Financial Statements, Reports, etc. In the case of the Borrower, furnish to the Administrative Agent (either physically or through electronic delivery reasonably acceptable to the Administrative Agent), which shall furnish to each Lender: (a) within 90 days after the end of each fiscal year, its consolidated balance sheet and related statements of income, stockholders’ equity and cash flows showing the financial condition of the Borrower and its consolidated Subsidiaries as of the close of such fiscal year and the results of its operations and the operations of such Subsidiaries during such year, together with comparative figures for the immediately preceding fiscal year, all audited by Ernst & Young LLP or other independent public accountants of recognized national standing and accompanied by an opinion of such 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 Borrower and its consolidated Subsidiaries on a consolidated basis in accordance with GAAP consistently applied; (b) within 45 days after the end of each of the first three fiscal quarters of each fiscal year, its consolidated balance sheet and related statements of income, stockholders’ equity and 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 Borrower and its consolidated Subsidiaries on a consolidated basis in accordance with GAAP consistently applied, subject to normal year-end audit adjustments; (c) concurrently with any delivery of financial statements under paragraph (a), or (b) above, a certificate of the accounting firm (in the case of paragraph (a)) or Financial Officer (in the case of paragraph (b)) opining on or certifying such statements (which certificate, when furnished by an accounting firm, may be limited to accounting matters and disclaim responsibility for legal interpretations and which may be provided by a Financial Officer if accounting firms generally are not providing such certificates) (i) certifying that no Event of Default or Default has occurred or, if such an Event of Default or Default has occurred, specifying the nature and extent thereof and any corrective action taken or proposed to be taken with respect thereto and (ii) setting forth computations in reasonable detail satisfactory to the Administrative Agent demonstrating compliance with the covenants contained in Sections 6.6, 6.10, 6.11 and 6.12 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 6.8; (d) within 45 days after the commencement of each fiscal year of the Borrower, a detailed consolidated budget for such fiscal year (including a projected consolidated balance sheet and related statements of projected operations and cash flows as of the end of and for such fiscal year); (e) promptly after the same become publicly available, copies of all periodic and other reports, proxy statements and other materials filed by Holdings, the Borrower or any Subsidiary with the SEC, or any Governmental Authority succeeding to any or all of the functions of said Commission, or with any national securities exchange, or, after the initial Public Equity Offering (disregarding for purposes of this Section 5.4(e) the Net Cash Proceeds dollar threshold contained in the definition of such term), distributed to its shareholders, as the case may be; (f) promptly after the receipt thereof by Holdings or the Borrower or any Subsidiary, a copy of any “management letter” received by any such person from its certified public accountants and the management’s response thereto; and (g) 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 may reasonably request. Documents required to be delivered pursuant to Section 5.4(a), (b) or (e) (to the extent any such documents are included in materials otherwise filed with the SEC) may be delivered electronically and if so delivered, shall be deemed to have been delivered on the date (i) on which the Borrower posts such documents, or provides a link thereto on the Borrower’s website on the Internet at the Borrower’s website address; or (ii) on which such documents are posted on the Borrower’s behalf on IntraLinks/IntraAgency or another relevant website, if any, to which each Lender and the Administrative Agent have access (whether a commercial, third-party website or whether sponsored by the Administrative Agent).
Appears in 3 contracts
Samples: Credit Agreement (Polypore International, Inc.), Credit Agreement (Daramic, LLC), Credit Agreement (Polypore International, Inc.)
Financial Statements, Reports, etc. In the case of the Borrower, furnish to the Administrative Agent (either physically or through electronic delivery reasonably acceptable to the Administrative Agent), which shall furnish for distribution to each Lender:
(a) within 90 days after the end of each fiscal year, its consolidated balance sheet and related statements of income, stockholders’ equity and cash flows showing the financial condition of the Borrower and its consolidated Subsidiaries as of the close of such fiscal year of the Borrower and its consolidated Subsidiaries at such time and the results of its operations and the operations of such Subsidiaries during such year, together with comparative figures for the immediately preceding fiscal yearyear (or, in the case of the fiscal year ending December 31, 2005, the comparable period of more than twelve months ending December 31, 2004), all audited by Ernst & Young KPMG LLP or other independent public accountants of recognized national standing and accompanied by an opinion of such accountants reasonably satisfactory to the Administrative Agent (which shall not be qualified in any material respect, except for qualifications relating to accounting changes (with which such independent public accountants shall concur) in response to FASB releases or other authoritative pronouncements) to the effect that such consolidated financial statements fairly present the financial condition and results of operations of the Borrower and its consolidated Subsidiaries on a consolidated basis in accordance with GAAP consistently applied;
(b) within 45 days after the end of each of the first three fiscal quarters of each fiscal year, its unaudited consolidated balance sheet and related statements of income, stockholders’ equity and cash flows showing the financial condition of the Borrower and its consolidated Subsidiaries as of the close of such fiscal quarter of the Borrower and its consolidated Subsidiaries at such time 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 to the effect that such financial statements, while not examined by independent public accountants, reflect in the opinion of the Borrower all adjustments necessary to present fairly presenting in all material respects the financial condition and results of operations of the Borrower and its consolidated Subsidiaries on a consolidated basis as of the end of and for such periods in accordance with GAAP consistently applied, subject to normal year-end audit adjustmentsadjustments and the absence of footnotes;
(c) (i) concurrently with any delivery of financial statements under paragraph (a)) above for the year ended December 31, or (b) above2006 and each year thereafter, a certificate of letter from the accounting firm (in rendering the case of paragraph (a)) or Financial Officer (in the case of paragraph (b)) opining opinion on or certifying such statements (which certificate, when furnished by an accounting firm, letter may be limited to accounting matters and disclaim responsibility for legal interpretations interpretations) stating whether, in connection with their audit examination, anything has come to their attention which would cause them to believe that any Default or Event of Default existed on the date of such financial statements and which may be provided by if such a condition or event has come to their attention and (ii) concurrently with any delivery of financial statements under paragraph (a) or (b) above for the quarter ended June 30, 2006 and each quarter and/or year thereafter, a certificate of a Financial Officer if accounting firms generally are not providing such certificates) of the Borrower (iA) certifying that no Event of Default or Default has occurred or, if such an Event of Default or Default has occurred, specifying the nature and extent thereof and any corrective action taken or proposed to be taken with respect thereto and thereto, (iiB) setting forth computations in reasonable detail as is reasonably satisfactory to the Administrative Agent demonstrating compliance with the covenants contained in Sections 6.6, 6.10, 6.11 6.13 and 6.12 and, in the case of a certificate delivered with the financial statements required by paragraph (a) above, (x) 6.14 and setting forth the Borrower’s calculation of Excess Cash Flow Flow, Consolidated EBITDA and Capital Expenditures made by the Borrower and the Restricted Subsidiaries (other than any Excluded Subsidiaries) (1) in the case of the fiscal year ending December 31, 2006 (and together with the certificate required by paragraph (a) above), for the fiscal year then ended and the Available Amount as at the end of such fiscal year and (y2) certifying that there has been no change in the business activities, assets or liabilities case of Holdingseach ECF Period ending thereafter (and together with the certificate required by paragraph (a) above if the applicable ECF Period is a fiscal year, or if there has been together with the certificate required by paragraph (b) in all other cases), for the applicable ECF Period and the Available Amount as at the end of the applicable ECF Period (and in any event for each applicable fiscal year ending thereafter and the Available Amount as at the end of such change, describing such change fiscal year) and (C) disclosing any Asset Sale or Recovery Event (other than any Asset Sale or Recovery Event not subject to the mandatory prepayment provisions set forth in reasonable detail Section 2.13(b)(i) pursuant to the first proviso of the definition of Net Cash Proceeds) that was consummated in the preceding fiscal quarter and certifying that Holdings is in compliance specifying the nature thereof and the use of proceeds with Section 6.8respect thereto;
(d) within 45 30 days after following the commencement of each fiscal year of the Borrower, a detailed consolidated budget for such fiscal year (including a projected consolidated balance sheet and related statements of projected operations and cash flows as of the end of and for such fiscal year)year and setting forth the assumptions used for purposes of preparing such budget) and, promptly when available, any significant revisions of such budget;
(e) promptly after the same become publicly available, copies of all periodic and other reports, proxy statements and other materials filed by Holdings, the Borrower or any Subsidiary with the SECSecurities and Exchange Commission, or any Governmental Authority succeeding to any or all of the functions of said Commission, or with any domestic national securities exchange, or, after the initial Public Equity Offering (disregarding for purposes of this Section 5.4(e) the Net Cash Proceeds dollar threshold contained in the definition of such term), or distributed to its shareholdersshareholders generally, as the case may be;
(f) promptly after the receipt thereof by Holdings or the Borrower or any Subsidiaryof the Subsidiaries, a copy of any “management letter” received by any such person Person from its certified public accountants and the management’s response thereto; and
(g) 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 (acting through the Administrative Agent) may reasonably request. Documents required to be delivered pursuant to Section 5.4(a), (b) or (e) (to the extent any such documents are included in materials otherwise filed with the SEC) may be delivered electronically and if so delivered, shall be deemed to have been delivered on the date (i) on which the Borrower posts such documents, or provides a link thereto on the Borrower’s website on the Internet at the Borrower’s website address; or (ii) on which such documents are posted on the Borrower’s behalf on IntraLinks/IntraAgency or another relevant website, if any, to which each Lender and the Administrative Agent have access (whether a commercial, third-party website or whether sponsored by the Administrative Agent).
Appears in 3 contracts
Samples: Credit Agreement (NRG Energy, Inc.), Credit Agreement (NRG Energy, Inc.), Credit Agreement (NRG Energy, Inc.)
Financial Statements, Reports, etc. In the case of the Borrower, It will furnish to the Administrative Agent (either physically or through electronic delivery reasonably acceptable to the Administrative Agent), which shall furnish to and each Lender:
(a) as soon as available, but within 90 95 days after the end of each fiscal year, its consolidated and consolidating balance sheet sheets and related consolidated and consolidating statements of income, stockholdersoperations and consolidated statements of shareholders’ equity and cash flows showing the financial condition of the Borrower Holdings and its consolidated Subsidiaries subsidiaries as of the close of such fiscal year and the results of its operations and the operations of such Subsidiaries subsidiaries during such year, together with comparative figures for the immediately preceding fiscal year, all audited (in the case of such consolidated and consolidating statements) by any of Deloitte &Touche LLP, KPMG LLP, PricewaterhouseCoopers LLP, Ernst & Young LLP LLP, or other independent public accountants of recognized national standing and accompanied by an opinion of such accountants (which shall not be qualified in contain any material respect“going concern” or other materially adverse qualification) to the effect that such consolidated financial statements fairly present the financial condition and results of operations of the Borrower and its consolidated Subsidiaries Holdings on a consolidated basis in accordance with GAAP consistently applied;
(b) as soon as available, but within 45 50 days after the end of each of the first three fiscal quarters of each fiscal year, its consolidated and consolidating balance sheet sheets and related consolidated and consolidating statements of income, stockholders’ equity operations and consolidated statements of shareholders’equity and cash flows showing the financial condition of the Borrower Holdings and its consolidated Subsidiaries subsidiaries as of the close of such fiscal quarter and the results of its operations and the operations of such Subsidiaries 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 Borrower and its consolidated Subsidiaries Holdings on a consolidated basis in accordance with GAAP consistently applied, subject to the absence of footnotes and normal year-end reserves, accruals and audit adjustments;
(c) concurrently with any delivery of financial statements under paragraph (a), ) or (b) above, a certificate of the accounting firm (in the case of paragraph (a)) or Financial Officer (in the case of paragraph (b)) opining on or certifying such statements (which certificate, when furnished by an accounting firm, may be limited to accounting matters and disclaim responsibility for legal interpretations and which may be provided by a Financial Officer if accounting firms generally are not providing such certificates) (i) certifying that no Event of Default or Default has occurred or, if such an Event of Default or Default has occurred, specifying the nature and extent thereof and any corrective action taken or proposed to be taken with respect thereto and (ii) setting forth computations in reasonable detail satisfactory to the Administrative Agent demonstrating compliance with the covenants contained in Sections 6.6, 6.10, 6.11 6.06 and 6.12 and, in the case 6.07;
(d) concurrently with any delivery of a certificate delivered with the financial statements required by under paragraph (a) above, a certificate of the accounting firm opining on such statements (xwhich certificate may be limited to accounting matters and disclaim responsibility for legal interpretations) setting forth 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 Borrower’s calculation of Excess Cash Flow nature and extent thereof and (yii) certifying that there based on its audit examination and its review of the computations referred to in clause (ii) of paragraph (c) above, nothing has been no change come to its attention that leads it to believe that the information contained in the business activities, assets or liabilities certificate delivered therewith pursuant to paragraph (c) above is not correct; provided that the requirements 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 6.8;
this clause (d) within 45 days shall be subject to any limitations and qualifications adopted after the commencement date hereof by any professional association or organization or any Governmental Authority, in each case that affects the content of, or ability of each fiscal year accounting firms to deliver, certificates 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)type contemplated by this paragraph;
(e) promptly after the same become publicly availableavailable or are filed or distributed, as applicable, copies of all periodic and other material reports, proxy statements and other materials filed by Holdings, Holdings or the Borrower or any Subsidiary with the SECSecurities and Exchange Commission, or any Governmental Authority succeeding to any of or all of the functions of said Commission, or with any national securities exchange, or, after the initial Public Equity Offering (disregarding for purposes of this Section 5.4(e) the Net Cash Proceeds dollar threshold contained in the definition of such term), or distributed to its shareholdersthe holders of any Indebtedness with a then outstanding principal amount of $15,000,000 or more (or any trustee, agent or representative for any such holders) or to Holdings’shareholders, as the case may be;
(f) promptly after upon the receipt thereof occurrence of any change of rating of the Index Debt by Holdings Xxxxx’x or the Borrower or any SubsidiaryS&P, a copy certificate of a Financial Officer setting forth the new rating, the effective date thereof and, if applicable, notice of any “management letter” received by any such person from its certified public accountants and change in the management’s response theretoApplicable Rate as a result thereof; and
(g) promptly, from time to time, such other information regarding the operations, business affairs and financial condition of Holdings, Holdings and 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 5.4(a), (b) or (e) (to the extent any such documents are included in materials otherwise filed with the SEC) may be delivered electronically and if so delivered, shall be deemed to have been delivered on the date (i) on which the Borrower posts such documents, or provides a link thereto on the Borrower’s website on the Internet at the Borrower’s website address; or (ii) on which such documents are posted on the Borrower’s behalf on IntraLinks/IntraAgency or another relevant website, if any, to which each Lender and the Administrative Agent have access (whether a commercial, third-party website or whether sponsored by the Administrative Agent).
Appears in 3 contracts
Samples: Credit Agreement (Ethan Allen Interiors Inc), Credit Agreement (Ethan Allen Interiors Inc), Credit Agreement (Ethan Allen Interiors Inc)
Financial Statements, Reports, etc. In the case of the Borrower, furnish to the Administrative Agent (either physically or through electronic delivery reasonably acceptable to the Administrative Agent), which shall furnish to and each Lender:
(a) as soon as available and in any event within 90 110 days after the end of each fiscal year, its consolidated balance sheet sheets and the related statements of income, stockholders’ equity income and cash flows showing the financial condition of the Borrower and its consolidated Subsidiaries (the Borrower and its Subsidiaries being collectively referred to as the "Companies") as of the close of such fiscal year and (which requirement shall be deemed satisfied by the results delivery of its operations and the operations of such Subsidiaries during Borrower's Annual Report on Form 10-K (or any successor form) for such year, together with comparative figures for the immediately preceding fiscal year), all audited by Ernst & Young LLP KPMG Peat Marwick or other independent public accountants of recognized national standing and accompanied by an opinion of such 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 Borrower and its consolidated Subsidiaries Companies on a consolidated basis in accordance with GAAP consistently applied;
(b) within 45 65 days after the end of each of the first three fiscal quarters of each fiscal year, its consolidated balance sheet sheets and related statements of income, stockholders’ equity income and cash flows showing the financial condition of the Borrower and its consolidated Subsidiaries Companies 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 yearyear (which requirement shall be deemed satisfied by the delivery of the Borrower's Quarterly Report on Form 10-Q (or any successor form) for such quarter), and comparative figures for the same periods in the immediately preceding fiscal year, all each certified by one of its a Financial Officers Officer as fairly presenting the financial condition and results of operations of the Borrower and its consolidated Subsidiaries Companies on a consolidated basis in accordance with GAAP consistently applied, subject to normal year-end audit adjustments;
(c) concurrently promptly upon the mailing or filing thereof, copies of all financial statements, reports and proxy statements mailed to the Borrower's public shareholders, and copies of all registration statements (other than those on Form S-8) and Form 8-K's (to the extent that such Form 8-K's disclose actual or potential adverse developments with respect to the Borrower or any delivery of financial statements under paragraph (a)its Subsidiaries that constitute, or (b) abovecould reasonably be anticipated to constitute, a certificate of Material Adverse Effect) filed with the accounting firm Securities and Exchange Commission (in the case of paragraph (a)or any successor thereto) or Financial Officer (in the case of paragraph (b)) opining on or certifying such statements (which certificate, when furnished by an accounting firm, may be limited to accounting matters and disclaim responsibility for legal interpretations and which may be provided by a Financial Officer if accounting firms generally are not providing such certificates) (i) certifying that no Event of Default or Default has occurred or, if such an Event of Default or Default has occurred, specifying the nature and extent thereof and any corrective action taken or proposed to be taken with respect thereto and (ii) setting forth computations in reasonable detail satisfactory to the Administrative Agent demonstrating compliance with the covenants contained in Sections 6.6, 6.10, 6.11 and 6.12 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 6.8national securities exchange;
(d) within 45 days after prompt notice of any reduction in the commencement of each fiscal year of credit rating given to 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)Borrower by S&P or Xxxxx'x;
(e) promptly after (i) the same become publicly availableoccurrence thereof, notice of any ERISA Termination Event or "prohibited transaction", as such term is defined in Section 4975 of the Code, with respect to any Plan that results, or could reasonably be anticipated to result, in a Material Adverse Effect, which notice shall specify the nature thereof and the Borrower's proposed response thereto, and (ii) actual knowledge thereof, copies of all periodic and other reports, proxy statements and other materials filed by Holdings, the Borrower any notice of PBGC's intention to terminate or to have a trustee appointed to administer any Subsidiary with the SEC, or any Governmental Authority succeeding to any or all of the functions of said Commission, or with any national securities exchange, or, after the initial Public Equity Offering (disregarding for purposes of this Section 5.4(e) the Net Cash Proceeds dollar threshold contained in the definition of such term), distributed to its shareholders, as the case may be;
(f) promptly after the receipt thereof by Holdings or the Borrower or any Subsidiary, a copy of any “management letter” received by any such person from its certified public accountants and the management’s response theretoPlan; and
(gf) promptly, from time to time, such other information information, regarding the its operations, business affairs and financial condition of Holdings, the Borrower or any Subsidiarycondition, or compliance with the terms of any Loan Documentthis Agreement, as the Administrative Agent or any Lender may reasonably request. Documents required to be delivered pursuant to Section 5.4(a), (b) or (e) (to the extent any such documents are included in materials otherwise filed with the SEC) may be delivered electronically and if so delivered, shall be deemed to have been delivered on the date (i) on which the Borrower posts such documents, or provides a link thereto on the Borrower’s website on the Internet at the Borrower’s website address; or (ii) on which such documents are posted on the Borrower’s behalf on IntraLinks/IntraAgency or another relevant website, if any, to which each Lender and the Administrative Agent have access (whether a commercial, third-party website or whether sponsored by the Administrative Agent).
Appears in 3 contracts
Samples: Competitive Advance and Revolving Credit Facility Agreement (Citizens Communications Co), Competitive Advance and Revolving Credit Facility Agreement (Citizens Utilities Co), Competitive Advance and Revolving Credit Facility Agreement (Citizens Communications Co)
Financial Statements, Reports, etc. In the case of the BorrowerCompany, furnish to the Administrative Agent (either physically or through electronic delivery reasonably acceptable to the Administrative Agent), which shall furnish to each Lender:
(a) within 90 105 days after the end of each fiscal year, its consolidated balance sheet and related statements of income, stockholders’ equity and cash flows showing the financial condition of the Borrower and its consolidated Subsidiaries as of the close of and for such fiscal year and the results of its operations and the operations of such Subsidiaries during such year, together with comparative figures for the immediately preceding fiscal year, all audited by Ernst & Young PricewaterhouseCoopers LLP or other independent public accountants of recognized national standing and accompanied by an opinion of such accountants (which shall either (i) not be qualified in any material respectrespect (excluding for purposes of this clause (i) any “going concern” or like qualification or exception solely to the extent of, related solely to or resulting solely from the classification of the Loans hereunder as short-term indebtedness during the twelve-month period ending as of the Maturity Date) or (ii) be reasonably acceptable to the Required Lenders) to the effect that such consolidated financial statements present fairly present in all material respects the financial condition and results of operations of the Borrower Company and its consolidated Subsidiaries on a consolidated basis in accordance with GAAP consistently applied;
(b) within 45 50 days after the end of each of the first three fiscal quarters of each fiscal year, its consolidated balance sheet and related statements of income, stockholders’ equity and 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 for 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 Responsible Officers as presenting fairly presenting in all material respects the financial condition and results of operations of the Borrower Company and its consolidated Subsidiaries on a consolidated basis in accordance with GAAP consistently applied, subject to normal year-end audit adjustmentsadjustments and the absence of footnotes;
(c) concurrently with any delivery of financial statements under paragraph (a), ) or (b) above, a certificate Compliance Certificate executed by a Responsible Officer of the accounting firm (in the case of paragraph (a)) or Financial Officer (in the case of paragraph (b)) opining on or certifying such statements (which certificate, when furnished by an accounting firm, may be limited to accounting matters and disclaim responsibility for legal interpretations and which may be provided by a Financial Officer if accounting firms generally are not providing such certificates) Company (i) certifying that no Event of Default or Default has occurred or, if such an Event of Default or Default has occurred, specifying the nature and extent thereof and any corrective action taken or proposed to be taken with respect thereto and thereto, (ii) setting forth computations in reasonable detail satisfactory to the Administrative Agent demonstrating compliance with the covenants covenant contained in Sections 6.6, 6.10, 6.11 Section 7.05 and 6.12 (iii) stating whether any material change in GAAP or in the application thereof has occurred since the date of the audited financial statements referred to in Section 5.05 and, in if any such change has occurred, specifying the case effect of a certificate delivered with such change on 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 accompanying such change, describing such change in reasonable detail and certifying that Holdings is in compliance with Section 6.8certificate;
(d) within 45 days after the commencement of each fiscal year of the Borrower, a detailed consolidated budget for such fiscal year (including a projected consolidated balance sheet and related statements of projected operations and cash flows as of the end of and for such fiscal year);
(e) promptly after the same become publicly available, copies of all periodic and other reports, proxy statements and other materials filed by Holdings, the Borrower Company or any Subsidiary with the SEC, or any Governmental Authority succeeding to any or all of the functions of said Commission, or with any national securities exchange, or, after the initial Public Equity Offering (disregarding for purposes of this Section 5.4(e) the Net Cash Proceeds dollar threshold contained in the definition of such term), or distributed to its shareholdersshareholders generally, as the case may be;
(fe) promptly after the receipt thereof by Holdings or the Borrower or any Subsidiary, a copy of any “management letter” received by any such person from its certified public accountants and the management’s response thereto; and[reserved];
(gf) promptly, from time to time, such other information regarding the operations, business affairs and financial condition of Holdings, the Borrower Company or any Subsidiary, or compliance with the terms of any Loan Documentthis Agreement, as the Administrative Agent or any Lender may reasonably request;
(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 the Beneficial Ownership Regulation. Documents required to be delivered pursuant to this Section 5.4(a), (b) or (e) 6.04 (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 or the Parent posts such documents, or provides a link thereto on the Borrower’s or the Parent’s website on the Internet at the Borrower’s website addressaddress listed on Schedule 11.02; or (ii) on which such documents are posted on the Borrower’s or the Parent’s behalf on IntraLinks/IntraAgency an Internet or another relevant 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 Company shall deliver paper copies of such documents required to be delivered pursuant to Section 6.04(a) and (b) 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 (by telecopier or electronic mail) of the posting of any such documents required to be delivered pursuant to Section 6.04(a) and (b). 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 for delivery by a Lender, 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 the Joint Lead Arrangers will make available to the Lenders and the L/C Issuers materials and/or information provided by or on behalf of the Loan Parties hereunder (collectively, “Borrower Materials”) by posting the Borrower Materials on DebtDomain, IntraLinks, Syndtrak, ClearPar, or another similar electronic system (the “Platform”) and (b) certain of the Lenders (each, a “Public Lender”) may have personnel who do not wish to receive material non-public information with respect to any of the Company, 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 Loan Parties hereby agree that upon the written request of the Administrative Agent (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 Loan Parties shall be deemed to have authorized the Administrative Agent, the Joint Lead Arrangers, the L/C Issuers and the Lenders to treat such Borrower Materials as not containing any material non-public information with respect to the Borrower or the Parent or its respective securities for purposes of United States Federal and state securities laws (provided, however, that to the extent such Borrower Materials constitute Information, they shall be treated as set forth in Section 11.07); (y) all Borrower Materials marked “PUBLIC” are permitted to be made available through a portion of the Platform designated “Public Side Information;” and (z) the Administrative Agent and the Joint Lead 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.”
Appears in 2 contracts
Samples: Credit Agreement (Laboratory Corp of America Holdings), Credit Agreement (Laboratory Corp of America Holdings)
Financial Statements, Reports, etc. In the case of the Borrower, furnish Guarantor shall deliver (or cause to the Administrative Agent (either physically or through electronic delivery reasonably acceptable be delivered) to the Administrative Agent), which shall furnish to each LenderBuyer:
(a) within 90 days after the end of each fiscal year, its consolidated balance sheet as soon as available and related statements of income, stockholders’ equity and cash flows showing the financial condition of the Borrower and its consolidated Subsidiaries as of the close of such fiscal year and the results of its operations and the operations of such Subsidiaries during such year, together with comparative figures for the immediately preceding fiscal year, all audited by Ernst & Young LLP or other independent public accountants of recognized national standing and accompanied by an opinion of such accountants (which shall not be qualified in any material respectevent within forty-five (45) to the effect that such consolidated financial statements fairly present the financial condition and results of operations of the Borrower and its consolidated Subsidiaries on a consolidated basis in accordance with GAAP consistently applied;
(b) within 45 days after the end of each of the first three quarterly fiscal quarters periods of each fiscal yearyear of Parent Guarantor, its the unaudited, consolidated balance sheet and statement of equity of Parent Guarantor, which shall incorporate its consolidated Subsidiaries, as at the end of such period and the related unaudited, consolidated statements of income, stockholders’ equity operations and of cash flows showing the financial condition of the Borrower and for Parent Guarantor, which shall incorporate its consolidated Subsidiaries as of the close of Subsidiaries, for such fiscal quarter period and the results of its operations and the operations of such Subsidiaries during such fiscal quarter and the then elapsed portion of the fiscal yearyear through the end of such period, and comparative figures for accompanied by an Officer’s Certificate of Parent Guarantor, which certificate shall state that said consolidated financial statements fairly present the same periods in the immediately preceding fiscal year, all certified by one of its Financial Officers as fairly presenting the consolidated financial condition and results of operations of the Borrower Parent Guarantor and its consolidated Subsidiaries on a consolidated basis in accordance with GAAP GAAP, consistently applied, as at the end of, and for, such period (subject to normal year-end audit adjustments);
(c) concurrently with any delivery of financial statements under paragraph (a), or (b) above, a certificate of the accounting firm as soon as available and in any event within ninety (in the case of paragraph (a)90) or Financial Officer (in the case of paragraph (b)) opining on or certifying such statements (which certificate, when furnished by an accounting firm, may be limited to accounting matters and disclaim responsibility for legal interpretations and which may be provided by a Financial Officer if accounting firms generally are not providing such certificates) (i) certifying that no Event of Default or Default has occurred or, if such an Event of Default or Default has occurred, specifying the nature and extent thereof and any corrective action taken or proposed to be taken with respect thereto and (ii) setting forth computations in reasonable detail satisfactory to the Administrative Agent demonstrating compliance with the covenants contained in Sections 6.6, 6.10, 6.11 and 6.12 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 6.8;
(d) within 45 days after the commencement end of each fiscal year of Parent Guarantor, the Borrower, a detailed consolidated budget for such fiscal year (including a projected consolidated balance sheet and related statements statement of projected operations and cash flows equity of Parent Guarantor, which shall incorporate its consolidated Subsidiaries, if any, as of at the end of such fiscal year and the related consolidated statements of operations and of cash flows for Parent Guarantor, which shall incorporate its consolidated Subsidiaries, for such fiscal year);
(e) promptly after the same become publicly available, copies accompanied by an opinion thereon of all periodic and Xxxxx Xxxxxxxx LLP or other reports, proxy statements and other materials filed by Holdings, the Borrower or any Subsidiary with the SEC, or any Governmental Authority succeeding to any or all of the functions of said Commission, or with any national securities exchange, or, after the initial Public Equity Offering (disregarding for purposes of this Section 5.4(e) the Net Cash Proceeds dollar threshold contained in the definition of such term), distributed to its shareholders, as the case may be;
(f) promptly after the receipt thereof by Holdings or the Borrower or any Subsidiary, a copy of any “management letter” received by any such person from its independent certified public accountants of recognized national standing, which opinion shall not be qualified as to scope of audit or going concern and shall state that said consolidated financial statements fairly present the management’s response theretoconsolidated financial condition and results of operations of Parent Guarantor and its consolidated Subsidiaries as at the end of, and for, such fiscal year in accordance with GAAP; and
(gc) promptly, from time to timewithin ten (10) Business Days after Buyer’s request, such other further 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 may reasonably request. Documents required to be delivered pursuant to Section 5.4(a), (b) or (e) (respect to the extent any such documents are included in materials otherwise filed with the SEC) financial affairs of Guarantor as may be delivered electronically and if so delivered, shall be deemed to have been delivered on the date (i) on which the Borrower posts such documents, or provides a link thereto on the Borrower’s website on the Internet at the Borrower’s website address; or (ii) on which such documents are posted on the Borrower’s behalf on IntraLinks/IntraAgency or another relevant website, if any, to which each Lender and the Administrative Agent have access (whether a commercial, third-party website or whether sponsored reasonably requested by the Administrative Agent)Buyer.
Appears in 2 contracts
Samples: Guaranty Agreement (NorthStar Real Estate Income Trust, Inc.), Guaranty Agreement (NorthStar Real Estate Income II, Inc.)
Financial Statements, Reports, etc. In the case of the BorrowerIBM, furnish to the Administrative Agent (either physically or through electronic delivery reasonably acceptable for distribution to the Administrative Agent), which shall furnish to each LenderLenders:
(a) as soon as available and in any event within 90 days after the end of each fiscal year, its copies of the report filed by IBM with the SEC on Form 10-K in respect of such fiscal year, each accompanied by IBM’s annual report in respect of such fiscal year or, if IBM is not required to file such a report in respect of such fiscal year, the consolidated balance sheet and related statements consolidated income statement, consolidated statement of income, stockholders’ equity and cash flows showing the financial condition and consolidated statement of the Borrower equity of IBM and its consolidated Subsidiaries as of the close of such fiscal year and the results of its operations and the operations of such Subsidiaries during such year, together with comparative figures for the immediately preceding fiscal year, all audited by Ernst & Young LLP PricewaterhouseCoopers or other independent public accountants of recognized national standing and accompanied by an opinion of such accountants (which shall not be qualified in any material respect) 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 Borrower IBM and its consolidated Subsidiaries on a consolidated basis in accordance conformity with GAAP consistently appliedGAAP;
(b) as soon as available and in any event within 45 50 days after the end of each of the first three fiscal quarters quarterly periods of each fiscal year, its copies of the unaudited quarterly reports filed by IBM with the SEC on Form 10-Q in respect of such quarterly period, or if IBM is not required to file such a report in respect of such quarterly period, the unaudited consolidated balance sheet and related statements unaudited consolidated income statement, consolidated statement of income, stockholders’ equity and cash flows showing the financial condition and consolidated statement of the Borrower equity of IBM 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 yearquarter, and comparative figures for the same periods in the immediately preceding fiscal year, all certified by one a Responsible Officer of its Financial Officers IBM as fairly presenting presenting, in all material respects, the financial condition and position, results of operations and cash flows of the Borrower IBM and its consolidated Subsidiaries on a consolidated basis in accordance with GAAP consistently appliedGAAP, subject to normal year-end audit adjustments;
(c) concurrently with any delivery of financial statements under by IBM described in paragraph (a), ) or (b) aboveabove (whether contained in a report filed with the SEC or otherwise), a certificate of the accounting firm (a Responsible Officer of IBM substantially in the case form of paragraph (aSchedule 6.2(c)) or Financial Officer (in the case of paragraph (b)) opining on or certifying such statements (which certificate, when furnished by an accounting firm, may be limited to accounting matters and disclaim responsibility for legal interpretations and which may be provided by a Financial Officer if accounting firms generally are not providing such certificates) (i) certifying that no Event of Default or Default has occurred or, if such an Event of Default or Default has occurred, specifying the nature and extent thereof and any corrective action taken or proposed to be taken with respect thereto and (ii) setting forth computations in reasonable detail satisfactory to the Administrative Agent demonstrating compliance with the covenants contained in Sections 6.6, 6.10, 6.11 and 6.12 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 6.8;
(d) within 45 days after the commencement of each fiscal year of the Borrower, a detailed consolidated budget for such fiscal year (including a projected consolidated balance sheet and related statements of projected operations and cash flows as of the end of and for such fiscal year);
(e) promptly after the same become publicly available, copies of (i) all periodic financial statements, notices, reports and other reportsproxy materials distributed to stockholders of IBM and (ii) all reports on Form 10-K, proxy statements 10-Q and other materials 8-K (or their equivalents) filed by Holdings, the Borrower or any Subsidiary IBM with the SEC, SEC (or with any Governmental Authority succeeding to any or all of the functions of said Commission, or with any national securities exchange, or, after the initial Public Equity Offering (disregarding for purposes SEC) pursuant to the periodic reporting requirements of this Section 5.4(e) the Net Cash Proceeds dollar threshold contained in the definition Securities Exchange Act of such term), distributed to its shareholders1934, as amended, and the case may berules and regulations promulgated thereunder; provided, that documents required to be furnished under this paragraph (d) shall be deemed furnished when made available via the XXXXX (or any successor) system of the SEC;
(f) promptly after the receipt thereof by Holdings or the Borrower or any Subsidiary, a copy of any “management letter” received by any such person from its certified public accountants and the management’s response thereto; and
(ge) promptly, from time to time, (i) such other publicly available documents and information regarding the operations, business affairs and financial condition of HoldingsIBM, the Borrower any Significant Subsidiary or any SubsidiarySubsidiary Borrower (including information relating to “know your customer” or similar identification procedures), or compliance with the terms of this Agreement and (ii) solely with respect to each Subsidiary Borrower (if any), information and documentation reasonably requested by the Administrative Agent or any Loan DocumentLender for purposes of compliance with applicable “know your customer” and anti-money laundering rules and regulations, including the Patriot Act and the Beneficial Ownership Regulation, in each case, as the Administrative Agent or any Lender (through the Administrative Agent) may reasonably request. Documents required ; and
(f) within ten Business Days after the occurrence thereof, written notice of any change in Status; provided that the failure to be delivered provide such notice shall not delay or otherwise affect any change in the Applicable Margin or other amount payable hereunder which is to occur upon a change in Status pursuant to Section 5.4(a), the terms of this Agreement. With respect to the documents referred to in paragraphs (ba) or through (e) (to the extent any above, IBM shall furnish such documents are included in materials otherwise filed with the SEC) may be delivered electronically and if so delivered, shall be deemed to have been delivered on the date (i) on which the Borrower posts such documents, or provides a link thereto on the Borrower’s website on the Internet at the Borrower’s website address; or (ii) on which such documents are posted on the Borrower’s behalf on IntraLinks/IntraAgency or another relevant website, if any, to which each Lender and number of copies as the Administrative Agent have access (whether a commercial, third-party website or whether sponsored by the Administrative Agent)Lenders shall reasonably require for distribution to their personnel in connection with this Agreement.
Appears in 2 contracts
Samples: Five Year Credit Agreement (International Business Machines Corp), Five Year Credit Agreement (International Business Machines Corp)
Financial Statements, Reports, etc. In the case of the Borrower, furnish to the Administrative Agent and each Lender (either physically which such deliveries may be made electronically provided that at least one original or through electronic delivery reasonably acceptable hard copy (as applicable) is delivered to the Administrative Agent), which shall furnish to each Lender:Agent at such time):
(a) within 90 days after the end of each fiscal year, its audited consolidated balance sheet sheets and related statements of income, stockholders’ equity income and cash flows flow, showing the financial condition of the Borrower and its consolidated Subsidiaries as of the close of such fiscal year and the results of its operations and the operations of such Subsidiaries during such year, together with comparative figures for the immediately preceding fiscal year, all audited by Ernst & Young LLP or other independent public accountants of recognized national standing acceptable to the Agent and accompanied by an opinion of such 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 Borrower and its consolidated Subsidiaries on a consolidated basis in accordance with GAAP consistently applied;
(b) within 45 50 days after the end of each of the first three fiscal quarters of each fiscal year, its unaudited consolidated balance sheet sheets and related statements of income, stockholders’ equity income and cash flows flow, 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 the Financial Officer of its Financial Officers the Borrower as fairly presenting the financial condition and results of operations of the Borrower and its consolidated Subsidiaries on a consolidated basis in accordance with GAAP consistently applied, subject to normal year-end audit adjustments;
(c) concurrently with any delivery of financial statements under paragraph clause (a), ) or (b) above, a certificate of the accounting firm (in or the case of paragraph (a)) or Financial Officer (in of the case of paragraph (b)) Borrower opining on or certifying such statements (which certificate, when furnished by an accounting firm, may be limited to accounting matters and disclaim responsibility for legal interpretations interpretations) and which may in any event will be provided by a Financial Officer if accounting firms generally are not providing such certificates) based on the actual knowledge after due inquiry of the person giving the certificate, and:
(i) certifying that no Event of Default or Default has occurred or, if such an Event of Default or Default has occurred, specifying the nature and extent thereof and any corrective action taken or proposed to be taken with respect thereto and thereto;
(ii) setting forth computations in reasonable detail satisfactory to the Administrative Agent demonstrating compliance with the covenants contained in Sections 6.66.12 and 6.13; and
(iii) with respect to the computations delivered pursuant to Section 5.04(c)(ii), 6.10, 6.11 the Financial Officer shall break out and 6.12 and, in the case of a certificate delivered with separately provide the financial statements required by paragraph (a) above, (x) setting forth information relating solely to the Borrower’s calculation Unrestricted Subsidiaries and certify the accuracy 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 6.8information;
(d) within 45 days after the commencement of each fiscal year of the Borrower, a detailed consolidated budget for such fiscal year (including a projected consolidated balance sheet and related statements of projected operations and cash flows as of the end of and for such fiscal year);
(e) promptly after the same become publicly available, copies (which such deliveries may be made by email or facsimile provided that at least one original or hard copy (as applicable) is delivered to the Agent at such time) of all periodic and other reports, proxy statements and other materials filed by Holdings, the Borrower or any Subsidiary it with the SECSecurities and Exchange Commission, or any Governmental Authority succeeding to any of or all of the functions of said Commission, or with any national securities exchange, or, after the initial Public Equity Offering (disregarding for purposes of this Section 5.4(e) the Net Cash Proceeds dollar threshold contained in the definition of such term), or distributed to its shareholders, as the case may be;
(f) promptly after the receipt thereof by Holdings or the Borrower or any Subsidiary, a copy of any “management letter” received by any such person from its certified public accountants and the management’s response thereto; and
(ge) promptly, from time to time, such other information regarding the operations, business affairs and financial condition of Holdings, the Borrower or any Restricted Subsidiary, or compliance with the terms of any Loan Document, as the Administrative Agent or any Lender may reasonably request. Documents required to be delivered pursuant to Section 5.4(a), (b) or (e) (to the extent any such documents are included in materials otherwise filed with the SEC) may be delivered electronically and if so delivered, shall be deemed to have been delivered on the date (i) on which the Borrower posts such documents, or provides a link thereto on the Borrower’s website on the Internet at the Borrower’s website address; or (ii) on which such documents are posted on the Borrower’s behalf on IntraLinks/IntraAgency or another relevant website, if any, to which each Lender and the Administrative Agent have access (whether a commercial, third-party website or whether sponsored by the Administrative Agent).
Appears in 2 contracts
Samples: Senior Unsecured Revolving Credit Agreement (Choice Hotels International Inc /De), Senior Unsecured Revolving Credit Agreement (Choice Hotels International Inc /De)
Financial Statements, Reports, etc. In the case of the Borrower, furnish Furnish to the Administrative Agent (either physically or through electronic delivery reasonably acceptable and the Administrative Agent will promptly furnish such information to the Administrative Agent), which shall furnish to each Lender:Lenders):
(a) within 90 Within 30 days after following the end of each fiscal yearmonth, its for such fiscal month, a consolidated balance sheet and related statements of income, stockholders’ equity operations and cash flows showing the consolidated financial condition position of Holdings and its Subsidiaries, on a basis consistent with the basis for Holdings’ historical preparation of monthly management financial report;
(b) Within 90 days (or such other time period as specified in the SEC’s rules and regulations with respect to non-accelerated filers for the filing of annual reports on Form 10-K), for each fiscal year (commencing with the fiscal year ending December 31, 2011), (i) a consolidated balance sheet and related statements of operations, cash flows and owners’ equity showing the financial position of each of (x) Holdings and its Subsidiaries and (y) Borrower and its consolidated Subsidiaries as of the close of such fiscal year and the consolidated results of its operations and the operations of such Subsidiaries during such yearyear and, together starting with the fiscal year ending December 31, 2011, setting forth in comparative form the corresponding figures for the immediately preceding prior fiscal year, all which consolidated balance sheet and related statements of operations, cash flows and owners’ equity shall be audited by Ernst & Young LLP or other independent public accountants of recognized national standing and accompanied by an opinion of such accountants (which shall not be qualified in as to scope of audit or as to the status of Holdings, Borrower or any material respectMaterial Subsidiary as a going concern) 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 Holdings and its Subsidiaries, or Borrower and its consolidated Subsidiaries Subsidiaries, as applicable, on a consolidated basis in accordance with GAAP consistently appliedand (ii) management’s discussion and analysis (in reasonable detail) of significant operational and financial developments during the relevant period for Holdings and its Subsidiaries (it being understood that the delivery by Holdings of annual reports on Form 10-K of Holdings and its consolidated Subsidiaries shall satisfy the requirements of this Section 5.04(b) as to Holdings and its Subsidiaries to the extent such annual reports include the information specified herein);
(bc) within Within 45 days after (or such other time period as specified in the end SEC’s rules and regulations with respect to non-accelerated filers for the filing of quarterly reports on Form 10-Q), for each of the first three fiscal quarters of each fiscal year, its (i) a consolidated balance sheet and related statements of income, stockholders’ equity operations and cash flows showing the financial condition position of the each of (x) Holdings and its Subsidiaries and (y) Borrower and its consolidated Subsidiaries as of the close of such fiscal quarter and the consolidated results of its operations and the operations of such Subsidiaries during such fiscal quarter and the then then-elapsed portion of the fiscal year, year and setting forth in comparative form the corresponding figures for the same corresponding periods in of the immediately preceding prior fiscal yearyear and (ii) management’s discussion and analysis of significant operational and financial developments during such quarterly period for Holdings and its Subsidiaries, all of which shall be in reasonable detail and which consolidated balance sheet and related statements of operations and cash flows shall be certified by one a Financial Officer of its Financial Officers the Borrower on behalf of Holdings as fairly presenting presenting, in all material respects, the financial condition position and results of operations of the Holdings and its Subsidiaries, or Borrower and its consolidated Subsidiaries Subsidiaries, as applicable, on a consolidated basis in accordance with GAAP consistently applied, (subject to normal year-end audit adjustments;
(c) concurrently with any delivery adjustments and the absence of financial statements under paragraph (a), or (b) above, a certificate of the accounting firm (in the case of paragraph (a)) or Financial Officer (in the case of paragraph (b)) opining on or certifying such statements (which certificate, when furnished by an accounting firm, may be limited to accounting matters and disclaim responsibility for legal interpretations and which may be provided by a Financial Officer if accounting firms generally are not providing such certificatesfootnotes) (i) certifying it being understood that no Event the delivery by Holdings of Default or Default has occurred or, if such an Event quarterly reports on Form 10-Q of Default or Default has occurred, specifying Holdings and its consolidated Subsidiaries shall satisfy the nature and extent thereof and any corrective action taken or proposed to be taken with respect thereto and (ii) setting forth computations in reasonable detail satisfactory to the Administrative Agent demonstrating compliance with the covenants contained in Sections 6.6, 6.10, 6.11 and 6.12 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 6.8;
(d) within 45 days after the commencement of each fiscal year of the Borrower, a detailed consolidated budget for such fiscal year (including a projected consolidated balance sheet and related statements of projected operations and cash flows as of the end of and for such fiscal year);
(e) promptly after the same become publicly available, copies of all periodic and other reports, proxy statements and other materials filed by Holdings, the Borrower or any Subsidiary with the SEC, or any Governmental Authority succeeding to any or all of the functions of said Commission, or with any national securities exchange, or, after the initial Public Equity Offering (disregarding for purposes requirements of this Section 5.4(e5.04(c) the Net Cash Proceeds dollar threshold contained in the definition of such term), distributed as to Holdings and its shareholders, as the case may be;
(f) promptly after the receipt thereof by Holdings or the Borrower or any Subsidiary, a copy of any “management letter” received by any such person from its certified public accountants and the management’s response thereto; and
(g) 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 may reasonably request. Documents required to be delivered pursuant to Section 5.4(a), (b) or (e) (Subsidiaries to the extent any such documents are included in materials otherwise filed with quarterly reports include the SEC) may be delivered electronically and if so delivered, shall be deemed to have been delivered on the date (i) on which the Borrower posts such documents, or provides a link thereto on the Borrower’s website on the Internet at the Borrower’s website address; or (ii) on which such documents are posted on the Borrower’s behalf on IntraLinks/IntraAgency or another relevant website, if any, to which each Lender and the Administrative Agent have access (whether a commercial, third-party website or whether sponsored by the Administrative Agentinformation specified herein).;
Appears in 2 contracts
Samples: Credit Agreement (Quality Distribution Inc), Credit Agreement (Quality Distribution Inc)
Financial Statements, Reports, etc. In the case of the Borrower, The Credit Parties will furnish to the Administrative Agent (either physically or through electronic delivery reasonably acceptable to the Administrative Agent), which shall furnish to each LenderHolders:
(a) within 90 days after the end of each fiscal year, its the consolidated and consolidating balance sheet sheets and related statements of incomeoperations, stockholders’ equity and cash flows flows, showing the financial condition of the Borrower Parent Company and its consolidated Subsidiaries Subsidiaries, as of the close of such fiscal year and the results of its operations and the operations of such Subsidiaries during such year, together with comparative figures for the immediately preceding fiscal year, all such consolidated statements to be audited by an independent public accountant of recognized national or regional standing acceptable to the Holders (it being understood that Ernst & Young LLP or other independent public accountants of recognized national standing is acceptable to the Holders), and accompanied by an opinion of such accountants 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 Borrower Parent Company and its consolidated Subsidiaries on a consolidated basis in accordance with GAAP consistently appliedGAAP;
(b) within 45 days after the end of each of the first three fiscal quarters quarter of each fiscal year, its consolidated and consolidating balance sheet and related statements of incomeoperations, stockholders’ equity and cash flows showing the financial condition of the Borrower Parent Company and its consolidated Subsidiaries 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 Officer as fairly presenting in all material respects the financial condition and results of operations of the Borrower Parent Company and its consolidated Subsidiaries on a consolidated basis in accordance with GAAP consistently applied(but without footnotes), subject to normal year-end audit adjustments, together with a quarterly management summary description of operations (which requirement can be satisfied by delivery of the Management’s Discussion and Analysis from the Parent Company’s filings with the SEC on Form 10-K or 10-Q), together with detailed calculations evidencing compliance with the financial ratios and covenants set forth in Section 6.12;
(c) within 45 days after the end of each month through a series of reports, (i) its monthly and year-to-date consolidated and consolidating financial statements of the Parent Company and its Subsidiaries; (ii) in comparative form statements of operations with corresponding figures for the corresponding month, quarter-to-date and fiscal year-to-date period of the preceding fiscal year; and (iii) a forecast for the fiscal year compared to the annual budget;
(d) concurrently with any delivery of financial statements under sub-paragraph (a), ) or (b) above, a certificate of the accounting firm (in the case of paragraph (a)) or Parent Company duly executed on its behalf by a Financial Officer (of the Parent Company, in the each case of paragraph (b)) opining on or certifying such statements (which certificate, when furnished by an accounting firm, may be limited to accounting matters and disclaim responsibility for legal interpretations and which may be provided by interpretations) containing a Financial Officer if accounting firms generally are not providing such certificates) (i) detailed calculation of the relevant items used to calculate compliance with the financial covenants set forth in Section 6.12 and, certifying that no Event of Default or Default has occurred or, if such an Event of Default or Default has occurred, specifying the nature and extent thereof and any corrective action taken or proposed to be taken with respect thereto and (ii) setting forth computations in reasonable detail satisfactory to the Administrative Agent demonstrating compliance with the covenants contained in Sections 6.6, 6.10, 6.11 and 6.12 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 6.8;
(d) within 45 days after the commencement of each fiscal year of the Borrower, a detailed consolidated budget for such fiscal year (including a projected consolidated balance sheet and related statements of projected operations and cash flows as of the end of and for such fiscal year)thereto;
(e) promptly to the extent that any Credit Party becomes subject to such reporting requirements, promptly, but in all events within three Business Days after the same become publicly available, copies of all final periodic and other reports, proxy statements and other materials filed by Holdings, the Borrower or any Subsidiary such Credit Party with the U.S. Securities and Exchange Commission (the “SEC”), or any Governmental Authority succeeding to any or all of the functions of said Commissionthe SEC, or with any national securities exchange, or, after the initial Public Equity Offering (disregarding for purposes of this Section 5.4(e) the Net Cash Proceeds dollar threshold contained in the definition of such term), 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 SEC), as the case may be;
(f) within 30 days of filing, copies of all material documents filed by any Credit Party other than in the ordinary course of business with any Governmental Authority, including, without limitation, the U.S. Internal Revenue Service, the U.S. Environmental Protection Agency (and any state equivalent), the U.S. Occupational Safety & Health Administration and the SEC;
(g) promptly after the receipt thereof upon request by Holdings any Holder, copies of all pleadings related to any material action, suit or the Borrower proceeding, whether at law or in equity or by or before any Governmental Authority, by or against any Credit Party or any SubsidiaryAffiliate thereof;
(h) as soon as practicable, and in any event not later than 120 days following to commencement of each calendar year, a copy of the Credit Parties’ annual budget (detailed on a quarterly basis) for such fiscal year, in a form consistent with the financial statements provided hereunder;
(i) within 10 days of receipt, copies of any “management notice of default on any loans or leases which default is in excess of $500,000, individually or in the aggregate, to which any Credit Party is a party;
(j) if any Credit Party shall receive any letter” received , notice, subpoena, court order, pleading or other document issued, given or delivered by the Government, any Prime Contractor or by any person or entity acting for or on behalf of the Government or such Prime Contractor with respect to, or in any manner related to any alleged default, fraud, dishonesty, malfeasance or other willful misconduct of a Credit Party, a copy of such letter, notice, subpoena, court order, pleading, or document to each Holder within three Business Days of such Credit Party’s receipt thereof, provided that if any letter, notice, subpoena, court order, pleading or other document required to be delivered to each Holder pursuant to this clause (j) contains any information deemed “classified” by the Government and/or the dissemination of any such information to each Holder would result in the Credit Parties violation any Applicable Law, then the Credit Parties may deliver a summary thereof, but including as much (but no more than) detail as can be included therein without violating any Applicable Law;
(k) if any Credit Party shall issue, give or deliver to the Government, any Prime Contractor or by any person from its certified public accountants or entity acting for or on behalf of the Government or such Prime Contractor any letter, notice, subpoena, court order, pleading or other document with respect to, or in any manner related to, or otherwise in response to any alleged default, fraud, dishonesty, malfeasance or other willful misconduct of a Credit Party, a copy of such letter, notice, subpoena, court order, pleading, or document to each Holder concurrent with the Credit Party’s issuance or delivery thereof to the Government, Prime Contractor or any person or entity acting for or on behalf of the Government of such Prime Contractor; provided that if any letter, notice, subpoena, court order, pleading or other document required to be delivered to each Holder pursuant to this clause (k) contains any information deemed “classified” by the Government and/or the dissemination of any such information to each Holder would result in the Credit Parties violation any Applicable Law, then the Credit Parties may deliver a summary thereof, but including as much (but no more than) detail as can be included therein without violating any Applicable Law;
(l) promptly after entering into the same, copies of (i) all shareholders agreements and (ii) all employment agreements and other agreements of any Credit Party, the management’s response theretobreach or termination of which could reasonably be expected to have a Material Adverse Effect; and
(gm) promptly, from time to time, such other information regarding the operations, business affairs and financial condition of Holdings, the Borrower or any SubsidiaryCredit Party, or compliance with the terms of any Loan Document, as the Administrative Agent or any Lender Holder may reasonably request. Documents request (including any information necessary to enable the Holders to file any form required to be delivered pursuant to Section 5.4(a), (b) or (e) (to the extent by any such documents are included in materials otherwise filed with the SEC) may be delivered electronically and if so delivered, shall be deemed to have been delivered on the date (i) on which the Borrower posts such documents, or provides a link thereto on the Borrower’s website on the Internet at the Borrower’s website address; or (ii) on which such documents are posted on the Borrower’s behalf on IntraLinks/IntraAgency or another relevant website, if any, to which each Lender and the Administrative Agent have access (whether a commercial, third-party website or whether sponsored by the Administrative AgentGovernmental Authority).
Appears in 2 contracts
Samples: Loan Agreement (Opinion Research Corp), Loan Agreement (Opinion Research Corp)
Financial Statements, Reports, etc. In the case of the Borrower, furnish Furnish to the Administrative Agent (either physically or through electronic delivery reasonably acceptable to the Administrative Agent), which shall furnish to each LenderBank:
(a) (i) as soon as available, but in any event within 90 days after the end of each fiscal yearyear of the Co-Borrowers, its a copy of the audited consolidated balance sheet of P&F and its Subsidiaries as of the end of such year and the related audited consolidated statements of income, stockholders’ shareholders equity and cash flows showing flow for such year, setting forth in each case in comparative form the respective figures for the previous fiscal year end, and accompanied by a report thereon of BDO Xxxxxxx, LLP or other independent certified public accountants of recognized standing selected by the Co-Borrowers and reasonably satisfactory to the Bank (the "Auditor"), which report shall be unqualified; and (ii) as soon as available, but in any event within 90 days after the end of each fiscal year of P&F and each of its Subsidiaries, a copy of the management prepared consolidating financial statements of the Co-Borrowers setting forth in comparative form the respective figures for the previous fiscal year end and which support the financial condition statements delivered pursuant to clause (i), in each case of (i) and (ii) prepared in accordance with GAAP, applied on a consistent basis and with respect to the statements referred to in clause (ii) accompanied by a certificate to that effect executed by the Chief Financial Officer;
(b) as soon as available, but in any event not later than 60 days after the end of each quarterly period of each fiscal year of the Borrower Co-Borrowers, a copy of the unaudited interim consolidated and consolidating balance sheet of P&F and its Subsidiaries as of the end of each such quarter and the related unaudited interim consolidated Subsidiaries and consolidating statements of income, shareholders equity and cash flow for such quarter and the portion of the fiscal year through such date and setting forth in each case in comparative form the respective figures for the corresponding date and period in the previous fiscal year, in each case prepared by the Chief Financial Officer in accordance with GAAP, applied on a consistent basis and accompanied by a certificate to that effect executed by the Chief Financial Officer;
(c) a certificate prepared and signed by the Chief Financial Officer with each delivery required by (a) and (b), as to whether or not, as of the close of such fiscal year preceding period and at all times during such preceding period, the Co-Borrowers were in compliance with all the provisions in this Agreement, showing computation of financial covenants and quantitative negative covenants, and if the Auditor or Chief Financial Officer, as the case may be, shall have obtained knowledge of any default in such compliance or notice of such default, it shall disclose in such certificate such default or defaults or notice thereof and the results of its operations and the operations of such Subsidiaries during such yearnature thereof, together with comparative figures for the immediately preceding fiscal year, all audited by Ernst & Young LLP whether or other independent public accountants of recognized national standing and accompanied by an opinion of such 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 Borrower and its consolidated Subsidiaries on a consolidated basis in accordance with GAAP consistently applied;
(b) within 45 days after the end of each of the first three fiscal quarters of each fiscal year, its consolidated balance sheet and related statements of income, stockholders’ equity and 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 Borrower and its consolidated Subsidiaries on a consolidated basis in accordance with GAAP consistently applied, subject to normal year-end audit adjustments;
(c) concurrently with any delivery of financial statements under paragraph (a), or (b) above, a certificate of the accounting firm (in the case of paragraph (a)) or Financial Officer (in the case of paragraph (b)) opining on or certifying such statements (which certificate, when furnished by an accounting firm, may be limited to accounting matters and disclaim responsibility for legal interpretations and which may be provided by a Financial Officer if accounting firms generally are not providing such certificates) (i) certifying that no Event of Default or Default has occurred or, if such shall constitute an Event of Default or Default has occurred, specifying the nature and extent thereof and any corrective action taken or proposed to be taken with respect thereto and hereunder;
(iid) setting forth computations at all times indicated in reasonable detail satisfactory to the Administrative Agent demonstrating compliance with the covenants contained in Sections 6.6, 6.10, 6.11 and 6.12 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 6.8;
(d) within 45 days after the commencement of each fiscal year a copy of the Borrowermanagement letter, 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 if any, prepared by the end of and for such fiscal year)Auditor;
(e) promptly after the same become publicly availablefiling thereof, copies of all regular and periodic financial information, proxy materials and other reports, proxy statements information and other materials filed by Holdings, the Borrower reports which P&F or any Subsidiary of its Subsidiaries shall file with the SEC, or any Governmental Authority succeeding to any or all of the functions of said Securities and Exchange Commission, or with any national securities exchange, or, after the initial Public Equity Offering (disregarding for purposes of this Section 5.4(e) the Net Cash Proceeds dollar threshold contained in the definition of such term), distributed to its shareholders, as the case may be;
(f) simultaneously with the delivery of the financial statements referred to in clauses (a) and (b) above, quarterly accounts receivable aging reports for the Co-Borrowers, in form satisfactory to the Bank;
(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 receipt thereof normal course of business and which could not reasonably be expected to result in any materially adverse action to be taken by Holdings or the Borrower or any Subsidiary, a copy of any “management letter” received by any such person from its certified public accountants and the management’s response theretoagency; and
(gh) promptly, from time to time, such other information regarding the operations, business affairs and condition, financial condition or otherwise, of Holdingsthe Co-Borrowers, the Borrower or any Subsidiaryof them, or compliance with the terms any of any Loan Document, their Subsidiaries as the Administrative Agent or any Lender Bank may reasonably request. Documents required to be delivered pursuant to Section 5.4(a), (b) or (e) (to the extent any such documents are included in materials otherwise filed with the SEC) may be delivered electronically and if so delivered, shall be deemed to have been delivered on the date (i) on which the Borrower posts such documents, or provides a link thereto on the Borrower’s website on the Internet at the Borrower’s website address; or (ii) on which such documents are posted on the Borrower’s behalf on IntraLinks/IntraAgency or another relevant website, if any, to which each Lender and the Administrative Agent have access (whether a commercial, third-party website or whether sponsored by the Administrative Agent).
Appears in 2 contracts
Samples: Credit Agreement (P&f Industries Inc), Credit Agreement (P&f Industries Inc)
Financial Statements, Reports, etc. In the case of the Borrower, furnish Furnish to the Administrative Agent (either physically or through electronic delivery reasonably acceptable which will promptly furnish such information to the Administrative Agent), which shall furnish to each Lender:Lenders):
(a) within 90 ninety (90) days (or such shorter period as the SEC shall specify for the filing of Annual Reports on Form 10-K) after the end of each fiscal year, its if not filed electronically with the SEC and publicly available for retrieval by the Lenders, a consolidated balance sheet and related statements of incomeoperations, stockholderscash flows and owners’ equity and cash flows showing the financial condition position of the Borrower Company and its consolidated Subsidiaries as of the close of such fiscal year and the consolidated results of its their operations and the operations of such Subsidiaries during such year, together with year and setting forth in comparative form the corresponding figures for the immediately preceding prior fiscal year, all audited by Ernst & Young LLP or other independent public accountants of recognized national standing reasonably acceptable to the Administrative Agent and accompanied by an opinion of such accountants (which 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 Borrower Company and its consolidated Subsidiaries on a consolidated basis in accordance with GAAP consistently applied;(it being understood that the electronic filing with the SEC by Company of Annual Reports on Form 10-K of Company and its consolidated Subsidiaries to the extent publicly available for retrieval by the Lenders shall satisfy the requirements of this Section 5.04(a) to the extent such Annual Reports include the information specified herein).
(b) within 45 forty-five (45) days (or such shorter period as the SEC shall specify for the filing of Quarterly Reports on Form 10-Q) after the end of each of the first three (3) fiscal quarters of each fiscal year, its if not filed electronically with the SEC and publicly available for retrieval by the Lenders, a consolidated balance sheet and related statements of income, stockholders’ equity operations and cash flows showing the financial condition position of the Borrower Company and its consolidated Subsidiaries as of the close of such fiscal quarter and the consolidated results of its their operations and the operations of such Subsidiaries during such fiscal quarter and the then then-elapsed portion of the fiscal year, year and setting forth in comparative form the corresponding figures for the same corresponding periods in of the immediately preceding prior fiscal year, all certified by one a Financial Officer of its Financial Officers Company, on behalf of Company, as fairly presenting presenting, in all material respects, the financial condition position and results of operations of the Borrower Company and its consolidated Subsidiaries on a consolidated basis in accordance with GAAP consistently applied, (subject to normal year-end audit adjustmentsadjustments and the absence of footnotes) (it being understood that the electronic filing with the SEC by Company of Quarterly Reports on Form 10-Q of Company and its consolidated Subsidiaries to the extent publicly available for retrieval by the Lenders shall satisfy the requirements of this Section 5.04(b) to the extent such Quarterly Reports include the information specified herein);
(c) (x) concurrently with any delivery of financial statements under paragraph (a), ) or (b) above, a certificate of the accounting firm (in the case of paragraph (a)) or Financial Officer (in the case of paragraph (b)) opining on or certifying such statements (which certificate, when furnished by an accounting firm, may be limited to accounting matters and disclaim responsibility for legal interpretations and which may be provided by a Financial Officer if accounting firms generally are not providing such certificates) of Company (i) certifying that no Event of Default or Default has occurred or, if such an Event of Default or Default has occurred, specifying the nature and extent thereof and any corrective action taken or proposed to be taken with respect thereto and (ii) commencing with the fiscal period ending June 30, 2010 setting forth computations in reasonable detail satisfactory to the Administrative Agent demonstrating compliance with the covenants contained in Sections 6.6, 6.10, 6.11 and 6.12 and, in the case and (y) concurrently with any delivery of a certificate delivered with the financial statements required by paragraph under (a) above, a certificate of the accounting firm opining on or certifying such statements stating whether they obtained knowledge during the course of their examination of such statements of any Default or Event of Default (x) setting forth which certificate may be limited to accounting matters and disclaims responsibility for legal interpretations), provided that issuance by such accounting firm of an unqualified audit opinion shall be deemed to satisfy the Borrower’s calculation of Excess Cash Flow and requirement under this clause (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 6.8);
(d) within 45 days after the commencement of each fiscal year of the Borrower, a detailed consolidated budget for such fiscal year (including a projected consolidated balance sheet and related statements of projected operations and cash flows as of the end of and for such fiscal year)[Intentionally Omitted];
(e) promptly after if, as a result of any change in accounting principles and policies from those as in effect on the same become publicly available, copies of all periodic and other reports, proxy statements and other materials filed by HoldingsClosing Date, the Borrower consolidated financial statements of Company and its Subsidiaries delivered pursuant to paragraphs (a) or (b) above will differ in any Subsidiary material respect from the consolidated financial statements that would have been delivered pursuant to such clauses had no such change in accounting principles and policies been made, then, together with the SECfirst delivery of financial statements pursuant to paragraph (a) and (b) above following such change, or any Governmental Authority succeeding a schedule prepared by a Financial Officer on behalf of Company reconciling such changes to any or all of what the functions of said Commission, or with any national securities exchange, or, after the initial Public Equity Offering (disregarding for purposes of this Section 5.4(e) the Net Cash Proceeds dollar threshold contained in the definition of financial statements would have been without such term), distributed to its shareholders, as the case may bechanges;
(f) promptly within ninety (90) days after the receipt thereof beginning of each fiscal year, an operating and capital expenditure budget, in form satisfactory to the Administrative Agent prepared by Holdings the Company for each of the four (4) fiscal quarters of such fiscal year prepared in reasonable detail, of the Company and the Subsidiaries, accompanied by the statement of a Financial Officer of the Company to the effect that, to the best of his knowledge, the budget is a reasonable estimate for the period covered thereby;
(g) annually, upon the reasonable request of the Administrative Agent, updated Perfection Certificates (or, to the extent such request relates to specified information contained in the Perfection Certificates, such information) reflecting all changes since the date of the information most recently received pursuant to this paragraph (g) or the Borrower or any SubsidiarySection 5.10(d);
(h) promptly, a copy of all reports submitted to the Board of Directors (or any “management letter” received committee thereof) of the Company or any Subsidiary in connection with any material interim or special audit made by independent accountants of the books of the Company or any such person from its certified public accountants and the management’s response thereto; andSubsidiary;
(gi) promptly, from time to time, such other information regarding the operations, business affairs and financial condition of Holdings, the Borrower Company or any Subsidiaryof the Subsidiaries, or compliance with the terms of any Loan Document, or such consolidating financial statements, as in each case the Administrative Agent may reasonably request (for itself or on behalf of any Lender); and
(j) promptly upon request by the Administrative Agent, copies of: (i) each Schedule B (Actuarial Information) to the annual report (Form 5500 Series) filed with the Internal Revenue Service with respect to a Plan; (ii) the most recent actuarial valuation report for any Plan; (iii) all notices received from a Multiemployer Plan sponsor or 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 or any Lender may shall reasonably request. Documents required to be delivered pursuant to Section 5.4(a), (b) or (e) (to the extent any such documents are included in materials otherwise filed with the SEC) may be delivered electronically and if so delivered, shall be deemed to have been delivered on the date (i) on which the Borrower posts such documents, or provides a link thereto on the Borrower’s website on the Internet at the Borrower’s website address; or (ii) on which such documents are posted on the Borrower’s behalf on IntraLinks/IntraAgency or another relevant website, if any, to which each Lender and the Administrative Agent have access (whether a commercial, third-party website or whether sponsored by the Administrative Agent).
Appears in 2 contracts
Samples: Credit Agreement (Chart Industries Inc), Credit Agreement (Chart Industries Inc)
Financial Statements, Reports, etc. In the case of the Borrower, furnish to the Administrative Agent (either physically or through electronic delivery reasonably acceptable to the Administrative Agent), which shall furnish to each Lender:
(a) the earlier of (x) the date of the required public filing of the same and (y) within 90 105 days after the end of each fiscal year, its consolidated balance sheet and related statements of income, stockholders’ ' equity and cash flows showing the financial condition of the Borrower and its consolidated Subsidiaries as of the close of such fiscal year and the results of its operations and the operations of such Subsidiaries during such year, together with comparative figures for the immediately preceding fiscal year, all audited by Ernst & Young LLP or other independent public accountants of recognized national standing and accompanied by an opinion of such 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 Borrower and its consolidated Subsidiaries on a consolidated basis in accordance with GAAP consistently applied;
(b) within 45 days after the end of each of the first three fiscal quarters of each fiscal year, its consolidated balance sheet and related statements of income, stockholders’ ' equity and 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 Borrower and its consolidated Subsidiaries on a consolidated basis in accordance with GAAP consistently applied, subject to normal year-end audit adjustments;
(c) concurrently with any delivery of financial statements under paragraph (a), ) or (b) above, a certificate of the accounting firm (in the case of paragraph (a)) or Financial Officer (in the case of paragraph (b)) opining on or certifying such statements (which certificate, when furnished by an accounting firm, may be limited to accounting matters and disclaim responsibility for legal interpretations and which may be provided by a Financial Officer if accounting firms generally are not providing such certificates) (i) certifying that no Event of Default or Default has occurred or, if such an Event of Default or Default has occurred, specifying the nature and extent thereof and any corrective action taken or proposed to be taken with respect thereto and (ii) setting forth computations in reasonable detail satisfactory to the Administrative Agent demonstrating compliance with the covenants contained in Sections 6.6, 6.10, 6.11 and 6.12 and, in the case of a certificate delivered with the financial statements required by paragraph (a) above, (x) setting forth the Borrower’s '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 6.8;
(d) within 45 days after the commencement of each fiscal year of the Borrower, a detailed consolidated budget for such fiscal year (including a projected consolidated balance sheet and related statements of projected operations and cash flows as of the end of and for such fiscal year);
(e) promptly after the same become publicly available, copies of all periodic and other reports, proxy statements and other materials filed by Holdings, the Borrower or any Subsidiary with the SEC, or any Governmental Authority succeeding to any or all of the functions of said Commission, or with any national securities exchange, or, after the initial Public Equity Offering (disregarding for purposes of this Section 5.4(e) the Net Cash Proceeds dollar threshold contained in the definition of such term), distributed to its shareholders, as the case may be;
(f) promptly after the receipt thereof by Holdings or the Borrower or any Subsidiary, a copy of any “"management letter” " received by any such person from its certified public accountants and the management’s 's response thereto; and
(g) 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 may reasonably request. Documents required to be delivered pursuant to Section 5.4(a), (b) or (e) (to the extent any such documents are included in materials otherwise filed with the SEC) may be delivered electronically and if so delivered, shall be deemed to have been delivered on the date (i) on which the Borrower posts such documents, or provides a link thereto on the Borrower’s 's website on the Internet at the Borrower’s 's website address; or (ii) on which such documents are posted on the Borrower’s 's behalf on IntraLinks/IntraAgency or another relevant website, if any, to which each Lender and the Administrative Agent have access (whether a commercial, third-party website or whether sponsored by the Administrative Agent).
Appears in 2 contracts
Samples: Credit Agreement (Spheris Operations Inc.), Credit Agreement (Spheris Leasing LLC)
Financial Statements, Reports, etc. In the case of the Borrower, furnish to the Administrative Agent (either physically or through electronic delivery reasonably acceptable to the Administrative Agent), which shall furnish who will deliver to each Lender:
(a) (i) within 90 days after the end of each fiscal year, its consolidated balance sheet and related statements of income, stockholders’ equity and cash flows showing the financial condition of the Borrower and its consolidated Subsidiaries as of the close of such fiscal year and the results of its operations and the operations of such Subsidiaries during such year, together with comparative figures for the immediately preceding fiscal yearmost recent budget delivered to the Administrative Agent under Section 5.04(f), all audited by Ernst & Young LLP KPMG or other independent public accountants of recognized national standing or such other independent registered public accounting firm reasonably acceptable to the Administrative Agent (such consent not to be unreasonably withheld, delayed or conditioned) and accompanied by an opinion of such accountants (which shall not be qualified in any material respectrespect other than solely as a result of a current maturity of the Loans) to the effect that such consolidated financial statements fairly present 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; and (ii) within 60 days (or, in the case of any audited statements and risk-based capital reports required to be delivered pursuant to this clause (ii), 180 days) after the close of each fiscal year of each Regulated Insurance Subsidiary, the annual statement of such Regulated Insurance Subsidiary (prepared in accordance with SAP) for such fiscal year and as filed with the Insurance Regulators of the state in which such Regulated Insurance Subsidiary is domiciled (together with any certifications or statements of such Regulated Insurance Subsidiary relating to such annual statement and any audited statements and risk-based capital reports, in each case which are required by such Insurance Regulators);
(b) (i) within 45 days after the end of each of the first three fiscal quarters of each fiscal year, its consolidated balance sheet and related statements of income, stockholders’ equity and 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 yearmost recent budget delivered to the Administrative Agent under Section 5.04(f), 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 adjustmentsadjustments and the absence of footnotes; and (ii) within 60 days after the close of each of the first three quarterly accounting periods in each fiscal year of each Regulated Insurance Subsidiary, quarterly financial statements of such Regulated Insurance Company (prepared in accordance with SAP) for such quarterly accounting period as filed with the Insurance Regulators of the state in which such Regulated Insurance Subsidiary is domiciled (together with any certifications or statements of such Regulated Insurance Subsidiary relating to such quarterly financial statements which are required by such Insurance Regulators);
(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 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 in all material respects the financial condition and results of operations of the Borrower and its consolidated Subsidiaries on a consolidated basis in accordance with GAAP consistently applied, subject to normal year-end audit adjustments and the absence of footnotes;
(d) concurrently with any delivery of financial statements under paragraph (a), ) or (b) above, (i) a certificate of the accounting firm (in the case of paragraph (a)) or Financial Officer (in the case of paragraph (b)) opining on or certifying such statements (which certificate, when furnished by an accounting firm, may be limited to accounting matters and disclaim responsibility for legal interpretations and which may be provided by a Financial Officer if accounting firms generally are not providing such certificates) (i) certifying that no Event of Default or Default has occurred or, if such an Event of Default or Default has occurred, specifying the nature and extent thereof and any corrective action taken or proposed to be taken with respect thereto and (ii) setting forth computations in reasonable detail satisfactory to the Administrative Agent demonstrating compliance with the covenants contained in Sections 6.66.11, 6.106.12, 6.11 6.13 and 6.12 6.14, 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 6.8Flow;
(de) concurrently with any delivery of financial statements under paragraph (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 Event of Default or Default with respect to Sections 6.11, 6.12, 6.13 or 6.14 (which certificate may be limited to the extent required by generally accepted accounting rules or guidelines);
(f) within 45 90 days after the commencement end of each fiscal year of the Borrower, a detailed consolidated quarterly budget for the fiscal year following such fiscal year then ended (including a projected consolidated and consolidating balance sheet sheet, income statement and related statements of projected operations and cash flows as of the end of and for such following fiscal year)year and setting forth the assumptions used for purposes of preparing such budget) and, promptly when available, any significant revisions of such budget;
(eg) promptly after the same become publicly available, copies of all periodic and other reports, proxy statements and other materials filed by Holdings, the Borrower or any Subsidiary with the SEC, or any Governmental Authority succeeding to any or all of the functions of said Commission, or with any national securities exchange, or, after the initial Public Equity Offering (disregarding for purposes of this Section 5.4(e) the Net Cash Proceeds dollar threshold contained in the definition of such term), or distributed generally to its shareholders, as the case may be;
(fh) promptly after the receipt thereof by Holdings or the Borrower or any Subsidiaryof the Subsidiaries, a copy of any final “management letter” (whether in final or draft form) received by any such person Person from its certified public accountants and the management’s response thereto; andthereto (subject to any confidentiality restrictions);
(gi) promptly following receipt or as promptly as reasonably practicable following the request of the Administrative Agent or the Required Lenders, a report prepared by an independent actuarial consulting firm of recognized professional standing reasonably satisfactory to the Administrative Agent and the Required Lenders reviewing the adequacy of reserves of each Regulated Insurance Subsidiary determined in accordance with SAP, which firm shall be provided access to or copies of all reserve analyses and valuations relating to the insurance business of each Regulated Insurance Subsidiary in the possession of or available to the Borrower or its Subsidiaries; provided that no request may be made pursuant to this clause (i) unless there shall have occurred and be continuing an Event of Default;
(j) promptly (i) after receipt thereof, copies of all regular and periodic reports of examinations (including, without limitation, triennial examinations and annual risk adjusted capital reports) of any Regulated Insurance Subsidiary, delivered to such Person by any Insurance Regulators, insurance commission or similar regulatory authority, (ii) after receipt thereof, written notice of any assertion by any Insurance Regulators or any governmental agency or agencies substituted therefor, as to a violation of any Requirement of Law by any Regulated Insurance Subsidiary which could reasonably be expected to have a Material Adverse Effect, (iii) after receipt thereof, a copy of any notice of termination, cancellation or recapture of any Reinsurance Agreement or Retrocession Agreement to which a Regulated Insurance Subsidiary is a party to the extent such termination or cancellation is likely to have a Material Adverse Effect, (iv) after receipt thereof, copies of any notice of actual suspension, termination or revocation of any material license of any Regulated Insurance Subsidiary by any Insurance Regulators, including any request by an Insurance Regulators which commits a Regulated Insurance Subsidiary to take or refrain from taking any action or which otherwise affects the authority of such Regulated Insurance Subsidiary to conduct its business and (v) an in any event within 30 Business Days after Borrower or any of its Subsidiaries obtains knowledge thereof, notice of any actual changes in the insurance Requirements of Laws enacted in any state in which any Regulated Insurance Subsidiary is domiciled which would reasonably be expected to have a Material Adverse Effect;
(k) concurrently with any delivery of financial statements under paragraph (a) or (b) above, (i) in connection with the termination of each Reinsurance Agreement and Retrocession Agreement (other than with respect to any such agreement with the Borrower or any Subsidiary thereof), a copy of the slip or other document, agreement or correspondence with each reinsurer, retrocessionaire, reinsurance broker or agent which will amend, restate or supersede such terminating Reinsurance Agreement or Retrocession Agreement, and (ii) in connection with the execution of any Reinsurance Agreement and Retrocession Agreement, a copy of each such Reinsurance Agreement and Retrocession Agreement (other than with respect to any such agreement with the Borrower or any Subsidiary thereof), certified to be complete and correct by an authorized signatory of the Regulated Insurance Subsidiary a party to such agreement acceptable to the Administrative Agent;
(l) concurrently with any delivery of financial statements under paragraph (a) or (b) above, a copy of (i) each A.M. Best report, if any, with respect to Borrower of any of its Subsidiaries, and (ii) all written correspondence from A.M. Best to Borrower or any of its Subsidiaries the contents of which (A) relate to a probable downgrade of the A.M. Best rating of any Regulated Insurance Subsidiary or (B) describe or relate to a circumstance that would reasonably be expected to have a Material Adverse Effect;
(m) promptly, from time to time, such other information regarding the operations, business affairs and financial condition of Holdings, the Borrower or any Subsidiary, or compliance with the terms of any Loan Document, as the Administrative Agent or any Lender may reasonably request. Documents required request (provided that nothing in this clause (n) shall require the Borrower or its Subsidiaries to be delivered pursuant provide information subject to Section 5.4(aDisclosure Exceptions), ; and
(n) within 10 days of delivery of financial statements under paragraph (a) or (b) above, management’s discussion and analysis of the important operational and financial developments during such fiscal year or (e) (to the extent any such documents are included in materials otherwise filed fiscal quarter, as applicable, consistent with the SEC) may be delivered electronically and if so delivered, shall be deemed to have been delivered on the date (i) on which the Borrower posts such documents, or provides a link thereto on the Borrower’s website on the Internet at the Borrower’s website address; or (ii) on which such documents are posted on the Borrower’s behalf on IntraLinks/IntraAgency or another relevant website, if any, to which each Lender and the Administrative Agent have access (whether a commercial, third-party website or whether sponsored by the Administrative Agent)historical practice.
Appears in 2 contracts
Samples: Credit Agreement (Affirmative Insurance Holdings Inc), Second Lien Credit Agreement (Affirmative Insurance Holdings Inc)
Financial Statements, Reports, etc. In the case of the BorrowerHoldings, furnish to the Administrative Agent (either physically or through electronic delivery reasonably acceptable to the Administrative Agent), which shall furnish such statements, certificates or other documents received pursuant to this Section 5.04 to each Lender:Lender and Issuing Bank):
(a) within 90 days after the end of each fiscal year, its consolidated balance sheet and related statements of income, stockholders’ equity and cash flows showing the financial condition of the Borrower Holdings and its consolidated Subsidiaries subsidiaries as of the close of such fiscal year and the results of its operations and the operations of such Subsidiaries consolidated subsidiaries during such year, together with comparative figures for the immediately preceding fiscal year, all audited by Ernst & Young KPMG LLP or other independent public accountants of recognized national standing and accompanied by an opinion of such 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 Borrower Holdings and its consolidated Subsidiaries subsidiaries on a consolidated basis in accordance with GAAP consistently applied;
(b) within 45 days after the end of each of the first three fiscal quarters of each fiscal year, its consolidated balance sheet and related statements of income, stockholders’ equity and cash flows showing the financial condition of the Borrower Holdings and its consolidated Subsidiaries subsidiaries as of the close of such fiscal quarter and the results of its operations and the operations of such Subsidiaries 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 one of its Financial Officers as fairly presenting the financial condition and results of operations of the Borrower Holdings and its consolidated Subsidiaries subsidiaries on a consolidated basis in accordance with GAAP consistently applied, subject to normal year-end audit adjustments;
(c) concurrently with any delivery of financial statements under paragraph (a), ) or (b) above, a certificate of the accounting firm (in the case of paragraph (a)) or Financial Officer (in the case of paragraph (b)) opining on or certifying such statements (which certificate, when furnished by an accounting firm, may be limited to accounting matters and disclaim responsibility for legal interpretations and which may be provided by a Financial Officer if accounting firms generally are not providing such certificates) (i) certifying that no Event of Default or Default has occurred or, if such an Event of Default or Default has occurred, specifying the nature and extent thereof and any corrective action taken or proposed to be taken with respect thereto thereto, (ii) setting forth the calculation and uses of the Available Investment Amount for the fiscal period then ended and (iiiii) setting forth computations in reasonable detail satisfactory to the Administrative Agent demonstrating compliance with the covenants contained in Sections 6.6, 6.10, 6.11 6.08 and 6.12 6.09 and, in the case of a certificate delivered with the financial statements required by paragraph (ab) aboveabove for the period ending on June 30 of each year, (x) setting forth the Borrower’s Holdings’ 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 6.8Flow;
(d) within 45 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 (which certificate may be limited to the extent required by accounting rules or guidelines);
(e) no later than 60 days after the commencement end of each fiscal year of the BorrowerHoldings, a detailed consolidated budget for such the then 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 fiscal year)year and setting forth the assumptions used for purposes of preparing such budget) and, promptly when available, any significant revisions of such budget;
(ef) promptly after the same become publicly available, copies of all periodic and other reports, proxy statements and other materials filed by Holdings, the U.S. Borrower or any Subsidiary with the SECSecurities and Exchange Commission, or any Governmental Authority succeeding to any or all of the functions of said Commission, or with any national securities exchange, or, after the initial Public Equity Offering (disregarding for purposes of this Section 5.4(e) the Net Cash Proceeds dollar threshold contained in the definition of such term), or distributed to its shareholders, as the case may be;
(fg) promptly after the receipt thereof by Holdings or the Borrower or any Subsidiarypromptly, following a copy of any “management letter” received request by any Lender, provide all documentation and other information that such person from Lender reasonably requests in order to comply with its certified public accountants ongoing obligations under applicable “know your customer” and anti-money laundering rules and regulations, including the management’s response theretoUSA PATRIOT Act; and
(gh) promptly, from time to time, such other information regarding the operations, business affairs and financial condition of Holdings, the U.S. 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 The U.S. Borrower and Holdings hereby acknowledge and agree that all financial statements and certificates furnished pursuant to Section 5.4(aparagraphs (a), (b), (c) or and (ed) (above are hereby deemed to the extent any such documents are included in materials otherwise filed with the SECbe Borrower Materials suitable for distribution, and to be made available, to Public Lenders as contemplated by Section 9.01(c) and may be delivered electronically and if so delivered, shall be deemed to have been delivered on the date (i) on which the Borrower posts such documents, or provides a link thereto on the Borrower’s website on the Internet at the Borrower’s website address; or (ii) on which such documents are posted on the Borrower’s behalf on IntraLinks/IntraAgency or another relevant website, if any, to which each Lender and treated by the Administrative Agent have access (whether a commercial, third-party website or whether sponsored by and the Administrative Agent)Lenders as if the same had been marked “PUBLIC” in accordance with such section.
Appears in 2 contracts
Samples: Credit Agreement (Cbre Group, Inc.), Amendment and Restatement Agreement (Cbre Group, Inc.)
Financial Statements, Reports, etc. In the case of the Borrower, furnish Furnish to the Administrative Agent (either physically or through electronic delivery reasonably acceptable to the Administrative Agent), which shall furnish to and each LenderBank:
(a) within the earlier of (x) the period for the required filing of a report on Form 10-K with the Securities and Exchange Commission including such financial statements and (y) 90 days after the end of each fiscal yearyear of the Borrower, its a consolidated balance sheet of the Borrower and its consolidated subsidiaries, the related consolidated statements of income, operations and the related consolidated statements of stockholders’ equity and cash flows flows, showing the financial condition of the Borrower and its consolidated Subsidiaries subsidiaries as of the close of such fiscal year and the results of its operations and the operations of such Subsidiaries during such year, together with comparative figures for the immediately preceding fiscal year, all such consolidated financial statements audited by Ernst and accompanied by the report thereon of Deloitte & Young Touche LLP or other independent public accountants of recognized national standing reasonably acceptable to the Required Banks and accompanied by an opinion of such 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 Borrower and its consolidated Subsidiaries on a consolidated basis in accordance with GAAP consistently applied);
(b) within the earlier of (x) the period for the required filing of a report on Form 10-Q with the Securities and Exchange Commission including such financial statements and (y) 45 days after the end of each of the first three fiscal quarters of each fiscal yearyear of the Borrower, its a consolidated balance sheet and related consolidated statements of income, stockholders’ equity retained earnings and cash flows flows, showing the financial condition of the Borrower and its consolidated Subsidiaries 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 a Financial Officer of its Financial Officers the Borrower 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;
(c) concurrently with no later than three Business Days after any delivery of financial statements under paragraph (a), ) or (b) above, a certificate of the accounting firm (in the case of paragraph (a)) or a Financial Officer (in of the case of paragraph (b)) Borrower opining on or certifying such statements (which certificate, when furnished by an accounting firm, may be limited to accounting matters and disclaim responsibility for legal interpretations and which may be provided by a Financial Officer if accounting firms generally are not providing such certificates) (i) certifying stating that no Event of Default or Default has occurred and is continuing or, if such an Event of Default or Default has occurredoccurred and is continuing, specifying the nature and extent thereof and any corrective action taken or proposed to be taken with respect thereto and (ii) setting forth computations in reasonable detail satisfactory to the Administrative Agent demonstrating compliance with the covenants contained in Sections 6.6, 6.10, 6.11 and 6.12 and, in the case of a certificate delivered with the financial statements required by paragraph (a7.01(a) above, (x) setting forth the Borrower’s calculation of Excess Cash Flow and (yb)(v) 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 6.87.03;
(d) within 45 days promptly after the commencement same become publicly available, copies of each fiscal year all material periodic and other reports, proxy statements and other materials filed by the Borrower or any Subsidiary with the Securities and Exchange Commission, or any governmental authority succeeding to any of or all the Borrowerfunctions of said Commission, a detailed consolidated budget for such fiscal year (including a projected consolidated balance sheet and related statements of projected operations and cash flows or with any national securities exchange, or distributed to its public shareholders, as of the end of and for such fiscal year)case may be;
(e) promptly after the same become publicly available, copies of all periodic and other reports, proxy statements and other materials material reports pertaining to any change in ownership filed by Holdings, the Borrower or any Subsidiary with the SEC, or any Governmental Authority succeeding to any or all of the functions of said Commission, or with any national securities exchange, or, after the initial Public Equity Offering (disregarding for purposes of this Section 5.4(e) the Net Cash Proceeds dollar threshold contained in the definition of such term), distributed to its shareholders, as the case may be;
(f) promptly after the receipt thereof by Holdings or the Borrower or any Subsidiary, a copy of any “management letter” received by any such person from its certified public accountants and the management’s response theretoAuthority; and
(gf) 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 Bank may reasonably request. Documents Information required to be furnished pursuant to this Section 6.04 shall be deemed to have been furnished to the Agent and the Banks if such information, or one or more annual or quarterly reports containing such information, shall have been posted by the Agent on an IntraLinks or similar site to which the Banks have been granted access or shall be available on the website of the Securities and Exchange Commission at xxxx://xxx.xxx.xxx (and a confirming electronic correspondence shall have been delivered or caused to be delivered to the Banks providing notice of such posting or availability). Information required to be delivered pursuant to this Section 5.4(a), (b) or (e) (to the extent any such documents are included in materials otherwise filed with the SEC) 6.04 may also be delivered electronically and if so delivered, shall be deemed by electronic communications pursuant to have been delivered on the date (i) on which the Borrower posts such documents, or provides a link thereto on the Borrower’s website on the Internet at the Borrower’s website address; or (ii) on which such documents are posted on the Borrower’s behalf on IntraLinks/IntraAgency or another relevant website, if any, to which each Lender and the Administrative Agent have access (whether a commercial, third-party website or whether sponsored procedures approved by the Administrative Agent).
Appears in 2 contracts
Samples: Five Year Competitive Advance and Revolving Credit Facility Agreement (Scripps Networks Interactive, Inc.), Five Year Competitive Advance and Revolving Credit Facility Agreement (Scripps Networks Interactive, Inc.)
Financial Statements, Reports, etc. In the case of the Borrower, furnish to the Administrative Agent (either physically or through electronic delivery reasonably acceptable Furnish to the Administrative Agent), which shall furnish to each Lender:
(a) within 90 days after the end of each fiscal year, its (i) the annual audited consolidated balance sheet statement of financial condition and related consolidated statements of incomeoperations, stockholderschanges in partners’ equity capital and cash flows showing the financial condition of the Borrower and its consolidated Subsidiaries as of the close end of and for such fiscal year and the results of its operations and the operations of such Subsidiaries during such yearBlackstone Group, together with comparative figures for the immediately preceding fiscal year, all audited reported upon by Ernst Deloitte & Young Touche LLP or other another independent registered public accountants accounting firm of recognized national standing without any “scope of audit” qualification or statement from such accounting firm that such accounting firm believes substantial doubt exists about Blackstone Group’s ability to continue as a going concern, (ii) the unaudited annual condensed consolidated and accompanied by an opinion combined statement of financial condition and condensed consolidated and combined statements of income and cash flows as of the end of and for such accountants (which shall not be qualified fiscal year of the combined Guarantors and the Subsidiaries, substantially in any material respect) the form delivered pursuant to the effect that such consolidated financial statements Existing Credit Agreement, certified by a Financial Officer as fairly present presenting, in all material respects, the financial condition position and results of operations of the Borrower combined Guarantors and its consolidated the Subsidiaries on a condensed consolidated and combined basis in accordance with GAAP consistently appliedand (iii) a reconciliation prepared by a Financial Officer of the audited financial statements referred to in clause (i) to the unaudited financial statements referred to in clause (ii);
(b) within 45 60 days after the end of each of the first three fiscal quarters of each fiscal year, its (i) the quarterly unaudited condensed consolidated balance sheet statement of financial condition and related condensed consolidated statements of incomeoperations, stockholderschanges in partners’ equity capital and cash flows showing the financial condition of the Borrower and its consolidated Subsidiaries Blackstone Group as of the close end of and for such fiscal quarter and the results of its operations and the operations of such Subsidiaries during such fiscal quarter and the then then-elapsed portion of the fiscal year, and comparative figures for the same periods in the immediately preceding fiscal year, all certified by one of its a Financial Officers Officer as fairly presenting fairly, in all material respects, the financial condition position and results of operations of the Borrower and its consolidated Subsidiaries Blackstone Group on a consolidated basis in accordance with GAAP consistently applied, except for the absence of footnotes or as otherwise described therein and subject to normal year-end audit adjustments, (ii) the quarterly unaudited condensed consolidated and combined statement of financial condition and condensed consolidated and combined statements of income and cash flows of the combined Loan Parties and the Subsidiaries as of the end of and for such fiscal quarter and the then-elapsed portion of the fiscal year, substantially in the form delivered pursuant to the Existing Credit Agreement, certified by a Financial Officer as presenting fairly, in all material respects, the financial position and results of operations of the combined Guarantors and the Subsidiaries on a condensed consolidated and combined basis in accordance with GAAP consistently applied, except for the absence of footnotes or as otherwise described therein and subject to year-end audit adjustments and (iii) a reconciliation prepared by a Financial Officer of the unaudited financial statements referred to in clause (i) to the unaudited financial statements referred to in clause (ii);
(c) concurrently with any delivery of financial statements under paragraph (a), ) or (b) above, a certificate of the accounting firm (in the case of paragraph (a)) or Financial Officer (in the case of paragraph (b)) opining on or certifying such statements (which certificate, when furnished by an accounting firm, may be limited to accounting matters and disclaim responsibility for legal interpretations and which may be provided by a Financial Officer if accounting firms generally are not providing such certificates) (i) certifying that that, to the best of his or her knowledge, no Event of Default or Default has occurred or, if such an Event of Default or a Default has occurred, specifying the nature and extent thereof and any corrective action taken or proposed to be taken with respect thereto and (ii) setting forth computations in reasonable detail satisfactory to the Administrative Agent demonstrating compliance with the covenants financial covenant contained in Sections 6.6Section 6.09, 6.10, 6.11 including reasonably detailed computations of Total Indebtedness and 6.12 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 6.8;
(d) within 45 days after the commencement of each fiscal year of the Borrower, a detailed consolidated budget for such fiscal year (including a projected consolidated balance sheet and related statements of projected operations and cash flows as of the end of and for such fiscal year);
(e) promptly after the same become publicly available, copies of all periodic and other reports, proxy statements and other materials filed by Holdings, the Borrower or any Subsidiary with the SEC, or any Governmental Authority succeeding to any or all of the functions of said Commission, or with any national securities exchange, or, after the initial Public Equity Offering (disregarding for purposes of this Section 5.4(e) the Net Cash Proceeds dollar threshold contained in the definition of such term), distributed to its shareholders, as the case may be;
(f) promptly after the receipt thereof by Holdings or the Borrower or any Subsidiary, a copy of any “management letter” received by any such person from its certified public accountants and the management’s response theretoCombined EBITDA; and
(gd) promptly, from time to time, such other information regarding the operations, business affairs and financial condition of Holdings, the Borrower Guarantors or any Subsidiarythe Subsidiaries, 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 5.4(a), (b) or (e) (to the extent any such documents are included in materials otherwise filed with the SEC) may be delivered electronically and if so delivered, shall be deemed to have been delivered on the date (i) on which the Borrower posts such documents, or provides a link thereto on the Borrower’s website on the Internet at the Borrower’s website address; or (ii) on which such documents are posted on the Borrower’s behalf on IntraLinks/IntraAgency or another relevant website, if any, to which each Lender and the Administrative Agent have access (whether a commercial, third-party website or whether sponsored by the Administrative Agent).
Appears in 2 contracts
Samples: Credit Agreement (Blackstone Group L.P.), Credit Agreement (Blackstone Group L.P.)
Financial Statements, Reports, etc. In the case of the Holdings and Borrower, as applicable, furnish to the Administrative Agent (either physically or through electronic delivery reasonably acceptable to the Administrative Agent), which shall furnish to each Lender:
(ai) within 90 days after the end of each fiscal year, its consolidated and consolidating balance sheet and related statements of income, stockholders’ equity and cash flows showing the financial condition of Holdings and its consolidated Subsidiaries as of the close of such fiscal year and the results of its operations and the operations of such Subsidiaries during such year, together with comparative figures for the immediately preceding fiscal year, all audited by Xxxxxxxx Xxxxx Xxxxxxx & Xxxxxxx P.C. or other independent public accountants of recognized national standing and accompanied by an opinion of such accountants (which opinion shall be without a “going concern” or like qualification or exception and without any qualification or exception as to the scope of such audit) to the effect that such consolidated financial statements fairly present the financial condition and results of operations of Holdings and its consolidated Subsidiaries on a consolidated and consolidating basis in accordance with GAAP consistently applied;
(ii) within 90 days after the end of each fiscal year, its consolidated and consolidating balance sheet and related statements of income, stockholders’ equity and cash flows showing the financial condition of the Borrower and its consolidated Subsidiaries as of the close of such fiscal year and the results of its operations and the operations of such Subsidiaries during such year, together with comparative figures for the immediately preceding fiscal year, all year and adjustments otherwise reflected in the audited by Ernst & Young LLP or other independent public accountants financial statements of recognized national standing and accompanied by an opinion of such accountants (which shall not be qualified in any material respect) Holdings directly related to the effect that such consolidated financial statements fairly present the financial condition and results of operations of the Borrower and its consolidated Subsidiaries on a consolidated basis in accordance with GAAP consistently appliedBorrower;
(bi) within 45 days after the end of each of the first three fiscal quarters of each fiscal year, its consolidated and consolidating balance sheet and related statements of income, stockholders’ equity and cash flows showing the financial condition of Holdings and its consolidated Subsidiaries as of the close of such fiscal 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, other than with respect to quarterly reports during the remainder of the first fiscal year after the Closing Date, 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 Holdings and its consolidated Subsidiaries on a consolidated basis in accordance with GAAP consistently applied, subject to normal year-end audit adjustments;
(ii) within 45 days after the end of each of the first three fiscal quarters of each fiscal year, its consolidated and consolidating balance sheet and related statements of income, stockholders’ equity and 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 and, other than with respect to quarterly reports during the remainder of the first fiscal year after the Closing Date, 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 Borrower and its consolidated Subsidiaries on a consolidated basis in accordance with GAAP consistently applied, 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 the Borrower and its consolidated Subsidiaries during such fiscal month and the then elapsed portion of the fiscal year, all certified by one of its Financial Officers as fairly presenting the financial condition and results of operations of the Borrower and its consolidated Subsidiaries on a consolidated basis in accordance with GAAP consistently applied, subject to normal year-end audit adjustments;
(d) concurrently with any delivery of financial statements under paragraph (a), (b) or (bc) above, a certificate of the accounting firm (in the case of paragraph (a)) or Financial Officer (in the case of paragraph (b)) opining on or certifying such statements (which certificate, when furnished by an accounting firm, may be limited to accounting matters and disclaim responsibility for legal interpretations and which may be provided by a Financial Officer if accounting firms generally are not providing such certificates) in the form of Exhibit D (i) certifying that no Event of Default or Default has occurred or, if such an Event of Default or Default has occurred, specifying the nature and extent thereof and any corrective action taken or proposed to be taken with respect thereto and (ii) solely with respect to (a) and (b) above, setting forth computations in reasonable detail satisfactory to the Administrative Agent demonstrating compliance with the covenants contained in Sections 6.6, 6.10, 6.11 6.10 and 6.12 and, in the case 6.11;
(e) concurrently with any delivery of a certificate delivered with the financial statements required by paragraph under clause (a) above, a certificate of the accounting firm that reported on such statements (x) setting forth the Borrower’s calculation of Excess Cash Flow which certificate may be limited to accounting matters and (ydisclaim responsibility for legal interpretations) certifying that there no Event of Default or Default has been no change in occurred with respect to Sections 6.10 and 6.11 or, if such an Event of Default or Default has occurred, specifying the business activities, assets or liabilities of Holdings, or if there has been any such change, describing such change extent thereof in reasonable detail and certifying that Holdings is in compliance with Section 6.8detail;
(df) within 45 90 days after the commencement 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)year and setting forth the assumptions used for purposes of preparing such budget) and, promptly when available, any significant revisions of such budget;
(eg) promptly after the same become publicly available, copies of all periodic and other reports, proxy statements and other materials filed by Holdings, the Borrower or any Subsidiary with the SECSecurities and Exchange Commission, or any Governmental Authority succeeding to any or all of the functions of said Commission, or with any national securities exchange, or, after the initial Public Equity Offering (disregarding for purposes of this Section 5.4(e) the Net Cash Proceeds dollar threshold contained in the definition of such term), or distributed to its shareholders, as the case may be;
(fh) promptly after the receipt thereof by Holdings or the Borrower or any Subsidiaryof their respective subsidiaries, a copy of any “management letter” received by any such person Person from its certified public accountants and the management’s response thereto;
(i) promptly after the request by any Lender, all documentation and other information 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
(gj) 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 may reasonably request. Documents required to be delivered pursuant to Section 5.4(a), (b) or (e) (to the extent any such documents are included in materials otherwise filed with the SEC) may be delivered electronically and if so delivered, shall be deemed to have been delivered on the date (i) on which the Borrower posts such documents, or provides a link thereto on the Borrower’s website on the Internet at the Borrower’s website address; or (ii) on which such documents are posted on the Borrower’s behalf on IntraLinks/IntraAgency or another relevant website, if any, to which each Lender and the Administrative Agent have access (whether a commercial, third-party website or whether sponsored by the Administrative Agent).
Appears in 2 contracts
Samples: Credit Agreement (Rentech Inc /Co/), Credit Agreement (Rentech Inc /Co/)
Financial Statements, Reports, etc. In the case of the Borrower, It will furnish to the Administrative Agent (either physically or through electronic delivery reasonably acceptable to the Administrative Agent), which shall furnish to each Lender:
(a) as soon as available, and in any event within 90 120 days after the end of each fiscal yearyear of the Borrower, its a consolidated balance sheet and related statements of income, stockholders’ equity and cash flows showing the financial condition of the Borrower and its consolidated Consolidated Subsidiaries as of the close end of such fiscal year and the results related consolidated statements of its operations income, retained earnings and the operations of cash flows for such Subsidiaries during such fiscal year, together with setting forth in each case in comparative form the figures for the immediately preceding previous fiscal year, all audited reported on in a manner reasonably acceptable to the SEC by Ernst Deloitte & Young Touche LLP or other independent public accountants of nationally recognized national standing and accompanied by an opinion of such 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 Borrower and its consolidated Subsidiaries on a consolidated basis in accordance with GAAP consistently appliedstanding;
(b) as soon as available, and in any event within 45 60 days after the end of each of the first three fiscal quarters of each fiscal year, its consolidated balance sheet and related statements of income, stockholders’ equity and 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 Borrower and its consolidated Subsidiaries on a consolidated basis in accordance with GAAP consistently applied, subject to normal year-end audit adjustments;
(c) concurrently with any delivery of financial statements under paragraph (a), or (b) above, a certificate of the accounting firm (in the case of paragraph (a)) or Financial Officer (in the case of paragraph (b)) opining on or certifying such statements (which certificate, when furnished by an accounting firm, may be limited to accounting matters and disclaim responsibility for legal interpretations and which may be provided by a Financial Officer if accounting firms generally are not providing such certificates) (i) certifying that no Event of Default or Default has occurred or, if such an Event of Default or Default has occurred, specifying the nature and extent thereof and any corrective action taken or proposed to be taken with respect thereto and (ii) setting forth computations in reasonable detail satisfactory to the Administrative Agent demonstrating compliance with the covenants contained in Sections 6.6, 6.10, 6.11 and 6.12 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 6.8;
(d) within 45 days after the commencement of each fiscal year of the Borrower, a detailed consolidated budget for such fiscal year (including a projected consolidated balance sheet of the Borrower and its Consolidated Subsidiaries as of the end of such quarter and the related consolidated statements of projected operations income for such quarter, for the portion of the Borrower's fiscal year ended at the end of such quarter, and for the twelve months ended at the end of such quarter, and the related consolidated statement of cash flows for the portion of the Borrower's fiscal year ended at the end of such quarter, setting forth comparative figures for previous dates and periods to the extent required in Form 10-Q, all certified (subject to normal year-end adjustments) as to fairness of presentation, GAAP and consistency by a Financial Officer of the Borrower;
(c) simultaneously with any delivery of each set of financial statements referred to in subsections (a) and (b) above, (i) an unconsolidated balance sheet of the Borrower and the related unconsolidated statements of income, retained earnings and cash flows as of the end of same date and for the same periods applicable to the statements delivered pursuant to subsection (a) or (b) above, as applicable, all certified (subject to normal year-end adjustments in the case of quarterly statements) as to fairness of presentation, GAAP and consistency by a Financial Officer of the Borrower and (ii) a certificate of a Financial Officer of the Borrower (A) setting forth in reasonable detail the calculations required to establish whether the Borrower was in compliance with the requirements of Sections 5.11 and 5.12 on the date of such fiscal year)financial statements, and (B) stating whether any Default or Event of Default exists on the date of such certificate and, if any Default or Event of Default then exists, setting forth the details thereof and the action that the Borrower is taking or proposes to take with respect thereto;
(d) simultaneously with the delivery of each set of financial statements referred to in subsection (a) above, a statement of the firm of independent public accountants that reported on such statements (i) stating whether anything has come to their attention to cause them to believe that any Default or Event of Default existed on the date of such statements and (ii) confirming the calculations set forth in the Financial Officer's certificate delivered simultaneously therewith pursuant to subsection (c) above;
(e) forthwith upon becoming aware of the occurrence of any Default or Event of Default, a certificate of a Financial Officer of the Borrower setting forth the details thereof and the action which the Borrower is taking or proposes to take with respect thereto;
(f) promptly after upon the same become publicly availablemailing thereof to the shareholders of the Borrower generally, copies of all periodic financial statements, reports and other reports, proxy statements so mailed;
(g) promptly upon the filing thereof, copies of each final prospectus (other than a prospectus included in any registration statement on Form S-8 or its equivalent or with respect to a dividend reinvestment plan) and other materials filed by Holdingsall reports on Forms 10-K, 10-Q and 8-K and similar reports that the Borrower or any Subsidiary shall have filed with the SEC, or any Governmental Authority succeeding to any of or all of the functions of said Commission, or with any national securities exchange, or, after the initial Public Equity Offering (disregarding for purposes of this Section 5.4(e) the Net Cash Proceeds dollar threshold contained in the definition of such term), distributed to its shareholders, as the case may beSEC;
(fh) promptly after if and when any member of the receipt thereof by Holdings Controlled Group (i) gives or is required to give notice to the Borrower PBGC of any Reportable Event with respect to any Plan that might constitute grounds for a termination of such Plan under Title IV of ERISA, or knows that the plan administrator of any SubsidiaryPlan has given or is required to give notice of any such Reportable Event, a copy of the notice of such Reportable Event given or required to be given to the PBGC; (ii) receives notice from a proper representative of a Multiemployer Plan of complete or partial Withdrawal Liability being imposed upon such member of the Controlled Group under Title IV of ERISA, a copy of such notice; or (iii) receives notice from the PBGC under Title IV of ERISA of an intent to terminate, or appoint a trustee to administer, any “management letter” received by any Plan, a copy of such person from its certified public accountants and the management’s response theretonotice; and
(gi) promptly, from time to time, such other additional information regarding the operations, financial position or business affairs and financial condition of Holdings, the Borrower or any Subsidiary, or compliance with the terms of any Loan Document, and its Subsidiaries as the Administrative Agent or any Lender may reasonably request. Documents As promptly as practicable after delivering each set of financial statements as required in subsection (a) of this Section, the Borrower shall make available a copy of the consolidating workpapers used by the Borrower in preparing such consolidated statements to be delivered the Lender that shall have requested such consolidating workpapers. The Lender that receives such consolidating workpapers shall hold them in confidence as required by Section 7.16; provided that the Lender may not disclose such consolidating workpapers to any other person pursuant to clause (iv) of Section 5.4(a), (b) or (e) (to the extent any such documents are included in materials otherwise filed with the SEC) may be delivered electronically and if so delivered, shall be deemed to have been delivered on the date (i) on which the Borrower posts such documents, or provides a link thereto on the Borrower’s website on the Internet at the Borrower’s website address; or (ii) on which such documents are posted on the Borrower’s behalf on IntraLinks/IntraAgency or another relevant website, if any, to which each Lender and the Administrative Agent have access (whether a commercial, third-party website or whether sponsored by the Administrative Agent)7.16.
Appears in 2 contracts
Samples: Credit Agreement (Txu Corp /Tx/), Credit Agreement (Txu Corp /Tx/)
Financial Statements, Reports, etc. In the case Seller shall deliver to Buyer on behalf of the Borrower, furnish to the Administrative Agent (either physically or through electronic delivery reasonably acceptable to the Administrative Agent), which shall furnish to each LenderGuarantor:
(a) within 90 days after the end of each fiscal year, its consolidated balance sheet as soon as available and related statements of income, stockholders’ equity and cash flows showing the financial condition of the Borrower and its consolidated Subsidiaries as of the close of such fiscal year and the results of its operations and the operations of such Subsidiaries during such year, together with comparative figures for the immediately preceding fiscal year, all audited by Ernst & Young LLP or other independent public accountants of recognized national standing and accompanied by an opinion of such accountants (which shall not be qualified in any material respectevent within forty-five (45) to the effect that such consolidated financial statements fairly present the financial condition and results of operations of the Borrower and its consolidated Subsidiaries on a consolidated basis in accordance with GAAP consistently applied;
(b) within 45 days after the end of each of the first three quarterly fiscal quarters periods of each fiscal yearyear of Guarantor and its consolidated Subsidiaries, its the unaudited, consolidated balance sheet and related statements of income, stockholders’ equity and cash flows showing the financial condition of the Borrower Guarantor and its consolidated Subsidiaries as of at the close end of such fiscal quarter period and the results related unaudited, consolidated statements of income and stockholders equity and of cash flows of Guarantor and its operations consolidated Subsidiaries for such period and the operations of such Subsidiaries during such fiscal quarter and the then elapsed portion of the fiscal yearyear through the end of such period, and setting forth in each case in comparative form the figures for the same corresponding periods in the immediately preceding previous fiscal year, all certified accompanied by one a certificate of its Financial Officers as a Responsible Officer of Seller, which certificate shall state that said consolidated financial statements fairly presenting present the consolidated financial condition and results of operations of the Borrower Guarantor and its consolidated Subsidiaries on a consolidated basis in accordance with GAAP GAAP, consistently applied, as at the end of, and for, such period (subject to normal year-end audit adjustments);
(b) as soon as available and in any event within ninety (90) days after the end of each fiscal year of Guarantor, commencing with the fiscal year ending December 31, 2008, the consolidated financial statement of Guarantor and its consolidated Subsidiaries as at the end of such fiscal year, prepared in accordance with GAAP, including the consolidated balance sheets and related consolidated statements of income and stockholders equity and of cash flows for Guarantor and its consolidated Subsidiaries for such year, setting forth in each case in comparative form the figures for the previous fiscal year, accompanied by an opinion thereon of independent certified public accountants of recognized national standing, which opinion shall not be qualified as to scope of audit or going concern, and shall state that said annual consolidated financial statements fairly present the consolidated financial condition and results of operations of Guarantor and its consolidated Subsidiaries as at the end of, and for, such fiscal year in accordance with GAAP;
(c) concurrently promptly following receipt from the applicable Transaction Asset Obligor and in no event later than sixty (60) days following the end of each calendar quarter, unaudited, certified financial statements for each Transaction Asset Obligor under each Transaction Asset (including DYT Assets) that has been conveyed to Buyer under this Agreement, together with property level information, including but not limited to operating statements and occupancy reports, to the extent available after the exercise of commercially reasonable efforts to obtain such information;
(d) promptly following receipt from the applicable Transaction Asset Obligor and in no event later than ninety (90) days following the end of each fiscal year, annual unaudited, certified financial statements for each Transaction Asset Obligor under each Transaction Asset financed under this Agreement and operating statements with respect to each Underlying Property, to the extent available after the exercise of commercially reasonable efforts to obtain such information;
(e) within five (5) Business Days after Buyer’s request, such further information with respect to the operation of any delivery real property, the Transaction Asset, and the financial affairs of Seller or Guarantor, as may be reasonably requested by Buyer, including all business plans prepared by or for Seller or such Guarantor;
(f) a copy of any financial or other report Seller shall receive from any Transaction Asset Obligor with respect to any Transaction Asset within fifteen (15) days after Seller’s receipt thereof;
(g) the Monthly Initial Transaction Asset Statement and the Quarterly DYT Asset Report;
(h) such other reports as Buyer shall reasonably require; and
(i) as soon as reasonably possible, and in any event within fifteen (15) Business Days after a Responsible Officer of Seller knows, or with respect to any Plan or Multiemployer Plan to which Seller or any of its Subsidiaries makes direct contributions, has reason to believe, that any of the events or conditions specified below with respect to any Plan or Multiemployer Plan has occurred or exists, a statement signed by a senior financial officer of Seller setting forth details respecting such event or condition and the action, if any, that Seller or its ERISA Affiliate proposes to take with respect thereto (and a copy of any report or notice required to be filed with or given to PBGC by Seller or an ERISA Affiliate with respect to such event or condition):
(i) any reportable event, as defined in Section 4043(c) of ERISA and the regulations issued thereunder, with respect to a Plan, as to which PBGC has not by regulation waived the requirement of Section 4043(a) of ERISA that it be notified within thirty (30) days of the occurrence of such event (provided that, a failure to meet the minimum funding standard of Section 412 of the Code or Section 302 of ERISA, including without limitation the failure to make on or before its due date a required installment under Section 412(m) of the Code or Section 302(e) of ERISA, shall be a reportable event regardless of the issuance of any waivers in accordance with Section 412(d) of the Code); and any request for a waiver under Section 412(d) of the Code for any Plan;
(ii) the distribution under Section 4041(c) of ERISA of a notice of intent to terminate any Plan or any action taken by Seller or any ERISA Affiliate to terminate any Plan;
(iii) the institution by PBGC of proceedings under Section 4042 of ERISA for the termination of, or the appointment of a trustee to administer, any Plan, or the receipt by Seller or any ERISA Affiliate of a notice from a Multiemployer Plan that such action has been taken by PBGC with respect to such Multiemployer Plan;
(iv) the complete or partial withdrawal from a Multiemployer Plan by Seller or any ERISA Affiliate that results in liability under Section 4201 or 4204 of ERISA (including the obligation to satisfy secondary liability as a result of a purchaser default) or the receipt by Seller or any ERISA Affiliate of notice from a Multiemployer Plan that it is in reorganization or insolvency pursuant to Section 4241 or 4245 of ERISA or that it intends to terminate or has terminated under Section 4041A of ERISA;
(v) the institution of a proceeding by a fiduciary of any Multiemployer Plan against Seller or any ERISA Affiliate to enforce Section 515 of ERISA, which proceeding is not dismissed within thirty (30) days; and
(vi) the adoption of an amendment to any Plan that would result in the loss of tax-exempt status of the Plan and trust of which such Plan is a part if Seller or any ERISA Affiliate fails to provide timely security to such Plan if and as required by the provisions of Section 401(a)(29) of the Code or Section 307 of ERISA. Seller will cause Guarantor, to furnish to Buyer, at the time it furnishes each set of financial statements under paragraph (a), or pursuant to paragraphs (b) and (c) above, a certificate of the accounting firm (in the case a Responsible Officer of paragraph (a)) or Financial Officer (in the case of paragraph (b)) opining on or certifying such statements (which certificate, when furnished by an accounting firm, may be limited to accounting matters and disclaim responsibility for legal interpretations and which may be provided by a Financial Officer if accounting firms generally are not providing such certificates) Guarantor (i) certifying to the effect that, to the best of such Responsible Officer’s knowledge, Guarantor during such fiscal period or year has observed or performed all of its respective covenants and other agreements, and satisfied every condition, contained in this Agreement and the other Transaction Documents to be observed, performed or satisfied by it, and that such Responsible Officer has obtained no knowledge of any Default, Event of Default or Material Adverse Effect except as specified in such certificate (and, if any Default or Event of Default has occurred orand is continuing, if such an Event of Default or Default describing the same in reasonable detail and describing the action Guarantor has occurred, specifying the nature and extent thereof and any corrective action taken or proposed proposes to be taken take with respect thereto thereto) and (ii) setting forth computations in reasonable detail satisfactory to the Administrative Agent demonstrating compliance with the covenants contained in Sections 6.6, 6.10, 6.11 and 6.12 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 6.8;
(d) within 45 days after the commencement of each fiscal year of the Borrower, a detailed consolidated budget for such fiscal year (including a projected consolidated balance sheet and related statements of projected operations and cash flows as of the end last day of and for such fiscal year);
(e) promptly after quarter the same become publicly available, copies of all periodic and other reports, proxy statements and other materials filed ratio required by Holdings, the Borrower or any Subsidiary with the SEC, or any Governmental Authority succeeding to any or all of the functions of said Commission, or with any national securities exchange, or, after the initial Public Equity Offering (disregarding for purposes of this Section 5.4(e) the Net Cash Proceeds dollar threshold contained in the definition of such term), distributed to its shareholders, as the case may be;
(f) promptly after the receipt thereof by Holdings or the Borrower or any Subsidiary, a copy of any “management letter” received by any such person from its certified public accountants and the management’s response thereto; and
(g) 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 may reasonably request. Documents required to be delivered pursuant to Section 5.4(a), (b) or (e) (to the extent any such documents are included in materials otherwise filed with the SEC) may be delivered electronically and if so delivered, shall be deemed to have been delivered on the date (i) on which the Borrower posts such documents, or provides a link thereto on the Borrower’s website on the Internet at the Borrower’s website address; or (ii) on which such documents are posted on the Borrower’s behalf on IntraLinks/IntraAgency or another relevant website, if any, to which each Lender and the Administrative Agent have access (whether a commercial, third-party website or whether sponsored by the Administrative Agent)8.15.
Appears in 2 contracts
Samples: Master Repurchase Agreement (KBS Real Estate Investment Trust, Inc.), Master Repurchase Agreement (KBS Real Estate Investment Trust, Inc.)
Financial Statements, Reports, etc. In the case of the Borrower, furnish to the Administrative Agent (either physically or through electronic delivery reasonably acceptable to the Administrative Agent), which shall furnish to each Lender:
(a) As soon as practicable and in any event within 90 45 days after the end of each fiscal quarter of each fiscal year except for the fourth fiscal quarter in each fiscal year, its an unaudited consolidated balance sheet of the GGS Companies as of the close of such fiscal quarter and related unaudited consolidated statements of income, stockholders’ equity income and cash flows showing for the fiscal quarter then ended and that portion of the fiscal year then ended, including the notes thereto, all in reasonable detail setting forth in comparative form the corresponding figures as of the end of and for the corresponding period in the preceding fiscal year, and prepared by the GGS Companies in accordance with GAAP and, if applicable, containing disclosure of the effect on the financial position or results of operations of any change in the application of accounting principles and practices during the period, and certified by the chief financial officer of the Borrower as presenting fairly in all material respects the financial condition of the Borrower GGS Companies on a consolidated basis as of their respective dates and its the results of operations of the GGS Companies for the respective periods then ended, subject to normal year end adjustments.
(b) As soon as practicable and in any event within 90 days (or, in the case of the fiscal year ended December 31, 2007, 120 days) after the end of each fiscal year commencing with the fiscal year ended December 31, 2007, a consolidated Subsidiaries balance sheet of the GGS Companies as of the close of such fiscal year and consolidated statements of income, retained earnings and cash flows for the fiscal year then ended, including the notes thereto, all in reasonable detail setting forth in comparative form the corresponding figures as of the end of and for the preceding fiscal year and audited by UHY, LLP or another independent certified public accounting firm acceptable to the Administrative Agent in accordance with GAAP and, if applicable, containing disclosure of the effect on the financial position or results of its operations and the operations of such Subsidiaries any change in the application of accounting principles and practices during such the year, together with comparative figures for the immediately preceding fiscal year, all audited by Ernst & Young LLP or other independent public accountants of recognized national standing and accompanied by an opinion of a report thereon by such certified public accountants (which report shall be without a “going concern” or like qualification or exception and shall not be qualified with respect to scope limitations imposed by any GGS Company or with respect to accounting principles followed by any GGS Company not in any material respectaccordance with GAAP) to the effect that such consolidated financial statements fairly present in all material respects the financial condition conditions and results of operations of the Borrower and its consolidated Subsidiaries GGS Companies on a consolidated basis in accordance with GAAP consistently applied;.
(bc) within 45 days after As soon as practicable and in any event prior to the end of each of the first three fiscal quarters beginning of each fiscal yearyear (commencing with fiscal year 2008), its consolidated a business plan of the GGS Companies for the ensuing four fiscal quarters, such plan to include, on a quarterly basis, the following: a quarterly operating and capital budget, operating assumptions, a projected income statement, statement of cash flows and balance sheet and related statements a report containing management’s discussion and analysis of incomesuch projections, stockholders’ equity and cash flows showing accompanied by a certificate from the chief financial condition officer of the Borrower and its consolidated Subsidiaries as of to the close effect that, to the best of such fiscal quarter officer’s knowledge, such projections are good faith and the results reasonable estimates (utilizing reasonable assumptions in light of its operations current conditions and the operations current facts) 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 Borrower and its consolidated Subsidiaries on a consolidated basis in accordance with GAAP consistently applied, subject to normal year-end audit adjustments;GGS Companies for such four quarter period.
(cd) concurrently with any delivery of At each time financial statements under paragraph (a), are delivered pursuant to Sections 5.01(a) or (b5.01(b) aboveand at such other times as the Administrative Agent shall reasonably request, a certificate of the accounting firm (chief financial officer or the treasurer of the Borrower in the case form of paragraph Exhibit E attached hereto (aan “Officer’s Compliance Certificate”), including the portion, if any, of the Available Amount or the Equity Proceeds Available Amount expended during the period covered by such financial statements and the purpose for which such portion was expended and the then remaining unutilized portion of the Available Amount and the Equity Proceeds Available Amount.
(e) At each time financial statements are delivered pursuant to Sections 5.01(a) or Financial Officer (in the case of paragraph (b5.01(b)) opining on or certifying such statements (which certificate, when furnished by an accounting firm, may be limited to accounting matters and disclaim responsibility for legal interpretations and which may be provided by a Financial Officer if accounting firms generally are not providing such certificates) (i) a report showing the projected usage of any and all seismic crews owned or operated by the GGS Companies for the ensuing three calendar months and (ii) backlog reports and a summary of the location of each seismic crew and the status of each ongoing project for such crews.
(f) At each time financial statements are delivered pursuant to Section 5.01(b), a certificate of the independent public accountants certifying such financial statements and stating that no Event of Default or Default has occurred in connection with their audit, nothing came to their attention that caused them to believe that any GGS Company failed to comply with the Financial Covenant insofar as it relates to financial and accounting matters or, if such an Event of Default or Default has occurredis not the case, specifying the such non-compliance and its nature and extent period of existence.
(g) Promptly upon receipt thereof, copies of all reports, if any, submitted to any GGS Company or its Board of Directors (or equivalent body) or any shareholder thereof by its independent public accountants in connection with their auditing function, including any management report 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 Sections 6.6, 6.10, 6.11 and 6.12 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 6.8;management responses thereto.
(dh) within 45 days after the commencement of each fiscal year of the Borrower, a detailed consolidated budget for such fiscal year (including a projected consolidated balance sheet and related statements of projected operations and cash flows as of the end of and for such fiscal year);
(e) promptly Promptly after the same become publicly available, copies of all periodic and other reports, proxy statements and other materials filed by Holdings, the Borrower or any Subsidiary GGS Company with the SECSecurities and Exchange Commission, or any Governmental Authority succeeding to any or all of the functions of said Commission, or with any national securities exchange, or, after the initial Public Equity Offering (disregarding for purposes of this Section 5.4(e) the Net Cash Proceeds dollar threshold contained in the definition of such term), or distributed to its shareholders, as the case may be;.
(fi) promptly after the receipt thereof by Holdings or the Borrower or any Subsidiary, a copy of any “management letter” received by any such person from its certified public accountants and the management’s response thereto; and
(g) promptly, from time to time, such Such other information regarding the operations, business affairs and financial condition of Holdings, the Borrower or any SubsidiaryGGS Companies, or compliance with the terms of any the Loan DocumentDocuments, as the Administrative Agent or any Lender may reasonably request. Documents required , including all documentation and other information that such Lender reasonably requests in order to be delivered pursuant to Section 5.4(a)comply with its ongoing obligations under applicable “know your customer” and anti-money laundering rules and regulations, (b) or (e) (to including the extent any such documents are included in materials otherwise filed with the SEC) may be delivered electronically and if so delivered, shall be deemed to have been delivered on the date (i) on which the Borrower posts such documents, or provides a link thereto on the Borrower’s website on the Internet at the Borrower’s website address; or (ii) on which such documents are posted on the Borrower’s behalf on IntraLinks/IntraAgency or another relevant website, if any, to which each Lender and the Administrative Agent have access (whether a commercial, third-party website or whether sponsored by the Administrative Agent)USA PATRIOT Act.
Appears in 2 contracts
Samples: Second Lien Credit Agreement (Global Geophysical Services Inc), Second Lien Credit Agreement (Global Geophysical Services Inc)
Financial Statements, Reports, etc. In Furnish to each Administrative Agent and to the case Servicing Agent with a copy for each of the Borrower, furnish to the Administrative Agent (either physically or through electronic delivery reasonably acceptable to the Administrative Agent), which shall furnish to each LenderLenders:
(a) Subject to the last paragraph of this Section 5.05, within 90 105 ---- days after the end of each fiscal yearyear of the Borrower, its consolidated financial statements (which shall include a balance sheet and related income statement, as well as statements of income, stockholders’ partners' equity and cash flows flows) showing the financial condition of the Borrower and its consolidated Subsidiaries as of the close of such fiscal year and the results of its operations and the operations of such Subsidiaries during such year, together with comparative figures for the immediately preceding fiscal year, all audited by Ernst & Young LLP or other independent public accountants of recognized national standing and accompanied by an opinion of such 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 Borrower and its consolidated Consolidated Subsidiaries as of the end of and for such fiscal year prepared on a consolidated basis in accordance with GAAP consistently applied;basis. The financial statements of the Borrower and its Consolidated Subsidiaries delivered pursuant to this paragraph will be audited and reported on by independent public accountants of recognized standing.
(b) Subject to the last paragraph of this Section 5.05, within 45 60 ---- days after the end of each of the first three fiscal quarters of each fiscal yearyear of the Borrower, its consolidated unaudited financial statements (which shall include a balance sheet and related income statement, as well as statements of income, stockholders’ partners' equity and cash flows flow) 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 Borrower and its consolidated Consolidated Subsidiaries as of the end of and for such fiscal quarter prepared on a consolidated basis basis, in each case certified by a Principal Financial Officer of the Borrower as presenting fairly the financial position and results of operations of the Borrower and its Consolidated Subsidiaries and as having been prepared in accordance with GAAP consistently appliedGAAP, subject to normal year-end audit adjustments;.
(c) concurrently Subject to the last paragraph of this Section 5.05, promptly after the same shall have been filed or furnished as described below, copies of such registration statements, annual, periodic and other reports, and such proxy statements and other information, if any, as shall be filed by the Borrower or any Subsidiary with any delivery the SEC pursuant to the requirements of financial statements under paragraph the Securities Act of 1933 or the Securities Exchange Act of 1934 or the rules promulgated thereunder.
(d) Concurrently with (a), or ) and (b) above, a certificate of the accounting firm (in the case of paragraph (a)) or a Principal Financial Officer of the Borrower,
(in the case of paragraph (b)) opining on or certifying such statements (which certificate, when furnished by an accounting firm, may be limited to accounting matters and disclaim responsibility for legal interpretations and which may be provided by a Financial Officer if accounting firms generally are not providing such certificates) (iii) certifying that to the best knowledge of such Principal Financial Officer no Event of Default or Default has occurred and is continuing or, if such an Event of Default or a Default has occurredoccurred and is continuing, specifying the nature and extent thereof and any corrective action taken or proposed to be taken with respect thereto thereto;
(iii) solely if the Borrower was required to satisfy the Collateral Coverage Test at the date of such financial statements by reason of Section 6.06(d), certifying compliance with the Collateral ------- Coverage Test at such date and setting forth in reasonable detail the calculation to determine such compliance;
(iiiv) setting forth computations in reasonable detail satisfactory (x) the amount of Major Casualty Proceeds or cash proceeds in respect of any other Prepayment Event received by the Borrower and its Subsidiaries prior to the Administrative Agent demonstrating compliance with date of such certificate and not applied as of such date to the covenants contained repayment of the Term Loans to the extent required by Section 2.09, (y) the manner ---- in Sections 6.6which the Borrower and its Subsidiaries propose to invest such Major Casualty Proceeds or other cash proceeds (or, 6.10if the Borrower and its Subsidiaries do not intend to so invest all or any portion of such amount, 6.11 stating so and 6.12 setting forth the portion of such amount not intended to be so invested) and (z) the current status and then expected completion date of all such proposed investments; and,
(v) solely 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 except as previously notified to the Collateral Agent pursuant to Section 5.11, ---- there has been no change in the business activitiesany Loan Party's name, assets form of organization, jurisdiction of organization and organizational number 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 6.8;
(d) within 45 days after the commencement of each fiscal year of the Borrower, a detailed consolidated budget for such fiscal year (including a projected consolidated balance sheet and related statements of projected operations and cash flows as of the end of and for such fiscal year);Federal Taxpayer Identification Number.
(e) promptly after Concurrently with (a) above, a statement of the same become publicly available, copies firm of all periodic and other reports, proxy independent public accountants which audited the Borrower's financial statements (i) stating whether during the course of their examination of such financial statements they obtained knowledge of any Default existing on the date of such statements and other materials filed (ii) confirming the calculations set forth in the officer's certificate delivered simultaneously therewith pursuant to (d) above (which statement may be limited to the extent required by Holdingsaccounting rules or guidelines).
(f) Within five Business Days of the date of receipt of cash proceeds in respect of any Debt Incurrence or Equity Issuance, or the receipt of cash proceeds in excess of $5,000,000 in respect of any Asset Sale or a series of related Asset Sales, or the receipt of Major Casualty Proceeds, a certificate of a Principal Financial Officer of the Borrower setting forth in reasonable detail the amount of such cash proceeds or Major Casualty Proceeds and whether the Borrower or any Subsidiary with the SEC, of its Subsidiaries intends to invest such cash proceeds or any Governmental Authority succeeding to any or all of the functions of said Commission, or with any national securities exchange, or, after the initial Public Equity Offering (disregarding for purposes of this Section 5.4(e) the Net Cash Major Casualty Proceeds dollar threshold contained as contemplated in the definition of such term), distributed to its shareholders, as the case may be;
(f) promptly after the receipt thereof by Holdings or the Borrower or any Subsidiary, a copy of any “management letter” received by any such person from its certified public accountants and the management’s response thereto; and"Net Cash Proceeds".
(g) promptlyOn the date of each consummation of an Asset Sale (other than a Securitization Transaction) involving Collateral with a fair market value in excess of $5,000,000, a certificate of a Principal Financial Officer of the Borrower certifying compliance with the Collateral Coverage Test at such date and setting forth in reasonable detail the calculation used to determine such compliance.
(h) No later than the times specified in Sections 5.11 and 5.12(a), ---- ------- the notices required to be delivered pursuant to those sections.
(i) Promptly, from time to time, such other information regarding this Agreement or the operationsaffairs, business affairs and operations or condition (financial condition or otherwise) of Holdings, the Borrower or any Subsidiary, or compliance with Subsidiary as the terms Servicing Agent may reasonably request at the request of any Loan Document, as the Administrative Agent or any Lender may reasonably request. Documents required to be delivered pursuant to Section 5.4(a), (b) or (e) (to the extent any such documents are included in materials otherwise filed with the SEC) may be delivered electronically and if so delivered, shall be deemed to have been delivered on the date (i) on which the Borrower posts such documents, or provides a link thereto on the Borrower’s website on the Internet at the Borrower’s website address; or (ii) on which such documents are posted on the Borrower’s behalf on IntraLinks/IntraAgency or another relevant website, if any, to which each Lender and the Administrative Agent have access (whether a commercialwhich is susceptible to being obtained, third-party website produced or whether sponsored generated by the Administrative Agent)any of them or of which any of them has knowledge.
Appears in 2 contracts
Samples: Credit Agreement (Lyondell Chemical Co), Credit Agreement (Equistar Chemicals Lp)
Financial Statements, Reports, etc. In the case of the Borrower, furnish to the Administrative Agent (either physically or through electronic delivery reasonably acceptable to the Administrative Agent), which shall furnish such statements, certificates or other documents received pursuant to this Section 5.04 to each Lender:Lender and Issuing Bank):
(a) within 90 days after the end of each fiscal year, its consolidated balance sheet and related statements of income, stockholders’ ' equity and cash flows showing the financial condition of the Borrower and its consolidated Subsidiaries as of the close of such fiscal year and the results of its operations and the operations of such Subsidiaries during such year, together with comparative figures for the immediately preceding fiscal year, all audited by Ernst & Young Xxxxxx Xxxxxxxx LLP or other independent public accountants of recognized national standing and accompanied by an opinion of such 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 Borrower and its consolidated Subsidiaries on a consolidated basis in accordance with GAAP consistently applied;
(b) within 45 days after the end of each of the first three fiscal quarters of each fiscal year, its consolidated balance sheet and related statements of income, stockholders’ ' equity and 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 Borrower and its consolidated Subsidiaries on a consolidated basis in accordance with GAAP consistently applied, subject to normal year-end audit adjustments;
(c) concurrently with any delivery of financial statements under paragraph (a), ) or (b) above, a certificate of the accounting firm (in the case of paragraph (a)) or a Financial Officer (in the case of paragraph (b)) opining on or certifying such statements (which certificate, when furnished by an accounting firm, may be limited to accounting matters and disclaim responsibility for legal interpretations and which may be provided by a Financial Officer if accounting firms generally are not providing such certificates) (i) certifying that no Event of Default or Default has occurred or, if such an Event of Default or Default has occurred, specifying the nature and extent thereof and any corrective action taken or proposed to be taken with respect thereto and (ii) setting forth computations in reasonable detail satisfactory to the Administrative Agent demonstrating compliance with the covenants contained in Sections 6.66.11, 6.106.12, 6.11 6.13 and 6.12 and, 6.14 and (x) in the case of a certificate delivered with the financial statements required by paragraph (b) above for the second fiscal quarter of each year, setting forth the Borrower's calculation of Excess Cash Flow, and (y) in the case of the certificate delivered pursuant to this paragraph (c) with the financial statements under paragraph (a) above for the fiscal year ended December 31, 2001, a reasonably detailed schedule showing the pro forma adjustments made to calculate Consolidated EBITDA for the fiscal quarters ended March 31, 2001 and June 30, 2001, as contemplated by the last sentence of the definition of Consolidated EBITDA (which shall include all pro forma adjustments resulting from the 2001 Cost Reduction Plan calculated as contemplated pursuant to Schedule 5.04(d)(1)),
(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 (x) setting forth which certificate may be limited to the Borrower’s calculation of Excess Cash Flow extent required by accounting rules or guidelines); and (y) certifying that there has been no change in the business activities, assets or liabilities case 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 6.8;
the certificate delivered pursuant to this paragraph (d) within with the financial statements under paragraph (a) above for the fiscal year ended December 31, 2001, such report of such accounting firm shall be substantially in the form of Schedule 5.04(d)(2) and shall be accompanied by the additional report of such accounting firm in the form of 5.04(d)(3).
(e) no later than 45 days after the commencement end of each fiscal year of the Borrower, a detailed consolidated budget for such the then 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 fiscal year)year and setting forth the assumptions used for purposes of preparing such budget) and, promptly when available, any significant revisions of such budget;
(ef) promptly after the same become publicly available, copies of all periodic and other reports, proxy statements and other materials filed by Holdings, the Borrower or any Subsidiary with the SECSecurities and Exchange Commission, or any Governmental Authority succeeding to any or all of the functions of said Commission, or with any national securities exchange, or, after the initial Public Equity Offering (disregarding for purposes of this Section 5.4(e) the Net Cash Proceeds dollar threshold contained in the definition of such term), or distributed to its shareholders, as the case may be;
(fg) promptly after the receipt thereof by Holdings or the Borrower or any Subsidiaryof their respective subsidiaries, a copy of any “"management letter” " received by any such person from its certified public accountants and the management’s 's response thereto; and
(gh) 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 may reasonably request. Documents required to be delivered pursuant to Section 5.4(a), (b) or (e) (to the extent any such documents are included in materials otherwise filed with the SEC) may be delivered electronically and if so delivered, shall be deemed to have been delivered on the date (i) on which the Borrower posts such documents, or provides a link thereto on the Borrower’s website on the Internet at the Borrower’s website address; or (ii) on which such documents are posted on the Borrower’s behalf on IntraLinks/IntraAgency or another relevant website, if any, to which each Lender and the Administrative Agent have access (whether a commercial, third-party website or whether sponsored by the Administrative Agent).
Appears in 2 contracts
Samples: Credit Agreement (Fs Equity Partners Iii Lp), Credit Agreement (Blum Capital Partners Lp)
Financial Statements, Reports, etc. In Seller shall deliver, or cause the case of the BorrowerParent Guarantor and its subsidiaries to deliver, furnish to the Administrative Agent (either physically or through electronic delivery reasonably acceptable to the Administrative Agent), which shall furnish to each LenderBuyer:
(a) within 90 days after the end of each fiscal year, its consolidated balance sheet as soon as available and related statements of income, stockholders’ equity and cash flows showing the financial condition of the Borrower and its consolidated Subsidiaries as of the close of such fiscal year and the results of its operations and the operations of such Subsidiaries during such year, together with comparative figures for the immediately preceding fiscal year, all audited by Ernst & Young LLP or other independent public accountants of recognized national standing and accompanied by an opinion of such accountants (which shall not be qualified in any material respectevent within forty-five (45) to the effect that such consolidated financial statements fairly present the financial condition and results of operations of the Borrower and its consolidated Subsidiaries on a consolidated basis in accordance with GAAP consistently applied;
(b) within 45 days after the end of each of the first three quarterly fiscal quarters periods of each fiscal yearyear of Parent Guarantor and its consolidated Subsidiaries, its the unaudited, consolidated balance sheet and related statements of income, stockholders’ equity and cash flows showing the financial condition of the Borrower Parent Guarantor and its consolidated Subsidiaries as of at the close end of such fiscal quarter period and the results related unaudited, consolidated statements of income and stockholders equity and of cash flows of Parent Guarantor and its operations consolidated Subsidiaries for such period and the operations of such Subsidiaries during such fiscal quarter and the then elapsed portion of the fiscal yearyear through the end of such period, and setting forth in each case in comparative form the figures for the same corresponding periods in the immediately preceding previous fiscal year, all certified accompanied by one a certificate of its Financial Officers as a Responsible Officer of Seller, which certificate shall state that said consolidated financial statements fairly presenting present the consolidated financial condition and results of operations of the Borrower Parent Guarantor and its consolidated Subsidiaries on a consolidated basis in accordance with GAAP GAAP, consistently applied, as at the end of, and for, such period (subject to normal year-end audit adjustments);
(b) as soon as available and in any event within ninety (90) days after the end of each fiscal year of Parent Guarantor, commencing with the fiscal year ending December 31, 2010, the consolidated financial statement of Parent Guarantor and its consolidated Subsidiaries as at the end of such fiscal year, prepared in accordance with GAAP, including the consolidated balance sheets and related consolidated statements of income and stockholders equity and of cash flows for Parent Guarantor and its consolidated Subsidiaries for such year, setting forth in each case in comparative form the figures for the previous fiscal year, accompanied by an opinion thereon of independent certified public accountants of recognized national standing, which opinion shall not be qualified as to scope of audit or going concern, and shall state that said annual consolidated financial statements fairly present the consolidated financial condition and results of operations of Parent Guarantor and its consolidated Subsidiaries as at the end of, and for, such fiscal year in accordance with GAAP
(c) concurrently within fifteen (15) days after the end of each quarterly fiscal period of each fiscal year of Parent Guarantor and its consolidated Subsidiaries, monthly liquidity projections of Parent Guarantor and its consolidated Subsidiaries through the Termination Date, in form reasonably satisfactory to Buyer,
(d) if generated by Persons other than KBS Debt Holdings, LLC or an affiliate and received by KBS Debt Holdings, LLC or its successor as mezzanine lender under the Senior Mezzanine Loan Agreement, (i) promptly following receipt thereof and in no event later than sixty (60) days following the end of each calendar quarter, unaudited, certified financial statements for each Transaction Asset Obligor under each Transaction Asset that has been conveyed to Buyer under this Agreement, together with property level information, including but not limited to operating statements and occupancy reports, to the extent available after the exercise of commercially reasonable efforts to obtain such information, (ii) a copy of any financial or other report Seller shall receive from the Transaction Asset Obligor with respect to the Transaction Asset within fifteen (15) days after Seller's receipt thereof; and (iii) the Monthly Transaction Asset Statement, solely to the extent required to be delivered pursuant to the definition thereof; within fifteen (15) days following the end of the related calendar month; provided that with respect to information included therein required by third parties pursuant to clause (iv) of the definition of “Monthly Transaction Asset Statement”, within five (5) days after delivery to such third party.
(e) following the Lower Tier Entity Foreclosure, within forty-five (45) days after the end of each quarterly fiscal period of each fiscal year of KBS Acquisition and its consolidated Subsidiaries, the unaudited, consolidated balance sheet of KBS Acquisition and its consolidated Subsidiaries as at the end of such period and the related unaudited, consolidated statements of income and stockholders equity and of cash flows of KBS Acquisition and its consolidated Subsidiaries for such period and the portion of the fiscal year through the end of such period, setting forth in each case in comparative form the figures for the corresponding periods in the previous fiscal year, accompanied by a certificate of a Responsible Officer of KBS Acquisition, which certificate shall state that said consolidated financial statements fairly present the consolidated financial condition and results of operations of KBS Acquisition and its consolidated Subsidiaries in accordance with GAAP, consistently applied, as at the end of, and for, such period (subject to normal year-end audit adjustments);
(f) following a Lower Tier Entity Foreclosure, within forty-five (45) days after the end of each quarterly fiscal period of each fiscal year of KBS Acquisition and its consolidated Subsidiaries, a certificate of a Responsible Officer of KBS Acquisition setting forth the calculation of Excess Cash Flow (and the related components thereof) for such period and the application of Excess Cash Flow;
(g) within five (5) Business Days after Buyer's request and to the extent such information or documentation is in the possession of Seller or readily available to Seller, such further information with respect to the operation, assets, liabilities, financial condition or prospects of any real property, the Transaction Asset, and the financial affairs of Seller, any Guarantor, as may be reasonably requested by Buyer, including all business plans prepared by or for Seller or such Parent Guarantor;
(h) within five (5) days after the end of each calendar month, a certificate of Seller and Parent Guarantor certifying to compliance with all covenants set forth in the Transaction Documents and setting forth the Liquidity Availability for the related month.
(i) within 120 days of KBS Acquisition acquiring control of a property following a Foreclosure, a two-year projected operating budget relating to each such property, including without limitation a description of any tenant improvement requirements relating thereto;
(j) as soon as reasonably possible, and in any event within fifteen (15) Business Days after a Responsible Officer of Parent Guarantor knows, or with respect to any Plan or Multiemployer Plan to which Seller or any of its Subsidiaries makes direct contributions, has reason to believe, that any of the events or conditions specified below with respect to any Plan or Multiemployer Plan has occurred or exists, a statement signed by a senior financial officer of Seller setting forth details respecting such event or condition and the action, if any, that Seller or its ERISA Affiliate proposes to take with respect thereto (and a copy of any report or notice required to be filed with or given to PBGC by Parent Guarantor or an ER1SA Affiliate with respect to such event or condition):
(i) any reportable event, as defined in Section 4043(c) of ERISA and the regulations issued thereunder, with respect to a Plan, as to which PBGC has not by regulation waived the requirement of Section 4043(a) of ERISA that it be notified within thirty (30) days of the occurrence of such event (provided that, a failure to meet the minimum funding standard of Section 412 of the Code or Section 302 of ERISA, including without limitation the failure to make on or before its due date a required installment under Section 412(m) of the Code or Section 302(e) of ERISA, shall be a reportable event regardless of the issuance of any waivers in accordance with Section 412(d) of the Code); and any request for a waiver under Section 412(d) of the Code for any Plan;
(ii) the distribution under Section 4041(c) of ERISA of a notice of intent to terminate any Plan or any action taken by Seller or any ERISA Affiliate to terminate any Plan;
(iii) the institution by PBGC of proceedings under Section 4042 of ERISA for the termination of, or the appointment of a trustee to administer, any Plan, or the receipt by Seller or any ERISA Affiliate of a notice from a Multiemployer Plan that such action has been taken by PBGC with respect to such Multiemployer Plan;
(iv) the complete or partial withdrawal from a Multiemployer Plan by Seller or any ERISA Affiliate that results in liability under Section 4201 or 4204 of ERISA (including the obligation to satisfy secondary liability as a result of a purchaser default) or the receipt by Seller or any ERISA Affiliate of notice from a Multiemployer Plan that it is in reorganization or insolvency pursuant to Section 4241 or 4245 of ERISA or that it intends to terminate or has terminated under Section 4041 A of ERISA;
(v) the institution of a proceeding by a fiduciary of any Multiemployer Plan against Seller or any ERISA Affiliate to enforce Section 515 of ERISA, which proceeding is not dismissed within thirty (30) days; and
(vi) the adoption of an amendment to any Plan that would result in the loss of tax-exempt status of the Plan and trust of which such Plan is a part if Seller or any ERISA Affiliate fails to provide timely security to such Plan if and as required by the provisions of Section 401(a)(29) of the Code or Section 307 of ERISA. Seller will cause Parent Guarantor, to furnish to Buyer, at the time it furnishes each set of financial statements under paragraph pursuant to paragraphs (a), or ) and (b) above, a certificate of a Responsible Officer of Parent Guarantor to the accounting firm (effect that, to the best of such Responsible Officer's knowledge, Parent Guarantor during such fiscal period or year has observed or performed all of its respective covenants and other agreements, and satisfied every condition, contained in this Agreement and the case other Transaction Documents to be observed, performed or satisfied by it, and that such Responsible Officer has obtained no knowledge of paragraph (a)) or Financial Officer (in the case of paragraph (b)) opining on or certifying such statements (which certificateany Default, when furnished by an accounting firm, may be limited to accounting matters and disclaim responsibility for legal interpretations and which may be provided by a Financial Officer if accounting firms generally are not providing such certificates) (i) certifying that no Event of Default or Material Adverse Effect except as specified in such certificate (and, if any Default or Event of Default has occurred or, if such an Event of Default or Default has occurred, specifying the nature and extent thereof and any corrective action taken or proposed to be taken with respect thereto and (ii) setting forth computations in reasonable detail satisfactory to the Administrative Agent demonstrating compliance with the covenants contained in Sections 6.6, 6.10, 6.11 and 6.12 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 changeis continuing, describing such change the same in reasonable detail and certifying that Holdings is in compliance describing the action Parent Guarantor has taken or proposes to take with Section 6.8;
(d) within 45 days after the commencement of each fiscal year of the Borrower, a detailed consolidated budget for such fiscal year (including a projected consolidated balance sheet and related statements of projected operations and cash flows as of the end of and for such fiscal year);
(e) promptly after the same become publicly available, copies of all periodic and other reports, proxy statements and other materials filed by Holdings, the Borrower or any Subsidiary with the SEC, or any Governmental Authority succeeding to any or all of the functions of said Commission, or with any national securities exchange, or, after the initial Public Equity Offering (disregarding for purposes of this Section 5.4(e) the Net Cash Proceeds dollar threshold contained in the definition of such term), distributed to its shareholders, as the case may be;
(f) promptly after the receipt thereof by Holdings or the Borrower or any Subsidiary, a copy of any “management letter” received by any such person from its certified public accountants and the management’s response respect thereto; and
(g) 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 may reasonably request. Documents required to be delivered pursuant to Section 5.4(a), (b) or (e) (to the extent any such documents are included in materials otherwise filed with the SEC) may be delivered electronically and if so delivered, shall be deemed to have been delivered on the date (i) on which the Borrower posts such documents, or provides a link thereto on the Borrower’s website on the Internet at the Borrower’s website address; or (ii) on which such documents are posted on the Borrower’s behalf on IntraLinks/IntraAgency or another relevant website, if any, to which each Lender and the Administrative Agent have access (whether a commercial, third-party website or whether sponsored by the Administrative Agent).
Appears in 2 contracts
Samples: Master Repurchase Agreement (KBS Real Estate Investment Trust, Inc.), Master Repurchase Agreement (KBS Real Estate Investment Trust, Inc.)
Financial Statements, Reports, etc. In the case of the Borrower, furnish to the Administrative Agent (either physically or through electronic delivery reasonably acceptable to the Administrative Agent), which shall furnish to each Lender:
(a) As soon as practicable and in any event within 90 45 days after the end of each fiscal quarter of each fiscal year except for the fourth fiscal quarter in each fiscal year, its an unaudited consolidated balance sheet of the GGS Companies as of the close of such fiscal quarter and related unaudited consolidated statements of income, stockholders’ equity income and cash flows showing for the fiscal quarter then ended and that portion of the fiscal year then ended, including the notes thereto, all in reasonable detail setting forth in comparative form the corresponding figures as of the end of and for the corresponding period in the preceding fiscal year, and prepared by the GGS Companies in accordance with GAAP and, if applicable, containing disclosure of the effect on the financial position or results of operations of any change in the application of accounting principles and practices during the period, and certified by the chief financial officer of the Borrower as presenting fairly in all material respects the financial condition of the Borrower GGS Companies on a consolidated basis as of their respective dates and its the results of operations of the GGS Companies for the respective periods then ended, subject to normal year end adjustments.
(b) As soon as practicable and in any event within 90 days (or, in the case of the fiscal year ended December 31, 2007, 120 days) after the end of each fiscal year commencing with the fiscal year ended December 31, 2007, a consolidated Subsidiaries balance sheet of the GGS Companies as of the close of such fiscal year and consolidated statements of income, retained earnings and cash flows for the fiscal year then ended, including the notes thereto, all in reasonable detail setting forth in comparative form the corresponding figures as of the end of and for the preceding fiscal year and audited by UHY, LLP or another independent certified public accounting firm acceptable to the Administrative Agent in accordance with GAAP and, if applicable, containing disclosure of the effect on the financial position or results of its operations and the operations of such Subsidiaries any change in the application of accounting principles and practices during such the year, together with comparative figures for the immediately preceding fiscal year, all audited by Ernst & Young LLP or other independent public accountants of recognized national standing and accompanied by an opinion of a report thereon by such certified public accountants (which report shall be without a “going concern” or like qualification or exception and shall not be qualified with respect to scope limitations imposed by any GGS Company or with respect to accounting principles followed by any GGS Company not in any material respectaccordance with GAAP) to the effect that such consolidated financial statements fairly present in all material respects the financial condition conditions and results of operations of the Borrower and its consolidated Subsidiaries GGS Companies on a consolidated basis in accordance with GAAP consistently applied;.
(bc) within 45 days after As soon as practicable and in any event prior to the end of each of the first three fiscal quarters beginning of each fiscal yearyear (commencing with fiscal year 2008), its consolidated a business plan of the GGS Companies for the ensuing four fiscal quarters, such plan to include, on a quarterly basis, the following: a quarterly operating and capital budget, operating assumptions, a projected income statement, statement of cash flows and balance sheet and related statements a report containing management’s discussion and analysis of incomesuch projections, stockholders’ equity and cash flows showing accompanied by a certificate from the chief financial condition officer of the Borrower and its consolidated Subsidiaries as of to the close effect that, to the best of such fiscal quarter officer’s knowledge, such projections are good faith and the results reasonable estimates (utilizing reasonable assumptions in light of its operations current conditions and the operations current facts) 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 Borrower and its consolidated Subsidiaries on a consolidated basis in accordance with GAAP consistently applied, subject to normal year-end audit adjustments;GGS Companies for such four quarter period.
(cd) concurrently with any delivery of At each time financial statements under paragraph (a), are delivered pursuant to Sections 5.01(a) or (b5.01(b) aboveand at such other times as the Administrative Agent shall reasonably request, a certificate of the accounting firm (chief financial officer or the treasurer of the Borrower in the case form of paragraph Exhibit E attached hereto (aan “Officer’s Compliance Certificate”), including the portion, if any, of the Available Amount or the Equity Proceeds Available Amount expended during the period covered by such financial statements and the purpose for which such portion was expended and the then remaining unutilized portion of the Available Amount and the Equity Proceeds Available Amount.
(e) At each time financial statements are delivered pursuant to Sections 5.01(a) or Financial Officer (in the case of paragraph (b5.01(b)) opining on or certifying such statements (which certificate, when furnished by an accounting firm, may be limited to accounting matters and disclaim responsibility for legal interpretations and which may be provided by a Financial Officer if accounting firms generally are not providing such certificates) (i) a report showing the projected usage of any and all seismic crews owned or operated by the GGS Companies for the ensuing three calendar months and (ii) backlog reports and a summary of the location of each seismic crew and the status of each ongoing project for such crews.
(f) At each time financial statements are delivered pursuant to Section 5.01(b), a certificate of the independent public accountants certifying such financial statements and stating that no Event of Default or Default has occurred in connection with their audit, nothing came to their attention that caused them to believe that any GGS Company failed to comply with the Financial Covenants insofar as they relate to financial and accounting matters or, if such an Event of Default or Default has occurredis not the case, specifying the such non-compliance and its nature and extent period of existence.
(g) Promptly upon receipt thereof, copies of all reports, if any, submitted to any GGS Company or its Board of Directors (or equivalent body) or any shareholder thereof by its independent public accountants in connection with their auditing function, including any management report 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 Sections 6.6, 6.10, 6.11 and 6.12 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 6.8;management responses thereto.
(dh) within 45 days after the commencement of each fiscal year of the Borrower, a detailed consolidated budget for such fiscal year (including a projected consolidated balance sheet and related statements of projected operations and cash flows as of the end of and for such fiscal year);
(e) promptly Promptly after the same become publicly available, copies of all periodic and other reports, proxy statements and other materials filed by Holdings, the Borrower or any Subsidiary GGS Company with the SECSecurities and Exchange Commission, or any Governmental Authority succeeding to any or all of the functions of said Commission, or with any national securities exchange, or, after the initial Public Equity Offering (disregarding for purposes of this Section 5.4(e) the Net Cash Proceeds dollar threshold contained in the definition of such term), or distributed to its shareholders, as the case may be;.
(fi) promptly after the receipt thereof by Holdings or the Borrower or any Subsidiary, a copy of any “management letter” received by any such person from its certified public accountants and the management’s response thereto; and
(g) promptly, from time to time, such Such other information regarding the operations, business affairs and financial condition of Holdings, the Borrower or any SubsidiaryGGS Companies, or compliance with the terms of any the Loan DocumentDocuments, as the Administrative Agent or any Lender may reasonably request. Documents required , including all documentation and other information that such Lender reasonably requests in order to be delivered pursuant to Section 5.4(a)comply with its ongoing obligations under applicable “know your customer” and anti-money laundering rules and regulations, (b) or (e) (to including the extent any such documents are included in materials otherwise filed with the SEC) may be delivered electronically and if so delivered, shall be deemed to have been delivered on the date (i) on which the Borrower posts such documents, or provides a link thereto on the Borrower’s website on the Internet at the Borrower’s website address; or (ii) on which such documents are posted on the Borrower’s behalf on IntraLinks/IntraAgency or another relevant website, if any, to which each Lender and the Administrative Agent have access (whether a commercial, third-party website or whether sponsored by the Administrative Agent)USA PATRIOT Act.
Appears in 2 contracts
Samples: First Lien Credit Agreement (Global Geophysical Services Inc), First Lien Credit Agreement (Global Geophysical Services Inc)
Financial Statements, Reports, etc. In the case Borrower shall deliver to Lender for itself and on behalf of the Borrower, furnish to the Administrative Agent (either physically or through electronic delivery reasonably acceptable to the Administrative Agent), which shall furnish to each LenderCT Mezz II:
(a) within 90 days after the end of each fiscal year, its consolidated balance sheet and related statements of income, stockholders’ equity and cash flows showing the financial condition of the Borrower and its consolidated Subsidiaries as of the close of such fiscal year and the results of its operations and the operations of such Subsidiaries during such year, together with comparative figures for the immediately preceding fiscal year, all audited by Ernst & Young LLP or other independent public accountants of recognized national standing and accompanied by an opinion of such 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 Borrower and its consolidated Subsidiaries on a consolidated basis in accordance with GAAP consistently appliedMonthly Statement;
(b) as soon as available and in any event within 45 forty-five (45) days after the end of each of the first three quarterly fiscal quarters periods of each fiscal yearyear of Borrower and CT Mezz II, its consolidated the unaudited (consolidated, if applicable) balance sheet sheets of Borrower and related statements of income, stockholders’ equity and cash flows showing the financial condition of the Borrower CT Mezz II (and its consolidated Subsidiaries Subsidiaries, if applicable) as of at the close end of such fiscal quarter period and the results related unaudited (consolidated, if applicable) statements of income and retained earnings and of cash flows for Borrower and CT Mezz II (and its operations consolidated Subsidiaries, if applicable) for such period and the operations of such Subsidiaries during such fiscal quarter and the then elapsed portion of the fiscal yearyear through the end of such period, and setting forth in each case in comparative form the figures for the same periods in the immediately preceding fiscal previous year, all certified accompanied by one a certificate of its Financial Officers as a Responsible Officer of Borrower and CT Mezz II, which certificate shall state that said consolidated financial statements fairly presenting present the consolidated financial condition and results of operations of the Borrower and CT Mezz II (and its consolidated Subsidiaries on a consolidated basis Subsidiaries, if applicable) in accordance with GAAP GAAP, consistently applied, as at the end of, and for, such period (subject to normal year-end audit adjustments);
(c) concurrently with as soon as available and in any delivery event within ninety (90) days after the end of each fiscal year of Borrower and CT Mezz II, the consolidated balance sheets of Borrower and CT Mezz II (and its consolidated Subsidiaries, if applicable) as at the end of such fiscal year and the related consolidated statements of income and retained earnings and of cash flows for Borrower and CT Mezz II (and its consolidated Subsidiaries, if applicable) for such year, setting forth in each case in comparative form the figures for the previous year, accompanied by an opinion thereon of independent certified public accountants of recognized national standing, which opinion shall not be qualified as to scope of audit or going concern and shall state that said consolidated financial statements under paragraph fairly present the consolidated financial condition and results of operations of Borrower and CT Mezz II (a)and its consolidated Subsidiaries, or (bif applicable) aboveas at the end of, and for, such fiscal year in accordance with GAAP, and a certificate of such accountants stating that, in making the accounting firm (in the case examination necessary for their opinion, they obtained no knowledge, except as specifically stated, of paragraph (a)) any Default or Financial Officer (in the case of paragraph (b)) opining on or certifying such statements (which certificate, when furnished by an accounting firm, may be limited to accounting matters and disclaim responsibility for legal interpretations and which may be provided by a Financial Officer if accounting firms generally are not providing such certificates) (i) certifying that no Event of Default or Default has occurred or, if such an Event of Default or Default has occurred, specifying the nature and extent thereof and any corrective action taken or proposed to be taken with respect thereto and (ii) setting forth computations in reasonable detail satisfactory to the Administrative Agent demonstrating compliance with the covenants contained in Sections 6.6, 6.10, 6.11 and 6.12 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 6.8Default;
(d) within 45 forty-five (45) days after following the commencement end of each quarter, or within ninety (90) days following the end 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);
(e) promptly after the same become publicly available, copies of all periodic and other reports, proxy statements and other materials filed by Holdings, the Borrower or any Subsidiary with the SEC, or any Governmental Authority succeeding to any or all of the functions of said Commission, or with any national securities exchange, or, after the initial Public Equity Offering (disregarding for purposes of this Section 5.4(e) the Net Cash Proceeds dollar threshold contained in the definition of such term), distributed to its shareholders, as the case may be, a certificate from a Responsible Officer of Borrower in form and substance reasonably satisfactory to Lender that Borrower and CT Mezz II during such fiscal period or year has observed or performed all of its covenants and other agreements, and satisfied every condition, contained in this Loan Agreement and the other Loan Documents to be observed, performed or satisfied by it, and that there has been no Event of Default and no Material Adverse Effect;
(e) within fifteen (15) Business Days after Lender's request, such further information with respect to the operation of any real property, the Collateral, the financial affairs of Borrower, CT Mezz II and any Plan and Multiemployer Plan as may be requested by Lender, including all business plans prepared by or for Borrower and CT Mezz II; provided, however, that with respect to information not previously known to, or in the possession of, Borrower relating to any Multiemployer Plan, Borrower shall only be required to provide such information as may be obtained through good faith efforts;
(f) promptly after the receipt thereof by Holdings or the Borrower or any Subsidiaryupon Lender's request, a copy of any “management letter” received by financial or other report Borrower shall receive from any such person from its certified public accountants and the management’s response theretounderlying obligor with respect to an item of Collateral within fifteen (15) days after Borrower's receipt thereof; and
(g) 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, reports as the Administrative Agent or any Lender may shall reasonably request. Documents required to be delivered pursuant to Section 5.4(a), (b) or (e) (to the extent any such documents are included in materials otherwise filed with the SEC) may be delivered electronically and if so delivered, shall be deemed to have been delivered on the date (i) on which the Borrower posts such documents, or provides a link thereto on the Borrower’s website on the Internet at the Borrower’s website address; or (ii) on which such documents are posted on the Borrower’s behalf on IntraLinks/IntraAgency or another relevant website, if any, to which each Lender and the Administrative Agent have access (whether a commercial, third-party website or whether sponsored by the Administrative Agent)require.
Appears in 2 contracts
Samples: Master Loan and Security Agreement (Capital Trust Inc), CMBS Loan Agreement (Capital Trust Inc)
Financial Statements, Reports, etc. In the case of the Borrower, furnish Furnish to the Administrative Agent (either physically or through electronic delivery reasonably acceptable which will promptly furnish such information to the Administrative Agent), which shall furnish to each Lender:Lenders):
(a) as soon as available, but in any event within 90 one hundred twenty (120) days after the end of each fiscal yearyear of FINV, its a consolidated balance sheet and related statements of incomeoperations, stockholderscash flows and owners’ equity and cash flows showing the financial condition position of the Borrower FINV and its consolidated Subsidiaries (including the Borrower) as of the close of such fiscal year and the consolidated results of its their operations and the operations of such Subsidiaries during such year, together with year and setting forth in comparative form the corresponding figures for the immediately preceding prior fiscal year, all audited by Ernst & Young PricewaterhouseCoopers LLP or other independent public accountants of recognized national international standing reasonably acceptable to the Administrative Agent and accompanied by an opinion of such 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 Borrower FINV and its consolidated Subsidiaries on a consolidated basis in accordance with GAAP consistently appliedGAAP;
(b) as soon as available, but in any event within 45 forty-five (45) days after the end of each fiscal quarter of the first three fiscal quarters of each fiscal yearFINV, its a consolidated balance sheet and related statements of income, stockholders’ equity operations and cash flows showing the financial condition position of the Borrower FINV and its consolidated Subsidiaries (including the Borrower) as of the close of such fiscal quarter and the consolidated results of its their operations and the operations of such Subsidiaries during such fiscal quarter and the then then-elapsed portion of the fiscal year, year and setting forth in comparative form the corresponding figures for the same corresponding periods in of the immediately preceding prior fiscal year, all certified by one a Financial Officer of its Financial Officers the Borrower, as fairly presenting presenting, in all material respects, the financial condition position and results of operations of the Borrower FINV and its consolidated Subsidiaries on a consolidated basis in accordance with GAAP consistently applied, (subject to normal year-end audit adjustmentsadjustments and the absence of footnotes);
(c) (x) concurrently with any delivery of financial statements under paragraph (a), ) or (b) above, a certificate of the accounting firm (in the case of paragraph (a)) or Financial Officer (in the case of paragraph (b)) opining on or certifying such statements (which certificate, when furnished by an accounting firm, may be limited to accounting matters and disclaim responsibility for legal interpretations and which may be provided by a Financial Officer if accounting firms generally are not providing such certificates) of the Borrower (i) certifying that no Event of Default or Default has occurred or, if such an Event of Default or Default has occurred, specifying the nature and extent thereof and any corrective action taken or proposed to be taken with respect thereto and (ii) setting forth computations a computation of the Financial Performance Covenants in reasonable detail reasonably satisfactory to the Administrative Agent demonstrating compliance and (y) concurrently with the covenants contained in Sections 6.6, 6.10, 6.11 and 6.12 and, in the case any delivery of a certificate delivered with the financial statements required by paragraph under (a) above, a certificate of its independent 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 6.10 or 6.11 (x) setting forth the Borrower’s calculation of Excess Cash Flow which certificate may be limited to accounting matters 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 6.8disclaims responsibility for legal interpretations);
(d) within 45 days after the commencement of each fiscal year of the Borrower, a detailed consolidated budget for such fiscal year (including a projected consolidated balance sheet and related statements of projected operations and cash flows as of the end of and for such fiscal year);
(e) promptly after the same become publicly available, copies of all periodic and other available reports, proxy statements and and, to the extent requested by the Administrative Agent, other materials filed by Holdings, the Borrower or any Subsidiary of its Subsidiaries with the SEC, or any Governmental Authority succeeding to any or all of the functions of said Commission, or with any national securities exchange, or, after the initial Public Equity Offering (disregarding for purposes of this Section 5.4(e) the Net Cash Proceeds dollar threshold contained in the definition of such term), distributed to its shareholdersequityholders generally, if and as applicable;
(e) as soon as available, but in any event within thirty (30) days after the case may beend of each fiscal year of FINV, a summary report as of the end of the prior fiscal year of FINV substantially in the form of the 2012 Summary Guarantor Group report delivered to the Agent and Lenders prior to the Closing Date, showing for each Guarantor on a stand alone basis its tangible assets and EBITDA and the percentage of Consolidated Tangible Assets owned by, and the contribution to EBITDA of, the Guarantors collectively;
(f) promptly after promptly, a copy of all reports submitted to the receipt thereof by Holdings governing body (or any committee thereof) of the Borrower or any Subsidiary, a copy of its Subsidiaries in connection with any “management letter” received material interim or special audit made by independent accountants of the books of the Borrower or any such person from of its certified public accountants and the management’s response thereto; andSubsidiaries;
(g) promptly, from time to time, such other information regarding the operations, business affairs and financial condition of Holdings, the Borrower or any Subsidiaryof its Subsidiaries, or compliance with the terms of any Loan Document, or such consolidating financial statements, as in each case the Administrative Agent may reasonably request (for itself or on behalf of any Lender);
(h) promptly upon request by the Administrative Agent, copies of: (i) each Schedule B (Actuarial Information) to the annual report (Form 5500 Series) filed with the Internal Revenue Service with respect to a Plan; (ii) the most recent actuarial valuation report for any Plan; (iii) all notices received from a Multiemployer Plan sponsor or 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 or any Lender may shall reasonably request; and
(i) no later than 90 days following the first day of each fiscal year of the Borrower, a budget for the Borrower and its consolidated Subsidiaries. Documents required to be delivered pursuant to this Section 5.4(a), (b) or (e) (to the extent any such documents are included in materials otherwise filed with the SEC) 5.04 may be delivered electronically and if so deliveredand, in the case of Sections 5.04(d) shall be deemed to have been delivered on the date (i) on which the Borrower posts if such documents, or provides one or more annual, quarterly or other reports or filings containing such documents, (i) shall have been posted or provided a link thereto to on the BorrowerFINV’s website on the Internet at the Borrower’s website address; or at xxxx://xxx.xxxxxxxxxxxxxxxxxxx.xxx/, (ii) shall be available on which such documents are the website of the SEC at xxxx://xxx.xxx.xxx or (iii) shall have been posted on the BorrowerFINV’s behalf on IntraLinks/IntraAgency SyndTrak or another relevant website, if any, to which each Lender and the Administrative Agent have access (whether a commercial, third-party website or whether sponsored by the Administrative Agent).
Appears in 2 contracts
Samples: Revolving Credit Agreement (Frank's International N.V.), 364 Day Revolving Credit Agreement (Frank's International N.V.)
Financial Statements, Reports, etc. In the case of the Borrower, furnish to the Administrative Agent (either physically or through electronic delivery reasonably acceptable to the Administrative Agent), which shall furnish for distribution to each Lender:
(a) within 90 days after the end of each fiscal yearyear beginning with the fiscal year ending on December 31, 2011, its consolidated balance sheet and related statements of income, stockholders’ equity and cash flows showing the financial condition of the Borrower and its consolidated Subsidiaries as of the close of such fiscal year of the Borrower and its consolidated Subsidiaries at such time and the results of its operations and the operations of such Subsidiaries during such year, together with comparative figures for the immediately preceding fiscal year, all audited by Ernst & Young KPMG LLP or other independent public accountants of recognized national standing and accompanied by an opinion of such accountants reasonably satisfactory to the Administrative Agent (which shall not be qualified in any material respect, except for qualifications relating to accounting changes (with which such independent public accountants shall concur) in response to FASB releases or other authoritative pronouncements) to the effect that such consolidated financial statements fairly present the financial condition and results of operations of the Borrower and its consolidated Subsidiaries on a consolidated basis in accordance with GAAP consistently applied;
(b) within 45 days after the end of each of the first three fiscal quarters of each fiscal yearyear beginning with the fiscal quarter ending on June 30, 2011, its unaudited consolidated balance sheet and related statements of income, stockholders’ equity and cash flows showing the financial condition of the Borrower and its consolidated Subsidiaries as of the close of such fiscal quarter of the Borrower and its consolidated Subsidiaries at such time 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 to the effect that such financial statements, while not examined by independent public accountants, reflect in the opinion of the Borrower all adjustments necessary to present fairly presenting in all material respects the financial condition and results of operations of the Borrower and its consolidated Subsidiaries on a consolidated basis as of the end of and for such periods in accordance with GAAP consistently applied, subject to normal year-end audit adjustmentsadjustments and the absence of footnotes;
(c) (i) concurrently with any delivery of financial statements under paragraph (aSection 5.04(a), or (b) above, a certificate of letter from the accounting firm (in independent public accountants rendering the case of paragraph (a)) or Financial Officer (in the case of paragraph (b)) opining opinion on or certifying such statements (which certificate, when furnished by an accounting firm, letter may be limited to accounting matters and disclaim responsibility for legal interpretations interpretations) stating whether, in connection with their audit examination, anything has come to their attention which would cause them to believe that any Default or Event of Default existed on the date of such financial statements and which may be provided by if such a condition or event has come to their attention and (ii) concurrently with any delivery of financial statements under Section 5.04(a) or 5.04(b), an Officers’ Certificate of a Financial Officer if accounting firms generally are not providing such certificates) of the Borrower (iA) certifying that no Event of Default or Default has occurred or, if such an Event of Default or Default has occurred, specifying the nature and extent thereof and any corrective action taken or proposed to be taken with respect thereto and (iiB) setting forth computations in reasonable detail as is reasonably satisfactory to the Administrative Agent demonstrating compliance with each of the covenants contained set forth in Sections 6.6, 6.10, 6.11 and 6.12 and, in as of the case last day of a certificate delivered the fiscal year or fiscal quarter with the respect to which such 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 6.8are being delivered;
(d) within 45 30 days after following the commencement of each fiscal year of the Borrower, a detailed consolidated budget for such fiscal year (including a projected consolidated balance sheet and related statements of projected operations and cash flows as of the end of and for such fiscal year)year and setting forth the assumptions used for purposes of preparing such budget) and, promptly when available, any significant revisions of such budget;
(e) promptly after the same become publicly available, copies of all periodic and other reports, proxy statements and other materials filed by Holdings, the Borrower or any Subsidiary with the SECSecurities and Exchange Commission, or any Governmental Authority succeeding to any or all of the functions of said Commission, or with any domestic national securities exchange, or, after the initial Public Equity Offering (disregarding for purposes of this Section 5.4(e) the Net Cash Proceeds dollar threshold contained in the definition of such term), or distributed to its shareholdersshareholders generally, as the case may be;
(f) promptly after the receipt thereof by Holdings or the Borrower or any Subsidiaryof the Subsidiaries, a copy of any “management letter” received by any such person Person from its certified public accountants and the management’s response thereto; and
(g) 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 (acting through the Administrative Agent) may reasonably request. Documents required to be delivered pursuant to Section 5.4(a), (b) or (e) (to the extent any such documents are included in materials otherwise filed with the SEC) may be delivered electronically and if so delivered, shall be deemed to have been delivered on the date (i) on which the Borrower posts such documents, or provides a link thereto on the Borrower’s website on the Internet at the Borrower’s website address; or (ii) on which such documents are posted on the Borrower’s behalf on IntraLinks/IntraAgency or another relevant website, if any, to which each Lender and the Administrative Agent have access (whether a commercial, third-party website or whether sponsored by the Administrative Agent).
Appears in 1 contract
Samples: Credit Agreement (NRG Energy, Inc.)
Financial Statements, Reports, etc. In the case of the BorrowerHoldings, furnish to the Administrative Agent (either physically or through electronic delivery reasonably acceptable to the Administrative Agent), which shall furnish such statements, certificates or other documents received pursuant to this Section 5.04 to each Lender:Lender and Issuing Bank):
(a) within 90 days after the end of each fiscal year, its consolidated balance sheet and related statements of income, stockholders’ equity and cash flows showing the financial condition of the Borrower Holdings and its consolidated Subsidiaries subsidiaries as of the close of such fiscal year and the results of its operations and the operations of such Subsidiaries consolidated subsidiaries during such year, together with comparative figures for the immediately preceding fiscal year, all audited by Ernst & Young KPMG LLP or other independent public accountants of recognized national standing and accompanied by an opinion of such 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 Borrower Holdings and its consolidated Subsidiaries subsidiaries on a consolidated basis in accordance with GAAP consistently applied;
(b) within 45 days after the end of each of the first three fiscal quarters of each fiscal year, its consolidated balance sheet and related statements of income, stockholders’ equity and cash flows showing the financial condition of the Borrower Holdings and its consolidated Subsidiaries subsidiaries as of the close of such fiscal quarter and the results of its operations and the operations of such Subsidiaries 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 one of its Financial Officers as fairly presenting the financial condition and results of operations of the Borrower Holdings and its consolidated Subsidiaries subsidiaries on a consolidated basis in accordance with GAAP consistently applied, subject to normal year-end audit adjustments;
(c) concurrently with any delivery of financial statements under paragraph (a), ) or (b) above, a certificate of the accounting firm (in the case of paragraph (a)) or Financial Officer (in the case of paragraph (b)) opining on or certifying such statements (which certificate, when furnished by an accounting firm, may be limited to accounting matters and disclaim responsibility for legal interpretations and which may be provided by a Financial Officer if accounting firms generally are not providing such certificates) (i) certifying that no Event of Default or Default has occurred or, if such an Event of Default or Default has occurred, specifying the nature and extent thereof and any corrective action taken or proposed to be taken with respect thereto thereto, (ii) setting forth the calculation and uses of the Available Acquisition Amount and the Available Investment Amount for the fiscal period then ended, and (iiiii) setting forth computations in reasonable detail satisfactory to the Administrative Agent demonstrating compliance with the covenants contained in Sections 6.6, 6.10, 6.11 6.08 and 6.12 6.09 and, in the case of a certificate delivered with the financial statements required by paragraph (ab) aboveabove for the period ending on June 30 of each year, (x) setting forth the Borrower’s Holdings’ 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 6.8Flow;
(d) within 45 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 (which certificate may be limited to the extent required by accounting rules or guidelines);
(e) no later than 60 days after the commencement end of each fiscal year of the BorrowerHoldings, a detailed consolidated budget for such the then 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 fiscal year)year and setting forth the assumptions used for purposes of preparing such budget) and, promptly when available, any significant revisions of such budget;
(ef) promptly after the same become publicly available, copies of all periodic and other reports, proxy statements and other materials filed by Holdings, the U.S. Borrower or any Subsidiary with the SECSecurities and Exchange Commission, or any Governmental Authority succeeding to any or all of the functions of said Commission, or with any national securities exchange, or, after the initial Public Equity Offering (disregarding for purposes of this Section 5.4(e) the Net Cash Proceeds dollar threshold contained in the definition of such term), or distributed to its shareholders, as the case may be;
(fg) promptly after the receipt thereof by Holdings or the U.S. Borrower or any Subsidiaryof 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, following a request by any Lender, provide 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
(gi) promptly, from time to time, such other information regarding the operations, business affairs and financial condition of Holdings, the U.S. 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 5.4(a), (b) or (e) (to the extent any such documents are included in materials otherwise filed with the SEC) may be delivered electronically and if so delivered, shall be deemed to have been delivered on the date (i) on which the Borrower posts such documents, or provides a link thereto on the Borrower’s website on the Internet at the Borrower’s website address; or (ii) on which such documents are posted on the Borrower’s behalf on IntraLinks/IntraAgency or another relevant website, if any, to which each Lender and the Administrative Agent have access (whether a commercial, third-party website or whether sponsored by the Administrative Agent).
Appears in 1 contract
Financial Statements, Reports, etc. In the case of the Borrower, furnish Furnish to the Administrative Agent (either physically or through electronic delivery reasonably acceptable to the Administrative Agent), which shall furnish to and each Lender:
(a) as soon as available, but in any event within 90 days after the end of each fiscal yearyear of the Borrower, its a copy of the consolidated balance sheet and related statements of income, stockholders’ equity and cash flows showing the financial condition of the Borrower and its consolidated Subsidiaries as of at the close end of such fiscal year and the results related consolidated statements of its operations income, cash flows and the operations of such Subsidiaries during such year, together with comparative figures for the immediately preceding fiscal year, all audited by Ernst & Young LLP or other independent public accountants of recognized national standing and accompanied by an opinion of such 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 stockholders' equity of the Borrower and its consolidated Subsidiaries on a for such fiscal year, setting forth in each case in comparative form the figures for the previous year and, in the case of the consolidated basis balance sheet referred to above, reported on, without any "going concern" or like qualification or exception or any other material qualifications (other than with respect to the Cases and related matters), by independent certified public accountants of nationally recognized standing; all such financial statements to be complete and correct in all material respects and to be prepared in reasonable detail and in accordance with GAAP consistently appliedGAAP;
(b) within as soon as available, but in any event not later than 45 days after the end of each of the first three fiscal quarters quarterly periods of each fiscal yearyear of the Borrower, its commencing with the first fiscal quarter ending after the Closing Date, (i) the unaudited consolidated balance sheet and related statements of income, stockholders’ equity and cash flows showing the financial condition of the Borrower and its consolidated Subsidiaries as at the end of the close of each such fiscal quarter and the results related unaudited consolidated statements of its operations income, cash flows 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 stockholders' equity of the Borrower and its consolidated Subsidiaries on a consolidated basis for such quarterly period and the portion of the fiscal year of the Borrower through such date, setting forth in accordance with GAAP consistently appliedeach case in comparative form the figures for the corresponding quarter and year to date portion of the previous year, certified by the chief financial officer of the Borrower as being fairly stated in all material respects; all such financial statements to be complete and correct in all material respects (subject to normal year-end audit adjustmentsadjustments and the absence of footnotes) and to be prepared in reasonable detail and in accordance with GAAP and (ii) a discussion and analysis by management of the results of the Loan Parties' operations, including the status of Inventory, returns and trade credit;
(c) as soon as available, but in any event not later than 30 days after the end of each fiscal month occurring during each fiscal year of the Borrower (other than the last fiscal month of any fiscal quarter), (i) the unaudited consolidated balance sheet of the Borrower and its consolidated Subsidiaries as at the end of such fiscal month and the related unaudited consolidated statements of income, cash flows and stockholders' equity of the Borrower and its consolidated Subsidiaries for such fiscal month and the portion of the fiscal year through the end of such fiscal month, setting forth in each case in comparative form the consolidated figures for the corresponding month of the previous year, certified by the chief financial officer of the Borrower as being fairly stated in all material respects (subject to normal year-end audit adjustments and the absence of footnotes); all such financial statements to be complete and correct in all material respects (subject to normal year-end audit adjustments and the absence of footnotes) and to be prepared in reasonable detail and in accordance with GAAP, (ii) a report as of the last day of such fiscal month comparing the Inventory at stores operated by the Loan Parties and at the Loan Parties' warehouses at such date with the comparable prior year period and (iii) a report on such fiscal month detailing the operating and non-operating expenses of the Loan Parties and comparing such expenses to the comparable prior year period and (iv) other information reasonably requested by the Agent regarding the Loan Parties' operations, including the status of Inventory, returns and trade credit;
(d) concurrently with any the delivery of the consolidated financial statements under referred to in subsection 6.1(a), a letter from the independent certified public accountants reporting on such financial statements stating that in making the audit necessary to express their opinion on such financial statements no knowledge was obtained of any Default or Event of Default to the extent relating to accounting matters, including without limitation, subsections 7.7 and 7.8;
(e) concurrently with the delivery of the financial statements referred to in subsections 6.1(a), (b) and (c), a certificate of the chief financial officer of the Borrower (i) stating that, to the best of such officer's knowledge, no Default or Event of Default has occurred and is continuing except as specified in such certificate, (ii) showing in reasonable detail (in the case of the financial statements referred to in subsections 6.1(a) and (b)) as of the end of the related period the figures and calculations supporting such statement in respect of subsections 7.7 and 7.8, (iii) if not specified in the financial statements delivered pursuant to paragraph (a), or (b) aboveor (c) of this subsection, a certificate of the accounting firm (in as the case of paragraph (a)) or Financial Officer (in the case of paragraph (b)) opining on or certifying such statements (which certificate, when furnished by an accounting firm, may be limited to accounting matters and disclaim responsibility for legal interpretations and which may be provided by a Financial Officer if accounting firms generally are not providing such certificates) (i) certifying that no Event of Default or Default has occurred or, if such an Event of Default or Default has occurredbe, specifying the nature aggregate amount of depreciation, depletion and extent thereof amortization charged on the books of the applicable Loan Party, during such period, and any corrective action taken or proposed to be taken indicating the number of stores closed during the preceding month and the status of the leases with respect thereto and (ii) setting forth computations in reasonable detail satisfactory to the Administrative Agent demonstrating compliance with the covenants contained in Sections 6.6, 6.10, 6.11 and 6.12 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 6.8closed stores;
(df) within 45 days after the commencement promptly upon receipt thereof, copies of all final reports submitted to any Loan Party by independent certified public accountants in connection with each fiscal year annual, interim or special audit of the Borrowerbooks of any such Loan Party made by such accountants, a detailed consolidated budget for including, without limitation, any final comment letter submitted by 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)accountants to management in connection with their annual audit;
(eg) promptly after the same become publicly upon their becoming available, copies of all periodic and other financial statements, reports, notices and proxy statements sent or made available to the public generally by any Loan Party, if any, and other materials all regular and periodic reports and all final registration statements and final prospectuses, if any, filed by Holdings, the Borrower any Loan Party with any securities exchange or any Subsidiary with the SEC, Securities and Exchange Commission or any Governmental Authority succeeding to any or all of the functions of said Commission, or with any national securities exchange, or, after the initial Public Equity Offering (disregarding for purposes of this Section 5.4(e) the Net Cash Proceeds dollar threshold contained in the definition of such term), distributed to its shareholders, as the case may befunctions;
(fh) promptly after the receipt thereof same is available, copies of all pleadings, motions, applications, judicial information, financial information and other documents filed by Holdings or on behalf of any Loan Party with the Bankruptcy Court or the Borrower United States Trustee in the Cases;
(i) an accurate, duly completed Borrowing Base Certificate as soon as available but in any event on or before (i) during any Subsidiaryperiod when Loans or L/C Obligations are outstanding, a copy Tuesday of any “management letter” received by any each week, for the week ending on the immediately preceding Saturday, together with the weekly "Supplemental Reportings" referenced in such person from its certified public accountants Borrowing Base Certificate and (ii) 20 calendar days after each fiscal month, as of the management’s response theretoend of the immediately preceding fiscal month, together with the monthly "Supplemental Reportings" referenced in such Borrowing Base Certificate; and
(gj) promptly, from time to time, such other information regarding the operations, business affairs and financial condition of Holdings, the Borrower or any Subsidiaryeach Loan Party, or compliance with the terms of any Loan Documentmaterial loan or financing agreements, as the Administrative Agent or any Lender may reasonably request. Documents required to be delivered pursuant to Section 5.4(a), (b) or (e) (to the extent any such documents are included in materials otherwise filed with the SEC) may be delivered electronically and if so delivered, shall be deemed to have been delivered on the date (i) on which the Borrower posts such documents, or provides a link thereto on the Borrower’s website on the Internet at the Borrower’s website address; or (ii) on which such documents are posted on the Borrower’s behalf on IntraLinks/IntraAgency or another relevant website, if any, to which each Lender and the Administrative Agent have access (whether a commercial, third-party website or whether sponsored by the Administrative Agent).
Appears in 1 contract
Samples: Revolving Credit Agreement (Camelot Music Holdings Inc)
Financial Statements, Reports, etc. In the case of the BorrowerCompany, furnish to the Administrative Agent (either physically or through electronic delivery reasonably acceptable to the Administrative Agent), which shall furnish to and each Lender:
(a) within 90 75 days after the end of each fiscal year, its consolidated balance sheet sheets and related statements of income, changes in stockholders’ ' equity and cash flows flows, showing the financial condition of the Borrower Company and its consolidated Subsidiaries as of the close of such fiscal year and the results of its operations and the operations of such its Subsidiaries during such year, together with comparative figures for the immediately preceding fiscal year, all audited by Ernst & Young PricewaterhouseCoopers LLP or other independent public accountants of recognized national standing acceptable to the Required Lenders and accompanied by an opinion of such 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 Borrower and its consolidated Subsidiaries Company on a consolidated basis in accordance with GAAP consistently applied;
(b) within 45 40 days after the end of each of the first three fiscal quarters of each fiscal year, its consolidated balance sheet sheets and related statements of income, changes in stockholders’ ' equity and cash flows flows, showing the financial condition of the Borrower Company and its consolidated Subsidiaries as of the close of such fiscal quarter and the results of its operations and the operations of such its 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 such fiscal year, all certified by one of its Financial Officers as fairly presenting the financial condition and results of operations of the Borrower and its consolidated Subsidiaries Company on a consolidated basis in accordance with GAAP consistently applied, subject to normal year-end audit adjustments;
(c) concurrently with any delivery of financial statements under paragraph (a), ) or (b) above, a certificate of the accounting firm (in the case of paragraph (a)) or Financial Officer (in the case of paragraph (b)) opining on or certifying such statements (which certificate, when furnished by an accounting firm, may be limited to accounting matters and disclaim responsibility for legal interpretations and which may be provided by a Financial Officer if accounting firms generally are not providing such certificatesinterpretations) (i) certifying that no Event of Default or Default has occurred or, if such an Event of Default or Default has occurred, specifying the nature and extent thereof and any corrective action taken or proposed to be taken with respect thereto and (ii) setting forth computations in reasonable detail satisfactory to the Administrative Agent demonstrating compliance with the covenants covenant contained in Sections 6.6, 6.10, 6.11 and 6.12 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 6.86.06;
(d) within 45 days after the commencement of each fiscal year of the Borrower, a detailed consolidated budget for such fiscal year (including a projected consolidated balance sheet and related statements of projected operations and cash flows as of the end of and for such fiscal year);
(e) promptly after the same become publicly available, copies of all periodic and other reports, proxy statements and other materials filed by Holdings, the Borrower or any Subsidiary it with the SECSecurities and Exchange Commission, or any Governmental Authority succeeding to any of or all of the functions of said such Commission, or with any national securities exchange, or, after the initial Public Equity Offering (disregarding for purposes of this Section 5.4(e) the Net Cash Proceeds dollar threshold contained in the definition of such term), or distributed to its shareholders, as the case may be;
(f) promptly after the receipt thereof by Holdings or the Borrower or any Subsidiary, a copy of any “management letter” received by any such person from its certified public accountants and the management’s response thereto; and
(ge) promptly, from time to time, such other information regarding the operations, business affairs and financial condition of Holdings, the Borrower Company 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 5.4(a), (b) or (e) (to the extent any such documents are included in materials otherwise filed with the SEC) may be delivered electronically and if so delivered, shall be deemed to have been delivered on the date (i) on which the Borrower posts such documents, or provides a link thereto on the Borrower’s website on the Internet at the Borrower’s website address; or (ii) on which such documents are posted on the Borrower’s behalf on IntraLinks/IntraAgency or another relevant website, if any, to which each Lender and the Administrative Agent have access (whether a commercial, third-party website or whether sponsored by the Administrative Agent).
Appears in 1 contract
Financial Statements, Reports, etc. In the case of the Borrower, furnish Furnish to the Administrative Agent (either physically or through electronic delivery reasonably acceptable to the Administrative Agent), which shall furnish to with sufficient copies for each Lender:):
(a) as soon as available and in any event within 90 seventy five (75) days after (or such earlier date as may be required by the SEC, from time to time) of the end of each the fiscal yearyear of the Company, the (i) audited consolidated financial statements of the Company and its Subsidiaries which shall include the consolidated and consolidating balance sheet and related statements of income, stockholders’ equity and cash flows showing the financial condition of the Borrower Company and its consolidated Subsidiaries as of the close end of such fiscal year, together with the consolidated and consolidating statement of income and statement of cash flows for the Company and its Subsidiaries for such fiscal year and as of the results end of its operations and the operations of such Subsidiaries during such year, together with comparative figures for the immediately preceding prior fiscal year, all audited by Ernst & Young LLP or other independent public accountants of recognized national standing prepared in accordance with Generally Accepted Accounting Principles and accompanied by an opinion thereon of such Ernst & Young, LLP or other nationally recognized independent certified public accountants reasonably acceptable to the Lenders (the “Auditor”) which opinion shall not be qualified in any material respect) include a going concern explanatory paragraph, or a qualification or exception as to the effect that such consolidated scope of the audit and (ii) the unaudited consolidating financial statements fairly present the financial condition and results of operations of the Borrower Company and its consolidated Subsidiaries on a consolidated basis Subsidiaries, as of the end of and fur such year, prepared by the Chief Financial Officer in accordance with GAAP consistently appliedGenerally Accepted Accounting Principles;
(b) as soon as available and in any event within 45 sixty (60) days (or such earlier date as may be required by the SEC, from time to time) after the end of each of the first three first, second and third fiscal quarters of each fiscal yearthe Company, the unaudited consolidated and consolidating financial statements of the Company and its Subsidiaries, which shall include the unaudited consolidated and consolidating balance sheet and related statements of income, stockholders’ equity and cash flows showing the financial condition of the Borrower Company and its consolidated Subsidiaries as of the close end of each such quarter, together with the consolidated and consolidating statement of income and statement of cash flows of the Company and its Subsidiaries for each such quarter and for the period commencing at the end of the previous fiscal year and ending with the end of such fiscal quarter and quarter, all in reasonable detail stating in comparative form 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 respective figures for the same periods corresponding date and period in the immediately preceding previous fiscal year, all certified prepared by one of its Financial Officers as fairly presenting or under the financial condition and results of operations supervision of the Borrower and its consolidated Subsidiaries on a consolidated basis Chief Financial Officer of the Company in accordance with GAAP consistently applied, subject to normal year-end audit adjustmentsGenerally Accepted Accounting Principles;
(c) concurrently a certificate prepared and signed by the Chief Financial Officer with any each delivery of financial statements under paragraph required by clause (a), or (b) above, a certificate of the accounting firm (in the case of paragraph (a)) or Financial Officer (in the case of paragraph and (b), stating whether the Chief Financial Officer shall have obtained knowledge of any Default or Event of Default, and demonstrating that as of the last day of the relevant fiscal year or quarter, as applicable, the Company was in compliance with the financial condition covenants set forth in Section 7.13 hereof;
(d) opining on or certifying such statements prior to the twenty-fifth (which certificate, when furnished 25th) day of each fiscal quarter of the Company a detailed schedule describing all accounts receivable of the Financial Parties certified by an accounting firm, may be limited to accounting matters and disclaim responsibility for legal interpretations and which may be provided by a the Chief Financial Officer if accounting firms generally are not providing such certificates) (i) certifying that no Event of Default or Default has occurred orthe Company and current as of the last Business Day of the preceding month, if such an Event of Default or Default has occurred, specifying the nature and extent thereof and any corrective action taken or proposed to be taken with respect thereto and (ii) setting forth computations all in reasonable detail form satisfactory to the Administrative Agent demonstrating compliance with Lenders;
(e) on or prior to the covenants contained twenty-fifth (25th) day of the end of each second fiscal quarter and fiscal year of the Company a detailed schedule describing all accounts payable of the Financial Parties certified by the Chief Financial Officer of the Company and current as of the last Business Day of the preceding month, all in Sections 6.6form satisfactory to the Lenders;
(f) as soon as available, 6.10, 6.11 and 6.12 and, in the case any event not later than 30 days following delivery of a certificate delivered with the financial statements required by paragraph described in clause (a) above, management prepared consolidated and consolidating financial projections of the Company and its Subsidiaries (xincluding balance sheets, statements of income, retained earnings and cash flow) setting forth for the Borrower’s calculation of Excess Cash Flow next fiscal year and (y) certifying that there has been no change accompanied by detailed assumptions, in form satisfactory to 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 6.8Lenders;
(d) within 45 days after the commencement of each fiscal year of the Borrower, a detailed consolidated budget for such fiscal year (including a projected consolidated balance sheet and related statements of projected operations and cash flows as of the end of and for such fiscal year);
(eg) promptly after the same become publicly availablefiling thereof, copies of all periodic and other reports, proxy financial statements and other materials filed by Holdings, reports that the Borrower or any Subsidiary with the SEC, or any Governmental Authority succeeding to any or all of the functions of said Commission, or with any national securities exchange, or, after the initial Public Equity Offering (disregarding for purposes of this Section 5.4(e) the Net Cash Proceeds dollar threshold contained in the definition of such term), distributed Company sends to its shareholders, as and copies of all regular, periodic and special financial information, proxy materials, reports and other information which the case may beCompany or any Guarantor shall file with the Securities and Exchange Commission;
(fh) 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 receipt thereof by Holdings or the Borrower or any Subsidiary, normal course of business and which could not reasonably be expected to result in a copy of any “management letter” received by any such person from its certified public accountants and the management’s response thereto; andMaterial Adverse Effect;
(gi) promptly, from time to time, such other information regarding the operations, business affairs and condition, financial condition or otherwise, of Holdings, the Borrower Company or any Subsidiary, or compliance with Subsidiary of the terms of any Loan Document, Company as the Administrative Agent or any Lender may reasonably request. Documents required to be delivered pursuant to Section 5.4(a), The Administrative Agent and the Lenders acknowledge and agree that the Company may satisfy the requirements of clauses (a) and (b) or (e) (above by delivering to the extent any such documents are included in materials otherwise filed with the SEC) may be delivered electronically and if so delivered, shall be deemed to have been delivered on the date (i) on which the Borrower posts such documents, or provides a link thereto on the Borrower’s website on the Internet at the Borrower’s website address; or (ii) on which such documents are posted on the Borrower’s behalf on IntraLinks/IntraAgency or another relevant website, if any, to which each Lender and the Administrative Agent have access (whether and the Lenders copies of the Company’s annual and quarterly reports on Forms 10K and 10Q, respectively, together with consolidating financial statements with the Financial Parties as a commercial, third-party website or whether sponsored by the Administrative Agent)subtotal.
Appears in 1 contract
Financial Statements, Reports, etc. In the case of the Borrower, furnish Furnish to the Administrative Agent (either physically or through electronic delivery reasonably acceptable to the Administrative Agent), which shall furnish to each Lender:
(a) within 90 days after the end of each fiscal year, its consolidated balance sheet as soon as available and related statements of income, stockholders’ equity and cash flows showing the financial condition of the Borrower and its consolidated Subsidiaries as of the close of such fiscal year and the results of its operations and the operations of such Subsidiaries during such year, together with comparative figures for the immediately preceding fiscal year, all audited by Ernst & Young LLP or other independent public accountants of recognized national standing and accompanied by an opinion of such 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 Borrower and its consolidated Subsidiaries on a consolidated basis in accordance with GAAP consistently applied;
(b) event within 45 days after the end of each of the first three (3) fiscal quarters of each fiscal yearthe Borrowers, its consolidated (i) unaudited Consolidated and consolidating balance sheet sheets and related Consolidated and consolidating income statements of income, stockholders’ equity and 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 position and results of operations of the each Borrower and its consolidated Subsidiaries on respective subsidiaries as of the end of each such quarter, (ii) a consolidated basis Consolidated and consolidating statement of shareholders' equity and (iii) a Consolidated and consolidating statement of cash flow, in each case for the fiscal quarter just ended and for the period commencing at the end of the immediately preceding Fiscal Year and ending with the last day of such quarter, in each case prepared and certified by the Financial Officer of each of such Borrower as presenting fairly in all material respects the financial position and results of operations of such Borrower and its subsidiaries and as having been prepared in accordance with GAAP consistently applied(except the absence of footnote disclosure), in each case subject to normal year-end audit adjustments;
(c) concurrently with any delivery of financial statements under paragraph (a), or (b) aboveas soon as available and in any event within 30 days after the end of each month, a certificate of the accounting firm (in the case of paragraph (a)) or Financial Officer (in the case of paragraph (b)) opining on or certifying such statements (which certificate, when furnished by an accounting firm, may be limited to accounting matters and disclaim responsibility for legal interpretations and which may be provided by a Financial Officer if accounting firms generally are not providing such certificates) (i) certifying that no Event unaudited Consolidated and consolidating unconsolidated balance sheets and income statements showing the financial position and results of Default or Default has occurred oroperations of each Borrower and its respective subsidiaries as of the end of each such month, if such an Event of Default or Default has occurred, specifying the nature and extent thereof and any corrective action taken or proposed to be taken with respect thereto and (ii) setting forth computations a Consolidated and consolidating unconsolidated statement of shareholders' equity and (iii) a Consolidated and consolidating unconsolidated statement of cash flow, in reasonable detail satisfactory 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, prepared and certified by the Financial Officer of such Borrower as presenting fairly in all material respects the financial condition and results of operations of such Borrower and its subsidiaries and as having been prepared in accordance with GAAP (except the absence of footnote disclosure), in each case subject to normal year-end adjustments;
(c) immediately upon becoming aware thereof, notice to the Administrative Agent demonstrating compliance with Lender of the covenants contained in Sections 6.6, 6.10, 6.11 and 6.12 and, in the case breach by any party of any Underlying Purchase Agreement or other material agreement to which any Borrower or any of its subsidiaries is 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 6.8party;
(d) within 45 at least five days after prior to the commencement sale or other disposition of each fiscal year any Kept Assets, notice to the Lender of such disposition including a description in reasonable detail outlining the principal terms of such disposition, including but not limited to any purchase consideration payable and the identity 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);parties involved; and
(e) promptly after the same become publicly available, copies of all periodic and such other reports, proxy statements and other materials filed by Holdings, the Borrower or any Subsidiary with the SEC, or any Governmental Authority succeeding to any or all of the functions of said Commission, or with any national securities exchange, or, after the initial Public Equity Offering (disregarding for purposes of this Section 5.4(e) the Net Cash Proceeds dollar threshold contained in the definition of such term), distributed to its shareholders, information as the case Lender may be;
(f) promptly after the receipt thereof by Holdings or the Borrower or any Subsidiary, a copy of any “management letter” received by any such person from its certified public accountants and the management’s response thereto; and
(g) promptly, from time to time, time reasonably request promptly following 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 may reasonably request. Documents required to be delivered pursuant to Section 5.4(a), (b) or (e) (to the extent any such documents are included in materials otherwise filed with the SEC) may be delivered electronically and if so delivered, shall be deemed to have been delivered on the date (i) on which the Borrower posts such documents, or provides a link thereto on the Borrower’s website on the Internet at the Borrower’s website address; or (ii) on which such documents are posted on the Borrower’s behalf on IntraLinks/IntraAgency or another relevant website, if any, to which each Lender and the Administrative Agent have access (whether a commercial, third-party website or whether sponsored by the Administrative Agent).
Appears in 1 contract
Samples: Credit Agreement (Spanish Broadcasting System Finance Corp)
Financial Statements, Reports, etc. In the case of the BorrowerParent, furnish to the Administrative Agent (either physically or through electronic delivery reasonably acceptable to the Administrative Agent), which shall furnish who will distribute to each Lender:):
(a) within 90 days after the end of each fiscal yearFiscal Year, its consolidated balance sheet and related statements of income, stockholders’ equity and cash flows showing the financial condition of the Borrower Parent and its consolidated Subsidiaries as of the close of such fiscal year Fiscal Year and the results of its operations and the operations of such Subsidiaries persons during such year, together with comparative figures for the immediately preceding fiscal yearFiscal Year, all in reasonable detail and prepared in accordance with GAAP, all audited by Ernst Xxxxx Xxxxxxx & Young LLP Co., P.C. or other independent public accountants of recognized national standing and accompanied by an opinion of such 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 Borrower Parent and its consolidated Subsidiaries on a consolidated basis in accordance with GAAP consistently appliedGAAP;
(b) within 45 days after the end of each of the first three fiscal quarters of each fiscal yearFiscal Year, its consolidated balance sheet and related statements of income, stockholders’ equity and cash flows showing the financial condition of the Borrower Parent and its consolidated Subsidiaries as of the close of such fiscal quarter and the results of its operations and the operations of such Subsidiaries persons during such fiscal quarter and the then elapsed portion of the fiscal yearFiscal Year, and comparative figures for the same periods in the immediately preceding fiscal yearFiscal 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 Parent and its consolidated Subsidiaries on a consolidated basis in accordance with GAAP consistently appliedGAAP, subject to normal year-end audit adjustmentsadjustments and the absence of footnotes;
(c) within 30 days after the end of each fiscal month in each Fiscal Year, its consolidated balance sheet and related statements of income, stockholders’ equity and cash flows showing the financial condition of the Parent and its consolidated Subsidiaries as of the close of such fiscal month and the results of its operations and the operations of such persons during such fiscal month and the then elapsed portion of the Fiscal Year, and comparative figures for the same periods in the preceding Fiscal Year, all certified by one of its Financial Officers as fairly presenting in all material respects the financial condition and results of operation of the Parent and its Subsidiaries on a consolidated basis in accordance with GAAP, subject to normal year-end audit adjustments and the absence of footnotes;
(d) concurrently with any delivery of financial statements under paragraph (a), ) or (b) above, a certificate of the accounting firm (in the case of paragraph (a)) or Financial Officer (in the case of paragraph (b)) opining on or certifying such statements (which certificate, when furnished by an accounting firm, may be limited to accounting matters and disclaim responsibility for legal interpretations and which may be provided by a Financial Officer if accounting firms generally are not providing such certificates) of the Parent (i) certifying that no Event of Default or Default has occurred or, if such an Event of Default or Default has occurred, specifying the nature and extent thereof and any corrective action taken or proposed to be taken with respect thereto and (ii) setting forth computations in reasonable detail satisfactory to the Administrative Agent and the Lenders demonstrating compliance with the covenants contained in Sections 6.6, 6.10, 6.11 Section 6.14 and 6.12 and, in the case 6.15; and concurrently with any delivery of a certificate delivered with the financial statements required by under paragraph (a) above, (x) setting forth a certificate of the Borrower’s calculation of Excess Cash Flow and (y) accounting firm certifying that there such accounting firm did not become aware of any Event of Default or Default having occurred or, if such accounting firm shall have become aware than and Event of Default or Default has been no change in occurred, specifying 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 6.8nature thereof;
(de) within 45 30 days after the commencement of each fiscal year Fiscal Year of the BorrowerParent, a detailed consolidated budget for such fiscal year 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)Fiscal Year and setting forth the material assumptions used for purposes of preparing such budget) and, promptly when available, any material revisions of such budget;
(ef) promptly after the same become publicly available, copies of all periodic filings and other reports, proxy statements and other materials filed by Holdings, the Parent or the Borrower or any Subsidiary with the SECSecurities and Exchange Commission, or any Governmental Authority succeeding to any or all of the functions of said Commission, or with any national securities exchange, or, after the initial Public Equity Offering (disregarding for purposes of this Section 5.4(e) the Net Cash Proceeds dollar threshold contained in the definition of such term), or distributed to its shareholders, as the case may beshareholders or other creditors;
(fg) 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 receipt thereof by Holdings or the Parent, Borrower or any Subsidiaryof its Subsidiaries, a copy of any “management letter” received by any such person from its certified public accountants and the management’s response thereto;
(i) concurrently with the delivery of the certificate delivered pursuant to clause (a) above with respect to the end of a Fiscal Year, a certificate of a Financial Officer of the Borrower setting forth the amount of Capital Expenditures during the relevant Fiscal Year and the base amount for the next succeeding Fiscal Year; and
(gj) promptly, from time to time, such other information regarding the operations, business affairs and financial condition of Holdings, the Borrower Parent 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 5.4(a), (b) or (e) (to the extent any such documents are included in materials otherwise filed with the SEC) may be delivered electronically and if so delivered, shall be deemed to have been delivered on the date (i) on which the Borrower posts such documents, or provides a link thereto on the Borrower’s website on the Internet at the Borrower’s website address; or (ii) on which such documents are posted on the Borrower’s behalf on IntraLinks/IntraAgency or another relevant website, if any, to which each Lender and the Administrative Agent have access (whether a commercial, third-party website or whether sponsored by the Administrative Agent).
Appears in 1 contract
Samples: Credit Agreement (Geokinetics Inc)
Financial Statements, Reports, etc. In the case of the Borrower, furnish to the Administrative Agent (either physically or through electronic delivery reasonably acceptable to the Administrative Agent), which shall furnish who will deliver to each Lender:
(a) (i) within 90 days after the end of each fiscal year, its consolidated balance sheet and related statements of income, stockholders’ equity and cash flows showing the financial condition of the Borrower and its consolidated Subsidiaries as of the close of such fiscal year and the results of its operations and the operations of such Subsidiaries during such year, together with comparative figures for the immediately preceding fiscal year, all audited by Ernst & Young LLP KPMG or other independent public accountants of recognized national standing and accompanied by an opinion of such 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 Borrower and its consolidated Subsidiaries on a consolidated basis in accordance with GAAP consistently applied; and (ii) as soon as available and in any event within 60 days (or, in the case of any audited statements and risk-based capital reports required to be delivered pursuant to this clause (ii), 180 days) after the close of each fiscal year of each Regulated Insurance Subsidiary, the annual statement of such Regulated Insurance Subsidiary (prepared in accordance with SAP) for such fiscal year and as filed with the Insurance Regulators of the state in which such Regulated Insurance Subsidiary is domiciled (together with any certifications or statements of such Regulated Insurance Subsidiary relating to such annual statement and any audited statements and risk-based capital reports, in each case which are required by such Insurance Regulators);
(b) (i) within 45 days after the end of each of the first three fiscal quarters of each fiscal year, its consolidated balance sheet and related statements of income, stockholders’ equity and 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 Borrower and its consolidated Subsidiaries on a consolidated basis in accordance with GAAP consistently applied, subject to normal year-end audit adjustmentsadjustments and the absence of footnotes; and (ii) as soon as available and in any event within 60 days after the close of each of the first three quarterly accounting periods in each fiscal year of each Regulated Insurance Subsidiary, quarterly financial statements of such Regulated Insurance Company (prepared in accordance with SAP) for such quarterly accounting period as filed with the Insurance Regulators of the state in which such Regulated Insurance Subsidiary is domiciled (together with any certifications or statements of such Regulated Insurance Subsidiary relating to such quarterly financial statements which are required by such Insurance Regulators);
(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 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 in all material respects the financial condition and results of operations of the Borrower and its consolidated Subsidiaries on a consolidated basis in accordance with GAAP consistently applied, subject to normal year-end audit adjustments and the absence of footnotes;
(d) concurrently with any delivery of financial statements under paragraph (a), ) or (b) above, (i) a certificate of the accounting firm (in the case of paragraph (a)) or Financial Officer (in the case of paragraph (b)) opining on or certifying such statements (which certificate, when furnished by an accounting firm, may be limited to accounting matters and disclaim responsibility for legal interpretations and which may be provided by a Financial Officer if accounting firms generally are not providing such certificates) (i) certifying that no Event of Default or Default has occurred or, if such an Event of Default or Default has occurred, specifying the nature and extent thereof and any corrective action taken or proposed to be taken with respect thereto and (ii) setting forth computations in reasonable detail satisfactory to the Administrative Agent demonstrating compliance with the covenants contained in Sections 6.66.11, 6.106.12, 6.11 6.13, 6.14, 6.15 and 6.12 6.16, 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 (yii) certifying that there has been no change in the business activities, assets or liabilities related unaudited consolidating financial statements reflecting the adjustments necessary to eliminate the accounts of Holdings, or Premium Finance Co. (if there has been any any) from such change, describing such change in reasonable detail and certifying that Holdings is in compliance with Section 6.8consolidated financial statements;
(de) within 45 concurrently with any delivery of financial statements under paragraph (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 Event of Default or Default with respect to Sections 6.11, 6.12, 6.13, 6.14, 6.15 or 6.16 (which certificate may be limited to the extent required by generally accepted accounting rules or guidelines);
(f) at least 90 days after the commencement end of each fiscal year of the Borrower, a detailed consolidated budget for the fiscal year following such fiscal year then ended (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)year and setting forth the assumptions used for purposes of preparing such budget) and, promptly when available, any significant revisions of such budget;
(eg) promptly after the same become publicly available, copies of all periodic and other reports, proxy statements and other materials filed by Holdings, the Borrower or any Subsidiary with the SECSecurities and Exchange Commission, or any Governmental Authority succeeding to any or all of the functions of said Commission, or with any national securities exchange, or, after the initial Public Equity Offering (disregarding for purposes of this Section 5.4(e) the Net Cash Proceeds dollar threshold contained in the definition of such term), or distributed to its shareholders, as the case may be;
(fh) promptly after the receipt thereof by Holdings or the Borrower or any Subsidiaryof 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;
(gi) promptly, from time to time, such other information regarding promptly following receipt or as promptly as reasonably practicable following the operations, business affairs and financial condition request of Holdings, the Borrower or any Subsidiary, or compliance with the terms of any Loan Document, as the Administrative Agent or any Lender the Required Lenders, a report prepared by an independent actuarial consulting firm of recognized professional standing reasonably satisfactory to the Administrative Agent and the Required Lenders reviewing the adequacy of reserves of each Regulated Insurance Subsidiary determined in accordance with SAP, which firm shall be provided access to or copies of all reserve analyses and valuations relating to the insurance business of each Regulated Insurance Subsidiary in the possession of or available to the Borrower or its Subsidiaries; provided that no request may reasonably request. Documents required to be delivered made pursuant to Section 5.4(a), (b) or (e) (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 this clause (i) on which the Borrower posts unless there shall have occurred and be continuing an Event of Default;
(j) promptly (i) after receipt thereof, copies of all regular and periodic reports of examinations (including, without limitation, triennial examinations and annual risk adjusted capital reports) of any Regulated Insurance Subsidiary, delivered to such documentsperson by any Insurance Regulators, insurance commission or provides a link thereto on the Borrower’s website on the Internet at the Borrower’s website address; or (ii) on which such documents are posted on the Borrower’s behalf on IntraLinks/IntraAgency or another relevant website, if any, to which each Lender and the Administrative Agent have access (whether a commercial, third-party website or whether sponsored by the Administrative Agent).similar regulatory authority,
Appears in 1 contract
Samples: Credit Agreement (Affirmative Insurance Holdings Inc)
Financial Statements, Reports, etc. In the case of the Borrower, furnish to the Administrative Agent (either physically or through electronic delivery reasonably acceptable to the Administrative Agent), which shall furnish to each Lender:
(a) within 90 days after the end of each fiscal year, its consolidated balance sheet and related statements of income, stockholders’ ' equity and cash flows showing the financial condition of the Borrower and its consolidated Subsidiaries as of the close of such fiscal year and the results of its operations and the operations of such Subsidiaries during such year, together with comparative figures for the immediately preceding fiscal year, all audited by Ernst & Young LLP or other independent public accountants of recognized national standing and accompanied by an opinion of such 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 Borrower and its consolidated Subsidiaries on a consolidated basis in accordance with GAAP consistently applied;
(b) within 45 days after the end of each of the first three fiscal quarters of each fiscal year, its consolidated balance sheet and related statements of income, stockholders’ ' equity and 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 Responsible Officers as fairly presenting the financial condition and results of operations of the Borrower and its consolidated Subsidiaries on a consolidated basis in accordance with GAAP consistently applied, subject to normal year-end audit adjustments;
(c) concurrently with any delivery of financial statements under paragraph (a), ) or (b) above, a certificate of the accounting firm (in the case of paragraph (a)) or Financial Responsible Officer (in the case of paragraph (b)) opining on or certifying such statements (which certificate, when furnished by an accounting firm, may be limited to accounting matters and disclaim responsibility for legal interpretations and which may be provided by a Financial Responsible Officer if accounting firms generally are not providing such certificates) (a "Compliance Certificate") (i) certifying that no Event of Default or Default has occurred or, if such an Event of Default or Default has occurred, specifying the nature and extent thereof and any corrective action taken or proposed to be taken with respect thereto and (ii) setting forth computations in reasonable detail satisfactory to the Administrative Agent showing the Consolidated Leverage Ratio and demonstrating compliance with the covenants contained in Sections 6.68.06, 6.108.10, 6.11 8.11 and 6.12 8.12 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 Holdingsthe Borrower, or if there has been any such change, describing such change in reasonable detail and certifying that Holdings the Borrower is in compliance with Section 6.88.08;
(d) within 45 days after the commencement of each fiscal year of the Borrower, a detailed consolidated budget for such fiscal year (including a projected consolidated balance sheet and related statements of projected operations and cash flows as of the end of and for such fiscal year);
(e) promptly after the same become publicly available, copies of all periodic and other reports, proxy statements and other materials filed by Holdings, the Borrower or any Subsidiary with the SEC, or any Governmental Authority succeeding to any or all of the functions of said Commissionthe SEC, or with any national securities exchange, or, after the initial Public Equity Offering (disregarding for purposes of this Section 5.4(e) the Net Cash Proceeds dollar threshold contained in the definition of such term), or distributed to its shareholders, as the case may be;
(f) promptly after the receipt thereof by Holdings or the Borrower or any Subsidiary, a copy of any “"management letter” " received by any such person from its certified public accountants and the management’s 's response thereto; and
(g) 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 may reasonably request. Documents required to be delivered pursuant to Section 5.4(a), (b) or (e) 7.04 (to the extent any such documents are included in materials otherwise filed with the SEC) may be delivered electronically and if so delivered, shall be deemed to have been delivered on the date (i) on which the Borrower posts such documents, or provides a link thereto on the Borrower’s 's website on the Internet at the Borrower’s website addressaddress listed on Schedule 11.02; or (ii) on which such documents are posted on the Borrower’s 's behalf on IntraLinks/IntraAgency an Internet or another relevant 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 that requests 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 posting of any such documents and provide to the Administrative Agent by electronic mail electronic versions (i.e., soft copies) of such documents. Notwithstanding anything contained herein, in every instance the Borrower shall be required to provide paper copies of the Compliance Certificates required by Section 7.04(c) to the Administrative Agent. Except for such Compliance Certificates, the Administrative Agent shall have no obligation to request the delivery or to maintain copies of the documents referred to above, and in any event shall have no responsibility to monitor compliance by the 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 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, the "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 have personnel who do not wish to receive material non-public information with respect to the Borrower or its Affiliates, or the respective securities of any of the foregoing, and who may be engaged in investment and other market-related activities with respect to such Person's 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 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 to the extent such Borrower Materials constitute Information, they shall be treated as set forth in Section 11.07); (y) all Borrower Materials marked "PUBLIC" are permitted to be made available through a portion of the Platform designated as "Public Investor;" 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 marked as "Public Investor."
Appears in 1 contract
Samples: Credit Agreement (Knoll Inc)
Financial Statements, Reports, etc. In the case of the Borrower, furnish to the Administrative Agent (either physically or through electronic delivery reasonably acceptable to the Administrative Agent), which shall furnish to and each Lender:
(a) within 90 105 days after the end of each fiscal year, its consolidated and consolidating balance sheet and related consolidated and consolidating statements of income, stockholders’ equity income and cash flows flow, showing the financial condition of the Borrower and its consolidated Subsidiaries as of the close of such fiscal year and the results of its their operations and the operations of such Subsidiaries during such year, together with comparative figures and a comparison of such financial position and results of operations as of the corresponding date and for the immediately preceding previous fiscal year, all audited (in the case of the consolidated financial statements) by Ernst Deloitte & Young Touche, LLP or other independent public accountants of recognized national standing acceptable to the Required Lenders and accompanied by an opinion of such 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 Borrower and its consolidated Subsidiaries on a consolidated basis in accordance with GAAP consistently applied;
(b) within 45 60 days after the end of each of the first three fiscal quarters of each fiscal year, its consolidated balance sheet and related consolidated statements of income, stockholders’ equity earnings and cash flows flow showing the financial condition of the Borrower and its consolidated Subsidiaries as of the close of such fiscal quarter and the results of its their operations and the operations of such Subsidiaries during such fiscal quarter and the then elapsed portion of the fiscal year, and comparative figures a comparison of such financial position and results of operations as of the corresponding date and for the same corresponding periods in the immediately preceding previous fiscal year, all certified by one of its Financial Officers as fairly presenting the financial condition and results of operations of the Borrower and its consolidated Subsidiaries on a consolidated basis in accordance with GAAP consistently applied, subject to normal year-end audit adjustmentsadjustment;
(ci) concurrently with any delivery of financial statements under sub-paragraph (a), or (b) above, a certificate of the accounting firm (in the case of paragraph (a)) or Financial Officer (in the case of paragraph (b)) opining on or certifying such statements (which certificate, when furnished by an accounting firm, certificate may be limited to accounting matters and disclaim responsibility for legal interpretations interpretations) certifying that no Event of Default has occurred in Sections 6.01, 6.02(h), 6.03, 6.04, 6.05, 6.06, 6.09 and which may be provided by 6.10 hereof; and (ii) concurrently with any delivery of financial statements under sub-paragraph (a) or (b) above, a Compliance Certificate of a Financial Officer if accounting firms generally are not providing such certificates) (i) of the Borrower certifying that no Event of Default or Default has occurred or, if such an Event of Default or Default has occurred, specifying the nature and extent thereof and any corrective action taken or proposed to be taken with respect thereto and (ii) setting forth computations in reasonable detail satisfactory to the Administrative Agent demonstrating compliance with the covenants contained in Sections 6.66.01, 6.106.03, 6.11 6.04, 6.06, 6.09 and 6.12 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 6.86.10 hereof;
(d) within 45 days after the commencement of each fiscal year of the Borrower, a detailed consolidated budget for such fiscal year (including a projected consolidated balance sheet and related statements of projected operations and cash flows as of the end of and for such fiscal year);
(e) promptly after the same become publicly available, copies of all periodic and other reports, proxy statements, registration statements (other than on Form S-8) and other similar materials filed by Holdings, the Borrower or any Subsidiary of the Borrower with the SECSecurities and Exchange Commission, or any Governmental Authority succeeding to any or all of the functions function of said Commission, or with any national securities exchange, or, after the initial Public Equity Offering (disregarding for purposes of this Section 5.4(e) the Net Cash Proceeds dollar threshold contained in the definition of such term), or distributed generally to its shareholders, as the case may be;
(f) promptly after the receipt thereof by Holdings or the Borrower or any Subsidiary, a copy of any “management letter” received by any such person from its certified public accountants and the management’s response thereto; and
(ge) promptly, from time to time, such other information regarding the operations, business affairs and financial condition of Holdings, the Borrower or any SubsidiarySubsidiary of the Borrower, or compliance with the terms of any this Agreement and the other Loan DocumentPapers, as the Administrative Agent or any Lender may reasonably request. Documents required to be delivered pursuant to Section 5.4(a), (b) or (e) (to the extent any such documents are included in materials otherwise filed with the SEC) may be delivered electronically and if so delivered, shall be deemed to have been delivered on the date (i) on which the Borrower posts such documents, or provides a link thereto on the Borrower’s website on the Internet at the Borrower’s website address; or (ii) on which such documents are posted on the Borrower’s behalf on IntraLinks/IntraAgency or another relevant website, if any, to which each Lender and the Administrative Agent have access (whether a commercial, third-party website or whether sponsored by the Administrative Agent).
Appears in 1 contract
Financial Statements, Reports, etc. In the case of the Borrower, furnish to the Administrative Agent (either physically or through electronic delivery reasonably acceptable to the Administrative Agent), which shall furnish to and each Lender:
(a) within 90 days after the end of each fiscal year, its consolidated and consolidating balance sheet and related statements of incomeoperations, stockholders’ equity and cash flows showing the financial condition of the Borrower and its consolidated Subsidiaries as of the close of such fiscal year and the results of its operations and the operations of such Subsidiaries during such year, together with comparative figures for the immediately preceding fiscal year, all audited by Ernst & Young LLP WithumSmith + Xxxxx, P.C. or other independent public accountants of recognized national standing reasonably acceptable to the Administrative Agent and accompanied by an opinion of such accountants (which opinion shall not be qualified 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 Borrower and its consolidated Subsidiaries on a consolidated and consolidating basis in accordance with GAAP consistently applied;
(b) within 45 days after the end of each of the first three fiscal quarters of each fiscal year, its consolidated and consolidating balance sheet and related statements of income, stockholders’ equity operations and 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 together with comparative figures for the same periods in the immediately preceding fiscal year, all certified by one of its the Financial Officers of the Borrower as fairly presenting the financial condition and results of operations of the Borrower and its consolidated Subsidiaries on a consolidated basis in accordance with GAAP consistently applied, subject to normal year-end audit adjustments;
(c) concurrently with any delivery of financial statements under paragraph (a), ) or (b) above, a certificate of the accounting firm (in the case of paragraph (a)) or Financial Officer (in the case of paragraph (b)) opining on or certifying such statements (which certificate, when furnished by an accounting firm, may be limited to accounting matters and disclaim responsibility for legal interpretations and which may be provided by a Financial Officer if accounting firms generally are not providing such certificates) (iinterpretations) certifying that no Event of Default or Default has occurred or, if such an Event of Default or Default has occurred, specifying the nature and extent thereof and any corrective action taken or proposed to be taken with respect thereto and (ii) setting forth computations in reasonable detail satisfactory to the Administrative Agent demonstrating compliance with the covenants contained in Sections 6.6, 6.10, 6.11 and 6.12 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 6.8thereto;
(d) within 45 90 days after the commencement 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)year and setting forth the assumptions used for purposes of preparing such budget) and, promptly when available, any significant revisions of such budget;
(e) promptly after the same become publicly available, copies of all periodic and other reports, proxy statements and other materials filed by Holdings, the Borrower or any Subsidiary with the SEC, or any Governmental Authority succeeding to any or all of the functions of said Commission, or with any national securities exchange, or, after the initial Public Equity Offering (disregarding for purposes of this Section 5.4(e) the Net Cash Proceeds dollar threshold contained in the definition of such term), or distributed to its shareholders, as the case may be;
(f) so long as Borrower is not prohibited by law from doing so, promptly after the receipt thereof by Holdings or the Borrower or any Subsidiaryof 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; and
(gh) 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 may reasonably request. Documents required to be delivered pursuant to Section 5.4(a), (b) or (e) (to the extent any such documents are included in materials otherwise filed with the SEC) may be delivered electronically and if so delivered, shall be deemed to have been delivered on the date (i) on which the Borrower posts such documents, or provides a link thereto on the Borrower’s website on the Internet at the Borrower’s website address; or (ii) on which such documents are posted on the Borrower’s behalf on IntraLinks/IntraAgency or another relevant website, if any, to which each Lender and the Administrative Agent have access (whether a commercial, third-party website or whether sponsored by the Administrative Agent).
Appears in 1 contract
Financial Statements, Reports, etc. In the case of the Borrower, The Borrower shall furnish to the Administrative Agent (either physically or through electronic delivery reasonably acceptable to the Administrative Agent), which shall furnish to each LenderBank and each Issuing Bank:
(a) within 90 105 days after the end of each fiscal year, its consolidated and consolidating balance sheet sheets and related statements of incomeincome and statements of cash flow, stockholders’ equity and cash flows showing the financial condition of (i) Avista Utilities and (ii) the Borrower and its consolidated Subsidiaries Subsidiaries, in each case as of the close of such fiscal year year, and the results of its each of their operations and the operations of such Subsidiaries during such year, together all (A) in the case of Avista Utilities, certified by one of the Borrower's Financial Officers as fairly presenting the financial condition and results of operations of Avista Utilities in accordance with comparative figures for GAAP consistently applied and (B) in the immediately preceding fiscal yearcase of the Borrower and its consolidated subsidiaries, all audited by Ernst Deloitte & Young LLP Touche or other independent public accountants of recognized national standing acceptable to the Required Banks and accompanied by an opinion of such 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 Borrower and its consolidated Subsidiaries on a consolidated basis (except as noted therein) in accordance with GAAP consistently applied;
(b) within 45 50 days after the end of each of the first three fiscal quarters of each fiscal year, its consolidated and, to the extent otherwise available, consolidating balance sheet sheets and related statements of incomeincome and statements of cash flow, stockholders’ equity and cash flows showing the financial condition of (i) Avista Utilities and (ii) the Borrower and its consolidated Subsidiaries subsidiaries, in each case as of the close of such fiscal quarter quarter, and the results of its each of their 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 Avista Utilities or the Borrower and its consolidated Subsidiaries on a consolidated basis basis, as applicable, in accordance with GAAP consistently applied, subject to normal year-end audit adjustments;
(c) concurrently with any delivery of financial statements under paragraph (a), ) or (b) above, (i) a certificate of the relevant accounting firm (in the case of paragraph (a)) or Financial Officer (in the case of paragraph (b)) opining on or certifying such statements or Financial Officer (which certificate, when furnished by an accounting firm, may be limited to accounting matters and disclaim responsibility for legal interpretations and which may be provided by a Financial Officer if accounting firms generally are not providing such certificates) (iinterpretations) certifying that to the knowledge of the accounting firm or the Financial Officer, as the case may be, no Event of Default or Default has occurred or, if such an Event of Default or Default has occurred, specifying the nature and extent thereof and any corrective action taken or proposed to be taken with respect thereto thereto, and (ii) a certificate of a Financial Officer setting forth computations in reasonable detail satisfactory such calculations as are required to establish whether the Administrative Agent demonstrating compliance with the covenants contained in Sections 6.6, 6.10, 6.11 and 6.12 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 Borrower was in compliance with Section 6.8Sections 6.05 and 6.06 on the date of such financial statements;
(d) within 45 days after the commencement of each fiscal year of the Borrower, a detailed consolidated budget for such fiscal year (including a projected consolidated balance sheet and related statements of projected operations and cash flows as of the end of and for such fiscal year);
(e) promptly after the same become publicly available, copies of all periodic and other reports, proxy statements and other materials filed by Holdings, the Borrower or any Subsidiary it with the SECSecurities and Exchange Commission, or any Governmental Authority governmental authority succeeding to any of or all of the functions of said Commission, or with any national securities exchange, or, after the initial Public Equity Offering (disregarding for purposes of this Section 5.4(e) the Net Cash Proceeds dollar threshold contained in the definition of such term), or distributed to its shareholdersshare holders, as the case may be;
(f) promptly after the receipt thereof by Holdings or the Borrower or any Subsidiary, a copy of any “management letter” received by any such person from its certified public accountants and the management’s response thereto; and
(ge) promptly, from time to time, such other information regarding the operations, business affairs and financial condition of Holdings, the Borrower or any Significant Subsidiary, or compliance with the terms of any Loan Document, as the Administrative Agent Agent, any Bank or any Lender Issuing Bank may reasonably request. Documents required to be delivered pursuant to Section 5.4(a), (b) or (e) (to the extent any such documents are included in materials otherwise filed with the SEC) may be delivered electronically and if so delivered, shall be deemed to have been delivered on the date (i) on which the Borrower posts such documents, or provides a link thereto on the Borrower’s website on the Internet at the Borrower’s website address; or (ii) on which such documents are posted on the Borrower’s behalf on IntraLinks/IntraAgency or another relevant website, if any, to which each Lender and the Administrative Agent have access (whether a commercial, third-party website or whether sponsored by the Administrative Agent).
Appears in 1 contract
Samples: Credit Agreement (Avista Corp)
Financial Statements, Reports, etc. In the case of the Borrower, furnish Furnish to the Administrative Agent (either physically or through electronic delivery reasonably acceptable for distribution to the Administrative Agent), which shall furnish to each Lender:Lenders):
(a) within 90 105 days after the end of each fiscal yearyear (or, its during any time that the Borrower is subject to the periodic reporting requirements of the Securities Exchange Act of 1934, as amended (together with the rules and regulations promulgated thereunder, the "Exchange Act"), such shorter period as required by the Exchange Act for the filing by the Borrower of annual reports on Form 10-K), the consolidated and consolidating balance sheet sheets and related statements of income, stockholders’ equity income and cash flows flow, showing the consolidated financial condition of the Borrower and its consolidated Subsidiaries subsidiaries as of the close of such fiscal year and the results of its their operations and the operations of such Subsidiaries during such year, together with comparative figures for the immediately preceding fiscal year, all audited by Ernst & Young PricewaterhouseCoopers LLP or other independent public accountants of recognized national standing reasonably acceptable to the Required Lenders and accompanied by an opinion of such accountants (which 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 Borrower and its consolidated Subsidiaries subsidiaries on a consolidated basis in accordance with GAAP consistently applied;
(b) within 45 60 days (or, during any time that the Borrower is subject to the periodic reporting requirements of the Exchange Act, such shorter period as required by the Exchange Act for the filing by the Borrower of quarterly reports on Form 10-Q) after the end of each of the first three fiscal quarters of each fiscal year, its the unaudited consolidated and consolidating balance sheet sheets and related statements of incomeincome and changes in financial position, stockholders’ equity and cash flows showing the consolidated financial condition of the Borrower and its consolidated Subsidiaries subsidiaries as of the close of such fiscal quarter and the results of its their 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 a Financial Officer of its Financial Officers the Borrower as fairly presenting the consolidated financial condition and results of operations of the Borrower and its consolidated Subsidiaries on a consolidated basis subsidiaries in accordance with GAAP consistently applied, subject to normal year-end audit adjustmentsadjustments and the absence of footnotes required by GAAP;
(c) concurrently with any delivery of financial statements under paragraph (a), ) or (b) above, a certificate of the accounting firm (in the case of paragraph (a)) or Financial Officer (in the case of paragraph (b)) opining on or certifying such statements (which certificate, when furnished by an accounting firm, may be limited to accounting matters and disclaim responsibility for legal interpretations and which may be provided by a Financial Officer if accounting firms generally are not providing such certificates) of the Borrower (i) certifying that no Event of Default or Default has occurred or, if such an Event of Default or Default has occurred, specifying the nature and extent thereof and any corrective action taken or proposed to be taken with respect thereto and thereto, (ii) setting forth computations in reasonable detail satisfactory to the Administrative Agent calculating the Leverage Ratio and Senior Leverage Ratio as of the end of the period covered by such financial statements and demonstrating compliance with the covenants contained in Sections 6.67.13. 7.14, 6.10and 7.15 and (iii) stating whether any change in GAAP or in the application thereof has occurred since the date of the Borrower's audited financial statements for the fiscal year ended December 31, 6.11 and 6.12 2003, and, in if any such change has occurred, specifying the case effect of a certificate delivered with such change on 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 accompanying such change, describing such change in reasonable detail and certifying that Holdings is in compliance with Section 6.8certificate;
(d) within 45 days after the commencement of each fiscal year of the Borrower, a detailed consolidated budget for such fiscal year (including a projected consolidated balance sheet and related statements of projected operations and cash flows as of the end of and for such fiscal year);
(e) promptly after the same become publicly available, copies of all periodic and other reports, proxy statements and other materials filed by Holdings, the Borrower or any Subsidiary of its subsidiaries with the SEC, or any Governmental Authority succeeding to any or all of the functions of said Commission, SEC or with any national securities exchange;
(e) promptly following the preparation thereof, orcopies of each management letter prepared by the Borrower's, after a Guarantor's or TAFSI's auditors (together with any response thereto prepared by the initial Public Equity Offering (disregarding for purposes of this Section 5.4(e) the Net Cash Proceeds dollar threshold contained in the definition of Borrower, such termGuarantor or TAFSI), distributed to its shareholders, as the case may be;
(f) promptly Upon the earlier of (i) 105 days after the receipt thereof by Holdings or end of each fiscal year of the Borrower or any Subsidiaryand (ii) the date on which the financial statements with respect to such period are delivered pursuant to paragraph (a) above, 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 Confidential Information Memorandum (including a copy specification of any “the underlying assumptions and a management letter” received discussion of historical results), all certified by any such person from a Financial Officer of the Borrower to be a fair summary of its certified public accountants results and its good faith estimate of the management’s response thereto; andforecasted 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 Administrative 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 of Holdingsany Guarantor, TAFSI or the Borrower or any SubsidiaryBorrower, or compliance with the terms of any Loan Document, as the Administrative Agent Agent, the Fronting Bank, the Swingline Lender or any Lender may reasonably request. Documents ;
(i) promptly, a copy of any amendment or waiver of any provisions of any agreement referenced in Section 7.10 or any other amendment or waiver of any provisions of any agreement to the extent that such amendment or waiver is required hereunder to be furnished to the Administrative Agent, the Fronting Bank or any Lender;
(j) promptly a copy of any notice of default received by the Borrower, TAFSI or any Guarantor or under the Subordinated Note Indenture or an indenture in respect of any Subordinated Note Refinancing Indebtedness, as the case may be;
(k) 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 or under the Subordinated Note Indenture or an indenture in respect of any Subordinated Note Refinancing Indebtedness, as the case may be (except to the extent any such notice, certificate, financial statement or report is otherwise required to be delivered pursuant to Section 5.4(athis Agreement); and
(l) a copy of all solicitations or requests for any proposed waiver or amendment of any of the provisions of the Subordinated Note Indenture or an indenture in respect of any Subordinated Note Refinancing Indebtedness, (b) or (e) (to as the extent any such documents are included in materials otherwise filed with the SEC) case may be delivered electronically and (but only if so delivered, shall be deemed to have been delivered on the date (i) on which consent or approval of the Borrower posts such documents, or provides a link thereto on the Borrower’s website on the Internet at the Borrower’s website address; or (ii) on which such documents are posted on the Borrower’s behalf on IntraLinks/IntraAgency or another relevant website, if any, to which each Lender and the Administrative Agent have access (whether a commercial, third-party website or whether sponsored by the Administrative AgentLenders is required in connection therewith).
Appears in 1 contract
Financial Statements, Reports, etc. In the case Biomune shall maintain proper books of the Borrower, furnish accounts and records and shall deliver to the Administrative Agent (either physically or through electronic delivery reasonably acceptable to the Administrative Agent), which shall furnish to each LenderBuyer:
(a) as soon as available and in any event within 90 days after the end of each fiscal yearyear of Biomune, its consolidated a copy of the annual audit report for such year for Biomune including therein a balance sheet and related statements of income, stockholders’ equity and cash flows showing the financial condition of the Borrower and its consolidated Subsidiaries Biomune as of the close end of such fiscal year and the results statements of its operations income, retained earnings and the operations of changes in financial position of Biomune for such Subsidiaries during such year, together with comparative figures for the immediately preceding fiscal year, all audited prepared in accordance with GAAP by Ernst & Young LLP or other a firm of independent public accountants of recognized national standing selected by the Buyer and accompanied by an opinion of such 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 Borrower and its consolidated Subsidiaries on a consolidated basis in accordance with GAAP consistently appliedaccounting firm;
(b) as soon as available and in any event within 45 days after the end of each of the first three fiscal quarters of quarter in each fiscal year, its consolidated year of Biomune a balance sheet of Biomune and related the statements of income, stockholders’ equity income and cash flows showing the financial condition of the Borrower and its consolidated Subsidiaries retained earnings as of the close end of such fiscal quarter, and of changes in financial position of Biomune for such quarter and for the results period commencing at the end of its operations the previous fiscal year and ending with the operations end of such Subsidiaries during such fiscal quarter and the then elapsed portion of the fiscal yearquarter, 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 Borrower and its consolidated Subsidiaries on a consolidated basis unaudited but prepared in accordance with GAAP consistently applied, subject to normal year-end audit adjustmentsadjustments and as otherwise permitted by Form 10-QSB of the SEC and certified by the Chief Executive Officer or Chief Financial Officer of Biomune, in each case with comparative statements for the corresponding period in the prior fiscal year;
(c) concurrently promptly following receipt by Biomune, each audit response letter, accountant's management letter and other written report submitted to Biomune by its independent public accountants in connection with any delivery of financial statements under paragraph (a), an annual or (b) above, a certificate interim audit of the accounting firm (in the case books of paragraph (a)) or Financial Officer (in the case of paragraph (b)) opining on or certifying such statements (which certificate, when furnished by an accounting firm, may be limited to accounting matters and disclaim responsibility for legal interpretations and which may be provided by a Financial Officer if accounting firms generally are not providing such certificates) (i) certifying that no Event of Default or Default has occurred or, if such an Event of Default or Default has occurred, specifying the nature and extent thereof and any corrective action taken or proposed to be taken with respect thereto and (ii) setting forth computations in reasonable detail satisfactory to the Administrative Agent demonstrating compliance with the covenants contained in Sections 6.6, 6.10, 6.11 and 6.12 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 6.8Biomune;
(d) within 45 days promptly after the commencement thereof, notice of each fiscal year all actions, suits, claims, proceedings, investigations and inquiries 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)type described in Section 2.12 that could Materially Adversely Affect Biomune;
(e) promptly after upon sending, making available or filing the same become publicly availablesame, copies of all periodic press releases, reports and other reports, proxy financial statements and other materials filed by Holdings, the Borrower that Biomune sends or any Subsidiary with the SEC, or any Governmental Authority succeeding to any or all of the functions of said Commission, or with any national securities exchange, or, after the initial Public Equity Offering (disregarding for purposes of this Section 5.4(e) the Net Cash Proceeds dollar threshold contained in the definition of such term), distributed makes available to its shareholders, as the case may be;
(f) promptly after the receipt thereof by Holdings or the Borrower or any Subsidiary, a copy of any “management letter” received by any such person from its certified public accountants and the management’s response theretoshareholders generally; and
(gf) promptly, from time to time, such other information regarding the business, prospects, financial condition, operations, business property or affairs and financial condition of Holdings, the Borrower or any Subsidiary, or compliance with the terms of any Loan Document, Biomune as the Administrative Agent or any Lender Buyer reasonably may reasonably request. Documents required to be delivered pursuant to Section 5.4(a), (b) or (e) (to the extent any such documents are included in materials otherwise filed with the SEC) may be delivered electronically and if so delivered, shall be deemed to have been delivered on the date (i) on which the Borrower posts such documents, or provides a link thereto on the Borrower’s website on the Internet at the Borrower’s website address; or (ii) on which such documents are posted on the Borrower’s behalf on IntraLinks/IntraAgency or another relevant website, if any, to which each Lender and the Administrative Agent have access (whether a commercial, third-party website or whether sponsored by the Administrative Agent).
Appears in 1 contract
Financial Statements, Reports, etc. In the case of the Parent Borrower, furnish to the Administrative Agent (either physically or through electronic delivery reasonably acceptable to the Administrative Agent), which shall furnish to each Lender:
: (a) within 90 ninety (90) days after the end of each fiscal year, its consolidated balance sheet and related statements of income, stockholders’ equity and cash flows showing the financial condition of the Parent Borrower and its consolidated Subsidiaries as of the close of such fiscal year and the results of its operations and the operations of such Subsidiaries during such year, together with comparative figures for the immediately preceding fiscal year, all audited by Ernst & Young LLP or other independent public accountants of recognized national standing and accompanied by an opinion of such accountants (which shall not be qualified in any material respect, other than a “going concern” qualification solely with respect to, or as a result of, an upcoming maturity date of any Indebtedness created hereunder and under the other Loan Documents occurring within one year from the time such opinion is delivered) to the effect that such consolidated financial statements fairly present present, in all material respects, the financial condition and results of operations of the Parent Borrower and its consolidated Subsidiaries on a consolidated basis in accordance with GAAP consistently applied;
; (b) within 45 forty five (45) days after the end of each of the first three (3) fiscal quarters of each fiscal year, its consolidated balance sheet and related statements of income, stockholders’ equity and cash flows showing the financial condition of the Parent 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 Responsible Officers as fairly presenting presenting, in all material respects, the financial condition and results of operations of the Parent Borrower and its consolidated Subsidiaries on a consolidated basis in accordance with GAAP consistently applied, subject to normal year-end audit adjustments;
; (c) concurrently with any delivery of financial statements under paragraph (a), or Sections 7.04(a) and (b) above), a certificate of the accounting firm (in the case of paragraph (aSection 7.04(a)) or Financial Responsible Officer (in the case of paragraph (bSection 7.04(b)) opining on or certifying such statements (which certificate, when furnished by an accounting firm, may be limited to accounting matters and disclaim responsibility for legal interpretations and which may be provided by a Financial Responsible Officer if accounting firms generally are not providing such certificates) (a “Compliance Certificate”) (i) certifying that no Event of Default or Default has occurred or, if such an Event of Default or Default has occurred, specifying the nature and extent thereof and any corrective action taken or proposed to be taken with respect thereto and (ii) setting forth computations in reasonable detail satisfactory to the Administrative Agent showing the Consolidated Total Leverage Ratio and demonstrating compliance with the covenants contained in Sections 6.6, 6.10, 6.11 and 6.12 Section 8.10 and, in the case of a certificate delivered with the financial statements required by paragraph (a) aboveSections 7.04(a), (x) setting forth the Borrower’s calculation of Excess Cash Flow and (y) certifying that there has been no change 103 CHAR1\1732710v2 in the business activities, assets or liabilities of Holdingsthe Loan Parties, or if there has been any such change, describing such change in reasonable detail and certifying that Holdings is the Loan Parties are in compliance with Section 6.8;
8.08; (d) within 45 forty five (45) days after the commencement of each fiscal year of the Parent 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);
; (e) promptly after the same become publicly available, copies of all periodic and other reports, proxy statements and other materials filed by Holdings, the Parent Borrower or any Subsidiary with the SEC, or any Governmental Authority succeeding to any or all of the functions of said Commissionthe SEC, or with any national securities exchange, or, after the initial Public Equity Offering (disregarding for purposes of this Section 5.4(e) the Net Cash Proceeds dollar threshold contained in the definition of such term), or distributed to its shareholders, as the case may be;
; (f) promptly after the receipt thereof by Holdings or the Parent Borrower or any Subsidiary, a copy of any “management letter” received by any such person from its certified public accountants and the management’s response thereto; and
and (g) promptly, from time to time, such other information regarding the operations, business affairs and financial condition of Holdings, the Parent 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 5.4(a), (b) or (e) 7.04 (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 Parent Borrower posts such documents, or provides a link thereto on the Parent Borrower’s website on the Internet at the Borrower’s website addressaddress listed on Schedule 11.02; or (ii) on which such documents are posted on the Parent Borrower’s behalf on IntraLinks/IntraAgency an Internet or another relevant 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 Parent Borrower shall deliver paper copies of such documents to the Administrative Agent or any Lender that requests the Parent 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 Parent Borrower shall notify the Administrative Agent (by telecopier or electronic mail) of the posting of any such documents and provide to the Administrative Agent by electronic mail electronic versions (i.e., soft copies) of such documents. Notwithstanding anything contained herein, in every instance the Parent Borrower shall be required to provide paper copies of the Compliance Certificates required by Section 7.04(c) to the Administrative Agent. Except for such Compliance Certificates, the Administrative Agent shall have no obligation to request the delivery or to maintain copies of the documents referred to above, and in any event shall have no responsibility to monitor compliance by the Parent 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. Each Borrower hereby acknowledges that (a) the Administrative Agent and/or the Arrangers will make available to the Lenders and the L/C Issuer materials and/or information provided by or on behalf of such Borrower hereunder (collectively, the “Borrower Materials”) by posting the Borrower Materials on Debt Domain, IntraLinks, Syndtrak or another similar electronic system (the “Platform”) and (b) certain of the Lenders (each, a “Public Lender”) may have personnel who do not wish to receive material non-public information with respect to such 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 Person’s securities. Each 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, 104 CHAR1\1732710v2
Appears in 1 contract
Samples: Second Amendment to Third Amended and Restated Credit Agreement (Knoll Inc)
Financial Statements, Reports, etc. In the case of the Borrower, furnish Furnish to the Administrative Agent (either physically or through electronic delivery reasonably acceptable to the Administrative Agent), which shall furnish to and each LenderBank:
(a) within 90 days after the end of each fiscal yearyear of the Borrower, consolidated balance sheets of the Borrower and its consolidated balance sheet and subsidiaries, the related consolidated statements of income, operations and the related consolidated statements of stockholders’ equity and cash flows flows, showing the financial condition of the Borrower and its consolidated Subsidiaries subsidiaries as of the close of such fiscal year and the results of its operations and the operations of such Subsidiaries during such year, together with comparative figures for the immediately preceding fiscal year, all such consolidated financial statements audited by Ernst and accompanied by the report thereon of Deloitte & Young Touche LLP or other independent public accountants of recognized national standing reasonably acceptable to the Required Banks and accompanied by an opinion of such 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 Borrower and its consolidated Subsidiaries on a consolidated basis in accordance with GAAP consistently appliedbasis;
(b) within 45 60 days after the end of each of the first three fiscal quarters of each fiscal yearyear of the Borrower, its consolidated balance sheet sheets and related consolidated statements of income, stockholders’ equity retained earnings and cash flows flows, showing the financial condition of the Borrower and its consolidated Subsidiaries 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 a Financial Officer of its Financial Officers the Borrower 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;
(c) concurrently with any delivery of financial statements under paragraph (a), ) or (b) above, a certificate of the accounting firm (in the case of paragraph (a)) or a Financial Officer (in of the case of paragraph (b)) Borrower opining on or certifying such statements (which certificate, when furnished by an accounting firm, may be limited to accounting matters and disclaim responsibility for legal interpretations and which may be provided by a Financial Officer if accounting firms generally are not providing such certificates) (i) certifying that no Event of Default or Default has occurred or, if such an Event of Default or Default has occurred, specifying the nature and extent thereof and any corrective action taken or proposed to be taken with respect thereto and (ii) setting forth computations in reasonable detail satisfactory to the Administrative Agent demonstrating compliance with the covenants contained in Sections 6.6, 6.10, 6.11 and 6.12 and, in the case of a certificate delivered with the financial statements required by paragraph (a6.01(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 activitiesb)(v), assets or liabilities of Holdings, or if there has been any such change, describing such change in reasonable detail 6.03 and certifying that Holdings is in compliance with Section 6.86.05;
(d) within 45 days promptly after the commencement same become publicly available, copies of each fiscal year all material periodic and other reports, proxy statements and other materials filed by the Borrower or any Subsidiary with the Securities and Exchange Commission, or any governmental authority succeeding to any of or all the Borrowerfunctions of said Commission, a detailed consolidated budget for such fiscal year (including a projected consolidated balance sheet and related statements of projected operations and cash flows or with any national securities exchange, or distributed to its public shareholders, as of the end of and for such fiscal year)case may be;
(e) promptly after the same become publicly available, copies of all periodic and other reports, proxy statements and other materials material reports pertaining to any change in ownership filed by Holdings, the Borrower or any Subsidiary with the SEC, or any Governmental Authority succeeding to any or all of the functions of said Commission, or with any national securities exchange, or, after the initial Public Equity Offering (disregarding for purposes of this Section 5.4(e) the Net Cash Proceeds dollar threshold contained in the definition of such term), distributed to its shareholders, as the case may be;
(f) promptly after the receipt thereof by Holdings or the Borrower or any Subsidiary, a copy of any “management letter” received by any such person from its certified public accountants and the management’s response theretoAuthority; and
(gf) 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 Bank may reasonably request. Documents required to be delivered pursuant to Section 5.4(a), (b) or (e) (to the extent any such documents are included in materials otherwise filed with the SEC) may be delivered electronically and if so delivered, shall be deemed to have been delivered on the date (i) on which the Borrower posts such documents, or provides a link thereto on the Borrower’s website on the Internet at the Borrower’s website address; or (ii) on which such documents are posted on the Borrower’s behalf on IntraLinks/IntraAgency or another relevant website, if any, to which each Lender and the Administrative Agent have access (whether a commercial, third-party website or whether sponsored by the Administrative Agent).
Appears in 1 contract
Financial Statements, Reports, etc. In the case of the Borrower, furnish to the Administrative Agent (either physically or through electronic delivery reasonably acceptable to the Administrative Agent), which shall furnish to each Lender:
(a) within 90 days after the end of each fiscal year, its consolidated balance sheet and related statements of income, stockholders’ equity and cash flows showing the financial condition of the Borrower and its consolidated Subsidiaries as of the close of such fiscal year and the results of its operations and the operations of such Subsidiaries during such year, together with comparative figures for the immediately preceding fiscal year, all audited by Ernst & Young LLP or other independent public accountants of recognized national standing and accompanied by an opinion of such 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 Borrower and its consolidated Subsidiaries on a consolidated basis in accordance with GAAP consistently applied;
(b) within 45 days after the end of each of the first three fiscal quarters of each fiscal year, its consolidated balance sheet and related statements of income, stockholders’ equity and 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 Borrower and its consolidated Subsidiaries on a consolidated basis in accordance with GAAP consistently applied, subject to normal year-end audit adjustments;
(c) concurrently with any delivery of financial statements under paragraph (a), ) or (b) above, a certificate of the accounting firm (in the case of paragraph (a)) or Financial Officer (in the case of paragraph (b)) opining on or certifying such statements (which certificate, when furnished by an accounting firm, may be limited to accounting matters and disclaim responsibility for legal interpretations and which may be provided by a Financial Officer if accounting firms generally are not providing such certificates) (i) certifying that no Event of Default or Default has occurred or, if such an Event of Default or Default has occurred, specifying the nature and extent thereof and any corrective action taken or proposed to be taken with respect thereto and (ii) setting forth computations in reasonable detail satisfactory to the Administrative Agent demonstrating compliance with the covenants contained in Sections 6.6, 6.10, 6.11 and 6.12 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 Holdingsthe Borrower, or if there has been any such change, describing such change in reasonable detail and certifying that Holdings the Borrower is in compliance with Section 6.8;
(d) within 45 days after the commencement of each fiscal year of the Borrower, a detailed consolidated budget for such fiscal year (including a projected consolidated balance sheet and related statements of projected operations and cash flows as of the end of and for such fiscal year);
(e) promptly after the same become publicly available, copies of all periodic and other reports, proxy statements and other materials filed by Holdings, the Borrower or any Subsidiary with the SEC, or any Governmental Authority succeeding to any or all of the functions of said Commissionthe SEC, or with any national securities exchange, or, after the initial Initial Public Equity Offering (disregarding for purposes of this Section 5.4(e) the Net Cash Proceeds dollar threshold contained in the definition of such term), distributed to its shareholders, as the case may be;
(f) promptly after the receipt thereof by Holdings or the Borrower or any Subsidiary, a copy of any “management letter” received by any such person from its certified public accountants and the management’s response thereto; and
(g) 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 may reasonably request. Documents required to be delivered pursuant to Section 5.4(a), (b) or (e) (to the extent any such documents are included in materials otherwise filed with the SEC) may be delivered electronically and if so delivered, shall be deemed to have been delivered on the date (i) on which the Borrower posts such documents, or provides a link thereto on the Borrower’s website on the Internet at the Borrower’s website address; or (ii) on which such documents are posted on the Borrower’s behalf on IntraLinks/IntraAgency or another relevant website, if any, to which each Lender and the Administrative Agent have access (whether a commercial, third-party website or whether sponsored by the Administrative Agent).
Appears in 1 contract
Samples: Credit Agreement (Knoll Inc)
Financial Statements, Reports, etc. In the case of the Borrower, furnish to the Administrative Agent (either physically or through electronic delivery reasonably acceptable Furnish to the Administrative Agent), which shall furnish to each Lender:
(a) within 90 days after the end of each fiscal year, its (i) the annual audited consolidated balance sheet statement of financial condition and related consolidated statements of income, stockholders’ equity income and cash flows showing the financial condition of the Borrower and its consolidated Subsidiaries as of the close of Blackstone Group for such fiscal year and the results of its operations and the operations of such Subsidiaries during such year, together with comparative figures for the immediately preceding fiscal year, all audited reported upon by Ernst Deloitte & Young Touche LLP or other another independent registered public accountants accounting firm of recognized national standing without any “going concern” or “scope of audit” qualification, (ii) the unaudited annual condensed consolidated and accompanied combined statement of financial condition and condensed consolidated and combined statements of income and cash flows of the combined Borrowers and the Subsidiaries for such fiscal year, certified by an opinion of such accountants (which shall not be qualified a Financial Officer as fairly presenting, in any all material respect) to the effect that such consolidated financial statements fairly present respects, the financial condition position and results of operations of the Borrower combined Borrowers and its consolidated the Subsidiaries on a condensed consolidated and combined basis in accordance with GAAP consistently appliedGAAP, and (iii) a reconciliation prepared by a Financial Officer of the audited financial statements referred to in clause (i) to the unaudited financial statements referred to in clause (ii);
(b) within 45 60 days after the end of each of the first three fiscal quarters of each fiscal year, its (i) the quarterly unaudited condensed consolidated balance sheet statement of financial condition and related condensed consolidated statements of income, stockholders’ equity income and cash flows showing the financial condition of the Borrower and its consolidated Subsidiaries Blackstone Group as of the close end of and for such fiscal quarter and the results of its operations and the operations of such Subsidiaries during such fiscal quarter and the then then-elapsed portion of the fiscal year, and comparative figures for the same periods in the immediately preceding fiscal year, all certified by one of its a Financial Officers Officer as fairly presenting fairly, in all material respects, the financial condition position and results of operations of the Borrower and its consolidated Subsidiaries Blackstone Group on a consolidated basis in accordance with GAAP consistently applied, except for the absence of footnotes and subject to normal year-year end audit adjustments, (ii) the quarterly unaudited condensed consolidated and combined statement of financial condition and condensed consolidated and combined statements of income and cash flows of the combined Borrowers and the Subsidiaries as of the end of and for such fiscal quarter and the then-elapsed portion of the fiscal year, certified by a Financial Officer as presenting fairly, in all material respects, the financial position and results of operations of the combined Borrowers and the Subsidiaries on a condensed consolidated and combined basis in accordance with GAAP consistently applied, except for the absence of footnotes and subject to year end audit adjustments, and (iii) a reconciliation prepared by a Financial Officer of the unaudited financial statements referred to in clause (i) to the unaudited financial statements referred to in clause (ii);
(c) concurrently with any delivery of financial statements under paragraph (a), ) or (b) above, a certificate of the accounting firm (in the case of paragraph (a)) or Financial Officer (in the case of paragraph (b)) opining on or certifying such statements (which certificate, when furnished by an accounting firm, may be limited to accounting matters and disclaim responsibility for legal interpretations and which may be provided by a Financial Officer if accounting firms generally are not providing such certificates) (i) certifying that that, to the best of his or her knowledge, no Event of Default or Default has occurred or, if such an Event of Default or Default has occurred, specifying the nature and extent thereof and any corrective action taken or proposed to be taken with respect thereto and (ii) setting forth computations in reasonable detail satisfactory to the Administrative Agent demonstrating compliance with the covenants financial covenant contained in Sections 6.6Section 6.09, 6.10, 6.11 including reasonably detailed computations of Total Indebtedness and 6.12 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 6.8;
(d) within 45 days after the commencement of each fiscal year of the Borrower, a detailed consolidated budget for such fiscal year (including a projected consolidated balance sheet and related statements of projected operations and cash flows as of the end of and for such fiscal year);
(e) promptly after the same become publicly available, copies of all periodic and other reports, proxy statements and other materials filed by Holdings, the Borrower or any Subsidiary with the SEC, or any Governmental Authority succeeding to any or all of the functions of said Commission, or with any national securities exchange, or, after the initial Public Equity Offering (disregarding for purposes of this Section 5.4(e) the Net Cash Proceeds dollar threshold contained in the definition of such term), distributed to its shareholders, as the case may be;
(f) promptly after the receipt thereof by Holdings or the Borrower or any Subsidiary, a copy of any “management letter” received by any such person from its certified public accountants and the management’s response theretoCombined EBITDA; and
(gd) promptly, from time to time, such other information regarding the operations, business affairs and financial condition of Holdings, the Borrower Borrowers or any Subsidiarythe Subsidiaries, 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 5.4(a), (b) or (e) (to the extent any such documents are included in materials otherwise filed with the SEC) may be delivered electronically and if so delivered, shall be deemed to have been delivered on the date (i) on which the Borrower posts such documents, or provides a link thereto on the Borrower’s website on the Internet at the Borrower’s website address; or (ii) on which such documents are posted on the Borrower’s behalf on IntraLinks/IntraAgency or another relevant website, if any, to which each Lender and the Administrative Agent have access (whether a commercial, third-party website or whether sponsored by the Administrative Agent).
Appears in 1 contract
Financial Statements, Reports, etc. In the case of the Borrower, furnish Furnish to the Administrative Agent (either physically or through electronic delivery reasonably acceptable for distribution to the Administrative Agent), which shall furnish to each Lender:Lenders):
(a) within 90 105 days after the end of each fiscal yearyear (or 90 days during any time that the Borrower is subject to the periodic reporting requirements of the Securities Exchange Act of 1934, its as amended), the consolidated and consolidating balance sheet sheets and related statements of income, stockholders’ equity income and cash flows flow, showing the consolidated financial condition of the Borrower and its consolidated Subsidiaries subsidiaries as of the close of such fiscal year and the results of its their operations and the operations of such Subsidiaries during such year, together with comparative figures for the immediately preceding fiscal year, all audited by Ernst & Young PricewaterhouseCoopers LLP or other independent public accountants of recognized national standing reasonably acceptable to the Required Lenders and accompanied by an opinion of such accountants (which 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 Borrower and its consolidated Subsidiaries subsidiaries on a consolidated basis in accordance with GAAP consistently applied;
(b) within 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, its the unaudited consolidated and consolidating balance sheet sheets and related statements of incomeincome and changes in financial position, stockholders’ equity and cash flows showing the consolidated financial condition of the Borrower and its consolidated Subsidiaries subsidiaries as of the close of such fiscal quarter and the results of its their 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 a Financial Officer of its Financial Officers the Borrower as fairly presenting the consolidated financial condition and results of operations of the Borrower and its consolidated Subsidiaries on a consolidated basis subsidiaries in accordance with GAAP consistently applied, subject to normal year-end audit adjustments;adjustments and the absence of footnotes required by GAAP; 81 76
(c) concurrently with any delivery of financial statements under paragraph (a), ) or (b) above, a certificate of the accounting firm (in the case of paragraph (a)) or a Financial Officer (in of the case of paragraph (b)) Borrower opining on or certifying such statements (which certificate, when furnished by an accounting firm, may be limited to accounting matters and disclaim responsibility for legal interpretations and which may be provided by a Financial Officer if accounting firms generally are not providing such certificatesinterpretations) (i) certifying that no Event of Default or Default has occurred or, if such an Event of Default or Default has occurred, specifying the nature and extent thereof and any corrective action taken or proposed to be taken with respect thereto and thereto, (ii) setting forth computations in reasonable detail satisfactory to the Administrative Agent calculating the Leverage Ratio as of the end of the period covered by such financial statements and demonstrating compliance with the covenants contained in Sections 6.67.13. 7.14, 6.10and 7.15 and (iii) stating whether any change in GAAP or in the application thereof has occurred since the date of the Borrower's audited financial statements for the fiscal year ended December 31, 6.11 and 6.12 1999, and, in if any such change has occurred, specifying the case effect of a certificate delivered with such change on 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 accompanying such change, describing such change in reasonable detail and certifying that Holdings is in compliance with Section 6.8certificate;
(d) within 45 days after the commencement of each fiscal year of the Borrower, a detailed consolidated budget for such fiscal year (including a projected consolidated balance sheet and related statements of projected operations and cash flows as of the end of and for such fiscal year);
(e) promptly after the same become publicly available, copies of all periodic and other reports, proxy statements and other materials filed by Holdings, the Borrower or any Subsidiary of its subsidiaries with the SECSecurities and Exchange Commission, or any Governmental Authority governmental authority succeeding to any of or all of the functions of said Commission, or with any national securities exchange, or, after the initial Public Equity Offering (disregarding for purposes of this Section 5.4(e) the Net Cash Proceeds dollar threshold contained in the definition of such term), or distributed to its any of their shareholders, as the case may be;
(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) promptly as soon as available, and in any event no later than 105 days after the receipt thereof 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 Sections 9 and 10 of the Confidential Information Memorandum (including a specification of the underlying assumptions and a management discussion of historical results), all certified by Holdings or a Financial Officer of the Borrower or any Subsidiary, to be a copy fair summary of any “management letter” received by any such person from its certified public accountants results and its good faith estimate of the management’s response thereto; andforecasted 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 Administrative 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 of Holdingsany Guarantor, TAFSI or the Borrower or any SubsidiaryBorrower, or compliance with the terms of any Loan Document, as the Administrative Agent Agent, the Fronting Bank, any Swingline Lender or any Lender 82 77 may reasonably request. Documents ;
(i) promptly, a copy of any amendment or waiver of any provisions of any agreement referenced in Section 7.10 or any other amendment or waiver of any provisions of any agreement to the extent that such amendment or waiver is required hereunder to be furnished to the Administrative Agent, the Fronting Bank or any Lender;
(j) promptly a copy of any notice of default received by the Borrower, TAFSI or any Guarantor or under the Subordinated Note Indenture or an indenture in respect of any Subordinated Note Refinancing Indebtedness, as the case may be;
(k) 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 or under the Subordinated Note Indenture or an indenture in respect of any Subordinated Note Refinancing Indebtedness, as the case may be (except to the extent any such notice, certificate, financial statement or report is otherwise required to be delivered pursuant to Section 5.4(athis Agreement); and
(l) a copy of all solicitations or requests for any proposed waiver or amendment of any of the provisions of the Subordinated Note Indenture or an indenture in respect of any Subordinated Note Refinancing Indebtedness, (b) or (e) (to as the extent any such documents are included in materials otherwise filed with the SEC) case may be delivered electronically and (but only if so delivered, shall be deemed to have been delivered on the date (i) on which consent or approval of the Borrower posts such documents, or provides a link thereto on the Borrower’s website on the Internet at the Borrower’s website address; or (ii) on which such documents are posted on the Borrower’s behalf on IntraLinks/IntraAgency or another relevant website, if any, to which each Lender and the Administrative Agent have access (whether a commercial, third-party website or whether sponsored by the Administrative AgentLenders is required in connection therewith).
Appears in 1 contract
Financial Statements, Reports, etc. In the case of the Borrower, furnish to the Administrative Agent (either physically or through electronic delivery reasonably acceptable to the Administrative Agent), which shall furnish to and each Lender:
(a) within 90 days after the end of each fiscal year, its consolidated balance sheet and related statements of income, stockholders’ equity and cash flows showing the financial condition of the Borrower and its consolidated Subsidiaries as of the close of such fiscal year and the results of its operations and the operations of such Subsidiaries during such year, together with comparative figures for the immediately preceding fiscal year, all audited by Ernst Deloitte & Young Touche LLP or other independent public accountants of recognized national standing and accompanied by an opinion of such accountants (which opinion shall not be qualified 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 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;
(b) within 45 days after the end of each of the first three fiscal quarters of each fiscal year, its consolidated balance sheet and related statements of income, stockholders’ equity and 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 Borrower and its consolidated Subsidiaries on a consolidated basis in accordance with GAAP consistently applied, subject to normal year-end audit adjustmentsadjustments and the absence of footnotes;
(c) concurrently with any delivery of financial statements under paragraph (a), ) or (b) above, a certificate of the accounting firm (in the case of paragraph (a)) or Financial Officer (in the case of paragraph (b)) opining on or certifying such statements (which certificate, when furnished by an accounting firm, may be limited to accounting matters and disclaim responsibility for legal interpretations and which may be provided by a Financial Officer if accounting firms generally are not providing such certificatesinterpretations) (i) certifying that no Event of Default or Default has occurred or, if such an Event of Default or Default has occurred, specifying the nature and extent thereof and any corrective action taken or proposed to be taken with respect thereto and (ii) setting forth computations in reasonable detail satisfactory to the Administrative Agent demonstrating compliance with the covenants contained in Sections 6.6, 6.10, 6.11 and 6.12 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 6.8Flow;
(d) within not later than 45 days after to the commencement of each fiscal year of the Borrower, a detailed consolidated budget for such fiscal year (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)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, copies of all periodic and other reports, proxy statements and other materials filed by Holdings, the Borrower or any Subsidiary with the SECSecurities and Exchange Commission, or any Governmental Authority succeeding to any or all of the functions of said Commission, or with any national securities exchange, or, after the initial Public Equity Offering (disregarding for purposes of this Section 5.4(e) the Net Cash Proceeds dollar threshold contained in the definition of such term), or distributed to its shareholders, as the case may be;
(f) promptly after the receipt thereof by Holdings or the Borrower or any Subsidiaryof 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) 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 or since the last such certificate delivered pursuant to this clause (g);
(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
(gi) 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 may reasonably request. Documents required to be delivered pursuant to Section 5.4(a), (b) or (e) (to the extent any such documents are included in materials otherwise filed with the SEC) may be delivered electronically and if so delivered, shall be deemed to have been delivered on the date (i) on which the Borrower posts such documents, or provides a link thereto on the Borrower’s website on the Internet at the Borrower’s website address; or (ii) on which such documents are posted on the Borrower’s behalf on IntraLinks/IntraAgency or another relevant website, if any, to which each Lender and the Administrative Agent have access (whether a commercial, third-party website or whether sponsored by the Administrative Agent).
Appears in 1 contract
Samples: Credit Agreement (Deltek, Inc)
Financial Statements, Reports, etc. In the case of the BorrowerOvernite, furnish to the Administrative Agent (either physically or through electronic delivery reasonably acceptable to the Administrative Agent), which shall furnish to with sufficient copies for each Lender:):
(a) within 90 days after the end of each fiscal year, its consolidated balance sheet and related consolidated statements of income, stockholders’ ' equity and cash flows showing the financial condition of the Borrower Overnite and its consolidated Subsidiaries as of the close of such fiscal year and the results of its operations and the operations of such Subsidiaries during such year, together with comparative figures for the immediately preceding fiscal year, all audited by Ernst Deloitte & Young Touche LLP or other independent public accountants of recognized national standing selected by Overnite and accompanied by an opinion of such 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 Borrower Overnite and its consolidated Subsidiaries on a consolidated basis in accordance with GAAP consistently applied;
(b) within 45 days after the end of each of the first three fiscal quarters of each fiscal year, its consolidated balance sheet and related consolidated statements of income, stockholders’ ' equity and cash flows showing the financial condition of the Borrower Overnite 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 on behalf of Overnite by one of its Financial Officers as fairly presenting in all material respects the financial condition and results of operations of the Borrower Overnite and its consolidated Subsidiaries on a consolidated basis in accordance with GAAP consistently applied, subject to normal year-end audit adjustments;
(c) concurrently with any delivery of financial statements under paragraph (a), ) or (b) above, a certificate of the accounting firm (in the case of paragraph (a)) or Financial Officer (in the case of paragraph (b)) opining on or certifying such statements (which certificate, when furnished by an accounting firm, may be limited to accounting matters and disclaim responsibility for legal interpretations and which may be provided by a Financial Officer if accounting firms generally are not providing such certificates) Overnite (i) certifying that no Event of Default or Default has occurred or, if such an Event of Default or Default has occurred, specifying the nature and extent thereof and any corrective action taken or proposed to be taken with respect thereto and (ii) setting forth computations in reasonable detail satisfactory to the Administrative Agent demonstrating compliance with the covenants contained in Sections 6.66.09, 6.10, 6.11 and 6.12 and, in the case of a certificate delivered with the financial statements required by paragraph (a) above, (x) setting forth the Borrower’s Overnite'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 payment would be required under Section 6.82.13(d));
(d) within 45 days after the commencement of each fiscal year of the Borrower, a detailed consolidated budget for such fiscal year (including a projected consolidated balance sheet and related statements of projected operations and cash flows as of the end of and for such fiscal year);
(e) promptly after the same become publicly available, copies of all periodic and other reports, proxy statements and other materials filed by HoldingsOvernite, the Borrower or any Subsidiary with the SECSecurities and Exchange Commission, or any Governmental Authority succeeding to any or all of the functions of said Commission, or with any national securities exchange, or, after the initial Public Equity Offering (disregarding for purposes of this Section 5.4(e) the Net Cash Proceeds dollar threshold contained in the definition of such term), or distributed to its shareholders, as the case may be;
(fe) promptly after the receipt thereof by Holdings or the Borrower or any Subsidiarypromptly, following a copy of any “management letter” received request by any Lender, provide all documentation and other information that such person from Lender reasonably requests in order to comply with its certified public accountants ongoing obligations under applicable "know your customer" and anti-money laundering rules and regulations, including the management’s response theretoUSA Patriot Act; and
(gf) promptly, from time to time, such other information regarding the operations, business affairs and financial condition of HoldingsOvernite, the Borrower or any Subsidiary, or compliance with the terms of any Loan Document, as the Administrative Agent or any Lender Lender, through the Administrative Agent, may reasonably request. Documents required to be delivered pursuant to Section 5.4(a), (b) or (e) (to the extent any such documents are included in materials otherwise filed with the SEC) may be delivered electronically and if so delivered, shall be deemed to have been delivered on the date (i) on which the Borrower posts such documents, or provides a link thereto on the Borrower’s website on the Internet at the Borrower’s website address; or (ii) on which such documents are posted on the Borrower’s behalf on IntraLinks/IntraAgency or another relevant website, if any, to which each Lender and the Administrative Agent have access (whether a commercial, third-party website or whether sponsored by the Administrative Agent).
Appears in 1 contract
Samples: Credit Agreement (Overnite Corp)
Financial Statements, Reports, etc. In the case of the Borrower, furnish Cause to be furnished to the Administrative Agent (either physically or through electronic delivery reasonably acceptable as Information subject to the Administrative Agent)applicable requirements of Section 9.17 herein, which shall furnish to each Lender:if any):
(a) (i) within 90 120 days after the end of each fiscal year, its consolidated and consolidating, (A) a balance sheet sheet, (B) a statement of income and related statements (C) a statement of incomecash flow, stockholders’ equity and cash flows each showing the financial condition of the Borrower and its consolidated Subsidiaries as of the close of such fiscal year and the results of its operations and the operations of such Subsidiaries during such year, together with comparative figures for the immediately preceding fiscal year, all audited by Ernst & Young LLP or other independent public accountants of recognized national standing and accompanied by an opinion of such accountants (which shall not be qualified in any material respect) to the effect that such consolidated foregoing financial statements fairly present the financial condition and results of operations of the Borrower and its consolidated Subsidiaries on a consolidated basis to be prepared in accordance with GAAP consistently appliedGAAP, audited by an accounting firm of nationally recognized standing with an unqualified opinion from such firm, and (ii) promptly when filed by the Borrower with the SEC, Borrower's Form 10-K for such fiscal year;
(b) within 45 60 days after the end of each of the first three fiscal quarters quarter of each fiscal year, its consolidated balance sheet and related statements of income, stockholders’ equity and cash flows showing the financial condition year of the Borrower or, if earlier, when filed by the Borrower with the SEC, Borrower's Form 10-Q for such fiscal quarter together with consolidating (if applicable and its if requested by the Administrative Agent) and fully consolidated Subsidiaries company-prepared financial statements including, without limitation, consolidating (if applicable and if requested by the Administrative Agent) and fully consolidated balance sheets as of the close end of such that fiscal quarter quarter, and consolidating (if applicable and if requested by the results Administrative Agent) and fully consolidated statements of its operations and the operations of such Subsidiaries during such fiscal quarter and the then elapsed portion of income for the fiscal yearquarter, 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 Borrower and its consolidated Subsidiaries on a consolidated basis prepared in accordance with GAAP consistently applied, subject to normal year-end audit adjustmentsby the Borrower;
(c) concurrently with any each delivery of financial the statements under paragraph referred to in (a), or ) and (b) above, a certificate of the accounting firm (in the case of paragraph (a)) or Financial Officer (in the case of paragraph (b)) opining on or certifying such statements (which certificate, when furnished by an accounting firm, may be limited to accounting matters and disclaim responsibility for legal interpretations and which may be provided by a Financial Officer if accounting firms generally are not providing such certificates) (i) Quarterly Certificate certifying that to the best of its, his or her knowledge no Event of Default or Potential Default has occurred occurred, or, if such an Event of Default or Potential Default has occurred, specifying the nature and extent thereof and accompanied by a statement of a Financial Officer of the Borrower specifying any corrective action taken or proposed to be taken with respect thereto thereto, and (ii) setting forth computations in reasonable detail satisfactory in the form of Exhibit "F" the calculation of financial measures and ratios required to the Administrative Agent demonstrating demonstrate compliance with the covenants covenants, conditions and agreements contained in Sections 6.6Section 5.11 hereof, 6.10, 6.11 and 6.12 and, in all determined as of the case end of a certificate delivered with the financial statements required period covered 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 6.8said statements;
(d) within 45 10 days after of their being filed, in addition to those delivered by Borrower to the commencement of each fiscal year of the Borrower, a detailed consolidated budget for such fiscal year Administrative Agent pursuant to (including a projected consolidated balance sheet a) and related statements of projected operations and cash flows as of the end of and for such fiscal year);
(eb) promptly after the same become publicly availableabove, copies of all periodic and reports (other reports, than preliminary proxy statements and other materials statements) filed by Holdings, the Borrower or any Subsidiary with the SEC, SEC (or any Governmental Authority succeeding to any or all of the functions of said Commissionthe SEC) under the requirements of the 1934 Act, or with any national securities exchange, or, after the initial Public Equity Offering (disregarding for purposes of this Section 5.4(e) the Net Cash Proceeds dollar threshold contained in the definition of such term), distributed to its shareholders, as the case may be;
(f) promptly after the receipt thereof by Holdings or the Borrower or any Subsidiary, a copy of any “management letter” received by any such person from its certified public accountants and the management’s response theretosuccessor statute; and
(ge) 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, and its Subsidiaries as the Administrative Agent or any Lender may reasonably request. Documents required to be delivered pursuant to Section 5.4(a), (b) or (e) (to the extent any such documents are included in materials otherwise filed with the SEC) may be delivered electronically and if so delivered, shall be deemed to have been delivered on the date (i) on which the Borrower posts such documents, or provides a link thereto on the Borrower’s website on the Internet at the Borrower’s website address; or (ii) on which such documents are posted on the Borrower’s behalf on IntraLinks/IntraAgency or another relevant website, if any, to which each Lender and the Administrative Agent have access (whether a commercial, third-party website or whether sponsored by the Administrative Agent).
Appears in 1 contract
Financial Statements, Reports, etc. In the case of the BorrowerThe Borrower shall furnish or cause to be furnished, furnish as applicable, to the Administrative Agent (either physically or through electronic delivery reasonably acceptable in reasonable detail satisfactory to the Administrative Agent), which shall furnish Agent and in sufficient number for distribution to each Lender:):
(a) As soon as available, but in any event within 90 one hundred twenty (120) days after the end last day of each of its fiscal years, a consolidated balance sheet of the Limited Guarantor and its Subsidiaries as at such last day of such fiscal year, its and consolidated balance sheet and related statements of income, stockholders’ equity income and retained earnings and statements of cash flows showing the financial condition of the Borrower and its consolidated Subsidiaries as of the close of flow for such fiscal year and the results of its operations and the operations of such Subsidiaries during such year, together with comparative figures for the immediately preceding fiscal year, all audited each prepared in accordance with generally accepted accounting principles consistently applied, in reasonable detail, and certified without qualification by Ernst & Young LLP or other a nationally recognized independent public accountants of recognized national standing and accompanied accounting firm or by an opinion of such accountants (which shall not be qualified in any material respect) other certified public accounting firm satisfactory to the effect that such consolidated financial statements Administrative Agent as fairly present presenting the financial condition position and results of operations of the Borrower Limited Guarantor and its consolidated Subsidiaries as at and for the year ending on a consolidated basis its date and as having been prepared in accordance with GAAP consistently applied;GAAP; provided, however, that the Borrower may satisfy its obligations to deliver the financial statements described in this Section 5.3(a) by furnishing to the Administrative Agent in sufficient number for distributions to the Lenders copies of its annual report on Form 10-K in respect of such fiscal year together with the financial statements required to be attached thereto, so long as the Limited Guarantor is required to file such annual report on Form 10-K with the Securities and Exchange Commission and such filing is actually made.
(b) As soon as available, but in any event within 45 one hundred twenty (120) days after the last day of each of its fiscal years, the balance sheet of the Borrower as at such last day of such fiscal year, and the statements of income and retained earnings and statements of cash flow for such fiscal year, used to prepare the Limited Guarantor’s certified financial statements specified in Section 5.3(a), each prepared internally and certified by the Chief Financial Officer of the Borrower as accurately presenting the financial position and the results of operations of the Borrower as at its date and for such quarter and as having been prepared in accordance with GAAP.
(c) As soon as available, but in any event within sixty (60) days after the end of each of the first three Limited Guarantor’s fiscal quarters of each fiscal yearquarters, its a consolidated balance sheet and related statements of income, stockholders’ equity and cash flows showing the financial condition of the Borrower Limited Guarantor and its consolidated the Subsidiaries as of the close last day of such quarter and consolidated statements of income and retained earnings and statements of cash flow for such quarter, all in reasonable detail, each such statement to be reviewed by a nationally recognized independent public accounting firm or by any other certified public accounting firm satisfactory to the Administrative Agent; provided, however, the Borrower may satisfy its obligations to deliver the financial statements described in this Section 5.3(c) by furnishing to the Administrative Agent in sufficient number for distribution to the Lenders copies of its quarterly report on Form 10-Q in respect of such fiscal quarter together with the financial statements required to be attached thereto, so long as the Limited Guarantor is required to file such quarterly report on Form 10-Q with the Securities and Exchange Commission and such filing is actually made.
(d) As soon as available, but in any event within sixty (60) days after the results end of its operations and the operations of such Subsidiaries during such fiscal quarter and the then elapsed portion each of the Borrower’s fiscal yearquarters, 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 a balance sheet of the Borrower as of the last day of such quarter and its consolidated Subsidiaries on statements of income and retained earnings and statements of cash flow for such quarter, all in reasonable detail, each such statement to be compiled by a consolidated basis in accordance with GAAP consistently applied, subject nationally recognized independent public accounting firm or by any other certified public accounting firm satisfactory to normal year-end audit adjustments;the Administrative Agent
(ce) concurrently Promptly after a written request therefor, such other financial data or information evidencing compliance with any delivery the requirements of this Agreement, the Notes and the other Loan Documents, as the Administrative Agent may reasonably request from time to time.
(f) At the same time as it delivers the financial statements required under paragraph the provisions of Section 5.3(a) through (ad), or (b) above, a certificate of a senior officer of the accounting firm (in Borrower or the Limited Guarantor, as the case of paragraph (a)) or Financial Officer (in may be, to the case of paragraph (b)) opining on or certifying such statements (which certificate, when furnished by an accounting firm, may be limited to accounting matters and disclaim responsibility for legal interpretations and which may be provided by a Financial Officer if accounting firms generally are not providing such certificates) (i) certifying effect that no Event of Default or Default has occurred exists or, if such an Event of Default or Default has occurredcannot be so certified, specifying the nature and extent thereof and any corrective action taken or proposed to be taken with respect thereto and (ii) setting forth computations in reasonable detail satisfactory the exceptions, if any, to the Administrative Agent demonstrating compliance with the covenants contained in Sections 6.6, 6.10, 6.11 and 6.12 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 6.8;statement.
(dg) within 45 days after the commencement of each fiscal year of the Borrower, a detailed consolidated budget for such fiscal year (including a projected consolidated balance sheet and related statements of projected operations and cash flows as of the end of and for such fiscal year);
(e) promptly after the same become publicly Promptly upon their becoming available, copies of all periodic any: (i) publicly filed financial statements, reports and other reportsnotices; (ii) correspondence or notices received by the Borrower from any federal, proxy statements and other materials filed by Holdings, state or local governmental authority that regulates the operations of the Borrower or the Property, relating to an actual or threatened change or development that would be materially adverse to the Borrower; and (iii) registration statements and any Subsidiary amendments and supplements thereto, and any regular and periodic reports, if any, filed by the Limited Guarantor with any securities exchange or with the SEC, Securities and Exchange Commission or any Governmental Authority governmental authority succeeding to any or all of the functions of the said Commission, or with any national securities exchange, or, after the initial Public Equity Offering (disregarding for purposes of this Section 5.4(e) the Net Cash Proceeds dollar threshold contained in the definition of such term), distributed to its shareholders, as the case may be;.
(fh) promptly after Promptly upon their becoming available, copies of: (i) all correspondence with the receipt thereof PBGC, the Secretary of Labor or any representative of the Internal Revenue Service with respect to any Plan, relating to an actual or threatened change or development that would be materially adverse to the Borrower; (ii) all actuarial valuations received by Holdings or the Borrower with respect to any Plan; and (iii) any notices of Plan termination filed by any Plan Administrator (as those terms are used in ERISA) with the PBGC and of any notices from the PBGC to the Borrower with respect to the intent of the PBGC to institute involuntary termination proceedings.
(i) Such other material additional information regarding the business, affairs and condition of the Borrower or any Subsidiary, a copy of any “management letter” received by any such person from its certified public accountants and the management’s response thereto; and
(g) 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, Limited Guarantor as the Administrative Agent or any Lender may from time to time reasonably request. Documents required to be delivered pursuant to Section 5.4(a), (b) or (e) (to the extent any such documents are included in materials otherwise filed with the SEC) may be delivered electronically and if so delivered, shall be deemed to have been delivered on the date (i) on which the Borrower posts such documents, or provides a link thereto on the Borrower’s website on the Internet at the Borrower’s website address; or (ii) on which such documents are posted on the Borrower’s behalf on IntraLinks/IntraAgency or another relevant website, if any, to which each Lender and the Administrative Agent have access (whether a commercial, third-party website or whether sponsored by the Administrative Agent).
Appears in 1 contract
Financial Statements, Reports, etc. In the case of the BorrowerParent Guarantor, furnish to the Administrative Agent (either physically or through electronic delivery reasonably acceptable to the Administrative Agent), which shall furnish to and each Lender:
(a) as soon as available and in any event within 90 110 days after the end of each fiscal year, its (i) consolidated balance sheet sheets and the related statements of income, stockholders’ equity income and cash flows showing the financial condition of the Borrower Parent Guarantor and its consolidated Subsidiaries (the Parent Guarantor and its Subsidiaries being collectively referred to as the "Companies") as of the close of such fiscal year and (which requirement shall be deemed satisfied by the results delivery of its operations and the operations of such Subsidiaries during Parent Guarantor's Annual Report on Form 10-K (or any successor form) for such year, together with comparative figures for the immediately preceding fiscal year), all audited by Ernst & Young LLP KPMG Peat Marwick or other independent public accountants of recognized national standing and accompanied by an opinion of such 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 Borrower and its consolidated Subsidiaries on Companies an a consolidated basis in accordance with GAAP consistently applied and (ii) if on the date they are to be so furnished the Approval Date has not yet occurred, a balance sheet and the related statements of income and cash flows of each Subsidiary Guarantor as of the close of such fiscal year, each certified by a Financial Officer as fairly presenting the financial condition and results of operations of such Subsidiary Guarantor in accordance with GAAP consistently applied;
(b) within 45 65 days after the end of each of the first three fiscal quarters of each fiscal year, its (i) consolidated balance sheet sheets and related statements of income, stockholders’ equity income and cash flows showing the financial condition of the Borrower and its consolidated Subsidiaries Companies as of Credit Agreement the close of such fiscal quarter and the then elapsed portion of the fiscal year (which requirement shall be deemed satisfied by the delivery of the Parent Guarantor's Quarterly Report on Form 10-Q (or any successor form) for such quarter), each certified by a Financial Officer as fairly presenting the financial condition and results of its operations and the operations of such Subsidiaries during the Companies on a consolidated basis in accordance with GAAP consistently applied, subject to normal year-end audit adjustments and (ii) if on the date they are to be so furnished the Approval Date has not yet occurred, a balance sheet and related statements of income and cash flows of each Subsidiary Guarantor as of the close of 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 each certified by one of its a Financial Officers Officer as fairly presenting the financial condition and results of operations of the Borrower and its consolidated Subsidiaries on a consolidated basis such Subsidiary Guarantor in accordance with GAAP consistently applied, subject to normal year-end audit adjustments;
(c) concurrently promptly upon the mailing or filing thereof copies of all financial statements, reports and proxy statements mailed to the Parent Guarantor's public shareholders, and copies of all registration statements (other than those on Form S-8) and Form 8-K's (to the extent that such Form 8-K's disclose actual or potential adverse developments with respect to the Parent Guarantor or any delivery of financial statements under paragraph (a)its Subsidiaries that constitute, or (b) abovecould reasonably be anticipated to constitute, a certificate of Material Adverse Effect) filed with the accounting firm Securities and Exchange Commission (in the case of paragraph (a)or any successor thereto) or Financial Officer (in the case of paragraph (b)) opining on or certifying such statements (which certificate, when furnished by an accounting firm, may be limited to accounting matters and disclaim responsibility for legal interpretations and which may be provided by a Financial Officer if accounting firms generally are not providing such certificates) (i) certifying that no Event of Default or Default has occurred or, if such an Event of Default or Default has occurred, specifying the nature and extent thereof and any corrective action taken or proposed to be taken with respect thereto and (ii) setting forth computations in reasonable detail satisfactory to the Administrative Agent demonstrating compliance with the covenants contained in Sections 6.6, 6.10, 6.11 and 6.12 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 6.8national securities exchange;
(d) within 45 days after prompt notice of any reduction in the commencement of each fiscal year of credit rating given to 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)Parent Guarantor by any Rating Agency;
(e) promptly after (i) the same become publicly availableoccurrence thereof, notice of any ERISA Termination Event or "prohibited transaction", as such term is defined in Section 4975 of the Code, with respect to any Plan that results, or could reasonably be anticipated to result, in a Material Adverse Effect, which notice shall specify the nature thereof and the Parent Guarantor's proposed response thereto, and (ii) actual knowledge thereof copies of all periodic and other reports, proxy statements and other materials filed by Holdings, the Borrower any notice of PBGC's intention to terminate or to have a trustee appointed to administer any Subsidiary with the SEC, or any Governmental Authority succeeding to any or all of the functions of said Commission, or with any national securities exchange, or, after the initial Public Equity Offering (disregarding for purposes of this Section 5.4(e) the Net Cash Proceeds dollar threshold contained in the definition of such term), distributed to its shareholders, as the case may be;
(f) promptly after the receipt thereof by Holdings or the Borrower or any Subsidiary, a copy of any “management letter” received by any such person from its certified public accountants and the management’s response theretoPlan; and
(gf) promptly, from time to time, such other information information, regarding the its operations, business affairs and financial condition of Holdings, the Borrower or any Subsidiarycondition, or compliance with the terms of any Loan Documentthis Agreement, as the Administrative Agent or any Lender may reasonably request. Documents required to be delivered pursuant to Section 5.4(a), (b) or (e) (to the extent any such documents are included in materials otherwise filed with the SEC) may be delivered electronically and if so delivered, shall be deemed to have been delivered on the date (i) on which the Borrower posts such documents, or provides a link thereto on the Borrower’s website on the Internet at the Borrower’s website address; or (ii) on which such documents are posted on the Borrower’s behalf on IntraLinks/IntraAgency or another relevant website, if any, to which each Lender and the Administrative Agent have access (whether a commercial, third-party website or whether sponsored by the Administrative Agent).Credit Agreement
Appears in 1 contract
Financial Statements, Reports, etc. In the case of the Borrower, furnish to the Administrative Agent (either physically or through electronic delivery reasonably acceptable Furnish to the Administrative Agent), which shall furnish who will make it available to each Lender:
(a) within 90 days after the end of each fiscal yearyear of the Parent, its audited consolidated balance sheet and related statements of income, changes in members’ or stockholders’ equity equity, as applicable, and cash flows showing the financial condition of the Borrower Parent and its consolidated Subsidiaries as of the close of such fiscal year and the results of its operations and the operations of such Subsidiaries during such year, together with comparative figures for the immediately preceding fiscal year, all audited by Ernst together with an Audit Report of Deloitte & Young LLP Touche, LLP, or other independent public accountants of recognized national standing and accompanied by an opinion of such accountants (which opinion shall not be qualified 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 Borrower Parent and its consolidated Subsidiaries on a consolidated basis in accordance with GAAP consistently appliedGAAP;
(b) within 45 days after the end of each of the first three fiscal quarters of each fiscal yearyear of the Parent, its consolidated balance sheet and related statements of income, stockholders’ equity income and cash flows showing the financial condition of the Borrower Parent 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 a Financial Officer of its Financial Officers the Parent as fairly presenting the financial condition and results of operations of the Borrower Parent and its consolidated Subsidiaries on a consolidated basis in accordance with GAAP consistently appliedGAAP, 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 clause (a), ) or (b) aboveof this Section, a certificate of the accounting firm (in the case of paragraph (a)) or a Financial Officer (in of the case of paragraph (b)) Parent opining on or certifying such statements (which certificate, when furnished by an accounting firm, may be limited to accounting matters and disclaim responsibility for legal interpretations and which may be provided by a Financial Officer if accounting firms generally are not providing such certificates) (i) certifying that no Default or Event of Default or Default has occurred or, if such a Default or an Event of Default or Default has occurred, specifying the nature and extent thereof and any corrective action taken or proposed to be taken with respect thereto and (ii) setting forth computations in reasonable detail satisfactory to the Administrative Agent demonstrating compliance with the covenants contained in Sections 6.6, 6.10, 6.11 and 6.12 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 6.8thereto;
(de) within 45 15 days after following the commencement filing of each fiscal year of a 10-K with the BorrowerSEC by the Parent, a detailed an annual consolidated budget for such the succeeding 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 succeeding fiscal year)year and each quarter thereof and setting forth the assumptions used for purposes of preparing such budget) as reviewed by the Parent’s board of directors and, promptly when available, any significant revisions of such budget;
(ef) promptly after the same become publicly available, copies of all periodic and other reports, proxy statements and other materials filed by Holdings, the Borrower Parent or any Subsidiary with the SECSecurities and Exchange Commission, or any Governmental Authority succeeding to any or all of the functions of said Commission, or with any national securities exchange, or, after the initial Public Equity Offering (disregarding for purposes of this Section 5.4(e) the Net Cash Proceeds dollar threshold contained in the definition of such term), or distributed to its shareholders, as the case may be;
(fg) promptly after the receipt thereof written request by Holdings or the Borrower or any SubsidiaryAdministrative Agent, a copy of any all documentation and other information that the Administrative Agent reasonably requests in order to comply with ongoing obligations under applicable “management letterknow your customer” received by any such person from its certified public accountants and anti-money laundering rules and regulations, including the management’s response theretoUSA Patriot Act; and
(gh) promptlypromptly upon written request from the Administrative Agent, from time to time, such other information regarding any of the operations, business affairs and financial condition of Holdings, the Borrower Parent or any Subsidiary, or compliance with the terms of any Loan Document, as the Administrative Agent or any Lender may reasonably request, including a summary of unregulated cash flow items of the Parent substantially in the form agreed to between the Parent and the Administrative Agent as of the Effective Date. Documents Information required to be delivered pursuant to Section 5.4(aSections 5.04(a), (b5.04(b) or (eand 5.04(f) (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 if such documentsinformation, or provides a link thereto on the Borrower’s website on the Internet at the Borrower’s website address; one or (ii) on which more annual, quarterly or other periodic reports containing such documents are information, shall have been posted on the Borrower’s behalf on IntraLinks/IntraAgency or another relevant website, if any, to which each Lender and by the Administrative Agent on an IntraLinks or similar site to which the Lenders have been granted access or shall be available on the website of the SEC at xxxx://xxx.xxx.xxx; provided that, for the avoidance of doubt, the Borrowers shall be required to provide copies of the compliance certificates required by clause (whether a commercial, third-party website or whether sponsored d) of this Section 5.04 to the Administrative Agent. Information required to be delivered pursuant to this Section may also be delivered by electronic communications pursuant to procedures approved by the Administrative Agent). In the event any financial statements delivered under clause (a) or (b) above shall be restated, the Borrowers shall deliver, promptly after such restated financial statements become available, revised compliance certificates required by clause (d) of this Section 5.04 with respect to the periods covered thereby that give effect to such restatement, signed by a Financial Officer of the Parent.
Appears in 1 contract
Financial Statements, Reports, etc. In the case of the Borrower, furnish to the Administrative Agent (either physically or through electronic delivery reasonably acceptable to the Administrative Agent), which shall furnish to and each Lender:
(a) within 90 days after the end of each fiscal year, its consolidated and consolidating balance sheet sheets and related statements of incomeoperations, stockholders’ ' equity and cash flows showing the financial condition of the Borrower and its consolidated Subsidiaries as of the close of such fiscal year and the results of its operations and the operations of such Subsidiaries during such year, together with comparative figures for audited, in the immediately preceding fiscal yearcase of the consolidated financial statements, all audited by Ernst & Young Price Waterhouse LLP or other independent public accountants of recognized national standing acceptable to the Required Lenders and accompanied by an opinion of such accountants (which shall not 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 of the Borrower and its consolidated the Subsidiaries on a consolidated basis in accordance with GAAP consistently applied and, in the case of the consolidating financial statements, certified by a Financial Officer of the Borrower as presenting fairly in all material respects the financial condition and results of operations of the Borrower and the Subsidiaries on a consolidating basis in accordance with GAAP consistently applied;
(b) within 45 days after the end of each of the first three fiscal quarters of each fiscal year, its consolidated and consolidating balance sheet sheets and related statements of incomeoperations, stockholders’ ' equity and 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 presenting fairly presenting in all material respects the financial condition and results of operations of the Borrower and its consolidated the Subsidiaries on a consolidated and a consolidating basis in accordance with GAAP consistently applied, subject to normal year-end audit adjustmentsadjustments and the absence of footnotes;
(c) concurrently with any delivery of financial statements under sub- paragraph (a), ) or (b) above, a certificate of the accounting firm (in the case of paragraph (a)) or Financial Officer (in the case of paragraph (b)) opining on or certifying such statements (which certificate, when furnished by an accounting firm, may be limited to accounting matters and disclaim responsibility for legal interpretations and which may be provided by a Financial Officer if accounting firms generally are not providing such certificatesinterpretations) (i) certifying that no Event of Default or Default has occurred or, if such an Event of Default or Default has occurred, specifying the nature and extent thereof and any corrective action taken or proposed to be taken with respect thereto (it being understood that such certificate, when given by an accounting firm, may be limited to their knowledge as obtained in the course of their audit and without special investigation) and (ii) setting forth computations in reasonable detail satisfactory to the Administrative Agent showing the Leverage Ratio and the Interest Coverage Ratio as of the last day of the fiscal year or fiscal quarter to which such statements relate and demonstrating compliance with the covenants contained in Sections 6.6, 6.10, 6.10 and 6.11 and 6.12 and, (it being understood that the information required by this clause (ii) may be provided in the case a certificate of a certificate delivered with Financial Officer on behalf of the financial statements required by paragraph (a) above, (x) setting forth Borrower instead of from 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 6.8accounting firm);
(d) within 45 days after the commencement of each fiscal year of the Borrower, a detailed consolidated budget for such fiscal year (including a projected consolidated balance sheet and related statements of projected operations and cash flows as of the end of and for such fiscal year);
(e) promptly after the same become publicly available, copies of all periodic and other reports, proxy statements and other materials filed by Holdings, the Borrower or any Subsidiary with the SECSecurities and Exchange Commission, or any Governmental Authority succeeding to any or all of the functions of said Commission, or with any national securities exchange, or, after the initial Public Equity Offering (disregarding for purposes of this Section 5.4(e) the Net Cash Proceeds dollar threshold contained in the definition of such term), or distributed to its shareholders, as the case may be;
(e) if, as a result of any change in accounting principles and policies from those as in effect on the date hereof, the consolidated and consolidating financial statements of the Borrower and the Subsidiaries delivered pursuant to paragraph (a) or (b) above will differ in any material respect from the consolidated or consolidating financial statements that would have been delivered pursuant to such clauses had no such change in accounting principles and policies been made, then together with the first delivery of financial statements pursuant to paragraph (a) and (b) above following such change, a schedule prepared by a Financial Officer of the Borrower reconciling such changes to what the financial statements would have been without such changes;
(f) concurrently with the delivery of the financial statements under subparagraph (a) above, a copy of an operating and capital expenditure budget for the fiscal year following the fiscal year to which such statements relate;
(g) promptly after upon the receipt thereof creation or acquisition of any Subsidiary or upon any Inactive Subsidiary ceasing to be an Inactive Subsidiary (other than by Holdings reason of dissolution of such Inactive Subsidiary), a certificate from a Responsible Officer of the Borrower, identifying such Subsidiary and the ownership interest of the Borrower and the Subsidiaries therein;
(h) promptly, a copy of all reports submitted in connection with any material interim or special audit made by independent accountants of the books of the Borrower or any Subsidiary, a copy of any “management letter” received by any such person from its certified public accountants and the management’s response thereto; and
(gi) 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 may reasonably request. Documents required to be delivered pursuant to Section 5.4(a), (b) or (e) (to the extent any such documents are included in materials otherwise filed with the SEC) may be delivered electronically and if so delivered, shall be deemed to have been delivered on the date (i) on which the Borrower posts such documents, or provides a link thereto on the Borrower’s website on the Internet at the Borrower’s website address; or (ii) on which such documents are posted on the Borrower’s behalf on IntraLinks/IntraAgency or another relevant website, if any, to which each Lender and the Administrative Agent have access (whether a commercial, third-party website or whether sponsored by the Administrative Agent).
Appears in 1 contract
Financial Statements, Reports, etc. In the case of the Borrower, furnish to the Administrative Agent (either physically or through electronic delivery reasonably acceptable to the Administrative Agent), which shall furnish for distribution to each Lender:
(a) within 90 days after the end of each fiscal year, its consolidated balance sheet and related statements of income, stockholders’ equity and cash flows showing the financial condition of the Borrower and its consolidated Subsidiaries as of the close of such fiscal year and the results of its operations and the operations of such Subsidiaries during such year, together with comparative figures for the immediately preceding fiscal year, all audited by Ernst & Young PricewaterhouseCoopers LLP or other independent public accountants of recognized national standing and accompanied by an opinion of such accountants (which opinion shall not be qualified 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 Borrower and its consolidated Subsidiaries on a consolidated basis in accordance with GAAP consistently applied;
(b) within 45 days after the end of each of the first three fiscal quarters of each fiscal year, its consolidated balance sheet and related statements of income, stockholders’ equity and 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 Borrower and its consolidated Subsidiaries on a consolidated basis in accordance with GAAP consistently applied, subject to normal year-end audit adjustments;
(c) within 30 days after the end of each 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 the Borrower and its consolidated Subsidiaries during such fiscal month and the then elapsed portion of the fiscal year, all certified by one of its Financial Officers as fairly presenting the financial condition and results of operations of the Borrower and its consolidated Subsidiaries on a consolidated basis in accordance with GAAP consistently applied, subject to normal year-end audit adjustments;
(d) concurrently with any delivery of financial statements under paragraph (a), (b) or (bc) above, a certificate letter of the accounting firm (if such accounting firm is then providing similar letters for other corporate clients) (in the case of paragraph (a)) or and a certificate of a Financial Officer (in the case of paragraph (a), (b) or (c)) opining on or certifying such statements (which certificateletter, when furnished by an accounting firm, may be limited to accounting matters with respect to Section 6.11 and disclaim responsibility for legal interpretations and which may be provided by a Financial Officer if accounting firms generally are not providing such certificatesinterpretations) (i) certifying that no Event of Default or Default has occurred or, if such an Event of Default or Default has occurred, specifying the nature and extent thereof and any corrective action taken or proposed to be taken with respect thereto and thereto, (ii) setting forth computations in reasonable detail satisfactory to the Administrative Agent demonstrating compliance with the covenants covenant contained in Sections 6.6, 6.10, Section 6.11 and 6.12 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 Flow, and (yiii) certifying that there has been no change in the business activities, assets or liabilities case of Holdings, or if there has been any such changecertificate delivered by a Financial Officer, describing such change in reasonable detail any Asset Sales that were consummated during the preceding period and certifying that Holdings is in compliance with Section 6.8the amount and the use or the intended use of the Net Cash Proceeds thereof;
(de) within 45 90 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 yearyear and summarizing the assumptions used for purposes of preparing such budget);
(ef) promptly after the same become publicly available, copies of all periodic and other reports, proxy statements and other materials filed by Holdings, the Borrower or any Subsidiary with the SECSecurities and Exchange Commission, or any Governmental Authority succeeding to any or all of the functions of said Commission, or with any national securities exchange, or, after the initial Public Equity Offering (disregarding for purposes of this Section 5.4(e) the Net Cash Proceeds dollar threshold contained in the definition of such term), or distributed to its shareholders, as the case may be;
(fg) promptly after the receipt thereof by Holdings or the Borrower or any Subsidiaryof the 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
(gi) 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 Lender, through the Administrative Agent, may reasonably request. Documents required to be delivered pursuant to Section 5.4(a), (b) or (e) (to the extent any such documents are included in materials otherwise filed with the SEC) may be delivered electronically and if so delivered, shall be deemed to have been delivered on the date (i) on which the Borrower posts such documents, or provides a link thereto on the Borrower’s website on the Internet at the Borrower’s website address; or (ii) on which such documents are posted on the Borrower’s behalf on IntraLinks/IntraAgency or another relevant website, if any, to which each Lender and the Administrative Agent have access (whether a commercial, third-party website or whether sponsored by the Administrative Agent).
Appears in 1 contract
Samples: Second Lien Credit Agreement (Weight Watchers International Inc)
Financial Statements, Reports, etc. In the case of the Borrower, furnish Furnish to the Administrative Agent (either physically or through electronic delivery reasonably acceptable to the Administrative Agent), which shall furnish to each LenderBank:
(a) as soon as available, but in any event within 90 105 days after the end of each fiscal yearyear of the Company, its a copy of (x) the audited comparative consolidated balance sheet of the Company and its Subsidiaries as of the end of such year and the related audited comparative consolidated statements of income, stockholders’ equity retained earnings and cash flows showing the financial condition of the Borrower and its consolidated Subsidiaries as of the close of such fiscal year and the results of its operations and the operations of such Subsidiaries during flow for such year, together with comparative figures for the immediately preceding fiscal year, all audited accompanied by Ernst & Young LLP or other a report thereon of independent certified public accountants of recognized national standing selected by the Company and accompanied by an opinion of such accountants (which shall not be qualified in any material respect) satisfactory to the effect that such consolidated Bank (the "Auditor"), which report shall be unqualified; and (y) the management prepared comparative consolidating financial statements fairly present of the Company and its Subsidiaries which support the financial condition and results of operations of the Borrower and its consolidated Subsidiaries on a consolidated basis statements delivered pursuant to clause (x); all such financial statements to be prepared in accordance with GAAP Generally Accepted Accounting Principles, consistently applied;
(b) within 45 as soon as available, but in any event not later than 60 days after the end of each of the first three fiscal quarters quarterly periods of each fiscal yearyear of the Company, its a copy of (x) the unaudited interim comparative consolidated and comparative consolidating balance sheet of the Company and its Subsidiaries as of the end of each such quarter and the related unaudited interim comparative consolidated and comparative consolidating statements of income, stockholders’ equity retained earnings and cash flows showing flow for such quarter and the portion of the fiscal year through such date; and (y) the unaudited interim comparative balance sheet of each Golf Facility, and each Golf Related Business as of the end of each such quarter and the related comparative statements of income for each Golf Facility and each Golf Related Business for such quarter; all such financial statements to be prepared in accordance with Generally Accepted Accounting Principles, consistently applied;
(c) a certificate prepared and signed by the Auditor with each delivery required by clause (a) and a certificate prepared and signed by the Chief Financial Officer with each delivery required by clauses (a) and (b), certifying that the financial condition of the Borrower statements delivered pursuant to such clauses were prepared in accordance with Generally Accepted Accounting Principles consistently applied, and its consolidated Subsidiaries further certifying as to whether or not, as of the close of such fiscal quarter preceding period and the results of its operations and the operations of such Subsidiaries at all times 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 Borrower and its consolidated Subsidiaries on a consolidated basis in accordance with GAAP consistently applied, subject to normal year-end audit adjustments;
(c) concurrently with any delivery of financial statements under paragraph (a), or (b) above, a certificate of the accounting firm (in the case of paragraph (a)) or Financial Officer (in the case of paragraph (b)) opining on or certifying such statements (which certificate, when furnished by an accounting firm, may be limited to accounting matters and disclaim responsibility for legal interpretations and which may be provided by a Financial Officer if accounting firms generally are not providing such certificates) (i) certifying that no Event of Default or Default has occurred or, if such an Event of Default or Default has occurred, specifying the nature and extent thereof and any corrective action taken or proposed to be taken with respect thereto and (ii) setting forth computations in reasonable detail satisfactory to the Administrative Agent demonstrating compliance with the covenants contained in Sections 6.6, 6.10, 6.11 and 6.12 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 6.8;
(d) within 45 days after the commencement of each fiscal year of the Borrower, a detailed consolidated budget for such fiscal year (including a projected consolidated balance sheet and related statements of projected operations and cash flows as of the end of and for such fiscal year);
(e) promptly after the same become publicly available, copies of all periodic and other reports, proxy statements and other materials filed by Holdingsperiod, the Borrower Company or any Subsidiary with the SEC, or any Governmental Authority succeeding to any or all of the functions of said Commission, or with any national securities exchange, or, after the initial Public Equity Offering (disregarding for purposes of this Section 5.4(e) the Net Cash Proceeds dollar threshold contained in the definition of such term), distributed to its shareholdersGuarantor, as the case may be, was in compliance with all the provisions in this Agreement, showing computation of financial covenants and quantitative negative covenants, and if the Auditor or Chief Financial Officer, as the case may be, shall have obtained knowledge of any default in such compliance or notice of such default, it shall disclose in such certificate such default or defaults or notice thereof and the nature thereof, whether or not the same shall constitute an Event of Default hereunder;
(d) at all times indicated in (a) above, a copy of the management letter, if any, prepared by the Auditor;
(e) within five (5) days after filing thereof, copies of all regular and periodic financial information, proxy materials and other information and reports which the Company or any of its Subsidiaries shall file with the Securities and Exchange Commission;
(f) promptly after with respect to each Permitted Acquisition, within thirty (30) days of the receipt thereof by Holdings or end of each calendar month, (i), to the Borrower or any Subsidiaryextent not delivered pursuant to clause (e) above, a copy of any “management letter” received by any such person from its certified public accountants each acquisition agreement executed during the preceding calendar month, together with all schedules and the management’s response thereto; and
(g) promptlyexhibits thereto and all material documents and instruments delivered thereunder, 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 may reasonably request. Documents required to be delivered pursuant to Section 5.4(a), (b) or (e) (to the extent any such documents are included in materials otherwise filed with the SEC) may be delivered electronically and if so delivered, shall be deemed to have been delivered on the date (i) on which the Borrower posts such documents, or provides a link thereto on the Borrower’s website on the Internet at the Borrower’s website address; or (ii) on which such documents are posted on the Borrower’s behalf on IntraLinks/IntraAgency or another relevant websitecopies of each lease of real property, if any, to which each Lender included in the Permitted Acquisition together with copies of the consent of the lessor therein, if required in connection with the Permitted Acquisition; and the Administrative Agent have access (whether iii) a commercial, third-party website or whether sponsored by the Administrative Agent).Chief
Appears in 1 contract
Financial Statements, Reports, etc. In the case of the Borrower, ---------------------------------- furnish to the Administrative Agent (either physically or through electronic delivery reasonably acceptable except, in the case of the financial statements referred to in paragraphs (a) and (b) below, to the extent such financial statements are contained in materials already delivered to the Administrative Agent), which shall furnish Agent pursuant to paragraph (d) below) with sufficient copies for each Lender:
(a) within 90 120 days after the end of each fiscal year, (i) its consolidated balance sheet and related statements of incomeincome and changes in financial position (or of cash flow, stockholders’ equity and cash flows as appropriate), showing the financial condition of the Borrower and its consolidated Subsidiaries as of the close of such fiscal year and the results of its operations and the operations of such Subsidiaries during such year, together with comparative figures for the immediately preceding fiscal year, all audited by Ernst & Young Xxxxxx Xxxxxxxx LLP or other independent public accountants of recognized national standing acceptable to the Administrative Agent and accompanied by an opinion of such 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 Borrower and its consolidated Subsidiaries on a consolidated basis in accordance with GAAP generally accepted accounting principles consistently applied, and (ii) a consolidated balance sheet and related statements of income and changes in financial position (or of cash flow, as the case may be) for KGE as of the end of such fiscal year, showing the consolidated financial condition of KGE and its consolidated Subsidiaries as of the close of such fiscal year and the results of its operations and the operations of such Subsidiaries during such year, all certified by a Financial Officer of the Borrower as fairly presenting the consolidated financial condition and results of operations of KGE in accordance with generally accepted accounting principles consistently applied (except that so long as KGE shall be required to file with the SEC, or shall otherwise prepare, audited financial statements, any such financial statements of KGE shall be audited by Xxxxxx Xxxxxxxx LLP or other independent public accountants of recognized national standing acceptable to the Administrative Agent and accompanied by an opinion of such accountants (which shall not be qualified in any material respect) to the effect that such financial statements fairly present the financial condition and results of operations of KGE on a consolidated basis in accordance with generally accepted accounting principles consistently applied);
(b) within 45 90 days after the end of each of the first three fiscal quarters of each fiscal year, (i) its consolidated balance sheet and related statements of incomeincome and changes in financial position, stockholders’ equity and 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 Borrower and its consolidated Subsidiaries on a consolidated basis in accordance with GAAP generally accepted accounting principles consistently applied, subject to normal year-end audit adjustments and (ii) so long as KGE shall be required to file with the SEC, or shall otherwise prepare, such statements, the consolidated balance sheet and related statements of income and changes in financial condition of KGE and its consolidated Subsidiaries 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, all certified by one of its Financial Officers as fairly presenting the financial condition and results of operations of KGE and its consolidated Subsidiaries in accordance with generally accepted accounting principles consistently applied, subject to normal year-end audit adjustments;
(c) concurrently with any delivery of financial statements under paragraph (a), ) or (b) above, a certificate of the accounting firm (in the case of paragraph (a)) or a Financial Officer (in of the case of paragraph (b)) Borrower who shall, if applicable, be the Financial Officer opining on or certifying such statements (which certificate, when furnished by an accounting firm, may be limited to accounting matters and disclaim responsibility for legal interpretations and which may be provided by a Financial Officer if accounting firms generally are not providing such certificates) (i) certifying that no Event of Default or Default has occurred or, if such an Event of Default or Default has occurred, specifying the nature and extent thereof and any corrective action taken or proposed to be taken with respect thereto and (ii) setting forth computations in reasonable detail satisfactory to the Administrative Agent demonstrating compliance with the covenants contained in Sections 6.6, 6.10, 6.11 and 6.12 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 6.86.1;
(d) within 45 days after the commencement of each fiscal year of the Borrower, a detailed consolidated budget for such fiscal year (including a projected consolidated balance sheet and related statements of projected operations and cash flows as of the end of and for such fiscal year);
(e) promptly after the same become publicly available, copies of all regular and periodic and other reports, proxy statements and other materials reports filed by Holdings, the Borrower it or any Subsidiary by KGE with the SEC, SEC or any Governmental Authority succeeding to any of or all of the functions of said Commission, or with any national securities exchange, or, after the initial Public Equity Offering (disregarding for purposes of this Section 5.4(e) the Net Cash Proceeds dollar threshold contained in the definition of such term), distributed to its shareholders, as the case may be;
(f) promptly after the receipt thereof by Holdings or the Borrower or any Subsidiary, a copy of any “management letter” received by any such person from its certified public accountants and the management’s response thereto; and
(ge) promptly, promptly from time to time, such other information regarding the operations, business affairs and financial condition of Holdings, the Borrower or any Subsidiary, Significant 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 5.4(a), (b) or (e) (to the extent any such documents are included in materials otherwise filed with the SEC) may be delivered electronically and if so delivered, shall be deemed to have been delivered on the date (i) on which the Borrower posts such documents, or provides a link thereto on the Borrower’s website on the Internet at the Borrower’s website address; or (ii) on which such documents are posted on the Borrower’s behalf on IntraLinks/IntraAgency or another relevant website, if any, to which each Lender and the Administrative Agent have access (whether a commercial, third-party website or whether sponsored by the Administrative Agent).
Appears in 1 contract
Financial Statements, Reports, etc. In the case of the Borrower, furnish Furnish to the Administrative Agent (either physically or through electronic delivery reasonably acceptable to the Administrative Agent), which shall furnish to with sufficient copies for each Lender:):
(a) within 90 ninety (90) days after of the end of each fiscal yearyear of the Company, or such earlier date on which the following is required to be filed with the Securities and Exchange Commission, audited consolidated financial statements of the Company and its Subsidiaries which shall include consolidated balance sheet and related statements of income, stockholders’ equity and cash flows showing the financial condition sheets of the Borrower Company and its consolidated Subsidiaries as of the close end of such fiscal year, together with consolidated income statements and statements of cash flows for the Company and its Subsidiaries for such fiscal year and the results as of its operations and the operations of such Subsidiaries during such year, together with comparative figures for the immediately preceding prior fiscal year, all audited by Ernst & Young LLP or other independent public accountants of recognized national standing prepared in accordance with Generally Accepted Accounting Principles and accompanied by an opinion thereon of such Ernst & Young, LLP or other nationally recognized independent certified public accountants reasonably acceptable to the Lenders (the “Auditor”) which opinion shall not be qualified in any material respect) include a going concern or like qualification or exception or a qualification or exception as to the effect that such consolidated financial statements fairly present the financial condition and results of operations scope of the Borrower audit (except with respect to any newly acquired Subsidiary), together with the corresponding consolidating balance sheets of the Company and its consolidated Subsidiaries on a consolidated basis and the consolidating statements of income for the Company and its Subsidiaries, all prepared under the supervision of the Chief Financial Officer of the Company in accordance with GAAP consistently appliedGenerally Accepted Accounting Principles;
(b) within 45 forty-five (45) days after the end of each of the first three first, second and third fiscal quarters of each fiscal yearyear of the Company, its unaudited consolidated balance sheet and related consolidating financial statements of incomethe Company and its Subsidiaries, stockholders’ equity which shall include unaudited consolidated and cash flows showing the financial condition consolidating balance sheets of the Borrower Company and its consolidated Subsidiaries as of the close end of each such quarter, together with consolidated and consolidating income statements and consolidated statements of cash flows of the Company and its Subsidiaries for each such quarter and for the period commencing at the end of the previous fiscal year and ending with the end of such fiscal quarter and quarter, all in reasonable detail stating in comparative form 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 respective figures for the same periods corresponding date and period in the immediately preceding previous fiscal year, all certified prepared by one of its Financial Officers as fairly presenting or under the financial condition and results of operations supervision of the Borrower and its consolidated Subsidiaries on a consolidated basis Chief Financial Officer of the Company in accordance with GAAP consistently applied, Generally Accepted Accounting Principles (subject to normal year-end audit adjustmentsadjustments and except for the absence of notes thereto);
(ci) concurrently a certificate prepared and signed by the Auditor with any each delivery of financial statements under paragraph required by clause (a), and (ii) a certificate prepared and signed by the Chief Financial Officer with each delivery required by clauses (a) and (b), stating whether the Auditor or Chief Financial Officer, as the case may be, shall have obtained knowledge of any Default or Event of Default, together with a certificate of the Chief Financial Officer of the Company demonstrating that as of the last day of the relevant fiscal year or quarter, as applicable, the Company was in compliance with the financial condition covenants set forth in Section 7.13 hereof, provided that the certificate described in subclause (i) above for the fiscal year ended December 31, 2004 shall be delivered by no later than March 31, 2005;
(d) together with delivery of the statements referred to in clause (a) above, a copy of the management letter, if any, prepared by the Auditor, or if such management letter has not been received by the Company as of such date, promptly upon receipt thereof;
(e) together with delivery of the statements referred to in clauses (a) and (b) above, a certificate of the accounting firm (in the case of paragraph (a)) or Chief Financial Officer (in indicating the case of paragraph (b)) opining on or certifying such statements (which certificate, when furnished by an accounting firm, may be limited to accounting matters and disclaim responsibility for legal interpretations and which may be provided by a Financial Officer if accounting firms generally are not providing such certificates) (i) certifying that no Event of Default or Default has occurred or, if such an Event of Default or Default has occurred, specifying the nature and extent thereof and any corrective action taken or proposed to be taken with respect thereto and (ii) setting forth computations in reasonable detail satisfactory to the Administrative Agent demonstrating compliance with the covenants contained in Sections 6.6, 6.10, 6.11 and 6.12 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 6.8;
(d) within 45 days after the commencement of each fiscal year of the Borrower, a detailed consolidated budget for such fiscal year (including a projected consolidated balance sheet and related statements of projected operations and cash flows as of “book-to-xxxx” ratio at the end of and for such fiscal year);
(e) promptly after the same become publicly available, copies of all periodic and other reports, proxy statements and other materials filed by Holdings, the Borrower or any Subsidiary with the SEC, or any Governmental Authority succeeding to any or all of the functions of said Commission, or with any national securities exchange, or, after the initial Public Equity Offering (disregarding for purposes of this Section 5.4(e) the Net Cash Proceeds dollar threshold contained in the definition of such term), distributed to its shareholders, as the case may bequarter;
(f) promptly after filing thereof, copies of all financial statements and material reports that the receipt thereof Company sends to its shareholders, and copies of all regular, periodic and special financial information, proxy materials, reports and other information which the Company shall file with the Securities and Exchange Commission;
(g) promptly after submission to any government or regulatory agency, all documents and information (including Forms 8-K) furnished to such government or regulatory agency other than such documents and information prepared in the normal course of business and which could not reasonably be expected to result in a Material Adverse Effect, provided that if such documents and information are available on or through the Company’s website, the Company may comply with this clause (g) by Holdings delivering a notice to the Lenders setting forth a written reference to such documents and information to be found on or the Borrower or any Subsidiarythrough such website;
(h) promptly upon execution thereof, a copy copies of any “management letter” received by any amendments or modifications to the Indenture;
(i) promptly upon completion thereof, copies of the restated unaudited consolidated and consolidating financial statements of the Company and its Subsidiaries, including unaudited consolidated and consolidating balance sheets of the Company and its Subsidiaries, for the fiscal quarters ended March 31, 2004, June 30, 2004 and September 30, 2004, together with consolidated and consolidating income statements and consolidated statements of cash flows of the Company and its Subsidiaries for each such person from its certified public accountants and the management’s response theretoquarter; and
(gj) promptly, from time to time, such other information regarding the operations, business affairs and condition (financial condition or otherwise) of Holdings, the Borrower Company or any Subsidiary, or compliance with Subsidiary of the terms of any Loan Document, Company as the Administrative Agent or any Lender may reasonably request. Documents required to be delivered pursuant to Section 5.4(a), (b) or (e) (to the extent any such documents are included in materials otherwise filed with the SEC) may be delivered electronically and if so delivered, shall be deemed to have been delivered on the date (i) on which the Borrower posts such documents, or provides a link thereto on the Borrower’s website on the Internet at the Borrower’s website address; or (ii) on which such documents are posted on the Borrower’s behalf on IntraLinks/IntraAgency or another relevant website, if any, to which each Lender and the Administrative Agent have access (whether a commercial, third-party website or whether sponsored by the Administrative Agent).
Appears in 1 contract
Financial Statements, Reports, etc. In the case of the Borrower, furnish to the Administrative Agent (either physically or through electronic delivery reasonably acceptable to the Administrative Agent), which shall furnish to each Lender:
(a) within 90 days after the end of each fiscal year, its consolidated balance sheet and related statements of income, stockholders’ equity and cash flows showing the financial condition of the Borrower and its consolidated Subsidiaries as of the close of such fiscal year and the results of its operations and the operations of such Subsidiaries during such year, together with comparative figures for the immediately preceding fiscal year, all audited by Ernst & Young LLP or other independent public accountants of recognized national standing and accompanied by an opinion of such 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 Borrower and its consolidated Subsidiaries on a consolidated basis in accordance with GAAP consistently applied;
(b) within 45 days after the end of each of the first three fiscal quarters of each fiscal year, its consolidated balance sheet and related statements of income, stockholders’ equity and 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 Borrower and its consolidated Subsidiaries on a consolidated basis in accordance with GAAP consistently applied, subject to normal year-end audit adjustments;
(c) concurrently with any delivery of financial statements under paragraph (a), ) or (b) above, a certificate of the accounting firm (in the case of paragraph (a)) or Financial Officer (in the case of paragraph (b)) opining on or certifying such statements (which certificate, when furnished by an accounting firm, may be limited to accounting matters and disclaim responsibility for legal interpretations and which may be provided by a Financial Officer if accounting firms generally are not providing such certificates) (i) certifying that no Event of Default or Default has occurred or, if such an Event of Default or Default has occurred, specifying the nature and extent thereof and any corrective action taken or proposed to be taken with respect thereto and (ii) setting forth computations in reasonable detail satisfactory to the Administrative Agent demonstrating compliance with the covenants contained in Sections 6.6, 6.10, 6.11 and 6.12 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 Holdingsthe Borrower, or if there has been any such change, describing such change in reasonable detail and certifying that Holdings the Borrower is in compliance with Section 6.8;
(d) within 45 days after the commencement of each fiscal year of the Borrower, a detailed consolidated budget for such fiscal year (including a projected consolidated balance sheet and related statements of projected operations and cash flows as of the end of and for such fiscal year);
(e) promptly after the same become publicly available, copies of all periodic and other reports, proxy statements and other materials filed by Holdings, the Borrower or any Subsidiary with the SEC, or any Governmental Authority succeeding to any or all of the functions of said Commissionthe SEC, or with any national securities exchange, or, after the initial Public Equity Offering (disregarding for purposes of this Section 5.4(e) the Net Cash Proceeds dollar threshold contained in the definition of such term), or distributed to its shareholders, as the case may be;
(f) promptly after the receipt thereof by Holdings or the Borrower or any Subsidiary, a copy of any “management letter” received by any such person from its certified public accountants and the management’s response thereto; and
(g) 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 may reasonably request. Documents required to be delivered pursuant to Section 5.4(a), (b) or (e) (to the extent any such documents are included in materials otherwise filed with the SEC) may be delivered electronically and if so delivered, shall be deemed to have been delivered on the date (i) on which the Borrower posts such documents, or provides a link thereto on the Borrower’s website on the Internet at the Borrower’s website address; or (ii) on which such documents are posted on the Borrower’s behalf on IntraLinks/IntraAgency or another relevant website, if any, to which each Lender and the Administrative Agent have access (whether a commercial, third-party website or whether sponsored by the Administrative Agent).
Appears in 1 contract
Samples: Credit Agreement (Knoll Inc)
Financial Statements, Reports, etc. In the case of the Borrower, The Borrower shall furnish to the Administrative Agent (either physically or through electronic delivery reasonably acceptable to Agent, each Bank and the Administrative Agent), which shall furnish to each LenderIssuing Bank:
(a) within 90 105 days after the end of each fiscal year, its consolidated and consolidating balance sheet sheets and related statements of incomeincome and statements of cash flow, stockholders’ equity and cash flows showing the financial condition of (i) Avista Utilities and (ii) the Borrower and its consolidated Subsidiaries Subsidiaries, in each case as of the close of such fiscal year year, and the results of its each of their operations and the operations of such Subsidiaries during such year, together all (A) in the case of Avista Utilities, certified by one of the Borrower's Financial Officers as fairly presenting the financial condition and results of operations of Avista Utilities in accordance with comparative figures for GAAP consistently applied and (B) in the immediately preceding fiscal yearcase of the Borrower and its consolidated subsidiaries, all audited by Ernst Deloitte & Young LLP Touche or other independent public accountants of recognized national standing acceptable to the Required Banks and accompanied by an opinion of such 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 Borrower and its consolidated Subsidiaries on a consolidated basis (except as noted therein) in accordance with GAAP consistently applied;
(b) within 45 50 days after the end of each of the first three fiscal quarters of each fiscal year, its consolidated and, to the extent otherwise available, consolidating balance sheet sheets and related statements of incomeincome and statements of cash flow, stockholders’ equity and cash flows showing the financial condition of (i) Avista Utilities and (ii) the Borrower and its consolidated Subsidiaries subsidiaries, in each case as of the close of such fiscal quarter quarter, and the results of its each of their 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 Avista Utilities or the Borrower and its consolidated Subsidiaries on a consolidated basis basis, as applicable, in accordance with GAAP consistently applied, subject to normal year-end audit adjustments;
(c) concurrently with any delivery of financial statements under paragraph (a), ) or (b) above, (i) a certificate of the relevant accounting firm (in the case of paragraph (a)) or Financial Officer (in the case of paragraph (b)) opining on or certifying such statements or Financial Officer (which certificate, when furnished by an accounting firm, may be limited to accounting matters and disclaim responsibility for legal interpretations and which may be provided by a Financial Officer if accounting firms generally are not providing such certificates) (iinterpretations) certifying that to the knowledge of the accounting firm or the Financial Officer, as the case may be, no Event of Default or Default has occurred or, if such an Event of Default or Default has occurred, specifying the nature and extent thereof and any corrective action taken or proposed to be taken with respect thereto thereto, and (ii) a certificate of a Financial Officer setting forth computations in reasonable detail satisfactory such calculations as are required to establish whether the Administrative Agent demonstrating compliance with the covenants contained in Sections 6.6, 6.10, 6.11 and 6.12 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 Borrower was in compliance with Section 6.8Sections 6.05 and 6.06 on the date of such financial statements;
(d) within 45 days after the commencement of each fiscal year of the Borrower, a detailed consolidated budget for such fiscal year (including a projected consolidated balance sheet and related statements of projected operations and cash flows as of the end of and for such fiscal year);
(e) promptly after the same become publicly available, copies of all periodic and other reports, proxy statements and other materials filed by Holdings, the Borrower or any Subsidiary it with the SECSecurities and Exchange Commission, or any Governmental Authority governmental authority succeeding to any of or all of the functions of said Commission, or with any national securities exchange, or, after the initial Public Equity Offering (disregarding for purposes of this Section 5.4(e) the Net Cash Proceeds dollar threshold contained in the definition of such term), or distributed to its shareholdersshare holders, as the case may be;
(f) promptly after the receipt thereof by Holdings or the Borrower or any Subsidiary, a copy of any “management letter” received by any such person from its certified public accountants and the management’s response thereto; and
(ge) promptly, from time to time, such other information regarding the operations, business affairs and financial condition of Holdings, the Borrower or any Significant Subsidiary, or compliance with the terms of any Loan Document, as the Administrative Agent Agent, any Bank or any Lender the Issuing Bank may reasonably request. Documents required to be delivered pursuant to Section 5.4(a), (b) or (e) (to the extent any such documents are included in materials otherwise filed with the SEC) may be delivered electronically and if so delivered, shall be deemed to have been delivered on the date (i) on which the Borrower posts such documents, or provides a link thereto on the Borrower’s website on the Internet at the Borrower’s website address; or (ii) on which such documents are posted on the Borrower’s behalf on IntraLinks/IntraAgency or another relevant website, if any, to which each Lender and the Administrative Agent have access (whether a commercial, third-party website or whether sponsored by the Administrative Agent).
Appears in 1 contract
Samples: Credit Agreement (Avista Corp)
Financial Statements, Reports, etc. In the case of the BorrowerBorrower and the Guarantors, furnish deliver to the Administrative Agent (either physically or through electronic delivery reasonably acceptable to and each of the Administrative Agent), which shall furnish to each LenderDIP Lenders:
(a) within 90 days after the end of each fiscal year, its the Borrower's consolidated balance sheet and related statements statement of income, stockholders’ equity income and cash flows flows, showing the financial condition of the Borrower and its Subsidiaries on a consolidated Subsidiaries basis and the Borrower and the Guarantors on a consolidated basis, as of the close of such fiscal year and the results of its their respective operations and the operations of such Subsidiaries during such year, together with comparative figures the consolidated statement of the Borrower to be audited for the immediately preceding fiscal year, all audited Borrower and its Subsidiaries by Ernst & Young LLP PriceWaterhouse Coopers or other independent public accountants of or recognized national standing acceptable to the Required DIP Lenders and accompanied by an opinion of such accountants (which shall not be qualified in any material respectrespect other than with respect to the Cases) 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 Borrower and its consolidated Subsidiaries on a consolidated basis in accordance with GAAP consistently applied;
(b) within 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, its the Borrower's consolidated balance sheet sheets and related statements of income, stockholders’ equity income and cash flows flows, showing the financial condition of the Borrower and its Subsidiaries on a consolidated Subsidiaries basis and the Borrower and the Guarantors on a consolidated basis, in each case as of the close of such fiscal quarter and the results of its their 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 each certified by one a Financial Officer of its Financial Officers the Borrower as fairly presenting the financial condition and results of operations of the Borrower and its consolidated Subsidiaries on a consolidated basis in accordance with GAAP consistently applied, subject to normal year-end audit adjustments;
(c) concurrently with any delivery of financial statements under paragraph (a), ) or (b) aboveabove as applicable, (i) a certificate of the accounting firm (in the case of paragraph (a)) or a Financial Officer (in A) certifying the case accuracy of paragraph such statements, (b)) opining on or certifying such statements (which certificate, when furnished by an accounting firm, may be limited to accounting matters and disclaim responsibility for legal interpretations and which may be provided by a Financial Officer if accounting firms generally are not providing such certificates) (iB) certifying that no Event of Default or event that upon notice or lapse of time or both would constitute an Event of Default has occurred occurred, or, if such an Event of Default or Default event has occurred, specifying the nature and extent thereof and any corrective action taken or proposed to be taken with respect thereto and (iiC) setting forth computations in reasonable detail satisfactory to the Administrative Agent demonstrating compliance with the covenants contained in provisions of Sections 6.66.03, 6.106.04, 6.11 6.05 and 6.12 and6.10 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 the case course of a certificate delivered with the financial statements required by paragraph (a) aboveregular audit of the business of the Borrower and its Subsidiaries, (x) setting forth the Borrower’s calculation such accountants have obtained no knowledge that an Event of Excess Cash Flow Default has occurred and (y) certifying that there has been no change its continuing, or if, in the business activitiesopinion of such accountants, assets or liabilities an Event of HoldingsDefault has occurred and is continuing, or if there has been any such change, describing such change in reasonable detail specifying the nature thereof and certifying that Holdings is in compliance all relevant facts with Section 6.8respect thereto;
(d) within as soon as available, but no more than 45 days after the commencement end of each fiscal year month, the unaudited monthly cash flow reports of the Borrower, Borrower and the Subsidiaries on a detailed consolidated budget for such fiscal year (including basis and the Borrower and the Guarantors on a projected consolidated balance sheet and related statements of projected operations and cash flows basis as of the end close of and for such fiscal month and the results of their operations during such fiscal period and the then elapsed portion of the fiscal year), all certified by a Financial Officer as fairly presenting the results of operations of the Borrower and the Subsidiaries on a consolidated basis, subject to normal year-end audit adjustments;
(e) on the first Business Day of each week, a statement of projected cash receipts and cash disbursements with respect to the Borrower and its Subsidiaries for each week in the period of thirteen continuous weeks commencing with the immediately following week, in a form reasonably satisfactory to the Agent;
(f) concurrently with any delivery of financial statements under (b) above, monthly financial projections for the following six fiscal month period; PROVIDED that, promptly following (and in any event within 30 days after) consummation of a sale of USOP-NA or MBE, the Borrower and the Guarantors shall deliver to the Agent and each of the DIP Lenders updated monthly financial projections reflecting the consummation of such sale;
(g) promptly after the same become publicly available, copies of all periodic and other reports, proxy statements and other materials filed by Holdings, the Borrower or any Subsidiary it with the SECSecurities and Exchange Commission, or any Governmental Authority governmental authority succeeding to any of or all of the functions of said Commissioncommission, or with any national securities exchange, or, after the initial Public Equity Offering (disregarding for purposes of this Section 5.4(e) the Net Cash Proceeds dollar threshold contained in the definition of such term), distributed to its shareholders, as the case may be;
(fh) promptly as soon as available and in any event (A) within 30 days after the receipt thereof by Holdings or the Borrower or any Subsidiaryof 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 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;
(i) promptly and in any event within 10 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;
(j) 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;
(k) within 10 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 “management letter” 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;
(l) 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 such person from its certified public accountants and ERISA Affiliate concerning (A) the management’s response thereto; andimposition 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;
(gm) promptly, from time to time, such other information regarding the operations, business affairs and financial condition of Holdings, the Borrower or any SubsidiaryGuarantor, or compliance with the terms of any Loan Document, material loan or financing agreements as the Administrative Agent or Agent, at the request of any Lender DIP Lender, may reasonably request. Documents required ;
(n) promptly after the same is available, copies 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 be delivered pursuant any official committee appointed in the Cases, providing copies of same to Section 5.4(a)counsel for Agent;
(o) no later than the 35th day of each month, (b) or (e) (a reconciliation of the results of the business operations of the Borrower for the preceding month as compared to the extent any such documents are included corresponding period in materials otherwise filed the Budget; and
(p) no later than the 30th day after the Petition Date, a statement of projected cash receipts and cash disbursements with the SEC) may be delivered electronically and if so delivered, shall be deemed respect to have been delivered on the date (i) on which the Borrower posts such documentsand its Subsidiaries for the twelve-month period following the Petition Date, or provides in a link thereto on form reasonably satisfactory to the Borrower’s website on Agent (the Internet at the Borrower’s website address; or (ii) on which such documents are posted on the Borrower’s behalf on IntraLinks/IntraAgency or another relevant website, if any, to which each Lender and the Administrative Agent have access (whether a commercial, third"WIND-party website or whether sponsored by the Administrative AgentDOWN PLAN").
Appears in 1 contract
Samples: Revolving Credit and Guaranty Agreement (Us Office Products Co)
Financial Statements, Reports, etc. In the case of the Borrower, furnish to the Administrative Agent (either physically or through electronic delivery reasonably acceptable to the Administrative Agent), which shall promptly furnish to each Lender:
(a) within 90 120 days after the end of each fiscal year, its consolidated and consolidating balance sheet and related statements of income, stockholders’ equity and cash flows showing the financial condition of the Borrower and its consolidated Subsidiaries and the Affiliated Guarantors as of the close of such fiscal year and the results of its operations and the operations of such Subsidiaries and the Affiliated Guarantors during such yearyear (including a schedule setting forth, on a property by property basis, the income statement, balance sheet and cash flow statements for each of the hotel, casino and resort properties owned or leased by the Borrower, the Subsidiaries or the Affiliated Guarantors), together with comparative figures for the immediately preceding fiscal year, all audited by Ernst & Young LLP or other independent public accountants of recognized national standing and accompanied by an opinion of such 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 Borrower and Borrower, its consolidated Subsidiaries and the Affiliated Guarantors, on a consolidated and consolidating basis or Columbia Sussex and its subsidiaries on a consolidated basis, as applicable, in accordance with GAAP consistently applied;
(b) within 45 days after the end of each of the first three fiscal quarters quarter of each fiscal yearyear (or 60 days, in the case of the fiscal quarter ending June 30, 2008), its consolidated and consolidating balance sheet and related statements of income, stockholders’ equity and cash flows showing the financial condition of the Borrower and its consolidated Subsidiaries and the Affiliated Guarantors as of the close of such fiscal quarter and the results of its operations and the operations of such Subsidiaries and such Affiliated Guarantors during such fiscal quarter and the then elapsed portion of the fiscal year, and together with comparative figures for the same periods in the immediately preceding fiscal year, all certified by one of its the Financial Officers of the Borrower, as fairly presenting the financial condition and results of operations of the Borrower and Borrower, its consolidated Subsidiaries and the Affiliated Guarantors, on a consolidated basis in accordance with GAAP consistently applied, subject to normal year-end audit adjustments;
(c) concurrently with any delivery of financial statements or Approved Cash Flow Forecast under paragraph (aSection 5.04(a), or (b5.04(b) aboveand 5.04(d)(i), a certificate of the accounting firm (in the case of paragraph Section 5.04(a)) (a)to the extent that the accounting firm is willing to provide such certificate in accordance with its customary business practice) or Financial Officer (in the case of paragraph (bSection 5.04(b) and 5.04(d)) opining on or certifying such statements or Approved Cash Flow Forecast (which certificate, when furnished by an accounting firm, may be limited to accounting matters and disclaim responsibility for legal interpretations and which may be provided by a Financial Officer if accounting firms generally are not providing such certificatesinterpretations) (i) certifying that no Event of Default or Default has occurred or, if such an Event of Default or Default has occurred, specifying the nature and extent thereof and any corrective action taken or proposed to be taken with respect thereto and (ii) in the cases of the certificates delivered with respect to Sections 5.04(a) and 5.04(b) setting forth computations in reasonable detail satisfactory to the Administrative Agent demonstrating compliance with the covenants contained in Sections 6.66.09, 6.10, 6.11 6.10 and 6.12 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 6.86.11;
(d) within 45 (i) as soon as available and in any event at least one week prior to the commencement of each month, a revised Cash Flow Forecast, (A) setting forth in comparative form the actual cash receipts and cash disbursements for the prior week and the variance from the projections in the Cash Flow Forecast for such prior week, (B) a reasonably detailed oral or written explanation of any such variance and, after 60 days after the commencement Closing Date, a reasonably detailed written explanation of any such variance, and (C) setting forth the cash flow forecast for an additional week; provided that the Cash Flow Forecasts delivered pursuant to clause 5.04(d)(i) shall be in substance reasonably satisfactory to, and approved by, the Administrative Agent in its reasonable discretion (an “Approved Cash Flow Forecast”); provided further, that the Borrower shall use reasonable efforts to prepare the financial statements referred to in clause (b) of the definition of “Cash Flow Forecast” on a consolidating basis and to include such consolidating forecasts in the revised Cash Flow Forecasts which are to be delivered under this Section 5.04(d) as soon as possible and in any event from the date which is 70120 days following the Closing Date (or such other later date agreed to by the Administrative Agent) and (ii) on or prior to the Thursday of each week (or if such day is not a Business Day, Friday of such week, or if neither Thursday or Friday is a Business Day, Wednesday of such week), an updated Cash Flow Forecast for the succeeding 13-week period;
(e) within 90 days after the beginning of each fiscal year of the Borrower, a detailed consolidated budget projection for such fiscal year (including a projected consolidated balance sheet showing revenue, EBITDA, capital expenditures for maintenance and related statements of projected operations and cash flows as of the end of and capital expenditures for expansion, each for such fiscal year)period and on a per property basis) and, promptly when available, any significant revisions of such projections;
(ef) promptly after the same become publicly available, copies of all periodic and other reports, proxy statements and other materials filed by Holdings, the Borrower Borrower, any Subsidiary or any Subsidiary Affiliated Guarantor with the SECSecurities and Exchange Commission, or any Governmental Authority succeeding to any or all of the functions of said Commission, or with any national securities exchange, or, after the initial Public Equity Offering (disregarding for purposes of this Section 5.4(e) the Net Cash Proceeds dollar threshold contained in the definition of such term), or distributed to its shareholders, as the case may be;
(fg) promptly after the receipt thereof by Holdings or Holdings, the Borrower Borrower, the Affiliated Guarantors or any Subsidiaryof their respective Subsidiaries, a copy of any final “management letter” received by any such person Person from its certified public accountants relating to any deficiency or weakness in accounting practices or in reported results of Holdings, the Borrower, any Subsidiary or any Affiliated Guarantor and the management’s response thereto; and
(g) 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 may reasonably request. Documents required to be delivered pursuant to Section 5.4(a), (b) or (e) (thereto to the extent any such documents accountants are included in materials otherwise filed with the SECwilling to provide such letters;
(h) may be delivered electronically and if so delivered, shall be deemed to have been delivered on the date (i) on which the Borrower posts such documents, or provides a link thereto on the Borrower’s website on the Internet at the Borrower’s website address; or (ii) on which such documents are posted on the Borrower’s behalf on IntraLinks/IntraAgency or another relevant website, if any, to which each Lender and the Administrative Agent have access (whether a commercial, third-party website or whether sponsored promptly after request by the Administrative Agent, to the extent not prohibited by applicable law or regulation, copies of the Nevada “Regulation 6.090 Report” and “6-A Report” (until the effective date of the repeal of Regulation 6-A)., copies of any other report required by any Gaming Authority, and copies of any written communication to Holdings, the Borrower, the Subsidiaries or the Affiliated Guarantors from any Gaming Authority advising it of a violation of, or non-compliance with, any Gaming Law by Holdings, the Borrower, the Subsidiaries or the Affiliated Guarantors where such violation or non-compliance could reasonably be expected to result in fines in excess of $100,000 or a License Revocation;
Appears in 1 contract
Samples: Senior Secured Superpriority Debtor in Possession Credit Agreement
Financial Statements, Reports, etc. In the case of the Borrower, furnish to the Administrative Agent (either physically or through electronic delivery reasonably acceptable to the Administrative Agent), which The Company shall furnish to each LenderInvestor:
(a) as soon as available, and in any event within 90 120 days after the end of each fiscal yearFiscal Year, its an audited consolidated balance sheet of the Company and its Subsidiaries as of the end of such Fiscal Year and the related audited consolidated statements of income, stockholders’ equity and cash flows showing the financial condition of the Borrower and its consolidated Subsidiaries as of the close of such fiscal year and the results of its operations and the operations of such Subsidiaries during such year, together with comparative figures for the immediately preceding fiscal yearFiscal Year then ended, all audited prepared in accordance with generally accepted accounting principles in effect in the United States and certified by Ernst & Young LLP or other a firm of independent public accountants of recognized national standing and accompanied selected by an opinion of such 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 Borrower and its consolidated Subsidiaries on a consolidated basis in accordance with GAAP consistently appliedBoard;
(b) as soon as available, and in any event within 45 thirty (30) days after the end of each of the first three fiscal quarters of calendar quarter in each fiscal yearFiscal Year, its a consolidated balance sheet of the Company and its Subsidiaries and the related consolidated statements of income, stockholders’ equity and cash flows, unaudited but prepared in accordance with generally accepted accounting principles in effect in the United States and certified by the chief financial officer or chief accounting officer of the Company, such consolidated balance sheet to be as of the end of such calendar quarter and such consolidated statements of income, stockholders’ equity and cash flows showing to be for such calendar quarter and for the financial condition period from the beginning of the Borrower and its consolidated Subsidiaries as of Fiscal Year to the close end 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 yearcalendar quarter, in each case, with comparison to budget and comparative figures statements 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 Borrower and its consolidated Subsidiaries on a consolidated basis in accordance with GAAP consistently applied, subject to normal year-end audit adjustmentsprior Fiscal Year;
(c) concurrently with as soon as available, and in any delivery event within thirty (30) days after the end of financial statements under paragraph (a), or (b) aboveeach month in each Fiscal Year, a certificate consolidated balance sheet of the Company and its Subsidiaries and the related consolidated statements of income, stockholders’ equity and cash flows, unaudited but prepared in accordance with generally accepted accounting firm (principles in effect in the case United States and certified by the chief financial officer or chief accounting officer of paragraph (a)) or Financial Officer (in the case of paragraph (b)) opining on or certifying Company, such statements (which certificate, when furnished by an accounting firm, may be limited to accounting matters and disclaim responsibility for legal interpretations and which may be provided by a Financial Officer if accounting firms generally are not providing such certificates) (i) certifying that no Event of Default or Default has occurred or, if such an Event of Default or Default has occurred, specifying the nature and extent thereof and any corrective action taken or proposed 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 with the covenants contained in Sections 6.6, 6.10, 6.11 and 6.12 andend of such month, in each case, with comparison to budget and comparative statements for 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 6.8prior Fiscal Year;
(d) within 45 days after at the commencement time of each fiscal year delivery of the Borrowerfinancial statements pursuant to Sections 6.1(a), 6.1(b) and 6.1(c), a detailed consolidated budget for such fiscal year (including a projected consolidated balance sheet and related statements of projected operations and cash flows as certificate executed by the chief financial officer or chief accounting officer of the end Company stating that such officer has caused this Agreement to be reviewed and has no knowledge of any default by the Company or any of its Subsidiaries in the performance or observance of any of the provisions of this Agreement or, if such officer has such knowledge, specifying such default and for such fiscal year)the nature thereof;
(e) promptly after at the same become publicly available, copies time of all periodic and other reports, proxy statements and other materials filed by Holdings, the Borrower or any Subsidiary with the SEC, or any Governmental Authority succeeding to any or all delivery of each of the functions of said Commission, or with any national securities exchange, or, after the initial Public Equity Offering (disregarding for purposes of this Section 5.4(estatement pursuant to Sections 6.1(b) the Net Cash Proceeds dollar threshold contained in the definition of such termand 6.1(c), distributed to its shareholdersa management narrative report explaining all significant variances from forecasts and all significant current developments in staffing, as the case may bemarketing, sales and operations;
(f) no later than thirty (30) days prior to the start of each Fiscal Year, a detailed business plan for the next Fiscal Year for the review and approval of the Board, and 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 for review and approval of the Board (the “Annual Budget”), 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, but in any event within ten (10) days of receipt thereof, each audit response letter, accountant’s 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 commencement thereof, but in any event within ten (10) days of receipt thereof by Holdings or the Borrower or any Subsidiaryof notice thereof, a copy notice of any “management letter” received and all of the following:
(i) any (A) action, suit, claim, proceeding or investigation pending, or to the Company’s Knowledge, threatened against or affecting the Company, at law or in equity, or before any Governmental Entity; (B) arbitration proceeding relating to the Company pending under collective bargaining agreements or otherwise; or (C) inquiry by any such person Governmental Entity pending or, to the Company’s Knowledge, threatened against or affecting the Company (including without limitation any inquiry as to the qualification of the Company to hold or receive any Permit);
(ii) any action, suit, claim, proceeding or investigation by the Company pending, threatened or contemplated against others;
(iii) receipt of any opinion or memorandum or written legal advice from legal counsel to the effect that the Company is exposed, from a legal standpoint, to any liability or disadvantage which could reasonably be expected to have a Material Adverse Effect;
(iv) any default with respect to any Governmental Order.
(i) promptly upon sending, making available or filing the same, all press releases, reports, financial statements, or other correspondence or information that the Company sends or makes available to its certified public accountants and the management’s response theretostockholders; and
(gj) promptly, from time to time, such other information regarding the business, prospects, financial condition, operations, business property or affairs of the Company and financial condition of Holdings, the Borrower or any Subsidiary, or compliance with the terms of any Loan Document, its Subsidiaries as the Administrative Agent or any Lender such Investor reasonably may reasonably request. Documents required to be delivered pursuant to Section 5.4(a), (b) or (e) (to the extent any such documents are included in materials otherwise filed with the SEC) may be delivered electronically and if so delivered, shall be deemed to have been delivered on the date (i) on which the Borrower posts such documents, or provides a link thereto on the Borrower’s website on the Internet at the Borrower’s website address; or (ii) on which such documents are posted on the Borrower’s behalf on IntraLinks/IntraAgency or another relevant website, if any, to which each Lender and the Administrative Agent have access (whether a commercial, third-party website or whether sponsored by the Administrative Agent).
Appears in 1 contract
Financial Statements, Reports, etc. In the case of the Borrower, furnish to the Administrative Agent and each Lender (either physically by delivery of a regular or through electronic delivery reasonably acceptable to periodic report filed under the Administrative Agent), which shall furnish to each Lender:Exchange Act containing such items or otherwise):
(a) within 90 100 days after the end of each fiscal year, its consolidated balance sheet sheets and related statements of income, stockholders’ equity earnings and cash flows showing the financial condition of the Borrower and its consolidated Subsidiaries as of the close of such fiscal year and the results of its operations and the operations of such Subsidiaries during such year, together with comparative figures for the immediately preceding fiscal year, all audited by Ernst & Young KPMG Peat Marwick LLP or any other independent public accountants of recognized national standing Big Five Accounting Firm and accompanied by an opinion of such 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 Borrower and its consolidated Subsidiaries on a consolidated basis in accordance with GAAP consistently appliedapplied (except for changes concurred with by the Borrower's independent public accountants and disclosed in such statements or the notes thereto);
(b) within 45 50 days after the end of each of the first three fiscal quarters of each fiscal year, its consolidated balance sheet sheets and related statements of income, stockholders’ equity earnings and cash flows flow showing the financial condition of the Borrower and its consolidated Subsidiaries 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 Officers, as fairly presenting the financial condition and results of operations of the Borrower and its consolidated Subsidiaries on a consolidated basis in accordance with GAAP consistently appliedapplied (except for changes concurred with by the Borrower's independent public accountants and disclosed in such statements or the notes thereto), subject to normal year-end audit adjustments;
(c) concurrently with any delivery of financial statements under paragraph clause (a), ) or (b) above, (x) a certificate of the accounting firm (firm, in the case of paragraph (a)) , or Financial Officer (Officer, in the case of paragraph (b)) opining on or certifying such statements (which certificate, when furnished by an accounting firm, may be limited referred to accounting matters and disclaim responsibility for legal interpretations and which may be provided by a Financial Officer if accounting firms generally are not providing such certificates) (i) in the applicable paragraph certifying that no Event of Default or Default has occurred or, if such an Event of Default or Default has occurred, specifying the nature and extent thereof and any corrective action taken or proposed to be taken with respect thereto and (iiy) a certificate of a Financial Officer setting forth computations in reasonable detail satisfactory to the Administrative Agent demonstrating compliance with the covenants contained in Sections 6.6, 6.10, 6.11 Section 6.01 (as of the last day of each calendar month included in the relevant fiscal period) and 6.12 stating whether any change in GAAP or in the application thereof (not previously communicated to the Administrative Agent in a certificate pursuant to this subsection) has occurred since the date of the Borrower's audited financial statements referred to in Section 3.05 and, in if any such change has occurred, specifying the case effect of a certificate delivered with such change on 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 accompanying such change, describing such change in reasonable detail and certifying that Holdings is in compliance with Section 6.8certificate;
(d) within 45 15 days after the end of each calendar month, a completed Borrowing Base Certificate calculating and certifying the Borrowing Base as of the last day of such calendar month, signed on behalf of the Borrower by a Financial Officer;
(e) within 30 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 flow as of the end of and for such fiscal year)year and, in a manner consistent with the Information Memorandum, the assumptions used therein) and, promptly when available, any significant revisions of such budget;
(ef) promptly after the same become publicly available, copies of all periodic and other reports, proxy statements and other materials filed by Holdings, the Borrower or any Subsidiary it with the SECSecurities and Exchange Commission, or any Governmental Authority succeeding to any of or all of the functions of said Commission, or with any national securities exchange, or, after the initial Public Equity Offering (disregarding for purposes of this Section 5.4(e) the Net Cash Proceeds dollar threshold contained in the definition of such term), or distributed to its shareholders, as the case may be;
(f) promptly after the receipt thereof by Holdings or the Borrower or any Subsidiary, a copy of any “management letter” received by any such person from its certified public accountants and the management’s response thereto; and
(g) promptlyas soon as reasonably practicable, 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 may reasonably request. Documents required to be delivered pursuant to Section 5.4(a), (b) or (e) (to the extent any such documents are included in materials otherwise filed with the SEC) may be delivered electronically and if so delivered, shall be deemed to have been delivered on the date (i) on which the Borrower posts such documents, or provides a link thereto on the Borrower’s website on the Internet at the Borrower’s website address; or (ii) on which such documents are posted on the Borrower’s behalf on IntraLinks/IntraAgency or another relevant website, if any, to which each Lender and the Administrative Agent have access (whether a commercial, third-party website or whether sponsored by the Administrative Agent).
Appears in 1 contract
Financial Statements, Reports, etc. In the case of the BorrowerEach Seller shall, furnish or, to the Administrative Agent (either physically or through electronic delivery reasonably acceptable extent applicable, shall cause Servicer to, deliver to the Administrative Agent), which shall furnish to each LenderBuyer:
(a) within 90 days after the end of each fiscal year, its consolidated balance sheet and related statements of income, stockholders’ equity and cash flows showing the financial condition of the Borrower and its consolidated Subsidiaries as of the close of such fiscal year and the results of its operations and the operations of such Subsidiaries during such year, together with comparative figures for the immediately preceding fiscal year, all audited by Ernst & Young LLP or other independent public accountants of recognized national standing and accompanied by an opinion of such 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 Borrower and its consolidated Subsidiaries on a consolidated basis in accordance with GAAP consistently appliedMonthly Statement;
(b) as soon as available and in any event within 45 sixty (60) days after the end of each of the first three quarterly fiscal quarters periods of each fiscal yearyear of the relevant Seller, its a status report with respect to such period which describes the cumulative sources and uses of funds for the immediately preceding calendar quarter on each asset sold under this Agreement and a detailed report in a form reasonably satisfactory to Buyer, together with the unaudited, consolidated balance sheet and related statements sheets of income, stockholders’ equity and cash flows showing the financial condition of the Borrower such Seller and its consolidated Subsidiaries as of at the close end of such fiscal quarter period and the results related unaudited, consolidated statements of income and retained earnings and of cash flows of such Seller and its operations consolidated Subsidiaries for such period and the operations of such Subsidiaries during such fiscal quarter and the then elapsed portion of the fiscal yearyear through the end of such period, and setting forth in each case in comparative form the figures for the same periods in the immediately preceding fiscal previous year, all certified accompanied by one a certificate of its Financial Officers as a Responsible Officer of such Seller, which certificate shall state that said consolidated financial statements fairly presenting present the consolidated financial condition and results of operations of the Borrower such Seller and its consolidated Subsidiaries on a consolidated basis in accordance with GAAP GAAP, consistently applied, as at the end of, and for, such period (subject to normal year-end audit adjustments);
(c) concurrently with as soon as available and in any delivery event within ninety (90) days after the end of each fiscal year of the relevant Seller, the consolidated balance sheets of the relevant Seller and its consolidated Subsidiaries as at the end of such fiscal year and the related consolidated statements of income and retained earnings and of cash flows for such Seller and its consolidated Subsidiaries for such year, setting forth in each case in comparative form the figures for the previous year, accompanied by an opinion thereon of independent certified public accountants of recognized national standing, which opinion shall not be qualified as to scope of audit or going concern and shall state that said consolidated financial statements under paragraph (a)fairly present the consolidated financial condition and results of operations of such Seller and its consolidated Subsidiaries as at the end of, or (b) aboveand for, such fiscal year in accordance with GAAP, and a certificate of such accountants stating that, in making the accounting firm (in the case examination necessary for their opinion, they obtained no knowledge, except as specifically stated, of paragraph (a)) any Default or Financial Officer (in the case of paragraph (b)) opining on or certifying such statements (which certificate, when furnished by an accounting firm, may be limited to accounting matters and disclaim responsibility for legal interpretations and which may be provided by a Financial Officer if accounting firms generally are not providing such certificates) (i) certifying that no Event of Default or Default has occurred or, if such an Event of Default or Default has occurred, specifying the nature and extent thereof and any corrective action taken or proposed to be taken with respect thereto and (ii) setting forth computations in reasonable detail satisfactory to the Administrative Agent demonstrating compliance with the covenants contained in Sections 6.6, 6.10, 6.11 and 6.12 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 6.8Default;
(d) within 45 sixty (60) days after following the commencement end of each of the first three calendar quarters in any fiscal year, or within ninety (90) days following the end 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);
(e) promptly after the same become publicly available, copies of all periodic and other reports, proxy statements and other materials filed by Holdings, the Borrower or any Subsidiary with the SEC, or any Governmental Authority succeeding to any or all of the functions of said Commission, or with any national securities exchange, or, after the initial Public Equity Offering (disregarding for purposes of this Section 5.4(e) the Net Cash Proceeds dollar threshold contained in the definition of such term), distributed to its shareholders, as the case may be, a certificate from a Responsible Officer of the relevant Seller in form and substance reasonably satisfactory to Buyer that such Seller during such fiscal period or year has observed or performed all of its covenants and other agreements, and satisfied every condition, contained in this Agreement and the other Transaction Documents to be observed, performed or satisfied by them, and that there has been no Event of Default and no Material Adverse Effect;
(e) within fifteen (15) Business Days after Buyer's request, such further information with respect to the operation of any real property, the Transaction Asset, the financial affairs of the relevant Seller and any Plan and Multiemployer Plan as may be requested by Buyer, including all business plans prepared by or for such Seller; provided, however, that with respect to information not previously known to, or in the possession of, such Seller relating to any Multiemployer Plan, such Seller shall only be required to provide such information as may be obtained through good faith efforts;
(f) promptly after the receipt thereof by Holdings or the Borrower or any Subsidiaryupon Buyer's request, a copy of any “management letter” received by financial or other report the relevant Seller shall receive from any underlying obligor with respect to a Transaction Asset within fifteen (15) days after such person from its certified public accountants and the management’s response theretoSeller's receipt thereof; and
(g) 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, reports as the Administrative Agent or any Lender may Buyer shall reasonably request. Documents required to be delivered pursuant to Section 5.4(a), (b) or (e) (to the extent any such documents are included in materials otherwise filed with the SEC) may be delivered electronically and if so delivered, shall be deemed to have been delivered on the date (i) on which the Borrower posts such documents, or provides a link thereto on the Borrower’s website on the Internet at the Borrower’s website address; or (ii) on which such documents are posted on the Borrower’s behalf on IntraLinks/IntraAgency or another relevant website, if any, to which each Lender and the Administrative Agent have access (whether a commercial, third-party website or whether sponsored by the Administrative Agent)require.
Appears in 1 contract
Financial Statements, Reports, etc. In the case of the Borrower, furnish to the Administrative Agent (either physically or through electronic delivery reasonably acceptable to the Administrative Agent), which shall furnish Furnish to each Lender:holder of a Note (in duplicate):
(a) within as soon as available, and in no event later than 105 days (or 90 days during any time that the Company is subject to the periodic reporting requirements of the Securities Exchange Act of 1934, as amended) after the end of each fiscal year, its the consolidated and consolidating balance sheet sheets and related statements of income, stockholders’ equity income and cash flows flow, showing the consolidated financial condition of the Borrower Company and its consolidated Subsidiaries as of the close of such fiscal year and the results of its their operations and the operations of such Subsidiaries during such year, together with comparative figures for the immediately preceding fiscal year, all audited by Ernst & Young PriceWaterhouseCoopers LLP or other independent public accountants of recognized national standing and accompanied by an opinion of such 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 Borrower Company and its consolidated Subsidiaries on a consolidated basis in accordance with GAAP consistently applied;
(b) within as soon as available, and in no event later than 60 days (or 45 days during any time that the Company 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, its the unaudited consolidated and consolidating balance sheet sheets and related statements of incomeincome and changes in financial position, stockholders’ equity and cash flows showing the consolidated financial condition of the Borrower Company and its consolidated Subsidiaries as of the close of such fiscal quarter and the results of its their 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 a Financial Officer of its Financial Officers the Company as fairly presenting the consolidated financial condition and results of operations of the Borrower Company and its consolidated Subsidiaries on a consolidated basis in accordance with GAAP consistently applied, subject to normal year-end audit adjustmentsadjustments and the absence of footnotes required by GAAP;
(c) concurrently with any delivery of financial statements under paragraph subsection (a), ) or (b) above, a certificate of the accounting firm (in the case of paragraph (a)) or a Financial Officer (in of the case of paragraph (b)) Company opining on or certifying such statements (which certificate, when furnished by an accounting firm, may be limited to accounting matters and disclaim responsibility for legal interpretations and which may be provided by a Financial Officer if accounting firms generally are not providing such certificatesinterpretations) (i) certifying that no Event of Default or Default has occurred during the period covered by such financial statements or, if such an Event of Default or Default has occurred, specifying the nature and extent thereof and any corrective action taken or proposed to be taken with respect thereto and (ii) setting forth computations in reasonable detail satisfactory to the Administrative Agent demonstrating compliance with the covenants contained in Sections 6.67.13, 6.107.14, 6.11 7.15, 7.16 and 6.12 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 6.87.17;
(d) within 45 days after the commencement of each fiscal year of the Borrower, a detailed consolidated budget for such fiscal year (including a projected consolidated balance sheet and related statements of projected operations and cash flows as of the end of and for such fiscal year);
(e) promptly after the same become publicly available, copies of all periodic and other reports, proxy statements and other materials filed by Holdings, the Borrower Company or any Subsidiary of its Subsidiaries with the SECSecurities and Exchange Commission, or any Governmental Authority governmental authority succeeding to any of or all of the functions of said Commission, or with any national securities exchange, oror made generally available to its other security holders, after the initial Public Equity Offering (disregarding for purposes of this Section 5.4(e) the Net Cash Proceeds dollar threshold contained in the definition of such term), or distributed to its shareholders, as the case may be;
(e) a copy of all solicitations or requests for any proposed waiver or amendment of any of the provisions of the Credit Agreement Documents or Subordinated Note Documents (but only if the consent or approval of holders of the Notes is required in connection therewith);
(f) promptly after following the receipt thereof preparation thereof, copies of each management letter prepared by Holdings the Company's, any Guarantor's or TAFSI's auditors (together with any response thereto prepared by the Borrower Company, such Guarantor or any Subsidiary, a copy of any “management letter” received by any such person from its certified public accountants and the management’s response thereto; andTAFSI);
(g) as soon as available, and in any event no later than 105 days after the end of each fiscal year of the Company, 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 Company 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;
(h) upon the earlier of (i) 105 days after the end of each fiscal year of the Company and (ii) the date on which the financial statements with respect to such period are delivered pursuant to subsection (a) above, a certificate of a Financial Officer of the Company setting forth, in reasonable detail, the amount of Excess Cash Flow, if any, for such period;
(i) promptly, from time to time, such other information regarding the operations, business affairs and financial condition of Holdingsthe Company, the Borrower any Guarantor or any SubsidiaryTAFSI, or compliance with the terms of any Loan Financing Document, as such holder may reasonably request;
(j) promptly, a copy of any amendment or waiver of any provisions of any agreement referred to in Section 7.10, any amendment or waiver of any provision of the Administrative Credit Agreement Documents not requiring the consent or approval of holders of the Notes;
(k) promptly, a copy of any notice of a default received by the Company, any Guarantor or TAFSI under any other Financing Document;
(l) promptly, a copy of any notice of default received by the Company, any Guarantor or TAFSI (i) from the Agent or any Lender may reasonably request. Documents under the Credit Agreement or (ii) under the Subordinated Note Indenture; and
(m) 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 Company, any Guarantor or TAFSI (i) to the Agent or any Lender under the Credit Agreement 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 Section 5.4(a), (b) or (e) (to the extent any such documents are included in materials otherwise filed with the SEC) may be delivered electronically and if so delivered, shall be deemed to have been delivered on the date (i) on which the Borrower posts such documents, or provides a link thereto on the Borrower’s website on the Internet at the Borrower’s website address; or (ii) on which such documents are posted on the Borrower’s behalf on IntraLinks/IntraAgency or another relevant website, if any, to which each Lender and the Administrative Agent have access (whether a commercial, third-party website or whether sponsored by the Administrative Agentthis Agreement).
Appears in 1 contract
Samples: Senior Secured Note Exchange Agreement (Travelcenters of America Inc)
Financial Statements, Reports, etc. In the case of the BorrowerBorrower and the Guarantors, furnish deliver to the Administrative Agent (either physically or through electronic delivery reasonably acceptable to and each of the Administrative Agent), which shall furnish to each LenderDIP Lenders:
(a) within 90 days after the end of each fiscal year, its the Borrower's consolidated balance sheet and related statements statement of income, stockholders’ equity income and cash flows flows, showing the financial condition of the Borrower and its Subsidiaries on a consolidated Subsidiaries basis and the Borrower and the Guarantors on a consolidated basis, as of the close of such fiscal year and the results of its their respective operations and the operations of such Subsidiaries during such year, together with comparative figures the consolidated statement of the borrower to be audited for the immediately preceding fiscal year, all audited borrower and its Subsidiaries by Ernst & Young Young, LLP or other independent public accountants of or recognized national standing acceptable to the Required DIP Lenders and accompanied by an opinion of such accountants (which shall not be qualified in any material respectrespect other than with respect to the Cases) and to be certified by a Financial Officer of the Borrower to the effect that such consolidated and financial statements fairly present the financial condition and results of operations of the Borrower and its consolidated Subsidiaries on a consolidated basis in accordance with GAAP consistently applied;
(b) within 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, its the Borrower's consolidated balance sheet sheets and related statements of income, stockholders’ equity income and cash flows flows, showing the financial condition of the Borrower and its Subsidiaries on a consolidated Subsidiaries basis and the Borrower and the Guarantors on a consolidated basis, in each case as of the close of such fiscal quarter and the results of its their 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 each certified by one of its a Financial Officers Officer as fairly presenting the financial condition and results of operations of the Borrower and its consolidated Subsidiaries on a consolidated basis in accordance with GAAP consistently applied, subject to normal year-end audit adjustments;
(c) concurrently with any delivery of financial statements under paragraph (a), ) or (b) aboveabove as applicable, (i) a certificate of the accounting firm (in the case of paragraph (a)) or a Financial Officer (in A) certifying the case accuracy of paragraph such statements, (b)) opining on or certifying such statements (which certificate, when furnished by an accounting firm, may be limited to accounting matters and disclaim responsibility for legal interpretations and which may be provided by a Financial Officer if accounting firms generally are not providing such certificates) (iB) certifying that no Event of Default or event that upon notice or lapse of time or both would constitute an Event of Default has occurred occurred, or, if such an Event of Default or Default event has occurred, specifying the nature and extent thereof and any corrective action taken or proposed to be taken with respect thereto and (iiC) setting forth computations in reasonable detail satisfactory to the Administrative Agent demonstrating compliance with the covenants contained in provisions of Sections 6.6, 6.10, 6.11 6.04 and 6.12 and6.05 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 the case course of a certificate delivered with the financial statements required by paragraph (a) aboveregular audit of the business of the Borrower and its Subsidiaries, (x) setting forth the Borrower’s calculation such accountants have obtained no knowledge that an Event of Excess Cash Flow Default has occurred and (y) certifying that there has been no change its continuing, or if, in the business activitiesopinion of such accountants, assets or liabilities an Event of HoldingsDefault has occurred and is continuing, or if there has been any such change, describing such change in reasonable detail specifying the nature thereof and certifying that Holdings is in compliance all relevant facts with Section 6.8respect thereto;
(d) within as soon as available, but no more than 45 days after the commencement end of each fiscal year month, the unaudited monthly cash flow reports of the Borrower, Borrower and the Subsidiaries on a detailed consolidated budget for such fiscal year (including basis and the Borrower and the Guarantors on a projected consolidated balance sheet and related statements of projected operations and cash flows basis as of the end close of and for such fiscal month and the results of their operations during such fiscal period and the then elapsed portion of the fiscal year), all certified by a Financial Officer as fairly presenting the results of operations of the Borrower and the Subsidiaries on a consolidated basis, subject to normal year-end audit adjustments;
(e) on the first Business Day of each week, a statement of projected cash receipts and cash disbursements for each week in the period of sixteen continuous weeks commencing with the immediately following week, in a form reasonably satisfactory to the Agent;
(f) concurrently with any delivery of financial statements under (b) above, monthly financial projections for the following six fiscal month period;
(g) as soon as possible, and in any event within 45 days of the Closing Date, a consolidated pro forma statement of (i) the Borrower's and the Subsidiaries' and (ii) the Borrower's and the Guarantor's financial condition as of the Petition Date;
(h) concurrently with any delivery of financial statements under (b) above, updates of the forecast delivered to the Agent pursuant to Section 4.01(i), satisfactory in form and substance to the Agent;
(i) promptly after the same become publicly available, copies of all periodic and other reports, proxy statements and other materials filed by Holdings, the Borrower or any Subsidiary it with the SECSecurities and Exchange Commission, or any Governmental Authority governmental authority succeeding to any of or all of the functions of said Commissioncommission, or with any national securities exchange, or, after the initial Public Equity Offering (disregarding for purposes of this Section 5.4(e) the Net Cash Proceeds dollar threshold contained in the definition of such term), distributed to its shareholders, as the case may be;
(fj) promptly as soon as available and in any event (A) within 30 days after the receipt thereof by Holdings or the Borrower or any Subsidiaryof 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 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 10 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 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 “management letter” 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) 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 such person from its certified public accountants and ERISA Affiliate concerning (A) the management’s response thereto; andimposition 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;
(go) promptly, from time to time, such other information regarding the operations, business affairs and financial condition of Holdings, the Borrower or any SubsidiaryGuarantor, or compliance with the terms of any Loan Document, material loan or financing agreements as the Administrative Agent or Agent, at the request of any Lender DIP Lender, may reasonably request. Documents required to be delivered pursuant to Section 5.4(a), ; and
(bp) or (e) (furnish to the extent Agent and its counsel promptly after the same is available, copies of all pleadings, motions, applications, judicial information, financial information and other documents filed by or on behalf of the Borrower or any such documents are included in materials otherwise filed of the Guarantors with the SEC) may be delivered electronically and if so deliveredBankruptcy Court in the Cases, shall be deemed to have been delivered or distributed by or on the date (i) on which behalf of the Borrower posts such documents, or provides a link thereto on any of the Borrower’s website on Guarantors to any official committee appointed in the Internet at the Borrower’s website address; or (ii) on which such documents are posted on the Borrower’s behalf on IntraLinks/IntraAgency or another relevant website, if any, to which each Lender and the Administrative Agent have access (whether a commercial, third-party website or whether sponsored by the Administrative Agent)Cases.
Appears in 1 contract
Samples: Revolving Credit and Guaranty Agreement (Laroche Industries Inc)
Financial Statements, Reports, etc. In the case of the Borrower, furnish to the Administrative Agent (either physically or through electronic delivery reasonably acceptable Furnish to the Administrative Agent), which shall furnish who will make it available to each Lender:
(a) within 90 days after the end of each fiscal yearyear of Parent, its audited consolidated balance sheet and related statements of income, changes in members' or stockholders’ equity ' equity, as applicable, and cash flows showing the financial condition of the Borrower Parent and its consolidated Subsidiaries as of the close of such fiscal year and the results of its operations and the operations of such Subsidiaries during such year, together with comparative figures for the immediately preceding fiscal year, all audited reported on by Ernst Deloitte & Young LLP Touche, LLP, or other independent public accountants of recognized national standing and accompanied by an opinion of such accountants (which opinion shall not be qualified 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 Borrower Parent and its consolidated Subsidiaries on a consolidated basis in accordance with GAAP consistently appliedGAAP;
(b) within 45 days after the end of each of the first three fiscal quarters of each fiscal yearyear of Parent, its consolidated balance sheet and related statements of income, changes in members' or stockholders’ equity ' equity, as applicable, and cash flows showing the financial condition of the Borrower Parent 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 a Financial Officer of its Financial Officers Parent as fairly presenting the financial condition and results of operations of the Borrower Parent and its consolidated Subsidiaries on a consolidated basis in accordance with GAAP consistently appliedGAAP, subject to normal year-end audit adjustmentsadjustments and the absence of footnotes;
(c) within 15 days after the date that such annual and quarterly financial statements of each HMO Subsidiary are required to be filed with any HMO Regulator, such annual and quarterly financial statements prepared in accordance with SAP;
(d) concurrently with any delivery of financial statements under paragraph clause (a), ) or (b) aboveof this Section, a certificate of the accounting firm (in the case of paragraph clause (a)) or a Financial Officer of Parent (in the case of paragraph clause (b)) opining on or certifying such statements (which certificate, when furnished by an accounting firm, may be limited to accounting matters and disclaim responsibility for legal interpretations and which may be provided by a Financial Officer if accounting firms generally are not providing such certificates) interpretations)
(i) certifying that no Default or Event of Default or Default has occurred or, if such a Default or an Event of Default or Default has occurred, specifying the nature and extent thereof and any corrective action taken or proposed to be taken with respect thereto and (ii) setting forth computations in reasonable detail satisfactory to the Administrative Agent demonstrating compliance with the covenants contained in Sections 6.6, 6.10, 6.11 and 6.12 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 6.86.12;
(de) within 45 30 days after the commencement end of each fiscal year of the BorrowerParent, a detailed an annual consolidated budget for such the succeeding 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 succeeding fiscal year)year and each quarter thereof and setting forth the assumptions used for purposes of preparing such budget) and, promptly when available, any significant revisions of such budget;
(ef) promptly after the same become publicly available, copies of all periodic and other reports, proxy statements and other materials filed by Holdings, the Borrower Parent or any Subsidiary with the SECSecurities and Exchange Commission, or any Governmental Authority succeeding to any or all of the functions of said Commission, or with any national securities exchange, or, after the initial Public Equity Offering (disregarding for purposes of this Section 5.4(e) the Net Cash Proceeds dollar threshold contained in the definition of such term), or distributed to its shareholders, as the case may be;
(fg) promptly after the receipt thereof by Holdings or the Borrower Parent or any Subsidiary, a copy of any “"management letter” " in final form received by any such person from its certified public accountants and and, promptly upon completion thereof, the management’s 's written response thereto;
(h) promptly after the same becomes available, and in any event within 120 days after the end of each fiscal year of Parent, a schedule setting forth in reasonable detail the reinsurance arrangements maintained by each HMO Subsidiary as of the end of such fiscal year (with any changes subsequent to the end of such fiscal described therein);
(i) 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
(gj) promptly, from time to time, such other information regarding the operations, business affairs and financial condition of Holdings, the Borrower Parent 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 5.4(a), (b) or (e) (to the extent any such documents are included in materials otherwise filed with the SEC) may be delivered electronically and if so delivered, shall be deemed to have been delivered on the date (i) on which the Borrower posts such documents, or provides a link thereto on the Borrower’s website on the Internet at the Borrower’s website address; or (ii) on which such documents are posted on the Borrower’s behalf on IntraLinks/IntraAgency or another relevant website, if any, to which each Lender and the Administrative Agent have access (whether a commercial, third-party website or whether sponsored by the Administrative Agent).
Appears in 1 contract
Financial Statements, Reports, etc. In the case of the Borrower, furnish Furnish to the Administrative Agent (either physically or through electronic delivery reasonably acceptable to the Administrative Agent), which shall furnish to each LenderBank:
(a) as soon as available, but in any event within 90 120 days after the end of each fiscal yearyear of the Company, its a copy of Company's Form 10K, as filed with the Securities and Exchange Commission, including the audited consolidated and consolidating balance sheet of the Company and its Subsidiaries as of the end of such year and the related audited consolidated statements of income, stockholders’ shareholders equity and cash flows showing the financial condition of the Borrower and its consolidated Subsidiaries as of the close of such fiscal year and the results of its operations and the operations of such Subsidiaries during flow for such year, together with comparative figures for the immediately preceding fiscal year, all audited by Ernst & Young LLP or other independent public accountants of recognized national standing and accompanied by an opinion of such 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 Borrower and its consolidated Subsidiaries on a consolidated basis in accordance with GAAP consistently applied;
(b) within 45 days after the end of each of the first three fiscal quarters of each fiscal year, its consolidated balance sheet and related statements of income, stockholders’ equity and 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 Borrower and its consolidated Subsidiaries on a consolidated basis in accordance with GAAP consistently applied, subject to normal year-end audit adjustments;
(c) concurrently with any delivery of financial statements under paragraph (a), or (b) above, a certificate of the accounting firm (in the case of paragraph (a)) or Financial Officer (in the case of paragraph (b)) opining on or certifying such statements (which certificate, when furnished by an accounting firm, may be limited to accounting matters and disclaim responsibility for legal interpretations and which may be provided by a Financial Officer if accounting firms generally are not providing such certificates) (i) certifying that no Event of Default or Default has occurred or, if such an Event of Default or Default has occurred, specifying the nature and extent thereof and any corrective action taken or proposed to be taken with respect thereto and (ii) setting forth computations in reasonable detail satisfactory to each case in comparative form the Administrative Agent demonstrating compliance with the covenants contained in Sections 6.6, 6.10, 6.11 and 6.12 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 6.8;
(d) within 45 days after the commencement of each fiscal year of the Borrower, a detailed consolidated budget for such fiscal year (including a projected consolidated balance sheet and related statements of projected operations and cash flows respective figures as of the end of and for such the previous fiscal year, and accompanied by a report thereon of Grant Thornton LLP or other independent certified public accountantx xx xxxxxxxxxd standing selected by the Company and satisfactory to the Bank (the "Auditor"), which report shall be unqualified, setting forth in comparative form the respective figures as of the end of and for the previous fiscal year and which support the financial statements delivered pursuant to clause (i), in each case of (i) and (ii) prepared in accordance with Generally Accepted Accounting Principles, applied on a consistent basis, and with respect to the statements referred to in clause (ii) accompanied by a certificate to that effect executed by the Chief Financial Officer;
(eb) promptly as soon as available, but in any event not later than 60 days after the same become publicly availableend of each quarterly period of each fiscal year of the Company, copies a copy of the Company's Form 10Q, as filed with the Securities and Exchange Commission, including the unaudited interim consolidated and consolidating balance sheet of the Company and its Subsidiaries as of the end of each such quarter and the related unaudited interim consolidated and consolidating statements of income, shareholders equity and cash flow for such quarter and the portion of the fiscal year through such date and setting forth in each case in comparative form the respective figures for the corresponding date and period in the previous fiscal year, in each case prepared by the Chief Financial Officer in accordance with Generally Accepted Accounting Principles, applied on a consistent basis, and accompanied by a certificate to that effect executed by the Chief Financial Officer;
(c) a certificate prepared and signed by the Auditor with each delivery required by clause (a), and a certificate prepared and signed by the Chief Financial Officer with each delivery required by (a) and (b), as to whether or not, as of the close of such preceding period and at all periodic and other reports, proxy statements and other materials filed by Holdingstimes during such preceding period, the Borrower Company or any Subsidiary with the SEC, or any Governmental Authority succeeding to any or all each of the functions of said Commission, or with any national securities exchange, or, after the initial Public Equity Offering (disregarding for purposes of this Section 5.4(e) the Net Cash Proceeds dollar threshold contained in the definition of such term), distributed to its shareholdersSubsidiaries, as the case may be, was in compliance with all the provisions in this Agreement, showing computation of financial covenants and quantitative negative covenants, and if the Auditor or Chief Financial Officer, as the case may be, shall have obtained knowledge of any default in such compliance or notice of such default, it shall disclose in such certificate such default or defaults or notice thereof and the nature thereof, whether or not the same shall constitute a Default or an Event of Default hereunder;
(d) at all times indicated in clause (a) above a copy of the management letter, if any, prepared by the Auditor;
(e) as soon as available, and in any event within twenty (20) days of the end of each fiscal quarter, accounts receivable agings summaries of the Company, provided that in the event that the outstanding principal balance of the Revolving Credit Loans equals or exceed $4,000,000 at any time, the Company shall provide to the Bank monthly accounts receivables agings summaries, along with a monthly Borrowing Base Certificate, within twenty (20) days of month end;
(f) promptly after filing thereof, copies of all regular and periodic financial information, proxy materials and other information and reports which the receipt thereof by Holdings or the Borrower Company or any Subsidiaryof its Subsidiaries shall file with the Securities and Exchange Commission;
(g) promptly after submission to any government or regulatory agency, a copy 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 “management letter” received materially adverse action to be taken by any such person from its certified public accountants and the management’s response theretoagency; and
(gh) promptly, from time to time, such other information regarding the operations, business affairs and condition (financial condition or otherwise) of Holdings, the Borrower Company or any Subsidiary, or compliance with the terms of any Loan Document, its Subsidiaries as the Administrative Agent or any Lender Bank may reasonably request. Documents required to be delivered pursuant to Section 5.4(a), (b) or (e) (to the extent any such documents are included in materials otherwise filed with the SEC) may be delivered electronically and if so delivered, shall be deemed to have been delivered on the date (i) on which the Borrower posts such documents, or provides a link thereto on the Borrower’s website on the Internet at the Borrower’s website address; or (ii) on which such documents are posted on the Borrower’s behalf on IntraLinks/IntraAgency or another relevant website, if any, to which each Lender and the Administrative Agent have access (whether a commercial, third-party website or whether sponsored by the Administrative Agent).
Appears in 1 contract
Samples: Credit Agreement (Vasomedical Inc)
Financial Statements, Reports, etc. In the case of the Borrower, furnish to the Administrative Agent (either physically or through electronic delivery reasonably acceptable to the Administrative Agent), which shall promptly furnish to each Lender:
(a) within 90 days after the end of each fiscal year, its consolidated and consolidating balance sheet and related statements of income, stockholders’ equity and cash flows showing the financial condition of the Borrower and its consolidated Subsidiaries as of the close of such fiscal year and the results of its operations and the operations of such Subsidiaries during such year, together with comparative figures for the immediately preceding fiscal year, all audited by Ernst & Young LLP or other independent public accountants of recognized national standing and accompanied by an opinion of such accountants (which opinion shall not be qualified 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 Borrower and its consolidated Subsidiaries on a consolidated and consolidating basis in accordance with GAAP consistently applied;
(b) within 45 days after the end of each of the first three fiscal quarters of each fiscal year, its consolidated and consolidating balance sheet and related statements of income, stockholders’ equity and 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 together with comparative figures for the same periods in the immediately preceding fiscal year, all certified by one of its the Financial Officers of the Borrower as fairly presenting the financial condition and results of operations of the Borrower and its consolidated Subsidiaries on a consolidated basis in accordance with GAAP consistently applied, subject to normal year-end audit adjustments;
(c) concurrently with any delivery of financial statements under paragraph (a), ) or (b) above, (i) a certificate of the accounting firm (in the case of paragraph (a)) (to the extent that the accounting firm is willing to provide such certificate in accordance with its customary business practice) or Financial Officer (in the case of paragraph (b)) opining on or certifying such statements (which certificate, when furnished by an accounting firm, may be limited to accounting matters and disclaim responsibility for legal interpretations and which may be provided by a Financial Officer if accounting firms generally are not providing such certificatesinterpretations) (i) certifying that no Event of Default or Default has occurred or, if such an Event of Default or Default has occurred, specifying the nature and extent thereof and any corrective action taken or proposed to be taken with respect thereto and thereto, (ii) a Qualified Appraisal Update that provides an Appraised Value of the then existing Mortgaged Properties effective as of the last day of such fiscal year or quarter, as applicable, together with a certificate of a Financial Officer demonstrating compliance with the covenant contained in Section 6.11 and setting forth computations such computation in reasonable detail satisfactory to the Administrative Agent demonstrating compliance with the covenants contained in Sections 6.6Agent, 6.10, 6.11 and 6.12 and, (iii) 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 (yiv) certifying that there has been no change in a narrative report describing the business activitiesoperations of the Borrower and its Subsidiaries taken as a whole, assets for such fiscal year or liabilities fiscal quarter, as applicable, which report shall include a summary describing material changes to the status, as of Holdingsthe end of such fiscal year or fiscal quarter, or if there has been any such changeas applicable, describing such change in reasonable detail of Entitlements and certifying that Holdings is in compliance with Section 6.8other Governmental Authorizations related to the Tropicana Las Vegas Property;
(d) within 45 90 days after the commencement beginning of each fiscal year of the Borrower, a detailed consolidated budget projection for such fiscal year (including a projected consolidated balance sheet showing revenue, EBITDA, capital expenditures for maintenance and related statements of projected operations and cash flows as of the end of and capital expenditures for expansion, each for such fiscal year)period) and, promptly when available, any significant revisions of such projections;
(e) promptly after the same become publicly available, copies of all periodic and other reports, proxy statements and other materials filed by Holdings, the Borrower or any Subsidiary with the SECSecurities and Exchange Commission, or any Governmental Authority succeeding to any or all of the functions of said Commission, or with any national securities exchange, or, after the initial Public Equity Offering (disregarding for purposes of this Section 5.4(e) the Net Cash Proceeds dollar threshold contained in the definition of such term), or distributed to its shareholders, as the case may be;
(f) promptly after the receipt thereof by Holdings or Holdings, the Borrower or any Subsidiaryof their respective subsidiaries, a copy of any final “management letter” received by any such person from its certified public accountants relating to any deficiency or weakness in accounting practices or in reported results of Holdings, the Borrower or any Subsidiary and the management’s response theretothereto to the extent such accountants are willing to provide such letters;
(g) promptly after request by the Administrative Agent, copies of the Nevada “Regulation 6.090 Report” and “6-A Report” (until the effective date of the repeal of Regulation 6-A), copies of any other report required by any Gaming Authority, and copies of any written communication to Holdings, the Borrower or the Subsidiaries from any Gaming Authority advising it of a violation of, or non-compliance with, any Gaming Law by Holdings, the Borrower or the Subsidiaries where such violation or non-compliance could reasonably be expected to result in fines in excess of $100,000 or a License Revocation;
(h) promptly after the request by the Administrative Agent on its own behalf or on behalf of 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;
(i) In the event that the Borrower or any of its ERISA Affiliates intend to establish, sponsor, maintain or contribute or have any obligation or liability with respect to any Plan subject to Title IV of ERISA, Borrower shall promptly, and in any event within 10 Business Days prior to establishing, sponsoring, maintaining or contributing, as applicable, to such a Plan, inform the Administrative Agent of such intention. Neither the Borrower nor any of its ERISA Affiliates will establish, sponsor, maintain or contribute to any Plan that would result in any obligation or liability that would result in, or could reasonably be expected to result in, a Material Adverse Effect;
(j) promptly following any request by the Administrative Agent on its own behalf or on behalf of a Lender, on and after the effectiveness 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 Plan or Multiemployer Plan; provided that if the Borrower or any of its ERISA Affiliates have not requested such documents or notices from the administrator or sponsor of the applicable Plan or Multiemployer Plan, the Borrower or its ERISA Affiliates shall promptly make a request for such documents or notices from the such administrator or sponsor and shall provide copies of such documents and notices promptly after receipt thereof; and
(gk) promptly, from time to time, after reasonable notice is given, 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 may request on its own behalf or on behalf of any Lender may reasonably request. Documents required to be delivered pursuant to Section 5.4(a), (b) or (e) (to the extent any such documents are included in materials otherwise filed with the SEC) may be delivered electronically and if so delivered, shall be deemed to have been delivered on the date (i) on which the Borrower posts such documents, or provides a link thereto on the Borrower’s website on the Internet at the Borrower’s website address; or (ii) on which such documents are posted on the Borrower’s behalf on IntraLinks/IntraAgency or another relevant website, if any, to which each Lender and the Administrative Agent have access (whether a commercial, third-party website or whether sponsored by the Administrative Agent)Lender.
Appears in 1 contract
Samples: Credit Agreement (St Louis Riverboat Entertainment Inc)
Financial Statements, Reports, etc. In the case of the BorrowerBorrowers, furnish to the Administrative Agent (either physically or through electronic delivery reasonably acceptable to the Administrative Agent), which shall furnish to and each Lender:
(a) within 90 days after the end of each fiscal year, its the consolidated and consolidating balance sheet and related statements of income, stockholders’ ' equity and cash flows showing the financial condition of the Borrower Activision Holdings and its consolidated Subsidiaries as of the close of such fiscal year and the results of its operations and the operations of such Subsidiaries during such year, together with comparative figures for and the immediately preceding balance sheet and related statement of income, stockholders' equity and cash flows showing the financial condition of Kaboom as of the close of such fiscal year and the results of its operations during such year, all . The consolidated financial statements shall be audited by Ernst & Young LLP PriceWatershouseCoopers or other independent public accountants of recognized national standing and accompanied by an opinion of such 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 Borrower Activision Holdings and its consolidated Subsidiaries on a consolidated basis basis, or of Kaboom, as the case may be, in accordance with GAAP consistently appliedGAAP. In addition, Development Costs and the amortization of Development Costs for such year shall be identified explicitly in the audited financial statements or in the notes thereto;
(b) within 45 days after the end of each of the first three fiscal quarters quarter of each fiscal year, its the consolidated and consolidating balance sheet and related statements of income, stockholders’ ' equity and cash flows showing the financial condition of the Borrower Activision Holdings and its consolidated Subsidiaries Subsidiaries, and of the Loan Parties, 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 balance sheet and related statement of income, stockholders' equity and cash flows showing the financial condition of Kaboom as of the close of such fiscal quarter and the results of its operations during such fiscal quarter and the then elapsed portion of the fiscal year, each certified by a Financial Officer of Activision Holdings or Kaboom, as the case may be, as fairly presenting the financial condition and results of operations of the Loan Parties and Activision Holdings and its consolidated Subsidiaries, or of Kaboom, as the case may be, in accordance with GAAP, subject to normal year-end audit adjustments;
(c) within 20 days after the immediately preceding end of each month, the consolidated and consolidating balance sheet and related statements of income, stockholder's equity and cash flows showing the financial condition of the Loan Parties and of Activision Holdings and its consolidated Subsidiaries as of the close of such fiscal month and the results of its operations and the operations of such Subsidiaries and of the Loan Parties during such fiscal month 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 Borrower Loan Parties and of Activision Holdings and its consolidated Subsidiaries on a consolidated basis in accordance with GAAP consistently appliedGAAP, subject to normal year-end audit adjustments;
(cd) concurrently with the delivery of financial statements under paragraph (b) above, a report in reasonable detail of amounts accrued and paid during such quarter for royalties and fees under license, distribution or development agreements, in a form reasonably satisfactory to the Administrative Agent.
(e) concurrently with any delivery of financial statements under paragraph (a), ) or (b) above, a certificate of the accounting firm (in the case of paragraph (a)) or Financial Officer (in the case of paragraph (b)) opining on or certifying such statements (which certificate, when furnished by an accounting firm, may be limited to accounting matters and disclaim responsibility for legal interpretations and which may be provided by a Financial Officer if accounting firms generally are not providing such certificatesinterpretations) (i) certifying that no Event of Default or Default has occurred or, if such an Event of Default or Default has occurred, specifying the nature and extent thereof and any corrective action taken or proposed to be taken with respect thereto and (ii) setting forth computations in reasonable detail satisfactory to the Administrative Agent demonstrating compliance with the covenants contained in Sections 6.66.09, 6.10, 6.11 and 6.12 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 6.86.13;
(df) within 45 90 days after the commencement of each fiscal year of the BorrowerRestructure Date, a detailed consolidated budget for such fiscal year (including a projected consolidated balance sheet an inventory appraisal, from an appraiser acceptable to the Administrative Agent and related statements of projected operations in form and cash flows as of substance satisfactory to the end of and for such fiscal year)Administrative Agent;
(eg) promptly after the same become publicly available, copies of all periodic and other reports, proxy statements and other materials filed by Holdings, the Borrower Activision Holdings or any Subsidiary with the SECSecurities and Exchange Commission, or any Governmental Authority succeeding to any or all of the functions of said Commission, or with any national securities exchange, or, after the initial Public Equity Offering (disregarding for purposes of this Section 5.4(e) the Net Cash Proceeds dollar threshold contained in the definition of such term), or distributed to its shareholders, as the case may be;
(fh) promptly after the receipt thereof by Holdings or the any Borrower or any Subsidiaryof its Subsidiaries, a copy of any “"management letter” " (whether in draft or final form) received by any such person from its certified public accountants and the management’s response 's responses thereto; and
(gi) each year, at the time of delivery of annual financial statements with respect to the preceding fiscal year pursuant to clause (a) above, the Borrowers shall deliver to the Administrative Agent a certificate of a Financial Officer of the Borrowers (i) setting forth the information required pursuant to Sections 1-4, 6 and 9 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 (ii) certifying that all Uniform Commercial Code financing statements (including fixture filings, as applicable) or other appropriate filings, recordings or registrations, including all refilings, rerecordings and reregistrations, containing a description of the Collateral have been filed of record in each governmental, municipal or other appropriate office in each jurisdiction identified pursuant to clause (i) above to the extent necessary to protect and perfect the security interests under the Security Documents for a period of not less than 18 months after the date of such certificate (except as noted therein with respect to any continuation statements to be filed within such period).
(j) on or before the fifteenth (15th) day of each month as and for the prior month (a) a Schedule of Receivables, (b) a Schedule of Payables and (c) Inventory reports; provided, however, that during the period from September 1 to December 1 of each year, the foregoing information shall be provided on each Thursday as and for the prior Week; and (d) a schedule, in form and substance satisfactory to the Administrative Agent, of all Convertible Subordinated Notes converted to common stock, and all repurchases or redemptions of Convertible Subordinated Notes and common stock during such month and cumulatively. In addition, the Borrowers will deliver to the Administrative Agent at least once every two weeks (or more frequently at the option of the Borrowers) or as the Administrative Agent may require, (i) confirmatory assignment schedules, (ii) remittance schedules and (iii) schedules of credits to Receivables, each certified as complete and correct by a Financial Officer of the Borrowers. Borrowers shall also deliver to the Administrative Agent at such intervals as the Administrative Agent may require: (i) copies of Customer invoices (ii) evidence of shipment or delivery and (iii) such further schedules, documents and/or information regarding the Collateral as the Administrative Agent may require including, without limitation, trial balances and test verifications. The Administrative Agent shall have the right to confirm and verify all Receivables by any manner and through any medium it considers advisable and do whatever it may deem reasonably necessary to protect its interests hereunder. The items to be provided under this Section are to be in form reasonably satisfactory to the Administrative Agent and executed by the Borrowers and delivered to the Administrative Agent from time to time solely for the Administrative Agent's convenience in maintaining records of the Collateral, and any Borrower's failure to deliver any of such items to the Administrative Agent shall not affect, terminate, modify or otherwise limit the Collateral Agent's Lien with respect to the Collateral.
(k) no later than forty-five (45) days after the beginning of each fiscal year commencing with the fiscal year ending March 31, 2001, a month by month projected operating budget and cash flow of Activision Holdings and of the Loan Parties for such fiscal year (including an income statement for each month and a balance sheet as at the end of the last month in each fiscal quarter), such projections to be accompanied by a certificate signed by a Financial Officer of the Borrowers to the effect that such projections have been prepared on the basis of sound financial planning practice consistent with past budgets and financial statements and that such officer has no reason to question the reasonableness of any material assumptions on which such projections were prepared; provided that Borrowers will deliver a preliminary projected operating budget and cash flow for the fiscal year ending March 31, 2003 by April 1, 2002. In addition, concurrently with the delivery of the financial statements referred to in clauses (a), (b) and (c) above the Borrowers will deliver a written report summarizing all material variances from the budgets submitted by the Borrowers and a discussion and analysis by management with respect to such variances.
(l) promptly, from time to time, such other information regarding the operations, business affairs and financial condition of Holdings, the Borrower Borrowers 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 5.4(a), (b) or (e) (to the extent any such documents are included in materials otherwise filed with the SEC) may be delivered electronically and if so delivered, shall be deemed to have been delivered on the date (i) on which the Borrower posts such documents, or provides a link thereto on the Borrower’s website on the Internet at the Borrower’s website address; or (ii) on which such documents are posted on the Borrower’s behalf on IntraLinks/IntraAgency or another relevant website, if any, to which each Lender and the Administrative Agent have access (whether a commercial, third-party website or whether sponsored by the Administrative Agent).
Appears in 1 contract
Financial Statements, Reports, etc. In the case Biomune shall maintain proper books of the Borrower, furnish accounts and records and shall deliver to the Administrative Agent (either physically or through electronic delivery reasonably acceptable to the Administrative Agent), which shall furnish to each LenderDonlar:
(a) as soon as available and in any event within 90 days after the end of each fiscal yearyear of Biomune, its consolidated a copy of the annual audit report for such year for Biomune including therein a balance sheet and related statements of income, stockholders’ equity and cash flows showing the financial condition of the Borrower and its consolidated Subsidiaries Biomune as of the close end of such fiscal year and the results statements of its operations income, retained earnings and the operations of changes in financial position of Biomune for such Subsidiaries during such year, together with comparative figures for the immediately preceding fiscal year, all audited prepared in accordance with GAAP by Ernst & Young LLP or other a firm of independent public accountants of recognized national standing selected by Donlar and accompanied by an opinion of such 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 Borrower and its consolidated Subsidiaries on a consolidated basis in accordance with GAAP consistently appliedaccounting firm;
(b) as soon as available and in any event within 45 days after the end of each of the first three fiscal quarters of quarter in each fiscal year, its consolidated year of Biomune a balance sheet of Biomune and related the statements of income, stockholders’ equity income and cash flows showing the financial condition of the Borrower and its consolidated Subsidiaries retained earnings as of the close end of such fiscal quarter, and of changes in financial position of Biomune for such quarter and for the results period commencing at the end of its operations the previous fiscal year and ending with the operations end of such Subsidiaries during such fiscal quarter and the then elapsed portion of the fiscal yearquarter, 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 Borrower and its consolidated Subsidiaries on a consolidated basis unaudited but prepared in accordance with GAAP consistently applied, subject to normal year-end audit adjustmentsadjustments and as otherwise permitted by Form 10-QSB of the SEC and certified by the Chief Executive Officer or Chief Financial Officer of Biomune, in each case with comparative statements for the corresponding period in the prior fiscal year;
(c) concurrently promptly following receipt by Biomune, each audit response letter, accountant's management letter and other written report submitted to Biomune by its independent public accountants in connection with any delivery of financial statements under paragraph (a), an annual or (b) above, a certificate interim audit of the accounting firm (in the case books of paragraph (a)) or Financial Officer (in the case of paragraph (b)) opining on or certifying such statements (which certificate, when furnished by an accounting firm, may be limited to accounting matters and disclaim responsibility for legal interpretations and which may be provided by a Financial Officer if accounting firms generally are not providing such certificates) (i) certifying that no Event of Default or Default has occurred or, if such an Event of Default or Default has occurred, specifying the nature and extent thereof and any corrective action taken or proposed to be taken with respect thereto and (ii) setting forth computations in reasonable detail satisfactory to the Administrative Agent demonstrating compliance with the covenants contained in Sections 6.6, 6.10, 6.11 and 6.12 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 6.8Biomune;
(d) within 45 days promptly after the commencement thereof, notice of each fiscal year all actions, suits, claims, proceedings, investigations and inquiries 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)type described in Section 2.12 that could Materially Adverse Affect Biomune;
(e) promptly after upon sending, making available or filing the same become publicly availablesame, copies of all periodic press releases, reports and other reports, proxy financial statements and other materials filed by Holdings, the Borrower that Biomune sends or any Subsidiary with the SEC, or any Governmental Authority succeeding to any or all of the functions of said Commission, or with any national securities exchange, or, after the initial Public Equity Offering (disregarding for purposes of this Section 5.4(e) the Net Cash Proceeds dollar threshold contained in the definition of such term), distributed makes available to its shareholders, as the case may be;
(f) promptly after the receipt thereof by Holdings or the Borrower or any Subsidiary, a copy of any “management letter” received by any such person from its certified public accountants and the management’s response theretoshareholders generally; and
(gf) promptly, from time to time, such other information regarding the business, prospects, financial condition, operations, business property or affairs and financial condition of Holdings, the Borrower or any Subsidiary, or compliance with the terms of any Loan Document, Biomune as the Administrative Agent or any Lender Donlar reasonably may reasonably request. Documents required to be delivered pursuant to Section 5.4(a), (b) or (e) (to the extent any such documents are included in materials otherwise filed with the SEC) may be delivered electronically and if so delivered, shall be deemed to have been delivered on the date (i) on which the Borrower posts such documents, or provides a link thereto on the Borrower’s website on the Internet at the Borrower’s website address; or (ii) on which such documents are posted on the Borrower’s behalf on IntraLinks/IntraAgency or another relevant website, if any, to which each Lender and the Administrative Agent have access (whether a commercial, third-party website or whether sponsored by the Administrative Agent).
Appears in 1 contract
Financial Statements, Reports, etc. In the case of the Borrower, furnish to the Administrative Agent (either physically or through electronic delivery reasonably acceptable to the Administrative Agent), which shall furnish to and each Lender:
(a) within 90 days after the end of each fiscal yearyear (or, by June 30, 2005, in the case of the fiscal year ended December 31, 2004), its consolidated balance sheet and related statements of income, stockholders’ equity and cash flows showing the financial condition of the Borrower and its consolidated Subsidiaries as of the close of such fiscal year and the results of its operations and the operations of such Subsidiaries during such year, together with comparative figures for the immediately preceding fiscal year, all audited by Ernst & Young LLP Xxxxx Xxxxxxxx L.L.P. or other independent public accountants of recognized national standing and accompanied by an opinion of such 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 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;
(b) within 45 days after the end of each of the first three fiscal quarters of each fiscal year, its consolidated balance sheet and related statements of income, stockholders’ equity and 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 Borrower and its consolidated Subsidiaries on a consolidated basis in accordance with GAAP consistently applied, subject to normal year-end audit adjustmentsadjustments and the absence of footnotes;
(c) concurrently with any delivery of financial statements under paragraph (a), ) or (b) above, a certificate of the accounting firm (in the case of paragraph (a)) or Financial Officer (in the case of paragraph (b)) opining on or certifying such statements (which certificate, when furnished by an accounting firm, may be limited to accounting matters and disclaim responsibility for legal interpretations and which may be provided by a Financial Officer if accounting firms generally are not providing such certificatesinterpretations) (i) certifying that no Event of Default or Default has occurred or, if such an Event of Default or Default has occurred, specifying the nature and extent thereof and any corrective action taken or proposed to be taken with respect thereto and thereto, (ii) setting forth computations in reasonable detail satisfactory to the Administrative Agent demonstrating compliance with the covenants contained in Sections 6.6, 6.10, 6.11 and 6.12 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 Flow, and (yiii) certifying that there has been no change in the business activitiescase of the certificate delivered with the audited financial statements for the year ended December 31, assets 2004, setting forth a calculation of Consolidated EBITDA for such year, which calculation shall demonstrate that such Consolidated EBITDA was equal to 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 6.8greater than $36,000,000;
(d) within not later than 45 days after to the commencement of each fiscal year of the Borrower, a detailed consolidated budget for such fiscal year (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)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, copies of all periodic and other reports, proxy statements and other materials filed by Holdings, the Borrower or any Subsidiary with the SECSecurities and Exchange Commission, or any Governmental Authority succeeding to any or all of the functions of said Commission, or with any national securities exchange, or, after the initial Public Equity Offering (disregarding for purposes of this Section 5.4(e) the Net Cash Proceeds dollar threshold contained in the definition of such term), or distributed to its shareholders, as the case may be;
(f) promptly after the receipt thereof by Holdings or the Borrower or any Subsidiaryof 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) 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 or since the last such certificate delivered pursuant to this clause (g);
(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
(gi) 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 may reasonably request. Documents required to be delivered pursuant to Section 5.4(a), (b) or (e) (to the extent any such documents are included in materials otherwise filed with the SEC) may be delivered electronically and if so delivered, shall be deemed to have been delivered on the date (i) on which the Borrower posts such documents, or provides a link thereto on the Borrower’s website on the Internet at the Borrower’s website address; or (ii) on which such documents are posted on the Borrower’s behalf on IntraLinks/IntraAgency or another relevant website, if any, to which each Lender and the Administrative Agent have access (whether a commercial, third-party website or whether sponsored by the Administrative Agent).
Appears in 1 contract
Samples: Credit Agreement (Deltek, Inc)
Financial Statements, Reports, etc. In the case of the BorrowerBorrower and the Guarantors, furnish deliver to the Administrative Agent (either physically or through electronic delivery reasonably acceptable to and each of the Administrative Agent), which shall furnish to each LenderBanks:
(a) within 90 days after the end of each fiscal year, its the Borrower's consolidated and (if available) consolidating balance sheet and related statements statement of income, stockholders’ equity income and cash flows flows, showing the financial condition of the Borrower and its the Guarantors on a consolidated Subsidiaries and (if available) consolidating basis as of the close of such fiscal year and the results of its their respective operations and the operations of such Subsidiaries during such year, together with comparative figures the consolidated statement of the Borrower to be audited for the immediately preceding fiscal year, all audited Borrower and the Guarantors by Ernst & Young LLP or other independent public accountants of recognized national standing acceptable to the Required Banks and accompanied by an opinion of such accountants (which shall not be qualified in any material respectrespect other than with respect to the Cases), and the consolidating statement (if any) to be subjected to the auditing procedures applied to such audit of the consolidated statement, 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 Borrower and its consolidated Subsidiaries the Guarantors on a consolidated basis in accordance with GAAP consistently applied;
(b) within 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, its the Borrower's consolidated and (if available) consolidating balance sheet sheets and related statements of income, stockholders’ equity income and cash flows flows, showing the financial condition of the Borrower and its the Guarantors on a consolidated Subsidiaries and (if available) consolidating basis as of the close of such fiscal quarter and the results of its their 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 each certified by one of its a Financial Officers Officer as fairly presenting the financial condition and results of operations of the Borrower and its consolidated Subsidiaries the Guarantors on a consolidated and (if available) consolidating basis in accordance with GAAP consistently applied, subject to normal year-end audit adjustments;
(c) concurrently with any delivery of financial statements under paragraph (a), ) or (b) above, (i) a certificate of the accounting firm (in the case of paragraph (a)) or a Financial Officer (in the case of paragraph (b)) opining on or certifying such statements (which certificate, when furnished by an accounting firm, may be limited to accounting matters and disclaim responsibility for legal interpretations and which may be provided by a Financial Officer if accounting firms generally are not providing such certificates) (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 occurred, or, if such an Event of Default or Default event has occurred, specifying the nature and extent thereof 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 provisions of Sections 6.66.03, 6.106.04, 6.11 6.05 and 6.12 and6.10 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 the case course of a certificate delivered with the financial statements required by paragraph (a) aboveregular audit of the business of the Borrower and its consolidated Subsidiaries, (x) setting forth the Borrower’s calculation such accountants have obtained no knowledge that an Event of Excess Cash Flow Default has occurred and (y) certifying that there has been no change is continuing, or if, in the business activitiesopinion of such accountants, assets or liabilities an Event of HoldingsDefault has occurred and is continuing, or if there has been any such change, describing such change in reasonable detail specifying the nature thereof and certifying that Holdings is in compliance all relevant facts with Section 6.8respect thereto;
(d) within 45 30 days after the commencement end of each fiscal year month, the unaudited monthly cash flow reports of the Borrower, Borrower and the Guarantors on a detailed consolidated budget for such fiscal year (including a projected consolidated balance sheet basis and related statements of projected operations and cash flows as of the end close of and for such fiscal month and the results of their operations during such fiscal period and the then elapsed portion of the fiscal year), all certified by a Financial Officer as fairly presenting the results of operations of the Borrower and the Guarantors on a consolidated basis, subject to normal year-end audit adjustments;
(e) concurrently with any delivery of financial statements under (b) above, monthly financial projections for the following six fiscal month period;
(f) as soon as possible, and in any event within 30 days of the Closing Date, a consolidated pro forma statement of the Borrower's and the Guarantors' financial condition as of the Filing Date;
(g) on the second Friday following the Closing Date, and on each second Friday thereafter, bi-weekly updates of the Budget satisfactory in form and substance to the Agent;
(h) promptly after the same become publicly available, copies of all periodic and other reports, proxy statements and other materials filed by Holdings, the Borrower or any Subsidiary it with the SECSecurities and Exchange Commission, or any Governmental Authority governmental authority succeeding to any of or all of the functions of said Commissioncommission, or with any national securities exchange, or, after the initial Public Equity Offering (disregarding for purposes of this Section 5.4(e) the Net Cash Proceeds dollar threshold contained in the definition of such term), distributed to its shareholders, as the case may be;
(fi) promptly as soon as available and in any event (A) within 30 days after the receipt thereof by Holdings or the Borrower or any Subsidiaryof 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 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;
(j) promptly and in any event within 10 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;
(k) 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;
(l) within 10 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 “management letter” 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;
(m) 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 such person from its certified public accountants and ERISA Affiliate concerning (A) the management’s response thereto; andimposition 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;
(gn) promptly, from time to time, such other information regarding the operations, business affairs and financial condition of Holdings, the Borrower or any SubsidiaryGuarantor, or compliance with the terms of any Loan Document, material loan or financing agreements as the Administrative Agent or any Lender Bank may reasonably request. Documents required to be delivered pursuant to Section 5.4(a), ; and
(bo) or (e) (furnish to the extent Agent and its counsel promptly after the same is available, copies of all pleadings, motions, applications, judicial information, financial information and other documents filed by or on behalf of the Borrower or any such documents are included in materials otherwise filed of the Guarantors with the SEC) may be delivered electronically and if so deliveredBankruptcy Court in the Cases, shall be deemed to have been delivered or distributed by or on the date (i) on which behalf of the Borrower posts such documents, or provides a link thereto on any of the Borrower’s website on Guarantors to any official committee appointed in the Internet at the Borrower’s website address; or (ii) on which such documents are posted on the Borrower’s behalf on IntraLinks/IntraAgency or another relevant website, if any, to which each Lender and the Administrative Agent have access (whether a commercial, third-party website or whether sponsored by the Administrative Agent)Cases.
Appears in 1 contract
Samples: Revolving Credit and Guaranty Agreement (Brunos Inc)
Financial Statements, Reports, etc. In the case of the Borrower, furnish to the Administrative Agent (either physically or through electronic delivery reasonably acceptable to the Administrative Agent), which shall furnish for distribution to each Lender:
(a) within 90 days after the end of each fiscal yearyear (beginning within 90 days after the end of fiscal year 2007), its consolidated balance sheet and related statements of income, stockholders’ equity and cash flows showing the financial condition of the Borrower and its consolidated Subsidiaries as of the close of such fiscal year of the Borrower and its consolidated Subsidiaries at such time and the results of its operations and the operations of such Subsidiaries during such year, together with comparative figures for the immediately preceding fiscal year, all audited by Ernst & Young KPMG LLP or other independent public accountants of recognized national standing and accompanied by an opinion of such accountants reasonably satisfactory to the Administrative Agent (which shall not be qualified in any material respect, except for qualifications relating to accounting changes (with which such independent public accountants shall concur) in response to FASB releases or other authoritative pronouncements) to the effect that such consolidated financial statements fairly present the financial condition and results of operations of the Borrower and its consolidated Subsidiaries on a consolidated basis in accordance with GAAP consistently applied;
(b) within 45 days after the end of each of the first three fiscal quarters of each fiscal year, its unaudited consolidated balance sheet and related statements of income, stockholders’ equity and cash flows showing the financial condition of the Borrower and its consolidated Subsidiaries as of the close of such fiscal quarter of the Borrower and its consolidated Subsidiaries at such time 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 to the effect that such financial statements, while not examined by independent public accountants, reflect in the opinion of the Borrower all adjustments necessary to present fairly presenting in all material respects the financial condition and results of operations of the Borrower and its consolidated Subsidiaries on a consolidated basis as of the end of and for such periods in accordance with GAAP consistently applied, subject to normal year-end audit adjustmentsadjustments and the absence of footnotes (it being understood that prior to the Funding Date the requirements under this paragraph (b) shall be satisfied if the Borrower delivers the financial statements required to be delivered by Section 5.04(b) of the Opco Credit Agreement);
(c) concurrently with any delivery of financial statements under paragraph (a)) above for the year ended December 31, or (b) above2007 and each year thereafter, a certificate of letter from the accounting firm (in rendering the case of paragraph (a)) or Financial Officer (in the case of paragraph (b)) opining opinion on or certifying such statements (which certificate, when furnished by an accounting firm, letter may be limited to accounting matters and disclaim responsibility for legal interpretations interpretations) stating whether, in connection with their audit examination, anything has come to their attention which would cause them to believe that any Default or Event of Default existed on the date of such financial statements and which may be provided by if such a condition or event has come to their attention and (ii) concurrently with any delivery of financial statements under paragraph (a) or (b) above, a certificate of a Financial Officer if accounting firms generally are not providing such certificates) of the Borrower (iA) certifying that no Event of Default or Default has occurred or, if such an Event of Default or Default has occurred, specifying the nature and extent thereof and any corrective action taken or proposed to be taken with respect thereto and thereto, (iiB) setting forth computations in reasonable detail satisfactory to the Administrative Agent demonstrating compliance with the covenants contained in Sections 6.6, 6.10, 6.11 and 6.12 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 for the applicable fiscal year and the Available Amount as at the end of the applicable fiscal year and (yC) certifying disclosing any Holdings Asset Sale or Holdings Recovery Event (other than any Holdings Asset Sale or Holdings Recovery Event not subject to the mandatory prepayment provisions set forth in Section 2.13(b) pursuant to the first proviso of the definition of Net Cash Proceeds) that there has been no change was consummated in the business activities, assets or liabilities preceding fiscal quarter and specifying the nature thereof and the use of Holdings, or if there has been any such change, describing such change in reasonable detail and certifying that Holdings is in compliance proceeds with Section 6.8respect thereto;
(d) within 45 days after the commencement of each fiscal year of the Borrower, a detailed consolidated budget for such fiscal year (including a projected consolidated balance sheet and related statements of projected operations and cash flows as of the end of and for such fiscal year);
(e) promptly after the same become publicly available, copies of all periodic and other reports, proxy statements and other materials filed by Holdingsthe Borrower, the Borrower Company or any Subsidiary of their Subsidiaries with the SECSecurities and Exchange Commission, or any Governmental Authority succeeding to any or all of the functions of said Commission, or with any domestic national securities exchange, or, after the initial Public Equity Offering (disregarding for purposes of this Section 5.4(e) the Net Cash Proceeds dollar threshold contained in the definition of such term), or distributed to its shareholdersshareholders generally, as the case may be;
(fe) promptly after the receipt thereof by Holdings or the Borrower Borrower, the Company or any Subsidiaryof their Subsidiaries, a copy of any “management letter” received by any such person Person from its certified public accountants and the management’s response thereto; and
(gf) promptly, from time to time, such other information regarding the operations, business affairs and financial condition of Holdingsthe Borrower, the Borrower Company or any Subsidiaryof their Subsidiaries, or compliance with the terms of any Loan Document, as the Administrative Agent or any Lender (acting through the Administrative Agent) may reasonably request. Documents required to be delivered pursuant to Section 5.4(a), (b) or (e) (to the extent any such documents are included in materials otherwise filed with the SEC) may be delivered electronically and if so delivered, shall be deemed to have been delivered on the date (i) on which the Borrower posts such documents, or provides a link thereto on the Borrower’s website on the Internet at the Borrower’s website address; or (ii) on which such documents are posted on the Borrower’s behalf on IntraLinks/IntraAgency or another relevant website, if any, to which each Lender and the Administrative Agent have access (whether a commercial, third-party website or whether sponsored by the Administrative Agent).
Appears in 1 contract
Samples: Credit Agreement (NRG Energy, Inc.)
Financial Statements, Reports, etc. In the case of the Borrower, furnish Guarantor shall deliver (or cause to the Administrative Agent (either physically or through electronic delivery reasonably acceptable be delivered) to the Administrative Agent), which shall furnish to each Lender:
(a) within 90 days after the end of each fiscal year, its consolidated balance sheet as soon as available and related statements of income, stockholders’ equity and cash flows showing the financial condition of the Borrower and its consolidated Subsidiaries as of the close of such fiscal year and the results of its operations and the operations of such Subsidiaries during such year, together with comparative figures for the immediately preceding fiscal year, all audited by Ernst & Young LLP or other independent public accountants of recognized national standing and accompanied by an opinion of such accountants (which shall not be qualified in any material respectevent within forty-five (45) to the effect that such consolidated financial statements fairly present the financial condition and results of operations of the Borrower and its consolidated Subsidiaries on a consolidated basis in accordance with GAAP consistently applied;
(b) within 45 days after the end of each of the first three quarterly fiscal quarters periods of each fiscal yearyear of Guarantor, its consolidated the unaudited balance sheet and related statements income statement of incomeGuarantor, stockholders’ equity and cash flows showing the financial condition of the Borrower and which shall incorporate its consolidated Subsidiaries (including Pledgor and Seller), as of at the close end of such fiscal quarter and period, setting forth in each case in comparative form 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 previous year, all certified accompanied by one an Officer’s Certificate of its Financial Officers as Guarantor, which certificate shall state that said consolidated financial statements fairly presenting present the consolidated financial condition and results of operations of the Borrower Guarantor and its consolidated Subsidiaries on a consolidated basis in accordance with GAAP GAAP, consistently applied, as at the end of, and for, such period (subject to normal year-end audit adjustments) (collectively, the “Quarterly Report”);
(c) concurrently with any delivery of financial statements under paragraph (a), or (b) above, a certificate of the accounting firm as soon as available and in any event within one hundred twenty (in the case of paragraph (a)120) or Financial Officer (in the case of paragraph (b)) opining on or certifying such statements (which certificate, when furnished by an accounting firm, may be limited to accounting matters and disclaim responsibility for legal interpretations and which may be provided by a Financial Officer if accounting firms generally are not providing such certificates) (i) certifying that no Event of Default or Default has occurred or, if such an Event of Default or Default has occurred, specifying the nature and extent thereof and any corrective action taken or proposed to be taken with respect thereto and (ii) setting forth computations in reasonable detail satisfactory to the Administrative Agent demonstrating compliance with the covenants contained in Sections 6.6, 6.10, 6.11 and 6.12 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 6.8;
(d) within 45 days after the commencement end of each fiscal year of Guarantor:
(i) the Borrowerunaudited, a detailed balance sheet and income statement of Guarantor, which shall incorporate its consolidated budget for Subsidiaries as at the end of such fiscal year year, accompanied by an Officer’s Certificate of Guarantor, which certificate shall state that said consolidated financial statements fairly present the consolidated financial condition and results of operations of Guarantor and its consolidated Subsidiaries in accordance with GAAP, consistently applied, as at the end of, and for, such period (including a projected collectively, “Guarantor Annual Reporting”);
(ii) the combined, consolidated balance sheet and related statements statement of projected operations and cash flows equity of REIT, which shall incorporate its consolidated Subsidiaries, as of at the end of such fiscal year and the related combined, consolidated statements of operations and of cash flows for REIT, which shall incorporate its consolidated Subsidiaries, for such fiscal year);
(e) promptly after the same become publicly available, copies accompanied by an opinion thereon of all periodic and Deloitte Consulting LLP or other reports, proxy statements and other materials filed by Holdings, the Borrower or any Subsidiary with the SEC, or any Governmental Authority succeeding to any or all of the functions of said Commission, or with any national securities exchange, or, after the initial Public Equity Offering (disregarding for purposes of this Section 5.4(e) the Net Cash Proceeds dollar threshold contained in the definition of such term), distributed to its shareholders, as the case may be;
(f) promptly after the receipt thereof by Holdings or the Borrower or any Subsidiary, a copy of any “management letter” received by any such person from its independent certified public accountants of recognized national standing, which opinion shall not be qualified as to scope of audit or going concern and shall state that said combined, consolidated financial statements fairly present the management’s response thereto; and
(g) promptlycombined, from time to timeconsolidated financial condition and results of operations of REIT and its consolidated Subsidiaries as at the end of, and for, such other information regarding the operationsfiscal year in accordance with GAAP (collectively, business affairs “REIT Annual Reporting”, and financial condition of Holdingstogether with Guarantor Annual Reporting, 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 5.4(a“Annual Reporting Package”), (b) or (e) (to the extent any such documents are included in materials otherwise filed with the SEC) may be delivered electronically and if so delivered, shall be deemed to have been delivered on the date (i) on which the Borrower posts such documents, or provides a link thereto on the Borrower’s website on the Internet at the Borrower’s website address; or (ii) on which such documents are posted on the Borrower’s behalf on IntraLinks/IntraAgency or another relevant website, if any, to which each Lender and the Administrative Agent have access (whether a commercial, third-party website or whether sponsored by the Administrative Agent).;
Appears in 1 contract
Samples: Guaranty Agreement (KKR Real Estate Finance Trust Inc.)
Financial Statements, Reports, etc. In the case of the Borrower, furnish to the Administrative Agent (either physically or through electronic delivery reasonably acceptable to the Administrative Agent), which shall furnish such statements, certificates or other documents received pursuant to this Section 5.04 to each Lender:Lender and Issuing Bank):
(a) within 90 days after the end of each fiscal year, its consolidated balance sheet and related statements of income, stockholders’ equity and cash flows showing the financial condition of the Borrower and its consolidated Subsidiaries as of the close of such fiscal year and the results of its operations and the operations of such Subsidiaries during such year, together with comparative figures for the immediately preceding fiscal year, all audited by Ernst Deloitte & Young Touche LLP or other independent public accountants of recognized national standing and accompanied by an opinion of such 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 Borrower and its consolidated Subsidiaries on a consolidated basis in accordance with GAAP consistently applied;
(b) within 45 days after the end of each of the first three fiscal quarters of each fiscal year, its consolidated balance sheet and related statements of income, stockholders’ equity and 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 Borrower and its consolidated Subsidiaries on a consolidated basis in accordance with GAAP consistently applied, subject to normal year-end audit adjustments;
(c) concurrently with any delivery of financial statements under paragraph (a), ) or (b) above, a certificate of the accounting firm (in the case of paragraph (a)) or Financial Officer (in the case of paragraph (b)) opining on or certifying such statements (which certificate, when furnished by an accounting firm, may be limited to accounting matters and disclaim responsibility for legal interpretations and which may be provided by a Financial Officer if accounting firms generally are not providing such certificates) (i) certifying that no Event of Default or Default has occurred or, if such an Event of Default or Default has occurred, specifying the nature and extent thereof and any corrective action taken or proposed to be taken with respect thereto and (ii) setting forth computations in reasonable detail satisfactory to the Administrative Agent demonstrating compliance with the covenants contained in Sections 6.66.11, 6.106.12, 6.11 6.13 and 6.12 and6.14 and (x) in the case of a certificate delivered with the financial statements required by paragraph (b) above for the second fiscal quarter of each year, setting forth the Borrower’s calculation of Excess Cash Flow, and (y) in the case of a certificate delivered with the financial statements required by paragraph (a) aboveor (b) above for any period ended on or prior to December 31, (x) 2004, setting forth the Borrower’s calculation Calculation of the 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 6.8Proceeds Amount;
(d) within 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 (which certificate may be limited to the extent required by accounting rules or guidelines);
(e) no later than 45 days after the commencement end of each fiscal year of the Borrower, a detailed consolidated budget for such the then 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 fiscal year)year and setting forth the assumptions used for purposes of preparing such budget) and, promptly when available, any significant revisions of such budget;
(ef) promptly after the same become publicly available, copies of all periodic and other reports, proxy statements and other materials filed by Holdings, the Borrower or any Subsidiary with the SECSecurities and Exchange Commission, or any Governmental Authority succeeding to any or all of the functions of said Commission, or with any national securities exchange, or, after the initial Public Equity Offering (disregarding for purposes of this Section 5.4(e) the Net Cash Proceeds dollar threshold contained in the definition of such term), or distributed to its shareholders, as the case may be;
(fg) promptly after the receipt thereof by Holdings or the Borrower or any Subsidiaryof 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, following a request by any Lender, provide 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
(gi) 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 may reasonably request. Documents required to be delivered pursuant to Section 5.4(a), (b) or (e) (to the extent any such documents are included in materials otherwise filed with the SEC) may be delivered electronically and if so delivered, shall be deemed to have been delivered on the date (i) on which the Borrower posts such documents, or provides a link thereto on the Borrower’s website on the Internet at the Borrower’s website address; or (ii) on which such documents are posted on the Borrower’s behalf on IntraLinks/IntraAgency or another relevant website, if any, to which each Lender and the Administrative Agent have access (whether a commercial, third-party website or whether sponsored by the Administrative Agent).
Appears in 1 contract
Financial Statements, Reports, etc. In Holdings and the case of the Borrower, Borrower shall furnish to the Administrative Agent (either physically or through electronic delivery reasonably acceptable to the following, and the Administrative Agent), which Agent shall furnish make a copy thereof available to each Lender:
(a) within Within 90 days after the end of each fiscal yearyear of Holdings, its consolidated balance sheet and related statements of operations, comprehensive income, stockholders’ equity and cash flows showing the financial condition of the Borrower and its consolidated Subsidiaries flow as of the close end of and for such fiscal year and the results of its operations and the operations of such Subsidiaries during such year, together with and related notes thereto, setting forth in each case in comparative form the figures for the immediately preceding previous fiscal year, all in each case audited by Ernst & Young LLP or other independent public accountants of recognized national standing and standing, accompanied by an opinion of such accountants (which shall not be qualified as to scope of audit or include a statement or like qualification or exception in any material respectmanner calling into question the status of its business as a going concern (other than solely as a result of a maturity date in respect of any Loans or Commitments)) to the effect that such consolidated financial statements fairly present the in all material respects its financial condition and condition, results of operations and cash flows and that of the Borrower and its consolidated Subsidiaries on subsidiaries, taken as a consolidated basis whole, in accordance with GAAP consistently appliedapplied (except as otherwise disclosed in such financial statements) and accompanied by a narrative report describing the financial position, results of operations and cash flows of Holdings and its consolidated subsidiaries;
(b) within Within 45 days after the end of each of the first three fiscal quarters of each fiscal yearyear of Holdings, its unaudited consolidated balance sheet and unaudited related statements of operations, comprehensive income, stockholders’ equity and cash flows showing the financial condition of the Borrower and its consolidated Subsidiaries flow as of the close end of and for such fiscal quarter and quarter, setting forth in each case in comparative form 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 corresponding period or periods of (or, in the immediately preceding case of the balance sheet, as of the end of) the previous fiscal year, all certified by one a Financial Officer of its Financial Officers Holdings as presenting fairly presenting in all material respects the financial condition and condition, results of operations and cash flows of the Borrower Holdings and its consolidated Subsidiaries on subsidiaries, taken as a consolidated basis whole, in accordance with GAAP consistently applied, subject to normal year-end audit adjustmentsadjustments and the absence of footnotes, and accompanied by a narrative report describing the financial position, results of operations and cash flows of Holdings and its consolidated subsidiaries;
(c) concurrently with any No later than the respective delivery due dates of financial statements under paragraph (a), or ) and (b) above, a certificate of the accounting firm (in the case of paragraph (a)) or Financial Officer (in the case of paragraph (b)) opining on or certifying such statements (which certificate, when furnished by an accounting firm, may be limited to accounting matters and disclaim responsibility for legal interpretations and which may be provided by a Financial Officer if accounting firms generally are not providing such certificates) (i) certifying that no Event of Default or Default has occurred and is continuing or, if such an Event of Default or Default has occurredoccurred and is continuing, specifying the nature and extent thereof 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 6.66.12 (Interest Expense Coverage Ratio) and 6.13 (Leverage Ratio), 6.10(iii) at any time when there is one or more Unrestricted Subsidiaries, 6.11 of the aggregate revenue and 6.12 the aggregate Consolidated EBITDA of the Unrestricted Subsidiaries for the four fiscal quarter period of the Borrower ended on the last day of the fiscal quarter covered by financial statements delivered for such period, and (iv) stating whether any change in GAAP or in the application thereof has occurred since the later of the date of Holdings’s audited financial statements referred to in Section 3.06 (Financial Statements) and the date of the prior certificate delivered pursuant to this clause (c) indicating such a change and, in if any such change has occurred, specifying the case effect of a certificate delivered with such change on the financial statements required by paragraph accompanying such certificate;
(d) No later than the delivery due date for annual financial statements under (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 6.8;
(d) within 45 days after the commencement of each fiscal year of the Borrower, a detailed annual consolidated budget for such fiscal year of Holdings (including a projected cash, Indebtedness and, to the extent available, pension balances, and projected consolidated balance sheet and related statements of projected operations operations, comprehensive income and cash flows as of the end of and for such fiscal yearyear and setting forth the assumptions used for purposes of preparing such budget);
(e) promptly No later than five Business Days 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 the Beneficial Ownership Regulation;
(f) Promptly after the same become publicly available, copies of all periodic and other reports, proxy statements and other materials filed by HoldingsHoldings (other than registration statements and prospectuses related to offerings to directors, the Borrower officers or any Subsidiary employees) with the SEC, SEC or any Governmental Authority succeeding to any of or all of the functions of said Commissionthe SEC, or with any national securities exchange, or, after the initial Public Equity Offering (disregarding for purposes of this Section 5.4(e) the Net Cash Proceeds dollar threshold contained in the definition of such term), or distributed to its shareholders, as the case may be;
(f) promptly after the receipt thereof by Holdings or the Borrower or any Subsidiary, a copy of any “management letter” received by any such person from its certified public accountants and the management’s response thereto; and
(g) promptly, from time to timePromptly after any request therefor, such other information regarding the operations, business affairs affairs, assets, liabilities (including contingent liabilities) and financial condition of Holdings, the Borrower or any Restricted Subsidiary, or compliance with the terms of this Agreement or any other Loan Document, as the Administrative Agent or any Lender may reasonably request; provided that none of Holdings, the Borrower or any Restricted Subsidiary will be required to provide any information (i) that constitutes non-financial trade secrets or non-financial proprietary information of Holdings, the Borrower or any Restricted Subsidiary or any of their respective customers and suppliers, (ii) in respect of which disclosure to the Administrative Agent or any Lender (or any of their respective representatives) is prohibited by applicable Requirements of Law or (iii) the revelation of which would violate any confidentiality obligations owed to any third party by Holdings, the Borrower or any Restricted Subsidiary; provided further that if any information is withheld pursuant to clause (i), (ii), or (iii) above, Holdings, the Borrower or any Restricted Subsidiary shall promptly notify the Administrative Agent of such withholding of information and the basis therefor. Documents Information required to be delivered pursuant to this Section 5.4(a), (b) or (e) (to the extent any such documents are included in materials otherwise filed with the SEC) may be delivered electronically and if so delivered, 5.01 shall be deemed to have been delivered on the date (i) on which the Borrower posts if such documentsinformation, or provides a link thereto on the Borrower’s website on the Internet at the Borrower’s website address; one or (ii) on which more annual or quarterly reports containing such documents are information, shall have been posted on the Borrower’s behalf on IntraLinks/IntraAgency or another relevant website, if any, to which each Lender and by the Administrative Agent on an Approved Electronic Platform to which the Lenders have been granted access or shall be available on the website of the SEC at xxxx://xxx.xxx.xxx. Information required to be delivered pursuant to this Section 5.01 (whether a commercial, third-party other than the information that pursuant to the immediately preceding sentence is deemed to have been delivered if it is made available on the website or whether sponsored of the SEC) may also be delivered by electronic communications pursuant to the procedures approved by the Administrative Agent. In addition, the Borrower shall hold a conference call once annually for the Lenders to discuss financial information for the previous fiscal year. Each conference call shall be held at a time mutually agreed with the Administrative Agent (and communicated to the Lenders and the Issuers not less than 10 Business Days in advance of such conference call) that is promptly following delivery of the financial statements required under Section 5.01(a). The requirements of this paragraph shall be satisfied by the Borrower providing the Lenders with reasonably advance notice of, and access to, the annual earnings call with the holders of the Equity Interests of Holdings or with bondholders of the Borrower.
Appears in 1 contract
Financial Statements, Reports, etc. In the case of the Borrower, furnish to the Administrative Agent (either physically or through electronic delivery reasonably acceptable to and each of the Administrative Agent), which shall furnish to each LenderBanks:
(a) within 90 days after the end of each fiscal year (being December 31 in each calendar year), its consolidated balance sheet sheets and related consolidated income statements of income, stockholders’ equity and cash flows showing the financial condition of the Borrower and its consolidated the Subsidiaries as of the close of such fiscal year and the results of its their operations during such year and a consolidated statement of cash flows, as of the operations close of such Subsidiaries during such year, together with comparative figures for the immediately preceding fiscal year, all the foregoing financial statements to be audited by Ernst & Young LLP or other independent certified public accountants of recognized national standing and accompanied by an opinion of such accountants (which shall not be qualified in any material respect) to the effect that such consolidated financial statements present fairly present the financial condition and results of operations of the Borrower and its consolidated Subsidiaries such person on a consolidated basis in accordance with GAAP generally accepted accounting principles consistently applied, and to be in form reasonably acceptable to the Required Banks;
(b) within 45 60 days after the end of each of the first three fiscal quarters of each fiscal year, its unaudited consolidated balance sheet sheets, consolidated income statements and related consolidated statements of income, stockholders’ equity and cash flows showing the financial condition and results of operations of the Borrower and its the Subsidiaries on a consolidated Subsidiaries basis as of the close end of each such fiscal quarter and the results of its operations and the operations of for 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 presenting fairly presenting the financial condition position and results of operations of the Borrower and its consolidated the Subsidiaries on a consolidated basis and as having been prepared in accordance with GAAP generally accepted accounting principles consistently applied, in each case subject to normal year-end audit adjustments;
(c) promptly after the same become publicly available, copies of such registration statements, annual, periodic and other reports, and such proxy statements and other information, as shall be filed by the Borrower or any Subsidiary with the Securities and Exchange Commission or with any national securities exchange or, in the case of the Borrower, distributed to its shareholders;
(d) concurrently with any delivery of financial statements under paragraph (a), ) or (b) above, a certificate of the accounting firm (in the case of paragraph (a)) or Financial Officer (in the case of paragraph (b)) opining on or certifying such statements (which certificate, when certificate furnished by an accounting firm, the independent accountants referred to in paragraph (a) above may be limited to accounting matters and disclaim responsibility for legal interpretations and which may be provided by a Financial Officer if accounting firms generally are not providing such certificatesinterpretations) (i) certifying that to the best of its or his knowledge no Event of Default or Default has occurred oroccurred, (ii) in the case of a certificate of a Financial Officer of the Borrower, if such an Event of Default or Default has occurred, specifying the nature and extent thereof and any corrective action taken or proposed to be taken with respect thereto and (ii) setting forth computations in reasonable detail satisfactory to the Administrative Agent demonstrating compliance with the covenants contained in Sections 6.6, 6.10, 6.11 and 6.12 and, in the case of a certificate delivered with the financial statements required by paragraph (a) above, (xiii) setting forth the Borrower’s calculation ratio of Excess Cash Flow and (y) certifying that there has been no change in Total Indebtedness to the business activities, assets or liabilities sum 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 6.8;
(d) within 45 days after the commencement of each fiscal year of the Borrower, a detailed consolidated budget for such fiscal year (including a projected consolidated balance sheet and related statements of projected operations and cash flows Consolidated Tangible Net Worth plus Total Indebtedness as of the end date of and for the balance sheet included in such fiscal year)financial statements;
(e) promptly after the same become publicly availableconcurrently with any delivery under paragraph (a) or (b) above, copies a certificate of all periodic and other reports, proxy statements and other materials filed by Holdings, a Financial Officer of the Borrower or any Subsidiary demonstrating compliance, as of the date of the financial statements being furnished at such time, with the SEC, or any Governmental Authority succeeding to any or all of the functions of said Commission, or with any national securities exchange, or, after the initial Public Equity Offering (disregarding for purposes of this Section 5.4(e) the Net Cash Proceeds dollar threshold contained covenants set forth in the definition of such term), distributed to its shareholders, as the case may be;
(f) promptly after the receipt thereof by Holdings or the Borrower or any Subsidiary, a copy of any “management letter” received by any such person from its certified public accountants Sections 6.06 and the management’s response thereto6.07; and
(gf) promptly, from time to time, such other information regarding the operations, business affairs and financial condition of Holdings, compliance by the Borrower or any Subsidiary, or compliance with the terms of any Loan DocumentDocument or the affairs, operations or condition (financial or otherwise) of the Borrower and the Subsidiaries as the Administrative Agent or any Lender Bank may reasonably request. Documents required to be delivered pursuant to Section 5.4(a), (b) or (e) (to the extent any such documents are included in materials otherwise filed with the SEC) may be delivered electronically and if so delivered, shall be deemed to have been delivered on the date (i) on which the Borrower posts such documents, or provides a link thereto on the Borrower’s website on the Internet at the Borrower’s website address; or (ii) on which such documents are posted on the Borrower’s behalf on IntraLinks/IntraAgency or another relevant website, if any, to which each Lender and the Administrative Agent have access (whether a commercial, third-party website or whether sponsored by the Administrative Agent).
Appears in 1 contract
Financial Statements, Reports, etc. In the case of the BorrowerIBM, furnish to the Administrative Agent (either physically or through electronic delivery reasonably acceptable for distribution to the Administrative Agent), which shall furnish to each LenderLenders:
(a) as soon as available and in any event within 90 days after the end of each fiscal year, its copies of the report filed by IBM with the SEC on Form 10-K in respect of such fiscal year, each accompanied by IBM’s annual report in respect of such fiscal year or, if IBM is not required to file such a report in respect of such fiscal year, the consolidated balance sheet and related statements consolidated income statement, consolidated statement of income, stockholders’ equity and cash flows showing the financial condition and consolidated statement of the Borrower equity of IBM and its consolidated Subsidiaries as of the close of such fiscal year and the results of its operations and the operations of such Subsidiaries during such year, together with comparative figures for the immediately preceding fiscal year, all audited by Ernst & Young LLP PricewaterhouseCoopers or other independent public accountants of recognized national standing and accompanied by an opinion of such accountants (which shall not be qualified in any material respect) 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 Borrower IBM and its consolidated Subsidiaries on a consolidated basis in accordance conformity with GAAP consistently appliedGAAP;
(b) as soon as available and in any event within 45 50 days after the end of each of the first three fiscal quarters quarterly periods of each fiscal year, its copies of the unaudited quarterly reports filed by IBM with the SEC on Form 10-Q in respect of such quarterly period, or if IBM is not required to file such a report in respect of such quarterly period, the unaudited consolidated balance sheet and related statements unaudited consolidated income statement, consolidated statement of income, stockholders’ equity and cash flows showing the financial condition and consolidated statement of the Borrower equity of IBM 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 yearquarter, and comparative figures for the same periods in the immediately preceding fiscal year, all certified by one a Responsible Officer of its Financial Officers IBM as fairly presenting presenting, in all material respects, the financial condition and position, results of operations and cash flows of the Borrower IBM and its consolidated Subsidiaries on a consolidated basis in accordance with GAAP consistently appliedGAAP, subject to normal year-end audit adjustments;
(c) concurrently with any delivery of financial statements under by IBM described in paragraph (a), ) or (b) aboveabove (whether contained in a report filed with the SEC or otherwise), a certificate of the accounting firm (a Responsible Officer of IBM substantially in the case form of paragraph (aSchedule 6.2(c)) or Financial Officer (in the case of paragraph (b)) opining on or certifying such statements (which certificate, when furnished by an accounting firm, may be limited to accounting matters and disclaim responsibility for legal interpretations and which may be provided by a Financial Officer if accounting firms generally are not providing such certificates) (i) certifying that no Event of Default or Default has occurred or, if such an Event of Default or Default has occurred, specifying the nature and extent thereof and any corrective action taken or proposed to be taken with respect thereto and (ii) setting forth computations in reasonable detail satisfactory to the Administrative Agent demonstrating compliance with the covenants contained in Sections 6.6, 6.10, 6.11 and 6.12 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 6.8;
(d) within 45 days after the commencement of each fiscal year of the Borrower, a detailed consolidated budget for such fiscal year (including a projected consolidated balance sheet and related statements of projected operations and cash flows as of the end of and for such fiscal year);
(e) promptly after the same become publicly available, copies of (i) all periodic financial statements, notices, reports and other reportsproxy materials distributed to stockholders of IBM and (ii) all reports on Form 10-K, proxy statements 10-Q and other materials 8-K (or their equivalents) filed by Holdings, the Borrower or any Subsidiary IBM with the SEC, SEC (or with any Governmental Authority succeeding to any or all of the functions of said Commission, or with any national securities exchange, or, after the initial Public Equity Offering (disregarding for purposes SEC) pursuant to the periodic reporting requirements of this Section 5.4(e) the Net Cash Proceeds dollar threshold contained in the definition Securities Exchange Act of such term), distributed to its shareholders1934, as the case may be;
(f) promptly after the receipt thereof by Holdings or the Borrower or any Subsidiaryamended, a copy of any “management letter” received by any such person from its certified public accountants and the management’s response theretorules and regulations promulgated thereunder; and
(g) promptlyprovided, 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 may reasonably request. Documents that documents required to be delivered pursuant to Section 5.4(a), furnished under this paragraph (bd) or (e) (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 furnished when made available via the date XXXXX (ior any successor) on which system of the Borrower posts such documents, or provides a link thereto on the Borrower’s website on the Internet at the Borrower’s website address; or (ii) on which such documents are posted on the Borrower’s behalf on IntraLinks/IntraAgency or another relevant website, if any, to which each Lender and the Administrative Agent have access (whether a commercial, third-party website or whether sponsored by the Administrative Agent).SEC;
Appears in 1 contract
Samples: Three Year Credit Agreement (International Business Machines Corp)
Financial Statements, Reports, etc. In the case of the Borrower, furnish to the Administrative Agent (either physically or through electronic delivery reasonably acceptable to the Administrative Agent), which shall furnish for distribution to each Lender:
(a) within 90 days after the end of each fiscal year, its consolidated balance sheet and related statements of income, stockholders’ equity and cash flows showing the financial condition of the Borrower and its consolidated Subsidiaries as of the close of such fiscal year and the results of its operations and the operations of such Subsidiaries during such year, together with comparative figures for the immediately preceding fiscal year, all audited by Ernst & Young PricewaterhouseCoopers LLP or other independent public accountants of recognized national standing and accompanied by an opinion of such accountants (which opinion shall not be qualified 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 Borrower and its consolidated Subsidiaries on a consolidated basis in accordance with GAAP consistently applied;
(b) within 45 days after the end of each of the first three fiscal quarters of each fiscal year, its consolidated balance sheet and related statements of income, stockholders’ equity and 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 Borrower and its consolidated Subsidiaries on a consolidated basis in accordance with GAAP consistently applied, subject to normal year-end audit adjustments;
(c) within 30 days after the end of each 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 the Borrower and its consolidated Subsidiaries during such fiscal month and the then elapsed portion of the fiscal year, all certified by one of its Financial Officers as fairly presenting the financial condition and results of operations of the Borrower and its consolidated Subsidiaries on a consolidated basis in accordance with GAAP consistently applied, subject to normal year-end audit adjustments;
(d) concurrently with any delivery of financial statements under paragraph (a), (b) or (bc) above, a certificate letter of the accounting firm (if such accounting firm is then providing similar letters for other corporate clients) (in the case of paragraph (a)) or and a certificate of a Financial Officer (in the case of paragraph (a), (b) or (c)) opining on or certifying such statements (which certificateletter, when furnished by an accounting firm, may be limited to accounting matters with respect to Sections 6.11, 6.12 and 6.13 and disclaim responsibility for legal interpretations and which may be provided by a Financial Officer if accounting firms generally are not providing such certificatesinterpretations) (i) certifying that no Event of Default or Default has occurred or, if such an Event of Default or Default has occurred, specifying the nature and extent thereof and any corrective action taken or proposed to be taken with respect thereto and thereto, (ii) setting forth computations in reasonable detail satisfactory to the Administrative Agent demonstrating compliance with the covenants contained in Sections 6.6, 6.10, 6.11 6.11, 6.12 and 6.12 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 Flow, and (yiii) certifying that there has been no change in the business activities, assets or liabilities case of Holdings, or if there has been any such changecertificate delivered by a Financial Officer, describing such change in reasonable detail any Asset Sales that were consummated during the preceding period and certifying that Holdings is in compliance with Section 6.8the amount and the use or the intended use of the Net Cash Proceeds thereof;
(de) within 45 90 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 yearyear and summarizing the assumptions used for purposes of preparing such budget);
(ef) promptly after the same become publicly available, copies of all periodic and other reports, proxy statements and other materials filed by Holdings, the Borrower or any Subsidiary with the SECSecurities and Exchange Commission, or any Governmental Authority succeeding to any or all of the functions of said Commission, or with any national securities exchange, or, after the initial Public Equity Offering (disregarding for purposes of this Section 5.4(e) the Net Cash Proceeds dollar threshold contained in the definition of such term), or distributed to its shareholders, as the case may be;
(fg) promptly after the receipt thereof by Holdings or the Borrower or any Subsidiaryof the 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
(gi) 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 Lender, through the Administrative Agent, may reasonably request. Documents required to be delivered pursuant to Section 5.4(a), (b) or (e) (to the extent any such documents are included in materials otherwise filed with the SEC) may be delivered electronically and if so delivered, shall be deemed to have been delivered on the date (i) on which the Borrower posts such documents, or provides a link thereto on the Borrower’s website on the Internet at the Borrower’s website address; or (ii) on which such documents are posted on the Borrower’s behalf on IntraLinks/IntraAgency or another relevant website, if any, to which each Lender and the Administrative Agent have access (whether a commercial, third-party website or whether sponsored by the Administrative Agent).
Appears in 1 contract
Samples: First Lien Credit Agreement (Weight Watchers International Inc)
Financial Statements, Reports, etc. In the case of the Borrower, furnish to the Administrative Agent (either physically or through electronic delivery reasonably acceptable to the Administrative Agent), which shall furnish for distribution to each Lender:
(a) within 90 days after the end of each fiscal yearyear (beginning with the fiscal year ending on December 31, 2004), its consolidated balance sheet and related statements of income, stockholders’ equity and cash flows showing the financial condition of the Borrower and its consolidated Subsidiaries as of the close of such fiscal year and the results of its operations and the operations of such Subsidiaries during such year, together with comparative figures for the immediately preceding fiscal year, all audited by Ernst & Young KPMG LLP or other independent public accountants of recognized national standing and accompanied by an opinion of such 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 Borrower and its consolidated Subsidiaries on a consolidated basis in accordance with GAAP consistently applied;
(b) within 45 days after the end of each of the first three fiscal quarters of each fiscal year, its consolidated balance sheet and related statements of income, stockholders’ equity and 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 Borrower and its consolidated Subsidiaries on a consolidated basis in accordance with GAAP consistently applied, 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, 6.11, 6.12 or 6.13 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 the accounting firm (in the case of paragraph (a)) or Financial Officer (in the case of paragraph (b)) opining on or certifying such statements (which certificate, when furnished by an accounting firm, may be limited to accounting matters and disclaim responsibility for legal interpretations and which may be provided by a Financial Officer if accounting firms generally are not providing such certificates) of the Borrower (iA) certifying that no Event of Default or Default has occurred or, if such an Event of Default or Default has occurred, specifying the nature and extent thereof and any corrective action taken or proposed to be taken with respect thereto and (iiB) setting forth computations in reasonable detail satisfactory to the Administrative Agent demonstrating compliance with the covenants contained in Sections 6.66.11, 6.10, 6.11 6.12 and 6.12 6.13 and, in the case of a certificate delivered with the financial statements required by paragraph (a) aboveabove with respect to the fiscal year ending December 31, (x) 2005 and each fiscal year thereafter, 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 6.8Flow;
(d) within 45 at least 90 days after the commencement end of each fiscal year of the Borrower, a detailed consolidated budget for such 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)year and setting forth the assumptions used for purposes of preparing such budget) and, promptly when available, any significant revisions of such budget;
(e) promptly after the same become publicly available, copies of all periodic and other reports, proxy statements and other materials filed by Holdings, the Borrower or any Subsidiary with the SECSecurities and Exchange Commission, or any Governmental Authority succeeding to any or all of the functions of said Commission, or with any national securities exchange, or, after the initial Public Equity Offering (disregarding for purposes of this Section 5.4(e) the Net Cash Proceeds dollar threshold contained in the definition of such term), distributed to its shareholders, as the case may be;
(f) promptly after the receipt thereof by Holdings or Holdings, the Borrower or any Subsidiaryof the Subsidiaries, 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
(g) 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 (acting through the Administrative Agent) may reasonably request. Documents required to be delivered pursuant to Section 5.4(a), (b) or (e) (to the extent any such documents are included in materials otherwise filed with the SEC) may be delivered electronically and if so delivered, shall be deemed to have been delivered on the date (i) on which the Borrower posts such documents, or provides a link thereto on the Borrower’s website on the Internet at the Borrower’s website address; or (ii) on which such documents are posted on the Borrower’s behalf on IntraLinks/IntraAgency or another relevant website, if any, to which each Lender and the Administrative Agent have access (whether a commercial, third-party website or whether sponsored by the Administrative Agent).
Appears in 1 contract
Financial Statements, Reports, etc. In the case of the Borrower, furnish to the Administrative Agent (either physically or through electronic delivery reasonably acceptable to the Administrative Agent), which shall furnish to each Lender:
(a) within 90 95 days after the end of each fiscal year, its consolidated balance sheet and related statements of income, stockholders’ equity and cash flows showing the financial condition of the Borrower and its consolidated Subsidiaries as of the close of such fiscal year and the results of its operations and the operations of such Subsidiaries during such year, together with comparative figures for the immediately preceding fiscal year, all audited by Ernst Deloitte & Young Touche LLP or other independent public accountants of recognized national standing and accompanied by an opinion of such 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 Borrower and its consolidated Subsidiaries on a consolidated basis in accordance with GAAP consistently applied;
(b) within 45 50 days after the end of each of the first three fiscal quarters of each fiscal year, its consolidated balance sheet and related statements of income, stockholders’ equity and 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 Borrower and its consolidated Subsidiaries on a consolidated basis in accordance with GAAP consistently applied, 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 statement of income showing the financial condition of the Borrower and its consolidated Subsidiaries during such fiscal month and the then elapsed portion of the fiscal year, all certified by one of its Financial Officers as fairly presenting the financial condition and results of operations of the Borrower and its consolidated Subsidiaries on a consolidated basis in accordance with GAAP consistently applied, subject to normal year-end audit adjustments;
(d) concurrently with any delivery of financial statements under paragraph (a), (b) or (bc) above, a certificate of the accounting firm (in the case of paragraph (a)) 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 accounting matters and disclaim responsibility for legal interpretations and which may be provided by a Financial Officer if accounting firms generally are not providing such certificates) (i) certifying that no Event of Default or Default has occurred or, if such an Event of Default or Default has occurred, specifying the nature and extent thereof and any corrective action taken or proposed to be taken with respect thereto and (ii) setting forth computations in reasonable detail satisfactory to the Administrative Agent demonstrating compliance with the covenants contained in Sections 6.66.06, 6.10, 6.11 6.11, 6.12 and 6.12 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 6.86.08;
(de) within 45 days after the commencement of each fiscal year of the Borrower, (i) 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 (ii) a summary consolidated budget for the fiscal year immediately following such fiscal year, in each case setting forth the assumptions used for purposes of preparing such budget;
(ef) promptly after the same become publicly available, copies of all periodic and other reports, proxy statements and other materials filed by Holdings, the Borrower or any Subsidiary with the SECSecurities and Exchange Commission, or any Governmental Authority succeeding to any or all of the functions of said Commission, or with any national securities exchange, or, after the initial Public Equity Offering (disregarding for purposes of this Section 5.4(e5.04(f) the Net Cash Proceeds dollar threshold contained in the definition of such term), distributed to its shareholders, as the case may be;
(fg) promptly after the receipt thereof by Holdings or the Borrower or any Subsidiary, a copy of any “management letter” received by any such person from its certified public accountants and the management’s response thereto; and
(gh) 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 may reasonably request. Documents required to be delivered pursuant to Section 5.4(a), (b) or (e) (to the extent any such documents are included in materials otherwise filed with the SEC) may be delivered electronically and if so delivered, shall be deemed to have been delivered on the date (i) on which the Borrower posts such documents, or provides a link thereto on the Borrower’s website on the Internet at the Borrower’s website address; or (ii) on which such documents are posted on the Borrower’s behalf on IntraLinks/IntraAgency or another relevant website, if any, to which each Lender and the Administrative Agent have access (whether a commercial, third-party website or whether sponsored by the Administrative Agent).
Appears in 1 contract
Financial Statements, Reports, etc. In the case of the BorrowerIBM, furnish to the Administrative Agent (either physically or through electronic delivery reasonably acceptable for distribution to the Administrative Agent), which shall furnish to each LenderLenders:
(a) as soon as available and in any event within 90 days after the end of each fiscal year, its copies of the report filed by IBM with the SEC on Form 10-K in respect of such fiscal year, each accompanied by IBM’s annual report in respect of such fiscal year or, if IBM is not required to file such a report in respect of such fiscal year, the consolidated balance sheet and related statements consolidated income statement, consolidated statement of income, stockholders’ equity and cash flows showing the financial condition and consolidated statement of the Borrower equity of IBM and its consolidated Subsidiaries as of the close of such fiscal year and the results of its operations and the operations of such Subsidiaries during such year, together with comparative figures for the immediately preceding fiscal year, all audited by Ernst & Young LLP PricewaterhouseCoopers or other independent public accountants of recognized national standing and accompanied by an opinion of such accountants (which shall not be qualified in any material respect) 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 Borrower IBM and its consolidated Subsidiaries on a consolidated basis in accordance conformity with GAAP consistently appliedGAAP;
(b) as soon as available and in any event within 45 50 days after the end of each of the first three fiscal quarters quarterly periods of each fiscal year, its copies of the unaudited quarterly reports filed by IBM with the SEC on Form 10-Q in respect of such quarterly period, or if IBM is not required to file such a report in respect of such quarterly period, the unaudited consolidated balance sheet and related statements unaudited consolidated income statement, consolidated statement of income, stockholders’ equity and cash flows showing the financial condition and consolidated statement of the Borrower equity of IBM 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 yearquarter, and comparative figures for the same periods in the immediately preceding fiscal year, all certified by one a Responsible Officer of its Financial Officers IBM as fairly presenting presenting, in all material respects, the financial condition and position, results of operations and cash flows of the Borrower IBM and its consolidated Subsidiaries on a consolidated basis in accordance with GAAP consistently appliedGAAP, subject to normal year-end audit adjustments;
(c) concurrently with any delivery of financial statements under by IBM described in paragraph (a), ) or (b) aboveabove (whether contained in a report filed with the SEC or otherwise), a certificate of the accounting firm (a Responsible Officer of IBM substantially in the case form of paragraph (aSchedule 6.2(c)) or Financial Officer (in the case of paragraph (b)) opining on or certifying such statements (which certificate, when furnished by an accounting firm, may be limited to accounting matters and disclaim responsibility for legal interpretations and which may be provided by a Financial Officer if accounting firms generally are not providing such certificates) (i) certifying that no Event of Default or Default has occurred or, if such an Event of Default or Default has occurred, specifying the nature and extent thereof and any corrective action taken or proposed to be taken with respect thereto and (ii) setting forth computations in reasonable detail satisfactory to the Administrative Agent demonstrating compliance with the covenants contained in Sections 6.6, 6.10, 6.11 and 6.12 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 6.8;
(d) within 45 days after the commencement of each fiscal year of the Borrower, a detailed consolidated budget for such fiscal year (including a projected consolidated balance sheet and related statements of projected operations and cash flows as of the end of and for such fiscal year);
(e) promptly after the same become publicly available, copies of (i) all periodic financial statements, notices, reports and other reportsproxy materials distributed to stockholders of IBM and (ii) all reports on Form 10-K, proxy statements 10-Q and other materials 8-K (or their equivalents) filed by Holdings, the Borrower or any Subsidiary IBM with the SEC, SEC (or with any Governmental Authority succeeding to any or all of the functions of said Commission, or with any national securities exchange, or, after the initial Public Equity Offering (disregarding for purposes SEC) pursuant to the periodic reporting requirements of this Section 5.4(e) the Net Cash Proceeds dollar threshold contained in the definition Securities Exchange Act of such term), distributed to its shareholders1934, as amended, and the case may berules and regulations promulgated thereunder; provided, that documents required to be furnished under this paragraph (d) shall be deemed furnished when made available via the XXXXX (or any successor) system of the SEC;
(f) promptly after the receipt thereof by Holdings or the Borrower or any Subsidiary, a copy of any “management letter” received by any such person from its certified public accountants and the management’s response thereto; and
(ge) promptly, from time to time, (i) such other publicly available documents and information regarding the operations, business affairs and financial condition of HoldingsIBM, the Borrower any Significant Subsidiary or any SubsidiarySubsidiary Borrower (including information relating to “know your customer” or similar identification procedures), or compliance with the terms of this Agreement and (ii) solely with respect to each Subsidiary Borrower (if any), information and documentation reasonably requested by the Administrative Agent or any Loan DocumentLender for purposes of compliance with applicable “know your customer” and anti-money laundering rules and regulations, including the Patriot Act and the Beneficial Ownership Regulation, in each case as the Administrative Agent or any Lender (through the Administrative Agent) may reasonably request. Documents required ; and
(f) within ten Business Days after the occurrence thereof, written notice of any change in Status; provided that the failure to be delivered provide such notice shall not delay or otherwise affect any change in the Applicable Margin or other amount payable hereunder which is to occur upon a change in Status pursuant to Section 5.4(a), the terms of this Agreement. With respect to the documents referred to in paragraphs (ba) or through (e) (to the extent any above, IBM shall furnish such documents are included in materials otherwise filed with the SEC) may be delivered electronically and if so delivered, shall be deemed to have been delivered on the date (i) on which the Borrower posts such documents, or provides a link thereto on the Borrower’s website on the Internet at the Borrower’s website address; or (ii) on which such documents are posted on the Borrower’s behalf on IntraLinks/IntraAgency or another relevant website, if any, to which each Lender and number of copies as the Administrative Agent have access (whether a commercial, third-party website or whether sponsored by the Administrative Agent)Lenders shall reasonably require for distribution to their personnel in connection with this Agreement.
Appears in 1 contract
Samples: Credit Agreement (International Business Machines Corp)
Financial Statements, Reports, etc. In the case of the Borrower, furnish Furnish to the Administrative Agent (either physically or through electronic delivery reasonably acceptable to the Administrative Agent), which shall furnish to and each LenderBank:
(a) within the earlier of (x) the period for the required filing of a report on Form 10-K with the Securities and Exchange Commission including such financial statements and (y) 90 days after the end of each fiscal yearyear of the Borrower, its a consolidated balance sheet of the Borrower and its consolidated subsidiaries, the related consolidated statements of income, stockholdersoperations and the related consolidated statements of Stockholders’ equity Equity and cash flows flows, showing the financial condition of the Borrower and its consolidated Subsidiaries subsidiaries as of the close of such fiscal year and the results of its operations and the operations of such Subsidiaries during such year, together with comparative figures for the immediately preceding fiscal year, all such consolidated financial statements audited by Ernst and accompanied by the report thereon of Deloitte & Young Touche LLP or other independent public accountants of recognized national standing reasonably acceptable to the Required Banks and accompanied by an opinion of such 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 Borrower and its consolidated Subsidiaries on a consolidated basis in accordance with GAAP consistently applied);
(b) within the earlier of (x) the period for the required filing of a report on Form 10-Q with the Securities and Exchange Commission including such financial statements and (y) 45 days after the end of each of the first three fiscal quarters of each fiscal yearyear of the Borrower, its a consolidated balance sheet and related consolidated statements of income, stockholders’ equity retained earnings and cash flows flows, showing the financial condition of the Borrower and its consolidated Subsidiaries 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 a Financial Officer of its Financial Officers the Borrower 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;
(c) concurrently with no later than three Business Days after any delivery of financial statements under paragraph (a), ) or (b) above, a certificate of the accounting firm (in the case of paragraph (a)) or a Financial Officer of the Borrower (in which may be the case of paragraph (b)same certificate delivered pursuant to the Revolving Credit Agreement) opining on or certifying such statements (which certificate, when furnished by an accounting firm, may be limited to accounting matters and disclaim responsibility for legal interpretations and which may be provided by a Financial Officer if accounting firms generally are not providing such certificates) (i) certifying stating that no Event of Default or Default has occurred and is continuing or, if such an Event of Default or Default has occurredoccurred and is continuing, specifying the nature and extent thereof and any corrective action taken or proposed to be taken with respect thereto and (ii) setting forth computations in reasonable detail satisfactory to the Administrative Agent demonstrating compliance with the covenants contained in Sections 6.6, 6.10, 6.11 and 6.12 and, in the case of a certificate delivered with the financial statements required by paragraph (a7.01(a) above, (x) setting forth the Borrower’s calculation of Excess Cash Flow and (yb)(v) 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 6.87.03;
(d) within 45 days promptly after the commencement same become publicly available, copies of each fiscal year all material periodic and other reports, proxy statements and other materials filed by the Borrower or any Subsidiary with the Securities and Exchange Commission, or any governmental authority succeeding to any of or all the Borrowerfunctions of said Commission, a detailed consolidated budget for such fiscal year (including a projected consolidated balance sheet and related statements of projected operations and cash flows or with any national securities exchange, or distributed to its public shareholders or distributed to the Revolving Lenders, as of the end of and for such fiscal year)case may be;
(e) promptly after the same become publicly available, copies of all periodic and other reports, proxy statements and other materials material reports pertaining to any change in ownership filed by Holdings, the Borrower or any Subsidiary with the SEC, or any Governmental Authority succeeding to any or all of the functions of said Commission, or with any national securities exchange, or, after the initial Public Equity Offering (disregarding for purposes of this Section 5.4(e) the Net Cash Proceeds dollar threshold contained in the definition of such term), distributed to its shareholders, as the case may be;
(f) promptly after the receipt thereof by Holdings or the Borrower or any Subsidiary, a copy of any “management letter” received by any such person from its certified public accountants and the management’s response theretoAuthority; and
(gf) 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 Bank may reasonably request. Documents Information required to be delivered furnished pursuant to this Section 5.4(a), (b) or (e) (to the extent any such documents are included in materials otherwise filed with the SEC) may be delivered electronically and if so delivered, 6.04 shall be deemed to have been delivered on furnished to the date Agent and the Banks if such information, or one or more annual or quarterly reports containing such information (i) shall have been posted by the Agent on an IntraLinks, Syndtrak or similar site to which the Borrower posts such documentsBanks have been granted access, or provides a link thereto on the Borrower’s website on the Internet at the Borrower’s website address; or (ii) on which such documents are shall be posted on the Borrower’s behalf on IntraLinks/IntraAgency an Intralinks, Syndtrak or another relevant website, if any, similar site to which each Lender the Agent and the Administrative Agent Banks have been granted access or (whether iii) shall be available on the website of the Securities and Exchange Commission at hxxx://xxx.xxx.xxx (and a commercial, third-party website confirming electronic correspondence shall have been delivered or whether sponsored caused to be delivered to the Banks providing notice of such posting or availability). Information required to be delivered pursuant to this Section 6.04 may also be delivered by electronic communications pursuant to procedures approved by the Administrative Agent).
Appears in 1 contract
Samples: Senior Unsecured Term Loan Agreement (Scripps Networks Interactive, Inc.)
Financial Statements, Reports, etc. In the case of the Borrower, furnish to the Administrative Agent (either physically or through electronic delivery reasonably acceptable to the Administrative Agent), which shall furnish to and each Lender:
: (a) within 90 days after the end of each fiscal year, its consolidated and consolidating balance sheet sheets and related statements of incomeoperations, stockholders’ ' equity and cash flows showing the financial condition of the Borrower and its consolidated Subsidiaries as of the close of such fiscal year and the results of its operations and the operations of such Subsidiaries during such year, together with comparative figures for audited, in the immediately preceding fiscal yearcase of the consolidated financial statements, all audited by Ernst & Young Price Waterhouse LLP or other independent public accountants of recognized national standing acceptable to the Required Lenders and accompanied by an opinion of such accountants (which shall not 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 of the Borrower and its consolidated the Subsidiaries on a consolidated basis in accordance with GAAP consistently applied and, in the case of the consolidating financial statements, certified by a Financial Officer of the Borrower as presenting fairly in all material respects the financial condition and results of operations of the Borrower and the Subsidiaries on a consolidating basis in accordance with GAAP consistently applied;
; (b) within 45 days after the end of each of the first three fiscal quarters of each fiscal year, its consolidated and consolidating balance sheet sheets and related statements of incomeoperations, stockholders’ ' equity and 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 presenting fairly presenting in all material respects the financial condition and results of operations of the Borrower and its consolidated the Subsidiaries on a consolidated and a consolidating basis in accordance with GAAP consistently applied, subject to normal year-end audit adjustments;
adjustments and the absence of footnotes; (c) concurrently with any delivery of financial statements under sub-paragraph (a), ) or (b) above, a certificate of the accounting firm (in the case of paragraph (a)) or Financial Officer (in the case of paragraph (b)) opining on or certifying such statements (which certificate, when furnished by an accounting firm, may be limited to accounting matters and disclaim responsibility for legal interpretations and which may be provided by a Financial Officer if accounting firms generally are not providing such certificatesinterpretations) (i) certifying that no Event of Default or Default has occurred or, if such an Event of Default or Default has occurred, specifying the nature and extent thereof and any corrective action taken or proposed to be taken with respect thereto (it being understood that such certificate, when given by an accounting firm, may be limited to their knowledge as obtained in the course of their audit and without special investigation) and (ii) setting forth computations in reasonable detail satisfactory to the Administrative Agent showing the Leverage Ratio and the Interest Coverage Ratio as of the last day of the fiscal year or fiscal quarter to which such statements relate and demonstrating compliance with the covenants contained in Sections 6.6, 6.10, 6.11 6.11, 6.12 and 6.12 and, 6.13 (it being understood that the information required by this clause (ii) may be provided in the case a certificate of a certificate delivered with Financial Officer on behalf of the financial statements required by paragraph (a) above, (x) setting forth Borrower instead of from 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 6.8;
accounting firm); (d) within 45 days after the commencement of each fiscal year of the Borrower, a detailed consolidated budget for such fiscal year (including a projected consolidated balance sheet and related statements of projected operations and cash flows as of the end of and for such fiscal year);
(e) promptly after the same become publicly available, copies of all periodic and other reports, proxy statements and other materials filed by Holdings, the Borrower or any Subsidiary with the SECSecurities and Exchange Commission, or any Governmental Authority succeeding to any or all of the functions of said Commission, or with any national securities exchange, or, after the initial Public Equity Offering (disregarding for purposes of this Section 5.4(e) the Net Cash Proceeds dollar threshold contained in the definition of such term), or distributed to its shareholders, as the case may be;
; (e) if, as a result of any change in accounting principles and policies from those as in effect on the date hereof, the consolidated and consolidating financial statements of the Borrower and the Subsidiaries delivered pursuant to paragraph (a) or (b) above will differ in any material respect from the consolidated or consolidating financial statements that would have been delivered pursuant to such clauses had no such change in accounting principles and policies been made, then together with the first delivery of financial statements pursuant to paragraph (a) and (b) above following such change, a schedule prepared by a Financial Officer of the Borrower reconciling such changes to what the financial statements would have been without such changes; (f) promptly after concurrently with the receipt thereof by Holdings or the Borrower or any Subsidiarydelivery of financial statement under subparagraph (a) above, a copy of any “management letter” received by any such person from its certified public accountants an operating and capital expenditure budget for the management’s response theretonext succeeding fiscal year; and
(g) promptlypromptly upon the creation or acquisition of any Subsidiary or upon any Inactive Subsidiary ceasing to be an Inactive Subsidiary, a certificate from time to timea Responsible Officer of the Borrower, identifying such other information regarding Subsidiary and the operations, business affairs and financial condition ownership interest of Holdings, 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 5.4(a), (b) or (e) (to the extent any such documents are included in materials otherwise filed with the SEC) may be delivered electronically and if so delivered, shall be deemed to have been delivered on the date (i) on which the Borrower posts such documents, or provides a link thereto on the Borrower’s website on the Internet at the Borrower’s website address; or (ii) on which such documents are posted on the Borrower’s behalf on IntraLinks/IntraAgency or another relevant website, if any, to which each Lender and the Administrative Agent have access Subsidiaries therein; (whether a commercial, third-party website or whether sponsored by the Administrative Agent).
Appears in 1 contract
Financial Statements, Reports, etc. In the case of the BorrowerBorrower and the Guarantors, furnish deliver to the Administrative Agent (either physically or through electronic delivery reasonably acceptable to and each of the Administrative Agent), which shall furnish to each LenderBanks:
(a) within 90 days after the end of each fiscal year, its the Borrower's consolidated and consolidating balance sheet sheets and related statements of income, stockholders’ equity income and cash flows flows, showing the financial condition of the Borrower and its Subsidiaries on a consolidated Subsidiaries and consolidating basis as of the close of such fiscal year and the results of its their respective operations and the operations of such Subsidiaries during such year, together with comparative figures the consolidated statement of the Borrower to be audited for the immediately preceding fiscal year, all audited Borrower and its consolidated Subsidiaries by Ernst & Young Arthur Andersen LLP or by other independent public accountants of recognized national rxxxxxxzxx xxxxxnal standing acceptable to the Required Banks and accompanied by an opinion of such accountants (which shall not be qualified in any material respect) respect other than with respect to the Case), and the consolidating statement to be subjected to the auditing procedures applied to such audit of the consolidated statement, 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 Borrower and its consolidated Subsidiaries on a consolidated basis in accordance with GAAP consistently applied;
(b) within 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, its the Borrower's consolidated and consolidating balance sheet sheets and related statements of income, stockholders’ equity income and cash flows flows, showing the financial condition of the Borrower and its Subsidiaries on a consolidated Subsidiaries and consolidating basis as of the close of such fiscal quarter and the results of its their 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 each certified by one of its a Financial Officers Officer as fairly presenting the financial condition and results of operations of the Borrower and its consolidated it Subsidiaries on a consolidated and consolidating basis in accordance with GAAP consistently applied, subject to normal year-end audit adjustments;
(c) concurrently with any delivery of financial statements under paragraph (a), ) or (b) above, (i) a certificate of the accounting firm (in the case of paragraph (a)) or a Financial Officer (in the case of paragraph (b)) opining on or Officer, certifying such statements (which certificate, when furnished by an accounting firm, may be limited to accounting matters and disclaim responsibility for legal interpretations and which may be provided by a Financial Officer if accounting firms generally are not providing such certificates) (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 occurred, or, if such an Event of Default or Default event has occurred, specifying the nature and extent thereof 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 provisions of Sections 6.6, 6.10, 6.11 6.04 and 6.12 and6.05 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 the case course of a certificate delivered with the financial statements required by paragraph (a) aboveregular audit of the business of the Borrower and its consolidated Subsidiaries, (x) setting forth the Borrower’s calculation such accountants have obtained no knowledge that an Event of Excess Cash Flow Default has occurred and (y) certifying that there has been no change is continuing, or if, in the business activitiesopinion of such accountants, assets or liabilities an Event of HoldingsDefault has occurred and is continuing, or if there has been any such change, describing such change in reasonable detail specifying the nature thereof and certifying that Holdings is in compliance all relevant facts with Section 6.8respect thereto;
(d) concurrently within 45 any delivery of financial statements under (b) above, monthly financial projections for the following six fiscal month period;
(e) within 35 days after of the commencement end of each fiscal year of month (commencing with the Borrowerfiscal month ending on or about January 30, a detailed consolidated budget 1998, PROVIDED that the reports for such fiscal year (including month required by this Section may be delivered together with the reports for the fiscal month ending on March 1, 1998 required by this Section) the unaudited monthly cash flow reports of the Borrower and its Subsidiaries on a projected consolidated basis as of the close of such fiscal month and for the then elapsed portion of the fiscal year, together with the Borrower's consolidated and consolidating balance sheet sheets and related statements of projected operations income, showing the financial condition of the Borrower and cash flows its Subsidiaries on a consolidated and consolidating basis as of the end close of and for such fiscal month and the results of their operations during such fiscal month and the then elapsed portion of the fiscal year), all certified by a Financial Officer as fairly presenting the results of operations of the Borrower and the Guarantors on a consolidated basis, subject to normal year-end audit adjustments, PROVIDED that the financial statements of Changing Paradigms, Inc. need not be consolidated with the Borrower's financial statements more frequently than quarterly;
(ef) as soon as possible, and in any event on or before April 30, 1998, the Borrower's unaudited consolidated and consolidating balance sheet as of the Filing Date in detail reasonably satisfactory to the Agent;
(g) as soon as practicable, any material modifications to the Borrower's January 6, 1998 (11:32 p.m.) forecast heretofore furnished to the Agent;
(h) promptly after the same become publicly available, copies of all periodic and other reports, proxy statements and other materials filed by Holdings, the Borrower or any Subsidiary it with the SECSecurities and Exchange Commission, or any Governmental Authority governmental authority succeeding to any of or all of the functions of said Commissioncommission, or with any national securities exchange, or, after the initial Public Equity Offering (disregarding for purposes of this Section 5.4(e) the Net Cash Proceeds dollar threshold contained in the definition of such term), distributed to its shareholders, as the case may be;
(fi) promptly as soon as available and in any event (A) within 30 days after the receipt thereof by Holdings or the Borrower or any Subsidiary, a copy of its ERISA Affiliates knows or has reason to know that any “management letter” received by Termination Event described in clause (i) of the definition of Termination Event with respect to any Single Employer Plan of the Borrower or such person from its certified public accountants ERISA Affiliate has occurred and the management’s response thereto; and
(gB) promptly, from time to time, such other information regarding the operations, business affairs and financial condition of Holdings, within 10 days after the Borrower or any Subsidiary, of its ERISA Affiliates knows or compliance has reason to know that any other Termination Event with the terms of any Loan Document, as the Administrative Agent or any Lender may reasonably request. Documents required respect to be delivered pursuant to Section 5.4(a), (b) or (e) (to the extent any such documents are included in materials otherwise filed with the SEC) may be delivered electronically and if so deliveredPlan has occurred, shall be deemed to have been delivered on the date (i) on which a statement of a Financial Officer of the Borrower posts describing such documents, or provides a link thereto on Termination Event and the Borrower’s website on the Internet at the Borrower’s website address; or (ii) on which such documents are posted on the Borrower’s behalf on IntraLinks/IntraAgency or another relevant websiteaction, if any, which the Borrower or such ERISA Affiliate proposes to which each Lender and the Administrative Agent have access (whether a commercial, third-party website or whether sponsored by the Administrative Agent).take with respect thereto;
Appears in 1 contract
Samples: Revolving Credit and Guaranty Agreement (Paragon Trade Brands Inc)
Financial Statements, Reports, etc. In TXU (and TXU Electric and TXU Gas, to the case of the Borrowerextent such information relates to TXU Electric or TXU Gas, as applicable, only) will furnish to the Administrative Agent (either physically or through electronic delivery reasonably acceptable to the Administrative Agent), which shall furnish to Agents and each Lender:
(a) as soon as available and in any event within 90 120 days after the end of each fiscal yearyear of TXU, its a consolidated balance sheet and related statements of income, stockholders’ equity and cash flows showing the financial condition of the Borrower TXU and its consolidated Consolidated Subsidiaries as of the close end of such fiscal year and the results related consolidated statements of its operations income, retained earnings and the operations of cash flows for such Subsidiaries during such fiscal year, together with setting forth in each case in comparative form the figures for the immediately preceding previous fiscal year, all audited reported on in a manner reasonably acceptable to the Securities and Exchange Commission by Ernst Deloitte & Young Touche LLP or other independent public accountants of nationally recognized national standing and accompanied by an opinion of such 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 Borrower and its consolidated Subsidiaries on a consolidated basis in accordance with GAAP consistently appliedstanding;
(b) as soon as available and in any event within 45 60 days after the end of each of the first three fiscal quarters of each fiscal year, its year of TXU a consolidated balance sheet and related statements of income, stockholders’ equity and cash flows showing the financial condition of the Borrower TXU and its consolidated Consolidated Subsidiaries as of the close end of such fiscal quarter and the results related consolidated statements of its operations income for such quarter, for the portion of TXU's fiscal year ended at the end of such quarter, and for the twelve months ended at the end of such quarter, and the operations related consolidated statement of cash flows for the portion of TXU's fiscal year ended at the end of such Subsidiaries during such fiscal quarter and the then elapsed portion of the fiscal yearquarter, and setting forth comparative figures for previous dates and periods to the same periods extent required in the immediately preceding fiscal yearForm 10-Q, all certified by one of its Financial Officers as fairly presenting the financial condition and results of operations of the Borrower and its consolidated Subsidiaries on a consolidated basis in accordance with GAAP consistently applied, (subject to normal year-end audit adjustments) as to fairness of presentation, GAAP and consistency by a Financial Officer of TXU;
(c) concurrently simultaneously with any delivery of each set of financial statements under referred to in paragraphs (a) and (b) above, (i) an unconsolidated balance sheet of TXU and the related unconsolidated statements of income, retained earnings and cash flows as of the same date and for the same periods applicable to the statements delivered pursuant to paragraph (a), ) or (b) above, a certificate of the accounting firm as applicable, all certified (subject to normal year-end adjustments in the case of paragraph (a)quarterly statements) or Financial Officer (in the case as to fairness of paragraph (b)) opining on or certifying such statements (which certificatepresentation, when furnished by an accounting firm, may be limited to accounting matters GAAP and disclaim responsibility for legal interpretations and which may be provided consistency by a Financial Officer if accounting firms generally are not providing such certificates) (i) certifying that no Event of Default or Default has occurred or, if such an Event of Default or Default has occurred, specifying the nature and extent thereof and any corrective action taken or proposed to be taken with respect thereto TXU and (ii) a certificate of a Financial Officer of TXU (A) setting forth computations in reasonable detail satisfactory the calculations required to the Administrative Agent demonstrating establish whether TXU was in compliance with the covenants contained in requirements of Sections 6.65.11 and 5.12 on the date of such financial statements, 6.10, 6.11 and 6.12 (B) stating whether any Default or Event of Default exists on the date of such certificate and, in if any Default or Event of Default then exists, setting forth the case of a certificate delivered details thereof and the action which TXU is taking or proposes to take with respect thereto;
(d) simultaneously with the delivery of each set of financial statements required by referred to in paragraph (a) above, a statement of the firm of independent public accountants which reported on such statements (xi) setting forth stating whether anything has come to their attention to cause them to believe that any Default or Event of Default existed on the Borrower’s calculation date of Excess Cash Flow such statements and (yii) certifying that there has been no change confirming the calculations set forth 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 6.8;
Financial Officer's certificate delivered simultaneously therewith pursuant to paragraph (dc) within 45 days after the commencement of each fiscal year of the Borrower, a detailed consolidated budget for such fiscal year (including a projected consolidated balance sheet and related statements of projected operations and cash flows as of the end of and for such fiscal year)above;
(e) forthwith upon becoming aware of the occurrence of any Default or Event of Default, a certificate of a Financial Officer of TXU setting forth the details thereof and the action which TXU is taking or proposes to take with respect thereto;
(f) promptly after upon the same become publicly availablemailing thereof to the shareholders of TXU generally, copies of all periodic financial statements, reports and other reports, proxy statements so mailed; (g) promptly upon the filing thereof, copies of each final prospectus (other than a prospectus included in any registration statement on Form S-8 or its equivalent or with respect to a dividend reinvestment plan) and other materials all reports on Forms 10-K, 10-Q and 8-K and similar reports which TXU, TXU Electric or TXU Gas shall have filed by Holdings, the Borrower or any Subsidiary with the SEC, or any Governmental Authority succeeding to any of or all of the functions of said Commission, or with any national securities exchange, or, after the initial Public Equity Offering (disregarding for purposes of this Section 5.4(e) the Net Cash Proceeds dollar threshold contained in the definition of such term), distributed to its shareholders, as the case may be;
(f) promptly after the receipt thereof by Holdings or the Borrower or any Subsidiary, a copy of any “management letter” received by any such person from its certified public accountants and the management’s response thereto; and
(g) 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 may reasonably request. Documents required to be delivered pursuant to Section 5.4(a), (b) or (e) (to the extent any such documents are included in materials otherwise filed with the SEC) may be delivered electronically and if so delivered, shall be deemed to have been delivered on the date (i) on which the Borrower posts such documents, or provides a link thereto on the Borrower’s website on the Internet at the Borrower’s website address; or (ii) on which such documents are posted on the Borrower’s behalf on IntraLinks/IntraAgency or another relevant website, if any, to which each Lender and the Administrative Agent have access (whether a commercial, third-party website or whether sponsored by the Administrative Agent).;
Appears in 1 contract
Samples: 364 Day Competitive Advance and Revolving Credit Facility Agreement (Txu Electric Co)
Financial Statements, Reports, etc. In the case of the Borrower, furnish to the Administrative Agent (either physically or through electronic delivery reasonably acceptable Furnish to the Administrative Agent), which shall furnish to the Senior Managing Agents, the Managing Agents, the Fronting Bank, the Swingline Lender and each Lender:
(a) in the case of JSCE, within 90 days after the end of each fiscal year, its consolidated balance sheet and related statements of incomeoperations, stockholders’ ' equity and cash flows flows, showing the financial condition of the Borrower such Person and its consolidated Subsidiaries as of the close of such fiscal year and the results of its operations and the operations of such Subsidiaries during such year, together with comparative figures for the immediately preceding fiscal year, all audited by Ernst & Young LLP or other independent public accountants auditors of recognized national standing acceptable to the Required Lenders and accompanied by an opinion of such 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 Borrower and its consolidated Subsidiaries such Person on a consolidated basis in accordance with GAAP consistently appliedGAAP;
(b) in the case of JSCE, within 45 days after the end of each of the first three fiscal quarters of each fiscal year, (i) its consolidated balance sheet and related statements of incomeoperations, stockholders’ ' equity and cash flows flows, showing the financial condition of the Borrower such Person 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 then-elapsed portion of the fiscal yearyear and (ii) a narrative discussion of the results of operations of JSCE and its consolidated Subsidiaries in a form reasonably satisfactory to the Senior Managing Agents (it being understood that, and comparative figures for the same periods in the immediately preceding fiscal yearcase of clause (i) above, all such information shall be in reasonable detail and certified by one a Financial Officer of its Financial Officers JSCE, as fairly presenting in all material respects the financial condition and results of operations of the Borrower and its consolidated Subsidiaries JSCE on a consolidated basis in accordance with GAAP consistently appliedGAAP, subject to normal year-end audit adjustments);
(c) [Intentionally Omitted];
(d) concurrently with any delivery of financial statements of JSCE under paragraph (a), ) or (b) above, a certificate of the accounting firm (in the case of paragraph (a)) or Financial Officer (in the case of paragraph (b)) opining on or certifying such statements (which certificate, when furnished by an accounting firm, may be limited to accounting matters and disclaim responsibility for legal interpretations and which may be provided by a Financial Officer if accounting firms generally are not providing of such certificates) Person (i) certifying that that, after due investigation and reasonable inquiry, no Default or Event of Default or Default has occurred or, if such an a Default or Event of Default or Default has occurred, specifying the nature and extent thereof and any corrective action taken or proposed to be taken with respect thereto and (ii) setting forth computations in reasonable detail satisfactory to the Administrative Agent Senior Managing Agents of the ratios contemplated by Section 2.06(c) and demonstrating compliance with the covenants contained in Sections 6.67.01, 6.107.02, 6.11 7.03, 7.04, 7.06, 7.13, 7.14 and 6.12 and, in the case 7.15;
(e) concurrently with any delivery of a certificate delivered with the financial statements required by under paragraph (a) above, a certificate of the accounting firm opining on such statements (xwhich certificate may be limited to accounting matters and disclaim responsibility for legal interpretations) setting forth 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 Borrower’s calculation of Excess Cash Flow nature and extent thereof and (yii) certifying that there based on its audit examination, nothing has been no change come to its attention that leads it to believe that the information contained 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 certificate delivered therewith pursuant to paragraph (d) above is in compliance with Section 6.8not correct;
(d) within 45 days after the commencement of each fiscal year of the Borrower, a detailed consolidated budget for such fiscal year (including a projected consolidated balance sheet and related statements of projected operations and cash flows as of the end of and for such fiscal year);
(ef) promptly after the same become publicly available, copies of all periodic and other reports, proxy statements and other materials (other than (i) the exhibits to registration statements and (ii) any registration statements on Form S-8 or its equivalent) filed by HoldingsSSCC, JSCE, the Borrower Borrower, JSC Capital, JSC Xxxxxxx or SNC or any Subsidiary of their respective Subsidiaries with the SECSecurities and Exchange Commission, or any Governmental Authority succeeding to any of or all of the functions of said such Commission, or with any national securities exchange, or, after the initial Public Equity Offering (disregarding for purposes of this Section 5.4(e) the Net Cash Proceeds dollar threshold contained in the definition of such term), or distributed to its shareholdersany such Person's shareholders (other than SSCC, JSCE, or the Borrower), as the case may be;
(fg) 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 JSCE's normal accounting procedures applied on a consistent basis, for the next fiscal year of JSCE;
(h) upon the earlier of (i) 90 days after the end of each fiscal year of JSCE and (ii) the date on which the financial statements of JSCE are delivered pursuant to paragraph (a) above, a certificate of a Financial Officer of JSCE setting forth, in detail reasonably satisfactory to the Senior Managing Agents, the amount of Excess Cash Flow, if any, for such fiscal year;
(i) promptly after the receipt thereof by Holdings or the Borrower or any Subsidiary, a copy of any “management letter” received by any such person from its certified public accountants and the management’s response thereto; and
(g) promptly, from time to time, such other information regarding the operations, business affairs and financial condition of HoldingsSSCC, JSCE, the Borrower Borrower, JSC Capital, JSC Xxxxxxx or any SubsidiarySNC, or compliance with the terms of any Loan Document, as the Administrative Agent Agent, the Senior Managing Agents, the Managing Agents, the Fronting Bank, the Swingline Lender or any Lender may reasonably request. Documents required to be delivered pursuant to Section 5.4(a; and
(j) a copy of all notices (other than notices regarding any scheduled or mandatory repayments), (b) certificates, financial statements and reports, as and when delivered by or (e) (on behalf of the Borrower to the extent holders of any such documents are included in materials otherwise filed with the SEC) may be delivered electronically and if so deliveredSubordinated Indebtedness, shall be deemed to have been delivered on the date (i) on which the Borrower posts such documents, Senior Notes or provides a link thereto on the Borrower’s website on the Internet at the Borrower’s website address; or (ii) on which such documents are posted on the Borrower’s behalf on IntraLinks/IntraAgency or another relevant website, if any, to which each Lender and the Administrative Agent have access (whether a commercial, third-party website or whether sponsored by the Administrative Agent)1993 Senior Notes.
Appears in 1 contract
Financial Statements, Reports, etc. In the case of the Borrower, furnish Furnish to the Administrative Agent (either physically or through electronic delivery reasonably acceptable to the Administrative Agent), which shall furnish to each Lender:
(a) as soon as available, but in any event within 90 days after the end of each fiscal yearyear of Aceto, its a copy of the audited consolidated balance sheet of Aceto and its Subsidiaries as of the end of such year and the related audited consolidated statements of income, stockholders’ shareholders equity and cash flows showing flow for such year, setting forth in each case in comparative form the financial condition of the Borrower and its consolidated Subsidiaries respective figures as of the close end of such fiscal year and the results of its operations and the operations of such Subsidiaries during such year, together with comparative figures for the immediately preceding previous fiscal year, all audited and accompanied by Ernst & Young a report thereon of BDO Xxxxxxx LLP or other independent certified public accountants of recognized national standing selected by Aceto and satisfactory to the Lender (the “Auditor”), which report shall be unqualified, and which statements shall be prepared in accordance with Generally Accepted Accounting Principles, applied on a consistent basis, and accompanied by an opinion of such accountants (which shall not be qualified in any material respect) a certificate to that effect executed by the effect that such consolidated financial statements fairly present the financial condition and results of operations of the Borrower and its consolidated Subsidiaries on a consolidated basis in accordance with GAAP consistently applied;Chief Financial Officer.
(b) within as soon as available, but in any event not later than 45 days after the end of each of the first three fiscal quarters quarterly period of each fiscal yearyear of Aceto, its a copy of the unaudited interim consolidated balance sheet of Aceto and its Subsidiaries as of the end of each such quarter and the related unaudited interim consolidated and consolidating statements of income, stockholders’ shareholders equity and cash flows showing flow for such quarter and the financial condition portion of the Borrower fiscal year through such date and its consolidated Subsidiaries setting forth in each case in comparative form the respective figures for the corresponding date and period in the previous fiscal year, in each case prepared by the Chief Financial Officer in accordance with Generally Accepted Accounting Principles, applied on a consistent basis, and accompanied by a certificate to that effect executed by the Chief Financial Officer;
(c) an annual debt compliance memorandum in the form previously provided to the Lender signed by the Auditor with each delivery required by clause (a);
(d) a certificate prepared and signed by the Chief Financial Officer with each delivery required by (a) and (b), as to whether or not, as of the close of such fiscal quarter preceding period and at all times during such preceding period, each Company was in compliance with all the provisions in this Agreement and the results other Loan Documents, showing computation of its operations 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, it shall disclose in such certificate such default or defaults or notice thereof and the operations of such Subsidiaries during such fiscal quarter and the then elapsed portion of the fiscal yearnature thereof, and comparative figures for whether or not 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 Borrower and its consolidated Subsidiaries on shall constitute a consolidated basis in accordance with GAAP consistently applied, subject to normal year-end audit adjustments;
(c) concurrently with any delivery of financial statements under paragraph (a), or (b) above, a certificate of the accounting firm (in the case of paragraph (a)) or Financial Officer (in the case of paragraph (b)) opining on or certifying such statements (which certificate, when furnished by an accounting firm, may be limited to accounting matters and disclaim responsibility for legal interpretations and which may be provided by a Financial Officer if accounting firms generally are not providing such certificates) (i) certifying that no Event of Default or Default has occurred or, if such an Event of Default or Default has occurred, specifying the nature and extent thereof and any corrective action taken or proposed to be taken with respect thereto and (ii) setting forth computations in reasonable detail satisfactory to the Administrative Agent demonstrating compliance with the covenants contained in Sections 6.6, 6.10, 6.11 and 6.12 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 6.8;
(d) within 45 days after the commencement of each fiscal year of the Borrower, a detailed consolidated budget for such fiscal year (including a projected consolidated balance sheet and related statements of projected operations and cash flows as of the end of and for such fiscal year)hereunder;
(e) promptly after the same become publicly available, copies of at all periodic and other reports, proxy statements and other materials filed by Holdings, the Borrower or any Subsidiary with the SEC, or any Governmental Authority succeeding to any or all times indicated in clause (a) above a copy of the functions of said Commissionmanagement letter, or with any national securities exchangeif any, or, after prepared by the initial Public Equity Offering (disregarding for purposes of this Section 5.4(e) the Net Cash Proceeds dollar threshold contained in the definition of such term), distributed to its shareholders, as the case may beAuditor;
(f) if applicable, promptly after the receipt thereof by Holdings or the Borrower filing thereof, copies of all regular and periodic financial information, proxy materials and other information and reports which Aceto or any Subsidiaryof its Subsidiaries shall file with the Securities and Exchange Commission;
(g) within forty-five (45) days after the end of each fiscal year a schedule of Material Contracts in effect as of the last day of such fiscal year;
(h) within forty-five (45) days after the end of each fiscal quarter, (i) a copy calculation of Consolidated EBITDA and consolidated revenue of the Immaterial Subsidiaries (as that term is defined in Section 6.13) for such fiscal quarter ended and (ii) a report identifying (x) the cost of the remediation incurred with respect to the Carstadt Real Property during such fiscal quarter ended, (y) the total of such costs incurred to date, and (z) the outstanding Indebtedness, if any, identified in Section 7.02(m);
(i) promptly after submission to any “management letter” received 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 materially adverse action to be taken by any such person from its certified public accountants and the management’s response theretoagency; and
(gj) promptly, from time to time, such other information regarding the operations, business affairs and condition (financial condition or otherwise) of Holdings, the Borrower Aceto or any Subsidiary, or compliance with the terms of any Loan Document, its Subsidiaries as the Administrative Agent or any Lender may reasonably request. Documents required to be delivered pursuant to Section 5.4(a), (b) or (e) (to the extent any such documents are included in materials otherwise filed with the SEC) may be delivered electronically and if so delivered, shall be deemed to have been delivered on the date (i) on which the Borrower posts such documents, or provides a link thereto on the Borrower’s website on the Internet at the Borrower’s website address; or (ii) on which such documents are posted on the Borrower’s behalf on IntraLinks/IntraAgency or another relevant website, if any, to which each Lender and the Administrative Agent have access (whether a commercial, third-party website or whether sponsored by the Administrative Agent).
Appears in 1 contract
Samples: Credit Agreement (Aceto Corp)
Financial Statements, Reports, etc. In the case of the BorrowerPolypore, furnish to the Administrative Agent (either physically or through electronic delivery reasonably acceptable to the Administrative Agent), which shall furnish to each Lender:
(a) within 90 days after the end of each fiscal year, its consolidated balance sheet and related statements of income, stockholders’ equity and cash flows showing the financial condition of the Borrower Polypore and its consolidated Subsidiaries as of the close of such fiscal year and the results of its operations and the operations of such Subsidiaries during such year, together with comparative figures for the immediately preceding fiscal year, all audited by Ernst & Young LLP or other independent public accountants of recognized national standing and accompanied by an opinion of such 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 Borrower Polypore and its consolidated Subsidiaries on a consolidated basis in accordance with GAAP consistently applied;
(b) within 45 days after the end of each of the first three fiscal quarters of each fiscal year, its consolidated balance sheet and related statements of income, stockholders’ equity and cash flows showing the financial condition of the Borrower Polypore 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 Borrower Polypore and its consolidated Subsidiaries on a consolidated basis in accordance with GAAP consistently applied, subject to normal year-end audit adjustments;
(c) concurrently with any delivery of financial statements under paragraph (a), or (b) above, a certificate of the accounting firm (in the case of paragraph (a)) or Financial Officer (in the case of paragraph (b)) opining on or certifying such statements (which certificate, when furnished by an accounting firm, may be limited to accounting matters and disclaim responsibility for legal interpretations and which may be provided by a Financial Officer if accounting firms generally are not providing such certificates) (i) certifying that no Event of Default or Default has occurred or, if such an Event of Default or Default has occurred, specifying the nature and extent thereof and any corrective action taken or proposed to be taken with respect thereto and thereto; provided that for certificates delivered by the accounting firm such certification shall be limited to an Event of Default or Default pursuant to Section 6.10, (ii) setting forth computations in reasonable detail satisfactory to the Administrative Agent demonstrating compliance with of the covenants contained Total Leverage Ratio, the Senior Leverage Ratio and the Consolidated Interest Coverage Ratio as of the last day of the relevant fiscal period and (iii) setting forth computations in Sections 6.6, 6.10, 6.11 and 6.12 reasonable detail satisfactory to the Administrative Agent of any Specified Payment made during the relevant fiscal period (including calculations of the Available Amount and, if applicable, the Total Leverage Ratio as of each relevant date) and, (iv) in the case of a certificate delivered with the financial statements required by paragraph (a) above, (x) setting forth the BorrowerPolypore’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 6.8Flow;
(d) within 45 days after the commencement of each fiscal year of the BorrowerPolypore, 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);
(e) promptly after the same become publicly available, copies of all periodic and other reports, proxy statements and other materials filed by Holdings, the Borrower or any Subsidiary Group Member with the SEC, or any Governmental Authority succeeding to any or all of the functions of said Commission, or with any national securities exchange, or, after the initial Public Equity Offering (disregarding for purposes of this Section 5.4(e) the Net Cash Proceeds dollar threshold contained in the definition of such term), exchange distributed to its shareholders, as the case may be;
(f) promptly after the receipt thereof by Holdings or the Borrower or any SubsidiaryGroup Member, a copy of any “management letter” received by any such person Person from its certified public accountants and the management’s response thereto; and
(g) promptly, from time to time, such other information regarding the operations, business affairs and financial condition of Holdings, the Borrower or any SubsidiaryGroup Member, 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 5.4(a), (b) or (e) (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 Polypore posts such documents, or provides a link thereto on the BorrowerPolypore’s website on the Internet at the BorrowerPolypore’s website address; or (ii) on which such documents are posted on the BorrowerPolypore’s behalf on IntraLinks/IntraAgency or another relevant website, if any, to which each Lender and the Administrative Agent have access (whether a commercial, third-party website or whether sponsored by the Administrative Agent).
Appears in 1 contract
Financial Statements, Reports, etc. In the case of the BorrowerOvernite, furnish to the Administrative Agent (either physically or through electronic delivery reasonably acceptable to the Administrative Agent), which shall furnish to with sufficient copies for each Lender:):
(a) within 90 days after the end of each fiscal year, its consolidated balance sheet and related consolidated statements of income, stockholders’ equity and cash flows showing the financial condition of the Borrower Overnite and its consolidated Subsidiaries as of the close of such fiscal year and the results of its operations and the operations of such Subsidiaries during such year, together with comparative figures for the immediately preceding fiscal year, all audited by Ernst Deloitte & Young Touche LLP or other independent public accountants of recognized national standing selected by Overnite and accompanied by an opinion of such 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 Borrower Overnite and its consolidated Subsidiaries on a consolidated basis in accordance with GAAP consistently applied;
(b) within 45 days after the end of each of the first three fiscal quarters of each fiscal year, its consolidated balance sheet and related consolidated statements of income, stockholders’ equity and cash flows showing the financial condition of the Borrower Overnite 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 on behalf of Overnite by one of its Financial Officers as fairly presenting in all material respects the financial condition and results of operations of the Borrower Overnite and its consolidated Subsidiaries on a consolidated basis in accordance with GAAP consistently applied, subject to normal year-end audit adjustments;
(c) concurrently with any delivery of financial statements under paragraph (a), ) or (b) above, a certificate of the accounting firm (in the case of paragraph (a)) or Financial Officer (in the case of paragraph (b)) opining on or certifying such statements (which certificate, when furnished by an accounting firm, may be limited to accounting matters and disclaim responsibility for legal interpretations and which may be provided by a Financial Officer if accounting firms generally are not providing such certificates) Overnite (i) certifying that no Event of Default or Default has occurred or, if such an Event of Default or Default has occurred, specifying the nature and extent thereof and any corrective action taken or proposed to be taken with respect thereto and (ii) setting forth computations in reasonable detail satisfactory to the Administrative Agent demonstrating compliance with the covenants contained in Sections 6.6, 6.10, 6.11 6.10 and 6.12 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 6.86.11;
(d) within 45 days after the commencement of each fiscal year of the Borrower, a detailed consolidated budget for such fiscal year (including a projected consolidated balance sheet and related statements of projected operations and cash flows as of the end of and for such fiscal year);
(e) promptly after the same become publicly available, copies of all periodic and other reports, proxy statements and other materials filed by HoldingsOvernite, the Borrower or any Subsidiary with the SECSecurities and Exchange Commission, or any Governmental Authority succeeding to any or all of the functions of said Commission, or with any national securities exchange, or, after the initial Public Equity Offering (disregarding for purposes of this Section 5.4(e) the Net Cash Proceeds dollar threshold contained in the definition of such term), or distributed to its shareholders, as the case may be;
(fe) promptly after the receipt thereof by Holdings or the Borrower or any Subsidiarypromptly, following a copy of any “management letter” received request by any Lender, provide all documentation and other information that such person from Lender reasonably requests in order to comply with its certified public accountants ongoing obligations under applicable “know your customer” and anti-money laundering rules and regulations, including the management’s response theretoUSA Patriot Act; and
(gf) promptly, from time to time, such other information regarding the operations, business affairs and financial condition of HoldingsOvernite, the Borrower or any Subsidiary, or compliance with the terms of any Loan Document, as the Administrative Agent or any Lender Lender, through the Administrative Agent, may reasonably request. Documents required to be delivered pursuant to Section 5.4(a), (b) or (e) (to the extent any such documents are included in materials otherwise filed with the SEC) may be delivered electronically and if so delivered, shall be deemed to have been delivered on the date (i) on which the Borrower posts such documents, or provides a link thereto on the Borrower’s website on the Internet at the Borrower’s website address; or (ii) on which such documents are posted on the Borrower’s behalf on IntraLinks/IntraAgency or another relevant website, if any, to which each Lender and the Administrative Agent have access (whether a commercial, third-party website or whether sponsored by the Administrative Agent).
Appears in 1 contract
Samples: Credit Agreement (Overnite Corp)
Financial Statements, Reports, etc. In the case of the Borrower, furnish Furnish to the Administrative Agent (either physically or through electronic delivery reasonably acceptable which will promptly furnish such information to the Administrative Agent), which shall furnish to each Lender:Lenders):
(a) within 90 days after the end of each fiscal year, its a consolidated balance sheet and related consolidated statements of incomeoperations and comprehensive income (loss), changes in stockholders’ equity and cash flows flow (in each case, or the equivalent) showing the financial condition position of the Borrower Reporting Entity and its consolidated Subsidiaries as of the close of such fiscal year and the consolidated results of its their operations and the operations of such Subsidiaries during such year, together with year and setting forth in comparative form the corresponding figures for the immediately preceding prior fiscal year, all which consolidated balance sheet and related consolidated statements of operations and comprehensive income (loss), changes in stockholders’ equity and cash flow (in each case, or the equivalent) shall be accompanied by customary management’s discussion and analysis and audited by Ernst & Young LLP or other independent public accountants of recognized national standing and accompanied by an opinion of such accountants (which opinion shall not be qualified as to scope of audit or as to the status of the Borrower or any Material Subsidiary as a going concern on a consolidated basis, other than with respect to, or resulting from, an upcoming maturity date under any series of indebtedness, any breach of a financial maintenance covenant or any potential inability to satisfy a financial maintenance covenant on a future date or in any material respecta future period) 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 Borrower Reporting Entity and its consolidated Subsidiaries on a consolidated basis in accordance with GAAP consistently applied(it being understood that the delivery by the Reporting Entity of annual reports on Form 10-K (or any successor or comparable form) of the Reporting Entity and its consolidated Subsidiaries shall satisfy the requirements of this Section 5.04(a) to the extent such annual reports include the information specified herein);
(b) within 45 60 days after the end of each of the first three fiscal quarters of each fiscal yearyear (other than a fourth fiscal quarter), its a consolidated balance sheet and related consolidated statements of incomeoperations and comprehensive income (loss), changes in stockholders’ equity and cash flows (in each case, or the equivalent) showing the financial condition position of the Borrower Reporting Entity and its consolidated Subsidiaries as of the close of such fiscal quarter and the consolidated results of its their operations and the operations of such Subsidiaries during such fiscal quarter and the then then-elapsed portion of the fiscal year, year and setting forth in comparative form the corresponding figures for the same corresponding periods in of the immediately preceding prior fiscal year, all of which shall be in reasonable detail, which consolidated balance sheet and related consolidated statements of operations and comprehensive income (loss), changes in stockholders’ equity and cash flows (in each case, or the equivalent) shall be accompanied by customary management’s discussion and analysis and shall be certified by one a Financial Officer of its Financial Officers the Reporting Entity on behalf of the Reporting Entity as fairly presenting presenting, in all material respects, the financial condition position and results of operations of the Borrower Reporting Entity and its consolidated Subsidiaries on a consolidated basis in accordance with GAAP consistently applied, (subject to normal year-end audit adjustmentsadjustments and the absence of footnotes) (it being understood that the delivery by the Reporting Entity of quarterly reports on Form 10-Q (or any successor or comparable form) of the Reporting Entity and its consolidated Subsidiaries shall satisfy the requirements of this Section 5.04(b) to the extent such quarterly reports include the information specified herein); provided, that, with respect to any acquisition or Investment consummated after the Closing Date, the financial statements delivered pursuant to this clause (b) shall not be required to reflect purchase accounting adjustments relating thereto until the delivery of financial statements under clause (a) above;
(c) concurrently with any delivery of financial statements under paragraph clause (a), ) or (b) above, a certificate of the accounting firm (in the case of paragraph (a)) or Financial Officer (in the case of paragraph (b)) opining on or certifying such statements (which certificate, when furnished by an accounting firm, may be limited to accounting matters and disclaim responsibility for legal interpretations and which may be provided by a Financial Officer if accounting firms generally are not providing such certificates) of the Borrower (i) certifying that no Event of Default or Default has occurred since the date of the last certificate delivered pursuant to this Section 5.04(c) or, if such an Event of Default or Default has occurred, specifying the nature and extent thereof and any corrective action taken or proposed to be taken with respect thereto and (ii) commencing with the end of the first full fiscal quarter ending after the Closing Date, setting forth computations in reasonable detail satisfactory to the Administrative Agent demonstrating compliance with the covenants contained in Sections 6.6, 6.10, 6.11 and 6.12 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 6.8Financial Covenant;
(d) within 45 days after the commencement of each fiscal year of the Borrower, a detailed consolidated budget for such fiscal year (including a projected consolidated balance sheet and related statements of projected operations and cash flows as of the end of and for such fiscal year);
(e) promptly after the same become publicly available, copies of all periodic and other publicly available reports, proxy statements and and, to the extent requested by the Administrative Agent, other materials filed by Holdings, the Borrower or any Subsidiary of the Subsidiaries with the SEC, or any Governmental Authority succeeding after an initial public offering, distributed to any or all of the functions of said Commissionits stockholders generally, or with any national securities exchangeas applicable; provided, orhowever, after the initial Public Equity Offering that such reports, proxy statements, filings and other materials required to be delivered pursuant to this clause (disregarding d) shall be deemed delivered for purposes of this Agreement when posted to the website of the Borrower (or Holdings or any Parent Entity referred to in Section 5.4(e5.04(h)) or the Net Cash Proceeds dollar threshold contained website of the SEC;
(e) within 90 days (or such later date as the Administrative Agent may agree in its reasonable discretion) after the definition beginning of such termeach fiscal year (commencing with the first fiscal year commencing on January 1, 2023), distributed a consolidated annual budget for such fiscal year consisting of a projected consolidated balance sheet of the Borrower and its Subsidiaries as of the end of the following fiscal year and the related consolidated statements of projected cash flow and projected income (collectively, the “Budget”), which Budget shall in each case be accompanied by the statement of a Financial Officer of the Borrower to its shareholders, the effect that the Budget is based on assumptions believed by the Borrower to be reasonable as of the case may bedate of delivery thereof;
(f) promptly after upon the receipt thereof by Holdings reasonable request of the Administrative Agent not more frequently than once a year, an updated Perfection Certificate (or, to the extent such request relates to specified information contained in the Perfection Certificate, such information) reflecting all changes since the date of the information most recently received pursuant to this clause (f) or the Borrower or any Subsidiary, a copy of any “management letter” received by any such person from its certified public accountants and the management’s response thereto; andSection 5.10(f);
(g) promptly, from time to time, (i) such other customary information regarding the operations, business affairs and financial condition of Holdings, the Borrower or any Subsidiaryof the Subsidiaries, or compliance with the terms of any Loan Document, Document that is reasonably available to the Borrower as in each case the Administrative Agent may reasonably request (for itself or on behalf of any Lender); provided that in connection with the foregoing, the Borrower will not be required to provide any information to the extent that the provision thereof would violate any law, rule or regulation, or any Lender may obligation of confidentiality owing to a third party binding on the Borrower or its Affiliates; and (ii) information and documentation reasonably request. Documents requested by the Administrative Agent (for itself or on behalf of any Lender) required under applicable “know your customer” requirements under the USA PATRIOT Act or other applicable anti-money laundering laws and the Beneficial Ownership Regulation;
(h) the financial statements, information and other documents required to be delivered provided in clauses (a) and (b) of this Section 5.04 may be those of the Borrower, Holdings or any Parent Entity (any such entity that produces such financial statements, information or other documents, the “Reporting Entity”) so long as, in the case of Holdings or any Parent Entity, such financial statements are accompanied by a reconciliation showing the adjustments necessary to determine compliance by the Borrower and its Subsidiaries with the Financial Covenant; and
(i) unless otherwise waived by the Administrative Agent, no later than 10 Business Days after the delivery of the financial statements required pursuant to clauses (a) and (b) of this Section 5.4(a5.04, commencing with the financial statements for the first full fiscal period ending after the Closing Date, the Borrower shall hold a customary conference call for Lenders. The Borrower hereby acknowledges and agrees that all financial statements furnished pursuant to clauses (a), (b) or and (ed) (above are hereby deemed to the extent any such documents are included in materials otherwise filed with the SEC) be Borrower Materials suitable for distribution, and to be made available, to Public Lenders as contemplated by Section 9.17 and may be delivered electronically and if so delivered, shall be deemed to have been delivered on the date (i) on which the Borrower posts such documents, or provides a link thereto on the Borrower’s website on the Internet at the Borrower’s website address; or (ii) on which such documents are posted on the Borrower’s behalf on IntraLinks/IntraAgency or another relevant website, if any, to which each Lender and treated by the Administrative Agent have access and the Lenders as if the same had been marked “PUBLIC” in accordance with such paragraph (whether a commercial, third-party website or whether sponsored by unless the Borrower otherwise notifies the Administrative AgentAgent in writing on or prior to delivery thereof).
Appears in 1 contract
Financial Statements, Reports, etc. In the case of the Borrower, furnish Parent shall deliver (or cause to the Administrative Agent (either physically or through electronic delivery reasonably acceptable be delivered) to the Administrative Agent), which shall furnish to each LenderBuyer:
(a) within 90 days after the end of each fiscal year, its consolidated balance sheet as soon as available and related statements of income, stockholders’ equity and cash flows showing the financial condition of the Borrower and its consolidated Subsidiaries as of the close of such fiscal year and the results of its operations and the operations of such Subsidiaries during such year, together with comparative figures for the immediately preceding fiscal year, all audited by Ernst & Young LLP or other independent public accountants of recognized national standing and accompanied by an opinion of such accountants (which shall not be qualified in any material respectevent within fifty-five (55) to the effect that such consolidated financial statements fairly present the financial condition and results of operations of the Borrower and its consolidated Subsidiaries on a consolidated basis in accordance with GAAP consistently applied;
(b) within 45 days after the end of each of the first three quarterly fiscal quarters periods of each fiscal yearyear of Guarantor, the unaudited, consolidated balance sheets of Guarantor, which shall incorporate its consolidated balance sheet subsidiaries, as at the end of such period and the related unaudited, consolidated statements of income, stockholders’ equity income and retained earnings and of cash flows showing the financial condition of the Borrower and for Guarantor, which shall incorporate its consolidated Subsidiaries as of the close of Subsidiaries, for such fiscal quarter period and the results of its operations and the operations of such Subsidiaries during such fiscal quarter and the then elapsed portion of the fiscal yearyear through the end of such period, and comparative figures for accompanied by an Officer’s Certificate of Guarantor, which certificate shall state that said consolidated financial statements fairly present the same periods in the immediately preceding fiscal year, all certified by one of its Financial Officers as fairly presenting the consolidated financial condition and results of operations of the Borrower Guarantor and its consolidated Subsidiaries on a consolidated basis in accordance with GAAP GAAP, consistently applied, as at the end of, and for, such period (subject to normal year-end audit adjustments);
(c) concurrently with any delivery of financial statements under paragraph (a), or (b) above, a certificate of the accounting firm as soon as available and in any event within one hundred (in the case of paragraph (a)100) or Financial Officer (in the case of paragraph (b)) opining on or certifying such statements (which certificate, when furnished by an accounting firm, may be limited to accounting matters and disclaim responsibility for legal interpretations and which may be provided by a Financial Officer if accounting firms generally are not providing such certificates) (i) certifying that no Event of Default or Default has occurred or, if such an Event of Default or Default has occurred, specifying the nature and extent thereof and any corrective action taken or proposed to be taken with respect thereto and (ii) setting forth computations in reasonable detail satisfactory to the Administrative Agent demonstrating compliance with the covenants contained in Sections 6.6, 6.10, 6.11 and 6.12 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 6.8;
(d) within 45 days after the commencement end of each fiscal year of each Guarantor, the Borrowerconsolidated balance sheet of the Guarantor, a detailed which shall incorporate its respective consolidated budget for Subsidiaries, if any, as at the end of such fiscal year (including a projected and the related consolidated balance sheet and related statements of projected operations income and retained earnings and of cash flows as of the end of and for Guarantor, which shall incorporate its consolidated Subsidiaries, for such fiscal year);
(e) promptly after the same become publicly available, copies accompanied by an opinion thereon of all periodic and other reports, proxy statements and other materials filed by Holdings, the Borrower or any Subsidiary with the SEC, or any Governmental Authority succeeding to any or all of the functions of said Commission, or with any national securities exchange, or, after the initial Public Equity Offering (disregarding for purposes of this Section 5.4(e) the Net Cash Proceeds dollar threshold contained in the definition of such term), distributed to its shareholders, as the case may be;
(f) promptly after the receipt thereof by Holdings or the Borrower or any Subsidiary, a copy of any “management letter” received by any such person from its independent certified public accountants of recognized national standing, which opinion shall not be qualified as to scope of audit or going concern and shall state that said consolidated financial statements fairly present the management’s response theretoconsolidated financial condition and results of operations of Guarantor and its consolidated Subsidiaries as at the end of, and for, such fiscal year in accordance with GAAP; and
(gc) promptly, from time to timewithin ten (10) Business Days after Buyer’s request, such other further 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 may reasonably request. Documents required to be delivered pursuant to Section 5.4(a), (b) or (e) (respect to the extent any such documents are included in materials otherwise filed with financial affairs of the SEC) Guarantor as may be delivered electronically and if so delivered, shall be deemed to have been delivered on the date (i) on which the Borrower posts such documents, or provides a link thereto on the Borrower’s website on the Internet at the Borrower’s website address; or (ii) on which such documents are posted on the Borrower’s behalf on IntraLinks/IntraAgency or another relevant website, if any, to which each Lender and the Administrative Agent have access (whether a commercial, third-party website or whether sponsored requested by the Administrative Agent)Buyer.
Appears in 1 contract
Samples: Guaranty (Gramercy Capital Corp)
Financial Statements, Reports, etc. In the case of the Borrower, furnish to the Administrative Agent (either physically or through electronic delivery reasonably acceptable to the Administrative Agent), which Such Borrower shall furnish to each Lender:
(a) within 90 one hundred twenty (120) days after the end of each fiscal yearyear of such Borrower, its annual consolidated and consolidating financial statements for KMC Holdings, including the balance sheet sheets and related statements of operations, income, stockholders’ ' equity and cash flows showing the financial condition of the Borrower and its consolidated Subsidiaries as of the close of flows, for such fiscal year and the results of its operations and the operations of such Subsidiaries during such year, together with comparative figures for the immediately preceding fiscal year, all prepared in accordance with GAAP, which consolidated financial statements and other above described financial information shall have been audited by Ernst & Young LLP or other a nationally recognized independent certified public accountants of recognized national standing accounting firm satisfactory to Lender, and accompanied by an opinion of such 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 Borrower and its consolidated Subsidiaries on a consolidated basis in accordance with GAAP consistently appliedindependent certified public accounting firm's unqualified opinion;
(b) within 45 forty-five (45) days after the end of each of the first three fiscal quarters of month and each fiscal yearquarter during each fiscal year of such Borrower, its consolidated and consolidating unaudited balance sheet sheets and related statements of incomeoperations for KMC Holdings, and consolidated and consolidating statements of stockholders’ ' equity and cash flows showing the financial condition of the Borrower and its consolidated Subsidiaries KMC Holdings as of the close end of each such month or fiscal quarter quarter, as applicable, and the results of its operations and the operations of such Subsidiaries during such fiscal quarter and for 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 Borrower and its consolidated Subsidiaries on a consolidated basis in accordance with GAAP consistently applied, subject to normal year-end audit adjustments;
(c) concurrently with any delivery of financial statements under paragraph (a), or ) and (b) above, a certificate of KMC Holdings's independent certified public accountant or KMC Holdings's chief financial officer, as applicable, to the accounting firm (effect that the financial statements referred to in the case of paragraph clause (a)) or Financial Officer (in the case of paragraph (b)) opining on above, present fairly the financial position and results of operations of KMC Holdings, KMC and KMC II and as having been prepared in accordance with GAAP consistently applied, in each case subject to normal year end audit adjustments except for the statements referred to in clause (a) above;
(d) concurrently with (a) above, and any statements delivered pursuant to (b) above in respect of the month of March and the period ending March 31, the month of June and the period ending June 30 or the month of September and the period ending September 30, a Periodic Reporting Certificate of the chief financial officer of KMC Holdings setting forth the calculations contemplated in ARTICLE VII hereof, and certifying as to the fact that such statements (which certificate, when furnished by an accounting firm, may be limited to accounting matters Person has examined the provisions of this Agreement and disclaim responsibility for legal interpretations and which may be provided by a Financial Officer if accounting firms generally are not providing such certificates) (i) certifying that no Event of Default or Default has any Default, shall have occurred or, and be continuing or if such an event has occurred, a statement explaining its nature and extent and setting forth the steps KMC or KMC II proposes to take to cure or prevent any Event of Default;
(i) not later than December 1 of each calendar year, consolidating and consolidated projected and annual revenue and income statements, including detailed revenue and expense statements, balance sheets and cash flow statements for KMC Holdings for the succeeding fiscal year, such statements to be reasonably acceptable to Lender, and a revised Milestone Plan satisfactory to Lender, and (ii) not later than January 15 of each calendar year until January 15, 1998 an annual operating budget on a monthly basis for such calendar year and not later than January 15 of each calendar year beginning January 15, 1999, an annual operating budget on a quarterly basis for such calendar year;
(f) all material agreements or licenses affecting the Governmental Approvals of either Borrower or any System promptly after any execution, or material amendment thereto;
(g) promptly upon their becoming available, copies of any periodic or special documents, statements or other information filed by either Borrower with the FCC, PUC or other Governmental Authority in connection with the construction and/or operation of any System or with respect to the transactions contemplated by any of the Loan Documents, and copies of any material notices and other material communications from the FCC, PUC or from any other Governmental Authority;
(h) immediately upon any officer of either Borrower obtaining knowledge of any condition or event (i) which either constitutes an Event of Default or Default has occurreda Default, (ii) which renders any representation, covenant or warranty contained herein materially false or misleading, or (iii) which would result in any financial results for any fiscal year to materially deviate from the financial results projected for such fiscal year in the Milestone Plan or the financial projections described in clause (e) described above, a certificate signed by an authorized officer of such Borrower specifying in reasonable detail the nature and extent period of existence thereof and any what corrective action such Borrower has taken or proposed proposes to be taken take with respect thereto and thereto;
(iii) setting forth computations in reasonable detail satisfactory to within thirty (30) days after the Administrative Agent demonstrating compliance with the covenants contained in Sections 6.6end of each fiscal year of such Borrower, 6.10, 6.11 and 6.12 and, in the case of a certificate delivered with the financial statements required signed by paragraph (a) above, an authorized officer of such Borrower (x) setting forth all the Borrower’s calculation Leased Real Property, Easements, licenses, rights of Excess Cash Flow way and other similar interests in real property acquired by such Borrower in the preceding year and (y) certifying confirming that there no Default or Event of Default 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 occurred and certifying that Holdings is in compliance with Section 6.8continuing;
(dj) within 45 evidence in the manner set forth in SECTION 5.04(E) of insurance complying with SECTION 5.04;
(k) following the written request of Lender, not later than forty-five (45) days after the commencement end of each fiscal year month, reports on accounts receivable and accounts payable of such Borrower in such detail and format as may be reasonably requested by the 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)Lender;
(el) promptly after upon the same become publicly availablefiling thereof, copies of all periodic and other reports, proxy registration statements and annual, quarterly, monthly or other materials filed by Holdings, the regular reports which such Borrower or any Subsidiary KMC Holdings files with the SEC, or any Governmental Authority succeeding to any or all of the functions of said Securities and Exchange Commission, or with any national securities exchange, or, after the initial Public Equity Offering (disregarding for purposes of this Section 5.4(e) the Net Cash Proceeds dollar threshold contained in the definition of such term), distributed to its shareholders, as the case may be;
(f) promptly after the receipt thereof by Holdings or the Borrower or any Subsidiary, a copy of any “management letter” received by any such person from its certified public accountants and the management’s response thereto; and
(gm) promptly, promptly from time to time, time such other information regarding the operationsoperations (including, without limitation, construction budgeting and System completion), business affairs and condition (financial condition or otherwise) of Holdings, the such Borrower or any Subsidiary, or compliance with the terms of any Loan Document, KMC Holdings as the Administrative Agent or any Lender may reasonably request. Documents required to be delivered pursuant to Section 5.4(a), (b) or (e) (to the extent any such documents are included in materials otherwise filed with the SEC) may be delivered electronically and if so delivered, shall be deemed to have been delivered on the date (i) on which the Borrower posts such documents, or provides a link thereto on the Borrower’s website on the Internet at the Borrower’s website address; or (ii) on which such documents are posted on the Borrower’s behalf on IntraLinks/IntraAgency or another relevant website, if any, to which each Lender and the Administrative Agent have access (whether a commercial, third-party website or whether sponsored by the Administrative Agent).
Appears in 1 contract
Samples: Loan and Security Agreement (KMC Telecom Holdings Inc)
Financial Statements, Reports, etc. In Furnish to the case Agent, with copies for each of the Borrower, furnish to the Administrative Agent (either physically or through electronic delivery reasonably acceptable to the Administrative Agent), which shall furnish to each LenderLenders:
(a) within 90 days after the end of each fiscal yearFiscal Year, its consolidated (i) Consolidated and consolidating balance sheet sheets and related Consolidated and consolidating income statements of income, stockholders’ equity and cash flows showing the Consolidated financial condition of the Borrower Parent and its consolidated Consolidated Subsidiaries as of the close of such fiscal year Fiscal Year and the results of its their Consolidated operations and the operations of such Subsidiaries during such year, together with comparative figures (ii) a Consolidated statement of shareholders' equity, and (iii) 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 yearFiscal Year, all the foregoing Consolidated financial statements to be audited by Ernst & Young LLP or other independent public accountants of recognized national standing or any other independent public accountants acceptable to the Agent and accompanied by an opinion of such accountants (which opinion shall not contain any qualification with respect to a departure from GAAP or a limitation on the scope of the auditor's engagement), and to be qualified in any material respect) form and substance acceptable to the effect that such consolidated financial statements fairly present the financial condition and results of operations of the Borrower and its consolidated Subsidiaries on a consolidated basis in accordance with GAAP consistently appliedAgent;
(b) within 45 days after the end of each of the first three (3) fiscal quarters of each fiscal yearthe Parent, its consolidated (i) unaudited Consolidated and consolidating balance sheet sheets and related Consolidated and consolidating income statements of income, stockholders’ equity and 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 Consolidated financial condition and results of operations of the Borrower Parent and its consolidated Consolidated Subsidiaries on as of the end of each such quarter and during such quarter, (ii) a consolidated basis Consolidated statement of shareholders' equity and (iii) a Consolidated statement of cash flow, in each case for the fiscal quarter just ended and for the 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 (h) below and to the results for the comparable period during the immediately preceding Fiscal Year, in each case prepared and certified by the Financial Officer of the Parent as presenting fairly in all material respects the Consolidated financial condition and results of operations of the Parent and its Consolidated Subsidiaries and as having been prepared in accordance with GAAP consistently applied(except the absence of footnote disclosure), in each case subject to normal year-end audit adjustments;
(c) within 30 days after the end of each month (i) unaudited Consolidated and consolidating balance sheets and income statements showing the Consolidated financial condition and results of operations of the Parent and its Consolidated Subsidiaries as of the end of each such month and during such month, (ii) a Consolidated statement of shareholders' equity and (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 (h) below and to the results for the comparable period during the immediately preceding Fiscal Year, prepared and certified by the Financial Officer of the Borrower as presenting fairly in all material respects its Consolidated financial condition and results of operations of the Borrower and their Consolidated Subsidiaries and as having been prepared in accordance with GAAP (except the absence of footnote disclosures), in each case subject to normal year-end audit adjustments;
(d) 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 Parent or any Subsidiaries with the Securities and Exchange Commission pursuant to the requirements of applicable securities legislation, including the Securities Act of 1933 or the Securities Exchange Act of 1934;
(i) concurrently with any delivery of financial statements under paragraph (a), ) or (b) above, a certificate of the accounting firm or person referred to therein (x) which certificate shall, in the case of paragraph (a)) or the certificate of the Financial Officer (in of the case Borrower, certify that to the best of paragraph (b)) opining on his or certifying such statements (which certificate, when furnished by an accounting firm, may be limited to accounting matters and disclaim responsibility for legal interpretations and which may be provided by a Financial Officer if accounting firms generally are not providing such certificates) (i) certifying that her knowledge no Default or Event of Default or Default has occurred or(including calculations demonstrating compliance, as of the dates of the financial statements being furnished, with the covenants set forth in Sections 7.10, 7.11 and 7.12 hereof) and, if such an a Default or Event of Default or Default has occurred, specifying the nature and extent thereof and any corrective action taken or proposed to be taken with respect thereto and (iiy) setting forth computations in reasonable detail satisfactory to the Administrative Agent demonstrating compliance with the covenants contained in Sections 6.6, 6.10, 6.11 and 6.12 andwhich certificate, in the case of a the certificate delivered with furnished by the financial statements required by independent public accountants referred in paragraph (a) above, may be limited to accounting matters and disclaim responsibility for legal interpretations, but shall in any event certify that to the best of such accountants' knowledge, as of the dates of the financial statements being furnished no Default or Event of Default has occurred under any of the covenants set forth in Sections 7.10, 7.11 and 7.12 hereof (xsuch certificate to include calculations demonstrating compliance with such covenants) setting forth and, if such a Default or Event of Default has occurred, specifying the Borrower’s calculation of Excess Cash Flow nature and (y) certifying extent thereof and any corrective action taken or proposed to be taken with respect thereto, and shall in addition certify that there has been no change in the business activitiescourse of preparing the audit and the certificate referred to herein, assets such accountants have not become aware of the occurrence of any other Default or liabilities Event of HoldingsDefault and, if such a Default or if there Event of Default has been occurred, specifying the nature thereof; provided, however, that any such change, describing such change in reasonable detail certificate delivered concurrently with (a) above shall be accompanied by a supplemental certificate confirming the accuracy of the accountants' certificate and certifying that Holdings is in compliance with Section 6.8;
(d) within 45 days after signed by the commencement of each fiscal year Financial Officer 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);
(e) promptly after the same become publicly available, copies of all periodic and other reports, proxy statements and other materials filed by Holdings, the Borrower or any Subsidiary with the SEC, or any Governmental Authority succeeding to any or all of the functions of said Commission, or with any national securities exchange, or, after the initial Public Equity Offering (disregarding for purposes of this Section 5.4(e) the Net Cash Proceeds dollar threshold contained in the definition of such term), distributed to its shareholders, as the case may be;
(f) promptly after as soon as the receipt thereof same becomes available, a management letter prepared by Holdings or the independent public accountants who reported on the financial statements delivered under (a) above, with respect to the internal audit and financial controls of the Borrower and its Subsidiaries;
(g) within 15 days of the end of each month (or more frequently at the request of the Agent at any Subsidiarytime that Availability is less than $10,000,000), an aging schedule of the Receivables and payables of the Borrower in the form of the aging schedule of Receivables dated July 31, 1998 previously furnished to the Agent and a certificate executed by the Financial Officer of the Borrower with respect to current inventory;
(h) prior to the beginning of each Fiscal Year, a copy summary of business plans and financial projections (including, without limitation, with respect to Capital Expenditures) for the Parent and its Subsidiaries for such Fiscal Year (including monthly Consolidated and consolidating balance sheets, statements of income and of Consolidated cash flow) and annual projections through the next two Fiscal Years thereafter prepared by management and in form and detail (including, without limitation, principal assumptions, projected Borrowing Bases and projected covenant compliance) satisfactory to the Required Lenders;
(i) as soon as practicable, copies of all non-routine reports, forms, filings, loan documents and financial information submitted to governmental agencies and/or its shareholders;
(j) within 15 days of the end of each fiscal month (or more frequently at the request of the Agent at any “management letter” received time that Availability is less than $10,000,000) sales, collections, debit and credit adjustments and a certificate, in form and substance satisfactory to the Agent, executed by any the Financial Officer of the Borrower demonstrating compliance as at the end of such person from its certified public accountants and applicable period with the management’s response theretoAvailability requirements; and
(gk) 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 may reasonably request. Documents required to be delivered pursuant to Section 5.4(a), (b) or (e) (to the extent any such documents are included in materials otherwise filed with the SEC) may be delivered electronically and if so delivered, shall be deemed to have been delivered on the date (i) on which the Borrower posts such documents, or provides a link thereto on the Borrower’s website on the Internet at the Borrower’s website address; or (ii) on which such documents are posted on the Borrower’s behalf on IntraLinks/IntraAgency or another relevant website, if any, to which each Lender and the Administrative Agent have access (whether a commercial, third-party website or whether sponsored by the Administrative Agent).
Appears in 1 contract
Financial Statements, Reports, etc. In the case of the BorrowerBorrower ---------------------------------- and the Guarantors, furnish deliver to the Administrative Agent (either physically or through electronic delivery reasonably acceptable to and each of the Administrative Agent), which shall furnish to each LenderBanks:
(a1) within 90 days after the end of each fiscal year, its the Borrower's consolidated and (if available) consolidating balance sheet and related statements statement of income, stockholders’ equity income and cash flows flows, showing the financial condition of the Borrower and its the Guarantors on a consolidated Subsidiaries and (if available) consolidating basis as of the close of such fiscal year and the results of its their respective operations and the operations of such Subsidiaries during such year, together with comparative figures the consolidated statement of the Borrower to be audited for the immediately preceding fiscal year, all audited Borrower and the Guarantors by Ernst & Young LLP or other independent public accountants of recognized national standing acceptable to the Required Banks and accompanied by an opinion of such accountants (which shall not be qualified in any material respectrespect other than with respect to the Cases), and the consolidating statement (if any) to be subjected to the auditing procedures applied to such audit of the consolidated statement, 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 Borrower and its consolidated Subsidiaries the Guarantors on a consolidated basis in accordance with GAAP consistently applied;
(b2) within 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, its the Borrower's consolidated and (if available) consolidating balance sheet sheets and related statements of income, stockholders’ equity income and cash flows flows, showing the financial condition of the Borrower and its the Guarantors on a consolidated Subsidiaries and (if available) consolidating basis as of the close of such fiscal quarter and the results of its their 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 each certified by one of its a Financial Officers Officer as fairly presenting the financial condition and results of operations of the Borrower and its consolidated Subsidiaries the Guarantors on a consolidated and (if available) consolidating basis in accordance with GAAP consistently applied, subject to normal year-end audit adjustments;
(c3) concurrently with any delivery of financial statements under paragraph (a), ) or (b) above, (i) a certificate of the accounting firm (in the case of paragraph (a)) or a Financial Officer (in the case of paragraph (b)) opining on or certifying such statements (which certificate, when furnished by an accounting firm, may be limited to accounting matters and disclaim responsibility for legal interpretations and which may be provided by a Financial Officer if accounting firms generally are not providing such certificates) (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 occurred, or, if such an Event of Default or Default event has occurred, specifying the nature and extent thereof 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 provisions of Sections 6.66.03, 6.106.04, 6.11 6.05 and 6.12 and6.10 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 the case course of the regular 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 respect thereto;
(4) within 30 days after the end of each month, the unaudited monthly cash flow reports of the Borrower and the Guarantors on a certificate delivered consolidated basis and as of the close of such fiscal month and the results of their operations during such fiscal period and the then elapsed portion of the fiscal year, all certified by a Financial Officer as fairly presenting the results of operations of the Borrower and the Guarantors on a consolidated basis, subject to normal year-end audit adjustments;
(5) concurrently with the any delivery of financial statements required by paragraph under (ab) above, (x) setting forth monthly financial projections for 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 6.8following six fiscal month period;
(d6) as soon as possible, and in any event within 45 30 days after of the commencement of each fiscal year Closing Date, a consolidated pro forma statement of the Borrower, a detailed consolidated budget for such fiscal year (including a projected consolidated balance sheet 's and related statements of projected operations and cash flows the Guarantors' financial condition as of the end of and for such fiscal year)Filing Date;
(e7) on the second Friday following the Closing Date, and on each second Friday thereafter, bi-weekly updates of the Budget satisfactory in form and substance to the Agent;
(8) promptly after the same become publicly available, copies of all periodic and other reports, proxy statements and other materials filed by Holdings, the Borrower or any Subsidiary it with the SECSecurities and Exchange Commission, or any Governmental Authority governmental authority succeeding to any of or all of the functions of said Commissioncommission, or with any national securities exchange, or, after the initial Public Equity Offering (disregarding for purposes of this Section 5.4(e) the Net Cash Proceeds dollar threshold contained in the definition of such term), distributed to its shareholders, as the case may be;
(f9) promptly as soon as available and in any event (A) within 30 days after the receipt thereof by Holdings or the Borrower or any Subsidiaryof 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 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;
(10) promptly and in any event within 10 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;
(11) 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;
(12) within 10 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 “management letter” 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; 41
(13) 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 such person from its certified public accountants and ERISA Affiliate concerning (A) the management’s response thereto; andimposition 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;
(g14) promptly, from time to time, such other information regarding the operations, business affairs and financial condition of Holdings, the Borrower or any SubsidiaryGuarantor, or compliance with the terms of any Loan Document, material loan or financing agreements as the Administrative Agent or any Lender Bank may reasonably request. Documents required to be delivered pursuant to Section 5.4(a), ; and
(b15) or (e) (furnish to the extent Agent and its counsel promptly after the same is available, copies of all pleadings, motions, applications, judicial information, financial information and other documents filed by or on behalf of the Borrower or any such documents are included in materials otherwise filed of the Guarantors with the SEC) may be delivered electronically and if so deliveredBankruptcy Court in the Cases, shall be deemed to have been delivered or distributed by or on the date (i) on which behalf of the Borrower posts such documents, or provides a link thereto on any of the Borrower’s website on Guarantors to any official committee appointed in the Internet at the Borrower’s website address; or (ii) on which such documents are posted on the Borrower’s behalf on IntraLinks/IntraAgency or another relevant website, if any, to which each Lender and the Administrative Agent have access (whether a commercial, third-party website or whether sponsored by the Administrative Agent)Cases.
Appears in 1 contract
Samples: Revolving Credit and Guaranty Agreement (Brunos Inc)
Financial Statements, Reports, etc. In the case of the Borrower, furnish to the Administrative Agent (either physically or through electronic delivery reasonably acceptable to the Administrative Agent), which shall furnish for distribution to each Lender:
(a) within 90 days after the end of each fiscal yearyear (beginning with the fiscal year ending on December 31, 2004), its consolidated balance sheet and related statements of income, stockholders’ equity and cash flows showing the financial condition of the Borrower and its consolidated Subsidiaries as of the close of such fiscal year and the results of its operations and the operations of such Subsidiaries during such year, together with comparative figures for the immediately preceding fiscal year, all audited by Ernst & Young KPMG LLP or other independent public accountants of recognized national standing and accompanied by an opinion of such 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 Borrower and its consolidated Subsidiaries on a consolidated basis in accordance with GAAP consistently applied;
(b) within 45 days after the end of each of the first three fiscal quarters of each fiscal year, its consolidated balance sheet and related statements of income, stockholders’ equity and 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 Borrower and its consolidated Subsidiaries on a consolidated basis in accordance with GAAP consistently applied, 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, 6.11, 6.12 or 6.13 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 and (ii) concurrently with any delivery of financial statements under paragraph (a) or (b) above, a certificate of the accounting firm (in the case of paragraph (a)) or Financial Officer (in the case of paragraph (b)) opining on or certifying such statements (which certificate, when furnished by an accounting firm, may be limited to accounting matters and disclaim responsibility for legal interpretations and which may be provided by a Financial Officer if accounting firms generally are not providing such certificates) of the Borrower (iA) certifying that no Event of Default or Default has occurred or, if such an Event of Default or Default has occurred, specifying the nature and extent thereof and any corrective action taken or proposed to be taken with respect thereto and (iiB) setting forth computations in reasonable detail satisfactory to the Administrative Agent demonstrating compliance with the covenants contained in Sections 6.66.11, 6.10, 6.11 6.12 and 6.12 6.13 and, in the case of a certificate delivered with the financial statements required by paragraph (a) aboveabove with respect to the fiscal year ending December 31, (x) 2005 and each fiscal year thereafter, 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 6.8Flow;
(d) within 45 at least 90 days after the commencement end of each fiscal year of the Borrower, a detailed consolidated budget for such 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)year and setting forth the assumptions used for purposes of preparing such budget) and, promptly when available, any significant revisions of such budget;
(e) promptly after the same become publicly available, copies of all periodic and other reports, proxy statements and other materials filed by Holdings, the Borrower or any Subsidiary with the SECSecurities and Exchange Commission, or any Governmental Authority succeeding to any or all of the functions of said Commission, or with any national securities exchange, or, after the initial Public Equity Offering (disregarding for purposes of this Section 5.4(e) the Net Cash Proceeds dollar threshold contained in the definition of such term), distributed to its shareholders, as the case may be;
(f) promptly after the receipt thereof by Holdings or Holdings, the Borrower or any Subsidiaryof the Subsidiaries, 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
(g) 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 (acting through the Administrative Agent) may reasonably request. Documents required to be delivered pursuant to Section 5.4(a), (b) or (e) (to the extent any such documents are included in materials otherwise filed with the SEC) may be delivered electronically and if so delivered, shall be deemed to have been delivered on the date (i) on which the Borrower posts such documents, or provides a link thereto on the Borrower’s website on the Internet at the Borrower’s website address; or (ii) on which such documents are posted on the Borrower’s behalf on IntraLinks/IntraAgency or another relevant website, if any, to which each Lender and the Administrative Agent have access (whether a commercial, third-party website or whether sponsored by the Administrative Agent).
Appears in 1 contract
Samples: Credit Agreement (True Temper Sports PRC Holdings Inc)
Financial Statements, Reports, etc. In the case of the Borrower, furnish to the Administrative Agent (either physically or through electronic delivery reasonably acceptable to the Administrative Agent), which shall furnish to each Lender:
(a) within 90 95 days after the end of each fiscal year, its consolidated balance sheet and related statements of income, stockholders’ equity and cash flows showing the financial condition of the Borrower and its consolidated Subsidiaries as of the close of such fiscal year and the results of its operations and the operations of such Subsidiaries during such year, together with comparative figures for the immediately preceding fiscal year, all audited by Ernst Deloitte & Young Touche LLP or other independent public accountants of recognized national standing and accompanied by an opinion of such 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 Borrower and its consolidated Subsidiaries on a consolidated basis in accordance with GAAP consistently applied;
(b) within 45 50 days after the end of each of the first three fiscal quarters of each fiscal year, its consolidated balance sheet and related statements of income, stockholders’ equity and 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 Borrower and its consolidated Subsidiaries on a consolidated basis in accordance with GAAP consistently applied, 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 statement of income showing the financial condition of the Borrower and its consolidated Subsidiaries during such fiscal month and the then elapsed portion of the fiscal year, all certified by one of its Financial Officers as fairly presenting the financial condition and results of operations of the Borrower and its consolidated Subsidiaries on a consolidated basis in accordance with GAAP consistently applied, subject to normal year-end audit adjustments;
(d) concurrently with any delivery of financial statements under paragraph (a), (b) or (bc) above, a certificate of the accounting firm (in the case of paragraph (a)) 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 accounting matters and disclaim responsibility for legal interpretations and which may be provided by a Financial Officer if accounting firms generally are not providing such certificates) (i) certifying that no Event of Default or Default has occurred or, if such an Event of Default or Default has occurred, specifying the nature and extent thereof and any corrective action taken or proposed to be taken with respect thereto and (ii) setting forth computations in reasonable detail satisfactory to the Administrative Agent demonstrating compliance with the covenants contained in Sections 6.66.06, 6.10, 6.11 6.11, 6.12 and 6.12 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 for each fiscal year ending on or after September 30, 2006 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 6.86.08;
(de) within 45 days after the commencement of each fiscal year of the Borrower, (i) 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 (ii) a summary consolidated budget for the fiscal year immediately following such fiscal year, in each case setting forth the assumptions used for purposes of preparing such budget;
(ef) promptly after the same become publicly available, copies of all periodic and other reports, proxy statements and other materials filed by Holdings, the Borrower or any Subsidiary with the SECSecurities and Exchange Commission, or any Governmental Authority succeeding to any or all of the functions of said Commission, or with any national securities exchange, or, after the initial Public Equity Offering (disregarding for purposes of this Section 5.4(e5.04(f) the Net Cash Proceeds dollar threshold contained in the definition of such term), distributed to its shareholders, as the case may be;
(fg) promptly after the receipt thereof by Holdings or the Borrower or any Subsidiary, a copy of any “management letter” received by any such person from its certified public accountants and the management’s response thereto; and
(gh) 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 may reasonably request. Documents required to be delivered pursuant to Section 5.4(a), (b) or (e) (to the extent any such documents are included in materials otherwise filed with the SEC) may be delivered electronically and if so delivered, shall be deemed to have been delivered on the date (i) on which the Borrower posts such documents, or provides a link thereto on the Borrower’s website on the Internet at the Borrower’s website address; or (ii) on which such documents are posted on the Borrower’s behalf on IntraLinks/IntraAgency or another relevant website, if any, to which each Lender and the Administrative Agent have access (whether a commercial, third-party website or whether sponsored by the Administrative Agent).
Appears in 1 contract
Samples: Credit Agreement (Transdigm Inc)
Financial Statements, Reports, etc. In the case of the Borrower, furnish to the Administrative Agent (either physically or through electronic for further delivery reasonably acceptable by the Administrative Agent to the Administrative Agent), which shall furnish to each Lender:Lenders in accordance with its customary practice):
(a) within 90 days after the end of each fiscal year, its consolidated audited Consolidated balance sheet sheets and related statements of income, stockholders’ equity income and cash flows flow, showing the financial condition of the Borrower and its consolidated Consolidated Subsidiaries as of the close of such fiscal year and the results of its operations and the operations of such Subsidiaries during such year, together with comparative figures for the immediately preceding fiscal year, all audited by Ernst & Young LLP or other independent public accountants of recognized national standing reasonably acceptable to the Administrative Agent and accompanied by an opinion of such accountants (which shall not be qualified in any material respect) to the effect that such consolidated Consolidated financial statements fairly present the financial condition and results of operations of the Borrower and its consolidated Subsidiaries on a consolidated Consolidated basis in accordance with GAAP consistently applied;
(b) within 45 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, 2015, its consolidated unaudited Consolidated balance sheet sheets and related statements of income, stockholders’ equity income and cash flows flow, showing the financial condition of the Borrower and its consolidated 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 the Financial Officer of its Financial Officers the Borrower as fairly presenting in all material respects the financial condition and results of operations of the Borrower and its consolidated Subsidiaries on a consolidated Consolidated basis in accordance with GAAP consistently applied, subject to normal year-end audit adjustmentsadjustments and the absence of footnotes;
(c) concurrently with any delivery of financial statements under paragraph clause (a), ) or (b) above, a certificate of the accounting firm (in or the case of paragraph (a)) or Financial Officer (in of the case of paragraph (b)) Borrower opining on or certifying such statements (which certificate, when furnished by an accounting firm, may be limited to accounting matters and disclaim responsibility for legal interpretations interpretations) and which may in any event will be provided by a Financial Officer if accounting firms generally are not providing such certificates) based on the actual knowledge after due inquiry of the Person giving the certificate, and:
(i) certifying that no Event of Default or Default has occurred or, if such an Event of Default or Default has occurred, specifying the nature and extent thereof and any corrective action taken or proposed to be taken with respect thereto and thereto;
(ii) setting forth computations in reasonable detail satisfactory to the Administrative Agent demonstrating compliance with the covenants contained in Sections 6.6, 6.10, 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, 2015); and
(iii) with respect to the computations delivered pursuant to Section 5.04(c)(ii), in the case of a certificate delivered with Financial Officer shall break out and separately provide the financial statements required by paragraph (a) above, (x) setting forth information relating solely to Domestic Subsidiaries that are Unrestricted Subsidiaries and certify the Borrower’s calculation accuracy 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 6.8information;
(d) within 45 days after the commencement of each fiscal year of the Borrower, a detailed consolidated budget for such fiscal year (including a projected consolidated balance sheet and related statements of projected operations and cash flows as of the end of and for such fiscal year);
(e) promptly after the same become publicly available, copies (which such deliveries may be made by email or facsimile) of all periodic and other reports, proxy statements and other materials filed by Holdings, the Borrower or any Subsidiary it with the SECSecurities and Exchange Commission, or any Governmental Authority succeeding to any of or all of the functions of said Commission, or with any national securities exchange, or, after the initial Public Equity Offering (disregarding for purposes of this Section 5.4(e) the Net Cash Proceeds dollar threshold contained in the definition of such term), or distributed to its shareholders, as the case may be;
(fe) promptly after upon a Responsible Officer becoming aware of a change in the receipt thereof by Holdings Debt Rating (including the initial issuance of any Investment Grade Rating or the Borrower or failure to maintain any Subsidiary, a copy of any “management letter” received by any such person from its certified public accountants and the management’s response theretoInvestment Grade Rating); and
(gf) promptly, from time to time, such other information regarding the operations, business affairs and financial condition of Holdings, the Borrower or any Restricted Subsidiary, or compliance with the terms of any Loan Document, as the Administrative Agent or any Lender may reasonably request, including, without limitation, any information that the Administrative Agent or any Lender deems reasonably necessary from time to time in order to ensure compliance with all applicable Sanctions and Anti-Corruption Laws. Documents 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 Section 5.4(a), paragraphs (a) and (b) or (e) (above and the information required to the extent any such documents are included in materials otherwise filed with the SEC) may be delivered electronically and if so delivered, pursuant to paragraph (d) above shall be deemed to have been delivered on the date (i) on which the Borrower posts has posted, and has provided notice to the Administrative Agent of such documentsposting of, or provides a link thereto such information on the Borrower’s and/or the Securities and Exchange Commission’s website on the Internet internet at the Borrower’s website address; 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) on which such documents are posted on upon request of the Borrower’s behalf on IntraLinks/IntraAgency or another relevant websiteAdministrative Agent, if any, to which each Lender and 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 have access will make available to the Lenders materials and/or information provided by or on behalf of the Borrower hereunder (whether 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 commercial“Public Lender”). The Borrower hereby agrees that, third-party website or whether sponsored 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 to the extent 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 Borrower, furnish Furnish to the Administrative Agent (either physically or through electronic delivery reasonably acceptable to the Administrative Agent), which shall furnish to each Lender:
(a) as soon as available, but in any event within 90 days after the end of each fiscal yearyear of the Company, its (i) a copy of the audited consolidated balance sheet of the Company as of the end of such year and the related audited consolidated statements of income, stockholders’ shareholders equity and cash flows showing flow for such year, setting forth in comparative form the financial condition of the Borrower and its consolidated Subsidiaries respective figures as of the close end of such fiscal year and the results of its operations and the operations of such Subsidiaries during such year, together with comparative figures for the immediately preceding previous fiscal year, all audited and accompanied by Ernst & Young a report thereon of KPMG LLP or other independent certified public accountants of recognized national standing selected by the Company and accompanied by an opinion of such accountants satisfactory to the Lender (the "Auditor"), which report shall not be qualified in any material respect) unqualified and shall be to the effect that such consolidated financial statements present fairly present in all material respects the financial condition and results of operations of the Borrower Company and its consolidated Subsidiaries on a consolidated basis in accordance with GAAP Generally Accepted Accounting Principles consistently applied, and (ii) a copy of the comparative consolidating financial statements of the Company and its consolidated Subsidiaries, prepared in accordance with Generally Accepted Accounting Principles, consistently applied, which support the financial statements delivered pursuant to clause (i);
(b) within as soon as available, but in any event not later than 45 days after the end of each of the first three fiscal quarters quarterly period of each fiscal yearyear of the Company, its (i) a copy of the unaudited interim consolidated balance sheet of the Company as of the end of each such quarter and the related unaudited interim consolidated statements of income, stockholders’ shareholders equity and cash flows showing the financial condition of the Borrower and its consolidated Subsidiaries as of the close of flow for 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, year through such date and setting forth in each case in comparative form the respective figures for the same periods corresponding date and period in the immediately preceding previous fiscal year, in each case prepared by the Chief Financial Officer and accompanied by a certificate executed by the Chief Financial Officer to the effect that such consolidated financial statements present fairly in all certified by one of its Financial Officers as fairly presenting material respects the financial condition and results of operations of the Borrower Company and its consolidated Subsidiaries on a consolidated basis in accordance with GAAP Generally Accepted Accounting Principles consistently applied, subject to normal year-end audit adjustmentsadjustments and the absence of footnotes, and (ii) a copy of the comparative consolidating financial statements of the Company and its consolidated Subsidiaries, prepared in accordance with Generally Accepted Accounting Principles, consistently applied, which support the financial statements delivered pursuant to clause (i);
(c) concurrently a certificate prepared and signed by the Chief Financial Officer with any each delivery of financial statements under paragraph required by clause (a), or (b) above, a certificate of the accounting firm (in the case of paragraph (a)) or Financial Officer (in the case of paragraph and (b)) opining on , as to whether or certifying not, as of the close of such statements (which certificatepreceding period and at all times during such preceding period, when furnished by an accounting firmthe Company and its Subsidiaries were in compliance with all the provisions in this Agreement, may be limited to accounting matters showing computation of financial covenants and disclaim responsibility for legal interpretations quantitative negative covenants, and which may be provided by a if the Chief Financial Officer if accounting firms generally are shall have obtained knowledge of any default in such compliance or notice of such default, it shall disclose in such certificate such default or defaults or notice thereof and the nature thereof, whether or not providing such certificates) (i) certifying that no Event of the same shall constitute a Default or Default has occurred or, if such an Event of Default or Default has occurred, specifying the nature and extent thereof and any corrective action taken or proposed to be taken with respect thereto and (ii) setting forth computations in reasonable detail satisfactory to the Administrative Agent demonstrating compliance with the covenants contained in Sections 6.6, 6.10, 6.11 and 6.12 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 6.8hereunder;
(d) within 45 days after a certificate prepared and signed by the commencement Auditor with each delivery required by clause (a) above stating whether they obtained knowledge during the course of each fiscal year their examination of the Borrower, a detailed consolidated budget for such fiscal year (including a projected consolidated balance sheet and related financial statements of projected operations and cash flows as any Default or Event of Default (which certificate may be limited to the end of and for such fiscal yearextent required by any accounting rules or guidelines binding upon the Auditors);
(e) promptly after the same become publicly available, copies of at all periodic and other reports, proxy statements and other materials filed by Holdings, the Borrower or any Subsidiary with the SEC, or any Governmental Authority succeeding to any or all times indicated in clause (a) above a copy of the functions of said Commissionmanagement letter, or with any national securities exchangeif any, or, after prepared by the initial Public Equity Offering (disregarding for purposes of this Section 5.4(e) the Net Cash Proceeds dollar threshold contained in the definition of such term), distributed to its shareholders, as the case may beAuditor;
(f) as soon as available and in any event within fifteen (15) days after the end of each month, accounts receivable aging summaries (by account debtor), on a due date basis, with respect to the Company and each Guarantor, in form and substance satisfactory to the Lender;
(g) promptly after filing thereof, copies of all regular and periodic financial information, proxy materials and other information and reports which the receipt thereof by Holdings or the Borrower Company or any Subsidiaryof its Subsidiaries shall file with the Securities and Exchange Commission;
(h) 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 materially adverse action to be taken by such agency;
(i) as soon as available but in any event not later than the fifteenth day of each calendar month a copy report of any “management letter” received by any such person from its certified public accountants monthly sales, headcount and inventory of the Company and the management’s response theretoGuarantors prepared and certified by the Chief Financial Officer, in the form attached hereto as Exhibit I; and
(gj) promptly, from time to time, such other information regarding the operations, business affairs and condition (financial condition or otherwise) of Holdings, the Borrower Company or any Subsidiary, or compliance with the terms of any Loan Document, its Subsidiaries as the Administrative Agent or any Lender may reasonably request. Documents required to be delivered pursuant to Section 5.4(a), (b) or (e) (to the extent any such documents are included in materials otherwise filed with the SEC) may be delivered electronically and if so delivered, shall be deemed to have been delivered on the date (i) on which the Borrower posts such documents, or provides a link thereto on the Borrower’s website on the Internet at the Borrower’s website address; or (ii) on which such documents are posted on the Borrower’s behalf on IntraLinks/IntraAgency or another relevant website, if any, to which each Lender and the Administrative Agent have access (whether a commercial, third-party website or whether sponsored by the Administrative Agent).
Appears in 1 contract
