Financial Statements, Reports, etc. The Borrower shall deliver to the Administrative Agent on behalf of the Lenders: (a) within ninety (90) days after the end of each fiscal year, Parent’s consolidated balance sheet and related statement of income and cash flows, showing the financial condition of Parent and its Subsidiaries on a consolidated basis as of the close of such fiscal year and the results of their respective operations during such year, such consolidated financial statements of Parent to be audited for Parent by independent public accountants of recognized national standing and to be accompanied by an opinion of such accountants (which opinion shall be unqualified as to 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 Parent and its Subsidiaries on a consolidated basis in accordance with GAAP; provided that the foregoing delivery requirement shall be satisfied if Parent shall have filed with the SEC its Annual Report on Form 10-K for such fiscal year, which is available to the public via XXXXX or any similar successor system; (b) within forty-five (45) days after the end of each of the first three fiscal quarters of each fiscal year, Parent’s consolidated balance sheets and related statements of income and cash flows, showing the financial condition of Parent and its Subsidiaries on a consolidated basis as of the close of such fiscal quarter and the results of their operations during such fiscal quarter and the then-elapsed portion of the fiscal year, each certified by a Responsible Officer of Parent as fairly presenting in all material respects the financial condition and results of operations of Parent and its Subsidiaries on a consolidated basis in accordance with GAAP, subject to normal year-end audit adjustments and the absence of footnotes; provided that the foregoing delivery requirement shall be satisfied if Parent shall have filed with the SEC its Quarterly Report on Form 10-Q for such fiscal quarter, which is available to the public via XXXXX or any similar successor system; (c) within the time period under Section 5.01(a), a certificate of a Responsible Officer of the Borrower certifying that, to the knowledge of such Responsible Officer, no Event of Default has occurred and is continuing, or, if, to the knowledge of such Responsible Officer, such an Event of Default has occurred and is continuing, specifying the nature and extent thereof and any corrective action taken or proposed to be taken with respect thereto; (d) within the time period under (a) and (b) of this Section 5.01, an Officer’s Certificate demonstrating in reasonable detail compliance with Section 6.08 as of the end of the preceding fiscal quarter; (e) promptly after the occurrence thereof, written notice of the termination of a Plan of the Borrower or an ERISA Affiliate pursuant to Section 4042 of ERISA, to the extent such termination would constitute an Event of Default under Section 7.01(j);
Appears in 8 contracts
Samples: Credit and Guaranty Agreement (American Airlines, Inc.), Credit and Guaranty Agreement (American Airlines, Inc.), Credit and Guaranty Agreement (American Airlines, Inc.)
Financial Statements, Reports, etc. The Borrower shall deliver Furnish to the Administrative Agent on behalf of (which will promptly furnish such information to the Lenders:):
(a) within ninety 90 days (90or, if applicable, such shorter period as the SEC shall specify for the filing of annual reports on Form 10-K or on any applicable equivalent form) days after the end of each fiscal year, Parent’s year a consolidated balance sheet and related statement statements of income operations, cash flows and cash flows, owners’ equity showing the financial condition position of Parent the Company and its Subsidiaries on a consolidated basis as of the close of such fiscal year and the consolidated results of their respective operations during such fiscal year and setting forth in comparative form the corresponding figures for the prior fiscal year, such which consolidated financial balance sheets and related statements of Parent to operations, cash flows and owners’ equity shall be audited for Parent by PricewaterhouseCoopers, LLP or other independent public accountants of recognized national standing and to be accompanied by an opinion of such accountants (which opinion shall not be unqualified qualified as to scope of such auditaudit or as to the status of the Company or any Material Subsidiary as a going concern) to the effect that such consolidated financial statements fairly present present, in all material respects respects, the financial condition position and results of operations of Parent the Company and its Subsidiaries on a consolidated basis in accordance with GAAP; provided GAAP (it being understood that the foregoing delivery requirement shall be satisfied if Parent shall have filed with by the SEC its Annual Report Company of annual reports on Form 10-K for such fiscal year, which is available or the equivalent of the Company and its consolidated Subsidiaries shall satisfy the requirements of this (a) to the public via XXXXX or any similar successor systemextent such annual reports include the information specified herein);
(b) within forty45 days (or, if applicable, such shorter period as the SEC shall specify for the filing of quarterly reports on Form 10-five (45Q or on any applicable equivalent form) days after the end of each of the first three fiscal quarters of each fiscal year, Parent’s a consolidated balance sheets sheet and related statements of income operations and cash flows, flows showing the financial condition position of Parent the Company and its Subsidiaries on a consolidated basis as of the close of such fiscal quarter and the consolidated results of their operations during such fiscal quarter and the then-elapsed portion of the fiscal year and setting forth in comparative form the corresponding figures for the corresponding periods of the prior fiscal year, each all of which shall be in reasonable detail and which consolidated balance sheet and related statements of operations and cash flows shall be certified by a Responsible Financial Officer of Parent the Company on behalf of the Company, as fairly presenting presenting, in all material respects respects, the financial condition position and results of operations of Parent the Company and its Subsidiaries Subsidiaries, on a consolidated basis in accordance with GAAP, GAAP (subject to normal year-end audit adjustments and the absence of footnotes; provided ) (it being understood that the foregoing delivery requirement shall be satisfied if Parent shall have filed with by the SEC its Quarterly Report Company of quarterly reports on Form 10-Q for such fiscal quarter, which is available to the public via XXXXX or any similar successor system;
(c) within the time period under Section 5.01(a), a certificate of a Responsible Officer of the Borrower certifying that, to Company and its consolidated Subsidiaries shall satisfy the knowledge requirements of such Responsible Officer, no Event of Default has occurred and is continuing, or, if, to the knowledge of such Responsible Officer, such an Event of Default has occurred and is continuing, specifying the nature and extent thereof and any corrective action taken or proposed to be taken with respect thereto;
(d) within the time period under (a) and this (b) of this Section 5.01, an Officer’s Certificate demonstrating in reasonable detail compliance with Section 6.08 as of the end of the preceding fiscal quarter;
(e) promptly after the occurrence thereof, written notice of the termination of a Plan of the Borrower or an ERISA Affiliate pursuant to Section 4042 of ERISA, to the extent such termination would constitute an Event of Default under Section 7.01(jquarterly reports include the information specified herein);
Appears in 5 contracts
Samples: Incremental Assumption Agreement (Norwegian Cruise Line Holdings Ltd.), Credit Agreement (Norwegian Cruise Line Holdings Ltd.), Credit Agreement (Norwegian Cruise Line Holdings Ltd.)
Financial Statements, Reports, etc. The Holdings and the Borrower shall deliver furnish to the Administrative Agent on behalf of the Lendersfollowing, and the Administrative Agent shall make a copy thereof available to each Lender:
(a) within ninety (90) Within 90 days after the end of each fiscal yearyear of Holdings, Parent’s its consolidated balance sheet and related statement statements of income operations, comprehensive income, stockholders’ equity and cash flows, showing the financial condition of Parent and its Subsidiaries on a consolidated basis flow as of the close end of and for such fiscal year and the results of their respective operations during such year, such consolidated financial statements of Parent to be and related notes thereto, setting forth in each case in comparative form the figures for the previous fiscal year, in each case audited for Parent by independent public accountants of recognized national standing and to be standing, accompanied by an opinion of such accountants (which opinion shall not be unqualified qualified as to scope of such auditaudit or include a statement or like qualification or exception in any manner 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 in all material respects the its financial condition and condition, results of operations and cash flows and that of Parent and its Subsidiaries on consolidated subsidiaries, taken as a consolidated basis whole, in accordance with GAAP; provided that GAAP consistently applied (except as otherwise disclosed in such financial statements) and accompanied by a narrative report describing the foregoing delivery requirement shall be satisfied if Parent shall have filed with the SEC financial position, results of operations and cash flows of Holdings and its Annual Report on Form 10-K for such fiscal year, which is available to the public via XXXXX or any similar successor systemconsolidated subsidiaries;
(b) within forty-five (45) Within 45 days after the end of each of the first three fiscal quarters of each fiscal yearyear of Holdings, Parent’s its unaudited consolidated balance sheets sheet and unaudited related statements of income operations, comprehensive income, stockholders’ equity and cash flows, showing the financial condition of Parent and its Subsidiaries on a consolidated basis flow as of the close end of and for such fiscal quarter and quarter, setting forth in each case in comparative form the results figures for the corresponding period or periods of their operations during such fiscal quarter and (or, in the then-elapsed portion case of the balance sheet, as of the end of) the previous fiscal year, each all certified by a Responsible Financial Officer of Parent Holdings as presenting fairly presenting in all material respects the financial condition and condition, results of operations and cash flows of Parent Holdings and its Subsidiaries on consolidated subsidiaries, taken as a consolidated basis whole, in accordance with GAAPGAAP consistently applied, subject to normal year-end audit adjustments and the absence of footnotes; provided that , and accompanied by a narrative report describing the foregoing delivery requirement shall be satisfied if Parent shall have filed with the SEC financial position, results of operations and cash flows of Holdings and its Quarterly Report on Form 10-Q for such fiscal quarter, which is available to the public via XXXXX or any similar successor systemconsolidated subsidiaries;
(c) within No later than the time period respective delivery due dates of financial statements under Section 5.01(a)(a) and (b) above, a certificate of a Responsible Financial Officer of the Borrower (i) certifying that, to the knowledge of such Responsible Officer, that no Event of Default or Default has occurred and is continuing, continuing or, if, to the knowledge of such Responsible Officer, if such an Event of Default or Default has occurred and is continuing, specifying the nature and extent thereof and any corrective action taken or proposed to be taken with respect thereto, (ii) setting forth computations in reasonable detail demonstrating compliance with the covenants contained in Sections 6.12 and 6.13, (iii) at any time when there is one or more Unrestricted Subsidiaries, of the aggregate revenue and 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 and the date of the prior certificate delivered pursuant to this clause (c) indicating such a change and, if any such change has occurred, specifying the effect of such change on the financial statements accompanying such certificate;
(d) within No later than the time period delivery due date for annual financial statements under (a) above, a detailed annual consolidated budget for such fiscal year of Holdings (including projected cash, Indebtedness and, to the extent available, pension balances, and (b) projected consolidated statements of this Section 5.01projected operations, an Officer’s Certificate demonstrating in reasonable detail compliance with Section 6.08 comprehensive income and cash flows as of the end of and for such fiscal year and setting forth the preceding fiscal quarterassumptions used for purposes of preparing such budget);
(e) promptly No later than five Business Days after the occurrence thereofrequest by any Lender, written notice 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;
(f) Promptly after the same become publicly available, copies of all periodic and other reports, proxy statements and other materials filed by Holdings (other than registration statements and prospectuses related to offerings to directors, officers or employees) with the SEC or any Governmental Authority succeeding to any of or all the functions of the termination SEC, or with any national securities exchange, or distributed to its shareholders, as the case may be; and
(g) Promptly after any request therefor, such other information regarding the operations, business affairs, assets, liabilities (including contingent liabilities) and financial condition of a Plan of Holdings, the Borrower or an ERISA Affiliate 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. Information required to be delivered pursuant to this Section 4042 5.01 shall be deemed to have been delivered if such information, or one or more annual or quarterly reports containing such information, shall have been posted 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 ERISA, the SEC at xxxx://xxx.xxx.xxx. Information required to be delivered pursuant to this Section 5.01 (other than the information that pursuant to the extent immediately preceding sentence is deemed to have been delivered if it is made available on the website 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 termination would constitute an Event conference call) that is promptly following delivery of Default the financial statements required under Section 7.01(j5.01(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 4 contracts
Samples: Revolving Credit Agreement (Alcoa Corp), Revolving Credit Agreement (Alcoa Upstream Corp), Revolving Credit Agreement (Alcoa Upstream Corp)
Financial Statements, Reports, etc. The Borrower shall deliver Furnish to the Administrative Agent on behalf of the Lendersand each Lender:
(a) within ninety (90) 90 days after the end of each fiscal year, Parent’s a consolidated balance sheet and related sheet, statement of income and statement of cash flows, flows showing the financial condition and results of Parent operations of the Borrower and its consolidated Subsidiaries on a consolidated basis as of and for the close of such fiscal year and the results of their respective operations during such yearthen ended, such consolidated financial statements of Parent to be all audited for Parent by PricewaterhouseCoopers LLP or other independent public accountants of recognized national standing and to be accompanied by an opinion of such accountants (which opinion shall not be unqualified as to scope of such auditqualified 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 Parent the Borrower and its Subsidiaries consolidated Subsidiaries, as the case may be, on a consolidated basis in accordance with GAAP; provided provided, that documents required to be delivered under this clause (a) which are made available on the foregoing delivery requirement internet via XXXXX, or any successor system of the Securities and Exchange Commission shall be satisfied if Parent shall have filed with the SEC its Annual Report on Form 10-K for such fiscal year, which is available to the public via XXXXX or any similar successor systemdeemed delivered;
(b) within forty-five (45) 45 days after the end of each of the first three fiscal quarters of each fiscal year, Parent’s a consolidated balance sheets and related statements sheet, statement of income and statement of cash flows, flows showing the financial condition of Parent and its Subsidiaries on a consolidated basis as of the close of such fiscal quarter and the results of their operations during such fiscal quarter and the then-elapsed portion of the fiscal year, each certified by a Responsible Officer of Parent as fairly presenting in all material respects the financial condition and results of operations of Parent the Borrower and its consolidated Subsidiaries as of and for the fiscal quarter then ended and the then elapsed portion of the fiscal year, all certified by a Financial Officer of the Borrower as fairly presenting the financial condition and results of operations of the Borrower, as the case may be, on a consolidated basis in accordance with GAAP, subject to normal year-end audit adjustments adjustments; provided, that documents required to be delivered under this clause (b) which are made available on the internet via XXXXX, or any successor system of the Securities and the absence of footnotes; provided that the foregoing delivery requirement Exchange Commission shall be satisfied if Parent shall have filed with the SEC its Quarterly Report on Form 10-Q for such fiscal quarter, which is available to the public via XXXXX or any similar successor systemdeemed delivered;
(c) within the time period concurrently with any delivery of financial statements under Section 5.01(a)paragraph (a) or (b) above, (i) a Ratio Certificate and (ii) a certificate of a Responsible Financial Officer of the Borrower certifying that, to the knowledge of such Responsible Officer, that no Event of Default or Default has occurred and is continuing, or, if, to the knowledge of such Responsible Officer, if such an Event of Default or Default has occurred and is continuingoccurred, specifying the nature and extent thereof and any corrective action taken or proposed to be taken with respect thereto;
(d) within promptly, after their becoming available, copies of all financial statements, stockholders reports and proxy statements that the time period Borrower shall have sent to its stockholders generally, and copies of all registration statements filed by the Borrower under the Securities Act of 1933, as amended (aother than registration statements on Form S-8 or any registration statement filed in connection with a dividend reinvestment plan), and regular and periodic reports, if any, which the Borrower shall have filed with the Securities and Exchange Commission (or any governmental agency or agencies substituted therefor) and (bunder Section 13 or Section 15(d) of the Securities and Exchange Act of 1934, as amended, or with any national securities exchange (other than those on Form 11-K or any successor form); provided, that documents required to be delivered under this Section 5.01clause (d) which are made available on the internet via XXXXX, an Officer’s Certificate demonstrating in reasonable detail compliance with Section 6.08 as or any successor system of the end of the preceding fiscal quarter;Securities and Exchange Commission shall be deemed delivered; and
(e) promptly after promptly, from time to time, such other information regarding the occurrence thereofBorrower or any Significant Subsidiary (including the operations, written notice of the termination of a Plan business affairs and financial condition of the Borrower or an ERISA Affiliate pursuant to Section 4042 any Significant Subsidiary), or compliance with the terms of ERISAthis Agreement, to as the extent such termination would constitute an Event of Default under Section 7.01(j);Administrative Agent or any Lender may reasonably request.
Appears in 3 contracts
Samples: Five Year Competitive Advance and Revolving Credit Agreement (Raytheon Co/), Credit Agreement (Raytheon Co/), 364 Day Competitive Advance and Revolving Credit Facility (Raytheon Co/)
Financial Statements, Reports, etc. The Borrower shall deliver Furnish to the Administrative Agent on behalf of (which will promptly furnish such information to the Lenders:):
(a) within ninety (90) 90 days after the end of each fiscal yearyear of the Borrower (or such earlier date on which the Borrower is required to file a Form 10-K under the Exchange Act), Parent’s a consolidated balance sheet and related statement statements of income operations, cash flows and cash flows, owners’ equity showing the financial condition position of Parent the Borrower and its the Subsidiaries on a consolidated basis as of the close of such fiscal year and the consolidated results of their respective operations during such year and setting forth in comparative form the corresponding figures for the prior fiscal year, such which consolidated financial balance sheet and related statements of Parent to operations, cash flows and owners’ equity shall be audited for Parent by independent public accountants of recognized national standing and to be accompanied by an opinion of such accountants (which opinion shall not be unqualified as to scope of such auditqualified in any material respect) to the effect that such consolidated financial statements fairly present present, in all material respects respects, the financial condition position and results of operations of Parent the Borrower and its Subsidiaries on a consolidated basis in accordance with GAAP; provided that the foregoing delivery requirement shall be satisfied if Parent shall have filed with the SEC its Annual Report on Form 10-K for such fiscal year, which is available to the public via XXXXX or any similar successor system;
(b) within forty-five (45) 45 days after the end of each of the first three fiscal quarters of each fiscal year, Parent’s (or such earlier date on which the Borrower is required to file a Form 10-Q under the Exchange Act), a consolidated balance sheets sheet and related statements of income operations and cash flows, flows showing the financial condition position of Parent the Borrower and its Subsidiaries on a consolidated basis as of the close of such fiscal quarter and the consolidated results of their its operations during such fiscal quarter and the then-elapsed portion of the fiscal year and setting forth in comparative form the corresponding figures for the corresponding periods of the prior fiscal year, each all of which shall be in reasonable detail and which consolidated balance sheet and related statements of operations and cash flows shall be certified by a Responsible Financial Officer of Parent the Borrower on behalf of the Borrower as fairly presenting presenting, in all material respects respects, the financial condition position and results of operations of Parent the Borrower and its the Subsidiaries on a consolidated basis in accordance with GAAP, GAAP (subject to normal year-end audit adjustments and the absence of footnotes; provided that the foregoing delivery requirement shall be satisfied if Parent shall have filed with the SEC its Quarterly Report on Form 10-Q for such fiscal quarter, which is available to the public via XXXXX or any similar successor system);
(c) within the time period five (5) Business Days of any delivery of financial statements under Section 5.01(a)paragraph (a) or (b) above, a certificate of a Responsible Financial Officer of the Borrower (i) certifying that, to the knowledge of such Responsible Officer, that no Event of Default or Default has occurred and is continuing, or, if, to the knowledge of such Responsible Officer, if such an Event of Default or Default has occurred and is continuingoccurred, specifying the nature and extent thereof and any corrective action taken or proposed to be taken with respect theretothereto and (ii) commencing with the fiscal quarter ending after the Closing Date, setting forth computations in reasonable detail satisfactory to the Administrative Agent demonstrating the calculations for the Consolidated Net Leverage Ratio and the Consolidated Senior Secured Leverage Ratio;
(d) promptly after the same become publicly available, copies of all periodic and other publicly available reports, proxy statements and, to the extent requested by the Administrative Agent, other materials filed by the Borrower or any Subsidiary with the SEC, or after an initial public offering, distributed to its stockholders generally, as applicable;
(e) within 90 days after the time period under beginning of each fiscal year, a detailed consolidated quarterly budget for such fiscal year (a) including a projected consolidated balance sheet of the Borrower and (b) of this Section 5.01, an Officer’s Certificate demonstrating in reasonable detail compliance with Section 6.08 the Subsidiaries as of the end of the preceding following fiscal quarteryear, and the related consolidated statements of projected cash flow and projected income) and, as soon as available, significant revisions, if any, of such budget and quarterly projections with respect to such fiscal year, including a description of underlying assumptions with respect thereto (collectively, the “Budget”), which Budget shall in each case be accompanied by the statement of a Financial Officer of the Borrower to the effect that, to the best of his or her knowledge, the Budget is a reasonable estimate for the period covered thereby;
(ef) promptly after upon the occurrence thereof, written notice reasonable request of the termination of a Plan of the Borrower or Administrative Agent, an ERISA Affiliate pursuant to Section 4042 of ERISAupdated Perfection Certificate (or, to the extent such termination would constitute an Event request relates to specified information contained in the Perfection Certificate, such information) reflecting all changes since the date of Default under the information most recently received pursuant to this paragraph (f) or Section 7.01(j5.10(f);
(g) promptly following a request therefor, all documentation and other information that the Administrative Agent reasonably requests on its own behalf or on behalf of any Lender in order to comply with ongoing obligations under applicable “know your customer” and anti-money laundering rules and regulations, including the Act; and
(h) promptly, from time to time, such other information regarding the operations, business affairs and financial condition of the Borrower or any Subsidiary, or compliance with the terms of any Loan Document, or such consolidated financial statements, as in each case the Administrative Agent may reasonably request on its own behalf or on behalf of any Lender. Information required to be delivered pursuant to Section 5.04(a), Section 5.01(b) or Section 5.01(d) 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 information, or provides a link thereto on the Borrower’s website on the Internet on the investor relations page at xxxxxx.xxx (or any successor page) or at xxxx://xxx.xxx.xxx; or (ii) on which such information is posted on the Borrower’s behalf on an Internet or intranet website, if any, to which the Lenders and the Administrative Agent have been granted access (whether a commercial, third-party website or whether sponsored by the Administrative Agent).
Appears in 3 contracts
Samples: Revolving Credit Agreement (Nuance Communications, Inc.), Revolving Credit Agreement (Nuance Communications, Inc.), Revolving Credit Agreement (Nuance Communications, Inc.)
Financial Statements, Reports, etc. The Borrower shall deliver to the Administrative Agent on behalf of the Lenders:
(a) within ninety (90) days after the end of each fiscal year, Parent’s consolidated balance sheet and related statement of income and cash flows, showing the financial condition of Parent and its Subsidiaries on a consolidated basis as of the close of such fiscal year and the results of their respective operations during such year, such consolidated financial statements of Parent to be audited for Parent by independent public accountants of recognized national standing and to be accompanied by an opinion of such accountants (which opinion shall be unqualified as to 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 Parent and its Subsidiaries on a consolidated basis in accordance with GAAP; provided that the foregoing delivery requirement shall be satisfied if Parent shall have filed with the SEC its Annual Report on Form 10-K for such fiscal year, which is available to the public via XXXXX or any similar successor system;
(b) within forty-five (45) days after the end of each of the first three fiscal quarters of each fiscal year, Parent’s consolidated balance sheets and related statements of income and cash flows, showing the financial condition of Parent and its Subsidiaries on a consolidated basis as of the close of such fiscal quarter and the results of their operations during such fiscal quarter and the then-elapsed portion of the fiscal year, each certified by a Responsible Officer of Parent as fairly presenting in all material respects the financial condition and results of operations of Parent and its Subsidiaries on a consolidated basis in accordance with GAAP, subject to normal year-end audit adjustments and the absence of footnotes; provided that the foregoing delivery requirement shall be satisfied if Parent shall have filed with the SEC its Quarterly Report on Form 10-Q for such fiscal quarter, which is available to the public via XXXXX or any similar successor system;
(c) within the time period under Section 5.01(a), a certificate of a Responsible Officer of the Borrower certifying that, to the knowledge of such Responsible Officer, no Event of Default has occurred and is continuing, or, if, to the knowledge of such Responsible Officer, such an Event of Default has occurred and is continuing, specifying the nature and extent thereof and any corrective action taken or proposed to be taken with respect thereto;
(d) within the time period under clauses (a) and (b) of this Section 5.01, an Officer’s Certificate demonstrating in reasonable detail compliance with Section 6.08 as of the end of the preceding fiscal quarter;
(e) promptly after the occurrence thereof, written notice of the termination of a Plan of the Borrower or an ERISA Affiliate pursuant to Section 4042 of ERISA, to the extent such termination would constitute an Event of Default under Section 7.01(j);
Appears in 3 contracts
Samples: Credit and Guaranty Agreement (American Airlines, Inc.), Credit and Guaranty Agreement (American Airlines, Inc.), Credit and Guaranty Agreement (American Airlines, Inc.)
Financial Statements, Reports, etc. The Borrower shall deliver Furnish to the Administrative Agent on behalf of (which will promptly furnish such information to the Lenders:):
(a) within ninety (90) 110 days after the end of each fiscal yearyear (commencing with fiscal year 2006), Parent’s (x) a consolidated balance sheet and related statement statements of income operations, cash flows and cash flows, owners’ equity showing the financial condition position of Parent the Borrower and its Subsidiaries on a consolidated basis as of the close of such fiscal year and the consolidated results of their respective its operations during such year and setting forth in comparative form the corresponding figures for the prior fiscal year, such which consolidated financial balance sheet and related statements of Parent to operations, cash flows and owners’ equity shall be audited for Parent by independent public accountants of recognized national standing and to be accompanied by an opinion of such accountants (which opinion shall be unqualified 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 present, in all material respects respects, the financial condition and results of operations of Parent the Borrower and its Subsidiaries on a consolidated basis in accordance with GAAP; provided GAAP (it being understood that the foregoing delivery requirement shall be satisfied if Parent shall have filed with by the SEC its Annual Report Borrower of annual reports on Form 10-K for such fiscal year, which is available of the Borrower and its consolidated Subsidiaries shall satisfy the requirements of this Section 5.04(a) to the public via XXXXX or any similar successor systemextent such annual reports include the information specified herein) and (y) supporting schedules reconciling such consolidated balance sheet and related statements of operations, cash flows and owners’ equity with the consolidated financial condition and results of operations of the Borrower for the relevant period;
(b) within forty-five (45) 45 days after the end of each of the first three fiscal quarters of each fiscal yearyear (commencing with the first fiscal quarter of 2007), Parent’s (x) a consolidated balance sheets sheet and related statements of income operations and cash flows, flows showing the financial condition position of Parent the Borrower and its Subsidiaries on a consolidated basis as of the close of such fiscal quarter and the consolidated results of their its operations during such fiscal quarter and the then-elapsed portion of the fiscal year and setting forth in comparative form the corresponding figures for the corresponding periods of the prior fiscal year, each all of which shall be in reasonable detail and which consolidated balance sheet and related statements of operations and cash flows shall be certified by a Responsible Financial Officer of Parent the Borrower on behalf of the Borrower as fairly presenting presenting, in all material respects respects, the financial condition position and results of operations of Parent the Borrower and its Subsidiaries on a consolidated basis in accordance with GAAP, GAAP (subject to normal year-end audit adjustments and the absence of footnotes; provided ) (it being understood that the foregoing delivery requirement shall be satisfied if Parent shall have filed with by the SEC its Quarterly Report Borrower of quarterly reports on Form 10-Q for such fiscal quarter, which is available of the Borrower and its consolidated Subsidiaries shall satisfy the requirements of this Section 5.04(b) to the public via XXXXX or any similar successor systemextent such quarterly reports include the information specified herein) and (y) supporting schedules reconciling such consolidated balance sheet and related statements of operations, cash flows and owners’ equity with the consolidated financial position and results of operations of the Borrower for the relevant period;
(ci) within the time period concurrently with any delivery of financial statements under Section 5.01(a)paragraphs (a) or (b) above, a certificate of a Responsible Financial Officer of the Borrower in substantially the form attached hereto as Exhibit I (x) certifying that, to the knowledge of such Responsible Officer, that no Default or Event of Default has occurred and is continuing, or, if, to the knowledge of if such Responsible Officer, such a Default or an Event of Default or Default has occurred and is continuingoccurred, specifying the nature and extent thereof and any corrective action taken or proposed to be taken with respect theretothereto and (y) commencing with the fiscal quarter ending September 30, 2007, setting forth computations in detail reasonably satisfactory to the Administrative Agent demonstrating compliance with the Total Leverage Ratio and (ii) concurrently with any delivery of financial statements under paragraph (a) above, (A) 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 under Section 6.10 (which certificate may be limited to accounting matters and disclaims responsibility for legal interpretations, and may be subject to other customary qualifications) and (B) a certificate of a Financial Officer of the Borrower commencing with the 2007 Excess Cash Flow Period, setting forth the amount, if any, of Excess Cash Flow for the Excess Cash Flow Period then ended and the Available Excess Cash Flow Amount as of the date of such certificate, in each case together with the calculation thereof in reasonable detail;
(d) promptly after the same become publicly available, copies of all periodic and other publicly available reports, proxy statements and, to the extent requested by the Administrative Agent, other materials filed by Holdings, the Borrower or any of its Subsidiaries with the SEC or any securities exchange, or after an initial public offering, distributed to its stockholders generally, as applicable and all press releases and other statements made available generally by Holdings or any of its Subsidiaries to the public concerning material developments in the business of Holdings or any of its Subsidiaries;
(e) within 90 days after the time period under beginning of each fiscal year, a detailed consolidated and consolidated quarterly budget for such fiscal year (a) including a projected consolidated and (b) consolidated balance sheet of this Section 5.01, an Officer’s Certificate demonstrating in reasonable detail compliance with Section 6.08 the Borrower and its Subsidiaries as of the end of such fiscal year, and the preceding related consolidated and consolidated statements of projected cash flow and projected income) and, as soon as available, significant revisions, if any, of such budget and quarterly projections with respect to such fiscal quarteryear (to the extent that such revisions have been approved by the Borrower’s board of directors (or equivalent governing body)), including a description of underlying assumptions with respect thereto (collectively, the “Budget”), which Budget shall in each case be accompanied by the statement of a Financial Officer of the Borrower to the effect that, to such Financial Officer’s knowledge, the Budget is a reasonable estimate for the period covered thereby;
(ef) promptly after the occurrence thereofpromptly, written notice a copy of the termination final management letter of a Plan independent accountants submitted to the board of directors (or equivalent governing body) or any committee thereof of any of the Borrower or any Restricted Subsidiary in connection with the annual audit made by independent accountants of the books of the Borrower or any such Restricted Subsidiary;
(g) promptly following a request therefor, all documentation and other information that the Administrative Agent reasonably requests on its behalf or on behalf of any Lender in order to comply with its ongoing obligations under applicable “know your customer” and anti-money laundering rules and regulations, including the USA PATRIOT Act;
(h) together with the delivery of the annual compliance certificate required by Section 5.04(c), deliver an ERISA Affiliate updated Collateral Questionnaire reflecting all changes since the date of the information most recently received pursuant to this paragraph (i) or Section 4042 5.09(f); and
(i) in connection with each annual renewal of ERISAthe insurance policies referred to in Section 5.02, an insurance broker’s certificate evidencing the insurance coverage maintained by the Loan Parties and a certificate by the Borrower that such insurance is in compliance with the insurance coverage required by the Loan Documents; and
(j) promptly, from time to time, such other information regarding the extent such termination would constitute an Event operations, business affairs and financial condition of Default under Section 7.01(jHoldings, the Borrower or any of its Subsidiaries, or compliance with the terms of any Loan Document, as in each case the Administrative Agent may reasonably request (for itself or on behalf of any Lender);.
Appears in 2 contracts
Samples: Credit Agreement (Generac Holdings Inc.), Credit Agreement (Generac Holdings Inc.)
Financial Statements, Reports, etc. The Borrower shall deliver Furnish to the Administrative Agent on behalf of the Lenders:Agent, who shall furnish to each Lender (including each Public Lender):
(a) (i) within ninety (90) days [REDACTED – Time Period] after the end of each fiscal yearFiscal Year, Parent’s (i) a consolidated balance sheet and related statement statements of income and comprehensive income, changes in equity and cash flows, flows showing the financial condition position of Parent the Borrower and its Subsidiaries on a consolidated basis subsidiaries as of the close of such fiscal Fiscal Year and their consolidated financial performance and cash flows for such year and setting forth in comparative form the results of their respective operations during corresponding figures for the prior Fiscal Year and (ii) a Narrative Report for such yearFiscal Year, such which consolidated financial balance sheet and related statements of Parent to income and comprehensive income, changes in equity and cash flows shall be audited for Parent by independent public chartered professional accountants of recognized national standing in Canada (or equivalent) and to be accompanied by an opinion of such accountants (which opinion shall not be unqualified qualified as to scope of such auditaudit or as to the status of the Borrower or any Material Subsidiary as a going concern (other than, in the case of going concern, an explanatory note with respect to an upcoming maturity of any series of indebtedness, Loans or Commitments) to the effect that such consolidated financial statements fairly present fairly, in all material respects respects, the financial condition position and results financial performance and cash flows of operations of Parent the Borrower and its Subsidiaries subsidiaries on a consolidated basis in accordance with GAAP; provided IFRS (it being understood that the foregoing delivery requirement shall be satisfied if Parent shall have filed with by the SEC its Borrower of an Annual Report on Form 10-K K, or the equivalent filed with the Canadian Securities Administrators and the Canadian Securities Administrators System for such fiscal year, which is available Electronic Document Analysis and Retrieval (“SEDAR”) website shall satisfy the requirements of this Section 5.4(a) to the public via XXXXX or any similar successor systemextent such Annual Report includes the information specified herein);
(b) within forty-five (45) days [REDACTED – Time Period] after the end of each of the first three fiscal quarters Fiscal Quarters of each fiscal yearFiscal Year, Parent’s commencing with the Fiscal Quarter ending March 31, 2016, (i) a consolidated balance sheets sheet and related statements of income and comprehensive income, changes in equity and cash flows, flows showing the financial condition position of Parent the Borrower and its Subsidiaries on a consolidated basis subsidiaries as of the close of such fiscal quarter Fiscal Quarter and the results of their operations during consolidated financial performance and cash flows for such fiscal quarter Fiscal Quarter and the then-elapsed portion of the fiscal yearFiscal Year and setting forth in comparative form the corresponding figures for the corresponding periods of the prior Fiscal Year and (ii) a Narrative Report for such Fiscal Quarter, each all of which shall be in reasonable detail and which consolidated balance sheet and related statements of income and comprehensive income, changes in equity and cash flows shall be certified by a Responsible Financial Officer of Parent the Borrower on behalf of the Borrower as fairly presenting presenting, in all material respects respects, the financial condition performance and results cash flows of operations of Parent the Borrower and its Subsidiaries subsidiaries on a consolidated basis in accordance with GAAP, IFRS (subject to normal year-end audit adjustments and the absence of footnotes; provided ) (it being understood that the foregoing delivery requirement shall be satisfied if Parent shall have filed with by the SEC its Borrower of a Quarterly Report on Form 10-Q for such fiscal quarter, which is available or the equivalent filed with the SEDAR website shall satisfy the requirements of this Section 5.4(b) to the public via XXXXX or any similar successor systemextent such quarterly reports include the information specified herein);
(c) within the time period [REDACTED – Time Period] of any delivery of financial statements under paragraph (a) or (b) of this Section 5.01(a)5.4, a certificate Compliance Certificate of a Responsible Financial Officer of the Borrower certifying that, to the knowledge of such Responsible Officer, that no Event of Default has occurred and is continuing, or, if, to the knowledge of such Responsible Officer, such an Event of or Default has occurred and that is then continuing, specifying the nature and extent thereof and any corrective action taken or proposed to be taken with respect theretoexcept as set forth therein;
(d) within [REDACTED – Time Period] after the time period under (a) and (b) beginning of this Section 5.01each Fiscal Year, an Officer’s Certificate demonstrating a consolidated annual budget for such Fiscal Year, including a description of underlying assumptions with respect thereto, which budget shall in each case be accompanied by the statement of a Financial Officer of the Borrower to the effect that such budget is based on assumptions believed by such Financial Officer to be reasonable detail compliance with Section 6.08 as of the end date of the preceding fiscal quarterdelivery thereof;
(e) promptly, from time to time, such other customary information (which is readily available) regarding the operations, business affairs and financial condition of the Credit Parties and their Restricted Subsidiaries and their compliance with the terms of any Credit Document, in each case, as the Administrative Agent may reasonably request (for itself or on behalf of any Lender); and
(f) promptly after upon becoming aware of the occurrence of any ERISA Event, a written notice specifying the nature thereof, written notice what action Borrower, any of its subsidiaries or any of their respective ERISA Affiliates has taken, is taking or proposes to take with respect thereto and, when known, any action taken or threatened in writing by the termination Internal Revenue Service, the Department of a Plan of Labor, the Borrower PBGC or an ERISA Affiliate pursuant to Section 4042 of ERISA, to the extent such termination would constitute an Event of Default under Section 7.01(j);applicable pension regulator in Canada with respect thereto.
Appears in 2 contracts
Samples: Two Year Equity Bridge Credit and Guaranty Agreement (Concordia Healthcare Corp.), Extended Equity Bridge Credit and Guaranty Agreement (Concordia Healthcare Corp.)
Financial Statements, Reports, etc. The Borrower shall deliver Furnish to the Administrative Agent on behalf of (which will promptly furnish such information to the Lenders:):
(a) within ninety (90) 90 days after the end of each fiscal yearyear of the Borrower, Parent’s a consolidated balance sheet and related statement statements of income operations, cash flows and cash flows, owners’ equity showing the financial condition position of Parent the Borrower and its Subsidiaries on a consolidated basis as of the close of such fiscal year and the consolidated results of their respective its operations during such year and setting forth in comparative form the corresponding figures for the prior fiscal year, such which consolidated financial balance sheet and related statements of Parent to operations, cash flows and owners’ equity shall be audited for Parent by independent public accountants of recognized national standing and to be accompanied by an opinion of such accountants (which opinion shall not be unqualified qualified as to scope of such audit) , or as to the status of the Borrower or any Material Subsidiary as a “going concern” to the effect that such consolidated financial statements fairly present present, in all material respects respects, the financial condition position and results of operations of Parent the Borrower and its Subsidiaries on a consolidated basis in accordance with GAAP; provided GAAP (it being understood that the foregoing delivery requirement shall be satisfied if Parent shall have filed filing by the Borrower of annual reports on Form 10 K of the Borrower and its consolidated Subsidiaries with the SEC its Annual Report on Form 10-K for such fiscal year, which is available shall satisfy the requirements of this Section 5.04(a) to the public via XXXXX or any similar successor systemextent such annual reports include the information specified herein);
(b) within forty-five (45) 45 days after the end of each of the first three fiscal quarters quarterly periods of each fiscal yearyear of the Borrower, Parent’s a consolidated balance sheets sheet and related statements of income operations and cash flows, flows showing the financial condition position of Parent the Borrower and its Subsidiaries on a consolidated basis as of the close of such fiscal quarter and the consolidated results of their its operations during such fiscal quarter and the then-elapsed portion of the fiscal year and setting forth in comparative form the corresponding figures for the corresponding periods of the prior fiscal year, each all of which shall be in reasonable detail and which consolidated balance sheet and related statements of operations and cash flows shall be certified by a Responsible Financial Officer of Parent the Borrower on behalf of the Borrower as fairly presenting presenting, in all material respects respects, the financial condition position and results of operations of Parent the Borrower and its Subsidiaries on a consolidated basis in accordance with GAAP, GAAP (subject to normal year-end audit adjustments and the absence of footnotes; provided ) (it being understood that the foregoing delivery requirement shall be satisfied if Parent shall have filed with filing by the SEC its Quarterly Report Borrower of quarterly reports on Form 10-Q for such fiscal quarter, which is available of the Borrower and its consolidated Subsidiaries with the SEC shall satisfy the requirements of this Section 5.04(b) to the public via XXXXX or any similar successor systemextent such quarterly reports include the information specified herein);
(c) within the time period concurrently with any delivery of financial statements under Section 5.01(a)paragraphs (a) or (b) above, a certificate of a Responsible Financial Officer of the Borrower (i) certifying that, to the knowledge of such Responsible Officer, that no Event of Default or Default has occurred and is continuing, or, if, to the knowledge of such Responsible Officer, if such an Event of Default or Default has occurred and is continuingoccurred, specifying the nature and extent thereof and any corrective action taken or proposed to be taken with respect thereto, (ii) setting forth computations in reasonable detail satisfactory to the Administrative Agent demonstrating compliance with the Financial Performance Covenant, (iii) setting forth the calculation and uses of the Cumulative Credit for the fiscal period then ended, (iv) certifying a list of names of all Immaterial Subsidiaries, that each Subsidiary set forth on such list individually qualifies as an Immaterial Subsidiary and that all such Subsidiaries in the aggregate do not exceed the limitation set forth in clause (b) of the definition of the term “Immaterial Subsidiary” and (v) certifying a list of names of all Unrestricted Subsidiaries and that each Subsidiary set forth on such list individually qualifies as an Unrestricted Subsidiary;
(d) promptly after the same become publicly available, copies of all periodic and other publicly available reports, proxy statements and, to the extent requested by the Administrative Agent, other materials filed by Holdings, the Borrower or any of the Subsidiaries with the SEC, or distributed to its stockholders generally, as applicable; provided, however, that such reports, proxy statements, filings and other materials required to be delivered pursuant to this clause (d) shall be deemed delivered for purposes of this Agreement when posted to the website of the Borrower;
(e) within 90 days after the beginning of each fiscal year of the Borrower, a reasonably detailed consolidated annual budget for such fiscal year (including a projected consolidated balance sheet of the Borrower and its Subsidiaries as of the end of such fiscal year, and the related consolidated statements of projected cash flow and projected income), including a description of underlying assumptions with respect thereto (collectively, the “Budget”), which Budget shall in each case be accompanied by the statement of a Financial Officer of the Borrower to the effect that, the Budget is based on assumptions believed by such Financial Officer to be reasonable as of the date of delivery thereof;
(f) upon the reasonable request of the Administrative Agent, an updated Perfection Certificate (or, to the extent such request relates to specified information contained in the Perfection Certificate, such information) reflecting all changes since the date of the information most recently received pursuant to this paragraph (f) or Section 5.09(f);
(g) promptly, from time period under to time, such other information regarding the operations, business affairs and financial condition of Holdings, the Borrower or any of the Subsidiaries, or compliance with the terms of any Loan Document, as in each case the Administrative Agent may reasonably request (for itself or on behalf of any Lender);
(h) in the event that (i)(a) in respect of the Senior Unsecured Notes, and any Permitted Refinancing Indebtedness with respect thereto, the rules and regulations of the SEC or (b) the indentures governing any secured or unsecured notes of the Borrower, permit the Borrower, Holdings or any Parent Entity to report at Holdings’ or such Parent Entity’s level on a consolidated basis and (ii) Holdings or such Parent Entity, as the case may be, is not engaged in any business or activity, and does not own any material assets or have other material liabilities, other than cash and cash equivalents and those incidental to its ownership directly or indirectly of the Equity Interests of the Borrower and the incurrence of Indebtedness for borrowed money (and, without limitation on the foregoing, does not have any subsidiaries other than the Borrower and the Borrower’s Subsidiaries and any direct or indirect parent companies of the Borrower that are not engaged in any other business or activity and do not hold any other assets or have any liabilities except as indicated above) such consolidated reporting at such Parent Entity’s level in a manner consistent with that described in paragraphs (a) and (b) of this Section 5.01, an Officer’s Certificate demonstrating in reasonable detail 5.04 for the Borrower (together with a reconciliation showing the adjustments necessary to determine compliance by the Borrower and its Subsidiaries with Section 6.08 as the Financial Performance Covenant) shall satisfy the requirements of such paragraphs; and
(i) upon the request of the end Administrative Agent, copies of the preceding fiscal quarter;
(eany documents described in Sections 101(k) promptly after the occurrence thereof, written notice or 101(l) of the termination of a Plan of ERISA that the Borrower or an any ERISA Affiliate pursuant or Subsidiary may request with respect to Section 4042 any Multiemployer Plan; provided, that if the Borrower or any of ERISAits ERISA Affiliates or Subsidiaries have not requested such documents or notices from the administrator or sponsor of the applicable Multiemployer Plan, then, upon reasonable written request of the Administrative Agent, the Borrower and/or its ERISA Affiliates or Subsidiaries shall promptly make a request for such documents or notices from such administrator or sponsor and the Borrower shall provide copies of such documents and notices to the extent such termination would constitute an Event of Default under Section 7.01(j);Administrative Agent promptly after receipt thereof.
Appears in 2 contracts
Samples: Term Loan Agreement (Realogy Group LLC), Term Loan Agreement (Realogy Group LLC)
Financial Statements, Reports, etc. The Borrower shall deliver Furnish to the Administrative Agent on behalf of (which will promptly furnish such information to the Lenders:):
(a) within ninety (90) 90 days after the end of each fiscal year, Parent’s (i) a consolidated balance sheet and related statement consolidated statements of income operations, cash flows and cash flows, owners’ equity showing the financial condition position of Parent Holdings and its the Subsidiaries on a consolidated basis as of the close of such fiscal year and the consolidated results of their respective operations during such year, such with all consolidated financial statements of Parent to be audited for Parent by independent public accountants of recognized national standing reasonably acceptable to the Administrative Agent and to be accompanied by an opinion of such accountants (which opinion shall not be unqualified as to scope of such auditqualified in any material respect) to the effect that such consolidated financial statements fairly present present, in all material respects respects, the financial position and results of operations of Holdings and the Subsidiaries on a consolidated basis in accordance with GAAP and (ii) a management report setting forth (A) Consolidated EBITDA of Holdings for such fiscal year, showing variance, by dollar amount and percentage, from amounts for the previous fiscal year, (B) such key operational information as the Canadian Borrower and Administrative Agent may agree to, and (C) a management discussion and analysis of the financial condition and results of operations of Parent and its Subsidiaries on a consolidated basis in accordance with GAAP; provided that the foregoing delivery requirement shall be satisfied if Parent shall have filed with the SEC its Annual Report on Form 10-K Holdings for such fiscal year, which is available as compared to amounts for the public via XXXXX previous fiscal year (it being understood that the delivery by Holdings of (i) financial information for such fiscal year that would be required to be contained in a filing with the SEC on Form 20-F if Holdings were required to file such forms, (ii) whether or any similar successor systemnot required by the forms referred to in clause (i) above, a “Management’s Discussion and Analysis of Financial Condition and Results of Operations” and (iii) the opinion of accountants referred to above, shall satisfy the requirements of this Section 5.04(a));
(b) within forty-five (45) 50 days after the end of each of the first three fiscal quarters of each fiscal yearyear commencing with the fiscal quarter ending March 31, Parent’s 2012, (i) a consolidated balance sheets sheet and related consolidated statements of income operations and cash flows, flows showing the financial condition position of Parent Holdings and its Subsidiaries on a consolidated basis as of the close of such fiscal quarter and the consolidated results of their operations during such fiscal quarter and the then-elapsed portion of the fiscal yearyear (cash flow is for cumulative period only), each all certified by a Responsible Financial Officer of Parent Holdings, on behalf of Holdings, as fairly presenting presenting, in all material respects respect, the financial condition position and results of operations of Parent Holdings and its Subsidiaries on a consolidated basis in accordance with GAAP, GAAP (subject to normal year-end audit adjustments and the absence of footnotes; provided that the foregoing delivery requirement shall be satisfied if Parent shall have filed with the SEC its Quarterly Report on Form 10-Q ) and (ii) a management report setting forth (A) Consolidated EBITDA of Holdings for such fiscal quarterquarter and for the then elapsed portion of the fiscal year, which is available showing variance, by dollar amount and percentage, from amounts for the comparable periods in the previous fiscal year, (B) such key operational information as the Canadian Borrower and the Administrative Agent may agree to, and (C) a management discussion and analysis of the financial condition and results of operations for such fiscal quarter as compared to the public via XXXXX or any similar successor systemcomparable period in the previous fiscal year;
(c) to the extent prepared and available generally to third parties other than direct and indirect equity holders of the Canadian Borrower (it being understood there is no obligation to otherwise create such financial statements), within 30 days after the time period end of each month commencing with the month ending March 31, 2012 a consolidated balance sheet and related consolidated statements of operations and cash flows showing the financial position of Holdings and its Subsidiaries as of the close of such month and the consolidated results of their operations during such month and the then-elapsed portion of the fiscal year, all certified by a Financial Officer of Holdings, on behalf of Holdings, as fairly presenting, in all material respects, the financial position and results of operations of Holdings and its Subsidiaries on a consolidated basis (it being understood that the delivery by Holdings of the officer’s certificate referred to above shall satisfy the requirements of this Section 5.04(c));
(d) (x) concurrently with any delivery of financial statements under Section 5.01(a)(a) or (b) above, a certificate of a Responsible Financial Officer of the Borrower Holdings on behalf of Holdings (i) certifying that, to the knowledge of such Responsible Officer, that no Event of Default or Default has occurred and is continuing, or, if, to the knowledge of such Responsible Officer, if such an Event of Default or Default has occurred and is continuingoccurred, specifying the nature and extent thereof and any corrective action taken or proposed to be taken with respect thereto;
, (dii) within commencing with the time fiscal period ending December 31, 2012, setting forth computations in reasonable detail satisfactory to the Administrative Agent demonstrating compliance with the covenant contained in Section 6.09 and (iii) setting forth computations in reasonable detail satisfactory to the Administrative Agent of the Applicable Amounts then available, (y) concurrently with any delivery of financial statements under (a) above, if the accounting firm is not restricted from providing such a certificate by the policies of its national office, a certificate of the accounting firm opining on or certifying such statements stating whether they obtained knowledge during the course of their examination of such statements of any noncompliance with the financial covenant contained in Sections 6.09 of this Agreement (which certificate may be limited to accounting matters and disclaim responsibility for legal interpretations) and (bz) the related consolidating financial information reflecting the adjustments necessary in detail reasonably acceptable to the Administrative Agent to eliminate the accounts of this Section 5.01Unrestricted Subsidiaries, an Officer’s Certificate demonstrating taken as a whole, from the relevant line items of such consolidated financial information for purposes of calculating the financial covenant set forth in reasonable detail compliance with Section 6.08 as of the end of the preceding fiscal quarterSections 6.09;
(e) promptly after the occurrence thereofsame become publicly available, written notice copies of the termination of a Plan of the Borrower or an ERISA Affiliate pursuant to Section 4042 of ERISAall periodic and other publicly available reports, proxy statements and, to the extent requested by the Administrative Agent, other materials filed by Holdings or any of its Subsidiaries with the SEC, or after an initial public offering, distributed to its stockholders generally, as applicable;
(f) within 90 days after the beginning of each fiscal year, an annual summary operating and capital expenditure budget, in form reasonably satisfactory to the Administrative Agent prepared by Holdings for such termination would constitute an Event fiscal year prepared in reasonable detail, of Default under Holdings and the Subsidiaries, accompanied by the statement of a Financial Officer of Holdings to the effect that such budget has been reviewed by Holdings’ board of directors;
(g) upon the reasonable request of the Administrative Agent (which request shall not be made more than once in any 12-month period unless specifically provided otherwise in any of the Security Documents), deliver updated information reflecting all changes since the date of the information most recently received pursuant to Section 7.01(j5.10(d);
(h) promptly, a copy of all reports submitted to the board of directors (or any committee thereof) of any of Holdings or any Restricted Subsidiary in connection with any interim or special audit that is material made by independent accountants of the books of Holdings or any Restricted Subsidiary;
(i) promptly, from time to time, such other information regarding the operations, business affairs and financial condition of Holdings or any of the Subsidiaries, or compliance with the terms of any Loan Document, as in each case the Administrative Agent may reasonably request; 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 Employee Benefits Security Administration with respect to a Plan; (ii) the most recent actuarial valuation report for any Plan; (iii) all notices received from a Multiemployer Plan sponsor or any governmental agency concerning an ERISA Event; and (iv) such other documents or governmental reports or filings relating to any Non-U.S. Pension Plan, Canadian Plan or Multiemployer Plan as the Administrative Agent shall reasonably request. Documents required to be delivered pursuant to Section 5.04(a), (b) or (e) may be delivered electronically and if so delivered, shall be deemed to have been delivered on the date (i) to the extent any such documents are included in materials otherwise filed with the SEC on which the Canadian Borrower posts such documents, or provides a link thereto on the Canadian Borrower’s website on the Internet at the website address listed on Schedule 5.04; or (ii) on which such documents are posted on the Canadian Borrower’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); provided that: (i) upon written request by the Administrative Agent, the Canadian Borrower shall deliver paper copies of such documents to the Administrative Agent for further distribution to each Lender until a written request to cease delivering paper copies is given by the Administrative Agent and (ii) the Canadian Borrower shall immediately notify (which may be by facsimile or electronic mail) the Administrative Agent of the posting of any such documents and provide to the Administrative Agent by electronic mail electronic versions (i.e., soft copies) of such documents. Notwithstanding anything contained herein, in every instance the Canadian Borrower shall be required to provide paper copies of the Compliance Certificates required by Section 5.04(d) to the Administrative Agent.
Appears in 2 contracts
Samples: Credit Agreement (Telesat Holdings Inc.), Credit Agreement (Telesat Canada)
Financial Statements, Reports, etc. The Borrower shall deliver Furnish to the Administrative Agent on behalf of (which will promptly furnish such information to the Lenders:):
(a) within ninety 90 days (90or such earlier date on which the Borrower is required to file a Form 10-K under the Exchange Act) days after the end of each fiscal year, Parent’s commencing with the fiscal year ending on September 30, 2020, a consolidated balance sheet and related statement statements of income operations, cash flows and cash flows, owners’ equity showing the financial condition position of Parent the Borrower and its Subsidiaries on a consolidated basis as of the close of such fiscal year and the consolidated results of their respective operations during such year and setting forth in comparative form the corresponding figures for the prior fiscal year, such which consolidated financial balance sheet and related statements of Parent to operations, cash flows and owners’ equity shall be accompanied by customary management’s discussion and analysis and audited for Parent by independent public accountants of recognized national standing and to be accompanied by an opinion of such accountants (which opinion shall not be unqualified qualified as to scope of such auditaudit (other than an emphasis matter paragraph) or as to the status of the Borrower or any Material Subsidiary as a going concern, other than solely with respect to, or resulting solely from, (x) an upcoming maturity date under any series of Indebtedness for borrowed money, (y) any potential or actual breach of any Financial Covenant or (z) any prospective breach of any financial covenant under any other Indebtedness for borrowed money) to the effect that such consolidated financial statements fairly present present, in all material respects respects, the financial condition position and results of operations of Parent the Borrower and its Subsidiaries on a consolidated basis in accordance with GAAP; provided GAAP (it being understood that the foregoing delivery requirement shall be satisfied if Parent shall have filed with by the SEC its Annual Report Borrower of annual reports on Form 10-K for such fiscal year, which is available (or any successor or comparable form) of the Borrower and its consolidated Subsidiaries shall satisfy the requirements of this Section 5.04(a) to the public via XXXXX or any similar successor systemextent such annual reports include the information specified herein);
(b) within forty45 days (or such earlier date on which the Borrower is required to file a Form 10-five (45Q under the Exchange Act) days after the end of each of the first three fiscal quarters of each fiscal yearyear (commencing with the fiscal quarter ended on June 30, Parent’s 2020), a consolidated balance sheets sheet and related statements of income operations and cash flows, flows showing the financial condition position of Parent the Borrower and its Subsidiaries on a consolidated basis as of the close of such fiscal quarter and the consolidated results of their operations during such fiscal quarter and the then-elapsed portion of the fiscal year and setting forth in comparative form the corresponding figures for the corresponding periods of the prior fiscal year, each all of which shall be in reasonable detail, which consolidated balance sheet and related statements of operations and cash flows shall be accompanied by customary management’s discussion and analysis and which consolidated balance sheet and related statements of operations and cash flows shall be certified by a Responsible Financial Officer of Parent the Borrower on behalf of the Borrower as fairly presenting presenting, in all material respects respects, the financial condition position and results of operations of Parent the Borrower and its Subsidiaries on a consolidated basis in accordance with GAAP, GAAP (subject to normal year-end audit adjustments and the absence of footnotes; provided ) (it being understood that the foregoing delivery requirement shall be satisfied if Parent shall have filed with by the SEC its Quarterly Report Borrower of quarterly reports on Form 10-Q for such fiscal quarter, which is available to the public via XXXXX (or any similar successor system;
(cor comparable form) within the time period under Section 5.01(a), a certificate of a Responsible Officer of the Borrower certifying that, to and its consolidated Subsidiaries shall satisfy the knowledge of such Responsible Officer, no Event of Default has occurred and is continuing, or, if, to the knowledge of such Responsible Officer, such an Event of Default has occurred and is continuing, specifying the nature and extent thereof and any corrective action taken or proposed to be taken with respect thereto;
(d) within the time period under (a) and (b) requirements of this Section 5.01, an Officer’s Certificate demonstrating in reasonable detail compliance with Section 6.08 as of the end of the preceding fiscal quarter;
(e5.04(b) promptly after the occurrence thereof, written notice of the termination of a Plan of the Borrower or an ERISA Affiliate pursuant to Section 4042 of ERISA, to the extent such termination would constitute an Event of Default under Section 7.01(jquarterly reports include the information specified herein);
Appears in 2 contracts
Samples: Credit Agreement (Cerence Inc.), Credit Agreement (Cerence Inc.)
Financial Statements, Reports, etc. The Borrower shall deliver Furnish to the Administrative Agent on behalf of (which will promptly furnish such information to the Lenders:):
(a) within ninety (90) 110 days after the end of each fiscal yearyear (commencing with fiscal year 2006), Parent’s (x) a consolidated balance sheet and related statement statements of income operations, cash flows and cash flows, owners’ equity showing the financial condition position of Parent the Borrower and its Subsidiaries on a consolidated basis as of the close of such fiscal year and the consolidated results of their respective its operations during such year and setting forth in comparative form the corresponding figures for the prior fiscal year, such which consolidated financial balance sheet and related statements of Parent to operations, cash flows and owners’ equity shall be audited for Parent by independent public accountants of recognized national standing and to be accompanied by an opinion of such accountants (which opinion shall be unqualified 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 present, in all material respects respects, the financial condition and results of operations of Parent the Borrower and its Subsidiaries on a consolidated basis in accordance with GAAP; provided GAAP (it being understood that the foregoing delivery requirement shall be satisfied if Parent shall have filed with by the SEC its Annual Report Borrower of annual reports on Form 10-K for such fiscal year, which is available of the Borrower and its consolidated Subsidiaries shall satisfy the requirements of this Section 5.04(a) to the public via XXXXX or any similar successor systemextent such annual reports include the information specified herein) and (y) supporting schedules reconciling such consolidated balance sheet and related statements of operations, cash flows and owners’ equity with the consolidated financial condition and results of operations of the Borrower for the relevant period;
(b) within forty-five (45) 45 days after the end of each of the first three fiscal quarters of each fiscal yearyear (commencing with the first fiscal quarter of 2007), Parent’s (x) a consolidated balance sheets sheet and related statements of income operations and cash flows, flows showing the financial condition position of Parent the Borrower and its Subsidiaries on a consolidated basis as of the close of such fiscal quarter and the consolidated results of their its operations during such fiscal quarter and the then-elapsed portion of the fiscal year and setting forth in comparative form the corresponding figures for the corresponding periods of the prior fiscal year, each all of which shall be in reasonable detail and which consolidated balance sheet and related statements of operations and cash flows shall be certified by a Responsible Financial Officer of Parent the Borrower on behalf of the Borrower as fairly presenting presenting, in all material respects respects, the financial condition position and results of operations of Parent the Borrower and its Subsidiaries on a consolidated basis in accordance with GAAP, GAAP (subject to normal year-end audit adjustments and the absence of footnotes; provided ) (it being understood that the foregoing delivery requirement shall be satisfied if Parent shall have filed with by the SEC its Quarterly Report Borrower of quarterly reports on Form 10-Q for such fiscal quarter, which is available of the Borrower and its consolidated Subsidiaries shall satisfy the requirements of this Section 5.04(b) to the public via XXXXX or any similar successor systemextent such quarterly reports include the information specified herein) and (y) supporting schedules reconciling such consolidated balance sheet and related statements of operations, cash flows and owners’ equity with the consolidated financial position and results of operations of the Borrower for the relevant period;
(ci) within the time period concurrently with any delivery of financial statements under Section 5.01(a)paragraphs (a) or (b) above, a certificate of a Responsible Financial Officer of the Borrower in substantially the form attached hereto as Exhibit I (x) certifying that, to the knowledge of such Responsible Officer, that no Default or Event of Default has occurred and is continuing, or, if, to the knowledge of if such Responsible Officer, such a Default or an Event of Default or Default has occurred and is continuingoccurred, specifying the nature and extent thereof and any corrective action taken or proposed to be taken with respect theretothereto and (y) commencing with the fiscal quarter ending September 30, 2007, setting forth computations in detail reasonably satisfactory to the Administrative Agent demonstrating compliance with the Total Leverage Ratio and (ii) concurrently with any delivery of financial statements under paragraph (a) above, (A) 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 under Section 6.10 (which certificate may be limited to accounting matters and disclaims responsibility for legal interpretations, and may be subject to other customary qualifications) and (B) a certificate of a Financial Officer of the Borrower commencing with the 2007 Excess Cash Flow Period, setting forth the amount, if any, of Excess Cash Flow for the Excess Cash Flow Period then ended and the Available Excess Cash Flow Amount as of the date of such certificate, in each case together with the calculation thereof in reasonable detail;
(d) promptly after the same become publicly available, copies of all periodic and other publicly available reports, proxy statements and, to the extent requested by the Administrative Agent, other materials filed by Holdings, the Borrower or any of its Subsidiaries with the SEC or any securities exchange, or after an initial public offering, distributed to its stockholders generally, as applicable and all press releases and other statements made available generally by Holdings or any of its Subsidiaries to the public concerning material developments in the business of Holdings or any of its Subsidiaries;
(e) within 90 days after the time period under beginning of each fiscal year, a detailed consolidated and consolidated quarterly budget for such fiscal year (a) including a projected consolidated and (b) consolidated balance sheet of this Section 5.01, an Officer’s Certificate demonstrating in reasonable detail compliance with Section 6.08 the Borrower and its Subsidiaries as of the end of such fiscal year, and the preceding related consolidated and consolidated statements of projected cash flow and projected income) and, as soon as available, significant revisions, if any, of such budget and quarterly projections with respect to such fiscal quarteryear (to the extent that such revisions have been approved by the Borrower’s board of directors (or equivalent governing body)), including a description of underlying assumptions with respect thereto (collectively, the “Budget”), which Budget shall in each case be accompanied by the statement of a Financial Officer of the Borrower to the effect that, to such Financial Officer’s knowledge, the Budget is a reasonable estimate for the period covered thereby;
(ef) promptly after the occurrence thereofpromptly, written notice a copy of the termination final management letter of a Plan independent accountants submitted to the board of directors (or equivalent governing body) or any committee thereof of any of the Borrower or any Restricted Subsidiary in connection with the annual audit made by independent accountants of the books of the Borrower or any such Restricted Subsidiary;
(g) promptly following a request therefor, all documentation and other information that the Administrative Agent reasonably requests on its behalf or on behalf of any Lender in order to comply with its ongoing obligations under applicable “know your customer” and anti-money laundering rules and regulations, including the USA PATRIOT Act;
(h) together with the delivery of the annual compliance certificate required by Section 5.04(c), deliver an ERISA Affiliate updated Collateral Questionnaire reflecting all changes since the date of the information most recently received pursuant to this paragraph (i) or Section 4042 5.09(f); and
(i) in connection with each annual renewal of ERISAthe insurance policies referred to in Section 5.02, an insurance broker’s certificate evidencing the insurance coverage maintained by the Loan Parties and a certificate by the Borrower that such insurance is in compliance with the insurance coverage required by the Loan Documents; and
(j) promptly, from time to time, such other information regarding the extent such termination would constitute an Event operations, Collateral, business affairs and financial condition of Default under Section 7.01(jHoldings, the Borrower or any of its Subsidiaries, or compliance with the terms of any Loan Document, as in each case the Administrative Agent may reasonably request (for itself or on behalf of any Lender or Agent);.
Appears in 2 contracts
Samples: Credit Agreement (Generac Holdings Inc.), Credit Agreement (Generac Holdings Inc.)
Financial Statements, Reports, etc. The Borrower shall deliver to the Administrative Agent on behalf of the Lenders:
(a) within Within ninety (90) days after the end of each fiscal year, Parentthe Borrower’s consolidated balance sheet and related statement of income and cash flows, showing the financial condition of Parent the Borrower and its Subsidiaries on a consolidated basis as of the close of such fiscal year and the results of their respective operations during such year, such the consolidated financial statements statement of Parent the Borrower to be audited for Parent the Borrower by independent public accountants of recognized national standing and to be accompanied by an opinion of such accountants (which opinion shall be unqualified without any qualification or exception as to the scope of such audit) to the effect that such consolidated financial statements fairly present in all material respects the financial condition and results of operations of Parent the Borrower and its Subsidiaries on a consolidated basis in accordance with GAAP; provided that the foregoing delivery requirement shall be satisfied if Parent the Borrower shall have filed with the SEC its Annual Report on Form 10-K for such fiscal year, which is available to the public via XXXXX or any similar successor system;
(b) within Within forty-five (45) days after the end of each of the first three fiscal quarters of each fiscal year, Parentthe Borrower’s consolidated balance sheets and related statements of income and cash flows, showing the financial condition of Parent the Borrower and its Subsidiaries on a consolidated basis as of the close of such fiscal quarter and the results of their operations during such fiscal quarter and the then-then elapsed portion of the fiscal year, each certified by a Responsible Officer of Parent the Borrower as fairly presenting in all material respects the financial condition and results of operations of Parent the Borrower and its Subsidiaries on a consolidated basis in accordance with GAAP, subject to normal year-end audit adjustments and the absence of footnotes; provided that the foregoing delivery requirement shall be satisfied if Parent the Borrower shall have filed with the SEC its Quarterly Report on Form 10-Q for such fiscal quarter, which is available to the public via XXXXX or any similar successor system;
(c) within Within the time period under Section 5.01(a)) above, a certificate of a Responsible Officer of the Borrower certifying that, to the knowledge of such Responsible Officer, no Default or Event of Default has occurred and is continuing, or, if, to the knowledge of such Responsible Officer, such an a Default or Event of Default has occurred and is continuing, specifying the nature and extent thereof and any corrective action taken or proposed to be taken with respect thereto;
(d) within Within the time period under (a) and (b) of this Section 5.01, an Officer’s Certificate a certificate of a Responsible Officer demonstrating in reasonable detail compliance with Section Sections 6.08 and 6.09(a) as of the end of the preceding fiscal quarter, including an updated calculation of the Collateral Coverage Ratio reflecting the most recent Appraisals (as adjusted for any Dispositions or additions to the Collateral since the date of delivery to the Administrative Agent of such Appraisals);
(e) promptly Within 15 days after a Responsible Officer of the occurrence Borrower obtains knowledge that there has been one or more Dispositions of Collateral (excluding those described in clause (b), (d) or (e)(iv) of the definition of “Permitted Disposition”) since the date of the Officer’s Certificate demonstrating compliance with Section 6.09(a) most recently delivered under this Agreement by the Borrower to the Administrative Agent consisting of (i) a Pledged Aircraft, (ii) a Pledged Engine or (iii) any other Collateral having an Appraised Value in the aggregate in excess of 10% of the sum of the aggregate Appraised Value of all Collateral plus Pledged Cash and Cash Equivalents, a certificate of a Responsible Officer demonstrating in reasonable detail compliance with Section 6.09(a);
(f) [Reserved].
(g) Promptly after a Responsible Officer obtains knowledge thereof, written notice of the termination failure of a Plan any material assumption contained in any Appraisal to be correct, except if such failure would not reasonably be expected to materially adversely affect the Appraised Value of the applicable type of Collateral;
(h) So long as any Commitment, Loan or Letter of Credit is outstanding, within 30 days after the Chief Financial Officer or the Treasurer of the Borrower becoming aware of the occurrence of a Default or an ERISA Affiliate Event of Default that is continuing, an Officer’s Certificate specifying such Default or Event of Default and what action the Borrower and its Subsidiaries are taking or propose to take with respect thereto; and
(i) Promptly, from time to time, such other information regarding the Collateral and the operations, business affairs and financial condition of either the Borrower or any Guarantor, in each case as the Administrative Agent, at the request of any Lender, may reasonably request (it being understood that, upon the request of the Administrative Agent, the Borrower shall provide utilization reports with respect to the Pledged Slots (but no more than once per fiscal quarter)). Subject to the next succeeding sentence, information delivered pursuant to this Section 5.01 to the Administrative Agent may be made available by the Administrative Agent to the Lenders by posting such information on the Debtdomain website on the Internet at xxxx://xxx.xxxxxxxxxx.xxx. Information required to be delivered pursuant to this Section 5.01 by the Borrower shall be delivered pursuant to Section 4042 of ERISA, 10.01 hereto. Information required to be delivered pursuant to this Section 5.01 (to the extent not made available as set forth above) shall be deemed to have been delivered to the Administrative Agent on the date on which the Borrower provides written notice to the Administrative Agent that such information has been posted on the Borrower’s general commercial website on the Internet (to the extent such termination would constitute an Event information has been posted or is available as described in such notice), as such website may be specified by the Borrower to the Administrative Agent from time to time. Information required to be delivered pursuant to this Section 5.01 shall be in a format which is suitable for transmission. Any notice or other communication delivered pursuant to this Section 5.01, or otherwise pursuant to this Agreement, shall be deemed to contain material non-public information unless (i) expressly marked by the Borrower or a Guarantor as “PUBLIC”, (ii) such notice or communication consists of Default under Section 7.01(j);copies of the Borrower’s public filings with the SEC or (iii) such notice or communication has been posted on a the Borrower’s general commercial website on the Internet, as such website may be specified by the Borrower to the Administrative Agent from time to time.
Appears in 2 contracts
Samples: Credit and Guaranty Agreement (Spirit Airlines, Inc.), Credit and Guaranty Agreement (Spirit Airlines, Inc.)
Financial Statements, Reports, etc. The Borrower shall deliver In the case of the ----------------------------------- Borrowers, furnish to the Administrative Agent on behalf of (with sufficient copies for each Lender) for distribution to the Lenders:
(a) as soon as available and in any event within ninety (90) 120 days after the end of each fiscal year, Parent’s a copy of the reports filed by each of JCPenney and Funding with the SEC on Form 10-K in respect of such fiscal year, accompanied by JCPenney's annual report in respect of such fiscal year or, if either of JCPenney or Funding is not required to file such a report in respect of such fiscal year, the consolidated balance sheet sheets and related statement consolidated statements of income and cash flows, showing the financial condition flows of Parent JCPenney and its Subsidiaries on a consolidated basis Subsidiaries, or of Funding and its Subsidiaries, as the case may be, as of the close of such fiscal year and the results of their respective operations during such year, such consolidated financial statements of Parent to be all audited for Parent by KPMG Peat Marwick L.L.P., or other independent public accountants of recognized national standing and to be accompanied by an opinion of such accountants (which opinion shall be unqualified as in scope and substance reasonably satisfactory to scope of such auditthe Required Lenders) to the effect that such consolidated financial statements fairly present in all material respects the financial condition and position, results of operations and cash flows of Parent JCPenney and its Subsidiaries on a consolidated basis or of Funding and its Subsidiaries, as the case may be, in accordance with GAAP; provided that the foregoing delivery requirement shall be satisfied if Parent shall have filed with the SEC its Annual Report on Form 10-K for such fiscal year, which is available to the public via XXXXX or any similar successor system;
(b) as soon as available and in any event within forty-five (45) 60 days after the end of each of the first three fiscal quarters quarterly periods of each fiscal year, Parent’s a copy of the quarterly reports filed by each of JCPenney and Funding with the SEC on Form 10-Q in respect of such quarterly period, or if either of JCPenney or Funding is not required to file such a report in respect of such quarterly period, the consolidated balance sheets and related consolidated statements of income and cash flows, showing the financial condition flows of Parent JCPenney and its Subsidiaries on a consolidated basis Subsidiaries, or of Funding and its Subsidiaries, as the case may be, 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 yearquarter, each certified by a Responsible Officer of Parent its chief financial officer, treasurer or controller as fairly presenting in all material respects the financial condition and position, results of operations and cash flows of Parent JCPenney and its Subsidiaries on a consolidated basis or of Funding and its Subsidiaries, as the case may be, in accordance with GAAP, subject to normal year-end audit adjustments and the absence of footnotes; provided that the foregoing delivery requirement shall be satisfied if Parent shall have filed with the SEC its Quarterly Report on Form 10-Q for such fiscal quarter, which is available to the public via XXXXX or any similar successor systemadjustments;
(c) within concurrently with any delivery of financial statements by JCPenney or Funding under (a) above (whether contained in a report filed with the time period under Section 5.01(aSEC or otherwise), a certificate of a Responsible Officer of the Borrower certifying thatits chief financial officer, to the knowledge of such Responsible Officerpresident, treasurer or controller (i) stating that no Event of Default or Default has occurred and is continuing, or, if, to the knowledge of such Responsible Officer, if such an Event of Default or Default has occurred and is continuingoccurred, specifying the nature and extent thereof and any corrective action taken or proposed to be taken with respect theretothereto and (ii) with respect to JCPenney, setting forth computations in reasonable detail demonstrating compliance with the covenant contained in Section 6.02;
(d) within promptly after the time period under (a) same become publicly available, copies of all documents and (breports that any Borrower may be required to file with the SEC pursuant to Section 13 or 15(d) of this Section 5.01the Securities Exchange Act of 1934, an Officer’s Certificate demonstrating in reasonable detail compliance as amended, or with Section 6.08 as any Governmental Authority succeeding to any of or all the functions of the end of the preceding fiscal quarterSEC;
(e) promptly after the occurrence thereofexecution and delivery thereof by the parties thereto, written notice copies of all agreements and other instruments that have the termination effect of amending, modifying or waiving any provision of a Plan Support Agreement; and
(f) promptly, from time to time, such other documents and information regarding the operations, business affairs and financial condition of the any Borrower or an ERISA Affiliate pursuant to Section 4042 Restricted Subsidiary, or compliance with the terms of ERISAthis Agreement, to as the extent such termination would constitute an Event of Default under Section 7.01(j);Administrative Agent or any Lender may reasonably request.
Appears in 2 contracts
Samples: 364 Day Revolving Credit Agreement (Penney J C Funding Corp), Revolving Credit Agreement (Penney J C Funding Corp)
Financial Statements, Reports, etc. The Borrower shall deliver Furnish to the Administrative Agent on behalf of (which will promptly furnish such information to the Lenders:):
(a) within ninety (90) 110 days after following the end of the fiscal year ending December 30, 2012, and within 90 days following the end of each fiscal yearyear thereafter, Parent’s either (at the option of the Borrower) (i) a consolidated balance sheet and related statement statements of income operations, cash flows and cash flows, owners’ equity showing the financial condition position of Parent SF CC and its Subsidiaries on a consolidated basis as of the close of such fiscal year and the consolidated results of their respective its operations during such year or (ii) a consolidated balance sheet and related statements of operations, cash flows and owners’ equity showing the financial position of Parent and its Subsidiaries as of the close of such fiscal year and the consolidated results of its operations during such year (provided that if SF CC or Parent, as the case may be, includes the financial results of any person that is not a Loan Party or a Subsidiary of Borrower Holdco in such financial statements, the Borrower shall also provide a supplement showing consolidating information for Borrower Holdco and its Subsidiaries) and, in each case, starting with the fiscal year ending December 29, 2013, setting forth in comparative form the corresponding figures for the prior fiscal year, such which consolidated financial balance sheet and related statements of Parent to operations, cash flows and owners’ equity shall be audited for Parent by independent public accountants of recognized national standing and to be accompanied by an opinion of such accountants (which opinion shall not be unqualified qualified as to scope of audit or as to the status of SF CC, Parent or any Material Subsidiary as a going concern other than any such auditqualification or exception that is solely with respect to, or resulting solely from, an upcoming maturity date under any Term Facility or the ABL Facility occurring within one year from the time such report is delivered) to the effect that such consolidated financial statements fairly present present, in all material respects respects, the financial condition position and results of operations of SF CC and its Subsidiaries on a consolidated basis in accordance with GAAP (it being understood that the delivery of annual reports on Form 10-K of SF CC or Parent and their respective consolidated Subsidiaries shall satisfy the requirements of this Section 5.04(a) to the extent such annual reports include the information specified herein) (the applicable financial statements delivered pursuant to this clause (a) being the “Annual Financial Statements”);
(b) within 45 days (except in the case of the first two fiscal quarters for which quarterly financial statements are required to be delivered hereunder, within 60 days) following the end of each of the first three fiscal quarters of each fiscal year, (i) either (at the option of the Borrower) (A) a consolidated balance sheet and related statements of operations and cash flows showing the financial position of SF CC and its Subsidiaries as of the close of such fiscal quarter and the consolidated and consolidating results of its operations during such fiscal quarter, or (B) a consolidated balance sheet and related statements of operations and cash flows showing the financial position of Parent and its Subsidiaries as of the close of such fiscal quarter and the consolidated results of its operations during such fiscal quarter (provided that if SF CC or Parent, as the case may be, includes the financial results of any person that is not a Loan Party or a Subsidiary of Borrower Holdco in such financial statements, the Borrower shall also provide a supplement showing consolidating information for Borrower Holdco and its Subsidiaries) and, in each case, the then-elapsed portion of the fiscal year and setting forth in comparative form the corresponding figures for the corresponding periods of the prior fiscal year, and (ii) management’s discussion and analysis of significant operational and financial developments during such quarterly period, all of which shall be in reasonable detail and which consolidated balance sheet and related statements of operations and cash flows shall be certified by a Responsible Officer of Parent on behalf of Parent as fairly presenting, in all material respects, the financial position and results of operations of Parent and its Subsidiaries on a consolidated basis in accordance with GAAP; provided that the foregoing delivery requirement shall be satisfied if Parent shall have filed with the SEC its Annual Report on Form 10-K for such fiscal year, which is available to the public via XXXXX or any similar successor system;
GAAP (b) within forty-five (45) days after the end of each of the first three fiscal quarters of each fiscal year, Parent’s consolidated balance sheets and related statements of income and cash flows, showing the financial condition of Parent and its Subsidiaries on a consolidated basis as of the close of such fiscal quarter and the results of their operations during such fiscal quarter and the then-elapsed portion of the fiscal year, each certified by a Responsible Officer of Parent as fairly presenting in all material respects the financial condition and results of operations of Parent and its Subsidiaries on a consolidated basis in accordance with GAAP, subject to normal year-end audit adjustments and the absence of footnotes; provided ) (it being understood that the foregoing delivery requirement shall be satisfied if Parent shall have filed with the SEC its Quarterly Report of quarterly reports on Form 10-Q for such fiscal quarter, which is available of SF CC or Parent and their respective consolidated Subsidiaries shall satisfy the requirements of this Section 5.04(b) to the public via XXXXX or any similar successor systemextent such quarterly reports include the information specified herein) (the applicable financial statements delivered pursuant to this clause (b) being the “Quarterly Financial Statements” and, together with the Annual Financial Statements, the “Required Financial Statements”);
(c) within the time period concurrently with any delivery of Required Financial Statements under paragraphs (a) and (b) of this Section 5.01(a)5.04, a certificate of a Responsible Financial Officer of the Borrower (i) certifying that, to the knowledge of such Responsible Officer, that no Default or Event of Default has occurred and is continuing, continuing or, if, to the knowledge of such Responsible Officer, such an if a Default or Event of Default has occurred and is continuing, specifying the nature and extent thereof and any corrective action taken or proposed to be taken with respect thereto, (ii) setting forth the calculation and uses of the Cumulative Credit for the fiscal period then ended if the Borrower shall have used the Cumulative Credit for any purpose during such fiscal period, (iii) certifying a list of all Immaterial Subsidiaries, that each Subsidiary set forth on such list individually qualifies as an Immaterial Subsidiary and that all such Subsidiaries in the aggregate do not exceed the limitation set forth in clause (b) of the definition of the term “Immaterial Subsidiary” and (iv) certifying a list of all Unrestricted Subsidiaries at such time and that each Subsidiary set forth on such list qualifies as an Unrestricted Subsidiary;
(d) promptly after the same become publicly available, copies of all periodic and other publicly available reports, proxy statements and, to the extent requested by the Administrative Agent, other materials filed by SF CC, Parent, the Borrower or any other Subsidiary with the SEC or, after an initial public offering, distributed to its stockholders generally, as applicable; provided that such reports, proxy statements, filings and other materials required to be delivered pursuant to this clause (d) shall be deemed delivered for purposes of this Agreement when posted to the website of the Borrower;
(e) within 90 days after the beginning of each fiscal year, a reasonably detailed consolidated annual budget for such fiscal year (including a projected consolidated balance sheet of Parent and the Subsidiaries as of the end of each fiscal quarter for the following fiscal year and annual consolidated statements of projected cash flow and projected income), including a description of underlying assumptions with respect thereto (collectively, the “Budget”), which Budget shall in each case be accompanied by the statement of a Financial Officer of Parent to the effect that the Budget is based on assumptions believed by such Financial Officer to be reasonable as of the date of delivery thereof;
(f) upon the reasonable request of the Collateral Agent, concurrently with the delivery of the Annual Financial Statements, an updated Perfection Certificate (or, to the extent such request relates to specified information contained in the Perfection Certificate, such information) reflecting all changes since the date of the information most recently received pursuant to this paragraph (f) or Section 5.10(e);
(g) promptly, from time period under to time, such other information regarding the operations, business affairs and financial condition of Parent or any Subsidiary, or compliance with the terms of any Loan Document, in each case, as the Administrative Agent may reasonably request (for itself or on behalf of any Lender);
(h) promptly upon request by the Administrative Agent (so long as the following are obtainable using commercially reasonable measures), copies of (i) each Schedule SB (Single-Employer Defined Benefit Plan Actuarial Information) to the most recent annual report (Form 5500 Series) filed with the Internal Revenue Service with respect to a Plan, (ii) the most recent actuarial valuation report for any Plan, (iii) all notices received from a Multiemployer Plan sponsor, a plan administrator or any governmental agency, or provided to any Multiemployer Plan by the Borrower, any other Subsidiary or any ERISA Affiliate, concerning an ERISA Event and (iv) with respect to each Foreign Benefit Plan, any available annual reports, actuarial valuation reports or notices from plan sponsors, plan administrators or any Governmental Authority with respect to such plan; and
(i) promptly following any request therefor by the Administrative Agent (so long as the following are obtainable using commercially reasonable measures), copies of (i) any documents described in Section 101(k)(1) of ERISA that Parent, the Borrower, any other Subsidiary or any ERISA Affiliate may request with respect to any Multiemployer Plan and (ii) any notices described in Section 101(l)(1) of ERISA that Parent, the Borrower, any other Subsidiary or any ERISA Affiliate may request with respect to any Multiemployer Plan; provided that if Parent, the Borrower, any other Subsidiary or any ERISA Affiliate has not requested such documents or notices from the administrator or sponsor of the applicable Multiemployer Plan, Parent, the Borrower, such other Subsidiary or such ERISA Affiliate shall promptly make a request for such documents or notices from the such administrator or sponsor and shall provide copies of such documents and notices promptly after receipt thereof; provided that in the event that Parent and/or any Parent Entity, as applicable, is not engaged in any business or activity, and does not own any assets or have other liabilities, other than those incidental to its ownership directly or indirectly of the Equity Interests of the Borrower and the other Subsidiaries, such consolidated reporting at a Parent Entity’s level in a manner consistent with that described in paragraphs (a) and (b) of this Section 5.01, an Officer’s Certificate demonstrating in reasonable detail compliance with Section 6.08 as 5.04 for Parent will satisfy the requirements of the end of the preceding fiscal quarter;
(e) promptly after the occurrence thereof, written notice of the termination of a Plan of the Borrower or an ERISA Affiliate pursuant to Section 4042 of ERISA, to the extent such termination would constitute an Event of Default under Section 7.01(j);paragraphs.
Appears in 2 contracts
Samples: Credit Agreement (Smart & Final Stores, Inc.), Credit Agreement (Smart & Final Stores, Inc.)
Financial Statements, Reports, etc. The Borrower shall deliver Furnish to the Administrative Agent on behalf of (which will promptly furnish such information to the Lenders:):
(a) within ninety one hundred ten (90110) days after the end of each fiscal yearyear (commencing with fiscal year 2012), Parent’s (x) a consolidated balance sheet and related statement statements of income operations, cash flows and cash flows, owners’ equity showing the financial condition position of the Parent and its Subsidiaries on a consolidated basis as of the close of such fiscal year and the consolidated results of their respective its operations during such year and setting forth in comparative form the corresponding figures for the prior fiscal year, such which consolidated financial balance sheet and related statements of Parent to operations, cash flows and owners’ equity shall be audited for Parent by independent public accountants of recognized national standing and to be accompanied by an opinion of such accountants (which opinion shall be unqualified 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 present, in all material respects respects, the financial condition and results of operations of the Parent and its Subsidiaries on a consolidated basis in accordance with GAAP; provided , (y) a consolidating balance sheet and related statements of operations and cash flows showing the financial position of the Lead Borrower and its Restricted Subsidiaries as of the close of such fiscal year and the consolidating results of its operations during such year and setting forth in comparative form the corresponding figures for the prior fiscal year, which consolidating financial information shall not be subject to the audit procedures set forth in clause (x) but shall be certified by a Financial Officer of the Lead Borrower to the extent that such consolidating financial statements fairly present, in all material respects, the financial condition and results of operations of the Lead Borrower and its Restricted Subsidiaries on a consolidating basis in accordance with GAAP) and (z) in the case of the information required pursuant to clause (x) or clause (y) supporting schedules reconciling such consolidated (or consolidating, as applicable) balance sheet and related statements of operations and cash flows with the consolidated (or consolidating, as applicable) financial condition and results of operations of the Parent or the Lead Borrower, as applicable, for the relevant period (it being understood that the foregoing delivery requirement shall be satisfied if Parent shall have filed with by the SEC its Annual Report Lead Borrower of annual reports on Form 10-K for such fiscal year, which is available of the Parent and its consolidated Subsidiaries shall satisfy the requirements of this Section 5.04(a) to the public via XXXXX or any similar successor systemextent such annual reports include the information specified herein);
(b) within forty-five (45) days after the end of each of the first three (3) fiscal quarters of each fiscal yearyear (commencing with the second fiscal quarter of 2012), Parent’s (x) a consolidated balance sheets sheet and related statements of income operations and cash flows, flows showing the financial condition position of the Parent and its Subsidiaries on a consolidated basis as of the close of such fiscal quarter and the consolidated results of their its operations during such fiscal quarter and the then-elapsed portion of the fiscal year and setting forth in comparative form the corresponding figures for the corresponding periods of the prior fiscal year, each all of which shall be in reasonable detail and which consolidated balance sheet and related statements of operations and cash flows shall be certified by a Responsible Financial Officer of Parent the Lead Borrower on behalf of the Lead Borrower as fairly presenting presenting, in all material respects respects, the financial condition position and results of operations of the Parent and its Subsidiaries on a consolidated basis in accordance with GAAP, GAAP (subject to normal year-end audit adjustments and the absence of footnotes; provided ), (y) a consolidating balance sheet and related statements of operations and cash flows showing the financial position of the Lead Borrower and its Restricted Subsidiaries as of the close of such fiscal quarter and the consolidating results of its operations during such fiscal quarter and the then-elapsed portion of the fiscal year and setting forth in comparative form the corresponding figures for the corresponding periods of the prior fiscal year, all of which shall be in reasonable detail and which consolidating balance sheet and related statements of operations and cash flows shall be certified by a Financial Officer of the Lead Borrower on behalf of the Lead Borrower as fairly presenting, in all material respects, the financial position and results of operations of the Lead Borrower and its Restricted Subsidiaries on a consolidating basis in accordance with GAAP and (z) in the case of information required pursuant to clause (x) or clause (y), supporting schedules reconciling such consolidated (or consolidating, as applicable) balance sheet and related statements of operations and cash flows with the consolidated (or consolidating, as applicable) financial position and results of operations of the Parent or the Lead Borrower, as applicable, for the relevant period (it being understood that the foregoing delivery requirement shall be satisfied if Parent shall have filed with by the SEC its Quarterly Report Lead Borrower of quarterly reports on Form 10-Q for such fiscal quarter, which is available of the Parent and its consolidated Subsidiaries shall satisfy the requirements of this Section 5.04(b) to the public via XXXXX or any similar successor systemextent such quarterly reports include the information specified herein);
(ci) within the time period concurrently with any delivery of financial statements under Section 5.01(a)paragraphs (a) or (b) above, a certificate of a Responsible Financial Officer of the Lead Borrower in substantially the form attached hereto as Exhibit I (x) certifying that, to the knowledge of such Responsible Officer, that no Default or Event of Default has occurred and is continuing, or, if, to the knowledge of if such Responsible Officer, such a Default or an Event of Default has occurred and is continuingoccurred, specifying the nature and extent thereof and any corrective action taken or proposed to be taken with respect theretothereto and (y) setting forth the reasonably detailed calculations with respect to the Consolidated Fixed Charge Coverage Ratio for such period, whether or not the requirements of Section 6.10 are then in effect;
(d) promptly after the same become publicly available, copies of all periodic and other publicly available reports, proxy statements and, to the extent requested by the Administrative Agent, other materials filed by Holdings, the Lead Borrower or any of its Subsidiaries with the SEC or any securities exchange, or after an initial public offering, distributed to its stockholders generally, as applicable and all press releases and other statements made available generally by Holdings or any of its Subsidiaries to the public concerning material developments in the business of Holdings or any of its Subsidiaries;
(e) within ninety (90) days after the time period under beginning of each fiscal year, a detailed consolidated and consolidated quarterly budget for such fiscal year (a) including a projected consolidated and (b) consolidated balance sheet of this Section 5.01, an Officer’s Certificate demonstrating in reasonable detail compliance with Section 6.08 the Lead Borrower and its Subsidiaries as of the end of such fiscal year, and the preceding related consolidated and consolidated statements of projected cash flow and projected income) and, as soon as available, significant revisions, if any, of such budget and quarterly projections with respect to such fiscal quarteryear (to the extent that such revisions have been approved by the Lead Borrower’s board of directors (or equivalent governing body)), including a description of underlying assumptions with respect thereto (collectively, the “Budget”), which Budget shall in each case be accompanied by the statement of a Financial Officer of the Lead Borrower to the effect that, to such Financial Officer’s knowledge, the Budget is a reasonable estimate for the period covered thereby;
(ef) promptly after following a request therefor, all documentation and other information that the occurrence thereofAdministrative Agent reasonably requests on its behalf or on behalf of any Lender in order to comply with its ongoing obligations under applicable “know your customer” and anti-money laundering rules and regulations, written notice including the USA PATRIOT Act;
(g) together with the delivery of the termination of a Plan annual compliance certificate required by Section 5.04(c), deliver an updated Collateral Questionnaire reflecting all changes since the date of the Borrower information most recently received pursuant to this paragraph (g) or an Section 5.09(f);
(h) promptly following reasonable request therefore from the Administrative Agent, copies of (i) any documents described in Sections 101(f) and/or (j) of ERISA with respect to any Plan, and/or (ii) any notices or documents described in Sections 101(f), (k) and/or (l) of ERISA requested with respect to any Multiemployer Plan; provided, that if any Loan Party or any ERISA Affiliate has not requested such documents or notices from the administrator or sponsor of the applicable Plan or Multiemployer Plan, then, upon reasonable request of the Administrative Agent, the Loan Party(ies) and/or the ERISA Affiliate(s) shall promptly make a request for such documents or notices from such administer or sponsor and the Borrowers shall provide copies of such documents and notices to the Administrative Agent promptly after receipt thereof;
(i) promptly, from time to time, such other information regarding the operations, business affairs and financial condition of Holdings, the Borrowers or any of its Subsidiaries, or compliance with the terms of any Loan Document, as in each case the Administrative Agent may reasonably request (for itself or on behalf of any Lender);
(j) at the Administrative Agent’s reasonable request, from time to time, a listing of each Borrower’s trade payables, specifying the trade creditor and balance due, and a detailed trade payable aging;
(k) at any time when Qualified Cash is to be included in any calculation hereunder, a report on the balance and Deposit Account location of such Qualified Cash of up to $5,000,000, and updates thereto as frequently as reasonably necessary if at any time the amount of such Qualified Cash to be so included varies from the latest report provided to the Administrative Agent in accordance with this Section 5.04(k);
(l) together with the delivery of the Borrowing Base Certificate pursuant to Section 4042 5.12(d), at any time when there are any Letters of ERISACredit issued in the Alternative LC Currency, to the extent Borrowers shall deliver a report detailing the Dollar Equivalent of the total outstanding amount of any such termination would constitute an Event Letters of Default under Section 7.01(j);Credit denominated in the Alternative LC Currency.
Appears in 2 contracts
Samples: Credit Agreement (Generac Holdings Inc.), Credit Agreement (Generac Holdings Inc.)
Financial Statements, Reports, etc. The Borrower shall deliver to the Administrative Agent on behalf of the Lenders:
(a) within Within ninety (90) days after the end of each fiscal year, Parent’s consolidated balance sheet and related statement of income and cash flows, showing the financial condition of Parent and its Subsidiaries on a consolidated basis as of the close of such fiscal year and the results of their respective operations during such year, such the consolidated financial statements statement of Parent to be audited for Parent by independent public accountants of recognized national standing and to be accompanied by an opinion of such accountants (which opinion shall be unqualified without any qualification or exception as to the scope of such audit) to the effect that such consolidated financial statements fairly present in all material respects the financial condition and results of operations of Parent and its Subsidiaries on a consolidated basis in accordance with GAAP; provided that the foregoing delivery requirement shall be satisfied if Parent shall have filed with the SEC its Annual Report on Form 10-K for such fiscal year, which is available to the public via XXXXX EXXXX or any similar successor system;
(b) within Within forty-five (45) days after the end of each of the first three fiscal quarters of each fiscal year, Parent’s consolidated balance sheets and related statements of income and cash flows, showing the financial condition of Parent and its Subsidiaries on a consolidated basis as of the close of such fiscal quarter and the results of their operations during such fiscal quarter and the then-then elapsed portion of the fiscal year, each certified by a Responsible Officer of the Parent as fairly presenting in all material respects the financial condition and results of operations of Parent and its Subsidiaries on a consolidated basis in accordance with GAAP, subject to normal year-year end audit adjustments and the absence of footnotes; provided that the foregoing delivery requirement shall be satisfied if Parent shall have filed with the SEC its Quarterly Report on Form 10-Q for such fiscal quarter, which is available to the public via XXXXX EXXXX or any similar successor system;
(c) within Within the time period under Section 5.01(a)) above, a certificate of a Responsible Officer of the Borrower Parent certifying that, to the knowledge of such Responsible Officer, no Event of Default has occurred and is continuing, or, if, to the knowledge of such Responsible Officer, such an Event of Default has occurred and is continuing, specifying the nature and extent thereof and any corrective action taken or proposed to be taken with respect thereto;
(d) within Within the time period under (a) and (b) of this Section 5.01, an Officer’s Certificate a certificate of a Responsible Officer demonstrating in reasonable detail compliance with Section 6.08 as of the end of the preceding fiscal quarter;
(e) promptly A Collateral Coverage Ratio Certificate, as and when required under Sections 6.04(ii)(C), 6.09(a), or 6.09(c).
(f) Promptly after the occurrence thereof, written notice of the termination of a Plan of the Borrower or an ERISA Affiliate pursuant to Section 4042 of ERISA, ERISA to the extent such termination would constitute an Event of Default;
(g) So long as any Commitment, Loan or Letter of Credit is outstanding, promptly after the Chief Financial Officer or the Treasurer of the Parent becoming aware of the occurrence of a Default under or an Event of Default that is continuing, an Officer’s Certificate specifying such Default or Event of Default and what action the Parent and its Subsidiaries are taking or propose to take with respect thereto; and
(h) Promptly, from time to time, such other information regarding the Collateral and the operations, business affairs and financial condition of the Borrower or any Guarantor, in each case as the Administrative Agent or the Collateral Trustee, each at the request of any Lender, may reasonably request (it being understood that, so long as no Event of Default shall have occurred and be continuing, the Borrower shall not be obligated to provide utilization reports with respect to Pledged Slots or Pledged Routes). Subject to the next succeeding sentence, information delivered pursuant to this Section 7.01(j5.01 to the Administrative Agent may be made available by the Administrative Agent to the Lenders by posting such information on the Intralinks website on the Internet at hxxx://xxx.xxxxxxxxxx.xxx. Information required to be delivered pursuant to this Section 5.01 by the Borrower shall be delivered pursuant to Section 10.01 hereto. Information required to be delivered pursuant to this Section 5.01 (to the extent not made available as set forth above) shall be deemed to have been delivered to the Administrative Agent on the date on which the Borrower provides written notice to the Administrative Agent that such information has been posted on the Borrower’s general commercial website on the Internet (to the extent such information has been posted or is available as described in such notice);, as such website may be specified by the Borrower to the Administrative Agent from time to time. Information required to be delivered pursuant to this Section 5.01 shall be in a format which is suitable for transmission. Any notice or other communication delivered pursuant to this Section 5.01, or otherwise pursuant to this Agreement, shall be deemed to contain material non-public information unless (i) expressly marked by the Borrower or a Guarantor as “PUBLIC”, (ii) such notice or communication consists of copies of the Borrower’s public filings with the SEC or (iii) such notice or communication has been posted on the Borrower’s general commercial website on the Internet, as such website may be specified by the Borrower to the Administrative Agent from time to time.
Appears in 2 contracts
Samples: Revolving Credit and Guaranty Agreement (United Airlines, Inc.), Revolving Credit and Guaranty Agreement (United Airlines, Inc.)
Financial Statements, Reports, etc. The Borrower shall deliver Furnish to the Administrative Agent on behalf of the LendersAgents and each Lender:
(a) within ninety (90) 95 days after the end of each fiscal year, Parent’s its annual report on Form 10-K as filed with the SEC, including its consolidated balance sheet and the related consolidated earnings statement of income and cash flows, showing the its consolidated financial condition of Parent and its Subsidiaries on a consolidated basis as of the close of such fiscal year and the consolidated results of their respective its operations during such year, such consolidated financial statements of Parent to be all audited for Parent by Deloitte & Touche LLP or other independent certified public accountants of recognized national standing and to be accompanied selected by an opinion of such accountants (which opinion shall be unqualified as to 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 Parent and its Subsidiaries on a consolidated basis in accordance with GAAP; provided that the foregoing delivery requirement shall be satisfied if Parent shall have filed with the SEC its Annual Report on Form 10-K for such fiscal year, which is available to the public via XXXXX or any similar successor systemCompany;
(b) within forty-five (45) 50 days after the end of each of the first three fiscal quarters of each fiscal year, Parent’s its quarterly report on Form 10-Q as filed with the SEC, including its unaudited consolidated balance sheets sheet and related statements of income and cash flowsconsolidated earnings statement, showing the its consolidated financial condition of Parent and its Subsidiaries on a consolidated basis as of the close of such fiscal quarter and the consolidated results of their its operations during such fiscal quarter and the then-then elapsed portion of the fiscal year, year (and each certified by delivery of such statements shall be deemed a Responsible Officer of Parent as representation that such statements fairly presenting in all material respects present the Company’s financial condition and results of operations of Parent and its Subsidiaries on a consolidated basis in accordance with GAAP, subject to normal year-end audit adjustments and the absence of footnotes); provided that the foregoing delivery requirement shall be satisfied if Parent shall have filed with the SEC its Quarterly Report on Form 10-Q for such fiscal quarter, which is available to the public via XXXXX or any similar successor system;and
(c) within the promptly, from time period under Section 5.01(a), a certificate of a Responsible Officer of the Borrower certifying that, to the knowledge of such Responsible Officer, no Event of Default has occurred and is continuing, or, if, to the knowledge of such Responsible Officertime, such an Event of Default has occurred and is continuing, specifying the nature and extent thereof and other information as any corrective action taken or proposed Lender shall reasonably request through CBNA. Information required to be taken with respect thereto;
(d) within the time period under delivered pursuant to clauses (a) and – (b) of this Section 5.015.3 shall be deemed to have been effectively delivered (including for purposes of Section 8.1(b)) on the date on which such information has been posted on the SEC website on the Internet at xxx.xxx.xxx/xxxxx/xxxxxxxx.xxx (or any successor website), an Officeron the Company’s Certificate demonstrating IntraLinks site at intralinks.comwebsite or at another relevant website accessible by the Lenders without charge. Information required to be delivered pursuant to clause (c) of this Section 5.3 shall be deemed to have been effectively delivered (including for the purposes of Section 8.1(b)) on the date on which the Company provides notice to CBNA (which notice CBNA shall promptly provide to the requesting Lenders) that such information has been provided in reasonable detail compliance accordance with Section 6.08 as of the end of the preceding fiscal quarter;
sentence or on the date on which the Company actually delivers such information to CBNA (e) and CBNA will promptly after the occurrence thereof, written notice of the termination of a Plan of the Borrower or an ERISA Affiliate pursuant to Section 4042 of ERISA, deliver such information to the extent such termination would constitute an Event of Default under Section 7.01(jrequesting Lenders);.
Appears in 2 contracts
Samples: Five Year Competitive Advance and Revolving Credit Facility Agreement (Bristol Myers Squibb Co), Five Year Competitive Advance and Revolving Credit Facility Agreement (Bristol Myers Squibb Co)
Financial Statements, Reports, etc. The Borrower shall deliver Furnish to the Administrative Agent on behalf of the LendersAgents and each Lender:
(a) within ninety (90) 95 days after the end of each fiscal year, Parent’s its annual report on Form 10-K as filed with the SEC, including its consolidated balance sheet and the related consolidated earnings statement of income and cash flows, showing the its consolidated financial condition of Parent and its Subsidiaries on a consolidated basis as of the close of such fiscal year and the consolidated results of their respective its operations during such year, such consolidated financial statements of Parent to be all audited for Parent by Deloitte & Touche LLP or other independent certified public accountants of recognized national standing and to be accompanied selected by an opinion of such accountants (which opinion shall be unqualified as to 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 Parent and its Subsidiaries on a consolidated basis in accordance with GAAP; provided that the foregoing delivery requirement shall be satisfied if Parent shall have filed with the SEC its Annual Report on Form 10-K for such fiscal year, which is available to the public via XXXXX or any similar successor systemCompany;
(b) within forty-five (45) 50 days after the end of each of the first three fiscal quarters of each fiscal year, Parent’s its quarterly report on Form 10-Q as filed with the SEC, including its unaudited consolidated balance sheets sheet and related statements of income and cash flowsconsolidated earnings statement, showing the its consolidated financial condition of Parent and its Subsidiaries on a consolidated basis as of the close of such fiscal quarter and the consolidated results of their its operations during such fiscal quarter and the then-then elapsed portion of the fiscal year, year (and each certified by delivery of such statements shall be deemed a Responsible Officer of Parent as representation that such statements fairly presenting in all material respects present the Company’s financial condition and results of operations of Parent and its Subsidiaries on a consolidated basis in accordance with GAAP, subject to normal year-end audit adjustments and the absence of footnotes); provided that the foregoing delivery requirement shall be satisfied if Parent shall have filed with the SEC its Quarterly Report on Form 10-Q for such fiscal quarter, which is available to the public via XXXXX or any similar successor system;and
(c) within the promptly, from time period under Section 5.01(a), a certificate of a Responsible Officer of the Borrower certifying that, to the knowledge of such Responsible Officer, no Event of Default has occurred and is continuing, or, if, to the knowledge of such Responsible Officertime, such an Event of Default has occurred and is continuing, specifying the nature and extent thereof and other information as any corrective action taken or proposed Lender shall reasonably request through CBNA. Information required to be taken with respect thereto;
(d) within the time period under delivered pursuant to clauses (a) and – (b) of this Section 5.015.3 shall be deemed to have been effectively delivered (including for purposes of Section 8.1(b)) on the date on which such information has been posted on the SEC website on the Internet at xxx.xxx/xxxxx/xxxxxxxx.xxx (or any successor website), an Officeron the Company’s Certificate demonstrating IntraLinks site at xxxxxxxxxx.xxx or at another relevant website accessible by the Lenders without charge. Information required to be delivered pursuant to clause (c) of this Section 5.3 shall be deemed to have been effectively delivered (including for the purposes of Section 8.1(b)) on the date on which the Company provides notice to CBNA (which notice CBNA shall promptly provide to the requesting Lenders) that such information has been provided in reasonable detail compliance accordance with Section 6.08 as of the end of the preceding fiscal quarter;
sentence or on the date on which the Company actually delivers such information to CBNA (e) and CBNA will promptly after the occurrence thereof, written notice of the termination of a Plan of the Borrower or an ERISA Affiliate pursuant to Section 4042 of ERISA, deliver such information to the extent such termination would constitute an Event of Default under Section 7.01(jrequesting Lenders);.
Appears in 2 contracts
Samples: Five Year Competitive Advance and Revolving Credit Facility Agreement (Bristol Myers Squibb Co), Five Year Competitive Advance and Revolving Credit Facility Agreement (Bristol Myers Squibb Co)
Financial Statements, Reports, etc. The Borrower shall deliver Furnish to the Administrative Agent on behalf of the LendersAgents and each Lender:
(a) within ninety (90) 95 days after the end of each fiscal year, Parent’s its annual report on Form 10‑K as filed with the SEC, including its consolidated balance sheet and the related consolidated earnings statement of income and cash flows, showing the its consolidated financial condition of Parent and its Subsidiaries on a consolidated basis as of the close of such fiscal year and the consolidated results of their respective its operations during such year, such consolidated financial statements of Parent to be all audited for Parent by Deloitte & Touche LLP or other independent certified public accountants of recognized national standing and to be accompanied selected by an opinion of such accountants (which opinion shall be unqualified as to 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 Parent and its Subsidiaries on a consolidated basis in accordance with GAAP; provided that the foregoing delivery requirement shall be satisfied if Parent shall have filed with the SEC its Annual Report on Form 10-K for such fiscal year, which is available to the public via XXXXX or any similar successor systemCompany;
(b) within forty-five (45) 50 days after the end of each of the first three fiscal quarters of each fiscal year, Parent’s its quarterly report on Form 10‑Q as filed with the SEC, including its unaudited consolidated balance sheets sheet and related statements of income and cash flowsconsolidated earnings statement, showing the its consolidated financial condition of Parent and its Subsidiaries on a consolidated basis as of the close of such fiscal quarter and the consolidated results of their its operations during such fiscal quarter and the then-then elapsed portion of the fiscal year, year (and each certified by delivery of such statements shall be deemed a Responsible Officer of Parent as representation that such statements fairly presenting in all material respects present the Company’s financial condition and results of operations of Parent and its Subsidiaries on a consolidated basis in accordance with GAAP, subject to normal year-end audit adjustments and the absence of footnotes); provided that the foregoing delivery requirement shall be satisfied if Parent shall have filed with the SEC its Quarterly Report on Form 10-Q for such fiscal quarter, which is available to the public via XXXXX or any similar successor system;and
(c) within the promptly, from time period under Section 5.01(a), a certificate of a Responsible Officer of the Borrower certifying that, to the knowledge of such Responsible Officer, no Event of Default has occurred and is continuing, or, if, to the knowledge of such Responsible Officertime, such an Event of Default has occurred and is continuing, specifying the nature and extent thereof and other information as any corrective action taken or proposed Lender shall reasonably request through CBNA. Information required to be taken with respect thereto;
(d) within the time period under delivered pursuant to clauses (a) and – (b) of this Section 5.015.3 shall be deemed to have been effectively delivered (including for purposes of Section 8.1(b)) on the date on which such information has been posted on the SEC website on the Internet at xxx.xxx/xxxxx/xxxxxxxx.xxx (or any successor website), an Officeron the Company’s Certificate demonstrating IntraLinks site at xxxxxxxxxx.xxx or at another relevant website accessible by the Lenders without charge. Information required to be delivered pursuant to clause (c) of this Section 5.3 shall be deemed to have been effectively delivered (including for the purposes of Section 8.1(b)) on the date on which the Company provides notice to CBNA (which notice CBNA shall promptly provide to the requesting Lenders) that such information has been provided in reasonable detail compliance accordance with Section 6.08 as of the end of the preceding fiscal quarter;
sentence or on the date on which the Company actually delivers such information to CBNA (e) and CBNA will promptly after the occurrence thereof, written notice of the termination of a Plan of the Borrower or an ERISA Affiliate pursuant to Section 4042 of ERISA, deliver such information to the extent such termination would constitute an Event of Default under Section 7.01(jrequesting Lenders);.
Appears in 2 contracts
Samples: Five Year Competitive Advance and Revolving Credit Facility Agreement (Bristol Myers Squibb Co), Five Year Competitive Advance and Revolving Credit Facility Agreement (Bristol Myers Squibb Co)
Financial Statements, Reports, etc. The Borrower shall deliver In the case of the Borrower, furnish to the Administrative Agent on behalf (except, in the case of the Lendersfinancial 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 pursuant to paragraph (d) below) with sufficient copies for each Lender:
(a) within ninety (90) 120 days after the end of each fiscal year, Parent’s (i) its consolidated balance sheet and related statement statements of income and changes in financial position (or of cash flowsflow, as appropriate), showing the financial condition of Parent the Borrower and its consolidated Subsidiaries on a consolidated basis as of the close of such fiscal year and the results of their respective its operations and the operations of such Subsidiaries during such year, such consolidated financial statements of Parent to be all audited for Parent by Deloitte & Touche LLP or other independent public accountants of recognized national standing acceptable to the Administrative Agent and to be accompanied by an opinion of such accountants (which opinion shall not be unqualified as to scope of such auditqualified 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 Parent and its Subsidiaries the Borrower on a consolidated basis in accordance with GAAP; provided that 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 foregoing delivery requirement shall be satisfied if Parent shall have filed with case may be) for KGE as of the SEC its Annual Report on Form 10-K for end of such fiscal year, which is available 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 Deloitte & Touche LLP or other independent public accountants of recognized national standing acceptable to the public via XXXXX or Administrative Agent and accompanied by an opinion of such accountants (which shall not be qualified in any similar successor systemmaterial 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 forty-five (45) 90 days after the end of each of the first three fiscal quarters of each fiscal year, Parent’s (i) its consolidated balance sheets sheet and related statements of income and cash flowschanges in financial position, showing the financial condition of Parent the Borrower and its consolidated Subsidiaries on a as of the close of such fiscal quarter and the results of its operations and the operations of such Subsidiaries during such fiscal quarter and the then elapsed portion of the fiscal year, all certified by one of its Financial Officers as fairly presenting the financial condition and results of operations of the Borrower and its consolidated basis Subsidiaries in accordance with 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-then elapsed portion of the fiscal year, each all certified by a Responsible Officer one of Parent its Financial Officers as fairly presenting in all material respects the financial condition and results of operations of Parent KGE and its consolidated Subsidiaries on a consolidated basis in accordance with GAAPgenerally accepted accounting principles consistently applied, subject to normal year-end audit adjustments and the absence of footnotes; provided that the foregoing delivery requirement shall be satisfied if Parent shall have filed with the SEC its Quarterly Report on Form 10-Q for such fiscal quarter, which is available to the public via XXXXX or any similar successor systemadjustments;
(c) within the time period concurrently with any delivery of financial statements under Section 5.01(a)(a) or (b) above, a certificate of a Responsible Financial Officer of the Borrower who shall, if applicable, be the Financial Officer opining on or certifying that, to the knowledge of such Responsible Officer, statements (i) certifying that no Event of Default or Default has occurred and is continuing, or, if, to the knowledge of such Responsible Officer, if such an Event of Default or Default has occurred and is continuingoccurred, specifying the nature and extent thereof and any corrective action taken or proposed to be taken with respect theretothereto and (ii) setting forth computations in reasonable detail satisfactory to the Administrative Agent demonstrating compliance with the covenants contained in Section 6.1;
(d) within promptly after the time period under (a) same become publicly available, copies of all regular and (b) periodic reports filed by it or by KGE with the SEC or any Governmental Authority succeeding to any of this Section 5.01, an Officer’s Certificate demonstrating in reasonable detail compliance with Section 6.08 as or all the functions of the end of the preceding fiscal quarter;said Commission; and
(e) promptly after from time to time, such other information regarding the occurrence thereofoperations, written notice of the termination of a Plan business affairs and financial condition of the Borrower or an ERISA Affiliate any Significant Subsidiary or compliance with the terms of any Loan Document, as the Administrative Agent or any Lender may reasonably request. Any financial statement required to be furnished pursuant to Section 4042 5.1(a) or 5.1(b) shall be deemed to have been furnished on the date on which the Lenders receive notice that the Borrower has posted such financial statement on the Intralinks website on the Internet at xxx.xxxxxxxxxx.xxx; provided that the Borrower shall give notice of ERISA, any such posting to the extent Administrative Agent (who shall then give notice of any such termination would constitute an Event posting to the Lenders). Notwithstanding the foregoing, the Borrower shall deliver paper copies of Default under any financial statement referred to in Section 7.01(j);5.1(a) or 5.1(b) to the Administrative Agent if the Administrative Agent requests the Borrower to furnish such paper copies until written notice to cease delivering such paper copies is given by the Administrative Agent.
Appears in 2 contracts
Samples: Credit Agreement (Westar Energy Inc /Ks), Credit Agreement (Westar Energy Inc /Ks)
Financial Statements, Reports, etc. The Borrower shall deliver Furnish to the Administrative Agent on behalf of the LendersAgent, who shall furnish to each Lender:
(a) within ninety (90) 90 days after the end of each fiscal yearFiscal Year (or such longer period as may be permitted by the SEC if the Parent Borrower were then subject to the SEC reporting requirements as a non-accelerated flier), Parent’s (i) a consolidated balance sheet and related statement statements of income and comprehensive income, changes in shareholders’ equity and cash flows, flows showing the financial condition position of the Parent Borrower and its Subsidiaries on a consolidated basis subsidiaries as of the close of such fiscal Fiscal Year and their consolidated financial performance and cash flows for such year and setting forth in comparative form the results of their respective operations during corresponding figures for the prior Fiscal Year and (ii) a Narrative Report for such yearFiscal Year, such which consolidated financial balance sheet and related statements of Parent to income and comprehensive income, changes in shareholders’ equity and cash flows shall be audited for Parent by independent public chartered professional accountants of recognized national standing and to be accompanied by an opinion of such accountants (which opinion shall not be unqualified qualified as to scope of audit or as to the status of the Parent Borrower or any Material Subsidiary as a “going concern” (provided that such report may contain a “going concern” or like qualification or exception, or qualification arising out of the scope of the audit, if such qualification or exception is related solely to (i) an upcoming maturity date of any Indebtedness incurred in compliance with Section 6.1, (ii) any potential inability to satisfy any financial maintenance covenant included in any Indebtedness of the Parent Borrower or its subsidiaries on a future date in a future period or (iii) the activities, operations, financial results, assets or liabilities of any Unrestricted Subsidiary)) to the effect that such consolidated financial statements fairly present fairly, in all material respects respects, the financial condition position and results financial performance and cash flows of operations of the Parent Borrower and its Subsidiaries subsidiaries on a consolidated basis in accordance with GAAP; provided GAAP (it being understood that the foregoing delivery requirement shall be satisfied if or furnishing by the Parent shall have filed with the SEC its Borrower or any Parent Holding Company of an Annual Report on Form 10-K for such fiscal year, which is available to shall satisfy the public via XXXXX or any similar successor systemrequirements of this Section 5.4(a));
(b) within forty-five (45) 45 days after the end of each of the first three fiscal quarters Fiscal Quarters of each fiscal yearFiscal Year (or such longer period as may be permitted by the SEC if the Parent Borrower were then subject to the SEC reporting requirements as a non-accelerated flier), Parent’s commencing with the Fiscal Quarter ending December 31, 2020, (i) a consolidated balance sheets sheet and related statements of income comprehensive income, changes in shareholders’ equity and cash flows, flows showing the financial condition position of the Parent Borrower and its Subsidiaries on a consolidated basis subsidiaries as of the close of such fiscal quarter Fiscal Quarter and the results of their operations during consolidated financial performance and cash flows for such fiscal quarter Fiscal Quarter and the then-elapsed portion of the fiscal yearFiscal Year and setting forth in comparative form the corresponding figures for the corresponding periods of the prior Fiscal Year and (ii) a Narrative Report for such Fiscal Quarter, each all of which shall be in reasonable detail and which consolidated balance sheet and related statements of income and comprehensive income, changes in shareholders’ equity and cash flows shall be certified by a Responsible Financial Officer of Parent the Borrower Representative on behalf of the Borrower Representative as fairly presenting presenting, in all material respects respects, the financial condition performance and results cash flows of operations of the Parent Borrower and its Subsidiaries subsidiaries on a consolidated basis in accordance with GAAP, GAAP (subject to normal year-end audit adjustments and the absence of footnotes; provided ) (it being understood that the foregoing delivery requirement shall be satisfied if or furnishing by the Parent shall have filed with the SEC its Borrower or any Parent Holding Company of a Quarterly Report on Form 10-Q for such fiscal quarter, which is available to shall satisfy the public via XXXXX or any similar successor systemrequirements of this Section 5.4(b));
(c) within the time period five Business Days of any delivery of financial statements under paragraph (a) or (b) of this Section 5.01(a)5.4, a certificate Compliance Certificate of a Responsible Financial Officer of the Borrower Representative (i) certifying thatthat no Event of Default or Default has occurred that is then continuing, except as set forth therein and (ii) setting forth the calculation of the Fixed Charge Coverage Ratio (calculated on a Pro Forma Basis) for the twelve-month period ending at the end of such fiscal period;
(d) within 90 days after the beginning of each Fiscal Year, a consolidated annual budget for such Fiscal Year, including a description of underlying assumptions with respect thereto, which budget shall in each case be accompanied by the statement of a Financial Officer of the Borrower Representative to the knowledge effect that such budget is based on assumptions believed by such Financial Officer to be reasonable as of the date of delivery thereof;
(e) promptly, from time to time, such Responsible Officerother customary information (which is readily available) regarding the operations, no business affairs and financial condition of the Credit Parties and their Restricted Subsidiaries and their compliance with the terms of any Credit Document, in each case, as the Administrative Agent may reasonably request (for itself or on behalf of any Lender);
(f) promptly upon becoming aware of the occurrence of any ERISA Event, a written notice specifying the nature thereof, what action the Parent Borrower, any of its subsidiaries or any of their respective ERISA Affiliates has taken, is taking or proposes to take with respect thereto and, when known, any action taken or threatened in writing by the Internal Revenue Service, the Department of Labor or the PBGC;
(g) not later than 5:00 P.M. on the 20th Business Day of each month (or (i) more frequently as the Borrower Representative may elect, so long as the same frequency of delivery is maintained by the Borrower Representative for the immediately following 30 day period, or (ii) not later than 5:00 P.M. on or before Wednesday of each week if at any time (1) an Enhanced Reporting Event has occurred or (2) a Specified Event of Default has occurred and is continuing, or, if, to continuing ending on the knowledge of first date thereafter on which such Responsible Officer, Enhanced Reporting Event is no longer continuing or such an Specified Event of Default has occurred and is no longer continuing), specifying a borrowing base certificate setting forth the nature and extent thereof and any corrective action taken Borrowing Base (with supporting calculations) substantially in the form of Exhibit K hereto (each, a “Borrowing Base Certificate”), which shall be prepared as of the last Business Day of the preceding month (or proposed (x) such other applicable date to be taken agreed by the Borrower Representative and the Administrative Agent in the case of clause (i) above or (y) the previous Friday in the case of clause (ii) above) in the case of each subsequent Borrowing Base Certificate. Each such Borrowing Base Certificate shall include such supporting information as may be reasonably requested from time to time by the Administrative Agent. The Borrower Representative and the Administrative Agent hereby agree that the delivery of the Borrowing Base Certificate through the Administrative Agent’s electronic platform or portal, subject to the Administrative Agent’s authentication process, by such other electronic method as may be approved by the Administrative Agent from time to time in its Permitted Discretion, or by such other electronic input of information necessary to calculate the Borrowing Base as may be approved by the Administrative Agent from time to time in its Permitted Discretion, shall in each case be deemed to satisfy the obligation of the Borrower Representative to deliver such Borrowing Base Certificate, with respect theretothe same legal effect as if such Borrowing Base Certificate had been manually executed by the Borrower Representative and delivered to the Administrative Agent;
(dh) concurrently with the delivery of each Borrowing Base Certificate, the following information:
(i) a detailed aging, by total, of the Credit Parties’ Accounts, together with a reconciliation and supporting documentation for any reconciling items noted; and
(ii) a detailed calculation of those Accounts that are not eligible for the Borrowing Base;
(i) monthly (not later than the 30th day of each month), a reconciliation of Accounts of the Parent Borrower’s general ledger to its monthly financial statements, including any book reserves related to each category;
(j) within the time period under (a) and (b) of this Section 5.01, an Officer’s Certificate demonstrating in reasonable detail compliance with Section 6.08 as of 45 days after the end of each Fiscal Quarter, commencing with the preceding fiscal quarterFiscal Quarter ending December 31, 2020, (i) a quarterly Account roll-forward, in a format acceptable to the Administrative Agent in its discretion, tied to the beginning and ending account receivable balances of the Parent Borrower’s general ledger, (ii) a detailed report regarding each Credit Party’s and its subsidiaries’ cash and Cash Equivalents, (iii) a summary aging, by vendor, of each Credit Party’s accounts payable and any book overdraft and an aging, by vendor, of any held checks, and (iv) a reconciliation of accounts payable of the Parent Borrower’s general ledger to its quarterly financial statements;
(ek) promptly promptly, but in any event within five Business Days after any Credit Party receives notice that a customer intends to terminate any Material Contract, a copy of such Material Contract then in effect, a detailed description of such proposed termination and a description of the occurrence thereofCredit Parties’ intended response;
(l) promptly, written but in any event within 2 days after any Credit Party acquires any Margin Stock, notice of the termination of such acquisition, together with a Plan description of the Margin Stock and a Form U-1 (with sufficient additional originals thereof for each Lender) duly executed and delivered by the Borrower Representative, together with such other documentation as Agent shall reasonably request, in order to enable Agent and the Lenders to comply with any of the requirements under Regulations T, U or X of the Federal Reserve Board; and
(m) upon request by the Administrative Agent, (i) copies of invoices together with corresponding shipping and delivery documents, and credit memos together with corresponding supporting documentation, with respect to invoices and credit memos in excess of an ERISA Affiliate pursuant amount determined in the sole discretion of the Administrative Agent, from time to Section 4042 of ERISAtime, (ii) any change in the information provided in the Beneficial Ownership Certification that would result in a change to the extent list of beneficial owners identified in parts (c) or (d) of such termination would constitute an Event certification, and (iii) such other reports as to the Collateral of Default under Section 7.01(j);any Credit Party and its subsidiaries, as Agent may reasonably request
Appears in 2 contracts
Samples: Credit and Guaranty Agreement and Pledge and Security Agreement (Lannett Co Inc), Credit and Guaranty Agreement (Lannett Co Inc)
Financial Statements, Reports, etc. The Borrower shall deliver furnish to the Administrative Agent on behalf of the Lendersand each Lender:
(a) within ninety (90) 105 days after the end of each fiscal yearyear of the Borrower, Parent’s consolidated and consolidating balance sheet sheets and related statement statements of income and statements of cash flowsflow, showing the financial condition of Parent the Borrower and its consolidated Subsidiaries on a consolidated basis as of the close of such fiscal year and the results of their respective operations during such year, such consolidated financial statements of Parent to be all audited for Parent by Deloitte & Touche LLP or other independent public accountants of recognized national standing acceptable to the Required Lenders and to be accompanied by an opinion of such accountants (which opinion shall not be unqualified as to scope of such auditqualified 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 Parent and its Subsidiaries the Borrower on a consolidated basis (except as noted therein) in accordance with GAAPGAAP consistently applied; provided provided, however, that the foregoing delivery requirement Borrower shall be deemed to have satisfied the requirement to furnish such financial statements and opinion if Parent shall have and to the extent that the Borrower has, within the period specified above, (i) filed documents meeting the requirements set forth above with the SEC its Annual Report on Form 10-K for such fiscal yearSecurities and Exchange Commission, which is available to the public via XXXXX or any similar successor systemGovernmental Authority succeeding to any or all of the functions of said Commission, and (ii) posted such documents on the Borrower’s home page on the worldwide web (at the date of this Agreement, located at http//xxx.xxxxxxxxxx.xxx) (such filing and posting being referred to as “Electronic Delivery”);
(b) within forty-five (45) 50 days after the end of each of the first three fiscal quarters of each fiscal yearyear of the Borrower, Parent’s consolidated and, to the extent otherwise available, consolidating balance sheets and related statements of income and statements of cash flowsflow, showing the financial condition of Parent the Borrower and its consolidated Subsidiaries on a consolidated basis as of the close of such fiscal quarter and the results of their operations during such fiscal quarter and the then-then elapsed portion of the fiscal year, each all certified by a Responsible Financial Officer of Parent the Borrower as fairly presenting in all material respects the financial condition and results of operations of Parent and its Subsidiaries the Borrower on a consolidated basis in accordance with GAAPGAAP consistently applied, subject to normal year-end audit adjustments and the absence of footnotesadjustments; provided provided, however, that the foregoing delivery requirement Borrower shall be deemed to have satisfied the requirement to furnish such financial statements and certification if Parent shall have filed with the SEC its Quarterly Report on Form 10-Q for such fiscal quarter, which is available and to the public via XXXXX or any similar successor systemextent that the Borrower has, within the period specified above, made Electronic Delivery thereof;
(c) within the time period concurrently with any delivery of financial statements under Section 5.01(a)clause (a) or (b) above, (i) a certificate of the relevant accounting firm opining on or certifying such statements or of a Responsible Financial Officer of the Borrower (which certificate, when furnished by an accounting firm, may be limited to accounting matters and disclaim responsibility for legal interpretations) certifying that, to the knowledge of such Responsible the accounting firm or the Financial Officer, as the case may be, no Event of Default or Default has occurred and is continuing, or, if, to the knowledge of such Responsible Officer, such if an Event of Default or Default has occurred and is continuingoccurred, specifying the nature and extent thereof and any corrective action taken or proposed to be taken with respect thereto, and (ii) a certificate of a Financial Officer of the Borrower setting forth in reasonable detail such calculations as are required to establish whether the Borrower was in compliance with Section 6.05 on the date of such financial statements;
(d) promptly after the same become publicly available, copies of all periodic and other reports, proxy statements and other materials filed by it with the Securities and Exchange Commission, or any Governmental Authority succeeding to any of or all the functions of said Commission, or with any national securities exchange, or distributed to its shareholders, as the case may be; provided, however, that the Borrower shall be deemed to have satisfied the requirement to furnish such reports, statements and other materials if and to the extent that the Borrower has, within the time period under (a) and (b) of this Section 5.01specified above, an Officer’s Certificate demonstrating in reasonable detail compliance with Section 6.08 as of the end of the preceding fiscal quarter;made Electronic Delivery thereof; and
(e) promptly after promptly, from time to time, (i) such other information regarding the occurrence thereofoperations, written notice of the termination of a Plan business affairs and financial condition of the Borrower or an ERISA Affiliate pursuant to Section 4042 any Significant Subsidiary, or compliance with the terms of ERISAany Loan Document, to as the extent such termination would constitute an Event Administrative Agent or any Lender may reasonably request, and (ii) information and documentation reasonably requested by the Administrative Agent or any Lender for purposes of Default compliance with (A) applicable “know your customer” requirements under Section 7.01(j);the PATRIOT Act or other applicable anti-money laundering laws or (B) the Beneficial Ownership Regulation.
Appears in 2 contracts
Samples: Term Loan Credit Agreement (Avista Corp), Credit Agreement (Avista Corp)
Financial Statements, Reports, etc. The Borrower shall deliver In the case of the Borrower, furnish to the Administrative Agent on behalf (except, in the case of the Lendersfinancial 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 pursuant to paragraph (d) below) with sufficient copies for each Lender:
(a) within ninety (90) 120 days after the end of each fiscal year, Parent’s (i) its consolidated balance sheet and related statement statements of income and changes in financial position (or of cash flowsflow, as appropriate), showing the financial condition of Parent the Borrower and its consolidated Subsidiaries on a consolidated basis as of the close of such fiscal year and the results of their respective its operations and the operations of such Subsidiaries during such year, such consolidated financial statements of Parent to be all audited for Parent by Deloitte & Touche LLP or other independent public accountants of recognized national standing acceptable to the Administrative Agent and to be accompanied by an opinion of such accountants (which opinion shall not be unqualified as to scope of such auditqualified 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 Parent and its Subsidiaries the Borrower on a consolidated basis in accordance with GAAP; provided that 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 foregoing delivery requirement shall be satisfied if Parent shall have filed with case may be) for KGE as of the SEC its Annual Report on Form 10-K for end of such fiscal year, which is available 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 Deloitte & Touche LLP or other independent public accountants of recognized national standing acceptable to the public via XXXXX or Administrative Agent and accompanied by an opinion of such accountants (which shall not be qualified in any similar successor systemmaterial 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 forty-five (45) 90 days after the end of each of the first three fiscal quarters of each fiscal year, Parent’s (i) its consolidated balance sheets sheet and related statements of income and cash flowschanges in financial position, showing the financial condition of Parent the Borrower and its consolidated Subsidiaries on a as of the close of such fiscal quarter and the results of its operations and the operations of such Subsidiaries during such fiscal quarter and the then elapsed portion of the fiscal year, all certified by one of its Financial Officers as fairly presenting the financial condition and results of operations of the Borrower and its consolidated basis Subsidiaries in accordance with 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-then elapsed portion of the fiscal year, each all certified by a Responsible Officer one of Parent its Financial Officers as fairly presenting in all material respects the financial condition and results of operations of Parent KGE and its consolidated Subsidiaries on a consolidated basis in accordance with GAAPgenerally accepted accounting principles consistently applied, subject to normal year-end audit adjustments and the absence of footnotes; provided that the foregoing delivery requirement shall be satisfied if Parent shall have filed with the SEC its Quarterly Report on Form 10-Q for such fiscal quarter, which is available to the public via XXXXX or any similar successor systemadjustments;
(c) within the time period concurrently with any delivery of financial statements under Section 5.01(a)(a) or (b) above, a certificate of a Responsible Financial Officer of the Borrower who shall, if applicable, be the Financial Officer opining on or certifying that, to the knowledge of such Responsible Officer, statements (i) certifying that no Event of Default or Default has occurred and is continuing, or, if, to the knowledge of such Responsible Officer, if such an Event of Default or Default has occurred and is continuingoccurred, specifying the nature and extent thereof and any corrective action taken or proposed to be taken with respect theretothereto and (ii) setting forth computations in reasonable detail satisfactory to the Administrative Agent demonstrating compliance with the covenants contained in Section 6.1;
(d) within promptly after the time period under (a) and (b) same become publicly available, copies of this Section 5.01all reports on Forms 10-K, an Officer’s Certificate demonstrating in reasonable detail compliance 10-Q or 8-K filed by it or by KGE with Section 6.08 as of the end of the preceding fiscal quarter;SEC; and
(e) promptly after from time to time, such other information regarding the occurrence thereofoperations, written notice of the termination of a Plan business affairs and financial condition of the Borrower or an ERISA Affiliate any Significant Subsidiary or compliance with the terms of any Loan Document, as the Administrative Agent or any Lender may reasonably request. Any financial statement or report required to be furnished pursuant to Section 4042 of ERISA5.1(a), 5.1(b) or 5.1(d) shall be deemed to have been furnished on the date on which (A) the Borrower or KGE, as applicable, gives notice to the extent Administrative Agent (who shall then give notice to the Lenders) that it has filed a form, report or other document with the SEC that contains such termination would constitute an Event financial statement or report required hereunder or (B) the Lenders receive notice that the Administrative Agent has posted such financial statement or report on the Intralinks website on the Internet at xxx.xxxxxxxxxx.xxx. Notwithstanding the foregoing, the Borrower shall deliver paper copies of Default under any financial statement referred to in Section 7.01(j);5.1(a) or 5.1(b) to the Administrative Agent if the Administrative Agent requests the Borrower to furnish such paper copies until written notice to cease delivering such paper copies is given by the Administrative Agent.
Appears in 2 contracts
Samples: Credit Agreement (Westar Energy Inc /Ks), Credit Agreement (Westar Energy Inc /Ks)
Financial Statements, Reports, etc. The Borrower shall deliver to the Administrative Agent on behalf of the Lenders:
(a) within Within ninety (90) days after the end of each fiscal year, Parent’s consolidated balance sheet and related statement of income and cash flows, showing the financial condition of Parent and its Subsidiaries on a consolidated basis as of the close of such fiscal year and the results of their respective operations during such year, such the consolidated financial statements statement of Parent to be audited for Parent by independent public accountants of recognized national standing and to be accompanied by an opinion of such accountants (which opinion shall be unqualified without any qualification or exception as to the scope of such audit) to the effect that such consolidated financial statements fairly present in all material respects the financial condition and results of operations of Parent and its Subsidiaries on a consolidated basis in accordance with GAAP; provided that the foregoing delivery requirement shall be satisfied if Parent shall have filed with the SEC its Annual Report on Form 10-K for such fiscal year, which is available to the public via XXXXX EXXXX or any similar successor system;
(b) within Within forty-five (45) days after the end of each of the first three fiscal quarters of each fiscal year, Parent’s consolidated balance sheets and related statements of income and cash flows, showing the financial condition of Parent and its Subsidiaries on a consolidated basis as of the close of such fiscal quarter and the results of their operations during such fiscal quarter and the then-then elapsed portion of the fiscal year, each certified by a Responsible Officer of the Parent as fairly presenting in all material respects the financial condition and results of operations of Parent and its Subsidiaries on a consolidated basis in accordance with GAAP, subject to normal year-year end audit adjustments and the absence of footnotes; provided that the foregoing delivery requirement shall be satisfied if Parent shall have filed with the SEC its Quarterly Report on Form 10-Q for such fiscal quarter, which is available to the public via XXXXX EXXXX or any similar successor system;
(c) within Within the time period under Section 5.01(a)) above, a certificate of a Responsible Officer of the Borrower Parent certifying that, to the knowledge of such Responsible Officer, no Event of Default has occurred and is continuing, or, if, to the knowledge of such Responsible Officer, such an Event of Default has occurred and is continuing, specifying the nature and extent thereof and any corrective action taken or proposed to be taken with respect thereto;
(d) within Within the time period under (a) and (b) of this Section 5.01, an Officer’s Certificate a certificate of a Responsible Officer demonstrating in reasonable detail compliance with Section 6.08 as of the end of the preceding fiscal quarter;
(e) promptly A Collateral Coverage Ratio Certificate, as and when required under Sections 6.04(ii)(C), 6.09(a), or 6.09(c).
(f) Promptly after the occurrence thereof, written notice of the termination of a Plan of the Borrower or an ERISA Affiliate pursuant to Section 4042 of ERISA, ERISA to the extent such termination would constitute an Event of Default;
(g) So long as any Commitment or Loan is outstanding, promptly after the Chief Financial Officer or the Treasurer of the Parent becoming aware of the occurrence of a Default under or an Event of Default that is continuing, an Officer’s Certificate specifying such Default or Event of Default and what action the Parent and its Subsidiaries are taking or propose to take with respect thereto; and
(h) Promptly, from time to time, such other information regarding the Collateral and the operations, business affairs and financial condition of the Borrower or any Guarantor, in each case as the Administrative Agent or the Collateral Trustee, each at the request of any Lender, may reasonably request (it being understood that, so long as no Event of Default shall have occurred and be continuing, the Borrower shall not be obligated to provide utilization reports with respect to Pledged Slots or Pledged Routes). Subject to the next succeeding sentence, information delivered pursuant to this Section 7.01(j5.01 to the Administrative Agent may be made available by the Administrative Agent to the Lenders by posting such information on the Intralinks website on the Internet at hxxx://xxx.xxxxxxxxxx.xxx. Information required to be delivered pursuant to this Section 5.01 by the Borrower shall be delivered pursuant to Section 10.01 hereto. Information required to be delivered pursuant to this Section 5.01 (to the extent not made available as set forth above) shall be deemed to have been delivered to the Administrative Agent on the date on which the Borrower provides written notice to the Administrative Agent that such information has been posted on the Borrower’s general commercial website on the Internet (to the extent such information has been posted or is available as described in such notice);, as such website may be specified by the Borrower to the Administrative Agent from time to time. Information required to be delivered pursuant to this Section 5.01 shall be in a format which is suitable for transmission. Any notice or other communication delivered pursuant to this Section 5.01, or otherwise pursuant to this Agreement, shall be deemed to contain material non-public information unless (i) expressly marked by the Borrower or a Guarantor as “PUBLIC”, (ii) such notice or communication consists of copies of the Borrower’s public filings with the SEC or (iii) such notice or communication has been posted on the Borrower’s general commercial website on the Internet, as such website may be specified by the Borrower to the Administrative Agent from time to time.
Appears in 2 contracts
Samples: Term Loan Credit and Guaranty Agreement (United Airlines, Inc.), Term Loan Credit and Guaranty Agreement (United Airlines, Inc.)
Financial Statements, Reports, etc. The Borrower shall deliver Furnish to the Administrative Agent on behalf of (which will furnish such information to the Lenders:):
(a) within ninety (90) 90 days after the end of each fiscal year, Parent’s a consolidated balance sheet and related statement consolidated statements of income operations, cash flows and cash flows, owners' equity showing the financial condition position of Parent Holdings and its the Subsidiaries on a consolidated basis as of the close of such fiscal year and the consolidated results of their respective operations during such year, such with all consolidated financial statements of Parent to be audited for Parent by independent public accountants of recognized national standing reasonably acceptable to the Administrative Agent and to be accompanied by an opinion of such accountants (which opinion shall not be unqualified as to scope of such auditqualified in any material respect) to the effect that such consolidated financial statements fairly present present, in all material respects respects, the financial condition position and results of operations of Parent Holdings and its the Subsidiaries on a consolidated basis in accordance with GAAP; provided GAAP (it being understood that the foregoing delivery requirement shall be satisfied if Parent shall have filed with the SEC its by Holdings of Annual Report Reports on Form 10-K for such fiscal year, which is available of Holdings and its consolidated Subsidiaries shall satisfy the requirements of this Section 5.04
(a) to the public via XXXXX or any similar successor systemextent such Annual Reports include the information specified herein);
(b) within forty-five 45 days (4575 days in the case of the fiscal quarter ending June 30, 2004) days after the end of each of the first three fiscal quarters of each fiscal yearyear commencing with the fiscal quarter ending June 30, Parent’s 2004, a consolidated balance sheets sheet and related consolidated statements of income operations and cash flows, flows showing the financial condition position of Parent Holdings and its the Subsidiaries on a consolidated basis as of the close of such fiscal quarter and the consolidated results of their operations during such fiscal quarter and the then-elapsed portion of the fiscal year, each all certified by a Responsible Financial Officer of Parent Holdings, on behalf of Holdings, as fairly presenting presenting, in all material respects respects, the financial condition position and results of operations of Parent Holdings and its the Subsidiaries on a consolidated basis in accordance with GAAP, GAAP (subject to normal year-end audit adjustments and the absence of footnotes; provided ) (it being understood that the foregoing delivery requirement shall be satisfied if Parent shall have filed with the SEC its by Holdings of Quarterly Report Reports on Form 10-Q for such fiscal quarter, which is available to of Holdings and its consolidated Subsidiaries shall satisfy the public via XXXXX or any similar successor system;
(c) within the time period under Section 5.01(a), a certificate of a Responsible Officer of the Borrower certifying that, to the knowledge of such Responsible Officer, no Event of Default has occurred and is continuing, or, if, to the knowledge of such Responsible Officer, such an Event of Default has occurred and is continuing, specifying the nature and extent thereof and any corrective action taken or proposed to be taken with respect thereto;
(d) within the time period under (a) and (b) requirements of this Section 5.01, an Officer’s Certificate demonstrating in reasonable detail compliance with Section 6.08 as of the end of the preceding fiscal quarter;
(e5.04(b) promptly after the occurrence thereof, written notice of the termination of a Plan of the Borrower or an ERISA Affiliate pursuant to Section 4042 of ERISA, to the extent such termination would constitute an Event of Default under Section 7.01(jQuarterly Reports include the information specified herein);
Appears in 2 contracts
Samples: Senior Subordinated Bridge C Loan Agreement (Celanese Ag), Senior Subordinated Bridge B Loan Agreement (Celanese Ag)
Financial Statements, Reports, etc. The Borrower shall deliver Furnish to the Administrative Agent on behalf of (which will furnish such information promptly to the Lenders:):
(a) promptly when available and in any event within ninety (90) 90 days after the end of each fiscal year, Parent’s a consolidated balance sheet and related statement statements of operations, comprehensive income (loss), partners' equity and cash flows, flows showing the financial condition position of Parent the Borrower and its the Subsidiaries on a consolidated basis as of the close of such fiscal year and the consolidated results of their respective operations during such year, such consolidated financial statements of Parent to be all audited for Parent by independent public accountants of recognized national standing and to be accompanied by an opinion of such accountants (which opinion shall not be unqualified as to scope of such auditqualified in any material respect) to the effect that such consolidated financial statements fairly present present, in all material respects respects, the financial condition position and results of operations of Parent the Borrower and its the Subsidiaries on a consolidated basis in accordance with GAAP; provided GAAP (it being understood that the foregoing delivery requirement shall be satisfied if Parent shall have filed with by the SEC its Borrower of Annual Report Reports on Form 10-K for such fiscal year, which is available of the Borrower and the Subsidiaries shall satisfy the requirements of this Section 5.04
(a) to the public via XXXXX or any similar successor systemextent such Annual Reports include the information specified herein);
(b) promptly when available and in any event within forty-five (45) 45 days after the end of each of the first three fiscal quarters of each fiscal year, Parent’s an unaudited, condensed, consolidated balance sheets sheet and related unaudited condensed, consolidated statements of income operations and cash flows, flows (which statements shall be prepared in a manner applicable to financial statements required by Quarterly Reports filed on Form 10-Q under the Exchange Act) showing the financial condition position of Parent the Borrower and its the Subsidiaries on a consolidated basis as of the close of such fiscal quarter and the consolidated results of their operations during such fiscal quarter and the then-elapsed portion of the fiscal year, each all certified by a Responsible an Authorized Officer of Parent the Borrower, on behalf of the Borrower, as fairly presenting presenting, in all material respects respects, the financial condition position and results of operations of Parent the Borrower and its the Subsidiaries on a consolidated basis in accordance with GAAP, GAAP (subject to normal year-end audit adjustments and the absence of footnotes; provided ) (it being understood that the foregoing delivery requirement shall be satisfied if Parent shall have filed with by the SEC its Borrower of Quarterly Report Reports on Form 10-Q for such fiscal quarter, which is available to the public via XXXXX or any similar successor system;
(c) within the time period under Section 5.01(a), a certificate of a Responsible Officer of the Borrower certifying that, to and its consolidated subsidiaries shall satisfy the knowledge of such Responsible Officer, no Event of Default has occurred and is continuing, or, if, to the knowledge of such Responsible Officer, such an Event of Default has occurred and is continuing, specifying the nature and extent thereof and any corrective action taken or proposed to be taken with respect thereto;
(d) within the time period under (a) and (b) requirements of this Section 5.01, an Officer’s Certificate demonstrating in reasonable detail compliance with Section 6.08 as of the end of the preceding fiscal quarter;
(e5.04(b) promptly after the occurrence thereof, written notice of the termination of a Plan of the Borrower or an ERISA Affiliate pursuant to Section 4042 of ERISA, to the extent such termination would constitute an Event of Default under Section 7.01(jQuarterly Reports include the information specified herein);
Appears in 1 contract
Samples: Credit Agreement (Universal City Development Partners LTD)
Financial Statements, Reports, etc. The Borrower shall deliver to the Administrative Agent on behalf of the Lenders:
(a) within a. Within ninety (90) days after the end of each fiscal year, Parentthe Borrower’s consolidated balance sheet and related statement of income and cash flows, showing the financial condition of Parent the Borrower and its Subsidiaries on a consolidated basis as of the close of such fiscal year and the results of their respective operations during such year, such the consolidated financial statements statement of Parent the Borrower to be audited for Parent the Borrower by independent public accountants of recognized national standing and to be accompanied by an opinion of such accountants (which opinion shall be unqualified without any qualification or exception as to the scope of such audit) to the effect that such consolidated financial statements fairly present in all material respects the financial condition and results of operations of Parent the Borrower and its Subsidiaries on a consolidated basis in accordance with GAAP; provided that the foregoing delivery requirement shall be satisfied if Parent the Borrower shall have filed with the SEC its Annual Report on Form 10-K for such fiscal year, which is available to the public via XXXXX or any similar successor system;
(b) within b. Within forty-five (45) days after the end of each of the first three fiscal quarters of each fiscal year, Parentthe Borrower’s consolidated balance sheets and related statements of income and cash flows, showing the financial condition of Parent the Borrower and its Subsidiaries on a consolidated basis as of the close of such fiscal quarter and the results of their operations during such fiscal quarter and the then-then elapsed portion of the fiscal year, each certified by a Responsible Officer of Parent the Borrower as fairly presenting in all material respects the financial condition and results of operations of Parent the Borrower and its Subsidiaries on a consolidated basis in accordance with GAAP, subject to normal year-end audit adjustments and the absence of footnotes; provided that the foregoing delivery requirement shall be satisfied if Parent the Borrower shall have filed with the SEC its Quarterly Report on Form 10-Q for such fiscal quarter, which is available to the public via XXXXX or any similar successor system;
(c) within c. Within the time period under Section 5.01(a)) above, a certificate of a Responsible Officer of the Borrower certifying that, to the knowledge of such Responsible Officer, no Default or Event of Default has occurred and is continuing, or, if, to the knowledge of such Responsible Officer, such an a Default or Event of Default has occurred and is continuing, specifying the nature and extent thereof and any corrective action taken or proposed to be taken with respect thereto;
(d) within d. Within the time period under (a) and (b) of this Section 5.01, an Officer’s Certificate a certificate of a Responsible Officer demonstrating in reasonable detail compliance with Section Sections 6.08 and 6.09(a) as of the end of the preceding fiscal quarter, including an updated calculation of the Collateral Coverage Ratio reflecting the most recent Appraisals (as adjusted for any Dispositions or additions to the Collateral since the date of delivery to the Administrative Agent of such Appraisals);
e. Within 15 days after a Responsible Officer of the Borrower obtains knowledge that there has been one or more Dispositions of Collateral (eexcluding those described in clause (b), (d) promptly or (e)(iv) of the definition of “Permitted Disposition”) since the date of the Officer’s Certificate demonstrating compliance with Section 6.09(a) most recently delivered under this Agreement by the Borrower to the Administrative Agent consisting of (i) a Pledged Aircraft, (ii) a Pledged Engine or (iii) any other Collateral having an Appraised Value in the aggregate in excess of 10% of the sum of the aggregate Appraised Value of all Collateral plus Pledged Cash and Cash Equivalents, a certificate of a Responsible Officer demonstrating in reasonable detail compliance with Section 6.09(a);
f. [Reserved].
g. Promptly after the occurrence a Responsible Officer obtains knowledge thereof, written notice of the termination failure of a Plan any material assumption contained in any Appraisal to be correct, except if such failure would not reasonably be expected to materially adversely affect the Appraised Value of the applicable type of Collateral;
h. So long as any Commitment, Loan or Letter of Credit is outstanding, within 30 days after the Chief Financial Officer or the Treasurer of the Borrower becoming aware of the occurrence of a Default or an ERISA Affiliate Event of Default that is continuing, an Officer’s Certificate specifying such Default or Event of Default and what action the Borrower and its Subsidiaries are taking or propose to take with respect thereto; and
i. Promptly, from time to time, such other information regarding the Collateral and the operations, business affairs and financial condition of either the Borrower or any Guarantor, in each case as the Administrative Agent, at the request of any Lender, may reasonably request (it being understood that, upon the request of the Administrative Agent, the Borrower shall provide utilization reports with respect to the Pledged Slots (but no more than once per fiscal quarter)). Subject to the next succeeding sentence, information delivered pursuant to this Section 5.01 to the Administrative Agent may be made available by the Administrative Agent to the Lenders by posting such information on the Debtdomain website on the Internet at xxxx://xxx.xxxxxxxxxx.xxx. Information required to be delivered pursuant to this Section 5.01 by the Borrower shall be delivered pursuant to Section 4042 of ERISA, 10.01 hereto. Information required to be delivered pursuant to this Section 5.01 (to the extent not made available as set forth above) shall be deemed to have been delivered to the Administrative Agent on the date on which the Borrower provides written notice to the Administrative Agent that such information has been posted on the Borrower’s general commercial website on the Internet (to the extent such termination would constitute an Event information has been posted or is available as described in such notice), as such website may be specified by the Borrower to the Administrative Agent from time to time. Information required to be delivered pursuant to this Section 5.01 shall be in a format which is suitable for transmission. Any notice or other communication delivered pursuant to this Section 5.01, or otherwise pursuant to this Agreement, shall be deemed to contain material non-public information unless (i) expressly marked by the Borrower or a Guarantor as “PUBLIC”, (ii) such notice or communication consists of Default under Section 7.01(j);copies of the Borrower’s public filings with the SEC or (iii) such notice or communication has been posted on a the Borrower’s general commercial website on the Internet, as such website may be specified by the Borrower to the Administrative Agent from time to time.
Appears in 1 contract
Samples: Credit and Guaranty Agreement (Spirit Airlines, Inc.)
Financial Statements, Reports, etc. The Borrower shall In the case of the Borrowers, deliver to the Administrative Agent on behalf of the LendersAgent:
(a) on or before the date upon which the Parent’s annual report on Form 10-K is required to be filed with the SEC (and in any event within ninety one hundred five (90105) days after the end of each fiscal yearFiscal Year), the Parent’s (i) audited consolidated balance sheet and related statement statements of income income, stockholders’ equity and cash flows, showing the financial condition of the Parent and its Subsidiaries on a consolidated basis as of the close of such fiscal year Fiscal Year and the results of their respective operations during such year, such consolidated financial statements of Parent to be audited for the Parent and its Subsidiaries by Deloitte & Touche LLP or other independent public accountants of recognized national standing and to be accompanied by an audit opinion of such accountants (which opinion shall be unqualified without (i) in the case of Fiscal Years ending on or after December 31, 2006, a “going concern” or like qualification, exception, or explanatory paragraph and (ii) in the case of any Fiscal Year, without any qualification or exception as to the scope of such audit) and to be certified by a Financial Officer of the Parent to the effect that such consolidated financial statements fairly present in all material respects the financial condition and results of operations of the Parent and its Subsidiaries on a consolidated basis in accordance with GAAPGAAP and (ii) unaudited consolidating balance sheet and related unaudited consolidating statements of income as of the close of the fourth Fiscal Quarter and as of the close of such Fiscal Year, all such consolidating financial statements showing separately the financial condition of the Parent and its Significant Subsidiaries; provided provided, however, that the foregoing delivery requirement any document required to be delivered pursuant to this Section 5.01(a) shall be satisfied deemed to have been furnished to the Administrative Agent if Parent shall the Borrowers have provided the Administrative Agent with a link to such documents that have been made available through their website or that have been filed with the SEC its Annual Report on Form 10-K for such fiscal year, which is available to the public via XXXXX or any similar successor systemEXXXX;
(b) on or before the date upon which the Parent’s quarterly report on Form 10-Q is required to be filed with the SEC (and in any event within forty-five fifty (4550) days after the end of each of the first three fiscal quarters Fiscal Quarters of each fiscal yearthe Parent), the Parent’s (i) unaudited consolidated balance sheets and related unaudited statements of income income, stockholders’ equity and cash flows, showing the financial condition of the Parent and its Subsidiaries on a consolidated basis as of the close of such fiscal quarter Fiscal Quarter and the results of their operations during such fiscal quarter Fiscal Quarter and the then-then elapsed portion of the fiscal yearFiscal Year, each certified by a Responsible Financial Officer of the Parent as fairly presenting in all material respects the financial condition and results of operations 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 footnotesfootnotes and (ii) unaudited consolidating balance sheet and related unaudited consolidating statements of income as of the close of the such Fiscal Quarter, all such consolidating financial statements showing separately the financial condition of the Parent and its Significant Subsidiaries; provided provided, however, that the foregoing delivery requirement any document required to be delivered pursuant to this Section 5.01(b) shall be satisfied deemed to have been furnished to the Administrative Agent if Parent shall the Borrowers have provided the Administrative Agent with a link to such documents that have been made available through their website or that have been filed with the SEC its Quarterly Report on Form 10-Q for such fiscal quarter, which is available to the public via XXXXX or any similar successor systemEXXXX;
(c) within commencing with the time period first Fiscal Month following the Closing Date as soon as available, but no more than 30 days after the end of each month, the unaudited consolidated balance sheet as of the close of such Fiscal Month and related unaudited consolidated statements of income and cash flow of the Parent and its Subsidiaries during such month and the year to date period;
(d) (i) concurrently with any delivery of financial statements under Section 5.01(aparagraphs (a), (b) and (c) above, a certificate of a Responsible Financial Officer certifying that such financial statements fairly present the financial condition and results of operations of the Borrower Parent and its Subsidiaries in accordance with GAAP, subject to normal year-end audit adjustments and the absence of footnotes, (ii) concurrently with any delivery of financial statements under paragraph (a) above, a certificate in accordance with prevailing professional standards (which certificate may be limited to accounting matters and disclaim responsibility for legal interpretations) of the accountants auditing the consolidated financial statements delivered under paragraph (a) above certifying that, to in the course of the regular audit of the business of the Parent and its Subsidiaries, such accountants have obtained no knowledge of such Responsible Officer, no that a Default or Event of Default has occurred and is continuing, or, continuing or if, to in the knowledge opinion of such Responsible Officeraccountants, such an a Default or Event of Default has occurred and is continuing, specifying the nature and extent thereof and all relevant facts with respect thereto;
(e) as soon as available, but not more than sixty (60) days after the end of each Fiscal Year, commencing with the Fiscal Year ending December 31, 2006, a copy of the plan and forecast (including a projected consolidated balance sheet, income statement and funds flow statement) of the Parent on a consolidated basis for each month of the then current Fiscal Year (the “Projections”) in form reasonably satisfactory to the Administrative Agent;
(f) as soon as available but in any corrective event within fifteen (15) days of the end of each calendar month, and during a Dominion Trigger Event more frequently as needed to redetermine Availability, but in any event not more frequently than weekly, as of the period then ended:
(i) a detailed aging of the Borrowers’ Accounts (A) aged by invoice date and (B) reconciled to the Borrowing Base Certificate delivered as of such date, prepared in a manner reasonably acceptable to the Administrative Agent, together with a summary specifying the name, address, and balance due for each Account Debtor;
(ii) a schedule detailing the Borrowers’ Inventory, in form satisfactory to the Administrative Agent, by location (showing Inventory in transit, any Inventory located with a third party under any consignment, bailee arrangement, or warehouse agreement), by class (raw material, work-in-process and finished goods), which Inventory shall be valued at the lower of cost (determined on a first-in, first-out basis) or market and reconciled to the Borrowing Base Certificate delivered as of such date;
(iii) a summary of categories of Accounts excluded from Eligible Accounts Receivable and Eligible Inventory; and
(iv) a reconciliation of the Borrowers’ Accounts and Inventory between the amounts shown in the applicable Borrower’s general ledger and financial statements and the reports delivered pursuant to clauses (i) and (ii) above;
(g) such other information respecting any Borrower or any of their Subsidiaries as the Administrative Agent may from time to time reasonably request;
(h) within thirty (30) days of each December 31, an updated customer list for the Borrowers and their Subsidiaries, which list shall state the customer’s name, mailing address and phone number and shall be certified as true and correct by a Financial Officer of the Parent;
(i) within thirty (30) days following the first Business Day of each March and September, a certificate of good standing for each Borrower from the appropriate governmental officer in its jurisdiction of incorporation, formation, or organization, as applicable;
(j) promptly after the same become publicly available, copies of all periodic and other reports, proxy statements and other materials filed by the Borrowers with the SEC (provided that any such documents shall be deemed delivered on the date Borrowers provide to Administrative Agent a link to where such documents were filed electronically via EXXXX or such documents have been made publicly available on their website), or any governmental authority succeeding to any of or all the functions of said commission, or with any national securities exchange, as the case may be;
(k) promptly upon receipt thereof, any and all default notices received under or with respect to any leased location or public warehouse where Collateral is located (which shall be delivered within two Business Days after receipt thereof);
(l) promptly upon any Borrower obtaining knowledge thereof or having reason to know, notice of a material portion of Eligible Accounts Receivable, Eligible Equipment, Eligible Inventory or Eligible Real Estate, as the case may be, becoming ineligible under the Borrowing Base;
(m) as soon as available and in any event within thirty (30) days after the Borrowers or any of their ERISA Affiliates knows that any Termination Event has occurred with respect to any Plan, a statement of a Financial Officer of such Borrower describing the full details of such Termination Event and the action, if any, which such Borrower or such ERISA Affiliate is required or proposes to take with respect thereto, together with any notices required or proposed to be given to or filed with or by such Borrower, the ERISA Affiliate, the PBGC, a Plan participant or the Plan administrator with respect thereto;
(n) promptly and in any event within ten (10) days after receipt thereof by any Borrower or any ERISA Affiliate from a Multiemployer Plan sponsor, a copy of each notice received by any Borrower or any ERISA Affiliate concerning (A) the imposition of Withdrawal Liability by a Multiemployer Plan, (B) the determination that a Multiemployer Plan is, or is expected to be, in reorganization within the meaning of Title IV of ERISA, (C) the termination of a Multiemployer Plan within the meaning of Title IV of ERISA, or (D) the amount of liability incurred, or which may be incurred, by any Borrower or any ERISA Affiliate in connection with any event described in clause (A), (B) or (C) above;
(o) promptly and in any event within ten (10) days after receipt thereof by such Borrower or any of its ERISA Affiliates from the PBGC copies of each notice received by the Borrowers or any such ERISA Affiliate of the PBGC’s intention to terminate any Single Employer Plan of any Borrower or such ERISA Affiliate other than the Terminated Plans or to have a trustee appointed to administer any such Plan;
(p) within ten (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 any Borrower or any of their ERISA Affiliates to make timely payments to a Plan other than such payments as are required to be made within 31 days after the effective date of the Settlement Agreement, a copy of any such notice filed and a statement of a Financial Officer of such Borrower setting forth (A) sufficient information necessary to determine the amount of any lien under Section 302(f)(3), (B) the reason for the failure to make the required payments and (C) the action, if any, which such Borrower or any of its ERISA Affiliates proposed to take with respect thereto;
(q) promptly upon obtaining knowledge thereof, notice of any written notice by the holder of any Equity Interests of any Borrower or the holder of any Indebtedness of any Borrower in excess of $20,000,000 that any default exists with respect thereto or that any Borrower is not in compliance with the terms thereof;
(r) promptly upon receipt thereof, any notice of any governmental investigation or any litigation commenced or threatened against any Borrower that could reasonably be expected to have a Material Adverse Effect;
(s) promptly upon any Borrower obtaining knowledge thereof, notice of any Lien (other than Permitted Liens and other Liens permitted under the Loan Documents) or any claim made or asserted against Collateral having a value in excess of $5,000,000;
(t) promptly upon the commencement thereof, notice of any proceedings with respect to any Tax, fee, assessment, or other governmental charge in excess of $5,000,000;
(u) prior to the opening thereof, notice of any new deposit account by any Borrower with any bank or other financial institution;
(v) promptly upon obtaining knowledge thereof, notice of any loss, damage, or destruction to Collateral having a book value of $5,000,000 or more, whether or not covered by insurance;
(w) immediately after any Borrower obtaining knowledge thereof, notice of any pending strike, work stoppage, unfair labor practice claim, or other labor dispute affecting any Borrower or any of its Subsidiaries in a manner which could reasonably be expected to have a Material Adverse Effect; and
(x) promptly upon obtaining knowledge thereof, notice of any other development that results in, or could reasonably be expected to result in, a Material Adverse Effect. With respect to any report, balance sheet, statement, certificate, plan, forecast, schedule, summary, notice or other document delivered by the Borrowers to the Administrative Agent pursuant to this Section, the Administrative Agent shall deliver each such report, balance sheet, statement, certificate, plan, forecast, schedule, summary, notice or other document to the Lenders by complying with the requirements contained in Section 9.01 or by posting such document to Intralinks or an equivalent means of electronic delivery to which the Lenders have access. Each notice delivered under clauses (o) through (x) of this Section shall be accompanied by a statement of a Financial Officer or other executive officer of the Parent setting forth the details of the event or development requiring such notice and any action taken or proposed to be taken with respect thereto;
(d) within the time period under (a) and (b) of this Section 5.01, an Officer’s Certificate demonstrating in reasonable detail compliance with Section 6.08 as of the end of the preceding fiscal quarter;
(e) promptly after the occurrence thereof, written notice of the termination of a Plan of the Borrower or an ERISA Affiliate pursuant to Section 4042 of ERISA, to the extent such termination would constitute an Event of Default under Section 7.01(j);.
Appears in 1 contract
Samples: Senior Secured Revolving Credit Agreement (Kaiser Aluminum Corp)
Financial Statements, Reports, etc. The Borrower shall deliver to the Administrative Agent on behalf of the Lenders:
(a) within ninety (90) days after the end of each fiscal year, Parent’s consolidated balance sheet and related statement of income and cash flows, showing the financial condition of Parent and its Subsidiaries on a consolidated basis as of the close of such fiscal year and the results of their respective operations during such year, such consolidated financial statements of Parent to be audited for Parent by independent public accountants of recognized national standing and to be accompanied by an opinion of such accountants (which opinion shall be unqualified as to 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 Parent and its Subsidiaries on a consolidated basis in accordance with GAAP; provided that the foregoing delivery requirement shall be satisfied if Parent shall have filed with the SEC its Annual Report on Form 10-K 10‑K for such fiscal year, which is available to the public via XXXXX or any similar successor system;
(b) within forty-five forty‑five (45) days after the end of each of the first three fiscal quarters of each fiscal year, Parent’s consolidated balance sheets and related statements of income and cash flows, showing the financial condition of Parent and its Subsidiaries on a consolidated basis as of the close of such fiscal quarter and the results of their operations during such fiscal quarter and the then-elapsed portion of the fiscal year, each certified by a Responsible Officer of Parent as fairly presenting in all material respects the financial condition and results of operations of Parent and its Subsidiaries on a consolidated basis in accordance with GAAP, subject to normal year-end audit adjustments and the absence of footnotes; provided that the foregoing delivery requirement shall be satisfied if Parent shall have filed with the SEC its Quarterly Report on Form 10-Q 10‑Q for such fiscal quarter, which is available to the public via XXXXX or any similar successor system;
(c) within the time period under Section 5.01(a), a certificate of a Responsible Officer of the Borrower certifying that, to the knowledge of such Responsible Officer, no Event of Default has occurred and is continuing, or, if, to the knowledge of such Responsible Officer, such an Event of Default has occurred and is continuing, specifying the nature and extent thereof and any corrective action taken or proposed to be taken with respect thereto;
(d) within the time period under (a) and (b) of this Section 5.01, an Officer’s Certificate demonstrating in reasonable detail compliance with Section 6.08 as of the end of the preceding fiscal quarter;
(e) promptly after the occurrence thereof, written notice of the termination of a Plan of the Borrower or an ERISA Affiliate pursuant to Section 4042 of ERISA, to the extent such termination would constitute an Event of Default under Section 7.01(j);
Appears in 1 contract
Samples: Credit and Guaranty Agreement (American Airlines, Inc.)
Financial Statements, Reports, etc. The In the case of the Borrower shall and the Guarantors, deliver to the Administrative Agent on behalf of the LendersAgent:
(a) on or before the date upon which Parent’s annual report on Form 10-K is required to be filed with the SEC (and in any event within ninety one hundred five (90105) days after the end of each fiscal yearFiscal Year), Parent’s (i) audited consolidated balance sheet and related statement statements of income income, stockholders’ equity and cash flows, showing the financial condition of Parent and its Subsidiaries on a consolidated basis as of the close of such fiscal year Fiscal Year and the results of their respective operations during such year, such consolidated financial statements of Parent to be audited for Parent and its Subsidiaries by Deloitte & Touche LLP or other independent public accountants of recognized national standing and to be accompanied by an audit opinion of such accountants (which opinion shall be unqualified without (i) in the case of Fiscal Years ending on or after December 31, 2006, a “going concern” or like qualification, exception, or explanatory paragraph and (ii) in the case of any Fiscal Year, without any qualification or exception as to the scope of such audit) and to be certified by a Financial Officer of Parent to the effect that such consolidated financial statements fairly present in all material respects the financial condition and results of operations of Parent and its Subsidiaries on a consolidated basis in accordance with GAAPGAAP and (ii) unaudited consolidating balance sheet and related unaudited consolidating statements of income as of the close of the fourth Fiscal Quarter and as of the close of such Fiscal Year, all such consolidating financial statements showing separately the financial condition of Parent and its Significant Subsidiaries; provided provided, however, that the foregoing delivery requirement any document required to be delivered pursuant to this Section 5.01(a) shall be satisfied deemed to have been furnished to the Administrative Agent if the Borrower or Parent shall has provided the Administrative Agent with a link to such documents that have been made available through its website or that have been filed with the SEC its Annual Report on Form 10-K for such fiscal year, which is available to the public via XXXXX or any similar successor systemEXXXX;
(b) on or before the date upon which Parent’s quarterly report on Form 10-Q is required to be filed with the SEC (and in any event, within forty-five fifty (4550) days after the end of each of the first three fiscal quarters Fiscal Quarters of each fiscal yearParent), Parent’s (i) unaudited consolidated balance sheets and related unaudited statements of income income, stockholders’ equity and cash flows, showing the financial condition of Parent and its Subsidiaries on a consolidated basis as of the close of such fiscal quarter Fiscal Quarter and the results of their operations during such fiscal quarter Fiscal Quarter and the then-then elapsed portion of the fiscal yearFiscal Year, each certified by a Responsible Financial Officer of Parent as fairly presenting in all material respects the financial condition and results of operations of Parent and its Subsidiaries on a consolidated basis in accordance with GAAP, subject to normal year-end audit adjustments and the absence of footnotesfootnotes and (ii) unaudited consolidating balance sheet and related unaudited consolidating statements of income as of the close of the such Fiscal Quarter, all such consolidating financial statements showing separately the financial condition of Parent and its Significant Subsidiaries; provided provided, however, that the foregoing delivery requirement any document required to be delivered pursuant to this Section 5.01(b) shall be satisfied deemed to have been furnished to the Administrative Agent if the Borrower or Parent shall has provided the Administrative Agent with a link to such documents that have been made available through its website or that have been filed with the SEC its Quarterly Report on Form 10-Q for such fiscal quarter, which is available to the public via XXXXX or any similar successor systemEXXXX;
(c) within commencing with the time period first Fiscal Month following the Closing Date as soon as available, but no more than 30 days after the end of each month, the unaudited consolidated balance sheet as of the close of such Fiscal Month and related unaudited consolidated statements of income and cash flow of Parent and its Subsidiaries during such month and the year to date period;
(d) (i) concurrently with any delivery of financial statements under Section 5.01(aparagraphs (a), (b) and (c) above, a certificate of a Responsible Financial Officer of Parent certifying that such financial statements fairly present the Borrower financial condition and results of operations of Parent and its Subsidiaries in accordance with GAAP, subject to normal year-end audit adjustments and the absence of footnotes; and (ii) concurrently with any delivery of financial statements under paragraph (a) above, a certificate in accordance with prevailing professional standards (which certificate may be limited to accounting matters and disclaim responsibility for legal interpretations) of the accountants auditing the consolidated financial statements delivered under paragraph (a) above certifying that, to in the course of the regular audit of the business of Parent and its Subsidiaries, such accountants have obtained no knowledge of such Responsible Officer, no that a Default or Event of Default has occurred and is continuing, or, continuing or if, to in the knowledge opinion of such Responsible Officeraccountants, such an a Default or Event of Default has occurred and is continuing, specifying the nature and extent thereof and all relevant facts with respect thereto;
(e) as soon as available, but not more than sixty (60) days after the end of each Fiscal Year, commencing with the Fiscal Year ending December 31, 2006, a copy of the plan and forecast (including a projected consolidated balance sheet, income statement and funds flow statement) of Parent on a consolidated basis for each month of the then current Fiscal Year (the “Projections”) in form reasonably satisfactory to the Administrative Agent;
(f) such other information respecting the Borrower, any corrective Guarantor or any of their Subsidiaries as the Administrative Agent may from time to time reasonably request;
(g) promptly after the same become publicly available, copies of all periodic and other reports, proxy statements and other materials filed by the Borrower, any Guarantor or any of their Subsidiaries with the SEC (provided that any such documents shall be deemed delivered on the date the Borrower or Parent provides to Administrative Agent a link to where such documents were filed electronically via EXXXX or such documents have been made publicly available on Parent’s website), or any governmental authority succeeding to any of or all the functions of said commission, or with any national securities exchange, as the case may be;
(h) as soon as available and in any event within thirty (30) days after the Borrower or any ERISA Affiliate knows that any Termination Event has occurred with respect to any Plan, a statement of a Financial Officer of Parent describing the full details of such Termination Event and the action, if any, which the Borrower or such ERISA Affiliate is required or proposes to take with respect thereto, together with any notices required or proposed to be given to or filed with or by the Borrower, such ERISA Affiliate, the PBGC, a Plan participant or the Plan administrator with respect thereto;
(i) promptly and in any event within ten (10) days after receipt thereof by the Borrower or any ERISA Affiliate from a Multiemployer Plan sponsor, a copy of each notice received by the Borrower or any ERISA Affiliate concerning (A) the imposition of Withdrawal Liability by a Multiemployer Plan, (B) the determination that a Multiemployer Plan is, or is expected to be, in reorganization within the meaning of Title IV of ERISA, (C) the termination of a Multiemployer Plan within the meaning of Title IV of ERISA, or (D) the amount of liability incurred, or which may be incurred, by the Borrower or any ERISA Affiliate in connection with any event described in clause (A), (B) or (C) above;
(j) promptly and in any event within ten (10) days after receipt thereof by the Borrower or any ERISA Affiliate 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 other than the Terminated Plans or to have a trustee appointed to administer any such Plan;
(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 ERISA Affiliate to make timely payments to a Plan other than such payments as are required to be made within 31 days after the effective date of the Settlement Agreement, a copy of any such notice filed and a statement of a Financial Officer of Parent setting forth (A) sufficient information necessary to determine the amount of any 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 ERISA Affiliate proposed to take with respect thereto;
(l) promptly upon obtaining knowledge thereof, notice by the holder of any Equity Interests of the Borrower or any Guarantor or the holder of any Indebtedness of the Borrower or any Guarantor in excess of $20,000,000 that any default exists with respect thereto or that the Borrower or any Guarantor is not in compliance therewith;
(m) promptly upon receipt thereof, any notice of any governmental investigation or any litigation commenced or threatened against the Borrower or any Guarantor that could reasonably be expected to have a Material Adverse Effect;
(n) promptly upon the Borrower or any Guarantor obtaining knowledge thereof, notice of any Lien (other than Permitted Liens and other Liens permitted under the Loan Documents) or any claim made or asserted against the Collateral having a value in excess of $5,000,000;
(o) promptly upon the commencement thereof, notice of any proceedings with respect to any Tax, fee, assessment, or other governmental charge in excess of $5,000,000;
(p) promptly upon obtaining knowledge thereof, notice of any loss, damage, or destruction to Collateral having a book value of $5,000,000 or more, whether or not covered by insurance;
(q) immediately after the Borrower or any Guarantor obtaining knowledge thereof, notice of any pending strike, work stoppage, unfair labor practice claim, or other labor dispute affecting the Borrower, any Guarantor or any of their respective Subsidiaries in a manner which could reasonably be expected to have a Material Adverse Effect; and
(r) promptly upon obtaining knowledge thereof, notice of any other development that results in, or could reasonably be expected to result in, a Material Adverse Effect. With respect to any report, balance sheet, statement, certificate, plan, forecast, schedule, summary or other document delivered by Parent or the Borrower to the Administrative Agent pursuant to clauses (a) through (f) of this Section, the Administrative Agent shall deliver each such document to the Lenders by complying with the requirements contained in Section 9.01 or by posting such document to Intralinks or an equivalent means of electronic delivery to which the Lenders have access. Each notice delivered under clauses (j) through (r) of this Section shall be accompanied by a statement of a Financial Officer or other executive officer of Parent or the Borrower setting forth the details of the event or development requiring such notice and any action taken or proposed to be taken with respect thereto;
(d) within the time period under (a) and (b) of this Section 5.01, an Officer’s Certificate demonstrating in reasonable detail compliance with Section 6.08 as of the end of the preceding fiscal quarter;
(e) promptly after the occurrence thereof, written notice of the termination of a Plan of the Borrower or an ERISA Affiliate pursuant to Section 4042 of ERISA, to the extent such termination would constitute an Event of Default under Section 7.01(j);.
Appears in 1 contract
Samples: Term Loan and Guaranty Agreement (Kaiser Aluminum Corp)
Financial Statements, Reports, etc. The Borrower shall deliver to the Administrative Agent on behalf of the Lenders:
(a) within Within ninety (90) days after the end of each fiscal year, Parentthe Borrower’s consolidated balance sheet and related statement of income and cash flows, showing the financial condition of Parent the Borrower and its Subsidiaries on a consolidated basis as of the close of such fiscal year and the results of their respective operations during such year, such the consolidated financial statements statement of Parent the Borrower to be audited for Parent the Borrower by independent public accountants of recognized national standing and to be accompanied by an opinion of such accountants (which opinion shall be unqualified without any qualification or exception as to the scope of such audit) to the effect that such consolidated financial statements fairly present in all material respects the financial condition and results of operations of Parent the Borrower and its Subsidiaries on a consolidated basis in accordance with GAAP; provided that the foregoing delivery requirement shall be satisfied if Parent the Borrower shall have filed with the SEC its Annual Report on Form 10-K for such fiscal year, which is available to the public via XXXXX or any similar successor system;
(b) within Within forty-five (45) days after the end of each of the first three fiscal quarters of each fiscal year, Parentthe Borrower’s consolidated balance sheets and related statements of income and cash flows, showing the financial condition of Parent the Borrower and its Subsidiaries on a consolidated basis as of the close of such fiscal quarter and the results of their operations during such fiscal quarter and the then-then elapsed portion of the fiscal year, each certified by a Responsible Officer of Parent the Borrower as fairly presenting in all material respects the financial condition and results of operations of Parent the Borrower and its Subsidiaries on a consolidated basis in accordance with GAAP, subject to normal year-year end audit adjustments and the absence of footnotes; provided that the foregoing delivery requirement shall be satisfied if Parent the Borrower shall have filed with the SEC its Quarterly Report on Form 10-Q for such fiscal quarter, which is available to the public via XXXXX or any similar successor system;
(c) within Within the time period under Section 5.01(a)) above, a certificate of a Responsible Officer of the Borrower certifying that, to the knowledge of such Responsible Officer, no Default or Event of Default has occurred and is continuing, or, if, to the knowledge of such Responsible Officer, such an a Default or Event of Default has occurred and is continuing, specifying the nature and extent thereof and any corrective action taken or proposed to be taken with respect thereto;
(d) within Within the time period under (a) and (b) of this Section 5.01, an Officer’s Certificate a certificate of a Responsible Officer demonstrating in reasonable detail compliance with Section Sections 6.08 and 6.09(a) as of the end of the preceding fiscal quarter, including an updated calculation of the Collateral Coverage Ratio reflecting the most recent Appraisals (as adjusted for any Dispositions or additions to the Collateral since the date of delivery to the Administrative Agent of such Appraisals);
(e) promptly Within 15 days after the occurrence thereof, written notice of the termination of a Plan Responsible Officer of the Borrower obtains knowledge that there has been one or an ERISA Affiliate pursuant to more Dispositions of Collateral (excluding those described in clause (b), (d) or (e)(iv) of the definition of “Permitted Disposition”) since the date of the Officer’s Certificate demonstrating compliance with Section 4042 of ERISA, 6.09(a) most recently delivered under this Agreement by the Borrower to the extent such termination would constitute Administrative Agent consisting of (i) a Pledged Aircraft, (ii) a Pledged Engine or (iii) any other Collateral having an Event Appraised Value in the aggregate in excess of Default under 10% of the sum of the aggregate Appraised Value of all Collateral plus Pledged Cash and Cash Equivalents, a certificate of a Responsible Officer demonstrating in reasonable detail compliance with Section 7.01(j6.09(a);
Appears in 1 contract
Samples: Credit and Guaranty Agreement (Jetblue Airways Corp)
Financial Statements, Reports, etc. The Borrower Co-Borrowers shall deliver to the Administrative Agent on behalf of the Lenders:
(a) within Within ninety (90) days after the end of each fiscal year, Parent’s consolidated balance sheet and related statement of income and cash flows, showing the financial condition of Parent and its Subsidiaries on a consolidated basis as of the close of such fiscal year and the results of their respective operations during such year, such the consolidated financial statements statement of Parent to be audited for Parent by independent public accountants of recognized national standing and to be accompanied by an opinion of such accountants (which opinion shall be unqualified without any qualification or exception as to the scope of such audit) to the effect that such consolidated financial statements fairly present in all material respects the financial condition and results of operations of Parent and its Subsidiaries on a consolidated basis in accordance with GAAP; provided that the foregoing delivery requirement shall be satisfied if Parent shall have filed with the SEC its Annual Report on Form 10-K for such fiscal year, which is available to the public via XXXXX EXXXX or any similar successor system;
(b) within Within forty-five (45) days after the end of each of the first three fiscal quarters of each fiscal year, Parent’s consolidated balance sheets and related statements of income and cash flows, showing the financial condition of Parent and its Subsidiaries on a consolidated basis as of the close of such fiscal quarter and the results of their operations during such fiscal quarter and the then-then elapsed portion of the fiscal year, each certified by a Responsible Officer of the Parent as fairly presenting in all material respects the financial condition and results of operations of Parent and its Subsidiaries on a consolidated basis in accordance with GAAP, subject to normal year-year end audit adjustments and the absence of footnotes; provided that the foregoing delivery requirement shall be satisfied if Parent shall have filed with the SEC its Quarterly Report on Form 10-Q for such fiscal quarter, which is available to the public via XXXXX EXXXX or any similar successor system;
(c) within Within the time period under Section 5.01(a)) above, (A) a certificate of a Responsible Officer of the Borrower Parent certifying that, to the knowledge of such Responsible Officer, no Event of Default has occurred and is continuing, or, if, to the knowledge of such Responsible Officer, such an Event of Default has occurred and is continuing, specifying the nature and extent thereof and any corrective action taken or proposed to be taken with respect theretothereto and (B) a consolidated budget for Parent and its Subsidiaries for the then current fiscal year;
(d) within Within the time period under (a) and (b) of this Section 5.01, an Officer’s Certificate a certificate of a Responsible Officer demonstrating in reasonable detail compliance with Section Sections 6.08 and 6.09(a) as of the end of the preceding fiscal quarter, including an updated calculation of the Collateral Coverage Ratio reflecting the most recent Appraisals (as adjusted for any Dispositions or additions to the Collateral since the date of delivery to the Administrative Agent of such Appraisals);
(e) promptly Within 15 days after a Responsible Officer of a Co-Borrower obtains knowledge that there has been one or more Dispositions of Collateral (excluding those described in clause (b), (d) or (e)(iv) of the definition of “Permitted Disposition”) since the date of the Officer’s Certificate demonstrating compliance with Section 6.09(a) most recently delivered under this Agreement by the Co-Borrowers to the Administrative Agent having an Appraised Value in the aggregate in excess of 10% of the aggregate Appraised Value of all Collateral, a certificate of a Responsible Officer demonstrating in reasonable detail compliance with Section 6.09(a);
(f) Promptly after the occurrence thereof, written notice of the termination of a Plan of the Borrower or an ERISA Affiliate Co-Borrowers pursuant to Section 4042 of ERISA;
(g) Promptly after a Responsible Officer obtains knowledge thereof, notice of the failure of any material assumption contained in any Appraisal to be correct, except if such failure would not reasonably be expected to materially adversely affect the extent such termination would constitute Appraised Value of the applicable type of Collateral;
(h) So long as any Commitment, Loan or Letter of Credit is outstanding, promptly after the Chief Financial Officer or the Treasurer of the Parent becoming aware of the occurrence of a Default or an Event of Default under Section 7.01(j);that is continuing, an Officer’s Certificate specifying such Default or Event of Default and what action the Parent and its Subsidiaries are taking or propose to take with respect thereto; and
(i) Promptly, from time to time, such other information regarding the Collateral and the operations, business affairs and financial condition of either Co-Borrower or any Guarantor,
Appears in 1 contract
Samples: Credit and Guaranty Agreement (Continental Airlines, Inc.)
Financial Statements, Reports, etc. The Borrower shall deliver In the case of the Borrowers, furnish to the Administrative Agent on behalf of the Lendersand each Lender:
(a) within ninety (90) Within 30 days after the end of each fiscal yearMonthly Fiscal Period (the “Reported Month”), Parent’s and in any event no less than three (3) Business Days prior to the Subordinated Note Interest Payment Date in each calendar month, a Monthly Report substantially in the form of Exhibit A (the “Monthly Report”) which shall include, among other things:
(i) a monthly consolidated cash flow statement and a monthly consolidated balance sheet and related statement of income and cash flows, showing the financial condition of Parent for Holdings and its Subsidiaries on a consolidated basis as of for the close of such fiscal year Reported Month and the results of their respective operations during such year, such consolidated financial statements of Parent to be audited for Parent by independent public accountants of recognized national standing and to be accompanied by an opinion of such accountants (which opinion shall be unqualified as to 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 Parent and its Subsidiaries on a consolidated basis in accordance with GAAP; provided that the foregoing delivery requirement shall be satisfied if Parent shall have filed with the SEC its Annual Report on Form 10-K for such fiscal year, which is available to the public via XXXXX or any similar successor systemto-date;
(bii) within forty-five a certification from the Borrowers of (45A) days after EBITDA and Adjusted EBITDA for the end of each twelve Monthly Fiscal Periods ending on the last day of the first three fiscal quarters Reported Month, (B) Available Cash for such Reported Month, (C) interest on the Holdings Subordinated Notes and interest on Deferred Subordinated Note Interest scheduled to be paid on the Subordinated Note Interest Payment Date immediately following the required date of delivery for such Monthly Report, (D) the aggregate outstanding amount of Deferred Subordinated Note Interest, if any, and (E) Consolidated Service Contract Capital Expenditures for such Reported Month and Cumulatively for the Annual Fiscal Period to-date;
(iii) a certification from the Borrowers of the amount of any Insurance Proceeds, Asset Sale Proceeds, Debt Offering Proceeds, Unamortized Contract Value Proceeds and Equity Offering Proceeds, in each fiscal yearcase with respect to the Reported Month and where relevant, Parent’s consolidated balance sheets and related statements of income and cash flows, showing the financial condition of Parent and its Subsidiaries on a consolidated basis as cumulative annual basis;
(iv) [reserved]
(v) [reserved]
(vi) confirmation from the Borrowers of the close of such fiscal quarter and the results of their operations during such fiscal quarter and the then-elapsed portion of the fiscal year, each certified by a Responsible Officer of Parent as fairly presenting in all material respects the financial condition and results of operations of Parent and its Subsidiaries on a consolidated basis in accordance with GAAP, subject to normal year-end audit adjustments and the absence of footnotes; provided that the foregoing delivery requirement shall be satisfied a Default or Event of Default or, if Parent shall have filed with the SEC its Quarterly Report on Form 10-Q for such fiscal quarter, which is available to the public via XXXXX a Default or any similar successor system;
(c) within the time period under Section 5.01(a), a certificate of a Responsible Officer of the Borrower certifying that, to the knowledge of such Responsible Officer, no Event of Default has occurred and is continuing, or, if, to the knowledge of such Responsible Officer, such an Event of Default has occurred and is continuingoccurred, specifying the nature and extent thereof and any corrective action taken or proposed to be taken with respect thereto; and
(vii) confirmation from the Borrowers of the absence of any default or event of default pursuant to the Holdings Subordinated Note Documents, or if such a default or event of default has occurred, specifying the nature and extent thereof and any corrective action proposed to be taken with respect thereto;
(b) within 45 days after the end of each Quarterly Fiscal Period an unaudited consolidated balance sheet and related statements of operations, cash flows and stockholders’ equity showing the financial condition of the Loan Parties on a consolidated basis as of the close of such Quarterly Fiscal Period and the consolidated results of their operations during such Quarterly Fiscal Period, together with the corresponding consolidating statements prepared in a manner consistent with the consolidating financial statements delivered to the Lenders prior to the Restatement Effective Date, together with a computation from the Borrowers in reasonable detail demonstrating the calculation of the Total Leverage Ratio, the Senior Leverage Ratio, the Interest Coverage Ratio and the Fixed Charge Coverage Ratio and a certification from the Borrowers of compliance with the financial covenants contained in Sections 6.10, 6.11, 6.12, 6.14, 6.15, 6.17, 6.18 and 6.25.
(c) within 120 days after the end of each Annual Fiscal Period, a consolidated balance sheet and related statements of operations, cash flows and stockholders’ equity showing the financial condition of the Loan Parties on a consolidated basis as of the close of such Annual Fiscal Period and the consolidated results of their operations during such Annual Fiscal Period, together with the corresponding consolidating statements prepared in a manner consistent with the consolidating financial statements delivered to the Lenders prior to the Restatement Effective Date, all audited by independent certified public accountants acceptable to the Administrative Agent and accompanied by an opinion of such accountants (which shall not be qualified in any material respect, provided that disclosures by such accountants of changes in accounting principles shall not be deemed such a qualification) to the effect that such consolidated financial statements fairly present the financial condition and results of operations of the Loan Parties on a consolidated basis in accordance with GAAP, together with a written discussion by management of annual results compared to prior year results and management letters, if available;
(d) within if, as a result of any change in accounting principles and policies from those as in effect on the time period under date of this Agreement, the financial statements of the Loan Parties on a consolidated basis delivered pursuant to paragraph (a) and ), (b) or (c) above will differ in any material respect from the consolidated financial statements that would have been delivered pursuant to such clauses had no such change in accounting principles and policies been made, then, together with the first delivery of this Section 5.01financial statements pursuant to paragraph (a), an Officer’s Certificate demonstrating in reasonable detail compliance with Section 6.08 as (b) or (c) above following such change, a schedule prepared by a Financial Officer on behalf of Holdings and the end of Borrowers reconciling such changes to what the preceding fiscal quarterfinancial statements would have been without such changes;
(e) promptly simultaneously with the delivery of any financial statements pursuant to paragraph (b) or (c) above, a balance sheet and related statements of operations, cash flows and stockholders’ equity for each unconsolidated Subsidiary for the applicable period;
(f) as soon as available, but not later than 90 days after the occurrence end of each Fiscal Year, an annual operating plan for the Borrowers, on a consolidated basis, approved by the Board of Directors of the Borrowers, for the following Fiscal Year, which includes a statement of all of the material assumptions on which such plan is based, together with updated monthly Projections for the following year and updated annual Projections for the four year period commencing after such following year, all prepared in a manner consistent with the manner in which annual operating plans have previously been provided to the Administrative Agent prior to the Restatement Effective Date (and in the case of cash flow projections, representing management’s good faith estimates of future financial performance based on historical performance), and including plans for Capital Expenditures;
(g) promptly following the creation or acquisition of any Subsidiary, a certificate from Responsible Officer identifying such new Subsidiary and the ownership interest of each of the Borrowers and the Subsidiaries therein, which certificate shall further specify whether or not such Subsidiary is required to become a Guarantor;
(h) concurrently with the delivery of a Monthly Report with respect to the Monthly Fiscal Period in which a Loan Party (x) has entered into any Service Contract or (y) has purchased, leased or acquired all or any substantial part of the assets of any other Person involving Capital Expenditures in excess of $7,500,000, a certificate from a Responsible Officer (i) identifying such Service Contract or such purchase, lease or acquisition and confirming that it is a Permitted Service Contract or Permitted Business Acquisition, as the case may be and (ii) in the case of a Service Contract, providing (A) an estimate of the annual Capital Expenditures required to be made over the life of such Service Contract, (B) an estimate of the annual revenues expected to be generated from such Service Contract over the life of such Service Contract, and (C) an estimate of the first Monthly Fiscal Period in which such revenues are expected to begin being generated from such Service Contract;
(i) promptly, a copy of all reports submitted in connection with any material interim or special audit made by independent accountants of the books of Holdings, the Borrowers or any Subsidiary;
(j) within ninety (90) days after the beginning of each Annual Fiscal Period, an updated version of the schedule of insurance policies delivered as Schedule 3.21;
(k) promptly, and in any event within three Business Days after any officer of any Borrower or any of its Subsidiaries obtains knowledge thereof, notice of the occurrence of any event which constitutes a default or an event of default under the Holdings Subordinated Note Documents;
(l) promptly upon receipt thereof, and in any event within three Business Days, a copy of any written notice received by any Loan Party or Subsidiary stating or alleging that (i) such Loan Party or Subsidiary has breached its obligations under a Service Contract, (ii) any other event has occurred that permits the early termination of a Service Contract or (iii) a Service Contract has been terminated;
(m) promptly, and in any event within three Business Days after any officer of any Borrower or any of its Subsidiaries obtains knowledge thereof, (i) notice that any Service Contract has terminated prior to its stated date of termination or has not been renewed following termination at its stated date of termination, and (ii) if such Service Contract is a Significant Service Contract or a Material Service Contract, a certificate of a Financial Officer of the Borrowers demonstrating compliance with Section 6.9(e);
(n) (i) promptly (and in any event within three Business Days) after any Loan Party enters into any Service Contract (or any extension or renewal thereof) that contains any restrictions on the granting of Liens on equipment owned by any Loan Party, provide written notice to the Administrative Agent thereof, which notice shall include an estimate of the total Capital Expenditures to be made or incurred by the Loan Parties after the Restatement Effective Date with respect to any such Service Contracts that constitute New Client Service Contracts; (ii) promptly provide the Administrative Agent with written notice of the total amount of Capital Expenditures made or incurred by the Loan Parties after the Restatement Effective Date with respect to any such Service Contracts that constitute New Client Service Contracts once expended, (iii) promptly (and in any event within three Business Days) after any Non-Wholly-Owned Entity enters into any joint venture agreement or joint venture arrangement (or any extension or renewal thereof) that contains any restrictions on the granting of Liens on equipment owned by any Loan Party and purchased or acquired with Permitted Non-Wholly-Owned Entity Capital Expenditures, provide written notice to the Administrative Agent thereof, which notice shall include an estimate of the total Permitted Non-Wholly-Owned Entity Capital Expenditures to be made or incurred by the Loan Parties after the Restatement Effective Date with respect to any such joint venture agreement or joint venture arrangement; (iv) promptly provide the Administrative Agent with written notice of the total amount of Permitted Non-Wholly-Owned Entity Capital Expenditures made or incurred by the Loan Parties after the Restatement Effective Date with respect to any such joint venture agreement or joint venture arrangement of type referred to in the immediately preceding clause (iii) once expended, and (v) promptly provide the Administrative Agent with any other information that the Administrative Agent may reasonably request in order to verify compliance with the condition set forth in clause (b) of the definition of Permitted Lien Restriction and clause (b) of the definition of Permitted XX Xxxx Restriction;
(o) promptly, from time to time, such other information and reports regarding the operations, business affairs and financial condition of any Loan Party, the Collateral or compliance with the terms of any Loan Document, or such consolidating financial statements, as in each case the Administrative Agent or any Lender, acting through the Administrative Agent, may reasonably request; and
(p) within 5 Business Days after receipt thereof by any Loan Party, copies of all management letters, exception reports or similar letters or reports received by such Loan Party from its independent certified public accountants;
(q) promptly upon receipt or delivery thereof, and in any event within three (3) Business Days after such receipt or delivery, a copy of any written notice (I) received by any Loan Party or Subsidiary stating or alleging that (i) such Loan Party or Subsidiary has breached its obligations under the Merger Agreement or the Holdings Subordinated Note Indenture, (ii) any of the conditions precedent to the effectiveness of the Merger, the Tender Offer or the Indenture Modification and Noteholder Consent have not been, or are incapable of being, timely satisfied at any time and for any reason in accordance with the terms of the Merger Agreement, the Tender Offer or the Indenture Modification and Noteholder Consent, as applicable, or (iii) any other event has occurred that permits the termination of a Plan the Merger Agreement or of the Borrower Merger, or an ERISA Affiliate pursuant that permits the MergerSub or Parent (under and as defined in the Merger Agreement) to Section 4042 of ERISAnot consummate the Merger, in each case, unless the MergerSub and Parent (under and as defined the Merger Agreement) has agreed in a writing, in form and substance satisfactory to Administrative Agent, to waive the extent effect of such event and to consummate the Merger and related transactions in accordance with the terms of the Merger Agreement, (II) received by any Loan Party of termination would constitute an Event in respect of Default the Merger Agreement, the Merger or the Tender Offer, or of any written amendment or modification of the Merger Agreement entered into by any of the parties to the Merger Agreement, or (III) delivered by any Loan Party to the MergerSub or Parent (under Section 7.01(j);and as defined in the Merger Agreement) of termination in respect of the Merger or the Merger Agreement; and
(r) promptly, and in any event within one (1) Business Day thereof, (I) written notice of (i) any withdrawal or termination by Holdings of the Tender Offer, (ii) any withdrawal or termination by Holdings of the solicitation for approval of the Indenture Modification and Noteholder Consent by requisite holders of Holdings Subordinated Notes, or (iii) any extension of the time for acceptance of the Tender Offer by the holders of the Holdings Subordinated Notes, (II) written notice and copies of any modifications to any material terms of the Tender Offer or any of the documents evidencing the same, and (III) written notice and copies of any amendments or modifications to the Indenture Modification and Noteholder Consent.
Appears in 1 contract
Samples: Credit Agreement (Centerplate, Inc.)
Financial Statements, Reports, etc. The Borrower shall deliver furnish to the Administrative Agent on behalf of the LendersAgent, each Lender and each Issuing Bank:
(a) within ninety (90) 105 days after the end of each fiscal yearyear of the Borrower, Parent’s consolidated and consolidating balance sheet sheets and related statement statements of income and statements of cash flowsflow, showing the financial condition of Parent the Borrower and its consolidated Subsidiaries on a consolidated basis as of the close of such fiscal year and the results of their respective operations during such year, such consolidated financial statements of Parent to be all audited for Parent by Deloitte & Touche LLP or other independent public accountants of recognized national standing acceptable to the Required Lenders and to be accompanied by an opinion of such accountants (which opinion shall not be unqualified as to scope of such auditqualified 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 Parent and its Subsidiaries the Borrower on a consolidated basis (except as noted therein) in accordance with GAAPGAAP consistently applied; provided provided, however, that the foregoing delivery requirement Borrower shall be deemed to have satisfied the requirement to furnish such financial statements and opinion if Parent shall have and to the extent that the Borrower has, within the period specified above, (i) filed documents meeting the requirements set forth above with the SEC its Annual Report on Form 10-K for such fiscal yearSecurities and Exchange Commission, which is available to the public via XXXXX or any similar successor systemGovernmental Authority succeeding to any or all of the functions of said Commission, and (ii) posted such documents on the Borrower’s home page on the worldwide web (at the date of this Agreement, located at http//xxx.xxxxxxxxxx.xxx) (such filing and posting being referred to as “Electronic Delivery”);
(b) within forty-five (45) 50 days after the end of each of the first three fiscal quarters of each fiscal yearyear of the Borrower, Parent’s consolidated and, to the extent otherwise available, consolidating balance sheets and related statements of income and statements of cash flowsflow, showing the financial condition of Parent the Borrower and its consolidated Subsidiaries on a consolidated basis as of the close of such fiscal quarter and the results of their operations during such fiscal quarter and the then-then elapsed portion of the fiscal year, each all certified by a Responsible Financial Officer of Parent the Borrower as fairly presenting in all material respects the financial condition and results of operations of Parent and its Subsidiaries the Borrower on a consolidated basis in accordance with GAAPGAAP consistently applied, subject to normal year-end audit adjustments and the absence of footnotesadjustments; provided provided, however, that the foregoing delivery requirement Borrower shall be deemed to have satisfied the requirement to furnish such financial statements and certification if Parent shall have filed with the SEC its Quarterly Report on Form 10-Q for such fiscal quarter, which is available and to the public via XXXXX or any similar successor systemextent that the Borrower has, within the period specified above, made Electronic Delivery thereof;
(c) within the time period concurrently with any delivery of financial statements under Section 5.01(a)(a) or (b) above, (i) a certificate of the relevant accounting firm opining on or certifying such statements or of a Responsible Financial Officer of the Borrower (which certificate, when furnished by an accounting firm, may be limited to accounting matters and disclaim responsibility for legal interpretations) certifying that, to the knowledge of such Responsible the accounting firm or the Financial Officer, as the case may be, no Event of Default or Default has occurred and is continuing, or, if, to the knowledge of such Responsible Officer, such if an Event of Default or Default has occurred and is continuingoccurred, specifying the nature and extent thereof and any corrective action taken or proposed to be taken with respect thereto, and (ii) a certificate of a Financial Officer of the Borrower setting forth in reasonable detail such calculations as are required to establish whether the Borrower was in compliance with Section 6.05 on the date of such financial statements;
(d) promptly after the same become publicly available, copies of all periodic and other reports, proxy statements and other materials filed by it with the Securities and Exchange Commission, or any Governmental Authority succeeding to any of or all the functions of said Commission, or with any national securities exchange, or distributed to its shareholders, as the case may be; provided, however, that the Borrower shall be deemed to have satisfied the requirement to furnish such reports, statements and other materials if and to the extent that the Borrower has, within the time period under (a) and (b) of this Section 5.01specified above, an Officer’s Certificate demonstrating in reasonable detail compliance with Section 6.08 as of the end of the preceding fiscal quarter;made Electronic Delivery thereof; and
(e) promptly after promptly, from time to time, such other information regarding the occurrence thereofoperations, written notice of the termination of a Plan business affairs and financial condition of the Borrower or an ERISA Affiliate pursuant to Section 4042 any Significant Subsidiary, or compliance with the terms of ERISAany Loan Document, to as the extent such termination would constitute an Event of Default under Section 7.01(j);Administrative Agent, any Lender or any Issuing Bank may reasonably request.
Appears in 1 contract
Samples: Credit Agreement (Avista Corp)
Financial Statements, Reports, etc. The Borrower shall deliver furnish to Lender the Administrative Agent on behalf of the Lendersfollowing, each in such form and such detail as Lender shall reasonably request:
(ai) within ninety Within thirty (9030) days after the end of each fiscal yearmonth of Borrower, Parent’s consolidated balance sheet and related statement Financial Statements of income and cash flows, showing the financial condition of Parent and its Subsidiaries on a consolidated basis Borrower as of the close last day of such fiscal year and month, certified on behalf of Borrower by the results chief financial officer of their respective operations during such year, such consolidated financial statements of Parent Borrower to be audited for Parent by independent public accountants of recognized national standing and to be accompanied by an opinion of such accountants (which opinion shall be unqualified as to scope of such audit) to the effect that such consolidated financial statements fairly present in all material respects the financial condition and condition, results of operations of Parent and its Subsidiaries on a consolidated basis other information presented therein and to have been prepared in accordance with GAAP; provided GAAP consistently applied, subject to normal year end adjustments and except that the foregoing delivery requirement shall no footnotes need be satisfied if Parent shall have filed included with the SEC its Annual Report on Form 10-K for such fiscal year, which is available to the public via XXXXX or any similar successor systemFinancial Statements;
(bii) within Within forty-five (45) days after the end of each of the first three fiscal quarters last day of each fiscal yearquarter of Borrower, Parent’s consolidated balance sheets and related statements of income and cash flows, showing the financial condition of Parent and its Subsidiaries on a consolidated basis as copy of the close Financial Statements of Borrower for such fiscal quarter and the results of their operations during such fiscal quarter and the then-elapsed portion of for the fiscal yearyear to date, each certified on behalf of Borrower by a Responsible Officer the chief financial officer or controller of Parent as Borrower to present fairly presenting in all material respects the financial condition and condition, results of operations of Parent and its Subsidiaries on a consolidated basis other information presented therein and to have been prepared in accordance with GAAPGAAP consistently applied, subject to normal year end adjustments and except that no footnotes need be included with such Financial Statements;
(iii) Within ninety (90) days after the close of each fiscal year of Borrower, (A) copies of the audited Financial Statements of Borrower (including, without limitation, consolidated and consolidating Financial Statements for Borrower and its Subsidiaries) for such year, audited by Borrower’s current independent certified public accountants or another nationally recognized firm of public accountants that is reasonably acceptable to Lender, and (B) copies of the unqualified opinions and management letters delivered by such accountants in connection with such Financial Statements;
(iv) Contemporaneously with the quarterly and year-end audit adjustments and the absence of footnotes; provided that financial statements required by the foregoing delivery requirement shall be satisfied if Parent shall have filed with the SEC its Quarterly Report on Form 10-Q for such fiscal quarter, which is available to the public via XXXXX or any similar successor system;
clauses (cii) within the time period under Section 5.01(aand (iii), a certificate of a Responsible Officer the president or chief financial officer of the Borrower certifying that, to the knowledge of such Responsible Officer, stating that no Event of Default and no Default has occurred and is continuingoccurred, or, if, to the knowledge of if any such Responsible Officer, such an Event of Default or Default has occurred and is continuingoccurred, specifying a statement as to the nature and extent thereof and any corrective what action taken or proposed Borrower proposes to be taken take with respect thereto;
(dv) within the time period under (a) and (b) of this Section 5.01, an Officer’s Certificate demonstrating in reasonable detail compliance with Section 6.08 as Promptly after Borrower has Knowledge of the end occurrence or existence of: (A) any Reportable Event under any Employee Benefit Plan or Multiemployer Plan that reasonably could be expected to have a Material Adverse Effect; (B) any actual or threatened litigation, suits, claims or disputes against Borrower or its Subsidiaries involving potential monetary damages payable by Borrower or its Subsidiaries of One Hundred Thousand Dollars ($100,000) or more (alone or in the aggregate); (C) any other event or condition which could reasonably be expected to have a Material Adverse Effect; or (D) any Event of Default or Default; Borrower will furnish to Lender the statement of the preceding fiscal quarterpresident or chief financial officer of Borrower setting forth details of such event, condition, Event of Default or Default and the action which Borrower proposes to take with respect thereto;
(evi) promptly after Such other instruments, agreements, certificates, statements, documents and information relating to the occurrence thereof, written notice operations or condition (financial or otherwise) of the termination of a Plan of the Borrower or an ERISA Affiliate pursuant its Subsidiaries, and compliance by Borrower with the terms of this Loan Agreement and the other Loan Documents as Lender may from time to Section 4042 of ERISA, to the extent such termination would constitute an Event of Default under Section 7.01(j);time reasonably request.
Appears in 1 contract
Samples: Loan Agreement (Palm Inc)
Financial Statements, Reports, etc. The Borrower shall deliver to the Administrative Agent on behalf of the Lenders:
(a) within ninety (90) days after the end of each fiscal year, Parent’s consolidated balance sheet and related statement of income and cash flows, showing the financial condition of Parent and its Subsidiaries on a consolidated basis as of the close of such fiscal year and the results of their respective operations during such year, such consolidated financial statements of Parent to be audited for Parent by independent public accountants of recognized national standing and to be accompanied by an opinion of such accountants (which opinion shall be unqualified as to 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 Parent and its Subsidiaries on a consolidated basis in accordance with GAAP; provided that the foregoing delivery requirement shall be satisfied if Parent shall have filed with the SEC its Annual Report on Form 10-K for such fiscal year, which is available to the public via XXXXX or any similar successor system;
(b) within forty-five (45) days after the end of each of the first three fiscal quarters of each fiscal year, Parent’s consolidated balance sheets and related statements of income and cash flows, showing the financial condition of Parent and its Subsidiaries on a consolidated basis as of the close of such fiscal quarter and the results of their operations during such fiscal quarter and the then-elapsed portion of the fiscal year, each certified by a Responsible Officer of Parent as fairly presenting in all material respects the financial condition and results of operations of Parent and its Subsidiaries on a consolidated basis in accordance with GAAP, subject to normal year-end audit adjustments and the absence of footnotes; provided that the foregoing delivery requirement shall be satisfied if Parent shall have filed with the SEC its Quarterly Report on Form 10-Q for such fiscal quarter, which is available to the public via XXXXX or any similar successor system;
(c) within the time period under Section 5.01(a), a certificate of a Responsible Officer of the Borrower certifying that, to the knowledge of such Responsible Officer, no Event of Default has occurred and is continuing, or, if, to the knowledge of such Responsible Officer, such an Event of Default has occurred and is continuing, specifying the nature and extent thereof and any corrective action taken or proposed to be taken with respect thereto;
(d) within the time period under (a) and (b) of this Section 5.01, an Officer’s Certificate demonstrating in reasonable detail compliance with Section 6.08 as of the end of the preceding fiscal quarter;
(e) promptly after the occurrence thereof, written notice of the termination of a Plan of the Borrower or an ERISA Affiliate pursuant to Section 4042 of ERISA, to the extent such termination would constitute an Event of Default under Section 7.01(j7.01(k);
(f) a Collateral Coverage Ratio Certificate, as and when required under Section 6.09(a);
(g) so long as any Commitment, Loan or Letter of Credit is outstanding, promptly after the Chief Financial Officer or the Treasurer of Parent becoming aware of the occurrence of a Default or an Event of Default that is continuing, an Officer’s Certificate specifying such Default or Event of Default and what action Parent and its Subsidiaries are taking or propose to take with respect thereto;
(h) promptly after a Responsible Officer of Parent or the Borrower obtains knowledge thereof, written notice of the filing or commencement of any action, suit or proceeding by or before any arbitrator or Governmental Authority against or affecting Parent or any Subsidiary that would reasonably be expected to result in a Material Adverse Effect under clause (a) (with respect to any such action, suit or proceeding that is described by the Company or the Parent in a current report on Form 8-k filed with the SEC), (b) or (c) of the definition thereof;
(i) a Collateral Coverage Ratio Certificate as and when required under Section 6.04(ii)(D); and
(j) reasonably promptly following a request, all documentation and information reasonably requested by the Administrative Agent on behalf of a Lender, Agent or Issuing Lender solely to the extent such Lender, Agent or Issuing Lender is required to obtain such information pursuant to “know your customer” and similar laws and regulations. Any certificate to be delivered under this Section 5.01 may, at the Borrower’s option, be combined with any other certificate to be delivered under this Section 5.01 within the same time period. Subject to the next succeeding sentence, information delivered pursuant to this Section 5.01 to the Administrative Agent may be made available by the Administrative Agent to the Lenders by posting such information on the Intralinks website on the Internet at xxxx://xxx.xxxxxxxxxx.xxx. Information required to be delivered pursuant to this Section 5.01 by the Borrower (and solely in the case of Section 5.01(a) or (b) above to the extent not made available on XXXXX) shall be delivered pursuant to Section 10.01 or as set forth the in the following sentence. Information required to be delivered pursuant to this Section 5.01 (to the extent not made available as set forth above) shall be deemed to have been delivered to the Administrative Agent on the date on which the Borrower provides written notice to the Administrative Agent that such information has been posted on the Borrower’s general commercial website on the Internet (to the extent such information has been posted or is available as described in such notice), as such website may be specified by the Borrower to the Administrative Agent from time to time. Information required to be delivered pursuant to this Section 5.01 shall be in a format which is suitable for transmission. Any notice or other communication delivered pursuant to this Section 5.01, or otherwise pursuant to this Agreement, shall be deemed to contain material non-public information unless (i) expressly marked by the Borrower or a Guarantor as “PUBLIC,” (ii) such notice or communication consists of copies of the Borrower’s public filings with the SEC or (iii) such notice or communication has been posted on the Borrower’s general commercial website on the Internet, as such website may be specified by the Borrower to the Administrative Agent from time to time.
Appears in 1 contract
Samples: Credit and Guaranty Agreement (American Airlines Inc)
Financial Statements, Reports, etc. The Borrower shall deliver Furnish to the Administrative Agent on behalf of (which will promptly furnish such information to the Lenders:):
(a) within ninety (90) 90 days after the end of each fiscal yearyear (commencing with the first fiscal year ending after the Closing Date), Parent’s a consolidated balance sheet and related statement consolidated statements of income income, stockholders’ equity, and cash flows, flows showing the financial condition position of Parent the Borrower and its the Subsidiaries on (or, in the event that the Borrower becomes a consolidated basis direct or indirect wholly owned subsidiary of one or more parent companies after the Closing Date (as permitted under the definition of “Change of Control”), each such parent company, the Borrower and the Subsidiaries) as of the close of such fiscal year and the consolidated results of their respective operations during such year and setting forth in comparative form the corresponding figures for the prior fiscal year, such which consolidated financial balance sheet and related consolidated statements of Parent to income, stockholders’ equity, and cash flows shall be accompanied by customary management’s discussion and analysis and audited for Parent by independent public accountants of recognized national standing and to be accompanied by an opinion of such accountants (which opinion shall not be unqualified qualified as to scope of audit or as to the status of the Borrower or any Material Subsidiary as a going concern, other than solely with respect to, or resulting solely from, an upcoming maturity date under any series of Indebtedness incurred under or permitted by this Agreement occurring within one year from the time such auditopinion is delivered or any potential inability to satisfy a financial maintenance covenant on a future date or in a future period) to the effect that such consolidated financial statements fairly present present, in all material respects respects, the financial condition position and results of operations of Parent the Borrower and its the Subsidiaries (or, if applicable, each such parent company, the Borrower and the Subsidiaries) on a consolidated basis in accordance with GAAP; provided GAAP (it being understood that the foregoing delivery requirement shall be satisfied by the Borrower (or, if Parent shall have filed with the SEC its Annual Report applicable, each such parent company) of annual reports on Form 10-K for of the Borrower and its consolidated Subsidiaries (or, if applicable, each such fiscal yearparent company, which is available the Borrower and its consolidated Subsidiaries) shall satisfy the requirements of this Section 5.04
(a) to the public via XXXXX or any similar successor systemextent such annual reports include the information specified herein and are delivered within the time period specified above);
(b) within forty-five (45) 45 days after the end of each of the first three fiscal quarters of each fiscal yearyear (commencing with the first fiscal quarter ending after the Closing Date), Parent’s a consolidated balance sheets sheet and related consolidated statements of income and cash flows, flows showing the financial condition position of Parent the Borrower and its the Subsidiaries on (or, in the event that the Borrower becomes a consolidated basis direct or indirect wholly owned subsidiary of one or more parent companies after the Closing Date (as permitted under the definition of “Change of Control”), each such parent company, the Borrower and the Subsidiaries) as of the close of such fiscal quarter and the consolidated results of their operations during such fiscal quarter and the then-elapsed portion of the fiscal year and setting forth in comparative form the corresponding figures for the corresponding periods of the prior fiscal year, each all of which shall be in reasonable detail, which consolidated balance sheet and related consolidated statements of income and cash flows shall be accompanied by customary management’s discussion and analysis and which consolidated balance sheet and related statements of income and cash flows shall be certified by a Responsible Financial Officer of Parent the Borrower on behalf of the Borrower as fairly presenting presenting, in all material respects respects, the financial condition position and results of operations of Parent the Borrower and its the Subsidiaries (or, if applicable, each such parent company, the Borrower and the Subsidiaries) on a consolidated basis in accordance with GAAP, GAAP (subject to normal year-end audit adjustments and the absence of footnotes; provided ) (it being understood that the foregoing delivery requirement shall be satisfied by the Borrower (or, if Parent shall have filed with the SEC its Quarterly Report applicable, each such parent company) of quarterly reports on Form 10-Q for of the Borrower and its consolidated Subsidiaries (or, if applicable, each such fiscal quarterparent company, which is available the Borrower and its consolidated Subsidiaries) shall satisfy the requirements of this Section 5.04(b) to the public via XXXXX or any similar successor systemextent such quarterly reports include the information specified herein and are delivered within the time period specified above);
(c) within the time period ten (10) Business Days of any delivery of financial statements under Section 5.01(a)clause (a) or (b) above, a certificate of a Responsible Financial Officer of the Borrower (i) certifying that, to the knowledge of such Responsible Officer, that no Event of Default or Default has occurred and is continuing, since the date of the last certificate delivered pursuant to this Section 5.04(c) (or since the Closing Date in the case of the first such certificate) or, if, to the knowledge of such Responsible Officer, if such an Event of Default or Default has occurred and is continuingoccurred, specifying the nature and extent thereof and any corrective action taken or proposed to be taken with respect thereto, (ii) commencing with the end of the first full fiscal quarter after the Closing Date, setting forth computations in reasonable detail in a form reasonably satisfactory to the Administrative Agent calculating the Total Net Leverage Ratio and the Interest Coverage Ratio demonstrating compliance with the Financial Covenants (if applicable) and (iii) setting forth the calculation and uses of the Available Amount for the fiscal period then ended if the Borrower shall have used the Available Amount for any purpose during such fiscal period;
(d) within promptly after the time period under same become publicly available, copies of all periodic and other publicly available reports, proxy statements and, to the extent requested by the Administrative Agent, other materials filed by the Borrower or any of the Subsidiaries with the SEC, or distributed to its stockholders generally, as applicable; provided, however, that such reports, proxy statements, filings and other materials required to be delivered pursuant to this clause (ad) and (b) shall be deemed delivered for purposes of this Section 5.01, an Officer’s Certificate demonstrating in reasonable detail compliance with Section 6.08 as Agreement when posted to the website of the end Borrower or the website of the preceding fiscal quarterSEC;
(e) promptly after [reserved];
(f) [reserved]; and
(g) promptly, from time to time, such other customary information regarding the occurrence thereofoperations, written notice of the termination of a Plan business affairs and financial condition of the Borrower or an ERISA Affiliate any of the Subsidiaries, or compliance with the terms of any Loan Document, as in each case the Administrative Agent may reasonably request (for itself or on behalf of any Lender). The Borrower acknowledges and agrees that all financial statements furnished pursuant to Section 4042 of ERISAparagraphs (a), (b) and (d) above are hereby deemed to be Borrower Materials suitable for distribution, and to be made available, to Public Lenders as contemplated by Section 9.17 and may be treated by the extent such termination would constitute an Event of Default under Administrative Agent and the Lenders as if the same had been marked “PUBLIC” in accordance with Section 7.01(j9.17 (unless the Borrower otherwise notifies the Administrative Agent in writing on or prior to delivery thereof);.
Appears in 1 contract
Samples: Credit Agreement (Enhabit, Inc.)
Financial Statements, Reports, etc. The Borrower shall deliver Furnish to the Administrative Agent on behalf of the Lendersand each Lender:
(a) within ninety (90) 90 days after the end of each fiscal year, Parent’s a consolidated balance sheet and related sheet, statement of income and statement of cash flows, flows showing the financial condition and results of Parent operations of the Borrower and its consolidated Subsidiaries on a consolidated basis as of and for the close of such fiscal year and the results of their respective operations during such yearthen ended, such consolidated financial statements of Parent to be all audited for Parent by PricewaterhouseCoopers LLP or other independent public accountants of recognized national standing and to be accompanied by an opinion of such accountants (which opinion shall not be unqualified as to scope of such auditqualified 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 Parent the Borrower and its Subsidiaries consolidated Subsidiaries, as the case may be, on a consolidated basis in accordance with GAAP; provided provided, that documents required to be delivered under this clause (a) which are made available on the foregoing delivery requirement internet (x) on the Borrower’s website (so long as the Borrower provides notice to the Administrative Agent that such documents have been made available on such website) shall be satisfied if Parent shall have filed with deemed delivered on the SEC its Annual Report later of (i) the date such documents are made available on Form 10-K for such fiscal year, website and (ii) the date on which is available the Borrower provides such notice to the public Administrative Agent or (y) via XXXXX xxx.xxx.xxx or any similar successor systemsystem of the Securities and Exchange Commission shall be deemed delivered on the date made so available;
(b) within forty-five (45) 45 days after the end of each of the first three fiscal quarters of each fiscal year, Parent’s a consolidated balance sheets and related statements sheet, statement of income and statement of cash flows, flows showing the financial condition of Parent and its Subsidiaries on a consolidated basis as of the close of such fiscal quarter and the results of their operations during such fiscal quarter and the then-elapsed portion of the fiscal year, each certified by a Responsible Officer of Parent as fairly presenting in all material respects the financial condition and results of operations of Parent the Borrower and its consolidated Subsidiaries as of and for the fiscal quarter then ended and the then elapsed portion of the fiscal year, all certified by a Financial Officer of the Borrower as fairly presenting the financial condition and results of operations of the Borrower, as the case may be, on a consolidated basis in accordance with GAAP, subject to normal year-end audit adjustments and adjustments; provided, that documents required to be delivered under this clause (b) which are made available on the absence of footnotes; provided internet (x) on the Borrower’s website (so long as the Borrower provides notice to the Administrative Agent that the foregoing delivery requirement such documents have been made available on such website) shall be satisfied if Parent shall have filed with deemed delivered on the SEC its Quarterly Report later of (i) the date such documents are made available on Form 10-Q for such fiscal quarter, website and (ii) the date on which is available the Borrower provides such notice to the public Administrative Agent or (y) via XXXXX xxx.xxx.xxx or any similar successor systemsystem of the Securities and Exchange Commission shall be deemed delivered on the date made so available;
(c) within the time period concurrently with any delivery of financial statements under Section 5.01(a)paragraph (a) or (b) above, (i) a Ratio Certificate and (ii) a certificate of a Responsible Financial Officer of the Borrower certifying that, to the knowledge of such Responsible Officer, that no Event of Default or Default has occurred and is continuing, or, if, to the knowledge of such Responsible Officer, if such an Event of Default or Default has occurred and is continuingoccurred, specifying the nature and extent thereof and any corrective action taken or proposed to be taken with respect thereto;
(d) within promptly, after their becoming available, copies of all financial statements, stockholders reports and proxy statements that the time period Borrower shall have sent to its stockholders generally, and copies of all registration statements filed by the Borrower under the Securities Act of 1933, as amended (aother than registration statements on Form S-8 or any registration statement filed in connection with a dividend reinvestment plan), and regular and periodic reports, if any, which the Borrower shall have filed with the Securities and Exchange Commission (or any governmental agency or agencies substituted therefor) under Section 13 or Section 15(d) of the Securities and Exchange Act of 1934, as amended, or with any national securities exchange (other than those on Form 11-K or any successor form); provided, that documents required to be delivered under this clause (d) which are made available on the internet (x) on the Borrower’s website (so long as the Borrower provides notice to the Administrative Agent that such documents have been made available on such website) shall be deemed delivered on the later of (i) the date such documents are made available on such website and (bii) of this Section 5.01, an Officer’s Certificate demonstrating in reasonable detail compliance with Section 6.08 as the date on which the Borrower provides such notice to the Administrative Agent or (y) via xxx.xxx.xxx or any successor system of the end of Securities and Exchange Commission shall be deemed delivered on the preceding fiscal quarter;date made so available; and
(e) promptly after promptly, from time to time, and subject to any restrictions imposed by any Governmental Authority, such other information regarding the occurrence thereofBorrower or any Significant Subsidiary (including the operations, written notice of the termination of a Plan business affairs and financial condition of the Borrower or an ERISA Affiliate pursuant to Section 4042 any Significant Subsidiary), or compliance with the terms of ERISAthis Agreement, to as the extent such termination would constitute an Event of Default under Section 7.01(j);Administrative Agent or any Lender may reasonably request.
Appears in 1 contract
Samples: Five Year Competitive Advance and Revolving Credit Agreement (Raytheon Co/)
Financial Statements, Reports, etc. The Borrower shall deliver Furnish to the Administrative Agent on behalf of (which will promptly furnish such information to the Lenders:):
(a) within ninety (90) Within 120 days after the end of each fiscal year, Parent’s a consolidated balance sheet and related statement statements of income operations, cash flows and cash flows, owners’ equity showing the financial condition position of the Ultimate Parent and its Subsidiaries on a consolidated basis as of the close of such fiscal year and the consolidated results of their respective its operations during such year and setting forth in comparative form the corresponding figures for the prior fiscal year, such which consolidated financial balance sheet and related statements of Parent to operations, cash flows and owners’ equity shall be audited for Parent by independent public accountants of recognized national (in the United States of America) or international standing and to be accompanied by an opinion of such accountants (which opinion shall not be unqualified qualified as to scope of such auditaudit or as to the status of the Ultimate Parent as a going concern) to the effect that such consolidated financial statements fairly present present, in all material respects respects, the financial condition position and results of operations of the Ultimate Parent and its Subsidiaries on a consolidated basis in accordance with GAAP; provided that the foregoing delivery requirement shall be satisfied if Parent shall have filed with the SEC its Annual Report on Form 10-K for such fiscal year, which is available to the public via XXXXX or any similar successor systemApplicable Accounting Rules;
(b) within forty-five (45) 65 days after the end of each of the first three fiscal quarters of each fiscal yearyear beginning with the fiscal quarter ending March 31, Parent’s 2019, a consolidated balance sheets sheet and related statements of income operations and cash flows, flows showing the financial condition position of the Ultimate Parent and its Subsidiaries on a consolidated basis as of the close of such fiscal quarter and the consolidated results of their its operations during such fiscal quarter and the then-then elapsed portion of the fiscal year and setting forth in comparative form the corresponding figures for the corresponding periods of the prior fiscal year, each and which consolidated balance sheet and related statements of operations and cash flows shall be certified by a Responsible Financial Officer of the Ultimate Parent on behalf of the Ultimate Parent as fairly presenting presenting, in all material respects respects, the financial condition position and results of operations of the Ultimate Parent and its Subsidiaries on a consolidated basis in accordance with GAAP, the Applicable Accounting Rules (subject to normal year-end audit adjustments and the absence of footnotes; provided that the foregoing delivery requirement shall be satisfied if Parent shall have filed with the SEC its Quarterly Report on Form 10-Q for such fiscal quarter, which is available to the public via XXXXX or any similar successor system);
(c) within 35 days after the time period end of each fiscal month of each fiscal year (including the last fiscal month of each fiscal year) beginning with the fiscal month ending January 31, 2019, a consolidated balance sheet and related statements of operations and cash flows showing the financial position of each Borrower and its Subsidiaries as of the close of such fiscal month and the consolidated results of its operations during such fiscal month and the then elapsed portion of the fiscal year and setting forth in comparative form the corresponding figures for the corresponding periods of the prior fiscal year, and which consolidated balance sheet and related statements of operations and cash flows shall be certified by a Financial Officer of each Borrower on behalf of such Borrower as fairly presenting, in all material respects, the financial position and results of operations of such Borrower and its Subsidiaries on a consolidated basis in accordance with the Applicable Accounting Rules (subject to normal year-end audit adjustments and the absence of footnotes);
(d) concurrently with any delivery of financial statements under Section 5.01(a)paragraphs (a) or (b) above, a certificate of a Responsible Financial Officer of the each Borrower (i) certifying that, to the knowledge of such Responsible Officer, that no Event of Default or Default has occurred and is continuing, or, if, to the knowledge of such Responsible Officer, if such an Event of Default or Default has occurred and is continuingoccurred, specifying the nature and extent thereof and any corrective action taken or proposed to be taken with respect thereto, (ii) solely with respect to any fiscal period for which the average daily Availability during such fiscal period is less than 25% of the Maximum Credit, setting forth computations in reasonable detail satisfactory to the Administrative Agent of the Fixed Charge Coverage Ratio and the Minimum Borrower EBITDA Contribution, (iii) setting forth computations in reasonable detail satisfactory to the Administrative Agent of the Average Quarterly Excess Availability, (iv) certifying a list of names of all Immaterial Subsidiaries, that each Subsidiary set forth on such list individually qualifies as an Immaterial Subsidiary and that all such Subsidiaries in the aggregate do not exceed the limitation set forth in clause (ii) of the definition of the term Immaterial Subsidiary and (v) certifying a list of names of all Unrestricted Subsidiaries, that each Subsidiary set forth on such list individually qualifies as an Unrestricted Subsidiary;
(de) within 90 days after the time period under beginning of each fiscal year, a reasonably detailed consolidated annual budget for each fiscal quarter during such fiscal year (a) including a projected consolidated balance sheet of each Borrower and (b) of this Section 5.01, an Officer’s Certificate demonstrating in reasonable detail compliance with Section 6.08 its Subsidiaries as of the end of the preceding following fiscal quarteryear, and the related consolidated statements of projected cash flow and projected income), including a description of underlying assumptions with respect thereto (collectively, the “Budget”), which Budget shall in each case be accompanied by the statement of a Financial Officer of each Borrower to the effect that the Budget is based on assumptions believed by such Financial Officer to be reasonable as of the date of delivery thereof;
(ef) promptly after upon the occurrence thereof, written notice reasonable request of the termination of a Plan of the Borrower or Administrative Agent, an ERISA Affiliate pursuant to Section 4042 of ERISAupdated Perfection Certificate (or, to the extent such termination would constitute an Event request relates to specified information contained in the Perfection Certificate, such information) reflecting all changes since the date of Default under the information most recently received pursuant to this paragraph (f) or Section 7.01(j6.10(f);
(g) (i) promptly, from time to time, such other information regarding the operations, collateral, business affairs and financial condition of the Holdcos, the Borrowers or any of the Borrowers’ respective Subsidiaries, or compliance with the terms of any Loan Document, or such consolidating financial statements as in each case the Administrative Agent may reasonably request (for itself or on behalf of any Lender) and (ii) prior written notice in the event that any Borrower changes its fiscal year end or any other material change in accounting policies or financial reporting practices by any Loan Party or any Subsidiary thereof;
(h) promptly upon request by the Administrative Agent, copies of: (i) each Schedule SB or MB (Actuarial Information) to the most recent annual report (Form 5500 Series) filed with the Internal Revenue Service with respect to a Plan; (ii) the most recent actuarial valuation report for any Plan; (iii) all notices received from a Multiemployer Plan sponsor, a plan administrator or any governmental agency, or provided to any Multiemployer Plan by the Holdcos, the Borrowers, a Subsidiary or any ERISA Affiliate, concerning an ERISA Event; and (iv) such other documents or governmental reports or filings relating to any Plan or Multiemployer Plan as the Administrative Agent shall reasonably request; and
(i) Borrowing Base Certificates, at the times specified in Section 6.13.
Appears in 1 contract
Samples: Credit Agreement (Constellium N.V.)
Financial Statements, Reports, etc. The Borrower Co-Borrowers shall deliver to the Administrative Agent on behalf of the Lenders:
(a) within Within ninety (90) days after the end of each fiscal year, Parent’s consolidated balance sheet and related statement of income and cash flows, showing the financial condition of Parent and its Subsidiaries on a consolidated basis as of the close of such fiscal year and the results of their respective operations during such year, such the consolidated financial statements statement of Parent to be audited for Parent by independent public accountants of recognized national standing and to be accompanied by an opinion of such accountants (which opinion shall be unqualified without any qualification or exception as to the scope of such audit) to the effect that such consolidated financial statements fairly present in all material respects the financial condition and results of operations of Parent and its Subsidiaries on a consolidated basis in accordance with GAAP; provided that the foregoing delivery requirement shall be satisfied if Parent shall have filed with the SEC its Annual Report on Form 10-K for such fiscal year, which is available to the public via XXXXX or any similar successor system;
(b) within Within forty-five (45) days after the end of each of the first three fiscal quarters of each fiscal year, Parent’s consolidated balance sheets and related statements of income and cash flows, showing the financial condition of Parent and its Subsidiaries on a consolidated basis as of the close of such fiscal quarter and the results of their operations during such fiscal quarter and the then-then elapsed portion of the fiscal year, each certified by a Responsible Officer of the Parent as fairly presenting in all material respects the financial condition and results of operations of Parent and its Subsidiaries on a consolidated basis in accordance with GAAP, subject to normal year-year end audit adjustments and the absence of footnotes; provided that the foregoing delivery requirement shall be satisfied if Parent shall have filed with the SEC its Quarterly Report on Form 10-Q for such fiscal quarter, which is available to the public via XXXXX or any similar successor system;
(c) within Within the time period under Section 5.01(a)) above, (A) a certificate of a Responsible Officer of the Borrower Parent certifying that, to the knowledge of such Responsible Officer, no Event of Default has occurred and is continuing, or, if, to the knowledge of such Responsible Officer, such an Event of Default has occurred and is continuing, specifying the nature and extent thereof and any corrective action taken or proposed to be taken with respect theretothereto and (B) a consolidated budget for Parent and its Subsidiaries for the then current fiscal year;
(d) within Within the time period under (a) and (b) of this Section 5.01, an Officer’s Certificate a certificate of a Responsible Officer demonstrating in reasonable detail compliance with Section Sections 6.08 and 6.09(a) as of the end of the preceding fiscal quarter, including an updated calculation of the Collateral Coverage Ratio reflecting the most recent Appraisals (as adjusted for any Dispositions or additions to the Collateral since the date of delivery to the Administrative Agent of such Appraisals);
(e) promptly Within 15 days after a Responsible Officer of a Co-Borrower obtains knowledge that there has been one or more Dispositions of Collateral (excluding those described in clause (b), (d) or (e)(iv) of the definition of “Permitted Disposition”) since the date of the Officer’s Certificate demonstrating compliance with Section 6.09(a) most recently delivered under this Agreement by the Co-Borrowers to the Administrative Agent having an Appraised Value in the aggregate in excess of 10% of the aggregate Appraised Value of all Collateral, a certificate of a Responsible Officer demonstrating in reasonable detail compliance with Section 6.09(a);
(f) Promptly after the occurrence thereof, written notice of the termination of a Plan of the Borrower or an ERISA Affiliate Co-Borrowers pursuant to Section 4042 of ERISA;
(g) Promptly after a Responsible Officer obtains knowledge thereof, notice of the failure of any material assumption contained in any Appraisal to be correct, except if such failure would not reasonably be expected to materially adversely affect the Appraised Value of the applicable type of Collateral;
(h) So long as any Commitment, Loan or Letter of Credit is outstanding, promptly after the Chief Financial Officer or the Treasurer of the Parent becoming aware of the occurrence of a Default or an Event of Default that is continuing, an Officer’s Certificate specifying such Default or Event of Default and what action the Parent and its Subsidiaries are taking or propose to take with respect thereto; and
(i) Promptly, from time to time, such other information regarding the Collateral and the operations, business affairs and financial condition of either Co-Borrower or any Guarantor, in each case as the Administrative Agent, at the request of any Lender, may reasonably request (it being understood that, so long as no Event of Default shall have occurred and be continuing, the Co-Borrowers shall not be obligated to provide utilization reports with respect to Pledged Slots). Subject to the next succeeding sentence, information delivered pursuant to this Section 5.01 to the Administrative Agent may be made available by the Administrative Agent to the Lenders by posting such information on the Intralinks website on the Internet at xxxx://xxx.xxxxxxxxxx.xxx. Information required to be delivered pursuant to this Section 5.01 by the Co-Borrowers shall be delivered pursuant to Section 10.01 hereto. Information required to be delivered pursuant to this Section 5.01 (to the extent not made available as set forth above) shall be deemed to have been delivered to the Administrative Agent on the date on which a Co-Borrower provides written notice to the Administrative Agent that such information has been posted on such Co-Borrower’s general commercial website on the Internet (to the extent such termination would constitute an Event information has been posted or is available as described in such notice), as such website may be specified by such Co-Borrower to the Administrative Agent from time to time. Information required to be delivered pursuant to this Section 5.01 shall be in a format which is suitable for transmission. Any notice or other communication delivered pursuant to this Section 5.01, or otherwise pursuant to this Agreement, shall be deemed to contain material non-public information unless (i) expressly marked by a Co-Borrower or a Guarantor as “PUBLIC”, (ii) such notice or communication consists of Default under Section 7.01(j);copies of a Co-Borrower’s public filings with the SEC or (iii) such notice or communication has been posted on a Co-Borrower’s general commercial website on the Internet, as such website may be specified by such Co-Borrower to the Administrative Agent from time to time.
Appears in 1 contract
Samples: Credit and Guaranty Agreement (United Air Lines Inc)
Financial Statements, Reports, etc. The Borrower shall deliver to the Administrative Agent on behalf of the Lenders:
(a) within ninety (90) days after the end of each fiscal year, Parent’s consolidated balance sheet and related statement of income and cash flows, showing the financial condition of Parent and its Subsidiaries on a consolidated basis as of the close of such fiscal year and the results of their respective operations during such year, such consolidated financial statements of Parent to be audited for Parent by independent public accountants of recognized national standing and to be accompanied by an opinion of such accountants (which opinion opinion, for any fiscal year ending after the Plan Effective Date, shall be unqualified as to 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 Parent and its Subsidiaries on a consolidated basis in accordance with GAAP; provided that the foregoing delivery requirement shall be satisfied if Parent shall have filed with the SEC its Annual Report on Form 10-K for such fiscal year, which is available to the public via XXXXX or any similar successor system;
(b) within forty-five (45) days after the end of each of the first three fiscal quarters of each fiscal year, Parent’s consolidated balance sheets and related statements of income and cash flows, showing the financial condition of Parent and its Subsidiaries on a consolidated basis as of the close of such fiscal quarter and the results of their operations during such fiscal quarter and the then-elapsed portion of the fiscal year, each certified by a Responsible Officer of Parent as fairly presenting in all material respects the financial condition and results of operations of Parent and its Subsidiaries on a consolidated basis in accordance with GAAP, subject to normal year-end audit adjustments and the absence of footnotes; provided that the foregoing delivery requirement shall be satisfied if Parent shall have filed with the SEC its Quarterly Report on Form 10-Q for such fiscal quarter, which is available to the public via XXXXX or any similar successor system;
(c) within the time period under Section 5.01(a), a certificate of a Responsible Officer of the Borrower certifying that, to the knowledge of such Responsible Officer, no Event of Default has occurred and is continuing, or, if, to the knowledge of such Responsible Officer, such an Event of Default has occurred and is continuing, specifying the nature and extent thereof and any corrective action taken or proposed to be taken with respect thereto;
(d) within the time period under (a) and (b) of this Section 5.01, an Officer’s Certificate demonstrating in reasonable detail compliance with Section 6.08 as of the end of the preceding fiscal quarter;
(e) promptly after the occurrence thereof, written notice of the termination of a Plan of the Borrower or an ERISA Affiliate pursuant to Section 4042 of ERISA, to the extent such termination would constitute an Event of Default under Section 7.01(j7.01(k);
Appears in 1 contract
Samples: Credit and Guaranty Agreement (American Airlines Inc)
Financial Statements, Reports, etc. The Borrower shall deliver Deliver to the Administrative Agent on behalf of the Lenders:
(a) within Within ninety (90) days after the end of each fiscal year, Parentthe Borrower’s consolidated balance sheet and related statement of income and cash flows, showing the financial condition of Parent the Borrower and its Subsidiaries on a consolidated basis as of the close of such fiscal year and the results of their respective operations during such year, such the consolidated financial statements statement of Parent the Borrower to be audited for Parent the Borrower by Ernst & Young LLP or other independent public accountants of recognized national standing and to be accompanied by an opinion of such accountants (which opinion shall be unqualified without a “going concern” or like qualification or exception and without any more qualification or exception as to the scope of such audit, except for any such qualification solely as a result of (x) an impending debt maturity within twelve (12) months of the Term Loan Facility under this Agreement or (y) a potential inability to satisfy any financial covenant) and to be certified by a Responsible Officer of the Borrower to the effect that such consolidated financial statements fairly present in all material respects the financial condition and results of operations of Parent the Borrower and its Subsidiaries on a consolidated basis in accordance with GAAP; provided that . Documents required to be delivered pursuant to this clause (a) which are made publicly available via XXXXX, or any successor system of the foregoing delivery requirement shall be satisfied if Parent shall have filed with SEC, in the SEC its Borrower’s Annual Report on Form 10-K for such fiscal yearK, which is available shall be deemed delivered to the public via XXXXX or any similar successor systemLenders on the date such documents are made so available;
(b) within Within forty-five (45) days after the end of each of the first three (3) fiscal quarters of each fiscal year, Parentthe Borrower’s consolidated balance sheets and related statements of income and cash flows, showing the financial condition of Parent the Borrower and its Subsidiaries on a consolidated basis as of the close of such fiscal quarter and the results of their operations during such fiscal quarter and the then-then elapsed portion of the fiscal year, each certified by a Responsible Officer of Parent the Borrower as fairly presenting in all material respects the financial condition and results of operations of Parent the Borrower and its Subsidiaries on a consolidated basis in accordance with GAAP, subject to normal year-end audit adjustments and the absence of footnotes; provided that . Documents required to be delivered pursuant to this clause (b) which are made publicly available via XXXXX, or any successor system of the foregoing delivery requirement shall be satisfied if Parent shall have filed with SEC, in the SEC its Borrower’s Quarterly Report on Form 10-Q for such fiscal quarterQ, which is available shall be deemed delivered to the public via XXXXX or any similar successor systemLenders on the date such documents are made so available;
(c) within the time period concurrently with any delivery of financial statements under Section 5.01(a)(a) and (b) above, a certificate of a Responsible Officer of the Borrower (in substantially the form of Exhibit A) (i) certifying that, to the knowledge of such Responsible Officer, no Event of Default has occurred and is continuingoccurred, or, if, to the knowledge of such Responsible Officer, such an Event of Default has occurred and is continuingoccurred, 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 provisions of Sections 6.03 and 6.04;
(d) within the time period under (a) and (b) of this Section 5.01, an Officer’s Certificate demonstrating in reasonable detail compliance with Section 6.08 as of the end of the preceding fiscal quarter;
(e) promptly after the occurrence thereof, prompt written notice of the termination of a Plan of the Borrower any Termination Event that has occurred, or an ERISA Affiliate pursuant is reasonably expected to Section 4042 of ERISAoccur, to the extent such termination Termination Event would constitute an Event of Default under Section 7.01(j7.01(l); #10384228v33
(e) promptly after a Responsible Officer of the Borrower obtains knowledge of the filing or commencement of any action, suit or proceeding by or before any arbitrator or Governmental Authority against or affecting the Borrower or any Subsidiary that could reasonably be expected to result in a Material Adverse Effect, notification thereof;
(f) (i) on the date on which any Investment Property that is not listed on a national securities exchange is initially included as Additional Pool Assets, an Officer’s Certificate from the Borrower, in form and substance reasonably satisfactory to the Administrative Agent, setting forth the book value of such Investment Property as of the last day of the month most recently ended, together with all supporting documents with respect to such Investment Property as the Administrative Agent may reasonably request and (ii) at any time thereafter that any Investment Property that is not listed on a national securities exchange shall be included as Additional Pool Assets, concurrently with any delivery of financial statements under clause (a) or (b) above in respect of each fiscal quarter of the Borrower, an Officer’s Certificate from the Borrower, in form and substance reasonably satisfactory to the Administrative Agent, setting forth the book value of such Investment Property as of the last day of such fiscal quarter, together with all supporting documents with respect to such Investment Property as the Administrative Agent may reasonably request; and
(g) if an Event of Default has occurred and is continuing, any subsequent Appraisal Report reasonably requested by the Administrative Agent or the Required Lenders, in each case as soon as reasonably practicable after receipt by the Borrower of such request. Subject to the next succeeding sentence, information delivered pursuant to this Section 5.01 to the Administrative Agent may be made available by the Administrative Agent to the Lenders by posting such information on the Intralinks website on the Internet at xxxx://xxx.xxxxxxxxxx.xxx. Information delivered pursuant to this Section 5.01 may also be delivered by electronic communication pursuant to procedures approved by the Administrative Agent pursuant to Section 10.01 hereto. Information required to be delivered pursuant to this Section 5.01 (to the extent not made available as set forth above) shall be deemed to have been delivered to the Administrative Agent on the date on which the Borrower provides written notice to the Administrative Agent that such information has been posted on the Borrower’s website on the Internet at xxxx://xxx.xxxxx.xxx (to the extent such information has been posted or is available as described in such notice). Information required to be delivered pursuant to this Section 5.01 shall be in a format which is suitable for transmission. Any notice or other communication delivered pursuant to this Section 5.01, or otherwise pursuant to this Agreement, shall be deemed to contain material non-public information unless (i) expressly marked by the Borrower as “PUBLIC”, (ii) such notice or communication consists of copies of the Borrower’s public filings with the SEC or (iii) such notice or communication has been posted on the Borrower’s website on the Internet at xxxx://xxx.xxxxx.xxx.
Appears in 1 contract
Samples: 364 Day Term Loan Credit Agreement (Delta Air Lines, Inc.)
Financial Statements, Reports, etc. The Borrower shall deliver Deliver to the Administrative Agent on behalf of the Lenders:
(a) within Within ninety (90) days after the end of each fiscal year, Parentthe Borrower’s consolidated balance sheet and related statement of income and cash flows, showing the financial condition of Parent the Borrower and its Subsidiaries on a consolidated basis as of the close of such fiscal year and the results of their respective operations during such year, such the consolidated financial statements statement of Parent the Borrower to be audited for Parent the Borrower by Xxxxx & Young LLP or other independent public accountants of recognized national standing and to be accompanied by an opinion of such accountants (which opinion shall be unqualified without a “going concern” or like qualification or exception and without any more qualification or exception as to the scope of such audit, except for any such qualification solely as a result of (x) an impending debt maturity within twelve (12) months of the Term Loan Facility under this Agreement or (y) a potential inability to satisfy any financial covenant) and to be certified by a Responsible Officer of the Borrower to the effect that such consolidated financial statements fairly present in all material respects the financial condition and results of operations of Parent the Borrower and its Subsidiaries on a consolidated basis in accordance with GAAP; provided that . Documents required to be delivered pursuant to this clause (a) which are made publicly available via XXXXX, or any successor system of the foregoing delivery requirement shall be satisfied if Parent shall have filed with SEC, in the SEC its Borrower’s Annual Report on Form 10-K for such fiscal yearK, which is available shall be deemed delivered to the public via XXXXX or any similar successor systemLenders on the date such documents are made so available;
(b) within Within forty-five (45) days after the end of each of the first three (3) fiscal quarters of each fiscal year, Parentthe Borrower’s consolidated balance sheets and related statements of income and cash flows, showing the financial condition of Parent the Borrower and its Subsidiaries on a consolidated basis as of the close of such fiscal quarter and the results of their operations during such fiscal quarter and the then-then elapsed portion of the fiscal year, each certified by a Responsible Officer of Parent the Borrower as fairly presenting in all material respects the financial condition and results of operations of Parent the Borrower and its Subsidiaries on a consolidated basis in accordance with GAAP, subject to normal year-end audit adjustments and the absence of footnotes; provided that . Documents required to be delivered pursuant to this clause (b) which are made publicly available via XXXXX, or any successor system of the foregoing delivery requirement shall be satisfied if Parent shall have filed with SEC, in the SEC its Borrower’s Quarterly Report on Form 10-Q for such fiscal quarterQ, which is available shall be deemed delivered to the public via XXXXX or any similar successor systemLenders on the date such documents are made so available;
(c) within the time period under Section 5.01(a), a certificate concurrently with any delivery of a Responsible Officer of the Borrower certifying that, to the knowledge of such Responsible Officer, no Event of Default has occurred and is continuing, or, if, to the knowledge of such Responsible Officer, such an Event of Default has occurred and is continuing, specifying the nature and extent thereof and any corrective action taken or proposed to be taken with respect thereto;
(d) within the time period financial statements under (a) and (b) of this Section 5.01, an Officer’s Certificate demonstrating in reasonable detail compliance with Section 6.08 as of the end of the preceding fiscal quarter;
(e) promptly after the occurrence thereof, written notice of the termination of a Plan of the Borrower or an ERISA Affiliate pursuant to Section 4042 of ERISA, to the extent such termination would constitute an Event of Default under Section 7.01(j);and
Appears in 1 contract
Samples: Term Loan Credit Agreement
Financial Statements, Reports, etc. The Borrower shall deliver Furnish to the Administrative Agent on behalf of (which will promptly furnish such information to the Lenders:):
(a) within ninety (90) 120 days after the end of the fiscal year ended December 31, 2007, and within 90 days (or such shorter period as the SEC shall specify for the filing of Annual Reports on Form 10-K) after the end of each subsequent fiscal year, Parent’s a consolidated balance sheet and related statement statements of income operations, cash flows and cash flows, owners’ equity showing the financial condition position of Parent Domestic Borrower and its Subsidiaries on a consolidated basis as of the close of such fiscal year and the consolidated results of their respective operations during such year and setting forth in comparative form the corresponding figures for the prior fiscal year, such consolidated financial statements of Parent to be all audited for Parent by independent public accountants of recognized national standing reasonably acceptable to the Administrative Agent and to be accompanied by an opinion of such accountants (which opinion shall not be unqualified as to scope of such auditqualified in any material respect) to the effect that such consolidated financial statements fairly present present, in all material respects respects, the financial condition position and results of operations of Parent Domestic Borrower and its Subsidiaries on a consolidated basis in accordance with GAAP; provided GAAP (it being understood that the foregoing delivery requirement shall be satisfied if Parent shall have filed with the SEC its by Domestic Borrower of Annual Report Reports on Form 10-K for such fiscal year, which is available of Domestic Borrower and its consolidated Subsidiaries shall satisfy the requirements of this Section 5.04(a) to the public via XXXXX or any similar successor system;extent such Annual Reports include the information specified herein).
(b) within forty45 days (or such shorter period as the SEC shall specify for the filing of Quarterly Reports on Form 10-five (45Q) days after the end of each of the first three fiscal quarters of each fiscal year, Parent’s a consolidated balance sheets sheet and related statements of income operations and cash flows, flows showing the financial condition position of Parent Domestic Borrower and its Subsidiaries on a consolidated basis as of the close of such fiscal quarter and the consolidated results of their operations during such fiscal quarter and the then-elapsed portion of the fiscal year and setting forth in comparative form the corresponding figures for the corresponding periods of the prior fiscal year, each all certified by a Responsible Financial Officer of Parent Domestic Borrower, on behalf of Domestic Borrower, as fairly presenting presenting, in all material respects respects, the financial condition position and results of operations of Parent Domestic Borrower and its Subsidiaries on a consolidated basis in accordance with GAAP, GAAP (subject to normal year-end audit adjustments and the absence of footnotes; provided ) (it being understood that the foregoing delivery requirement shall be satisfied if Parent shall have filed with the SEC its by Domestic Borrower of Quarterly Report Reports on Form 10-Q for such fiscal quarter, which is available of Domestic Borrower and its consolidated Subsidiaries shall satisfy the requirements of this Section 5.04(b) to the public via XXXXX or any similar successor systemextent such Quarterly Reports include the information specified herein);
(c) within the time period (x) concurrently with any delivery of financial statements under Section 5.01(a)(a) or (b) above, a certificate of a Responsible Financial Officer of the Domestic Borrower (i) certifying that, to the knowledge of such Responsible Officer, that no Event of Default or Default has occurred and is continuing, or, if, to the knowledge of such Responsible Officer, if such an Event of Default or Default has occurred and is continuingoccurred, specifying the nature and extent thereof and any corrective action taken or proposed to be taken with respect theretothereto and (ii) commencing with the fiscal period ending September 30, 2007 setting forth computations in reasonable detail satisfactory to the Administrative Agent demonstrating compliance with the covenants contained in Sections 6.10, 6.11 and 6.12 and (y) concurrently with any delivery of financial statements under (a) above, a certificate of the accounting firm opining on or certifying such statements stating whether they obtained knowledge during the course of their examination of such statements of any Default or Event of Default (which certificate may be limited to accounting matters and disclaims responsibility for legal interpretations);
(d) within promptly after the time period under same become publicly available, copies of all periodic and other publicly available reports, proxy statements and, to the extent requested by the Administrative Agent, other materials filed by any Borrower or any of the Subsidiaries with the SEC or distributed to its stockholders generally, as applicable;
(e) if, as a result of any change in accounting principles and policies from those as in effect on the Closing Date, the consolidated financial statements of Domestic Borrower and its Subsidiaries delivered pursuant to paragraphs (a) or (b) above will differ in any material respect from the consolidated financial statements that would have been delivered pursuant to such clauses had no such change in accounting principles and policies been made, then, together with the first delivery of financial statements pursuant to paragraph (a) and (b) above following such change, a schedule prepared by a Financial Officer on behalf of this Section 5.01, an Officer’s Certificate demonstrating in reasonable detail compliance with Section 6.08 as of Domestic Borrower reconciling such changes to what the end of the preceding fiscal quarterfinancial statements would have been without such changes;
(ef) promptly within 90 days after the occurrence thereofbeginning of each fiscal year, written notice an operating and capital expenditure budget, in form satisfactory to the Administrative Agent prepared by the Domestic Borrower for each of the termination four fiscal quarters of such fiscal year prepared in reasonable detail, of the Domestic Borrower and the Subsidiaries, accompanied by the statement of a Plan Financial Officer of the Domestic Borrower or an ERISA Affiliate pursuant to Section 4042 the effect that, to the best of ERISAhis 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 termination would constitute an Event request relates to specified information contained in the Perfection Certificates, such information) reflecting all changes since the date of Default under the information most recently received pursuant to this paragraph (g) or Section 7.01(j5.10(d);
(h) promptly, a copy of all reports submitted to the Board of Directors (or any committee thereof) of any Borrower or any Subsidiary in connection with any material interim or special audit made by independent accountants of the books of any Borrower or any Subsidiary;
(i) promptly, from time to time, such other information regarding the operations, business affairs and financial condition of any Borrower or any of the Subsidiaries, or compliance with the terms of any Loan Document, or such consolidating financial statements, as in each case the Administrative Agent may reasonably request (for itself or on behalf of any Lender); 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 shall reasonably request.
Appears in 1 contract
Financial Statements, Reports, etc. The Borrower shall deliver Furnish to the Administrative Agent on behalf of (which will promptly furnish such information to the Lenders:):
(a) within ninety (90) 90 days after the end of each fiscal yearyear of the Borrower, Parent’s a consolidated balance sheet and related statement statements of income operations, cash flows and cash flows, owners’ equity showing the financial condition position of Parent the Borrower and its Subsidiaries on a consolidated basis as of the close of such fiscal year and the consolidated results of their respective its operations during such year and setting forth in comparative form the corresponding figures for the prior fiscal year, such which consolidated financial balance sheet and related statements of Parent to operations, cash flows and owners’ equity shall be audited for Parent by independent public accountants of recognized national standing and to be accompanied by an opinion of such accountants (which opinion shall not be unqualified qualified as to scope of such audit) , or as to the status of the Borrower or any Material Subsidiary as a “going concern” to the effect that such consolidated financial statements fairly present present, in all material respects respects, the financial condition position and results of operations of Parent the Borrower and its Subsidiaries on a consolidated basis in accordance with GAAP; provided GAAP (other than any qualification or exception that is expressed solely with respect to, or resulting solely from, (i) an upcoming maturity date under any Indebtedness or (ii) any potential inability to satisfy a financial maintenance covenant on a future date or in a future period) (it being understood that the foregoing delivery requirement shall be satisfied if Parent shall have filed filing by the Borrower of annual reports on Form 10 K of the Borrower and its consolidated Subsidiaries with the SEC its Annual Report on Form 10-K for such fiscal year, which is available shall satisfy the requirements of this Section 5.04(a) to the public via XXXXX or any similar successor systemextent such annual reports include the information specified herein);
(b) within forty-five (45) 45 days after the end of each of the first three fiscal quarters quarterly periods of each fiscal yearyear of the Borrower, Parent’s a consolidated balance sheets sheet and related statements of income operations and cash flows, flows showing the financial condition position of Parent the Borrower and its Subsidiaries on a consolidated basis as of the close of such fiscal quarter and the consolidated results of their its operations during such fiscal quarter and the then-elapsed portion of the fiscal year and setting forth in comparative form the corresponding figures for the corresponding periods of the prior fiscal year, each all of which shall be in reasonable detail and which consolidated balance sheet and related statements of operations and cash flows shall be certified by a Responsible Financial Officer of Parent the Borrower on behalf of the Borrower as fairly presenting presenting, in all material respects respects, the financial condition position and results of operations of Parent the Borrower and its Subsidiaries on a consolidated basis in accordance with GAAP, GAAP (subject to normal year-end audit adjustments and the absence of footnotes; provided ) (it being understood that the foregoing delivery requirement shall be satisfied if Parent shall have filed with filing by the SEC its Quarterly Report Borrower of quarterly reports on Form 10-Q for such fiscal quarter, which is available of the Borrower and its consolidated Subsidiaries with the SEC shall satisfy the requirements of this Section 5.04(b) to the public via XXXXX or any similar successor systemextent such quarterly reports include the information specified herein);
(c) within the time period concurrently with any delivery of financial statements under Section 5.01(a)paragraphs (a) or (b) above, a certificate of a Responsible Financial Officer of the Borrower (i) certifying that, to the knowledge of such Responsible Officer, that no Event of Default or Default has occurred and is continuing, or, if, to the knowledge of such Responsible Officer, if such an Event of Default or Default has occurred and is continuingoccurred, specifying the nature and extent thereof and any corrective action taken or proposed to be taken with respect thereto, (ii) setting forth computations in reasonable detail satisfactory to the Administrative Agent demonstrating compliance with the Financial Performance Covenant, (iii) setting forth the calculation and uses of the Cumulative Credit for the fiscal period then ended, (iv) certifying a list of names of all Immaterial Subsidiaries, that each Subsidiary set forth on such list individually qualifies as an Immaterial Subsidiary and that all such Subsidiaries in the aggregate do not exceed the limitation set forth in clause (b) of the definition of the term “Immaterial Subsidiary” and (v) certifying a list of names of all Unrestricted Subsidiaries and that each Subsidiary set forth on such list individually qualifies as an Unrestricted Subsidiary;
(d) promptly after the same become publicly available, copies of all periodic and other publicly available reports, proxy statements and, to the extent requested by the Administrative Agent, other materials filed by Holdings, the Borrower or any of the Subsidiaries with the SEC, or distributed to its stockholders generally, as applicable; provided, however, that such reports, proxy statements, filings and other materials required to be delivered pursuant to this clause (d) shall be deemed delivered for purposes of this Agreement when posted to the website of the Borrower;
(e) within 90 days after the beginning of each fiscal year of the Borrower, a reasonably detailed consolidated annual budget for such fiscal year (including a projected consolidated balance sheet of the Borrower and its Subsidiaries as of the end of such fiscal year, and the related consolidated statements of projected cash flow and projected income), including a description of underlying assumptions with respect thereto (collectively, the “Budget”), which Budget shall in each case be accompanied by the statement of a Financial Officer of the Borrower to the effect that, the Budget is based on assumptions believed by such Financial Officer to be reasonable as of the date of delivery thereof;
(f) upon the reasonable request of the Administrative Agent, an updated Perfection Certificate (or, to the extent such request relates to specified information contained in the Perfection Certificate, such information) reflecting all changes since the date of the information most recently received pursuant to this paragraph (f) or Section 5.09(f);
(g) promptly, from time period under to time, such other information regarding the operations, business affairs and financial condition of Holdings, the Borrower or any of the Subsidiaries, or compliance with the terms of any Loan Document, as in each case the Administrative Agent may reasonably request (for itself or on behalf of any Lender);
(h) in the event that (i)(a) in respect of the Senior Unsecured Notes or the Senior SubordinatedExchangeable Notes, and any Permitted Refinancing Indebtedness with respect thereto, the rules and regulations of the SEC or (b) the indentures governing any secured or unsecured notes of the Borrower, permit the Borrower, Holdings or any Parent Entity to report at Holdings’ or such Parent Entity’s level on a consolidated basis and (ii) Holdings or such Parent Entity, as the case may be, is not engaged in any business or activity, and does not own any material assets or have other material liabilities, other than cash and cash equivalents and those incidental to its ownership directly or indirectly of the Equity Interests of the Borrower and the incurrence of Indebtedness for borrowed money (and, without limitation on the foregoing, does not have any subsidiaries other than the Borrower and the Borrower’s Subsidiaries and any direct or indirect parent companies of the Borrower that are not engaged in any other business or activity and do not hold any other assets or have any liabilities except as indicated above) such consolidated reporting at such Parent Entity’s level in a manner consistent with that described in paragraphs (a) and (b) of this Section 5.01, an Officer’s Certificate demonstrating in reasonable detail 5.04 for the Borrower (together with a reconciliation showing the adjustments necessary to determine compliance by the Borrower and its Subsidiaries with Section 6.08 as the Financial Performance Covenant) shall satisfy the requirements of such paragraphs; and
(i) upon the request of the end Administrative Agent, copies of the preceding fiscal quarter;
(eany documents described in Sections 101(k) promptly after the occurrence thereof, written notice or 101(l) of the termination of a Plan of ERISA that the Borrower or an any ERISA Affiliate pursuant or Subsidiary may request with respect to Section 4042 any Multiemployer Plan; provided, that if the Borrower or any of ERISAits ERISA Affiliates or Subsidiaries have not requested such documents or notices from the administrator or sponsor of the applicable Multiemployer Plan, then, upon reasonable written request of the Administrative Agent, the Borrower and/or its ERISA Affiliates or Subsidiaries shall promptly make a request for such documents or notices from such administrator or sponsor and the Borrower shall provide copies of such documents and notices to the extent such termination would constitute an Event of Default under Section 7.01(j);Administrative Agent promptly after receipt thereof.
Appears in 1 contract
Samples: Amendment to Credit Agreement (Anywhere Real Estate Group LLC)
Financial Statements, Reports, etc. The Each Borrower shall deliver furnish to Agent the Administrative following, each in such form and such detail as Agent on behalf of or the LendersRequired Lenders shall reasonably request:
(ai) within ninety (90) days after the end of each fiscal year, Parent’s consolidated balance sheet As soon as available and related statement of income and cash flows, showing the financial condition of Parent and its Subsidiaries on a consolidated basis as of the close of such fiscal year and the results of their respective operations during such year, such consolidated financial statements of Parent to be audited for Parent by independent public accountants of recognized national standing and to be accompanied by an opinion of such accountants (which opinion shall be unqualified as to 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 Parent and its Subsidiaries on a consolidated basis in accordance with GAAP; provided that the foregoing delivery requirement shall be satisfied if Parent shall have filed with the SEC its Annual Report on Form 10-K for such fiscal year, which is available to the public via XXXXX or any similar successor system;
(b) within no event later than forty-five (45) days after the end of each of the first three fiscal quarters last day of each fiscal yearquarter of FIL, Parent’s consolidated balance sheets and related statements a copy of income and cash flows, showing the financial condition Financial Statements of Parent FIL and its Subsidiaries (prepared on a consolidated basis as of the close of basis) for such fiscal quarter and the results of their operations during such fiscal quarter and the then-elapsed portion of for the fiscal yearyear to date, each certified by a Responsible Officer the chief financial officer, treasurer or controller of Parent as FIL to present fairly presenting in all material respects the financial condition and condition, results of operations of Parent and its Subsidiaries on a consolidated basis other information reflected therein and to have been prepared in accordance with GAAP, GAAP (subject to normal year-end audit adjustments and the absence of footnotes; provided that the foregoing delivery requirement shall be satisfied if Parent shall have filed with the SEC its Quarterly Report on Form 10-Q for such fiscal quarter, which is available to the public via XXXXX or any similar successor systemadjustments);
(cii) within As soon as available and in no event later than ninety (90) days after the time period under Section 5.01(aclose of each fiscal year of FIL, (A) copies of the audited Financial Statements of FIL and its Subsidiaries (prepared on a consolidated and consolidating basis) for such year, audited by independent certified public accountants of recognized national standing reasonably acceptable to Agent, (B) copies of the unqualified opinions (or qualified opinions reasonably acceptable to Agent) and (C) if available from such accountants, certificates of such accountants to Agent stating that in making the examination necessary for their opinion they have reviewed this Agreement and have obtained no knowledge of any Default which has occurred and is continuing, or if, in the opinion of such accountants, a Default has occurred and is continuing, a statement as to the nature thereof;
(iii) Contemporaneously with the quarterly and year-end Financial Statements required by the foregoing clauses (i) and (ii), a compliance certificate of the chief financial officer, treasurer or controller of FIL and each Borrower (a Responsible Officer of the Borrower certifying that, to the knowledge of such Responsible Officer, "Compliance Certificate") which (A) states that no Event of Default has occurred and is continuing, or, if, to the knowledge of if any such Responsible Officer, such an Event of Default has occurred and is continuing, specifying a statement as to the nature and extent thereof and what action Borrowers propose to take with respect thereto; and (B) sets forth, for the quarter or year covered by such Financial Statements or as of the last day of such quarter or year (as the case may be), the calculation of the financial ratios and tests provided in the FIL Credit Agreement;
(iv) As soon as possible and in no event later than five (5) Business Days after any corrective officer of such Borrower knows of the occurrence or existence of (A) any Reportable Event under any Employee Benefit Plan or Multiemployer Plan; (B) any actual or threatened litigation, suits, claims or disputes against either Borrower or any of its Subsidiaries involving potential monetary damages payable by either Borrower or its Subsidiaries of $10,000,000 or more (alone or in the aggregate); (C) any other event or condition which is reasonably and substantially likely to have a Material Adverse Effect; or (D) any Default; the statement of the chief financial officer, treasurer or controller of such Borrower setting forth details of such event, condition or Default and the action taken or proposed which such Borrower proposes to be taken take with respect thereto;
(dv) within As soon as available and in no event later than five (5) Business Days after they are sent, made available or filed, copies of (A) all registration statements and reports filed by either Borrower or any of their Affiliates with the time period under United States Securities and Exchange Commission (a) including, without limitation, all 10-Q, 10-K and 8-K reports); and (bB) all reports, proxy statements and financial statements sent or made available by either Borrower or any of this Section 5.01, an Officer’s Certificate demonstrating in reasonable detail compliance with Section 6.08 as of the end of the preceding fiscal quartertheir Affiliates to its security holders;
(evi) promptly As soon as possible and in no event later than (A) forty-five (45) days after the occurrence thereoflast day of each fiscal quarter (or ninety (90) days in the case of the last fiscal quarter of each fiscal year), written notice of any new Subsidiary acquired or established directly or indirectly by FIL during such quarter, any new Equity Securities of any existing Subsidiary acquired directly or indirectly by FIL during such quarter or any other change in the termination information set forth in Schedule 4.01(o) during such quarter; and (B) ten (10) days after the date that any entity becomes a Material Subsidiary, written notice setting forth each Subsidiary of FIL that has become a Plan Material Subsidiary and indicating for each such new Material Subsidiary whether such Material Subsidiary is an Eligible Material Subsidiary or Ineligible Material Subsidiary;
(vii) As soon as available and in no event later than five (5) Business Days after either Borrower changes its legal name or the address of its chief executive office, written notice setting forth such Borrower's new legal name and/or new address; and
(viii) Such other instruments, agreements, certificates, opinions, statements, documents and information relating to the operations or condition (financial or otherwise) of FIL, such Borrower or an ERISA Affiliate pursuant their Subsidiaries, and compliance by such Borrower with the terms of this Agreement and the other Credit Documents as Agent may from time to Section 4042 of ERISA, to the extent such termination would constitute an Event of Default under Section 7.01(j);time reasonably request.
Appears in 1 contract
Financial Statements, Reports, etc. The Borrower shall deliver Deliver to the Administrative Agent Agents on behalf of the Lenders:
(a) within ninety (90) Within 90 days after the end of each fiscal year, the Parent’s consolidated balance sheet and related statement of income and cash flows, showing the financial condition of the Parent and its Subsidiaries on a consolidated basis as of the close of such fiscal year and the results of their respective operations during such year, such the consolidated financial statements statement of the Parent to be audited for the Parent by Deloitte and Touche LP or other independent public accountants of recognized national standing and to be accompanied by an opinion of such accountants (which opinion shall be unqualified without a “going concern” or like qualification or exception and without any qualification or exception (other than with respect to the 2004 audit and the 2005 audit) as to the scope of such audit) and to be certified by a Responsible Officer of the Parent to the effect that such consolidated financial statements fairly present in all material respects the financial condition and results of operations of the Parent and its Subsidiaries on a consolidated basis in accordance with GAAP; provided that documents required to be delivered pursuant to this clause (a) which are made available via XXXXX, or any successor system of the foregoing delivery requirement shall be satisfied if Parent shall have filed with SEC, on the SEC its Parent’s Annual Report on Form 10-K for shall be deemed delivered when made so available and shall constitute notice that such fiscal year, which is available to the public via XXXXX or any similar successor systemdocuments have been made so available;
(b) within forty-five (45) Within 45 days after the end of each of the first three fiscal quarters of each fiscal yearquarters, the Parent’s consolidated balance sheets and related statements of income and cash flows, showing the financial condition of the Parent and its Subsidiaries on a consolidated basis as of the close of such fiscal quarter and the results of their operations during such fiscal quarter and the then-then elapsed portion of the fiscal year, each certified by a Responsible Officer of the Parent as fairly presenting in all material respects the financial condition and results of operations 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; provided that documents required to be delivered pursuant to this clause (b) which are made available via XXXXX, or any successor system of the foregoing delivery requirement shall be satisfied if Parent shall have filed with SEC, on the SEC its Quarterly Parent’s Annual Report on Form 10-Q for K shall be deemed delivered when made so available and shall constitute notice that such fiscal quarter, which is available to the public via XXXXX or any similar successor systemdocuments have been made so available;
(ci) within the time period concurrently with any delivery of financial statements under Section 5.01(a)(a) and (b) above, a certificate of a Responsible Officer an Officer’s Certificate of the Borrower Parent (A) certifying that, that to the knowledge of such Responsible Officer’s knowledge, after due inquiry, no Event of Default or event which upon notice or lapse of time or both would constitute an Event of Default has occurred and is continuingoccurred, or, if, to the knowledge of such Responsible Officer, if such an Event of Default or event has occurred and is continuingoccurred, specifying the nature and extent thereof and any corrective action taken or proposed to be taken with respect thereto, (B) setting forth computations in reasonable detail satisfactory to the Agents demonstrating compliance with the provisions of Sections 6.04, 6.05 and 6.06, to the extent applicable, and (C) stating whether any change in GAAP or in the application thereof has occurred since the date of the audited financial statements referred to in Section 3.05 and, if any such change has occurred, specifying the effect of such change on the financial statements accompanying such certificate; (ii) concurrently with any delivery of financial statements under (a) above, a certificate of a Responsible Officer of the Parent certifying that all direct and indirect Subsidiaries of the Parent incorporated or organized in the United States as of such date (other than Immaterial Subsidiaries) have become Guarantors hereunder; and (iii) concurrently with any delivery of financial statements under (a) above to the extent the accountants will so provide, a certificate (which certificate may be limited to accounting matters and disclaim responsibility for legal interpretations) of the accountants auditing the consolidated financial statements delivered under (a) above certifying that, in the course of the regular audit of the business of the Parent and its Subsidiaries, such accountants have obtained no knowledge that an Event of Default under Sections 6.04, 6.05 or 6.06 has occurred and is continuing or if, in the opinion of such accountants, such an Event of Default has occurred and is continuing, specifying the nature thereof and all relevant facts with respect thereto;
(d) promptly after the same become publicly available, copies of all registration statements and all periodic and other reports, proxy statements and other materials filed by it with the Securities and Exchange Commission, or any governmental authority succeeding to any of or all the functions of said commission, or with any national securities exchange, as the case may be; provided that documents required to be delivered pursuant to this clause (d) which are made available via XXXXX, or any successor system of the SEC, shall be deemed delivered when made so available and shall constitute notice that such documents have been made so available;
(e) Within sixty (60) days from the last Business Day of the immediately preceding fiscal year, a detailed consolidated budget for the following 12-month period (including a projected consolidated balance sheet and related statements of projected operations and cash flow for such period) and, promptly when available, any significant revisions of such budget;
(f) as soon as available and in any event within fifteen (15) Business Days after the Borrower or any of its ERISA Affiliates knows that any Termination Event has occurred that would, individually or in the aggregate, have a Material Adverse Effect, a statement of a Responsible Officer of the Borrower describing the full details of such Termination Event and the action, if any, which the Borrower or such ERISA Affiliate is required or proposes to take with respect thereto, together with any notices required or proposed to be given to or filed with or by the Borrower, the ERISA Affiliate, the PBGC, a Plan participant or the Plan administrator with respect thereto;
(g) promptly and in any event within fifteen (15) Business Days after receipt thereof by the Borrower or any of its ERISA Affiliates from the PBGC copies of each notice received by the Borrower or any such ERISA Affiliate of the PBGC’s intention to terminate any Single Employer Plan of the Borrower or such ERISA Affiliate or to have a trustee appointed to administer any such Plan;
(h) if requested by either Agent (in consultation with the other 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 Plan of the Borrower or any of its ERISA Affiliates;
(i) within fifteen (15) Business Days after notice is given or required to be given to the PBGC under Section 302(f)(4)(A) of ERISA of the failure of the Borrower or any of its ERISA Affiliates to make timely payments to a Plan, a copy of any such notice filed and a statement of a Responsible Officer of the Borrower setting forth (i) sufficient information necessary to determine the amount of the lien under Section 302(f)(3), (ii) the reason for the failure to make the required payments and (iii) the action, if any, which the Borrower or any of its ERISA Affiliates proposed to take with respect thereto;
(j) promptly and in any event within fifteen (15) Business Days after receipt thereof by the Borrower or any ERISA Affiliate from a Multiemployer Plan sponsor, a copy of each notice received by the Borrower or any ERISA Affiliate concerning (i) the imposition of Withdrawal Liability by a Multiemployer Plan, (ii) the determination that a Multiemployer Plan is, or is expected to be, in reorganization within the meaning of Title IV of ERISA, (iii) the termination of a Multiemployer Plan within the meaning of Title IV of ERISA, or (iv) 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 (i), (ii) or (iii) above;
(k) [Reserved.]
(l) promptly after a Responsible Officer obtains knowledge of (i) the filing or commencement of any action, suit or proceeding by or before any arbitrator or Governmental Authority against or affecting the Parent or any Subsidiary that has a reasonable likelihood of adverse determination and such adverse determination would reasonably be expected to result in a Material Adverse Effect; (ii) the receipt of any environmental audits and reports, whether prepared by personnel of the Borrower or any Guarantor or by independent consultants, which relate to an Environmental Liability which would reasonably be expected to have a Material Adverse Effect, together with copies of such audits and reports; or (iii) any other development that results in, or would reasonably be expected to result in, a Material Adverse Effect; each notice delivered under this sub-paragraph shall be accompanied by a statement of a Responsible Officer of the Parent and the Borrower setting forth the details of the event or development requiring such notice and any action taken or proposed to be taken with respect thereto;
(m) promptly, from time period under to time, such other information regarding the operations (a) including, without limitation, any information regarding Primary Domestic Slot and (b) Primary Foreign Slot utilization), business affairs and financial condition of the Borrower or any Guarantor as either of the Agents, at the request of any Lender, may reasonably request, provided that in no event shall the requirements set forth in this Section 5.015.01(m) require the Borrower or Guarantors to provide any such information which is subject to attorney client privilege or confidentiality requirements imposed by applicable law or a third party;
(n) on the fifth Business Day following the end of each calendar month in which the Borrower and, if applicable, a Guarantor, file with the FAA or other applicable Governmental Authority a summary report on Primary Domestic Slot utilization pursuant to 14 C.F.R. Part 93 or other applicable regulations or law regarding Primary Domestic Slot utilization, a copy of such summary report;
(o) on the fifth Business Day following the end of each fiscal quarter, a Primary Foreign Slot Utilization Report, in a format reasonably acceptable to the Agents showing by day of week the number of times the Borrower and, if applicable, a Guarantor, canceled or otherwise did not operate a flight utilizing each such Primary Foreign Slot in the just ended calendar quarter; provided, that the format of such Primary Foreign Utilization Report provided pursuant to the terms of the Existing Facility shall satisfy the requirements herein;
(p) Within 45 days after the end of each of the first three fiscal quarters, an Officer’s Certificate demonstrating in reasonable detail compliance with Section 6.08 as of the end Borrower and, if applicable, a Guarantor, (i) stating that at all times since the last certificate delivered under this Section 5.01(p) (or, in the case of the preceding fiscal quarterfirst certificate to be delivered after the Closing Date, at all times since the Closing Date) the Borrower and, if applicable, a Guarantor, are utilizing the Primary Routes and the Primary Foreign Slots in a manner consistent in all material respects with applicable regulations, rules, law, foreign law and contracts in order to preserve their respective rights in and to use each of the Primary Routes and Primary Foreign Slots and whether the Borrower and, if applicable, a Guarantor, has satisfied all applicable utilization requirements set forth in any such regulation, rule, law, foreign law and contract and (ii) stating whether the Borrower and, if applicable, a Guarantor, has discontinued, suspended or otherwise not operated nonstop service between Hong Kong and Singapore, Hong Kong and Ho Chi Minh, Tokyo and Seoul, Tokyo and Bangkok, Tokyo and Hong Kong, Tokyo and Singapore, Tokyo and Taipei, Nagoya and Taipei, or to points in China, Tokyo’s Narita Airport, Osaka’s Kansai International Airport, Nagoya Airport, Hong Kong International Airport or London’s Heathrow Airport from any gateway in the United States from which the Borrower and, if applicable, a Guarantor, operated nonstop service during the previous month, for more than fifteen (15) consecutive days;
(eq) from and after Eligible Accounts Receivable being designated as Eligible Collateral, promptly after the occurrence thereof, written notice and in any event within forty-five (45) days of each six (6) month anniversary of the termination initial date that Eligible Accounts Receivable were provided as Replacement Collateral, an Officer’s Certificate from the Parent setting forth the amount of a Plan Eligible Accounts Receivable as of such date, together with all supporting documents and additional reports with respect to Eligible Accounts Receivable as the Borrower or an ERISA Affiliate Agents may reasonably request. Subject to the next succeeding sentence, information delivered pursuant to this Section 5.01 to the Agents may be made available by the Agents to the Lenders by posting such information on the Intralinks website on the Internet at xxxx://xxx.xxxxxxxxxx.xxx. Information delivered pursuant to this Section 5.01 may also be delivered by electronic communication pursuant to procedures approved by the Agents pursuant to Section 4042 of ERISA, 10.01 hereto. Information required to be delivered pursuant to this Section 5.01 (to the extent not made available as set forth above) shall be deemed to have been delivered to the Agents on the date on which such termination would constitute an Event information has been posted on the Borrower’s website on the Internet at xxxx://xxx.xxxxxx.xxx. Information required to be delivered pursuant to this Section 5.01 shall be in a format which is suitable for transmission. Unless (i) expressly marked by the Borrower as “PUBLIC” or (ii) copies of Default under its public filings with the SEC, any notice or other communication delivered pursuant to this Section 7.01(j);5.01, or otherwise pursuant to this Agreement, shall be deemed to contain material non-public information.
Appears in 1 contract
Samples: Revolving Credit, Term Loan and Guaranty Agreement (Ual Corp /De/)
Financial Statements, Reports, etc. The Borrower shall deliver to the Administrative Agent on behalf of the Lenders:
(a) within Within ninety (90) days after the end of each fiscal year, Parent’s consolidated balance sheet and related statement of income and cash flows, showing the financial condition of Parent and its Subsidiaries on a consolidated basis as of the close of such fiscal year and the results of their respective operations during such year, such the consolidated financial statements statement of Parent to be audited for Parent by independent public accountants of recognized national standing and to be accompanied by an opinion of such accountants (which opinion shall be unqualified without any qualification or exception as to the scope of such audit) to the effect that such consolidated financial statements fairly present in all material respects the financial condition and results of operations of Parent and its Subsidiaries on a consolidated basis in accordance with GAAP; provided that the foregoing delivery requirement shall be satisfied if Parent shall have filed with the SEC its Annual Report on Form 10-K for such fiscal year, which is available to the public via XXXXX or any similar successor system;; UAL Term Loan Credit Agreement 2020
(b) within Within forty-five (45) days after the end of each of the first three fiscal quarters of each fiscal year, Parent’s consolidated balance sheets and related statements of income and cash flows, showing the financial condition of Parent and its Subsidiaries on a consolidated basis as of the close of such fiscal quarter and the results of their operations during such fiscal quarter and the then-then elapsed portion of the fiscal year, each certified by a Responsible Officer of the Parent as fairly presenting in all material respects the financial condition and results of operations of Parent and its Subsidiaries on a consolidated basis in accordance with GAAP, subject to normal year-year end audit adjustments and the absence of footnotes; provided that the foregoing delivery requirement shall be satisfied if Parent shall have filed with the SEC its Quarterly Report on Form 10-Q for such fiscal quarter, which is available to the public via XXXXX or any similar successor system;
(c) within Within the time period under Section 5.01(a)) above, a certificate of a Responsible Officer of the Borrower Parent certifying that, to the knowledge of such Responsible Officer, no Event of Default has occurred and is continuing, or, if, to the knowledge of such Responsible Officer, such an Event of Default has occurred and is continuing, specifying the nature and extent thereof and any corrective action taken or proposed to be taken with respect thereto;
(d) within Within the time period under (a) and (b) of this Section 5.01, an Officer’s Certificate a certificate of a Responsible Officer demonstrating in reasonable detail compliance with Section 6.08 as of the end of the preceding fiscal quarter;
(e) promptly A Collateral Coverage Ratio Certificate, as and when required under Sections 6.09(a) or 6.04(ii)(C).
(f) Promptly after the occurrence thereof, written notice of the termination of a Plan of the Borrower or an ERISA Affiliate pursuant to Section 4042 of ERISA, ERISA to the extent such termination would constitute an Event of Default;
(g) So long as any Commitment, Loan is outstanding, promptly after the Chief Financial Officer or the Treasurer of the Parent becoming aware of the occurrence of a Default under or an Event of Default that is continuing, an Officer’s Certificate specifying such Default or Event of Default and what action the Parent and its Subsidiaries are taking or propose to take with respect thereto; and
(h) Promptly, from time to time, such other information regarding the Collateral and the operations, business affairs and financial condition of the Borrower or any Guarantor, in each case as the Administrative Agent, at the request of any Lender, may reasonably request. Subject to the next succeeding sentence, information delivered pursuant to this Section 7.01(j5.01 to the Administrative Agent may be made available by the Administrative Agent to the Lenders by posting such information on the Intralinks website on the Internet at xxxx://xxx.xxxxxxxxxx.xxx. Information required to be delivered pursuant to this Section 5.01 by the Borrower shall be delivered pursuant to Section 10.01 hereto. Information required to be delivered pursuant to this Section 5.01 (to the extent not made available as set forth above) shall be deemed to have been delivered to the Administrative Agent on the date on which the Borrower provides written notice to the Administrative Agent that such information has been UAL Term Loan Credit Agreement 2020 posted on the Borrower’s general commercial website on the Internet (to the extent such information has been posted or is available as described in such notice);, as such website may be specified by the Borrower to the Administrative Agent from time to time. Information required to be delivered pursuant to this Section 5.01 shall be in a format which is suitable for transmission. Any notice or other communication delivered pursuant to this Section 5.01, or otherwise pursuant to this Agreement, shall be deemed to contain material non-public information unless (i) expressly marked by the Borrower or a Guarantor as “PUBLIC”, (ii) such notice or communication consists of copies of the Borrower’s public filings with the SEC or (iii) such notice or communication has been posted on the Borrower’s general commercial website on the Internet, as such website may be specified by the Borrower to the Administrative Agent from time to time.
Appears in 1 contract
Samples: Term Loan Credit and Guaranty Agreement (United Airlines, Inc.)
Financial Statements, Reports, etc. The Borrower shall deliver Furnish to the Administrative Agent on behalf of (which will promptly furnish such information to the Lenders:):
(a) within ninety (90) 90 days after the end of each fiscal yearyear of the Borrower, Parent’s a consolidated balance sheet and related statement statements of income operations, cash flows and cash flows, owners’ equity showing the financial condition position of Parent the Borrower and its Subsidiaries on a consolidated basis as of the close of such fiscal year and the consolidated results of their respective its operations during such year and setting forth in comparative form the corresponding figures for the prior fiscal year, such which consolidated financial balance sheet and related statements of Parent to operations, cash flows and owners’ equity shall be audited for Parent by independent public accountants of recognized national standing and to be accompanied by an opinion of such accountants (which opinion shall not be unqualified qualified as to scope of such audit) , or as to the status of the Borrower or any Material Subsidiary as a “going concern” to the effect that such consolidated financial statements fairly present present, in all material respects respects, the financial condition position and results of operations of Parent the Borrower and its Subsidiaries on a consolidated basis in accordance with GAAP; provided GAAP (it being understood that the foregoing delivery requirement shall be satisfied if Parent shall have filed filing by the Borrower of annual reports on Form 10 K of the Borrower and its consolidated Subsidiaries with the SEC its Annual Report on Form 10-K for such fiscal year, which is available shall satisfy the requirements of this Section 5.04(a) to the public via XXXXX or any similar successor systemextent such annual reports include the information specified herein);
(b) within forty-five (45) 45 days after the end of each of the first three fiscal quarters quarterly periods of each fiscal yearyear of the Borrower, Parent’s a consolidated balance sheets sheet and related statements of income operations and cash flows, flows showing the financial condition position of Parent the Borrower and its Subsidiaries on a consolidated basis as of the close of such fiscal quarter and the consolidated results of their its operations during such fiscal quarter and the then-elapsed portion of the fiscal year and setting forth in comparative form the corresponding figures for the corresponding periods of the prior fiscal year, each all of which shall be in reasonable detail and which consolidated balance sheet and related statements of operations and cash flows shall be certified by a Responsible Financial Officer of Parent the Borrower on behalf of the Borrower as fairly presenting presenting, in all material respects respects, the financial condition position and results of operations of Parent the Borrower and its Subsidiaries on a consolidated basis in accordance with GAAP, GAAP (subject to normal year-end audit adjustments and the absence of footnotes; provided ) (it being understood that the foregoing delivery requirement shall be satisfied if Parent shall have filed with filing by the SEC its Quarterly Report Borrower of quarterly reports on Form 10-Q for such fiscal quarter, which is available of the Borrower and its consolidated Subsidiaries with the SEC shall satisfy the requirements of this Section 5.04(b) to the public via XXXXX or any similar successor systemextent such quarterly reports include the information specified herein);
(c) within the time period concurrently with any delivery of financial statements under Section 5.01(a)paragraphs (a) or (b) above, a certificate of a Responsible Financial Officer of the Borrower (i) certifying that, to the knowledge of such Responsible Officer, that no Event of Default or Default has occurred and is continuing, or, if, to the knowledge of such Responsible Officer, if such an Event of Default or Default has occurred and is continuingoccurred, specifying the nature and extent thereof and any corrective action taken or proposed to be taken with respect thereto, (ii) setting forth computations in reasonable detail satisfactory to the Administrative Agent demonstrating compliance with the Financial Performance Covenant, (iii) setting forth the calculation and uses of the Cumulative Credit for the fiscal period then ended, (iv) certifying a list of names of all Immaterial Subsidiaries, that each Subsidiary set forth on such list individually qualifies as an Immaterial Subsidiary and that all such Subsidiaries in the aggregate do not exceed the limitation set forth in clause (b) of the definition of the term “Immaterial Subsidiary” and (v) certifying a list of names of all Unrestricted Subsidiaries and that each Subsidiary set forth on such list individually qualifies as an Unrestricted Subsidiary;
(d) promptly after the same become publicly available, copies of all periodic and other publicly available reports, proxy statements and, to the extent requested by the Administrative Agent, other materials filed by Holdings, the Borrower or any of the Subsidiaries with the SEC, or distributed to its stockholders generally, as applicable; provided , however , that such reports, proxy statements, filings and other materials required to be delivered pursuant to this clause (d) shall be deemed delivered for purposes of this Agreement when posted to the website of the Borrower;
(e) within 90 days after the beginning of each fiscal year of the Borrower, a reasonably detailed consolidated annual budget for such fiscal year (including a projected consolidated balance sheet of the Borrower and its Subsidiaries as of the end of such fiscal year, and the related consolidated statements of projected cash flow and projected income), including a description of underlying assumptions with respect thereto (collectively, the “ Budget ”), which Budget shall in each case be accompanied by the statement of a Financial Officer of the Borrower to the effect that, the Budget is based on assumptions believed by such Financial Officer to be reasonable as of the date of delivery thereof;
(f) upon the reasonable request of the Administrative Agent, an updated Perfection Certificate (or, to the extent such request relates to specified information contained in the Perfection Certificate, such information) reflecting all changes since the date of the information most recently received pursuant to this paragraph (f) or Section 5.09(f);
(g) promptly, from time period under to time, such other information regarding the operations, business affairs and financial condition of Holdings, the Borrower or any of the Subsidiaries, or compliance with the terms of any Loan Document, as in each case the Administrative Agent may reasonably request (for itself or on behalf of any Lender);
(h) in the event that (i)(a) in respect of the Senior Unsecured Notes or the Senior Subordinated Notes, and any Permitted Refinancing Indebtedness with respect thereto, the rules and regulations of the SEC or (b) the indentures governing any secured or unsecured notes of the Borrower, permit the Borrower, Holdings or any Parent Entity to report at Holdings’ or such Parent Entity’s level on a consolidated basis and (ii) Holdings or such Parent Entity, as the case may be, is not engaged in any business or activity, and does not own any material assets or have other material liabilities, other than cash and cash equivalents and those incidental to its ownership directly or indirectly of the Equity Interests of the Borrower and the incurrence of Indebtedness for borrowed money (and, without limitation on the foregoing, does not have any subsidiaries other than the Borrower and the Borrower’s Subsidiaries and any direct or indirect parent companies of the Borrower that are not engaged in any other business or activity and do not hold any other assets or have any liabilities except as indicated above) such consolidated reporting at such Parent Entity’s level in a manner consistent with that described in paragraphs (a) and (b) of this Section 5.01, an Officer’s Certificate demonstrating in reasonable detail 5.04 for the Borrower (together with a reconciliation showing the adjustments necessary to determine compliance by the Borrower and its Subsidiaries with Section 6.08 as the Financial Performance Covenant) shall satisfy the requirements of such paragraphs; and
(i) upon the request of the end Administrative Agent, copies of the preceding fiscal quarter;
(eany documents described in Sections 101(k) promptly after the occurrence thereof, written notice or 101(l) of the termination of a Plan of ERISA that the Borrower or an any ERISA Affiliate pursuant or Subsidiary may request with respect to Section 4042 any Multiemployer Plan; provided , that if the Borrower or any of ERISAits ERISA Affiliates or Subsidiaries have not requested such documents or notices from the administrator or sponsor of the applicable Multiemployer Plan, then, upon reasonable written request of the Administrative Agent, the Borrower and/or its ERISA Affiliates or Subsidiaries shall promptly make a request for such documents or notices from such administrator or sponsor and the Borrower shall provide copies of such documents and notices to the extent such termination would constitute an Event of Default under Section 7.01(j);Administrative Agent promptly after receipt thereof.
Appears in 1 contract
Financial Statements, Reports, etc. The Borrower shall deliver Furnish to the Administrative Agent on behalf of (which will promptly furnish such information to the Lenders:):
(a) within ninety 90 days (90or such shorter period as the SEC shall specify for the filing of Annual Reports on Form 10‑K) days after the end of each fiscal year, Parent’s commencing with the fiscal year ended December 31, 2011, a consolidated balance sheet and related statement statements of income operations, cash flows and cash flows, owners’ equity showing the financial condition position of Parent the Borrower and its the Subsidiaries on a consolidated basis as of the close of such fiscal year and the consolidated results of their respective operations during such year and setting forth in comparative form the corresponding figures for the prior fiscal year, such consolidated financial statements of Parent to be all audited for Parent by independent public accountants of recognized national standing reasonably acceptable to the Administrative Agent and to be accompanied by an opinion of such accountants (which opinion shall not be unqualified as to scope of such auditqualified in any material respect) to the effect that such consolidated financial statements (A) have been prepared in accordance with GAAP and (B) present fairly present in all material respects and accurately the consolidated financial condition and results of operations and cash flows of Parent the Borrower and its Subsidiaries on a consolidated basis in accordance with GAAP; provided subsidiaries as of the dates and for the periods to which they relate (it being understood that the foregoing delivery requirement shall be satisfied if Parent shall have filed with by the SEC its Borrower of Annual Report Reports on Form 10-K for such fiscal year, which is available 10‑K of the Borrower and its consolidated Subsidiaries shall satisfy the requirements of this Section 5.04
(a) to the public via XXXXX or any similar successor systemextent such Annual Reports include the information specified herein);
(b) commencing with the fiscal quarter ended June 30, 2011, within forty-five 45 days (45or such shorter period as the SEC shall specify for the filing of Quarterly Reports on Form 10‑Q) days after the end of each of the first three fiscal quarters of each fiscal year, Parent’s a consolidated balance sheets sheet and related statements of income operations and cash flows, flows showing the financial condition position of Parent the Borrower and its the Subsidiaries on a consolidated basis as of the close of such fiscal quarter and the consolidated results of their operations during such fiscal quarter and the then-elapsed portion of the fiscal year and setting forth in comparative form the corresponding figures for the corresponding periods of the prior fiscal year, each all certified by a Responsible Financial Officer of Parent the Borrower, on behalf of the Borrower, as (A) having been prepared in accordance with GAAP and (B) presenting fairly presenting in all material respects and accurately the consolidated financial condition and results of operations and cash flows of Parent the Borrower and its Subsidiaries on a consolidated basis subsidiaries as of the dates and for the periods to which they relate, subject, in accordance with GAAPthe case of clauses (A) and (B), subject to the absence of footnotes and to normal year-end audit adjustments and the absence of footnotes; provided (it being understood that the foregoing delivery requirement shall be satisfied if Parent shall have filed with by the SEC its Borrower of Quarterly Report Reports on Form 10-Q for such fiscal quarter, which is available 10‑Q of the Borrower and its consolidated Subsidiaries shall satisfy the requirements of this Section 5.04(b) to the public via XXXXX or any similar successor systemextent such Quarterly Reports include the information specified herein);
(c) within the time period (x) concurrently with any delivery of financial statements under Section 5.01(a)(a) or (b) above, a certificate of a Responsible Financial Officer of the Borrower (i) certifying that, to the knowledge of such Responsible Officer, that no Event of Default or Default has occurred and is continuing, or, if, to the knowledge of such Responsible Officer, if such an Event of Default or Default has occurred and is continuingoccurred, specifying the nature and extent thereof and any corrective action taken or proposed to be taken with respect theretothereto and (ii) commencing with the fiscal period ending June 30, 2011, setting forth computations in reasonable detail satisfactory to the Administrative Agent demonstrating compliance with the covenants contained in Sections 6.10, 6.11 and 6.15, as applicable and (y) concurrently with any delivery of financial statements under (a) above, a certificate of the accounting firm opining on or certifying such statements stating whether they obtained knowledge during the course of their examination of such statements of any Event of Default resulting from a breach of Section 6.10, 6.11 or 6.15, as applicable (which certificate may be limited to accounting matters and disclaim responsibility for legal interpretations);
(d) within promptly after the time period under same become publicly available, copies of all periodic and other publicly available reports, proxy statements and, to the extent requested by the Administrative Agent, other materials filed by the Borrower or any of its Subsidiaries with the SEC or distributed to the stockholders of the Borrower generally, as applicable;
(e) if, as a result of any change in accounting principles and policies from those as in effect on the Third Amendment Effective Date, the consolidated financial statements of the Borrower and the Subsidiaries delivered pursuant to paragraphs (a) or (b) above will differ in any material respect from the consolidated financial statements that would have been delivered pursuant to such clauses had no such change in accounting principles and policies been made, then, 30 days after the first delivery of financial statements pursuant to paragraphs (a) and (b) of this Section 5.01above following such change, an Officer’s Certificate demonstrating in reasonable detail compliance with Section 6.08 as a schedule prepared by a Financial Officer on behalf of the end of Borrower reconciling such changes to what the preceding fiscal quarterfinancial statements would have been without such changes;
(ef) promptly within 90 days after the occurrence thereofbeginning of each fiscal year, written notice an operating and capital expenditure budget, in form satisfactory to the Administrative Agent prepared by the Borrower for each of the termination four fiscal quarters of a Plan such fiscal year prepared in reasonable detail, of the Borrower or an ERISA Affiliate pursuant and the Subsidiaries, accompanied by the statement of a Financial Officer of the Borrower to Section 4042 the effect that, to the best of ERISAhis knowledge, the budget is a reasonable estimate for the period covered thereby;
(g) concurrently with the delivery of financial statements under clause (a) above and otherwise upon the reasonable request of the Administrative Agent, updated Perfection Certificates (or, to the extent such termination would constitute an Event request relates to specified information contained in the Perfection Certificates, such information) reflecting all changes since the date of Default under Section 7.01(jthe information most recently received pursuant to this paragraph (g);
(h) promptly, from time to time, such other information regarding the operations, business affairs and financial condition of the Borrower or any of its Subsidiaries, or compliance with the terms of any Loan Document, or such consolidating financial statements, as in each case the Administrative Agent may reasonably request (for itself or on behalf of any Lender);
(i) promptly upon request by the Administrative Agent, copies of: (i) each Schedule B (Actuarial Information) to the annual report (Form 5500 Series) filed with the Internal Revenue Service with respect to a Plan; (ii) the most recent actuarial valuation report for any Plan; (iii) all notices received from a Multiemployer Plan sponsor or any Governmental Authority concerning an ERISA Event; and (iv) such other documents or governmental reports or filings relating to any Plan or Multiemployer Plan as the Administrative Agent shall reasonably request; and
(j) deliver to the Administrative Agent for prompt further distribution to each Lender, simultaneously with the delivery of each set of consolidated financial statements referred to in Sections 5.04(a) and (b), a summary consolidating statement of income (loss) from continuing operations, net income (loss), revenue, EBITDA, assets, liabilities and any net increase (decrease) in cash and equivalents, of Unrestricted Subsidiaries for the relevant period and use commercially reasonable efforts to make senior officers of the Borrower available to discuss such information or the information specified in Section 5.04(a) promptly after such information is delivered to the Administrative Agent. Documents required to be delivered pursuant to Section 5.04(a), 5.04(b) or 5.04(d) (to the extent any such documents are included in materials otherwise filed with the SEC) may be delivered electronically and if so delivered, shall be deemed to have been delivered on the date (i) on which the Borrower posts such documents, or provides a link thereto on the Borrower’s website on the Internet, at xxx.xxxxxxx.xxx; provided that the Borrower shall notify the Administrative Agent and each Lender (by telecopier or electronic mail) of the posting of any such documents and provide to the Administrative Agent by electronic mail electronic versions (i.e., soft copies) of such documents.
Appears in 1 contract
Financial Statements, Reports, etc. The Borrower shall deliver to the Administrative Agent on behalf of the Lenders:
(a) within Within ninety (90) days after the end of each fiscal year, Parentthe Borrower’s consolidated balance sheet and related statement of income and cash flows, showing the financial condition of Parent the Borrower and its Subsidiaries on a consolidated basis as of the close of such fiscal year and the results of their respective operations during such year, such the consolidated financial statements statement of Parent the Borrower to be audited for Parent the Borrower by independent public accountants of recognized national standing and to be accompanied by an opinion of such accountants (which opinion shall be unqualified without any qualification or exception as to the scope of such auditaudit and without a “going concern” qualification under GAAP as in effect on the date of this Agreement or, if there is a change in GAAP thereafter, any like qualification or exception under GAAP after giving effect to such change) to the effect that such consolidated financial statements fairly present in all material respects the financial condition and results of operations of Parent the Borrower and its Subsidiaries on a consolidated basis in accordance with GAAP; provided that the foregoing delivery requirement shall be satisfied if Parent the Borrower shall have filed with the SEC its Annual Report on Form 10-K for such fiscal year, which is available to the public via XXXXX or any similar successor system;
(b) within Within forty-five (45) days after the end of each of the first three fiscal quarters of each fiscal year, Parentthe Borrower’s consolidated balance sheets and related statements of income and cash flows, showing the financial condition of Parent the Borrower and its Subsidiaries on a consolidated basis as of the close of such fiscal quarter and the results of their operations during such fiscal quarter and the then-then elapsed portion of the fiscal year, each certified by a Responsible Officer of Parent the Borrower as fairly presenting in all material respects the financial condition and results of operations of Parent the Borrower and its Subsidiaries on a consolidated basis in accordance with GAAP, subject to normal year-year end audit adjustments and the absence of footnotes; provided that the foregoing delivery requirement shall be satisfied if Parent the Borrower shall have filed with the SEC its Quarterly Report on Form 10-Q for such fiscal quarter, which is available to the public via XXXXX or any similar successor system;
(c) within Within the time period under Section 5.01(a)) above, a certificate of a Responsible Officer of the Borrower certifying that, to the knowledge of such Responsible Officer, no Event of Default has occurred and is continuing, or, if, to the knowledge of such Responsible Officer, such an Event of Default has occurred and is continuing, specifying the nature and extent thereof and any corrective action taken or proposed to be taken with respect thereto;
(d) within Within the time period under (a) and or (b) of this Section 5.015.01 (as applicable), an Officer’s Certificate a certificate of a Responsible Officer demonstrating in reasonable detail compliance with Section 6.08 as of the end of the preceding fiscal quarter;
(e) promptly Promptly after the occurrence thereof, written notice of the termination of a Plan of the Borrower or an ERISA Affiliate pursuant to Section 4042 of ERISA, ERISA to the extent such termination would constitute an Event of Default;
(f) So long as any Commitment or Loan is outstanding, promptly after the Chief Financial Officer or the Treasurer of the Borrower becoming aware of the occurrence of an Event of Default under that is continuing, an Officer’s Certificate specifying such Event of Default and what action the Borrower and its Subsidiaries are taking or propose to take with respect thereto;
(g) Promptly, from time to time, such other information regarding the Collateral and nonconfidential information regarding the operations, business affairs and financial condition of the Borrower or any Guarantor, in each case as the Administrative Agent, at the request of any Lender, may reasonably request; and
(h) Prompt written notice of any change in the information provided in the Beneficial Ownership Certification that would result in a change to the list of beneficial owners identified in parts (c) or (d) of such certification. Subject to the next succeeding sentence, information delivered pursuant to this Section 7.01(j5.01 to the Administrative Agent may be made available by the Administrative Agent to the Lenders by posting such information on the Syndtrak website on the Internet at xxxx://xxx.xxxxxxxx.xxx. Information required to be delivered pursuant to this Section 5.01 by the Borrower shall be delivered pursuant to Section 10.01 hereto. Information required to be delivered pursuant to this Section 5.01 (to the extent not made available as set forth above) shall be deemed to have been delivered to the Administrative Agent on the date on which the Borrower provides written notice to the Administrative Agent that such information has been posted on the Borrower’s general commercial website on the Internet (to the extent such information has been posted or is available as described in such notice);, as such website may be specified by the Borrower to the Administrative Agent from time to time. Information required to be delivered pursuant to this Section 5.01 shall be in a format which is suitable for transmission. Any notice or other communication delivered pursuant to this Section 5.01, or otherwise pursuant to this Agreement, shall be deemed to contain material non-public information unless (i) expressly marked by the Borrower or a Guarantor as “PUBLIC”, (ii) such notice or communication consists of copies of the Borrower’s public filings with the SEC or (iii) such notice or communication has been posted on the Borrower’s general commercial website on the Internet, as such website may be specified by the Borrower to the Administrative Agent from time to time.
Appears in 1 contract
Samples: Credit and Guaranty Agreement (Allegiant Travel CO)
Financial Statements, Reports, etc. The Borrower shall deliver Furnish to the Administrative Agent on behalf of (which will promptly furnish such information to the Lenders:):
(a) within ninety (90) 90 days after the end of each fiscal year, Parent’s a consolidated balance sheet and related statement statements of income operations, shareholders’ equity and cash flows, flows showing the financial condition position of the Parent Borrower and its Subsidiaries on a consolidated basis as of the close of such fiscal year and the consolidated results of their respective operations during such year and setting forth in comparative form the corresponding figures for the prior fiscal year, such which consolidated financial balance sheet and related statements of Parent operations, shareholders’ equity and cash flows shall be accompanied by customary management’s discussion and analysis and audited by a “big-four” accounting firm or another nationally recognized accounting firm or other accounting firm reasonably acceptable to the Required Lenders (it being understood and agreed that KPMG LLP shall be audited for Parent by independent public accountants of recognized national standing reasonably acceptable) and to be accompanied by an opinion of such accountants (which opinion shall not be unqualified qualified as to scope of such auditaudit or as to the status of the Parent Borrower, the Co-Borrower or any Material Subsidiary as a going concern, 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 a future period) to the effect that such consolidated financial statements fairly present present, in all material respects respects, the financial condition position and results of operations of the Parent Borrower and its Subsidiaries on a consolidated basis in accordance with GAAP; GAAP (it being understood that any such financial statements that are filed pursuant to and are accessible through (x) the SEC’s XXXXX system or (y) the Canadian Securities Administrators’ System for Electronic Document Analysis and Retrieval (“SEDAR”) will be deemed to have been provided that the foregoing delivery requirement shall be satisfied if Parent shall have filed in accordance with the SEC its Annual Report on Form 10-K for such fiscal year, which is available to the public via XXXXX or any similar successor systemthis clause (a));
(b) within forty-five (45) 45 days after the end of each of the first three fiscal quarters of each fiscal year, Parent’s a consolidated balance sheets sheet and related statements of income operations, shareholders’ equity and cash flows, flows showing the financial condition position of the Parent Borrower and its Subsidiaries on a consolidated basis as of the close of such fiscal quarter and the consolidated results of their operations during such fiscal quarter and the then-elapsed portion of the fiscal yearyear and setting forth in comparative form the corresponding figures for the corresponding periods of the prior fiscal year and, each all of which shall be in reasonable detail, which consolidated balance sheet and related statements of income, shareholders’ equity and cash flows shall be accompanied by customary management’s discussion and analysis and shall be certified by a Responsible Financial Officer of the Parent Borrower on behalf of the Parent Borrower as fairly presenting presenting, in all material respects respects, the financial condition position and results of operations of the Parent Borrower and its Subsidiaries on a consolidated basis in accordance with GAAP, GAAP (subject to normal year-end audit adjustments and the absence of footnotes; ) (it being understood that any such financial statements that are filed pursuant to and are accessible through (x) the SEC’s XXXXX system or (y) SEDAR will be deemed to have been provided that the foregoing delivery requirement shall be satisfied if Parent shall have filed in accordance with the SEC its Quarterly Report on Form 10-Q for such fiscal quarter, which is available to the public via XXXXX or any similar successor systemthis clause (b));
(c) within the time period concurrently with any delivery of financial statements under Section 5.01(a)clause (a) or (b) above, a certificate of a Responsible Officer of the Borrower duly executed and completed Compliance Certificate (i) certifying that, to the knowledge of such Responsible Officer, that no Event of Default or Default has occurred and is continuing, since the date of the last certificate delivered pursuant to this Section 5.04(c) or, if, to the knowledge of such Responsible Officer, if such an Event of Default or Default has occurred and is continuingoccurred, specifying the nature and extent thereof and any corrective action taken or proposed to be taken with respect thereto, and (ii) setting forth computations in reasonable detail demonstrating compliance with the Financial Covenant and (iii) in respect of a Compliance Certificate delivered concurrently with the financial statements under clause (a), setting forth any changes in the identity of a Responsible Person since the Closing Date or the date of such previously delivered Compliance Certificate, as applicable;;
(d) within promptly, from time to time, (i) such other customary information regarding the time period operations, business affairs and financial condition of the Parent Borrower or any of the Subsidiaries or compliance with the terms of any Loan Document as in each case the Administrative Agent may reasonably request (for itself or on behalf of any Lender) and (ii) information and documentation reasonably requested by the Administrative Agent or any Lender for purposes of compliance with applicable “know your customer” requirements under the USA PATRIOT Act or other applicable anti-money-laundering rules and regulations and the Beneficial Ownership Regulation; provided that (i) to the extent that the Parent Borrower determines in good faith that any information to be provided pursuant to this paragraph (e) constitutes (individually or in the aggregate) material non-public information, the recipient of such information shall be subject to a customary confidentiality agreement (or provision) with respect to such information prior to receiving such information, and (ii) while the Parent Borrower is subject to the requirement to file periodic reports under National Instrument 51-102 – Continuous Disclosure Obligations or under Section 13(b), 13(g) or 15(d) of the Exchange Act, information regarding the operations, business affairs and financial condition of the Parent Borrower or any of the Subsidiaries need not be provided if the Parent Borrower intends to provide such information in an upcoming periodic or current report under such laws, rules or regulations); and
(e) in the event that any Parent Entity reports on a consolidated basis, such consolidated reporting at such Parent Entity’s level in a manner consistent with that described in clauses (a), (b) and (c) of this Section 5.04 for the Parent Borrower (together with a reconciliation showing the adjustments necessary to determine compliance by the Parent Borrower and its Subsidiaries with the Financial Covenant) will satisfy the requirements of such paragraphs. Each Borrower hereby acknowledges and agrees that all financial statements furnished pursuant to clauses (a) and (b) of this Section 5.01above are hereby deemed to be Borrower Materials suitable for distribution, an Officer’s Certificate demonstrating in reasonable detail compliance with Section 6.08 as of the end of the preceding fiscal quarter;
(e) promptly after the occurrence thereof, written notice of the termination of a Plan of the Borrower or an ERISA Affiliate pursuant and to Section 4042 of ERISAbe made available, to Public Lenders as contemplated by Section 9.17 and may be treated by the extent Administrative Agent and the Lenders as if the same had been marked “PUBLIC” in accordance with such termination would constitute an Event of Default under Section 7.01(jparagraph (unless the Parent Borrower otherwise notifies the Administrative Agent in writing on or prior to delivery thereof);.
Appears in 1 contract
Financial Statements, Reports, etc. The Borrower shall deliver or cause to be delivered to the Administrative Agent on behalf of the Lendersand each Lender:
(a) within ninety (90) days after the end of each fiscal year, Parent’s consolidated balance sheet and related statement of income and cash flows, showing the financial condition of Parent and its Subsidiaries on a consolidated basis as of the close of such fiscal year and the results of their respective operations during such year, such consolidated financial statements of Parent to be audited for Parent by independent public accountants of recognized national standing and to be accompanied by an opinion of such accountants (which opinion shall be unqualified as to 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 Parent and its Subsidiaries on a consolidated basis in accordance with GAAP; provided that the foregoing delivery requirement shall be satisfied if Parent shall have filed with the SEC its Annual Report on Form 10-K for such fiscal year, which is available to the public via XXXXX or any similar successor system;
(b) within forty-five (45) Not later than 50 days after the end of each of the first three fiscal quarters of each fiscal yearFiscal Year, Parent’s consolidated a balance sheets sheet and related statements a statement of income and cash flows, showing of the financial condition of Parent Borrower and its Subsidiaries Consolidated Entities on a consolidated basis and a statement of cash flow of the Borrower and its Consolidated Entities on a consolidated basis for such calendar quarter and for the period beginning on the first day of such Fiscal Year and ending on the last day of such quarter (in sufficient detail to indicate the Borrower's and each Consolidated Entity's compliance with the financial covenants set forth in Section 8.1), together with statements in comparative form for the corresponding date or period in the preceding Fiscal Year as summarized in the Borrower's Form 10-Q for the corresponding period, and certified as to fairness, accuracy and completeness by the chief executive officer, chief financial officer or Treasurer of the Borrower.
(b) Not later than 100 days after the end of each Fiscal Year, financial statements (including a balance sheet, a statement of income, a statement of changes in shareholders' equity and a statement of cash flow) of the Borrower and its Consolidated Entities on a consolidated basis for such Fiscal Year (in sufficient detail to indicate the Borrower's and each Consolidated Entity's compliance with the financial covenants set forth in Section 8.1), together with statements in comparative form as of the close end of and for the preceding Fiscal Year as summarized in the Borrower's Form 10-K for the corresponding period, and accompanied by an opinion of certified public accountants acceptable to the Administrative Agent, which opinion shall state in effect that such fiscal quarter financial statements (A) were audited using generally accepted auditing standards, (B) were prepared in accordance with generally accepted accounting principles applied on a Consistent Basis, and the results of their operations during such fiscal quarter and the then-elapsed portion of the fiscal year, each certified by a Responsible Officer of Parent as (C) present fairly presenting in all material respects the financial condition and results of operations of Parent the Borrower and its Subsidiaries on a consolidated basis in accordance with GAAP, subject to normal year-end audit adjustments and Consolidated Entities for the absence of footnotes; provided that the foregoing delivery requirement shall be satisfied if Parent shall have filed with the SEC its Quarterly Report on Form 10-Q for such fiscal quarter, which is available to the public via XXXXX or any similar successor system;periods covered.
(c) within Together with the time period under Section 5.01(a), a certificate of a Responsible Officer of the Borrower certifying that, to the knowledge of such Responsible Officer, no Event of Default has occurred and is continuing, or, if, to the knowledge of such Responsible Officer, such an Event of Default has occurred and is continuing, specifying the nature and extent thereof and any corrective action taken or proposed to be taken with respect thereto;
(d) within the time period under financial statements required by subsections (a) and (b) of this Section 5.01, an Officer’s Certificate demonstrating in reasonable detail above a compliance with Section 6.08 as certificate duly executed by the chief executive officer or chief financial officer or Treasurer of the end Borrower in the form of Exhibit I ("Compliance Certificate").
(d) Contemporaneously with the preceding fiscal quarter;distribution thereof to the Borrower's or any Consolidated Entity's stockholders or partners or the filing thereof with the Securities and Exchange Commission, as the case may be, copies of all statements, reports, notices and filings distributed by the Borrower or any Consolidated Entity to its stockholders or partners or filed with the Securities and Exchange Commission (including reports on SEC Forms 10-K, 10-Q and 8-K).
(e) Promptly after the Borrower knows or has reason to know of the occurrence of any "reportable event" under Section 4043 of ERISA applicable to the Borrower or any ERISA Affiliate, a certificate of the president or chief financial officer of the Borrower setting forth the details as to such "reportable event" and the action that the Borrower or the ERISA Affiliate has taken or will take with respect thereto, and promptly after the occurrence filing or receiving thereof, written copies of all reports and notices that the Borrower and each Consolidated Entity files under ERISA with the Internal Revenue Service or the PBGC or the United States Department of Labor.
(f) Promptly after the Borrower or any of its Consolidated Entities becomes aware of the commencement thereof, notice of any investigation, action, suit or proceeding before any Governmental Authority involving the condemnation or taking under the power of eminent domain of any of its property or the revocation or suspension of any permit, license, certificate of need or other governmental requirement applicable to any Facility.
(g) Within 10 days of the receipt by the Borrower or any of its Consolidated Entities, copies of all material deficiency notices, compliance orders or adverse reports issued by any Governmental Authority or accreditation commission having jurisdiction over licensing, accreditation or operation of a Facility or by any Governmental Authority or private insurance company pursuant to a provider agreement, which, if not promptly complied with or cured, could result in the suspension or forfeiture of any license, certification or accreditation necessary in order for such Facility to carry on its business as then conducted or the termination of a Plan any material insurance or reimbursement program available to such Facility.
(h) Such other information regarding any Facility or the financial condition or operations of the Borrower or an ERISA Affiliate pursuant its Consolidated Entities as the Administrative Agent shall reasonably request from time to Section 4042 of ERISA, to the extent such termination would constitute an Event of Default under Section 7.01(j);time or at any time.
Appears in 1 contract
Samples: Credit Agreement (Healthsouth Corp)
Financial Statements, Reports, etc. The Borrower shall deliver Furnish to the Administrative Agent on behalf of (which will promptly furnish such information to the Lenders:):
(a) within ninety (90) 90 days after following the end of each fiscal year, Parent’s (i) a consolidated balance sheet and related statement statements of income operations, cash flows and cash flows, owners’ equity showing the financial condition position of Parent the Borrower and its Subsidiaries on a consolidated basis as of the close of such fiscal year and the consolidated results of their respective its operations during such year (the “Annual Financial Statements” ); provided that if the Borrower includes the financial results of any person that is not a Restricted Subsidiary in such Annual Financial Statements, the Borrower shall also provide a supplement showing consolidating information for the Borrower and its Restricted Subsidiaries, (ii) a narrative discussion of management’s discussion and analysis of results (which need not be compliant with Regulation S-K) and (iii) setting forth in comparative form the corresponding figures for the prior fiscal year, such which consolidated financial balance sheet and related statements of Parent to operations, cash flows and owners’ equity shall be audited for by the Borrower’s (or any Parent by Entity’s) independent public accountants of recognized national standing and to be accompanied by an opinion of such accountants (which opinion shall not be unqualified qualified as to scope of audit or as to the status of the Borrower or its Subsidiaries as a going concern other than any such auditqualification or exception that is solely with respect to, or resulting solely from, an upcoming maturity date under the Credit Facilities or the Senior Unsecured Notes occurring within one year from the time such report is delivered or any prospective default of any financial covenant) to the effect that such consolidated financial statements fairly present present, in all material respects respects, the financial condition position and results of operations of Parent the Borrower and its Subsidiaries on a consolidated basis in accordance with GAAP; provided GAAP (it being understood that the foregoing delivery requirement shall be satisfied if Parent shall have filed with the SEC its Annual Report of annual reports on Form 10-K for such fiscal yearof Holdings, which is available any Parent Entity or the Borrower and their respective consolidated Subsidiaries shall satisfy the requirements of this Section 5.04(a) to the public via XXXXX or any similar successor systemextent such annual reports include the information specified herein);
(b) within forty-five (45) 45 days after following the end of each of the first three fiscal quarters of each fiscal year, Parent’s (i) a consolidated balance sheets sheet and related statements of income operations and cash flows, flows showing (x) the financial condition position of Parent the Borrower and its Subsidiaries on a consolidated basis as of the close of such fiscal quarter and the consolidated and consolidating results of their its operations during such fiscal quarter and (y) the then-elapsed portion of the fiscal yearyear and setting forth in comparative form the corresponding figures for the corresponding periods of the prior fiscal year (the “Quarterly Financial Statements” and, each together with the Annual Financial Statements, the “Required Financial Statements”); provided that if the Borrower includes the financial results of any person that is not a Restricted Subsidiary in such Quarterly Financial Statements, the Borrower shall also provide (i) a supplement showing consolidating information for the Borrower and its Restricted Subsidiaries and (ii) a narrative discussion of management’s discussion and analysis of results (which need not be compliant with Regulation S-K). Notwithstanding the above, the Required Financial Statements shall be certified by a Responsible Officer of Parent the Borrower on behalf of the Borrower as fairly presenting presenting, in all material respects respects, the financial condition position and results of operations of Parent the Borrower and its Subsidiaries on a consolidated basis in accordance with GAAP, GAAP (subject to normal year-end audit adjustments and the absence of footnotes; provided ) (it being understood that the foregoing delivery requirement shall be satisfied if Parent shall have filed with the SEC its Quarterly Report of quarterly reports on Form 10-Q for such fiscal quarter, which is available of Holdings or any Parent Entity and their respective consolidated subsidiaries shall satisfy the requirements of this Section 5.04(b) to the public via XXXXX or any similar successor systemextent such quarterly reports include the information specified herein);
(c) within the time period concurrently with any delivery of Required Financial Statements under paragraphs (a) and (b) of this Section 5.01(a)5.04, a certificate of a Responsible Financial Officer of the Borrower (i) certifying that, to the knowledge of such Responsible Officer, that no Default or Event of Default has occurred and is continuing, continuing or, if, to the knowledge of such Responsible Officer, such an if a Default or Event of Default has occurred and is continuing, specifying the nature and extent thereof and any corrective action taken or proposed to be taken with respect thereto, (ii) certifying a list of all Immaterial Subsidiaries, that each Subsidiary set forth on such list individually qualifies as an Immaterial Subsidiary and that all such Subsidiaries in the aggregate do not exceed the limitation set forth in clause (b) of the definition of the term “Immaterial Subsidiary”, (iii) certifying a list of all Unrestricted Subsidiaries at such time and that each Subsidiary set forth on such list qualifies as an Unrestricted Subsidiary and (iv) setting forth computations in reasonable detail calculating the Fixed Charge Coverage Ratio for the fiscal quarter then ended (irrespective of whether a Covenant Trigger Event is then in effect);
(d) promptly after the same become publicly available, copies of all periodic and other publicly available reports, proxy statements and, to the extent requested by the Administrative Agent, other materials filed by the Borrower or its Subsidiaries with the SEC or, after an initial public offering, distributed to its stockholders generally, as applicable;
(e) upon the reasonable request of the Administrative Agent, concurrently with the delivery of the Annual Financial Statements, provide an update to the information set forth on the schedules to the Collateral Agreement, together with (i) information about deposit accounts, securities accounts and commodities accounts entered into by the Borrower or any of the Loan Parties and (ii) information regarding Material Real Property acquired by the Borrower or any of the Loan Parties, in the case of each of (i) and (ii), since the First Restatement Effective Date or the delivery of the previous year’s Annual Financial Statements, as applicable, to the extent not previously notified to the Administrative Agent;
(f) within 90 days following the end of each fiscal year, a reasonably detailed consolidated annual budget for the succeeding fiscal year (including a projected consolidated balance sheet of the Borrower and its Subsidiaries as of the end of each fiscal quarter for such fiscal year and annual consolidated statements of projected cash flow and projected income), including a description of underlying assumptions with respect thereto (collectively, the “Budget”), which Budget shall in each case be accompanied by the statement of a Financial Officer of the Borrower to the effect that the Budget is based on assumptions believed by such Financial Officer to be reasonable as of the date of delivery thereof;
(g) promptly, from time period under to time, such other information regarding the operations, business affairs (including self-insurance) and financial condition of the Borrower and its Subsidiaries, or compliance with the terms of any Loan Document, in each case, as the Administrative Agent may reasonably request (for itself or on behalf of any Lender);
(h) In connection with the covenants set forth in this Section 5.04(h), it is understood and agreed that:
(i) Subject to Section 5.04(h)(ii), on or before the 15th Business Day of each month, a Borrowing Base Certificate as of the last day of the immediately preceding month, with such supporting materials as the Administrative Agent shall reasonably request. Notwithstanding the foregoing, after the occurrence and during the continuance of a Cash Dominion Event, on Wednesday of each week (or, if Wednesday is not a Business Day, on the next succeeding Business Day), the Borrower shall furnish a Borrowing Base Certificate calculated as of the close of business on Saturday of the immediately preceding calendar week.
(ii) At any time and from time to time the Borrower is entitled to calculate the Borrowing Base on a Pro Forma Basis to give effect to a Permitted Business Acquisition (including an acquisition of inventory or accounts receivable), and to adjust the Borrowing Base accordingly, prior to completion of the applicable field examination or appraisal; provided that, if, on or prior to the date that is 90 days following the consummation of such Permitted Business Acquisition, the Borrower shall not have delivered the appropriate field examination or appraisal with respect to any asset included in the Borrowing Base pursuant to this Section 5.04(h)(ii), then on the date that is 90 days following the consummation of such Permitted Business Acquisition such asset shall be removed from the Borrowing Base until the completion of the applicable field examination or appraisal with respect to such asset.
(i) promptly upon request by the Administrative Agent (so long as the following are obtainable using commercially reasonable measures), copies of (i) each Schedule SB (Single-Employer Defined Benefit Plan Actuarial Information) to the most recent annual report (Form 5500 Series) filed with the IRS with respect to a Plan, (ii) the most recent actuarial valuation report for any Plan, (iii) all notices received from a Multiemployer Plan sponsor, a plan administrator or any governmental agency, or provided to any Multiemployer Plan by the Borrower, its Subsidiaries or any ERISA Affiliate, concerning an ERISA Event and (iv) with respect to each Foreign Benefit Plan, any available annual reports, actuarial valuation reports or notices from plan sponsors, plan administrators or any Governmental Authority with respect to such plan; and
(j) promptly following any request therefor by the Administrative Agent (so long as the following are obtainable using commercially reasonable measures), copies of (i) any documents described in Section 101(k)(1) of ERISA that the Borrower, its Subsidiaries or any ERISA Affiliate may request with respect to any Multiemployer Plan and (ii) any notices described in Section 101(l)(1) of ERISA that the Borrower, its Subsidiaries or any ERISA Affiliate may request with respect to any Multiemployer Plan; provided that if the Borrower, its Subsidiaries or any ERISA Affiliate has not requested such documents or notices from the administrator or sponsor of the applicable Multiemployer Plan, the Borrower, its Subsidiaries or such ERISA Affiliate shall promptly make a request for such documents or notices from the such administrator or sponsor and shall provide copies of such documents and notices promptly after receipt thereof; provided that (x) in the event that any Parent Entity, as applicable, is not engaged in any business or activity, and does not own any assets or have other liabilities, other than those incidental to its ownership directly or indirectly of the Equity Interests of the Borrower and its Subsidiaries, such consolidated reporting at a Parent Entity’s level in a manner consistent with that described in paragraphs (a) and (b) of this Section 5.015.04 for the Borrower will satisfy the requirements of such paragraphs and (y) the financial statements, an Officer’s Certificate demonstrating information and other documents required to be provided as described above, may be those of (i) the Borrower or (ii) any Parent Entity rather than those of the Borrower; so long as the same is accompanied by consolidating information that explains in reasonable detail compliance with Section 6.08 as of the end of differences between the preceding fiscal quarter;
(e) promptly after information relating to such Parent Entity, on the occurrence thereofone hand, written notice of and the termination of a Plan of information relating to the Borrower or an ERISA Affiliate pursuant to Section 4042 of ERISAand the Restricted Subsidiaries on a standalone basis, to on the extent such termination would constitute an Event of Default under Section 7.01(j);other hand.
Appears in 1 contract
Financial Statements, Reports, etc. The Borrower shall deliver Deliver to the Administrative Agent on behalf of the Lenders:
(a) within Within ninety (90) days after the end of each fiscal year, Parentthe Borrower’s consolidated balance sheet and related statement of income and cash flows, showing the financial condition of Parent the Borrower and its Subsidiaries on a consolidated basis as of the close of such fiscal year and the results of their respective operations during such year, such the consolidated financial statements statement of Parent the Borrower to be audited for Parent the Borrower by Ernst & Young LLP or other independent public accountants of recognized national standing and to be accompanied by an opinion of such accountants (which opinion shall be unqualified without a “going concern” or like qualification or exception and without any more qualification or exception as to the scope of such audit, except for any such qualification solely as a result of (x) an impending debt maturity within twelve (12) months of any Revolving Facility under this Agreement or (y) a potential inability to satisfy any financial covenant) and to be certified by a Responsible Officer of the Borrower to the effect that such consolidated financial statements fairly present in all material respects the financial condition and results of operations of Parent the Borrower and its Subsidiaries on a consolidated basis in accordance with GAAP; provided that . Documents required to be delivered pursuant to this clause (a) which are made publicly available via XXXXX, or any successor system of the foregoing delivery requirement shall be satisfied if Parent shall have filed with SEC, in the SEC its Borrower’s Annual Report on Form 10-K for such fiscal yearK, which is available shall be deemed delivered to the public via XXXXX or any similar successor systemLenders on the date such documents are made so available;
(b) within Within forty-five (45) days after the end of each of the first three (3) fiscal quarters of each fiscal year, Parentthe Borrower’s consolidated balance sheets and related statements of income and cash flows, showing the financial condition of Parent the Borrower and its Subsidiaries on a consolidated basis as of the close of such fiscal quarter and the results of their operations during such fiscal quarter and the then-then elapsed portion of the fiscal year, each certified by a Responsible Officer of Parent the Borrower as fairly presenting in all material respects the financial condition and results of operations of Parent the Borrower and its Subsidiaries on a consolidated basis in accordance with GAAP, subject to normal year-end audit adjustments and the absence of footnotes; provided that . Documents required to be delivered pursuant to this clause (b) which are made publicly available via XXXXX, or any successor system of the foregoing delivery requirement shall be satisfied if Parent shall have filed with SEC, in the SEC its Borrower’s Quarterly Report on Form 10-Q for such fiscal quarterQ, which is available shall be deemed delivered to the public via XXXXX or any similar successor systemLenders on the date such documents are made so available;
(c) within the time period concurrently with any delivery of financial statements under Section 5.01(a)(a) and (b) above, a certificate of a Responsible Officer of the Borrower (in substantially the form of Exhibit A) (i) certifying that, to the knowledge of such Responsible Officer, no Event of Default has occurred and is continuingoccurred, or, if, to the knowledge of such Responsible Officer, such an Event of Default has occurred and is continuingoccurred, 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 provisions of Section 6.03;
(d) within the time period under (a) and (b) of this Section 5.01, an Officer’s Certificate demonstrating in reasonable detail compliance with Section 6.08 as of the end of the preceding fiscal quarter;
(e) promptly after the occurrence thereof, prompt written notice of the termination of a Plan of the Borrower any Termination Event that has occurred, or an ERISA Affiliate pursuant is reasonably expected to Section 4042 of ERISAoccur, to the extent such termination Termination Event would constitute an Event of Default under Section 7.01(j7.01(l);
(e) promptly after a Responsible Officer of the Borrower obtains knowledge of the filing or commencement of any action, suit or proceeding by or before any arbitrator or Governmental Authority against or affecting the Borrower or any Subsidiary that could reasonably be expected to result in a Material Adverse Effect, notification thereof;
(f) (i) on the date on which any Investment Property that is not listed on a national securities exchange is initially included as Additional Collateral, an Officer’s Certificate from the Borrower, in form and substance reasonably satisfactory to the Administrative Agent, setting forth the book value of such Investment Property as of the last day of the month most recently ended and excluding the contract value (or such other valuation method reasonably satisfactory to the Administrative Agent), together with all supporting documents with respect to such Investment Property as the Administrative Agent may reasonably request and (ii) at any time thereafter that any Investment Property that is not listed on a national securities exchange shall be included as Additional Collateral, concurrently with any delivery of financial statements under clause (a) or (b) above in respect of each fiscal quarter of the Borrower, an Officer’s Certificate from the Borrower, in form and substance reasonably satisfactory to the Administrative Agent, setting forth the book value of such Investment Property as of the last day of the month most recently ended and excluding the contract value (or such other valuation method reasonably satisfactory to the Administrative Agent), together with all supporting documents with respect to such Investment Property as the Administrative Agent may reasonably request;
(g) promptly after a Responsible Officer obtains knowledge thereof, notice that, with respect to any Pacific Routes, the authority granted to the Borrower by the DOT, any Governmental Authority or any applicable Foreign Aviation Authority relating to such Pacific Routes, to the extent necessary to operate the scheduled air carrier services being operated by the Borrower, will not be renewed, other than in cases where such failure of renewal would not reasonably be expected to result in a Material Adverse Effect;
(I) concurrently with any delivery of financial statements under clauses (a) and (b) above solely in respect of (i) the end of each fiscal year of the Borrower (commencing with the fiscal year ending December 31, 2020) and (ii) the end of each second fiscal quarter of each fiscal year of the Borrower (commencing with the fiscal quarter ending June 30, 2021), (II) as required by Section 6.05 and (III) to the extent required in connection with any Permitted Disposition, an updated calculation of the Collateral Coverage Ratio, reflecting the most recent Appraisal Reports delivered to the Administrative Agent in respect of the Collateral pursuant to the terms hereof; and
(i) if an Event of Default has occurred and is continuing, any subsequent Appraisal Report reasonably requested by the Administrative Agent or the Required Lenders, in each case as soon as reasonably practicable after receipt by the Borrower of such request. Subject to the next succeeding sentence, information delivered pursuant to this Section 5.01 to the Administrative Agent may be made available by the Administrative Agent to the Lenders by posting such information on the Intralinks website on the Internet at xxxx://xxx.xxxxxxxxxx.xxx. Information delivered pursuant to this Section 5.01 may also be delivered by electronic communication pursuant to procedures approved by the Administrative Agent pursuant to Section 10.01 hereto. Information required to be delivered pursuant to this Section 5.01 (to the extent not made available as set forth above) shall be deemed to have been delivered to the Administrative Agent on the date on which the Borrower provides written notice to the Administrative Agent that such information has been posted on the Borrower’s website on the Internet at xxxx://xxx.xxxxx.xxx (to the extent such information has been posted or is available as described in such notice). Information required to be delivered pursuant to this Section 5.01 shall be in a format which is suitable for transmission. Any notice or other communication delivered pursuant to this Section 5.01, or otherwise pursuant to this Agreement, shall be deemed to contain material non-public information unless (i) expressly marked by the Borrower as “PUBLIC”, (ii) such notice or communication consists of copies of the Borrower’s public filings with the SEC or (iii) such notice or communication has been posted on the Borrower’s website on the Internet at xxxx://xxx.xxxxx.xxx.
Appears in 1 contract
Financial Statements, Reports, etc. The Borrower shall deliver Furnish to the Administrative Agent on behalf of (which will promptly furnish such information to the Lenders:):
(a) within ninety (90) 120 days after following the end of the fiscal year ending December 31, 2013, and within 90 days following the end of each fiscal yearyear thereafter, Parent’s (i) a consolidated balance sheet and related statement statements of income operations, cash flows and cash flows, owners’ equity showing the financial condition position of Parent the Borrower and its Subsidiaries on a consolidated basis as of the close of such fiscal year and the consolidated results of their respective its operations during such year (the “Annual Financial Statements”); provided that if the Borrower includes the financial results of any person that is not a Restricted Subsidiary in such Annual Financial Statements, the Borrower shall also provide a supplement showing consolidating information for the Borrower and its Restricted Subsidiaries, (ii) a narrative discussion of management’s discussion and analysis of results (which need not be compliant with Regulation S-K) and (iii) starting with the fiscal year ending December 31, 2014, setting forth in comparative form the corresponding figures for the prior fiscal year, such which consolidated financial balance sheet and related statements of Parent to operations, cash flows and owners’ equity shall be audited for by the Borrower’s (or any Parent by Entity’s) independent public accountants of recognized national standing and to be accompanied by an opinion of such accountants (which opinion shall not be unqualified qualified as to scope of audit or as to the status of the Borrower or its Subsidiaries as a going concern other than any such auditqualification or exception that is solely with respect to, or resulting solely from, an upcoming maturity date under the Credit Facilities or the Senior Unsecured Notes occurring within one year from the time such report is delivered or any prospective default of any financial covenant) to the effect that such consolidated financial statements fairly present present, in all material respects respects, the financial condition position and results of operations of Parent the Borrower and its Subsidiaries on a consolidated basis in accordance with GAAP; provided GAAP (it being understood that the foregoing delivery requirement shall be satisfied if Parent shall have filed with the SEC its Annual Report of annual reports on Form 10-K for such fiscal yearof Holdings, which is available any Parent Entity or the Borrower and their respective consolidated Subsidiaries shall satisfy the requirements of this Section 5.04(a) to the public via XXXXX or any similar successor systemextent such annual reports include the information specified herein);
(b) within forty-five 45 days (45except 90 days in the case of the first fiscal quarter after the Closing Date for which quarterly financial statements are required to be delivered hereunder) days after following the end of each of the first three fiscal quarters of each fiscal year, Parent’s (i) a consolidated balance sheets sheet and related statements of income operations and cash flows, flows showing (x) the financial condition position of Parent the Borrower and its Subsidiaries on a consolidated basis as of the close of such fiscal quarter and the consolidated and consolidating results of their its operations during such fiscal quarter and (y) the then-elapsed portion of the fiscal yearyear and setting forth in comparative form the corresponding figures for the corresponding periods of the prior fiscal year (the “Quarterly Financial Statements” and, each together with the Annual Financial Statements, the “Required Financial Statements”); provided that if the Borrower includes the financial results of any person that is not a Restricted Subsidiary in such Quarterly Financial Statements, the Borrower shall also provide (i) a supplement showing consolidating information for the Borrower and its Restricted Subsidiaries and (ii) a narrative discussion of management’s discussion and analysis of results (which need not be compliant with Regulation S-K);
(c) notwithstanding the above, the Required Financial Statements shall be certified by a Responsible Officer of Parent the Borrower on behalf of the Borrower as fairly presenting presenting, in all material respects respects, the financial condition position and results of operations of Parent the Borrower and its Subsidiaries on a consolidated basis in accordance with GAAP, GAAP (subject to normal year-end audit adjustments and the absence of footnotes; provided ) (it being understood that the foregoing delivery requirement shall be satisfied if Parent shall have filed with the SEC its Quarterly Report of quarterly reports on Form 10-Q for such fiscal quarter, which is available of Holdings or any Parent Entity and their respective consolidated Subsidiaries shall satisfy the requirements of this Section 5.04(b) to the public via XXXXX or any similar successor systemextent such quarterly reports include the information specified herein);
(cd) within the time period concurrently with any delivery of Required Financial Statements under paragraphs (a) and (b) of this Section 5.01(a)5.04, a certificate of a Responsible Financial Officer of the Borrower (i) certifying that, to the knowledge of such Responsible Officer, that no Default or Event of Default has occurred and is continuing, continuing or, if, to the knowledge of such Responsible Officer, such an if a Default or Event of Default has occurred and is continuing, specifying the nature and extent thereof and any corrective action taken or proposed to be taken with respect thereto, (ii) setting forth the calculation and uses of the Available Amount for the fiscal period then ended if the Borrower shall have used the Available Amount for any purpose during such fiscal period, (iii) certifying a list of all Immaterial Subsidiaries, that each Subsidiary set forth on such list individually qualifies as an Immaterial Subsidiary and that all such Subsidiaries in the aggregate do not exceed the limitation set forth in clause (b) of the definition of the term “Immaterial Subsidiary” and (iv) certifying a list of all Unrestricted Subsidiaries at such time and that each Subsidiary set forth on such list qualifies as an Unrestricted Subsidiary;
(de) promptly after the same become publicly available, copies of all periodic and other publicly available reports, proxy statements and, to the extent requested by the Administrative Agent, other materials filed by the Borrower or its Subsidiaries with the SEC or, after an initial public offering, distributed to its stockholders generally, as applicable;
(f) upon the reasonable request of the Administrative Agent, concurrently with the delivery of the Annual Financial Statements, provide an update to the information set forth on the schedules to the Collateral Agreement, together with (i) information about deposit accounts, securities accounts and commodities accounts entered into by the Borrower or any of the Loan Parties and (ii) information regarding Material Real Property acquired by the Borrower or any of the Loan Parties, in the case of each of (i) and (ii), since the Closing Date or the delivery of the previous year’s Annual Financial Statements, as applicable, to the extent not previously notified to the Administrative Agent.
(g) within 120 days following the end of the fiscal year ending December 31, 2013, and within 90 days following the end of each fiscal year thereafter, a reasonably detailed consolidated annual budget for the succeeding fiscal year (including a projected consolidated balance sheet of the Borrower and its Subsidiaries as of the end of each fiscal quarter for such fiscal year and annual consolidated statements of projected cash flow and projected income), including a description of underlying assumptions with respect thereto (collectively, the “Budget”), which Budget shall in each case be accompanied by the statement of a Financial Officer of the Borrower to the effect that the Budget is based on assumptions believed by such Financial Officer to be reasonable as of the date of delivery thereof;
(h) promptly, from time period under to time, such other information regarding the operations, business affairs and financial condition of the Borrower and its Subsidiaries, or compliance with the terms of any Loan Document, in each case, as the Administrative Agent may reasonably request (for itself or on behalf of any Lender);
(i) promptly upon request by the Administrative Agent (so long as the following are obtainable using commercially reasonable measures), copies of (i) each Schedule SB (Single-Employer Defined Benefit Plan Actuarial Information) to the most recent annual report (Form 5500 Series) filed with the IRS with respect to a Plan, (ii) the most recent actuarial valuation report for any Plan, (iii) all notices received from a Multiemployer Plan sponsor, a plan administrator or any governmental agency, or provided to any Multiemployer Plan by the Borrower its Subsidiaries or any ERISA Affiliate, concerning an ERISA Event and (iv) with respect to each Foreign Benefit Plan, any available annual reports, actuarial valuation reports or notices from plan sponsors, plan administrators or any Governmental Authority with respect to such plan; and
(j) promptly following any request therefor by the Administrative Agent (so long as the following are obtainable using commercially reasonable measures), copies of (i) any documents described in Section 101(k)(1) of ERISA that the Borrower, its Subsidiaries or any ERISA Affiliate may request with respect to any Multiemployer Plan and (ii) any notices described in Section 101(l)(1) of ERISA that the Borrower, its Subsidiaries or any ERISA Affiliate may request with respect to any Multiemployer Plan; provided that if the Borrower, its Subsidiaries or any ERISA Affiliate has not requested such documents or notices from the administrator or sponsor of the applicable Multiemployer Plan, the Borrower, its Subsidiaries or such ERISA Affiliate shall promptly make a request for such documents or notices from the such administrator or sponsor and shall provide copies of such documents and notices promptly after receipt thereof; provided that (x) in the event that any Parent Entity, as applicable, is not engaged in any business or activity, and does not own any assets or have other liabilities, other than those incidental to its ownership directly or indirectly of the Equity Interests of the Borrower and its Subsidiaries, such consolidated reporting at a Parent Entity’s level in a manner consistent with that described in paragraphs (a) and (b) of this Section 5.015.04 for the Borrower will satisfy the requirements of such paragraphs and (y) the financial statements, an Officer’s Certificate demonstrating information and other documents required to be provided as described above, may be those of (i) the Borrower or (ii) any Parent Entity rather than those of the Borrower; so long as the same is accompanied by consolidating information that explains in reasonable detail compliance with Section 6.08 as of the end of differences between the preceding fiscal quarter;
(e) promptly after information relating to such Parent Entity, on the occurrence thereofone hand, written notice of and the termination of a Plan of information relating to the Borrower or an ERISA Affiliate and the Restricted Subsidiaries on a standalone basis, on the other hand. Documents required to be delivered pursuant to this Section 4042 of ERISA5.04 may be delivered electronically and if so delivered, shall be deemed to have been delivered on the date (i) on which such documents are transmitted by electronic mail to the extent Administrative Agent or (ii) on which such termination would constitute an Event documents are filed of Default under Section 7.01(j);record with the SEC.
Appears in 1 contract
Financial Statements, Reports, etc. The Borrower shall deliver Furnish to the Administrative Agent on behalf of the Lenders:Agent, who shall furnish to each Lender (including each Public Lender):
(a) (i) within ninety (90) days [REDACTED – Time Period] after the end of each fiscal yearFiscal Year, Parent’s (i) a consolidated balance sheet and related statement statements of income and comprehensive income, changes in equity and cash flows, flows showing the financial condition position of Parent the Borrower and its Subsidiaries on a consolidated basis subsidiaries as of the close of such fiscal Fiscal Year and their consolidated financial performance and cash flows for such year and setting forth in comparative form the results of their respective operations during corresponding figures for the prior Fiscal Year and (ii) a Narrative Report for such yearFiscal Year, such which consolidated financial balance sheet and related statements of Parent to income and comprehensive income, changes in equity and cash flows shall be audited for Parent by independent public chartered professional accountants of recognized national standing in Canada (or equivalent) and to be accompanied by an opinion of such accountants (which opinion shall not be unqualified qualified as to scope of such auditaudit or as to the status of the Borrower or any Material Subsidiary as a going concern (other than, in the case of going concern, an explanatory note with respect to an upcoming maturity of any series of indebtedness, Loans or Commitments) to the effect that such consolidated financial statements fairly present fairly, in all material respects respects, the financial condition position and results financial performance and cash flows of operations of Parent the Borrower and its Subsidiaries subsidiaries on a consolidated basis in accordance with GAAP; provided IFRS (it being understood that the foregoing delivery requirement shall be satisfied if Parent shall have filed with by the SEC its Borrower of an Annual Report on Form 10-K K, or the equivalent filed with the Canadian Securities Administrators and the Canadian Securities Administrators System for such fiscal year, which is available Electronic Document Analysis and Retrieval (“SEDAR”) website shall satisfy the requirements of this Section 5.4(a) to the public via XXXXX or any similar successor systemextent such Annual Report includes the information specified herein);
(b) within forty-five (45) days [REDACTED – Time Period] after the end of each of the first three fiscal quarters Fiscal Quarters of each fiscal yearFiscal Year, Parent’s commencing with the Fiscal Quarter ending March 31, 2016, (i) a consolidated balance sheets sheet and related statements of income and comprehensive income, changes in equity and cash flows, flows showing the financial condition position of Parent the Borrower and its Subsidiaries on a consolidated basis subsidiaries as of the close of such fiscal quarter Fiscal Quarter and the results of their operations during consolidated financial performance and cash flows for such fiscal quarter Fiscal Quarter and the then-elapsed portion of the fiscal yearFiscal Year and setting forth in comparative form the corresponding figures for the corresponding periods of the prior Fiscal Year and (ii) a Narrative Report for such Fiscal Quarter, each all of which shall be in reasonable detail and which consolidated balance sheet and related statements of income and comprehensive income, changes in equity and cash flows shall be certified by a Responsible Financial Officer of Parent the Borrower on behalf of the Borrower as fairly presenting presenting, in all material respects respects, the financial condition performance and results cash flows of operations of Parent the Borrower and its Subsidiaries subsidiaries on a consolidated basis in accordance with GAAP, IFRS (subject to normal year-end audit adjustments and the absence of footnotes; provided ) (it being understood that the foregoing delivery requirement shall be satisfied if Parent shall have filed with by the SEC its Borrower of a Quarterly Report on Form 10-Q for such fiscal quarter, which is available or the equivalent filed with the SEDAR website shall satisfy the requirements of this Section 5.4(b) to the public via XXXXX or any similar successor systemextent such quarterly reports include the information specified herein);
(c) within [REDACTED – Time Period] of any delivery of financial statements under paragraph (a) or (b) of this Section 5.4, a Compliance Certificate of a Financial Officer of the time Borrower (i) certifying that no Event of Default or Default has occurred that is then continuing, except as set forth therein, (ii) setting forth the calculation of the Senior Secured Net Leverage Ratio (calculated on a Pro Forma Basis) for the twelve-month period ending at the end of such fiscal period and (iii) in connection with the financial statements delivered under Section 5.01(a5.4(a), a certificate setting forth the calculation of a Responsible Officer of Excess Cash Flow for the Borrower certifying that, to the knowledge of such Responsible Officer, no Event of Default has occurred and is continuing, or, if, to the knowledge of such Responsible Officer, such an Event of Default has occurred and is continuing, specifying the nature and extent thereof and any corrective action taken or proposed to be taken with respect theretoapplicable Excess Cash Flow Period;
(d) within [REDACTED – Time Period] after the time period under (a) and (b) beginning of this Section 5.01each Fiscal Year, an Officer’s Certificate demonstrating a consolidated annual budget for such Fiscal Year, including a description of underlying assumptions with respect thereto, which budget shall in each case be accompanied by the statement of a Financial Officer of the Borrower to the effect that such budget is based on assumptions believed by such Financial Officer to be reasonable detail compliance with Section 6.08 as of the end date of the preceding fiscal quarterdelivery thereof;
(e) promptly, from time to time, such other customary information (which is readily available) regarding the operations, business affairs and financial condition of the Credit Parties and their Restricted Subsidiaries and their compliance with the terms of any Credit Document, in each case, as the Administrative Agent may reasonably request (for itself or on behalf of any Lender); and
(f) promptly after upon becoming aware of the occurrence of any ERISA Event, a written notice specifying the nature thereof, written notice what action Borrower, any of its subsidiaries or any of their respective ERISA Affiliates has taken, is taking or proposes to take with respect thereto and, when known, any action taken or threatened in writing by the termination Internal Revenue Service, the Department of a Plan of Labor, the Borrower PBGC or an ERISA Affiliate pursuant to Section 4042 of ERISA, to the extent such termination would constitute an Event of Default under Section 7.01(j);applicable pension regulator in Canada with respect thereto.
Appears in 1 contract
Samples: Credit and Guaranty Agreement (Concordia Healthcare Corp.)
Financial Statements, Reports, etc. The Borrower shall Furnish as provided below and deliver to the Administrative Agent on behalf of the LendersTrustee:
(a) within ninety (90) 105 days after the end of each fiscal year, Parent’s a consolidated balance sheet and related statement statements of income comprehensive income, cash flows and cash flows, stockholders’ equity showing the financial condition position of Parent the Issuer and its Subsidiaries on a consolidated basis as of the close of such fiscal year and the consolidated results of their respective operations during such year and setting forth in comparative form the corresponding figures for the prior fiscal year, such which consolidated financial balance sheet and related statements of Parent to comprehensive income, cash flows and stockholders’ equity shall be accompanied by customary management’s discussion and analysis and audited for Parent by independent public accountants of recognized national standing and to be accompanied by an opinion of such accountants (which opinion shall be unqualified as to scope of such audit) to the effect that such consolidated financial statements fairly present present, in all material respects respects, the financial condition position and results of operations of Parent the Issuer and its Subsidiaries on a consolidated basis in accordance with GAAP; provided GAAP (it being understood that the foregoing delivery requirement shall be satisfied if Parent shall have filed with by the SEC its Annual Report Issuer of annual reports on Form 10-K for of the Issuer and its consolidated Subsidiaries shall satisfy the requirements of this Section 7.04(a) to the extent such fiscal yearannual reports include the information specified herein), which is available information will be posted to the public via XXXXX or any similar successor system;
Public Side Portal; (b) within forty-five (45) 60 days after the end of each of the first three fiscal quarters of each fiscal year, Parent’s a consolidated balance sheets sheet and related statements of income comprehensive income, cash flows and cash flows, stockholders’ equity showing the financial condition position of Parent the Issuer and its Subsidiaries on a consolidated basis as of the close of such fiscal quarter and the consolidated results of their operations during such fiscal quarter and the then-elapsed portion of the fiscal year and setting forth in comparative form the corresponding figures for the corresponding periods of the prior fiscal year, each all of which shall be in reasonable detail, which consolidated balance sheet and related statements of operations, cash flows and stockholders’ equity shall be accompanied by customary management’s discussion and analysis and which consolidated balance sheet and related statements of comprehensive income, cash flows and stockholders’ equity shall be certified by a Responsible Financial Officer of Parent the Issuer on behalf of the Issuer as fairly presenting presenting, in all material respects respects, the financial condition position and results of operations of Parent the Issuer and its Subsidiaries on a consolidated basis in accordance with GAAP, GAAP (subject to normal year-end audit adjustments and the absence of footnotes; provided ) (it being understood that the foregoing delivery requirement shall be satisfied if Parent shall have filed with by the SEC its Quarterly Report Issuer of quarterly reports on Form 10-Q for such fiscal quarter, which is available to the public via XXXXX or any similar successor system;
(c) within the time period under Section 5.01(a), a certificate of a Responsible Officer of the Borrower certifying that, to Issuer and its consolidated Subsidiaries shall satisfy the knowledge of such Responsible Officer, no Event of Default has occurred and is continuing, or, if, to the knowledge of such Responsible Officer, such an Event of Default has occurred and is continuing, specifying the nature and extent thereof and any corrective action taken or proposed to be taken with respect thereto;
(d) within the time period under (a) and (b) requirements of this Section 5.01, an Officer’s Certificate demonstrating in reasonable detail compliance with Section 6.08 as of the end of the preceding fiscal quarter;
(e7.04(b) promptly after the occurrence thereof, written notice of the termination of a Plan of the Borrower or an ERISA Affiliate pursuant to Section 4042 of ERISA, to the extent such termination would constitute an Event of Default under Section 7.01(jquarterly reports include the information specified herein), which information will be posted to the Public Side Portal;
Appears in 1 contract
Financial Statements, Reports, etc. The Borrower shall deliver Furnish to the Administrative Agent on behalf of the Lendersand each Lender:
(a) within ninety (90) 95 days after the end of each fiscal year, Parent’s its annual report on Form 10-K as filed with the SEC, including its consolidated balance sheet and the related consolidated earnings statement of income and cash flows, showing the its consolidated financial condition of Parent and its Subsidiaries on a consolidated basis as of the close of such fiscal year and the consolidated results of their respective its operations during such year, such consolidated financial statements of Parent to be all audited for Parent by Deloitte & Touche LLP or other independent certified public accountants of recognized national standing and to be accompanied selected by an opinion of such accountants (which opinion shall be unqualified as to 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 Parent and its Subsidiaries on a consolidated basis in accordance with GAAP; provided that the foregoing delivery requirement shall be satisfied if Parent shall have filed with the SEC its Annual Report on Form 10-K for such fiscal year, which is available to the public via XXXXX or any similar successor systemCompany;
(b) within forty-five (45) 50 days after the end of each of the first three fiscal quarters of each fiscal year, Parent’s its quarterly report on Form 10-Q as filed with the SEC, including its unaudited consolidated balance sheets sheet and related statements of income and cash flowsconsolidated earnings statement, showing the its consolidated financial condition of Parent and its Subsidiaries on a consolidated basis as of the close of such fiscal quarter and the consolidated results of their its operations during such fiscal quarter and the then-then elapsed portion of the fiscal year, year (and each certified by delivery of such statements shall be deemed a Responsible Officer of Parent as representation that such statements fairly presenting in all material respects present the Company’s financial condition and results of operations of Parent and its Subsidiaries on a consolidated basis in accordance with GAAP, subject to normal year-end audit adjustments and the absence of footnotes); provided that the foregoing delivery requirement shall be satisfied if Parent shall have filed with the SEC its Quarterly Report on Form 10-Q for such fiscal quarter, which is available to the public via XXXXX or any similar successor system;and
(c) within the promptly, from time period under Section 5.01(a), a certificate of a Responsible Officer of the Borrower certifying that, to the knowledge of such Responsible Officer, no Event of Default has occurred and is continuing, or, if, to the knowledge of such Responsible Officertime, such an Event of Default has occurred and is continuing, specifying other information as any Lender shall reasonably request through the nature and extent thereof and any corrective action taken or proposed Administrative Agent. Information required to be taken with respect thereto;
(d) within the time period under delivered pursuant to clauses (a) and – (b) of this Section 5.01SECTION 5.3. shall be deemed to have been effectively delivered (including for purposes of SECTION 8.1. (b) ) on the date on which such information has been posted on the SEC website on the Internet at xxx.xxx.xxx/xxxxx/xxxxxxxx.xxx (or any successor website), an Officeron the Company’s Certificate demonstrating DebtDomain site or at another relevant website accessible by the Lenders without charge. Information required to be delivered pursuant to clause (c) of this SECTION 5.3. shall be deemed to have been effectively delivered (including for the purposes of SECTION 8.1. (b) ) on the date on which the Company provides notice to the Administrative Agent (which notice the Administrative Agent shall promptly provide to the requesting Lenders) that such information has been provided in reasonable detail compliance accordance with Section 6.08 as of the end of the preceding fiscal quarter;
(e) promptly after sentence or on the occurrence thereof, written notice of date on which the termination of a Plan of the Borrower or an ERISA Affiliate pursuant to Section 4042 of ERISA, Company actually delivers such information to the extent Administrative Agent (and the Administrative Agent will promptly deliver such termination would constitute an Event of Default under Section 7.01(jinformation to the requesting Lenders);.
Appears in 1 contract
Samples: Revolving Credit Facility Agreement (Bristol Myers Squibb Co)
Financial Statements, Reports, etc. The Borrower shall deliver Furnish to the Administrative Agent on behalf of the LendersAgent, who shall furnish to each Lender:
(a) within ninety (90) 90 days after the end of each fiscal yearFiscal Year (or such longer period as may be permitted by the SEC if the Borrower were then subject to the SEC reporting requirements as a non-accelerated flier), Parent’s (i) a consolidated balance sheet and related statement statements of income and comprehensive income, changes in shareholders’ equity and cash flows, flows showing the financial condition position of Parent the Borrower and its Subsidiaries on a consolidated basis subsidiaries as of the close of such fiscal Fiscal Year and their consolidated financial performance and cash flows for such year and setting forth in comparative form the results of their respective operations during corresponding figures for the prior Fiscal Year and (ii) a Narrative Report for such yearFiscal Year, such which consolidated financial balance sheet and related statements of Parent to income and comprehensive income, changes in shareholders’ equity and cash flows shall be audited for Parent by independent public chartered professional accountants of recognized national standing and to be accompanied by an opinion of such accountants (which opinion shall not be unqualified qualified as to scope of audit or as to the status of the Borrower or any Material Subsidiary as a “going concern” (provided that such report may contain a “going concern” or like qualification or exception, or qualification arising out of the scope of the audit, if such qualification or exception is related solely to (i) an upcoming maturity date of any Indebtedness incurred in compliance with Section 6.1, (ii) any potential inability to satisfy any financial maintenance covenant included in any Indebtedness of the Borrower or its Subsidiaries on a future date in a future period or (iii) the activities, operations, financial results, assets or liabilities of any Unrestricted Subsidiary)) to the effect that such consolidated financial statements fairly present fairly, in all material respects respects, the financial condition position and results financial performance and cash flows of operations of Parent the Borrower and its Subsidiaries subsidiaries on a consolidated basis in accordance with GAAP; provided GAAP (it being understood that the foregoing delivery requirement shall be satisfied if or furnishing by the Borrower or any Parent shall have filed with the SEC its Holding Company of an Annual Report on Form 10-K for such fiscal year, which is available to shall satisfy the public via XXXXX or any similar successor systemrequirements of this Section 5.4(a));
(b) within forty-five (45) 45 days after the end of each of the first three fiscal quarters Fiscal Quarters of each fiscal yearFiscal Year (or such longer period as may be permitted by the SEC if the Borrower were then subject to the SEC reporting requirements as a non-accelerated flier), Parent’s commencing with the Fiscal Quarter ending December 30, 2015, (i) a consolidated balance sheets sheet and related statements of income comprehensive income, changes in shareholders’ equity and cash flows, flows showing the financial condition position of Parent the Borrower and its Subsidiaries on a consolidated basis subsidiaries as of the close of such fiscal quarter Fiscal Quarter and the results of their operations during consolidated financial performance and cash flows for such fiscal quarter Fiscal Quarter and the then-elapsed portion of the fiscal yearFiscal Year and setting forth in comparative form the corresponding figures for the corresponding periods of the prior Fiscal Year and (ii) a Narrative Report for such Fiscal Quarter, each all of which shall be in reasonable detail and which consolidated balance sheet and related statements of income and comprehensive income, changes in shareholders’ equity and cash flows shall be certified by a Responsible Financial Officer of Parent the Borrower on behalf of the Borrower as fairly presenting presenting, in all material respects respects, the financial condition performance and results cash flows of operations of Parent the Borrower and its Subsidiaries subsidiaries on a consolidated basis in accordance with GAAP, GAAP (subject to normal year-end audit adjustments and the absence of footnotes; provided ) (it being understood that the foregoing delivery requirement shall be satisfied if or furnishing by the Borrower or any Parent shall have filed with the SEC its Holding Company of a Quarterly Report on Form 10-Q for such fiscal quarter, which is available to shall satisfy the public via XXXXX or any similar successor systemrequirements of this Section 5.4(b));
(c) within the time period five Business Days of any delivery of financial statements under paragraph (a) or (b) of this Section 5.01(a)5.4, a certificate Compliance Certificate of a Responsible Financial Officer of the Borrower (i) certifying that, to the knowledge of such Responsible Officer, that no Event of Default has occurred and is continuing, or, if, to the knowledge of such Responsible Officer, such an Event of or Default has occurred and that is then continuing, specifying except as set forth therein, (ii) setting forth the nature calculation of the First Lien Net Leverage Ratio (calculated on a Pro Forma Basis) for the twelve-month period ending at the end of such fiscal period, (iii) setting forth the calculation of the Secured Net Leverage Ratio (calculated on a Pro Forma Basis) for the twelve-month period ending at the end of such fiscal period, and extent thereof and any corrective action taken or proposed to be taken (iv) in connection with respect theretothe financial statements delivered under Section 5.4(a) commencing with such delivery in connection with the fiscal year ending June 30, 2017, a certificate setting forth the calculation of Excess Cash Flow for the applicable Excess Cash Flow Period;
(d) within 90 days after the beginning of each Fiscal Year, a consolidated annual budget for such Fiscal Year, including a description of underlying assumptions with respect thereto, which budget shall in each case be accompanied by the statement of a Financial Officer of the Borrower to the effect that such budget is based on assumptions believed by such Financial Officer to be reasonable as of the date of delivery thereof;
(e) promptly, from time period under to time, such other customary information (awhich is readily available) regarding the operations, business affairs and (b) financial condition of this Section 5.01, an Officer’s Certificate demonstrating in reasonable detail the Credit Parties and their Restricted Subsidiaries and their compliance with Section 6.08 the terms of any Credit Document, in each case, as the Administrative Agent may reasonably request (for itself or on behalf of any Lender); and
(f) promptly upon becoming aware of the occurrence of any ERISA Event, a written notice specifying the nature thereof, what action Borrower, any of its subsidiaries or any of their respective ERISA Affiliates has taken, is taking or proposes to take with respect thereto and, when known, any action taken or threatened in writing by the Internal Revenue Service, the Department of Labor or the PBGC.; and
(g) within 5 Business Days of any month end, the Borrower shall furnish to the Administrative Agent a certificate of a Financial Officer of the Borrower setting forth the calculation of Liquidity (calculated on a Pro Forma Basis) as of the end of the preceding fiscal quarter;
(e) promptly after the occurrence thereof, written notice of the termination of a Plan of the Borrower or an ERISA Affiliate pursuant to Section 4042 of ERISA, to the extent such termination would constitute an Event of Default under Section 7.01(j);applicable month.
Appears in 1 contract
Financial Statements, Reports, etc. The Borrower shall deliver to the Administrative Agent on behalf of the Lenders:
(a) within ninety (90) days after the end of each fiscal year, ParentXxxxxx’s consolidated balance sheet and related statement of income and cash flows, showing the financial condition of Parent and its Subsidiaries on a consolidated basis as of the close of such fiscal year and the results of their respective operations during such year, such consolidated financial statements of Parent to be audited for Parent by independent public accountants of recognized national standing and to be accompanied by an opinion of such accountants (which opinion shall be unqualified as to 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 Parent and its Subsidiaries on a consolidated basis in accordance with GAAP; provided that the foregoing delivery requirement shall be satisfied if Parent shall have filed with the SEC its Annual Report on Form 10-K for such fiscal year, which is available to the public via XXXXX or any similar successor system;
(b) within forty-five (45) days after the end of each of the first three fiscal quarters of each fiscal year, Parent’s consolidated balance sheets and related statements of income and cash flows, showing the financial condition of Parent and its Subsidiaries on a consolidated basis as of the close of such fiscal quarter and the results of their operations during such fiscal quarter and the then-elapsed portion of the fiscal year, each certified by a Responsible Officer of Parent as fairly presenting in all material respects the financial condition and results of operations of Parent and its Subsidiaries on a consolidated basis in accordance with GAAP, subject to normal year-end audit adjustments and the absence of footnotes; provided that the foregoing delivery requirement shall be satisfied if Parent shall have filed with the SEC its Quarterly Report on Form 10-Q for such fiscal quarter, which is available to the public via XXXXX or any similar successor system;
(c) within the time period under Section 5.01(a), a certificate of a Responsible Officer of the Borrower certifying that, to the knowledge of such Responsible Officer, no Event of Default has occurred and is continuing, or, if, to the knowledge of such Responsible Officer, such an Event of Default has occurred and is continuing, specifying the nature and extent thereof and any corrective action taken or proposed to be taken with respect thereto;
(d) within the time period under (a) and (b) of this Section 5.01, an Officer’s Certificate demonstrating in reasonable detail compliance with Section 6.08 as of the end of the preceding fiscal quarter;
(e) promptly after the occurrence thereof, written notice of the termination of a Plan of the Borrower or an ERISA Affiliate pursuant to Section 4042 of ERISA, to the extent such termination would constitute an Event of Default under Section 7.01(j);
Appears in 1 contract
Samples: Credit and Guaranty Agreement (American Airlines, Inc.)
Financial Statements, Reports, etc. The Borrower shall deliver Furnish to the Administrative Agent on behalf of (which will promptly furnish such information to the Lenders:):
(a) within ninety (90) 110 days after following the end of the fiscal year ending December 30, 2012,2012 and within 90 days following the end of each fiscal yearyear thereafter, Parent’s either (at the option of the Borrower) (i) a consolidated balance sheet and related statement statements of income operations, cash flows and cash flows, owners’ equity showing the financial condition position of SF CCUltimate Parent and its Subsidiaries on a consolidated basis as of the close of such fiscal year and the consolidated results of their respective itstheir operations during such year, such or (ii) a consolidated financial balance sheet and related statements of operations, cash flows and owners’ equity showing the financial position of Parent to and its Subsidiaries as of the close of such fiscal year and the consolidated results of itstheir operations during such year (provided that if SF CCUltimate Parent or Parent, as the case may be, includes the financial results of any person that is not a Loan Party or a Subsidiary of Borrower Holdco in such financial statements, the Borrower shall also provide a supplement showing consolidating information for Borrower Holdco and its Subsidiaries) and, in each case, starting with the fiscal year ending December 29, 2013,, setting forth in comparative form the corresponding figures for the prior fiscal year, which consolidated balance sheet and related statements of operations, cash flows and owners’ equity shall be audited for Parent by independent public accountants of recognized national standing and to be accompanied by an opinion of such accountants (which opinion shall not be unqualified qualified as to scope of audit or as to the status of SF CCUltimate Parent, Parent or any Material Subsidiary as a going concern other than any such auditqualification or exception that is solely with respect to, or resulting solely from, an upcoming maturity date under this Agreement, the Term Loan Facility or the Second Lien Term Loan Facility occurring within one year from the time such report is delivered) to the effect that such consolidated financial statements fairly present present, in all material respects respects, the financial condition position and results of operations of SF CCUltimate Parent and its Subsidiaries or Parent and its Subsidiaries, as the case may be, on a consolidated basis in accordance with GAAP (it being understood that the delivery of annual reports on Form 10-K of SF CCUltimate Parent or Parent and their respective consolidated Subsidiaries shall satisfy the requirements of this Section 5.04(a) to the extent such annual reports include the information specified herein) (the applicable financial statements delivered pursuant to this clause (a) being the “Annual Financial Statements”);
(b) within 45 days (except in the case of the first two fiscal quarters for which quarterly financial statements are required to be delivered hereunder, within 60 days) following the end of each of the first three fiscal quarters of each fiscal year, (i) either (at the option of the Borrower) (A) a consolidated balance sheet and related statements of operations and cash flows showing the financial position of SF CCUltimate Parent and its Subsidiaries as of the close of such fiscal quarter and the consolidated and consolidating results of itstheir operations during such fiscal quarter, or (B) a consolidated balance sheet and related statements of operations and cash flows showing the financial position of Parent and its Subsidiaries as of the close of such fiscal quarter and the consolidated results of itstheir operations during such fiscal quarter (provided that if SF CCUltimate Parent or Parent, as the case may be, includes the financial results of any person that is not a Loan Party or a Subsidiary of Borrower Holdco in such financial statements, the Borrower shall also provide a supplement showing consolidating information for Borrower Holdco and its Subsidiaries) and, in each case, the then-elapsed portion of the fiscal year and setting forth in comparative form the corresponding figures for the corresponding periods of the prior fiscal year, and (ii) management’s discussion and analysis of significant operational and financial developments during such quarterly period, all of which shall be in reasonable detail and which consolidated balance sheet and related statements of operations and cash flows shall be certified by a Responsible Officer of Parent on behalf of Parent as fairly presenting, in all material respects, the financial position and results of operations of Parent and its Subsidiaries on a consolidated basis in accordance with GAAP; provided that the foregoing delivery requirement shall be satisfied if Parent shall have filed with the SEC its Annual Report on Form 10-K for such fiscal year, which is available to the public via XXXXX or any similar successor system;
GAAP (b) within forty-five (45) days after the end of each of the first three fiscal quarters of each fiscal year, Parent’s consolidated balance sheets and related statements of income and cash flows, showing the financial condition of Parent and its Subsidiaries on a consolidated basis as of the close of such fiscal quarter and the results of their operations during such fiscal quarter and the then-elapsed portion of the fiscal year, each certified by a Responsible Officer of Parent as fairly presenting in all material respects the financial condition and results of operations of Parent and its Subsidiaries on a consolidated basis in accordance with GAAP, subject to normal year-end audit adjustments and the absence of footnotes; provided ) (it being understood that the foregoing delivery requirement shall be satisfied if Parent shall have filed with the SEC its Quarterly Report of quarterly reports on Form 10-Q for such fiscal quarter, which is available of SF CCUltimate Parent or Parent and their respective consolidated Subsidiaries shall satisfy the requirements of this Section 5.04(b) to the public via XXXXX or any similar successor systemextent such quarterly reports include the information specified herein) (the applicable financial statements delivered pursuant to this clause (b) being the “Quarterly Financial Statements” and, together with the Annual Financial Statements, the “Required Financial Statements”);
(c) within the time period concurrently with any delivery of Required Financial Statements under paragraphs (a) and (b) of this Section 5.01(a)5.04, a certificate of a Responsible Financial Officer of the Borrower (i) certifying that, to the knowledge of such Responsible Officer, that no Default or Event of Default has occurred and is continuing, continuing or, if, to the knowledge of such Responsible Officer, such an if a Default or Event of Default has occurred and is continuing, specifying the nature and extent thereof and any corrective action taken or proposed to be taken with respect thereto, (ii) if a Covenant Trigger Event has occurred and is continuing, demonstrating compliance with Section 6.10 (in reasonable detail satisfactory to the Administrative Agent), (iii) certifying a list of all Immaterial Subsidiaries, that each Subsidiary set forth on such list individually qualifies as an Immaterial Subsidiary and that all such Subsidiaries in the aggregate do not exceed the limitation set forth in clause (b) of the definition of the term “Immaterial Subsidiary” and (iv) certifying a list of all Unrestricted Subsidiaries at such time and that each Subsidiary set forth on such list qualifies as an Unrestricted Subsidiary;
(d) promptly after the same become publicly available, copies of all periodic and other publicly available reports, proxy statements and, to the extent requested by the Administrative Agent, other materials filed by SF CCUltimate Parent, Parent, the Borrower or any other Subsidiary with the SEC, or after an initial public offering, distributed to its stockholders generally, as applicable; provided that such reports, proxy statements, filings and other materials required to be delivered pursuant to this clause (d) shall be deemed delivered for purposes of this Agreement when posted to the website of the Borrower;
(e) within 90 days after the beginning of each fiscal year, a reasonably detailed consolidated annual budget for such fiscal year (including a projected consolidated balance sheet of Parent and its Subsidiaries as of the end of each fiscal quarter for the following fiscal year, and annual consolidated statements of projected cash flow and projected income), including a description of underlying assumptions with respect thereto (collectively, the “Budget”), which Budget shall in each case be accompanied by the statement of a Financial Officer of Parent to the effect that the Budget is based on assumptions believed by such Financial Officer to be reasonable as of the date of delivery thereof;
(f) upon the reasonable request of the Collateral Agent, concurrently with any delivery of Annual Financial Statements under paragraph (a) of this Section 5.04, an updated Perfection Certificate (or, to the extent such request relates to specified information contained in the Perfection Certificate, such information) reflecting all changes since the date of the information most recently received pursuant to this paragraph (f) or Section 5.10(ed);
(g) promptly, from time period under to time, such other information regarding the operations, business affairs and financial condition of Parent or any Subsidiary, or compliance with the terms of any Loan Document, in each case, as the Administrative Agent may reasonably request (for itself or on behalf of any Lender);
(h) on or before the 15th Business Day of each month from and after the Closing Date, a Borrowing Base Certificate from the as of the last day of the immediately preceding month, with such supporting materials as the Administrative Agent shall reasonably request. Notwithstanding the foregoing, after the occurrence and during the continuance of (i) a Weekly Monitoring Event or (ii) a Designated Event of Default, on Wednesday of each week (or, if Wednesday is not a Business Day, on the next succeeding Business Day), the Borrower shall furnish a Borrowing Base Certificate calculated as of the close of business on Saturday of the immediately preceding calendar week;
(i) promptly upon request by the Administrative Agent (so long as the following are obtainable using commercially reasonable measures), copies of (i) each Schedule SB (Single-Employer Defined Benefit Plan Actuarial Information) to the most recent annual report (Form 5500 Series) filed with the Internal Revenue Service with respect to a Plan, (ii) the most recent actuarial valuation report for any Plan, (iii) all notices received from a Multiemployer Plan sponsor, a plan administrator or any governmental agency, or provided to any Multiemployer Plan by the Borrower, any other Subsidiary or any ERISA Affiliate, concerning an ERISA Event and (iv) with respect to each Foreign Benefit Plan, any available annual reports, actuarial valuation reports or notices from plan sponsors, plan administrators or any Governmental Authority with respect to such plan; and
(j) promptly following any request therefor by the Administrative Agent (so long as the following are obtainable using commercially reasonable measures), copies of (i) any documents described in Section 101(k)(1) of ERISA that Parent, the Borrower, any other Subsidiary or any ERISA Affiliate may request with respect to any Multiemployer Plan and (ii) any notices described in Section 101(l)(1) of ERISA that Parent, the Borrower, any other Subsidiary or any ERISA Affiliate may request with respect to any Multiemployer Plan; provided that if Parent, the Borrower, any other Subsidiary or any ERISA Affiliate has not requested such documents or notices from the administrator or sponsor of the applicable Multiemployer Plan, Parent, the Borrower, such other Subsidiary or such ERISA Affiliate shall promptly make a request for such documents or notices from the such administrator or sponsor and shall provide copies of such documents and notices promptly after receipt thereof; provided that in the event that Parent and/or any Parent Entity, as applicable, is not engaged in any business or activity, and does not own any assets or have other liabilities, other than those incidental to its ownership directly or indirectly of the Equity Interests of the Borrower and the other Subsidiaries, such consolidated reporting at a Parent Entity’s level in a manner consistent with that described in paragraphs (a) and (b) of this Section 5.01, an Officer’s Certificate demonstrating in reasonable detail compliance with Section 6.08 as 5.04 for Parent will satisfy the requirements of the end of the preceding fiscal quarter;
(e) promptly after the occurrence thereof, written notice of the termination of a Plan of the Borrower or an ERISA Affiliate pursuant to Section 4042 of ERISA, to the extent such termination would constitute an Event of Default under Section 7.01(j);paragraphs.
Appears in 1 contract
Financial Statements, Reports, etc. The Borrower shall deliver Furnish to the Administrative Agent on behalf of (which will promptly furnish such information to the Lenders:):
(a) within ninety 90 days (90or such shorter period as the SEC shall specify for the filing of Annual Reports on Form 10-K) days after the end of each fiscal year, Parent’s a consolidated balance sheet and related statement statements of income operations, cash flows and cash flows, owners' equity showing the financial condition position of Parent Holdings and its the Subsidiaries on a consolidated basis as of the close of such fiscal year and the consolidated results of their respective operations during such year and setting forth in comparative form the corresponding figures for the prior fiscal year, such consolidated financial statements of Parent to be all audited for Parent by independent public accountants of recognized national standing reasonably acceptable to the Administrative Agent and to be accompanied by an opinion of such accountants (which opinion shall not be unqualified as to scope of such auditqualified in any material respect) to the effect that such consolidated financial statements fairly present present, in all material respects respects, the financial condition position and results of operations of Parent Holdings and its the Subsidiaries on a consolidated basis in accordance with GAAP; provided GAAP (it being understood that the foregoing delivery requirement shall be satisfied if Parent shall have filed with the SEC its by Holdings of Annual Report Reports on Form 10-K for such fiscal year, which is available of Holdings and its consolidated Subsidiaries shall satisfy the requirements of this Section 5.04
(a) to the public via XXXXX or any similar successor systemextent such Annual Reports include the information specified herein);
(b) within forty45 days (or such shorter period as the SEC shall specify for the filing of Quarterly Reports on Form 10-five (45Q) days after the end of each of the first three fiscal quarters of each fiscal year, Parent’s a consolidated balance sheets sheet and related statements of income operations and cash flows, flows showing the financial condition position of Parent Holdings and its the Subsidiaries on a consolidated basis as of the close of such fiscal quarter and the consolidated results of their operations during such fiscal quarter and the then-elapsed portion of the fiscal year and setting forth in comparative form the corresponding figures for the corresponding periods of the prior fiscal year, each all certified by a Responsible Financial Officer of Parent Holdings, on behalf of Holdings, as fairly presenting presenting, in all material respects respects, the financial condition position and results of operations of Parent Holdings and its the Subsidiaries on a consolidated basis in accordance with GAAP, GAAP (subject to normal year-end audit adjustments and the absence of footnotes; provided footnotes (it being understood that the foregoing delivery requirement shall be satisfied if Parent shall have filed with the SEC its by Holdings of Quarterly Report Reports on Form 10-Q for such fiscal quarter, which is available to of Holdings and its consolidated Subsidiaries shall satisfy the public via XXXXX or any similar successor system;
(c) within the time period under Section 5.01(a), a certificate of a Responsible Officer of the Borrower certifying that, to the knowledge of such Responsible Officer, no Event of Default has occurred and is continuing, or, if, to the knowledge of such Responsible Officer, such an Event of Default has occurred and is continuing, specifying the nature and extent thereof and any corrective action taken or proposed to be taken with respect thereto;
(d) within the time period under (a) and (b) requirements of this Section 5.01, an Officer’s Certificate demonstrating in reasonable detail compliance with Section 6.08 as of the end of the preceding fiscal quarter;
(e5.04(b) promptly after the occurrence thereof, written notice of the termination of a Plan of the Borrower or an ERISA Affiliate pursuant to Section 4042 of ERISA, to the extent such termination would constitute an Event of Default under Section 7.01(jQuarterly Reports include the information specified herein);
Appears in 1 contract
Samples: Credit Agreement (Nalco Energy Services Equatorial Guinea LLC)
Financial Statements, Reports, etc. The Borrower shall deliver In the case of the Borrower, furnish to the Administrative Agent on behalf (except, in the case of the Lendersfinancial 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 pursuant to paragraph (d) below) with sufficient copies for each Lender:
(a) within ninety (90) 120 days after the end of each fiscal year, Parent’s (i) its consolidated balance sheet and related statement statements of income and changes in financial position (or of cash flowsflow, as appropriate), showing the financial condition of Parent the Borrower and its consolidated Subsidiaries on a consolidated basis as of the close of such fiscal year and the results of their respective its operations and the operations of such Subsidiaries during such year, such consolidated financial statements of Parent to be all audited for Parent by Deloitte & Touche LLP or other independent public accountants of recognized national standing acceptable to the Administrative Agent and to be accompanied by an opinion of such accountants (which opinion shall not be unqualified as to scope of such auditqualified 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 Parent and its Subsidiaries the Borrower on a consolidated basis in accordance with GAAP; provided that 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 foregoing delivery requirement shall be satisfied if Parent shall have filed with case may be) for KGE as of the SEC its Annual Report on Form 10-K for end of such fiscal year, which is available 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 prepare, audited financial statements, any such financial statements of KGE shall be audited by Deloitte & Touche LLP or other independent public accountants of recognized national standing acceptable to the public via XXXXX or Administrative Agent and accompanied by an opinion of such accountants (which shall not be qualified in any similar successor systemmaterial 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 forty-five (45) 90 days after the end of each of the first three fiscal quarters of each fiscal year, Parent’s (i) its consolidated balance sheets sheet and related statements of income and cash flowschanges in financial position, showing the financial condition of Parent the Borrower and its consolidated Subsidiaries on a as of the close of such fiscal quarter and the results of its operations and the operations of such Subsidiaries during such fiscal quarter and the then elapsed portion of the fiscal year, all certified by one of its Financial Officers as fairly presenting the financial condition and results of operations of the Borrower and its consolidated basis Subsidiaries in accordance with generally accepted accounting principles consistently applied, subject to normal year-end audit adjustments and (ii) so long as KGE shall 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-then elapsed portion of the fiscal year, each all certified by a Responsible Officer one of Parent its Financial Officers as fairly presenting in all material respects the financial condition and results of operations of Parent KGE and its consolidated Subsidiaries on a consolidated basis in accordance with GAAPgenerally accepted accounting principles consistently applied, subject to normal year-end audit adjustments and the absence of footnotes; provided that the foregoing delivery requirement shall be satisfied if Parent shall have filed with the SEC its Quarterly Report on Form 10-Q for such fiscal quarter, which is available to the public via XXXXX or any similar successor systemadjustments;
(c) within the time period concurrently with any delivery of financial statements under Section 5.01(a)(a) or (b) above, a certificate of a Responsible Financial Officer of the Borrower who shall, if applicable, be the Financial Officer opining on or certifying that, to the knowledge of such Responsible Officer, statements (i) certifying that no Event of Default or Default has occurred and is continuing, or, if, to the knowledge of such Responsible Officer, if such an Event of Default or Default has occurred and is continuingoccurred, specifying the nature and extent thereof and any corrective action taken or proposed to be taken with respect theretothereto and (ii) setting forth computations in reasonable detail satisfactory to the Administrative Agent demonstrating compliance with the covenants contained in Section 6.1;
(d) within promptly after the time period under (a) and (b) same become publicly available, copies of this Section 5.01all reports on Forms 10-K, an Officer’s Certificate demonstrating in reasonable detail compliance 10-Q or 8-K filed by it with Section 6.08 as of the end of the preceding fiscal quarter;SEC; and
(e) promptly after from time to time, such other information regarding the occurrence thereofoperations, written notice of the termination of a Plan business affairs and financial condition of the Borrower or an ERISA Affiliate any Significant Subsidiary or compliance with the terms of any Loan Document, as the Administrative Agent or any Lender may reasonably request. Any financial statement or report required to be furnished pursuant to Section 4042 of ERISA5.1(a), 5.1(b) or 5.1(d) shall be deemed to have been furnished on the date on which (A) the Borrower or KGE, as applicable, gives notice to the extent Administrative Agent (who shall then give notice to the Lenders) that it has filed a form, report or other document with the SEC that contains such termination would constitute an Event financial statement or report required hereunder or (B) the Lenders receive notice that the Administrative Agent has posted such financial statement or report on the Intralinks website on the Internet at xxx.xxxxxxxxxx.xxx. Notwithstanding the foregoing, the Borrower shall deliver paper copies of Default under any financial statement referred to in Section 7.01(j);5.1(a) or 5.1(b) to the Administrative Agent if the Administrative Agent requests the Borrower to furnish such paper copies until written notice to cease delivering such paper copies is given by the Administrative Agent.
Appears in 1 contract
Financial Statements, Reports, etc. The Borrower shall deliver to the Administrative Agent on behalf of the Lenders:
(a) within Within ninety (90) days after the end of each fiscal year, Parentthe Borrower’s consolidated balance sheet and related statement of income and cash flows, showing the financial condition of Parent the Borrower and its Subsidiaries on a consolidated basis as of the close of such fiscal year and the results of their respective operations during such year, such the consolidated financial statements statement of Parent the Borrower to be audited for Parent the Borrower by independent public accountants of recognized national standing and to be accompanied by an opinion of such accountants (which opinion shall be unqualified without any qualification or exception as to the scope of such auditaudit and without a “going concern” qualification under GAAP as in effect on the date of this Agreement or, if there is a change in GAAP thereafter, any like qualification or exception under GAAP after giving effect to such change) to the effect that such consolidated financial statements fairly present in all material respects the financial condition and results of operations of Parent the Borrower and its Subsidiaries on a consolidated basis in accordance with GAAP; provided that the foregoing delivery requirement shall be satisfied if Parent the Borrower shall have filed with the SEC its Annual Report on Form 10-K for such fiscal year, which is available to the public via XXXXX or any similar successor system;
; (b) within Within forty-five (45) days after the end of each of the first three fiscal quarters of each fiscal year, Parentthe Borrower’s consolidated balance sheets and related statements of income and cash flows, showing the financial condition of Parent the Borrower and its Subsidiaries on a consolidated basis as of the close of such fiscal quarter and the results of their operations during such fiscal quarter and the then-then elapsed portion of the fiscal year, each certified by a Responsible Officer of Parent the Borrower as fairly presenting in all material respects the financial condition and results of operations of Parent the Borrower and its Subsidiaries on a consolidated basis in accordance with GAAP, subject to normal year-year end audit adjustments and the absence of footnotes; provided that the foregoing delivery requirement shall be satisfied if Parent the Borrower shall have filed with the SEC its Quarterly Report on Form 10-Q for such fiscal quarter, which is available to the public via XXXXX or any similar successor system;
; (c) within Within the time period under Section 5.01(a)) above, a certificate of a Responsible Officer of the Borrower certifying that, to the knowledge of such Responsible Officer, no Event of Default has occurred and is continuing, or, if, to the knowledge of such Responsible Officer, such an Event of Default has occurred and is continuing, specifying the nature and extent thereof and any corrective action taken or proposed to be taken with respect thereto;
(d) within the time period under (a) and (b) of this Section 5.01, an Officer’s Certificate demonstrating in reasonable detail compliance with Section 6.08 as of the end of the preceding fiscal quarter;
(e) promptly after the occurrence thereof, written notice of the termination of a Plan of the Borrower or an ERISA Affiliate pursuant to Section 4042 of ERISA, to the extent such termination would constitute an Event of Default under Section 7.01(j);
Appears in 1 contract
Financial Statements, Reports, etc. The Borrower shall deliver Furnish to the Administrative Agent on behalf of (which will promptly furnish such information to the Lenders:):
(a) within ninety one hundred ten (90110) days after the end of each fiscal yearyear (commencing with fiscal year 2012), Parent’s (x) a consolidated balance sheet and related statement statements of income operations, cash flows and cash flows, owners’ equity showing the financial condition position of the Parent and its Subsidiaries on a consolidated basis as of the close of such fiscal year and the consolidated results of their respective its operations during such year and setting forth in comparative form the corresponding figures for the prior fiscal year, such which consolidated financial balance sheet and related statements of Parent to operations, cash flows and owners’ equity shall be audited for Parent by independent public accountants of recognized national standing and to be accompanied by an opinion of such accountants (which opinion shall be unqualified 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 present, in all material respects respects, the financial condition and results of operations of the Parent and its Subsidiaries on a consolidated basis in accordance with GAAP; provided , (y) a consolidating balance sheet and related statements of operations and cash flows showing the financial position of the Lead Borrower and its Restricted Subsidiaries as of the close of such fiscal year and the consolidating results of its operations during such year and setting forth in comparative form the corresponding figures for the prior fiscal year, which consolidating financial information shall not be subject to the audit procedures set forth in clause (x) but shall be certified by a Financial Officer of the Lead Borrower to the extent that such consolidating financial statements fairly present, in all material respects, the financial condition and results of operations of the Lead Borrower and its Restricted Subsidiaries on a consolidating basis in accordance with GAAP) and (z) in the case of the information required pursuant to clause (x) or clause (y) supporting schedules reconciling such consolidated (or consolidating, as applicable) balance sheet and related statements of operations and cash flows with the consolidated (or consolidating, as applicable) financial condition and results of operations of the Parent or the Lead Borrower, as applicable, for the relevant period (it being understood that the foregoing delivery requirement shall be satisfied if Parent shall have filed with by the SEC its Annual Report Lead Borrower of annual reports on Form 10-K for such fiscal year, which is available of the Parent and its consolidated Subsidiaries shall satisfy the requirements of this Section 5.04(a) to the public via XXXXX or any similar successor systemextent such annual reports include the information specified herein);
(b) within forty-five (45) days after the end of each of the first three (3) fiscal quarters of each fiscal yearyear (commencing with the second fiscal quarter of 2012), Parent’s (x) a consolidated balance sheets sheet and related statements of income operations and cash flows, flows showing the financial condition position of the Parent and its Subsidiaries on a consolidated basis as of the close of such fiscal quarter and the consolidated results of their its operations during such fiscal quarter and the then-elapsed portion of the fiscal year and setting forth in comparative form the corresponding figures for the corresponding periods of the prior fiscal year, each all of which shall be in reasonable detail and which consolidated balance sheet and related statements of operations and cash flows shall be certified by a Responsible Financial Officer of Parent the Lead Borrower on behalf of the Lead Borrower as fairly presenting presenting, in all material respects respects, the financial condition position and results of operations of the Parent and its Subsidiaries on a consolidated basis in accordance with GAAP, GAAP (subject to normal year-end audit adjustments and the absence of footnotes; provided ), (y) a consolidating balance sheet and related statements of operations and cash flows showing the financial position of the Lead Borrower and its Restricted Subsidiaries as of the close of such fiscal quarter and the consolidating results of its operations during such fiscal quarter and the then-elapsed portion of the fiscal year and setting forth in comparative form the corresponding figures for the corresponding periods of the prior fiscal year, all of which shall be in reasonable detail and which consolidating balance sheet and related statements of operations and cash flows shall be certified by a Financial Officer of the Lead Borrower on behalf of the Lead Borrower as fairly presenting, in all material respects, the financial position and results of operations of the Lead Borrower and its Restricted Subsidiaries on a consolidating basis in accordance with GAAP and (z) in the case of information required pursuant to clause (x) or clause (y), supporting schedules reconciling such consolidated (or consolidating, as applicable) balance sheet and related statements of operations and cash flows with the consolidated (or consolidating, as applicable) financial position and results of operations of the Parent or the Lead Borrower, as applicable, for the relevant period (it being understood that the foregoing delivery requirement shall be satisfied if Parent shall have filed with by the SEC its Quarterly Report Lead Borrower of quarterly reports on Form 10-Q for such fiscal quarter, which is available of the Parent and its consolidated Subsidiaries shall satisfy the requirements of this Section 5.04(b) to the public via XXXXX or any similar successor systemextent such quarterly reports include the information specified herein);
(ci) within the time period concurrently with any delivery of financial statements under Section 5.01(a)paragraphs (a) or (b) above, a certificate of a Responsible Financial Officer of the Lead Borrower in substantially the form attached hereto as Exhibit I (x) certifying that, to the knowledge of such Responsible Officer, that no Default or Event of Default has occurred and is continuing, or, if, to the knowledge of if such Responsible Officer, such a Default or an Event of Default has occurred and is continuingoccurred, specifying the nature and extent thereof and any corrective action taken or proposed to be taken with respect theretothereto and (y) setting forth the reasonably detailed calculations with respect to the Consolidated Fixed Charge Coverage Ratio for such period, whether or not the requirements of Section 6.10 are then in effect;
(d) promptly after the same become publicly available, copies of all periodic and other publicly available reports, proxy statements and, to the extent requested by the Administrative Agent, other materials filed by Holdings, the Lead Borrower or any of its Subsidiaries with the SEC or any securities exchange, or after an initial public offering, distributed to its stockholders generally, as applicable and all press releases and other statements made available generally by Holdings or any of its Subsidiaries to the public concerning material developments in the business of Holdings or any of its Subsidiaries;
(e) within ninety (90) days after the time period under beginning of each fiscal year, a detailed consolidated and consolidated quarterly budget for such fiscal year (a) including a projected consolidated and (b) consolidated balance sheet of this Section 5.01, an Officer’s Certificate demonstrating in reasonable detail compliance with Section 6.08 the Lead Borrower and its Subsidiaries as of the end of such fiscal year, and the preceding related consolidated and consolidated statements of projected cash flow and projected income) and, as soon as available, significant revisions, if any, of such budget and quarterly projections with respect to such fiscal quarteryear (to the extent that such revisions have been approved by the Lead Borrower’s board of directors (or equivalent governing body)), including a description of underlying assumptions with respect thereto (collectively, the “Budget”), which Budget shall in each case be accompanied by the statement of a Financial Officer of the Lead Borrower to the effect that, to such Financial Officer’s knowledge, the Budget is a reasonable estimate for the period covered thereby;
(ef) promptly after following a request therefor, all documentation and other information that the occurrence thereofAdministrative Agent reasonably requests on its behalf or on behalf of any Lender in order to comply with its ongoing obligations under applicable “know your customer” and anti-money laundering rules and regulations, written notice including the USA PATRIOT Act and the Beneficial Ownership Regulations;
(g) together with the delivery of the termination of a Plan annual compliance certificate required by Section 5.04(c), deliver an updated Collateral Questionnaire reflecting all changes since the date of the Borrower information most recently received pursuant to this paragraph (g) or an Section 5.09(f);
(h) promptly following reasonable request therefore from the Administrative Agent, copies of (i) any documents described in Sections 101(f) and/or (j) of ERISA with respect to any Plan, and/or (ii) any notices or documents described in Sections 101(f), (k) and/or (l) of ERISA requested with respect to any Multiemployer Plan; provided, that if any Loan Party or any ERISA Affiliate has not requested such documents or notices from the administrator or sponsor of the applicable Plan or Multiemployer Plan, then, upon reasonable request of the Administrative Agent, the Loan Party(ies) and/or the ERISA Affiliate(s) shall promptly make a request for such documents or notices from such administer or sponsor and the Borrowers shall provide copies of such documents and notices to the Administrative Agent promptly after receipt thereof;
(i) promptly, from time to time, such other information regarding the operations, business affairs and financial condition of Holdings, the Borrowers or any of its Subsidiaries, or compliance with the terms of any Loan Document, as in each case the Administrative Agent may reasonably request (for itself or on behalf of any Lender);
(j) at the Administrative Agent’s reasonable request, from time to time, a listing of each Borrower’s trade payables, specifying the trade creditor and balance due, and a detailed trade payable aging;
(k) at any time when Qualified Cash is to be included in any calculation hereunder, a report on the balance and Deposit Account location of such Qualified Cash of up to $5,000,000, and updates thereto as frequently as reasonably necessary if at any time the amount of such Qualified Cash to be so included varies from the latest report provided to the Administrative Agent in accordance with this Section 5.04(k);
(l) together with the delivery of the Borrowing Base Certificate pursuant to Section 4042 5.12(d), at any time when there are any Letters of ERISACredit issued in the Alternative LC Currency, to the extent Borrowers shall deliver a report detailing the Dollar Equivalent of the total outstanding amount of any such termination would constitute an Event Letters of Default under Section 7.01(j);Credit denominated in the Alternative LC Currency.
Appears in 1 contract
Financial Statements, Reports, etc. The Borrower shall deliver Furnish to the Administrative Agent on behalf of (which will promptly furnish such information to the Lenders:):
(a) within ninety (90) 90 days after the end of each fiscal yearyear of the Borrower, Parent’s a consolidated balance sheet and related statement statements of income operations, cash flows and cash flows, owners’ equity showing the financial condition position of Parent the Borrower and its Subsidiaries on a consolidated basis as of the close of such fiscal year and the consolidated results of their respective its operations during such year and setting forth in comparative form the corresponding figures for the prior fiscal year, such which consolidated financial balance sheet and related statements of Parent to operations, cash flows and owners’ equity shall be audited for Parent by independent public accountants of recognized national standing and to be accompanied by an opinion of such accountants (which opinion shall not be unqualified qualified as to scope of such audit) , or as to the status of the Borrower or any Material Subsidiary as a “going concern” to the effect that such consolidated financial statements fairly present present, in all material respects respects, the financial condition position and results of operations of Parent the Borrower and its Subsidiaries on a consolidated basis in accordance with GAAP; provided ) (it being understood that the foregoing delivery requirement shall be satisfied if Parent shall have filed filing by the Borrower of annual reports on Form 10 K of the Borrower and its consolidated Subsidiaries with the SEC its Annual Report on Form 10-K for such fiscal year, which is available shall satisfy the requirements of this Section 5.04(a) to the public via XXXXX or any similar successor systemextent such annual reports include the information specified herein);
(b) within forty-five (45) 45 days after the end of each of the first three fiscal quarters quarterly periods of each fiscal yearyear of the Borrower, Parent’s a consolidated balance sheets sheet and related statements of income operations and cash flows, flows showing the financial condition position of Parent the Borrower and its Subsidiaries on a consolidated basis as of the close of such fiscal quarter and the consolidated results of their its operations during such fiscal quarter and the then-elapsed portion of the fiscal year and setting forth in comparative form the corresponding figures for the corresponding periods of the prior fiscal year, each all of which shall be in reasonable detail and which consolidated balance sheet and related statements of operations and cash flows shall be certified by a Responsible Financial Officer of Parent the Borrower on behalf of the Borrower as fairly presenting presenting, in all material respects respects, the financial condition position and results of 70 operations of Parent the Borrower and its Subsidiaries on a consolidated basis in accordance with GAAP, GAAP (subject to normal year-end audit adjustments and the absence of footnotes; provided ) (it being understood that the foregoing delivery requirement shall be satisfied if Parent shall have filed with filing by the SEC its Quarterly Report Borrower of quarterly reports on Form 10-Q for such fiscal quarter, which is available of the Borrower and its consolidated Subsidiaries with the SEC shall satisfy the requirements of this Section 5.04(b) to the public via XXXXX or any similar successor systemextent such quarterly reports include the information specified herein);
(c) within the time period concurrently with any delivery of financial statements under Section 5.01(a)paragraphs (a) or (b) above, a certificate of a Responsible Financial Officer of the Borrower (i) certifying that, to the knowledge of such Responsible Officer, that no Event of Default or Default has occurred and is continuing, or, if, to the knowledge of such Responsible Officer, if such an Event of Default or Default has occurred and is continuingoccurred, specifying the nature and extent thereof and any corrective action taken or proposed to be taken with respect thereto, (ii) setting forth computations in reasonable detail satisfactory to the Administrative Agent demonstrating compliance with the Financial Performance Covenant, (iii) setting forth the calculation and uses of the Cumulative Credit for the fiscal period then ended, (iv) certifying a list of names of all Immaterial Subsidiaries, that each Subsidiary set forth on such list individually qualifies as an Immaterial Subsidiary and that all such Subsidiaries in the aggregate do not exceed the limitation set forth in clause (b) of the definition of the term “Immaterial Subsidiary” and (v) certifying a list of names of all Unrestricted Subsidiaries and that each Subsidiary set forth on such list individually qualifies as an Unrestricted Subsidiary;
(d) promptly after the same become publicly available, copies of all periodic and other publicly available reports, proxy statements and, to the extent requested by the Administrative Agent, other materials filed by Holdings, the Borrower or any of the Subsidiaries with the SEC, or distributed to its stockholders generally, as applicable; provided, however, that such reports, proxy statements, filings and other materials required to be delivered pursuant to this clause (d) shall be deemed delivered for purposes of this Agreement when posted to the website of the Borrower;
(e) within 90 days after the beginning of each fiscal year of the Borrower, a reasonably detailed consolidated annual budget for such fiscal year (including a projected consolidated balance sheet of the Borrower and its Subsidiaries as of the end of such fiscal year, and the related consolidated statements of projected cash flow and projected income), including a description of underlying assumptions with respect thereto (collectively, the “Budget”), which Budget shall in each case be accompanied by the statement of a Financial Officer of the Borrower to the effect that, the Budget is based on assumptions believed by such Financial Officer to be reasonable as of the date of delivery thereof;
(f) upon the reasonable request of the Administrative Agent, an updated Perfection Certificate (or, to the extent such request relates to specified information contained in the Perfection Certificate, such information) reflecting all changes since the date of the information most recently received pursuant to this paragraph (f) or Section 5.09(f);
(g) promptly, from time period under to time, such other information regarding the operations, business affairs and financial condition of Holdings, the Borrower or any of the Subsidiaries, or compliance with the terms of any Loan Document, as in each case the Administrative Agent may reasonably request (for itself or on behalf of any Lender);
(h) in the event that (i)(a) in respect of the Senior Unsecured Notes, and any Permitted Refinancing Indebtedness with respect thereto, the rules and regulations of the SEC or (b) the indentures governing any secured or unsecured notes of the Borrower, permit the Borrower, Holdings or any Parent Entity to report at Holdings’ or such Parent Entity’s level on a consolidated basis and (ii) Holdings or such Parent Entity, as the case may be, is not engaged in any business or activity, and does not own any material assets or have other material liabilities, other than cash and cash equivalents and those incidental to its ownership directly or indirectly of the Equity Interests of the Borrower and the incurrence of Indebtedness for borrowed money (and, without limitation on the foregoing, does not have any subsidiaries other than the Borrower and the Borrower’s Subsidiaries and any direct or indirect parent companies of the Borrower that are not engaged in any other business or activity and do not hold any other assets or have any liabilities except as indicated above) such consolidated reporting at such Parent Entity’s level in a manner consistent with that described in paragraphs (a) and (b) of this Section 5.01, an Officer’s Certificate demonstrating in reasonable detail 5.04 for 71 the Borrower (together with a reconciliation showing the adjustments necessary to determine compliance by the Borrower and its Subsidiaries with Section 6.08 as the Financial Performance Covenant) shall satisfy the requirements of such paragraphs; and
(i) upon the request of the end Administrative Agent, copies of the preceding fiscal quarter;
(eany documents described in Sections 101(k) promptly after the occurrence thereof, written notice or 101(l) of the termination of a Plan of ERISA that the Borrower or an any ERISA Affiliate pursuant or Subsidiary may request with respect to Section 4042 any Multiemployer Plan; provided, that if the Borrower or any of ERISAits ERISA Affiliates or Subsidiaries have not requested such documents or notices from the administrator or sponsor of the applicable Multiemployer Plan, then, upon reasonable written request of the Administrative Agent, the Borrower and/or its ERISA Affiliates or Subsidiaries shall promptly make a request for such documents or notices from such administrator or sponsor and the Borrower shall provide copies of such documents and notices to the extent such termination would constitute an Event of Default under Section 7.01(j);Administrative Agent promptly after receipt thereof.
Appears in 1 contract
Samples: Term Loan Agreement (Anywhere Real Estate Group LLC)
Financial Statements, Reports, etc. The Borrower shall deliver Furnish to the Administrative Agent on behalf of (which will promptly furnish such information to the Lenders:):
(a) within ninety one hundred ten (90110) days after the end of each fiscal yearyear (commencing with fiscal year 2012), Parent’s (x) a consolidated balance sheet and related statement statements of income operations, cash flows and cash flows, owners’ equity showing the financial condition position of the Parent and its Subsidiaries on a consolidated basis as of the close of such fiscal year and the consolidated results of their respective its operations during such year and setting forth in comparative form the corresponding figures for the prior fiscal year, such which consolidated financial balance sheet and related statements of Parent to operations, cash flows and owners’ equity shall be audited for Parent by independent public accountants of recognized national standing and to be accompanied by an opinion of such accountants (which opinion shall be unqualified 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 present, in all material respects respects, the financial condition and results of operations of the Parent and its Subsidiaries on a consolidated basis in accordance with GAAP; provided that , (y) a consolidating balance sheet and related statements of operations and cash flows showing the foregoing delivery requirement shall be satisfied if Parent shall have filed with financial position of the SEC Lead Borrower and its Annual Report on Form 10-K Restricted Subsidiaries as of the close of such fiscal year and the consolidating results of its operations during such year and setting forth in comparative form the corresponding figures for such the prior fiscal year, which is available consolidating financial information shall not be subject to the public via XXXXX audit procedures set forth in clause (x) but shall be certified by a Financial Officer of the Lead Borrower to the extent that such consolidating financial statements fairly present, in all material respects, the financial condition and results of operations of the Lead Borrower and its Restricted Subsidiaries on a consolidating basis in accordance with GAAP) and (z) in the case of the information required pursuant to clause (x) or any similar successor systemclause (y) supporting schedules reconciling such consolidated (or consolidating, as applicable) balance sheet and related statements of operations and cash flows with the consolidated (or consolidating, as applicable) financial condition and results of operations of the Parent or the Lead Borrower, as applicable, for the relevant period (it being understood that the delivery by the Lead Borrower of annual reports on Form 10‑K of the Parent and its consolidated Subsidiaries shall satisfy the requirements of this Section 5.04(a) to the extent such annual reports include the information specified herein);
(b) within forty-five (45) days after the end of each of the first three (3) fiscal quarters of each fiscal yearyear (commencing with the second fiscal quarter of 2012), Parent’s (x) a consolidated balance sheets sheet and related statements of income operations and cash flows, flows showing the financial condition position of the Parent and its Subsidiaries on a consolidated basis as of the close of such fiscal quarter and the consolidated results of their its operations during such fiscal quarter and the then-elapsed portion of the fiscal year and setting forth in comparative form the corresponding figures for the corresponding periods of the prior fiscal year, each all of which shall be in reasonable detail and which consolidated balance sheet and related statements of operations and cash flows shall be certified by a Responsible Financial Officer of Parent the Lead Borrower on behalf of the Lead Borrower as fairly presenting presenting, in all material respects respects, the financial condition position and results of operations of the Parent and its Subsidiaries on a consolidated basis in accordance with GAAP, GAAP (subject to normal year-end audit adjustments and the absence of footnotes; provided ), (y) a consolidating balance sheet and related statements of operations and cash flows showing the financial position of the Lead Borrower and its Restricted Subsidiaries as of the close of such fiscal quarter and the consolidating results of its operations during such fiscal quarter and the then-elapsed portion of the fiscal year and setting forth in comparative form the corresponding figures for the corresponding periods of the prior fiscal year, all of which shall be in reasonable detail and which consolidating balance sheet and related statements of operations and cash flows shall be certified by a Financial Officer of the Lead Borrower on behalf of the Lead Borrower as fairly presenting, in all material respects, the financial position and results of operations of the Lead Borrower and its Restricted Subsidiaries on a consolidating basis in accordance with GAAP and (z) in the case of information required pursuant to clause (x) or clause (y), supporting schedules reconciling such consolidated (or consolidating, as applicable) balance sheet and related statements of operations and cash flows with the consolidated (or consolidating, as applicable) financial position and results of operations of the Parent or the Lead Borrower, as applicable, for the relevant period (it being understood that the foregoing delivery requirement shall be satisfied if Parent shall have filed with by the SEC its Quarterly Report Lead Borrower of quarterly reports on Form 10-Q for such fiscal quarter, which is available 10‑Q of the Parent and its consolidated Subsidiaries shall satisfy the requirements of this Section 5.04(b) to the public via XXXXX or any similar successor systemextent such quarterly reports include the information specified herein);
(ci) within the time period concurrently with any delivery of financial statements under Section 5.01(a)paragraphs (a) or (b) above, a certificate of a Responsible Financial Officer of the Lead Borrower in substantially the form attached hereto as Exhibit I (x) certifying that, to the knowledge of such Responsible Officer, that no Default or Event of Default has occurred and is continuing, or, if, to the knowledge of if such Responsible Officer, such a Default or an Event of Default has occurred and is continuingoccurred, specifying the nature and extent thereof and any corrective action taken or proposed to be taken with respect theretothereto and (y) setting forth the reasonably detailed calculations with respect to the Consolidated Fixed Charge Coverage Ratio for such period, whether or not the requirements of Section 6.10 are then in effect;
(d) promptly after the same become publicly available, copies of all periodic and other publicly available reports, proxy statements and, to the extent requested by the Administrative Agent, other materials filed by Holdings, the Lead Borrower or any of its Subsidiaries with the SEC or any securities exchange, or after an initial public offering, distributed to its stockholders generally, as applicable and all press releases and other statements made available generally by Holdings or any of its Subsidiaries to the public concerning material developments in the business of Holdings or any of its Subsidiaries;
(e) within ninety (90) days after the time period under beginning of each fiscal year, a detailed consolidated and consolidated quarterly budget for such fiscal year (a) including a projected consolidated and (b) consolidated balance sheet of this Section 5.01, an Officer’s Certificate demonstrating in reasonable detail compliance with Section 6.08 the Lead Borrower and its Subsidiaries as of the end of such fiscal year, and the preceding related consolidated and consolidated statements of projected cash flow and projected income) and, as soon as available, significant revisions, if any, of such budget and quarterly projections with respect to such fiscal quarteryear (to the extent that such revisions have been approved by the Lead Borrower’s board of directors (or equivalent governing body)), including a description of underlying assumptions with respect thereto (collectively, the “Budget”), which Budget shall in each case be accompanied by the statement of a Financial Officer of the Lead Borrower to the effect that, to such Financial Officer’s knowledge, the Budget is a reasonable estimate for the period covered thereby;
(ef) promptly after following a request therefor, all documentation and other information that the occurrence thereofAdministrative Agent reasonably requests on its behalf or on behalf of any Lender in order to comply with its ongoing obligations under applicable “know your customer” and anti-money laundering rules and regulations, written notice including the USA PATRIOT Act and the Beneficial Ownership Regulations;
(g) together with the delivery of the termination of a Plan annual compliance certificate required by Section 5.04(c), deliver an updated Collateral Questionnaire reflecting all changes since the date of the Borrower information most recently received pursuant to this paragraph (g) or an Section 5.09(f);
(h) promptly following reasonable request therefore from the Administrative Agent, copies of (i) any documents described in Sections 101(f) and/or (j) of ERISA with respect to any Plan, and/or (ii) any notices or documents described in Sections 101(f), (k) and/or (l) of ERISA requested with respect to any Multiemployer Plan; provided, that if any Loan Party or any ERISA Affiliate has not requested such documents or notices from the administrator or sponsor of the applicable Plan or Multiemployer Plan, then, upon reasonable request of the Administrative Agent, the Loan Party(ies) and/or the ERISA Affiliate(s) shall promptly make a request for such documents or notices from such administer or sponsor and the Borrowers shall provide copies of such documents and notices to the Administrative Agent promptly after receipt thereof;
(i) promptly, from time to time, such other information regarding the operations, business affairs and financial condition of Holdings, the Borrowers or any of its Subsidiaries, or compliance with the terms of any Loan Document, as in each case the Administrative Agent may reasonably request (for itself or on behalf of any Lender);
(j) at the Administrative Agent’s reasonable request, from time to time, a listing of each Borrower’s trade payables, specifying the trade creditor and balance due, and a detailed trade payable aging;
(k) at any time when Qualified Cash is to be included in any calculation hereunder, a report on the balance and Deposit Account location of such Qualified Cash of up to $10,000,000, and updates thereto as frequently as reasonably necessary if at any time the amount of such Qualified Cash to be so included varies from the latest report provided to the Administrative Agent in accordance with this Section 5.04(k);
(l) together with the delivery of the Borrowing Base Certificate pursuant to Section 4042 5.12(d), at any time when there are any Letters of ERISACredit issued in the Alternative LC Currency, to the extent Borrowers shall deliver a report detailing the Dollar Equivalent of the total outstanding amount of any such termination would constitute an Event Letters of Default under Section 7.01(j);Credit denominated in the Alternative LC Currency.
Appears in 1 contract
Financial Statements, Reports, etc. The Borrower shall deliver Furnish to the Administrative Agent on behalf of the Lenders:Agent, who shall furnish to each Lender (including each Public Lender):
(ai) within ninety (90) days after [REDACTED – Time Period] the end of each fiscal yearFiscal Year, Parent’s (i) a consolidated balance sheet and related statement statements of income and comprehensive income, changes in equity and cash flows, flows showing the financial condition position of Parent the Borrower and its Subsidiaries on a consolidated basis subsidiaries as of the close of such fiscal Fiscal Year and their consolidated financial performance and cash flows for such year and setting forth in comparative form the results of their respective operations during corresponding figures for the prior Fiscal Year and (ii) a Narrative Report for such yearFiscal Year, such which consolidated financial balance sheet and related statements of Parent to income and comprehensive income, changes in equity and cash flows shall be audited for Parent by independent public chartered professional accountants of recognized national standing in Canada (or equivalent) and to be accompanied by an opinion of such accountants (which opinion shall not be unqualified qualified as to scope of such auditaudit or as to the status of the Borrower or any Material Subsidiary as a going concern (other than, in the case of going concern, an explanatory note with respect to an upcoming maturity of any series of indebtedness, Loans or Commitments) to the effect that such consolidated financial statements fairly present fairly, in all material respects respects, the financial condition position and results financial performance and cash flows of operations of Parent the Borrower and its Subsidiaries subsidiaries on a consolidated basis in accordance with GAAP; provided IFRS (it being understood that the foregoing delivery requirement shall be satisfied if Parent shall have filed with by the SEC its Borrower of an Annual Report on Form 10-K K, or the equivalent filed with the Canadian Securities Administrators and the Canadian Securities Administrators System for such fiscal year, which is available Electronic Document Analysis and Retrieval (“SEDAR”) website shall satisfy the requirements of this Section 5.4(a) to the public via XXXXX or any similar successor systemextent such Annual Report includes the information specified herein);
(b) within forty-five (45) days after [REDACTED – Time Period] the end of each of the first three fiscal quarters Fiscal Quarters of each fiscal yearFiscal Year, Parent’s commencing with the Fiscal Quarter ending June 30, 2015, (i) a consolidated balance sheets sheet and related statements of income and comprehensive income, changes in equity and cash flows, flows showing the financial condition position of Parent the Borrower and its Subsidiaries on a consolidated basis subsidiaries as of the close of such fiscal quarter Fiscal Quarter and the results of their operations during consolidated financial performance and cash flows for such fiscal quarter Fiscal Quarter and the then-elapsed portion of the fiscal yearFiscal Year and setting forth in comparative form the corresponding figures for the corresponding periods of the prior Fiscal Year and (ii) a Narrative Report for such Fiscal Quarter, each all of which shall be in reasonable detail and which consolidated balance sheet and related statements of income and comprehensive income, changes in equity and cash flows shall be certified by a Responsible Financial Officer of Parent the Borrower on behalf of the Borrower as fairly presenting presenting, in all material respects respects, the financial condition performance and results cash flows of operations of Parent the Borrower and its Subsidiaries subsidiaries on a consolidated basis in accordance with GAAP, IFRS (subject to normal year-end audit adjustments and the absence of footnotes; provided ) (it being understood that the foregoing delivery requirement shall be satisfied if Parent shall have filed with by the SEC its Borrower of a Quarterly Report on Form 10-Q for such fiscal quarter, which is available to or the public via XXXXX or any similar successor system;
(c) within equivalent filed with the time period under Section 5.01(a), a certificate of a Responsible Officer of SEDAR website shall satisfy the Borrower certifying that, to the knowledge of such Responsible Officer, no Event of Default has occurred and is continuing, or, if, to the knowledge of such Responsible Officer, such an Event of Default has occurred and is continuing, specifying the nature and extent thereof and any corrective action taken or proposed to be taken with respect thereto;
(d) within the time period under (a) and (b) requirements of this Section 5.01, an Officer’s Certificate demonstrating in reasonable detail compliance with Section 6.08 as of the end of the preceding fiscal quarter;
(e5.4(b) promptly after the occurrence thereof, written notice of the termination of a Plan of the Borrower or an ERISA Affiliate pursuant to Section 4042 of ERISA, to the extent such termination would constitute an Event of Default under Section 7.01(jquarterly reports include the information specified herein);
Appears in 1 contract
Samples: Credit and Guaranty Agreement (Concordia Healthcare Corp.)
Financial Statements, Reports, etc. The Borrower shall deliver to the Administrative Agent on behalf of the Lenders:
(a) within Within ninety (90) days after the end of each fiscal year, the Parent’s consolidated balance sheet and related statement of income and cash flows, showing the financial condition of the Parent and its Subsidiaries on a consolidated basis as of the close of such fiscal year and the results of their respective operations during such year, such the consolidated financial statements statement of the Parent to be audited for the Parent by independent public accountants of recognized national standing and to be accompanied by an opinion of such accountants (which opinion shall be unqualified without any qualification or exception as to the scope of such audit) to the effect that such consolidated financial statements fairly present in all material respects the financial condition and results of operations of the Parent and its Subsidiaries on a consolidated basis in accordance with GAAP; provided that the foregoing delivery requirement shall be satisfied if the Parent shall have filed with the SEC its Annual Report on Form 10-K for such fiscal year, which is available to the public via XXXXX or any similar successor system;
(b) within Within forty-five (45) days after the end of each of the first three fiscal quarters of each fiscal year, the Parent’s consolidated balance sheets and related statements of income and cash flows, showing the financial condition of the Parent and its Subsidiaries on a consolidated basis as of the close of such fiscal quarter and the results of their operations during such fiscal quarter and the then-then elapsed portion of the fiscal year, each certified by a Responsible Officer of the Parent as fairly presenting in all material respects the financial condition and results of operations of the Parent and its Subsidiaries on a consolidated basis in accordance with GAAP, subject to normal year-year end audit adjustments and the absence of footnotes; provided that the foregoing delivery requirement shall be satisfied if the Parent shall have filed with the SEC [**] – Confidential treatment has been requested for the bracketed portions. The confidential redacted portion has been omitted and filed separately with the Securities and Exchange Commission. Confidential its Quarterly Report on Form 10-Q for such fiscal quarter, which is available to the public via XXXXX or any similar successor system;
(c) within Within the time period under Section 5.01(a)) above, (A) a certificate of a Responsible Officer of the Borrower Parent certifying that, to the knowledge of such Responsible Officer, no Event of Default has occurred and is continuing, or, if, to the knowledge of such Responsible Officer, such an Event of Default has occurred and is continuing, specifying the nature and extent thereof and any corrective action taken or proposed to be taken with respect theretothereto and (B) a consolidated budget for the Parent and its Subsidiaries for the then current fiscal year;
(d) within Within the time period under (a) and (b) of this Section 5.01, an Officer’s Certificate a certificate of a Responsible Officer demonstrating in reasonable detail compliance with Section Sections 6.08 and 6.09(a) as of the end of the preceding fiscal quarter, including an updated calculation of the Collateral Coverage Ratio reflecting the most recent Appraisals (as adjusted for any Dispositions or additions to the Collateral since the date of delivery to the Administrative Agent of such Appraisals);
(e) promptly Within 15 days after the occurrence thereof, written notice of the termination of a Plan Responsible Officer of the Borrower obtains knowledge that there has been one or more Dispositions of Collateral (excluding those described in clause (b), (d) or (e)(iv) of the definition of “Permitted Disposition”) since the date of the Officer’s Certificate demonstrating compliance with Section 6.09(a) most recently delivered under this Agreement by the Borrower to the Administrative Agent consisting of (i) a Pledged Aircraft, (ii) a Pledged Engine or (iii) any other Collateral comprising, in the aggregate, 10% or more of the total Borrowing Base of all Eligible Collateral, a certificate of a Responsible Officer demonstrating in reasonable detail compliance with Section 6.09(a);
(i) At any time that Eligible Accounts are included as Collateral, on the 15th day of each month (or, if such day is not a Business Day, on the next succeeding Business Day) and on each Markdown Date, an ERISA Affiliate Officer’s Certificate from the Borrower setting forth the amount of each Eligible Account included in the Collateral as of such date, (ii) on the date upon which any Eligible Account is pledged as Collateral, but only with respect to such Eligible Account, an Officer’s Certificate from the Borrower setting forth the amount of such Eligible Account pledged on such date, and (iii) at any time that the Administrative Agent provides written notice to the Borrower that the Administrative Agent, acting reasonably and in good faith, believes that a Material Eligible Account contained in the most recent Officer’s Certificate delivered pursuant to clauses (i) and (ii) above with respect to such Pledged Account no longer meets the criteria of an Eligible Account set forth in the definition thereof, and that the Borrower would not reasonably be expected to be in compliance with Section 4042 6.09(a) after excluding the Certified Value of ERISAsuch disqualified Material Eligible Account from the aggregate Certified Value of the Pledged Accounts, to within 5 Business Days of such receipt of such request by the extent Borrower, an Officer’s Certificate from the Borrower setting forth the amount of each Eligible Account included in the Collateral as of such termination would constitute an Event of Default under Section 7.01(j);date, in each case together with all supporting [**] – Confidential treatment has been requested for the bracketed portions. The confidential redacted portion has been omitted and filed separately with the Securities and Exchange Commission.
Appears in 1 contract
Samples: Credit and Guaranty Agreement (Hawaiian Holdings Inc)
Financial Statements, Reports, etc. The Borrower shall deliver Deliver to the Administrative Agent on behalf of the Lenders:
(a) within Within ninety (90) days after the end of each fiscal year, Parentthe Borrower’s consolidated balance sheet and related statement of income and cash flows, showing the financial condition of Parent the Borrower and its Subsidiaries on a consolidated basis as of the close of such fiscal year and the results of their respective operations during such year, such the consolidated financial statements statement of Parent the Borrower to be audited for Parent the Borrower by Ernst & Young LLP or other independent public accountants of recognized national standing and to be accompanied by an opinion of such accountants (which opinion shall be unqualified without a “going concern” or like qualification or exception and without any more qualification or exception as to the scope of such audit, except for any such qualification solely as a result of (x) an impending debt maturity within twelve (12) months of any Revolving Facility under this Agreement or (y) a potential inability to satisfy any financial covenant) and to be certified by a Responsible Officer of the Borrower to the effect that such consolidated financial statements fairly present in all material respects the financial condition and results of operations of Parent the Borrower and its Subsidiaries on a consolidated basis in accordance with GAAP; provided that . Documents required to be delivered pursuant to this clause (a) which are made publicly available via XXXXX, or any successor system of the foregoing delivery requirement shall be satisfied if Parent shall have filed with SEC, in the SEC its Borrower’s Annual Report on Form 10-K for such fiscal yearK, which is available shall be deemed delivered to the public via XXXXX or any similar successor systemLenders on the date such documents are made so available;
(b) within Within forty-five (45) days after the end of each of the first three (3) fiscal quarters of each fiscal year, Parentthe Borrower’s consolidated balance sheets and related statements of income and cash flows, showing the financial condition of Parent the Borrower and its Subsidiaries on a consolidated basis as of the close of such fiscal quarter and the results of their operations during such fiscal quarter and the then-then elapsed portion of the fiscal year, each certified by a Responsible Officer of Parent the Borrower as fairly presenting in all material respects the financial condition and results of operations of Parent the Borrower and its Subsidiaries on a consolidated basis in accordance with GAAP, subject to normal year-end audit adjustments and the absence of footnotes; provided that . Documents required to be delivered pursuant to this clause (b) which are made publicly available via XXXXX, or any successor system of the foregoing delivery requirement shall be satisfied if Parent shall have filed with SEC, in the SEC its Borrower’s Quarterly Report on Form 10-Q for such fiscal quarterQ, which is available shall be deemed delivered to the public via XXXXX or any similar successor systemLenders on the date such documents are made so available;
(c) within the time period concurrently with any delivery of financial statements under Section 5.01(a)(a) and (b) above, a certificate of a Responsible Officer of the Borrower (in substantially the form of Exhibit A) (i) certifying that, to the knowledge of such Responsible Officer, no Event of Default has occurred and is continuingoccurred, or, if, to the knowledge of such Responsible Officer, such an Event of Default has occurred and is continuingoccurred, 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 provisions of Sections 6.03 and 6.04; #90303017v26 58
(d) within prompt written notice of any Termination Event that has occurred, or is reasonably expected to occur, to the time period extent such Termination Event would constitute an Event of Default under (a) and (b) of this Section 5.01, an Officer’s Certificate demonstrating in reasonable detail compliance with Section 6.08 as of the end of the preceding fiscal quarterSection 7.01(l);
(e) promptly after the occurrence thereof, written notice of the termination of a Plan Responsible Officer of the Borrower obtains knowledge of the filing or commencement of any action, suit or proceeding by or before any arbitrator or Governmental Authority against or affecting the Borrower or any Subsidiary that could reasonably be expected to result in a Material Adverse Effect, notification thereof; and
(f) (i) on the date on which any Investment Property that is not listed on a national securities exchange is initially included as Additional Pool Assets, an ERISA Affiliate Officer’s Certificate from the Borrower, in form and substance reasonably satisfactory to the Administrative Agent, setting forth the book value of such Investment Property as of the last day of the month most recently ended, together with all supporting documents with respect to such Investment Property as the Administrative Agent may reasonably request and (ii) at any time thereafter that any Investment Property that is not listed on a national securities exchange shall be included as Additional Pool Assets, concurrently with any delivery of financial statements under clause (a) or (b) above in respect of each fiscal quarter of the Borrower, an Officer’s Certificate from the Borrower, in form and substance reasonably satisfactory to the Administrative Agent, setting forth the book value of such Investment Property as of the last day of such fiscal quarter, together with all supporting documents with respect to such Investment Property as the Administrative Agent may reasonably request. Subject to the next succeeding sentence, information delivered pursuant to Section 4042 of ERISA, this Section 5.01 to the Administrative Agent may be made available by the Administrative Agent to the Lenders by posting such information on the Intralinks website on the Internet at xxxx://xxx.xxxxxxxxxx.xxx. Information delivered pursuant to this Section 5.01 may also be delivered by electronic communication pursuant to procedures approved by the Administrative Agent pursuant to Section 10.01 hereto. Information required to be delivered pursuant to this Section 5.01 (to the extent not made available as set forth above) shall be deemed to have been delivered to the Administrative Agent on the date on which the Borrower provides written notice to the Administrative Agent that such information has been posted on the Borrower’s website on the Internet at xxxx://xxx.xxxxx.xxx (to the extent such termination would constitute an Event information has been posted or is available as described in such notice). Information required to be delivered pursuant to this Section 5.01 shall be in a format which is suitable for transmission. Any notice or other communication delivered pursuant to this Section 5.01, or otherwise pursuant to this Agreement, shall be deemed to contain material non-public information unless (i) expressly marked by the Borrower as “PUBLIC”, (ii) such notice or communication consists of Default under Section 7.01(j);copies of the Borrower’s public filings with the SEC or (iii) such notice or communication has been posted on the Borrower’s website on the Internet at xxxx://xxx.xxxxx.xxx.
Appears in 1 contract
Financial Statements, Reports, etc. The Borrower shall deliver Furnish to the Administrative Agent on behalf of (which will promptly furnish such information to the Lenders:):
(a) within ninety 90 days (90or, if applicable, such shorter period as the SEC shall specify for the filing of Annual Reports on Form 10-K if the Borrower is required to file such an Annual Report) days after the end of each fiscal year, Parent’s a consolidated balance sheet and related statement statements of income operations, cash flows and cash flows, owners’ equity showing the financial condition position of Parent the Borrower and its Subsidiaries on a consolidated basis as of the close of such fiscal year and the consolidated results of their respective its operations during such year and (commencing in fiscal year 2007) setting forth in comparative form the corresponding figures for the prior fiscal year, such which consolidated financial balance sheet and related statements of Parent to operations, cash flows and owners’ equity shall be audited for Parent by independent public accountants of recognized national standing and to be accompanied by an opinion of such accountants (which opinion shall not be unqualified as to scope of such auditqualified in any material respect) to the effect that such consolidated financial statements fairly present present, in all material respects respects, the financial condition position and results of operations of Parent the Borrower and its Subsidiaries on a consolidated basis in accordance with GAAP; provided GAAP (it being understood that the foregoing delivery requirement shall be satisfied if Parent shall have filed with by the SEC its Borrower of Annual Report Reports on Form 10-K for such fiscal year, which is available of the Borrower and its consolidated Subsidiaries shall satisfy the requirements of this Section 5.04(a) to the public via XXXXX or any similar successor systemextent such Annual Reports include the information specified herein);
(b) within forty45 days (or, if applicable, such shorter period as the SEC shall specify for the filing of Quarterly Reports on Form 10-five (45Q if the Borrower is required to file such a Quarterly Report) days after the end of each of the first three fiscal quarters of each fiscal yearyear (commencing with the first fiscal quarter of 2007), Parent’s a consolidated balance sheets sheet and related statements of income operations and cash flows, flows showing the financial condition position of Parent the Borrower and its Subsidiaries on a consolidated basis as of the close of such fiscal quarter and the consolidated results of their its operations during such fiscal quarter and the then-elapsed portion of the fiscal year and (commencing in fiscal year 2007) setting forth in comparative form the corresponding figures for the corresponding periods of the prior fiscal year, each all of which shall be in reasonable detail and which consolidated balance sheet and related statements of operations and cash flows shall be certified by a Responsible Financial Officer of Parent the Borrower on behalf of the Borrower as fairly presenting presenting, in all material respects respects, the financial condition position and results of operations of Parent the Borrower and its Subsidiaries on a consolidated basis in accordance with GAAP, GAAP (subject to normal year-end audit adjustments and the absence of footnotes; provided footnotes (it being understood that the foregoing delivery requirement shall be satisfied if Parent shall have filed with by the SEC its Borrower of Quarterly Report Reports on Form 10-Q for such fiscal quarter, which is available of the Borrower and its consolidated Subsidiaries shall satisfy the requirements of this Section 5.04(b) to the public via XXXXX or any similar successor systemextent such Quarterly Reports include the information specified herein);
(c) within the time period concurrently with any delivery of financial statements under Section 5.01(a)(a) or (b) above, a certificate of a Responsible Financial Officer of the Borrower certifying that, to the knowledge of such Responsible Officer, that no Event of Default or Default has occurred and is continuing, or, if, to the knowledge of such Responsible Officer, if such an Event of Default or Default has occurred and is continuingoccurred, specifying the nature and extent thereof and any corrective action taken or proposed to be taken with respect thereto;
(d) within promptly after the time period under (a) same become publicly available, copies of all periodic and (b) of this Section 5.01other publicly available reports, an Officer’s Certificate demonstrating in reasonable detail compliance with Section 6.08 as proxy statements and, to the extent requested by the Administrative Agent, other materials filed by the Borrower or any of the end of Restricted Subsidiaries with the preceding fiscal quarter;SEC, or after an initial public offering, distributed to its stockholders generally, as applicable; and
(e) promptly after the occurrence thereofbecoming aware of any Event of Default or Default, written notice of thereof specifying the termination of a Plan of nature and extent thereof and the Borrower or an ERISA Affiliate pursuant corrective action (if any) proposed to Section 4042 of ERISA, to the extent such termination would constitute an Event of Default under Section 7.01(j);be taken with respect thereto.
Appears in 1 contract
Financial Statements, Reports, etc. The Borrower shall deliver Furnish to the Administrative Agent on behalf of (which will promptly furnish such information to the Lenders:):
(a) within ninety (90) Within 95 days after the end of each fiscal year, Parent’s a consolidated balance sheet and related statement statements of income operations, cash flows and cash flows, owners’ equity showing the financial condition position of Parent the Borrower and its Subsidiaries on a consolidated basis as of the close of such fiscal year and the consolidated results of their respective its operations during such year and setting forth in comparative form the corresponding figures for the prior fiscal year, such which consolidated financial balance sheet and related statements of Parent to operations, cash flows and owners’ equity shall be audited for Parent by independent public accountants of recognized national standing and to be accompanied by an opinion of such accountants (which opinion shall not be unqualified qualified as to scope of such auditaudit or as to the status of the Borrower or any Material Subsidiary as a going concern) to the effect that such consolidated financial statements fairly present present, in all material respects respects, the financial condition position and results of operations of Parent the Borrower and its Subsidiaries on a consolidated basis in accordance with GAAP; provided GAAP (it being understood that the foregoing delivery requirement shall be satisfied if Parent shall have filed with by the SEC its Annual Report Borrower of annual reports on Form 10-K for such fiscal year, which is available of the Borrower and its consolidated Subsidiaries shall satisfy the requirements of this Section 6.04(a) to the public via XXXXX or any similar successor systemextent such annual reports include the information specified herein);
(b) within forty-five (45) 50 days after the end of each of the first three fiscal quarters of each fiscal yearyear beginning with the fiscal quarter ending March 31, Parent’s 2012, (i) a consolidated balance sheets sheet and related statements of income operations and cash flows, flows showing the financial condition position of Parent the Borrower and its Subsidiaries on a consolidated basis as of the close of such fiscal quarter and the consolidated results of their its operations during such fiscal quarter and the then-then elapsed portion of the fiscal year and setting forth in comparative form the corresponding figures for the corresponding periods of the prior fiscal year, each and (ii) management’s discussion and analysis of significant operational and financial developments during such quarterly period, all of which shall be in reasonable detail and which consolidated balance sheet and related statements of operations and cash flows shall be certified by a Responsible Financial Officer of Parent the Borrower on behalf of the Borrower as fairly presenting presenting, in all material respects respects, the financial condition position and results of operations of Parent the Borrower and its Subsidiaries on a consolidated basis in accordance with GAAP, GAAP (subject to normal year-end audit adjustments and the absence of footnotes; provided ) (it being understood that the foregoing delivery requirement shall be satisfied if Parent shall have filed with by the SEC its Quarterly Report Borrower of quarterly reports on Form 10-10 Q for such fiscal quarter, which is available of the Borrower and its consolidated Subsidiaries shall satisfy the requirements of this Section 6.04(b) to the public via XXXXX or any similar successor systemextent such quarterly reports include the information specified herein);
(c) within the time period (x) concurrently with any delivery of financial statements under Section 5.01(a)paragraphs (a) or (b) above, a certificate of a Responsible Financial Officer of the Borrower (i) certifying that, to the knowledge of such Responsible Officer, that no Event of Default or Default has occurred and is continuing, or, if, to the knowledge of such Responsible Officer, if such an Event of Default or Default has occurred and is continuingoccurred, specifying the nature and extent thereof and any corrective action taken or proposed to be taken with respect thereto, (ii) setting forth computations in reasonable detail satisfactory to the Administrative Agent of the Fixed Charge Coverage Ratio, (iii) setting forth computations in reasonable detail satisfactory to the Administrative Agent of the Average Quarterly Excess Availability, (iv) certifying a list of names of all Immaterial Subsidiaries, that each Subsidiary set forth on such list individually qualifies as an Immaterial Subsidiary and that all such Subsidiaries in the aggregate do not exceed the limitation set forth in clause (ii) of the definition of the term Immaterial Subsidiary, and (v) certifying a list of names of all Unrestricted Subsidiaries, that each Subsidiary set forth on such list individually qualifies as an Unrestricted Subsidiary, and (y) concurrently with any delivery of financial statements under paragraph (a) above, if the accounting firm is not restricted from providing such a certificate by the policies of its national office, a certificate of the accounting firm opining on or certifying such statements stating whether they obtained knowledge during the course of their examination of such statements of any Default or Event of Default (which certificate may be limited to accounting matters and disclaim responsibility for legal interpretations);
(d) promptly after the same become publicly available, copies of all periodic and other publicly available reports, proxy statements and, to the extent requested by the Administrative Agent, other materials filed by Holdings, the Borrower or any of its Subsidiaries with the SEC, or distributed to its stockholders generally, as applicable; provided, however, that such reports, proxy statements, filings and other materials required to be delivered pursuant to this clause (d) shall be deemed delivered for purposes of this Agreement when posted to the website of Holdings or the Borrower;
(e) within 95 days after the beginning of each fiscal year, a reasonably detailed consolidated annual budget for such fiscal year (including a projected consolidated balance sheet of the Borrower and its Subsidiaries as of the end of the following fiscal year, and the related consolidated statements of projected cash flow and projected income), including a description of underlying assumptions with respect thereto (collectively, the “Budget”), which Budget shall in each case be accompanied by the statement of a Financial Officer of the Borrower to the effect that the Budget is based on assumptions believed by such Financial Officer to be reasonable as of the date of delivery thereof;
(f) upon the reasonable request of the Administrative Agent, an updated Perfection Certificate (or, to the extent such request relates to specified information contained in the Perfection Certificate, such information) reflecting all changes since the date of the information most recently received pursuant to this paragraph (f) or Section 6.10(f);
(g) (i) promptly, from time period under to time, such other information regarding the operations, business affairs and financial condition of Holdings, the Borrower or any of its Subsidiaries, or compliance with the terms of any Loan Document, or such consolidating financial statements as in each case the Administrative Agent may reasonably request (for itself or on behalf of any Lender) and (ii) prior written notice in the event that the Borrower changes its fiscal year end;
(h) in the event that (i) in respect of the Senior Notes, or any Permitted Refinancing Indebtedness with respect thereto, the rules and regulations of the SEC permit the Borrower, Holdings or any Parent Entity to report at Holdings’ or such Parent Entity’s level on a consolidated basis and either (ii) (A) Holdings or such Parent Entity, as the case may be, is not engaged in any business or activity, and does not own any assets or have other liabilities, other than those incidental to its ownership directly or indirectly of the capital stock of the Borrower and the incurrence of Indebtedness for borrowed money (and, without limitation on the foregoing, does not have any subsidiaries other than the Borrower and the Borrower’s Subsidiaries and any direct or indirect parent companies of the Borrower that are not engaged in any other business or activity and do not hold any other assets or have any liabilities except as indicated above) or (B) in connection with any reporting requirements described in paragraphs (a) and (b) of this Section 5.016.04 the Borrower delivers consolidating financial information that explains, an Officerat a level of detail reasonably acceptable to the Administrative Agent, the differences between the information relating to Holdings or such Parent Entity and their Subsidiaries other than the Borrower and its Subsidiaries, on the one hand, and the information relating to the Borrower and its Subsidiaries on a standalone basis, on the other hand, then such consolidated reporting at such Parent Entity’s Certificate demonstrating level in reasonable detail compliance a manner consistent with that described in paragraphs (a) and (b) of this Section 6.08 as 6.04 for the Borrower will satisfy the requirements of the end of the preceding fiscal quartersuch paragraphs;
(ei) promptly after upon request by the occurrence thereofAdministrative Agent, written notice of copies of: (i) each Schedule B (Actuarial Information) to the termination of most recent annual report (Form 5500 Series) filed with the Internal Revenue Service with respect to a Plan; (ii) the most recent actuarial valuation report for any Plan; (iii) all notices received from a Multiemployer Plan of sponsor, a plan administrator or any governmental agency, or provided to any Multiemployer Plan by Holdings, the Borrower, a Subsidiary or any ERISA Affiliate, concerning an ERISA Event; and (iv) such other documents or governmental reports or filings relating to any Plan or Multiemployer Plan as the Administrative Agent shall reasonably request;
(j) promptly upon Holdings, Borrower or Subsidiaries becoming aware of any fact or condition which would reasonably be expected to result in an ERISA Affiliate pursuant Event, Borrower shall deliver to Administrative Agent a summary of such facts and circumstances and any action it or Holdings or Subsidiaries intend to take regarding such facts or conditions; and
(k) Borrowing Base Certificates, at the times specified in Section 4042 of ERISA, to the extent such termination would constitute an Event of Default under Section 7.01(j);6.14.
Appears in 1 contract
Samples: Abl Credit Agreement (Noranda Aluminum Holding CORP)
Financial Statements, Reports, etc. The Borrower shall deliver Furnish to the Administrative Agent on behalf of (which will promptly furnish such information to the Lenders:):
(a) within ninety (90) 90 days after the end of each fiscal yearyear of the Borrower, Parent’s a consolidated balance sheet and related statement statements of income operations, cash flows and cash flows, owners’ equity showing the financial condition position of Parent the Borrower and its Subsidiaries on a consolidated basis as of the close of such fiscal year and the consolidated results of their respective its operations during such year and setting forth in comparative form the corresponding figures for the prior fiscal year, such which consolidated financial balance sheet and related statements of Parent to operations, cash flows and owners’ equity shall be audited for Parent by independent public accountants of recognized national standing and to be accompanied by an opinion of such accountants (which opinion shall not be unqualified qualified as to scope of such audit) , or as to the status of the Borrower or any Material Subsidiary as a “going concern” to the effect that such consolidated financial statements fairly present present, in all material respects respects, the financial condition position and results of operations of Parent the Borrower and its Subsidiaries on a consolidated basis in accordance with GAAP; provided GAAP (it being understood that the foregoing delivery requirement shall be satisfied if Parent shall have filed filing by the Borrower of annual reports on Form 10 K of the Borrower and its consolidated Subsidiaries with the SEC its Annual Report on Form 10-K for such fiscal year, which is available shall satisfy the requirements of this Section 5.04(a) to the public via XXXXX or any similar successor systemextent such annual reports include the information specified herein);
(b) within forty-five (45) 45 days after the end of each of the first three fiscal quarters quarterly periods of each fiscal yearyear of the Borrower, Parent’s a consolidated balance sheets sheet and related statements of income operations and cash flows, flows showing the financial condition position of Parent the Borrower and its Subsidiaries on a consolidated basis as of the close of such fiscal quarter and the consolidated results of their its operations during such fiscal quarter and the then-elapsed portion of the fiscal year and setting forth in comparative form the corresponding figures for the corresponding periods of the prior fiscal year, each all of which shall be in reasonable detail and which consolidated balance sheet and related statements of operations and cash flows shall be certified by a Responsible Financial Officer of Parent the Borrower on behalf of the Borrower as fairly presenting presenting, in all material respects respects, the financial condition position and results of operations of Parent the Borrower and its Subsidiaries on a consolidated basis in accordance with GAAP, GAAP (subject to normal year-end audit adjustments and the absence of footnotes; provided ) (it being understood that the foregoing delivery requirement shall be satisfied if Parent shall have filed with filing by the SEC its Quarterly Report Borrower of quarterly reports on Form 10-Q for such fiscal quarter, which is available of the Borrower and its consolidated Subsidiaries with the SEC shall satisfy the requirements of this Section 5.04(b) to the public via XXXXX or any similar successor systemextent such quarterly reports include the information specified herein);
(c) within the time period concurrently with any delivery of financial statements under Section 5.01(a)paragraphs (a) or (b) above, a certificate of a Responsible Financial Officer of the Borrower (i) certifying that, to the knowledge of such Responsible Officer, that no Event of Default or Default has occurred and is continuing, or, if, to the knowledge of such Responsible Officer, if such an Event of Default or Default has occurred and is continuingoccurred, specifying the nature and extent thereof and any corrective action taken or proposed to be taken with respect thereto, (ii) setting forth computations in reasonable detail satisfactory to the Administrative Agent demonstrating compliance with the Financial Performance Covenant, (iii) setting forth the calculation and uses of the Cumulative Credit for the fiscal period then ended, (iv) certifying a list of names of all Immaterial Subsidiaries, that each Subsidiary set forth on such list individually qualifies as an Immaterial Subsidiary and that all such Subsidiaries in the aggregate do not exceed the limitation set forth in clause (b) of the definition of the term “Immaterial Subsidiary” and (v) certifying a list of names of all Unrestricted Subsidiaries and that each Subsidiary set forth on such list individually qualifies as an Unrestricted Subsidiary;
(d) promptly after the same become publicly available, copies of all periodic and other publicly available reports, proxy statements and, to the extent requested by the Administrative Agent, other materials filed by Holdings, the Borrower or any of the Subsidiaries with the SEC, or distributed to its stockholders generally, as applicable; provided, however, that such reports, proxy statements, filings and other materials required to be delivered pursuant to this clause (d) shall be deemed delivered for purposes of this Agreement when posted to the website of the Borrower;
(e) within 90 days after the beginning of each fiscal year of the Borrower, a reasonably detailed consolidated annual budget for such fiscal year (including a projected consolidated balance sheet of the Borrower and its Subsidiaries as of the end of such fiscal year, and the related consolidated statements of projected cash flow and projected income), including a description of underlying assumptions with respect thereto (collectively, the “Budget”), which Budget shall in each case be accompanied by the statement of a Financial Officer of the Borrower to the effect that, the Budget is based on assumptions believed by such Financial Officer to be reasonable as of the date of delivery thereof;
(f) upon the reasonable request of the Administrative Agent, an updated Perfection Certificate (or, to the extent such request relates to specified information contained in the Perfection Certificate, such information) reflecting all changes since the date of the information most recently received pursuant to this paragraph (f) or Section 5.09(f);
(g) promptly, from time period under to time, such other information regarding the operations, business affairs and financial condition of Holdings, the Borrower or any of the Subsidiaries, or compliance with the terms of any Loan Document, as in each case the Administrative Agent may reasonably request (for itself or on behalf of any Lender);
(h) in the event that (i)(a) in respect of the Senior Unsecured Notes or the Senior Subordinated Notes, and any Permitted Refinancing Indebtedness with respect thereto, the rules and regulations of the SEC or (b) the indentures governing any secured or unsecured notes of the Borrower, permit the Borrower, Holdings or any Parent Entity to report at Holdings’ or such Parent Entity’s level on a consolidated basis and (ii) Holdings or such Parent Entity, as the case may be, is not engaged in any business or activity, and does not own any material assets or have other material liabilities, other than cash and cash equivalents and those incidental to its ownership directly or indirectly of the Equity Interests of the Borrower and the incurrence of Indebtedness for borrowed money (and, without limitation on the foregoing, does not have any subsidiaries other than the Borrower and the Borrower’s Subsidiaries and any direct or indirect parent companies of the Borrower that are not engaged in any other business or activity and do not hold any other assets or have any liabilities except as indicated above) such consolidated reporting at such Parent Entity’s level in a manner consistent with that described in paragraphs (a) and (b) of this Section 5.01, an Officer’s Certificate demonstrating in reasonable detail 5.04 for the Borrower (together with a reconciliation showing the adjustments necessary to determine compliance by the Borrower and its Subsidiaries with Section 6.08 as the Financial Performance Covenant) shall satisfy the requirements of such paragraphs; and
(i) upon the request of the end Administrative Agent, copies of the preceding fiscal quarter;
(eany documents described in Sections 101(k) promptly after the occurrence thereof, written notice or 101(l) of the termination of a Plan of ERISA that the Borrower or an any ERISA Affiliate pursuant or Subsidiary may request with respect to Section 4042 any Multiemployer Plan; provided, that if the Borrower or any of ERISAits ERISA Affiliates or Subsidiaries have not requested such documents or notices from the administrator or sponsor of the applicable Multiemployer Plan, then, upon reasonable written request of the Administrative Agent, the Borrower and/or its ERISA Affiliates or Subsidiaries shall promptly make a request for such documents or notices from such administrator or sponsor and the Borrower shall provide copies of such documents and notices to the extent such termination would constitute an Event of Default under Section 7.01(j);Administrative Agent promptly after receipt thereof.
Appears in 1 contract
Financial Statements, Reports, etc. The Borrower shall deliver Deliver to the Administrative Agent Agents on behalf of the Lenders:
(a) within ninety (90) Within 90 days after the end of each fiscal year, the Parent’s consolidated balance sheet and related statement of income and cash flows, showing the financial condition of the Parent and its Subsidiaries on a consolidated basis as of the close of such fiscal year and the results of their respective operations during such year, such the consolidated financial statements statement of the Parent to be audited for the Parent by Deloitte and Touche LP or other independent public accountants of recognized national standing and to be accompanied by an opinion of such accountants (which opinion shall be unqualified without a “going concern” or like qualification or exception and without any qualification or exception (other than with respect to the 2004 audit and the 2005 audit) as to the scope of such audit) and to be certified by a Responsible Officer of the Parent to the effect that such consolidated financial statements fairly present in all material respects the financial condition and results of operations of the Parent and its Subsidiaries on a consolidated basis in accordance with GAAP; provided that documents required to be delivered pursuant to this clause (a) which are made available via XXXXX, or any successor system of the foregoing delivery requirement shall be satisfied if Parent shall have filed with SEC, on the SEC its Parent’s Annual Report on Form 10-K for shall be deemed delivered when made so available and the Agents shall have received notice that such fiscal year, which is available to the public via XXXXX or any similar successor systemdocuments have been made so available;
(b) within forty-five (45) Within 45 days after the end of each of the first three fiscal quarters of each fiscal yearquarters, the Parent’s consolidated balance sheets and related statements of income and cash flows, showing the financial condition of the Parent and its Subsidiaries on a consolidated basis as of the close of such fiscal quarter and the results of their operations during such fiscal quarter and the then-then elapsed portion of the fiscal year, each certified by a Responsible Officer of the Parent as fairly presenting in all material respects the financial condition and results of operations 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; provided that documents required to be delivered pursuant to this clause (b) which are made available via XXXXX, or any successor system of the foregoing delivery requirement shall be satisfied if Parent shall have filed with SEC, on the SEC its Quarterly Parent’s Annual Report on Form 10-Q for K shall be deemed delivered when made so available and the Agents shall have received notice that such fiscal quarter, which is available to the public via XXXXX or any similar successor systemdocuments have been made so available;
(ci) within the time period concurrently with any delivery of financial statements under Section 5.01(a)(a) and (b) above, a certificate of a Responsible Officer of the Borrower Parent (A) certifying that, to the knowledge of such Responsible Officer, that no Event of Default or event which upon notice or lapse of time or both would constitute an Event of Default has occurred and is continuingoccurred, or, if, to the knowledge of such Responsible Officer, if such an Event of Default or event has occurred and is continuingoccurred, specifying the nature and extent thereof and any corrective action taken or proposed to be taken with respect thereto, (B) setting forth computations in reasonable detail satisfactory to the Agents demonstrating compliance with the provisions of Sections 6.03, 6.04, 6.05, 6.06 and 6.10 and (C) stating whether any change in GAAP or in the application thereof has occurred since the date of the audited financial statements referred to in Section 3.05 and, if any such change has occurred, specifying the effect of such change on the financial statements accompanying such certificate; (ii) concurrently with any delivery of financial statements under (a) above, a certificate of a Responsible Officer of the Parent setting forth a list of the direct and indirect Subsidiaries (other than Immaterial Subsidiaries) of the Parent as of such date; and (iii) concurrently with any delivery of financial statements under (a) above, a certificate (which certificate may be limited to accounting matters and disclaim responsibility for legal interpretations) of the accountants auditing the consolidated financial statements delivered under (a) above certifying that, in the course of the regular audit of the business of the Borrower, the Parent and its Subsidiaries, such accountants have obtained no knowledge that an Event of Default under Sections 6.04, 6.05 or 6.06 has occurred and is continuing or if, in the opinion of such accountants, such an Event of Default has occurred and is continuing, specifying the nature thereof and all relevant facts with respect thereto;
(d) promptly after the same become publicly available, copies of all registration statements and all periodic and other reports, proxy statements and other materials filed by it with the Securities and Exchange Commission, or any governmental authority succeeding to any of or all the functions of said commission, or with any national securities exchange, as the case may be; provided that documents required to be delivered pursuant to this clause (d) which are made available via XXXXX, or any successor system of the SEC, shall be deemed delivered when made so available and the Agents shall have received notice that such documents have been made so available.
(e) Within sixty (60) days from the last Business Day of the immediately preceding fiscal year, a detailed consolidated budget for the following 12-month period (including a projected consolidated balance sheet and related statements of projected operations and cash flow for such period) and, promptly when available, any significant revisions of such budget;
(f) as soon as available and in any event within fifteen (15) Business Days after the Borrower or any of its ERISA Affiliates knows or has reason to know that any Termination Event has occurred, a statement of a Responsible Officer of the Borrower describing the full details of such Termination Event and the action, if any, which the Borrower or such ERISA Affiliate is required or proposes to take with respect thereto, together with any notices required or proposed to be given to or filed with or by the Borrower, the ERISA Affiliate, the PBGC, a Plan participant or the Plan administrator with respect thereto;
(g) promptly and in any event within fifteen (15) Business Days after receipt thereof by the Borrower or any of its ERISA Affiliates from the PBGC copies of each notice received by the Borrower or any such ERISA Affiliate of the PBGC’s intention to terminate any Single Employer Plan of the Borrower or such ERISA Affiliate or to have a trustee appointed to administer any such Plan;
(h) if requested by either Agent (in consultation with the other 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 Plan of the Borrower or any of its ERISA Affiliates;
(i) within fifteen (15) Business Days after notice is given or required to be given to the PBGC under Section 302(f)(4)(A) of ERISA of the failure of the Borrower or any of its ERISA Affiliates to make timely payments to a Plan, a copy of any such notice filed and a statement of a Responsible Officer of the Borrower setting forth (i) sufficient information necessary to determine the amount of the lien under Section 302(f)(3), (ii) the reason for the failure to make the required payments and (iii) the action, if any, which the Borrower or any of its ERISA Affiliates proposed to take with respect thereto;
(j) promptly and in any event within fifteen (15) Business Days after receipt thereof by the Borrower or any ERISA Affiliate from a Multiemployer Plan sponsor, a copy of each notice received by the Borrower or any ERISA Affiliate concerning (i) the imposition of Withdrawal Liability by a Multiemployer Plan, (ii) the determination that a Multiemployer Plan is, or is expected to be, in reorganization within the meaning of Title IV of ERISA, (iii) the termination of a Multiemployer Plan within the meaning of Title IV of ERISA, or (iv) 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 (i), (ii) or (iii) above;
(k) promptly after any Responsible Officer of the Borrower obtains knowledge thereof, notice of any taxes, assessments and governmental charges or Liens imposed upon the Borrower or any of the Guarantors or any of its or their properties, or any action, suit, investigation or proceeding in respect thereof that has the reasonable likelihood of adverse determination, as to which the Borrower or such Guarantor has obtained written notice and which, either individually or in the aggregate, could reasonably be expected to have a Material Adverse Effect;
(l) promptly after a Responsible Officer obtains knowledge of (i) the filing or commencement of any action, suit or proceeding by or before any arbitrator or Governmental Authority against or affecting the Parent or any Subsidiary that has a reasonable likelihood of adverse determination and such adverse determination could reasonably be expected to result in a Material Adverse Effect; (ii) the receipt of any environmental audits and reports, whether prepared by personnel of the Borrower or any Guarantor or by independent consultants, with respect to significant environmental matters or which relate to an Environmental Liability which could be expected to have a Material Adverse Effect, together with copies of such audits and reports; or (iii) any other development that results in, or could reasonably be expected to result in, a Material Adverse Effect; each notice delivered under this sub-paragraph shall be accompanied by a statement of a Responsible Officer of the Parent and the Borrower setting forth the details of the event or development requiring such notice and any action taken or proposed to be taken with respect thereto;
(m) promptly, from time period to time, such other information regarding the operations (including, without limitation, any information regarding Slot utilization), business affairs and financial condition of the Borrower or any Guarantor as either of the Agents, at the request of any Lender, may reasonably request;
(n) on the fifth Business Day following the end of each calendar month in which the Borrower and, if applicable, a Guarantor, file with the FAA, other applicable Governmental Authority or Airport Authority a report on Primary Slot utilization pursuant to 14 C.F.R. Part 93 or other applicable regulations or law regarding Primary Slot utilization, a copy of such report, and a summary thereof, in a format reasonably acceptable to the Agents;
(o) on the fifth Business Day following the end of each calendar month, a Primary Foreign Slot Utilization Report, in a format reasonably acceptable to the Agents, showing by day of week the number of times the Borrower and, if applicable, a Guarantor, canceled or otherwise did not operate a flight utilizing each such Primary Foreign Slot in the just ended calendar month;
(p) on the fifth Business Day following the end of each calendar month, a certificate of a Responsible Officer of the Borrower and, if applicable, a Guarantor, (i) stating that at all times since the last certificate delivered under this Section 5.01(p) (aor, in the case of the first certificate to be delivered after the Closing Date, at all times since the Closing Date) the Borrower and, if applicable, a Guarantor, are utilizing the Primary Routes and the Primary Foreign Slots in a manner consistent in all material respects with applicable regulations, rules, law, foreign law and contracts in order to preserve their respective rights in and to use each of the Primary Routes and Primary Foreign Slots and whether the Borrower and, if applicable, a Guarantor, has satisfied all applicable utilization requirements set forth in any such regulation, rule, law, foreign law and contract and (bii) stating whether the Borrower and, if applicable, a Guarantor, has discontinued, suspended or otherwise not operated nonstop service between Hong Kong and Singapore, Hong Kong and Ho Chi Minh, Tokyo and Seoul, Tokyo and Bangkok, Tokyo and Hong Kong, Tokyo and Singapore, Tokyo and Taipei, Nagoya and Taipei, or to points in China, Tokyo’s Narita Airport, Osaka’s Kansai International Airport, Nagoya Airport, Hong Kong International Airport or London’s Heathrow Airport from any gateway in the United States from which the Borrower and, if applicable, a Guarantor, operated nonstop service during the previous month, for more than fifteen (15) consecutive days;
(q) from and after Eligible Accounts Receivable being designated as Eligible Collateral, promptly and in any event within forty-five (45) days of this Section 5.01each six (6) month anniversary of the Closing Date, an Officer’s Certificate demonstrating in reasonable detail compliance with Section 6.08 from the Parent setting forth the amount of Eligible Accounts Receivable as of such date, together with all supporting documents and additional reports with respect to Eligible Accounts Receivable as the end of Agents may reasonably request. Subject to the preceding fiscal quarter;
(e) promptly after next succeeding sentence, information delivered pursuant to this Section 5.01 to the occurrence thereof, written notice of Agents may be made available by the termination of a Plan of Agents to the Borrower or an ERISA Affiliate Lenders by posting such information on the Intralinks website on the Internet at xxxx://xxx.xxxxxxxxxx.xxx. Information delivered pursuant to this Section 5.01 may also be delivered by electronic communication pursuant to procedures approved by the Agents pursuant to Section 4042 of ERISA, 10.01 hereto. Information required to be delivered pursuant to this Section 5.01 (to the extent not made available as set forth above) shall be deemed to have been delivered to the Agents on the date on which the Borrower provides written notice to the Agents that such information has been posted on the Borrower’s website on the Internet at xxxx://xxx.xxxxxx.xxx (to the extent such termination would constitute an Event information has been posted or is available as described in such notice). Information required to be delivered pursuant to this Section 5.01 shall be in a format which is suitable for transmission.
(i) expressly marked by the Borrower as “PUBLIC” or (ii) copies of Default under its public filings with the SEC, any notice or other communication delivered pursuant to this Section 7.01(j);5.01, or otherwise pursuant to this Agreement, shall be deemed to contain material non-public information.
Appears in 1 contract
Samples: Revolving Credit, Term Loan and Guaranty Agreement (Ual Corp /De/)
Financial Statements, Reports, etc. The Borrower shall deliver Furnish to the Administrative Agent on behalf of the Lendersand each Lender:
(a) within ninety (90) 90 days after the end of each fiscal year, Parent’s a consolidated balance sheet and related sheet, statement of income and statement of cash flows, flows showing the financial condition and results of Parent operations of the Borrower and its consolidated Subsidiaries on a consolidated basis as of and for the close of such fiscal year and the results of their respective operations during such yearthen ended, such consolidated financial statements of Parent to be all audited for Parent by PricewaterhouseCoopers LLP or other independent public accountants of recognized national standing and to be accompanied by an opinion of such accountants (which opinion shall not be unqualified as to scope of such auditqualified 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 Parent the Borrower and its Subsidiaries consolidated Subsidiaries, as the case may be, on a consolidated basis in accordance with GAAP; provided provided, that documents required to be delivered under this clause (a) which are made available on the foregoing delivery requirement internet (x) on the Borrower’s website (so long as the Borrower provides notice to the Administrative Agent that such documents have been made available on such website) shall be satisfied if Parent shall have filed with deemed delivered on the SEC its Annual Report later of (i) the date such documents are made available on Form 10-K for such fiscal year, website and (ii) the date on which is available the Borrower provides such notice to the public Administrative Agent or (y) via XXXXX xxx.xxx.xxx or any similar successor systemsystem of the Securities and Exchange Commission shall be deemed delivered on the date made so available;
(b) within forty-five (45) 45 days after the end of each of the first three fiscal quarters of each fiscal year, Parent’s a consolidated balance sheets and related statements sheet, statement of income and statement of cash flows, flows showing the financial condition of Parent and its Subsidiaries on a consolidated basis as of the close of such fiscal quarter and the results of their operations during such fiscal quarter and the then-elapsed portion of the fiscal year, each certified by a Responsible Officer of Parent as fairly presenting in all material respects the financial condition and results of operations of Parent the Borrower and its consolidated Subsidiaries as of and for the fiscal quarter then ended and the then elapsed portion of the fiscal year, all certified by a Financial Officer of the Borrower as fairly presenting the financial condition and results of operations of the Borrower, as the case may be, on a consolidated basis in accordance with GAAP, subject to normal year-end audit adjustments and adjustments; provided, that documents required to be delivered under this clause (b) which are made available on the absence of footnotes; provided internet (x) on the Borrower’s website (so long as the Borrower provides notice to the Administrative Agent that the foregoing delivery requirement such documents have been made available on such website) shall be satisfied if Parent shall have filed with deemed delivered on the SEC its Quarterly Report later of (i) the date such documents are made available on Form 10-Q for such fiscal quarter, website and (ii) the date on which is available the Borrower provides such notice to the public Administrative Agent or (y) via XXXXX xxx.xxx.xxx or any similar successor systemsystem of the Securities and Exchange Commission shall be deemed delivered on the date made so available;
(c) within the time period concurrently with any delivery of financial statements under Section 5.01(a)paragraph (a) or (b) above, (i) a Ratio Certificate and (ii) a certificate of a Responsible Financial Officer of the Borrower certifying that, to the knowledge of such Responsible Officer, that no Event of Default or Default has occurred and is continuing, or, if, to the knowledge of such Responsible Officer, if such an Event of Default or Default has occurred and is continuingoccurred, specifying the nature and extent thereof and any corrective action taken or proposed to be taken with respect thereto;
(d) within promptly, after their becoming available, copies of all financial statements, stockholders reports and proxy statements that the time period Borrower shall have sent to its stockholders generally, and copies of all registration statements filed by the Borrower under the Securities Act of 1933, as amended (aother than registration statements on Form S-8 or any registration statement filed in connection with a dividend reinvestment plan), and regular and periodic reports, if any, which the Borrower shall have filed with the Securities and Exchange Commission (or any governmental agency or agencies substituted therefor) under Section 13 or Section 15(d) of the Securities and Exchange Act of 1934, as amended, or with any national securities exchange (other than those on Form 11-K or any successor form); provided, that documents required to be delivered under this clause (d) which are made available on the internet (x) on the Borrower’s website (so long as the Borrower provides notice to the Administrative Agent that such documents have been made available on such website) shall be deemed delivered on the later of (i) the date such documents are made available on such website and (bii) of this Section 5.01, an Officer’s Certificate demonstrating in reasonable detail compliance with Section 6.08 as the date on which the Borrower provides such notice to the Administrative Agent or (y) via xxx.xxx.xxx or any successor system of the end of Securities and Exchange Commission shall be deemed delivered on the preceding fiscal quarter;date made so available; and
(e) promptly after promptly, from time to time, and subject to any restrictions imposed by any Governmental Authority, (x) such other information regarding the occurrence thereofBorrower or any Significant Subsidiary (including the operations, written notice of the termination of a Plan business affairs and financial condition of the Borrower or an ERISA Affiliate pursuant to Section 4042 any Significant Subsidiary), or compliance with the terms of ERISAthis Agreement, to as the extent such termination would constitute an Event Administrative Agent or any Lender may reasonably request and (y) information and documentation reasonably requested by the Administrative Agent or any Lender for purposes of Default under Section 7.01(j);compliance with applicable “know your customer” and anti-money laundering rules and regulations, including the Patriot Act and the Beneficial Ownership Regulation.
Appears in 1 contract
Samples: Competitive Advance and Revolving Credit Agreement (Raytheon Co/)
Financial Statements, Reports, etc. The Borrower shall deliver Furnish to the Administrative Agent on behalf of (which will promptly furnish such information to the Lenders:):
(a) within ninety (90) 90 days after the end of each fiscal yearyear of the Borrower, Parent’s a consolidated balance sheet and related statement statements of income operations, cash flows and cash flows, owners’ equity showing the financial condition position of Parent the Borrower and its Subsidiaries on a consolidated basis as of the close of such fiscal year and the consolidated results of their respective its operations during such year and setting forth in comparative form the corresponding figures for the prior fiscal year, such which consolidated financial balance sheet and related statements of Parent to operations, cash flows and owners’ equity shall be audited for Parent by independent public accountants of recognized national standing and to be accompanied by an opinion of such accountants (which opinion shall not be unqualified qualified as to scope of such auditaudit or as to the status of the Borrower or any Material Subsidiary as a “going concern”) to the effect that such consolidated financial statements fairly present present, in all material respects respects, the financial condition position and results of operations of Parent the Borrower and its Subsidiaries on a consolidated basis in accordance with GAAP; provided GAAP (it being understood that the foregoing delivery requirement shall be satisfied if Parent shall have filed with by the SEC its Annual Report Borrower of annual reports on Form 10-10 K for such fiscal year, which is available of the Borrower and its consolidated Subsidiaries shall satisfy the requirements of this Section 5.04(a) to the public via XXXXX or any similar successor systemextent such annual reports include the information specified herein);
(b) within forty-five (45) 45 days after the end of each of the first three fiscal quarters quarterly periods of each fiscal yearyear of the Borrower, Parent’s a consolidated balance sheets sheet and related statements of income operations and cash flows, flows showing the financial condition position of Parent the Borrower and its Subsidiaries on a consolidated basis as of the close of such fiscal quarter and the consolidated results of their its operations during such fiscal quarter and the then-elapsed portion of the fiscal year and setting forth in comparative form the corresponding figures for the corresponding periods of the prior fiscal year, each all of which shall be in reasonable detail and which consolidated balance sheet and related statements of operations and cash flows shall be certified by a Responsible Financial Officer of Parent the Borrower on behalf of the Borrower as fairly presenting presenting, in all material respects respects, the financial condition position and results of operations of Parent the Borrower and its Subsidiaries on a consolidated basis in accordance with GAAP, GAAP (subject to normal year-end audit adjustments and the absence of footnotes; provided ) (it being understood that the foregoing delivery requirement shall be satisfied if Parent shall have filed with by the SEC its Quarterly Report Borrower of quarterly reports on Form 10-Q for such fiscal quarter, which is available to the public via XXXXX or any similar successor system;
(c) within the time period under Section 5.01(a), a certificate of a Responsible Officer of the Borrower certifying that, to and its consolidated Subsidiaries shall satisfy the knowledge of such Responsible Officer, no Event of Default has occurred and is continuing, or, if, to the knowledge of such Responsible Officer, such an Event of Default has occurred and is continuing, specifying the nature and extent thereof and any corrective action taken or proposed to be taken with respect thereto;
(d) within the time period under (a) and (b) requirements of this Section 5.01, an Officer’s Certificate demonstrating in reasonable detail compliance with Section 6.08 as of the end of the preceding fiscal quarter;
(e5.04(b) promptly after the occurrence thereof, written notice of the termination of a Plan of the Borrower or an ERISA Affiliate pursuant to Section 4042 of ERISA, to the extent such termination would constitute an Event of Default under Section 7.01(jquarterly reports include the information specified herein);
Appears in 1 contract
Samples: Credit Agreement (NRT Settlement Services of Missouri LLC)
Financial Statements, Reports, etc. The Borrower shall deliver Furnish to the Administrative Agent on behalf of (and the Administrative Agent will promptly furnish such information to the Lenders:):
(a) within ninety (90) Within 90 days after of the end of each fiscal year, Parent’s consolidated for each fiscal year, a balance sheet and related statement statements of income operations, cash flows and cash flows, owners’ equity showing the financial condition position of Parent and its Subsidiaries on a consolidated basis the Borrower, as of the close of such fiscal year and the results of their respective its operations during such year, such consolidated financial which balance sheet and related statements of Parent to be audited for Parent by independent public accountants of recognized national standing operations, cash flows and to be accompanied by an opinion of such accountants (which opinion owners’ equity shall be unqualified certified by a Financial Officer of the Borrower, on behalf of the Borrower, as to scope of such audit) to the effect that such consolidated financial statements fairly present presenting, in all material respects respects, the financial condition position and results of operations and cash flows of Parent and its Subsidiaries on a consolidated basis the Borrower in accordance with GAAP; provided that GAAP (subject to normal year end audit adjustments and the foregoing delivery requirement shall be satisfied if Parent shall have filed with the SEC its Annual Report on Form 10-K for such fiscal year, which is available to the public via XXXXX or any similar successor systemabsence of footnotes);
(b) within forty-five (45) Within 45 days after of the end of each fiscal quarter, for each of the first three fiscal quarters of each fiscal yearyear (beginning with the fiscal quarter ended June 30, Parent’s consolidated 2014), a balance sheets sheet and related statements of income operations and cash flows, flows showing the financial condition position of Parent and its Subsidiaries on a consolidated basis the Borrower as of the close of such fiscal quarter and the results of their its operations during such fiscal quarter and the then-then elapsed portion of the fiscal year, each all of which shall be in reasonable detail and which balance sheet and related statements of operations and cash flows shall be certified by a Responsible Financial Officer of Parent the Borrower, on behalf of the Borrower, as fairly presenting presenting, in all material respects respects, the financial condition position and results of operations and cash flows of Parent and its Subsidiaries on a consolidated basis the Borrower in accordance with GAAP, GAAP (subject to normal year-year end audit adjustments and the absence of footnotes; provided that the foregoing delivery requirement shall be satisfied if Parent shall have filed with the SEC its Quarterly Report on Form 10-Q for such fiscal quarter, which is available to the public via XXXXX or any similar successor system);
(c) within Within 30 days of the time period under Section 5.01(aend of each calendar month (beginning May 31, 2014), for each calendar month, a balance sheet and related statements of operations and cash flows showing the financial position of the Borrower as of the close of such calendar month and the results of its operations during such calendar month and the then elapsed portion of the fiscal year, all of which shall be in reasonable detail and which balance sheet and related statements of operations and cash flows shall be certified by a Financial Officer of the Borrower, on behalf of the Borrower, as fairly presenting, in all material respects, the financial position and results of operations and cash flows of the Borrower in accordance with GAAP (subject to normal year end audit adjustments, normal quarterly adjustments and the absence of footnotes);
(d) Within 30 days, for each calendar month (beginning May 31, 2014), a certificate of a Responsible Financial Officer of the Borrower substantially in the form of Exhibit F (a) certifying that, to the knowledge of such Responsible Officer, that no Event of Default or Default has occurred and is continuing, or, if, to the knowledge of such Responsible Officer, if such an Event of Default or Default has occurred and is continuingoccurred, specifying the nature and extent thereof and any corrective action taken or proposed to be taken with respect thereto;
(d) within the time period under (a) and , (b) of this Section 5.01certifying the cash balance maintained in the Interest Reserve Account, an Officer’s Certificate demonstrating and (c) setting forth computations in reasonable detail demonstrating compliance with Section 6.08 6.15, and demonstrating the calculation of Debt Service and Available Cash as of the end of the preceding fiscal quarter;such applicable period; and
(e) promptly after Promptly, from time to time, such other information regarding the occurrence thereofoperations, written notice business affairs and financial condition of Holdings or the termination Borrower, or compliance with the terms of a Plan any Loan Document, the Power Purchasing Agreement or the UOOMA as in each case the Administrative Agent may reasonably request (in each case, for itself or on behalf of the Borrower or an ERISA Affiliate pursuant to Section 4042 of ERISA, to the extent such termination would constitute an Event of Default under Section 7.01(jany Lender);.
Appears in 1 contract
Financial Statements, Reports, etc. The Borrower shall deliver Furnish to the Administrative Agent on behalf of (which will promptly furnish such information to the Lenders:):
(a) within ninety (90) Within 95 days after the end of each fiscal year, Parent’s a consolidated balance sheet and related statement statements of income operations, cash flows and cash flows, owners’ equity showing the financial condition position of Parent the Borrower and its Subsidiaries on a consolidated basis as of the close of such fiscal year and the consolidated results of their respective its operations during such year and setting forth in comparative form the corresponding figures for the prior fiscal year, such which consolidated financial balance sheet and related statements of Parent to operations, cash flows and owners’ equity shall be audited for Parent by independent public accountants of recognized national standing and to be accompanied by an opinion of such accountants (which opinion shall not be unqualified qualified as to scope of such auditaudit or as to the status of the Borrower or any Material Subsidiary as a going concern) to the effect that such consolidated financial statements fairly present present, in all material respects respects, the financial condition position and results of operations of Parent the Borrower and its Subsidiaries on a consolidated basis in accordance with GAAP; provided GAAP (it being understood that the foregoing delivery requirement shall be satisfied if Parent shall have filed with by the SEC its Annual Report Borrower of annual reports on Form 10-K for such fiscal year, which is available of the Borrower and its consolidated Subsidiaries shall satisfy the requirements of this Section 6.04(a) to the public via XXXXX or any similar successor systemextent such annual reports include the information specified herein);
(b) within forty-five (45) 50 days after the end of each of the first three fiscal quarters of each fiscal yearyear beginning with the fiscal quarter ending March 31, Parent’s 2013, (i) a consolidated balance sheets sheet and related statements of income operations and cash flows, flows showing the financial condition position of Parent the Borrower and its Subsidiaries on a consolidated basis as of the close of such fiscal quarter and the consolidated results of their its operations during such fiscal quarter and the then-then elapsed portion of the fiscal year and setting forth in comparative form the corresponding figures for the corresponding periods of the prior fiscal year, each and (ii) management’s discussion and analysis of significant operational and financial developments during such quarterly period, all of which shall be in reasonable detail and which consolidated balance sheet and related statements of operations and cash flows shall be certified by a Responsible Financial Officer of Parent the Borrower on behalf of the Borrower as fairly presenting presenting, in all material respects respects, the financial condition position and results of operations of Parent the Borrower and its Subsidiaries on a consolidated basis in accordance with GAAP, GAAP (subject to normal year-end audit adjustments and the absence of footnotes; provided ) (it being understood that the foregoing delivery requirement shall be satisfied if Parent shall have filed with by the SEC its Quarterly Report Borrower of quarterly reports on Form 10-Q for such fiscal quarter, which is available to the public via XXXXX or any similar successor system;
(c) within the time period under Section 5.01(a), a certificate of a Responsible Officer of the Borrower certifying that, to and its consolidated Subsidiaries shall satisfy the knowledge of such Responsible Officer, no Event of Default has occurred and is continuing, or, if, to the knowledge of such Responsible Officer, such an Event of Default has occurred and is continuing, specifying the nature and extent thereof and any corrective action taken or proposed to be taken with respect thereto;
(d) within the time period under (a) and (b) requirements of this Section 5.01, an Officer’s Certificate demonstrating in reasonable detail compliance with Section 6.08 as of the end of the preceding fiscal quarter;
(e6.04(b) promptly after the occurrence thereof, written notice of the termination of a Plan of the Borrower or an ERISA Affiliate pursuant to Section 4042 of ERISA, to the extent such termination would constitute an Event of Default under Section 7.01(jquarterly reports include the information specified herein);
Appears in 1 contract
Financial Statements, Reports, etc. The Borrower shall deliver Furnish to the Administrative Agent on behalf of (which will promptly furnish such information to the Lenders:):
(a) within ninety (90) 90 days after the end of each fiscal yearyear (commencing with the first fiscal year ending after the Closing Date), Parent’s a consolidated balance sheet and related statement consolidated statements of income income, stockholders’ equity, and cash flows, flows showing the financial condition position of Parent the Borrower and its the Subsidiaries on (or, in the event that the Borrower becomes a consolidated basis direct or indirect wholly owned subsidiary of one or more parent companies after the Closing Date (as permitted under the definition of “Change of Control”), each such parent company, the Borrower and the Subsidiaries) as of the close of such fiscal year and the consolidated results of their respective operations during such year and setting forth in comparative form the corresponding figures for the prior fiscal year, such which consolidated financial balance sheet and related consolidated statements of Parent to income, stockholders’ equity, and cash flows shall be accompanied by customary management’s discussion and analysis and audited for Parent by independent public accountants of recognized national standing and to be accompanied by an opinion of such accountants (which opinion shall not be unqualified qualified as to scope of audit or as to the status of the Borrower or any Material Subsidiary as a going concern, other than solely with respect to, or resulting solely from, an upcoming maturity date under any series of Indebtedness incurred under or permitted by this Agreement occurring within one year from the time such auditopinion is delivered or any potential inability to satisfy a financial maintenance covenant on a future date or in a future period) to the effect that such consolidated financial statements fairly present present, in all material respects respects, the financial condition position and results of operations of Parent the Borrower and its the Subsidiaries (or, if applicable, each such parent company, the Borrower and the Subsidiaries) on a consolidated basis in accordance with GAAP; provided GAAP (it being understood that the foregoing delivery requirement shall be satisfied by the Borrower (or, if Parent shall have filed with the SEC its Annual Report applicable, each such parent company) of annual reports on Form 10-K for of the Borrower and its consolidated Subsidiaries (or, if applicable, each such fiscal yearparent company, which is available the Borrower and its consolidated Subsidiaries) shall satisfy the requirements of this Section 5.04(a) to the public via XXXXX or any similar successor systemextent such annual reports include the information specified herein and are delivered within the time period specified above);
(b) within forty-five (45) 45 days after the end of each of the first three fiscal quarters of each fiscal yearyear (commencing with the first fiscal quarter ending after the Closing Date), Parent’s a consolidated balance sheets sheet and related consolidated statements of income and cash flows, flows showing the financial condition position of Parent the Borrower and its the Subsidiaries on (or, in the event that the Borrower becomes a consolidated basis direct or indirect wholly owned subsidiary of one or more parent companies after the Closing Date (as permitted under the definition of “Change of Control”), each such parent company, the Borrower and the Subsidiaries) as of the close of such fiscal quarter and the consolidated results of their operations during such fiscal quarter and the then-elapsed portion of the fiscal year and setting forth in comparative form the corresponding figures for the corresponding periods of the prior fiscal year, each all of which shall be in reasonable detail, which consolidated balance sheet and related consolidated statements of income and cash flows shall be accompanied by customary management’s discussion and analysis and which consolidated balance sheet and related statements of income and cash flows shall be certified by a Responsible Financial Officer of Parent the Borrower on behalf of the Borrower as fairly presenting presenting, in all material respects respects, the financial condition position and results of operations of Parent the Borrower and its the Subsidiaries (or, if applicable, each such parent company, the Borrower and the Subsidiaries) on a consolidated basis in accordance with GAAP, GAAP (subject to normal year-end audit adjustments and the absence of footnotes; provided ) (it being understood that the foregoing delivery requirement shall be satisfied by the Borrower (or, if Parent shall have filed with the SEC its Quarterly Report applicable, each such parent company) of quarterly reports on Form 10-Q for of the Borrower and its consolidated Subsidiaries (or, if applicable, each such fiscal quarterparent company, which is available the Borrower and its consolidated Subsidiaries) shall satisfy the requirements of this Section 5.04(b) to the public via XXXXX or any similar successor systemextent such quarterly reports include the information specified herein and are delivered within the time period specified above);
(c) within the time period ten (10) Business Days of any delivery of financial statements under Section 5.01(a)clause (a) or (b) above, a certificate of a Responsible Financial Officer of the Borrower (i) certifying that, to the knowledge of such Responsible Officer, that no Event of Default or Default has occurred and is continuing, since the date of the last certificate delivered pursuant to this Section 5.04(c) (or since the Closing Date in the case of the first such certificate) or, if, to the knowledge of such Responsible Officer, if such an Event of Default or Default has occurred and is continuingoccurred, specifying the nature and extent thereof and any corrective action taken or proposed to be taken with respect thereto, (ii) commencing with the end of the first full fiscal quarter after the Closing Date, setting forth computations in reasonable detail in a form reasonably satisfactory to the Administrative Agent calculating the Total Net Leverage Ratio and the Interest Coverage Ratio or the Fixed Charge Coverage Ratio, as applicable, demonstrating compliance with the Financial Covenants (if applicable) and (iii) setting forth the calculation and uses of the Available Amount for the fiscal period then ended if the Borrower shall have used the Available Amount for any purpose during such fiscal period;
(d) within promptly after the time period under same become publicly available, copies of all periodic and other publicly available reports, proxy statements and, to the extent requested by the Administrative Agent, other materials filed by the Borrower or any of the Subsidiaries with the SEC, or distributed to its stockholders generally, as applicable; provided, however, that such reports, proxy statements, filings and other materials required to be delivered pursuant to this clause (ad) and (b) shall be deemed delivered for purposes of this Section 5.01, an Officer’s Certificate demonstrating in reasonable detail compliance with Section 6.08 as Agreement when posted to the website of the end Borrower or the website of the preceding fiscal quarterSEC;
(e) promptly after [reserved];
(f) [reserved]; and
(g) promptly, from time to time, such other customary information regarding the occurrence thereofoperations, written notice of the termination of a Plan business affairs and financial condition of the Borrower or an ERISA Affiliate any of the Subsidiaries, or compliance with the terms of any Loan Document, as in each case the Administrative Agent may reasonably request (for itself or on behalf of any Lender). The Borrower acknowledges and agrees that all financial statements furnished pursuant to Section 4042 of ERISAparagraphs (a), (b) and (d) above are hereby deemed to be Borrower Materials suitable for distribution, and to be made available, to Public Lenders as contemplated by Section 9.17 and may be treated by the extent such termination would constitute an Event of Default under Administrative Agent and the Lenders as if the same had been marked “PUBLIC” in accordance with Section 7.01(j9.17 (unless the Borrower otherwise notifies the Administrative Agent in writing on or prior to delivery thereof);.
Appears in 1 contract
Samples: Credit Agreement (Enhabit, Inc.)
Financial Statements, Reports, etc. The Borrower shall deliver Furnish to the Administrative Agent on behalf of the LendersAgents and each Lender:
(a) within ninety (90) 90 days after the end of each fiscal year, Parent’s a consolidated balance sheet and related statement statements of income operations, cash flows and cash flows, owners' equity or stockholders' equity showing the financial condition position of Parent each of Holdings and its Subsidiaries on a consolidated basis and the Borrower and its Subsidiaries as of the close of such fiscal year and the consolidated results of their respective operations during such year, such consolidated financial statements of Parent to be all audited for Parent by independent public accountants of recognized national standing reasonably acceptable to the Administrative Agent and to be accompanied by an opinion of such accountants (which opinion shall not be unqualified as to scope of such auditqualified in any material respect) to the effect that such consolidated financial statements fairly present present, in all material respects respects, the financial condition position and results of operations of Parent each of Holdings and its Subsidiaries and the Borrower and its Subsidiaries on a consolidated basis in accordance with GAAP; provided that that, unless and to the foregoing delivery requirement shall be satisfied if Parent shall have filed with extent the SEC Administrative Agent otherwise directs the Borrower from time to time, the timely filing by Holdings of its Annual Report on Form 10-K with the SEC (so long as such Form 10-K breaks out the financial position and results of operations of the Borrower and its Subsidiaries in a manner which enables the Lenders to see any differences in the financial position and results of operation of the Borrower and its Subsidiaries from those of Holdings and its Subsidiaries other than the Borrower and its Subsidiaries) shall satisfy the requirements under this Section 5.04(a) for such the respective fiscal year, which is available to the public via XXXXX or any similar successor system;
(b) within forty-five (45) 45 days after the end of each of the first three fiscal quarters of each fiscal year, Parent’s a consolidated balance sheets sheet and related statements of income operations and cash flows, flows showing the financial condition position of Parent each of Holdings and its Subsidiaries on a consolidated basis and the Borrower and its Subsidiaries as of the close of such fiscal quarter and the consolidated results of their operations during such fiscal quarter and the then-elapsed portion of the fiscal year, each all certified by a Responsible Financial Officer of Parent Holdings or the Borrower, as the case may be, on behalf of Holdings or the Borrower, respectively, as fairly presenting presenting, in all material respects respects, the financial condition position and results of operations of Parent Holdings and its Subsidiaries or the Borrower and its Subsidiaries, as the case may be, in each case on a consolidated basis in accordance with GAAPGAAP (except for the absence of footnotes), subject to normal year-end audit adjustments and the absence of footnotesadjustments; provided that that, unless and to the foregoing delivery requirement shall be satisfied if Parent shall have filed with extent the SEC Administrative Agent otherwise directs the Borrower from time to time, the timely filing by Holdings of its Quarterly Report on Form 10-Q with the SEC (so long as such Form 10-Q breaks out the financial position and results of operations of the Borrower and its Subsidiaries in a manner which enables the Lenders to see any differences in the financial position and results of operation of the Borrower and its Subsidiaries from those of Holdings and its Subsidiaries other than the Borrower and its Subsidiaries) shall satisfy the requirements under this Section 5.04(b) for such the respective fiscal quarter, which is available to the public via XXXXX or any similar successor system;
(c) within the time period concurrently with any delivery of financial statements under Section 5.01(a)(a) or (b) above, a certificate of a Responsible the accounting firm or Financial Officer on behalf of the Borrower opining on or certifying thatsuch statements (which certificate, when furnished by an accounting firm, may be limited to the knowledge of such Responsible Officer, accounting matters and disclaim responsibility for legal interpretations) (i) certifying that no Event of Default or Default has occurred and is continuing, or, if, to the knowledge of such Responsible Officer, if such an Event of Default or Default has occurred and is continuingoccurred, specifying the nature and extent thereof and any corrective action taken or proposed to be taken with respect theretothereto and (ii) setting forth computations in reasonable detail satisfactory to the Administrative Agent demonstrating compliance with the covenants contained in Sections 6.12 and 6.13 (it being understood that the information required by this clause (ii) may be provided in a certificate of a Financial Officer on behalf of the Borrower instead of from such accounting firm);
(d) within promptly after the time period under same become publicly available, copies of all periodic and other publicly available reports, proxy statements and, to the extent requested by the Administrative Agent, other materials filed by Holdings, the Borrower or any of their Subsidiaries with the SEC, or distributed to its shareholders generally, as the case may be;
(e) if, as a result of any change in accounting principles and policies from those as in effect on the date of this Agreement (other than in respect of the capitalization of repairs and maintenance expenses as provided in the definition of GAAP), the consolidated financial statements of Holdings or the Borrower (and their respective Subsidiaries) delivered pursuant to paragraph (a) or (b) above will differ in any material respect from the consolidated financial statements that would have been delivered pursuant to such 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 on behalf of this Section 5.01Holdings or the Borrower, an Officer’s Certificate demonstrating in reasonable detail compliance with Section 6.08 as of the end of case may be, reconciling such changes to what the preceding fiscal quarterfinancial statements would have been without such changes;
(ef) within 30 days after the beginning of each fiscal year, a budget in form satisfactory to the Agents prepared by Holdings for each of the four fiscal quarters of such fiscal year prepared in reasonable detail, of Holdings and its Subsidiaries, accompanied by the statement of a Financial Officer of Holdings to the effect that, to the best of his knowledge, the budget is a reasonable estimate for the period covered thereby;
(g) promptly following the creation or acquisition of any Subsidiary, a certificate from a Responsible Officer, identifying such new Subsidiary and the ownership interest of the Borrower and the Subsidiaries therein;
(h) simultaneously with the delivery of any financial statements pursuant to paragraph (a) or (b) above, a balance sheet and related statements of operations, cash flows and stockholder's equity for each unconsolidated Subsidiary for the applicable period;
(i) promptly after the occurrence thereofreceipt thereof by Holdings, written notice of the termination of a Plan of the Borrower or an ERISA Affiliate pursuant any of their respective Subsidiaries, a copy of all reports submitted in connection with any material interim or special audit made by independent accountants of the books of Holdings, the Borrower or any of their Subsidiaries; and
(j) promptly, from time to Section 4042 time, such other information regarding the operations, business affairs and financial condition of ERISAHoldings, to the extent Borrower or any of their Subsidiaries, or compliance with the terms of any Second-Lien Loan Document, or such termination would constitute an Event of Default under Section 7.01(j);consolidating financial statements, as in each case the Agents or any Lender, acting through the Administrative Agent, may reasonably request.
Appears in 1 contract
Samples: Second Lien Credit Agreement (Graham Packaging Holdings Co)
Financial Statements, Reports, etc. The Borrower shall deliver In the case of the Parent, furnish to the Administrative Agent on behalf of the Lendersand each Lender:
(a) within ninety (90) 90 days after the end of each fiscal year, Parent’s its consolidated and consolidating balance sheet sheets and related statement statements of income and cash flowschanges in financial position, showing the financial condition of the Parent and its Subsidiaries on a consolidated basis subsidiaries as of the close of such fiscal year and the results of their respective its operations and the operations of such subsidiaries during such year, such consolidated financial statements of Parent to be all audited for Parent by Deloitte & Touche or other independent public accountants of recognized national standing acceptable to the Required Lenders and to be accompanied by an opinion of such accountants (which opinion shall not be unqualified as to scope of such auditqualified 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 Parent and its Subsidiaries on a consolidated basis in accordance with GAAP; provided that the foregoing delivery requirement shall be satisfied if Parent shall have filed with the SEC its Annual Report on Form 10-K for such fiscal year, which is available to the public via XXXXX or any similar successor systemGAAP consistently applied;
(b) within forty-five (45) 45 days after the end of each of the first three fiscal quarters of each fiscal year, Parent’s its consolidated and consolidating balance sheets and related statements of income and cash flowschanges in financial position, showing the financial condition of the Parent and its Subsidiaries on a consolidated basis subsidiaries as of the close of such fiscal quarter and the results of their its operations and the operations of such subsidiaries during such fiscal quarter and the then-then elapsed portion of the fiscal year, each all certified by a Responsible Officer one of Parent its Financial Officers as fairly presenting in all material respects the financial condition and results of operations of the Parent and its Subsidiaries on a consolidated basis in accordance with GAAP, subject GAAP applied consistently with those used in preparing the statements delivered pursuant to normal year-end audit adjustments and the absence of footnotes; provided that the foregoing delivery requirement shall be satisfied if Parent shall have filed with the SEC its Quarterly Report on Form 10-Q for such fiscal quarter, which is available to the public via XXXXX or any similar successor system(a) above;
(c) within the time period concurrently with any delivery of financial statements under Section 5.01(a)(a) or (b) above, a certificate of a Responsible the accounting firm or Financial Officer of the Borrower opining on or certifying thatsuch statements (which certificate, when furnished by an accounting firm, may be limited to the knowledge of such Responsible Officer, accounting matters and disclaim responsibility for legal interpretations) (i) certifying that no Event of Default or Default has occurred and is continuing, or, if, to the knowledge of such Responsible Officer, if such an Event of Default or Default has occurred and is continuingoccurred, specifying the nature and extent thereof and any corrective action taken or proposed to be taken with respect thereto;, (ii) setting 40 forth computations in reasonable detail satisfactory to the Agent demonstrating compliance with the covenants contained herein, if any, and (iii) setting forth a receivables aging schedule for the Parent and its consolidated subsidiaries in form and detail reasonably satisfactory to the Agent.
(d) within promptly after the time period under (a) same become publicly available, copies of all periodic and (b) other reports, proxy statements and other materials filed by it with the Securities and Exchange Commission, or any governmental authority succeeding to any of this Section 5.01or all the functions of said Commission, an Officer’s Certificate demonstrating in reasonable detail compliance or with Section 6.08 any national securities exchange, or distributed to its shareholders, as of the end of the preceding fiscal quarter;case may be; and
(e) promptly after promptly, from time to time, such other information regarding the occurrence thereofoperations, written notice business affairs and financial condition of the termination Parent or any Subsidiary, or compliance with the terms of a Plan of any Loan Document, as the Borrower Agent or an ERISA Affiliate pursuant to Section 4042 of ERISA, to the extent such termination would constitute an Event of Default under Section 7.01(j);any Lender may reasonably request.
Appears in 1 contract
Samples: Credit Agreement (Dillards Inc)
Financial Statements, Reports, etc. The Borrower shall deliver Furnish to the Administrative Agent on behalf of (which will promptly furnish such information to the Lenders:):
(a) within ninety (90) 90 days after the end of each fiscal year, Parent’s a consolidated balance sheet and related statement consolidated statements of income operations, cash flows and cash flows, owners’ equity showing the financial condition position of Parent and its Subsidiaries on a consolidated basis subsidiaries as of the close of such fiscal year and the consolidated results of their respective operations during such year, such with all consolidated financial statements of Parent to be audited for Parent by independent public accountants of recognized national standing reasonably acceptable to the Administrative Agent and to be accompanied by an opinion of such accountants (which opinion shall not be unqualified as to scope of such auditqualified in any material respect) to the effect that such consolidated financial statements fairly present present, in all material respects respects, the financial condition position and results of operations of Parent and its Subsidiaries consolidated subsidiaries on a consolidated basis in accordance with GAAP; provided US GAAP (it being understood that the foregoing delivery requirement shall be satisfied if by Parent shall have filed with the SEC its of Annual Report Reports on Form 10-K for such fiscal year, which is available of Parent and its consolidated subsidiaries shall satisfy the requirements of this Section 5.04(a) to the public via XXXXX or any similar successor systemextent such Annual Reports include the information specified herein);
(b) within forty-five (45) 45 days after the end of each of the first three fiscal quarters of each fiscal year, Parent’s a consolidated balance sheets sheet and related consolidated statements of income operations and cash flows, flows showing the financial condition position of Parent and its Subsidiaries on a consolidated basis subsidiaries as of the close of such fiscal quarter and the consolidated results of their operations during such fiscal quarter and the then-elapsed portion of the fiscal year, each all certified by a Responsible Financial Officer of Parent Parent, on behalf of Parent, as fairly presenting presenting, in all material respects respects, the financial condition position and results of operations of Parent and its Subsidiaries consolidated subsidiaries on a consolidated basis in accordance with GAAP, US GAAP (subject to normal year-end audit adjustments and the absence of footnotes; provided ) (it being understood that the foregoing delivery requirement shall be satisfied if by Parent shall have filed with the SEC its of Quarterly Report Reports on Form 10-Q for such fiscal quarter, which is available to of Parent and its consolidated subsidiaries shall satisfy the public via XXXXX or any similar successor system;
(c) within the time period under Section 5.01(a), a certificate of a Responsible Officer of the Borrower certifying that, to the knowledge of such Responsible Officer, no Event of Default has occurred and is continuing, or, if, to the knowledge of such Responsible Officer, such an Event of Default has occurred and is continuing, specifying the nature and extent thereof and any corrective action taken or proposed to be taken with respect thereto;
(d) within the time period under (a) and (b) requirements of this Section 5.01, an Officer’s Certificate demonstrating in reasonable detail compliance with Section 6.08 as of the end of the preceding fiscal quarter;
(e5.04(b) promptly after the occurrence thereof, written notice of the termination of a Plan of the Borrower or an ERISA Affiliate pursuant to Section 4042 of ERISA, to the extent such termination would constitute an Event of Default under Section 7.01(jQuarterly Reports include the information specified herein);
Appears in 1 contract
Samples: Credit Agreement (Celanese CORP)
Financial Statements, Reports, etc. The Borrower shall deliver Furnish to the Administrative Agent on behalf of (which will promptly furnish such information to the Lenders:):
(a) within ninety (90) Within 95 days after the end of each fiscal year, Parent’s a consolidated balance sheet and related statement statements of income operations, cash flows and cash flows, owners’ equity showing the financial condition position of Parent the Borrower and its Subsidiaries on a consolidated basis as of the close of such fiscal year and the consolidated results of their respective its operations during such year and setting forth in comparative form the corresponding figures for the prior fiscal year, such which consolidated financial balance sheet and related statements of Parent to operations, cash flows and owners’ equity shall be audited for Parent by independent public accountants of recognized national standing and to be accompanied by an opinion of such accountants (which opinion shall not be unqualified qualified as to scope of such auditaudit or as to the status of the Borrower or any Material Subsidiary as a going concern) to the effect that such consolidated financial statements fairly present present, in all material respects respects, the financial condition position and results of operations of Parent the Borrower and its Subsidiaries on a consolidated basis in accordance with GAAP; provided GAAP (it being understood that the foregoing delivery requirement shall be satisfied if Parent shall have filed with by the SEC its Annual Report Borrower of annual reports on Form 10-K for such fiscal year, which is available of the Borrower and its consolidated Subsidiaries shall satisfy the requirements of this Section 6.04(a) to the public via XXXXX or any similar successor systemextent such annual reports include the information specified herein);
(b) within forty-five (45) 50 days after the end of each of the first three fiscal quarters of each fiscal yearyear beginning with the fiscal quarter ending March 31, Parent’s 2012, (i) a consolidated balance sheets sheet and related statements of income operations and cash flows, flows showing the financial condition position of Parent the Borrower and its Subsidiaries on a consolidated basis as of the close of such fiscal quarter and the consolidated results of their its operations during such fiscal quarter and the then-then elapsed portion of the fiscal year and setting forth in comparative form the corresponding figures for the corresponding periods of the prior fiscal year, each and (ii) management’s discussion and analysis of significant operational and financial developments during such quarterly period, all of which shall be in reasonable detail and which consolidated balance sheet and related statements of operations and cash flows shall be certified by a Responsible Financial Officer of Parent the Borrower on behalf of the Borrower as fairly presenting presenting, in all material respects respects, the financial condition position and results of operations of Parent the Borrower and its Subsidiaries on a consolidated basis in accordance with GAAP, GAAP (subject to normal year-end audit adjustments and the absence of footnotes; provided ) (it being understood that the foregoing delivery requirement shall be satisfied if Parent shall have filed with by the SEC its Quarterly Report Borrower of quarterly reports on Form 10-10 Q for such fiscal quarter, which is available of the Borrower and its consolidated Subsidiaries shall satisfy the requirements of this Section 6.04(b) to the public via XXXXX or any similar successor systemextent such quarterly reports include the information specified herein);
(c) within the time period (x) concurrently with any delivery of financial statements under Section 5.01(a)paragraphs (a) or (b) above, a certificate of a Responsible Financial Officer of the Borrower (i) certifying that, to the knowledge of such Responsible Officer, that no Event of Default or Default has occurred and is continuing, or, if, to the knowledge of such Responsible Officer, if such an Event of Default or Default has occurred and is continuingoccurred, specifying the nature and extent thereof and any corrective action taken or proposed to be taken with respect thereto, (ii) setting forth computations in reasonable detail satisfactory to the Administrative Agent of the Total Net Senior Secured Leverage Ratio, (iii) setting forth computations in reasonable detail satisfactory to the Administrative Agent of the Total Net Leverage Ratio, (iv) setting forth computations in reasonable detail satisfactory to the Administrative Agent of the Total Net Senior First Lien Secured Leverage Ratio, (v) setting forth the calculation and uses of the Cumulative Credit for the fiscal period then ended if the Borrower shall have used the Cumulative Credit for any purpose during such fiscal period, (vi) certifying a list of names of all Immaterial Subsidiaries, that each Subsidiary set forth on such list individually qualifies as an Immaterial Subsidiary and that all such Subsidiaries in the aggregate do not exceed the limitation set forth in clause (ii) of the definition of the term Immaterial Subsidiary, (vii) certifying a list of names of all Unrestricted Subsidiaries, that each Subsidiary set forth on such list individually qualifies as an Unrestricted Subsidiary, and (viii) setting forth (A) the aggregate amount of Permitted Loan Purchases made during the fiscal period then ended and (B) the aggregate amount of Term Loans purchased and cancelled by the Borrower as of the date of such certificate, and (y) concurrently with any delivery of financial statements under paragraph (a) above, if the accounting firm is not restricted from providing such a certificate by the policies of its national office, a certificate of the accounting firm opining on or certifying such statements stating whether they obtained knowledge during the course of their examination of such statements of any Default or Event of Default (which certificate may be limited to accounting matters and disclaim responsibility for legal interpretations);
(d) promptly after the same become publicly available, copies of all periodic and other publicly available reports, proxy statements and, to the extent requested by the Administrative Agent, other materials filed by Holdings, the Borrower or any of its Subsidiaries with the SEC, or distributed to its stockholders generally, as applicable; provided, however, that such reports, proxy statements, filings and other materials required to be delivered pursuant to this clause (d) shall be deemed delivered for purposes of this Agreement when posted to the website of Holdings or the Borrower;
(e) within 95 days after the beginning of each fiscal year, a reasonably detailed consolidated annual budget for such fiscal year (including a projected consolidated balance sheet of the Borrower and its Subsidiaries as of the end of the following fiscal year, and the related consolidated statements of projected cash flow and projected income), including a description of underlying assumptions with respect thereto (collectively, the “Budget”), which Budget shall in each case be accompanied by the statement of a Financial Officer of the Borrower to the effect that the Budget is based on assumptions believed by such Financial Officer to be reasonable as of the date of delivery thereof;
(f) upon the reasonable request of the Administrative Agent, an updated Perfection Certificate (or, to the extent such request relates to specified information contained in the Perfection Certificate, such information) reflecting all changes since the date of the information most recently received pursuant to this paragraph (f) or Section 6.10(f);
(g) (i) promptly, from time period under to time, such other information regarding the operations, business affairs and financial condition of Holdings, the Borrower or any of its Subsidiaries, or compliance with the terms of any Loan Document, or such consolidating financial statements as in each case the Administrative Agent may reasonably request (for itself or on behalf of any Lender) and (ii) prior written notice in the event that the Borrower changes its fiscal year end;
(h) in the event that (i) in respect of the Senior Notes, or any Permitted Refinancing Indebtedness with respect thereto, the rules and regulations of the SEC permit the Borrower, Holdings or any Parent Entity to report at Holdings’ or such Parent Entity’s level on a consolidated basis and either (ii) (A) Holdings or such Parent Entity, as the case may be, is not engaged in any business or activity, and does not own any assets or have other liabilities, other than those incidental to its ownership directly or indirectly of the capital stock of the Borrower and the incurrence of Indebtedness for borrowed money (and, without limitation on the foregoing, does not have any subsidiaries other than the Borrower and the Borrower’s Subsidiaries and any direct or indirect parent companies of the Borrower that are not engaged in any other business or activity and do not hold any other assets or have any liabilities except as indicated above) or (B) in connection with any reporting requirements described in paragraphs (a) and (b) of this Section 5.016.04 the Borrower delivers consolidating financial information that explains, an Officerat a level of detail reasonably acceptable to the Administrative Agent, the differences between the information relating to Holdings or such Parent Entity and their Subsidiaries other than the Borrower and its Subsidiaries, on the one hand, and the information relating to the Borrower and its Subsidiaries on a standalone basis, on the other hand, then such consolidated reporting at such Parent Entity’s Certificate demonstrating level in reasonable detail compliance a manner consistent with that described in paragraphs (a) and (b) of this Section 6.08 as 6.04 for the Borrower will satisfy the requirements of the end of the preceding fiscal quartersuch paragraphs;
(ei) promptly after upon request by the occurrence thereofAdministrative Agent, written notice of copies of: (i) each Schedule B (Actuarial Information) to the termination of most recent annual report (Form 5500 Series) filed with the Internal Revenue Service with respect to a Plan; (ii) the most recent actuarial valuation report for any Plan; (iii) all notices received from a Multiemployer Plan of sponsor, a plan administrator or any governmental agency, or provided to any Multiemployer Plan by Holdings, the Borrower, a Subsidiary or any ERISA Affiliate, concerning an ERISA Event; and (iv) such other documents or governmental reports or filings relating to any Plan or Multiemployer Plan as the Administrative Agent shall reasonably request; and
(j) promptly upon Holdings, Borrower or Subsidiaries becoming aware of any fact or condition which would reasonably be expected to result in an ERISA Affiliate pursuant Event, Borrower shall deliver to Section 4042 Administrative Agent a summary of ERISA, such facts and circumstances and any action it or Holdings or Subsidiaries intend to the extent take regarding such termination would constitute an Event of Default under Section 7.01(j);facts or conditions.
Appears in 1 contract
Financial Statements, Reports, etc. The Borrower shall deliver Furnish to the Administrative Agent on behalf of the LendersAgent, who shall furnish to each Lender:
(a) within ninety (90) 90 days after the end of each fiscal yearFiscal Year (or such longer period as may be permitted by the SEC if the Borrower were then subject to the SEC reporting requirements as a non-accelerated flier), Parent’s (i) a consolidated balance sheet and related statement statements of income and comprehensive income, changes in shareholders’ equity and cash flows, flows showing the financial condition position of Parent the Borrower and its Subsidiaries on a consolidated basis subsidiaries as of the close of such fiscal Fiscal Year and their consolidated financial performance and cash flows for such year and setting forth in comparative form the results of their respective operations during corresponding figures for the prior Fiscal Year and (ii) a Narrative Report for such yearFiscal Year, such which consolidated financial balance sheet and related statements of Parent to income and comprehensive income, changes in shareholders’ equity and cash flows shall be audited for Parent by independent public chartered professional accountants of recognized national standing and to be accompanied by an opinion of such accountants (which opinion shall not be unqualified qualified as to scope of audit or as to the status of the Borrower or any Material Subsidiary as a “going concern” (provided that such report may contain a “going concern” or like qualification or exception, or qualification arising out of the scope of the audit, if such qualification or exception is related solely to (i) an upcoming maturity date of any Indebtedness incurred in compliance with Section 6.1, (ii) any potential inability to satisfy any financial maintenance covenant included in any Indebtedness of the Borrower or its Subsidiaries on a future date in a future period or (iii) the activities, operations, financial results, assets or liabilities of any Unrestricted Subsidiary)) to the effect that such consolidated financial statements fairly present fairly, in all material respects respects, the financial condition position and results financial performance and cash flows of operations of Parent the Borrower and its Subsidiaries subsidiaries on a consolidated basis in accordance with GAAP; provided GAAP (it being understood that the foregoing delivery requirement shall be satisfied if or furnishing by the Borrower or any Parent shall have filed with the SEC its Holding Company of an Annual Report on Form 10-K for such fiscal year, which is available to shall satisfy the public via XXXXX or any similar successor systemrequirements of this Section 5.4(a));
(b) within forty-five (45) 45 days after the end of each of the first three fiscal quarters Fiscal Quarters of each fiscal yearFiscal Year (or such longer period as may be permitted by the SEC if the Borrower were then subject to the SEC reporting requirements as a non-accelerated flier), Parent’s commencing with the Fiscal Quarter ending December 30, 2015, (i) a consolidated balance sheets sheet and related statements of income comprehensive income, changes in shareholders’ equity and cash flows, flows showing the financial condition position of Parent the Borrower and its Subsidiaries on a consolidated basis subsidiaries as of the close of such fiscal quarter Fiscal Quarter and the results of their operations during consolidated financial performance and cash flows for such fiscal quarter Fiscal Quarter and the then-elapsed portion of the fiscal yearFiscal Year and setting forth in comparative form the corresponding figures for the corresponding periods of the prior Fiscal Year and (ii) a Narrative Report for such Fiscal Quarter, each all of which shall be in reasonable detail and which consolidated balance sheet and related statements of income and comprehensive income, changes in shareholders’ equity and cash flows shall be certified by a Responsible Financial Officer of Parent the Borrower on behalf of the Borrower as fairly presenting presenting, in all material respects respects, the financial condition performance and results cash flows of operations of Parent the Borrower and its Subsidiaries subsidiaries on a consolidated basis in accordance with GAAP, GAAP (subject to normal year-end audit adjustments and the absence of footnotes; provided ) (it being understood that the foregoing delivery requirement shall be satisfied if or furnishing by the Borrower or any Parent shall have filed with the SEC its Holding Company of a Quarterly Report on Form 10-Q for such fiscal quarter, which is available to shall satisfy the public via XXXXX or any similar successor systemrequirements of this Section 5.4(b));
(c) within the time period five Business Days of any delivery of financial statements under paragraph (a) or (b) of this Section 5.01(a)5.4, a certificate Compliance Certificate of a Responsible Financial Officer of the Borrower (i) certifying that, to the knowledge of such Responsible Officer, that no Event of Default has occurred and is continuing, or, if, to the knowledge of such Responsible Officer, such an Event of or Default has occurred and that is then continuing, specifying except as set forth therein, (ii) setting forth the nature calculation of the First Lien Net Leverage Ratio (calculated on a Pro Forma Basis) for the twelve-month period ending at the end of such fiscal period, (iii) setting forth the calculation of the Secured Net Leverage Ratio (calculated on a Pro Forma Basis) for the twelve-month period ending at the end of such fiscal period, and extent thereof and any corrective action taken or proposed to be taken (iv) in connection with respect theretothe financial statements delivered under Section 5.4(a) commencing with such delivery in connection with the fiscal year ending June 30, 2017, a certificate setting forth the calculation of Excess Cash Flow for the applicable Excess Cash Flow Period;
(d) within 90 days after the time period under (a) and (b) beginning of this Section 5.01each Fiscal Year, an Officer’s Certificate demonstrating a consolidated annual budget for such Fiscal Year, including a description of underlying assumptions with respect thereto, which budget shall in each case be accompanied by the statement of a Financial Officer of the Borrower to the effect that such budget is based on assumptions believed by such Financial Officer to be reasonable detail compliance with Section 6.08 as of the end date of the preceding fiscal quarterdelivery thereof;
(e) promptly, from time to time, such other customary information (which is readily available) regarding the operations, business affairs and financial condition of the Credit Parties and their Restricted Subsidiaries and their compliance with the terms of any Credit Document, in each case, as the Administrative Agent may reasonably request (for itself or on behalf of any Lender); and
(f) promptly after upon becoming aware of the occurrence of any ERISA Event, a written notice specifying the nature thereof, written notice what action Borrower, any of its subsidiaries or any of their respective ERISA Affiliates has taken, is taking or proposes to take with respect thereto and, when known, any action taken or threatened in writing by the termination Internal Revenue Service, the Department of a Plan of Labor or the Borrower or an ERISA Affiliate pursuant to Section 4042 of ERISA, to the extent such termination would constitute an Event of Default under Section 7.01(j);PBGC.
Appears in 1 contract
Financial Statements, Reports, etc. The Borrower shall deliver furnish to Lender the Administrative Agent on behalf of the Lendersfollowing, each in such form and such detail as Lender shall reasonably request:
(ai) within ninety Within thirty (9030) Business Days after the last day of each calendar month, a Financial Reporting and Compliance Certificate substantially in the form attached hereto as Exhibit “D” (a “Financial Reporting and Compliance Certificate”) setting forth in reasonable detail the computation of the Performance Benchmarks of Borrower’s Permitted Customer Loans, any Required Equity Deficiency (or absence thereof), the PXXXX balance (showing the amount of Prepaid Interest received by Borrower and the amount of any Prepaid Interest deposited to the PXXXX and/or paid to Servicer (or any other similar servicing entity, to the extent permitted hereunder and under the Servicing Agreement) during such period) and the balance of the Revolver Prefunding Escrow Account, in each case for such month as of the last day of such month;
(ii) Within forty five (45) Business Days after the last day of each fiscal quarter, copies of the unaudited, consolidated and consolidating Financial Statements of Holdings, Borrower and their respective Subsidiaries for such quarter as of the last day of such quarter, accompanied by Borrower’s EIGCF computations for such quarter (indicating amounts applied to prepayment of Obligations and amounts carried forward to the succeeding year’s EIGCF) and indicating the Funding Limit as of the last day of such quarter;
(iii) Within one hundred twenty (120) days after the end close of each fiscal yearyear of Borrower, Parent’s consolidated balance sheet and related statement of income and cash flows, showing the financial condition of Parent and its Subsidiaries on a consolidated basis as copies of the close audited consolidated and unaudited consolidating Financial Statements of such fiscal year Holdings, Borrower and the results of their respective operations during Subsidiaries (including, without limitation, Financial Statements for such Persons for such year, such consolidated financial statements prepared by a nationally recognized independent certified public accounting firm reasonably acceptable to Lender), together with a Financial Reporting and Compliance Certificate indicating EIGCF applied to prepayment of Parent to be audited for Parent by independent public accountants of recognized national standing Obligations and to be accompanied by an opinion of such accountants (which opinion shall be unqualified as to scope of such audit) EIGCF carried forward to the effect that such consolidated financial statements fairly present in all material respects the financial condition and results of operations of Parent and its Subsidiaries on a consolidated basis in accordance with GAAP; provided that the foregoing delivery requirement shall be satisfied if Parent shall have filed with the SEC its Annual Report on Form 10-K for such fiscal succeeding year’s EIGCF and, which is available to the public via XXXXX or any similar successor systemextent applicable, a Tax Distribution Statement;
(biv) within forty-five As soon as possible and in no event later than three (453) days Business Days after the end any manager or executive officer of each Borrower knows of the first three fiscal quarters occurrence or existence of each fiscal year(A) any actual or threatened litigation, Parent’s consolidated balance sheets and related statements suits, claims or disputes against Borrower or Holdings involving potential monetary damages payable by such Person of income and cash flows, showing $250,000 or more (alone or in the financial aggregate); (B) any other event or condition of Parent and its Subsidiaries on which could reasonably be expected to have a consolidated basis as of the close of such fiscal quarter and the results of their operations during such fiscal quarter and the then-elapsed portion of the fiscal year, each certified by a Responsible Officer of Parent as fairly presenting in all material respects the financial condition and results of operations of Parent and its Subsidiaries on a consolidated basis in accordance with GAAP, subject to normal year-end audit adjustments and the absence of footnotesMaterial Adverse Effect; provided that the foregoing delivery requirement shall be satisfied if Parent shall have filed with the SEC its Quarterly Report on Form 10-Q for such fiscal quarter, which is available to the public via XXXXX or (C) any similar successor system;
(c) within the time period under Section 5.01(a), a certificate of a Responsible Officer of the Borrower certifying that, to the knowledge of such Responsible Officer, no Event of Default has occurred and is continuing, or, if, to or Default; a written statement of the knowledge manager or officer of Borrower setting forth the details of such Responsible Officerevent, such an condition, Event of Default has occurred or Default and is continuingthe action, specifying the nature and extent thereof and any corrective action taken if any, which Borrower, Holdings or proposed Consultant proposes to be taken take with respect thereto;
(dv) Whenever payments are requested or required to be made by Borrower to Servicer and in any event within 30 Business Days after the time period under (a) and (b) last day of this Section 5.01, an Officer’s Certificate demonstrating in reasonable detail compliance with Section 6.08 as of the end of the preceding each fiscal quarter, a Servicer Report prepared by Servicer and certified to Lender indicating the amounts then due and payable by Borrower and amounts paid to Servicer (by Borrower, directly from all Loan Obligors or otherwise) during such quarter and to date for such Fiscal Year (including, without limitation, a summary of all fees received by Servicer from any Loan Obligor or any other Person during such period);
(evi) promptly Whenever payments are required or requested to be made by Borrower to Consultant pursuant to the terms of the Consulting Agreement, and in any event within 30 Business Days after the occurrence thereoflast day of each fiscal quarter, written notice of a report prepared by the termination of a Plan of Consultant and certified to Lender indicating the amounts due and payable by Borrower or an ERISA Affiliate pursuant and amounts paid by Borrower during such month and to Section 4042 of ERISAdate for the current Fiscal Year; and
(vii) Such other instruments, agreements, certificates, opinions, statements, documents and information relating to the extent such termination would constitute an Event operations or condition (financial or otherwise) of Default under Section 7.01(j);Borrower, and compliance by Borrower with the terms of this Agreement and the other Credit Documents, as Lender may from time to time reasonably request.
Appears in 1 contract
Financial Statements, Reports, etc. The Borrower shall deliver Furnish to the Administrative Agent on behalf of (which will promptly furnish such information to the Lenders:
): 129 (a) within ninety (90) Within 120 days after the end of each fiscal year, Parent’s a consolidated balance sheet and related statement statements of income operations, cash flows and cash flows, owners’ equity showing the financial condition position of the Ultimate Parent and its Subsidiaries on a consolidated basis as of the close of such fiscal year and the consolidated results of their respective its operations during such year and setting forth in comparative form the corresponding figures for the prior fiscal year, such which consolidated financial balance sheet and related statements of Parent to operations, cash flows and owners’ equity shall be audited for Parent by independent public accountants of recognized national (in the United States of America) or international standing and to be accompanied by an opinion of such accountants (which opinion shall not be unqualified qualified as to scope of such auditaudit or as to the status of the Ultimate Parent as a going concern) to the effect that such consolidated financial statements fairly present present, in all material respects respects, the financial condition position and results of operations of the Ultimate Parent and its Subsidiaries on a consolidated basis in accordance with GAAPthe Applicable Accounting Rules; provided that the foregoing delivery requirement shall be satisfied if Parent shall have filed with the SEC its Annual Report on Form 10-K for such fiscal year, which is available to the public via XXXXX or any similar successor system;
(b) within forty-five (45) 65 days after the end of each of the first three fiscal quarters of each fiscal yearyear beginning with the fiscal quarter ending March 31, Parent’s 2019, a consolidated balance sheets sheet and related statements of income operations and cash flows, flows showing the financial condition position of the Ultimate Parent and its Subsidiaries on a consolidated basis as of the close of such fiscal quarter and the consolidated results of their its operations during such fiscal quarter and the then-then elapsed portion of the fiscal year and setting forth in comparative form the corresponding figures for the corresponding periods of the prior fiscal year, each and which consolidated balance sheet and related statements of operations and cash flows shall be certified by a Responsible Financial Officer of the Ultimate Parent on behalf of the Ultimate Parent as fairly presenting presenting, in all material respects respects, the financial condition position and results of operations of the Ultimate Parent and its Subsidiaries on a consolidated basis in accordance with GAAP, the Applicable Accounting Rules (subject to normal year-end audit adjustments and the absence of footnotes); provided that the foregoing delivery requirement shall be satisfied if Parent shall have filed with the SEC its Quarterly Report on Form 10-Q for such fiscal quarter, which is available to the public via XXXXX or any similar successor system;
(c) within 35 days after the end of each fiscal quarter of each fiscal year (including the last fiscal quarter of each fiscal year), a consolidated balance sheet and related statements of operations and cash flows showing the financial position of each Borrower and its Subsidiaries as of the close of such fiscal quarter and the consolidated results of its operations during such fiscal quarter and the then elapsed portion of the fiscal year (and if at any time period in any fiscal month of Borrowers, Availability is less than or equal to the greater of 20% of the Loan Cap and $60,000,000 for any five (5) consecutive Business Days during such fiscal month, then, within 35 days after the end of such fiscal month, a consolidated balance sheet and related statements of operations and cash flows showing the financial position of each Borrower and its Subsidiaries as of the close of such fiscal month and the consolidated results of its operations during such fiscal month and the then elapsed portion of the fiscal year), and in each case which consolidated balance sheet and related statements of operations and cash flows (whether for fiscal quarter end or fiscal month end, as the case may be) shall be certified by a Financial Officer of each Borrower on behalf of such Borrower as fairly presenting, in all material respects, the financial position and results of operations of such Borrower and its Subsidiaries on a consolidated basis in accordance with the Applicable Accounting Rules (subject to normal year-end audit adjustments and the absence of footnotes); (d) concurrently with any delivery of financial statements under Section 5.01(a)paragraphs (a) or (b) above, a certificate of a Responsible Financial Officer of the each Borrower (i) certifying that, to the knowledge of such Responsible Officer, that no Event of Default or Default has occurred and is continuing, or, if, to the knowledge of such Responsible Officer, if such an Event of Default or Default has occurred and is continuingoccurred, specifying the nature and extent thereof and any corrective action taken or proposed to be taken with respect thereto;
, (dii) within solely with respect to any fiscal period for which the time average daily Availability during such fiscal period under (a) and (b) is less than 25% of this Section 5.01the Revolving Loan Limit, an Officer’s Certificate demonstrating setting forth computations in reasonable detail compliance with Section 6.08 satisfactory to the Administrative Agent of the Fixed Charge Coverage Ratio and the Minimum Borrower EBITDA Contribution, (iii) setting forth computations in reasonable detail satisfactory to the Administrative Agent of the Average Quarterly Excess Availability, (iv) certifying a list of names of all Immaterial Subsidiaries, that each Subsidiary set forth on such list individually qualifies as an Immaterial Subsidiary 130 and that all such Subsidiaries in the aggregate do not exceed the limitation set forth in clause (ii) of the definition of the term Immaterial Subsidiary and (v) certifying a list of names of all Unrestricted Subsidiaries, that each Subsidiary set forth on such list individually qualifies as an Unrestricted Subsidiary; (e) within 90 days after the beginning of each fiscal year, a reasonably detailed consolidated annual budget for each fiscal quarter during such fiscal year (including a projected consolidated balance sheet of each Borrower and its Subsidiaries as of the end of the preceding following fiscal quarter;
year, and the related consolidated statements of projected cash flow and projected income), including a description of underlying assumptions with respect thereto (e) promptly after collectively, the occurrence thereof“Budget”), written notice which Budget shall in each case be accompanied by the statement of a Financial Officer of each Borrower to the effect that the Budget is based on assumptions believed by such Financial Officer to be reasonable as of the termination date of a Plan delivery thereof; (f) upon the reasonable request of the Borrower or Administrative Agent, an ERISA Affiliate pursuant to Section 4042 of ERISAupdated Perfection Certificate (or, to the extent such termination would constitute request relates to specified information contained in the Perfection Certificate, such information) reflecting all changes since the date of the information most recently received pursuant to this paragraph (f) or Section 6.10(f); (g) (i) promptly, from time to time, such other information regarding the operations, collateral, business affairs and financial condition of the Holdcos, the Borrowers or any of the Borrowers’ respective Subsidiaries, or compliance with the terms of any Loan Document, or such consolidating financial statements as in each case the Administrative Agent may reasonably request (for itself or on behalf of any Lender) and (ii) prior written notice in the event that any Borrower changes its fiscal year end or any other material change in accounting policies or financial reporting practices by any Loan Party or any Subsidiary thereof; (h) promptly upon request by the Administrative Agent, copies of: (i) each Schedule SB or MB (Actuarial Information) to the most recent annual report (Form 5500 Series) filed with the Internal Revenue Service with respect to a Plan; (ii) the most recent actuarial valuation report for any Plan; (iii) all notices received from a Multiemployer Plan sponsor, a plan administrator or any governmental agency, or provided to any Multiemployer Plan by the Holdcos, the Borrowers, a Subsidiary or any ERISA Affiliate, concerning an Event of Default under ERISA Event; and (iv) such other documents or governmental reports or filings relating to any Plan or Multiemployer Plan as the Administrative Agent shall reasonably request; and (i) Borrowing Base Certificates, at the times specified in Section 7.01(j);6.13. Section 6.05
Appears in 1 contract
Samples: Credit Agreement (Constellium Se)
Financial Statements, Reports, etc. The Borrower shall deliver Furnish to the Administrative Agent on behalf of the Lendersand each Lender:
(a) within ninety (90) 95 days after the end of each fiscal year, Parent’s its annual report on Form 10-K as filed with the SEC, including its consolidated balance sheet and the related consolidated earnings statement of income and cash flows, showing the its consolidated financial condition of Parent and its Subsidiaries on a consolidated basis as of the close of such fiscal year and the consolidated results of their respective its operations during such year, such consolidated financial statements of Parent to be all audited for Parent by Deloitte & Touche LLP or other independent certified public accountants of recognized national standing and to be accompanied selected by an opinion of such accountants (which opinion shall be unqualified as to 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 Parent and its Subsidiaries on a consolidated basis in accordance with GAAP; provided that the foregoing delivery requirement shall be satisfied if Parent shall have filed with the SEC its Annual Report on Form 10-K for such fiscal year, which is available to the public via XXXXX or any similar successor systemCompany;
(b) within forty-five (45) 50 days after the end of each of the first three fiscal quarters of each fiscal year, Parent’s its quarterly report on Form 10-Q as filed with the SEC, including its unaudited consolidated balance sheets sheet and related statements of income and cash flowsconsolidated earnings statement, showing the its consolidated financial condition of Parent and its Subsidiaries on a consolidated basis as of the close of such fiscal quarter and the consolidated results of their its operations during such fiscal quarter and the then-then elapsed portion of the fiscal year, year (and each certified by delivery of such statements shall be deemed a Responsible Officer of Parent as representation that such statements fairly presenting in all material respects present the Company’s financial condition and results of operations of Parent and its Subsidiaries on a consolidated basis in accordance with GAAP, subject to normal year-end audit adjustments and the absence of footnotes); provided that the foregoing delivery requirement shall be satisfied if Parent shall have filed with the SEC its Quarterly Report on Form 10-Q for such fiscal quarter, which is available to the public via XXXXX or any similar successor system;and
(c) within the promptly, from time period under Section 5.01(a), a certificate of a Responsible Officer of the Borrower certifying that, to the knowledge of such Responsible Officer, no Event of Default has occurred and is continuing, or, if, to the knowledge of such Responsible Officertime, such an Event of Default has occurred and is continuing, specifying other information as any Lender shall reasonably request through the nature and extent thereof and any corrective action taken or proposed Administrative Agent. Information required to be taken with respect thereto;
(d) within the time period under delivered pursuant to clauses (a) and – (b) of this Section 5.01SECTION 5.3 shall be deemed to have been effectively delivered (including for purposes of SECTION 8.1(b)) on the date on which such information has been posted on the SEC website on the Internet at xxx.xxx.xxx (or any successor website), an Officeron the Company’s Certificate demonstrating DebtDomain site or at another relevant website accessible by the Lenders without charge. Information required to be delivered pursuant to clause (c) of this SECTION 5.3 shall be deemed to have been effectively delivered (including for the purposes of SECTION 8.1(b)) on the date on which the Company provides notice to the Administrative Agent (which notice the Administrative Agent shall promptly provide to the requesting Lenders) that such information has been provided in reasonable detail compliance accordance with Section 6.08 as of the end of the preceding fiscal quarter;
(e) promptly after sentence or on the occurrence thereof, written notice of date on which the termination of a Plan of the Borrower or an ERISA Affiliate pursuant to Section 4042 of ERISA, Company actually delivers such information to the extent Administrative Agent (and the Administrative Agent will promptly deliver such termination would constitute an Event of Default under Section 7.01(jinformation to the requesting Lenders);.
Appears in 1 contract
Samples: Term Loan Credit Agreement (Bristol Myers Squibb Co)
Financial Statements, Reports, etc. The Borrower shall deliver Deliver to the Administrative Agent on behalf of the Lenders:
(a) within Within ninety (90) days after the end of each fiscal year, Parentthe Borrower’s consolidated balance sheet and related statement of income and cash flows, showing the financial condition of Parent the Borrower and its Subsidiaries on a consolidated basis as of the close of such fiscal year and the results of their respective operations during such year, such the consolidated financial statements statement of Parent the Borrower to be audited for Parent the Borrower by Ernst & Young LLP or other independent public accountants of recognized national standing and to be accompanied by an opinion of such accountants (which opinion shall be unqualified without a “going concern” or like qualification or exception and without any more qualification or exception as to the scope of such audit, except for any such qualification solely as a result of (x) an impending debt maturity within twelve (12) months of the Term Loan Facility under this Agreement or (y) a potential inability to satisfy any financial covenant) and to be certified by a Responsible Officer of the Borrower to the effect that such consolidated financial statements fairly present in all material respects the financial condition and results of operations of Parent the Borrower and its Subsidiaries on a consolidated basis in accordance with GAAP; provided that . Documents required to be delivered pursuant to this clause (a) which are made publicly available via XXXXX, or any successor system of the foregoing delivery requirement shall be satisfied if Parent shall have filed with SEC, in the SEC its Borrower’s Annual Report on Form 10-K for such fiscal yearK, which is available shall be deemed delivered to the public via XXXXX or any similar successor systemLenders on the date such documents are made so available;
(b) within Within forty-five (45) days after the end of each of the first three (3) fiscal quarters of each fiscal year, Parentthe Borrower’s consolidated balance sheets and related statements of income and cash flows, showing the financial condition of Parent the Borrower and its Subsidiaries on a consolidated basis as of the close of such fiscal quarter and the results of their operations during such fiscal quarter and the then-then elapsed portion of the fiscal year, each certified by a Responsible Officer of Parent the Borrower as fairly presenting in all material respects the financial condition and results of operations of Parent the Borrower and its Subsidiaries on a consolidated basis in accordance with GAAP, subject to normal year-end audit #10384414v15 adjustments and the absence of footnotes; provided that . Documents required to be delivered pursuant to this clause (b) which are made publicly available via XXXXX, or any successor system of the foregoing delivery requirement shall be satisfied if Parent shall have filed with SEC, in the SEC its Borrower’s Quarterly Report on Form 10-Q for such fiscal quarterQ, which is available shall be deemed delivered to the public via XXXXX or any similar successor systemLenders on the date such documents are made so available;
(c) within the time period concurrently with any delivery of financial statements under Section 5.01(a)(a) and (b) above, a certificate of a Responsible Officer of the Borrower (in substantially the form of Exhibit A) (i) certifying that, to the knowledge of such Responsible Officer, no Event of Default has occurred and is continuingoccurred, or, if, to the knowledge of such Responsible Officer, such an Event of Default has occurred and is continuingoccurred, 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 provisions of Sections 6.03 and 6.04;
(d) within the time period under (a) and (b) of this Section 5.01, an Officer’s Certificate demonstrating in reasonable detail compliance with Section 6.08 as of the end of the preceding fiscal quarter;
(e) promptly after the occurrence thereof, prompt written notice of the termination of a Plan of the Borrower any Termination Event that has occurred, or an ERISA Affiliate pursuant is reasonably expected to Section 4042 of ERISAoccur, to the extent such termination Termination Event would constitute an Event of Default under Section 7.01(j7.01(l);
(e) promptly after a Responsible Officer of the Borrower obtains knowledge of the filing or commencement of any action, suit or proceeding by or before any arbitrator or Governmental Authority against or affecting the Borrower or any Subsidiary that could reasonably be expected to result in a Material Adverse Effect, notification thereof;
(f) (i) on the date on which any Investment Property that is not listed on a national securities exchange is initially included as Additional Pool Assets, an Officer’s Certificate from the Borrower, in form and substance reasonably satisfactory to the Administrative Agent, setting forth the book value of such Investment Property as of the last day of the month most recently ended, together with all supporting documents with respect to such Investment Property as the Administrative Agent may reasonably request and (ii) at any time thereafter that any Investment Property that is not listed on a national securities exchange shall be included as Additional Pool Assets, concurrently with any delivery of financial statements under clause (a) or (b) above in respect of each fiscal quarter of the Borrower, an Officer’s Certificate from the Borrower, in form and substance reasonably satisfactory to the Administrative Agent, setting forth the book value of such Investment Property as of the last day of such fiscal quarter, together with all supporting documents with respect to such Investment Property as the Administrative Agent may reasonably request; and
(g) if an Event of Default has occurred and is continuing, any subsequent Appraisal Report reasonably requested by the Administrative Agent or the Required Lenders, in each case as soon as reasonably practicable after receipt by the Borrower of such request. Subject to the next succeeding sentence, information delivered pursuant to this Section 5.01 to the Administrative Agent may be made available by the Administrative Agent to the Lenders by posting such information on the Intralinks website on the Internet at xxxx://xxx.xxxxxxxxxx.xxx. Information delivered pursuant to this Section 5.01 may also be delivered by electronic communication pursuant to procedures approved by the Administrative Agent pursuant to Section 10.01 hereto. Information required to be delivered pursuant to this Section 5.01 (to the extent not made available as set forth above) shall be deemed to have been delivered to the Administrative Agent on the date on which the Borrower provides written notice to the Administrative Agent that such information has been posted on the Borrower’s website on the Internet at xxxx://xxx.xxxxx.xxx (to the extent such information has been posted or is available as described in such notice). Information required to be delivered pursuant to this Section 5.01 shall be in a format which is suitable for transmission. #10384414v15 Any notice or other communication delivered pursuant to this Section 5.01, or otherwise pursuant to this Agreement, shall be deemed to contain material non-public information unless (i) expressly marked by the Borrower as “PUBLIC”, (ii) such notice or communication consists of copies of the Borrower’s public filings with the SEC or (iii) such notice or communication has been posted on the Borrower’s website on the Internet at xxxx://xxx.xxxxx.xxx.
Appears in 1 contract
Financial Statements, Reports, etc. The Borrower shall deliver With respect to Millennium and MIC-AUS, furnish to the Administrative Agent on behalf Applicable Agent, for each of the Lenders:
(ai) within ninety (90) Within 85 days after the end of each fiscal yearFiscal Year of Millennium, Parent’s consolidated audited financial statements (which shall include a balance sheet and related statement income statement, as well as statements of income stockholders’ equity and cash flows, ) showing the financial condition of Parent and its Subsidiaries on a consolidated basis as of the close of such fiscal year and the results of their respective operations during such year, such consolidated financial statements of Parent to be audited for Parent by independent public accountants of recognized national standing and to be accompanied by an opinion of such accountants (which opinion shall be unqualified as to 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 Parent Millennium and the Consolidated Subsidiaries as of the end of and for such Fiscal Year, reported on by independent public accountants of recognized standing; and (ii) within 120 days after the end of each Fiscal Year of MIC-AUS, audited financial statements (which shall include a balance sheet and income statement, as well as a statement of cash flows) showing the financial condition and results of operations of MIC-AUS and its Subsidiaries on a consolidated basis in accordance with GAAP; provided that subsidiaries as of the foregoing delivery requirement shall be satisfied if Parent shall have filed with the SEC its Annual Report on Form 10-K end of and for such fiscal yearFiscal Year, which is available to the reported on by independent public via XXXXX or any similar successor system;accountants of recognized standing.
(bi) within forty-five (45) Within 50 days after the end of each of the first three fiscal quarters Fiscal Quarters of each fiscal yearFiscal Year of Millennium, Parent’s consolidated unaudited financial statements (which shall include a balance sheets sheet and related statements income statement, as well as a statement of income and cash flows, ) showing the financial condition of Parent and its Subsidiaries on a consolidated basis as of the close of such fiscal quarter and the results of their operations during such fiscal quarter and the then-elapsed portion of the fiscal year, each certified by a Responsible Officer of Parent as fairly presenting in all material respects the financial condition and results of operations of Parent Millennium and the Consolidated Subsidiaries as of the end of and for such Fiscal Quarter, certified by a Financial Officer of Millennium as presenting fairly in all material respects the financial position and results of operations of Millennium and its Consolidated Subsidiaries on a consolidated basis and as having been prepared in accordance with GAAP, subject to normal year-end audit adjustments; provided that, for the avoidance of doubt, such financial statements with respect to the Fiscal Quarter of Millennium ending on June 30, 2005, shall be required to be furnished hereunder only if they have not been furnished under the Existing Credit Agreement; (ii) within 50 days after the end of each of the first three Fiscal Quarters of each Fiscal Year of MIC-AUS, a management report containing unaudited financial statements of MIC-AUS and its consolidated subsidiaries as of the end of and for such Fiscal Quarter, certified (subject to normal year-end adjustments and the absence of footnotes) as to fairness of presentation and consistency with GAAP by a Financial Officer of MIC-AUS, except that (A) Millennium Lincolnshire Limited, a wholly owned subsidiary of MIC-AUS, is accounted for as an investment using the cost method of accounting and (B) the intercompany receivable and payable balances among MIC-AUS and its subsidiaries are not eliminated; provided and (iii) within 14 days after the Closing Date, a certification from a Financial Officer of MIC-AUS as to fairness of presentation and consistency with GAAP (subject to normal year-end adjustments and the absence of footnotes and except that (X) Millennium Lincolnshire Limited, a wholly owned subsidiary of MIC-AUS, is accounted for as an investment using the foregoing delivery requirement shall be satisfied if Parent shall have filed with cost method of accounting and (Y) the SEC intercompany receivable and payable balances among MIC-AUS and its Quarterly Report on Form 10subsidiaries are not eliminated) of the unaudited financial statements of MIC-Q for such fiscal quarterAUS and its consolidated subsidiaries as of June 30, which is available to 2005 contained in the public via XXXXX or any similar successor system;management report described in Section 3.06(y).
(c) within Promptly after the time period under Section 5.01(asame shall have been filed or furnished as described below, copies of such registration statements (other than registration statements on Form S 8 or any similar or successor form), annual, periodic and other reports and proxy statements, as shall be filed by Millennium, any Borrower or any Subsidiary with the SEC pursuant to the requirements of the Securities Act of 1933 or the Securities Exchange Act of 1934 or the rules promulgated thereunder.
(d) Concurrently with (a) and (b) above, a certificate of a Responsible Financial Officer of Millennium or MIC-AUS, as applicable, (i) in the Borrower case of each such certificate of a Financial Officer of Millennium, (A) certifying thatcompliance, as of the dates of the financial statements being furnished at such time and for the periods then ended, with the covenants set forth in Sections 6.01, 6.02, 6.03 and 6.07 and (B) certifying and demonstrating, in reasonable detail, compliance with the covenants set forth in Sections 6.11 and 6.12 and the Leverage Ratio for purposes of determining the Applicable Rate, (ii) certifying that to the best knowledge of such Responsible Officer, Financial Officer no Event of Default or Default has occurred and is continuing, or, if, to the knowledge of such Responsible Officer, such if an Event of Default or Default has occurred and is continuingoccurred, specifying the nature and extent thereof and any corrective action taken or proposed to be taken with respect thereto;, (iii) setting forth any change since the date hereof, or the last date such a certificate was delivered, in the information set forth on Schedule 3.15 and (iv) describing any applicable material change in GAAP or Australian GAAP, as applicable, reflected in such financial statements and not reflected in any financial statements previously delivered and setting forth in reasonable detail the results thereof.
(de) within Promptly upon receipt, copies of all financial or other information concerning Equistar that has been publicly filed by Equistar with the SEC (or any successor Governmental Authority).
(f) Promptly, from time period under to time, such other information and certifications regarding this Agreement and the other Credit Documents (including compliance herewith and therewith), or the affairs, operations or condition (financial or otherwise) of Millennium, MIC-AUS, any Borrower or Subsidiary or Equistar, as any Lender may reasonably request and which is susceptible of being obtained, produced or generated by any of them or of which any of them has knowledge. Information required to be delivered pursuant to paragraphs (a), (b), (c) and (be) of this Section 5.01shall be deemed to have been delivered if such information, or one or more annual or quarterly reports containing such information, shall have been posted by the Applicable Agent on an Officer’s Certificate demonstrating in reasonable detail compliance with Section 6.08 as IntraLinks or similar site to which the Lenders have been granted access or shall be available on the website of the end Securities and Exchange Commission at xxxx://xxx.xxx.xxx or the website of Millennium at xxxx://xxx.xxxxxxxxxxxxxx.xxx and a confirming notice of such posting or availability shall have been delivered or caused to be delivered to the Applicable Agent; provided that (i) such notice may be included in a certificate delivered pursuant to paragraph (d) of this Section and (ii) Millennium shall deliver paper copies of the preceding fiscal quarter;
information referred to in paragraphs (a), (b), (c) and (e) promptly after the occurrence thereof, written notice of the termination of a Plan of the Borrower or an ERISA Affiliate this Section to any Lender that requests such delivery. Information required to be delivered pursuant to this Section 4042 of ERISA, may also be delivered by electronic communications pursuant to procedures approved by the extent such termination would constitute an Event of Default under Section 7.01(j);Applicable Agent.
Appears in 1 contract
Financial Statements, Reports, etc. The Borrower Borrowers shall deliver to the Administrative Agent on behalf of the Lenders:
(a) within Within (i) ninety (90) days after the end of each fiscal year, Parent’s consolidated balance sheet and related statement of income and cash flows, showing the financial condition of Parent and its Subsidiaries on a consolidated basis as of the close of such fiscal year and the results of their respective operations during such year, such consolidated financial statements of Parent to be audited for Parent by independent public accountants of recognized national standing and to be accompanied by an opinion of such accountants (which opinion shall be unqualified as to 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 Parent and its Subsidiaries on a consolidated basis in accordance with GAAP; provided that the foregoing delivery requirement shall be satisfied if Parent shall have filed with the SEC its Annual Report on Form 10-K for such fiscal year, which is available to the public via XXXXX or any similar successor systemsystem and (ii) one hundred eighty (180) days after the end of the fiscal year ending December 31, 2021, and within one hundred twenty (120) days after the end of each fiscal year thereafter, HoldCo 1’s consolidated balance sheet and related statement of income and cash flows, showing the financial condition of HoldCo 1 and its Subsidiaries on a consolidated basis as of the close of such fiscal year and the results of their respective operations during such year, such consolidated financial statements of HoldCo 1 to be audited for HoldCo 1 by independent public accountants of recognized national standing and to be accompanied by an opinion of such accountants (which opinion shall be unqualified as to 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 HoldCo 1 and its Subsidiaries on a consolidated basis in accordance with GAAP;
(b) within Within (i) forty-five (45) days after the end of each of the first three fiscal quarters of each fiscal year, Parent’s consolidated balance sheets and related statements of income and cash flows, showing the financial condition of Parent and its Subsidiaries on a consolidated basis as of the close of such fiscal quarter and the results of their operations during such fiscal quarter and the then-elapsed portion of the fiscal year, each certified by a Responsible Officer of Parent as fairly presenting in all material respects the financial condition and results of operations of Parent and its Subsidiaries on a consolidated basis in accordance with GAAP, subject to normal year-end audit adjustments and the absence of footnotes; provided that the foregoing delivery requirement shall be satisfied if Parent shall have filed with the SEC its Quarterly Report on Form 10-Q for such fiscal quarter, which is available to the public via XXXXX or any similar successor systemsystem and (ii) ninety (90) days after the end of the fiscal quarter ending June 30, 2021 and thereafter within sixty (60) days after the end of each of the first three fiscal quarters of each fiscal year, HoldCo 1’s consolidated balance sheets and related statements of income and cash flows, showing the financial condition of HoldCo 1 and its Subsidiaries on a consolidated basis as of the close of such fiscal quarter and the results of their operations during such fiscal quarter and the then-elapsed portion of the fiscal year, each certified by a Responsible Officer of HoldCo 1 as fairly presenting in all material respects the financial condition and results of operations of HoldCo 1 and its Subsidiaries on a consolidated basis in accordance with GAAP, subject to normal year-end audit adjustments and the absence of footnotes;
(c) within Within the time period under Section 5.01(a)) above with respect to Parent, a certificate of a Responsible Officer of the Borrower American certifying that, to the knowledge of such Responsible Officer, no Early Amortization Event or Event of Default has occurred and is continuing, or, if, to the knowledge of such Responsible Officer, such an Early Amortization Event or Event of Default has occurred and is continuing, specifying the nature and extent thereof and any corrective action taken or proposed to be taken with respect thereto;
(d) within the time period under (a) and (b) of this Section 5.01On or prior to each Determination Date with respect to each Related Quarterly Reporting Period, an Officer’s Certificate demonstrating in reasonable detail compliance with (i) Section 6.08 as of the end last day of the preceding fiscal quarterRelated Quarterly Reporting Period and (ii) the Peak Debt Service Coverage Ratio Test as of the last day of the Related Quarterly Reporting Period;
(e) promptly No later than each Determination Date with respect to each Related Quarterly Reporting Period, a certificate of a Responsible Officer of American, (i) setting forth the name of each new AAdvantage Agreement entered into as of such date and each of the parties thereto, (ii) certifying compliance with deposit requirements with respect to such AAdvantage Agreements and (iii) certifying that Transaction Revenues representing 90% of all AAdvantage Revenues for such Quarterly Reporting Period were deposited directly into the Collection Account;
(f) Promptly after the occurrence thereof, written notice of the termination of a Plan of the Borrower Parent or an ERISA Affiliate pursuant to Section 4042 of ERISA, ERISA to the extent such termination would constitute an Event of Default;
(g) So long as any Term Loan Commitment or Term Loan is outstanding, promptly upon knowledge thereof by a Responsible Officer of a Borrower, notice in writing of any Default, Early Amortization Event or Event of Default under Section 7.01(jand what action Loyalty Co, American, Parent and its Subsidiaries are taking or propose to take with respect thereto (with a copy to the Collateral Administrator and the Master Collateral Agent);
(h) Promptly after a Responsible Officer of Parent or a Borrower obtains knowledge thereof, written notice of the filing or commencement of any action, suit or proceeding by or before any arbitrator or Governmental Authority against or affecting Parent or any of its Subsidiaries that would reasonably be expected to result in a Material Adverse Effect;
(i) Subject to any confidentiality restrictions under binding agreements or limitations imposed by applicable law, a notice (which will be posted on a password protected website to which the Administrative Agent will have access to such notice (or which will otherwise be delivered to the Administrative Agent, including, without limitation, by electronic mail)) with respect to the occurrence of: (i) any material amendment, restatement, supplement, waiver or other material modification to any Material AAdvantage Agreement (with such notice posted or delivered, as applicable, promptly but in each case within thirty (30) days of the effectiveness of such material amendment, restatement, supplement, waiver or other material modification) and (ii) any termination, cancellation or expiration of a Material AAdvantage Agreement (with such notice posted or delivered, as applicable, as soon as reasonably practicable after such termination, cancellation or expiration); and
(j) On each Determination Date, deliver a Payment Date Statement to the Administrative Agent, the Collateral Administrator and the Master Collateral Agent. The Administrative Agent may, prior to the related Payment Date, provide notice to the Borrowers, the Collateral Administrator and the Master Collateral Agent of any information contained in the Payment Date Statement that the Administrative Agent believes to be incorrect. If the Administrative Agent provides such a notice, the Borrowers shall use their reasonable efforts to resolve the discrepancy and provide an updated Payment Date Statement on or prior to the related Payment Date. If the discrepancy is not resolved and a replacement Payment Date Statement is not received by the Collateral Administrator prior to the payment of Available Funds on the related Payment Date pursuant to Section 2.10(b), and it is later determined that the information identified by the Administrative Agent as incorrect was in fact incorrect and such error resulted in a party receiving a smaller distribution on the Payment Date than they would have received had there not been such an error, then the Borrowers shall indemnify such party for such shortfall. For the avoidance of doubt and, notwithstanding anything to the contrary herein or in any other Loan Document, the Collateral Administrator and the Administrative Agent shall have no obligation to inquire into, investigate, verify or perform any calculations in connection with a Payment Date Statement or, in the case of the Collateral Administrator, notice from the Administrative Agent in respect of the same; it being understood and agreed that the Administrative Agent and the Collateral Administrator shall be entitled to conclusively rely, and shall not be liable for so relying, on the Payment Date Statement last received by it on or prior to each Payment Date and the Administrative Agent and the Collateral Administrator shall have no obligation, responsibility or liability in connection with any indemnification payment of the Borrowers pursuant to the immediately preceding sentence. Any certificate to be delivered under this Section 5.01 may, at any Borrower’s option, be combined with any other certificate to be delivered under this Section 5.01 within the same time period. In no event shall the Administrative Agent be entitled to inspect, receive and make copies of materials, (i) except in connection with any enforcement or exercise of remedies, (A) that constitute non-registered AAdvantage Intellectual Property, non-financial Trade Secrets (including the AAdvantage Customer Data) or non-financial proprietary information, or (B) in respect of which disclosure to the Administrative Agent, the Collateral Administrator or any Lender (or their respective representatives or contractors) is prohibited by law or any binding agreement (or would otherwise cause a breach or default thereunder) (including, but not limited to, copies of any AAdvantage Agreements or any information thereof) or (ii) that are subject to attorney client or similar privilege or constitute attorney work product or constitute Excluded Intellectual Property or an AAdvantage Agreement. The Borrowers agree to provide copies of any notices or any deliverables given or received under the Collateral Agency and Accounts Agreement to the Administrative Agent, including any notice or deliverable required to be provided to the Senior Secured Debt Representatives. Subject to the next succeeding sentence, information delivered pursuant to this Section 5.01 to the Administrative Agent may be made available by the Administrative Agent to the Lenders by posting such information on the Syndtrak website on the Internet at http:// xxxxxxxx.xxx. Information required to be delivered pursuant to this Section 5.01 by any Loan Party shall be delivered pursuant to Section 10.01 hereto. Information required to be delivered pursuant to this Section 5.01 (to the extent not made available as set forth above) shall be deemed to have been delivered to the Administrative Agent on the date on which Loyalty Co provides written notice to the Administrative Agent that such information has been posted on American’s general commercial website on the Internet (to the extent such information has been posted or is available as described in such notice), as such website may be specified by Loyalty Co to the Administrative Agent from time to time. Information required to be delivered pursuant to this Section 5.01 shall be in a format which is suitable for transmission. Any notice or other communication delivered pursuant to this Section 5.01, or otherwise pursuant to this Agreement, shall be deemed to contain material non-public information unless (i) expressly marked by a Loan Party as “PUBLIC”, (ii) such notice or communication consists of copies of any Loan Party’s public filings with the SEC or (iii) such notice or communication has been posted on American’s general commercial website on the Internet, as such website may be specified by Loyalty Co to the Administrative Agent from time to time. Delivery of reports, information and documents to the Collateral Administrator is for informational purposes only, and its receipt of such reports, information and documents shall not constitute constructive notice of any information contained therein or determinable from information contained therein, including any Loan Party’s or any other Person’s compliance with any of its covenants under this Agreement or any other Loan Document. The Collateral Administrator shall have no liability or responsibility for the content, filing or timeliness of any report or other information delivered, filed or posted under or in connection with this Agreement, the other Loan Documents or the transactions contemplated hereunder or thereunder. For the avoidance of doubt, the Collateral Administrator shall have no duty to monitor or access any website of a Loan Party or any other Person referenced herein, shall not have any duty to monitor, determine or inquire as to compliance or performance by any Loan Party or any other Person of its obligations under this Section 5.01 or otherwise and the Collateral Administrator shall not be responsible or liable for any Loan Party’s or any other Person’s non-performance or non-compliance with such obligations.
Appears in 1 contract
Samples: Term Loan Credit and Guaranty Agreement (American Airlines, Inc.)
Financial Statements, Reports, etc. The Borrower shall deliver Furnish to the Administrative Agent on behalf of (which will promptly furnish such information to the Lenders:):
(a) within ninety 90 days (90or such earlier date on which the Borrower is required to file a Form 10-K under the Exchange Act) days after the end of each fiscal year, Parent’s commencing with the fiscal year ending on September 30, 2019, a consolidated balance sheet and related statement statements of income operations, cash flows and cash flows, owners’ equity showing the financial condition position of Parent the Borrower and its Subsidiaries on a consolidated basis as of the close of such fiscal year and the consolidated results of their respective operations during such year and setting forth in comparative form the corresponding figures for the prior fiscal year, such which consolidated financial balance sheet and related statements of Parent to operations, cash flows and owners’ equity shall be accompanied by customary management’s discussion and analysis and audited for Parent by independent public accountants of recognized national standing and to be accompanied by an opinion of such accountants (which opinion shall not be unqualified qualified as to scope of such auditaudit (other than an emphasis matter paragraph) or as to the status of the Borrower or any Material Subsidiary as a going concern, other than solely with respect to, or resulting solely from, (x) an upcoming maturity date under any series of Indebtedness for borrowed money, (y) any potential or actual breach of the Financial Covenant or (z) any prospective breach of any financial covenant under any other Indebtedness for borrowed money) to the effect that such consolidated financial statements fairly present present, in all material respects respects, the financial condition position and results of operations of Parent the Borrower and its Subsidiaries on a consolidated basis in accordance with GAAP; provided GAAP (it being understood that the foregoing delivery requirement shall be satisfied if Parent shall have filed with by the SEC its Annual Report Borrower of annual reports on Form 10-K for such fiscal year, which is available (or any successor or comparable form) of the Borrower and its consolidated Subsidiaries shall satisfy the requirements of this Section 5.04(a) to the public via XXXXX or any similar successor systemextent such annual reports include the information specified herein);
(b) within forty45 days (or such earlier date on which the Borrower is required to file a Form 10-five (45Q under the Exchange Act) days after the end of each of the first three fiscal quarters of each fiscal yearyear (commencing with the fiscal quarter ended on December 31, Parent’s 2019), a consolidated balance sheets sheet and related statements of income operations and cash flows, flows showing the financial condition position of Parent the Borrower and its Subsidiaries on a consolidated basis as of the close of such fiscal quarter and the consolidated results of their operations during such fiscal quarter and the then-elapsed portion of the fiscal year and setting forth in comparative form the corresponding figures for the corresponding periods of the prior fiscal year, each all of which shall be in reasonable detail, which consolidated balance sheet and related statements of operations and cash flows shall be accompanied by customary management’s discussion and analysis and which consolidated balance sheet and related statements of operations and cash flows shall be certified by a Responsible Financial Officer of Parent the Borrower on behalf of the Borrower as fairly presenting presenting, in all material respects respects, the financial condition position and results of operations of Parent the Borrower and its Subsidiaries on a consolidated basis in accordance with GAAP, GAAP (subject to normal year-end audit adjustments and the absence of footnotes; provided ) (it being understood that the foregoing delivery requirement shall be satisfied if Parent shall have filed with by the SEC its Quarterly Report Borrower of quarterly reports on Form 10-Q for such fiscal quarter, which is available to the public via XXXXX (or any similar successor system;
(cor comparable form) within the time period under Section 5.01(a), a certificate of a Responsible Officer of the Borrower certifying that, to and its consolidated Subsidiaries shall satisfy the knowledge of such Responsible Officer, no Event of Default has occurred and is continuing, or, if, to the knowledge of such Responsible Officer, such an Event of Default has occurred and is continuing, specifying the nature and extent thereof and any corrective action taken or proposed to be taken with respect thereto;
(d) within the time period under (a) and (b) requirements of this Section 5.01, an Officer’s Certificate demonstrating in reasonable detail compliance with Section 6.08 as of the end of the preceding fiscal quarter;
(e5.04(b) promptly after the occurrence thereof, written notice of the termination of a Plan of the Borrower or an ERISA Affiliate pursuant to Section 4042 of ERISA, to the extent such termination would constitute an Event of Default under Section 7.01(jquarterly reports include the information specified herein);
Appears in 1 contract
Samples: Credit Agreement (Cerence Inc.)
Financial Statements, Reports, etc. The Borrower shall deliver Furnish to the Administrative Agent on behalf of the LendersAgent, who shall furnish to each Lender:
(a) within ninety (90) 90 days after the end of each fiscal yearFiscal Year (or such longer period as may be permitted by the SEC if the Borrower were then subject to the SEC reporting requirements as a non-accelerated flier), Parent’s (i) a consolidated balance sheet and related statement statements of income and comprehensive income, changes in shareholders’ equity and cash flows, flows showing the financial condition position of Parent the Borrower and its Subsidiaries on a consolidated basis subsidiaries as of the close of such fiscal Fiscal Year and their consolidated financial performance and cash flows for such year and setting forth in comparative form the results of their respective operations during corresponding figures for the prior Fiscal Year and (ii) a Narrative Report for such yearFiscal Year, such which consolidated financial balance sheet and related statements of Parent to income and comprehensive income, changes in shareholders’ equity and cash flows shall be audited for Parent by independent public chartered professional accountants of recognized national standing and to be accompanied by an opinion of such accountants (which opinion shall not be unqualified qualified as to the scope of the audit or as to the status of the Borrower or any of its subsidiaries as a “going concern” or include any explanatory paragraph expressing substantial doubt as to going concern status (other than any such auditparagraph relating solely to (x) the impending maturity of the Term Loans, the First Lien Notes, the ABL Facility or the Convertible Notes or (y) any potential or actual inability to satisfy any financial maintenance covenant under the ABL Facility)) to the effect that such consolidated financial statements fairly present fairly, in all material respects respects, the financial condition position and results financial performance and cash flows of operations of Parent the Borrower and its Subsidiaries subsidiaries on a consolidated basis in accordance with GAAP; provided GAAP (it being understood that the foregoing delivery requirement shall be satisfied if or furnishing by the Borrower or any Parent shall have filed with the SEC its Holding Company of an Annual Report on Form 10-K for such fiscal year, which is available to shall satisfy the public via XXXXX or any similar successor systemrequirements of this Section 5.4(a));
(b) within forty-five (45) 45 days after the end of each of the first three fiscal quarters Fiscal Quarters of each fiscal yearFiscal Year (or such longer period as may be permitted by the SEC if the Borrower were then subject to the SEC reporting requirements as a non-accelerated flier), Parent’s (i) a consolidated balance sheets sheet and related statements of income comprehensive income, changes in shareholders’ equity and cash flows, flows showing the financial condition position of Parent the Borrower and its Subsidiaries on a consolidated basis subsidiaries as of the close of such fiscal quarter Fiscal Quarter and the results of their operations during consolidated financial performance and cash flows for such fiscal quarter Fiscal Quarter and the then-elapsed portion of the fiscal yearFiscal Year and setting forth in comparative form the corresponding figures for the corresponding periods of the prior Fiscal Year and (ii) a Narrative Report for such Fiscal Quarter, each all of which shall be in reasonable detail and which consolidated balance sheet and related statements of income and comprehensive income, changes in shareholders’ equity and cash flows shall be certified by a Responsible Financial Officer of Parent the Borrower on behalf of the Borrower as fairly presenting presenting, in all material respects respects, the financial condition performance and results cash flows of operations of Parent the Borrower and its Subsidiaries subsidiaries on a consolidated basis in accordance with GAAP, GAAP (subject to normal year-end audit adjustments and the absence of footnotes; provided ) (it being understood that the foregoing delivery requirement shall be satisfied if or furnishing by the Borrower or any Parent shall have filed with the SEC its Holding Company of a Quarterly Report on Form 10-Q for such fiscal quarter, which is available to shall satisfy the public via XXXXX or any similar successor systemrequirements of this Section 5.4(b));
(c) within the time period concurrently with any delivery of financial statements under Section 5.01(a), a certificate of a Responsible Officer of the Borrower certifying that, to the knowledge of such Responsible Officer, no Event of Default has occurred and is continuing, or, if, to the knowledge of such Responsible Officer, such an Event of Default has occurred and is continuing, specifying the nature and extent thereof and any corrective action taken or proposed to be taken with respect thereto;
(d) within the time period under paragraph (a) and or (b) of this Section 5.015.4, an Officer’s a Compliance Certificate demonstrating of a Financial Officer of the Borrower (i) certifying that no Event of Default or Default has occurred that is then continuing, except as set forth therein, (ii) [reserved], (iii) setting forth the calculation of the Total Leverage Ratio (calculated on a Pro Forma Basis) for the twelve-month period ending at the end of such fiscal period and (iv) [reserved].
(d) within 90 days after the beginning of each Fiscal Year, a consolidated annual budget for such Fiscal Year, including a description of underlying assumptions with respect thereto, which budget shall in each case be accompanied by the statement of a Financial Officer of the Borrower to the effect that such budget is based on assumptions believed by such Financial Officer to be reasonable detail as of the date of delivery thereof;
(e) promptly, from time to time, such other customary information (which is readily available) regarding the operations, business affairs and financial condition of the Credit Parties and their Restricted Subsidiaries and their compliance with Section 6.08 the terms of any Credit Document, in each case, as the Administrative Agent may reasonably request (for itself or on behalf of any Lender) (it being understood that the Borrower shall not be required to deliver customary borrowing base certificates delivered under the ABL Facility Documents pursuant to this clause (e));
(f) promptly, from time to time, such other customary information (which is readily available) regarding the operations, business affairs and financial condition of the Credit Parties and their Restricted Subsidiaries and their compliance with the terms of any Credit Document, in each case, as the Administrative Agent may reasonably request (for itself or on behalf of any Lender);
(g) promptly upon becoming aware of the occurrence of any ERISA Event, a written notice specifying the nature thereof, what action Borrower, any of its subsidiaries or any of their respective ERISA Affiliates has taken, is taking or proposes to take with respect thereto and, when known, any action taken or threatened in writing by the Internal Revenue Service, the Department of Labor or the PBGC; and
(h) within 5 Business Days of any month end, the Borrower shall furnish to the Administrative Agent a certificate of a Financial Officer of the Borrower setting forth the calculation of Liquidity (calculated on a Pro Forma Basis) as of the end of the preceding fiscal quarter;
(e) promptly after the occurrence thereof, written notice of the termination of a Plan of the Borrower or an ERISA Affiliate pursuant to Section 4042 of ERISA, to the extent such termination would constitute an Event of Default under Section 7.01(j);applicable month.
Appears in 1 contract
Samples: Second Lien Credit and Guaranty Agreement (Lannett Co Inc)
Financial Statements, Reports, etc. The Borrower shall deliver Furnish to the Administrative Agent on behalf of (which will promptly furnish such information to the Lenders:):
(a) within ninety (90) 90 days after the end of each fiscal year, Parent’s a consolidated balance sheet and related statement statements of income operations, shareholders’ equity and cash flows, flows showing the financial condition position of the Parent Borrower and its Subsidiaries on a consolidated basis as of the close of such fiscal year and the consolidated results of their respective operations during such year and setting forth in comparative form the corresponding figures for the prior fiscal year, such which consolidated financial balance sheet and related statements of Parent operations, shareholders’ equity and cash flows shall be accompanied by customary management’s discussion and analysis and audited by a “big-four” accounting firm or another nationally recognized accounting firm or other accounting firm reasonably acceptable to the Required Lenders (it being understood and agreed that KPMG LLP shall be audited for Parent by independent public accountants of recognized national standing reasonably acceptable) and to be accompanied by an opinion of such accountants (which opinion shall not be unqualified qualified as to scope of such auditaudit or as to the status of the Parent Borrower, the Co-Borrower or any Material Subsidiary as a going concern, 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 a future period) to the effect that such consolidated financial statements fairly present present, in all material respects respects, the financial condition position and results of operations of the Parent Borrower and its Subsidiaries on a consolidated basis in accordance with GAAP; GAAP (it being understood that any such financial statements that are filed pursuant to and are accessible through (x) the SEC’s XXXXX system or (y) the Canadian Securities Administrators’ System for Electronic Document Analysis and Retrieval (“SEDAR”) will be deemed to have been provided that the foregoing delivery requirement shall be satisfied if Parent shall have filed in accordance with the SEC its Annual Report on Form 10-K for such fiscal year, which is available to the public via XXXXX or any similar successor systemthis clause (a));
(b) within forty-five (45) 45 days after the end of each of the first three fiscal quarters of each fiscal year, Parent’s a consolidated balance sheets sheet and related statements of income operations, shareholders’ equity and cash flows, flows showing the financial condition position of the Parent Borrower and its Subsidiaries on a consolidated basis as of the close of such fiscal quarter and the consolidated results of their operations during such fiscal quarter and the then-elapsed portion of the fiscal yearyear and setting forth in comparative form the corresponding figures for the corresponding periods of the prior fiscal year and, each all of which shall be in reasonable detail, which consolidated balance sheet and related statements of income, shareholders’ equity and cash flows shall be accompanied by customary management’s discussion and analysis and shall be certified by a Responsible Financial Officer of the Parent Borrower on behalf of the Parent Borrower as fairly presenting presenting, in all material respects respects, the financial condition position and results of operations of the Parent Borrower and its Subsidiaries on a consolidated basis in accordance with GAAP, GAAP (subject to normal year-end audit adjustments and the absence of footnotes; ) (it being understood that any such financial statements that are filed pursuant to and are accessible through (x) the SEC’s XXXXX system or (y) SEDAR will be deemed to have been provided that the foregoing delivery requirement shall be satisfied if Parent shall have filed in accordance with the SEC its Quarterly Report on Form 10-Q for such fiscal quarter, which is available to the public via XXXXX or any similar successor systemthis clause (b));
(c) within the time period concurrently with any delivery of financial statements under Section 5.01(a)clause (a) or (b) above, a certificate of a Responsible Officer of the Borrower duly executed and completed Compliance Certificate (i) certifying that, to the knowledge of such Responsible Officer, that no Event of Default or Default has occurred and is continuing, since the date of the last certificate delivered pursuant to this Section 5.04(c) or, if, to the knowledge of such Responsible Officer, if such an Event of Default or Default has occurred and is continuingoccurred, specifying the nature and extent thereof and any corrective action taken or proposed to be taken with respect thereto, (ii) setting forth computations in reasonable detail demonstrating compliance with the Financial Covenant and (iii) in respect of a Compliance Certificate delivered concurrently with the financial statements under clause (a), setting forth any changes in the identity of a Responsible Person since the Closing Date or the date of such previously delivered Compliance Certificate, as applicable;
(d) within promptly, from time to time, (i) such other customary information regarding the time period operations, business affairs and financial condition of the Parent Borrower or any of the Subsidiaries or compliance with the terms of any Loan Document as in each case the Administrative Agent may reasonably request (for itself or on behalf of any Lender) and (ii) information and documentation reasonably requested by the Administrative Agent or any Lender for purposes of compliance with applicable “know your customer” requirements under the USA PATRIOT Act or other applicable anti-money-laundering rules and regulations and the Beneficial Ownership Regulation; provided that (i) to the extent that the Parent Borrower determines in good faith that any information to be provided pursuant to this paragraph (e) constitutes (individually or in the aggregate) material non-public information, the recipient of such information shall be subject to a customary confidentiality agreement (or provision) with respect to such information prior to receiving such information, and (ii) while the Parent Borrower is subject to the requirement to file periodic reports under National Instrument 51-102 – Continuous Disclosure Obligations or under Section 13(b), 13(g) or 15(d) of the Exchange Act, information regarding the operations, business affairs and financial condition of the Parent Borrower or any of the Subsidiaries need not be provided if the Parent Borrower intends to provide such information in an upcoming periodic or current report under such laws, rules or regulations); and
(e) in the event that any Parent Entity reports on a consolidated basis, such consolidated reporting at such Parent Entity’s level in a manner consistent with that described in clauses (a), (b) and (c) of this Section 5.04 for the Parent Borrower (together with a reconciliation showing the adjustments necessary to determine compliance by the Parent Borrower and its Subsidiaries with the Financial Covenant) will satisfy the requirements of such paragraphs. Each Borrower hereby acknowledges and agrees that all financial statements furnished pursuant to clauses (a) and (b) of this Section 5.01above are hereby deemed to be Borrower Materials suitable for distribution, an Officer’s Certificate demonstrating in reasonable detail compliance with Section 6.08 as of the end of the preceding fiscal quarter;
(e) promptly after the occurrence thereof, written notice of the termination of a Plan of the Borrower or an ERISA Affiliate pursuant and to Section 4042 of ERISAbe made available, to Public Lenders as contemplated by Section 9.17 and may be treated by the extent Administrative Agent and the Lenders as if the same had been marked “PUBLIC” in accordance with such termination would constitute an Event of Default under Section 7.01(jparagraph (unless the Parent Borrower otherwise notifies the Administrative Agent in writing on or prior to delivery thereof);.
Appears in 1 contract
Financial Statements, Reports, etc. The Borrower shall deliver Furnish to the Administrative Agent on behalf of the LendersAgents:
(a) within ninety (90) 90 days after the end of each fiscal year, Parent’s the consolidated and combined balance sheet and related statement statements of income income, stockholders' equity and cash flows, flows showing the financial condition of Parent the Borrower and its consolidated Subsidiaries on a consolidated basis as of the close of such fiscal year and the results of their respective its operations and the operations of such Subsidiaries during such year, such consolidated financial statements of Parent to be all audited for Parent by Coopers & Xxxxxxx LLP or other independent public accountants of recognized national standing acceptable to the Required Lenders and to be accompanied by an opinion of such accountants (which opinion shall not be unqualified as to scope of such auditqualified 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 Parent the Borrower and its consolidated Subsidiaries on a consolidated basis in accordance with GAAPGAAP consistently applied; provided provided, however, that such financial statements will contain footnotes or other information to the foregoing delivery requirement shall effect that: (i) Leasco's business consists of the purchase and lease of vehicles; (ii) Xxxxx'x business consists of the issuance of commercial paper notes and of the making of loans to Leasco; and (iii) each of Leasco and Xxxxx is a separate corporate entity with its own separate creditors which, upon the liquidation of Leasco or Xxxxx, as the case may be, will be entitled to be satisfied if Parent shall have filed with the SEC its Annual Report on Form 10-K for such fiscal yearout of Leasco's or Xxxxx'x assets, which is as applicable, prior to any value in Leasco or Xxxxx becoming available to the public via XXXXX Leasco's or any similar successor systemXxxxx'x equity holders, as applicable;
(b) within forty-five (45) 45 days after the end of each of the first three fiscal quarters of each fiscal year, Parent’s the consolidated and combined balance sheets sheet and related statements of income income, stockholders' equity and cash flows, flows showing the financial condition of Parent the Borrower and its consolidated Subsidiaries on a consolidated basis as of the close of such fiscal quarter and the results of their its operations and the operations of such Subsidiaries during such fiscal quarter and the then-then elapsed portion of the fiscal year, each all certified by a Responsible Officer one of Parent its Financial Officers as fairly presenting in all material respects the financial condition and results of operations of Parent the Borrower and its consolidated Subsidiaries on a consolidated basis in accordance with GAAPGAAP consistently applied, subject to normal year-end audit adjustments and the absence of footnotes; provided that the foregoing delivery requirement shall be satisfied if Parent shall have filed with the SEC its Quarterly Report on Form 10-Q for such fiscal quarter, which is available to the public via XXXXX or any similar successor systemadjustments;
(c) within 30 days after the time period end of each of the first two months of each fiscal quarter, the consolidated and combined 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 month and the results of its operations and the operations of such Subsidiaries during such month and the then elapsed portion of the fiscal year, all certified by one of its Financial Officers as fairly presenting the financial condition and results of operations of the 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 Section 5.01(asub- paragraph (a), (b) or (c) above, a certificate of a Responsible the accounting firm or Financial Officer of the Borrower opining on or certifying thatsuch statements (which certificate, when furnished by an accounting firm, may be limited to the knowledge of such Responsible Officer, accounting matters and disclaim responsibility for legal interpretations) (i) certifying that no Event of Default or Default has occurred and is continuing, or, if, to the knowledge of such Responsible Officer, if such an Event of Default or Default has occurred and is continuingoccurred, specifying the nature and extent thereof and any corrective action taken or proposed to be taken with respect thereto;
thereto and (dii) within with respect to the time period financial statements delivered under sub-paragraph (a) and or (b) of this Section 5.01above, an Officer’s Certificate demonstrating setting forth computations in reasonable detail satisfactory to the Administrative Agent demonstrating whether or not there has been compliance with Section 6.08 as of the end of the preceding fiscal quartercovenants contained in Sections 6.11 through 6.13;
(e) within 12 days after the end of each calendar month (i) a certificate (a "Borrowing Base Certificate") showing the Borrowing Base as of the close of business on the last day of such calendar month, each such Certificate to be certified as complete and correct on behalf of the Borrower by a Financial Officer of the Borrower, and (ii) such supporting documentation and additional reports with respect to the Borrowing Base as the Collateral Agent shall reasonably request;
(f) promptly after the occurrence thereofsame become publicly available, written notice copies of all periodic and other reports, proxy statements and other materials filed by the Borrower or any Subsidiary with the Securities and Exchange Commission, or any Governmental Authority succeeding to any or all of the termination functions of a Plan said Commission, or with any national securities exchange, or distributed to its shareholders, as the case may be;
(g) Intentionally Omitted; and
(h) promptly, from time to time, such other information regarding the operations, business affairs and financial condition of the Borrower or an ERISA Affiliate pursuant to Section 4042 any Subsidiary, or compliance with the terms of ERISAany Loan Document, to any Securitization Document or the extent such termination would constitute an Event of Default under Section 7.01(j);Lease, as the Administrative Agent, the Collateral Agent or any Lender may reasonably request.
Appears in 1 contract
Samples: Credit Agreement (Ryder TRS Inc)
Financial Statements, Reports, etc. The Borrower shall deliver Deliver to the Administrative Agent on behalf of the Lenders:
(a) within Within ninety (90) days after the end of each fiscal year, Parentthe Borrower’s consolidated balance sheet and related statement of income and cash flows, showing the financial condition of Parent the Borrower and its Subsidiaries on a consolidated basis as of the close of such fiscal year and the results of their respective operations during such year, such the consolidated financial statements statement of Parent the Borrower to be audited for Parent the Borrower by Ernst & Young LLP or other independent public accountants of recognized national standing and to be accompanied by an opinion of such accountants (which opinion shall be unqualified without a “going concern” or like qualification or exception and without any more qualification or exception as to the scope of such audit, except for any such qualification solely as a result of (x) an impending debt maturity within twelve (12) months of the Term Loan Facility under this Agreement or (y) a potential inability to satisfy any financial covenant) and to be certified by a Responsible Officer of the Borrower to the effect that such consolidated financial statements fairly present in all material respects the financial condition and results of operations of Parent the Borrower and its Subsidiaries on a consolidated basis in accordance with GAAP; provided that . Documents required to be delivered pursuant to this clause (a) which are made publicly available via XXXXX, or any successor system of the foregoing delivery requirement shall be satisfied if Parent shall have filed with SEC, in the SEC its Borrower’s Annual Report on Form 10-K for such fiscal yearK, which is available shall be deemed delivered to the public via XXXXX or any similar successor systemLenders on the date such documents are made so available;
(b) within Within forty-five (45) days after the end of each of the first three (3) fiscal quarters of each fiscal year, Parentthe Borrower’s consolidated balance sheets and related statements of income and cash flows, showing the financial condition of Parent the Borrower and its Subsidiaries on a consolidated basis as of the close of such fiscal quarter and the results of their operations during such fiscal quarter and the then-then elapsed portion of the fiscal year, each certified by a Responsible Officer of Parent the Borrower as fairly presenting in all material respects the financial condition and results of operations of Parent the Borrower and its Subsidiaries on a consolidated basis in accordance with GAAP, subject to normal year-end audit adjustments and the absence of footnotes; provided that . Documents required to be delivered pursuant to this clause (b) which are made publicly available via XXXXX, or any successor system of the foregoing delivery requirement shall be satisfied if Parent shall have filed with SEC, in the SEC its Borrower’s Quarterly Report on Form 10-Q for such fiscal quarterQ, which is available shall be deemed delivered to the public via XXXXX or any similar successor systemLenders on the date such documents are made so available;
(c) within the time period concurrently with any delivery of financial statements under Section 5.01(a)(a) and (b) above, a certificate of a Responsible Officer of the Borrower (in substantially the form of Exhibit A) (i) certifying that, to the knowledge of such Responsible Officer, no Event of Default has occurred and is continuingoccurred, or, if, to the knowledge of such Responsible Officer, such an Event of Default has occurred and is continuingoccurred, 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 provisions of Section 6.03 at such times as specified therein;
(d) within the time period under (a) and (b) of this Section 5.01, an Officer’s Certificate demonstrating in reasonable detail compliance with Section 6.08 as of the end of the preceding fiscal quarter;
(e) promptly after the occurrence thereof, prompt written notice of the termination of a Plan of the Borrower any Termination Event that has occurred, or an ERISA Affiliate pursuant is reasonably expected to Section 4042 of ERISAoccur, to the extent such termination Termination Event would constitute an Event of Default under Section 7.01(j7.01(l);
(e) promptly after a Responsible Officer of the Borrower obtains knowledge of the filing or commencement of any action, suit or proceeding by or before any arbitrator or Governmental Authority against or affecting the Borrower or any Subsidiary that could reasonably be expected to result in a Material Adverse Effect, notification thereof;
(f) [reserved];
(g) promptly after a Responsible Officer obtains knowledge thereof, notice that, with respect to any Primary Routes, the authority granted to the Borrower by the DOT, any Governmental Authority or any applicable Foreign Aviation Authority relating to such Primary Routes, to the extent necessary to operate the scheduled air carrier services being operated by the Borrower, will not be renewed, other than in cases where such failure of renewal would not reasonably be expected to result in a Material Adverse Effect;
(I) concurrently with any delivery of financial statements under clauses (a) and (b) above solely in respect of (i) the end of each fiscal year of the Borrower (commencing with the fiscal year ending December 31, 2020) and (ii) the end of each second fiscal quarter of each fiscal year of the Borrower (commencing with the fiscal quarter ending June 30, 2021), (II) as required by Section 6.05 and (III) to the extent required in connection with any Permitted Disposition, an updated calculation of the Collateral Coverage Ratio, reflecting the most recent Appraisal Reports delivered to the Administrative Agent in respect of the Collateral pursuant to the terms hereof; and
(i) if an Event of Default has occurred and is continuing, any subsequent Appraisal Report reasonably requested by the Administrative Agent or the Required Lenders, in each case as soon as reasonably practicable after receipt by the Borrower of such request. Subject to the next succeeding sentence, information delivered pursuant to this Section 5.01 to the Administrative Agent may be made available by the Administrative Agent to the Lenders by posting such information on the Intralinks website on the Internet at xxxx://xxx.xxxxxxxxxx.xxx. Information delivered pursuant to this Section 5.01 may also be delivered by electronic communication pursuant to procedures approved by the Administrative Agent pursuant to Section 10.01 hereto. Information required to be delivered pursuant to this Section 5.01 (to the extent not made available as set forth above) shall be deemed to have been delivered to the Administrative Agent on the date on which the Borrower provides written notice to the Administrative Agent that such information has been posted on the Borrower’s website on the Internet at xxxx://xxx.xxxxx.xxx (to the extent such information has been posted or is available as described in such notice). Information required to be delivered pursuant to this Section 5.01 shall be in a format which is suitable for transmission. Any notice or other communication delivered pursuant to this Section 5.01, or otherwise pursuant to this Agreement, shall be deemed to contain material non-public information unless (i) expressly marked by the Borrower as “PUBLIC”, (ii) such notice or communication consists of copies of the Borrower’s public filings with the SEC or (iii) such notice or communication has been posted on the Borrower’s website on the Internet at xxxx://xxx.xxxxx.xxx.
Appears in 1 contract
Financial Statements, Reports, etc. The Borrower shall deliver Furnish to the Administrative Agent on behalf of (which will promptly furnish such information to the Lenders:):
(a) within ninety [Reserved];
(90b) On or prior to the date that is the earliest to occur of (A) 95 days after the end of each such fiscal year, Parent’s (B) the date a report for such fiscal year on Form 10-K is required to be delivered to the SEC and (C) the date on which the financial statements described below in this paragraph (b) are filed with the SEC, a consolidated balance sheet and related statement statements of income operations, cash flows and cash flows, owners’ equity showing the financial condition position of Parent Intermediate Holdings and its Subsidiaries on a consolidated basis as of the close of such fiscal year and the consolidated results of their respective operations during such year and setting forth in comparative form the corresponding figures for the prior fiscal year, such which consolidated financial balance sheet and related statements of Parent to operations, cash flows and owners’ equity shall be audited for Parent by independent public accountants of recognized national standing and to be accompanied by an opinion of such accountants (which opinion shall not be unqualified qualified as to scope of such auditaudit or as to the status of Intermediate Holdings or any Material Subsidiary as a going concern) to the effect that such consolidated financial statements fairly present present, in all material respects respects, the financial condition position and results of operations of Parent Intermediate Holdings and its Subsidiaries on a consolidated basis in accordance with GAAP; provided GAAP (it being understood that the foregoing delivery requirement shall be satisfied if Parent shall have filed with the SEC its Annual Report by Intermediate Holdings of annual reports on Form 10-K for such fiscal year, which is available of Intermediate Holdings and its consolidated Subsidiaries shall satisfy the requirements of this Section 5.04(b) to the public via XXXXX or any similar successor systemextent such annual reports include the information specified herein);
(bc) within forty-five (45) days after on or prior to the end date that is, in the case of each of the first three fiscal quarters of each fiscal year, Parent’s the earliest of (A) 50 days after the end of such quarter, (B) the date a report for such fiscal quarter is required to be filed with the SEC on Form 10-Q and (C) the date on which the financial statements described below in this paragraph (c) are filed with the SEC, (i) a consolidated balance sheets sheet and related statements of income operations and cash flows, flows showing the financial condition position of Parent Intermediate Holdings and its Subsidiaries on a consolidated basis as of the close of such fiscal quarter and the consolidated results of their operations during such fiscal quarter and the then-elapsed portion of the fiscal year and setting forth in comparative form the corresponding figures for the corresponding periods of the prior fiscal year, each and (ii) management’s discussion and analysis of significant operational and financial developments during such quarterly period, all of which shall be in reasonable detail and which consolidated balance sheet and related statements of operations and cash flows shall be certified by a Responsible Financial Officer of Parent Intermediate Holdings on behalf of Intermediate Holdings as fairly presenting presenting, in all material respects respects, the financial condition position and results of operations of Parent Intermediate Holdings and its Subsidiaries on a consolidated basis in accordance with GAAP, GAAP (subject to normal year-end audit adjustments and the absence of footnotes; provided ) (it being understood that the foregoing delivery requirement shall be satisfied if Parent shall have filed with the SEC its Quarterly Report by Intermediate Holdings of quarterly reports on Form 10-Q for such fiscal quarter, which is available of Intermediate Holdings and its consolidated Subsidiaries shall satisfy the requirements of this Section 5.04(c) to the public via XXXXX or any similar successor systemextent such quarterly reports include the information specified herein);
(d) (x) concurrently with any delivery of financial statements under paragraphs (b) or (c) within the time period under Section 5.01(a)above, a certificate of a Responsible Financial Officer of the Borrower Intermediate Holdings (i) certifying that, to the knowledge of such Responsible Officer, that no Event of Default or Default has occurred and is continuing, or, if, to the knowledge of such Responsible Officer, if such an Event of Default or Default has occurred and is continuingoccurred, specifying the nature and extent thereof and any corrective action taken or proposed to be taken with respect thereto;
, (dii) within setting forth computations in reasonable detail demonstrating compliance with the time period under Financial Performance Covenant, regardless of whether it is then being tested, (aiii) certifying a list of names of all Immaterial Subsidiaries, that each Subsidiary set forth on such list individually qualifies as an Immaterial Subsidiary and that all such Subsidiaries in the aggregate do not exceed the limitation set forth in clause (b) of this Section 5.01the definition of the term Immaterial Subsidiary, (iv) certifying a list of names of all Unrestricted Subsidiaries and that each Subsidiary set forth on such list qualifies as an Officer’s Certificate demonstrating Unrestricted Subsidiary, (v) setting forth computations and other information in reasonable detail compliance with Section 6.08 of the Cumulative Credit as of the end of the preceding applicable fiscal quarterquarter and any application of the Cumulative Credit to investments, dividends and other payments during such quarter and (vi) concurrently with any delivery of financial statements under paragraph (b) above, if the accounting firm is not restricted from providing such a certificate by its policies of its national office, a certificate of the accounting firm opining on or certifying such statements stating whether they obtained knowledge during the course of their examination of such statements of any Default or Event of Default with respect to the Financial Performance Covenant (which certificate may be limited to accounting matters and disclaim responsibility for legal interpretations);
(e) promptly after the occurrence thereofsame become publicly available, written notice copies of all periodic and other publicly available reports, proxy statements and, to the extent requested by the Administrative Agent or the Designated Lender, other materials filed by Intermediate Holdings or any of the termination Subsidiaries with the SEC, or after an initial public offering, distributed to its stockholders generally, as applicable; provided, however, that such reports, proxy statements, filings and other materials required to be delivered pursuant to this clause (e) shall be deemed delivered for purposes of this Agreement when posted to the public website of Intermediate Holdings or publicly available through the XXXXX System;
(f) within 90 days after the beginning of each fiscal year, a reasonably detailed consolidated annual budget for such fiscal year (including a projected consolidated balance sheet of Intermediate Holdings and its Subsidiaries as of the end of such fiscal year, and the related consolidated statements of projected cash flow and projected income), including a description of underlying assumptions with respect thereto (collectively, the “Budget”), which Budget shall in each case be accompanied by the statement of a Plan Financial Officer of Intermediate Holdings to the effect that the Budget is based on assumptions believed by such Financial Officer to be reasonable as of the Borrower or date of delivery thereof;
(g) upon the reasonable request of the Collateral Agent, an ERISA Affiliate pursuant to Section 4042 of ERISAupdated Perfection Certificate (or, to the extent such termination would constitute an Event request relates to specified information contained in the Perfection Certificate, such information) reflecting all changes since the date of Default under the information most recently received pursuant to this paragraph (g) or Section 7.01(j5.10;
(h) promptly, from time to time, such other information regarding the operations, business affairs and financial condition of Intermediate Holdings or any of the Subsidiaries, or compliance with the terms of any Loan Document, as in each case the Administrative Agent or the Designated Lender may reasonably request (for itself or on behalf of any Lender);
(i) in the event that in respect of any Notes, and any Refinancing Indebtedness with respect thereto, the rules and regulations of the SEC permit Intermediate Holdings, Holdings or any Parent Entity to report at Holdings’s or such Parent Entity’s level on a consolidated basis such consolidated reporting at Holdings’s or such Parent Entity’s level, as applicable, in a manner consistent with that described in paragraphs (b) and (c) of this Section 5.04 for Intermediate Holdings and its Subsidiaries (together with a reconciliation showing the adjustments necessary to determine compliance by Intermediate Holdings and its Subsidiaries with the Financial Performance Covenant) will satisfy the requirements of such paragraphs;
(j) promptly upon request by the Administrative Agent or the Designated Lender, copies of: (i) each Schedule B (Actuarial Information) to the most recent annual report (Form 5500 Series) filed with the Internal Revenue Service with respect to a Plan; (ii) the most recent actuarial valuation report for any Plan; (iii) all notices received from a Multiemployer Plan sponsor, a plan administrator or any governmental agency, or provided to any Multiemployer Plan by Intermediate Holdings, any Subsidiary or any ERISA Affiliate, concerning an ERISA Event; and (iv) such other documents or governmental reports or filings relating to any Plan or Multiemployer Plan as the Administrative Agent or the Designated Lender shall reasonably request and, with respect to any employee pension benefit plan or other employee benefit plan governed by the laws of a jurisdiction other than the United States, any available annual reports, actuarial valuation reports or notices from plan sponsors or any governmental entity with respect to such plans;
(k) promptly upon Intermediate Holdings or any Borrower becoming aware of any fact or condition which would reasonably be expected to result in an ERISA Event, Intermediate Holdings and the applicable Borrower shall deliver to Administrative Agent a summary of such facts and circumstances and any action Intermediate Holdings or the applicable Borrower or other Subsidiary intends to take regarding such facts or conditions;
Appears in 1 contract
Samples: Amendment Agreement (Momentive Performance Materials Inc.)
Financial Statements, Reports, etc. The Borrower shall deliver Furnish to the Administrative Agent on behalf of the Lendersand each Lender:
(a) within ninety (90) 120 days after the end of each fiscal yearyear (commencing with fiscal year 2014), Parent’s (i) a consolidated balance sheet and related statement statements of income operations, cash flows and cash flows, owners’ equity showing the financial condition position of Parent the Borrower and its Subsidiaries on a consolidated basis as of the close of such fiscal year and the consolidated results of their respective its operations during such year and setting forth in comparative form the corresponding figures for the prior fiscal year, such which consolidated financial balance sheet and related statements of Parent to operations, cash flows and owners’ equity shall be audited for Parent by Xxxxx Xxxxxxxx LLP or other independent public accountants of recognized national standing and to be accompanied by an opinion of such accountants (which opinion shall be unqualified 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 present, in all material respects respects, the financial condition position and results of operations of Parent the Borrower and its Subsidiaries on a consolidated basis in accordance with GAAP; provided GAAP (it being understood that the foregoing delivery requirement shall be satisfied if Parent shall have filed with by the SEC its Annual Report Borrower of annual reports on Form 10-K for such fiscal year, which is available of the Borrower and its consolidated Subsidiaries shall satisfy the requirements of this Section 5.04(a) to the public via XXXXX or any similar successor systemextent such annual reports include the information specified herein) and (ii) supporting schedules reconciling such consolidated balance sheet and related statements of operations, cash flows and owners’ equity with the Combined financial position and results of operations of the Borrower for the relevant period;
(b) within forty-five (45) 60 days after the end of the fiscal quarter ending September 30, 2014 and within 45 days after the end of each of the first three fiscal quarters of each fiscal yearyear thereafter, Parent’s (i) a consolidated balance sheets sheet and related statements of income operations and cash flows, flows showing the financial condition position of Parent the Borrower and its Subsidiaries on a consolidated basis as of the close of such fiscal quarter and the consolidated results of their its operations during such fiscal quarter and the then-elapsed portion of the fiscal year and setting forth in comparative form the corresponding figures for the corresponding periods of the prior fiscal year, each all of which shall be in reasonable detail and which consolidated balance sheet and related statements of operations and cash flows shall be certified by a Responsible Financial Officer of Parent the Borrower on behalf of the Borrower as fairly presenting presenting, in all material respects respects, the financial condition position and results of operations of Parent the Borrower and its Subsidiaries on a consolidated basis in accordance with GAAPGAAP (subject to normal year- end audit adjustments and the absence of footnotes) (it being understood that the delivery by the Borrower of quarterly reports on Form 10-Q of the Borrower and its consolidated Subsidiaries shall satisfy the requirements of this Section 5.04(b) to the extent such quarterly reports include the information specified herein) and (ii) supporting schedules reconciling such consolidated balance sheet and related statements of operations, cash flows and owners’ equity with the Combined financial position and results of operations of the Borrower for the relevant period;
(c) within 45 days after the end of each month of the fiscal year ending December 31, 2014 (commencing with the first full month ending following the Closing Date) and within 30 days after the end of each month thereafter, a consolidated balance sheet and related statements of operations and cash flows showing the financial position of the Borrower and its Subsidiaries as of the close of such month and the consolidated results of its operations during such month and the then-elapsed portion of the fiscal year and setting forth in comparative form the corresponding figures for such month from the Budget and the corresponding periods of the prior fiscal year, all of which shall be in reasonable detail and which consolidated balance sheet and related statements of operations and cash flows shall be certified by a Financial Officer of the Borrower on behalf of the Borrower as fairly presenting, in all material respects, the financial position and results of operations of the Borrower and its Subsidiaries on a consolidated basis in accordance with GAAP (subject to normal year-end audit adjustments and the absence of footnotes; provided that the foregoing delivery requirement shall be satisfied if Parent shall have filed with the SEC its Quarterly Report on Form 10-Q for such fiscal quarter, which is available to the public via XXXXX or any similar successor system);
(i) concurrently with any delivery of financial statements under paragraphs (a), (b) or (c) within the time period under Section 5.01(a)above, a certificate of a Responsible Financial Officer of the Borrower in substantially the form attached hereto as Exhibit I certifying that, to the knowledge of such Responsible Officer, that no Event of Default or Default has occurred and is continuing, or, if, to the knowledge of such Responsible Officer, if such an Event of Default or Default has occurred and is continuingoccurred, specifying the nature and extent thereof and any corrective action taken or proposed to be taken with respect thereto;
, (dii) within the time period concurrently with any delivery of financial statements under paragraphs (a) and or (b) of this Section 5.01), an Officer’s Certificate demonstrating in reasonable detail compliance commencing with Section 6.08 as of the end of the preceding fiscal quarter;
(e) promptly after the occurrence thereofquarter ending June 30, written notice of the termination 2014, a certificate of a Plan Financial Officer of the Borrower or an ERISA Affiliate pursuant to Section 4042 of ERISA, in substantially the form attached hereto as Exhibit I setting forth computations in detail reasonably satisfactory to the extent such termination would constitute an Event of Default under Section 7.01(j);Required Lenders demonstrating compliance with the Financial Performance Covenants,
Appears in 1 contract
Samples: First Lien Credit Agreement
Financial Statements, Reports, etc. The Borrower shall deliver to the Administrative Agent on behalf of the Lenders:
(a) within Within ninety (90) days after the end of each fiscal year, Parent’s consolidated balance sheet and related statement of income and cash flows, showing the financial condition of Parent and its Subsidiaries on a consolidated basis as of the close of such fiscal year and the results of their respective operations during such year, such the consolidated financial statements statement of Parent to be audited for Parent by independent public accountants of recognized national standing and to be accompanied by an opinion of such accountants (which opinion shall be unqualified without any qualification or exception as to the scope of such audit) to the effect that such consolidated financial statements fairly present in all material respects the financial condition and results of operations of Parent and its Subsidiaries on a consolidated basis in accordance with GAAP; provided that the foregoing delivery requirement shall be satisfied if Parent shall have filed with the SEC its Annual Report on Form 10-K for such fiscal year, which is available to the public via XXXXX or any similar successor system;
(b) within Within forty-five (45) days after the end of each of the first three fiscal quarters of each fiscal year, Parent’s consolidated balance sheets and related statements of income and cash flows, showing the financial condition of Parent and its Subsidiaries on a consolidated basis as of the close of such fiscal quarter and the results of their operations during such fiscal quarter and the then-then elapsed portion of the fiscal year, each certified by a Responsible Officer of the Parent as fairly presenting in all material respects the financial condition and results of operations of Parent and its Subsidiaries on a consolidated basis in accordance with GAAP, subject to normal year-year end audit adjustments and the absence of footnotes; provided that the foregoing delivery requirement shall be satisfied if Parent shall have filed with the SEC its Quarterly Report on Form 10-Q for such fiscal quarter, which is available to the public via XXXXX or any similar successor system;
(c) within Within the time period under Section 5.01(a)) above, a certificate of a Responsible Officer of the Borrower Parent certifying that, to the knowledge of such Responsible Officer, no Event of Default has occurred and is continuing, or, if, to the knowledge of such Responsible Officer, such an Event of Default has occurred and is continuing, specifying the nature and extent thereof and any corrective action taken or proposed to be taken with respect thereto;
(d) within Within the time period under (a) and (b) of this Section 5.01, an Officer’s Certificate a certificate of a Responsible Officer demonstrating in reasonable detail compliance with Section 6.08 as of the end of the preceding fiscal quarter;
(e) promptly A Collateral Coverage Ratio Certificate, as and when required under Section 6.09(a) or Section 6.04(ii)(c).
(f) Promptly after the occurrence thereof, written notice of the termination of a Plan of the Borrower or an ERISA Affiliate pursuant to Section 4042 of ERISA, ERISA to the extent such termination would constitute an Event of Default;
(g) So long as any Commitment, Loan is outstanding, promptly after the Chief Financial Officer or the Treasurer of the Parent becoming aware of the occurrence of a Default under or UAL Term Loan Credit Agreement 2020 an Event of Default that is continuing, an Officer’s Certificate specifying such Default or Event of Default and what action the Parent and its Subsidiaries are taking or propose to take with respect thereto; and
(h) Promptly, from time to time, such other information regarding the Collateral and the operations, business affairs and financial condition of the Borrower or any Guarantor, in each case as the Administrative Agent, at the request of any Lender, may reasonably request. Subject to the next succeeding sentence, information delivered pursuant to this Section 7.01(j5.01 to the Administrative Agent may be made available by the Administrative Agent to the Lenders by posting such information on the Intralinks website on the Internet at xxxx://xxx.xxxxxxxxxx.xxx. Information required to be delivered pursuant to this Section 5.01 by the Borrower shall be delivered pursuant to Section 10.01 hereto. Information required to be delivered pursuant to this Section 5.01 (to the extent not made available as set forth above) shall be deemed to have been delivered to the Administrative Agent on the date on which the Borrower provides written notice to the Administrative Agent that such information has been posted on the Borrower’s general commercial website on the Internet (to the extent such information has been posted or is available as described in such notice);, as such website may be specified by the Borrower to the Administrative Agent from time to time. Information required to be delivered pursuant to this Section 5.01 shall be in a format which is suitable for transmission. Any notice or other communication delivered pursuant to this Section 5.01, or otherwise pursuant to this Agreement, shall be deemed to contain material non-public information unless (i) expressly marked by the Borrower or a Guarantor as “PUBLIC”, (ii) such notice or communication consists of copies of the Borrower’s public filings with the SEC or (iii) such notice or communication has been posted on the Borrower’s general commercial website on the Internet, as such website may be specified by the Borrower to the Administrative Agent from time to time.
Appears in 1 contract
Samples: Term Loan Credit and Guaranty Agreement (United Airlines, Inc.)
