidated its consolidated and consolidating balance sheets, Consolidated sheet and related statements of income and Consolidated statements of cash flows showing the financial condition and results of operations each of the Company Holdings and the Borrower and their respective consolidated Subsidiaries on a consolidated basis as of the end close of each such fiscal quarter and for the results of its operations and the operations of such Subsidiaries during such fiscal quarter and the then elapsed portion of the fiscal year, all certified by a one of its Financial Officer of the Company Officers as fairly presenting fairly the financial position condition and results of operations of each of Holdings and the Company Borrower and such their respective consolidated Subsidiaries and as having been prepared on a consolidated basis in accordance with GAAP (except for such changes therein as are approved by the independent accountants for the Company)consistently applied, in each case subject to normal year-end audit adjustments;
(c) within 30 days after the end of the first two fiscal months of each fiscal quarter, its consolidated balance sheet and related statements of income and cash flows showing the financial condition of Holdings and its consolidated Subsidiaries (which statements shall contain a footnote providing the total consolidated interest expense 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 each of Holdings and the Borrower and their respective consolidated Subsidiaries on a consolidated basis in accordance with GAAP consistently applied, subject to normal year-end audit adjustments;
(i) concurrently with any delivery of financial statements under sub-paragraph (a) and ), (b) or (c) above, a certificate of the firm a Financial Officer opining on or person referred to therein (which certificate furnished by the independent accountants referred to in paragraph (a) above may be limited to the best of its knowledge and to accounting matters and may disclaim responsibility for legal interpretations) (i) certifying such statements certifying that no Default or Event of Default or Default has occurred, occurred or, if such a an Event of Default or Event of Default has occurred, specifying the nature and extent thereof and, in the case of the certificate furnished by a Financial Officer of the Company, specifying and any corrective action taken or proposed to be taken with respect thereto and thereto, (ii) concurrently with any delivery of financial statements under sub-paragraph (a) or (b) above, a certificate of a Financial Officer opining on or certifying such statements setting forth computations in reasonable detail satisfactory to the Administrative Agent demonstrating compliance with the covenants contained in Section 6.05 Sections 6.08, 6.09, 6.10 and 6.066.11 and, in the case of paragraph (a) above, setting forth Holdings' calculation of Excess Cash Flow and (iii) in the case of paragraph (a) above, a report of the accounting firm opining on or certifying such financial statements stating that in the course of its regular audit of the financial statements of Holdings, the Borrower and their respective Subsidiaries, which audit was conducted in accordance with GAAP, such accounting firm obtained no knowledge that any Event of Default or Default has occurred or, if in the opinion of such accounting firm such an Event of Default or Default has occurred, specifying the nature and extent thereof;
(de) promptly after the same become publicly available and to the extent not required to be furnished by any other provision of this Section 5.04available, (i) copies of all periodic and other reports, proxy statements, financial statements and reports that the Company sends to its stockholders and (ii) copies of all regular, periodic and special reports, and all registration statements relating to transactions requiring a vote of stockholders of the Company or other materials filed on Form X-0, X-0 or S-3 under the Securities Act of 1933, which the Company by Holdings or any Subsidiary files with the Securities and Exchange Commission, or any Governmental Authority which may be substituted thereforsucceeding to any or all of the functions of said Commission, or with any national securities exchange, or distributed to holders of its shareholdersIndebtedness pursuant to the terms of the documentation governing such Indebtedness (or any trustee, agent or other representative therefor), as the case may be; and;
(ef) promptly after the receipt thereof by Holdings, 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 responses thereto;
(g) no later than 30 days following the first day of each fiscal year of Holdings, a budget in form reasonably satisfactory to the Administrative Agent (including budgeted statements of income by each of the Borrower's business units and sources and uses of cash and balance sheets) prepared by Holdings for (i) each of the four quarters of such fiscal year prepared in detail and (ii) each of the five years immediately following such fiscal year prepared in summary form, in each case, of Holdings and its Subsidiaries, accompanied by the statement of a Financial Officer of Holdings to the effect that the budget is a reasonable estimate for the period covered thereby.
(h) promptly, from time to time, such other information regarding the operations, business affairs and financial condition (financial of Holdings, the Borrower or otherwise) any Subsidiary, or compliance with the terms of the Company and the Subsidiaries any Loan Document, as each Bank through the Administrative Agent or any Lender may reasonably request; provided, however, that the Company shall not be obligated to disclose, or to permit any examination which will disclose, technical knowledge or confidential trade information, except where appropriate safeguards exist that prevent dissemination of such information in a manner detrimental to the Company's competitive position.
Appears in 1 contract
Financial Statements, Reports, etc. In the case of the CompanyBorrower and the Guarantors, furnish directly deliver to the Administrative Agents, Tranche C Agent and to each of the Banks:
(a) Lenders: within 120 90 days after the end of each fiscal year of year, the Company (being December 31 in each calendar year), its Consolidated Parent's consolidated balance sheets, Consolidated statements sheet and related statement of income and Consolidated statements of cash flows flows, showing the Consolidated financial condition of the Company Borrower, the Parent and the its Subsidiaries on a consolidated basis as of the close of such fiscal year and the results of its their respective operations and the operations of the Subsidiaries during such year, all the foregoing consolidated financial statements statement of the Parent to be audited for the Parent by Coopers & Xxxxxxx, independent public accountants, Deloitte and Touche LP or other independent public accountants acceptable to the Required Banks of recognized national standing and accompanied by an opinion of such accountant accountants (which shall not be qualified in any material respectrespect other than with respect to the Cases or a going concern qualification) and to be certified by a Financial Officer of the Parent to the effect that such consolidated financial statements fairly present the financial condition and results of operations of the Company Borrower, the Parent and the its Subsidiaries on a consolidated basis in accordance with GAAP;
(b) ; within 60 45 days after the end of each of the first three fiscal quarters of each fiscal yearquarters, unaudited Consolidated the Parent's consolidated balance sheets, Consolidated sheets and related statements of income and Consolidated statements cash flows, showing the financial condition of cash flows showing the Borrower, the Parent and its Subsidiaries on a consolidated basis as of the close of such fiscal quarter and the results of their operations during such fiscal quarter and the then elapsed portion of the fiscal year, each certified by a Financial Officer as fairly presenting in all material respects the financial condition and results of operations of the Company Borrower, the Parent and the its Subsidiaries on a consolidated basis as of the end of each such quarter and for the then elapsed portion of the fiscal year, certified by a Financial Officer of the Company as presenting fairly the financial position and results of operations of the Company and such Subsidiaries and as having been prepared in accordance with GAAP (except for such changes therein as are approved by the independent accountants for the Company)GAAP, in each case subject to normal year-end audit adjustments;
adjustments and the absence of footnotes; (ci) concurrently with any delivery of financial statements under (a) and (b) above, a certificate of the firm or person referred to therein a Financial Officer certifying such statements (which certificate furnished by the independent accountants referred to in paragraph (a) above may be limited to the best of its knowledge and to accounting matters and may disclaim responsibility for legal interpretations) (iA) certifying that no Event of Default or event which upon notice or lapse of time or both would constitute an Event of Default has occurred, or, if such a Default or an Event of Default or event has occurred, specifying the nature and extent thereof and, in the case of the certificate furnished by a Financial Officer of the Company, specifying and any corrective action taken or proposed to be taken with respect thereto and (iiB) setting forth computations in reasonable detail satisfactory to the Administrative Agents and the Tranche C Agent demonstrating compliance with the covenants contained provisions of Sections 6.03, 6.04, 6.05, 6.10, 6.11 and 6.13 and (ii) concurrently with any delivery of financial statements under (a) above, a certificate (which certificate may be limited to accounting matters and disclaim responsibility for legal interpretations) of the accountants auditing the consolidated financial statements delivered under (a) above certifying that, in the course of the regular audit of the business of the Borrower, the Parent and its Subsidiaries, such accountants have obtained no knowledge that an Event of Default has occurred and is continuing, or if, in the opinion of such accountants, an Event of Default has occurred and is continuing, specifying the nature thereof and all relevant facts with respect thereto; as soon as available, but no more than 30 days after the end of each fiscal month (i) the unaudited monthly cash flow reports, consolidated balance sheets and related statements of income of the Borrower and its Subsidiaries on a consolidated basis and as of the close of such fiscal month and the results of their operations during such month and the then elapsed portion of the fiscal quarter, (ii) an updated 13-week rolling cash flow projection together with a weekly reconciliation of such cash flows to actual weekly results, (iii) a monthly report detailing professional fees and expenses that have been billed and paid or billed but unpaid to date, the accumulated "hold-back" of professional fees and expenses to date, material adverse events or changes (if any) to the financial condition, operations, business, properties, assets or prospects of the Borrower and the Guarantors taken as a whole and material litigation (if any), and (iv) other than for fiscal months for which such certificate would be duplicative of a certificate delivered pursuant to Section 6.05 5.01(c), a certificate of a Financial Officer as to calculations setting forth in reasonable detail satisfactory to the Agents and 6.06;
(d) the Tranche C Agent compliance with the provisions of Sections 6.04 and 6.05; as soon as possible, and in any event within 30 days of the Closing Date, a consolidated pro forma balance sheet of the Parent's and its Subsidiaries' financial condition as of the Filing Date; promptly after the same become publicly available and to the extent not required to be furnished by any other provision of this Section 5.04available, (i) copies of all periodic and other reports, proxy statements, financial statements and reports that the Company sends to its stockholders and (ii) copies of all regular, periodic and special reports, and all registration statements relating to transactions requiring a vote of stockholders of the Company or other materials filed on Form X-0, X-0 or S-3 under the Securities Act of 1933, which the Company or any Subsidiary files by it with the Securities and Exchange Commission, or any Governmental Authority which may be substituted thereforgovernmental authority succeeding to any of or all the functions of said commission, or with any national securities exchange, or distributed to its shareholders, as the case may be; and
as soon as available and in any event (eA) within 30 days after the Borrower or any of its ERISA Affiliates knows or has reason to know that any Termination Event described in clause (i) of the definition of Termination Event with respect to any Single Employer Plan of the Borrower or such ERISA Affiliate has occurred and (B) within 10 Business Days after the Borrower or any of its ERISA Affiliates knows or has reason to know that any other Termination Event with respect to any such Plan has occurred, a statement of a Financial Officer of the Borrower describing the full details of such Termination Event and the action, if any, which the Borrower or such ERISA Affiliate is required or proposes to take with respect thereto, together with any notices required or proposed to be given to or filed with or by the Borrower, the ERISA Affiliate, the PBGC, a Plan participant or the Plan administrator with respect thereto; promptly and in any event within 10 Business Days after receipt thereof by the Borrower or any of its ERISA Affiliates from the PBGC copies of each notice received by the Borrower or any such ERISA Affiliate of the PBGC's intention to terminate any Single Employer Plan of the Borrower or such ERISA Affiliate or to have a trustee appointed to administer any such Plan; if requested by either Agent (in consultation with the other Agent) or the Tranche C Agent, promptly and in any event within 30 days after the filing thereof with the Internal Revenue Service, copies of each Schedule B (Actuarial Information) to the annual report (Form 5500 Series) with respect to each Single Employer Plan of the Borrower or any of its ERISA Affiliates; within 10 Business Days after notice is given or required to be given to the PBGC under Section 302(f)(4)(A) of ERISA of the failure of the Borrower or any of its ERISA Affiliates to make timely payments to a Plan, a copy of any such notice filed and a statement of a Financial Officer of the Borrower setting forth (A) sufficient information necessary to determine the amount of the lien under Section 302(f)(3), (B) the reason for the failure to make the required payments and (C) the action, if any, which the Borrower or any of its ERISA Affiliates proposed to take with respect thereto; promptly and in any event within 10 Business Days after receipt thereof by the Borrower or any ERISA Affiliate from a Multiemployer Plan sponsor, a copy of each notice received by the Borrower or any ERISA Affiliate concerning (A) the imposition of Withdrawal Liability by a Multiemployer Plan, (B) the determination that a Multiemployer Plan is, or is expected to be, in reorganization within the meaning of Title IV of ERISA, (C) the termination of a Multiemployer Plan within the meaning of Title IV of ERISA, or (D) the amount of liability incurred, or which may be incurred, by the Borrower or any ERISA Affiliate in connection with any event described in clause (A), (B) or (C) above; promptly, from time to time, such other information regarding the operations, business affairs and financial condition (financial or otherwise) of the Company and Borrower or any Guarantor, or compliance with the Subsidiaries terms of any material loan or financing agreement as each Bank through the Administrative Agent Agents, at the request of any Tranche A Lender or Tranche B Lender, or the Tranche C Agent, at the request of any Tranche C Lender, may reasonably request; providedfurnish to the Initial Lenders and their counsel promptly after the same is available, howevercopies of all pleadings, motions, applications, judicial information, financial information and other documents filed by or on behalf of the Borrower or any of the Guarantors with the Bankruptcy Court in the Cases, or distributed by or on behalf of the Borrower or any of the Guarantors to any official committee appointed in the Cases; on the fifth Business Day following the end of (i) each calendar month, a certificate of an Officer of the Borrower stating that the Company Borrower is monitoring its usage of each Slot identified on Schedule 5.01(n), as the same shall not be obligated amended from time-to-time pursuant to discloseSection 5.13(c), or to permit any examination which will disclose, technical knowledge or confidential trade information, except where appropriate safeguards exist that prevent dissemination of such information and is conducting its operations in a manner detrimental such that the Borrower should be able to meet the Use or Lose Rule for such Slots with respect to the Companyapplicable two-month FAA reporting Period; (ii) each calendar month in which the Borrower does not file with the FAA a report pursuant to 14 C.F.R. Part 93, a report in detail reasonably satisfactory to the Agents and the Tranche C Agent showing, for each airport listed on such Schedule 5.01(n), as same shall be amended from time-to-time pursuant to Section 5.13(c), the number of Slots held at that airport by applicable hour or half-hour allocation period (and, if applicable, separately setting forth those Slots that are designated as arrivals or departures) and the total number of operations the Borrower has conducted in each such allocation period during the one-month period covered by such report; provided, that if Borrower engages in any temporary trade, transfer, exchange or lease (collectively, a "Transfer") of a Slot identified on Schedule 5.01(n), as then in effect, the Borrower shall provide the Agents and the Tranche C Agent such information as the Agents and the Tranche C Agent may from time-to-time reasonably request regarding such Transfer; and (iii) each calendar month in which the Borrower files with the FAA a report on Slot utilization pursuant to 14 C.F.R. Part 93, a copy of such report, and a summary thereof, if reasonably requested by the Agents, in a format reasonably acceptable to the Agents and the Tranche C Agent; on the fifth Business Day following the end of each calendar month, (i) a certificate of an Officer of the Borrower stating that the Borrower is conducting its operations and monitoring its usage of each Primary Foreign Slot identified on Schedule 1.01(b), as the same shall be updated from time to time pursuant to Section 5.14(c) in a manner such that the Borrower should be able to meet the requisite 80%/20%, or other applicable utilization requirement, to retain its right to each such Primary Foreign Slot in the next comparable scheduling season; and (ii) for each Primary Foreign Slot listed on Schedule 1.01(b), as such Schedule shall be updated from time to time pursuant to Section 5.14(c), a Primary Foreign Slot Utilization Report, in a format reasonably acceptable to the Agents and the Tranche C Agent, showing by day of week the number of times Borrower canceled a service utilizing each such Primary Foreign Slot during the current IATA scheduling season; and for each fiscal month ending from and after June 30, 2005, concurrently with the statements and reports delivered pursuant to Section 5.01(d), a report setting forth a reconciliation between the Borrower's competitive position(i) expenditures for fuel during such fiscal month and the projected fuel expenditures for such fiscal month set forth the updated business plan delivered to the Agents on June 14, 2005 and (ii) passenger unit revenues during such fiscal month and the projected passenger unit revenues for such fiscal month set forth the updated business plan delivered to the Agents on June 14, 2005.
Appears in 1 contract
Samples: Revolving Credit, Term Loan and Guaranty Agreement (Ual Corp /De/)
Financial Statements, Reports, etc. In the case of the Company, furnish directly Furnish to the Administrative Agent and to each of the BanksLender:
(a) as soon as available, but in any event within 120 90 days (or such longer period which companies which are subject to the reporting requirements of the Securities and Exchange Act of 1934, as amended, are permitted to file with the Securities and Exchange Commission its annual report on Form 10-K, giving effect to any permitted extensions obtained by the Company but, in any event, not to exceed 105 days) after the end of each fiscal year of the Company Company, (being December 31 in each calendar year), its Consolidated i) a copy of the audited consolidated balance sheets, Consolidated statements of income and Consolidated statements of cash flows showing the Consolidated financial condition sheet of the Company and the its Subsidiaries as of the close end of such fiscal year and the results related audited consolidated statements of its operations income, shareholders' equity and the operations of the Subsidiaries during cash flow for such year, all in each case, setting forth in comparative form the foregoing consolidated financial statements to be audited respective figures as of the end of and for the previous fiscal year, and accompanied by Coopers & Xxxxxxx, a report thereon of independent public accountants, or other independent certified public accountants acceptable of recognized national standing selected by the Company and not reasonably unsatisfactory to the Required Banks and accompanied by an opinion of such accountant Lenders (the "Auditor"), which report shall not have a "going concern" or like qualification or exception or qualification or exception as to the scope of the audit and shall be qualified in any material respect) to the effect that such consolidated financial statements present fairly present in all material respects the financial condition and results of operations operation of the Company and its Subsidiaries in accordance with Generally Accepted Accounting Principles, consistently applied; (ii) a copy of the corresponding supplemental consolidating balance sheets and income statements of the Company, the Corporate Guarantors (as a group) and the Unrestricted Subsidiaries (as a group) and, to the extent required by Generally Accepted Accounting Principles or by applicable rules or regulations of the Securities and Exchange Commission, each Corporate Guarantor setting forth, commencing with the financial statements for the first date or period after December 31, 2000, in comparative form the respective figures as of the end of and for the previous fiscal year or fiscal quarter, as applicable, and which support the financial statements delivered pursuant to clause (i), and (iii) a copy of the corresponding unaudited supplementary balance sheet and income statement of the Company and the Subsidiaries on a consolidated basis in accordance with GAAP;
(b) within 60 days after the end of each of the first three fiscal quarters of each fiscal year, unaudited Consolidated balance sheets, Consolidated statements of income and Consolidated statements of cash flows showing the financial condition and results of operations of the Company and the Subsidiaries Corporate Guarantors on a consolidated basis as of the end of such year and for such year, in each case of (i) and (ii) and (iii) prepared in accordance with Generally Accepted Accounting Principles, applied on a consistent basis, and with respect to the statements referred to in clause (ii) and (iii) accompanied by a certificate of the Chief Financial Officer to that effect that such financial statements present fairly in all material respects the financial condition and results of operation of the Company and the Corporate Guarantors in accordance with Generally Accepted Accounting Principles and a customary supplemental financial information report thereon by the Auditor;
(b) as soon as available, but in any event not later than 45 days (or such longer period which companies which are subject to the reporting requirements of the Securities and Exchange Act of 1934, as amended, are permitted to file with the Securities and Exchange Commission its quarterly report on Form 10-Q, giving effect to any permitted extensions obtained by the Company but, in any event, not to exceed 60 days) after the end of the first, second and third quarterly period of each fiscal year of the Company, (i) a copy of the interim unaudited consolidated balance sheet of the Company and its Subsidiaries as of the end of each such quarter and the related interim statements of income, shareholders equity and cash flow for such quarter and the then elapsed portion of the fiscal year through such date prepared in accordance with Generally Accepted Accounting Principles, consistently applied, and setting forth in comparative form the respective figures for the corresponding date and period in the previous fiscal year, certified in each case prepared by the Chief Financial Officer and accompanied by a certificate executed by the Chief Financial Officer of to the Company as presenting effect that such financial statements present fairly in all material respects the financial position condition and results of operations operation of the Company and its Subsidiaries in accordance with Generally Accepted Accounting Principles consistently 50 applied subject to normal year end adjustments; (ii) a copy of the corresponding consolidated interim balance sheet of the Company and the Corporate Guarantors as of the end of such quarter and the related corresponding unaudited consolidated interim statements of income, for such quarter and the portion of the fiscal year through such date, and (iii) a copy of the corresponding supplemental consolidating balance sheets and income statements of the Company, the Corporate Guarantors (as a group), the Unrestricted Subsidiaries (as a group), and, to the extent required by Generally Accepted Accounting Principles or by applicable rules or regulations of the Securities and Exchange Commission, each Corporate Guarantor, in each case of (ii) and (iii), prepared by management of the Company, and setting forth, commencing with the financial statements for the first date or period after December 31, 2000, in comparative form the respective figures for the corresponding date and period in the previous fiscal year or fiscal quarter, as having been applicable, and prepared in accordance with GAAP (except for such changes therein as are approved by the independent accountants for the Company)Generally Accepted Accounting Principles, in each case subject to normal year-end audit adjustments;consistently applied.
(c) concurrently a certificate prepared and signed by the Chief Financial Officer in form and substance reasonably acceptable to the Lenders with each delivery required by clauses (a) and (b) above, a certificate as to whether or not, as of the firm close of such preceding period and at all times during such preceding period, the Company or person referred to therein (which each Corporate Guarantor, as the case may be, was in compliance with all the provisions in this Agreement, showing a detailed computation of financial covenants and quantitative negative covenants and, if the Chief Financial Officer shall have obtained knowledge of any default in such compliance or notice of such default, he shall disclose in such certificate furnished by such default or defaults or notice thereof and the independent accountants referred to in paragraph (a) above may be limited to nature thereof, whether or not the best of its knowledge and to accounting matters and may disclaim responsibility for legal interpretations) (i) certifying that no same shall constitute a Default or an Event of Default has occurred, or, if such a Default or Event of Default has occurred, specifying the nature and extent thereof and, in the case of the certificate furnished by a Financial Officer of the Company, specifying 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 6.05 and 6.06hereunder;
(d) promptly after the same become publicly available and preparation thereof, a copy of the annual budget or projection prepared with respect to the extent not required to be furnished Company and/or any Corporate Guarantor;
(e) promptly after receipt thereof, a copy of the management letter and internal control letter, if any, prepared by any other provision of this Section 5.04the Auditor;
(f) if applicable, (i) promptly after filing thereof, copies of all regular and periodic financial information, proxy statements, financial statements materials and other information and reports that the Company sends to its stockholders and (ii) copies of all regularincluding, periodic and special reportswithout limitation, and all registration statements relating to transactions requiring a vote of stockholders of the Company or filed reports on Form X-0, X-0 or S-3 under the Securities Act of 1933, 8-K) which the Company or any Subsidiary files Corporate Guarantor shall file with the Securities and Exchange Commission;
(g) 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 any Governmental Authority which may materially adverse action to be substituted therefortaken by such agency;
(h) promptly following delivery thereof, or with any national securities exchangecopies of all reports, or distributed notices and other materials delivered to its shareholders, as the case may beholders of the Senior Notes generally; and
(ei) promptly, from time to time, such other information regarding the operations, business affairs and condition (financial or otherwise) of the Company and the Subsidiaries or any Corporate Guarantor as each Bank through the Administrative Agent any Lender may reasonably request; provided, however, that the Company shall not be obligated to disclose, or to permit any examination which will disclose, technical knowledge or confidential trade information, except where appropriate safeguards exist that prevent dissemination of such information in a manner detrimental to the Company's competitive position.
Appears in 1 contract
Samples: Credit Agreement (Sbarro Inc)
Financial Statements, Reports, etc. In the case of the Company, furnish directly Deliver to the Administrative Agent and to each of the BanksLenders:
(a) within 120 90 days after the end of each fiscal year of the Company (being December 31 in each calendar year)Borrower, the Borrower's and its Consolidated Subsidiaries' consolidated and consolidating balance sheets, Consolidated statements sheet and related statement of income and Consolidated related consolidated statements of cash flows flows, showing the Consolidated financial condition of the Company Borrower and the Subsidiaries its Subsidiaries' on a consolidated basis as of the close of such fiscal year and the results of its their respective operations and the operations of the Subsidiaries during such year, all the foregoing consolidated financial statements statement of the Borrower to be audited for the Borrower and its Subsidiaries by Coopers Ernst & XxxxxxxYoung, independent public accountants, LLP or other independent public accountants of recognized national standing acceptable to the Required Banks Lenders and accompanied by an opinion of such accountant accountants (which shall not be qualified in any material respectrespect other than with respect to the Cases or a going concern qualification) and to be certified by a Financial Officer of the Borrower to the effect that such consolidated financial statements fairly present the financial condition and results of operations of the Company Borrower and the its Subsidiaries on a consolidated basis in accordance with GAAP;
(b) within 60 45 days after the end of each of the first three fiscal quarters and within 90 days after the end of the fourth fiscal quarter of each fiscal yearyear of the Borrower, unaudited Consolidated the Borrower's and its Subsidiaries' consolidated and consolidating balance sheets, Consolidated sheets and related statements of income and Consolidated related consolidated statements of cash flows flows, showing the financial condition of the Borrower and its Subsidiaries' on a consolidated basis as of the close of such fiscal quarter and the results of their operations during such fiscal quarter and the then elapsed portion of the fiscal year, each certified by a Financial Officer as fairly presenting in all material respects the financial condition and results of operations of the Company Borrower and the its Subsidiaries on a consolidated basis as of the end of each such quarter and for the then elapsed portion of the fiscal year, certified by a Financial Officer of the Company as presenting fairly the financial position and results of operations of the Company and such Subsidiaries and as having been prepared in accordance with GAAP (except for such changes therein as are approved by the independent accountants for the Company)GAAP, in each case subject to normal year-end audit adjustments;
(c) concurrently with any delivery of financial statements under (a) and or (b) aboveabove as applicable, (i) a certificate of the firm or person referred to therein a Financial Officer (which certificate furnished by the independent accountants referred to in paragraph (a) above may be limited to the best of its knowledge and to accounting matters and may disclaim responsibility for legal interpretations) (iA) certifying that no Event of Default or event which upon notice or lapse of time or both would constitute an Event of Default has occurred, or, if such a Default or an Event of Default or event has occurred, specifying the nature and extent thereof and, in the case of the certificate furnished by a Financial Officer of the Company, specifying and any corrective action taken or proposed to be taken with respect thereto and (iiB) setting forth computations in reasonable detail satisfactory to the Administrative Agent demonstrating compliance with the covenants contained provisions of Sections 6.03, 6.04, 6.05, 6.10 and 6.13 and (ii) a certificate (which certificate may be limited to accounting matters and disclaim responsibility for legal interpretations) of such accountants accompanying the audited consolidated financial statements delivered under (a) above certifying that, in Section 6.05 the course of the regular audit of the business of the Borrower and 6.06its Subsidiaries, such accountants have obtained no knowledge that an Event of Default has occurred and is continuing, or if, in the opinion of such accountants, an Event of Default has occurred and is continuing, specifying the nature thereof and all relevant facts with respect thereto;
(d) as soon as available, but no more than 30 days after the end of each month, (i) the unaudited consolidated and consolidating balance sheets and related statements of income and (ii) the unaudited monthly cash flow reports of the Borrower and its Subsidiaries on a consolidated basis in each case for such month and the then elapsed portion of the current fiscal year each certified by a Financial Officer as fairly presenting the financial condition and results of operations of the Borrower and its Subsidiaries on a consolidated basis in accordance with GAAP, subject to normal year-end adjustments;
(e) concurrently with the delivery of the monthly financial statements under (d) above for the month of November 2001, a balance sheet setting forth the Debtors' financial condition as of the end of November 2001;
(f) concurrently with any delivery of financial statements under (b) above, quarterly financial projections for the following six month fiscal period in a form satisfactory to the Agent;
(g) no later than the tenth (10th) Business Day of each month, (i) a statement of total cash receipts and total cash disbursements on a country by country basis for the prior month and; (ii) cash flow projections for the following 13 weeks, each in a form satisfactory to the Agent;
(h) furnish to the Agent as soon as available and in any event (i) within ten (10) Business Days after the end of each calendar month a Borrowing Base Certificate showing the Borrowing Base as of the close of business on the last day of such calendar month, each such certificate to be certified as complete and correct on behalf of the Borrower by a Financial Officer of the Borrower, and (ii) such other supporting documentation and additional reports with respect to the Borrowing Base as the Agent shall reasonably request;
(i) promptly after the same become publicly available and to the extent not required to be furnished by any other provision of this Section 5.04available, (i) copies of all periodic and other reports, proxy statements, financial statements and reports that the Company sends to its stockholders and (ii) copies of all regular, periodic and special reports, and all registration statements relating to transactions requiring a vote of stockholders of the Company or other materials filed on Form X-0, X-0 or S-3 under the Securities Act of 1933, which the Company or any Subsidiary files by it with the Securities and Exchange Commission, or any Governmental Authority which may be substituted thereforgovernmental authority succeeding to any of or all the functions of said commission, or with any national securities exchange, or distributed to its shareholders, as the case may be; and;
(ej) promptly and in any event (A) within 30 days after the Borrower or any of its ERISA Affiliates knows or has reason to know that any Termination Event described in clause (i) of the definition of Termination Event with respect to any Single Employer Plan of the Borrower or such ERISA Affiliate has occurred and (B) within 15 days after the Borrower or any of its ERISA Affiliates knows or has reason to know that any other Termination Event with respect to any such Plan has occurred, a statement of a Financial Officer of the Borrower describing such Termination Event and the action, if any, which the Borrower or such ERISA Affiliate proposes to take with respect thereto;
(k) promptly and in any event within 15 days after receipt thereof by the Borrower or any of its ERISA Affiliates from the PBGC copies of each notice received by the Borrower or any such ERISA Affiliate of the PBGC's intention to terminate any Single Employer Plan of the Borrower or such ERISA Affiliate or to have a trustee appointed to administer any such Plan;
(l) if requested by the Agent, promptly and in any event within 30 days after the filing thereof with the Internal Revenue Service, copies of each Schedule B (Actuarial Information) to the annual report (Form 5500 Series) with respect to each Single Employer Plan of the Borrower or any of its ERISA Affiliates;
(m) within 10 days after notice is given to, or required to be given to and not waived by, the PBGC under Section 302(f)(4)(A) of ERISA of the failure of the Borrower or any of its ERISA Affiliates to make timely payments to a Plan, a copy of any such notice filed and a statement of a Financial Officer of the Borrower setting forth (A) sufficient information necessary to determine the amount of the lien under Section 302(f)(3), (B) the reason for the failure to make the required payments and (C) the action, if any, which the Borrower or any of its ERISA Affiliates proposed to take with respect thereto;
(n) notify the Agent of any existing or threatened strike, slowdown, work stoppage or other material labor disruption by any of the employees of any of the Debtors the occurrence of which is reasonably likely to have a Material Adverse Effect;
(o) promptly and in any event within 10 days after receipt thereof by the Borrower or any ERISA Affiliate from a Multiemployer Plan sponsor, a copy of each notice received by the Borrower or any ERISA Affiliate concerning (A) the imposition of Withdrawal Liability by a Multiemployer Plan, (B) the determination that a Multiemployer Plan is, or is expected to be, in reorganization within the meaning of Title IV of ERISA, (C) the termination of a Multiemployer Plan within the meaning of Title IV of ERISA, or (D) the amount of liability incurred, or which may be incurred, by the Borrower or any ERISA Affiliate in connection with any event described in clause (A), (B) or (C) above;
(p) promptly, from time to time, such other information regarding the operations, business affairs and financial condition (financial or otherwise) of the Company and Borrower or any of the Subsidiaries Guarantors, or compliance with the terms of any material loan or financing agreements as each Bank through the Administrative Agent Agent, at the request of any Lender, may reasonably request; provided;
(q) furnish to the Agent and its counsel promptly after the same is available, howevercopies of all pleadings, that motions, applications, judicial information, financial information and other documents filed by or on behalf of the Company shall not be obligated to discloseDebtors with the Bankruptcy Court in the Cases, or distributed by or on behalf of the Debtors to permit any examination which will discloseofficial committee appointed in any of the Cases; and
(r) on or before December 31, technical knowledge or confidential trade information2001, except where appropriate safeguards exist that prevent dissemination of such information in a manner detrimental deliver to the Company's competitive positionAgent a detailed business plan for the Borrower and its Subsidiaries for calendar year 2002, in form and substance satisfactory to the Agent and the Required Lenders.
Appears in 1 contract
Samples: Revolving Credit and Guaranty Agreement (Thermadyne Holdings Corp /De)
Financial Statements, Reports, etc. In The Borrower will maintain, for itself and each Subsidiary (other than the case Excluded Subsidiary), a system of the Companyaccounting established and administered in accordance with GAAP or IFRS, as applicable, and will furnish directly to the Administrative Agent and to each of Lender (through the Banks:Administrative Agent):
(a) within 120 90 days after the end of each of its fiscal year of the Company (being December 31 in each calendar year)years, its Consolidated audited consolidated balance sheets, Consolidated sheet and related consolidated statements of income income, changes in stockholders' equity and Consolidated statements of cash flows showing the Consolidated financial condition of the Company and the Subsidiaries as of the close end of and for such fiscal year and year, setting forth in each case in comparative form the results of its operations and figures for the operations of the Subsidiaries during such prior fiscal year, all the foregoing consolidated financial statements to be audited by Coopers & Xxxxxxx, independent public accountants, or other independent public accountants acceptable to the Required Banks and accompanied by an opinion unqualified (except for qualifications relating to changes in accounting principles or practices reflecting changes in GAAP and required or approved by the Borrower's independent certified public accountants) audit report certified by an independent registered public accounting firm of such accountant (which shall not be qualified in any material respect) nationally recognized standing to the effect that such consolidated financial statements fairly present fairly, in all material respects, the financial condition and position, results of operations and cash flows of the Company Borrower and the Consolidated Subsidiaries on a consolidated basis as of the end of and for such year in accordance with GAAP;
(b) within 60 45 days after the end of each of the first three fiscal quarters of each of its fiscal years, its consolidated balance sheet and related consolidated statements of income, changes in stockholders' equity and cash flows as of the end of and for such fiscal quarter and the then elapsed portion of the fiscal year, unaudited Consolidated setting forth in each case in comparative form the figures for the corresponding period or periods of (or, in the case of the balance sheetssheet, Consolidated statements as of income and Consolidated statements the end of) the prior fiscal year, all certified by a Financial Officer of cash flows showing the Borrower as presenting fairly, in all material respects, the financial condition and position, results of operations and cash flows of the Company Borrower and the Consolidated Subsidiaries on a consolidated basis as of the end of each and for such fiscal quarter and for the then elapsed such portion of the fiscal year, certified by a Financial Officer of the Company as presenting fairly the financial position and results of operations of the Company and such Subsidiaries and as having been prepared year in accordance with GAAP (except for such changes therein as are approved by the independent accountants for the Company)GAAP, in each case subject to normal year-end audit adjustmentsadjustments and the absence of certain footnotes;
(c) concurrently together with each delivery of financial statements under clause (a) and or (b) aboveof this Section 5.04, a compliance certificate substantially in the form of Exhibit C signed by a Financial Officer of the firm or person referred to therein (which certificate furnished by the independent accountants referred to in paragraph (a) above may be limited to the best of its knowledge and to accounting matters and may disclaim responsibility for legal interpretations) Borrower, (i) certifying that no Default or Event of as to whether a Default has occurred, oroccurred and, if such a Default or Event of Default has occurred, specifying the nature details thereof and extent thereof and, in the case of the certificate furnished by a Financial Officer of the Company, specifying any corrective action taken or proposed to be taken with respect thereto and thereto, (ii) setting forth computations in reasonable detail satisfactory to the Administrative Agent reasonably detailed calculations demonstrating compliance with Section 6.07 and (iii) stating whether any change in GAAP or in the covenants contained application thereof has occurred since the date of the consolidated balance sheet of the Borrower most recently theretofore delivered under clause (a) or (b) of this Section 5.04 (or, prior to the first such delivery, referred to in Section 6.05 and 6.063.05) and, if any such change has occurred, specifying the effect of such change on the financial statements (including those for the prior periods) accompanying such certificate;
(d) promptly as soon as possible and in any event within 10 Business Days after any Responsible Officer of the same become publicly available and to the extent not required to be furnished by any other provision of this Section 5.04, Borrower knows that (i) any Reportable Event has occurred with respect to any Plan, (ii) any Withdrawal Liability has been incurred with respect to any Multiemployer Plan or (iii) the Borrower or any member of the Controlled Group has received any notice concerning the imposition of Withdrawal Liability or a determination that a Multiemployer Plan is, or is expected to be, insolvent or in reorganization within the meaning of Title IV of ERISA or in endangered or critical status within the meaning of Section 305 of ERISA or Section 432 of the Code, a statement, signed by a Financial Officer of the Borrower, describing such Reportable Event, Withdrawal Liability or notice and the action which the Borrower proposes to take with respect thereto;
(e) promptly upon the furnishing thereof to the shareholders of the Borrower, copies of all proxy financial statements, financial reports and proxy statements and reports that so furnished;
(f) promptly upon the Company sends to its stockholders and (ii) filing thereof, copies of all regular, periodic and special reports, and all registration statements relating to transactions requiring a vote of stockholders of the Company and annual, quarterly, monthly or filed on Form X-0, X-0 or S-3 under the Securities Act of 1933, other regular reports which the Company Borrower or any Consolidated Subsidiary files with the Securities and Exchange CommissionCommission or financial reports material to the interests of the Lenders or to the ability of the Borrower to perform its obligations under the Loan Documents;
(g) within 10 Business Days after the end of each calendar month, a certificate signed by a Financial Officer of the Borrower certifying as to the dollar amount of Long-Term Assets Under Management as of the close of business on each Business Day during such month;
(h) upon a reasonable request of the Administrative Agent therefor (and, in any event, no later than 12:00 noon, New York City time, on the second Business Day following the day of such request), a certificate signed by a Financial Officer of the Borrower certifying as to the dollar amount of Long-Term Assets Under Management as of the close of business on each of the three consecutive Business Days immediately preceding the date of such request;
(i) promptly after Xxxxx'x or any Governmental Authority which may be substituted thereforS&P shall have announced a downgrade of the rating in effect for the Index Debt, or with any national securities exchange, or distributed to its shareholders, as the case may bewritten notice of such change; and
(ej) promptly, such other information (including financial information and any information required by the Patriot Act or any other "know your customer" or similar laws or regulations) as the Administrative Agent or any Lender may from time to time, such other information regarding time reasonably request. The financial statements (and the operations, business affairs related audit opinions and condition certifications) required to be delivered by the Borrower pursuant to clauses (financial or otherwisea) and (b) of the Company this Section 5.04 and the Subsidiaries as each Bank through reports and statements required to be delivered by the Borrower pursuant to clauses (e) and (f) of this Section 5.04 shall be deemed to have been delivered (i) when reports containing such financial statements (and the related audit opinions and certifications) or other materials are posted on the Borrower's website on the internet at xxxx://xx.xxxxx.xxx (or any successor page identified in a notice given to the Administrative Agent may reasonably request; providedand the Lenders) or on the SEC's website on the internet at xxx.xxx.xxx and the Borrower has notified the Administrative Agent (who in turn shall notify the Lenders) that such reports have been so posted or (ii) when such financial statements, however, that the Company shall not be obligated to disclose, reports or to permit any examination which will disclose, technical knowledge or confidential trade information, except where appropriate safeguards exist that prevent dissemination of such information statements are delivered in a manner detrimental to the Company's competitive positionaccordance with Section 9.17(a).
Appears in 1 contract
Samples: 364 Day Competitive Advance and Revolving Credit Facility Agreement (Janus Capital Group Inc)
Financial Statements, Reports, etc. In The Parent and the case of the Company, furnish directly Company will deliver to the Administrative Agent and for distribution to the Lenders sufficient copies for each of the BanksLenders of the following:
(ai) within 120 90 days after the end of each fiscal year of the Company (being December 31 in each calendar year), its Consolidated consolidated and consolidating balance sheets, Consolidated sheet and related statements of income operations, stockholders equity and Consolidated statements of cash flows showing the Consolidated financial condition of the Parent, the Company and the their consolidated Subsidiaries as of the close of such fiscal year and the results of its operations and the operations of the such Subsidiaries during such year, all the foregoing consolidated financial statements to be audited by Coopers & Xxxxxxx, independent public accountants, Auditors or other independent public accountants of recognized national standing acceptable to the Required Banks Majority Lenders and accompanied by an opinion of such accountant accountants (which shall not be qualified in any material respect) to the effect that such consolidated and consolidating financial statements fairly present the financial condition and results of operations of the Company and the its consolidated Subsidiaries on a consolidated basis in accordance with GAAPGAAP consistently applied;
(bii) within 60 45 days after the end of each of the first three fiscal quarters of each fiscal year, unaudited Consolidated its consolidated and consolidating balance sheets, Consolidated sheet and related statements of income operations, stockholders equity and Consolidated statements of cash flows showing the financial condition of the Parent, the Company and their consolidated Subsidiaries as of the close of such fiscal quarter and the results of its operations and the operations of such Subsidiaries during such fiscal quarter 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 Parent, the Company and their consolidated Subsidiaries on a consolidated basis in accordance with GAAP consistently applied, subject to normal year-end audit adjustments;
(iii) within 25 days after the end of each of the first two months of each fiscal quarter of each fiscal year, its consolidated balance sheet and related statements of operations, stockholders equity and cash flows showing the financial condition of the Parent, the Company and their consolidated Subsidiaries as of the close of such month and the results of its operations and the operations of such Subsidiaries during such 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 Company and the its consolidated Subsidiaries on a consolidated basis as of the end of each such quarter and for the then elapsed portion of the fiscal year, certified by a Financial Officer of the Company as presenting fairly the financial position and results of operations of the Company and such Subsidiaries and as having been prepared in accordance with GAAP (except for such changes therein as are approved by the independent accountants for the Company)consistently applied, in each case subject to normal year-end audit adjustments;
(civ) concurrently with any delivery of financial statements under sub-paragraph (a) and or (b) above, a certificate of the accounting firm or person referred to therein Financial Officer of the Company opining on or certifying such statements (which certificate certificate, when furnished by the independent accountants referred to in paragraph (a) above an accounting firm, may be limited to the best of its knowledge and to accounting matters and may disclaim responsibility for legal interpretations) (i) certifying that no Default or Event of Default or Default has occurred, occurred or, if such a an Event of Default or Event of Default has occurred, specifying the nature and extent thereof and, in the case of the certificate furnished by a Financial Officer of the Company, specifying 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 6.05 and 6.06thereto;
(dv) within 25 days after the end of each fiscal month, a certificate of a Financial Officer of the Parent, the Company showing the differences between the operating performance during the preceding fiscal month and the projections for such month set forth in the Operating Budget;
(vi) promptly after the same become publicly available and to the extent not required to be furnished by any other provision of this Section 5.04available, (i) copies of all periodic and other reports, proxy statements, financial statements and reports that other materials filed by the Company sends to its stockholders and (ii) copies of all regularParent, periodic and special reports, and all registration statements relating to transactions requiring a vote of stockholders of the Company or filed on Form X-0, X-0 or S-3 under the Securities Act of 1933, which the Company or any Subsidiary files of their Subsidiaries with the Securities and Exchange Commission, or any Governmental Authority which may be substituted thereforsucceeding to any or all of the functions of said Commission, or with any national securities exchange, or distributed to its shareholdersshareholders (exclusive of proprietary information unless (i) the Person that is the source of the information or report is a public company and (ii) such Person would then be required to file such proprietary information with the Securities and Exchange Commission), as the case may be;
(vii) promptly after entering into the same, copies of all shareholder agreements, material employment agreements and other material agreements of the Parent, the Company and their Subsidiaries; and
(eviii) promptly, from time to time, such other information regarding the operations, business affairs and financial condition (financial or otherwise) of the Parent, the Company and or any of their Subsidiaries, or compliance with the Subsidiaries terms of any Loan Document, as each Bank through the Administrative Agent or any Lender may reasonably request; provided, however, that the Company shall not be obligated to disclose, or to permit any examination which will disclose, technical knowledge or confidential trade information, except where appropriate safeguards exist that prevent dissemination of such information in a manner detrimental to the Company's competitive position.
Appears in 1 contract
Financial Statements, Reports, etc. In Until the case consummation of an underwritten public offering of the Company, furnish directly 's Common Stock conducted by a major bracket underwriter that results in net proceeds to the Administrative Agent Company of at least $20 million and at a price per share of at least $4.00 (as adjusted for stock splits, combinations and the like) (a "Qualified Public Offering") the Company shall furnish to each of the BanksPurchaser that shall hold at least 200,000 Preferred Shares:
(a) within 120 ninety (90) days after the end of each fiscal year of the Company (being December 31 in each calendar year), its Consolidated a consolidated balance sheets, Consolidated statements of income and Consolidated statements of cash flows showing the Consolidated financial condition sheet of the Company and the Subsidiaries its subsidiaries, if any, as of the close end of such fiscal year and the results related consolidated statements of its operations income, stockholders' equity and cash flows for the operations fiscal year then ended, prepared in accordance with generally accepted accounting principles and certified by a firm of the Subsidiaries during such year, all the foregoing consolidated financial statements to be audited by Coopers & Xxxxxxx, independent public accountants, or other independent public accountants acceptable to of recognized national standing selected by the Required Banks and accompanied by an opinion Board of such accountant (which shall not be qualified in any material respect) to the effect that such consolidated financial statements fairly present the financial condition and results of operations Directors of the Company and the Subsidiaries on a consolidated basis in accordance with GAAPCompany;
(b) on or before September 30, 1998, consolidated statements of income of the Company and its subsidiaries, if any, for the period beginning July 1, 1997 and ending June 30, 1998 for such period, prepared in accordance with generally accepted accounting principles and certified by a firm of independent public accountants of recognized national standing selected by the Board of Directors of the Company;
(c) within 60 twenty (20) days after the end of each of month in each fiscal year (other than the first three fiscal quarters of last month in each fiscal year), unaudited Consolidated a consolidated balance sheets, Consolidated statements of income and Consolidated statements of cash flows showing the financial condition and results of operations sheet of the Company and its subsidiaries, if any, and the Subsidiaries on a related consolidated basis as statements of the end of each such quarter income, stockholders' equity and for the then elapsed portion of the fiscal yearcash flows, certified by a Financial Officer of the Company as presenting fairly the financial position and results of operations of the Company and such Subsidiaries and as having been unaudited but prepared in accordance with GAAP (except for such changes therein as are approved generally accepted accounting principles and certified by the independent accountants for the Company), in each case subject to normal year-end audit adjustments;
(c) concurrently with (a) and (b) above, a certificate of the firm or person referred to therein (which certificate furnished by the independent accountants referred to in paragraph (a) above may be limited to the best of its knowledge and to accounting matters and may disclaim responsibility for legal interpretations) (i) 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, in the case of the certificate furnished by a Chief Financial Officer of the Company, specifying any corrective action taken or proposed such consolidated balance sheet to be taken with respect thereto as of the end of such month and (ii) setting forth computations in reasonable detail satisfactory such consolidated statements of income, stockholders' equity and cash flows to be for such month and for the period from the beginning of the fiscal year to the Administrative Agent demonstrating compliance end of such month, in each case with comparative statements for the covenants contained in Section 6.05 and 6.06prior fiscal year;
(d) at the time of delivery of each annual financial statement pursuant to Section 5.1(a), a certificate executed by the Chief Financial Officer of the Company stating that such officer has caused this Agreement and the Series A Convertible Preferred Stock to be reviewed and has no knowledge of any default by the Company in the performance or observance of any of the provisions of this Agreement or the Series A Convertible Preferred Stock or, if such officer has such knowledge, specifying such default and the nature thereof;
(e) at the time of delivery of each monthly statement pursuant to Section 5.1(c), a management narrative report explaining all significant variances from forecasts and all significant current developments in staffing, marketing, sales and operations;
(f) no later than thirty (30) days prior to the start of each fiscal year, consolidated capital and operating expense budgets, cash flow projections and income and loss projections for the Company and its subsidiaries in respect of such fiscal year, all itemized in reasonable detail and prepared on a monthly basis, and, promptly after preparation, any revisions to any of the foregoing;
(g) promptly following receipt by the Company, each audit response letter, accountants management letter and other written report submitted to the Company by its independent public accountants in connection with an annual or interim audit of the books of the Company or any of its subsidiaries;
(h) promptly after the same become publicly available commencement thereof, notice of all actions, suits, claims, proceedings, investigations and to inquiries of the extent not required to be furnished by type described in Section 2.7 that could materially adversely affect the Company or any other provision of this Section 5.04its subsidiaries, if any;
(i) copies of promptly upon sending, making available or filing the same, all proxy statementspress releases, reports and financial statements and reports that the Company sends or makes available to its stockholders and (ii) copies of all regular, periodic and special reports, and all registration statements relating to transactions requiring a vote of stockholders of the Company or filed on Form X-0, X-0 directors or S-3 under the Securities Act of 1933, which the Company or any Subsidiary files with the Securities and Exchange Commission, or any Governmental Authority which may be substituted therefor, or with any national securities exchange, or distributed to its shareholders, as the case may be; and
(ej) promptly, from time to time, such other information regarding the business, prospects, financial condition, operations, business property or affairs and condition (financial or otherwise) of the Company and the Subsidiaries its subsidiaries as each Bank through the Administrative Agent such Purchaser reasonably may reasonably request; provided, however, that the Company shall not be obligated to disclose, or to permit any examination which will disclose, technical knowledge or confidential trade information, except where appropriate safeguards exist that prevent dissemination of such information in a manner detrimental to the Company's competitive position.
Appears in 1 contract
Samples: Series a Convertible Preferred Stock Purchase Agreement (Starmedia Network Inc)
Financial Statements, Reports, etc. In the case of the CompanyBorrower, furnish directly to the Administrative Agent and to each of the BanksLender:
(a) within 120 90 days after the end of each fiscal year of the Company (being December 31 in each calendar year), its Consolidated consolidated balance sheets, Consolidated sheet and related statements of income income, stockholders' equity and Consolidated statements of cash flows showing the Consolidated financial condition of the Company Borrower and the its consolidated Subsidiaries as of the close of such fiscal year and the results of its operations and the operations of the such Subsidiaries during such year, all the foregoing consolidated financial statements to be audited by Coopers & Xxxxxxx, independent public accountants, KPMG Peat Marwick or other independent public accountants acceptable to the Required Banks of recognized national standing and accompanied by an opinion of such accountant accountants (which shall not be qualified in any material respect) to the effect that such consolidated financial statements fairly present the financial condition and results of operations of the Company Borrower and the its consolidated Subsidiaries on a consolidated basis in accordance with GAAP;
(b) within 60 45 days after the end of each of the first three fiscal quarters of each fiscal year, unaudited Consolidated its consolidated balance sheets, Consolidated sheet and related statements of income and Consolidated statements of cash flows showing the financial condition of the Borrower and its consolidated Subsidiaries as of the close of such fiscal quarter and the results of its operations and the operations of such Subsidiaries during such fiscal quarter and the then elapsed portion of the fiscal year, all certified by one of its Financial Officers as fairly presenting in all material respects the financial condition and results of operations of the Company Borrower and the its consolidated Subsidiaries on a consolidated basis as of the end of each such quarter and for the then elapsed portion of the fiscal year, certified by a Financial Officer of the Company as presenting fairly the financial position and results of operations of the Company and such Subsidiaries and as having been prepared in accordance with GAAP (except for such changes therein as are approved by the independent accountants for the Company)GAAP, in each case subject to normal year-end audit adjustments;
(c) concurrently with any delivery of financial statements under paragraph (a) and or (b) above, a certificate of the accounting firm or person referred to therein (which certificate furnished by in the independent accountants referred to in case of paragraph (a)) above 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 the best of its knowledge and to accounting matters and may disclaim responsibility for legal interpretations) (i) certifying that no Default or Event of Default or Default has occurred, occurred or, if such a an Event of Default or Event of Default has occurred, specifying the nature and extent thereof and, in the case of the certificate furnished by a Financial Officer of the Company, specifying 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 Administrative Agent demonstrating compliance with the covenants contained set forth in Sections 6.09, 6.10, and 6.11, and (iii) in the case of a certificate delivered with the financial statements required by paragraph (a) above, demonstrating compliance with the covenant set forth in Section 6.05 6.08 and 6.06setting forth the Borrower's calculation of Excess Cash Flow;
(d) promptly after the same become publicly available and to the extent not required to be furnished by any other provision of this Section 5.04available, (i) copies of all periodic and other reports, proxy statements, financial statements and reports that other materials filed by the Company sends to its stockholders and (ii) copies of all regular, periodic and special reports, and all registration statements relating to transactions requiring a vote of stockholders of the Company or filed on Form X-0, X-0 or S-3 under the Securities Act of 1933, which the Company Borrower or any Subsidiary files with the Securities and Exchange Commission, or any Governmental Authority which may be substituted thereforsucceeding 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) promptly after the receipt thereof by Citadel or the Borrower or any of their respective subsidiaries, but in no event later than June 30 of any year, a copy of any "management letter" received by any such person from its certified public accountants and the management's response thereto;
(f) not later than January 1 of each year, a business plan for such year setting forth in reasonable detail the projected operations budget of each Broadcast Market and ISP of the Borrower for such year;
(g) each year, at the time of delivery of annual financial statements with respect to the preceding fiscal year pursuant to clause (a) above, the Borrower shall deliver to the Administrative Agent a certificate of a Financial Officer of the Borrower setting forth the information required pursuant to Section 2 of the Perfection Certificate or confirming that there has been no change in such information since the date of the Perfection Certificate delivered on the Closing Date or the date of the most recent certificate delivered pursuant to this Section; and
(ei) promptly, from time to time, such other information regarding the operations, business affairs and financial condition (financial of Citadel, the Borrower or otherwise) any Subsidiary, or compliance with the terms of the Company and the Subsidiaries any Loan Document, as each Bank through the Administrative Agent or any Lender may reasonably request; provided, however, that the Company shall not be obligated to disclose, or to permit any examination which will disclose, technical knowledge or confidential trade information, except where appropriate safeguards exist that prevent dissemination of such information in a manner detrimental to the Company's competitive position.
Appears in 1 contract
Financial Statements, Reports, etc. In the case of the Company, furnish directly to the Administrative Agent and Furnish to each of the Banks:
(a) within 120 90 days after the end of each fiscal year of the Company (being December 31 in each calendar year)Borrower, its Consolidated a consolidated balance sheets, Consolidated statements sheet and a consolidated statement of income operations of the Borrower and Consolidated statements of cash flows the Subsidiaries showing the Consolidated financial condition of the Company Borrower and the Subsidiaries as of the close of such fiscal year and the results of its their operations and the operations of the Subsidiaries during such year and a consolidated statement of cash flows for such fiscal year, all the foregoing consolidated financial statements to be audited by Coopers & Xxxxxxx, independent public accountants, Price Waterhouse or other independent public accountants of nationally recognized standing, such audit report to be in form reasonably acceptable to the Required Banks and accompanied by an opinion of such accountant (which shall not be qualified in any material respect) to the effect that such consolidated financial statements fairly present the financial condition and results of operations of the Company and the Subsidiaries on a consolidated basis in accordance with GAAPBanks;
(b) within 60 45 days after the end of each of the first three fiscal quarters of each fiscal year, an unaudited Consolidated consolidated balance sheetssheet, Consolidated statements a consolidated statement of income operations and Consolidated statements a consolidated statement of cash flows showing the financial condition and results of operations of the Company Borrower and the Subsidiaries on a consolidated basis as of the end of each such quarter and for the then elapsed portion of the fiscal year, certified by a Financial Officer of the Company Borrower as presenting fairly the financial position and results of operations of the Company Borrower and such the Subsidiaries and as having been prepared in accordance with GAAP generally accepted accounting principles consistently applied (except that such financial statements may omit footnotes and be condensed in accordance with Rule 10-01 of Regulation S-X of the Securities and Exchange Commission as in effect on the Closing Date and except for such changes therein as are approved concluded as preferable by the independent accountants for the CompanyBorrower), in each case subject to normal year-end audit adjustments;
(c) promptly after the same become publicly available, copies of all annual, periodic and other reports, and all proxy statements and other information, filed by the Borrower with the Securities and Exchange Commission pursuant to the requirements of the Securities Exchange Act of 1934 or filed with any national securities exchange or distributed to the Borrower's shareholders;
(d) concurrently with (a) and (b) above), a certificate of the firm or person referred to therein (which certificate furnished by the independent accountants referred to in paragraph (a) above may be limited to the best of its knowledge and to accounting matters and may disclaim responsibility for legal interpretations) (i) certifying that to the best of its or his knowledge no Event of Default or event which with notice or lapse of time or both would constitute such an Event of Default has occurred, or, occurred or if such a Default or an Event of Default or event has occurred, specifying the nature and extent thereof and, in the case of the certificate furnished by a Financial Officer of the Company, specifying and any corrective action taken or proposed to be taken with respect thereto thereto;
(e) concurrently with (a) and (iib) setting forth computations above a certificate of a Financial Officer of the Borrower demonstrating compliance, as of the date of the financial statements being
(f) on or prior to May 31 in reasonable detail each year, annual financial projections covering the Borrower and the Subsidiaries, in form satisfactory to the Administrative Agent demonstrating compliance with Banks, for the covenants contained in Section 6.05 and 6.06;
(d) promptly after period from the same become publicly available and to date of preparation through the extent not required to be furnished by any other provision of this Section 5.04, (i) copies of all proxy statements, financial statements and reports that the Company sends to its stockholders and (ii) copies of all regular, periodic and special reports, and all registration statements relating to transactions requiring a vote of stockholders of the Company or filed on Form X-0, X-0 or S-3 under the Securities Act of 1933, which the Company or any Subsidiary files with the Securities and Exchange Commission, or any Governmental Authority which may be substituted therefor, or with any national securities exchange, or distributed to its shareholders, as the case may beMaturity Date; and
(eg) promptly, from time to time, such other information regarding the operationscompliance by the Borrower and the Guarantors with the terms of this Agreement and the other Loan Documents or the affairs, business affairs and operations or condition (financial or otherwise) of the Company Borrower and the Subsidiaries as each any Bank through the Administrative Agent may reasonably request; providedrequest and which is capable of being obtained, however, that produced or generated by the Company shall not be obligated to disclose, Borrower or to permit any examination Subsidiary or of which will disclose, technical knowledge or confidential trade information, except where appropriate safeguards exist that prevent dissemination any of such information in a manner detrimental to the Company's competitive positionthem has knowledge.
Appears in 1 contract
Financial Statements, Reports, etc. In the case of the CompanyBorrower, furnish directly to the Administrative Agent and to for each of the BanksLender:
(a) within 120 90 days after the end of each fiscal year of the Company (being December 31 in each calendar year), its Consolidated consolidated balance sheets, Consolidated sheet and related statements of income operations, shareholders’ equity and Consolidated statements of cash flows showing the Consolidated financial condition of the Company Borrower and the its consolidated Subsidiaries as of the close of such fiscal year and the results of its operations and the operations of the such Subsidiaries during such year, together with comparative figures for the immediately preceding fiscal year, all the foregoing consolidated financial statements to be audited by Coopers Deloitte & Xxxxxxx, independent public accountants, Touche LLP or other independent public accountants acceptable to the Required Banks of recognized national standing and accompanied by an opinion of such accountant accountants (which shall not be qualified in any material respect) to the effect that such consolidated financial statements fairly present in all material respects the financial condition and results of operations of the Company Borrower and the its consolidated Subsidiaries on a consolidated basis in accordance with GAAP;
(b) within 60 45 days after the end of each of the first three fiscal quarters of each fiscal year, its unaudited Consolidated consolidated balance sheets, Consolidated sheet and related statements of income operations and Consolidated statements of cash flows showing the financial condition of the Borrower and its consolidated Subsidiaries as of the close of such fiscal quarter and the results of its operations and the operations of such Subsidiaries during such fiscal quarter and the then elapsed portion of the fiscal year, and comparative figures for the same periods in the immediately preceding fiscal year, all certified by a Financial Officer of the Borrower as fairly presenting the financial condition and results of operations of the Company Borrower and the its consolidated Subsidiaries on a consolidated basis as of the end of each such quarter and for the then elapsed portion of the fiscal year, certified by a Financial Officer of the Company as presenting fairly the financial position and results of operations of the Company and such Subsidiaries and as having been prepared in accordance with GAAP (except for such changes therein as are approved by the independent accountants for the Company)GAAP, in each case subject to normal year-end audit adjustments;
(c) concurrently with any delivery of financial statements under paragraph (a) and or (b) aboveof this Section, a certificate of a Financial Officer of the firm or person referred to therein (which certificate furnished by the independent accountants referred to in paragraph (a) above may be limited to the best of its knowledge and to accounting matters and may disclaim responsibility for legal interpretations) Borrower (i) certifying that no Default or Event of Default has occurred, occurred or, if such a Default or an Event of Default has occurred, specifying the nature and extent thereof and, in the case of the certificate furnished by a Financial Officer of the Company, specifying 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 6.05 Sections 6.12 and 6.066.13 and, in the case of a certificate delivered with the financial statements required by paragraph (a) of this Section, setting forth the Borrower’s calculation of Excess Cash Flow;
(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 and to the extent not required to be furnished by any other provision of this Section 5.04available, (i) copies of all periodic and other reports, proxy statements, financial statements and reports that other materials filed by the Company sends to its stockholders and (ii) copies of all regular, periodic and special reports, and all registration statements relating to transactions requiring a vote of stockholders of the Company or filed on Form X-0, X-0 or S-3 under the Securities Act of 1933, which the Company Borrower or any Subsidiary files with the Securities and Exchange Commission, or any Governmental Authority which may be substituted thereforsucceeding 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;
(f) as soon as practicable and in any event (i) within 10 Business Days after the receipt by the Borrower of the annual valuation report prepared for the ESOP for each fiscal year, commencing with the fiscal year ending September 30, 2004, deliver to the Administrative Agent a copy of such report, and (ii) on the date that is the earlier of (x) 180 days after the date of any Permitted Acquisition with a purchase price in excess of $20,000,000 or for which the Acquired Entity shall have 300 or more employees and (y) the second anniversary of the delivery of the most recent repurchase liability study of the Borrower prepared for the ESOP, deliver to the Administrative Agent (with sufficient copies for each of the Lenders) copies of a repurchase liability study of the Borrower prepared for the ESOP as of a recent date, in each case in form and substance reasonably acceptable to the Administrative Agent.
(g) within 45 days after the end of the first and third fiscal quarters of the Borrower, a certificate of a Financial Officer of the Borrower listing each new Material Contract entered into since the Closing Date;
(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
(ei) promptly, from time to time, such other information regarding the operations, business affairs and financial condition (financial or otherwise) of the Company and Borrower or any Subsidiary, or compliance with the Subsidiaries terms of any Loan Document, as each Bank the Administrative Agent or any Lender (acting through the Administrative Agent Agent) may reasonably request; provided, however, that the Company shall not be obligated to disclose, or to permit any examination which will disclose, technical knowledge or confidential trade information, except where appropriate safeguards exist that prevent dissemination of such information in a manner detrimental to the Company's competitive position.
Appears in 1 contract
Samples: Bridge Loan Agreement (Alion Science & Technology Corp)
Financial Statements, Reports, etc. In the case of the Companyeach Borrower, furnish directly to the Administrative Agent and (which shall promptly furnish to each of the Banks:Lender):
(a) within 120 95 days after the end of each fiscal year of the Company (being December 31 in each calendar year), its Consolidated consolidated balance sheets, Consolidated sheets and related statements of income earnings and Consolidated statements of cash flows flows, together with the notes thereto, showing the Consolidated financial condition position of the Company such Borrower and the its consolidated Subsidiaries as of the close of such fiscal year and the results of its their operations and the operations of the Subsidiaries such subsidiaries during such year, all the foregoing consolidated financial statements to be audited by Coopers & Xxxxxxx, independent public accountants, KPMG LLP or other independent public accountants acceptable to the Required Banks of recognized national standing and accompanied by an opinion of such accountant accountants (which shall not be qualified in any material respect) to the effect that such consolidated financial statements fairly present the financial condition position and results of operations of the Company each such Borrower and the its consolidated Subsidiaries on a consolidated basis in accordance with GAAPGAAP consistently applied, except as therein noted;
(b) within 60 50 days after the end of each of the first three fiscal quarters of each fiscal year, unaudited Consolidated its consolidated balance sheets, Consolidated sheets and related statements of income and Consolidated earnings and, with respect to Weyerhaeuser, statements of cash flows flows, showing the financial condition position of Weyerhaeuser and results of operations of the Company and the its consolidated Subsidiaries on a consolidated basis as of the end close of each such fiscal quarter and for the results of its operations and the operations of such consolidated Subsidiaries during such fiscal quarter and the then elapsed portion of the fiscal year, all certified (in the form of Exhibits D-1 and D-2, with respect to Weyerhaeuser and WRECO, respectively) by a one of its Financial Officer of the Company Officers as fairly presenting fairly the financial position and results of operations of the Company each such Borrower and such its consolidated Subsidiaries and as having been prepared on a consolidated basis in accordance with GAAP (consistently applied, except for such changes as therein as are approved by the independent accountants for the Company)noted, in each case subject to normal appropriate year-end audit adjustmentsadjustments and absence of footnotes;
(c) concurrently with any delivery of financial statements under (a) and or (b) above, a certificate (in the form of Exhibits D-3 and D-4, with respect to Weyerhaeuser and WRECO, respectively) of the accounting firm or person referred to therein Financial Officer of such Borrower opining on or certifying such statements (which certificate certificate, when furnished by the independent accountants referred to in paragraph (a) above an accounting firm, may be limited to the best of its knowledge and to accounting matters and may disclaim responsibility for legal interpretations) (i) certifying that no Default or Event of Default or Default has occurred, occurred or, if such a an Event of Default or Event of Default has occurred, specifying the nature and extent thereof and, in the case of the certificate furnished by a Financial Officer of the Company, specifying and any corrective action taken or proposed to be taken with respect thereto and thereto, (ii) in the case of Weyerhaeuser setting forth computations in reasonable detail satisfactory to the Administrative Agent demonstrating compliance with the covenants contained in Section 6.05 Sections 6.01(d) and 6.066.01(e) and (iii) including a reconciliation setting forth adjustments made to such financial statements in order to make the calculations set forth in clause (ii) above;
(d) promptly after the same become publicly available and to the extent not required to be furnished by any other provision of this Section 5.04available, (i) copies of all periodic and other reports, proxy statements, financial statements and reports that the Company sends to its stockholders and (ii) copies of all regular, periodic and special reports, and all registration statements relating to transactions requiring a vote of stockholders of the Company or other materials filed on Form X-0, X-0 or S-3 under the Securities Act of 1933, which the Company by it or any Subsidiary files of its Subsidiaries with the Securities and Exchange Commission, or any Governmental Authority which may be substituted thereforSEC, or with any national securities exchange, or or, in the case of Weyerhaeuser, distributed to its shareholders, as the case may be; and;
(e) promptly, from time to time, such other information regarding the operations, business affairs and financial condition of such Borrower or any of its Subsidiaries, or compliance with the terms of any Loan Document, as the Administrative Agent, any Swing Line Bank, any Fronting Bank or any Lender may reasonably request (financial it being understood that neither Borrower shall be required to provide any information or otherwisedocuments which are subject to confidentiality provisions the nature of which prohibit such disclosure);
(f) promptly, and in any event within 2 Business Days, upon becoming aware thereof, notice of any proposed or actual down-grade, suspension or withdrawal of the rating provided by S&P or Xxxxx’x to Weyerhaeuser in respect of its Senior Unsecured Long-Term Debt; and
(g) promptly following receipt thereof, copies of any documents described in Sections 101(k) or 101(l) of ERISA that Weyerhaeuser or any ERISA Affiliate may request with respect to any Plan; provided, that if Weyerhaeuser or any ERISA Affiliate has not requested such documents or notices from the Company administrator or sponsor of the applicable Plan, then, upon reasonable request of the Administrative Agent, Weyerhaeuser and/or an ERISA Affiliate shall promptly make a request for such documents or notices from such administrator or sponsor and the Subsidiaries as each Bank through Weyerhaeuser shall provide copies of such documents and notices to the Administrative Agent may reasonably request; providedpromptly after receipt thereof. Information required to be delivered pursuant to paragraphs (a), however(b), (d) and (e) shall be deemed to have been delivered on the date on which Weyerhaeuser provides notice to the Administrative Agent that the Company shall not be obligated to disclose, or to permit any examination which will disclose, technical knowledge or confidential trade information, except where appropriate safeguards exist that prevent dissemination of such information has been posted on Weyerhaeuser’s website on the internet at the website address listed on the signature pages thereof, at xxx.xxx.xxx or at another website identified in a manner detrimental such notice and accessible by the Lenders without charge; provided that Weyerhaeuser shall deliver paper copies of the reports and financial statements referred to in paragraphs (a), (b), (d) and (e) of this Section 5.04 to the Company's competitive positionAdministrative Agent, any Swing Line Bank, any Fronting Bank or any Lender who requests Weyerhaeuser to deliver such paper copies until written notice to cease delivering paper copies is given by such Administrative Agent, Swing Line Bank, Fronting Bank or Lender to Weyerhaeuser.
Appears in 1 contract
Samples: Revolving Credit Facility Agreement (Weyerhaeuser Co)
Financial Statements, Reports, etc. In the case of Holdings and the CompanyBorrower, furnish directly to the Administrative Agent and or to each of the BanksLender:
(a) within 120 90 days after the end of each fiscal year of the Company (being December 31 in each calendar year), its Consolidated consolidated balance sheets, Consolidated sheet and related statements of income income, stockholders' equity and Consolidated statements of cash flows showing the Consolidated financial condition of the Company Holdings and the its consolidated Subsidiaries as of the close of such fiscal year and the results of its operations and the operations of the such Subsidiaries during such year, together with comparative figures for the immediately preceding fiscal year, all the foregoing consolidated financial statements to be audited by Coopers Ernst & Xxxxxxx, independent public accountants, Young LLP or other independent public accountants acceptable to the Required Banks of recognized national standing and accompanied by an opinion of such accountant accountants (which shall not be qualified in any material respect) to the effect that such consolidated financial statements fairly present in all material respects the financial condition and results of operations of the Company Holdings and the its consolidated Subsidiaries on a consolidated basis in accordance with GAAPGAAP consistently applied;
(b) within 60 45 days after the end of each of the first three fiscal quarters of each fiscal year, unaudited Consolidated its consolidated balance sheets, Consolidated sheet and related statements of income income, stockholders' equity and Consolidated statements of cash flows showing the financial condition of Holdings and results of operations of the Company and the its consolidated Subsidiaries on a consolidated basis as of the end close of each such fiscal quarter and for the results of its operations and the operations of such Subsidiaries during such fiscal quarter and the then elapsed portion of the fiscal year, and comparative figures for the same periods in the immediately preceding fiscal year, all certified by a one of its Financial Officer of the Company Officers as fairly presenting fairly the financial position condition and results of operations of the Company Holdings and such its consolidated Subsidiaries and as having been prepared on a consolidated basis in accordance with GAAP (except for such changes therein as are approved by the independent accountants for the Company)consistently applied, in each case subject to normal year-end audit adjustmentsadjustments and the absence of footnotes;
(c) [intentionally omitted];
(d) concurrently with any delivery of financial statements under paragraph (a) and or (b) above, a certificate of the firm or person referred to therein (which certificate furnished by the independent accountants referred to in paragraph (a) above may be limited to the best of its knowledge and to accounting matters and may disclaim responsibility for legal interpretations) Financial Officer certifying such statements (i) certifying that no Default or Event of Default or Default has occurred, occurred or, if such a an Event of Default or Event of Default has occurred, specifying the nature and extent thereof and, in the case of the certificate furnished by a Financial Officer of the Company, specifying 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 6.05 6.11, Section 6.12 and 6.06Section 6.13, 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;
(de) [intentionally omitted];
(f) within 90 days after the end of each fiscal year of Holdings, a detailed consolidated budget for the following 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 following fiscal year 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 and to the extent not required to be furnished by any other provision of this Section 5.04available, (i) copies of all periodic and other reports, proxy statements, financial statements and reports that other materials filed by Holdings, the Company sends to its stockholders and (ii) copies of all regular, periodic and special reports, and all registration statements relating to transactions requiring a vote of stockholders of the Company or filed on Form X-0, X-0 or S-3 under the Securities Act of 1933, which the Company Borrower or any Subsidiary files with the Securities and Exchange Commission, or any Governmental Authority which may be substituted thereforsucceeding 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;
(h) promptly after the receipt thereof by Holdings, the Borrower or any of the Subsidiaries, a copy of any "management letter" (whether in final or draft form) received by any such person from its certified public accountants and the management's response thereto; and
(ei) promptly, from time to time, such other information regarding the operations, business affairs and financial condition (financial of Holdings, the Borrower or otherwise) any Subsidiary, or compliance with the terms of the Company and the Subsidiaries any Loan Document, as each Bank through the Administrative Agent or any Lender may reasonably request. Documents required to be delivered pursuant to this Section 5.04 may be delivered by electronic mail; provided, however, that the Company Borrower shall not be obligated to disclose, or to permit any examination which will disclose, technical knowledge or confidential trade information, except where appropriate safeguards exist that prevent dissemination deliver paper copies of such information in a manner detrimental documents to the Company's competitive positionAdministrative Agent upon request.
Appears in 1 contract
Financial Statements, Reports, etc. In the case of the Company, furnish directly to the Administrative Agent and to each of the BanksLender:
(a) within 120 90 days after the end of each fiscal year of the Company (being December 31 in each calendar year), its Consolidated consolidated balance sheets, Consolidated sheets and related statements of income income, changes in stockholders' equity and Consolidated statements of cash flows flows, showing the Consolidated financial condition of the Company and the its Subsidiaries as of the close of such fiscal year and the results of its operations and the operations of the its Subsidiaries during such year, all the foregoing consolidated financial statements to be audited by Coopers & Xxxxxxx, independent public accountants, PricewaterhouseCoopers or other independent public accountants of recognized national standing acceptable to the Required Banks Lenders and accompanied by an opinion of such accountant accountants (which shall not be qualified in any material respect) to the effect that such consolidated financial statements fairly present the financial condition and results of operations of the Company and the Subsidiaries on a consolidated basis in accordance with GAAPGAAP consistently applied;
(b) within 60 45 days after the end of each of the first three fiscal quarters of each fiscal year, unaudited Consolidated its consolidated balance sheets, Consolidated sheets and related statements of income income, changes in stockholders' equity and Consolidated statements cash flows, showing the financial condition of cash flows showing the Company and its Subsidiaries as of the close of such fiscal quarter and the results of its operations and the operations of its Subsidiaries during such fiscal quarter and the then elapsed portion of such fiscal year, all certified by one of its Financial Officers as fairly presenting the financial condition and results of operations of the Company and the Subsidiaries on a consolidated basis as of the end of each such quarter and for the then elapsed portion of the fiscal year, certified by a Financial Officer of the Company as presenting fairly the financial position and results of operations of the Company and such Subsidiaries and as having been prepared in accordance with GAAP (except for such changes therein as are approved by the independent accountants for the Company)consistently applied, in each case subject to normal year-end audit adjustments;
(c) concurrently with any delivery of financial statements under (a) and or (b) above, a certificate of the accounting firm or person referred to therein Financial Officer opining on or certifying such statements (which certificate certificate, when furnished by the independent accountants referred to in paragraph (a) above an accounting firm, may be limited to the best of its knowledge and to accounting matters and may disclaim responsibility for legal interpretations) (i) certifying that no Default or Event of Default or Default has occurred, occurred or, if such a an Event of Default or Event of Default has occurred, specifying the nature and extent thereof and, in the case of the certificate furnished by a Financial Officer of the Company, specifying 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 covenant contained in Section 6.05 and 6.06;
(d) promptly after the same become publicly available and to the extent not required to be furnished by any other provision of this Section 5.04available, (i) copies of all periodic and other reports, proxy statements, financial statements and reports that the Company sends to its stockholders and (ii) copies of all regular, periodic and special reports, and all registration statements relating to transactions requiring a vote of stockholders of the Company or other materials filed on Form X-0, X-0 or S-3 under the Securities Act of 1933, which the Company or any Subsidiary files by it with the Securities and Exchange Commission, or any Governmental Authority which may be substituted thereforsucceeding to any of or all the functions of such Commission, or with any national securities exchange, or distributed to its shareholders, as the case may be; and
(e) promptly, from time to time, such other information regarding the operations, business affairs and financial condition (financial or otherwise) of the Company and or any Subsidiary, or compliance with the Subsidiaries terms of any Loan Document, as each Bank through the Administrative Agent or any Lender may reasonably request; provided, however, that the Company shall not be obligated to disclose, or to permit any examination which will disclose, technical knowledge or confidential trade information, except where appropriate safeguards exist that prevent dissemination of such information in a manner detrimental to the Company's competitive position.
Appears in 1 contract
Samples: Credit Agreement (Harsco Corp)
Financial Statements, Reports, etc. In the case of the CompanyBorrower, furnish directly to the Administrative Agent and to each of the BanksLender:
(a) within 120 90 days after the end of each fiscal year of the Company (being December 31 in each calendar year), its Consolidated consolidated and consolidating balance sheets, Consolidated sheets and related statements of income operations, stockholders' equity and Consolidated statements of cash flows showing the Consolidated financial condition of the Company Borrower and the its consolidated Subsidiaries as of the close of such fiscal year and the results of its operations and the operations of the such Subsidiaries during such year, all in the foregoing case of such consolidated financial statements to be statements, audited by Coopers & Xxxxxxx, independent public accountants, Arthur Andersen LLP or other independent othex xxxxpxxxxxx public accountants acceptable to the Required Banks of recognized national standing and accompanied by an opinion of such accountant accountants (which shall not be qualified in any material respect) to the effect that such consolidated financial statements fairly present the financial condition and results of operations of the Company Borrower and the its consolidated Subsidiaries on a consolidated basis in accordance with GAAPGAAP consistently applied;
(b) within 60 45 days after the end of each of the first three fiscal quarters of each fiscal year, unaudited Consolidated its consolidated and consolidating balance sheets, Consolidated sheets and related statements of income operations, stockholders' equity and Consolidated statements of cash flows showing the financial condition of the Borrower and its consolidated Subsidiaries as of the close of such fiscal quarter and the results of its operations and the operations of such Subsidiaries during such fiscal quarter 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 Company Borrower and the its consolidated Subsidiaries on a consolidated basis as of the end of each such quarter and for the then elapsed portion of the fiscal year, certified by a Financial Officer of the Company as presenting fairly the financial position and results of operations of the Company and such Subsidiaries and as having been prepared in accordance with GAAP (except for such changes therein as are approved by the independent accountants for the Company)consistently applied, in each case subject to normal year-end audit adjustments;
(c) concurrently with any delivery of financial statements under paragraph (a) and or (b) above, a certificate of the accounting firm or person referred to therein Financial Officer opining on or certifying such statements (which certificate certificate, when furnished by the independent accountants referred to in paragraph (a) above an accounting firm, may be limited to the best of its knowledge and to accounting matters and may disclaim responsibility for legal interpretations) (i) certifying that no Default or Event of Default or Default has occurred, occurred or, if such a an Event of Default or Event of Default has occurred, specifying the nature and extent thereof and, in the case of the certificate furnished by a Financial Officer of the Company, specifying and any corrective action taken or proposed to be taken with respect thereto and thereto, (ii) setting forth computations in reasonable detail satisfactory to the Administrative Agent demonstrating compliance with the covenants contained in Section 6.05 Sections 6.01, 6.04, 6.06, 6.09, 6.10, 6.11 and 6.066.12, and (iii) if such computations include a computation of Consolidated EBITDA, Consolidated Interest Expense or Consolidated Capital Expenditures for any period on a pro forma basis as provided in the second sentence of the definition of each such term, certifying that such computations (A) have been prepared in good faith by the Borrower, based on the best information available to the Borrower as of the date of delivery of such certificate and on assumptions believed by the Borrower on such date to be reasonable, (B) accurately reflect all adjustments required to be made to give effect to the Transactions and any Permitted Acquisition, as the case may be, and (C) present fairly on a pro forma basis the Consolidated EBITDA or Consolidated Capital Expenditures, as the case may be, of the Borrower and its consolidated Subsidiaries for such period, based on the assumptions required to be made by each such definition;
(d) promptly after the same become publicly available and to the extent not required to be furnished by any other provision of this Section 5.04available, (i) copies of all periodic and other reports, proxy statements, financial statements and reports that other final materials filed by the Company sends to its stockholders and (ii) copies of all regular, periodic and special reports, and all registration statements relating to transactions requiring a vote of stockholders of the Company or filed on Form X-0, X-0 or S-3 under the Securities Act of 1933, which the Company Borrower or any Subsidiary files with the Securities and Exchange Commission, or any Governmental Authority which may be substituted thereforsucceeding 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
(e) promptly, from time to time, such other information regarding the operations, business affairs and financial condition (financial or otherwise) of the Company and Borrower or any Subsidiary, or compliance with the Subsidiaries terms of any Loan Document, as each Bank through the Administrative Agent or any Lender may reasonably request; provided, however, that the Company shall not be obligated to disclose, or to permit any examination which will disclose, technical knowledge or confidential trade information, except where appropriate safeguards exist that prevent dissemination of such information in a manner detrimental to the Company's competitive position.
Appears in 1 contract
Samples: Credit Agreement (Johnstown America Industries Inc)
Financial Statements, Reports, etc. In the case of the Company, furnish directly Furnish to the Administrative Agent and to each of the BanksLender:
(a) within 120 as soon as available, and in no event later than 105 days after the end of each fiscal year (or 90 days during any time that the Borrower is subject to the periodic reporting requirements of the Company (being December 31 in each calendar yearSecurities Exchange Act of 1934, as amended), its Consolidated the consolidated and consolidating balance sheets, Consolidated sheets and related statements of income and Consolidated statements of cash flows flow, showing the Consolidated consolidated financial condition of the Company Borrower and the Subsidiaries its consolidated subsidiaries as of the close of such fiscal year and the results of its their operations and the operations of the Subsidiaries during such year, all the foregoing consolidated financial statements to be audited by Coopers & Xxxxxxx, independent public accountants, PriceWaterhouseCoopers LLP or other independent public accountants of recognized national standing reasonably acceptable to the Required Banks Lenders and accompanied by an opinion of such accountant accountants (which shall not be qualified in any material respect) to the effect that such consolidated financial statements fairly present the consolidated financial condition and results of operations of the Company Borrower and the Subsidiaries its consolidated subsidiaries on a consolidated basis in accordance with GAAPGAAP consistently applied;
(b) within as soon as available, and in no event later than 60 days (or 45 days during any time that the Borrower is subject to the periodic reporting requirements of the Securities Exchange Act of 1934, as amended) after the end of each of the first three fiscal quarters of each fiscal year, the unaudited Consolidated consolidated and consolidating balance sheets, Consolidated sheets and related statements of income and Consolidated statements of cash flows changes in financial position, showing the consolidated financial condition and results of operations of the Company Borrower and the Subsidiaries on a its consolidated basis subsidiaries as of the end close of each such fiscal quarter and for the results of their operations during such fiscal quarter and the then elapsed portion of the fiscal year, all certified by a Financial Officer of the Company Borrower as fairly presenting fairly the consolidated financial position condition and results of operations of the Company Borrower and such Subsidiaries and as having been prepared its consolidated subsidiaries in accordance with GAAP (except for such changes therein as are approved by the independent accountants for the Company)consistently applied, in each case subject to normal year-end audit adjustmentsadjustments and the absence of footnotes required by GAAP;
(c) concurrently with any delivery of financial statements under (a) and or (b) above, a certificate of the accounting firm or person referred to therein a Financial Officer of the Borrower opining on or certifying such statements (which certificate certificate, when furnished by the independent accountants referred to in paragraph (a) above an accounting firm, may be limited to the best of its knowledge and to accounting matters and may disclaim responsibility for legal interpretations) (i) certifying that no Default or Event of Default or Default has occurred, occurred or, if such a an Event of Default or Event of Default has occurred, specifying the nature and extent thereof and, in the case of the certificate furnished by a Financial Officer of the Company, specifying 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 6.05 Sections 7.13. 7.14, 7.15, 7.16 and 6.067.17;
(d) promptly after the same become publicly available and to the extent not required to be furnished by any other provision of this Section 5.04available, (i) copies of all periodic and other reports, proxy statements, financial statements and reports that other materials filed by the Company sends to its stockholders and (ii) copies of all regular, periodic and special reports, and all registration statements relating to transactions requiring a vote of stockholders of the Company or filed on Form X-0, X-0 or S-3 under the Securities Act of 1933, which the Company Borrower or any Subsidiary files of its subsidiaries with the Securities and Exchange Commission, or any Governmental Authority which may be substituted thereforgovernmental authority succeeding to any of or all the functions of said Commission, or with any national securities exchange, or distributed to its any of their shareholders, as the case may be; and;
(e) promptly following the preparation thereof, copies of each management letter prepared by the Borrower's, a Guarantor's or TAFSI's auditors (together with any response thereto prepared by the Borrower, such Guarantor or TAFSI);
(f) as soon as available, and in any event no later than 105 days after the end of each fiscal year historical summary data for the immediately preceding year and forecasted financial projections and summary data through the end of the then current fiscal year, in substantially the same form and format as set forth in Section 11 of the 1998 Confidential Information Memorandum (including a specification of the underlying assumptions and a management discussion of historical results), all certified by a Financial Officer of the Borrower to be a fair summary of its results and its good faith estimate of the forecasted financial projections and results of operations for the period through the then-current fiscal year;
(g) upon the earlier of (i) 105 days after the end of each fiscal year of the Borrower and (ii) the date on which the financial statements with respect to such period are delivered pursuant to paragraph (a) above, a certificate of a Financial Officer of the Borrower setting forth, in detail satisfactory to the Agent, the amount of Excess Cash Flow, if any, for such period;
(h) promptly, from time to time, such other information regarding the operations, business affairs and financial condition (financial of any Guarantor, TAFSI or otherwise) the Borrower, or compliance with the terms of any Loan Document, as the Company and Agent, the Subsidiaries as each Bank through Fronting Bank, the Administrative Agent Swingline Lender or any Lender may reasonably request; provided;
(i) promptly, howevera copy of any amendment or waiver of any provisions of any agreement referenced in Section 7.10, that any amendment or waiver of any provision of the Company shall Tranche A Exchange Note Documents not be obligated to disclose, requiring the consent or to permit approval of the Lenders or any examination which will disclose, technical knowledge other amendment or confidential trade information, except where appropriate safeguards exist that prevent dissemination waiver of such information in a manner detrimental any provisions of any agreement to the Company's competitive positionextent that such amendment or waiver is required hereunder to be furnished to the Agent, the Fronting Bank or any Lender;
(j) promptly, a copy of any notice of a default received by the Borrower, TAFSI or any Guarantor under any other Loan Document;
(k) promptly a copy of any notice of default received by the Borrower, TAFSI or any Guarantor (i) from any Tranche A Exchange Note Purchaser under the Tranche A Exchange Note Purchase Agreements or (ii) under the Subordinated Note Indenture;
(l) a copy of all notices (other than regarding any scheduled or mandatory repayments), certificates, financial statements and reports, as and when delivered by or on behalf of the Borrower, TAFSI or any Guarantor (i) to the Tranche A Exchange Note Purchasers under the Tranche A Exchange Note Purchase Agreements or (ii) under the Subordinated Note Indenture (except to the extent any such notice, certificate, financial statement or report is otherwise required to be delivered pursuant to this Agreement); and
(m) a copy of all solicitations or requests for any proposed waiver or amendment of any of the provisions of the Tranche A Exchange Note Documents or Subordinated Note Indenture (but only if the consent or approval of the Lenders is required in connection therewith).
Appears in 1 contract
Financial Statements, Reports, etc. In the case of the CompanyBorrower or WRECO, furnish directly to the Administrative Agent and (which shall promptly furnish to each of the Banks:Lender):
(a) within 120 95 days after the end of each fiscal year of the Company (being December 31 in each calendar year), its Consolidated consolidated balance sheets, Consolidated sheets and related statements of income earnings and Consolidated statements of cash flows flows, together with the notes thereto, showing the Consolidated financial condition position of the Company Borrower, WRECO and the their respective consolidated Subsidiaries as of the close of such fiscal year and the results of its their operations and the operations of the Subsidiaries such subsidiaries during such year, all the foregoing consolidated financial statements to be audited by Coopers & Xxxxxxx, independent public accountants, Axxxxx Axxxxxxx LLP or other independent public accountants of recognized national standing acceptable to the Required Banks Lenders and accompanied by an opinion of such accountant accountants (which shall not be qualified in any material respect) to the effect that such consolidated financial statements fairly present the financial condition position and results of operations of the Company Borrower, WRECO and the their respective consolidated Subsidiaries on a consolidated basis in accordance with GAAPGAAP consistently applied, except as therein noted;
(b) within 60 50 days after the end of each of the first three fiscal quarters of each fiscal year, unaudited Consolidated its consolidated balance sheets, Consolidated sheets and related statements of income and Consolidated earnings and, with respect to the Borrower, statements of cash flows flows, showing the financial condition and results of operations position of the Company Borrower and the its consolidated Subsidiaries on a consolidated basis as of the end close of each such fiscal quarter and for the results of its operations and the operations of such consolidated Subsidiaries during such fiscal quarter and the then elapsed portion of the fiscal year, all certified (in the form of Exhibits E-1 and E-2, with respect to the Borrower and WRECO, respectively) by a one of its Financial Officer of the Company Officers as fairly presenting fairly the financial position and results of operations of the Company Borrower, WRECO and such their respective consolidated Subsidiaries and as having been prepared on a consolidated basis in accordance with GAAP (consistently applied, except for such changes as therein as are approved by the independent accountants for the Company)noted, in each case subject to normal appropriate year-end audit adjustments;
(c) concurrently with any delivery of financial statements under (a) and or (b) above, a certificate (in the form of Exhibits E-3 and E-4, with respect to the Borrower and WRECO, respectively) of the accounting firm or person referred to therein Financial Officer of the Borrower or WRECO opining on or certifying such statements (which certificate certificate, when furnished by the independent accountants referred to in paragraph (a) above an accounting firm, may be limited to the best of its knowledge and to accounting matters and may disclaim responsibility for legal interpretations) (i) certifying that no Default or Event of Default or Default has occurred, occurred or, if such a an Event of Default or Event of Default has occurred, specifying the nature and extent thereof and, in the case of the certificate furnished by a Financial Officer of the Company, specifying and any corrective action taken or proposed to be taken with respect thereto and thereto, (ii) in the case of the Borrower, setting forth computations in reasonable detail satisfactory to the Administrative Agent demonstrating compliance with the covenants contained in Section 6.05 Sections 6.01(d) and 6.066.01(e) and (iii) including a reconciliation setting forth adjustments made to such financial statements in order to make the calculations set forth in clause (ii) above;
(d) promptly after the same become publicly available and to the extent not required to be furnished by any other provision of this Section 5.04available, (i) copies of all periodic and other reports, proxy statements, financial statements and reports that the Company sends to its stockholders and (ii) copies of all regular, periodic and special reports, and all registration statements relating to transactions requiring a vote of stockholders of the Company or other materials filed on Form X-0, X-0 or S-3 under the Securities Act of 1933, which the Company by it or any Subsidiary files of its Subsidiaries with the Securities and Exchange Commission, or any Governmental Authority which may be substituted thereforSEC, or with any national securities exchange, or distributed to its shareholders, as the case may be; and;
(e) as soon as practicable, copies of such further financial statements and reports as the Borrower or WRECO shall send to banks with which it has lines of credit, and all such financial statements and reports as the Borrower or WRECO shall send to its shareholders (unless all of the outstanding shares of capital stock of the Borrower or WRECO are held by one Person);
(f) promptly, from time to time, such other information regarding the operations, business affairs and financial condition (financial or otherwise) of the Company Borrower or WRECO or any of their respective Subsidiaries, or compliance with the terms of any Loan Document, as the Administrative Agent, the Swing Line Bank, the Fronting Bank or any Lender may reasonably request (it being understood that the Borrower shall not be required to provide any information or documents which are subject to confidentiality provisions the nature of which prohibit such disclosure);
(g) promptly, and in any event within 2 days, upon becoming aware thereof, notice of any proposed or actual down-grade, suspension or withdrawal of the Subsidiaries as each Bank through rating provided by S&P or Mxxxx’x to the Borrower in respect of its Senior Unsecured Long-Term Debt; and
(h) information required to be delivered pursuant to paragraphs (a), (b), (d) and (e) shall be deemed to have been delivered on the date on which the Borrower provides notice to the Administrative Agent may reasonably requestthat such information has been posted on the Borrower’s website on the internet at the website address listed on the signature pages thereof, at wxx.xxx.xxx or at another website identified in such notice and accessible by the Lenders without charge; provided, however, provided that the Company Borrower shall not be obligated deliver paper copies of the reports and financial statements referred to disclosein paragraphs (a), or to permit any examination which will disclose(b), technical knowledge or confidential trade information, except where appropriate safeguards exist that prevent dissemination (d) and (e) of such information in a manner detrimental this Section 5.04 to the Company's competitive positionAdministrative Agent, the Swingline Bank, the Fronting Bank or any Lender who requests the Borrower to deliver such paper copies until written notice to cease delivering paper copies is given by such Administrative Agent, Swingline Bank, Fronting Bank or Lender to the Borrower.
Appears in 1 contract
Samples: Competitive Advance and Revolving Credit Facility Agreement (Weyerhaeuser Co)
Financial Statements, Reports, etc. In the case The Corporation shall furnish to each holder of the Company, furnish directly to the Administrative Agent and to each of the BanksSeries B-1 Preferred Stock:
(a) within 120 90 days after the end of each fiscal year of the Company (being December 31 in each calendar year), its Consolidated consolidated balance sheets, Consolidated sheet and related statements of income income, stockholders’ equity and Consolidated statements of cash flows showing the Consolidated financial condition of the Company Corporation and the Subsidiaries its consolidated subsidiaries as of the close of such fiscal year and the results of its operations and the operations of the Subsidiaries such subsidiaries during such year, together with comparative figures for the immediately preceding fiscal year, all the foregoing consolidated financial statements to be in reasonable detail and prepared in accordance with United States generally accepted accounting principles (“GAAP”), all audited by Coopers & XxxxxxxUHY, independent public accountants, LLP or other independent public accountants acceptable to the Required Banks of recognized national standing and accompanied by an opinion of such accountant accountants (which opinion shall not be qualified in without any material respectqualification or exception as to the scope of such audit) to the effect that such consolidated financial statements fairly present the financial condition and results of operations of the Company Corporation and the Subsidiaries its consolidated subsidiaries on a consolidated basis in accordance with GAAP;
(b) within 60 45 days after the end of each of the first three fiscal quarters of each fiscal year, unaudited Consolidated its consolidated balance sheets, Consolidated sheet and related statements of income income, stockholders’ equity and Consolidated statements of cash flows showing the financial condition of the Corporation and its consolidated subsidiaries as of the close of such fiscal quarter and the results of its operations and the operations of such subsidiaries during such fiscal quarter and the then-elapsed portion of the fiscal year, and comparative figures for the same periods in the immediately preceding fiscal year, all certified by one of the chief executive officer, chief financial officer, any vice president, principal accounting officer, treasurer, assistant treasurer or controller of the Corporation as fairly presenting in all material respects the financial condition and results of operations of the Company Corporation and the Subsidiaries its consolidated subsidiaries on a consolidated basis as of the end of each such quarter and for the then elapsed portion of the fiscal year, certified by a Financial Officer of the Company as presenting fairly the financial position and results of operations of the Company and such Subsidiaries and as having been prepared in accordance with GAAP (except for such changes therein as are approved by the independent accountants for the Company)GAAP, in each case subject to normal year-end audit adjustments;
(c) concurrently with (a) and (b) above, a certificate of the firm or person referred to therein (which certificate furnished by the independent accountants referred to in paragraph (a) above may be limited to the best of its knowledge and to accounting matters and may disclaim responsibility for legal interpretations) (i) 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, in the case of the certificate furnished by a Financial Officer of the Company, specifying 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 6.05 and 6.06;
(d) promptly after the same become publicly available and to the extent not required to be furnished by any other provision of this Section 5.04, (i) copies of all proxy statements, financial statements and reports that the Company sends to its stockholders and (ii) copies of all regular, periodic and special reports, and all registration statements relating to transactions requiring a vote of stockholders of the Company or filed on Form X-0, X-0 or S-3 under the Securities Act of 1933, which the Company or any Subsidiary files with the Securities and Exchange Commission, or any Governmental Authority which may be substituted therefor, or with any national securities exchange, or distributed to its shareholders, as the case may be; and
(e) promptly, from time to time, such other information regarding the operations, business affairs and condition (financial or otherwise) of the Company adjustments and the Subsidiaries as each Bank through the Administrative Agent may reasonably request; provided, however, that the Company shall not be obligated to disclose, or to permit any examination which will disclose, technical knowledge or confidential trade information, except where appropriate safeguards exist that prevent dissemination absence of such information in a manner detrimental to the Company's competitive positionfootnotes.
Appears in 1 contract
Samples: Series B Preferred Stock Subscription and Exchange Agreement (Geokinetics Inc)
Financial Statements, Reports, etc. In the case of the CompanyBorrower, furnish directly to the Administrative Agent and to each of the BanksAgent:
(a) within 120 90 days after the end of each fiscal year of the Company (being December 31 in each calendar year), its Consolidated consolidated balance sheets, Consolidated sheet and related statements of income income, stockholders’ equity and Consolidated statements of cash flows showing the Consolidated financial condition of the Company Borrower and the its consolidated Subsidiaries as of the close of such fiscal year and the results of its operations and the operations of the such Subsidiaries during such year, together with comparative figures for the immediately preceding fiscal year, all the foregoing consolidated financial statements to be audited by Coopers Deloitte & Xxxxxxx, independent public accountants, Touche LLP or other independent public accountants acceptable to the Required Banks of recognized national standing and accompanied by an opinion of such accountant accountants (which shall not be qualified in any material respect) to the effect that such consolidated financial statements fairly present the financial condition and results of operations of the Company Borrower and the its consolidated Subsidiaries on a consolidated basis in accordance with GAAPGAAP consistently applied;
(b) within 60 45 days after the end of each of the first three fiscal quarters of each fiscal year, unaudited Consolidated its consolidated balance sheets, Consolidated sheet and related statements of income income, stockholders’ equity and Consolidated statements of cash flows showing the financial condition of the Borrower and its consolidated Subsidiaries as of the close of such fiscal quarter and the results of its operations and the operations of such Subsidiaries during such fiscal quarter and the then elapsed portion of the fiscal year, and 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 financial condition and results of operations of the Company Borrower and the its consolidated Subsidiaries on a consolidated basis as of the end of each such quarter and for the then elapsed portion of the fiscal year, certified by a Financial Officer of the Company as presenting fairly the financial position and results of operations of the Company and such Subsidiaries and as having been prepared in accordance with GAAP (except for such changes therein as are approved by the independent accountants for the Company)consistently applied, in each case subject to normal year-end audit adjustments;
(c) within 45 days after the end of the first two fiscal four-week periods of each fiscal quarter, its consolidated balance sheet and related statements of income and cash flows showing the financial condition of the Borrower and its consolidated Subsidiaries during such fiscal period and the then elapsed portion of the fiscal year, all certified by one of its Financial Officers as fairly presenting 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;
(d) concurrently with any delivery of financial statements under paragraph (a) and ), (b) or (c) above, a certificate of the accounting firm or person referred to therein (which certificate furnished by in the independent accountants referred to in case of paragraph (a)) above or Financial Officer (in the case of paragraph (b) or (c)) opining on or certifying such statements (which certificate, when furnished by an accounting firm, may be limited to the best of its knowledge and to accounting matters and may disclaim responsibility for legal interpretations) (i) certifying that no Default or Event of Default or Default has occurred, occurred or, if such a an Event of Default or Event of Default has occurred, specifying the nature and extent thereof and, in the case of the certificate furnished by a Financial Officer of the Company, specifying and any corrective action taken or proposed to be taken with respect thereto and (ii) in the case of paragraphs (a) and (b), of a Financial Officer setting forth computations in reasonable detail satisfactory to the Administrative Agent demonstrating compliance with the covenants contained in Sections 6.11, 6.12 and 6.13 and, in the case of a certificate delivered with the financial statements required by paragraph (a) above, (x) setting forth the Borrower’s calculation of Excess Cash Flow and (y) certifying that there has been no change in the business activities, assets or liabilities of Holdings, or if there has been any such change, describing such change in reasonable detail and certifying that Holdings is in compliance with Section 6.05 and 6.066.08;
(de) at least 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 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 and to the extent not required to be furnished by any other provision of this Section 5.04available, (i) copies of all periodic and other reports, final proxy statements, financial statements and reports that upon notice of filing to the Company sends to its stockholders Administrative Agent and (ii) copies of all regular, periodic and special reports, and all registration statements relating to transactions requiring a vote of stockholders upon the request of the Company or Administrative Agent, other materials filed on Form X-0by Holdings, X-0 or S-3 under the Securities Act of 1933, which the Company Borrower or any Subsidiary files with the Securities and Exchange Commission, or any Governmental Authority which may be substituted thereforsucceeding 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;
(g) promptly after the receipt thereof by Holdings, the Borrower or any Subsidiary, a copy of any “management letter” (in final form) received by any such person from its certified public accountants and the management’s response thereto; and
(eh) promptly, from time to time, such other information regarding the operations, business affairs and financial condition (financial of Holdings, the Borrower or otherwise) any Subsidiary, or compliance with the terms of the Company and the Subsidiaries any Loan Document, as each Bank through the Administrative Agent or any Lender may reasonably request; provided, however, that the Company shall not be obligated to disclose, or to permit any examination which will disclose, technical knowledge or confidential trade information, except where appropriate safeguards exist that prevent dissemination of such information in a manner detrimental to the Company's competitive position.
Appears in 1 contract
Samples: Credit Agreement (Buffets Inc)
Financial Statements, Reports, etc. In the case of the Company, furnish directly to the Administrative Agent and for distribution to each of the BanksLender:
(ai) within 120 no later than 90 days (or 105 days if later reporting is permitted under SEC Rule 12b-25) after the end of each fiscal year of the Company (being December 31 in each calendar year)Company, its Consolidated the Company’s audited consolidated balance sheets, Consolidated sheet and related audited consolidated statements of income income, shareowners’ investments and Consolidated statements of cash flows showing the Consolidated financial condition of the Company and the Subsidiaries flows, as of the close end of such fiscal year and the results of its operations and the operations of the Subsidiaries during for such year, setting forth in each case in comparative form the figures for the previous fiscal year, all reported on by the foregoing consolidated financial statements to be audited by Coopers & Xxxxxxx, independent public accountants, Auditors or other independent registered public accountants acceptable accounting firm of recognized national standing (without a “going concern” or like qualification or exception except for a “going concern” or like qualification or exception arising from a breach or anticipated breach of any of the Financial Performance Covenants or financial covenants in the Revolving Credit Facility) and without any qualification or exception as to the Required Banks and accompanied by an opinion scope of such accountant (which shall not be qualified in any material respectaudit) to the effect that such consolidated financial statements present fairly present in all material respects the financial condition and results of operations of the Company and the its consolidated Subsidiaries on a consolidated basis in accordance with GAAPGAAP consistently applied;
(bii) within 60 no later than 45 days (or 50 days if later reporting is permitted under SEC Rule 12b-25) after the end of each of the first three fiscal quarters of each fiscal year of the Company, the Company’s unaudited consolidated balance sheet and related unaudited consolidated statements of income, shareowners’ investments and cash flows, as of the end of and for such fiscal quarter and the then elapsed portion of the fiscal year, unaudited Consolidated setting forth in each case in comparative form the figures for the corresponding period or periods of (or, in the case of the balance sheetssheet, Consolidated statements as of income and Consolidated statements the end of) the previous fiscal year, all certified by a Financial Officer of cash flows showing the Company as presenting fairly in all material respects the financial condition and results of operations of the Company and the its consolidated Subsidiaries on a consolidated basis as of the end of each such quarter and for the then elapsed portion of the fiscal year, certified by a Financial Officer of the Company as presenting fairly the financial position and results of operations of the Company and such Subsidiaries and as having been prepared in accordance with GAAP (except for such changes therein as are approved by the independent accountants for the Company)consistently applied, in each case subject to normal year-end audit adjustmentsadjustments and the absence of footnotes;
(ciii) concurrently with no later than two Business Days following its delivery to the Administrative Agent of each set of financial statements under paragraph (a) and or (b) above, a certificate of the firm or person referred to therein (which certificate furnished by the independent accountants referred to in paragraph (a) above may be limited to the best of its knowledge and to accounting matters and may disclaim responsibility for legal interpretations) a Financial Officer (i) certifying that no Default or Event of Default or Default has occurred, occurred or, if such a an Event of Default or Event of Default has occurred, specifying the nature and extent thereof and, in the case of the certificate furnished by a Financial Officer of the Company, specifying 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 6.05 and 6.06Financial Performance Covenants;
(div) as soon as the same become available but in any event within 60 days after the end of each of the Company’s fiscal years, an annual budget for the following fiscal year which budget shall: (x) include all of the financial information reviewed by the Company’s board of directors when the budget was presented thereto; (y) be prepared in good faith, on the basis of assumptions believed by the Company to be reasonable at the time it was prepared, it being understood that the budget by its nature is uncertain and no assurance is given that the budget will be achieved; and (z) be presented to the board of directors of the Company;
(v) promptly after the same become publicly available and to the extent not required to be furnished by any other provision of this Section 5.04available, (i) copies of all proxy statements, financial statements and reports that the Company sends to its stockholders and (ii) copies of all regular, periodic and special other material reports, proxy statements and, upon notice of filing to the Administrative Agent and all registration statements relating to transactions requiring a vote of stockholders upon the request of the Company or Administrative Agent, other materials filed on Form X-0by the Company, X-0 or S-3 under the Securities Act of 1933, which the Company or any Subsidiary files with the Securities and Exchange Commission, or any Governmental Authority which may be substituted therefor, or with any national securities exchange, or distributed to its shareholders, as the case may be;
(vi) promptly upon the request the Administrative Agent (for itself or on behalf of any Lender or on behalf of any prospective new Lender), all documentation and other information that the Administrative Agent reasonably requests in order to comply with any Lenders’ ongoing obligations under applicable “know your customer” and anti-money laundering rules and regulations, including the USA PATRIOT Act;
(vii) no later than 45 days (or 50 days if later reporting is permitted under SEC Rule 12b-25) after the end of each first, second or third fiscal quarter, and 90 days after the end of each fiscal year, a report summarizing the current contractual position in relation to the Company and its Subsidiaries’ fleet of vessels worldwide. Unless otherwise agreed between the Borrowers and the Administrative Agent, the form and content of such report shall be substantially as set out in the Fleet Report Template; and
(eviii) promptly, from time to time, such other information regarding the operations, business affairs operations and financial condition (financial or otherwise) of the Company and the Subsidiaries Borrowers or any Subsidiary, as each Bank through the Administrative Agent may reasonably request; provided. Information required to be delivered pursuant to this Section 1.1(b) may be delivered electronically and if so delivered, howevershall be deemed to have been delivered on the date on which Borrower Agent posts such documents on SyndTrak, IntraLinks or “XXXXX”, the Securities and Exchange Commission’s website (as of the date of this Agreement located at xxx.xxx.xxx) or a similar site to which the Lenders have been granted access or the Borrower Agent provides, electronically or otherwise, a link thereto on the Company’s website. Each Lender shall be solely responsible for timely accessing posted documents and maintaining its copies of such documents. Each set of financial statements delivered under paragraph (i) or (ii) above, (1) shall be certified in the manner required in that clause and in the case of a certificate delivered with the financial statements required by paragraph (i) above, shall be accompanied by any letter addressed to the management of the relevant company by the Auditors and accompanying such financial statements, (2) shall be prepared using GAAP and the accounting practices and financial reference periods consistent with those applied: (w) in the case of the Company shall not be obligated and its Subsidiaries, in the preparation of prior period financial statements, except as otherwise required by GAAP and (x) in the case of any Loan Party, in the preparation of the Original Financial Statements for that Loan Party, unless, in relation to discloseany set of financial statements, the Borrower Agent notifies the Administrative Agent that there has been a change in GAAP or the accounting practices and delivers to permit the Administrative Agent: (y) a description of any examination change necessary for those financial statements to reflect GAAP or accounting practices upon which will disclose, technical knowledge or confidential trade the Company’s Original Financial Statements were prepared; and (z) sufficient information, except where appropriate safeguards exist that prevent dissemination of such information in a manner detrimental form and substance as may be reasonably required by the Administrative Agent, to enable the Lenders to determine whether the Financial Performance Covenants have been complied with and to make an accurate comparison between the financial position indicated in those financial statements and the Company's competitive position’s Original Financial Statements. For purposes of this Section 1.1(b), any capitalized term that is not otherwise defined in Section 4.1 of this Agreement shall have the meaning ascribed to such term in the Term Loan Documents.
Appears in 1 contract
Samples: Securities Purchase Agreement (Gulfmark Offshore Inc)
Financial Statements, Reports, etc. In the case of the CompanyBorrower, furnish directly to the Administrative Agent and to each of the BanksLender:
(a) within 120 95 days after the end of each fiscal year of the Company (being December 31 in each calendar year), its Consolidated consolidated balance sheets, Consolidated sheet and related statements of income operations, stockholders' equity and Consolidated statements of cash flows showing the Consolidated financial condition of the Company Borrower and the its consolidated Subsidiaries as of the close of such fiscal year and the results of its operations and the operations of the such Subsidiaries during such year, all the foregoing consolidated financial statements to be audited by Coopers & Xxxxxxx, independent public accountants, Arthxx Xxxexxxx XXX or other independent public accountants of recognized national standing acceptable to the Required Banks Administrative Agent and accompanied by an opinion of such accountant accountants (which shall not be qualified in any material respect) to the effect that such consolidated financial statements fairly present the financial condition and results of operations of the Company Borrower and the its consolidated Subsidiaries on a consolidated basis in accordance with GAAPGAAP consistently applied and annual consolidating income statements for the Borrower and its operating districts;
(b) within 60 50 days after the end of each of the first three fiscal quarters of each fiscal year, unaudited Consolidated its consolidated balance sheets, Consolidated sheet and related statements of income operations, stockholders' equity and Consolidated statements of cash flows showing the financial condition of the Borrower and its consolidated Subsidiaries as of the close of such fiscal quarter and the results of its operations and the operations of such Subsidiaries during such fiscal quarter 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 Company Borrower and the its consolidated Subsidiaries on a consolidated basis as of the end of each such quarter and for the then elapsed portion of the fiscal year, certified by a Financial Officer of the Company as presenting fairly the financial position and results of operations of the Company and such Subsidiaries and as having been prepared in accordance with GAAP (except for such changes therein as are approved by the independent accountants for the Company)consistently 82 76 applied, in each case subject to normal year-end audit adjustmentsadjustments and quarterly consolidating income statements for the Borrower and its operating districts;
(c) concurrently with any delivery of financial statements under sub-paragraph (a) and or (b) above, a certificate of the accounting firm or person referred to therein Financial Officer opining on or certifying such statements (which certificate certificate, when furnished by the independent accountants referred to in paragraph (a) above an accounting firm, may be limited to the best of its knowledge and to accounting matters and may disclaim responsibility for legal interpretations) (i) certifying that no Default 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 Default has occurred, occurred or, if such a Financial Officer has obtained knowledge that an Event of Default or Event of Default has occurred, specifying the nature and extent thereof and, in the case of the certificate furnished by a Financial Officer of the Company, specifying and any corrective action taken or proposed to be taken with respect thereto and thereto, (ii) setting forth computations in reasonable detail satisfactory to the Administrative Agent, the Syndication Agent and the Documentation Agent demonstrating compliance with the covenants contained in Section 6.05 6.01, 6.02, 6.04, 6.05, 6.11, 6.12, 6.13, 6.14 and 6.066.15 and (iii) setting forth any change in the Applicable Percentage;
(d) promptly after the same become publicly available and to the extent not required to be furnished by any other provision of this Section 5.04available, (i) copies of all periodic and other reports, proxy statements, financial statements and reports that other materials filed by Allied, the Company sends to its stockholders and (ii) copies of all regular, periodic and special reports, and all registration statements relating to transactions requiring a vote of stockholders of the Company or filed on Form X-0, X-0 or S-3 under the Securities Act of 1933, which the Company Borrower or any Subsidiary files with the Securities and Exchange Commission, or any Governmental Authority which may be substituted thereforsucceeding 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;
(e) as soon as available but in any event not later than 50 days after the end of each fiscal quarter, a report in form and substance satisfactory to the Administrative Agent, the Syndication Agent and the Documentation Agent of all Permitted Acquisitions consummated during such quarter with total consideration of $3,000,000 or more, which report shall include a description of the total consideration by acquisition (including a breakdown of Indebtedness permitted under Section 6.01(e), Acquired Indebtedness and contingent payments);
(f) promptly, from time to time, such other information regarding the operations, business affairs and financial condition of Allied, the Borrower or any Subsidiary, or compliance with the terms of any Loan Document, as the Administrative Agent, the Syndication Agent and the Documentation Agent or any Lender may reasonably request;
(financial or otherwiseg) within fifteen days after the beginning of each fiscal year, a copy of the Company annual business plan of the Borrower and the Subsidiaries as and forecasts, prepared by management of the Borrower, in each Bank through case in form and detail satisfactory to the Administrative Agent, the Syndication Agent may reasonably requestand the Documentation Agent, of the Borrower's consolidated balance sheets and related statements of operations and cash flows on a monthly basis for such fiscal year and on an annual basis for each of the following fiscal years remaining during the term of this Agreement; providedand
(h) concurrently with the delivery of the financial statements under sub-paragraph (a) above, howevera schedule of all real property then owned by Allied, that the Company Borrower or the Subsidiaries, which schedule shall not be obligated to discloseinclude, or to permit any examination which will disclose, technical knowledge or confidential trade information, except where appropriate safeguards exist that prevent dissemination of such information in a manner detrimental detail satisfactory to the Company's competitive positionAdministrative 83 77 Agent, the location of, description of, fair market or assessed value of and any Liens securing Indebtedness on, each such owned real property.
Appears in 1 contract
Financial Statements, Reports, etc. In the case of the CompanyBorrower, furnish directly to the Administrative Agent and (for further delivery by the Administrative Agent to each of the Banks:Lenders in accordance with its customary practice):
(a) within 120 90 days after the end of each fiscal year of the Company (being December 31 in each calendar year), its audited Consolidated balance sheets, Consolidated sheets and related statements of income and Consolidated statements of cash flows flow, showing the Consolidated financial condition of the Company Borrower and the its Consolidated Subsidiaries as of the close of such fiscal year and the results of its operations and the operations of the such Subsidiaries during such year, all the foregoing consolidated financial statements to be audited by Coopers Ernst & Xxxxxxx, independent public accountants, Young LLP or such other independent public accountants of recognized national standing reasonably acceptable to the Required Banks Administrative Agent and accompanied by an opinion of such accountant accountants (which shall not be qualified in any material respect) to the effect that such consolidated Consolidated financial statements fairly present in all material respects the financial condition and results of operations of the Company and the Subsidiaries Borrower on a consolidated Consolidated basis in accordance with GAAPGAAP consistently applied;
(b) within 60 50 days after the end of each of the first three fiscal quarters of each fiscal year, beginning with the fiscal quarter ending June 30, 2018, its unaudited Consolidated balance sheets, Consolidated sheets and related statements of income and cash flow, showing the financial condition of the Borrower and its Consolidated statements Subsidiaries as of cash flows showing the close of such fiscal quarter and the results of its operations and the operations of such Subsidiaries during such fiscal quarter and the then elapsed portion of the fiscal year, all certified by the Financial Officer of the Borrower as fairly presenting in all material respects the financial condition and results of operations of the Company and the Subsidiaries Borrower on a consolidated Consolidated basis as of the end of each such quarter and for the then elapsed portion of the fiscal year, certified by a Financial Officer of the Company as presenting fairly the financial position and results of operations of the Company and such Subsidiaries and as having been prepared in accordance with GAAP (except for such changes therein as are approved by the independent accountants for the Company)consistently applied, in each case subject to normal year-end audit adjustmentsadjustments and the absence of footnotes;
(c) concurrently with any delivery of financial statements under clause (a) and or (b) above, a certificate of the accounting firm or person referred to therein the Financial Officer of the Borrower opining on or certifying such statements (which certificate certificate, when furnished by the independent accountants referred to in paragraph (a) above an accounting firm, may be limited to the best of its knowledge and to accounting matters and may disclaim responsibility for legal interpretations) and in any event will be based on the actual knowledge after due inquiry of the Person giving the certificate, and:
(i) certifying that no Default or Event of Default or Default has occurred, occurred or, if such a an Event of Default or Event of Default has occurred, specifying the nature and extent thereof and, in the case of the certificate furnished by a Financial Officer of the Company, specifying and any corrective action taken or proposed to be taken with respect thereto and thereto;
(ii) setting forth computations in reasonable detail satisfactory to the Administrative Agent demonstrating compliance with the covenants contained in Sections 6.11 and 6.12 (except that the requirements set forth in this clause (ii) shall not apply to the quarterly financial statements related to the fiscal quarter ending on June 30, 2018); and
(iii) with respect to the computations delivered pursuant to Section 6.05 5.04(c)(ii), the Financial Officer shall break out and 6.06separately provide the financial information relating solely to Domestic Subsidiaries that are Unrestricted Subsidiaries and certify the accuracy of such information;
(d) promptly after the same become publicly available and to the extent not required to available, copies (which such deliveries may be furnished made by any other provision of this Section 5.04, (iemail) copies of all periodic and other reports, proxy statements, financial statements and reports that the Company sends to its stockholders and (ii) copies of all regular, periodic and special reports, and all registration statements relating to transactions requiring a vote of stockholders of the Company or other materials filed on Form X-0, X-0 or S-3 under the Securities Act of 1933, which the Company or any Subsidiary files by it with the Securities and Exchange Commission, or any Governmental Authority which may be substituted thereforsucceeding to any of or all the functions of said Commission, or with any national securities exchange, or distributed to its shareholders, as the case may be;
(e) promptly upon a Responsible Officer of the Borrower becoming aware of a change in the Debt Rating (including the initial issuance of any Investment Grade Rating or the failure to maintain any Investment Grade Rating); 66 Choice Hotels – Credit Agreement (2018)
(f) promptly following any change in beneficial ownership of the Company or a Designated Borrower that would render any statement in an existing Beneficial Ownership Certification untrue or inaccurate, an updated Beneficial Ownership Certification (it being understood that no reporting shall be required pursuant to this clause (f) with respect to the Company as long as it remains listed on the New York Stock Exchange); and
(eg) promptly, promptly from time to time, such other information regarding the operations, business affairs and financial condition (financial or otherwise) of the Company and Company, a Designated Borrower or any Restricted Subsidiary, or compliance with the Subsidiaries terms of any Loan Document, as each Bank through the Administrative Agent or any Lender may reasonably request, including, without limitation, any information that the Administrative Agent or any Lender deems reasonably necessary from time to time in order to comply with its “know your customer” requirements and to confirm compliance with all applicable Sanctions, Anti-Corruption Laws, the Trading with the Enemy Act and the Patriot Act. Any of the deliveries required by this Section 5.04 may be made by email to the Administrative Agent in accordance with Section 9.01, provided that the financial statements required to be delivered pursuant to paragraphs (a) and (b) above and the information required to be delivered pursuant to paragraph (d) above shall be deemed to have been delivered on the earlier of (A) the date on which the Borrower has posted such information on the Securities and Exchange Commission’s website and (B) the date on which the Borrower has posted such information, and has provided notice to the Administrative Agent of such posting of, such information on the Borrower’s website and/or on the internet at the website address provided in such notice, or at another website accessible by the Lenders without charge. The Borrower hereby acknowledges that (a) the Administrative Agent will make available to the Lenders materials and/or information provided by or on behalf of the Borrower hereunder (collectively, “Borrower Materials”) by posting the Borrower Materials on DebtDomain® or another similar electronic system (the “Platform”) and (b) certain of the Lenders may be “public-side” Lenders (i.e., Lenders that do not wish to receive material non-public information with respect to the Borrower or its securities) (each, a “Public Lender”). The Borrower hereby agrees that, if requested by the Administrative Agent, it will use commercially reasonable efforts to identify that portion of the Borrower Materials that may be distributed to the Public Lenders and that (i) 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; (ii) 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 the Company shall not be obligated to disclose, or to permit any examination which will disclose, technical knowledge or confidential trade information, except where appropriate safeguards exist that prevent dissemination of such information in a manner detrimental to the Company's competitive positionextent such Borrower Materials constitute Proprietary Information, they shall be treated as set forth in Section 9.15); (iii) all Borrower Materials marked “PUBLIC” are permitted to be made available through a portion of the Platform designated “Public Investor;” and (iv) 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.” Notwithstanding the foregoing, (x) the Borrower shall be under no Obligation to xxxx any Borrower Materials “PUBLIC” and (y) each Public Lender shall designate to the Administrative Agent one or more persons who are entitled to receive and view Borrower Materials containing material non-public information to the same extent as Lenders that are not Public Lenders.
Appears in 1 contract
Samples: Senior Unsecured Credit Agreement (Choice Hotels International Inc /De)
Financial Statements, Reports, etc. In the case of the CompanyBorrower, furnish directly to the Administrative Agent and Agent, which shall deliver to each of the BanksLender:
(a) within 120 90 days after the end of each fiscal year of the Company (being December 31 in each calendar year), its Consolidated consolidated balance sheets, Consolidated sheets and related statements of income operations, stockholders' equity and Consolidated statements of cash flows showing the Consolidated financial condition of the Company Borrower and the its consolidated Subsidiaries as of the close of such fiscal year and the results of its operations and the operations of the such Subsidiaries during such year, all the foregoing consolidated financial statements to be audited by Coopers & Xxxxxxx, independent public accountants, PricewaterhouseCoopers LLP or other independent public accountants of recognized national standing acceptable to the Required Banks Lenders and accompanied by an opinion of such accountant accountants (which shall not be qualified in any material respect) to the effect that such consolidated financial statements fairly present the financial condition and results of operations of the Company Borrower and the its consolidated Subsidiaries on a consolidated basis in accordance with GAAPGAAP consistently applied;
(b) within 60 45 days after the end of each of the first three fiscal quarters of each fiscal year, unaudited Consolidated its consolidated balance sheets, Consolidated sheets and related statements of income operations, stockholders' equity and Consolidated statements of cash flows showing the financial condition of the Borrower and its consolidated Subsidiaries as of the close of such fiscal quarter and the results of its operations and the operations of such Subsidiaries during such fiscal quarter 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 Company Borrower and the its consolidated Subsidiaries on a consolidated basis as of the end of each such quarter and for the then elapsed portion of the fiscal year, certified by a Financial Officer of the Company as presenting fairly the financial position and results of operations of the Company and such Subsidiaries and as having been prepared in accordance with GAAP (except for such changes therein as are approved by the independent accountants for the Company)consistently applied, in each case subject to normal year-end audit adjustments;
(c) concurrently with any delivery of financial statements under sub-paragraph (a) and or (b) above, a certificate of the accounting firm or person referred to therein Financial Officer opining on or certifying such statements (which certificate certificate, when furnished by the independent accountants referred to in paragraph (a) above an accounting firm, may be limited to the best of its knowledge and to accounting matters and may disclaim responsibility for legal interpretations) (i) certifying that (x) no Default or Event of Default or Default has occurred, occurred or, if such a an Event of Default or Event of Default has occurred, specifying the nature and extent thereof and, in the case of the certificate furnished by a Financial Officer of the Company, specifying and any corrective action taken or proposed to be taken with respect thereto and (y) to the knowledge of such accounting firm or Financial Officer, the passage of time will not reveal an Event of Default or a Default and (ii) setting forth computations in reasonable detail satisfactory to the Administrative Agent demonstrating compliance with the covenants contained in Section 6.05 Sections 6.10, 6.11 and 6.066.12;
(d) on or prior to each date of delivery of the Borrower's year-end financial statements pursuant to Section 5.03(a), the Borrower shall provide to each Lender a business plan for the following two years, in a form satisfactory to the Administrative Agent;
(e) promptly after the same become publicly available and to the extent not required to be furnished by any other provision of this Section 5.04available, (i) copies of all proxy statementsreports (excluding, financial statements and reports that in any event, copies of press releases) which the Company Borrower sends to its stockholders stockholders, and (ii) copies of all regularregistration statements, periodic and special reports, and all registration statements relating to transactions requiring a vote of stockholders of the Company or filed reports on Form X-010-K, X-0 Form 10-Q or S-3 under the Securities Act of 1933Form 8-K (or, in each case, any successor form) and other material reports which the Company Borrower or any Subsidiary files with the Securities and Exchange Commission, SEC or any Governmental successor or analogous Government Authority which may be substituted therefor, (other than public offerings of securities under employee benefit plans or dividend reinvestment plans);
(f) concurrently with any national securities exchangedelivery of financial statements under sub-paragraph (a) above, or distributed the information relating to its shareholders, as the case may becontinued perfection of security interests in the Collateral required by Section 4.02 of the Security Agreement; and
(eg) promptly, from time to time, such other information regarding the operations, business affairs and financial condition (financial or otherwise) of the Company and Borrower or any of the Subsidiaries Subsidiaries, or compliance with the terms of any Loan Document, as each Bank through the Administrative Agent or any Lender may reasonably request; provided, however, that the Company shall not be obligated to disclose, or to permit any examination which will disclose, technical knowledge or confidential trade information, except where appropriate safeguards exist that prevent dissemination of such information in a manner detrimental to the Company's competitive position.
Appears in 1 contract
Financial Statements, Reports, etc. In the case of the CompanyBorrower, furnish directly to the Administrative Agent and for distribution to each of the BanksLender:
(a) within 120 105 days after the end of each fiscal year of the Company (being December 31 in each calendar year)Borrower, its Consolidated annual report on Form 10-K as filed with the SEC, including its consolidated balance sheets, Consolidated sheet and the related consolidated statements of income earnings and Consolidated statements of cash flows showing the Consolidated its consolidated financial condition of the Company and the Subsidiaries position as of the close end of such fiscal year and the consolidated results of its operations and the operations of the Subsidiaries during cash flows for such year, all the foregoing consolidated financial statements to be audited by Coopers & Xxxxxxx, independent public accountants, PricewaterhouseCoopers LLP or other independent registered public accountants acceptable to accounting firm of recognized national standing selected by the Required Banks Borrower and accompanied by an opinion of such accountant (which shall not be qualified in any material respect) accounting firm to the effect that such consolidated financial statements present fairly present in all material respects the Borrower’s financial condition position and results of operations of the Company and the Subsidiaries cash flows on a consolidated basis in accordance with GAAP;
(b) within 60 days after the end of each of the first three fiscal quarters of each fiscal yearyear of the Borrower, its quarterly report on Form 10-Q as filed with the SEC, including its unaudited Consolidated consolidated balance sheets, Consolidated sheet and related consolidated statements of income earnings and Consolidated statements of cash flows flows, showing the its consolidated financial condition and results of operations of the Company and the Subsidiaries on a consolidated basis position as of the end of each such fiscal quarter and the consolidated results of its operations and cash flows for such fiscal quarter and the then elapsed portion of the fiscal year, certified year (and each delivery of such statements shall be deemed a representation by a Financial Officer of the Company as presenting Borrower that such statements present fairly in all material respects the Borrower’s financial position and results of operations of the Company and such Subsidiaries and as having been prepared cash flows on a consolidated basis in accordance with GAAP (except for such changes therein as are approved by the independent accountants for the Company)GAAP, in each case subject to normal year-end audit adjustmentsadjustments and the absence of footnotes);
(c) concurrently with (aany delivery of financial statements under Section 6.03(a) and (b) aboveor 6.03(b), a certificate of a Financial Officer of the firm or person referred to therein (which certificate furnished by the independent accountants referred to in paragraph (a) above may be limited to the best of its knowledge and to accounting matters and may disclaim responsibility for legal interpretations) Borrower (i) certifying that no Default or Event of Default or Default has occurred, occurred or, if such a an Event of Default or Event of Default has occurred, specifying the nature and extent thereof and, in the case of the certificate furnished by a Financial Officer of the Company, specifying 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 6.05 and 6.06;
(d) promptly after the same become publicly available and to the extent not required to be furnished by any other provision of this Section 5.04, (i) copies of all proxy statements, financial statements and reports that the Company sends to its stockholders and (ii) copies of all regular, periodic and special reports, and all registration statements relating to transactions requiring a vote of stockholders of the Company or filed on Form X-0, X-0 or S-3 under the Securities Act of 1933, which the Company or any Subsidiary files with the Securities and Exchange Commission, or any Governmental Authority which may be substituted therefor, or with any national securities exchange, or distributed to its shareholders, as the case may be; and
(e) promptly, from time to time, such other information regarding the operations, business affairs and condition (financial or otherwise) of the Company and the Subsidiaries as each Bank through the Administrative Agent may reasonably request; provided, however, that the Company shall not be obligated to disclose, or to permit any examination which will disclose, technical knowledge or confidential trade information, except where appropriate safeguards exist that prevent dissemination of such information in a manner detrimental to the Company's competitive position.
Appears in 1 contract
Samples: 364 Day Revolving Credit Agreement (Zimmer Biomet Holdings, Inc.)
Financial Statements, Reports, etc. In the case of the Company, furnish directly The Borrower shall deliver or cause to be delivered to the Administrative Agent and to each of the BanksLender:
(a) within 120 days after the end of each fiscal year of the Company (being December 31 in each calendar year), its Consolidated balance sheets, Consolidated statements of income and Consolidated statements of cash flows showing the Consolidated financial condition of the Company and the Subsidiaries as of the close of such fiscal year and the results of its operations and the operations of the Subsidiaries during such year, all the foregoing consolidated financial statements to be audited by Coopers & Xxxxxxx, independent public accountants, or other independent public accountants acceptable to the Required Banks and accompanied by an opinion of such accountant (which shall not be qualified in any material respect) to the effect that such consolidated financial statements fairly present the financial condition and results of operations of the Company and the Subsidiaries on a consolidated basis in accordance with GAAP;
(b) within 60 Not later than 50 days after the end of each of the first three fiscal quarters of each fiscal yearFiscal Year, unaudited Consolidated a balance sheets, Consolidated statements sheet and a statement of income of the Borrower and its Consolidated statements Entities on a consolidated basis and a statement of cash flows showing flow of the Borrower and its Consolidated Entities on a consolidated basis for such calendar quarter and for the period beginning on the first day of such Fiscal Year and ending on the last day of such quarter (in sufficient detail to indicate the Borrower's and each Consolidated Entity's compliance with the financial covenants set forth in Section 7.1), together with statements in comparative form for the corresponding date or period in the preceding Fiscal Year as summarized in the Borrower's Form 10-Q for the corresponding period, and certified as to fairness, accuracy and completeness by the chief executive officer, chief financial officer or Treasurer of the Borrower.
(b) Not later than 100 days after the end of each Fiscal Year, financial statements (including a balance sheet, a statement of income, a statement of changes in shareholders' equity and a statement of cash flow) of the Borrower and its Consolidated Entities on a consolidated basis for such Fiscal Year (in sufficient detail to indicate the Borrower's and each Consolidated Entity's compliance with the financial covenants set forth in Section 7.1), together with statements in comparative form as of the end of and for the preceding Fiscal Year as summarized in the Borrower's Form 10-K for the corresponding period, and accompanied by an opinion of certified public accountants acceptable to the Agent, which opinion shall state in effect that such financial statements (A) were audited using generally accepted auditing standards, (B) were prepared in accordance with generally accepted accounting principles applied on a Consistent Basis, and (C) present fairly the financial condition and results of operations of the Company Borrower and the Subsidiaries on a consolidated basis as of the end of each such quarter and its Consolidated Entities for the then elapsed portion of the fiscal year, certified by a Financial Officer of the Company as presenting fairly the financial position and results of operations of the Company and such Subsidiaries and as having been prepared in accordance with GAAP (except for such changes therein as are approved by the independent accountants for the Company), in each case subject to normal year-end audit adjustments;periods covered.
(c) concurrently Together with the financial statements required by subsections (a) and (b) above, above a compliance certificate duly executed by the chief executive officer or chief financial officer or Treasurer of the firm or person referred to therein (which certificate furnished by the independent accountants referred to in paragraph (a) above may be limited to the best of its knowledge and to accounting matters and may disclaim responsibility for legal interpretations) (i) 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, Borrower in the case form of the certificate furnished by a Financial Officer of the Company, specifying any corrective action taken or proposed to be taken with respect thereto and Exhibit I (ii) setting forth computations in reasonable detail satisfactory to the Administrative Agent demonstrating compliance with the covenants contained in Section 6.05 and 6.06;"Compliance Certificate").
(d) promptly after Contemporaneously with the same become publicly available and distribution thereof to the extent not required to be furnished by any other provision of this Section 5.04, (i) copies of all proxy statements, financial statements and reports that the Company sends to its stockholders and (ii) copies of all regular, periodic and special reports, and all registration statements relating to transactions requiring a vote of stockholders of the Company or filed on Form X-0, X-0 or S-3 under the Securities Act of 1933, which the Company Borrower's or any Subsidiary files Consolidated Entity's stockholders or partners or the filing thereof with the Securities and Exchange Commission, or any Governmental Authority which may be substituted therefor, or with any national securities exchange, or distributed to its shareholders, as the case may be; and, copies of all statements, reports, notices and filings distributed by the Borrower or any Consolidated Entity to its stockholders or partners or filed with the Securities and Exchange Commission (including reports on SEC Forms 10-K, 10-Q and 8-K).
(e) promptlyPromptly after the Borrower knows or has reason to know of the occurrence of any "reportable event" under Section 4043 of ERISA applicable to the Borrower or any ERISA Affiliate, a certificate of the president or chief financial officer of the Borrower setting forth the details as to such "reportable event" and the action that the Borrower or the ERISA Affiliate has taken or will take with respect thereto, and promptly after the filing or receiving thereof, copies of all reports and notices that the Borrower and each Consolidated Entity files under ERISA with the Internal Revenue Service or the PBGC or the United States Department of Labor.
(f) Promptly after the Borrower or any of its Consolidated Entities becomes aware of the commencement thereof, notice of any investigation, action, suit or proceeding before any Governmental Authority involving the condemnation or taking under the power of eminent domain of any of its property or the revocation or suspension of any permit, license, certificate of need or other governmental requirement applicable to any Facility.
(g) Within 10 days of the receipt by the Borrower or any of its Consolidated Entities, copies of all material deficiency notices, compliance orders or adverse reports issued by any Governmental Authority or accreditation commission having jurisdiction over licensing, accreditation or operation of a Facility or by any Governmental Authority or private insurance company pursuant to a provider agreement, which, if not promptly complied with or cured, could result in the suspension or forfeiture of any license, certification or accreditation necessary in order for such Facility to carry on its business as then conducted or the termination of any material insurance or reimbursement program available to such Facility.
(h) Such other information regarding any Facility or the financial condition or operations of the Borrower or its Consolidated Entities as the Agent shall reasonably request from time to time or at any time, such other information regarding the operations, business affairs and condition (financial or otherwise) of the Company and the Subsidiaries as each Bank through the Administrative Agent may reasonably request; provided, however, that the Company shall not be obligated to disclose, or to permit any examination which will disclose, technical knowledge or confidential trade information, except where appropriate safeguards exist that prevent dissemination of such information in a manner detrimental to the Company's competitive position.
Appears in 1 contract
Financial Statements, Reports, etc. In the case of the CompanyBorrower and the Guarantors, furnish directly deliver to the Administrative Agent and to each of the BanksLenders:
(a) within 120 90 days after the end of each fiscal year of the Company (being December 31 in each calendar year), its Consolidated consolidated and consolidating balance sheets, Consolidated sheets and related statements of income and Consolidated statements of cash flows for the Domestic Entities and the Global Entities, showing the Consolidated financial condition of the Company such entities on a consolidated and the Subsidiaries consolidating basis as of the close of such fiscal year and the results of its their respective operations and the operations of the Subsidiaries during such year, all the foregoing consolidated financial statements of the Do mestic Entities and the Global Entities to be audited by Coopers & Xxxxxxx, independent public accountants, Deloitte and Touche LP or other independent public accountants acceptable to the Required Banks of recognized national standing and accompanied by an opinion of such accountant accountants (which shall not be qualified in any material respectrespect other than with respect to the Cases or, in the case of the Domestic Entities, a going concern qualification) , the consolidating financial statements to be subjected to the auditing procedures applied to the audit of consolidated financial statements and to be certified by a Financial Officer of the Parent or the Borrower to the effect that such consolidated financial statements fairly present the financial condition and results of operations of the Company Domestic Entities on a consolidated basis and the Subsidiaries Global Entities on a consolidated basis in accordance with GAAP;
(b) within 60 45 days after the end of each of the first three fiscal quarters of each fiscal yearquarters, unaudited Consolidated the consolidated and consolidating balance sheets, Consolidated sheets and related statements of income and Consolidated statements of cash flows of the Domestic Entities and the Global Entities, showing the financial condition of such entities on a consolidated and consolidating basis as of the close of such fiscal quarter and the results of their operations during such fiscal quarter and the then elapsed portion of the fiscal year, each certified by a Financial Officer of the Parent or the Borrower as fairly presenting the financial condition and results of operations of the Company Domestic Entities and the Subsidiaries Global Entities on a consolidated and consolidating basis in accordance with GAAP, subject to normal year-end audit adjustments and the absence of footnotes;
(c) commencing with the first fiscal month following the Closing Date, as of soon as practicable, but in no event later than 20 days after the end of each fiscal month of the Parent (unless such quarter monthly fiscal period ends at the end of a fiscal quarter, in which case the financial statements required to be delivered pursuant to this clause (c) may be delivered within 45 days after the end of such fiscal month) (i) monthly unaudited balance sheets of the Domestic Entities and the Global Entities and related statements of earnings and cash flows of such entities for the then elapsed portion of the prior fiscal yearmonth, each certified by a Financial Officer of the Company as presenting fairly Parent or the financial position Borrower and results (ii) a monthly report detailing professional fees and expenses that have been billed and paid or billed but unpaid to date, the accumulated “hold-back” of operations of the Company professional fees and such Subsidiaries expenses to date, material adverse events or changes (if any) and as having been prepared in accordance with GAAP material litigation (except for such changes therein as are approved by the independent accountants for the Companyif any), in each case subject to normal year-end audit adjustments;
(cd) commencing with the first fiscal month following the Closing Date, as soon as practicable, but in no event later than 20 days after the end of each fiscal month of the Parent, monthly financial projections of the Domestic Entities and the Foreign Entities in a form reasonably satisfactory to the Agent and the Borrower, each certified by a Financial Officer of the Parent or the Borrower;
(e) (i) concurrently with any delivery of financial statements under (a) and (b) above, a certificate of the firm Financial Officer of the Parent or person referred to therein the Borrower certifying such statements (which certificate furnished by the independent accountants referred to in paragraph (a) above may be limited to the best of its knowledge and to accounting matters and may disclaim responsibility for legal interpretations) (iA) certifying that no Event of Default or event which upon notice or lapse of time or both would constitute an Event of Default has occurred, or, if such a Default or an Event of Default or event has occurred, specifying the nature and extent thereof and, in the case of the certificate furnished by a Financial Officer of the Company, specifying and any corrective action taken or proposed to be taken with respect thereto and (iiB) setting forth computations in reasonable detail satisfactory to the Administrative Agent demonstrating compliance with the covenants contained in Section provisions of Sections 6.01, 6.03, 6.04, 6.05 and 6.06;
(d) promptly after the same become publicly available and to the extent not required to be furnished by any other provision of this Section 5.04, (i) copies of all proxy statements, financial statements and reports that the Company sends to its stockholders 6.10 and (ii) copies concurrently with any delivery of all regularfinancial statements under (a) above, periodic and special reports, and all registration statements relating to transactions requiring a vote of stockholders of the Company or filed on Form X-0, X-0 or S-3 under the Securities Act of 1933, certificate (which the Company or any Subsidiary files with the Securities and Exchange Commission, or any Governmental Authority which certificate may be substituted therefor, or with any national securities exchange, or distributed limited to its shareholders, as the case may be; and
(e) promptly, from time to time, such other information regarding the operations, business affairs accounting matters and condition (financial or otherwisedisclaim responsibility for legal interpretations) of the Company accountants auditing the consolidated financial statements delivered under (a) above certifying that, in the course of the regular audit of the business of the Parent and its Subsidiaries, such accountants have obtained no knowledge that an Event of Default has occurred and is continuing, or if, in the opinion of such accountants, an Event of Default has occurred and is continuing, specifying the nature thereof and all relevant facts with respect thereto;
(f) as soon as possible, and in any event when the Borrower’s and the Subsidiaries Guarantor’s statement of financial affairs and schedules of asset and liabilities are required to be filed with the Bankruptcy Court (but no later than 45 days after the Closing Date or such later date to which the Bankruptcy Court extends the filing thereof), a consolidated pro forma balance sheet of the Borrower’s and the Guarantors’ financial condition as each Bank through of the Administrative Agent may reasonably request; provided, however, that the Company shall not be obligated to disclose, or to permit any examination which will disclose, technical knowledge or confidential trade information, except where appropriate safeguards exist that prevent dissemination of such information in a manner detrimental to the Company's competitive position.Filing Date;
Appears in 1 contract
Financial Statements, Reports, etc. In the case of the CompanyBorrower, furnish directly to the Administrative Agent and for distribution to each of the BanksLender:
(a) within 120 105 days after the end of each fiscal year of the Company (being December 31 in each calendar year)Borrower, its Consolidated annual report on Form 10-K as filed with the SEC, including its consolidated balance sheets, Consolidated sheet and the related consolidated statements of income earnings and Consolidated statements of cash flows showing the Consolidated its consolidated financial condition of the Company and the Subsidiaries position as of the close end of such fiscal year and the consolidated results of its operations and the operations of the Subsidiaries during cash flows for such year, all the foregoing consolidated financial statements to be audited by Coopers & Xxxxxxx, independent public accountants, PricewaterhouseCoopers LLP or other independent registered public accountants acceptable to accounting firm of recognized national standing selected by the Required Banks Borrower and accompanied by an opinion of such accountant (which shall not be qualified in any material respect) accounting firm to the effect that such consolidated financial statements present fairly present in all material respects the Borrower’s financial condition position and results of operations of the Company and the Subsidiaries cash flows on a consolidated basis in accordance with GAAP;
(b) within 60 days after the end of each of the first three fiscal quarters of each fiscal yearyear of the Borrower, its quarterly report on Form 10-Q as filed with the SEC, including its unaudited Consolidated consolidated balance sheets, Consolidated sheet and related consolidated statements of income earnings and Consolidated statements of cash flows flows, showing the its consolidated financial condition and results of operations of the Company and the Subsidiaries on a consolidated basis position as of the end of each such fiscal quarter and the consolidated results of its operations and cash flows for such fiscal quarter and the then elapsed portion of the fiscal year, certified year (and each delivery of such statements shall be deemed a representation by a Financial Officer of the Company as presenting Borrower that such statements present fairly in all material respects the Borrower’s financial position and results of operations of the Company and such Subsidiaries and as having been prepared cash flows on a consolidated basis in accordance with GAAP (except for such changes therein as are approved by the independent accountants for the Company)GAAP, in each case subject to normal year-end audit adjustmentsadjustments and the absence of footnotes);
(c) concurrently with (aany delivery of financial statements under Section 8.03(a) and (b) aboveor 8.03(b), a certificate of a Financial Officer of the firm or person referred to therein (which certificate furnished by the independent accountants referred to in paragraph (a) above may be limited to the best of its knowledge and to accounting matters and may disclaim responsibility for legal interpretations) Borrower (i) certifying that no Default or Event of Default or Default has occurred, occurred or, if such a an Event of Default or Event of Default has occurred, specifying the nature and extent thereof and, in the case of the certificate furnished by a Financial Officer of the Company, specifying and any corrective action taken or proposed to be taken with respect thereto and (ii) setting forth computations demonstrating in reasonable detail satisfactory to calculation of the Administrative Agent demonstrating compliance with the covenants contained covenant set forth in Section 6.05 and 6.069.04 as of the last day of the period covered by such financial statements;
(d) promptly after the same become publicly available and to the extent not required to be furnished by any other provision of this Section 5.04available, (i) copies of all proxy statements, financial statements and reports that the Company sends to its stockholders and (ii) copies of all regular, periodic and special reports, and all registration statements relating to transactions requiring a vote of stockholders of the Company or filed on Form X-0, X-0 or S-3 under the Securities Act of 1933, which the Company or any Subsidiary files 8-K filed by it with the Securities and Exchange CommissionSEC, or any Governmental Authority which may be substituted thereforsucceeding to any of or all the functions of the SEC, or with any national securities exchange, or and copies of all reports distributed to its shareholders, as the case may be; and
(e) promptlypromptly upon request, from time (i) all documentation and other information that any Lender reasonably requests through the Administrative Agent in order to timecomply with obligations under applicable “know your customer” and anti-money laundering rules and regulations, including the USA PATRIOT Act and the Beneficial Ownership Regulation, and (ii) such other information regarding the operationsBorrower and its Subsidiaries, business affairs and condition (financial or otherwise) the compliance by the Borrower with the terms of the Company and the Subsidiaries Loan Documents, as each Bank any Lender shall reasonably request through the Administrative Agent (it being understood that, in the case of this clause (ii), the Borrower shall not be required to provide any information or documents which are subject to confidentiality provisions the nature of which prohibit such disclosure). Information required to be delivered pursuant to this Section 8.03 (other than Section 8.03(c) or 8.03(e)(i)) shall be deemed to have been delivered on the date on which the Borrower provides notice (reasonably identifying where the applicable disclosure may reasonably request; providedbe obtained) to the Administrative Agent that such information has been publicly posted on the Borrower’s website on the internet at xxx.xxxxxxxxxxxx.xxx, howeveror on the SEC’s website on the internet at xxx.xxx.xxx or at another website identified in such notice and accessible by the Lenders without charge. The Borrower hereby acknowledges that (a) the Administrative Agent and/or the Arrangers may, that the Company but shall not be obligated to, make available to disclosethe Lenders materials and/or information provided by or on behalf of the Borrower hereunder (collectively, the “Borrower Materials”) by posting the Borrower Materials on an Approved Electronic Platform and (b) certain of the Lenders (each, a “Public Lender”) may have personnel who do not wish to receive material non-public information with respect to the Borrower or its Subsidiaries, or the respective securities of any of the foregoing, and who may be engaged in investment and other market-related activities with respect to permit any examination which such Persons’ securities. The Borrower hereby agrees that it will disclose, technical knowledge or confidential trade information, except where appropriate safeguards exist use commercially reasonable efforts to identify that prevent dissemination portion of such information in a manner detrimental the Borrower Materials that may be distributed to the Company's competitive positionPublic Lenders and that (w) all Borrower Materials that are to be made available to Public Lenders shall be clearly and conspicuously marked “PUBLIC”, which, at a minimum, shall mean that the word “PUBLIC” shall appear prominently on the first page thereof; (x) by marking Borrower Materials “PUBLIC”, the Borrower shall be deemed to have authorized the Administrative Agent, the Arrangers and the Lenders to treat such Borrower Materials as not containing any material non-public information with respect to the Borrower, its Subsidiaries or the respective securities of any of the foregoing for purposes of United States Federal and state securities laws (provided that to the extent such Borrower Materials constitute Confidential Information, they shall be treated as set forth in Section 12.15); (y) all Borrower Materials marked “PUBLIC” are permitted to be made available through a portion of the Approved Electronic 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 Approved Electronic Platform not designated “Public Side Information.” Notwithstanding the foregoing, the Borrower shall be under no obligation to mark any Borrower Materials “PUBLIC.”
Appears in 1 contract
Samples: Five Year Revolving Credit Agreement (Zimmer Biomet Holdings, Inc.)
Financial Statements, Reports, etc. In the case of the CompanyTerex, furnish directly to the Administrative Agent and for distribution by the Administrative Agent to each of the BanksLender:
(a) within 120 90 days after the end of each fiscal year of the Company (being December 31 in each calendar year), its Consolidated consolidated and consolidating balance sheets, Consolidated sheets and related statements of income operations, stockholders' equity and Consolidated statements of cash flows showing the Consolidated financial condition of the Company Terex and the its consolidated Subsidiaries as of the close of such fiscal year and the results of its operations and the operations of the such Subsidiaries during such year, all the foregoing consolidated financial statements to be audited by Coopers & Xxxxxxx, independent public accountants, Price Waterhouse L.L.P. or other independent public accountants of recognized national standing or otherwise reasonably acceptable to the Required Banks Lenders and accompanied by an opinion of such accountant accountants (which shall not be qualified in any material respect) to the effect that such consolidated financial statements fairly present the financial condition and results of operations of the Company Terex and the its consolidated Subsidiaries on a consolidated basis in accordance with GAAPGAAP consistently applied;
(b) within 60 45 days after the end of each of the first three fiscal quarters of each fiscal year, unaudited Consolidated its consolidated and consolidating balance sheets, Consolidated sheets and related statements of income operations, stockholders' equity and Consolidated statements of cash flows showing the financial condition of Terex and results of operations of the Company and the its consolidated Subsidiaries on a consolidated basis as of the end close of each such fiscal quarter and for the results of its operations and the operations of such Subsidiaries during such fiscal quarter and the then elapsed portion of the fiscal year, all certified by a one of its Financial Officer of the Company Officers as fairly presenting fairly in all material respects the financial position condition and results of operations of the Company Terex and such its consolidated Subsidiaries and as having been prepared on a consolidated basis in accordance with GAAP (except for such changes therein as are approved by the independent accountants for the Company)consistently applied, in each case subject to normal year-end audit adjustments;
(c) concurrently with any delivery of financial statements under sub- paragraph (a) and or (b) above, a certificate of the accounting firm (unless at such time it is the practice and policy of such accounting firm not to deliver such certificates) or person referred to therein Financial Officer opining on or certifying such statements (which certificate certificate, when furnished by the independent accountants referred to in paragraph (a) above an accounting firm, may be limited to the best of its knowledge and to accounting matters and may disclaim responsibility for legal interpretations) (i) certifying that no Default or Event of Default or Default has occurred, occurred or, if such a an Event of Default or Event of Default has occurred, specifying the nature and extent thereof and, in the case of the certificate furnished by a Financial Officer of the Company, specifying and any corrective action taken or proposed to be taken with respect thereto thereto; and (ii) in the case of any such letter from such Financial Officer, setting forth computations in reasonable detail satisfactory to the Administrative Agent reasonably detailed calculations demonstrating compliance with the covenants contained in Section 6.05 Sections 6.10, 6.11, 6.12 and 6.066.13;
(d) promptly after the same become publicly available and to the extent not required to be furnished by any other provision of this Section 5.04available, (i) copies of all periodic and other reports, proxy statements, financial statements and reports that the Company sends to its stockholders and (ii) copies of all regular, periodic and special reports, and all registration statements relating to transactions requiring a vote of stockholders of the Company or other materials filed on Form X-0, X-0 or S-3 under the Securities Act of 1933, which the Company by Terex or any Subsidiary files with the Securities and Exchange Commission, or any Governmental Authority which may be substituted thereforsucceeding 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) as promptly as practicable, but in no event later than 10 Business Days after the last day of each fiscal year of Terex, a copy of the budget for its consolidated balance sheet and related statements of income and selected working capital and capital expenditure analyses for each quarter of the following fiscal year; and
(ef) promptly, from time to time, such other information regarding the operations, business affairs and financial condition (financial of Terex or otherwise) any Subsidiary, or compliance with the terms of the Company and the Subsidiaries any Loan Document, as each Bank through the Administrative Agent or any Lender may reasonably request; provided, however, that the Company shall not be obligated to disclose, or to permit any examination which will disclose, technical knowledge or confidential trade information, except where appropriate safeguards exist that prevent dissemination of such information in a manner detrimental to the Company's competitive position.
Appears in 1 contract
Samples: Credit Agreement (Terex Corp)
Financial Statements, Reports, etc. In the case of the Company, furnish directly Furnish to the Administrative Agent and to Agent, with copies for each of the BanksLenders:
(a) within 120 105 days after the end of each fiscal year Fiscal Year, (i) Consolidated balance sheets and Consolidated income statements showing the financial condition of Holdings and its subsidiaries as of the Company close of such Fiscal Year and the results of their operations during such year, (being December 31 ii) a Consolidated statement of shareholders' equity and a Consolidated statement of cash flow, as of the close of such Fiscal Year, comparing such financial condition and results of operations to such financial condition and results of operations for the comparable period during the immediately preceding Fiscal Year, all the foregoing financial statements to be audited by independent public accountants acceptable to the Administrative Agent (which report shall not contain any qualification except with respect to new accounting principles mandated by the Financial Accounting Standards Board) and to be in each calendar year)form and substance acceptable to the Administrative Agent, its Consolidated (iii) consolidating income statements by market place as of the close of such Fiscal Year, such consolidating income statements to be in form and substance acceptable to the Agents and (iv) consolidating balance sheets, Consolidated income statements of income and Consolidated statements of cash flows showing the Consolidated financial condition of the Company Holdings, Dental Service and the Subsidiaries DCA as of the close of such fiscal year Fiscal Year and the results of its such person's operations and the operations of the Subsidiaries during such year, all comparing such financial condition and results of operations to such financial condition and results of operations for the foregoing consolidated financial statements comparable period during the immediately preceding Fiscal Year, in the case of clauses (iii) and (iv), prepared and certified by the Financial Officer of the Borrowers as having been prepared in accordance with GAAP and, with respect to be audited by Coopers & Xxxxxxxclause (iv), independent public accountants, or other independent public accountants acceptable to the Required Banks and accompanied by an opinion of such accountant (which shall not be qualified in any material respect) to the effect that such consolidated financial statements as presenting fairly present the financial condition and results of operations of the Company and the Subsidiaries on a consolidated basis in accordance with GAAPapplicable person;
(b) within 60 45 days after the end of each fiscal quarter of the first three fiscal quarters of each fiscal yearHoldings, (i) unaudited Consolidated balance sheets, Consolidated statements of income sheets and Consolidated income statements of cash flows showing the financial condition and results of operations of the Company Holdings and the Subsidiaries on a consolidated basis its subsidiaries as of the end of each such quarter, (ii) a Consolidated statement of shareholders' equity, (iii) a Consolidated statement of cash flow, in each case for the fiscal quarter just ended and for the then elapsed portion period commencing at the end of the immediately preceding Fiscal Year and ending with the last day of such quarter, and comparing such financial condition and results of operations to the projections for the applicable period provided under paragraph (g) below and to the results for the comparable period during the immediately preceding Fiscal Year, (iv) consolidating income statements by market place as of the end of each such fiscal yearquarter, such consolidating income statements to be in form and substance acceptable to the Agents and shall reconcile with the Consolidated income statements delivered pursuant to clause (i) of this paragraph (b) and (v) "same practice" performance comparative information in form and substance satisfactory to the Administrative Agent;
(c) within (x) 30 days after the end of each month other than for any month coinciding with the end of a fiscal quarter and (y) within 45 days after the end of each month coinciding with the end of a fiscal quarter, (i) unaudited Consolidated balance sheets and income statements showing the financial condition and results of operations of Holdings and its subsidiaries as of the end of each such month, (ii) a Consolidated statement of shareholders' equity, (iii) a Consolidated statement of cash flow, in each case for the month just ended and for the period commencing at the end of the immediately preceding Fiscal Year and ending with the last day of such month, and comparing such financial condition and results of operations to the projections for the applicable period provided under paragraph (g) below and to the results for the comparable period during the immediately preceding Fiscal Year and (iv) income statements by market place as of the end of each such month, such financial statements to be in form and substance satisfactory to the Agents, in each case prepared and certified by a the Financial Officer of the Company Borrowers as presenting fairly the financial position condition and results of operations of the Company Holdings and such Subsidiaries its subsidiaries and as having been prepared in accordance with GAAP (except for such changes therein as are approved by the independent accountants for the Company)GAAP, in each case subject to the absence of footnotes and normal year-end audit adjustments;
(cd) promptly after the same become publicly available, copies of such registration statements, annual, periodic and other reports, and such proxy statements and other information, if any, as shall be filed by the Borrowers or any of their subsidiaries with the Securities and Exchange Commission pursuant to the requirements of the Securities Act of 1933 or the Securities Exchange Act of 1934;
(e) concurrently with any delivery under (a) and or (b) above, (i) a certificate of the firm or person referred to therein (Financial Officer of each of the Borrowers, which certificate furnished by the independent accountants referred to in paragraph (a) above may be limited shall certify that to the best of its his or her knowledge and to accounting matters and may disclaim responsibility for legal interpretations) (i) certifying that no Default or Event of Default has occurredoccurred (including (i) calculations demonstrating compliance, oras of the dates of the financial statements being furnished, with the covenants set forth in Sections 7.07, 7.08, 7.09, 7.10 and 7.11 hereof and (ii) appropriate schedules as may be requested by the Administrative Agent in support of such calculations, (such schedules to be in substantially the form of EXHIBIT L annexed hereto) and, if such a Default or Event of Default has occurred, specifying the nature and extent thereof and, in the case of the certificate furnished by a Financial Officer of the Company, specifying and any corrective action taken or proposed to be taken with respect thereto and, 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 shall in addition certify that in the course of preparing the audit and the certificate referred to herein, such accountants have not become aware of the occurrence of any other Default or Event of Default and, if such a Default or Event of Default has occurred, specifying the nature thereof; PROVIDED, HOWEVER, that any certificate delivered concurrently with (a) above shall be signed by the Financial Officer of a Borrower and (ii) setting forth computations an update to the organizational chart for Holdings and its subsidiaries, evidencing any acquisitions made during the applicable fiscal quarter;
(f) concurrently with any delivery under (a) above, any related management letter prepared by the independent public accountants who reported on the financial statements delivered under (a) above, with respect to the internal audit and financial controls of any of the Borrowers and their subsidiaries;
(g) within 30 days after the beginning of each Fiscal Year, a summary of business plans and financial operation projections (including, without limitation, with respect to Capital Expenditures) for the Borrowers and their respective subsidiaries for such Fiscal Year (including monthly balance sheets, statements of income and of cash flow) and annual projections through the Final Maturity Date prepared by management and in reasonable form, substance and detail (including, without limitation, principal assumptions) satisfactory to the Administrative Agent demonstrating compliance with the covenants contained in Section 6.05 and 6.06Agent;
(dh) promptly after the same become publicly available as soon as practicable, copies of all reports, forms, filings, loan documents and financial information submitted to governmental agencies and/or its shareholders.
(i) immediately upon becoming aware thereof, notice to the extent Administrative Agent of the breach by any party of any material agreement with any of the Borrowers or of any "Default" or "Event of Default" under the 1999 Credit Agreement;
(j) within 30 days of the closing of any Permitted Acquisition, copies of all documents related thereto and which were not previously required to be furnished by any other provision delivered to the Administrative Agent pursuant to the terms of this Section 5.04, (i) copies of all proxy statements, financial statements and reports that the Company sends to its stockholders and (ii) copies of all regular, periodic and special reports, and all registration statements relating to transactions requiring a vote of stockholders of the Company or filed on Form X-0, X-0 or S-3 under the Securities Act of 1933, which the Company or any Subsidiary files with the Securities and Exchange Commission, or any Governmental Authority which may be substituted therefor, or with any national securities exchange, or distributed to its shareholders, as the case may beAgreement; and
(ek) promptly, from time to time, such other information regarding the operations, business affairs and condition (financial or otherwise) of the Company and the Subsidiaries as each Bank through the Administrative Agent or any Lender may reasonably request; provided, however, that the Company shall not be obligated to disclose, or to permit any examination which will disclose, technical knowledge or confidential trade information, except where appropriate safeguards exist that prevent dissemination of such information in a manner detrimental to the Company's competitive position.
Appears in 1 contract
Samples: Credit Agreement (Interdent Inc)
Financial Statements, Reports, etc. In the case of the CompanyHoldings, furnish directly to the Administrative Agent and Agent, which shall furnish to each of the BanksLender:
(a) within 120 90 days after the end of each fiscal year of the Company (being December 31 in each calendar year), its Consolidated balance sheets, Consolidated consolidated statements of income and Consolidated comprehensive income, consolidated statements of financial position and related consolidated statements of changes in equity and cash flows showing the Consolidated financial condition of the Company Holdings and the Subsidiaries its consolidated subsidiaries as of the close of such fiscal year and the results of its operations and the operations of the Subsidiaries Holdings and such subsidiaries during such year, together with comparative figures for the immediately preceding fiscal year, all the foregoing consolidated financial statements to be audited by Coopers & Xxxxxxx, independent public accountants, PricewaterhouseCoopers or other independent public accountants acceptable to the Required Banks of recognized national standing and accompanied by an opinion of such accountant accountants (which opinion shall not be qualified without a “going concern” explanatory note or any similar qualification or like exception and without any qualification or like exception as to the scope of such audit (other than any such explanatory note, qualification or like exception that is expressed solely with respect to, or resulting solely from, (i) a maturity date in respect of any material respectTerm Loans or Revolving Credit Commitments or Revolving Loans that is scheduled to occur within one year from the date of delivery of such opinion or (ii) any inability or potential inability to satisfy the covenant set forth in Section 6.12(a) of this Agreement 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 condition and results of operations of the Company Holdings and the Subsidiaries its consolidated subsidiaries on a consolidated basis in accordance with GAAPGAAP consistently applied, together with a customary “management discussion and analysis” section;
(b) within 60 45 days after the end of each of the first three fiscal quarters of each fiscal year, unaudited Consolidated balance sheets, Consolidated its consolidated statements of income and Consolidated comprehensive income, consolidated statements of financial position and related consolidated statements of changes in equity and cash flows showing the financial condition of Holdings and results of operations of the Company and the Subsidiaries on a its consolidated basis subsidiaries as of the end close of each such fiscal quarter and for the results of its operations and the operations of Holdings and such subsidiaries during such fiscal quarter and the then elapsed portion of the fiscal year, and comparative figures for the same periods in the immediately preceding fiscal year, all certified by a its Financial Officer of the Company as fairly presenting fairly in all material respects the financial position condition and results of operations of the Company Holdings and such Subsidiaries and as having been prepared its consolidated subsidiaries on a consolidated basis in accordance with GAAP (except for such changes therein as are approved by the independent accountants for the Company)consistently applied, in each case subject to normal year-end audit adjustmentsadjustments and the lack of notes thereto, together with a customary “management discussion and analysis” section;
(c) concurrently with any delivery of financial statements under paragraph (a) and or (b) above, a certificate of its Financial Officer in the firm or person referred to therein (which certificate furnished by the independent accountants referred to in paragraph (a) above may be limited to the best form of its knowledge and to accounting matters and may disclaim responsibility for legal interpretations) Exhibit K (i) certifying that no Default or Event of Default or Default has occurred, occurred or, if such a an Event of Default or Event of Default has occurred, specifying the nature and extent thereof and, in the case of the certificate furnished by a Financial Officer of the Company, specifying and any corrective action taken or proposed to be taken with respect thereto and thereto, (ii) setting forth computations in reasonable detail satisfactory to the Administrative Agent demonstrating compliance (which shall include a reasonably detailed calculation of Consolidated EBITDA for the relevant period) of the Total Secured Leverage Ratio, the Total Leverage Ratio and, solely in the case of any such certificate delivered with the covenants contained financial statements under paragraph (a) above, the Senior Secured First Lien Leverage Ratio, in Section 6.05 and 6.06each case on the last day of the relevant period;
(d) promptly within 90 days after the same become publicly available beginning of each fiscal year of Holdings, a detailed consolidated budget for such fiscal year (including a projected consolidated balance sheet and to the extent not required to be furnished by any other provision related statements of this Section 5.04, (i) copies of all proxy statements, financial statements projected operations and reports that the Company sends to its stockholders and (ii) copies of all regular, periodic and special reports, and all registration statements relating to transactions requiring a vote of stockholders cash flows as of the Company or filed on Form X-0end of and for such fiscal year and setting forth the assumptions used for purposes of preparing such budget) and, X-0 or S-3 under the Securities Act of 1933promptly when available, which the Company or any Subsidiary files with the Securities and Exchange Commission, or any Governmental Authority which may be substituted therefor, or with any national securities exchange, or distributed to its shareholders, as the case may be; and
(e) promptly, from time to time, such other information regarding the operations, business affairs and condition (financial or otherwise) of the Company and the Subsidiaries as each Bank through the Administrative Agent may reasonably request; provided, however, that the Company shall not be obligated to disclose, or to permit any examination which will disclose, technical knowledge or confidential trade information, except where appropriate safeguards exist that prevent dissemination significant revisions of such information in a manner detrimental to the Company's competitive position.budget;
Appears in 1 contract
Financial Statements, Reports, etc. In the case of the CompanyBorrower, furnish directly to the Administrative Agent and Agent, which will distribute to each of the BanksLender:
(a) within 120 90 days after the end of each fiscal year of the Company (being December 31 in each calendar year), its Consolidated consolidated balance sheets, Consolidated sheet and related statements of income income, stockholders’ equity and Consolidated statements of cash flows showing the Consolidated financial condition of the Company Borrower and the its consolidated Subsidiaries as of the close of such fiscal year and the results of its operations and the operations of the such Subsidiaries during such year, together with comparative figures for the immediately preceding fiscal year, all the foregoing consolidated financial statements to be audited by Coopers & Xxxxxxx, independent public accountants, KPMG LLP or other independent public accountants acceptable to the Required Banks of recognized national standing and accompanied by an opinion of such accountant accountants (which shall not be qualified in subject to any material respect“going concern” or like qualification or exception or any qualification or exception as to the scope of such audit) to the effect that such consolidated financial statements fairly present the financial condition and results of operations of the Company Borrower and the its consolidated Subsidiaries on a consolidated basis in accordance with GAAPGAAP consistently applied;
(b) within 60 45 days after the end of each of the first three fiscal quarters of each fiscal year, unaudited Consolidated its consolidated balance sheets, Consolidated sheet and related statements of income and Consolidated statements of cash flows showing the financial condition of the Borrower and its consolidated Subsidiaries as of the close of such fiscal quarter and the results of its operations and the operations of such Subsidiaries during such fiscal quarter and the then elapsed portion of the fiscal year, and comparative figures for the same periods in the immediately preceding fiscal year, all certified by one of its Responsible Officers as fairly presenting the financial condition and results of operations of the Company Borrower and the its consolidated Subsidiaries on a consolidated basis as of the end of each such quarter and for the then elapsed portion of the fiscal year, certified by a Financial Officer of the Company as presenting fairly the financial position and results of operations of the Company and such Subsidiaries and as having been prepared in accordance with GAAP (except for such changes therein as are approved by the independent accountants for the Company)consistently applied, in each case subject to normal year-end audit adjustments;
(c) concurrently with any delivery of consolidated financial statements under clause (a) and or (b) above, the related unaudited consolidating financial statements reflecting the adjustments necessary to eliminate the accounts of Unrestricted Subsidiaries (if any) from such consolidated financial statements;
(d) concurrently with any delivery of financial statements under paragraph (a) or (b) above, a certificate of the firm or person referred to therein (which certificate furnished by the independent accountants referred to in paragraph (a) above may be limited to the best of its knowledge and to accounting matters and may disclaim responsibility for legal interpretations) (i) a Responsible Officer certifying that no Default or Event of Default or Default has occurred, occurred or, if such a an Event of Default or Event of Default has occurred, specifying the nature and extent thereof and, in the case of the certificate furnished by a Financial Officer of the Company, specifying and any corrective action taken or proposed to be taken with respect thereto and (ii) setting forth computations and, in reasonable detail satisfactory to the Administrative Agent demonstrating compliance case of a certificate delivered with the covenants contained in Section 6.05 and 6.06financial statements required by paragraph (a) above, accompanied by the Borrower’s calculation of Excess Cash Flow for the applicable fiscal year;
(de) promptly after the same become publicly available and to the extent not required to be furnished by any other provision of this Section 5.04available, (i) copies of all periodic and other reports, proxy statements, financial statements and reports that other materials filed by the Company sends to its stockholders and (ii) copies of all regular, periodic and special reports, and all registration statements relating to transactions requiring a vote of stockholders of the Company or filed on Form X-0, X-0 or S-3 under the Securities Act of 1933, which the Company Borrower or any Subsidiary files with the Securities and Exchange Commission, or any Governmental Authority which may be substituted thereforsucceeding 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;
(f) promptly after the receipt thereof by the Borrower or any of the Subsidiaries, a copy of any “management letter” received in final form by any such person from its certified public accountants;
(g) 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
(eh) promptly, from time to time, such other information regarding the operations, business affairs and financial condition (financial or otherwise) of the Company and Borrower or any Subsidiary, or compliance with the Subsidiaries terms of any Loan Document, as each Bank through the Administrative Agent or any Lender may reasonably request; provided. Documents required to be delivered pursuant to Section 5.04(a) or (b) (to the extent any such documents are included in materials otherwise filed with the SEC) may be delivered electronically and if so delivered, however, that shall be deemed to have been delivered on the Company shall not be obligated to disclosedate (i) on which the Borrower posts such documents, or provides a link thereto on the Borrower’s website on the Internet at the website address wxx.xxxxxxx.xxx; or (ii) on which such documents are posted on the Borrower’s behalf on IntraLinks/IntraAgency or another relevant website, if any, to permit which each Lender and the Administrative Agent have access (whether a commercial, third-party website or whether sponsored by the Administrative Agent); provided that: (x) at the request of the Administrative Agent, the Borrower shall deliver paper copies of any examination such documents to the Administrative Agent and (y) the Borrower shall notify (which will disclosemay 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., technical knowledge or confidential trade information, except where appropriate safeguards exist that prevent dissemination soft copies) of such information documents. The Administrative Agent shall have no obligation to request the delivery of or to maintain copies of the documents referred to above, and in a manner detrimental any event shall have no responsibility to monitor compliance by the Company's competitive positionBorrower 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.
Appears in 1 contract
Financial Statements, Reports, etc. In the case of the CompanyHoldings, furnish directly to the Administrative Agent and Agent, which shall furnish to each of the BanksLender:
(a) within 120 days after the end of each fiscal year of the Company (being December 31 in each calendar year), its Consolidated consolidated balance sheets, Consolidated sheet and related statements of income income, stockholders’ equity and Consolidated statements of cash flows showing the Consolidated financial condition of the Company Holdings and the Subsidiaries its consolidated subsidiaries as of the close of such fiscal year and the results of its operations and the operations of the Subsidiaries such subsidiaries during such year, together with comparative figures for the immediately preceding fiscal year, all the foregoing consolidated financial statements to be audited by Coopers & Xxxxxxx, independent public accountants, Xxxxx Xxxxxxxx LLP or other independent public accountants acceptable to the Required Banks of recognized national standing and accompanied by an opinion of such accountant accountants (which opinion shall not be qualified in without a “going concern” explanatory note or any material respectsimilar qualification or exception and without any qualification or exception as to the scope of such audit) to the effect that such consolidated financial statements fairly present in all material respects the financial condition and results of operations of the Company Holdings and the Subsidiaries its consolidated subsidiaries on a consolidated basis in accordance with GAAPGAAP consistently applied, together with a “management’s discussion and analysis of financial condition and results of operations” discussion;
(b) within 60 days after the end of each of the first three fiscal quarters Fiscal Quarters of each fiscal year, unaudited Consolidated its consolidated balance sheets, Consolidated sheet and related statements of income income, stockholders’ equity and Consolidated statements of cash flows showing the financial condition of Holdings and results of operations of the Company and the Subsidiaries on a its consolidated basis subsidiaries as of the end close of each such quarter Fiscal Quarter and for the results of its operations and the operations of such subsidiaries during such Fiscal Quarter and the then elapsed portion of the fiscal year, and comparative figures for the same periods in the immediately preceding fiscal year, all certified by a one of its Financial Officer of the Company Officers as fairly presenting fairly in all material respects the financial position condition and results of operations of the Company Holdings and such Subsidiaries and as having been prepared its consolidated subsidiaries on a consolidated basis in accordance with GAAP (except for such changes therein as are approved by the independent accountants for the Company)consistently applied, in each case subject to normal year-end audit adjustmentsadjustments and the absence of footnotes, together with a “management’s discussion and analysis of financial condition and results of operations” discussion;
(c) concurrently with any delivery of financial statements under paragraph (a) and ), or (b) above, a certificate of a Financial Officer in the firm or person referred to therein (which certificate furnished by the independent accountants referred to in paragraph (a) above may be limited to the best form of its knowledge and to accounting matters and may disclaim responsibility for legal interpretations) Exhibit H (i) certifying that no Default or Event of Default or Default has occurred, occurred or, if such a an Event of Default or Event of Default has occurred, specifying the nature and extent thereof and, in the case of the certificate furnished by a Financial Officer of the Company, specifying 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 6.05 Sections 6.10, 6.11 and 6.066.12 and, in the case of a certificate delivered with the financial statements required by paragraph (a) above, setting forth Holdings’ calculation of Excess Cash Flow;
(d) 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 Sections 6.10, 6.11 or 6.12 or, if such an Event of Default or Default has occurred, specifying the extent thereof in reasonable detail;
(e) within 30 days after the beginning of each fiscal year of Holdings, 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, it being understood that such budget constitutes Private Lender Information (as such term is defined in the Engagement Letter) and that the Loan Parties do not intend to make such budget, which could be considered material with respect to the Loan Parties for purposes of United States Federal and state securities laws, publicly available;
(f) promptly after the same become publicly available and to the extent not required to be furnished by any other provision of this Section 5.04available, (i) copies of all periodic and other reports, proxy statements, financial statements and reports that other materials filed by Holdings, the Company sends to its stockholders and (ii) copies of all regular, periodic and special reports, and all registration statements relating to transactions requiring a vote of stockholders of the Company or filed on Form X-0, X-0 or S-3 under the Securities Act of 1933, which the Company Borrower or any Subsidiary files with the Securities and Exchange Commission, or any Governmental Authority which may be substituted thereforsucceeding 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 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
(ei) promptly, from time to time, such other information regarding the operations, business affairs and financial condition (financial of Holdings, the Borrower or otherwise) any Subsidiary, or compliance with the terms of the Company and the Subsidiaries any Loan Document, as each Bank through the Administrative Agent or any Lender may reasonably request; provided. The Borrower hereby acknowledges and agrees that all financial statements and certificates furnished pursuant to paragraphs (a), however(b), that (c) and (d) above are hereby deemed to be Borrower Materials suitable for distribution, and to be made available, to Public Lenders as contemplated by the Company shall not fourth paragraph of Section 9.01 and may be obligated to disclose, or to permit any examination which will disclose, technical knowledge or confidential trade information, except where appropriate safeguards exist that prevent dissemination of treated by the Administrative Agent and the Lenders as if the same had been marked “PUBLIC” in accordance with such information in a manner detrimental to the Company's competitive positionparagraph.
Appears in 1 contract
Financial Statements, Reports, etc. In Until the case consummation of an underwritten public offering of the Company, furnish directly 's Common Stock conducted by a nationally recognized reputable underwriter that results in net proceeds to the Administrative Agent Company of at least $30 million and at a price per share of at least $7.00 (as adjusted for stock splits, combinations and the like) (a "Qualified Public Offering"), the Company shall furnish to each of the BanksPurchaser and Additional Purchaser that purchased hereunder and which continues to hold at least 666,667 Purchased Shares:
(a) within 120 ninety (90) days after the end of each fiscal year of the Company (being December 31 in each calendar year), its Consolidated a consolidated balance sheets, Consolidated statements of income and Consolidated statements of cash flows showing the Consolidated financial condition sheet of the Company and the Subsidiaries its subsidiaries, if any, as of the close end of such fiscal year and the results related consolidated statements of its operations income, stockholders' equity and cash flows for the operations fiscal year then ended, prepared in accordance with generally accepted accounting principles and certified by a firm of the Subsidiaries during such year, all the foregoing consolidated financial statements to be audited by Coopers & Xxxxxxx, independent public accountants, or other independent public accountants acceptable to of recognized national standing selected by the Required Banks and accompanied by an opinion Board of such accountant (which shall not be qualified in any material respect) to the effect that such consolidated financial statements fairly present the financial condition and results of operations Directors of the Company and the Subsidiaries on a consolidated basis in accordance with GAAPCompany;
(b) within 60 forty-five (45) days after the end of each of the first three fiscal quarters of in each fiscal year, unaudited Consolidated a consolidated balance sheets, Consolidated statements of income and Consolidated statements of cash flows showing the financial condition and results of operations sheet of the Company and its subsidiaries, if any, and the Subsidiaries on a related consolidated basis as statements of the end of each such quarter income, stockholders' equity and for the then elapsed portion of the fiscal yearcash flows, certified by a Financial Officer of the Company as presenting fairly the financial position and results of operations of the Company and such Subsidiaries and as having been unaudited but prepared in accordance with GAAP (except for such changes therein as are approved generally accepted accounting principles and certified by the independent accountants for the Company), in each case subject to normal year-end audit adjustments;
(c) concurrently with (a) and (b) above, a certificate of the firm or person referred to therein (which certificate furnished by the independent accountants referred to in paragraph (a) above may be limited to the best of its knowledge and to accounting matters and may disclaim responsibility for legal interpretations) (i) 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, in the case of the certificate furnished by a Chief Financial Officer of the Company, specifying any corrective action taken or proposed such consolidated balance sheet to be taken with respect thereto as of the end of such quarter and (ii) setting forth computations in reasonable detail satisfactory such consolidated statements of income, stockholders' equity and cash flows to be for such quarter and for the period from the beginning of the fiscal year to the Administrative Agent demonstrating compliance end of such quarter, in each case with comparative statements for the covenants contained prior fiscal year;
(c) at the time of delivery of each annual financial statement pursuant to Section 5.1(a), a certificate executed by the Chief Financial Officer of the Company stating that such officer has caused this Agreement and the Series A, Series B and Series C Convertible Preferred Stock to be reviewed and has no knowledge of any default by the Company in Section 6.05 the performance or observance of any of the provisions of this Agreement or the Series A, Series B or Series C Convertible Preferred Stock or, if such officer has such knowledge, specifying such default and 6.06the nature thereof;
(d) promptly following receipt by the Company, each accountants management letter and other written report submitted to the Company by its independent public accountants in connection with an annual or interim audit of the books of the Company or any of its subsidiaries;
(e) promptly after the same become publicly available and to Company learns of the extent not required to be furnished by any other provision of this Section 5.04commencement thereof, (i) copies notice of all proxy statementsactions, suits, claims, proceedings, investigations and inquiries of the type described in Section 2.7 that could materially adversely affect the Company or any of its subsidiaries, if any; and
(f) promptly upon sending, making available or filing the same, all reports and financial statements and reports that the Company sends or makes available to its stockholders and (ii) copies of all regular, periodic and special reports, and all registration statements relating to transactions requiring a vote of stockholders of the Company or filed on Form X-0, X-0 or S-3 under the Securities Act of 1933, which the Company or any Subsidiary files with the Securities and Exchange Commission, or any Governmental Authority which may be substituted therefor, or with any national securities exchange, or distributed to its shareholders, as the case may be; and
(e) promptly, from time to time, such other information regarding the operations, business affairs and condition (financial or otherwise) of the Company and the Subsidiaries as each Bank through the Administrative Agent may reasonably request; provided, however, that the Company shall not be obligated to disclose, or to permit any examination which will disclose, technical knowledge or confidential trade information, except where appropriate safeguards exist that prevent dissemination of such information in a manner detrimental to the Company's competitive position.
Appears in 1 contract
Samples: Series C Convertible Preferred Stock Purchase Agreement (Starmedia Network Inc)
Financial Statements, Reports, etc. In the case of the Companyeach Borrower, furnish directly to the Administrative Agent and (which shall promptly furnish to each of the Banks:Lender):
(a) within 120 95 days after the end of each fiscal year of the Company (being December 31 in each calendar year), its Consolidated consolidated balance sheets, Consolidated sheets and related statements of income earnings and Consolidated statements of cash flows flows, together with the notes thereto, showing the Consolidated financial condition position of the Company such Borrower and the its consolidated Subsidiaries as of the close of such fiscal year and the results of its their operations and the operations of the Subsidiaries such subsidiaries during such year, all the foregoing consolidated financial statements to be audited by Coopers & Xxxxxxx, independent public accountants, KPMG LLP or other independent public accountants of recognized national standing acceptable to the Required Banks Lenders and accompanied by an opinion of such accountant accountants (which shall not be qualified in any material respect) to the effect that such consolidated financial statements fairly present the financial condition position and results of operations of the Company each such Borrower and the its consolidated Subsidiaries on a consolidated basis in accordance with GAAPGAAP consistently applied, except as therein noted;
(b) within 60 50 days after the end of each of the first three fiscal quarters of each fiscal year, unaudited Consolidated its consolidated balance sheets, Consolidated sheets and related statements of income and Consolidated earnings and, with respect to Weyerhaeuser, statements of cash flows flows, showing the financial condition position of Weyerhaeuser and results of operations of the Company and the its consolidated Subsidiaries on a consolidated basis as of the end close of each such fiscal quarter and for the results of its operations and the operations of such consolidated Subsidiaries during such fiscal quarter and the then elapsed portion of the fiscal year, all certified (in the form of Exhibits D-1 and D-2, with respect to Weyerhaeuser and WRECO, respectively) by a one of its Financial Officer of the Company Officers as fairly presenting fairly the financial position and results of operations of the Company each such Borrower and such its consolidated Subsidiaries and as having been prepared on a consolidated basis in accordance with GAAP (consistently applied, except for such changes as therein as are approved by the independent accountants for the Company)noted, in each case subject to normal appropriate year-end audit adjustments;
(c) concurrently with any delivery of financial statements under (a) and or (b) above, a certificate (in the form of Exhibits D-3 and D-4, with respect to Weyerhaeuser and WRECO, respectively) of the accounting firm or person referred to therein Financial Officer of such Borrower opining on or certifying such statements (which certificate certificate, when furnished by the independent accountants referred to in paragraph (a) above an accounting firm, may be limited to the best of its knowledge and to accounting matters and may disclaim responsibility for legal interpretations) (i) certifying that no Default or Event of Default or Default has occurred, occurred or, if such a an Event of Default or Event of Default has occurred, specifying the nature and extent thereof and, in the case of the certificate furnished by a Financial Officer of the Company, specifying and any corrective action taken or proposed to be taken with respect thereto and thereto, (ii) in the case of Weyerhaeuser setting forth computations in reasonable detail satisfactory to the Administrative Agent demonstrating compliance with the covenants contained in Section 6.05 Sections 6.01(d) and 6.066.01(e) and (iii) including a reconciliation setting forth adjustments made to such financial statements in order to make the calculations set forth in clause (ii) above;
(d) promptly after the same become publicly available and to the extent not required to be furnished by any other provision of this Section 5.04available, (i) copies of all periodic and other reports, proxy statements, financial statements and reports that the Company sends to its stockholders and (ii) copies of all regular, periodic and special reports, and all registration statements relating to transactions requiring a vote of stockholders of the Company or other materials filed on Form X-0, X-0 or S-3 under the Securities Act of 1933, which the Company by it or any Subsidiary files of its Subsidiaries with the Securities and Exchange Commission, or any Governmental Authority which may be substituted thereforSEC, or with any national securities exchange, or distributed to its shareholders, as the case may be; and;
(e) as soon as practicable, copies of such further financial statements and reports as such Borrower shall send to banks with which it has lines of credit, and all such financial statements and reports as such Borrower shall send to its shareholders (unless all of the outstanding shares of capital stock of such Borrower are held by one Person);
(f) promptly, from time to time, such other information regarding the operations, business affairs and financial condition of such Borrower or any of its Subsidiaries, or compliance with the terms of any Loan Document, as the Administrative Agent, any Swing Line Bank, any Fronting Bank or any Lender may reasonably request (financial it being understood that neither Borrower shall be required to provide any information or otherwisedocuments which are subject to confidentiality provisions the nature of which prohibit such disclosure);
(g) promptly, and in any event within 2 days, upon becoming aware thereof, notice of any proposed or actual down-grade, suspension or withdrawal of the Company rating provided by S&P or Moody's to Weyerhaeuser in respect of its Senior Unsecured Long-Terx Xxxx; and
(h) information required to be delivered pursuant to paragraphs (a), (b), (d) and (e) shall be deemed to have been delivered on the Subsidiaries as each Bank through date on which Weyerhaeuser provides notice to the Administrative Agent may reasonably request; provided, however, that the Company shall not be obligated to disclose, or to permit any examination which will disclose, technical knowledge or confidential trade information, except where appropriate safeguards exist that prevent dissemination of such information has been posted on Weyerhaeuser's website on the internet at the website address listed on the signature pages thereof, at www.sec.gov or at another website identified in a manner detrimental such notice and accxxxxxxx xx the Lenders without charge; provided that Weyerhaeuser shall deliver paper copies of the reports and financial statements referred to in paragraphs (a), (b), (d) and (e) of this Section 5.04 to the Company's competitive positionAdministrative Agent, any Swing Line Bank, any Fronting Bank or any Lender who requests Weyerhaeuser to deliver such paper copies until written notice to cease delivering paper copies is given by such Administrative Agent, Swing Line Bank, Fronting Bank or Lender to Weyerhaeuser.
Appears in 1 contract
Financial Statements, Reports, etc. In the case of the Company, furnish directly Furnish to the Administrative Agent and to each of the BanksLender:
(a) within 120 90 days after the end of each fiscal year of year, the Company (being December 31 in each calendar year), its Consolidated balance sheets, Consolidated sheet and related statements of income income, stockholders' equity and Consolidated statements of cash flows showing the Consolidated financial condition of the Company and the Subsidiaries Borrowers on a combined basis as of the close of such fiscal year and the results of its operations and the operations of the Subsidiaries Borrowers on a combined basis during such year, together with comparative figures for the immediately preceding fiscal year, all the foregoing consolidated financial statements to be audited by Coopers & Xxxxxxx, an independent public accountants, or other independent public accountants acceptable to the Required Banks accountant of recognized national standing and accompanied by an opinion of such accountant accountants (which shall not be qualified in any material respectrespect except for a going concern qualification and as indicated below) to the effect that such consolidated financial statements fairly present the financial condition and results of operations of the Company and the Subsidiaries on a consolidated basis Borrowers in accordance with GAAPGAAP (except for the exclusion of Scotia Pacific, Salmon Creek and Scotia Inn except as losses in excess of investments in subsidiaries as a component of stockholder's equity unless otherwise indicated or the context indicates otherwise) consistently applied;
(b) within 60 45 days after the end of each of the first three fiscal quarters of each fiscal year, unaudited Consolidated the balance sheets, Consolidated sheet and related statements of income income, stockholders' equity and Consolidated statements of cash flows showing the financial condition of the Borrowers on a combined basis as of the close of such fiscal quarter and the results of its operations and the operations of the Borrowers during such fiscal quarter and the then elapsed portion of the fiscal year, and commencing April, 2006, comparative figures for the same periods in the immediately preceding fiscal year, all certified by one of PALCO's Financial Officers as fairly presenting the financial condition and results of operations of the Company Borrowers on a combined basis in accordance with GAAP (except for the exclusion of Scotia Pacific, Salmon Creek and Scotia Inn except as losses in excess of investments in subsidiaries as a component of stockholder's equity and consolidating the financial statements thereof, and inventory presented on a FIFO basis) consistently applied, subject to normal year-end audit adjustments and the Subsidiaries on a consolidated basis as absence of footnotes;
(c) within 30 days after the end of each fiscal month of each fiscal quarter, (i) the combined balance sheet and related statements of income and cash flows showing the financial condition of the Borrowers during such quarter fiscal month and for the then elapsed portion of the fiscal year, all certified by a one of its Financial Officer of the Company Officers as fairly presenting fairly the financial position condition and results of operations of the Company and such Subsidiaries and as having been prepared Borrowers in accordance with GAAP (except for such changes therein the exclusion of Scotia Pacific, Salmon Creek and Scotia Inn except as are approved by losses in excess of investments in subsidiaries as a component of stockholder's equity and consolidating the independent accountants for the Company)financial statements thereof, in each case and inventory presented on a FIFO basis) consistently applied, subject to normal year-end audit adjustmentsadjustments and the absence of footnotes and (ii) the separate, internally prepared entity-only balance sheet and related statements of income and cash flows showing the financial condition of each Borrower, and the eliminations reflected in the corresponding financial statements delivered pursuant to the preceding clause (i), for such month and the then-elapsed portion of the fiscal year (and, commencing with such financial statements for the month of April, 2006, for the corresponding month and elapsed portion of the preceding fiscal year) all certified by one of its Financial Officers as fairly presenting the financial condition and results of operations of the Borrowers in accordance with GAAP (except for the exclusion of PALCO's wholly owned subsidiaries Scotia Pacific, Salmon Creek and Scotia Inn except as losses in excess of investments in subsidiaries as a component of stockholder's equity and consolidating the financial statements thereof, and inventory presented on a FIFO basis) consistently applied, subject to normal year-end audit adjustments and the absence of footnotes;
(cd) concurrently with any delivery of financial statements under paragraph (a) and or (b) above, (i) a certificate of the accounting firm or person referred to therein (which certificate furnished by in the independent accountants referred to in case of paragraph (a)) above may be limited to or Financial Officer (in the best case of its knowledge paragraph (b)) opining on or certifying such statements and to accounting matters and may disclaim responsibility for legal interpretations) (i) certifying that no Default or Event of Default or Default has occurred, occurred or, if such a an Event of Default or Event of Default has occurred, specifying the nature and extent thereof and, in the case of the certificate furnished by a Financial Officer of the Company, specifying and any corrective action taken or proposed to be taken with respect thereto (which certificate, when furnished by an accounting firm, may be limited to providing negative assurances regarding financial covenants related to accounting matters and disclaim responsibility for legal interpretations) and (ii) a certificate executed by any officer of PALCO setting forth computations in reasonable detail satisfactory to the Administrative Agent demonstrating compliance with the covenants contained in Section 6.05 Sections 6.10 and 6.066.11;
(de) at least 30 days prior to the end of each fiscal year of PALCO, a detailed consolidated budget for the following fiscal year (including a projected consolidated and consolidating balance sheet and related statements of projected operations and cash flows as of the end of and for such following 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 and to the extent not required to be furnished by any other provision of this Section 5.04available, (i) copies of all periodic and other reports, proxy statements, financial statements and reports that the Company sends to its stockholders and (ii) copies of all regular, periodic and special reports, and all registration statements relating to transactions requiring a vote of stockholders of the Company or other materials filed on Form X-0, X-0 or S-3 under the Securities Act of 1933, which the Company by PALCO or any Subsidiary files with the Securities and Exchange Commission, or any Governmental Authority which may be substituted thereforsucceeding to any or all of the functions of said Commission, or with any national securities exchange;
(g) promptly after the receipt thereof by either PALCO or any of the Subsidiaries, a copy of any final "management letter" received by any such person from its certified public accountants and the management's response thereto (it being understood that the term "management letter" does not include communications from such public accountants to an audit committee that by their terms expressly state that they may not be provided to third parties);
(h) promptly, upon the Administrative Agent's request, and in any event no less frequently than noon New York time on the fifteenth (15th) Business Day after the end of each month (or, if the Borrowing Availability at any time is less than $5,000,000, on the third (3rd) Business Day after the end of each week until the Borrowing Availability is at least $5,000,000 at all times during any calendar month), each of the following reports, each of which shall be prepared by Borrowers as of the last day of the immediately preceding month (or week, if applicable): (A) a Borrowing Base Certificate with respect to each Borrower, accompanied by such supporting detail and documentation as shall be requested by the Administrative Agent in its reasonable discretion; (B) with respect to each Borrower, a summary of Inventory by location and type with a supporting perpetual Inventory report, in each case accompanied by such supporting detail and documentation as shall be requested by the Administrative Agent in its reasonable discretion; and (C) with respect to each Borrower, a monthly trial balance showing Accounts outstanding aged from invoice date as follows: 1 to 30 days, 31 to 60 days, 61 to 90 days, 91 days to 120 days and 120 days or more, accompanied by such supporting detail and documentation as shall be requested by the Administrative Agent in its reasonable discretion;
(i) on a weekly basis or at such more frequent intervals as the Administrative Agent may request from time to time (together with a copy of all or any part of such delivery requested by any Lender in writing after the Closing Date), collateral reports with respect to each Borrower, including all additions and reductions (cash and non-cash) with respect to Accounts of each Borrower, in each case accompanied by such supporting detail and documentation as shall be requested by Agent in its reasonable discretion each of which shall be prepared by the applicable Borrower as of the last day of the immediately preceding week or the date 2 days prior to the date of any request;
(j) at the time of delivery of each of the monthly financial statements delivered pursuant to Section 5.04(c): (A) a reconciliation of the most recent monthly Borrowing Base, general ledger and month-end Inventory reports of each Borrower to each Borrower's general ledger and monthly financial statements delivered pursuant to Section 5.04(c), in each case accompanied by such supporting detail and documentation as shall be requested by the Administrative Agent in its reasonable discretion; (B) a reconciliation of the perpetual inventory by location to each Borrower's most recent monthly Borrowing Base Certificate, general ledger and monthly financial statements delivered pursuant to Section 5.04(c), in each case accompanied by such supporting detail and documentation as shall be requested by the Administrative Agent in its reasonable discretion; (C) an aging of accounts payable and a reconciliation of that accounts payable aging to each Borrower's general ledger and monthly financial statements delivered pursuant to Section 5.04(c), in each case accompanied by such supporting detail and documentation as shall be requested by the Administrative Agent in its reasonable discretion; and (D) a reconciliation of the outstanding Loans to each Borrower's general ledger and monthly financial statements delivered pursuant to Section 5.04(c), in each case accompanied by such supporting detail and documentation as shall be requested by the Administrative Agent in its reasonable discretion;
(k) from time to time, if the Administrative Agent or any Lender determines that obtaining appraisals is necessary in order for the Administrative Agent or such Lender to comply with applicable laws or regulations, the Administrative Agent will, at Borrowers' expense, obtain appraisal reports in form and substance and from appraisers satisfactory to the Administrative Agent stating the then current fair market values of all or any portion of the Real Property owned by Loan Parties. In addition to the foregoing, at Borrowers' expense, at any time while and so long as an Event of Default shall have occurred and be continuing, and in the absence of a Default or Event of Default not more than twice during each calendar year, the Administrative Agent may obtain appraisal reports in form and substance and from appraisers satisfactory to the Administrative Agent stating the then current market values of all or any portion of the Real Property and personal property owned by any of the Loan Parties;
(l) Borrowers, at their own expense, shall deliver to the Administrative Agent the results of each physical verification, if any, that any Loan Party may in their discretion have made, or distributed caused any other person to its shareholdershave made on their behalf, of all or any portion of their Inventory (and, if a Default or an Event of Default has occurred and is continuing, Borrowers shall, upon the request of the Administrative Agent, conduct, and deliver the results of, such physical verifications as the case Administrative Agent may berequire); and
(em) promptly, from time to time, such other information regarding the operations, business affairs and financial condition (financial of any Loan Party or otherwise) Scotia Pacific, or compliance with the terms of the Company and the Subsidiaries any Loan Document, as each Bank through the Administrative Agent or any Lender may reasonably request; provided, however, that the Company shall not be obligated to disclose, or to permit any examination which will disclose, technical knowledge or confidential trade information, except where appropriate safeguards exist that prevent dissemination of such information in a manner detrimental to the Company's competitive position.
Appears in 1 contract
Financial Statements, Reports, etc. In the case The Corporation shall furnish to each to each holder of the Company, furnish directly to the Administrative Agent and to each of the BanksSeries B Preferred Stock:
(ai) within 120 90 days after the end of each fiscal year of the Company (being December 31 in each calendar year), its Consolidated consolidated balance sheets, Consolidated sheet and related statements of income income, stockholders’ equity and Consolidated statements of cash flows showing the Consolidated financial condition of the Company Corporation and the Subsidiaries its consolidated subsidiaries as of the close of such fiscal year and the results of its operations and the operations of the Subsidiaries such persons during such year, together with comparative figures for the immediately preceding fiscal year, all the foregoing consolidated financial statements to be in reasonable detail and prepared in accordance with United States generally accepted accounting principles (“GAAP”), all audited by Coopers & XxxxxxxUHY, independent public accountants, LLP or other independent public accountants acceptable to the Required Banks of recognized national standing and accompanied by an opinion of such accountant accountants (which opinion shall not be qualified in without any material respectqualification or exception as to the scope of such audit) to the effect that such consolidated financial statements fairly present the financial condition and results of operations of the Company Corporation and the Subsidiaries its consolidated subsidiaries on a consolidated basis in accordance with GAAP;
(bii) within 60 45 days after the end of each of the first three fiscal quarters of each fiscal year, unaudited Consolidated its consolidated balance sheets, Consolidated sheet and related statements of income income, stockholders’ equity and Consolidated statements of cash flows showing the financial condition of the Corporation and its consolidated subsidiaries as of the close of such fiscal quarter and the results of its operations and the operations of such persons during such fiscal quarter and the then elapsed portion of the fiscal year, and comparative figures for the same periods in the immediately preceding fiscal year, all certified by one of its chief executive officer, chief financial officer, any vice president, principal accounting officer, treasurer, assistant treasurer or controller of such person as fairly presenting in all material respects the financial condition and results of operations of the Company Corporation and the Subsidiaries its consolidated subsidiaries on a consolidated basis as of the end of each such quarter and for the then elapsed portion of the fiscal year, certified by a Financial Officer of the Company as presenting fairly the financial position and results of operations of the Company and such Subsidiaries and as having been prepared in accordance with GAAP (except for such changes therein as are approved by the independent accountants for the Company)GAAP, in each case subject to normal year-end audit adjustments;
(c) concurrently with (a) and (b) above, a certificate of the firm or person referred to therein (which certificate furnished by the independent accountants referred to in paragraph (a) above may be limited to the best of its knowledge and to accounting matters and may disclaim responsibility for legal interpretations) (i) 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, in the case of the certificate furnished by a Financial Officer of the Company, specifying 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 6.05 and 6.06;
(d) promptly after the same become publicly available and to the extent not required to be furnished by any other provision of this Section 5.04, (i) copies of all proxy statements, financial statements and reports that the Company sends to its stockholders and (ii) copies of all regular, periodic and special reports, and all registration statements relating to transactions requiring a vote of stockholders of the Company or filed on Form X-0, X-0 or S-3 under the Securities Act of 1933, which the Company or any Subsidiary files with the Securities and Exchange Commission, or any Governmental Authority which may be substituted therefor, or with any national securities exchange, or distributed to its shareholders, as the case may be; and
(e) promptly, from time to time, such other information regarding the operations, business affairs and condition (financial or otherwise) of the Company adjustments and the Subsidiaries as each Bank through the Administrative Agent may reasonably request; provided, however, that the Company shall not be obligated to disclose, or to permit any examination which will disclose, technical knowledge or confidential trade information, except where appropriate safeguards exist that prevent dissemination absence of such information in a manner detrimental to the Company's competitive positionfootnotes.
Appears in 1 contract
Financial Statements, Reports, etc. In the case of the CompanyBorrower, furnish directly to the Administrative Agent and (for distribution to each of the Banks:Lenders):
(a) within 120 100 days after the end of each fiscal year of the Company (being December 31 in each calendar year), its Consolidated consolidated balance sheets, Consolidated sheet and related statements of income income, stockholders’ equity and Consolidated statements of cash flows showing the Consolidated financial condition of the Company Borrower and the its consolidated Subsidiaries as of the close of such fiscal year and the results of its operations and the operations of the such Subsidiaries during such year, together with comparative figures for the immediately preceding fiscal year, all the foregoing consolidated financial statements to be audited by Coopers & Xxxxxxx, independent public accountants, or other an independent public accountants acceptable to the Required Banks of recognized national standing and accompanied by an opinion of such accountant accountants (which shall not be qualified in any material respect) to the effect that such consolidated financial statements fairly present in all material respects the financial condition and results of operations of the Company Borrower and the its consolidated Restricted Subsidiaries on a consolidated basis in accordance with GAAPGAAP consistently applied;
(b) within 60 55 days after the end of each of the first three fiscal quarters of each fiscal year, unaudited Consolidated its consolidated balance sheets, Consolidated sheet and related statements of income income, stockholders’ equity and Consolidated statements of cash flows showing the financial condition of the Borrower and its consolidated Subsidiaries as of the close of such fiscal quarter and the results of its operations and the operations of such Subsidiaries during such fiscal quarter and the then elapsed portion of the fiscal year, and comparative figures for the same periods in the immediately preceding fiscal year, all certified by one of its Financial Officers as fairly presenting the financial condition and results of operations of the Company Borrower and the its consolidated Subsidiaries on a consolidated basis as of the end of each such quarter and for the then elapsed portion of the fiscal year, certified by a Financial Officer of the Company as presenting fairly the financial position and results of operations of the Company and such Subsidiaries and as having been prepared in accordance with GAAP (except for such changes therein as are approved by the independent accountants for the Company)consistently applied, in each case subject to normal year-end audit adjustmentsadjustments and the absence of footnotes;
(c) Reserved;
(d) concurrently with any delivery of financial statements under paragraph (a) and or (b) above, a certificate of the firm or person referred to therein (which certificate furnished by the independent accountants referred to in paragraph (a) above may be limited to the best of its knowledge and to accounting matters and may disclaim responsibility for legal interpretations) (i) Financial Officer certifying such statements certifying that no Default or Event of Default or Default has occurred, occurred or, if such a an Event of Default or Event of Default has occurred, specifying the nature and extent thereof and, in the case of the certificate furnished by a Financial Officer of the Company, specifying 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 6.05 and 6.06thereto;
(de) Reserved;
(f) within 90 days after the end of each fiscal year of the Borrower, a detailed consolidated budget for the following 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 following fiscal year and setting forth the summary of material underlying assumptions used for purposes of preparing such budget) and, promptly when available, any material revisions of such budget;
(g) promptly after the same become publicly available and to the extent not required to be furnished by any other provision of this Section 5.04available, (i) copies of all proxy statements, financial statements and reports that the Company sends to its stockholders and (ii) copies of all regular, periodic and special reports, proxy statements and all registration statements relating to transactions requiring a vote of stockholders of other materials filed by the Company or filed on Form X-0, X-0 or S-3 under the Securities Act of 1933, which the Company Borrower or any Restricted Subsidiary files with the Securities and Exchange Commission, or any Governmental Authority which may be substituted thereforSEC, or with any national securities exchange, or distributed to its shareholders, as the case may be;
(h) promptly after the request by any Lender or the Administrative Agent, all documentation and other information that such Lender or the Administrative Agent 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
(ei) promptly, from time to time, such other information regarding the operations, business affairs and condition (financial or otherwise) of the Company and the Subsidiaries as each Bank through the Administrative Agent may reasonably request. Documents required to be delivered pursuant to this Section 5.04 may be delivered by electronic mail; provided, however, that the Company Borrower shall not be obligated to disclose, or to permit any examination which will disclose, technical knowledge or confidential trade information, except where appropriate safeguards exist that prevent dissemination deliver paper copies of such information in a manner detrimental documents to the Company's competitive positionAdministrative Agent upon request. All such financial statements shall be deemed to have been delivered on the date on which the Borrower provides notice to the Administrative Agent that such information has been posted on the Borrower’s website at the website address listed on the signature pages of such notice, at xxx.xxx.xxx or at such other website identified on such notice an accessible by the Lenders without charge; provided that the Borrower shall deliver paper copies of such financial statements to the Administrative Agent or any lender who requests the Borrower to deliver such paper copies until written notice to cease delivering paper copies is given by the Administrative Agent or such Lender.
Appears in 1 contract
Samples: Senior Secured Interim Loan Agreement (Avis Budget Group, Inc.)
Financial Statements, Reports, etc. In the case of the CompanyHoldings, furnish directly to the Administrative Agent and Agent, which shall furnish to each of the BanksLender:
(a) within 120 90 days after the end of each fiscal year of the Company (being December 31 in each calendar year), its Consolidated balance sheets, Consolidated consolidated statements of income and Consolidated comprehensive income, consolidated statements of financial position and related consolidated statements of changes in equity and cash flows showing the Consolidated financial condition of the Company Holdings and the Subsidiaries its consolidated subsidiaries as of the close of such fiscal year and the results of its operations and the operations of the Subsidiaries Holdings and such subsidiaries during such year, together with comparative figures for the immediately preceding fiscal year, all the foregoing consolidated financial statements to be audited by Coopers & Xxxxxxx, independent public accountants, PricewaterhouseCoopers or other independent public accountants acceptable to the Required Banks of recognized national standing and accompanied by an opinion of such accountant accountants (which opinion shall not be qualified without a “going concern” explanatory note or any similar qualification or like exception and without any qualification or like exception as to the scope of such audit (other than any such explanatory note, qualification or like exception that is expressed solely with respect to, or resulting solely from, (i) a maturity date in respect of any material respectTerm Loans or Revolving Credit Commitments or Revolving Loans that is scheduled to occur within one year from the date of delivery of such opinion or (ii) any inability or potential inability to satisfy the covenant set forth in Section 6.12(a) of this Agreement 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 condition and results of operations of the Company Holdings and the Subsidiaries its consolidated subsidiaries on a consolidated basis in accordance with GAAPGAAP consistently applied, together with a customary “management discussion and analysis” section;
(b) within 60 45 days after the end of each of the first three fiscal quarters of each fiscal year, unaudited Consolidated balance sheets, Consolidated its consolidated statements of income and Consolidated comprehensive income, consolidated statements of financial position and related consolidated statements of changes in equity and cash flows showing the financial condition of Holdings and results of operations of the Company and the Subsidiaries on a its consolidated basis subsidiaries as of the end close of each such fiscal quarter and for the results of its operations and the operations of Holdings and such subsidiaries during such fiscal quarter and the then elapsed portion of the fiscal year, and comparative figures for the same periods in the immediately preceding fiscal year, all certified by a its Financial Officer of the Company as fairly presenting fairly in all material respects the financial position condition and results of operations of the Company Holdings and such Subsidiaries and as having been prepared its consolidated subsidiaries on a consolidated basis in accordance with GAAP (except for such changes therein as are approved by the independent accountants for the Company)consistently applied, in each case subject to normal year-end audit adjustmentsadjustments and the lack of notes thereto, together with a customary “management discussion and analysis” section;
(c) concurrently with any delivery of financial statements under paragraph (a) and or (b) above, a certificate of its Financial Officer in the firm or person referred to therein (which certificate furnished by the independent accountants referred to in paragraph (a) above may be limited to the best form of its knowledge and to accounting matters and may disclaim responsibility for legal interpretations) Exhibit K (i) certifying that no Default or Event of Default or Default has occurred, occurred or, if such a an Event of Default or Event of Default has occurred, specifying the nature and extent thereof and, in the case of the certificate furnished by a Financial Officer of the Company, specifying and any corrective action taken or proposed to be taken with respect thereto and thereto, (ii) setting forth computations in reasonable detail satisfactory to the Administrative Agent demonstrating compliance (which shall include a reasonably detailed calculation of Consolidated EBITDA for the relevant period) of the Total Secured Leverage Ratio, the Total Leverage Ratio and, solely in the case of any such certificate delivered with the covenants contained financial statements under paragraph (a) above, the Senior Secured First Lien Leverage Ratio, in Section 6.05 and 6.06each case on the last day of the relevant period;
(d) within 90 days after the beginning of each fiscal year of Holdings, 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 and to the extent not required to be furnished by any other provision of this Section 5.04available, (i) copies of all periodic and other reports, proxy statements, financial statements and reports that the Company sends to its stockholders and (ii) copies of all regular, periodic and special reports, and all registration statements relating to transactions requiring a vote of stockholders of the Company or other materials filed on Form X-0, X-0 or S-3 under the Securities Act of 1933, which the Company by Holdings or any Subsidiary files with the Securities and Exchange Commission, or any Governmental Authority which may be substituted thereforsucceeding to any or all of the functions of said Commission, or with any national securities exchange, or distributed to its shareholdersshareholders or equityholders, as the case may be; and;
(ef) 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;
(g) promptly, from time to time, such other information regarding the operations, business affairs and financial condition of Holdings or any Subsidiary, or compliance with the terms of any Loan Document, as the Administrative Agent (financial on its own behalf or otherwise) on behalf of the Company and the Subsidiaries as each Bank any Lender acting through the Administrative Agent Agent) may reasonably request; provided;
(h) provide all information reasonably requested by the Administrative Agent on behalf of any Lender required in order to manage such Xxxxxx’s anti-money laundering, however, that the Company shall not be obligated to disclose, counter-terrorism financing or economic and trade sanctions risk or to permit comply with any examination which will discloselaws or regulations; and
(i) upon or reasonably promptly after each designation of a Subsidiary as an “Unrestricted Subsidiary” and each Subsidiary Redesignation, technical knowledge or confidential trade informationin each case in accordance with the terms of this Agreement, except where appropriate safeguards exist that prevent dissemination provide written notice of such information in a manner detrimental designation or Subsidiary Redesignation, as applicable, to the Company's competitive positionAdministrative Agent (who shall promptly notify the Lenders).
Appears in 1 contract
Financial Statements, Reports, etc. In the case of the Company, furnish directly Furnish to the Administrative Agent and (which will promptly furnish such information to each of the Banks:Lenders):
(a) within 120 90 days after the end of each fiscal year of (except 120 days after the Company (being December 31 in each calendar yearend fiscal year 2012), its Consolidated a consolidated balance sheets, Consolidated sheet and related statements of income and Consolidated statements of operations, cash flows and owners’ equity showing the Consolidated financial condition position of the Company Holdings and the its Subsidiaries as of the close of such fiscal year and the consolidated results of its their operations and the operations of the Subsidiaries during such year and setting forth in comparative form the corresponding figures for the prior fiscal year, all the foregoing consolidated financial statements to be audited by Coopers & Xxxxxxx, independent public accountants, or other independent public chartered accountants of recognized national standing reasonably acceptable to the Required Banks Administrative Agent and accompanied by an opinion of such accountant accountants (which shall not be qualified in any material respect) to the effect that such consolidated financial statements fairly present present, in all material respects, the financial condition position and results of operations of the Company Holdings and the its Subsidiaries on a consolidated basis in accordance with GAAP;
(b) within 60 45 days after the end of each of the first three fiscal quarters of each fiscal yearyear (except 60 days after the end of the first full fiscal quarters of the fiscal year after the Closing Date), unaudited Consolidated a consolidated balance sheets, Consolidated sheet and related statements of income operations and Consolidated statements of cash flows showing the financial condition position of Holdings and results of operations of the Company and the its Subsidiaries on a consolidated basis as of the end close of each such fiscal quarter and for the then consolidated results of their operations during such fiscal quarter 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 certified by a Financial Officer of the Company Holdings, on behalf of Holdings, as presenting fairly presenting, in all material respects, the financial position and results of operations of the Company Holdings and such its Subsidiaries and as having been prepared on a consolidated basis in accordance with GAAP (except for such changes therein as are approved by the independent accountants for the Company), in each case subject to normal year-end audit adjustmentsadjustments and the absence of footnotes);
(c) concurrently with any delivery of financial statements under (a) and or (b) above, a certificate of the firm or person referred to therein (which certificate furnished by the independent accountants referred to in paragraph (a) above may be limited to the best a Financial Officer of its knowledge and to accounting matters and may disclaim responsibility for legal interpretations) Holdings (i) certifying that no Default or Event of Default or Default has occurred, occurred or, if such a an Event of Default or Event of Default has occurred, specifying the nature and extent thereof and, in the case of the certificate furnished by a Financial Officer of the Company, specifying and any corrective action taken or proposed to be taken with respect thereto and (ii) setting forth computations in reasonable detail satisfactory the reasonably detailed calculations with respect to the Administrative Agent demonstrating compliance with Fixed Charge Coverage Ratio for such period, whether or not the covenants contained requirements of Section 6.10 are then in Section 6.05 effect and 6.06(iii) a list of Material Subsidiaries;
(d) promptly after the same become publicly available, copies of all periodic and other available and reports, proxy statements and, to the extent not required to be furnished requested by any the Administrative Agent, other provision of this Section 5.04materials filed by Holdings, (i) copies of all proxy statementsthe Lead Borrower and its Subsidiaries with the SEC, financial statements and reports that the Company sends or after an initial public offering, distributed to its stockholders generally, if and (ii) copies of all regular, periodic and special reports, and all registration statements relating to transactions requiring a vote of stockholders of the Company or filed on Form X-0, X-0 or S-3 under the Securities Act of 1933, which the Company or any Subsidiary files with the Securities and Exchange Commission, or any Governmental Authority which may be substituted therefor, or with any national securities exchange, or distributed to its shareholders, as the case may be; andapplicable;
(e) promptly, a copy of all reports submitted to the Board of Directors (or any committee thereof) of any Borrower or any of its Restricted Subsidiaries in connection with any material interim or special audit made by independent accountants of the books of any Borrower or any of its Wholly Owned Subsidiaries;
(f) promptly, from time to time, such other information regarding the operations, business affairs and financial condition (of a Borrower or any of its Restricted Subsidiaries, or compliance with the terms of any Loan Document, or such consolidating financial or otherwise) of the Company and the Subsidiaries statements, as in each Bank through case the Administrative Agent may reasonably request; providedrequest (for itself or on behalf of any Lender);
(g) promptly upon request by the Administrative Agent (and only if such documents are in existence), however, that the Company shall not be obligated to disclose, or to permit any examination which will disclose, technical knowledge or confidential trade information, except where appropriate safeguards exist that prevent dissemination of such information in a manner detrimental copies of: (i) each Schedule B (Actuarial Information) to the Company's competitive positionannual 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 a 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;
(h) contemporaneously with the financial statements delivered pursuant to clause (a) above, a budget (setting forth quarterly forecasts) for such fiscal year in form customarily prepared by Holdings;
(i) contemporaneously with the financial statements delivered pursuant to clause (a) above, a certificate from an Responsible Officer containing any updates to Sections 1(a) or (c)(iii) of the perfection certificate or stating no changes to such sections have occurred since the perfection certificate delivered on the Closing Date or last delivered pursuant to this clause (i), as applicable;
(j) promptly upon the Administrative Agent’s reasonable request, from time to time, a listing of each Borrower’s trade payables, specifying the trade creditor and balance due, and a detailed trade payable aging.
Appears in 1 contract
Samples: Credit Agreement (TPC Group LLC)
Financial Statements, Reports, etc. In the case of the Company, The Borrower will furnish directly to the Administrative Agent and to each of the BanksLender:
(a) as soon as available, and in any event within 120 105 days after the end of each fiscal year Fiscal Year (i) its consolidated balance sheet and related consolidated statements of operations and cash flows, showing the consolidated financial position of the Company (being December 31 in each calendar year), Borrower and its Consolidated balance sheets, Consolidated statements of income and Consolidated statements of cash flows showing the Consolidated financial condition of the Company and the Subsidiaries as of the close of such fiscal year Fiscal Year and the consolidated results of its their operations and the operations of the Subsidiaries cash flows during such year, in each case setting forth in comparative form the figures for the preceding Fiscal Year, with all of the foregoing consolidated financial statements to be having been audited by Coopers & Xxxxxxx, a nationally recognized independent registered public accountants, or other independent public accountants acceptable to the Required Banks accounting firm and accompanied by an opinion of such accountant accountants (which shall not be qualified in any material respect) to the effect that such consolidated financial statements fairly present the consolidated financial condition position and consolidated results of operations and cash flows of the Company Borrower and the its Consolidated Subsidiaries on a consolidated basis in accordance with GAAPGAAP consistently applied and (ii) copies of its Annual Report on Form 10-K prepared in compliance with the requirements therefor and filed with the SEC;
(b) as soon as available, and in any event within 60 45 days after the end of each of the first three fiscal quarters of each fiscal year, unaudited Consolidated Fiscal Year (i) its consolidated balance sheets, Consolidated sheet and related consolidated statements of income operations and Consolidated statements of cash flows flows, showing the consolidated financial condition and results of operations position of the Company Borrower and the its Consolidated Subsidiaries on a consolidated basis as of the end close of each such fiscal quarter, the consolidated results of their operations and cash flows during such fiscal quarter and the then elapsed portion of such Fiscal Year and the consolidated cash flows for the then elapsed portion of the fiscal yearsuch Fiscal Year, all certified by a one of its Financial Officer of Officers as fairly presenting the Company as presenting fairly the consolidated financial position and consolidated results of operations and cash flows of the Company Borrower and such its Consolidated Subsidiaries and as having been prepared in accordance with GAAP (except for such changes therein as are approved by the independent accountants for the Company)consistently applied, in each case subject to normal year-end audit adjustmentsadjustments 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) and or (b) above, a certificate an Officer’s Certificate of the firm or person referred to therein (which certificate furnished by the independent accountants referred to in paragraph (a) above may be limited to the best of its knowledge and to accounting matters and may disclaim responsibility for legal interpretations) (i) Borrower certifying that no Default or Event of Default has occurred, occurred or, if such a Default or Event of Default has occurred, specifying the nature and extent thereof and, in the case of the certificate furnished by a Financial Officer of the Company, specifying and any corrective action taken or proposed to be taken with respect thereto and thereto;
(iid) 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 Section 6.05 6.12, (ii) setting forth computations in reasonable detail satisfactory to the Administrative Agent demonstrating the Consolidated Leverage Ratio, and 6.06(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, if so, describing such change;
(de) promptly after the same become upon their becoming publicly available and to the extent not required to be furnished by any other provision available, copies of this Section 5.04, all (i) copies of all proxy financial statements, financial reports, notices and proxy statements and reports that sent or made available by the Company sends Borrower to all of its security holders in compliance with the Exchange Act or any comparable Federal or state laws relating to the disclosure by any person of information to its stockholders and security holders, (ii) copies of all regular, regular and periodic and special reports, reports and all registration statements relating to transactions requiring a vote of stockholders and prospectuses filed by the Borrower with any securities exchange or with the SEC, and (iii) all press releases and other statements made available by the Borrower or its Subsidiaries concerning material developments in the business of the Company or filed on Form X-0, X-0 or S-3 under the Securities Act of 1933, which the Company Borrower or any Subsidiary files with of the Securities and Exchange Commission, or any Governmental Authority which may be substituted therefor, or with any national securities exchange, or distributed to its shareholdersSubsidiaries, as the case may be;
(f) promptly upon completion, but in any event not later than 60 days after the commencement of each Fiscal Year, a copy of projections by the Borrower of 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 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;
(g) 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; and
(eh) promptly, from time to time, such other information regarding the operations, business affairs and financial condition (financial or otherwise) of the Company and Borrower or any Subsidiary, or compliance with the Subsidiaries terms of any Loan Document, as each Bank through the Administrative Agent or any Lender may reasonably request; provided, however, that the Company shall not be obligated to disclose, or to permit any examination which will disclose, technical knowledge or confidential trade information, except where appropriate safeguards exist that prevent dissemination of such information in a manner detrimental to the Company's competitive position.
Appears in 1 contract
Financial Statements, Reports, etc. In the case of ----------------------------------- the CompanyBorrower, furnish directly to the Administrative Agent and to each of the BanksLender:
(a) within 120 100 days after the end of each fiscal year of the Company (being December 31 in each calendar year), its Consolidated audited consolidated balance sheets, Consolidated sheets and related statements of income and Consolidated statements of cash flows flow, showing the Consolidated financial condition of the Company Borrower and the Subsidiaries its consolidated subsidiaries as of the close of such fiscal year and the results of its operations and the operations of the Subsidiaries such subsidiaries during such year, all the foregoing consolidated financial statements to be audited by Coopers Xxxxxx Xxxxxxxx & Xxxxxxx, independent public accountants, Co. or other independent public accountants of recognized national standing acceptable to the Required Banks Lenders and accompanied by an opinion of such accountant accountants (which shall not be qualified in any material respect) to the effect that such consolidated financial statements fairly present the financial condition and results of operations of the Company and the Subsidiaries Borrower on a consolidated basis in accordance with GAAPGAAP consistently applied;
(b) within 60 50 days after the end of each of the first three fiscal quarters of each fiscal year, its unaudited Consolidated consolidated balance sheets, Consolidated sheets and related statements of income and Consolidated statements cash flow, showing the xxxxx cial condition of cash flows showing the Borrower and its consolidated subsidiaries as of the close of such fiscal quarter and the results of its operations and the operations of such subsidiaries during such fiscal quarter and the then elapsed portion of the fiscal year, all certified by the Financial Officer of the Borrower as fairly presenting the financial condition and results of operations of the Company and the Subsidiaries Borrower on a consolidated basis as of the end of each such quarter and for the then elapsed portion of the fiscal year, certified by a Financial Officer of the Company as presenting fairly the financial position and results of operations of the Company and such Subsidiaries and as having been prepared in accordance with GAAP (except for such changes therein as are approved by the independent accountants for the Company)consistently applied, in each case subject to normal year-end audit adjustments;
(c) concurrently with any delivery of financial statements under clause (a) and or (b) above, a certificate of the accounting firm or person referred to therein the Financial Officer of the Borrower opining on or certifying such statements (which certificate certificate, when furnished by the independent accountants referred to in paragraph (a) above an accounting firm, may be limited to the best of its knowledge and to accounting matters and may disclaim responsibility for legal interpretations) )
(i) certifying that no Default or Event of Default or Default has occurred, occurred or, if such a an Event of Default or Event of Default has occurred, specifying the nature and extent thereof and, in the case of the certificate furnished by a Financial Officer of the Company, specifying 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 6.05 Sections 6.06, 6.13, 6.14 and 6.066.15;
(d) promptly after the same become publicly available and to the extent not required to be furnished by any other provision of this Section 5.04available, (i) copies of all periodic and other reports, proxy statements, financial statements and reports that the Company sends to its stockholders and (ii) copies of all regular, periodic and special reports, and all registration statements relating to transactions requiring a vote of stockholders of the Company or other materials filed on Form X-0, X-0 or S-3 under the Securities Act of 1933, which the Company or any Subsidiary files by it with the Securities and Exchange Commission, or any Governmental Authority which may be substituted thereforsucceeding to any of or all the functions of said Commission, or with any national securities exchange, or distributed to its shareholders, as the case may be; and
(e) promptly, from time to time, such other information regarding the operations, business affairs and financial condition (financial or otherwise) of the Company and Borrower or any Subsidiary, or compliance with the Subsidiaries terms of any Loan Document, as each Bank through the Administrative Agent or any Lender may reasonably request; provided, however, that the Company shall not be obligated to disclose, or to permit any examination which will disclose, technical knowledge or confidential trade information, except where appropriate safeguards exist that prevent dissemination of such information in a manner detrimental to the Company's competitive position.
Appears in 1 contract
Financial Statements, Reports, etc. In the case of the Company, furnish directly Furnish to the Agents, the Administrative Agent Agent, each Facing Agent, the Swingline Lender and to each of the BanksLender:
(a) in the case of Stone, within 120 90 days after the end of each fiscal year of the Company (being December 31 in each calendar year), its Consolidated consolidated balance sheets, Consolidated sheet and related statements of income operations, stockholders' equity and Consolidated statements of cash flows flows, showing the Consolidated financial condition of the Company Stone and the its consolidated Subsidiaries as of the close of such fiscal year and the results of its operations and the operations of the such Subsidiaries during such year, all the foregoing consolidated financial statements to be audited by Coopers Ernst & Xxxxxxx, independent public accountants, Young LLP or other independent public accountants auditors of recognized national standing acceptable to the Required Banks Lenders and accompanied by an opinion of such accountant accountants (which shall not be qualified in any material respect) to the effect that such consolidated financial statements fairly present in all material respects the financial condition and results of operations of the Company and the Subsidiaries Stone on a consolidated basis in accordance with U.S. GAAP;
(b) in the case of Stone, within 60 45 days after the end of each of the first three fiscal quarters of each fiscal year, unaudited Consolidated (i) its consolidated balance sheets, Consolidated sheet and related statements of income operations, stockholders' equity and Consolidated statements cash flows, showing the financial condition of cash flows showing Stone and its consolidated Subsidiaries as of the close of such fiscal quarter and the results of its operations and the operations of such Subsidiaries during such fiscal quarter and the then-elapsed portion of the fiscal year and (ii) a narrative discussion of the results of operations of Stone and its consolidated subsidiaries in a form reasonably satisfactory to the Agents (it being understood that, in the case of CLAUSE (i) above, such information shall be in reasonable detail and certified by a Financial Officer of Stone, as fairly presenting in all material respects the financial condition and results of operations of the Company and the Subsidiaries Stone on a consolidated basis as of the end of each such quarter and for the then elapsed portion of the fiscal year, certified by a Financial Officer of the Company as presenting fairly the financial position and results of operations of the Company and such Subsidiaries and as having been prepared in accordance with GAAP (except for such changes therein as are approved by the independent accountants for the Company)GAAP, in each case subject to normal year-end audit adjustments);
(c) concurrently with any delivery of financial statements of Stone under PARAGRAPH (a) and or (b) above, a certificate of the firm or person referred to therein (which certificate furnished by the independent accountants referred to in paragraph (a) above may be limited to the best a Financial Officer of its knowledge and to accounting matters and may disclaim responsibility for legal interpretations) Stone (i) certifying that that, after due investigation and reasonable inquiry, no Default or Event of Default has occurred, occurred or, if such a Default or Event of Default has occurred, specifying the nature and extent thereof and, in the case of the certificate furnished by a Financial Officer of the Company, specifying 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 of the ratios contemplated by the definition of the term "Applicable Rate" and demonstrating compliance with the covenants contained in Section 6.05 SECTIONS 7.01, 7.02, 7.03, 7.04, 7.06, 7.13, 7.14 and 6.067.15;
(d) concurrently with any delivery of financial statements under PARAGRAPH (a) above, a certificate of the accounting firm opining on such statements (which certificate may be limited to accounting matters and disclaim responsibility for legal interpretations) certifying (i) whether in connection with its audit examination any Default or Event of Default has come to its attention and, if such event has come to its attention, the nature and extent thereof and (ii) that based on its audit examination, nothing has come to its attention that leads it to believe that the information contained in the certificate delivered therewith pursuant to PARAGRAPH (c) above is not correct;
(e) promptly after the same become publicly available available, copies of all periodic and to the extent not required to be furnished by any other provision of this Section 5.04reports, proxy statements and other materials (other than (i) copies of all proxy statements, financial the exhibits to registration statements and reports that the Company sends to its stockholders and (ii) copies of all regular, periodic and special reports, and all any registration statements relating to transactions requiring a vote of stockholders on Form S-8 or its equivalent) filed by SSCC, either Borrower or any of the Company or filed on Form X-0, X-0 or S-3 under the Securities Act of 1933, which the Company or any Subsidiary files Subsidiaries with the Securities and Exchange Commission, or any Governmental Authority which may be substituted thereforsucceeding to any of or all the functions of such Commission, or with any national securities commission of any Canadian province, or with any Canadian or U.S. securities exchange, or distributed to its shareholdersany such Person's shareholders (other than to SSCC, JSCE, the Borrowers or any of the Subsidiaries), as the case may be; and;
(ef) promptlyin the case of Stone, as soon as available, and in any event no later than 90 days after each fiscal year, a consolidated annual plan, prepared in accordance with Stone's normal accounting procedures applied on a consistent basis, for the next fiscal year of Stone;
(g) upon the earlier of (i) 90 days after the end of each fiscal year of Stone and (ii) the date on which the financial statements of Stone are delivered pursuant to PARAGRAPH (a) above, a certificate of a Financial Officer of Stone setting forth, in detail reasonably satisfactory to the Agents, the amount of Excess Cash Flow, if any, for such fiscal year;
(h) promptly from time to time, such other information regarding the operations, business affairs and financial condition (financial or otherwise) of the Company and Borrowers, or compliance with the Subsidiaries terms of any Loan Document, as each Bank through the Agents, the Administrative Agent Agent, either of the Facing Agents, the Swingline Lender or any Lender may reasonably request; providedand
(i) a copy of all notices (other than notices regarding any scheduled or mandatory repayments), howevercertificates, that the Company shall not be obligated to disclosefinancial statements and reports, as and when delivered by or to permit any examination which will disclose, technical knowledge or confidential trade information, except where appropriate safeguards exist that prevent dissemination on behalf of such information in a manner detrimental Stone to the Company's competitive positionholders of any Senior Notes.
Appears in 1 contract
Financial Statements, Reports, etc. In the case of the Company, furnish directly to the Administrative Agent and (which will promptly furnish same to each of the Banks:Lender):
(a) within 120 90 days after the end of each fiscal year of the Company (being December 31 in each calendar year), its Consolidated balance sheets, sheet and related Consolidated statements of income and Consolidated statements of earnings, cash flows and shareholders’ equity, showing the Consolidated financial condition position of the Company and the its Consolidated Subsidiaries as of the close of such fiscal year and the their results of its operations and the operations of the Subsidiaries during cash flows for such year, all the foregoing consolidated financial statements to be audited by Coopers & Xxxxxxx, independent public accountants, PricewaterhouseCoopers LLP or other independent public accountants acceptable to the Required Banks of recognized national standing and accompanied by an opinion of such accountant accountants (which shall not be qualified in any material respectrespect except with the consent of the Required Lenders) to the effect that such consolidated Consolidated financial statements fairly present in all material respects the financial condition and position, results of operations and cash flows of the Company and the Subsidiaries on a consolidated Consolidated basis in accordance with GAAP consistently applied (except with respect to consistency as otherwise indicated therein), provided that if the independent auditor’s report with respect to such consolidated financial statements is a combined report (that is, one report containing both an opinion on such consolidated financial statements and an opinion on internal controls over financial reporting), then such report may include a qualification or limitation relating to the Company’s system of internal controls over financial reporting due to the exclusion of any acquired business from the management report on internal controls over financial reporting made pursuant to Item 308 of Regulation S-K of the Securities and Exchange Commission, to the extent such exclusion is permitted under provisions published by the Securities and Exchange Commission; provided further, if applicable, the independent auditor’s report may contain references to independent audits performed by other independent public accountants of recognized national standing as contemplated by AU Section 543, Part of Audit Performed by Other Independent Auditors, or any successor standard under GAAP;.
(b) within 60 45 days after the end of each of the first three fiscal quarters of each fiscal year, unaudited its Consolidated balance sheets, sheet and related Consolidated statements of income earnings and Consolidated statements of cash flows showing the financial condition and results of operations position of the Company and the its Consolidated Subsidiaries on a consolidated basis as of the end close of each such fiscal quarter and their results of operations for such fiscal quarter and the then elapsed portion of the fiscal year and their cash flows for the then elapsed portion of the fiscal year, all certified by a one of its Financial Officer Officers as fairly presenting in all material respects the financial position, results of operations and cash flows of the Company as presenting fairly the financial position and results of operations of the Company and such Subsidiaries and as having been prepared on a Consolidated basis in accordance with GAAP consistently applied (except for such changes therein with respect to consistency as are approved by the independent accountants for the Companyotherwise indicated therein), in each case subject to normal year-end audit adjustmentsadjustments and the absence of footnotes;
(c) concurrently with any delivery of financial statements under paragraph (a) and or (b) above, a certificate certificate, substantially in the form of the firm or person referred to therein (which certificate furnished by the independent accountants referred to in paragraph (a) above may be limited to the best Exhibit F hereto, of its knowledge and to accounting matters and may disclaim responsibility for legal interpretations) a Financial Officer (i) certifying that no Default or Event of Default has occurred, occurred or, if such a Default or Event of Default has occurred, specifying the nature and extent thereof and, in the case of the certificate furnished by a Financial Officer of the Company, specifying 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 Administrative Agent demonstrating compliance with the covenants contained in Section 6.05 and 6.067.01;
(d) promptly after the same become publicly available and to the extent not required to be furnished by any other provision of this Section 5.04available, (i) copies of all periodic and other reports, proxy statements, financial statements and reports that the Company sends to its stockholders and (ii) copies of all regular, periodic and special reports, and all registration statements relating to transactions requiring a vote of stockholders of the Company or other materials filed on Form X-0, X-0 or S-3 under the Securities Act of 1933, which the Company or any Subsidiary files by it with the Securities and Exchange Commission, or any Governmental Authority which may be substituted thereforsucceeding to any of or all the functions of such Commission, or with any national securities exchange, or distributed to its shareholdersshareholders generally, as the case may be; and
(e) promptly, from time to time, such other information regarding the operations, business affairs and financial condition (financial or otherwise) of the Company or any Subsidiary, or compliance with the terms of the Loan Documents, as the Administrative Agent, at the request of any Lender, may reasonably request. Information required to be delivered pursuant to paragraphs 5.04(a), 5.04(b) or 5.04(d) above shall be deemed to have been delivered on the date on which (x) such information has been posted on the Internet by the Securities and Exchange Commission at sxx.xxx/xxxxx/xxxxxxxx.xxx (or any successor website) or (y) the Subsidiaries as each Bank through Company provides notice to the Administrative Agent may reasonably request; provided, however, that the Company shall not be obligated to disclose, or to permit any examination which will disclose, technical knowledge or confidential trade information, except where appropriate safeguards exist that prevent dissemination of such information has been posted on the Company’s website on the Internet at wxx.xxxxxxx.xxx or at another website identified in such notice and accessible by the Lenders without charge; provided that (i) such notice may be included in a manner detrimental certificate delivered pursuant to paragraph 5.04(c) and (ii) the Company's competitive positionBorrower shall deliver paper copies of the information referred to in paragraphs 5.04(a) or 5.04(b) to any Lender which requests such delivery.
Appears in 1 contract
Samples: Credit Agreement (Cummins Inc)
Financial Statements, Reports, etc. In the case of the CompanyBorrower, furnish directly to the Administrative Agent and to each of the BanksAgent:
(a) within 120 90 days after the end of each fiscal year of the Company (being December 31 in each calendar year), its Consolidated consolidated balance sheets, Consolidated sheet and related statements of income income, stockholders' equity and Consolidated statements of cash flows showing the Consolidated financial condition of the Company Borrower and the its consolidated Subsidiaries as of the close of such fiscal year and the results of its operations and the operations of the such Subsidiaries during such year, together with comparative figures for the immediately preceding fiscal year, all the foregoing consolidated financial statements to be audited by Coopers Deloitte & Xxxxxxx, independent public accountants, Touche LLP or other independent public accountants acceptable to the Required Banks of recognized national standing and accompanied by an opinion of such accountant accountants (which shall not be qualified in any material respect) to the effect that such consolidated financial statements fairly present the financial condition and results of operations of the Company Borrower and the its consolidated Subsidiaries on a consolidated basis in accordance with GAAPGAAP consistently applied;
(b) within 60 45 days after the end of each of the first three fiscal quarters of each fiscal year, unaudited Consolidated its consolidated balance sheets, Consolidated sheet and related statements of income income, stockholders' equity and Consolidated statements of cash flows showing the financial condition of the Borrower and its consolidated Subsidiaries as of the close of such fiscal quarter and the results of its operations and the operations of such Subsidiaries during such fiscal quarter and the then elapsed portion of the fiscal year, and 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 financial condition and results of operations of the Company Borrower and the its consolidated Subsidiaries on a consolidated basis as of the end of each such quarter and for the then elapsed portion of the fiscal year, certified by a Financial Officer of the Company as presenting fairly the financial position and results of operations of the Company and such Subsidiaries and as having been prepared in accordance with GAAP (except for such changes therein as are approved by the independent accountants for the Company)consistently applied, in each case subject to normal year-end audit adjustments;
(c) within 45 days after the end of the first two fiscal four-week periods of each fiscal quarter, its consolidated balance sheet and related statements of income and cash flows showing the financial condition of the Borrower and its consolidated Subsidiaries during such fiscal period and the then elapsed portion of the fiscal year, all certified by one of its Financial Officers as fairly presenting 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;
(d) concurrently with any delivery of financial statements under paragraph (a) and ), (b) or (c) above, a certificate of the accounting firm or person referred to therein (which certificate furnished by in the independent accountants referred to in case of paragraph (a)) above or Financial Officer (in the case of paragraph (b) or (c)) opining on or certifying such statements (which certificate, when furnished by an accounting firm, may be limited to the best of its knowledge and to accounting matters and may disclaim responsibility for legal interpretations) (i) certifying that no Default or Event of Default or Default has occurred, occurred or, if such a an Event of Default or Event of Default has occurred, specifying the nature and extent thereof and, in the case of the certificate furnished by a Financial Officer of the Company, specifying and any corrective action taken or proposed to be taken with respect thereto and (ii) in the case of paragraphs (a) and (b), of a Financial Officer setting forth computations in reasonable detail satisfactory to the Administrative Agent (x) demonstrating compliance with the covenants contained in Sections 6.11, 6.12 and 6.13 and (y) if Tahoe Joe's has not become a Loan Party pursuant to Section 6.05 5.09, the calculation of Tahoe Joe's Consolidated EBITDA contemplated by Section 5.09 and, in the case of a certificate delivered with the financial statements required by paragraph (a) above, (x) setting forth the Borrower's calculation of Excess Cash Flow and 6.06(y) certifying that there has been no change in the business activities, assets or liabilities of Holdings, or if there has been any such change, describing such change in reasonable detail and certifying that Holdings is in compliance with Section 6.08;
(de) at least 45 days after the commencement of each fiscal year of the Borrower commencing with the fiscal year ending on or about June 30, 2003, 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 and to the extent not required to be furnished by any other provision of this Section 5.04available, (i) copies of all periodic and other reports, final proxy statements, financial statements and reports that upon notice of filing to the Company sends to its stockholders Administrative Agent and (ii) copies of all regular, periodic and special reports, and all registration statements relating to transactions requiring a vote of stockholders upon the request of the Company or Administrative Agent, other materials filed on Form X-0by Holdings, X-0 or S-3 under the Securities Act of 1933, which the Company Borrower or any Subsidiary files with the Securities and Exchange Commission, or any Governmental Authority which may be substituted thereforsucceeding 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;
(g) promptly after the receipt thereof by Holdings, the Borrower or any Subsidiary, a copy of any "management letter" (in final form) received by any such person from its certified public accountants and the management's response thereto; and
(eh) promptly, from time to time, such other information regarding the operations, business affairs and financial condition (financial of Holdings, the Borrower or otherwise) any Subsidiary, or compliance with the terms of the Company and the Subsidiaries any Loan Document, as each Bank through the Administrative Agent or any Lender may reasonably request; provided, however, that the Company shall not be obligated to disclose, or to permit any examination which will disclose, technical knowledge or confidential trade information, except where appropriate safeguards exist that prevent dissemination of such information in a manner detrimental to the Company's competitive position.
Appears in 1 contract
Samples: Credit Agreement (Buffets Inc)
Financial Statements, Reports, etc. In the case of the CompanyBorrower, furnish directly to the Administrative Agent and to each of the BanksLender:
(a) within 120 90 days after the end of each fiscal year of the Company (being December 31 in each calendar year), its Consolidated consolidated balance sheets, Consolidated sheet and related statements of income operations, members' equity interest and Consolidated statements of cash flows showing the Consolidated financial condition of the Company Borrower and the its consolidated Subsidiaries as of the close of such fiscal year and the results of its operations and the operations of the such Subsidiaries during such year, all the foregoing consolidated financial statements to be audited by Coopers & Xxxxxxx, independent public accountants, Lybrxxx L.L.P. or other independent public accountants of recognized national standing reasonably acceptable to the Required Banks Lenders and accompanied by an opinion of such accountant accountants (which shall not be qualified in any material respect) to the effect that such consolidated financial statements fairly present the financial condition and results of operations of the Company Borrower and the its consolidated Subsidiaries on a consolidated basis in accordance with GAAPGAAP consistently applied;
(b) within 60 45 days after the end of each of the first three fiscal quarters of each fiscal year, unaudited Consolidated its consolidated balance sheets, Consolidated sheet and related statements of income operations, members' equity interest and Consolidated statements of cash flows showing the financial condition of the Borrower and its consolidated Subsidiaries as of the close of such fiscal quarter and the results of its operations and the operations of such Subsidiaries during such fiscal quarter and the then elapsed portion of the fiscal year, all certified by one of its Financial Officers as fairly presenting in all material respects the financial condition and results of operations of the Company Borrower and the its consolidated Subsidiaries on a consolidated basis as of the end of each such quarter and for the then elapsed portion of the fiscal year, certified by a Financial Officer of the Company as presenting fairly the financial position and results of operations of the Company and such Subsidiaries and as having been prepared in accordance with GAAP (except for such changes therein as are approved by the independent accountants for the Company)consistently applied, in each case subject to normal year-end audit adjustments;
(c) concurrently with any delivery of financial statements under sub-paragraph (a) and or (b) above, a letter of the accounting firm or certificate of the firm Financial Officer reporting on or person referred to therein certifying such statements (which certificate letter, when furnished by the independent accountants referred to in paragraph (a) above an accounting firm, may be limited to the best of its knowledge and to accounting matters and may disclaim responsibility for legal interpretations) (i) certifying reporting that no Default or they are unaware that any Event of Default has occurred, in the case of the accounting firm, or certifying that no Event of Default or Default has occurred, in the case of the Financial Officer or, if such a an Event of Default or Event of Default has occurred, specifying the nature and extent thereof and, in the case of the certificate furnished by a Financial Officer of the Company, specifying 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 6.05 Sections 6.10, 6.11 and 6.066.12;
(d) promptly after the same become publicly available and to the extent not required to be furnished by any other provision of this Section 5.04available, (i) copies of all periodic and other reports, proxy statements, financial statements and reports that other materials filed by the Company sends to its stockholders and (ii) copies of all regular, periodic and special reports, and all registration statements relating to transactions requiring a vote of stockholders of the Company or filed on Form X-0, X-0 or S-3 under the Securities Act of 1933, which the Company Borrower or any Subsidiary files with the Securities and Exchange Commission, or any Governmental Authority which may be substituted thereforsucceeding 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) prior to the beginning of each fiscal year, a copy of the budget for its consolidated balance sheet and related statements of income and cash flows for each quarter of such fiscal year; and
(ef) promptly, from time to time, such other information regarding the operations, business affairs and financial condition (financial of Holdings, the Borrower or otherwise) any Subsidiary, or 57 52 compliance with the terms of the Company and the Subsidiaries any Loan Document, as each Bank through the Administrative Agent or any Lender may reasonably request; provided, however, that the Company shall not be obligated to disclose, or to permit any examination which will disclose, technical knowledge or confidential trade information, except where appropriate safeguards exist that prevent dissemination of such information in a manner detrimental to the Company's competitive position.
Appears in 1 contract
Samples: Credit Agreement (Acl Capital Corp)
Financial Statements, Reports, etc. In the case of the Company, furnish directly Furnish to the Administrative Agent and (which will promptly furnish such information to each of the Banks:Lenders):
(a) within 120 days after the end of each fiscal year of the Company (being December 31 in each calendar year), its Consolidated a consolidated balance sheets, Consolidated sheet and related statements of income and Consolidated statements of operations, cash flows and owners’ equity showing the Consolidated financial condition position of the Company and the its Subsidiaries as of the close of such fiscal year and the consolidated results of its their operations and the operations of the Subsidiaries during such year and setting forth in comparative form the corresponding figures for the prior fiscal year, all the foregoing consolidated financial statements to be audited by Coopers & Xxxxxxx, independent public accountants, or other independent public chartered accountants of recognized national standing reasonably acceptable to the Required Banks Administrative Agent and accompanied by an opinion of such accountant accountants (which shall not be qualified in any material respect) to the effect that such consolidated financial statements fairly present present, in all material respects, the financial condition position and results of operations of the Company and the its Subsidiaries on a consolidated basis in accordance with GAAP;
(b) within 60 days after the end of each of the first three fiscal quarters of each fiscal year, unaudited Consolidated a consolidated balance sheets, Consolidated sheet and related statements of income operations and Consolidated statements of cash flows showing the financial condition and results of operations position of the Company and the its Subsidiaries on a consolidated basis as of the end close of each such fiscal quarter and for the then consolidated results of their operations during such fiscal quarter 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 certified by a Financial Officer of the Company Company, on behalf of the Company, as presenting fairly presenting, in all material respects, the financial position and results of operations of the Company and such its Subsidiaries and as having been prepared on a consolidated basis in accordance with GAAP (except for such changes therein as are approved by the independent accountants for the Company), in each case subject to normal year-end audit adjustmentsadjustments and the absence of footnotes);
(c) (x) concurrently with any delivery of financial statements under (a) and or (b) above, a certificate of a Financial Officer of the firm or person referred to therein (which certificate furnished by the independent accountants referred to in paragraph (a) above may be limited to the best of its knowledge and to accounting matters and may disclaim responsibility for legal interpretations) Company (i) certifying that no Default or Event of Default or Default has occurred, occurred or, if such a an Event of Default or Event of Default has occurred, specifying the nature and extent thereof and, in the case of the certificate furnished by a Financial Officer of the Company, specifying and any corrective action taken or proposed to be taken with respect thereto and (ii) setting forth computations a computation of the Financial Performance Covenant and the Total Leverage Ratio in reasonable detail reasonably satisfactory to the Administrative Agent demonstrating compliance and (y) concurrently with any delivery of financial statements under (a) above, (i) a certificate of its independent chartered accounting firm stating whether they obtained knowledge during the course of their examination of such statements of any Default or Event of Default under Section 7.01(d), as it relates to a breach of Section 6.10 only (which certificate may be limited to accounting matters and disclaims responsibility for legal interpretations), (ii) a list of Material Subsidiaries and (iii) a certificate of a Financial Officer of the Company confirming (x) whether the percentage of gross assets of the Company and its Wholly Owned Subsidiaries that are organized in Security Jurisdictions and can legally (and subject to the Agreed Security Principles) become Loan Parties (calculated on a consolidated basis and excluding intra-group items and investments in Subsidiaries) reflected by the current Loan Parties is 80% or more and (y) whether the percentage of earnings before interest, tax, depreciation or amortization of the Company and its Wholly Owned Subsidiaries that are organized in Security Jurisdictions and can legally (and subject to the Agreed Security Principles) become Loan Parties (calculated on a consolidated basis and on a basis consistent with the covenants contained calculations used in Section 6.05 preparing the Company’s consolidated financial statements) (excluding intra-group items, except for power-by-the-hour maintenance, lease and 6.06similar transactions) reflected by the current Loan Parties is 80% or more;
(d) promptly after the same become publicly available, copies of all periodic and other available and reports, proxy statements and, to the extent not required to be furnished requested by the Administrative Agent, other materials filed by any other provision Borrower or any of this Section 5.04its Wholly Owned Subsidiaries with the SEC, (i) copies of all proxy statementsor after an initial public offering, financial statements and reports that the Company sends distributed to its stockholders generally, if and (ii) copies of all regular, periodic and special reports, and all registration statements relating to transactions requiring a vote of stockholders of the Company or filed on Form X-0, X-0 or S-3 under the Securities Act of 1933, which the Company or any Subsidiary files with the Securities and Exchange Commission, or any Governmental Authority which may be substituted therefor, or with any national securities exchange, or distributed to its shareholders, as the case may be; andapplicable;
(e) promptly, a copy of all reports submitted to the Board of Directors (or any committee thereof) of any Borrower or any of its Wholly Owned Subsidiaries in connection with any material interim or special audit made by independent accountants of the books of any Borrower or any of its Wholly Owned Subsidiaries;
(f) promptly, from time to time, such other information regarding the operations, business affairs and financial condition (of a Borrower or any of its Wholly Owned Subsidiaries, or compliance with the terms of any Loan Document, or such consolidating financial or otherwise) of the Company and the Subsidiaries statements, as in each Bank through case the Administrative Agent may reasonably request (for itself or on behalf of any Lender);
(g) promptly upon request by the Administrative Agent (and only if such documents are in existence), 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 a 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; provided, however, that and
(h) No later than ninety (90) days following the Company shall not be obligated to disclose, or to permit any examination which will disclose, technical knowledge or confidential trade information, except where appropriate safeguards exist that prevent dissemination first day of such information in a manner detrimental to each fiscal year of the Company's competitive position, a budget for such fiscal year in form customarily prepared by the Company.
Appears in 1 contract
Samples: Credit Agreement (CHC Group Ltd.)
