Financial Statements, Reports, etc. Furnish to the Agents and each Lender: (a) within 90 days after the end of each fiscal year, a consolidated balance sheet and related statements of operations, cash flows and owners' equity or stockholders' equity showing the financial position of each of Holdings and its Subsidiaries and the Borrower and its Subsidiaries as of the close of such fiscal year and the consolidated results of their operations during such year, all audited by independent public accountants of recognized national standing reasonably acceptable to the Administrative Agent and accompanied by an opinion of such accountants (which shall not be qualified in any material respect) to the effect that such consolidated financial statements fairly present, in all material respects, the financial position and results of operations of each of Holdings and its Subsidiaries and the Borrower and its Subsidiaries on a consolidated basis in accordance with GAAP, it being understood that the delivery by Holdings of its Form 10-K as filed with the SEC shall satisfy its requirements (but not those of the Borrower and its Subsidiaries) under this Section 5.04(a); (b) within 45 days after the end of each of the first three fiscal quarters of each fiscal year, a consolidated balance sheet and related statements of operations and cash flows showing the financial position of each of Holdings and its Subsidiaries 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, all certified by a Financial Officer of Holdings or the Borrower, as the case may be, on behalf of Holdings or the Borrower, respectively, as fairly presenting, in all material respects, the financial position and results of operations of 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 GAAP (except for the absence of footnotes), subject to normal year-end audit adjustments, it being understood that the delivery by Holdings of its Form 10-Q as filed with the SEC shall satisfy its requirements (but not those of the Borrower and its Subsidiaries) under this Section 5.04(b); (c) concurrently with any delivery of financial statements under (a) or (b) above, a certificate of the accounting firm or Financial Officer on behalf of the Borrower opining on or certifying such statements (which certificate, when furnished by an accounting firm, may be limited to accounting matters and disclaim responsibility for legal interpretations) (i) certifying that no Event of Default or Default has occurred or, if such an Event of Default or Default has occurred, specifying the nature and extent thereof and any corrective action taken or proposed to be taken with respect thereto and (ii) setting forth computations in reasonable detail satisfactory to the Administrative Agent demonstrating compliance with the covenants contained in Sections 6.10, 6.11 and 6.12 (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) 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 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 Holdings or the Borrower, as the case may be, reconciling such changes to what the financial statements would have been without such changes; (f) 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 receipt thereof by Holdings, the Borrower or 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 time, such other information regarding the operations, business affairs and financial condition of Holdings, the Borrower or any of their Subsidiaries, or compliance with the terms of any Loan Document, or such consolidating financial statements, as in each case the Agents or any Lender, acting through the Administrative Agent, may reasonably request.
Appears in 2 contracts
Samples: Credit Agreement (Graham Packaging Holdings Co), Credit Agreement (Graham Packaging Holdings Co)
Financial Statements, Reports, etc. Furnish to the Agents and each Lender:Administrative Agent (which will promptly furnish such information to the Lenders):
(a) within 90 days (or, if applicable, such shorter period as the SEC shall specify for the filing of annual reports on Form 10-K or on any applicable equivalent form) after the end of each fiscal year, year a consolidated balance sheet and related statements of operations, cash flows and owners' equity or stockholders' ’ equity showing the financial position of each of Holdings and its Subsidiaries and the Borrower Company and its Subsidiaries as of the close of such fiscal year and the consolidated results of their operations during such fiscal year and setting forth in comparative form the corresponding figures for the prior fiscal year, all which consolidated balance sheets and related statements of operations, cash flows and owners’ equity shall be audited by PricewaterhouseCoopers, LLP or other independent public accountants of recognized national standing reasonably acceptable to the Administrative Agent and accompanied by an opinion of such accountants (which opinion shall not be qualified in as to scope of audit or as to the status of the Company or any material respectMaterial Subsidiary as a going concern; provided that for the fiscal years ending December 31, 2020 and December 31, 2021, any such opinion may contain a going concern explanatory paragraph or like qualification that is due to the impending maturity of any Indebtedness within twelve months of the date of delivery of such audit or any actual or potential inability to satisfy any financial covenant) to the effect that such consolidated financial statements fairly present, in all material respects, the financial position and results of operations of each of Holdings and its Subsidiaries and the Borrower Company and its Subsidiaries on a consolidated basis in accordance with GAAP, GAAP (it being understood that the delivery by Holdings the Company of its annual reports on Form 10-K as filed with or the SEC equivalent of the Company and its consolidated Subsidiaries shall satisfy its the requirements of this (but not those of a) to the Borrower and its Subsidiaries) under this Section 5.04(aextent such annual reports include the information specified herein);
(b) within 45 days (or, if applicable, such shorter period as the SEC shall specify for the filing of quarterly reports on Form 10-Q or on any applicable equivalent form) after the end of each of the first three fiscal quarters of each fiscal year, a consolidated balance sheet and related statements of operations and cash flows showing the financial position of each of Holdings and its Subsidiaries and the Borrower Company and its Subsidiaries as of the close of such fiscal quarter and the consolidated results of their operations during such fiscal quarter and the then-elapsed portion of the fiscal year and setting forth in comparative form the corresponding figures for the corresponding periods of the prior fiscal year, all of which shall be in reasonable detail and which consolidated balance sheet and related statements of operations and cash flows shall be certified by a Financial Officer of Holdings or the Borrower, as the case may be, Company on behalf of Holdings or the Borrower, respectivelyCompany, as fairly presenting, in all material respects, the financial position and results of operations of Holdings and its Subsidiaries or the Borrower Company and its Subsidiaries, as the case may be, in each case on a consolidated basis in accordance with GAAP (except for the absence of footnotes), subject to normal year-end audit adjustments, adjustments and the absence of footnotes) (it being understood that the delivery by Holdings the Company of its quarterly reports on Form 10-Q as filed with of the SEC Company and its consolidated Subsidiaries shall satisfy its the requirements of this (but not those of b) to the Borrower and its Subsidiaries) under this Section 5.04(bextent such quarterly reports include the information specified herein);
(c) (x) concurrently with any delivery of financial statements under paragraphs (a) or (b) above, a certificate of the accounting firm or a Financial Officer on behalf of the Borrower opining on or certifying such statements (which certificate, when furnished by an accounting firm, may be limited to accounting matters and disclaim responsibility for legal interpretations) Company (i) certifying that no Event of Default or Default has occurred or, if such an Event of Default or Default has occurred, specifying the nature and extent thereof and any corrective action taken or proposed to be taken with respect thereto and thereto, (ii) setting forth computations in reasonable detail satisfactory to the Administrative Agent demonstrating compliance with the covenants contained set forth in Sections 6.106.12, 6.11 6.13, 6.14, and 6.12 6.15, (it being understood iii) setting forth the calculation and uses of the Cumulative Credit for the fiscal period then ended if the Company shall have used the Cumulative Credit for any purpose during such fiscal period, and (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 information required by this aggregate do not exceed the limitation set forth in clause (iib) may be provided in of the definition of the term “Immaterial 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 applicable office, a certificate of a Financial Officer the accounting firm opining on behalf or certifying such statements stating whether they obtained knowledge during the course of the Borrower instead their examination of from such statements of any Default or Event of Default (which certificate may be limited to accounting firmmatters 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 Company or any of their Subsidiaries Subsidiary with the SEC, or after an initial public offering, distributed to its shareholders stockholders generally, as applicable; provided, however, that such reports, proxy statements, filings and other materials required to be delivered pursuant to this clause (d) or any other clause of this Section 5.04 shall be deemed delivered for purposes of this Agreement when posted to the case may bewebsite of the Company or the SEC;
(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 Holdings or the Borrower, as the case may be, reconciling such changes to what the financial statements would have been without such changes;
(f) within 30 90 days after the beginning of each fiscal year, a reasonably detailed consolidated quarterly 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, (including a projected consolidated balance sheet of Holdings the Company and its SubsidiariesSubsidiaries 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 Holdings the Company to the effect that, that the Budget is based on assumptions believed by such Financial Officer to be reasonable as of the best date of his knowledge, the budget is a reasonable estimate for the period covered therebydelivery thereof;
(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 receipt thereof by Holdings, the Borrower or 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
(jf) promptly, from time to time, such other information (i) regarding the operations, business affairs and financial condition of Holdings, the Borrower Company or any of their the Subsidiaries, or (ii) regarding compliance with the terms of any Loan Document, or (iii) regarding such consolidating financial statementsstatements or (iv) required under the USA PATRIOT Act or the Beneficial Ownership Regulation, as in each case the Agents Administrative Agent may reasonably request (for itself or on behalf of any Lender);
(g) in the event that (x) any Parent Entity reports on a consolidated basis then, acting through such consolidated reporting at such Parent Entity’s level in a manner consistent with that described in paragraphs (a) and (b) of this Section 5.04 for the Administrative AgentCompany (together with a reconciliation showing the adjustments necessary to determine compliance by the Company and its Subsidiaries with the covenants set forth in Sections 6.12, may reasonably request6.13, 6.14, and 6.15 and consolidating information that explains in reasonable detail the differences between the information relating to such direct or indirect parent and its Subsidiaries, on the one hand, and the information relating to the Company and its Subsidiaries, on the other hand) will satisfy the requirements of such paragraphs.
Appears in 2 contracts
Samples: Credit Agreement (Norwegian Cruise Line Holdings Ltd.), Credit Agreement (Norwegian Cruise Line Holdings Ltd.)
Financial Statements, Reports, etc. Furnish In the case of the Borrower, furnish to the Agents Administrative Agent for distribution to the Lenders (except, in the case of the financial statements referred to in paragraphs (a) and each Lender:(b) below, to the extent such financial statements are contained in materials already delivered to the Administrative Agent pursuant to paragraph (d) below):
(a) within 90 120 days after the end of each fiscal year, a (i) its consolidated balance sheet and related statements of operationsincome and changes in financial position (or of cash flow, cash flows and owners' equity or stockholders' equity as appropriate), showing the financial position condition of each of Holdings and its Subsidiaries and the Borrower and its consolidated Subsidiaries as of the close of such fiscal year and the consolidated results of their its operations and the operations of such Subsidiaries during such year, all audited by Deloitte & Touche LLP or other independent public accountants of recognized national standing reasonably acceptable to the Administrative Agent and accompanied by an opinion of such accountants (which shall not be qualified in any material respect) to the effect that such consolidated financial statements fairly present, in all material respects, present the financial position condition and results of operations of each of Holdings and its Subsidiaries and the Borrower and its Subsidiaries on a consolidated basis in accordance with GAAPgenerally accepted accounting principles consistently applied, it being understood that and (ii) a consolidated balance sheet and related statements of income and changes in financial position (or of cash flow, as the delivery by Holdings case may be) for KGE as of the end of such fiscal year, showing the consolidated financial condition of KGE and its consolidated Subsidiaries as of the close of such fiscal year and the results of its Form 10-K as filed with operations and the SEC shall satisfy its requirements (but not those operations of such Subsidiaries during such year, all certified by a Financial Officer of the Borrower as fairly presenting the consolidated financial condition and its Subsidiariesresults 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 Administrative Agent and accompanied by an opinion of such accountants (which shall not be qualified in any material respect) under this Section 5.04(ato the effect that such financial statements fairly present the financial condition and results of operations of KGE on a consolidated basis in accordance with generally accepted accounting principles consistently applied);
(b) within 45 90 days after the end of each of the first three fiscal quarters of each fiscal year, a (i) its consolidated balance sheet and related statements of operations income and cash flows changes in financial position, showing the financial position condition of each of Holdings and its Subsidiaries and the Borrower and its consolidated Subsidiaries as of the close of such fiscal quarter and the results of its operations and the operations of such Subsidiaries during such fiscal quarter and the then elapsed portion of the fiscal year, all certified by one of its Financial Officers as fairly presenting the financial condition and results of operations of the Borrower and its consolidated 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, all certified by a one of its Financial Officer of Holdings or the Borrower, as the case may be, on behalf of Holdings or the Borrower, respectively, Officers as fairly presenting, in all material respects, presenting the financial position condition and results of operations of Holdings KGE and its consolidated Subsidiaries or the Borrower and its Subsidiaries, as the case may be, in each case on a consolidated basis in accordance with GAAP (except for the absence of footnotes)generally accepted accounting principles consistently applied, subject to normal year-end audit adjustments, it being understood that the delivery by Holdings of its Form 10-Q as filed with the SEC shall satisfy its requirements (but not those of the Borrower and its Subsidiaries) under this Section 5.04(b);
(c) concurrently with any delivery of financial statements under (a) or (b) above, a certificate of the accounting firm or a Financial Officer on behalf of the Borrower who shall, if applicable, be the Financial Officer opining on or certifying such statements (which certificate, when furnished by an accounting firm, may be limited to accounting matters and disclaim responsibility for legal interpretations) (i) certifying that no Event of Default or Default has occurred or, if such an Event of Default or Default has occurred, specifying the nature and extent thereof and any corrective action taken or proposed to be taken with respect thereto and (ii) setting forth computations in reasonable detail satisfactory to the Administrative Agent demonstrating compliance with the covenants contained in Sections 6.10, 6.11 and 6.12 (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)Section 6.1;
(d) promptly after the same become publicly available, copies of all periodic and other publicly available reportsreports on Forms 10-K, proxy statements and, to the extent requested by the Administrative Agent, other materials 10-Q or 8-K filed by Holdings, the Borrower or any of their Subsidiaries it with the SEC, or distributed to its shareholders generally, as the case may be;; and
(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 Holdings or the Borrower, as the case may be, reconciling such changes to what the financial statements would have been without such changes;
(f) 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 receipt thereof by Holdings, the Borrower or 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 time, such other information regarding the operations, business affairs and financial condition of Holdings, the Borrower or any of their Subsidiaries, Significant Subsidiary or compliance with the terms of any Loan Document, or such consolidating financial statements, as in each case the Agents Administrative Agent or any Lender, acting through the Administrative Agent, Lender may reasonably request. Any financial statement or report required to be furnished pursuant to Section 5.1(a), 5.1(b) or 5.1(d) shall be deemed to have been furnished on the date on which and, provided such date is within the period specified, such requirement will be satisfied if, (A) the Borrower files a form, report or other document with the SEC that contains such financial statement or report required hereunder or (B) the Lenders receive notice that the Administrative Agent has posted such financial statement or report on Syndtrak Online or by other similar electronic means.
Appears in 2 contracts
Samples: Credit Agreement (Westar Energy Inc /Ks), Credit Agreement (Westar Energy Inc /Ks)
Financial Statements, Reports, etc. Furnish to the Agents and each Lender:Administrative Agent (which will promptly furnish such information to the Lenders):
(a) within 90 days (or, if applicable, such shorter period as the SEC shall specify for the filing of Annual Reports on Form 10-K or, if applicable, such longer period permitted under Rule 12b-25 under the Exchange Act) after the end of each fiscal year, (i) a consolidated balance sheet and related statements of operations, cash flows and owners' equity or stockholders' ’ equity showing the financial position of each of Holdings and its Subsidiaries and the U.S. Borrower and its Subsidiaries subsidiaries as of the close of such fiscal year and the consolidated results of their its operations during such year and setting forth in comparative form the corresponding figures for the prior fiscal year and (ii) management’s discussion and analysis of significant operational and financial developments during such fiscal year, all which consolidated balance sheet and related statements of operations, cash flows and owners’ equity shall be audited by independent public accountants of recognized national standing reasonably acceptable to the Administrative Agent and accompanied by an opinion of such accountants (which shall not be qualified in any material respect) to the effect that such consolidated financial statements fairly present, in all material respects, the financial position and results of operations of each of Holdings and its Subsidiaries and the U.S. Borrower and its Subsidiaries subsidiaries on a consolidated basis in accordance with GAAP, GAAP (it being understood that the delivery by Holdings the U.S. Borrower of its Annual Reports on Form 10-K as filed with the SEC shall satisfy its requirements (but not those of the U.S. Borrower and its Subsidiaries) under consolidated subsidiaries shall satisfy the requirements of this Section 5.04(a) to the extent such Annual Reports include the information specified herein);
(b) within 45 days (or, if applicable, such shorter period as the SEC shall specify for the filing of Quarterly Reports on Form 10-Q or, if applicable, such longer period permitted under Rule 12b-25 under the Exchange Act) after the end of each of the first three fiscal quarters of each fiscal year, (i) a consolidated balance sheet and related statements of operations and cash flows showing the financial position of each of Holdings and its Subsidiaries and the U.S. Borrower and its Subsidiaries subsidiaries as of the close of such fiscal quarter and the consolidated results of their its operations during such fiscal quarter and the then-elapsed portion of the fiscal yearyear 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 Financial Officer of Holdings or the Borrower, as the case may be, U.S. Borrower on behalf of Holdings or the Borrower, respectively, U.S. Borrower as fairly presenting, in all material respects, the financial position and results of operations of Holdings and its Subsidiaries or the U.S. Borrower and its Subsidiaries, as the case may be, in each case subsidiaries on a consolidated basis in accordance with GAAP (except for the absence of footnotes), subject to normal year-end audit adjustments, adjustments and the absence of footnotes) (it being understood that the delivery by Holdings the U.S. Borrower of its Quarterly Reports on Form 10-Q as filed with the SEC shall satisfy its requirements (but not those of the U.S. Borrower and its Subsidiaries) under consolidated subsidiaries shall satisfy the requirements of this Section 5.04(b);
(c) concurrently with any delivery of financial statements under (a) or (b) above, a certificate of the accounting firm or Financial Officer on behalf of the Borrower opining on or certifying such statements (which certificate, when furnished by an accounting firm, may be limited to accounting matters and disclaim responsibility for legal interpretations) (i) certifying that no Event of Default or Default has occurred or, if such an Event of Default or Default has occurred, specifying the nature and extent thereof and any corrective action taken or proposed to be taken with respect thereto and (ii) setting forth computations in reasonable detail satisfactory to the Administrative Agent demonstrating compliance with the covenants contained in Sections 6.10, 6.11 and 6.12 (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) promptly after the same become publicly available, copies of all periodic and other publicly available reports, proxy statements and, to the extent requested by such Quarterly Reports include 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 beinformation specified herein);
(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 Holdings or the Borrower, as the case may be, reconciling such changes to what the financial statements would have been without such changes;
(f) 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 receipt thereof by Holdings, the Borrower or 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 time, such other information regarding the operations, business affairs and financial condition of Holdings, the Borrower or any of their Subsidiaries, or compliance with the terms of any Loan Document, or such consolidating financial statements, as in each case the Agents or any Lender, acting through the Administrative Agent, may reasonably request.
Appears in 2 contracts
Samples: Incremental Assumption Agreement (Momentive Specialty Chemicals Inc.), Amendment Agreement (Hexion Specialty Chemicals, Inc.)
Financial Statements, Reports, etc. Furnish to the Agents and each Lender:Administrative Agent (which will promptly furnish such information to the Lenders):
(a) within 90 days (or, if applicable, such shorter period as the SEC shall specify for the filing of annual reports on Form 10-K or on any applicable equivalent form) after the end of each fiscal year, year a consolidated balance sheet and related statements of operations, cash flows and owners' equity or stockholders' ’ equity showing the financial position of each of Holdings and its Subsidiaries and the Borrower Company and its Subsidiaries as of the close of such fiscal year and the consolidated results of their operations during such fiscal year and setting forth in comparative form the corresponding figures for the prior fiscal year, all which consolidated balance sheets and related statements of operations, cash flows and owners’ equity shall be audited by PricewaterhouseCoopers, LLP or other independent public accountants of recognized national standing reasonably acceptable to the Administrative Agent and accompanied by an opinion of such accountants (which opinion shall not be qualified in as to scope of audit or as to the status of the Company or any material respectMaterial Subsidiary as a going concern; provided that for the fiscal years ending December 31, 2020 and December 31, 2021, any such opinion may contain a going concern explanatory paragraph or like qualification that is due to the impending maturity of any Indebtedness within twelve months of the date of delivery of such audit or any actual or potential inability to satisfy any financial covenant) to the effect that such consolidated financial statements fairly present, in all material respects, the financial position and results of operations of each of Holdings and its Subsidiaries and the Borrower Company and its Subsidiaries on a consolidated basis in accordance with GAAP, GAAP (it being understood that the delivery by Holdings the Company of its annual reports on Form 10-K as filed with or the SEC equivalent of the Company and its consolidated Subsidiaries shall satisfy its the requirements of this (but not those of a) to the Borrower and its Subsidiaries) under this Section 5.04(aextent such annual reports include the information specified herein);
(b) within 45 days (or, if applicable, such shorter period as the SEC shall specify for the filing of quarterly reports on Form 10-Q or on any applicable equivalent form) after the end of each of the first three fiscal quarters of each fiscal year, a consolidated balance sheet and related statements of operations and cash flows showing the financial position of each of Holdings and its Subsidiaries and the Borrower Company and its Subsidiaries as of the close of such fiscal quarter and the consolidated results of their operations during such fiscal quarter and the then-elapsed portion of the fiscal year and setting forth in comparative form the corresponding figures for the corresponding periods of the prior fiscal year, all of which shall be in reasonable detail and which consolidated balance sheet and related statements of operations and cash flows shall be certified by a Financial Officer of Holdings or the Borrower, as the case may be, Company on behalf of Holdings or the Borrower, respectivelyCompany, as fairly presenting, in all material respects, the financial position and results of operations of Holdings and its Subsidiaries or the Borrower Company and its Subsidiaries, as the case may be, in each case on a consolidated basis in accordance with GAAP (except for the absence of footnotes), subject to normal year-end audit adjustments, adjustments and the absence of footnotes) (it being understood that the delivery by Holdings the Company of its quarterly reports on Form 10-Q as filed with of the SEC Company and its consolidated Subsidiaries shall satisfy its the requirements (but not those of the Borrower and its Subsidiaries) under this Section 5.04(b);
(c) concurrently with any delivery of financial statements under (a) or (b) above, a certificate of the accounting firm or Financial Officer on behalf of the Borrower opining on or certifying such statements (which certificate, when furnished by an accounting firm, may be limited to accounting matters and disclaim responsibility for legal interpretations) (i) certifying that no Event of Default or Default has occurred or, if such an Event of Default or Default has occurred, specifying the nature and extent thereof and any corrective action taken or proposed to be taken with respect thereto and (ii) setting forth computations in reasonable detail satisfactory to the Administrative Agent demonstrating compliance with the covenants contained in Sections 6.10, 6.11 and 6.12 (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) promptly after the same become publicly available, copies of all periodic and other publicly available reports, proxy statements and, to the extent requested by such quarterly reports include 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 beinformation specified herein);
(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 Holdings or the Borrower, as the case may be, reconciling such changes to what the financial statements would have been without such changes;
(f) 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 receipt thereof by Holdings, the Borrower or 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 time, such other information regarding the operations, business affairs and financial condition of Holdings, the Borrower or any of their Subsidiaries, or compliance with the terms of any Loan Document, or such consolidating financial statements, as in each case the Agents or any Lender, acting through the Administrative Agent, may reasonably request.
Appears in 2 contracts
Samples: Credit Agreement (Norwegian Cruise Line Holdings Ltd.), Credit Agreement (Norwegian Cruise Line Holdings Ltd.)
Financial Statements, Reports, etc. Furnish to the Agents and each Lender:Administrative Agent (which will promptly furnish such information to the Lenders):
(a) within Within 90 days after (or such other time period as specified in the end SEC’s rules and regulations with respect to non-accelerated filers for the filing of annual reports on Form 10-K), for each fiscal yearyear (commencing with the fiscal year ending January 28, 2017), a consolidated balance sheet and related statements of operations, cash flows and owners' equity or stockholders' ’ equity showing the financial position of each of Holdings and its Subsidiaries and the Borrower and its the Subsidiaries as of the close of such fiscal year and the consolidated results of their its operations during such year setting forth in comparative form the corresponding figures for the prior fiscal year, all which consolidated balance sheet and related statements of operations, cash flows and owners’ equity shall be audited by independent public accountants of recognized national standing reasonably acceptable to the Administrative Agent and accompanied by an opinion of such accountants (which shall not be qualified in as to scope of audit or as to the status of the Borrower or any material respectMaterial Subsidiary as a going concern) to the effect that such consolidated financial statements fairly present, in all material respects, the financial position and results of operations of each of Holdings and its Subsidiaries and the Borrower and its the Subsidiaries on a consolidated basis in accordance with GAAP, subject to exceptions consistent with the presentation of financial information contained in the Notes Offering Memorandum (it being understood that the delivery by Holdings filing with the SEC of its annual reports on Form 10-K as filed with the SEC shall satisfy its requirements (but not those of the Borrower and its consolidated Subsidiaries) under , or delivery by the Borrower of such reports, shall satisfy the requirements of this Section 5.04(a) to the extent such annual reports include the information specified herein);
(b) within Within 45 days after (or such other time period as specified in the end SEC’s rules and regulations with respect to non-accelerated filers for the filing of quarterly reports on Form 10-Q), for each of the first three fiscal quarters of each fiscal year, a consolidated balance sheet and related statements of operations and cash flows showing the financial position of each of Holdings and its Subsidiaries and the Borrower and its the Subsidiaries as of the close of such fiscal quarter and the consolidated results of their its operations during such fiscal quarter and the then-then elapsed portion of the fiscal year and setting forth in comparative form the corresponding figures for the corresponding periods of the prior fiscal year, all of which shall be in reasonable detail and which consolidated balance sheet and related statements of operations and cash flows shall be certified by a Financial Officer of Holdings or the Borrower, as the case may be, Borrower on behalf of Holdings or the Borrower, respectively, Borrower as fairly presenting, in all material respects, the financial position and results of operations of Holdings and its Subsidiaries or the Borrower and its Subsidiaries, as the case may be, in each case Subsidiaries on a consolidated basis in accordance with GAAP (except for the absence of footnotes), subject to normal year-end audit adjustmentsadjustments and the absence of footnotes, it being understood that the delivery by Holdings of its Form 10-Q as filed and to exceptions consistent with the SEC shall satisfy its requirements (but not those of the Borrower and its Subsidiaries) under this Section 5.04(b);
(c) concurrently with any delivery presentation of financial statements under (a) or (b) above, a certificate of the accounting firm or Financial Officer on behalf of the Borrower opining on or certifying such statements (which certificate, when furnished by an accounting firm, may be limited to accounting matters and disclaim responsibility for legal interpretations) (i) certifying that no Event of Default or Default has occurred or, if such an Event of Default or Default has occurred, specifying the nature and extent thereof and any corrective action taken or proposed to be taken with respect thereto and (ii) setting forth computations in reasonable detail satisfactory to the Administrative Agent demonstrating compliance with the covenants information contained in Sections 6.10, 6.11 and 6.12 the Notes Offering Memorandum (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) 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 their Subsidiaries filing with the SEC, or distributed to its shareholders generally, as the case may be;
(e) if, as a result SEC of any change in accounting principles and policies from those as in effect quarterly reports 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 Holdings or the Borrower, as the case may be, reconciling such changes to what the financial statements would have been without such changes;
(f) 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 Form 10-Q 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 receipt thereof by Holdings, the Borrower or 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 time, such other information regarding the operations, business affairs and financial condition of Holdings, the Borrower or any of their its consolidated Subsidiaries, or compliance with the terms delivery by the Borrower of any Loan Documentsuch reports, or shall satisfy the requirements of this Section 5.04(b) to the extent such consolidating financial statements, as in each case quarterly reports include the Agents or any Lender, acting through the Administrative Agent, may reasonably request.information specified herein);
Appears in 2 contracts
Samples: Term Loan Credit Agreement (Claires Stores Inc), Term Loan Credit Agreement
Financial Statements, Reports, etc. Furnish to the Agents and each Lender:Administrative Agent (which will promptly furnish such information to the Lenders):
(a) within 90 days (or, if applicable, such shorter period as the SEC shall specify for the filing of Annual Reports on Form 10-K if the Borrower is required to file such an Annual Report) after the end of each fiscal year, a consolidated balance sheet and related statements of operations, cash flows and owners' equity or stockholders' equity showing the financial position of each of Holdings and its Subsidiaries and the Borrower and its Subsidiaries as of the close of such fiscal year and the consolidated results of their its operations during such year and (commencing in fiscal year 2006) setting forth in comparative form the corresponding figures for the prior fiscal year, all which consolidated balance sheet and related statements of operations, cash flows and owners' equity shall be audited by independent public accountants of recognized national standing reasonably acceptable to the Administrative Agent and accompanied by an opinion of such accountants (which shall not be qualified in any material respect) to the effect that such consolidated financial statements fairly present, in all material respects, the financial position and results of operations of each of Holdings and its Subsidiaries and the Borrower and its Subsidiaries on a consolidated basis in accordance with GAAP, GAAP (it being understood that the delivery by Holdings the Borrower of its Annual Reports on Form 10-K as filed with the SEC shall satisfy its requirements (but not those of the Borrower and its Subsidiaries) under consolidated Subsidiaries shall satisfy the requirements of this Section 5.04(a5.04
(a) to the extent such Annual Reports include the information specified herein);
(b) within 45 days (or, if applicable, such shorter period as the SEC shall specify for the filing of Quarterly Reports on Form 10-Q if the Borrower is required to file such a Quarterly Report) after the end of each of the first three fiscal quarters of each fiscal yearyear (commencing with the first fiscal quarter of 2005, which may be delivered within 75 days after the end of such fiscal quarter), a consolidated balance sheet and related statements of operations and cash flows showing the financial position of each of Holdings and its Subsidiaries and the Borrower and its Subsidiaries as of the close of such fiscal quarter and the consolidated results of their its operations during such fiscal quarter and the then-elapsed portion of the fiscal year and (commencing in fiscal year 2006) setting forth in comparative form the corresponding figures for the corresponding periods of the prior fiscal year, all of which shall be in reasonable detail and which consolidated balance sheet and related statements of operations and cash flows shall be certified by a Financial Officer of Holdings or the Borrower, as the case may be, Borrower on behalf of Holdings or the Borrower, respectively, Borrower as fairly presenting, in all material respects, the financial position and results of operations of Holdings and its Subsidiaries or the Borrower and its Subsidiaries, as the case may be, in each case Subsidiaries on a consolidated basis in accordance with GAAP (except for the absence of footnotes), subject to normal year-end audit adjustments, adjustments and the absence of footnotes (it being understood that the delivery by Holdings the Borrower of its Quarterly Reports on Form 10-Q as filed with the SEC shall satisfy its requirements (but not those of the Borrower and its Subsidiaries) under consolidated Subsidiaries shall satisfy the requirements of this Section 5.04(b);
(c) concurrently with any delivery of financial statements under (a) or (b) above, a certificate of the accounting firm or Financial Officer on behalf of the Borrower opining on or certifying such statements (which certificate, when furnished by an accounting firm, may be limited to accounting matters and disclaim responsibility for legal interpretations) (i) certifying that no Event of Default or Default has occurred or, if such an Event of Default or Default has occurred, specifying the nature and extent thereof and any corrective action taken or proposed to be taken with respect thereto and (ii) setting forth computations in reasonable detail satisfactory to the Administrative Agent demonstrating compliance with the covenants contained in Sections 6.10, 6.11 and 6.12 (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) promptly after the same become publicly available, copies of all periodic and other publicly available reports, proxy statements and, to the extent requested by such Quarterly Reports include 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 beinformation specified herein);
(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 Holdings or the Borrower, as the case may be, reconciling such changes to what the financial statements would have been without such changes;
(f) 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 receipt thereof by Holdings, the Borrower or 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 time, such other information regarding the operations, business affairs and financial condition of Holdings, the Borrower or any of their Subsidiaries, or compliance with the terms of any Loan Document, or such consolidating financial statements, as in each case the Agents or any Lender, acting through the Administrative Agent, may reasonably request.
Appears in 2 contracts
Samples: Second Lien Credit Agreement (Skyterra Communications Inc), Credit Agreement (Skyterra Communications Inc)
Financial Statements, Reports, etc. Furnish to the Agents and each Lender:Administrative Agent (which will promptly furnish such information to the Lenders):
(ai) Within 90 days, for each fiscal year (commencing with the fiscal year ending January 28, 2017), a separate statement of cash flows for each of Holdings and the Borrower showing the financial position of such person as of the close of such fiscal year and (ii) within 90 days after (or such other time period as specified in the end SEC’s rules and regulations with respect to non-accelerated filers for the filing of annual reports on Form 10-K), for each fiscal yearyear (commencing with the fiscal year ending January 28, 2017), a consolidated balance sheet and related statements of operations, cash flows and owners' equity or stockholders' ’ equity showing the financial position of each of Holdings Claire’s Stores and its Subsidiaries and the Borrower and its Subsidiaries subsidiaries as of the close of such fiscal year and the consolidated results of their its operations during such year setting forth in comparative form the corresponding figures for the prior fiscal year, all which consolidated balance sheet and related statements of operations, cash flows and owners’ equity shall be audited by independent public accountants of recognized national standing reasonably acceptable to the Administrative Agent and accompanied by an opinion of such accountants (which shall not be qualified in as to scope of audit or as to the status of Claire’s Stores or any material respectof Holdings or the Borrower as a going concern) to the effect that such consolidated financial statements fairly present, in all material respects, the financial position and results of operations of each of Holdings Claire’s Stores and its Subsidiaries and the Borrower and its Subsidiaries subsidiaries on a consolidated basis in accordance with GAAP, subject to exceptions consistent with the presentation of financial information contained in the Notes Offering Memorandum (it being understood that the delivery by Holdings filing with the SEC of its annual reports on Form 10-K as filed with of Claire’s Stores and its consolidated Subsidiaries, or delivery by the SEC Claire’s Stores of such reports, shall satisfy its the requirements (but not those of the Borrower and its Subsidiaries) under this Section 5.04(a) to the extent such annual reports include the information specified herein);
(bi) Within 45 days, for each of the first three fiscal quarters of each fiscal year, a separate statement of cash flows for each of Holdings and the Borrower showing the financial position of such person as of the close of such fiscal quarter and (ii) within 45 days after (or such other time period as specified in the end SEC’s rules and regulations with respect to non-accelerated filers for the filing of quarterly reports on Form 10-Q), for each of the first three fiscal quarters of each fiscal year, a consolidated balance sheet and related statements of operations and cash flows showing the financial position of each of Holdings Claire’s Stores and its Subsidiaries and the Borrower and its Subsidiaries subsidiaries as of the close of such fiscal quarter and the consolidated results of their its operations during such fiscal quarter and the then-then elapsed portion of the fiscal year and setting forth in comparative form the corresponding figures for the corresponding periods of the prior fiscal year, all of which shall be in reasonable detail and which consolidated balance sheet and related statements of operations and cash flows shall be certified by a Financial Officer of Holdings or the Borrower, as the case may be, Claire’s Stores on behalf of Holdings or the Borrower, respectively, Claire’s Stores as fairly presenting, in all material respects, the financial position and results of operations of Holdings Claire’s Stores and its Subsidiaries or the Borrower and its Subsidiaries, as the case may be, in each case subsidiaries on a consolidated basis in accordance with GAAP (except for the absence of footnotes), subject to normal year-end audit adjustmentsadjustments and the absence of footnotes, it being understood that the delivery by Holdings of its Form 10-Q as filed and to exceptions consistent with the SEC shall satisfy its requirements (but not those of the Borrower and its Subsidiaries) under this Section 5.04(b);
(c) concurrently with any delivery presentation of financial statements under (a) or (b) above, a certificate of the accounting firm or Financial Officer on behalf of the Borrower opining on or certifying such statements (which certificate, when furnished by an accounting firm, may be limited to accounting matters and disclaim responsibility for legal interpretations) (i) certifying that no Event of Default or Default has occurred or, if such an Event of Default or Default has occurred, specifying the nature and extent thereof and any corrective action taken or proposed to be taken with respect thereto and (ii) setting forth computations in reasonable detail satisfactory to the Administrative Agent demonstrating compliance with the covenants information contained in Sections 6.10, 6.11 and 6.12 the Notes Offering Memorandum (it being understood that the information required filing with the SEC of quarterly reports on Form 10-Q of Claire’s Stores and its subsidiaries, or the delivery by this clause (ii) may be provided in a certificate Claire’s Stores of a Financial Officer on behalf of the Borrower instead of from such accounting firm);
(d) promptly after the same become publicly available, copies of all periodic and other publicly available reports, proxy statements and, shall satisfy the requirements of this Section 5.04(b) to the extent requested by such quarterly reports include the Administrative Agent, other materials information specified herein); and
(c) Within 15 days after filed by Holdings, the Borrower or any of their Subsidiaries with the SEC, any reports of Claire’s Stores filed on Form 8-K (it being understood that the filing with the SEC of reports on Form 8-K of Claire’s Stores and its subsidiaries, or distributed to its shareholders generallythe delivery by Claire’s Stores of such reports, as shall satisfy 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 requirements of this Agreement (other than in respect of the capitalization of repairs and maintenance expenses as provided in the definition of GAAPSection 5.04(c), 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 Holdings or the Borrower, as the case may be, reconciling such changes to what the financial statements would have been without such changes;
(f) 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 receipt thereof by Holdings, the Borrower or 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 time, such other information regarding the operations, business affairs and financial condition of Holdings, the Borrower or any of their Subsidiaries, or compliance with the terms of any Loan Document, or such consolidating financial statements, as in each case the Agents or any Lender, acting through the Administrative Agent, may reasonably request).
Appears in 2 contracts
Samples: Term Loan Credit Agreement, Term Loan Credit Agreement (Claires Stores Inc)
Financial Statements, Reports, etc. Furnish to the Agents and each Lender:Administrative Agent (which will promptly furnish such information to the Lenders):
(a) within 90 ninety (90) days after following the end of each fiscal year, a consolidated balance sheet and related statements of operations, cash flows and owners' equity or stockholders' ’ equity showing the financial position of each of Holdings and its Subsidiaries and the Borrower and its Subsidiaries as of the close of such fiscal year and the consolidated results of their its operations during such year and setting forth in comparative form the corresponding figures for the prior fiscal year, all which consolidated balance sheet and related statements of operations, cash flows and owners’ equity shall be audited by independent public accountants of recognized national standing reasonably acceptable to the Administrative Agent and accompanied by an opinion of such accountants (which opinion shall not be qualified in as to scope of audit or as to the status of the Borrower or any material respectMaterial Subsidiary as a going concern, other than solely with respect to, or resulting solely from an upcoming maturity date under any series of Indebtedness occurring within one year from the time such opinion is delivered) to the effect that such consolidated financial statements fairly present, in all material respects, the financial position and results of operations of each of Holdings and its Subsidiaries and the Borrower and its Subsidiaries on a consolidated basis in accordance with GAAP, GAAP (it being understood that the delivery by Holdings or the Borrower of its annual reports on Form 10-K as filed with of Holdings and its consolidated Subsidiaries (including delivery by way of providing to the SEC Administrative Agent the URL link to Holdings’ website or SEC’s website where such reports are posted) shall satisfy its the requirements (but not those of the Borrower and its Subsidiaries) under this Section 5.04(a) to the extent such annual reports include the information specified herein);
(b) within 45 sixty (60) days after following the end of each of the first three fiscal quarters of each fiscal year), a consolidated balance sheet and related statements of operations and cash flows showing the financial position of each of Holdings and its Subsidiaries and the Borrower and its Subsidiaries as of the close of such fiscal quarter and the consolidated results of their its operations during such fiscal quarter and the then-elapsed portion of the fiscal year and setting forth in comparative form the corresponding figures for the corresponding periods of the prior fiscal year, all of which shall be in reasonable detail and which consolidated balance sheet and related statements of operations and cash flows shall be certified by a Financial Officer of Holdings or the Borrower, as the case may be, Borrower on behalf of Holdings or the Borrower, respectively, Borrower as fairly presenting, in all material respects, the financial position and results of operations of Holdings and its Subsidiaries or the Borrower and its Subsidiaries, as the case may be, in each case Subsidiaries on a consolidated basis in accordance with GAAP (except for the absence of footnotes), subject to normal year-end audit adjustments, adjustments and the absence of footnotes) (it being understood that the delivery by Holdings or the Borrower of its quarterly reports on Form 10-Q as filed with the SEC shall satisfy its requirements (but not those of the Borrower Holdings and its Subsidiaries) under this Section 5.04(b);
consolidated Subsidiaries (c) concurrently with any including delivery by way of financial statements under (a) or (b) above, a certificate of the accounting firm or Financial Officer on behalf of the Borrower opining on or certifying such statements (which certificate, when furnished by an accounting firm, may be limited to accounting matters and disclaim responsibility for legal interpretations) (i) certifying that no Event of Default or Default has occurred or, if such an Event of Default or Default has occurred, specifying the nature and extent thereof and any corrective action taken or proposed to be taken with respect thereto and (ii) setting forth computations in reasonable detail satisfactory providing to the Administrative Agent demonstrating compliance with the covenants contained in Sections 6.10, 6.11 and 6.12 (it being understood that URL link to Holdings’ website or SEC’s website where such reports are posted) shall satisfy the information required by requirements of this clause (iiSection 5.04(b) may be provided in a certificate of a Financial Officer on behalf of the Borrower instead of from such accounting firm);
(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 such quarterly reports include 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 beinformation specified herein);
(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 Holdings or the Borrower, as the case may be, reconciling such changes to what the financial statements would have been without such changes;
(f) 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 receipt thereof by Holdings, the Borrower or 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 time, such other information regarding the operations, business affairs and financial condition of Holdings, the Borrower or any of their Subsidiaries, or compliance with the terms of any Loan Document, or such consolidating financial statements, as in each case the Agents or any Lender, acting through the Administrative Agent, may reasonably request.
Appears in 2 contracts
Samples: Credit Agreement (Sprouts Farmers Market, Inc.), Credit Agreement (Sprouts Farmers Market, Inc.)
Financial Statements, Reports, etc. Furnish to the Agents and each Lender:Administrative Agent (which will promptly furnish such information to the Lenders):
(a) within Within 90 days after (or such other time period as specified in the end SEC’s rules and regulations with respect to non-accelerated filers for the filing of annual reports on Form 10-K), for each fiscal yearyear (commencing with the fiscal year ending February 2, 2008), a consolidated balance sheet and related statements of operations, cash flows and owners' equity or stockholders' ’ equity showing the financial position of each of Holdings and its Subsidiaries and the Borrower and its the Subsidiaries as of the close of such fiscal year and the consolidated results of their its operations during such year and, starting with the fiscal year ending February 2, 2008, setting forth in comparative form the corresponding figures for the prior fiscal year, all which consolidated balance sheet and related statements of operations, cash flows and owners’ equity shall be audited by independent public accountants of recognized national standing reasonably acceptable to the Administrative Agent and accompanied by an opinion of such accountants (which shall not be qualified in as to scope of audit or as to the status of the Borrower or any material respectMaterial Subsidiary as a going concern) to the effect that such consolidated financial statements fairly present, in all material respects, the financial position and results of operations of each of Holdings and its Subsidiaries and the Borrower and its the Subsidiaries on a consolidated basis in accordance with GAAP, subject to exceptions consistent with the presentation of financial information contained in the Notes Offering Memorandum (it being understood that the delivery by Holdings the Borrower of its annual reports on Form 10-10 K as filed with the SEC shall satisfy its requirements (but not those of the Borrower and its Subsidiaries) under consolidated Subsidiaries shall satisfy the requirements of this Section 5.04(a) to the extent such annual reports include the information specified herein);
(b) within Within 45 days after (or such other time period as specified in the end SEC’s rules and regulations with respect to non-accelerated filers for the filing of quarterly reports on Form 10 Q), for each of the first three fiscal quarters of each fiscal year, a consolidated balance sheet and related statements of operations and cash flows showing the financial position of each of Holdings and its Subsidiaries and the Borrower and its the Subsidiaries as of the close of such fiscal quarter and the consolidated results of their its operations during such fiscal quarter and the then-then elapsed portion of the fiscal year and setting forth in comparative form the corresponding figures for the corresponding periods of the prior fiscal year, all of which shall be in reasonable detail and which consolidated balance sheet and related statements of operations and cash flows shall be certified by a Financial Officer of Holdings or the Borrower, as the case may be, Borrower on behalf of Holdings or the Borrower, respectively, Borrower as fairly presenting, in all material respects, the financial position and results of operations of Holdings and its Subsidiaries or the Borrower and its Subsidiaries, as the case may be, in each case Subsidiaries on a consolidated basis in accordance with GAAP (except for the absence of footnotes), subject to normal year-end audit adjustmentsadjustments and the absence of footnotes, and to exceptions consistent with the presentation of financial information contained in the Notes Offering Memorandum (it being understood that the delivery by Holdings the Borrower of its quarterly reports on Form 10-10 Q as filed with the SEC shall satisfy its requirements (but not those of the Borrower and its Subsidiaries) under consolidated Subsidiaries shall satisfy the requirements of this Section 5.04(b);
(c) concurrently with any delivery of financial statements under (a) or (b) above, a certificate of the accounting firm or Financial Officer on behalf of the Borrower opining on or certifying such statements (which certificate, when furnished by an accounting firm, may be limited to accounting matters and disclaim responsibility for legal interpretations) (i) certifying that no Event of Default or Default has occurred or, if such an Event of Default or Default has occurred, specifying the nature and extent thereof and any corrective action taken or proposed to be taken with respect thereto and (ii) setting forth computations in reasonable detail satisfactory to the Administrative Agent demonstrating compliance with the covenants contained in Sections 6.10, 6.11 and 6.12 (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) promptly after the same become publicly available, copies of all periodic and other publicly available reports, proxy statements and, to the extent requested by such quarterly reports include 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 beinformation specified herein);
(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 Holdings or the Borrower, as the case may be, reconciling such changes to what the financial statements would have been without such changes;
(f) 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 receipt thereof by Holdings, the Borrower or 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 time, such other information regarding the operations, business affairs and financial condition of Holdings, the Borrower or any of their Subsidiaries, or compliance with the terms of any Loan Document, or such consolidating financial statements, as in each case the Agents or any Lender, acting through the Administrative Agent, may reasonably request.
Appears in 1 contract
Financial Statements, Reports, etc. Furnish In the case of the Borrowers, furnish to the Agents and Administrative Agent who will distribute to each Lender:
(a) within 90 days after the end of each fiscal yearyear ending after the Third Restatement Date, a (i) its consolidated balance sheet and related statements of operations, income and cash flows and owners' equity or stockholders' equity showing the financial position of each condition of Holdings and its Subsidiaries and the Borrower and its consolidated Subsidiaries as of the close of such fiscal year and the consolidated results of their its operations and the operations of such subsidiaries during such year, together with comparative figures for the immediately preceding fiscal year, all audited by Xxxxxx LLP or other independent public accountants of recognized national standing reasonably acceptable to the Administrative Agent and accompanied by an opinion of such accountants (which opinion shall not be qualified without an explanatory paragraph (or other explanatory language) to the standard report about whether there is substantial doubt about the entity’s ability to continue as a going concern other than with respect to any upcoming maturity date of the Loans and any refinancings and replacements thereof or potential non-compliance with any financial covenant contained in any material respectother Indebtedness 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 position condition and results of operations of each of Holdings and its Subsidiaries and the Borrower and its consolidated Subsidiaries on a consolidated basis in accordance with GAAPGAAP (except as otherwise expressly noted therein) consistently applied and (ii) a narrative report and management’s discussion and analysis of the financial condition and results of operations of Holdings and its consolidated Subsidiaries for such fiscal year, as compared to amounts for the previous fiscal year and budgeted amounts (it being understood that the delivery by Holdings the Borrowers to the Administrative Agent of its annual reports on Form 10-K as filed with the SEC shall satisfy its the requirements (but not those of the Borrower and its Subsidiaries) under this Section 5.04(a) solely to the extent such annual reports include the information specified herein);
(b) within 45 days after the end of each of the first three fiscal quarters of each fiscal yearyear beginning March 31, a 2018, (i) its consolidated balance sheet and related statements of operations income and cash flows showing the financial position of each condition of Holdings and its Subsidiaries and the Borrower and its consolidated Subsidiaries as of the close of such fiscal quarter and the consolidated results of their its operations and the operations of such subsidiaries during such fiscal quarter and the then-then elapsed portion of the fiscal year, and, starting with the fiscal quarter ending March 31, 2018, comparative figures for the same periods in the immediately preceding fiscal year, all certified by a one of its Financial Officer of Holdings or the Borrower, as the case may be, on behalf of Holdings or the Borrower, respectively, Officers as fairly presenting, presenting in all material respects, respects the financial position condition and results of operations of Holdings and its consolidated Subsidiaries or the Borrower and its Subsidiaries, as the case may be, in each case on a consolidated basis in accordance with GAAP (except for the absence of footnotes)as otherwise expressly noted therein) consistently applied, subject to normal year-end audit adjustmentsadjustments and the absence of footnotes and (ii) a narrative report and management’s discussion and analysis of the financial condition and results of operations of Holdings and its consolidated Subsidiaries for such fiscal quarter and the then elapsed portion of the fiscal year, as compared to the comparable periods in the previous fiscal year and budgeted amounts (it being understood that the delivery by Holdings the Borrowers to the Administrative Agent of its quarterly reports on Form 10-Q as filed with the SEC shall satisfy its the requirements (but not those of the Borrower and its Subsidiaries) under this Section 5.04(b) solely to the extent such quarterly reports include the information specified herein);
(c) [reserved];
(d) concurrently with any delivery of financial statements under paragraph (a) or (b) aboveabove in respect of any period ending after the Third Restatement Date, a certificate of the accounting firm or a Financial Officer on behalf of the Borrower opining on or certifying such statements (which certificate, when furnished by an accounting firm, may be limited to accounting matters and disclaim responsibility for legal interpretations) (i) certifying that no Event of Default or Default has occurred and is continuing or, if such an Event of Default or Default has occurredoccurred and is continuing, specifying the nature and extent thereof and any corrective action taken or proposed to be taken with respect thereto and thereto, (ii) setting forth computations in reasonable detail satisfactory to the Administrative Agent demonstrating compliance with the covenants covenant contained in Sections 6.10Section 6.10 and (iii) together with each set of consolidated financial statements referred to in paragraph (a) or (b) above, 6.11 and 6.12 the related consolidating financial statements reflecting the adjustments necessary to eliminate the accounts of Unrestricted Subsidiaries (it being understood that the information required by this clause if any) (ii) which may be provided in footnote form only) from such consolidated financial statements;
(e) within 90 days after the commencement of each fiscal year, a consolidated budget for such fiscal year and for each quarter within such fiscal year, including a projected consolidated balance sheet and related statements of projected operations and cash flows as of the end of and for such fiscal year in a certificate form customarily prepared by Holdings and, promptly when available, any revisions of a Financial Officer on behalf of the Borrower instead of from such accounting firmbudget (that Holdings in good faith determines to be material);
(df) promptly after the same become publicly available, copies of all periodic and other publicly available material reports, proxy statements andand other materials, to the extent requested by the Administrative Agentif any, other materials filed by Holdings, the Borrower Holdings or any of their Subsidiaries Restricted Subsidiary with the SECSecurities and Exchange Commission, or distributed any Governmental Authority succeeding 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 or all of the capitalization functions of repairs and maintenance expenses as provided in the definition of GAAP), the consolidated financial statements of Holdings or the Borrower said Commission (and their respective Subsidiaries) it being understood that information required to be delivered pursuant to paragraph this clause (af) or (b) above will differ in any material respect from the consolidated financial statements that would shall be deemed to have been delivered pursuant to if such clauses had no information, or one or more annual, quarterly or other periodic reports containing such change in accounting principles and policies been madeinformation, then, together with shall be available on 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 Holdings or the Borrower, as the case may be, reconciling such changes to what the financial statements would have been without such changes;
(f) within 30 days after the beginning of each fiscal year, a budget in form satisfactory to the Agents prepared by Holdings for each website 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 therebySEC at xxxx://xxx.xxx.xxx);
(g) promptly following after the creation or acquisition of request by any SubsidiaryLender, a certificate from a Responsible Officerall 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, identifying such new Subsidiary and including the ownership interest of the Borrower and the Subsidiaries therein;USA PATRIOT Act; and
(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 receipt thereof by Holdings, the Borrower or 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 time, such other non-privileged information regarding the operations, business affairs and financial condition of Holdings, each of the Borrower Borrowers or any of their SubsidiariesRestricted Subsidiary, or compliance with the terms of any Loan Document, or such consolidating financial statements, as in each case the Agents or any Lender, acting through the Administrative Agent, Agent may reasonably request. Documents required to be delivered pursuant to this Section 5.04 may be delivered electronically.
Appears in 1 contract
Samples: Credit Agreement (Lindblad Expeditions Holdings, Inc.)
Financial Statements, Reports, etc. Furnish to the Agents and each Lender:Administrative Agent (which will furnish such information to the Lenders):
(a) within 90 days (or such shorter period as the SEC shall specify for the filing of Annual Reports on Form 10-K) after the end of each fiscal year, a consolidated balance sheet and related statements of operations, cash flows and owners' equity or stockholders' equity showing the financial position of each of Holdings and its Subsidiaries the U.S. Borrower and the Borrower and its Subsidiaries as of the close of such fiscal year and the consolidated results of their operations during such year, all audited by independent public accountants of recognized national standing reasonably acceptable to the Administrative Agent and accompanied by an opinion of such accountants (which shall not be qualified in any material respect) to the effect that such consolidated financial statements fairly present, in all material respects, the financial position and results of operations of each of Holdings and its Subsidiaries the U.S. Borrower and the Borrower and its Subsidiaries on a consolidated basis in accordance with GAAP, GAAP (it being understood that the delivery by Holdings the U.S. Borrower of its Annual Reports on Form 10-K as filed with the SEC shall satisfy its requirements (but not those of the U.S. Borrower and its Subsidiaries) under consolidated Subsidiaries shall satisfy the requirements of this Section 5.04(a)5.04
(a) to the extent such Annual Reports include the information specified herein;
(b) within 45 days (or such shorter period as the SEC shall specify for the filing of Quarterly Reports on Form 10-Q) after the end of each of the first three fiscal quarters of each fiscal year, a consolidated balance sheet and related statements of operations and cash flows showing the financial position of each of Holdings and its Subsidiaries the U.S. Borrower 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, all certified by a Financial Officer of Holdings or the U.S. Borrower, as the case may be, on behalf of Holdings or the U.S. Borrower, respectively, as fairly presenting, in all material respects, the financial position and results of operations of Holdings and its Subsidiaries or the U.S. Borrower and its Subsidiaries, as the case may be, in each case Subsidiaries on a consolidated basis in accordance with GAAP (except for the absence of footnotes), subject to normal year-end audit adjustments, adjustments and the absence of footnotes and except that purchase accounting may be reflected on a preliminary basis in financial statements delivered for the fiscal quarters ending in 2003) (it being understood that the delivery by Holdings the U.S. Borrower of its Quarterly Reports on Form 10-Q as filed with the SEC shall satisfy its requirements (but not those of the U.S. Borrower and its Subsidiaries) under consolidated subsidiaries shall satisfy the requirements of this Section 5.04(b);
(c) concurrently with any delivery of financial statements under (a) or (b) above, a certificate of the accounting firm or Financial Officer on behalf of the Borrower opining on or certifying such statements (which certificate, when furnished by an accounting firm, may be limited to accounting matters and disclaim responsibility for legal interpretations) (i) certifying that no Event of Default or Default has occurred or, if such an Event of Default or Default has occurred, specifying the nature and extent thereof and any corrective action taken or proposed to be taken with respect thereto and (ii) setting forth computations in reasonable detail satisfactory to the Administrative Agent demonstrating compliance with the covenants contained in Sections 6.10, 6.11 and 6.12 (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) promptly after the same become publicly available, copies of all periodic and other publicly available reports, proxy statements and, to the extent requested by such Quarterly Reports include 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 beinformation specified herein;
(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 Holdings or the Borrower, as the case may be, reconciling such changes to what the financial statements would have been without such changes;
(f) 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 receipt thereof by Holdings, the Borrower or 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 time, such other information regarding the operations, business affairs and financial condition of Holdings, the Borrower or any of their Subsidiaries, or compliance with the terms of any Loan Document, or such consolidating financial statements, as in each case the Agents or any Lender, acting through the Administrative Agent, may reasonably request.
Appears in 1 contract
Financial Statements, Reports, etc. Furnish to the Agents and each Lender:Administrative Agent (which will promptly furnish such information to the Lenders):
(a) within 90 days after Within 105 days, following the end of each fiscal yearyear (commencing with the fiscal year beginning after the Commencement of Operations of Project Octavius), a consolidated balance sheet and related statements of operations, cash flows and owners' equity or stockholders' ’ equity showing the financial position of each of Holdings the Borrowers and its Subsidiaries and the Borrower and its their Subsidiaries as of the close of such fiscal year and the consolidated results of their its operations during such year and, commencing with the second fiscal year beginning after the Commencement of Operations of Project Octavius, setting forth in comparative form the corresponding figures for the prior fiscal year, all which consolidated balance sheet and related statements of operations, cash flows and owners’ equity shall be audited by independent public accountants of recognized national standing reasonably acceptable to the Administrative Agent and accompanied by an opinion of such accountants (which shall not be qualified in as to scope of audit or as to the status of the Borrowers or any material respectMaterial Subsidiary as a going concern) to the effect that such consolidated financial statements fairly present, in all material respects, the financial position and results of operations of each of Holdings the Borrowers and its Subsidiaries and the Borrower and its their Subsidiaries on a consolidated basis in accordance with GAAP, GAAP (it being understood that the delivery by Holdings the Borrowers of its annual reports on Form 10-K as filed with of the SEC Borrowers and their consolidated Subsidiaries shall satisfy its the requirements of this Section 5.04(a) to the extent such annual reports include the information specified herein); provided that, (but not those i) following the Commencement of Operations of Project Octavius and prior to the Borrower and its Subsidiaries) Commencement of Operations of Project Linq, such financial statements provided under this Section 5.04(a)) shall be for the Octavius Borrower and its subsidiaries on a consolidated basis and (ii) following the Commencement of Operations of the Development, such financial statements provided under this Section 5.04(a) shall be for the Borrowers and their subsidiaries on a consolidated basis;
(b) Within 60 days (or, in the case of the first fiscal quarter for which quarterly financial statements are required to be delivered hereunder, within 45 75 days after following the end of such fiscal quarter), following the end of each of the first three fiscal quarters of each fiscal yearyear (commencing with the first full fiscal quarter after the Commencement of Operations of Project Octavius), a consolidated balance sheet and related statements of operations and cash flows showing the financial position of each of Holdings the Borrowers and its Subsidiaries and the Borrower and its their Subsidiaries as of the close of such fiscal quarter and the consolidated results of their its operations during such fiscal quarter and the then-elapsed portion of the fiscal year and setting forth (commencing with the second fiscal year after the Commencement of Operations of Project Octavius) in comparative form the corresponding figures for the corresponding periods of the prior fiscal year, all of which shall be in reasonable detail and which consolidated balance sheet and related statements of operations and cash flows shall be certified by a Financial Officer of Holdings or the Borrower, as the case may be, a Borrower on behalf of Holdings or the Borrower, respectively, Borrowers as fairly presenting, in all material respects, the financial position and results of operations of Holdings the Borrowers and its their Subsidiaries or the Borrower and its Subsidiaries, as the case may be, in each case on a consolidated basis in accordance with GAAP (except for the absence of footnotes), subject to normal year-end audit adjustments, adjustments and the absence of footnotes) (it being understood that the delivery by Holdings the Borrowers of its quarterly reports on Form 10-Q as filed with of the SEC Borrowers and their consolidated Subsidiaries shall satisfy its the requirements of this Section 5.04(b) to the extent such quarterly reports include the information specified herein); provided that, (but not those i) following the Commencement of Operations of Project Octavius and prior to the Borrower and its Subsidiaries) Commencement of Operations of Project Linq, such financial statements provided under this Section 5.04(b)) shall be for the Octavius Borrower and its subsidiaries on a consolidated basis and (ii) following the Commencement of Operations of the Development, such financial statements provided under this Section 5.04(b) shall be for the Borrowers and their subsidiaries on a consolidated basis;
(c) (x) concurrently with any delivery of financial statements under paragraphs (a) or (b) above, a certificate of the accounting firm or a Financial Officer on behalf of the a Borrower opining on or certifying such statements (which certificate, when furnished by an accounting firm, may be limited to accounting matters and disclaim responsibility for legal interpretations) (i) certifying that no Event of Default or Default has occurred or, if such an Event of Default or Default has occurred, specifying the nature and extent thereof and any corrective action taken or proposed to be taken with respect thereto and (ii) commencing with the fiscal quarter in which the Financial Performance Covenants are applicable, setting forth computations in reasonable detail satisfactory to the Administrative Agent demonstrating compliance with the covenants contained in Sections 6.10Financial Performance Covenants and (y) concurrently with any delivery of financial statements under paragraph (a) above, 6.11 and 6.12 (it being understood that if the information required accounting firm is not restricted from providing such a certificate by this clause (ii) may be provided in its policies, a certificate of a Financial Officer the accounting firm opining on behalf or certifying such statements stating whether they obtained knowledge during the course of the Borrower instead their examination of from such statements of any Default or Event of Default (which certificate may be limited to accounting firmmatters 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 Borrowers or any of their the Subsidiaries with the SEC, or after an initial public offering, distributed to its shareholders stockholders generally, as applicable; provided, however, that such reports, proxy statements, filings and other materials required to be delivered pursuant to this paragraph (d) shall be deemed delivered for purposes of this Agreement when posted to the case may bewebsite of the Borrowers;
(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 Holdings or the Borrower, as the case may be, reconciling such changes to what the financial statements would have been without such changes;
(f) within 30 105 days after the beginning of each fiscal yearyear (commencing with the fiscal year beginning after the Commencement of Operations of Project Octavius, a budget in form satisfactory with respect to the Agents prepared by Holdings for each of the four fiscal quarters of such fiscal year prepared in reasonable detail, of Holdings Octavius Borrower and its Subsidiaries, and commencing with the fiscal year beginning after the Commencement of Operations of Project Linq, with respect to the Linq Borrower and its Subsidiaries), a reasonably detailed consolidated annual budget for such fiscal year (including a projected consolidated balance sheet of the applicable Borrowers and their 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 Holdings a 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 best extent such request relates to specified information contained in the Perfection Certificate, such information) reflecting all changes since the date of his knowledge, the budget is a reasonable estimate for the period covered therebyinformation most recently received pursuant to this paragraph (f) or Section 5.10(f);
(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 receipt thereof by Holdings, the Borrower or 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 time, such other information regarding the operations, business affairs and financial condition of Holdings, the Borrower Borrowers or any of their the Subsidiaries, or compliance with the terms of any Loan Document, or such consolidating financial statements, as in each case the Agents Administrative Agent may reasonably request (for itself or on behalf of the Lenders);
(h) promptly upon request by the Administrative Agent on behalf of the Lenders from time to time, all documentation and other information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation, the USA PATRIOT Act; and
(i) on the Closing Date and within 30 days of the end of each fiscal month of the Borrowers (or, if earlier, at the time of making any LenderDisbursement Request under the Disbursement Agreement with respect to such fiscal month, acting if any) thereafter through the Commencement of Operations of the Development, deliver to the Administrative AgentAgent an In-Balance Test Certificate, may with such supporting detail for the calculations set forth in such In-Balance Test Certificate as the Administrative Agent or the Construction Consultant shall reasonably requestrequest and such other information as the Administrative Agent or the Construction Consultant shall reasonably request in connection with the calculation of the In-Balance Test.
Appears in 1 contract
Financial Statements, Reports, etc. Furnish In the case of the Borrower, furnish to the Agents Paying Agent and each Lender:
(a) within 90 120 days after the end of each fiscal year, a its consolidated balance sheet sheets and related statements statement of operations, income and retained earnings and cash flows and owners' equity or stockholders' equity showing the financial position condition of each of Holdings and its Subsidiaries and (i) the Borrower and its consolidated subsidiaries and (ii) prior to the transfer of the Xxxxx Subsidiaries to the Borrower, the Xxxxx Subsidiaries as of the close of such fiscal year and the consolidated results of their its operations and the operations of such subsidiaries during such year, all in each case audited by independent public accountants of recognized national standing reasonably acceptable to the Administrative Agent and accompanied by an opinion of such accountants (which shall not be qualified in any material respect) to the effect that such consolidated financial statements fairly present, in all material respects, present the financial position condition and results of operations of each of Holdings and its Subsidiaries and the Borrower and its Subsidiaries consolidated subsidiaries and the Xxxxx Subsidiaries, as applicable, on a consolidated basis in accordance with GAAP, it being understood that GAAP consistently applied (except as otherwise provided in the delivery by Holdings of its Form 10-K as filed with the SEC shall satisfy its requirements (but not those of the Borrower and its Subsidiaries) under this Section 5.04(anotes thereto);
(b) within 45 60 days after the end of each of the first three fiscal quarters of each fiscal yearyear beginning with the first fiscal quarter ending after the initial Acquisition Borrowing (provided that prior to such date, a the Borrower shall furnish to the Paying Agent and each Lender any information made publicly available relating thereto), its consolidated balance sheet sheets and related statements of operations income and retained earnings and cash flows showing the financial position condition of each of Holdings and its Subsidiaries and (i) the Borrower and its consolidated subsidiaries and (ii) prior to the transfer of the Xxxxx Subsidiaries to the Borrower, the Xxxxx Subsidiaries as of the close of such fiscal quarter and the consolidated results of their its operations and the operations of such subsidiaries during such fiscal quarter and the then-then elapsed portion of the fiscal year, all in each case certified by a Financial Officer of Holdings or the Borrower, as the case may be, on behalf of Holdings or the Borrower, respectively, independent public accountant as fairly presenting, in all material respects, presenting the financial position condition and results of operations of Holdings and its Subsidiaries or the Borrower and its consolidated subsidiaries and the Xxxxx Subsidiaries, as the case may beapplicable, in each case on a consolidated basis in accordance with GAAP consis tently applied (except for the absence of footnotesfootnote disclosure), subject to normal year-end audit adjustments, it being understood that the delivery by Holdings of its Form 10-Q as filed with the SEC shall satisfy its requirements (but not those of the Borrower and its Subsidiaries) under this Section 5.04(b);
(c) within 60 days after the end of each of the first three fiscal quarters of each fiscal year beginning with January 1, 1997 and ending on the Separation Date, its unaudited pro forma consolidating balance sheet as of the close of such fiscal quarter, and as of December 31, 1997, as the case may be, prepared giving effect to the Transactions (including the transfer of the Xxxxx Subsidiaries) as if they had occurred on such date, and consolidating income statement for the applicable period, assuming the Transactions (including the transfer of the Xxxxx Subsidiaries) had actually occurred at the beginning of each such period. Such pro forma balance sheets and income statements will be prepared in good faith by the Borrower based on reasonable assumptions, will be based on the best information available to the Borrower as of the date of delivery thereof, will accurately reflect all material adjustments required to be made to give effect to the Transactions (including the transfer of the Xxxxx Subsidiaries) and will present fairly on a pro forma basis the estimated consolidated financial position of the Borrower as of the end of the applicable period, assuming that the Transactions (including the transfer of the Xxxxx Subsidiaries) had actually occurred at such date, and will present fairly on a pro forma basis the estimated consolidated results of operations of the Borrower for such period, assuming that the Transactions (including the transfer of the Xxxxx Subsidiaries) had actually occurred on the first day of such period; (d) concurrently with any delivery of financial statements under paragraph (a) or (b) above, (i) a certificate of the applicable accounting firm or Financial Officer on behalf of the Borrower opining on or certifying such statements (which certificate, when furnished by an accounting firm, may be limited to accounting matters and disclaim responsibility for legal interpretations) (i) and certifying that no Event of Default or has occurred and that no Default has occurred and is continuing or, if such an Event of Default has occurred or Default has occurredoccurred and is continuing, specifying the nature and extent thereof and any corrective action taken or proposed to be taken with respect thereto and (ii) setting forth computations in reasonable detail satisfactory to the Administrative Agent demonstrating compliance with the covenants contained in Sections 6.10, 6.11 and 6.12 (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 setting forth the Net Termination Value as of from the date of such accounting firm);
financial statements; (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, and other materials filed by Holdings, the Borrower or any of their Subsidiaries Subsidiary with the SECSecurities and Exchange Commission, or any Governmental Authority succeeding to any or all of the functions of said Commission, or with any national securities exchange, or distributed to its shareholders generallypublic shareholders, as the case may be;
(e) if, as a result of any change in accounting principles and policies from those as in effect on the date 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 Holdings or the Borrower, as the case may be, reconciling such changes to what the financial statements would have been without such changes;
(f) 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 receipt thereof by Holdings, the Borrower or 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 time, such other information regarding the operations, business affairs and financial condition of Holdings, the Borrower or any of their Subsidiaries, or compliance with the terms of any Loan Document, or such 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: Credit Agreement (Pacificorp /Or/)
Financial Statements, Reports, etc. Furnish In the case of the Borrower, furnish to the Agents Administrative Agent for distribution to the Lenders (except, in the case of the financial statements referred to in paragraphs (a) and each Lender:(b) below, to the extent such financial statements are contained in materials already delivered to the Administrative Agent pursuant to paragraph (d) below):
(a) within 90 120 days after the end of each fiscal year, a (i) its consolidated balance sheet and related statements of operationsincome and changes in financial position (or of cash flow, cash flows and owners' equity or stockholders' equity as appropriate), showing the financial position condition of each of Holdings and its Subsidiaries and the Borrower and its consolidated Subsidiaries as of the close of such fiscal year and the consolidated results of their its operations and the operations of such Subsidiaries during such year, all audited by Deloitte & Touche LLP or other independent public accountants of recognized national standing reasonably acceptable to the Administrative Agent and accompanied by an opinion of such accountants (which shall not be qualified in any material respect) to the effect that such consolidated financial statements fairly present, in all material respects, present the financial position condition and results of operations of each of Holdings and its Subsidiaries and the Borrower and its Subsidiaries on a consolidated basis in accordance with GAAPgenerally accepted accounting principles consistently applied, it being understood that and (ii) a consolidated balance sheet and related statements of income and changes in financial position (or of cash flow, as the delivery by Holdings case may be) for KGE as of the end of such fiscal year, showing the consolidated financial condition of KGE and its consolidated Subsidiaries as of the close of such fiscal year and the results of its Form 10-K as filed with operations and the SEC shall satisfy its requirements (but not those operations of such Subsidiaries during such year, all certified by a Financial Officer of the Borrower as fairly presenting the consolidated financial condition and its Subsidiariesresults 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 Administrative Agent and accompanied by an opinion of such accountants (which shall not be qualified in any material respect) under this Section 5.04(ato the effect that such financial statements fairly present the financial condition and results of operations of KGE on a consolidated basis in accordance with generally accepted accounting principles consistently applied);
(b) within 45 90 days after the end of each of the first three fiscal quarters of each fiscal year, a (i) its consolidated balance sheet and related statements of operations income and cash flows changes in financial position, showing the financial position condition of each of Holdings and its Subsidiaries and the Borrower and its consolidated Subsidiaries as of the close of such fiscal quarter and the results of its operations and the operations of such Subsidiaries during such fiscal quarter and the then elapsed portion of the fiscal year, all certified by one of its Financial Officers as fairly presenting the financial condition and results of operations of the Borrower and its consolidated 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, all certified by a one of its Financial Officer of Holdings or the Borrower, as the case may be, on behalf of Holdings or the Borrower, respectively, Officers as fairly presenting, in all material respects, presenting the financial position condition and results of operations of Holdings KGE and its consolidated Subsidiaries or the Borrower and its Subsidiaries, as the case may be, in each case on a consolidated basis in accordance with GAAP (except for the absence of footnotes)generally accepted accounting principles consistently applied, subject to normal year-end audit adjustments, it being understood that the delivery by Holdings of its Form 10-Q as filed with the SEC shall satisfy its requirements (but not those of the Borrower and its Subsidiaries) under this Section 5.04(b);
(c) concurrently with any delivery of financial statements under (a) or (b) above, a certificate of the accounting firm or a Financial Officer on behalf of the Borrower who shall, if applicable, be the Financial Officer opining on or certifying such statements (which certificate, when furnished by an accounting firm, may be limited to accounting matters and disclaim responsibility for legal interpretations) (i) certifying that no Event of Default or Default has occurred or, if such an Event of Default or Default has occurred, specifying the nature and extent thereof and any corrective action taken or proposed to be taken with respect thereto and (ii) setting forth computations in reasonable detail satisfactory to the Administrative Agent demonstrating compliance with the covenants contained in Sections 6.10, 6.11 and 6.12 (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)Section 6.1;
(d) promptly after the same become publicly available, copies of all periodic and other publicly available reportsreports on Forms 10-K, proxy statements and, to the extent requested by the Administrative Agent, other materials 10-Q or 8-K filed by Holdings, the Borrower or any of their Subsidiaries it with the SEC, or distributed to its shareholders generally, as the case may be;; and
(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 Holdings or the Borrower, as the case may be, reconciling such changes to what the financial statements would have been without such changes;
(f) 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 receipt thereof by Holdings, the Borrower or 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 time, such other information regarding the operations, business affairs and financial condition of Holdings, the Borrower or any of their Subsidiaries, Significant Subsidiary or compliance with the terms of any Loan Document, or such consolidating financial statements, as in each case the Agents Administrative Agent or any Lender, acting through the Administrative Agent, Lender may reasonably request. Any financial statement or report required to be furnished pursuant to Section 5.1(a), 5.1(b) or 5.1(d) shall be deemed to have been furnished on the date on which and, provided such date is within the period specified, such requirement will be satisfied if, (A) the Borrower files a form, report or other document with the SEC that contains such 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 or by other similar electronic means.
Appears in 1 contract
Financial Statements, Reports, etc. Furnish to the Agents and each Lender:Administrative Agent (which will promptly furnish such information to the Lenders):
(a) within 90 days (or, if applicable, such shorter period as the SEC shall specify for the filing of annual reports on Form 10-K or on any applicable equivalent form) after the end of each fiscal year, year a consolidated balance sheet and related statements of operations, cash flows and owners' equity or stockholders' ’ equity showing the financial position of each of Holdings and its Subsidiaries and the Borrower Company and its Subsidiaries as of the close of such fiscal year and the consolidated results of their operations during such fiscal year and setting forth in comparative form the corresponding figures for the prior fiscal year, all which consolidated balance sheets and related statements of operations, cash flows and owners’ equity shall be audited by PricewaterhouseCoopers, LLP or other independent public accountants of recognized national standing reasonably acceptable to the Administrative Agent and accompanied by an opinion of such accountants (which opinion shall not be qualified in as to scope of audit or as to the status of the Company or any material respectMaterial Subsidiary as a going concern) to the effect that such consolidated financial statements fairly present, in all material respects, the financial position and results of operations of each of Holdings and its Subsidiaries and the Borrower Company and its Subsidiaries on a consolidated basis in accordance with GAAP, GAAP (it being understood that the delivery by Holdings the Company of its annual reports on Form 10-K as filed with or the SEC equivalent of the Company and its consolidated Subsidiaries shall satisfy its the requirements of this (but not those of a) to the Borrower and its Subsidiaries) under this Section 5.04(aextent such annual reports include the information specified herein);
(b) within 45 days (or, if applicable, such shorter period as the SEC shall specify for the filing of quarterly reports on Form 10-Q or on any applicable equivalent form) after the end of each of the first three fiscal quarters of each fiscal year, a consolidated balance sheet and related statements of operations and cash flows showing the financial position of each of Holdings and its Subsidiaries and the Borrower Company 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 then‑elapsed portion of the fiscal year and setting forth in comparative form the corresponding figures for the corresponding periods of the prior fiscal year, all of which shall be in reasonable detail and which consolidated balance sheet and related statements of operations and cash flows shall be certified by a Financial Officer of Holdings or the Borrower, as the case may be, Company on behalf of Holdings or the Borrower, respectivelyCompany, as fairly presenting, in all material respects, the financial position and results of operations of Holdings and its Subsidiaries or the Borrower Company and its Subsidiaries, as the case may be, in each case on a consolidated basis in accordance with GAAP (except for subject to normal year‑end audit adjustments and the absence of footnotes), subject to normal year-end audit adjustments, ) (it being understood that the delivery by Holdings the Company of quarterly reports on Form 10‑Q of the Company and its Form 10-Q as filed with the SEC consolidated Subsidiaries shall satisfy its the requirements of this (but not those of b) to the Borrower and its Subsidiaries) under this Section 5.04(bextent such quarterly reports include the information specified herein);
(c) (x) concurrently with any delivery of financial statements under paragraphs (a) or (b) above, a certificate of the accounting firm or a Financial Officer on behalf of the Borrower opining on or certifying such statements (which certificate, when furnished by an accounting firm, may be limited to accounting matters and disclaim responsibility for legal interpretations) Company (i) certifying that no Event of Default or Default has occurred or, if such an Event of Default or Default has occurred, specifying the nature and extent thereof and any corrective action taken or proposed to be taken with respect thereto and thereto, (ii) setting forth computations in reasonable detail satisfactory to the Administrative Agent demonstrating compliance with the covenants contained set forth in Sections 6.106.12, 6.11 6.13, 6.14, and 6.12 6.15, (it being understood iii) setting forth the calculation and uses of the Cumulative Credit for the fiscal period then ended if the Company shall have used the Cumulative Credit for any purpose during such fiscal period, and (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 information required by this aggregate do not exceed the limitation set forth in clause (iib) may be provided in of the definition of the term “Immaterial 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 applicable office, a certificate of a Financial Officer the accounting firm opining on behalf or certifying such statements stating whether they obtained knowledge during the course of the Borrower instead their examination of from such statements of any Default or Event of Default (which certificate may be limited to accounting firmmatters 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 Company or any of their Subsidiaries Subsidiary with the SEC, or after an initial public offering, distributed to its shareholders stockholders generally, as applicable; provided, however, that such reports, proxy statements, filings and other materials required to be delivered pursuant to this clause (d) or any other clause of this Section 5.04 shall be deemed delivered for purposes of this Agreement when posted to the case may bewebsite of the Company or the SEC;
(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 Holdings or the Borrower, as the case may be, reconciling such changes to what the financial statements would have been without such changes;
(f) within 30 90 days after the beginning of each fiscal year, a reasonably detailed consolidated quarterly 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, (including a projected consolidated balance sheet of Holdings the Company and its SubsidiariesSubsidiaries 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 Holdings the Company to the effect that, that the Budget is based on assumptions believed by such Financial Officer to be reasonable as of the best date of his knowledge, the budget is a reasonable estimate for the period covered therebydelivery thereof;
(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 receipt thereof by Holdings, the Borrower or 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
(jf) promptly, from time to time, such other information (i) regarding the operations, business affairs and financial condition of Holdings, the Borrower Company or any of their the Subsidiaries, or (ii) regarding compliance with the terms of any Loan Document, or (iii) regarding such consolidating financial statementsstatements or (iv) required under the USA PATRIOT Act or the Beneficial Ownership Regulation, as in each case the Agents Administrative Agent may reasonably request (for itself or on behalf of any Lender);
(g) in the event that (x) any Parent Entity reports on a consolidated basis then, acting through such consolidated reporting at such Parent Entity’s level in a manner consistent with that described in paragraphs (a) and (b) of this Section 5.04 for the Administrative AgentCompany (together with a reconciliation showing the adjustments necessary to determine compliance by the Company and its Subsidiaries with the covenants set forth in Sections 6.12, may reasonably request6.13, 6.14, and 6.15 and consolidating information that explains in reasonable detail the differences between the information relating to such direct or indirect parent and its Subsidiaries, on the one hand, and the information relating to the Company and its Subsidiaries, on the other hand) will satisfy the requirements of such paragraphs.
Appears in 1 contract
Samples: Credit Agreement (Norwegian Cruise Line Holdings Ltd.)
Financial Statements, Reports, etc. Furnish to the Agents and each Lender:Administrative Agent (which will promptly furnish such information to the Lenders):
(a) within 90 days (or, if applicable, such shorter period as the SEC shall specify for the filing of annual reports on Form 10-K or on any applicable equivalent form) after the end of each fiscal year, year a consolidated balance sheet and related statements of operations, cash flows and owners' equity or stockholders' ’ equity showing the financial position of each of Holdings and its Subsidiaries and the Borrower and its Subsidiaries as of the close of such fiscal year and the consolidated results of their operations during such fiscal year and setting forth in comparative form the corresponding figures for the prior fiscal year, all which consolidated balance sheets and related statements of operations, cash flows and owners’ equity shall be audited by PricewaterhouseCoopers, LLP or other independent public accountants of recognized national standing reasonably acceptable to the Administrative Agent and accompanied by an opinion of such accountants (which opinion shall not be qualified in as to scope of audit or as to the status of the Borrower or any material respectMaterial Subsidiary as a going concern) to the effect that such consolidated financial statements fairly present, in all material respects, the financial position and results of operations of each of Holdings and its Subsidiaries and the Borrower and its Subsidiaries on a consolidated basis in accordance with GAAP, GAAP (it being understood that the delivery by Holdings the Borrower of its annual reports on Form 10-K as filed with or the SEC shall satisfy its requirements (but not those equivalent of the Borrower and its Subsidiariesconsolidated Subsidiaries shall satisfy the requirements of this (a) under this Section 5.04(ato the extent such annual reports include the information specified herein);
(b) within 45 days (or, if applicable, such shorter period as the SEC shall specify for the filing of quarterly reports on Form 10-Q or on any applicable equivalent form) after the end of each of the first three fiscal quarters of each fiscal year, a consolidated balance sheet and related statements of operations and cash flows showing the financial position of each of Holdings and its Subsidiaries and the Borrower and its Subsidiaries as of the close of such fiscal quarter and the consolidated results of their operations during such fiscal quarter and the then-elapsed portion of the fiscal year and setting forth in comparative form the corresponding figures for the corresponding periods of the prior fiscal year, all of which shall be in reasonable detail and which consolidated balance sheet and related statements of operations and cash flows shall be certified by a Financial Officer of Holdings or the Borrower, as the case may be, Borrower on behalf of Holdings or the Borrower, respectively, as fairly presenting, in all material respects, the financial position and results of operations of 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 GAAP (except for the absence of footnotes), subject to normal year-end audit adjustments, adjustments and the absence of footnotes) (it being understood that the delivery by Holdings of its Form 10-Q as filed with the SEC shall satisfy its requirements (but not those of the Borrower and its Subsidiaries) under this Section 5.04(b);
(c) concurrently with any delivery of financial statements under (a) or (b) above, a certificate of the accounting firm or Financial Officer on behalf of the Borrower opining on or certifying such statements (which certificate, when furnished by an accounting firm, may be limited to accounting matters and disclaim responsibility for legal interpretations) (i) certifying that no Event of Default or Default has occurred or, if such an Event of Default or Default has occurred, specifying the nature and extent thereof and any corrective action taken or proposed to be taken with respect thereto and (ii) setting forth computations in reasonable detail satisfactory to the Administrative Agent demonstrating compliance with the covenants contained in Sections 6.10, 6.11 and 6.12 (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) 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 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 Holdings or the Borrower, as the case may be, reconciling such changes to what the financial statements would have been without such changes;
(f) 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 receipt thereof by Holdings, the Borrower or any of their respective Subsidiaries, a copy of all quarterly 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 time, such other information regarding the operations, business affairs and financial condition of Holdings, the Borrower or any of their Subsidiaries, or compliance with the terms of any Loan Document, or such consolidating financial statements, as in each case the Agents or any Lender, acting through the Administrative Agent, may reasonably request.on
Appears in 1 contract
Samples: Credit Agreement (Norwegian Cruise Line Holdings Ltd.)
Financial Statements, Reports, etc. Furnish In the case of the Borrower, furnish to the Agents Administrative Agent and each Lender:
: (a) within 90 105 days after the end of each fiscal year, a its consolidated and, in the event any Subsidiary has been designated as an Unrestricted Subsidiary hereunder, consolidating balance sheet and related consolidated and, in the event any Subsidiary has been designated as an Unrestricted Subsidiary hereunder, consolidating statements of operations, cash flows and owners' equity or stockholders' equity and cash flows, showing the financial position of each of Holdings and its Subsidiaries and the Borrower and its the Restricted Subsidiaries as of the close of such fiscal year and the consolidated results of their operations during such year, and a comparison of such financial position and results of operations as of the corresponding date and for the previous fiscal year, all audited (in the case of the consolidated financial statements) by Deloitte & Touche LLP or other independent public accountants of recognized national standing reasonably acceptable to the Administrative Agent Required Lenders and accompanied by an opinion of such accountants (which shall not be qualified in any material respect) to the effect that such consolidated financial statements fairly present, in all material respects, present the financial position and results of operations of each of Holdings and its Subsidiaries and the Borrower and its the Restricted Subsidiaries on a consolidated basis in accordance with GAAP, it being understood that the delivery by Holdings of its Form 10-K as filed with the SEC shall satisfy its requirements (but not those of the Borrower and its Subsidiaries) under this Section 5.04(a);
GAAP consistently applied; (b) within 45 60 days after the end of each of the first three fiscal quarters of each fiscal year, a its consolidated balance sheet and related consolidated statements of operations operations, stockholders' equity and cash flows showing the financial position of each of Holdings and its Subsidiaries and the Borrower and its the Restricted Subsidiaries as of the close of such fiscal quarter and the consolidated results of their operations during such fiscal quarter and the then-then elapsed portion of the fiscal year, and a comparison of such financial position and results of operations as of the corresponding date and for the corresponding periods in the previous fiscal year, all certified by a one of its Financial Officer of Holdings or the Borrower, as the case may be, on behalf of Holdings or the Borrower, respectively, Officers as fairly presenting, in all material respects, presenting the financial position and results of operations of Holdings and its Subsidiaries or the Borrower and its Subsidiaries, as the case may be, in each case Restricted Subsidiaries on a consolidated basis in accordance with GAAP (except for the absence of footnotes)consistently applied, subject to normal year-end audit adjustments, it being understood that the delivery by Holdings of its Form 10-Q as filed with the SEC shall satisfy its requirements adjustment; (but not those of the Borrower and its Subsidiaries) under this Section 5.04(bc);
(ci) concurrently with any delivery of financial statements under clause (a) or (b) above, a certificate of the accounting firm or Financial Officer on behalf of the Borrower opining on or certifying such statements (which certificate, when furnished by an accounting firm, certificate may be limited to accounting matters and disclaim responsibility for legal interpretations) (i) certifying that no Event of Default or Default has occurred orand is continuing in respect of Sections 6.1, if such an Event of Default or Default has occurred6.2(h), specifying the nature 6.3, 6.4, 6.5, 6.6, 6.9, 6.10 and extent thereof and any corrective action taken or proposed to be taken with respect thereto 6.12; and (ii) setting forth computations in reasonable detail satisfactory to the Administrative Agent demonstrating compliance concurrently with the covenants contained in Sections 6.10, 6.11 and 6.12 (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) 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 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 Holdings or the Borrower, as the case may be, reconciling such changes to what the financial statements would have been without such changes;
(f) 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 under clause (a) or (b) above, a balance sheet and related statements certificate of operations, cash flows and stockholder's equity for each unconsolidated Subsidiary for the applicable period;
(i) promptly after the receipt thereof by Holdings, a Financial Officer of the Borrower certifying that no Event of Default or 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 time, such other information regarding the operations, business affairs and financial condition of Holdings, the Borrower or any of their Subsidiaries, or compliance with the terms of any Loan Document, or such consolidating financial statements, as in each case the Agents or any Lender, acting through the Administrative Agent, may reasonably request.Default
Appears in 1 contract
Samples: Credit Agreement (On Command Corp)
Financial Statements, Reports, etc. Furnish to the Agents and each Lender:Administrative Agent (which will promptly furnish such information to the Lenders):
(a) within Within 90 days after (or such other time period as specified in the end SEC’s rules and regulations with respect to non-accelerated filers for the filing of annual reports on Form 10-K), for each fiscal yearyear (commencing with the fiscal year ending on or about January 31, 2017), a condensed consolidated balance sheet and related statements of operations, cash flows comprehensive income and owners' stockholder’s equity or stockholders' equity which in each case has been derived from consolidating schedules to Claire’s Stores’ consolidated financial statements as of the same date and for the same period showing the financial position of each of Holdings and its Subsidiaries and the Borrower and its the Subsidiaries as of the close of such fiscal year and the condensed consolidated results of their operations during such year, all which condensed consolidated balance sheet and related statements of operations, comprehensive income and stockholder’s equity shall be, as derived from consolidating schedules to Claire’s Stores’ consolidated financial statements as of the same date and for the same period, audited by independent public accountants of recognized national standing reasonably acceptable to the Administrative Agent and accompanied by an opinion of such accountants (which shall not be qualified in as to scope of audit or as to the status of the Borrower or any material respectMaterial Subsidiary as a going concern) to the effect that such condensed consolidated financial statements fairly present, in all material respects, the financial position and results of operations of each of Holdings and its Subsidiaries and the Borrower and its the Subsidiaries on a condensed consolidated basis in accordance with GAAP, subject to exceptions consistent with the presentation of financial information contained in the Notes Offering Memorandum (it being understood that the delivery by Holdings filing with the SEC of its annual reports on Form 10-K as filed with of Claire’s Stores and its consolidated Subsidiaries, or delivery by the SEC Claire’s Stores of such reports, shall satisfy its the requirements (but not those of the Borrower and its Subsidiaries) under this Section 5.04(a) to the extent such annual reports include the information specified herein);
(b) within Within 45 days after (or such other time period as specified in the end SEC’s rules and regulations with respect to non-accelerated filers for the filing of quarterly reports on Form 10-Q), for each of the first three fiscal quarters of each fiscal year, a condensed consolidated balance sheet and related statements of operations and cash flows comprehensive income showing the financial position of each of Holdings and its Subsidiaries and the Borrower and its the Subsidiaries as of the close of such fiscal quarter and the condensed consolidated results of their operations during such fiscal quarter and the then-elapsed portion of the fiscal year, all of which shall be in reasonable detail and which condensed consolidated balance sheet and related statements of operations and comprehensive income shall be certified by a Financial Officer of Holdings or the Borrower, as the case may be, Borrower on behalf of Holdings or the Borrower, respectively, Borrower as fairly presenting, in all material respects, the financial position and results of operations of Holdings and its Subsidiaries or the Borrower and its Subsidiaries, as the case may be, in each case Subsidiaries on a condensed consolidated basis in accordance with GAAP (except for the absence of footnotes), subject to normal year-end audit adjustmentsadjustments and the absence of footnotes, it being understood that the delivery by Holdings of its Form 10-Q as filed and to exceptions consistent with the SEC shall satisfy its requirements (but not those of the Borrower and its Subsidiaries) under this Section 5.04(b);
(c) concurrently with any delivery presentation of financial statements under (a) or (b) above, a certificate of the accounting firm or Financial Officer on behalf of the Borrower opining on or certifying such statements (which certificate, when furnished by an accounting firm, may be limited to accounting matters and disclaim responsibility for legal interpretations) (i) certifying that no Event of Default or Default has occurred or, if such an Event of Default or Default has occurred, specifying the nature and extent thereof and any corrective action taken or proposed to be taken with respect thereto and (ii) setting forth computations in reasonable detail satisfactory to the Administrative Agent demonstrating compliance with the covenants information contained in Sections 6.10, 6.11 and 6.12 the Notes Offering Memorandum (it being understood that the information required filing with the SEC of quarterly reports on Form 10-Q of Claire’s Stores and its subsidiaries, or the delivery by this clause (ii) may be provided in a certificate Claire’s Stores of a Financial Officer on behalf of the Borrower instead of from such accounting firm);
(d) promptly after the same become publicly available, copies of all periodic and other publicly available reports, proxy statements and, shall satisfy the requirements of this Section 5.04(b) to the extent requested by such quarterly reports include 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 beinformation specified herein);
(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 Holdings or the Borrower, as the case may be, reconciling such changes to what the financial statements would have been without such changes;
(f) 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 receipt thereof by Holdings, the Borrower or 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 time, such other information regarding the operations, business affairs and financial condition of Holdings, the Borrower or any of their Subsidiaries, or compliance with the terms of any Loan Document, or such consolidating financial statements, as in each case the Agents or any Lender, acting through the Administrative Agent, may reasonably request.
Appears in 1 contract
Financial Statements, Reports, etc. Furnish to the Agents and each Lender:Administrative Agent (which will promptly furnish such information to the Lenders):
(a) within 90 days (or, if applicable, such shorter period as the SEC shall specify for the filing of annual reports on Form 10-K) after the end of each fiscal year, a consolidated balance sheet and related statements of operations, cash flows and owners' equity or stockholders' ’ equity showing the financial position of each of Holdings and its Subsidiaries and the Borrower and its Subsidiaries as of the close of such fiscal year and the consolidated results of their its operations during such year and, beginning with the financials delivered pursuant to this clause (a) in respect of the 2008 fiscal year, all 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 by independent public accountants of recognized national standing reasonably acceptable to the Administrative Agent and accompanied by an opinion of such accountants (which opinion shall not be qualified in as to scope of audit or as to the status of the Borrower or any material respectMaterial Subsidiary as a going concern) to the effect that such consolidated financial statements fairly present, in all material respects, the financial position and results of operations of each of Holdings and its Subsidiaries and the Borrower and its Subsidiaries on a consolidated basis in accordance with GAAP, GAAP (it being understood that the delivery by Holdings the Borrower of its annual reports on Form 10-K as filed with the SEC shall satisfy its requirements (but not those of the Borrower and its Subsidiaries) under consolidated Subsidiaries shall satisfy the requirements of this Section 5.04(a) to the extent such annual reports include the information specified herein);
(b) within 45 days (or, if applicable, such shorter period as the SEC shall specify for the filing of quarterly reports on Form 10-Q) after the end of each of the first three fiscal quarters of each fiscal year beginning with the fiscal quarter ending June 30, 2007, for each of the first three fiscal quarters of each fiscal year, (i) a consolidated balance sheet and related statements of operations and cash flows showing the financial position of each of Holdings and its Subsidiaries and the Borrower and its Subsidiaries as of the close of such fiscal quarter and the consolidated results of their its operations during such fiscal quarter and the then-elapsed portion of the fiscal year and 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 Second Amended and Restated Term Loan Credit Agreement 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 Financial Officer of Holdings or the Borrower, as the case may be, Borrower on behalf of Holdings or the Borrower, respectively, Borrower as fairly presenting, in all material respects, the financial position and results of operations of Holdings and its Subsidiaries or the Borrower and its Subsidiaries, as the case may be, in each case Subsidiaries on a consolidated basis in accordance with GAAP (except for the absence of footnotes), subject to normal year-end audit adjustments, adjustments and the absence of footnotes) (it being understood that the delivery by Holdings the Borrower of its quarterly reports on Form 10-Q as filed with the SEC shall satisfy its requirements (but not those of the Borrower and its Subsidiaries) under consolidated Subsidiaries shall satisfy the requirements of this Section 5.04(b);
(c) concurrently with any delivery of financial statements under (a) or (b) above, a certificate of the accounting firm or Financial Officer on behalf of the Borrower opining on or certifying such statements (which certificate, when furnished by an accounting firm, may be limited to accounting matters and disclaim responsibility for legal interpretations) (i) certifying that no Event of Default or Default has occurred or, if such an Event of Default or Default has occurred, specifying the nature and extent thereof and any corrective action taken or proposed to be taken with respect thereto and (ii) setting forth computations in reasonable detail satisfactory to the Administrative Agent demonstrating compliance with the covenants contained in Sections 6.10, 6.11 and 6.12 (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) promptly after the same become publicly available, copies of all periodic and other publicly available reports, proxy statements and, to the extent requested by such quarterly reports include 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 beinformation specified herein);
(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 Holdings or the Borrower, as the case may be, reconciling such changes to what the financial statements would have been without such changes;
(f) 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 receipt thereof by Holdings, the Borrower or 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 time, such other information regarding the operations, business affairs and financial condition of Holdings, the Borrower or any of their Subsidiaries, or compliance with the terms of any Loan Document, or such 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: Term Loan Credit Agreement (Berry Plastics Holding Corp)
Financial Statements, Reports, etc. Furnish to the Agents and each Lender:
(a) within 90 days after the end of each fiscal year, a consolidated balance sheet and related statements of operations, cash flows and owners' equity or stockholders' equity showing the financial position of each of Holdings and its Subsidiaries and the Borrower and its Subsidiaries as of the close of such fiscal year and the consolidated results of their operations during such year, all audited by independent public accountants of recognized national standing reasonably acceptable to the Administrative Agent and accompanied by an opinion of such accountants (which shall not be qualified in any material respect) to the effect that such consolidated financial statements fairly present, in all material respects, the financial position and results of operations of each of Holdings and its Subsidiaries and the Borrower and its Subsidiaries on a consolidated basis in accordance with GAAP, it being understood that the delivery by Holdings of its Form 10-K as filed with the SEC shall satisfy its requirements (but not those of the Borrower and its Subsidiaries) under this Section 5.04(a);
(b) within 45 days after the end of each of the first three fiscal quarters of each fiscal year, a consolidated balance sheet and related statements of operations and cash flows showing the financial position of each of Holdings and its Subsidiaries 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, all certified by a Financial Officer of Holdings or the Borrower, as the case may be, on behalf of Holdings or the Borrower, respectively, as fairly presenting, in all material respects, the financial position and results of operations of 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 GAAP (except for the absence of footnotes), subject to normal year-end audit adjustments, it being understood that the delivery by Holdings of its Form 10-Q as filed with the SEC shall satisfy its requirements (but not those of the Borrower and its Subsidiaries) under this Section 5.04(b);
(c) concurrently with any delivery of financial statements under (a) or (b) above, a certificate of the accounting firm or Financial Officer on behalf of the Borrower opining on or certifying such statements (which certificate, when furnished by an accounting firm, may be limited to accounting matters and disclaim responsibility for legal interpretations) (i) certifying that no Event of Default or Default has occurred or, if such an Event of Default or Default has occurred, specifying the nature and extent thereof and any corrective action taken or proposed to be taken with respect thereto and (ii) setting forth computations in reasonable detail satisfactory to the Administrative Agent demonstrating compliance with the covenants contained in Sections 6.10, 6.11 and 6.12 (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) 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 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 Holdings or the Borrower, as the case may be, reconciling such changes to what the financial statements would have been without such changes;
(f) 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 receipt thereof by Holdings, the Borrower or 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 time, such other information regarding the operations, business affairs and financial condition of Holdings, the Borrower or any of their Subsidiaries, or compliance with the terms of any Loan Document, or such consolidating financial statements, as in each case the Agents or any Lender, acting through the Administrative Agent, may reasonably request.
Appears in 1 contract
Financial Statements, Reports, etc. Furnish to the Agents and each Lender:Administrative Agent (which will promptly furnish such information to the Lenders):
(a) within 90 days (or, if applicable, such shorter period as the SEC shall specify for the filing of annual reports on Form 10-K) after the end of each fiscal year, a consolidated balance sheet and related statements of operations, cash flows and owners' equity or stockholders' ’ equity showing the financial position of each of Holdings and its Subsidiaries and the Borrower Company and its Subsidiaries as of the close of such fiscal year and the consolidated results of their its operations during such year and, beginning with the financials delivered pursuant to this clause (a) in respect of the 2008 fiscal year, all 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 by independent public accountants of recognized national standing reasonably acceptable to the Administrative Agent and accompanied by an opinion of such accountants (which opinion shall not be qualified in as to scope of audit or as to the status of the Company or any material respectMaterial Subsidiary as a going concern) to the effect that such consolidated financial statements fairly present, in all material respects, the financial position and results of operations of each of Holdings and its Subsidiaries and the Borrower Company and its Subsidiaries on a consolidated basis in accordance with GAAP, GAAP (it being understood that the delivery by Holdings the Company of its annual reports on Form 10-K as filed with of the SEC Company and its consolidated Subsidiaries shall satisfy its the requirements (but not those of the Borrower and its Subsidiaries) under this Section 5.04(a) to the extent such annual reports include the information specified herein);
(b) within 45 days (or, if applicable, such shorter period as the SEC shall specify for the filing of quarterly reports on Form 10-Q) after the end of each of the first three fiscal quarters of each fiscal year beginning with the fiscal quarter ending June 30, 2007, for each of the first three fiscal quarters of each fiscal year, (i) a consolidated balance sheet and related statements of operations and cash flows showing the financial position of each of Holdings and its Subsidiaries and the Borrower Company and its Subsidiaries as of the close of such fiscal quarter and the consolidated results of their its operations during such fiscal quarter and the then-elapsed portion of the fiscal year and 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 Financial Officer of Holdings or the Borrower, as the case may be, Company on behalf of Holdings or the Borrower, respectively, Company as fairly presenting, in all material respects, the financial position and results of operations of Holdings the Company and its Subsidiaries or the Borrower and its Subsidiaries, as the case may be, in each case on a consolidated basis in accordance with GAAP (except for the absence of footnotes), subject to normal year-end audit adjustments, adjustments and the absence of footnotes) (it being understood that the delivery by Holdings the Company of its quarterly reports on Form 10-Q as filed with of the SEC Company and its consolidated Subsidiaries shall satisfy its the requirements (but not those of the Borrower and its Subsidiaries) under this Section 5.04(b);
(c) concurrently with any delivery of financial statements under (a) or (b) above, a certificate of the accounting firm or Financial Officer on behalf of the Borrower opining on or certifying such statements (which certificate, when furnished by an accounting firm, may be limited to accounting matters and disclaim responsibility for legal interpretations) (i) certifying that no Event of Default or Default has occurred or, if such an Event of Default or Default has occurred, specifying the nature and extent thereof and any corrective action taken or proposed to be taken with respect thereto and (ii) setting forth computations in reasonable detail satisfactory to the Administrative Agent demonstrating compliance with the covenants contained in Sections 6.10, 6.11 and 6.12 (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) promptly after the same become publicly available, copies of all periodic and other publicly available reports, proxy statements and, to the extent requested by such quarterly reports include 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 beinformation specified herein);
(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 Holdings or the Borrower, as the case may be, reconciling such changes to what the financial statements would have been without such changes;
(f) 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 receipt thereof by Holdings, the Borrower or 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 time, such other information regarding the operations, business affairs and financial condition of Holdings, the Borrower or any of their Subsidiaries, or compliance with the terms of any Loan Document, or such 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: Revolving Credit Agreement (Berry Plastics Group Inc)
Financial Statements, Reports, etc. Furnish to the Agents and each Lender:Administrative Agent (which will promptly furnish such information to the Lenders):
(a) within 90 Within 12090 days after (or such longer time period as specified in the SEC’s rules and regulations with respect to non-accelerated filers for the filing of annual reports on Form 10-K) following the end of each fiscal yearyear (commencing with the fiscal year ending December 31, 2019), a consolidated balance sheet and related statements of operations, cash flows and owners' equity or stockholders' ’ equity showing the financial position of each of Holdings and its Subsidiaries and the Borrower and its Subsidiaries consolidated subsidiaries as of the close of such fiscal year and the consolidated results of their operations during such year and setting forth in comparative form the corresponding figures for the prior fiscal year, all which consolidated balance sheet and related statements of operations, cash flows and owners’ equity shall be accompanied by a customary management’s discussion and analysis (including key performance indicators) and audited by independent public accountants of recognized national standing reasonably acceptable to the Administrative Agent and accompanied by an opinion of such accountants (which opinion shall not be qualified as to scope of audit or as to the status of the Borrower or any Material Subsidiary as a going concern, other than solely with respect to, or resulting solely from an upcoming maturity date under any series of Indebtedness occurring within one year from the time such opinion is delivered or potential inability to satisfy a financial maintenance covenant under any series of Indebtedness on a future date or in any material respecta future period) to the effect that such consolidated financial statements fairly present, in all material respects, the financial position and results of operations of each of Holdings and its Subsidiaries and the Borrower and its Subsidiaries consolidated subsidiaries on a consolidated basis in accordance with GAAP, GAAP (it being understood that the delivery by Holdings the Borrower of its annual reports on Form 10-K as filed with the SEC shall satisfy its requirements (but not those of the Borrower and its Subsidiaries) under 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 6045 days (or such longer time period as specified in the SEC’s rules and regulations with respect to non-accelerated filers for the filing of quarterly reports on Form 10-Q) (or in the case of the fiscal quarter ending September 30, 2019, within 45 90 days after following the end of such fiscal quarter), following the end of each of the first three fiscal quarters of each fiscal yearyear (commencing with the fiscal quarter ending September 30, 2019), a consolidated balance sheet and related statements of operations and cash flows showing the financial position of each of Holdings and its Subsidiaries and the Borrower and its Subsidiaries consolidated subsidiaries as of the close of such fiscal quarter and the consolidated results of their operations during such fiscal quarter and the then-elapsed portion of the fiscal year and setting forth in comparative form the corresponding figures for the corresponding periods of the prior fiscal year, all of which shall be in reasonable detail and which consolidated balance sheet and related statements of operations and cash flows shall be accompanied by a customary management’s discussion and analysis (including key performance indicators) and certified by a Financial Officer of Holdings or the Borrower, as the case may be, Borrower on behalf of Holdings or the Borrower, respectively, Borrower as fairly presenting, in all material respects, the financial position and results of operations of Holdings and its Subsidiaries or the Borrower and its Subsidiaries, as the case may be, in each case consolidated subsidiaries on a consolidated basis in accordance with GAAP (except for the absence of footnotes), subject to normal year-end audit adjustments, adjustments and the absence of footnotes) (it being understood that the delivery by Holdings the Borrower of its quarterly reports on Form 10-Q as filed with the SEC shall satisfy its requirements (but not those of the Borrower and its Subsidiaries) under consolidated subsidiaries shall satisfy the requirements of this Section 5.04(b);
(c) concurrently with any delivery of financial statements under (a) or (b) above, a certificate of the accounting firm or Financial Officer on behalf of the Borrower opining on or certifying such statements (which certificate, when furnished by an accounting firm, may be limited to accounting matters and disclaim responsibility for legal interpretations) (i) certifying that no Event of Default or Default has occurred or, if such an Event of Default or Default has occurred, specifying the nature and extent thereof and any corrective action taken or proposed to be taken with respect thereto and (ii) setting forth computations in reasonable detail satisfactory to the Administrative Agent demonstrating compliance with the covenants contained in Sections 6.10, 6.11 and 6.12 (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) promptly after the same become publicly available, copies of all periodic and other publicly available reports, proxy statements and, to the extent requested by such quarterly reports include 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 beinformation specified herein);
(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 Holdings or the Borrower, as the case may be, reconciling such changes to what the financial statements would have been without such changes;
(f) 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 receipt thereof by Holdings, the Borrower or 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 time, such other information regarding the operations, business affairs and financial condition of Holdings, the Borrower or any of their Subsidiaries, or compliance with the terms of any Loan Document, or such 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: Incremental Assumption Agreement and Second Amendment to Credit Agreement (Playtika Holding Corp.)
Financial Statements, Reports, etc. Furnish to the Agents and each Lender:Administrative Agent (which will promptly furnish such information to the Lenders):
(a) within 90 days (or, if applicable, such shorter period as the SEC shall specify for the filing of annual reports on Form 10-K) after the end of each fiscal year, a consolidated balance sheet and related statements of operations, cash flows and owners' equity or stockholders' ’ equity showing the financial position of each of Holdings and its Subsidiaries and the Borrower Company and its Subsidiaries as of the close of such fiscal year and the consolidated results of their its operations during such year and, beginning with the financials delivered pursuant to this clause (a) in respect of the 2008 fiscal year, all 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 by independent public accountants of recognized national standing reasonably acceptable to the Administrative Agent and accompanied by an opinion of such accountants (which opinion shall not be qualified in as to scope of audit or as to the status of the Company or any material respectMaterial Subsidiary as a going concern) to the effect that such consolidated financial statements fairly present, in all material respects, the financial position and results of operations of each of Holdings and its Subsidiaries and the Borrower Company and its Subsidiaries on a consolidated basis in accordance with GAAP, GAAP (it being understood that the delivery by Holdings the Company of its annual reports on Form 10-K as filed with of the SEC Company and its consolidated Subsidiaries shall satisfy its the Amended and Restated Revolving Credit Agreement requirements (but not those of the Borrower and its Subsidiaries) under this Section 5.04(a) to the extent such annual reports include the information specified herein);
(b) within 45 days (or, if applicable, such shorter period as the SEC shall specify for the filing of quarterly reports on Form 10-Q) after the end of each of the first three fiscal quarters of each fiscal year beginning with the fiscal quarter ending June 30, 2007, for each of the first three fiscal quarters of each fiscal year, (i) a consolidated balance sheet and related statements of operations and cash flows showing the financial position of each of Holdings and its Subsidiaries and the Borrower Company and its Subsidiaries as of the close of such fiscal quarter and the consolidated results of their its operations during such fiscal quarter and the then-elapsed portion of the fiscal year and 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 Financial Officer of Holdings or the Borrower, as the case may be, Company on behalf of Holdings or the Borrower, respectively, Company as fairly presenting, in all material respects, the financial position and results of operations of Holdings the Company and its Subsidiaries or the Borrower and its Subsidiaries, as the case may be, in each case on a consolidated basis in accordance with GAAP (except for the absence of footnotes), subject to normal year-end audit adjustments, adjustments and the absence of footnotes) (it being understood that the delivery by Holdings the Company of its quarterly reports on Form 10-Q as filed with of the SEC Company and its consolidated Subsidiaries shall satisfy its the requirements (but not those of the Borrower and its Subsidiaries) under this Section 5.04(b);
(c) concurrently with any delivery of financial statements under (a) or (b) above, a certificate of the accounting firm or Financial Officer on behalf of the Borrower opining on or certifying such statements (which certificate, when furnished by an accounting firm, may be limited to accounting matters and disclaim responsibility for legal interpretations) (i) certifying that no Event of Default or Default has occurred or, if such an Event of Default or Default has occurred, specifying the nature and extent thereof and any corrective action taken or proposed to be taken with respect thereto and (ii) setting forth computations in reasonable detail satisfactory to the Administrative Agent demonstrating compliance with the covenants contained in Sections 6.10, 6.11 and 6.12 (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) promptly after the same become publicly available, copies of all periodic and other publicly available reports, proxy statements and, to the extent requested by such quarterly reports include 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 beinformation specified herein);
(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 Holdings or the Borrower, as the case may be, reconciling such changes to what the financial statements would have been without such changes;
(f) 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 receipt thereof by Holdings, the Borrower or 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 time, such other information regarding the operations, business affairs and financial condition of Holdings, the Borrower or any of their Subsidiaries, or compliance with the terms of any Loan Document, or such 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: Revolving Credit Agreement (Berry Plastics Holding Corp)
Financial Statements, Reports, etc. Furnish to the Agents and each Lender:Administrative Agent (which will promptly furnish such information to the Lenders):
(a) within Within 90 days after (or such other time period as specified in the end SEC’s rules and regulations with respect to non-accelerated filers for the filing of annual reports on Form 10-K), for each fiscal yearyear (commencing with the fiscal year ending January 31, 2017), a condensed consolidated balance sheet and related statements of operations, cash flows comprehensive income and owners' stockholder’s equity or stockholders' equity which in each case has been derived from consolidating schedules to Claire’s Stores’ consolidated financial statements as of the same date and for the same fiscal year showing the financial position of each of Holdings and its Subsidiaries CGIH and the Borrower and its Subsidiaries as of the close of such fiscal year and the condensed consolidated results of their operations during such year, all which condensed consolidated balance sheet and related statements of operations, comprehensive income and stockholder’s equity shall be, as derived from consolidating schedules to Claire’s Stores’ consolidated financial statements as of the same date and for the same fiscal year, audited by independent public accountants of recognized national standing reasonably acceptable to the Administrative Agent and accompanied by an opinion of such accountants (which shall not be qualified in as to scope of audit or as to the status of any material respectBorrower or any Material Subsidiary as a going concern) to the effect that such condensed consolidated financial statements fairly present, in all material respects, the financial position and results of operations of each of Holdings and its Subsidiaries CGIH and the Borrower and its Subsidiaries on a condensed consolidated basis in accordance with GAAP, subject to exceptions consistent with the presentation of financial information contained in the Notes Offering Memorandum (it being understood that the delivery by Holdings filing with the SEC of its annual reports on Form 10-K as filed with the SEC of Claire’s Stores and its consolidated subsidiaries, or delivery by Claire’s Stores of such reports, shall satisfy its the requirements (but not those of the Borrower and its Subsidiaries) under this Section 5.04(a) to the extent such annual reports include the information specified herein);
(b) within Within 45 days after (or such other time period as specified in the end SEC’s rules and regulations with respect to non-accelerated filers for the filing of quarterly reports on Form 10-Q), for each of the first three fiscal quarters of each fiscal year, a condensed consolidated balance sheet and related statements of operations and cash flows comprehensive income showing the financial position of each of Holdings and its Subsidiaries the CGIH and the Borrower and its Subsidiaries as of the close of such fiscal quarter and the condensed consolidated results of their operations during such fiscal quarter and the then-elapsed portion of the fiscal year, all of which shall be in reasonable detail and which condensed consolidated balance sheet and related statements of operations and comprehensive income shall be certified by a Financial Officer of Holdings or the Borrower, as the case may be, on behalf of Holdings or the Borrower, respectively, Borrowers as fairly presenting, in all material respects, the financial position and results of operations of Holdings the CGIH and its the Subsidiaries or the Borrower and its Subsidiaries, as the case may be, in each case on a condensed consolidated basis in accordance with GAAP (except for the absence of footnotes), subject to normal year-end audit adjustmentsadjustments and the absence of footnotes), it being understood that the delivery by Holdings of its Form 10-Q as filed and to exceptions consistent with the SEC shall satisfy its requirements (but not those of the Borrower and its Subsidiaries) under this Section 5.04(b);
(c) concurrently with any delivery presentation of financial statements under (a) or (b) above, a certificate of the accounting firm or Financial Officer on behalf of the Borrower opining on or certifying such statements (which certificate, when furnished by an accounting firm, may be limited to accounting matters and disclaim responsibility for legal interpretations) (i) certifying that no Event of Default or Default has occurred or, if such an Event of Default or Default has occurred, specifying the nature and extent thereof and any corrective action taken or proposed to be taken with respect thereto and (ii) setting forth computations in reasonable detail satisfactory to the Administrative Agent demonstrating compliance with the covenants information contained in Sections 6.10, 6.11 and 6.12 the Notes Offering Memorandum (it being understood that the information required filing with the SEC of quarterly reports on Form 10-Q or other current reports on Form 8-K, as applicable of Claire’s Stores and its subsidiaries, or the delivery by this clause (ii) may be provided in a certificate Claire’s Stores of a Financial Officer on behalf of the Borrower instead of from such accounting firm);
(d) promptly after the same become publicly available, copies of all periodic and other publicly available reports, proxy statements and, shall satisfy the requirements of this Section 5.04(b) to the extent requested by such quarterly reports include 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 beinformation specified herein);
(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 Holdings or the Borrower, as the case may be, reconciling such changes to what the financial statements would have been without such changes;
(f) 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 receipt thereof by Holdings, the Borrower or 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 time, such other information regarding the operations, business affairs and financial condition of Holdings, the Borrower or any of their Subsidiaries, or compliance with the terms of any Loan Document, or such consolidating financial statements, as in each case the Agents or any Lender, acting through the Administrative Agent, may reasonably request.
Appears in 1 contract
Financial Statements, Reports, etc. Furnish In the case of the Borrower, furnish to the Agents Administrative Agent for distribution to the Lenders (except, in the case of the financial statements referred to in paragraphs (a) and each Lender:(b) below, to the extent such financial statements are contained in materials already delivered to the Administrative Agent pursuant to paragraph (d) below):
(a) within 90 120 days after the end of each fiscal year, a (i) its consolidated balance sheet and related statements of operationsincome and changes in financial position (or of cash flow, cash flows and owners' equity or stockholders' equity as appropriate), showing the financial position condition of each of Holdings and its Subsidiaries and the Borrower and its consolidated Subsidiaries as of the close of such fiscal year and the consolidated results of their its operations and the operations of such Subsidiaries during such year, all audited by Deloitte & Touche LLP or other independent public accountants of recognized national standing reasonably acceptable to the Administrative Agent and accompanied by an opinion of such accountants (which shall not be qualified in any material respect) to the effect that such consolidated financial statements fairly present, in all material respects, present the financial position condition and results of operations of each of Holdings and its Subsidiaries and the Borrower and its Subsidiaries on a consolidated basis in accordance with GAAPgenerally accepted accounting principles consistently applied, it being understood that and (ii) a consolidated balance sheet and related statements of income and changes in financial position (or of cash flow, as the delivery by Holdings case may be) for KGE as of the end of such fiscal year, showing the consolidated financial condition of KGE and its consolidated Subsidiaries as of the close of such fiscal year and the results of its Form 10-K as filed with operations and the SEC shall satisfy its requirements (but not those operations of such Subsidiaries during such year, all certified by a Financial Officer of the Borrower as fairly presenting the consolidated financial condition and its Subsidiariesresults 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 Administrative Agent and accompanied by an opinion of such accountants (which shall not be qualified in any material respect) under this Section 5.04(ato the effect that such financial statements fairly present the financial condition and results of operations of KGE on a consolidated basis in accordance with generally accepted accounting principles consistently applied);
(b) within 45 90 days after the end of each of the first three fiscal quarters of each fiscal year, a (i) its consolidated balance sheet and related statements of operations income and cash flows changes in financial position, showing the financial position condition of each of Holdings and its Subsidiaries and the Borrower and its consolidated Subsidiaries as of the close of such fiscal quarter and the results of its operations and the operations of such Subsidiaries during such fiscal quarter and the then elapsed portion of the fiscal year, all certified by one of its Financial Officers as fairly presenting the financial condition and results of operations of the Borrower and its consolidated 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, all certified by a one of its Financial Officer of Holdings or the Borrower, as the case may be, on behalf of Holdings or the Borrower, respectively, Officers as fairly presenting, in all material respects, presenting the financial position condition and results of operations of Holdings KGE and its consolidated Subsidiaries or the Borrower and its Subsidiaries, as the case may be, in each case on a consolidated basis in accordance with GAAP (except for the absence of footnotes)generally accepted accounting principles consistently applied, subject to normal year-end year‑end audit adjustments, it being understood that the delivery by Holdings of its Form 10-Q as filed with the SEC shall satisfy its requirements (but not those of the Borrower and its Subsidiaries) under this Section 5.04(b);
(c) concurrently with any delivery of financial statements under (a) or (b) above, a certificate of the accounting firm or a Financial Officer on behalf of the Borrower who shall, if applicable, be the Financial Officer opining on or certifying such statements (which certificate, when furnished by an accounting firm, may be limited to accounting matters and disclaim responsibility for legal interpretations) (i) certifying that no Event of Default or Default has occurred or, if such an Event of Default or Default has occurred, specifying the nature and extent thereof and any corrective action taken or proposed to be taken with respect thereto and (ii) setting forth computations in reasonable detail satisfactory to the Administrative Agent demonstrating compliance with the covenants contained in Sections 6.10, 6.11 and 6.12 (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)Section 6.1;
(d) promptly after the same become publicly available, copies of all periodic and other publicly available reportsreports on Forms 10‑K, proxy statements and, to the extent requested by the Administrative Agent, other materials 10-Q or 8-K filed by Holdings, the Borrower or any of their Subsidiaries it with the SEC, or distributed to its shareholders generally, as the case may be;; and
(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 Holdings or the Borrower, as the case may be, reconciling such changes to what the financial statements would have been without such changes;
(f) 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 receipt thereof by Holdings, the Borrower or 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 time, such other information regarding the operations, business affairs and financial condition of Holdings, the Borrower or any of their Subsidiaries, Significant Subsidiary or compliance with the terms of any Loan Document, or such consolidating financial statements, as in each case the Agents Administrative Agent or any Lender, acting through the Administrative Agent, Lender may reasonably request. Any financial statement or report required to be furnished pursuant to Section 5.1(a), 5.1(b) or 5.1(d) shall be deemed to have been furnished on the date on which and, provided such date is within the period specified, such requirement will be satisfied if, (A) the Borrower files a form, report or other document with the SEC that contains such 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 or by other similar electronic means.
Appears in 1 contract
Financial Statements, Reports, etc. Furnish to the Agents and each Lender:Administrative Agent (which will promptly furnish such information to the Lenders):
(a) within Within 90 days after (or such other time period as specified in the end SEC’s rules and regulations with respect to non-accelerated filers for the filing of annual reports on Form 10-K), for each fiscal yearyear (commencing with the fiscal year ending January 31, 2017), a condensed consolidated balance sheet and related statements of operations, cash flows comprehensive income and owners' stockholder’s equity or stockholders' equity which in each case has been derived from consolidating schedules to Claire’s Stores’ consolidated financial statements as of the same date and for the same fiscal year showing the financial position of each of Holdings and its Subsidiaries and the Borrower and its the Subsidiaries as of the close of such fiscal year and the condensed consolidated results of their operations during such year, all which condensed consolidated balance sheet and related statements of operations, comprehensive income and stockholder’s equity shall be, as derived from consolidating schedules to Claire’s Stores’ consolidated financial statements as of the same date and for the same fiscal year, audited by independent public accountants of recognized national standing reasonably acceptable to the Administrative Agent and accompanied by an opinion of such accountants (which shall not be qualified in as to scope of audit or as to the status of the Borrower or any material respectMaterial Subsidiary as a going concern) to the effect that such condensed consolidated financial statements fairly present, in all material respects, the financial position and results of operations of each of Holdings and its Subsidiaries and the Borrower and its the Subsidiaries on a condensed consolidated basis in accordance with GAAP, subject to exceptions consistent with the presentation of financial information contained in the Notes Offering Memorandum (it being understood that the delivery by Holdings filing with the SEC of its annual reports on Form 10-K as filed with the SEC of Claire’s Stores and its consolidated subsidiaries, or delivery by Claire’s Stores of such reports, shall satisfy its the requirements (but not those of the Borrower and its Subsidiaries) under this Section 5.04(a) to the extent such annual reports include the information specified herein);
(b) within Within 45 days after (or such other time period as specified in the end SEC’s rules and regulations with respect to non-accelerated filers for the filing of annual reports on Form 10-Q), for each of the first three fiscal quarters of each fiscal year, a condensed consolidated balance sheet and related statements of operations and cash flows comprehensive income showing the financial position of each of Holdings and its Subsidiaries and the Borrower and its the Subsidiaries as of the close of such fiscal quarter and the condensed consolidated results of their operations during such fiscal quarter and the then-elapsed portion of the fiscal year, all of which shall be in reasonable detail and which condensed consolidated balance sheet and related statements of operations and comprehensive income shall be certified by a Financial Officer of Holdings or the Borrower, as the case may be, Borrower on behalf of Holdings or the Borrower, respectively, Borrower as fairly presenting, in all material respects, the financial position and results of operations of Holdings and its Subsidiaries or the Borrower and its Subsidiaries, as the case may be, in each case Subsidiaries on a condensed consolidated basis in accordance with GAAP (except for the absence of footnotes), subject to normal year-end audit adjustmentsadjustments and the absence of footnotes), it being understood that the delivery by Holdings of its Form 10-Q as filed and to exceptions consistent with the SEC shall satisfy its requirements (but not those of the Borrower and its Subsidiaries) under this Section 5.04(b);
(c) concurrently with any delivery presentation of financial statements under (a) or (b) above, a certificate of the accounting firm or Financial Officer on behalf of the Borrower opining on or certifying such statements (which certificate, when furnished by an accounting firm, may be limited to accounting matters and disclaim responsibility for legal interpretations) (i) certifying that no Event of Default or Default has occurred or, if such an Event of Default or Default has occurred, specifying the nature and extent thereof and any corrective action taken or proposed to be taken with respect thereto and (ii) setting forth computations in reasonable detail satisfactory to the Administrative Agent demonstrating compliance with the covenants information contained in Sections 6.10, 6.11 and 6.12 the Notes Offering Memorandum (it being understood that the information required filing with the SEC of quarterly reports on Form 10-Q of Claire’s Stores and its subsidiaries, or the delivery by this clause (ii) may be provided in a certificate Claire’s Stores of a Financial Officer on behalf of the Borrower instead of from such accounting firm);
(d) promptly after the same become publicly available, copies of all periodic and other publicly available reports, proxy statements and, shall satisfy the requirements of this Section 5.04(b) to the extent requested by such quarterly reports include 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 beinformation specified herein);
(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 Holdings or the Borrower, as the case may be, reconciling such changes to what the financial statements would have been without such changes;
(f) 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 receipt thereof by Holdings, the Borrower or 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 time, such other information regarding the operations, business affairs and financial condition of Holdings, the Borrower or any of their Subsidiaries, or compliance with the terms of any Loan Document, or such consolidating financial statements, as in each case the Agents or any Lender, acting through the Administrative Agent, may reasonably request.
Appears in 1 contract
Financial Statements, Reports, etc. Furnish to the Revolving Facilities Agents (and each Lender:the Administrative Agent will promptly furnish such information to the Lenders):
(a) within 90 Within 30 days after following the end of each fiscal yearmonth, for such fiscal month, a consolidated balance sheet and related statements of operations and cash flows showing the consolidated financial position of Holdings and its Subsidiaries, on a basis consistent with the basis for Holdings’ historical preparation of monthly management financial report;
(b) Within 90 days (or such other time period as specified in the SEC’s rules and regulations with respect to non-accelerated filers for the filing of annual reports on Form 10-K), for each fiscal year (commencing with the fiscal year ending December 31, 2007), (i) a consolidated balance sheet and related statements of operations, cash flows and owners' equity or stockholders' ’ equity showing the financial position of each of (x) Holdings and its Subsidiaries and the (y) Borrower and its Subsidiaries as of the close of such fiscal year and the consolidated results of their its operations during such year and, starting with the fiscal year ending December 31, 2007, setting forth in comparative form the corresponding figures for the prior fiscal year, all which consolidated balance sheet and related statements of operations, cash flows and owners’ equity shall be audited by independent public accountants of recognized national standing reasonably acceptable to the Administrative Agent and accompanied by an opinion of such accountants (which shall not be qualified in as to scope of audit or as to the status of Holdings, Borrower or any material respectMaterial Subsidiary as a going concern) to the effect that such consolidated financial statements fairly present, in all material respects, the financial position and results of operations of each of Holdings and its Subsidiaries and the Subsidiaries, or Borrower and its Subsidiaries Subsidiaries, as applicable, on a consolidated basis in accordance with GAAP, GAAP and (ii) management’s discussion and analysis (in reasonable detail) of significant operational and financial developments during the relevant period for Holdings and its Subsidiaries (it being understood that the delivery by Holdings of annual reports on Form 10 K of Holdings and its Form 10-K as filed with the SEC consolidated Subsidiaries shall satisfy its the requirements (but not those of the Borrower and its Subsidiaries) under this Section 5.04(a) as to Holdings and its Subsidiaries to the extent such annual reports include the information specified herein);
(bc) within Within 45 days after (or such other time period as specified in the end SEC’s rules and regulations with respect to non-accelerated filers for the filing of quarterly reports on Form 10-Q), for each of the first three fiscal quarters of each fiscal year, (i) a consolidated balance sheet and related statements of operations and cash flows showing the financial position of each of (x) Holdings and its Subsidiaries and the (y) Borrower and its Subsidiaries as of the close of such fiscal quarter and the consolidated results of their its operations during such fiscal quarter and the then-elapsed portion of the fiscal yearyear 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 for Holdings and its Subsidiaries, all of which shall be in reasonable detail and which consolidated balance sheet and related statements of operations and cash flows shall be certified by a Financial Officer of Holdings or the Borrower, as the case may be, Borrower on behalf of Holdings or the Borrower, respectively, as fairly presenting, in all material respects, the financial position and results of operations of Holdings and its Subsidiaries Subsidiaries, or the Borrower and its Subsidiaries, as the case may beapplicable, in each case on a consolidated basis in accordance with GAAP (except for the absence of footnotes), subject to normal year-end audit adjustments, adjustments and the absence of footnotes) (it being understood that the delivery by Holdings of its quarterly reports on Form 10-Q as filed with the SEC of Holdings and its consolidated Subsidiaries shall satisfy its the requirements (but not those of the Borrower this Section 5.04(c) as to Holdings and its Subsidiaries) under this Section 5.04(bSubsidiaries to the extent such quarterly reports include the information specified herein);
(cd) (x) concurrently with any delivery of financial statements under paragraphs (a) or (b) above, a certificate of the accounting firm or a Financial Officer on behalf of the Borrower opining on or certifying such statements (which certificate, when furnished by an accounting firm, may be limited to accounting matters and disclaim responsibility for legal interpretations) (i) certifying that no Event of Default or Default has occurred or, if such an Event of Default or Default has occurred, specifying the nature and extent thereof and any corrective action taken or proposed to be taken with respect thereto and thereto, (ii) commencing with the fiscal quarter ending December 31, 2007, setting forth computations in reasonable detail satisfactory to the Administrative Agent Revolving Facilities Agents demonstrating compliance with Section 6.10 and demonstrating the covenants contained calculation of Availability as of the end of such fiscal quarter, (iii) certifying a list of names of all Immaterial Subsidiaries, that each Subsidiary set forth on such list individually qualifies as an Immaterial Subsidiary and that all such Subsidiaries in Sections 6.10, 6.11 and 6.12 (it being understood that the information required by this aggregate do not exceed the limitation set forth in clause (iib) may be provided in of the definition of the term “Immaterial Subsidiary” and (iv) certifying a list of names of all Unrestricted Subsidiaries and that each Subsidiary set forth on such list qualifies as an Unrestricted Subsidiary, 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 its policies, a certificate of a Financial Officer the accounting firm opining on behalf or certifying such statements stating whether they obtained knowledge during the course of the Borrower instead their examination of from such statements of any Default or Event of Default (which certificate may be limited to accounting firmmatters and disclaim responsibility for legal interpretations);
(de) promptly 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 AgentRevolving Facilities Agents, other materials filed by Holdings, the Borrower or any of their the Subsidiaries with the SEC, or after an initial public offering, distributed to its shareholders stockholders generally, as the case may be;
applicable; provided, however, that such reports, proxy statements, filings and other materials required to be delivered pursuant to this clause (ed) if, as a result of any change in accounting principles and policies from those as in effect on the date shall be deemed delivered for purposes of this Agreement (other than in respect when posted to the website 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 Holdings or the Borrower, as the case may be, reconciling such changes to what the financial statements would have been without such changes;
(f) within 30 Within 90 days after the beginning of each fiscal year, a reasonably detailed consolidated annual 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, (including a projected consolidated balance sheet of Holdings the Borrower and its SubsidiariesSubsidiaries 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 Holdings the Borrower to the effect that, that the Budget is based on assumptions believed by such Financial Officer to be reasonable as of the best date of his knowledge, the budget is a reasonable estimate for the period covered therebydelivery thereof;
(g) promptly following Upon the creation or acquisition of any Subsidiary, a certificate from a Responsible Officer, identifying such new Subsidiary and the ownership interest reasonable request of the Borrower and Revolving Facilities Agents, an updated Perfection Certificate (or, to the Subsidiaries thereinextent 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(f);
(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 receipt thereof by Holdings, the Borrower or 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) promptlyPromptly, from time to time, such other information regarding the operations, business affairs and financial condition of Holdings, the Borrower or any of their the Subsidiaries, or compliance with the terms of any Loan Document, or such consolidating financial statements, Document as in each case the Revolving Facilities Agents may reasonably request (in each case, for itself or on behalf of any Lender);
(i) At any time (x) following the occurrence and during the continuance of an Availability Triggering Event or (y) that Availability under the Current Asset Revolving Facility is less than $20.0 million, acting through monthly inventory reports, summaries of receivables and payables and information concerning aging of receivables and payables, in each case reasonably satisfactory to the Current Asset Revolving Facility Agents;
(j) On or before the fifteenth Business Day of each month from and after the Closing Date, a Borrowing Base Certificate from the Borrower substantially in the form of Exhibit B as of the last day of the immediately preceding month, with such supporting materials as the Revolving Facilities Agents shall reasonably request; provided, that the Borrowing Base Certificate for (a) December 2007 shall not be required to be delivered until the 31st day of the following month and (b) each of the months in the first quarter following the Closing Date shall not be required to be delivered, in each case, until the 25th day of the following month. Notwithstanding the foregoing, after the occurrence and during the continuance of an Availability Triggering Event, the Borrower shall, if requested by the Revolving Facilities Agents, execute and deliver to the Revolving Facilities Agents Borrowing Base Certificates weekly. The Borrower may, at its option, deliver Borrowing Base Certificates more frequently than required by the foregoing provisions of this Section 5.04;
(k) Promptly upon request by the Administrative Agent, (i) copies of all notices received from a Multiemployer Plan sponsor, a plan administrator or any governmental agency, or provided to any Multiemployer Plan by the Borrower, a Subsidiary or any ERISA Affiliate, concerning an ERISA Event, and (ii) a complete copy of the most recently filed annual report (on IRS Form 5500-series) of each Plan with Unfunded Pension Liability (including, to the extent required, the related financial and actuarial statements and opinions and other supporting statements, certifications, schedules and information) required to be filed with the IRS; and
(l) Concurrently with the delivery of the financial information referred to in preceding paragraph (c), such updates as may reasonably requestbe necessary in order that the representation and warranty contained in Section 3.18(b) shall be true at such time.
Appears in 1 contract
Financial Statements, Reports, etc. Furnish to the Agents and each Lender:Administrative Agent (which will promptly furnish such information to the Lenders):
(a) within 90 days (or such shorter period as the SEC shall specify for the filing of Annual Reports on Form 10-K) after the end of each fiscal year, a consolidated balance sheet and related statements of operations, cash flows and owners' equity or stockholders' ’ equity showing the financial position of each of Holdings and its Subsidiaries and the Borrower and its Subsidiaries as of the close of such fiscal year and the consolidated results of their operations during such year and setting forth in comparative form the corresponding figures for the prior fiscal year, all audited by independent public accountants of recognized national standing reasonably acceptable to the Administrative Agent and accompanied by an opinion of such accountants (which shall not be qualified in any material respect) to the effect that such consolidated financial statements fairly present, in all material respects, the financial position and results of operations of each of Holdings and its Subsidiaries and the Borrower and its Subsidiaries on a consolidated basis in accordance with GAAP, GAAP (it being understood that the delivery by Holdings of its Annual Reports on Form 10-K as filed with the SEC of Holdings and its consolidated Subsidiaries shall satisfy its the requirements (but not those of the Borrower and its Subsidiaries) under this Section 5.04(a) to the extent such Annual Reports include the information specified herein);
(b) within 45 days (or such shorter period as the SEC shall specify for the filing of Quarterly Reports on Form 10-Q) after the end of each of the first three fiscal quarters of each fiscal year, a consolidated balance sheet and related statements of operations and cash flows showing the financial position of each of Holdings and its Subsidiaries and the Borrower and its Subsidiaries as of the close of such fiscal quarter and the consolidated results of their operations during such fiscal quarter and the then-elapsed portion of the fiscal year and setting forth in comparative form the corresponding figures for the corresponding periods of the prior fiscal year, all certified by a Financial Officer of Holdings or the Borrower, as the case may beHoldings, on behalf of Holdings or the Borrower, respectivelyHoldings, as fairly presenting, in all material respects, the financial position and results of operations of Holdings and its the Subsidiaries or the Borrower and its Subsidiaries, as the case may be, in each case on a consolidated basis in accordance with GAAP (except for the absence of footnotes), subject to normal year-end audit adjustments, adjustments and the absence of footnotes (it being understood that the delivery by Holdings of its Quarterly Reports on Form 10-Q as filed with the SEC of Holdings and its consolidated Subsidiaries shall satisfy its the requirements (but not those of the Borrower and its Subsidiaries) under this Section 5.04(b) to the extent such Quarterly Reports include the information specified herein);
(c) (x) concurrently with any delivery of financial statements under (a) or (b) above, a certificate of the accounting firm or Compliance Certificate executed by a Financial Officer on behalf of the Borrower opining on or certifying such statements (which certificate, when furnished by an accounting firm, may be limited to accounting matters and disclaim responsibility for legal interpretations) Holdings (i) certifying that no Event of Default or Default has occurred or, if such an Event of Default or Default has occurred, specifying the nature and extent thereof and any corrective action taken or proposed to be taken with respect thereto and (ii) commencing with the fiscal period ending June 30, 2009, setting forth computations in reasonable detail satisfactory to the Administrative Agent demonstrating compliance with the covenants covenant contained in Sections 6.10Section 6.10 and the Financial Performance Covenants and, 6.11 concurrently with any delivery of financial statements under Section 5.04(a) above (beginning with the fiscal year ended December 31, 2009), setting forth Holdings’ calculation of Excess Cash Flow and 6.12 (it being understood that the information required by this clause y) concurrently with any delivery of financial statements under (iia) may be provided in above, a certificate of a 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 the Financial Officer on behalf of the Borrower instead of from such Performance Covenants (which certificate may be limited to accounting firmmatters and disclaims responsibility for legal interpretations);
(d) promptly promptly, after the same become publicly available, copies of all periodic and other publicly available reports, proxy statements and, to the extent requested by the Administrative Agent, other materials filed by Parent or Holdings, the U.S. Borrower or any of their the Subsidiaries with the SEC, or distributed by Parent to its shareholders stockholders generally, as the case may beapplicable;
(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)Closing Date, the consolidated financial statements of Holdings or and the Borrower (and their respective Subsidiaries) Subsidiaries delivered pursuant to paragraph 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 Holdings or the Borrower, as the case may be, reconciling such changes to what the financial statements would have been without such changes;
(f) within 30 90 days after the beginning of each fiscal year, a budget an operating and capital expenditure budget, in form satisfactory to the Agents Administrative Agent prepared by Holdings for each of the four fiscal quarters of such fiscal year prepared in reasonable detail, of Holdings and its the 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 concurrently with any delivery of financial statements under clause (a) above, deliver updated Perfection Certificates (or, to the creation or acquisition of any Subsidiaryextent such request relates to specified information contained in the Perfection Certificates, a certificate from a Responsible Officer, identifying such new Subsidiary and information) reflecting all changes since the ownership interest date of the Borrower and the Subsidiaries thereininformation most recently received pursuant to this paragraph (g) or Section 5.10(e);
(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 receipt thereof by Holdings, the Borrower or any of their respective Subsidiariespromptly, a copy of all reports submitted to the Board of Directors (or any committee thereof) of any of Parent, Holdings, the U.S. Borrower or any Subsidiary in connection with any material interim or special audit made by independent accountants of the books of Holdings, the U.S. Borrower or any of their Subsidiaries; andSubsidiary;
(ji) promptly, from time to time, such other information regarding the operations, business affairs and financial condition of Holdings, the U.S. Borrower or any of their the Subsidiaries, or compliance with the terms of any Loan Document, or such consolidating financial statements, as in each case the Agents 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 any Lendergovernmental 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. Documents required to be delivered pursuant to Section 5.04(a), acting (b) or (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 Holdings or the Borrowers posts such documents, or provides a link thereto on Parent’s website on the Internet at the website address listed on Schedule 9.01; or (ii) on which such documents are posted on Holdings or the Borrowers behalf on an Internet or intranet website, if any, to which each Lender and the Administrative Agent have access (whether a commercial, third-party website or whether sponsored by the Administrative Agent); provided that: Holdings or the Borrowers shall deliver paper copies of such documents to the Administrative Agent or any Lender that requests (through the Administrative Agent) Holdings or the Borrowers to deliver such paper copies until a written request to cease delivering paper copies is given by the Administrative Agent or such Lender. Notwithstanding anything contained herein, in every instance Holdings or the Borrowers shall be required to provide paper copies of the Compliance Certificates required by Section 5.04(c) to the Administrative Agent. Except for such Compliance Certificates, the Administrative Agent shall have no obligation to request the delivery or to maintain copies of the documents referred to above, and in any event shall have no responsibility to monitor compliance by Holdings or the Borrowers with any such request for delivery, and each Lender shall be solely responsible for requesting delivery to it or maintaining its copies of such documents. Holdings and the Borrowers hereby acknowledge that (a) the Administrative Agent and/or the Joint Lead Arrangers will make available to the Lenders and any Issuing Bank materials and/or information provided by or on behalf of Holdings and Borrower hereunder (collectively, “Borrower Materials”) by posting the Borrower Materials on IntraLinks or another similar electronic system (the “Platform”) and (b) certain of the Lenders (each, a “Public Lender”) may reasonably requesthave personnel who do not wish to receive material non-public information with respect to Holdings, the Borrowers or their Affiliates, or the respective securities of any of the foregoing, and who may be engaged in investment and other market-related activities with respect to such Persons’ securities. Holdings and the Borrowers hereby agree that so long as Holdings or the Borrowers are the issuers of any outstanding debt or equity securities that are registered or issued pursuant to a private offering or is actively contemplating issuing any such securities they will use commercially reasonable efforts to identify that portion of the Borrower Materials that may be distributed to the Public Lenders and that (w) all such Borrower Materials shall be clearly and conspicuously marked “PUBLIC” which, at a minimum, shall mean that the word “PUBLIC” shall appear prominently on the first page thereof; (x) by marking Borrower Materials “PUBLIC,” the Borrower shall be deemed to have authorized the Administrative Agent, the Joint Lead Arrangers, the Issuing Bank and the Lenders to treat such Borrower Materials as not containing any material non-public information (although it may be sensitive and proprietary) with respect to the Borrower or its securities for purposes of United States Federal and state securities laws (provided, however, that to the extent such Borrower Materials constitute Information, they shall be treated as set forth in Section 9.16); (y) all Borrower Materials marked “PUBLIC” are permitted to be made available through a portion of the Platform designated “Public Side Information”; and (z) the Administrative Agent and the Joint Lead Arrangers shall be entitled to treat any Borrower Materials that are not marked “PUBLIC” as being suitable only for posting on a portion of the Platform not designated “Public Side Information.” Notwithstanding the foregoing, none of Holdings or any Borrower shall be under any obligation to xxxx any Borrower Materials “PUBLIC.” Notwithstanding the foregoing, the obligations in clauses (a) and (b) of this Section 5.04 may be satisfied with respect to financial information of Holdings and the Subsidiaries by furnishing (A) the applicable financial statements of Parent, together with the other information required by Sections 5.04(a) and (b), or (B) Parent’s Form 10-K or 10-Q, as applicable, filed with the SEC (to the extent such Annual Report or Quarterly Report, as applicable, includes such applicable financial statements of Parent and otherwise includes the information required by Sections 5.04(a) and (b), as applicable); provided that, with respect to each of subclauses (A) and (B) of this paragraph, Parent’s information is accompanied by information that explains in reasonable detail the differences between the information relating to Parent, on one hand, and information relating to Holdings and the Subsidiaries on a standalone basis, on the other hand.
Appears in 1 contract
Samples: Credit Agreement (Nalco Holding CO)
Financial Statements, Reports, etc. Furnish to the Agents and each Lender:Administrative Agent (which will promptly furnish such information to the Lenders):
(a) within 90 days (or, if applicable, such shorter period as the SEC shall specify for the filing of annual reports on Form 10-K) after the end of each fiscal year, a consolidated balance sheet and related statements of operations, cash flows and owners' equity or stockholders' ’ equity showing the financial position of each of Holdings and its Subsidiaries and the Borrower and its Subsidiaries as of the close of such fiscal year and the consolidated results of their its operations during such year and, beginning with the financials delivered pursuant to this clause (a) in respect of the 2008 fiscal year, all 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 by independent public accountants of recognized national standing reasonably acceptable to the Administrative Agent and accompanied by an opinion of such accountants (which opinion shall not be qualified in as to scope of audit or as to the status of the Borrower or any material respectMaterial Subsidiary as a going concern) to the effect that such consolidated financial statements fairly present, in all material respects, the financial position and results of operations of each of Holdings and its Subsidiaries and the Borrower and its Subsidiaries on a consolidated basis in accordance with GAAP, GAAP (it being understood that the delivery by Holdings the Borrower of its annual reports on Form 10-K as filed with the SEC shall satisfy its requirements (but not those of the Borrower and its Subsidiaries) under consolidated Subsidiaries shall satisfy the requirements of this Section 5.04(a) to the extent such annual reports include the information specified herein);
(b) within 45 days (or, if applicable, such shorter period as the SEC shall specify for the filing of quarterly reports on Form 10-Q) after the end of each of the first three fiscal quarters of each fiscal year beginning with the fiscal quarter ending December 31, 2007, for each of the first three fiscal quarters of each fiscal year, (i) a consolidated balance sheet and related statements of operations and cash flows showing the financial position of each of Holdings and its Subsidiaries and the Borrower and its Subsidiaries as of the close of such fiscal quarter and the consolidated results of their its operations during such fiscal quarter and the then-elapsed portion of the fiscal year and 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 Financial Officer of Holdings or the Borrower, as the case may be, Borrower on behalf of Holdings or the Borrower, respectively, Borrower as fairly presenting, in all material respects, the financial position and results of operations of Holdings and its Subsidiaries or the Borrower and its Subsidiaries, as the case may be, in each case Subsidiaries on a consolidated basis in accordance with GAAP (except for the absence of footnotes), subject to normal year-end audit adjustments, adjustments and the absence of footnotes) (it being understood that the delivery by Holdings the Borrower of its quarterly reports on Form 10-Q as filed with the SEC shall satisfy its requirements (but not those of the Borrower and its Subsidiaries) under consolidated Subsidiaries shall satisfy the requirements of this Section 5.04(b);
(c) concurrently with any delivery of financial statements under (a) or (b) above, a certificate of the accounting firm or Financial Officer on behalf of the Borrower opining on or certifying such statements (which certificate, when furnished by an accounting firm, may be limited to accounting matters and disclaim responsibility for legal interpretations) (i) certifying that no Event of Default or Default has occurred or, if such an Event of Default or Default has occurred, specifying the nature and extent thereof and any corrective action taken or proposed to be taken with respect thereto and (ii) setting forth computations in reasonable detail satisfactory to the Administrative Agent demonstrating compliance with the covenants contained in Sections 6.10, 6.11 and 6.12 (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) promptly after the same become publicly available, copies of all periodic and other publicly available reports, proxy statements and, to the extent requested by such quarterly reports include 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 beinformation specified herein);
(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 Holdings or the Borrower, as the case may be, reconciling such changes to what the financial statements would have been without such changes;
(f) 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 receipt thereof by Holdings, the Borrower or 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 time, such other information regarding the operations, business affairs and financial condition of Holdings, the Borrower or any of their Subsidiaries, or compliance with the terms of any Loan Document, or such 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: Senior Secured Bridge Loan Credit Agreement (Packerware Corp)
Financial Statements, Reports, etc. Furnish to the Agents and each Lender:Administrative Agent (which will promptly furnish such information to the Lenders):
(a) as soon as available, but in any event within 90 days (or, if applicable, such shorter period as the SEC shall specify for the filing of Annual Reports on Form 10-K or, if applicable, such longer period permitted under Rule 12b-25 under the Exchange Act) after the end of each fiscal year, (i) a consolidated balance sheet and related statements of operations, cash flows and owners' equity or stockholders' ’ equity showing the financial position of each of Holdings and its Subsidiaries and the Borrower and its Subsidiaries subsidiaries as of the close of such fiscal year and the consolidated results of their its operations during such year and, commencing with the fiscal year ending December 31, 2017, setting forth in comparative form the corresponding figures for the prior fiscal year, all and (ii) management’s discussion and analysis of significant operational and financial developments during such fiscal year and a “key performance indicator” report with such content as may be mutually agreed by the Administrative Agent and the Borrower, which consolidated balance sheet and related statements of operations, cash flows and owners’ equity shall be audited by an independent certified public accountants accounting firm of recognized national standing reasonably acceptable to the Administrative Agent (it being understood that any of the “big four” accounting firms shall be acceptable to the Administrative Agent) and accompanied by an opinion of such accountants (which shall not be qualified in any material respect, other than solely with respect to, or resulting solely from, an upcoming maturity of any Tranche under this Agreement) to the effect that such consolidated financial statements fairly present, in all material respects, the financial position and results of operations of each of Holdings and its Subsidiaries and the Borrower and its Subsidiaries subsidiaries on a consolidated basis in accordance with GAAP, GAAP (it being understood that the delivery by Holdings the Borrower of its Annual Reports on Form 10-K as filed with the SEC shall satisfy its requirements (but not those of the Borrower and its Subsidiaries) under consolidated subsidiaries shall satisfy the requirements of this Section 5.04(a5.04
(a) to the extent such Annual Reports include the information specified herein);
(b) as soon as available, but in any event within 45 days after the end of each of the first three fiscal quarters of each fiscal year (or, if applicable, such shorter period as the SEC shall specify for the filing of Quarterly Reports on Form 10-Q or, if applicable, such longer period permitted under Rule 12b-25 under the Exchange Act) and within 75 days for the fourth fiscal quarter of any fiscal year, commencing with the fiscal quarter ending March 31, 2017, (i) a consolidated balance sheet and related statements of operations and cash flows showing the financial position of each of Holdings and its Subsidiaries and the Borrower and its Subsidiaries subsidiaries as of the close of such fiscal quarter and the consolidated results of their its operations during such fiscal quarter and the then-elapsed portion of the fiscal year and 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 and a “key performance indicator” report with such content as may be mutually agreed by the Administrative Agent and the Borrower, 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 Responsible Officer of Holdings or the Borrower, as the case may be, Borrower on behalf of Holdings or the Borrower, respectively, Borrower as fairly presenting, in all material respects, the financial position and results of operations of Holdings and its Subsidiaries or the Borrower and its Subsidiaries, as the case may be, in each case subsidiaries on a consolidated basis in accordance with GAAP (except for the absence of footnotes), subject to normal year-end audit adjustments, adjustments and the absence of footnotes (it being understood that the delivery by Holdings the Borrower of its Quarterly Reports on Form 10-Q as filed with the SEC shall satisfy its requirements (but not those of the Borrower and its Subsidiaries) under consolidated subsidiaries shall satisfy the requirements of this Section 5.04(b) to the extent such Quarterly Reports include the information specified herein));
(c) as soon as available, but in any event within 30 days after the end of each of the first two months of each fiscal quarter, summary income statement information in a form consistent with what is delivered to the Board of Directors and summary balance sheet information in the form agreed to between the Administrative Agent and the Borrower prior to the Closing Date.
(d) Notwithstanding the foregoing, the obligations in paragraphs (a) and (b) of this Section 5.04 may be satisfied with respect to financial information of Borrower and its subsidiaries by furnishing (A) the applicable financial statements of Holdings (or any direct or indirect parent of Holdings) or (B) Holdings’ (or any direct or indirect parent thereof) as applicable, Form 10-K or 10-Q, as applicable; provided that, with respect to clauses (A) and (B), to the extent such information relates to Holdings (or any direct or indirect parent of Holdings), such information is accompanied by consolidating information that explains in reasonable detail the differences between the information relating to Holdings (or such direct or indirect parent), on the one hand, and the information relating to the Borrower and its subsidiaries on a standalone basis, on the other hand.
(e) (i) concurrently with any delivery of financial statements under paragraph (a) or (b) above, a certificate of the accounting firm or Financial a Responsible Officer on behalf of the Borrower opining on or certifying such statements (which certificate, when furnished by an accounting firm, may be limited to accounting matters and disclaim responsibility for legal interpretations) (iA) certifying that no Event of Default or Default has occurred or, if such an Event of Default or Default has occurred, specifying the nature and extent thereof and any corrective action taken or proposed to be taken with respect thereto and (iiB) setting forth computations in reasonable detail satisfactory to the Administrative Agent demonstrating compliance with the covenants covenant contained in Sections Section 6.10, 6.11 or that compliance is not then required in accordance with the terms of Section 6.10, and 6.12 (it being understood that the information required by this clause (ii) may be provided in concurrently with any delivery of financial statements under paragraph (a) above, but only if available after use of commercially reasonable efforts, a certificate of a Financial Officer the accounting firm opining on behalf or certifying such statements stating whether they obtained knowledge during the course of the Borrower instead their examination of from such statements of any Default or Event of Default (which certificate may be limited to accounting firmmatters and disclaims responsibility for legal interpretations);
(df) 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 reports and statements filed by Holdings, the Borrower or any of their Subsidiaries its subsidiaries with the SEC, or after an initial public offering, distributed to its shareholders stockholders generally, as applicable; provided, however, that such reports, proxy statements, filings and other materials required to be delivered pursuant to this clause (f) shall be deemed delivered for purposes of this Agreement when posted to the case may bewebsite of the Borrower or any website operated by the SEC containing “XXXXX” database information;
(eg) if, as a result of any change in accounting principles and policies from those as applied in effect on the date of this Agreement (other than in respect preparation of the capitalization of repairs and maintenance expenses as provided financial statements referred to in Section 3.05(a)(ii) for the definition of GAAP)fiscal year ended December 31, 2016, the consolidated financial statements of Holdings or the Borrower (and their respective Subsidiaries) its 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 Responsible Officer on behalf of Holdings or the Borrower, as the case may be, Borrower reconciling such changes to what the financial statements would have been without such changes;
(fh) within 30 75 days after the beginning of each fiscal year, a budget in form satisfactory to the Agents prepared by Holdings detailed consolidated quarterly budgets for each of the four fiscal quarters of such fiscal year prepared in reasonable detailand, as soon as available, significant revisions, if any, of Holdings such budget and its Subsidiariesquarterly projections with respect to such fiscal year, accompanied by the statement including a description 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 underlying assumptions 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 periodrespect thereto;
(i) promptly after upon the receipt thereof by Holdingsreasonable request of the Administrative Agent, an updated Perfection Certificate (or, to the Borrower 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 (i) or any of their respective SubsidiariesSection 5.11(f);
(j) promptly, a copy of all reports submitted to the Board of Directors (or any committee thereof) of any of Holdings, the Borrower or any Subsidiary 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; andSubsidiary;
(jk) promptly, from time to time, such other information regarding the operations, business affairs and financial condition of Holdings, the Borrower or any of their Subsidiariesits subsidiaries, or compliance with the terms of any Loan Document, or such consolidating financial statements, as in each case the Agents Administrative Agent may reasonably request (for itself or on behalf of any Lender, acting through ); and
(l) promptly upon request by the Administrative Agent, may copies of: (i) each Schedule B (Actuarial Information) to the most recent annual report (Form 5500 Series) filed with the Internal Revenue Service with respect to a Plan; (ii) the most recent actuarial valuation report for any Plan; (iii) all notices received from a Multiemployer Plan sponsor, a plan administrator or any governmental agency, or provided to any Multiemployer Plan by Holdings, 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.
Appears in 1 contract
Financial Statements, Reports, etc. Furnish to the Agents and each Lender:Administrative Agent (which will promptly furnish such information to the Lenders):
(a) within 90 days (or, if applicable, such shorter period as the SEC shall specify for the filing of Annual Reports on Form 10-K or, if applicable, such longer period permitted under Rule 12b-25 under the Exchange Act) after the end of each fiscal year, (i) (x) a consolidated balance sheet and related statements of operations, cash flows and owners' equity or stockholders' ’ equity showing the financial position of each of Holdings and its Subsidiaries and the Borrower Hexion and its Subsidiaries as of the close of such fiscal year and the consolidated results of their operations during such year and setting forth in comparative form the corresponding figures for the prior fiscal year and (y) consolidating information that explains in reasonable detail the differences between the information relating to Hexion and its Subsidiaries, on the one hand, and the Borrower and Subsidiaries of the Borrower, on the other hand, on a standalone basis and (ii) management’s discussion and analysis of significant operational and financial developments during such fiscal year, all which consolidated balance sheet and related statements of operations, cash flows and owners’ equity shall be audited by independent public accountants of recognized national standing reasonably acceptable to the Administrative Agent and accompanied by an opinion of such accountants (which shall not be qualified in any material respect) to the effect that such consolidated financial statements fairly present, in all material respects, the financial position and results of operations of each of Holdings and its Subsidiaries and the Borrower Hexion and its Subsidiaries on a consolidated basis in accordance with GAAP, GAAP (it being understood that the delivery by Holdings Hexion of its Annual Reports on Form 10-K as filed with the SEC of Hexion and its consolidated Subsidiaries shall satisfy its the requirements (but not those of the Borrower and its Subsidiaries) under this Section 5.04(a) to the extent such Annual Reports include the information specified herein);
(b) within 45 days (or, if applicable, such shorter period as the SEC shall specify for the filing of Quarterly Reports on Form 10-Q or, if applicable, such longer period permitted under Rule 12b-25 under the Exchange Act) after the end of each of the first three fiscal quarters of each fiscal year, (i) (x) a consolidated balance sheet and related statements of operations and cash flows showing the financial position of each of Holdings and its Subsidiaries and the Borrower Hexion 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 yearyear and setting forth in comparative form the corresponding figures for the corresponding periods of the prior fiscal year and (y) consolidating information that explains in reasonable detail the differences between the information relating to Hexion and its Subsidiaries, on the one hand, and the Borrower and Subsidiaries of the Borrower, on the other hand, on a standalone basis 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 Financial Officer of Holdings or the Borrower, as the case may be, Hexion on behalf of Holdings or the Borrower, respectively, Hexion as fairly presenting, in all material respects, the financial position and results of operations of Holdings Hexion and its Subsidiaries or the Borrower and its Subsidiaries, as the case may be, in each case on a consolidated basis in accordance with GAAP (except for the absence of footnotes), subject to normal year-end audit adjustments, adjustments and the absence of footnotes) (it being understood that the delivery by Holdings Hexion of its Quarterly Reports on Form 10-Q as filed with the SEC of Hexion and its consolidated Subsidiaries shall satisfy its the requirements (but not those of the Borrower and its Subsidiaries) under this Section 5.04(b) to the extent such quarterly reports include the information specified herein);
(c) concurrently [Reserved]
(d) (x) Concurrently with any delivery of financial statements under paragraphs (a) or (b) above, a certificate of the accounting firm or a Financial Officer on behalf of Hexion or the Borrower opining on or certifying such statements (which certificate, when furnished by an accounting firm, may be limited to accounting matters and disclaim responsibility for legal interpretations) (i) certifying that no Event of Default or Default has occurred or, if such an Event of Default or Default has occurred, specifying the nature and extent thereof and any corrective action taken or proposed to be taken with respect thereto and and, (ii) setting certifying a list of names of all Unrestricted Subsidiaries and that each Subsidiary set 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 (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)list qualifies as an Unrestricted Subsidiary;
(de) promptly 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 Hexion or any of their Subsidiaries its subsidiaries with the SEC, or after an initial public offering, distributed to its shareholders stockholders generally, as the case may be;
applicable; provided, however, that such reports, proxy statements, filings and other materials required to be delivered pursuant to this clause (e) if, as a result of any change in accounting principles and policies from those as in effect on the date shall be deemed delivered for purposes of this Agreement (other than in respect when posted to the website of Hexion or publicly available through 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 Holdings or the Borrower, as the case may be, reconciling such changes to what the financial statements would have been without such changesXXXXX System;
(f) within 30 90 days after the beginning of each fiscal year, a reasonably detailed consolidated annual budget in form satisfactory to the Agents prepared by Holdings for each of the four fiscal quarters of such fiscal year prepared year, including a description of underlying assumptions with respect thereto, which budget shall in reasonable detail, of Holdings and its Subsidiaries, each case be accompanied by the statement of a Financial Officer of Holdings Hexion to the effect that, to the best of his knowledge, the that such budget is a based on assumptions believed by such Financial Officer to be reasonable estimate for as of the period covered therebydate of delivery thereof;
(g) promptly following upon the creation or acquisition of any Subsidiary, a certificate from a Responsible Officer, identifying such new Subsidiary and the ownership interest reasonable request of the Borrower and Administrative Agent (not more than once annually), deliver a new or updated Perfection Certificate (or, to the Subsidiaries thereinextent such request relates to specified information contained in the Perfection Certificate, such information) reflecting all changes since the date of the information most recently received pursuant to this paragraph (g);
(hi) simultaneously for each Variance Date, a DIP Budget Variance Report as of the end of the immediately preceding calendar week and (ii) every fourth week after the DIP Closing Date, an updated DIP Budget setting forth on a weekly basis for the next thirteen weeks (commencing with the delivery of any financial statements pursuant to paragraph (aimmediately succeeding calendar week) or (b) above, a balance sheet and related statements of operations, cash flows and stockholder's equity an updated budget for each unconsolidated Subsidiary for the applicable such period;
(i) promptly after the receipt thereof by Holdings, the Borrower or 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) promptlyPromptly, from time to time, such other information regarding the operations, business affairs and financial condition of Holdings, the Borrower Hexion or any of their the Subsidiaries, or compliance with the terms of any Loan Document, or such consolidating financial statements, as in each case the Agents Administrative Agent may reasonably request (for itself or on behalf of any Lender);
(j) In the event that in respect of any Notes, and any Refinancing Indebtedness with respect thereto, the rules and regulations of the SEC permit Hexion or any LenderParent Entity to report at such Parent Entity’s level on a consolidated basis such consolidated reporting at such Parent Entity’s level in a manner consistent with that described in paragraphs (a) and (b) of this Section 5.04 for Hexion and its Subsidiaries will satisfy the requirements of such paragraphs;
(i) For each Variance Date, acting through a DIP Budget Variance Report as of the end of the immediately preceding calendar week and (ii) every fourth week after the DIP Closing Date, an updated DIP Budget setting forth on a weekly basis for the next thirteen weeks (commencing with the immediately succeeding calendar week) an updated budget for such period;
(l) Promptly upon request by the Administrative Agent, copies of: (i) each Schedule B (Actuarial Information) to the most recent annual report (Form 5500 Series) filed with the Internal Revenue Service with respect to a Plan; (ii) the most recent actuarial valuation report for any Plan; (iii) all notices received from a Multiemployer Plan sponsor, a plan administrator or any governmental agency, or provided to any Multiemployer Plan by Holdings, Hexion, any Subsidiary or any ERISA Affiliate, concerning an ERISA Event; and (iv) such other documents or governmental reports or filings relating to any Plan or Multiemployer Plan as the Administrative Agent shall reasonably request and, with respect to any employee pension benefit plan or other employee benefit plan governed by the laws of a jurisdiction other than the United States of America, any available annual reports, actuarial valuation reports or notices from plan sponsors or any governmental entity with respect to such plans;
(m) [Reserved]; and
(i) Promptly following receipt thereof, copies of (i) any documents described in Section 101(k) of ERISA that Holdings, any Subsidiary or any ERISA Affiliate may reasonably requestrequest with respect to any Multiemployer Plan and (ii) any notices described in Section 101(l) of ERISA that Holdings, Hexion, any Subsidiary or any ERISA Affiliate may request with respect to any Plan or Multiemployer Plan.
Appears in 1 contract
Financial Statements, Reports, etc. Furnish to the Agents and each Lender:Administrative Agent (which will promptly furnish such information to the Lenders):
(a) within 90 one hundred ten (110) days after the end of each fiscal yearyear (commencing with fiscal year 2013), (x) a consolidated balance sheet and related statements of operations, cash flows and owners' equity or stockholders' ’ equity showing the financial position of each of Holdings and its Subsidiaries and the Borrower Parent and its Subsidiaries as of the close of such fiscal year and the consolidated results of their its operations during such year and setting forth in comparative form the corresponding figures for the prior fiscal year, all which consolidated balance sheet and related statements of operations, cash flows and owners’ equity shall be audited by independent public accountants of recognized national standing reasonably acceptable to the Administrative Agent and accompanied by an opinion of such accountants (which opinion shall not be qualified in without a “going concern” or like qualification or exception and without any material respectqualification or exception as to the scope of such audit) to the effect that such consolidated financial statements fairly present, in all material respects, the financial position condition and results of operations of each of Holdings and its Subsidiaries and the Borrower Parent and its Subsidiaries on a consolidated basis in accordance with GAAP, (y) a consolidating balance sheet and related statements of operations and cash flows showing the financial position of the 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 Borrower to the extent that such consolidating financial statements fairly present, in all material respects, the financial condition and results of operations of the 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 Borrower, as applicable, for the relevant period (it being understood that the delivery by Holdings the Borrower of its annual reports on Form 10-K as filed with of the SEC Parent and its consolidated Subsidiaries shall satisfy its the requirements (but not those of the Borrower and its Subsidiaries) under this Section 5.04(a) to the extent such annual reports include the information specified herein);
(b) within 45 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 2013), (x) a consolidated balance sheet and related statements of operations and cash flows showing the financial position of each of Holdings and its Subsidiaries and the Borrower Parent and its Subsidiaries as of the close of such fiscal quarter and the consolidated results of their its operations during such fiscal quarter and the then-elapsed portion of the fiscal year and setting forth in comparative form the corresponding figures for the corresponding periods of the prior fiscal year, all of which shall be in reasonable detail and which consolidated balance sheet and related statements of operations and cash flows shall be certified by a Financial Officer of Holdings or the Borrower, as the case may be, Borrower on behalf of Holdings or the Borrower, respectively, Borrower as fairly presenting, in all material respects, the financial position and results of operations of Holdings the Parent and its Subsidiaries or the Borrower and its Subsidiaries, as the case may be, in each case on a consolidated basis in accordance with GAAP (except for the absence of footnotes), subject to normal year-end audit adjustmentsadjustments and the absence of footnotes), (y) a consolidating balance sheet and related statements of operations and cash flows showing the financial position of the 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 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 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 Borrower, as applicable, for the relevant period (it being understood that the delivery by Holdings the Borrower of its quarterly reports on Form 10-Q as filed with of the SEC Parent and its consolidated Subsidiaries shall satisfy its the requirements (but not those of the Borrower and its Subsidiaries) under this Section 5.04(b) to the extent such quarterly reports include the information specified herein);
(ci) concurrently with any delivery of financial statements under paragraphs (a) or (b) above, a certificate of the accounting firm or a Financial Officer on behalf of the Borrower opining on or certifying such statements in substantially the form attached hereto as Exhibit I (which certificate, when furnished by an accounting firm, may be limited to accounting matters and disclaim responsibility for legal interpretations) (ix) certifying that no Default or Event of Default or Default has occurred or, if such a Default or an Event of Default or Default has occurred, specifying the nature and extent thereof and any corrective action taken or proposed to be taken with respect thereto and (iiy) setting forth computations in reasonable detail satisfactory to the Administrative Agent demonstrating compliance with amount of Adjusted Consolidated Net Income for the covenants contained in Sections 6.10, 6.11 applicable period and 6.12 (it being understood that the information required by this clause (ii) may be provided in concurrently with any delivery of financial statements under paragraph (a) above, a certificate of a Financial Officer on behalf of the Borrower instead commencing with the 2013 Excess Cash Flow Period, setting forth the amount, if any, of from such accounting firm)Excess Cash Flow for the Excess Cash Flow Period then ended, 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 their its Subsidiaries with the SECSEC or any securities exchange, or after an initial public offering, distributed to its shareholders stockholders generally, as applicable and all press releases and other statements made available generally by Holdings or any of its Subsidiaries to the case may bepublic concerning material developments in the business of Holdings or any of its Subsidiaries;
(e) if, as a result of any change in accounting principles and policies from those as in effect on the date of this Agreement within ninety (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 Subsidiaries90) 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 Holdings or the Borrower, as the case may be, reconciling such changes to what the financial statements would have been without such changes;
(f) within 30 days after the beginning of each fiscal year, a detailed consolidated and consolidated quarterly budget in form satisfactory to the Agents prepared by Holdings for each such fiscal year (including a projected consolidated and consolidated balance sheet of the four fiscal quarters Borrower and its Subsidiaries as of the end of such fiscal year prepared in reasonable detailyear, and the related consolidated and consolidated statements of projected cash flow and projected income) and, as soon as available, significant revisions, if any, of Holdings such budget and its Subsidiariesquarterly projections with respect to such fiscal year (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 Holdings the Borrower to the effect that, to the best of his such Financial Officer’s knowledge, the budget Budget is a reasonable estimate for the period covered thereby;
(gf) promptly following a request therefor, all documentation and other information that the creation Administrative Agent reasonably requests on its behalf or acquisition on behalf of any SubsidiaryLender in order to comply with its ongoing obligations under applicable “know your customer” and anti-money laundering rules and regulations, a certificate from a Responsible Officer, identifying such new Subsidiary and including the ownership interest USA PATRIOT Act;
(g) together with the delivery of the Borrower and annual compliance certificate required by Section 5.04(c), deliver an updated Collateral Questionnaire reflecting all changes since the Subsidiaries thereindate of the information most recently received pursuant to this paragraph (g) or Section 5.09(f);
(h) simultaneously with promptly following reasonable request therefore from the delivery Administrative Agent, copies 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) 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 Borrower shall provide copies of such documents and notices to the Administrative Agent promptly after the receipt thereof by Holdings, the Borrower or 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 Subsidiariesthereof; and
(ji) promptly, from time to time, such other information regarding the operations, business affairs and financial condition of Holdings, the Borrower or any of their its Subsidiaries, or compliance with the terms of any Loan Document, or such consolidating financial statements, as in each case the Agents Administrative Agent may reasonably request (for itself or on behalf of any Lender, acting through the Administrative Agent, may reasonably request).
Appears in 1 contract
Financial Statements, Reports, etc. Furnish to the Agents and each LenderAdministrative Agent for distribution by the Administrative Agent to the Lenders:
(a) within 90 No later than ninety (90) (or in the case of the first fiscal year for which annual financial statements are required, one hundred twenty (120)) days after following the end of each fiscal yearyear (commencing with the fiscal year beginning after the Commencement of Operations of the Development), a consolidated balance sheet and related statements of operations, cash flows and owners' equity or stockholders' ’ equity showing the financial position of each of Holdings and its Subsidiaries and the Borrower and its Subsidiaries as of the close of such fiscal year and the consolidated results of their its operations during such year and, commencing with the second fiscal year beginning after the Commencement of Operations of the Development, setting forth in comparative form the corresponding figures for the prior fiscal year, all which consolidated balance sheet and related statements of operations, cash flows and owners’ equity shall be audited by independent public accountants of recognized national standing reasonably acceptable to the Administrative Agent and accompanied by an opinion of such accountants (which shall not be qualified in as to scope of audit or as to the status of the Borrower or any material respectMaterial Subsidiary as a going concern) to the effect that such consolidated financial statements fairly present, in all material respects, the financial position and results of operations of each of Holdings and its Subsidiaries and the Borrower and its Subsidiaries on a consolidated basis in accordance with GAAP, GAAP (it being understood that the delivery by Holdings the Borrower of its annual reports on Form 10-K as filed with the SEC shall satisfy its requirements (but not those of the Borrower and its Subsidiaries) under consolidated Subsidiaries shall satisfy the requirements of this Section 5.04(a) to the extent such annual reports include the information specified herein);
(b) No later than forty-five (45) (or, in the case of the first fiscal quarter for which quarterly financial statements are required to be delivered hereunder, within 45 days after seventy-five (75) days) following the end of each of the first three fiscal quarters of each fiscal yearyear (commencing with the first full fiscal quarter after the Commencement of Operations of the Development), a consolidated balance sheet and related statements of operations and cash flows showing the financial position of each of Holdings and its Subsidiaries and the Borrower and its Subsidiaries as of the close of such fiscal quarter and the consolidated results of their its operations during such fiscal quarter and the then-elapsed portion of the fiscal year and setting forth (commencing with the second fiscal year after the Commencement of Operations of the Development) in comparative form the corresponding figures for the corresponding periods of the prior fiscal year, all of which shall be in reasonable detail and which consolidated balance sheet and related statements of operations and cash flows shall be certified by a Financial Officer of Holdings or the Borrower, as the case may be, Borrower on behalf of Holdings or the Borrower, respectively, Borrower as fairly presenting, in all material respects, the financial position and results of operations of Holdings and its Subsidiaries or the Borrower and its Subsidiaries, as the case may be, in each case Subsidiaries on a consolidated basis in accordance with GAAP (except for the absence of footnotes), subject to normal year-end audit adjustments, adjustments and the absence of footnotes) (it being understood that the delivery by Holdings the Borrower of its quarterly reports on Form 10-Q as filed with the SEC shall satisfy its requirements (but not those of the Borrower and its Subsidiaries) under consolidated Subsidiaries shall satisfy the requirements of this Section 5.04(b);
(c) concurrently with any delivery of financial statements under (a) or (b) above, a certificate of the accounting firm or Financial Officer on behalf of the Borrower opining on or certifying such statements (which certificate, when furnished by an accounting firm, may be limited to accounting matters and disclaim responsibility for legal interpretations) (i) certifying that no Event of Default or Default has occurred or, if such an Event of Default or Default has occurred, specifying the nature and extent thereof and any corrective action taken or proposed to be taken with respect thereto and (ii) setting forth computations in reasonable detail satisfactory to the Administrative Agent demonstrating compliance with the covenants contained in Sections 6.10, 6.11 and 6.12 (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) promptly after the same become publicly available, copies of all periodic and other publicly available reports, proxy statements and, to the extent requested by such quarterly reports include 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 beinformation specified herein);
(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 Holdings or the Borrower, as the case may be, reconciling such changes to what the financial statements would have been without such changes;
(f) 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 receipt thereof by Holdings, the Borrower or 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 time, such other information regarding the operations, business affairs and financial condition of Holdings, the Borrower or any of their Subsidiaries, or compliance with the terms of any Loan Document, or such consolidating financial statements, as in each case the Agents or any Lender, acting through the Administrative Agent, may reasonably request.
Appears in 1 contract
Financial Statements, Reports, etc. Furnish In the case of Parent, furnish to the Agents and each LenderAdministrative Agent:
(a) within 90 days (or within 5 days after any shorter period as the Securities and Exchange Commission shall specify for the filing of Annual Reports on Form 10-K) after the end of each fiscal year, a its consolidated and consolidating balance sheet sheets and related statements of operations, cash flows and owners' equity or stockholders' equity and cash flows showing the financial position condition of each of Holdings and its Subsidiaries Parent and the Borrower and its consolidated Subsidiaries as of the close of such fiscal year and the consolidated results of their its operations and the operations of such Subsidiaries during such year, all audited by KPMG LLP or other independent public accountants of recognized national standing reasonably acceptable to the Administrative Agent Required Lenders and accompanied by an opinion of such accountants (which shall not be qualified in any material respect) to the effect that such consolidated financial statements fairly present, in all material respects, present the financial position condition and results of operations of each of Holdings and its Subsidiaries Parent and the Borrower and its consolidated Subsidiaries on a consolidated basis in accordance with GAAP, it being understood that the delivery by Holdings of its Form 10-K as filed with the SEC shall satisfy its requirements (but not those of the Borrower and its Subsidiaries) under this Section 5.04(a)GAAP consistently applied;
(b) within 45 days (or within 5 days after any shorter period as the Securities and Exchange Commission shall specify for the filing of Quarterly Reports on Form 10-Q), after the end of each of the first three fiscal quarters of each fiscal year, a year its consolidated and consolidating balance sheet sheets and related statements of operations operations, stockholders' equity and cash flows showing the financial position condition of each of Holdings and its Subsidiaries Parent and the Borrower and its consolidated Subsidiaries as of the close of such fiscal quarter and the consolidated results of their its operations and the operations of such Subsidiaries during such fiscal quarter and the then-then elapsed portion of the fiscal year, all certified by a one of its Financial Officer of Holdings or the Borrower, as the case may be, on behalf of Holdings or the Borrower, respectively, Officers as fairly presenting, in all material respects, presenting the financial position condition and results of operations of Holdings Parent and its the consolidated Subsidiaries or the Borrower and its Subsidiaries, as the case may be, in each case on a consolidated basis in accordance with GAAP (except for the absence of footnotes)consistently applied, subject to normal year-end audit adjustments, it being understood that the delivery by Holdings of its Form 10-Q as filed with the SEC shall satisfy its requirements (but not those of the Borrower and its Subsidiaries) under this Section 5.04(b);
(c) within 60 days after the end of the last fiscal month of each fiscal year, 45 days after the end of the third, sixth and ninth fiscal months of each fiscal year, and, at the request of the Administrative Agent (which request shall be made not less than 15 days after the end of the applicable fiscal month), 35 days after the end of each other fiscal month, its consolidated and consolidating balance sheets and related statements of operations and stockholders' equity and consolidated cash flows showing the financial condition of Parent and the consolidated Subsidiaries as of the close of such month and the results of its operations, the operations of such Subsidiaries during such month and the then elapsed portion of the fiscal year and the monthly management reports that have been provided historically by Parent with such financial statements, all certified by one of its Financial Officers as fairly presenting the financial condition and results of operations of Parent and the consolidated Subsidiaries on a consolidated basis in accordance with GAAP consistently applied, subject to normal year-end audit adjustments;
(d) concurrently with any delivery of financial statements under paragraph (a) or (b) above, a certificate of the accounting firm or Financial Officer on behalf of the Borrower Officer, substantially as set forth in Exhibit E, (i) opining on or certifying such statements (which certificate, when furnished by an accounting firm, may be limited to accounting matters and disclaim responsibility for legal interpretations) (i) and certifying that no Event of Default or Default has occurred or, if such an Event of Default or Default has occurred, specifying the nature and extent thereof and any corrective action taken or proposed to be taken with respect thereto and (ii) setting forth computations (A) the amount of Net Cash Proceeds (w) received from each Asset Sale, the Net Cash Proceeds from which are to be applied to acquire Reinvestment Assets pursuant to Section 2.07(b), (x) the date of such Asset Sale, (y) the amount of such Net Cash Proceeds applied to acquire Reinvestment Assets during such period and the nature of such Reinvestment Assets (if any) and (z) the amount of such Net Cash Proceeds required to be applied to reduce the Loans as set forth in reasonable detail satisfactory Section 2.07(b), (B) the amount of Net Cash Proceeds (x) received from each equity issuance or capital contribution, (y) the date of such equity issuance or capital contribution and (z) the amount of such Net Cash Proceeds required to be applied to reduce the Administrative Agent Loans as set forth in Section 2.07(b) and (C) reasonably detailed calculations demonstrating compliance with the covenants contained in Sections 6.10, 6.11 6.11, 6.12 and 6.12 (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)6.13;
(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, and other materials filed by Holdings, the Borrower Parent or any of their Subsidiaries Subsidiary with the SECSecurities and Exchange Commission, or any Governmental Authority succeeding to any or all of the functions of said Commission, or with any national securities exchange, or distributed to its shareholders generallyshareholders, as the case may be;
(ef) ifnot later than March 31st of each year, as a result projections prepared by the management of any change in accounting principles Parent of statements concerning selected financial data (consisting of net sales, earnings before interest and policies from those as in effect on the date of this Agreement (other than in respect of the capitalization of repairs taxes, working capital items, capital expenditures and maintenance expenses as provided in the definition of GAAPdepreciation), the consolidated financial balance sheets, income 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 cash flow statements, on a quarterly basis, for 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 Holdings or the Borrower, as the case may be, reconciling such changes to what the financial statements would have been without such changes;
(f) 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 receipt thereof by Holdings, the Borrower or 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
(jg) promptly, from time to time, such other information regarding the operations, business affairs and financial condition of HoldingsParent, the any Borrower or any of their SubsidiariesSubsidiary, or compliance with the terms of any Loan Document, or such consolidating financial statements, as in each case the Agents Administrative Agent or any Lender, acting through the Administrative Agent, Lender may reasonably request.
Appears in 1 contract
Samples: Credit Agreement (Dennys Corp)
Financial Statements, Reports, etc. Furnish to the Agents and each Lender:Administrative Agent (which will promptly furnish such information to the Lenders):
(a) within As soon as available, but no later than 90 days (or, in the case of the fiscal year ending February 2, 2019, 120 days) after the end of each fiscal yearyear (commencing with the fiscal year ending on or about January 28February 2, 2019), a consolidated balance sheet and related statements of operations, cash flows and owners' equity or stockholders' ’ equity showing the financial position of each of Holdings and its Subsidiaries and the Lead Borrower and its Subsidiaries itsthe sSubsidiaries as of the close of such fiscal year and the consolidated results of their its operations during such year setting forth in comparative form the corresponding figures for the prior fiscal year, all which consolidated balance sheet and related statements of operations, cash flows and owners’ equity shall be audited by independent public accountants of recognized national standing reasonably acceptable to the Administrative Agent and accompanied by an opinion of such accountants (which shall not be qualified in as to scope of audit or as to the status of the Lead Borrower or any material respectsubsidiary as a going concern) to the effect that such consolidated financial statements fairly present, in all material respects, the financial position and results of operations of each of Holdings and its Subsidiaries the Lead Borrower and the Borrower and its Subsidiaries subsidiaries on a consolidated basis in accordance with GAAP, GAAP (it being understood that the delivery by Holdings filing with the SEC of its annual reports on Form 10-K as filed with the SEC shall satisfy its requirements (but not those of the Lead Borrower and its Subsidiaries) under consolidated subsidiaries, or delivery by the Lead Borrower of such reports, shall satisfy the requirements of this Section 5.04(a) to the extent such annual reports include the information specified herein);
(b) within As soon as available, but no later than 45 days (or, in the case of the fiscal quarter ending November 3, 2018, 75 days) after the end of each of the first three (3) fiscal quarters of each fiscal yearyear (commencing with the fiscal quarter ending November 3, 2018), a consolidated balance sheet and related statements of operations and cash flows showing the financial position of each of Holdings and its Subsidiaries the Lead Borrower and the Borrower and its Subsidiaries subsidiaries as of the close of such fiscal quarter and the consolidated results of their its operations during such fiscal quarter and the then-then elapsed portion of the fiscal year and setting forth in comparative form the corresponding figures for the corresponding periods of the prior fiscal year, all of which shall be in reasonable detail and which consolidated balance sheet and related statements of operations and cash flows shall be certified by a Financial Officer of Holdings or the Borrower, as the case may be, Lead Borrower on behalf of Holdings or the Borrower, respectively, Lead Borrower as fairly presenting, in all material respects, the financial position and results of operations of Holdings and its Subsidiaries or the Lead Borrower and its Subsidiaries, as the case may be, in each case subsidiaries on a consolidated basis in accordance with GAAP (except for the absence of footnotes), subject to normal year-end audit adjustments, adjustments and the absence of footnotes) (it being understood that the delivery by Holdings filing with the SEC of its quarterly reports on Form 10-Q as filed with the SEC shall satisfy its requirements (but not those of the Lead Borrower and its Subsidiaries) under consolidated subsidiaries, or the delivery by the Lead Borrower of such reports, shall satisfy the requirements of this Section 5.04(b) to the extent such quarterly reports include the information specified herein);
(c) concurrently Cconcurrently with any delivery of financial statements under paragraphs (a) or (b) above, a certificate of the accounting firm or a Financial Officer on behalf of the Lead Borrower opining on or certifying such statements (which certificate, when furnished by an accounting firm, may be limited to accounting matters and disclaim responsibility for legal interpretations) (i) certifying that no Event of Default or Default has occurred or, if such an Event of Default or Default has occurred, specifying the nature and extent thereof and any corrective action taken or proposed to be taken with respect thereto and thereto, (ii) setting forth computations in reasonable detail satisfactory to the Administrative Agent demonstrating extent that compliance with the covenants contained financial covenant under Section 6.11 is (or was) required in Sections 6.10respect of the period covered by such financial statements, 6.11 certifying as to (and 6.12 containing all information andreasonably detailed calculations necessary for determiningdemonstrating) compliance with such financial covenant as of the last day of the applicable Test Period, (iii) certifying a list of names of all Immaterial Subsidiaries, that each subsidiary set forth on such list individually qualifies as an Immaterial Subsidiary and that all such Subsidiaries in the aggregate do not exceed the limitation set forth in clause (b) of the definition of the term “Immaterial Subsidiary”, and (iv) certifying a list of names of all Unrestricted Subsidiaries and that each subsidiary set forth on such list qualifies as an Unrestricted Subsidiary and (v) concurrently with any delivery of financial statements under paragraph (a) above, if the accounting firm is not restricted from providing such a certificate by its policies, 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) Wwithin 15 days after filed with the SEC, any reports of the Lead. Borrower filed on Form 8-K (it being understood that the information required by this clause (ii) may be provided in a certificate filing with the SEC of a Financial Officer reports on behalf Form 8-K of the Lead Borrower instead and its sSubsidiaries, or the delivery by the Lead Borrower of from such accounting firmreports, shall satisfy the requirements of this Section 5.04(d));
(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 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 Holdings or the Borrower, as the case may be, reconciling such changes to what the financial statements would have been without such changes;
(f) 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 receipt thereof by Holdings, the Borrower or 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 time, such other information regarding the operations, business affairs and financial condition of Holdings, the Borrower or any of their Subsidiaries, or compliance with the terms of any Loan Document, or such 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: Abl Credit Agreement
Financial Statements, Reports, etc. Furnish to the Agents and each Lender:Administrative Agent (which will furnish such information to the Lenders):
(a) within 90 days after the end of each fiscal year, a consolidated balance sheet and related consolidated statements of operations, cash flows and owners' equity or stockholders' equity showing the financial position of each of Holdings and its Subsidiaries and the Borrower and its Subsidiaries as of the close of such fiscal year and the consolidated results of their operations during such year, with all consolidated statements audited by independent public accountants of recognized national standing reasonably acceptable to the Administrative Agent and accompanied by an opinion of such accountants (which shall not be qualified in any material respect) to the effect that such consolidated financial statements fairly present, in all material respects, the financial position and results of operations of each of Holdings and its Subsidiaries and the Borrower and its Subsidiaries on a consolidated basis in accordance with GAAP, US GAAP (it being understood that the delivery by Holdings of its Annual Reports on Form 10-K as filed with the SEC of Holdings and its consolidated Subsidiaries shall satisfy its the requirements (but not those of the Borrower and its Subsidiaries) under this Section 5.04(a) to the extent such Annual Reports include the information specified herein);
(b) within 45 days (75 days in the case of the fiscal quarter ending June 30, 2004) after the end of each of the first three fiscal quarters of each fiscal yearyear commencing with the fiscal quarter ending June 30, 2004, a consolidated balance sheet and related consolidated statements of operations and cash flows showing the financial position of each of Holdings and its Subsidiaries 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, all certified by a Financial Officer of Holdings or the Borrower, as the case may beHoldings, on behalf of Holdings or the Borrower, respectivelyHoldings, as fairly presenting, in all material respects, the financial position and results of operations of 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 US GAAP (except for the absence of footnotes), subject to normal year-end audit adjustments, adjustments and the absence of footnotes) (it being understood that the delivery by Holdings of its Quarterly Reports on Form 10-Q as filed with the SEC of Holdings and its consolidated Subsidiaries shall satisfy its the requirements (but not those of the Borrower and its Subsidiaries) under this Section 5.04(b) to the extent such Quarterly Reports include the information specified herein);
(c) (x) concurrently with any delivery of financial statements under (a) or (b) above, (A) a certificate of the accounting firm or a Financial Officer on behalf of the Borrower opining on or certifying such statements (which certificate, when furnished by an accounting firm, may be limited to accounting matters and disclaim responsibility for legal interpretations) Holdings (i) certifying that no Event of Default or Default has occurred or, if such an Event of Default or Default has occurred, specifying the nature and extent thereof and any corrective action taken or proposed to be taken with respect thereto and (ii) commencing with the fiscal period ending June 30, 2004, 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 (it being understood that B) a reasonably detailed break-out of operational performance by business units for the information required by this clause year or quarter then ended and (iiy) may be provided in concurrently with any delivery of financial statements under (a) above, a certificate of a Financial Officer the accounting firm opining on behalf or certifying such statements stating whether they obtained knowledge during the course of the Borrower instead their examination of from such statements of any Default or Event of Default (which certificate may be limited to accounting firmmatters and disclaims responsibility for legal interpretations);
(d) promptly after the same become publicly available, copies of all periodic and other publicly available reports, proxy statements and, to the extent requested by the Administrative Agent, other materials filed by Holdings, the Borrower or any of their the Subsidiaries with the SEC, or after an initial public offering, distributed to its shareholders stockholders generally, as the case may beapplicable;
(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)Closing Date, the consolidated financial statements of Holdings or and the Borrower (and their respective Subsidiaries) Subsidiaries delivered pursuant to paragraph 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 Holdings or the Borrower, as the case may be, reconciling such changes to what the financial statements would have been without such changes;
(f) within 30 90 days after the beginning of each fiscal year, a budget an operating and capital expenditure budget, in form reasonably satisfactory to the Agents Administrative Agent prepared by Holdings for each of the four fiscal quarters of such fiscal year prepared in reasonable detail, of Holdings and its the 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 upon the creation or acquisition of any Subsidiary, a certificate from a Responsible Officer, identifying such new Subsidiary and the ownership interest reasonable request of the Borrower and Administrative Agent (which request shall not be made more than once in any 12-month period), deliver updated Perfection Certificates (or, to the Subsidiaries thereinextent such request relates to specified information contained in the Perfection Certificates, such information) reflecting all changes since the date of the information most recently received pursuant to this paragraph (g) or Section 5.10(e);
(h) 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 receipt thereof by Holdings, the Borrower or any of their respective Subsidiariespromptly, a copy of all reports submitted to the Board of Directors (or any committee thereof) of any of Holdings, the Borrower or any Material Subsidiary in connection with any material interim or special audit that is material made by independent accountants of the books of Holdings, the Borrower or any of their Subsidiaries; andSubsidiary;
(ji) promptly, from time to time, such other information regarding the operations, business affairs and financial condition of Holdings, the Borrower or any of their the Subsidiaries, or compliance with the terms of any Loan Document, or such consolidating financial statements, as in each case the Agents or any Lender, acting through Administrative Agent may reasonably request;
(j) promptly upon request by the Administrative Agent, may copies of: (i) each SCHEDULE B (Actuarial Information) to the annual report (Form 5500 Series) filed with the Internal Revenue Service with respect to a Plan; (ii) the most recent actuarial valuation report for any Plan; (iii) all notices received from a Multiemployer Plan sponsor or any governmental agency concerning an ERISA Event; and (iv) such other documents or governmental reports or filings relating to any Plan or Multiemployer Plan as the Administrative Agent shall reasonably request; and
(k) promptly and in any event within 15 days after the Closing Date, an unaudited consolidated balance sheet and related unaudited consolidated statements of operations and cash flow showing the financial position of the Company and its subsidiaries as of the close of the period commencing January 1, 2004 and ending on either the Closing Date or March 31, 2004 (at the election of the Company) and the consolidated results of their operations during such period certified by a Responsible Officer of, and acting on behalf of, Holdings or the Company as fairly presenting, in all material respects, the financial position and results of operations of the Company and its subsidiaries on a consolidated basis (subject to normal year end adjustments and the absence of footnotes).
Appears in 1 contract
Samples: Loan Agreement (Celanese CORP)
Financial Statements, Reports, etc. Furnish to (x) the Agents Administrative Agent (which will promptly furnish such information to the Revolving Lenders and each Lender:the FILO A Lenders) and (y) to the FILO B Documentation Agent (which will promptly furnish such information to the FILO B Lenders):
(a) within 90 ninety (90) days after the end of each fiscal year, a consolidated balance sheet of Holdings and its Subsidiaries as at the end of such fiscal year, and the related statements of operations, cash flows and owners' equity or stockholders' equity ’ equity, showing the financial position of each of Holdings and its Subsidiaries and the Borrower and its Subsidiaries as of the close of such fiscal year and the consolidated results of their its operations during such fiscal year and setting forth in comparative form the corresponding figures for the prior fiscal year, all which consolidated balance sheet and related statements of operations, cash flows and owners’ equity shall be accompanied by customary management’s discussion and analysis and audited by independent public accountants of recognized national standing reasonably acceptable to the Administrative Agent and accompanied by an opinion of such accountants (which opinion shall not be qualified in (x) without a “going concern” or like qualification or exception, other than solely with respect to an upcoming maturity date of Indebtedness or a potential inability to satisfy a financial covenant, and (y) without any material respectqualification or exception as to the scope of such audit) to the effect that such consolidated financial statements fairly present, in all material respects, the financial position condition and results of operations of each of Holdings and its Subsidiaries and the Borrower and its Subsidiaries on a consolidated basis in accordance with GAAP, supporting schedules reconciling such consolidated balance sheet and related statements of operations and cash flows with the consolidated financial condition and results of operations of Holdings or the Borrower, as applicable, for the relevant period (it being understood that the delivery by Holdings the Borrower of its annual reports on Form 10-K as filed with the SEC of Holdings and its consolidated Subsidiaries shall satisfy its the requirements (but not those of the Borrower and its Subsidiaries) under this Section 5.04(a) to the extent such annual reports include the information specified herein);
(b) within 45 forty-five (45) days after the end of each of the first three fiscal quarters of each fiscal year, a consolidated balance sheet of Holdings and its Subsidiaries as at the end of such fiscal year, and the related statements of operations and cash flows flows, showing the financial position of each of Holdings and its Subsidiaries and the Borrower and its Subsidiaries as of the close of such fiscal quarter and the consolidated results of their its operations during such fiscal quarter and the then-elapsed portion of the fiscal year and setting forth in comparative form the corresponding figures for the corresponding periods of the prior fiscal year, all of which shall be in reasonable detail and which consolidated balance sheet and related statements of operations and cash flows shall be accompanied by customary management’s discussion and analysis and certified by a Financial Officer of Holdings or the Borrower, as the case may be, Borrower on behalf of Holdings or the Borrower, respectively, Borrower as fairly presenting, in all material respects, the financial position and results of operations of 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 GAAP (except for the absence of footnotes), subject to normal year-end audit adjustmentsadjustments and the absence of footnotes), supporting schedules reconciling such consolidated balance sheet and related statements of operations and cash flows with the consolidated financial position and results of operations of Holdings or the Borrower, as applicable, for the relevant period (it being understood that the delivery by Holdings the Borrower of its quarterly reports on Form 10-Q as filed with the SEC of Holdings and its consolidated Subsidiaries shall satisfy its the requirements (but not those of the Borrower and its Subsidiaries) under this Section 5.04(b) to the extent such quarterly reports include the information specified herein);
(c) in respect of any fiscal month during which a Monthly Financial Statement Reporting Period in effect, within thirty (30) days after the end of such fiscal month (other than any fiscal month that corresponds to the end of a fiscal quarter), a consolidated balance sheet of Holdings and its Subsidiaries as at the end of such fiscal month, and the related 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 its operations during such month, all of which shall be in reasonable detail and 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 Holdings and its Subsidiaries on a consolidated basis in accordance with GAAP (subject to normal year-end audit adjustments and the absence of footnotes);
(d) concurrently with any delivery of financial statements under (aSection 5.04(a) or (b) above), a certificate of the accounting firm or Financial Officer on behalf of the Borrower opining on or certifying such statements (which certificateCompliance Certificate, when furnished by an accounting firm, may be limited to accounting matters and disclaim responsibility for legal interpretations) (i) certifying that no Default or Event of Default or Default has occurred or, if such a Default or an Event of Default or Default has occurred, specifying the nature and extent thereof and any corrective action taken or proposed to be taken with respect thereto and (ii) setting forth computations in reasonable detail satisfactory to the Administrative Agent demonstrating compliance with the covenants contained in Sections 6.10, 6.11 and 6.12 (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)thereto;
(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 Holdings, the Borrower or any of their its Subsidiaries with the SECSEC or any securities exchange, or distributed to its shareholders stockholders generally, as applicable and all press releases and other statements made available generally by Holdings or any of its Subsidiaries to 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 public concerning material developments in the definition of GAAP), the consolidated financial statements business of Holdings or the Borrower (and their respective any of its 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 Holdings or the Borrower, as the case may be, reconciling such changes to what the financial statements would have been without such changes;
(f) within 30 days after together with each delivery under Section 5.04(a), a detailed consolidated and consolidated monthly budget for such fiscal year (including (i) a projected consolidated and consolidated balance sheet of Holdings and its Subsidiaries as of the beginning end of each month during such fiscal year, a budget in form satisfactory to and the Agents prepared by Holdings related consolidated and consolidated statements of projected cash flow and projected income for each of fiscal quarter during such fiscal year and for the four fiscal quarters portion of such fiscal year prepared in reasonable detailthen elapsed and (b) projected Borrowing Bases and Availability as of the end of each fiscal month during such fiscal year) and, as soon as available, significant revisions, if any, of Holdings such budget and its Subsidiariesquarterly projections with respect to such fiscal year (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 Holdings the Borrower to the effect that, to the best of his such Financial Officer’s knowledge, the budget Budget is a reasonable estimate for the period covered thereby;
(g) promptly following a request therefor, all documentation and other information that the creation Administrative Agent reasonably requests on its behalf or acquisition on behalf of any SubsidiaryLender in order to comply with its ongoing obligations under applicable “know your customer” and anti-money laundering rules and regulations, a certificate from a Responsible Officer, identifying such new Subsidiary including the USA PATRIOT Act and the ownership interest of the Borrower and the Subsidiaries thereinBeneficial Ownership Regulation;
(h) simultaneously together with the delivery of any financial statements the annual Compliance Certificate delivered pursuant to paragraph (aSection 5.04(d), deliver an updated Perfection Certificate reflecting all changes since the date of the information most recently received pursuant to this Section 5.04(h) or (b) above, a balance sheet and related statements of operations, cash flows and stockholder's equity for each unconsolidated Subsidiary for the applicable periodSection 5.09(e);
(i) promptly after following reasonable request therefor from the receipt thereof by HoldingsAdministrative 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 Borrower Loan Party(ies) and/or the ERISA Affiliate(s) shall promptly make a request for such documents or any of their respective Subsidiaries, a copy of all reports submitted in connection with any material interim notices from such administrator or special audit made by independent accountants of the books of Holdings, sponsor and the Borrower or any shall provide copies of their Subsidiaries; andsuch documents and notices to the Administrative Agent promptly after receipt thereof;
(j) promptly, from time to time, such other information regarding the operations, business affairs and financial condition of Holdings, the Borrower or any of their its Subsidiaries, or compliance with the terms of any Loan Document, or such consolidating financial statements, as in each case the Agents Administrative Agent may reasonably request (for itself or on behalf of any Lender);
(k) promptly, but in any event within three (3) Business Days after the furnishing, receipt or execution thereof, copies of (i) any amendment, waiver, consent or other written modification of the Term Loan Agreement or any Lendermaterial amendment, acting through waiver, consent or other written modification of any other Term Loan Document, (ii) any notice of default or any notice related to the exercise of remedies under the Term Loan Documents, and (iii) any other material notice, certificate or other information or document provided to, or received from, the Term Loan Agent or the Term Loan Secured Parties (in their capacities as such), including in any event, copies of all Compliance Certificates (as defined in the Term Loan Agreement), monthly financial statements and cash flow forecasts and reports required to be delivered pursuant to the Term Loan Agreement;
(l) together with delivery of any monthly financial statements pursuant to Section 5.04(c) or (k), a reasonably detailed calculation of “EBITDA” (as defined in, and calculated in the manner required by, the Term Loan Agreement as in effect on the Closing Date), which calculation may be set forth in any “Compliance Certificate” delivered pursuant to Section 5.04(k);
(m) promptly, but in any event within five (5) Business Days after the furnishing, receipt or execution thereof, copies of (i) any termination, material amendment or other material written modification of any Material Agreement or any Material Indebtedness (other than the Term Loan Obligations), and (ii) any notice of default or any notice related to the exercise of remedies with respect to any Material Indebtedness (other than the Term Loan Obligations);
(n) promptly, but in any event within one (1) Business Day furnishing, receipt or execution thereof, copies of all reports, statements and notices delivered or received by the Loan Parities pursuant to the Supply Agreement; and
(o) Untiluntil the Spring-Out Date has occurred, on Friday of each week (i) an updated Thirteen Week Cash Flow Statement for then proceeding 13 week period; and (ii) a Weekly Variance Report. Documents required to be delivered pursuant to Section 5.04(a), (b), (c) or (e) may be delivered electronically and if so delivered, shall be deemed to have been delivered on the date (i) on which Holdings or the Borrower (or a representative thereof) posts such documents (or provides a link thereto) at wxx.xxxxxxxxxxxxxx.xxx; provided that, other than with respect to items required to be delivered pursuant to Section 5.04(e), Holdings or the Borrower shall promptly notify (which notice may be by facsimile or electronic mail) the Administrative Agent and the FILO B Documentation Agent of the posting of any such documents at wxx.xxxxxxxxxxxxxx.xxx and provide to the Administrative Agent by electronic mail electronic versions (i.e., soft copies) of such documents; (ii) on which such documents are delivered by Holdings or the Borrower to the Administrative Agent for posting on behalf of Holdings and the Borrower on Internet or intranet website (or the Platform), 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); (iii) on which such documents are faxed to the Administrative Agent (or electronically mailed to an address provided by the Administrative Agent); or (iv) with respect to any item required to be delivered pursuant to Section 5.04(e) in respect of information filed by Holdings or its applicable Parent Entity with any securities exchange or with the SEC or any analogous Governmental Authority or private regulatory authority with jurisdiction over matters relating to securities (other than Form 10-Q reports and Form 10-K reports), on which such items have been made available on the SEC website or the website of the relevant analogous governmental or private regulatory authority. The Loan Parties hereby acknowledge that the Administrative Agent may reasonably requestmake available materials or information provided by or on behalf of the Loan Parties hereunder (collectively, “Borrower Materials”) to the Lenders and the Issuing Banks by posting the Borrower Materials on IntraLinks, SyndTrack or another similar secure electronic transmission system (the “Platform”). Each Loan Party further agrees that certain of the Lenders may be “public-side” Lenders (i.e., Lenders that do not wish to receive material non-public information with respect to the Loan Parties or their securities) (each, a “Public Lender”). The Loan Parties shall be deemed to have authorized Administrative Agent and its Affiliates and the Lenders to treat Borrower Materials marked “PUBLIC” or otherwise at any time filed with the SEC as not containing any material non-public information with respect to the Loan Parties or their securities for purposes of United States federal and state securities laws. All Borrower Materials marked “PUBLIC” are permitted to be made available through a portion of the Platform designated as “Public Investor” (or another similar term). The Administrative Agent and its Affiliates and the Lenders shall be entitled to treat any Borrower Materials that are not marked “PUBLIC” or that are not at any time filed with the SEC as being suitable only for posting on a portion of the Platform not marked as “Public Investor” (or such other similar term).
Appears in 1 contract
Financial Statements, Reports, etc. Furnish to the Agents and each LenderAgent:
(a) As soon as available, but in all events within 90 one hundred twenty (120) days after the end of each fiscal yearFiscal Year (or by May 15, 2013 with respect to the 2012 Fiscal Year), a consolidated balance sheet and related statements of operations, cash flows and owners' equity or stockholders' ’ equity showing the financial position of each of Holdings of, so long as Parent does not own any Subsidiaries other than Borrower Holdco, Parent and its Subsidiaries, and if Parent does own any Subsidiaries and other than Borrower Holdco, the Borrower and its Subsidiaries Loan Parties, as of the close of such fiscal year Fiscal Year and the consolidated results of their its operations during such yearFiscal Year, all setting forth in comparative form the corresponding figures for the prior Fiscal Year, and in comparative form the corresponding figures in the budget delivered under Section 6.04(f) for such Fiscal Year (or, with respect to the 2012 and 2013 Fiscal Year, a comparison to the corresponding figures in the budget approved by the Governing Body of Parent for such Fiscal Year (the “2012/2013 Budget”) which consolidated balance sheet and related statements of operations, cash flows and owners’ equity shall be audited by independent public accountants of recognized national standing reasonably acceptable to the Administrative Agent a Registered Public Accounting Firm and accompanied by an opinion of such accountants (which shall not be qualified in as to scope of audit or as to the status of any material respectLoan Party as a going concern other than any such qualification or exception that is solely with respect to, or resulting solely from, an upcoming maturity date under this Agreement or the Revolving Credit Agreement occurring within one year from the time such report is delivered) to the effect that such consolidated financial statements fairly present, in all material respects, the financial position and results of operations of each of Holdings and its Subsidiaries and the Borrower and its Subsidiaries Loan Parties on a consolidated basis in accordance with GAAP, GAAP (it being understood that after a Specified IPO the delivery by Holdings of its annual reports on Form 10-K of Parent and its Subsidiaries or the Loan Parties, as filed with the SEC required hereunder, shall satisfy its the requirements (but not those of the Borrower and its Subsidiaries) under this Section 5.04(a6.04(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 thirty (30) days after following the end of each of the first three fiscal quarters month of each fiscal yearFiscal Year, a consolidated balance sheet and related statements of operations and cash flows showing the financial position of each of Holdings of, so long as Parent does not own any Subsidiaries other than Borrower Holdco, Parent and its Subsidiaries, and, if Parent does own any Subsidiaries and other than Borrower Holdco, the Borrower and its Subsidiaries Loan Parties, as of the close of such fiscal quarter month and the consolidated results of their its operations during such fiscal quarter and month, and, in each case, 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 compared to the budget delivered under Section 6.04(f) for such Fiscal Year (or, with respect to any Fiscal Month ending in the 2013 Fiscal Year, the corresponding figures in the 2012/2013 Budget), and (ii) management’s discussion and analysis of significant operational and financial developments during such monthly period (provided that following a Specified IPO, such management’s discussion and analysis shall be due within such timeframes and be substantially the same as is delivered to the Governing Body), 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 either the chief financial officer or controller in such person’s capacity as a Financial Responsible Officer of Holdings or the Borrower, as the case may be, on behalf of Holdings or the Borrower, respectively, Borrower as fairly presenting, in all material respects, the financial position and results of operations of Holdings the Parent and its Subsidiaries or the Borrower and its SubsidiariesLoan Parties, as the case may berequired hereunder, in each case on a consolidated basis in accordance with GAAP (except for the absence of footnotes), subject to normal year-end audit adjustmentsadjustments and the absence of footnotes) (the applicable financial statements delivered pursuant to this clause (b) being the “Monthly Financial Statements”, it being understood that the delivery by Holdings of its Form 10-Q as filed and, together with the SEC shall satisfy its requirements (but not those of Annual Financial Statements and Monthly Financial Statements, the Borrower and its Subsidiaries) under this Section 5.04(b“Required Financial Statements);
(c) concurrently together with any the delivery of financial statements under (a) or (b) aboveMonthly Financial Statements delivered for the last month of each Fiscal Quarter, a certificate of the accounting firm or Financial Officer on behalf of the Borrower opining on or certifying such statements (which certificate, when furnished by an accounting firm, may be limited to accounting matters and disclaim responsibility for legal interpretations) report providing (i) certifying that no Event a comparison of Default or Default has occurred or, if such an Event of Default or Default has occurred, specifying same store sales to sales from the nature and extent thereof and any corrective action taken or proposed to be taken with respect thereto corresponding period in the prior Fiscal Year and (ii) setting forth computations in reasonable detail satisfactory to detailed performance information for stores open and operating for less than one year as of the Administrative Agent demonstrating compliance end of such Fiscal Quarter;
(d) together with the covenants contained in Sections 6.10delivery of the Required Financial Statements, 6.11 and 6.12 (it being understood that the information required by this clause (ii) may be provided in a properly completed certificate of a Financial Responsible Officer on behalf of the Borrower instead substantially in the form of from such accounting firmExhibit D (each, a “Compliance Certificate”);
(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 HoldingsParent, the Borrower or any of their Subsidiaries Loan Party with the SEC, or after a Specified IPO, distributed to its shareholders stockholders generally, as the case may be;
applicable; provided that such reports, proxy statements, filings and other materials required to be delivered pursuant to this clause (e) if, as a result of any change in accounting principles and policies from those as in effect on the date shall be deemed delivered for purposes of this Agreement (other than in respect when posted to the website 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 Holdings or the Borrower, as the case may be, reconciling such changes to what the financial statements would have been without such changes;
(f) within 30 forty-five (45) days after the beginning of each fiscal yearFiscal Year, a reasonably detailed draft consolidated annual budget in form satisfactory to for such Fiscal Year, and, within sixty (60) days after the Agents prepared by Holdings beginning of each Fiscal Year, a reasonably detailed final consolidated annual budget for each such Fiscal Year (including a projected consolidated balance sheet of Parent and its Subsidiaries as of the four fiscal quarters end of each Fiscal Month for the following Fiscal Year, and annual consolidated statements of projected cash flow and projected income and projected Availability on a monthly basis), including a description of underlying assumptions with respect thereto and describing any changes from such fiscal year prepared preliminary budget delivered to Agent (collectively, the “Budget”), which Budget shall in reasonable detail, of Holdings and its Subsidiaries, each case be accompanied by the statement of a Financial Responsible Officer of Holdings the Borrower to the effect that, that the Budget is based on assumptions believed by such Responsible Officer to be reasonable as of the best date of his knowledge, the budget is a reasonable estimate for the period covered therebydelivery thereof;
(g) promptly following upon the creation or acquisition of any Subsidiary, a certificate from a Responsible Officer, identifying such new Subsidiary and the ownership interest reasonable request of the Borrower and Agent (which request shall be made at least fifteen (15) days prior to the Subsidiaries thereindate Annual Financial Statements are required to be delivered), concurrently with any delivery of the Annual Financial Statements under paragraph (a) of this Section 6.04, 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 (g) or Section 6.10(d);
(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 receipt thereof by Holdings, the Borrower or 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 time, such other information regarding the operations, business affairs and financial condition of Holdings, the Borrower Parent or any of Loan Parties and their Subsidiaries, or compliance with the terms of any Loan Document, in each case, as the Agent may reasonably request (for itself or on behalf of any Lender);
(i) concurrently with such delivery made pursuant to the requirements of the Revolving Credit Agreement, a copy of the most recent Borrowing Base Certificate;
(j) promptly upon request by the 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 Pension Plan, and (iii) all notices received from a Multiemployer Plan sponsor, a plan administrator or any governmental agency, or provided to any Multiemployer Plan by the Loan Parties or any ERISA Affiliate, concerning an ERISA Event; and
(k) promptly following any request therefor by the 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 Loan Parties 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 Loan Parties or any ERISA Affiliate may request with respect to any Multiemployer Plan; provided that if Parent, any of the Loan Parties or any ERISA Affiliate has not requested such documents or notices from the administrator or sponsor of the applicable Multiemployer Plan, Parent, the Lead Borrower, such other Subsidiary or such consolidating financial statementsERISA 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 or a Loan Party 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 Person’s level in a manner consistent with that described in paragraphs (a) and (b) of this Section 6.04 for Borrower Holdco will satisfy the requirements of such paragraphs. The Loan Parties hereby acknowledge that (a) the Agent will make available to the Lenders materials and/or information provided by or on behalf of the Loan Parties hereunder (collectively, “Borrower Materials”) by posting the Borrower Materials on IntraLinks or another similar electronic system (the “Platform”) and (b) certain of the Lenders may be “public-side” Lenders (i.e., Lenders that do not wish to receive material non-public information with respect to the Loan Parties or their securities) (each, a “Public Lender”). The Loan Parties hereby agree that so long as any Loan Party is the issuer of any outstanding debt or equity securities that are registered or issued pursuant to a private offering or is actively contemplating issuing any such securities they will use commercially reasonable efforts to identify that portion of the Borrower Materials that may be distributed to the Public Lenders and that (w) all such Borrower Materials shall be clearly and conspicuously marked “PUBLIC” which, at a minimum, shall mean that the word “PUBLIC” shall appear prominently on the first page thereof; (x) by marking Borrower Materials “PUBLIC,” the Loan Parties shall be deemed to have authorized the Agent and the Lenders to treat such Borrower Materials as not containing any material non-public information (although it may be sensitive and proprietary) with respect to the Loan Parties or their securities for purposes of United States Federal and state securities laws (provided, however, that to the extent such Borrower Materials constitute Confidential Information, they shall be treated as set forth in each case Section 11.07); (y) all Borrower Materials marked “PUBLIC” are permitted to be made available through a portion of the Agents or Platform designated “Public Investor”; and (z) the Agent shall be entitled to treat any Lender, acting through Borrower Materials that are not marked “PUBLIC” as being suitable only for posting on a portion of the Administrative Agent, may reasonably requestPlatform not designated “Public Investor.”
Appears in 1 contract
Financial Statements, Reports, etc. Furnish to the Agents and each Lender:Administrative Agent (which will promptly furnish such information to the Lenders):
(a) within 90 days (or, if applicable, such shorter period as the SEC shall specify for the filing of annual reports on Form 10-K or on any applicable equivalent form) after the end of each fiscal year, year a consolidated balance sheet and related statements of operations, cash flows and owners' equity or stockholders' ’ equity showing the financial position of each of Holdings and its Subsidiaries and the Borrower Company and its Subsidiaries as of the close of such fiscal year and the consolidated results of their operations during such fiscal year and setting forth in comparative form the corresponding figures for the prior fiscal year, all which consolidated balance sheets and related statements of operations, cash flows and owners’ equity shall be audited by PricewaterhouseCoopers, LLP or other independent public accountants of recognized national standing reasonably acceptable to the Administrative Agent and accompanied by an opinion of such accountants (which opinion shall not be qualified in as to scope of audit or as to the status of the Company or any material respectMaterial Subsidiary as a going concern) to the effect that such consolidated financial statements fairly present, in all material respects, the financial position and results of operations of each of Holdings and its Subsidiaries and the Borrower Company and its Subsidiaries on a consolidated basis in accordance with GAAP, GAAP (it being understood that the delivery by Holdings the Company of its annual reports on Form 10-K as filed with or the SEC equivalent of the Company and its consolidated Subsidiaries shall satisfy its the requirements of this (but not those of a) to the Borrower and its Subsidiaries) under this Section 5.04(aextent such annual reports include the information specified herein);
(b) within 45 days (or, if applicable, such shorter period as the SEC shall specify for the filing of quarterly reports on Form 10-Q or on any applicable equivalent form) after the end of each of the first three fiscal quarters of each fiscal year, a consolidated balance sheet and related statements of operations and cash flows showing the financial position of each of Holdings and its Subsidiaries and the Borrower Company and its Subsidiaries as of the close of such fiscal quarter and the consolidated results of their operations during such fiscal quarter and the then-elapsed portion of the fiscal year and setting forth in comparative form the corresponding figures for the corresponding periods of the prior fiscal year, all of which shall be in reasonable detail and which consolidated balance sheet and related statements of operations and cash flows shall be certified by a Financial Officer of Holdings or the Borrower, as the case may be, Company on behalf of Holdings or the Borrower, respectivelyCompany, as fairly presenting, in all material respects, the financial position and results of operations of Holdings and its Subsidiaries or the Borrower Company and its Subsidiaries, as the case may be, in each case on a consolidated basis in accordance with GAAP (except for the absence of footnotes), subject to normal year-end audit adjustments, adjustments and the absence of footnotes) (it being understood that the delivery by Holdings the Company of its quarterly reports on Form 10-Q as filed with of the SEC Company and its consolidated Subsidiaries shall satisfy its the requirements of this (but not those of b) to the Borrower and its Subsidiaries) under this Section 5.04(bextent such quarterly reports include the information specified herein);
(c) (x) concurrently with any delivery of financial statements under paragraphs (a) or (b) above, a certificate of the accounting firm or a Financial Officer on behalf of the Borrower opining on or certifying such statements (which certificate, when furnished by an accounting firm, may be limited to accounting matters and disclaim responsibility for legal interpretations) Company (i) certifying that no Event of Default or Default has occurred or, if such an Event of Default or Default has occurred, specifying the nature and extent thereof and any corrective action taken or proposed to be taken with respect thereto and thereto, (ii) setting forth computations in reasonable detail satisfactory to the Administrative Agent demonstrating compliance with the covenants contained set forth in Sections 6.106.12, 6.11 6.13, 6.14, and 6.12 6.15, (it being understood iii) setting forth the calculation and uses of the Cumulative Credit for the fiscal period then ended if the Company shall have used the Cumulative Credit for any purpose during such fiscal period, and (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 information required by this aggregate do not exceed the limitation set forth in clause (iib) may be provided in of the definition of the term “Immaterial 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 applicable office, a certificate of a Financial Officer the accounting firm opining on behalf or certifying such statements stating whether they obtained knowledge during the course of the Borrower instead their examination of from such statements of any Default or Event of Default (which certificate may be limited to accounting firmmatters 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 Company or any of their Subsidiaries Subsidiary with the SEC, or after an initial public offering, distributed to its shareholders stockholders generally, as applicable; provided, however, that such reports, proxy statements, filings and other materials required to be delivered pursuant to this clause (d) or any other clause of this Section 5.04 shall be deemed delivered for purposes of this Agreement when posted to the case may bewebsite of the Company or the SEC;
(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 Holdings or the Borrower, as the case may be, reconciling such changes to what the financial statements would have been without such changes;
(f) within 30 90 days after the beginning of each fiscal year, a reasonably detailed consolidated quarterly 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, (including a projected consolidated balance sheet of Holdings the Company and its SubsidiariesSubsidiaries 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 Holdings the Company to the effect that, that the Budget is based on assumptions believed by such Financial Officer to be reasonable as of the best date of his knowledge, the budget is a reasonable estimate for the period covered therebydelivery thereof;
(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 receipt thereof by Holdings, the Borrower or 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
(jf) promptly, from time to time, such other information (i) regarding the operations, business affairs and financial condition of Holdings, the Borrower Company or any of their the Subsidiaries, or (ii) regarding compliance with the terms of any Loan Document, or (iii) regarding such consolidating financial statementsstatements or (iv) required under the USA PATRIOT Act, as in each case the Agents Administrative Agent may reasonably request (for itself or on behalf of any Lender);
(g) in the event that (x) any Parent Entity reports on a consolidated basis then, acting through such consolidated reporting at such Parent Entity’s level in a manner consistent with that described in paragraphs (a) and (b) of this Section 5.04 for the Administrative AgentCompany (together with a reconciliation showing the adjustments necessary to determine compliance by the Company and its Subsidiaries with the covenants set forth in Sections 6.12, may reasonably request6.13, 6.14, and 6.15 and consolidating information that explains in reasonable detail the differences between the information relating to such direct or indirect parent and its Subsidiaries, on the one hand, and the information relating to the Company and its Subsidiaries, on the other hand) will satisfy the requirements of such paragraphs.
Appears in 1 contract
Samples: Credit Agreement (Norwegian Cruise Line Holdings Ltd.)
Financial Statements, Reports, etc. Furnish to the Agents and each Lender:Administrative Agent (which will promptly furnish such information to the Lenders):
(a) within 90 days (or such longer period as may be permitted by the SEC if the Borrower were then subject to such SEC reporting requirements as a required filer, voluntary filer or otherwise) after the end of each fiscal year, (i) a consolidated balance sheet and related statements of operations, cash flows and owners' equity or stockholders' ’ equity showing the financial position of each of Holdings and its Subsidiaries and the Borrower and its Subsidiaries subsidiaries as of the close of such fiscal year and the consolidated results of their its operations during such year and, commencing with the fiscal year ending December 31, 2007, setting forth in comparative form the corresponding figures for the prior fiscal year, all and (ii) management’s discussion and analysis of significant operational and financial developments during such fiscal year, which consolidated balance sheet and related statements of operations, cash flows and owners’ equity shall be audited by independent public accountants of recognized national standing reasonably acceptable to the Administrative Agent and accompanied by an opinion of such accountants (which shall not be qualified in any material respect) to the effect that such consolidated financial statements fairly present, in all material respects, the financial position and results of operations of each of Holdings and its Subsidiaries and the Borrower and its Subsidiaries subsidiaries on a consolidated basis in accordance with GAAP, GAAP (it being understood that that
(a) to the delivery extent such Annual Reports are filed by Holdings of its Form 10-K as filed the Borrower with the SEC shall satisfy its requirements (but not those of and include the Borrower and its Subsidiaries) under this Section 5.04(ainformation specified herein);
(b) within 45 days (or such longer period as may be permitted by the SEC if the Borrower were then subject to such SEC reporting requirements as a required filer, voluntary filer or otherwise) after the end of each of the first three fiscal quarters of each fiscal year, (i) a consolidated balance sheet and related statements of operations and cash flows showing the financial position of each of Holdings and its Subsidiaries and the Borrower and its Subsidiaries subsidiaries as of the close of such fiscal quarter and the consolidated results of their its operations during such fiscal quarter and the then-elapsed portion of the fiscal year and 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 Financial an Officer of Holdings or the Borrower, as the case may be, Borrower on behalf of Holdings or the Borrower, respectively, Borrower as fairly presenting, in all material respects, the financial position and results of operations of Holdings and its Subsidiaries or the Borrower and its Subsidiaries, as the case may be, in each case subsidiaries on a consolidated basis in accordance with GAAP (except for the absence of footnotes), subject to normal year-end audit adjustments, adjustments and the absence of footnotes (it being understood that the delivery by Holdings the Borrower of its Quarterly Reports on Form 10-Q as filed with the SEC shall satisfy its requirements (but not those of the Borrower and its Subsidiaries) under consolidated subsidiaries shall satisfy the requirements of this Section 5.04(b) to the extent such Quarterly Reports are filed by the Borrower with the SEC and include the information specified herein);
(c) concurrently with any delivery of financial statements under within 30 days (a) or (b) above, a certificate of such longer period as may be permitted by the accounting firm or Financial Officer on behalf of SEC if the Borrower opining on were then subject to such SEC reporting requirements as a required filer, voluntary filer or certifying such statements (which certificate, when furnished by an accounting firm, may otherwise) all current reports that would be limited to accounting matters and disclaim responsibility for legal interpretations) (i) certifying that no Event of Default or Default has occurred or, if such an Event of Default or Default has occurred, specifying the nature and extent thereof and any corrective action taken or proposed required to be taken with respect thereto and (ii) setting forth computations in reasonable detail satisfactory to the Administrative Agent demonstrating compliance filed with the covenants contained in Sections 6.10, 6.11 and 6.12 SEC on Form 8-K if the Borrower were required to file such reports (it being understood that the information required delivery 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) 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 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 Holdings or the Borrower, as the case may be, reconciling such changes to what the financial statements would have been without such changes;
(f) 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 Forms 8-K of the Borrower and its consolidated subsidiaries shall satisfy the Subsidiaries therein;
(hrequirements of this Section 5.04(c) simultaneously to the extent such Forms 8-K are filed by the Borrower with the delivery of any financial statements pursuant SEC and include the information specified herein); provided, that such Forms 8-K need not be furnished if the information that would be required to paragraph (a) be provided on such Forms 8-K has been provided by Opco on a Form 8-K or (b) aboveother report, 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 receipt thereof by Holdings, the Borrower form or 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 time, such other information regarding the operations, business affairs and financial condition of Holdings, the Borrower or any of their Subsidiaries, or compliance filing that it has filed with the terms of any Loan Document, or such consolidating financial statements, as in each case the Agents or any Lender, acting through the Administrative Agent, may reasonably request.SEC;
Appears in 1 contract
Financial Statements, Reports, etc. Furnish to the Agents and each Lender:
(a) within 90 days after the end of each fiscal yearyear (or, in the case of the fiscal year ended December 31, 1997, within 120 days after the end thereof), a consolidated balance sheet and related statements of operations, cash flows and owners' equity or stockholders' equity showing the financial position of each of Holdings and its Subsidiaries and the Borrower and its Subsidiaries as of the close of such fiscal year and the consolidated results of their operations during such yearyear (or, in the case of the fiscal year ended December 31, 1997, such statements of Holdings combined on the same basis as set forth in the Offering Memorandum), all audited by independent public accountants of recognized national standing reasonably acceptable to the Administrative Agent and accompanied by an opinion of such accountants (which shall not be qualified in any material respect) to the effect that such consolidated financial statements fairly present, in all material respects, the financial position and results of operations of each of Holdings and its Subsidiaries and the Borrower and its Subsidiaries on a consolidated basis in accordance with GAAP, it being understood that the delivery by Holdings of its Form 10-K as filed with the SEC shall satisfy its requirements (but not those of the Borrower and its Subsidiaries) under this Section 5.04(a);
(b) within 45 days (or 60 days in the case of the fiscal quarter ended in March, 1998) after the end of each of the first three fiscal quarters of each fiscal year, a consolidated balance sheet and related statements of operations and cash flows showing the financial position of each of Holdings and its Subsidiaries 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, all certified by a Financial Officer of Holdings or the Borrower, as the case may be, on behalf of Holdings or the Borrower, respectively, as fairly presenting, in all material respects, the financial position and results of operations of 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 GAAP (except for the absence of footnotes), subject to normal year-end audit adjustments, it being understood that the delivery by Holdings of its Form 10-Q as filed with the SEC shall satisfy its requirements (but not those of the Borrower and its Subsidiaries) under this Section 5.04(b);
(c) concurrently with any delivery of financial statements under (a) or (b) above, a certificate of the accounting firm or Financial Officer on behalf of the Borrower opining on or certifying such statements (which certificate, when furnished by an accounting firm, may be limited to accounting matters and disclaim responsibility for legal interpretations) (i) certifying that no Event of Default or Default has occurred or, if such an Event of Default or Default has occurred, specifying the nature and extent thereof and any corrective action taken or proposed to be taken with respect thereto and (ii) setting forth computations in reasonable detail satisfactory to the Administrative Agent demonstrating compliance with the covenants contained in Sections 6.10, 6.11 and 6.12 (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) 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 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 Holdings or the Borrower, as the case may be, reconciling such changes to what the financial statements would have been without such changes;
(f) 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 receipt thereof by Holdings, the Borrower or any of their respective Subsidiariespromptly, 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 time, such other information regarding the operations, business affairs and financial condition of Holdings, the Borrower or any of their Subsidiaries, or compliance with the terms of any Loan Document, or such consolidating financial statements, as in each case the Agents or any Lender, acting through the Administrative Agent, may reasonably request.
Appears in 1 contract
Financial Statements, Reports, etc. Furnish to the Agents and each Lender:Administrative Agent (which will promptly furnish such information to the Lenders):
(a) within 90 days (or, if applicable, such shorter period as the SEC shall specify for the filing of annual reports on Form 10-K or on any applicable equivalent form) after the end of each fiscal year, year a consolidated balance sheet and related statements of operations, cash flows and owners' equity or stockholders' ’ equity showing the financial position of each of Holdings and its Subsidiaries and the Borrower Company and its Subsidiaries as of the close of such fiscal year and the consolidated results of their operations during such fiscal year and setting forth in comparative form the corresponding figures for the prior fiscal year, all which consolidated balance sheets and related statements of operations, cash flows and owners’ equity shall be audited by PricewaterhouseCoopers, LLP or other independent public accountants of recognized national standing reasonably acceptable to the Administrative Agent and accompanied by an opinion of such accountants (which opinion shall not be qualified in as to scope of audit or as to the status of the Company or any material respectMaterial Subsidiary as a going concern) to the effect that such consolidated financial statements fairly present, in all material respects, the financial position and results of operations of each of Holdings and its Subsidiaries and the Borrower Company and its Subsidiaries on a consolidated basis in accordance with GAAP, GAAP (it being understood that the delivery by Holdings the Company of its annual reports on Form 10-K as filed with or the SEC equivalent of the Company and its consolidated Subsidiaries shall satisfy its the requirements of this (but not those of a) to the Borrower and its Subsidiaries) under this Section 5.04(aextent such annual reports include the information specified herein);
(b) within 45 days (or, if applicable, such shorter period as the SEC shall specify for the filing of quarterly reports on Form 10-Q or on any applicable equivalent form) after the end of each of the first three fiscal quarters of each fiscal year, a consolidated balance sheet and related statements of operations and cash flows showing the financial position of each of Holdings and its Subsidiaries and the Borrower Company and its Subsidiaries as of the close of such fiscal quarter and the consolidated results of their operations during such fiscal quarter and the then-elapsed portion of the fiscal year and setting forth in comparative form the corresponding figures for the corresponding periods of the prior fiscal year, all of which shall be in reasonable detail and which consolidated balance sheet and related statements of operations and cash flows shall be certified by a Financial Officer of Holdings or the Borrower, as the case may be, Company on behalf of Holdings or the Borrower, respectivelyCompany, as fairly presenting, in all material respects, the financial position and results of operations of Holdings and its Subsidiaries or the Borrower Company and its Subsidiaries, as the case may be, in each case on a consolidated basis in accordance with GAAP (except for the absence of footnotes), subject to normal year-end audit adjustments, adjustments and the absence of footnotes) (it being understood that the delivery by Holdings the Company of its quarterly reports on Form 10-Q as filed with of the SEC Company and its consolidated Subsidiaries shall satisfy its the requirements of this (but not those of b) to the Borrower and its Subsidiaries) under this Section 5.04(bextent such quarterly reports include the information specified herein);
(c) (x) concurrently with any delivery of financial statements under paragraphs (a) or (b) above, a certificate of the accounting firm or a Financial Officer on behalf of the Borrower opining on or certifying such statements (which certificate, when furnished by an accounting firm, may be limited to accounting matters and disclaim responsibility for legal interpretations) Company (i) certifying that no Event of Default or Default has occurred or, if such an Event of Default or Default has occurred, specifying the nature and extent thereof and any corrective action taken or proposed to be taken with respect thereto and thereto, (ii) setting forth computations in reasonable detail satisfactory to the Administrative Agent demonstrating compliance with the covenants contained set forth in Sections 6.106.12, 6.11 6.13, 6.14, and 6.12 6.15, (it being understood iii) setting forth the calculation and uses of the Cumulative Credit for the fiscal period then ended if the Company shall have used the Cumulative Credit for any purpose during such fiscal period, and (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 information required by this aggregate do not exceed the limitation set forth in clause (iib) may be provided in of the definition of the term “Immaterial 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 applicable office, a certificate of a Financial Officer the accounting firm opining on behalf or certifying such statements stating whether they obtained knowledge during the course of the Borrower instead their examination of from such statements of any Default or Event of Default (which certificate may be limited to accounting firmmatters 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 Company or any of their Subsidiaries Subsidiary with the SEC, or after an initial public offering, distributed to its shareholders stockholders generally, as applicable; provided, however, that such reports, proxy statements, filings and other materials required to be delivered pursuant to this clause (d) or any other clause of this Section 5.04 shall be deemed delivered for purposes of this Agreement when posted to the case may bewebsite of the Company or the SEC;
(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 Holdings or the Borrower, as the case may be, reconciling such changes to what the financial statements would have been without such changes;
(f) within 30 90 days after the beginning of each fiscal year, a reasonably detailed consolidated quarterly 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, (including a projected consolidated balance sheet of Holdings the Company and its SubsidiariesSubsidiaries 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 Holdings the Company to the effect that, that the Budget is based on assumptions believed by such Financial Officer to be reasonable as of the best date of his knowledge, the budget is a reasonable estimate for the period covered therebydelivery thereof;
(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 receipt thereof by Holdings, the Borrower or 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
(jf) promptly, from time to time, such other information (i) regarding the operations, business affairs and financial condition of Holdings, the Borrower Company or any of their the Subsidiaries, or (ii) regarding compliance with the terms of any Loan Document, or (iii) regarding such consolidating financial statementsstatements or (iv) required under the USA PATRIOT Act or the Beneficial Ownership Regulation, as in each case the Agents Administrative Agent may reasonably request (for itself or on behalf of any Lender);
(g) in the event that (x) any Parent Entity reports on a consolidated basis then, acting through such consolidated reporting at such Parent Entity’s level in a manner consistent with that described in paragraphs (a) and (b) of this Section 5.04 for the Administrative AgentCompany (together with a reconciliation showing the adjustments necessary to determine compliance by the Company and its Subsidiaries with the covenants set forth in Sections 6.12, may reasonably request6.13, 6.14, and 6.15 and consolidating information that explains in reasonable detail the differences between the information relating to such direct or indirect parent and its Subsidiaries, on the one hand, and the information relating to the Company and its Subsidiaries, on the other hand) will satisfy the requirements of such paragraphs.
Appears in 1 contract
Samples: Credit Agreement (Norwegian Cruise Line Holdings Ltd.)
Financial Statements, Reports, etc. Furnish to the Agents and each Lender:Administrative Agent (which will promptly furnish such information to the Lenders):
(a) within 90 Within 105 days after (or such longer time period as specified in the SEC’s rules and regulations with respect to non-accelerated filers for the filing of annual reports on Form 10-K), following the end of each fiscal yearyear (commencing with the fiscal year ending December 31, 2017), a consolidated balance sheet and related statements of operations, cash flows and owners' equity or stockholders' ’ equity showing the financial position of each of Holdings and its Subsidiaries and the Borrower and its Subsidiaries consolidated subsidiaries as of the close of such fiscal year and the consolidated results of their operations during such year and setting forth in comparative form the corresponding figures for the prior fiscal year, all which consolidated balance sheet and related statements of operations, cash flows and owners’ equity shall be audited by independent public accountants of recognized national standing reasonably acceptable to the Administrative Agent and accompanied by an opinion of such accountants (which opinion shall not be qualified as to scope of audit or as to the status of the Borrower or any Material Subsidiary as a going concern, other than solely with respect to, or resulting solely from an upcoming maturity date under any series of Indebtedness occurring within one year from the time such opinion is delivered or potential inability to satisfy a financial maintenance covenant under any series of Indebtedness on a future date or in any material respecta future period) to the effect that such consolidated financial statements fairly present, in all material respects, the financial position and results of operations of each of Holdings and its Subsidiaries and the Borrower and its Subsidiaries consolidated subsidiaries on a consolidated basis in accordance with GAAP, GAAP (it being understood that the delivery by Holdings the Borrower of its annual reports on Form 10-K as filed with the SEC shall satisfy its requirements (but not those of the Borrower and its Subsidiaries) under consolidated subsidiaries shall satisfy the requirements of this Section 5.04(a) to the extent such annual reports include the information specified herein);
(b) Within 60 days (or such longer time period as specified in the SEC’s rules and regulations with respect to non-accelerated filers for the filing of quarterly reports on Form 10-Q) (or, in the case of the first three fiscal quarters for which quarterly financial statements are required to be delivered hereunder, within 45 75 days after following the end of such fiscal quarter), following the end of each of the first three fiscal quarters of each fiscal yearyear (commencing with the fiscal quarter ending March 31, 2018), a consolidated balance sheet and related statements of operations and cash flows showing the financial position of each of Holdings and its Subsidiaries and the Borrower and its Subsidiaries consolidated subsidiaries as of the close of such fiscal quarter and the consolidated results of their operations during such fiscal quarter and the then-elapsed portion of the fiscal year and setting forth in comparative form the corresponding figures for the corresponding periods of the prior fiscal year, all of which shall be in reasonable detail and which consolidated balance sheet and related statements of operations and cash flows shall be certified by a Financial Officer of Holdings or the Borrower, as the case may be, Borrower on behalf of Holdings or the Borrower, respectively, Borrower as fairly presenting, in all material respects, the financial position and results of operations of Holdings and its Subsidiaries or the Borrower and its Subsidiaries, as the case may be, in each case consolidated subsidiaries on a consolidated basis in accordance with GAAP (except for the absence of footnotes), subject to normal year-end audit adjustments, adjustments and the absence of footnotes) (it being understood that the delivery by Holdings the Borrower of its quarterly reports on Form 10-Q as filed with the SEC shall satisfy its requirements (but not those of the Borrower and its Subsidiaries) under consolidated subsidiaries shall satisfy the requirements of this Section 5.04(b);
(c) concurrently with any delivery of financial statements under (a) or (b) above, a certificate of the accounting firm or Financial Officer on behalf of the Borrower opining on or certifying such statements (which certificate, when furnished by an accounting firm, may be limited to accounting matters and disclaim responsibility for legal interpretations) (i) certifying that no Event of Default or Default has occurred or, if such an Event of Default or Default has occurred, specifying the nature and extent thereof and any corrective action taken or proposed to be taken with respect thereto and (ii) setting forth computations in reasonable detail satisfactory to the Administrative Agent demonstrating compliance with the covenants contained in Sections 6.10, 6.11 and 6.12 (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) promptly after the same become publicly available, copies of all periodic and other publicly available reports, proxy statements and, to the extent requested by such quarterly reports include 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 beinformation specified herein);
(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 Holdings or the Borrower, as the case may be, reconciling such changes to what the financial statements would have been without such changes;
(f) 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 receipt thereof by Holdings, the Borrower or 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 time, such other information regarding the operations, business affairs and financial condition of Holdings, the Borrower or any of their Subsidiaries, or compliance with the terms of any Loan Document, or such consolidating financial statements, as in each case the Agents or any Lender, acting through the Administrative Agent, may reasonably request.
Appears in 1 contract
Financial Statements, Reports, etc. Furnish to the Agents and each Lender:Administrative Agent (which will promptly furnish such information to the Lenders):
(a) within Within 90 days after (or such other time period as specified in the end SEC’s rules and regulations with respect to non-accelerated filers for the filing of annual reports on Form 10-K), for each fiscal yearyear (commencing with the fiscal year ending February 2, 2008), a consolidated balance sheet and related statements of operations, cash flows and owners' equity or stockholders' ’ equity showing the financial position of each of Holdings and its Subsidiaries and the Borrower and its the Subsidiaries as of the close of such fiscal year and the consolidated results of their operations during such year and, starting with the fiscal year ending February 2, 2008, setting forth in comparative form the corresponding figures for the prior fiscal year, all which consolidated balance sheet and related statements of operations, cash flows and owners’ equity shall be audited by independent public accountants of recognized national standing reasonably acceptable to the Administrative Agent and accompanied by an opinion of such accountants (which shall not be qualified in as to scope of audit or as to the status of the Borrower or any material respectMaterial Subsidiary as a going concern) to the effect that such consolidated financial statements fairly present, in all material respects, the financial position and results of operations of each of Holdings and its Subsidiaries and the Borrower and its the Subsidiaries on a consolidated basis in accordance with GAAP, subject to exceptions consistent with the presentation of financial information contained in the Notes Offering Memorandum (it being understood that the delivery by Holdings of its Form 10-K as filed filing with the SEC shall satisfy its requirements (but not those Securities and Exchange Commission of annual reports on Form 10 K of the Borrower and its consolidated Subsidiaries) under , or delivery by the Borrower of such reports to the Administrative Agent, shall satisfy the requirements of this Section 5.04(a) to the extent such annual reports include the information specified herein);
(b) within Within 45 days after (or such other time period as specified in the end SEC’s rules and regulations with respect to non-accelerated filers for the filing of quarterly reports on Form 10 Q), for each of the first three fiscal quarters of each fiscal year, a consolidated balance sheet and related statements of operations and cash flows showing the financial position of each of Holdings and its Subsidiaries and the Borrower and its the Subsidiaries as of the close of such fiscal quarter and the consolidated results of their operations during such fiscal quarter and the then-then elapsed portion of the fiscal year and setting forth in comparative form the corresponding figures for the corresponding periods of the prior fiscal year, all of which shall be in reasonable detail and which consolidated balance sheet and related statements of operations and cash flows shall be certified by a Financial Officer of Holdings or the Borrower, as the case may be, Borrower on behalf of Holdings or the Borrower, respectively, Borrower as fairly presenting, in all material respects, the financial position and results of operations of Holdings and its Subsidiaries or the Borrower and its Subsidiaries, as the case may be, in each case Subsidiaries on a consolidated basis in accordance with GAAP (except for the absence of footnotes), subject to normal year-end audit adjustmentsadjustments and the absence of footnotes, it being understood that the delivery by Holdings of its Form 10-Q as filed and to exceptions consistent with the SEC shall satisfy its requirements (but not those of the Borrower and its Subsidiaries) under this Section 5.04(b);
(c) concurrently with any delivery presentation of financial statements under (a) or (b) above, a certificate of the accounting firm or Financial Officer on behalf of the Borrower opining on or certifying such statements (which certificate, when furnished by an accounting firm, may be limited to accounting matters and disclaim responsibility for legal interpretations) (i) certifying that no Event of Default or Default has occurred or, if such an Event of Default or Default has occurred, specifying the nature and extent thereof and any corrective action taken or proposed to be taken with respect thereto and (ii) setting forth computations in reasonable detail satisfactory to the Administrative Agent demonstrating compliance with the covenants information contained in Sections 6.10, 6.11 and 6.12 the Notes Offering Memorandum (it being understood that the information required by this clause (ii) may be provided in a certificate filing with the Securities and Exchange Commission of a Financial Officer quarterly reports on behalf Form 10 Q of the Borrower instead and its consolidated Table of from Contents Subsidiaries, or delivery by the Borrower of such accounting firm);
(d) promptly after the same become publicly available, copies of all periodic and other publicly available reports, proxy statements and, reports to the extent requested by the Administrative Agent, other materials filed by Holdings, shall satisfy 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 requirements 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 SubsidiariesSection 5.04(b) 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 Holdings or the Borrower, as the case may be, reconciling such changes to what the financial statements would have been without such changes;
(f) within 30 days after the beginning of each fiscal year, a budget in form satisfactory to the Agents prepared by Holdings for each of extent such quarterly reports include 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 therebyinformation specified herein);
(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 receipt thereof by Holdings, the Borrower or 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 time, such other information regarding the operations, business affairs and financial condition of Holdings, the Borrower or any of their Subsidiaries, or compliance with the terms of any Loan Document, or such consolidating financial statements, as in each case the Agents or any Lender, acting through the Administrative Agent, may reasonably request.
Appears in 1 contract
Financial Statements, Reports, etc. Furnish In the case of Parent, furnish to the Agents and each LenderAdministrative Agent:
(a) within 90 days (or within 5 days after any shorter period as the Securities and Exchange Commission shall specify for the filing of Annual Reports on Form 10-K) after the end of each fiscal year, a its consolidated and consolidating balance sheet sheets and related statements of operations, cash flows and owners' equity or stockholders' equity and cash flows showing the financial position condition of each of Holdings and its Subsidiaries Parent and the Borrower and its consolidated Subsidiaries as of the close of such fiscal year and the consolidated results of their its operations and the operations of such Subsidiaries during such year, all audited by KPMG LLP or other independent public accountants of recognized national standing reasonably acceptable to the Administrative Agent Required Lenders and accompanied by an opinion of such accountants (which shall not be qualified in any material respect) to the effect that such consolidated financial statements fairly present, in all material respects, present the financial position condition and results of operations of each of Holdings and its Subsidiaries Parent and the Borrower and its consolidated Subsidiaries on a consolidated basis in accordance with GAAP, it being understood that the delivery by Holdings of its Form 10-K as filed with the SEC shall satisfy its requirements (but not those of the Borrower and its Subsidiaries) under this Section 5.04(a)GAAP consistently applied;
(b) within 45 days (or within 5 days after any shorter period as the Securities and Exchange Commission shall specify for the filing of Quarterly Reports on Form 10-Q), after the end of each of the first three fiscal quarters of each fiscal year, a year its consolidated and consolidating balance sheet sheets and related statements of operations operations, stockholders' equity and cash flows showing the financial position condition of each of Holdings and its Subsidiaries Parent and the Borrower and its consolidated Subsidiaries as of the close of such fiscal quarter and the consolidated results of their its operations and the operations of such Subsidiaries during such fiscal quarter and the then-then elapsed portion of the fiscal year, all certified by a one of its Financial Officer of Holdings or the Borrower, as the case may be, on behalf of Holdings or the Borrower, respectively, Officers as fairly presenting, in all material respects, presenting the financial position condition and results of operations of Holdings Parent and its the consolidated Subsidiaries or the Borrower and its Subsidiaries, as the case may be, in each case on a consolidated basis in accordance with GAAP (except for the absence of footnotes)consistently applied, subject to normal year-end audit adjustments, it being understood that the delivery by Holdings of its Form 10-Q as filed with the SEC shall satisfy its requirements (but not those of the Borrower and its Subsidiaries) under this Section 5.04(b);
(c) within 60 days after the end of the last fiscal month of each fiscal year, 45 days after the end of the third, sixth and ninth fiscal months of each fiscal year, and, at the request of the Administrative Agent (which request shall be made not less than 15 days after the end of the applicable fiscal month), 35 days after the end of each other fiscal month, its consolidated and consolidating balance sheets and related statements of operations and stockholders' equity and consolidated cash flows showing the financial condition of Parent and the consolidated Subsidiaries as of the close of such month and the results of its operations, the operations of such Subsidiaries during such month and the then elapsed portion of the fiscal year and the monthly management reports that have been provided historically by Parent with such financial statements, all certified by one of its Financial Officers as fairly presenting the financial condition and results of operations of Parent and the consolidated Subsidiaries on a consolidated basis in accordance with GAAP consistently applied, subject to normal year-end audit adjustments;
(d) concurrently with any delivery of financial statements under paragraph (a) or (b) above, a certificate of the accounting firm or Financial Officer on behalf of the Borrower Officer, substantially as set forth in Exhibit E, (i) opining on or certifying such statements (which certificate, when furnished by an accounting firm, may be limited to accounting matters and disclaim responsibility for legal interpretations) (i) and certifying that no Event of Default or Default has occurred or, if such an Event of Default or Default has occurred, specifying the nature and extent thereof and any corrective action taken or proposed to be taken with respect thereto and (ii) setting forth computations in reasonable detail satisfactory to (A) the Administrative Agent demonstrating compliance with the covenants contained in Sections 6.10, 6.11 and 6.12 amount of Net Cash Proceeds (it being understood that the information required by this clause (iiw) may be provided in a certificate of a Financial Officer on behalf of the Borrower instead of received from such accounting firm);
(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 Holdingseach Asset Sale, the Borrower or any of their Subsidiaries with the SEC, or distributed Net Cash Proceeds from which are 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 be applied to acquire Reinvestment Assets 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 Holdings or the Borrower, as the case may be, reconciling such changes to what the financial statements would have been without such changes;
(f) 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 receipt thereof by Holdings, the Borrower or 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 time, such other information regarding the operations, business affairs and financial condition of Holdings, the Borrower or any of their Subsidiaries, or compliance with the terms of any Loan Document, or such consolidating financial statements, as in each case the Agents or any Lender, acting through the Administrative Agent, may reasonably request.Section
Appears in 1 contract
Samples: Credit Agreement (Dennys Corp)
Financial Statements, Reports, etc. Furnish Deliver to the Agents Administrative Agent and each Lenderof the Lenders:
(a) within 90 ninety (90) days after the end of each fiscal year, a the Borrowers' and the Guarantor's consolidated and consolidating balance sheet sheets and related statements of operationsincome, cash flows and owners' equity or stockholders' equity and cash flows, showing the financial position condition of each of Holdings the Borrowers, the Guarantor and its their respective Subsidiaries and 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, all the consolidated statements of the Borrowers and the Guarantor to be audited for the Borrowers, the Guarantor and their respective Subsidiaries by Xxxxxx Xxxxxxxx LLP or other independent public accountants of recognized national standing reasonably acceptable to the Administrative Agent Required Lenders and accompanied by an opinion of such accountants (which shall not be qualified in any material respectother than with respect to the Cases or a going concern qualification) and to be certified by a Financial Officer of Parent to the effect that such consolidated financial statements fairly present, in all material respects, present the financial position condition and results of operations of each of Holdings the Borrowers, the Guarantor and its Subsidiaries and the Borrower and its their respective Subsidiaries on a consolidated basis in accordance with GAAP, it being understood that the delivery by Holdings of its Form 10-K as filed with the SEC shall satisfy its requirements (but not those of the Borrower and its Subsidiaries) under this Section 5.04(a);
(b) within 45 forty five (45) days after the end of each of the first three fiscal quarters (but within sixty (60) days after the end of the fiscal quarter ending June 30, 2001) and within ninety (90) days after the end of the fourth fiscal quarter of each fiscal year, a the Borrowers' and the Guarantor's consolidated and consolidating balance sheet sheets and related statements of operations income, stockholders' equity and cash flows flows, showing the financial position condition of each of Holdings the Borrowers, the Guarantor and its their respective Subsidiaries and 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-then elapsed portion of the fiscal year, all each certified by a Financial Officer of Holdings or the Borrower, as the case may be, on behalf of Holdings or the Borrower, respectively, Parent as fairly presenting, in all material respects, presenting the financial position condition and results of operations of Holdings the Borrowers, the Guarantor and its their respective Subsidiaries or the Borrower and its Subsidiaries, as the case may be, in each case on a consolidated basis in accordance with GAAP (except for the absence of footnotes)GAAP, subject to normal year-end audit adjustments, it being understood that the delivery by Holdings of its Form 10-Q as filed with the SEC shall satisfy its requirements (but not those of the Borrower and its Subsidiaries) under this Section 5.04(b);; 143
(c) concurrently with any delivery of financial statements under (a) or (b) aboveabove as applicable, (i) a certificate of the accounting firm or a Financial Officer on behalf of each of the Borrower opining on or Borrowers and the Guarantor certifying such statements (which certificate, when furnished by an accounting firm, may be limited to accounting matters and disclaim responsibility for legal interpretations) (iA) certifying that no Event of Default or event which upon notice or lapse of time or both would constitute an Event of Default has occurred occurred, or, if such an Event of Default or Default event has occurred, specifying the nature and extent thereof and any corrective action taken or proposed to be taken with respect thereto and (iiB) setting forth computations in reasonable detail satisfactory to the Administrative Agent demonstrating compliance with the covenants contained in provisions of Sections 6.106.3, 6.11 6.4, 6.5 and 6.12 (it being understood that the information required by this clause 6.10 and (ii) may be provided in a certificate of a Financial Officer on behalf such accountants accompanying the audited consolidated financial statements delivered under (a) above certifying that, in the course of the Borrower instead regular audit of from the business of the Borrowers, the Guarantor and their respective Subsidiaries, such accounting firm)accountants have obtained no knowledge that an Event of Default has occurred and is continuing, or if, in the opinion of such accountants, an Event of Default has occurred and is continuing, specifying the nature thereof and all relevant facts with respect thereto;
(d) as soon as available, but no more than forty five (45) days after the end of each month, the unaudited monthly cash flow reports of the Borrowers and the Guarantor on a consolidated basis and as of the close of such fiscal month and the results of their operations during such fiscal period and the then elapsed portion of the fiscal year;
(e) as soon as possible, and in any event within forty five (45) days of the Closing Date, a consolidated pro forma balance sheet of the Borrowers' financial condition as of June 30, 2001;
(f) concurrently with any delivery of financial statements under (b) above, updates, if any, of the forecast delivered to the Administrative Agent pursuant to Section 4.1(i), satisfactory in form and substance to the Administrative Agent;
(g) 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, and other materials filed by Holdingsit with the Securities and Exchange Commission, the Borrower or any governmental authority succeeding to any of their Subsidiaries with or all the SECfunctions of said commission, or distributed to its shareholders generallywith any national securities exchange, as the case may be;
(eh) if, as a result soon as available and in any event (A) within thirty (30) days after any Borrower or the Guarantor or any of their ERISA Affiliates knows or has reason to know that any change Termination Event described in accounting principles and policies from those as in effect on the date clause (i) of this Agreement (other than in respect of the capitalization of repairs and maintenance expenses as provided in the definition of GAAP), Termination Event with respect to any Single Employer Plan of any of the consolidated financial statements of Holdings Borrowers or the Borrower (and their respective Subsidiaries) delivered pursuant to paragraph (a) Guarantor 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) ERISA Affiliate has occurred and (bB) above following within ten (10) days after any of the Borrowers or the Guarantor or any of their ERISA Affiliates knows or has reason to know that any other Termination Event with respect to any such changePlan has occurred, a schedule prepared by a Financial Officer on behalf of Holdings or the Borrower, as the case may be, reconciling such changes to what the financial statements would have been without such changes;
(f) 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 such Borrower or 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 Guarantor describing such new Subsidiary Termination Event and the ownership interest of action, if any, which such Borrower or the Borrower and the Subsidiaries therein;
(h) simultaneously Guarantor or such ERISA Affiliate proposes to take 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 periodrespect thereto;
(i) promptly and in any event within ten (10) days after the receipt thereof by Holdings, any of the Borrower Borrowers or the Guarantor or any of their respective SubsidiariesERISA Affiliates from the PBGC copies of each notice received by such Borrower or the Guarantor or any such ERISA Affiliate of the 144 PBGC's intention to terminate any Single Employer Plan of such Borrower or the Guarantor or such ERISA Affiliate or to have a trustee appointed to administer any such Plan;
(j) if requested by the Administrative Agent, promptly and in any event within thirty (30) days after the filing thereof with the Internal Revenue Service, copies of each Schedule B (Actuarial Information) to the annual report (Form 5500 Series) with respect to each Single Employer Plan of any of the Borrowers, the Guarantor or any of their ERISA Affiliates;
(k) 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 of the Borrowers or the Guarantor or any of their ERISA Affiliates to make timely payments to a Plan, a copy of all reports submitted any such notice filed and a statement of a Financial Officer of such Borrower or the Guarantor setting forth (A) sufficient information necessary to determine the amount of the Lien under Section 302(f)(3), (B) the reason for the failure to make the required payments and (C) the action, if any, which the Borrowers or the Guarantor or any of their ERISA Affiliates proposed to take with respect thereto;
(l) promptly and in any event within ten (10) days after receipt thereof by any of the Borrowers or the Guarantor or any ERISA Affiliate from a Multiemployer Plan sponsor, a copy of each notice received by such Borrower or the Guarantor 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 Borrowers or the Guarantor or any ERISA Affiliate in connection with any material interim event described in clause (A), (B) or special audit made by independent accountants of the books of Holdings, the Borrower or any of their Subsidiaries; and(C) above;
(jm) promptly, from time to time, such other information (including, without limitation, projections) regarding the operations, business affairs and financial condition of Holdings, the any Borrower or any of their Subsidiariesthe Guarantor, or compliance with the terms of any Loan Document, material loan or such consolidating financial statements, financing agreements as in each case the Agents or any Lender, acting through the Administrative Agent, at the request of any Lender, may reasonably request; and
(n) promptly after the same is available, copies of all pleadings, motions, applications, judicial information, financial information and other documents filed by or on behalf of any of the Borrowers with the Bankruptcy Court in the Cases, or distributed by or on behalf of any of the Borrowers to any official committee appointed in any of the Cases, providing copies of same to counsel for the Administrative Agent.
Appears in 1 contract
Financial Statements, Reports, etc. Furnish In the case of the Borrower, furnish to the Agents and each Lender:Administrative Agent (which may, if possible, post such materials on Intralinks so long as all Lenders shall have access thereto):
(a) within 90 100 days after the end of each fiscal year, a its consolidated balance sheet sheets and related statements of operations, earnings and cash flows and owners' equity or stockholders' equity showing the financial position condition of each of Holdings and its Subsidiaries and the Borrower and its consolidated Subsidiaries as of the close of such fiscal year and the consolidated results of their its operations and the operations of such Subsidiaries during such year, all audited by independent public accountants of recognized national standing reasonably acceptable to the Administrative Agent KPMG LLP or any other Big Four Accounting Firm and accompanied by an opinion of such accountants (which shall not be qualified in any material respect) to the effect that such consolidated financial statements fairly present, in all material respects, present the financial position condition and results of operations of each of Holdings and its Subsidiaries and the Borrower and its consolidated Subsidiaries on a consolidated basis in accordance with GAAP, it being understood that GAAP consistently applied (except for changes concurred with by the delivery by Holdings of its Form 10-K as filed with Borrower's independent public accountants and disclosed in such statements or the SEC shall satisfy its requirements (but not those of the Borrower and its Subsidiaries) under this Section 5.04(anotes thereto);
(b) within 45 50 days after the end of each of the first three fiscal quarters of each fiscal year, a its consolidated balance sheet sheets and related statements of operations earnings and cash flows flow showing the financial position condition of each of Holdings and its Subsidiaries and the Borrower and its Subsidiaries consolidated subsidiaries as of the close of such fiscal quarter and the consolidated results of their its operations and the operations of such Subsidiaries during such fiscal quarter and the then-then elapsed portion of the fiscal year, all certified by a one of its Financial Officer of Holdings or the Borrower, as the case may be, on behalf of Holdings or the Borrower, respectivelyOfficers, as fairly presenting, in all material respects, presenting the financial position condition and results of operations of 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 GAAP consistently applied (except for changes concurred with by the absence of footnotesBorrower's independent public accountants and disclosed in such statements or the notes thereto), subject to normal year-end audit adjustments, it being understood that the delivery by Holdings of its Form 10-Q as filed with the SEC shall satisfy its requirements (but not those of the Borrower and its Subsidiaries) under this Section 5.04(b);
(c) concurrently with any delivery of financial statements under (a) or (b) above, a certificate of the accounting firm or Financial Officer on behalf of the Borrower opining on or certifying such statements (which certificate, when furnished by an accounting firm, may be limited to accounting matters and disclaim responsibility for legal interpretations) (i) certifying that no Event of Default or Default has occurred or, if such an Event of Default or Default has occurred, specifying the nature and extent thereof and any corrective action taken or proposed to be taken with respect thereto and (ii) setting forth computations in reasonable detail satisfactory to the Administrative Agent demonstrating compliance with the covenants contained in Sections 6.10, 6.11 and 6.12 (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) 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 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 Holdings or the Borrower, as the case may be, reconciling such changes to what the financial statements would have been without such changes;
(f) 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 receipt thereof by Holdings, the Borrower or 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 time, such other information regarding the operations, business affairs and financial condition of Holdings, the Borrower or any of their Subsidiaries, or compliance with the terms of any Loan Document, or such 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: Senior Secured Credit Agreement (Metris Companies Inc)
Financial Statements, Reports, etc. Furnish to the Agents and each Lender:Administrative Agent (which will promptly furnish such information to the Lenders):
(a) within 90 120 days (or, if applicable, such shorter period as the SEC shall specify for the filing of annual reports on Form 10-K) after the end of each fiscal yearyear (commencing with the fiscal year ending December 31, a 2008), consolidated balance sheet sheets and related statements of operations, cash flows and owners' equity or stockholders' ’ equity showing the financial position of each of Holdings and its Subsidiaries and the Borrower CCH and its Subsidiaries as of the close of such fiscal year and the consolidated results of their operations during such yearfiscal year and, all audited by independent public accountants of recognized national standing reasonably acceptable to starting with the Administrative Agent and accompanied by an opinion of such accountants fiscal year ending December 31, 2009, setting forth in comparative form the corresponding figures for the
(which shall not be qualified in any material respecta) to the effect that extent such consolidated financial statements fairly present, in all material respects, annual reports include the financial position and results of operations of each of Holdings and its Subsidiaries and the Borrower and its Subsidiaries on a consolidated basis in accordance with GAAP, it being understood that the delivery by Holdings of its Form 10-K as filed with the SEC shall satisfy its requirements (but not those of the Borrower and its Subsidiaries) under this Section 5.04(ainformation specified herein);
(b) within 45 days (or, if applicable, such shorter period as the SEC shall specify for the filing of quarterly reports on Form 10-Q (and 90 days with respect to the quarter ending March 31, 2008) after the end of each of the first three fiscal quarters of each fiscal yearyear (commencing with the fiscal quarter ending March 31, a 2008) and within 90 days after the end of the fourth fiscal quarter of each fiscal year (commencing with the fiscal quarter ending December 31, 2008), consolidated balance sheet sheets and related statements of operations and cash flows showing the financial position of each of Holdings and its Subsidiaries and the Borrower CCH and its Subsidiaries as of the close of such fiscal quarter and the consolidated results of their operations during such fiscal quarter and the then-elapsed portion of the fiscal year and setting forth in comparative form the corresponding figures for the corresponding periods of the prior fiscal year, all of which shall be in reasonable detail and which consolidated balance sheets and related statements of operations and cash flows shall be certified by a Financial Officer of Holdings or the Borrower, as the case may be, CCH on behalf of Holdings or the Borrower, respectivelyCCH, as fairly presenting, in all material respects, the financial position and results of operations of Holdings and its Subsidiaries or the Borrower CCH and its Subsidiaries, as the case may be, in each case on a consolidated basis in accordance with GAAP (except for the absence of footnotes), subject to normal year-end audit adjustments, adjustments and the absence of footnotes) (it being understood that the delivery by Holdings CCH of its quarterly reports on Form 10-Q as filed with the SEC of CCH and its consolidated subsidiaries shall satisfy its the requirements (but not those of the Borrower and its Subsidiaries) under this Section 5.04(b);
(c) concurrently with any delivery of financial statements under (a) or (b) above, a certificate of the accounting firm or Financial Officer on behalf of the Borrower opining on or certifying such statements (which certificate, when furnished by an accounting firm, may be limited to accounting matters and disclaim responsibility for legal interpretations) (i) certifying that no Event of Default or Default has occurred or, if such an Event of Default or Default has occurred, specifying the nature and extent thereof and any corrective action taken or proposed to be taken with respect thereto and (ii) setting forth computations in reasonable detail satisfactory to the Administrative Agent demonstrating compliance with the covenants contained in Sections 6.10, 6.11 and 6.12 (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) promptly after the same become publicly available, copies of all periodic and other publicly available reports, proxy statements and, to the extent requested by such quarterly reports include 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 beinformation specified herein);
(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 Holdings or the Borrower, as the case may be, reconciling such changes to what the financial statements would have been without such changes;
(f) 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 receipt thereof by Holdings, the Borrower or 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 time, such other information regarding the operations, business affairs and financial condition of Holdings, the Borrower or any of their Subsidiaries, or compliance with the terms of any Loan Document, or such 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: Credit Agreement (Mariner, LLC)
Financial Statements, Reports, etc. Furnish to the Agents Administrative Agent (and each Lender:the Administrative Agent will promptly furnish such information to the Lenders, subject to Section 10.17):
(a) within Within 90 days (or such longer time period as specified in the SEC’s rules and regulations for the filing of annual reports on Form 10-K) after the end of each fiscal yearyear of the Borrower (commencing with the fiscal year ending December 31, 2016), a consolidated balance sheet and related statements of operations, cash flows and owners' equity or stockholders' ’ equity showing the financial position of each of Holdings and its Subsidiaries and the Borrower and its Subsidiaries consolidated subsidiariesCovenant Parties on an Adjusted Consolidated Basis, as of the close of such fiscal year and the consolidated results of their itstheir operations on an Adjusted Consolidated Basis during such year and setting forth in comparative form the corresponding figures for the prior fiscal year, all which consolidated balance sheet and related statements of operations, cash flows and owners’ equity shall be audited by Deloitte & Touche LLP or other independent public accountants of recognized national standing reasonably acceptable to the Administrative Agent and accompanied by an opinion of such accountants (which shall not be qualified in unqualified as to the scope of audit or as to the status of any material respectLoan Party or, as applicable, any Parent Entity as a “going concern”) to the effect that such consolidated financial statements fairly present, in all material respects, the financial position and results of operations and cash flows of each of Holdings and its Subsidiaries and the Borrower and its Subsidiaries subsidiaries on a consolidated basis basisCovenant Parties on an Adjusted Consolidated Basis in accordance with GAAP, accompanied by a customary management’s discussion and analysis of the financial condition and results of operations of the Borrower and its consolidated subsidiariesCovenant Parties (it being understood that the delivery by Holdings the Borrower of its annual reports on Form 10-K as filed with of the SEC Borrower, Holdings or any Parent Entity shall satisfy its the requirements (but not those of the Borrower and its Subsidiaries) under this Section 5.04(a) to the extent such annual reports include the information specified herein);
(b) within Within 45 days (or such longer time period as specified in the SEC’s rules and regulations with respect to non-accelerated filers for the filing of quarterly reports on Form 10-Q) after the end of each of the first three fiscal quarters of each fiscal year of the Borrower (commencing with the fiscal quarter ended June 30, 2016), a consolidated balance sheet and related statements of operations and cash flows showing, on an Adjusted Consolidated Basis, the financial position of the Borrower and its consolidated subsidiariesCovenant Parties as of the close of such fiscal quarter and the consolidated results of itstheir operations on an Adjusted Consolidated Basis 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 consolidated balance sheet and related statements of operations and cash flows shall be certified by a Financial Officer of the Borrower, on behalf of the Borrower, as fairly presenting, in all material respects, the financial position and results of operations and cash flows of the Borrower and its subsidiaries on a consolidated basisCovenant Parties on an Adjusted Consolidated Basis in accordance with GAAP (subject to normal year-end audit adjustments and the absence of footnotes), accompanied by a customary management’s discussion and analysis of the financial condition and results of operations of the Borrower and its consolidated subsidiariesCovenant Parties (it being understood that the delivery by the Borrower of quarterly reports on Form 10-Q of the Borrower, Holdings or any Parent Entity shall satisfy the requirements of this Section 5.04(b) to the extent such quarterly reports include the information specified herein);
(c) At such times as the same are required to be delivered under the ABL Loan Documents, within 30 days (or, in the case of a fiscal month that ends on the same day as the end of a fiscal quarter, 45 days) after the end of each fiscal month of each fiscal year of the Borrower, a consolidated balance sheet and related statements of operations and cash flows showing the financial position of each of Holdings and its Subsidiaries and the Borrower and its Subsidiaries consolidated subsidiariesCovenant Parties on an Adjusted Consolidated Basis, as of the close of such fiscal quarter month and the consolidated results of their operations itstheir operations, on an Adjusted Consolidated Basis during such fiscal quarter month and the then-elapsed portion which consolidated balance sheet and related statements of the fiscal year, all operations and cash flows shall be certified by a Financial Officer of Holdings or the Borrower, as the case may be, on behalf of Holdings or the Borrower, respectively, as fairly presenting, in all material respects, the financial position and results of operations and cash flows of Holdings and its Subsidiaries or the Borrower and its Subsidiaries, as the case may be, in each case subsidiaries on a consolidated basis basisCovenant Parties on an Adjusted Consolidated Basis in accordance with GAAP (except for the absence of footnotes), subject to normal year-end audit adjustments, it being understood that adjustments and the delivery by Holdings absence of its Form 10-Q as filed with the SEC shall satisfy its requirements (but not those of the Borrower and its Subsidiaries) under this Section 5.04(bfootnotes);
(cd) concurrently Concurrently with any delivery of financial statements under (aSection 5.04(a) or and (b) above, a certificate of the accounting firm or a Financial Officer on behalf of the Borrower opining on or certifying such statements (which certificatesubstantially in the form of Exhibit I, when furnished by an accounting firm, may be limited to accounting matters and disclaim responsibility for legal interpretations) (i) certifying that no Event of Default or Default has occurred or, if such an Event of Default or Default has occurred, specifying the nature and extent thereof and any corrective action taken or proposed to be taken with respect thereto and thereto, (ii) setting forth computations attaching a schedule showing EBITDA attributable to Unrestricted Subsidiaries and schedules to the financial statements delivered for such period that shall separately identify consolidating information for the Borrower and its RestrictedFirst Tier Covenant Parties and their Subsidiaries, (iii) attaching a reconciliation schedule in reasonable detail satisfactory showing any adjustments to the Administrative Agent demonstrating compliance financial information provided in the financial statements delivered concurrently with such certificate necessary to make the covenants contained in Sections computations with respect to Section 6.10, 6.11 (iv) setting forth in reasonable detail the calculation of Total Net Leverage Ratio, Total Net Secured Leverage Ratio and 6.12 Total Net First Lien Leverage Ratio for the fiscal period then ended, (it being understood 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 information required by this aggregate do not exceed the limitation set forth in clause (iib) may be provided in a certificate of a Financial Officer on behalf of the Borrower instead definition of from the term “Immaterial Subsidiary”, and (vii) certifying a list of names of all Unrestricted Subsidiaries and that each Subsidiary set forth on such accounting firm)list qualifies as an Unrestricted Subsidiary;
(de) promptly Promptly after the same become publicly available, copies of all periodic and other publicly available reports, proxy statements and, to the extent requested by the Administrative Agent, other materials filed by a Parent Entity, Holdings, the Borrower or any of their Subsidiaries the Subsidiariesother Covenant Party with the SEC, SEC or distributed to its shareholders stockholders generally, as the case may be;
(eapplicable; provided, however, that such reports, proxy statements, filings and other materials required to be delivered pursuant to this Section 5.04(e) if, as a result of any change in accounting principles and policies from those as in effect on the date shall be deemed delivered for purposes of this Agreement (other than in respect when posted to the website of the capitalization of repairs and maintenance expenses as provided in Borrower or available on the definition of GAAPSEC’s XXXXX service (or any successor thereto), 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 Holdings or the Borrower, as the case may be, reconciling such changes to what the financial statements would have been without such changes;
(f) within 30 Within 90 days after the beginning of each fiscal yearyear of the Borrower (commencing with the fiscal year beginning January 1, 2017), a reasonably detailed consolidated annual budget in form satisfactory to the Agents (prepared by Holdings on a quarterly basis), on an Adjusted Consolidated Basis, for each of the four fiscal quarters of such fiscal year prepared in reasonable detail, (including a projected consolidated balance sheet of Holdings the Borrower and its SubsidiariesSubsidiariesCovenant Parties as of the end of the following fiscal year, and the related consolidated statements of projected cash flow and projected income on an Adjusted Consolidated Basis), including a description of underlying assumptions with respect thereto (collectively, the “Budget”), which Budget shall in each case be accompanied by the statement of a Financial Officer of Holdings the Borrower substantially in the form of Exhibit J to the effect that, the Budget has been prepared in good faith based on assumptions believed by such Financial Officer to be reasonable as of the best date of his knowledge, the budget is a reasonable estimate for the period covered therebydelivery thereof;
(g) promptly following At such times as set forth in Section 2.08(c), the creation or acquisition of any Subsidiary, Borrower will deliver to the Administrative Agent a certificate from signed by a Responsible Officer, identifying such new Subsidiary and the ownership interest Financial Officer of the Borrower setting forth the amount, if any, of Excess Cash Flow for such Applicable Period and the Subsidiaries thereincalculation thereof in reasonable detail as set forth in Section 2.08(c);
(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 receipt thereof by Holdings, the Borrower or 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) promptlyPromptly, from time to time, such other information regarding the operations, business affairs affairs, assets and financial condition of Holdings, the Borrower or any of their Subsidiariesthe Subsidiariesother Covenant Party, or compliance with the terms of any Loan DocumentDocument as the Administrative Agent may reasonably request (in each case, for itself or on behalf of any Lender), including any information with respect to adjustments necessary to make any financial calculations required to be made hereunder and as a result of consolidated reporting at the level of Holdings or any Parent Entity;
(i) Within 90 days after the beginning of each fiscal year and such other times as an updated perfection certificate is delivered to the ABL Agent pursuant to the ABL Credit Agreement, or as the Administrative Agent may request (but not more than once in any fiscal year unless an Event of Default has occurred and is continuing), an updated Perfection Certificate reflecting all changes since the date of the information most recently received pursuant to this Section 5.04(i), Section 4.02(d) or Section 5.10(e); and
(j) Within three Business Days of delivery to the ABL Agent or the Lenders under the ABL Credit Agreement, copies of any report or other information required to be delivered thereto pursuant to the terms of the ABL Credit Agreement to the extent such consolidating financial statements, as in each case report or information is not otherwise required to be delivered to the Agents or Lenders hereunder; provided, that such materials shall only be available to Lenders that elect to receive “private” information subject to Section 10.17 and any LenderThird Party Reviewer. In the event that more than 10% of the total assets of Borrower and its consolidated subsidiariesthe Covenant Parties as set forth in such financial statements are held by subsidiaries of such person that are not Loan Parties, acting through then the Administrative AgentBorrower shall provide consolidating schedules, may reasonably requestwhich schedules shall separately identify such information for the Loan Parties (other than Holdings) and for Subsidiaries of the Borrower that are not Loan Parties, with respect to such financial statements at the time such financial statements are delivered pursuant to clauses (a), (b) and (c) of this Section 5.04. In the event that Holdings or any Parent Entity reports on a consolidated basis, such consolidated reporting at the level of Holdings or such Parent Entity in a manner consistent with that described in clauses (a), (b) and (c) of this Section 5.04 for the BorrowerCovenant Parties will satisfy the requirements of such clauses to the extent that the Borrower provides schedules that shall separately identify (i) consolidating information for the Covenant Parties that are Loan Parties, (ii) consolidating information for the Borrower and its Subsidiaries andCovenant Parties that are not Loan Parties and (iii) consolidating information for Holdings or such Parent Entity, as applicable, and its subsidiaries that are not Loan Parties.
Appears in 1 contract
Financial Statements, Reports, etc. Furnish to the Agents and each Lender:Administrative Agent (which will promptly furnish such information to the Lenders):
(a) within 90 days (or, if applicable, such shorter period as the SEC shall specify for the filing of Annual Reports on Form 10-K or, if applicable, such longer period permitted under Rule 12b-25 under the Exchange Act) after the end of each fiscal year, (i) a consolidated balance sheet and related statements of operations, cash flows and owners' equity or stockholders' ’ equity showing the financial position of each of Holdings and its Subsidiaries and the Borrower and its Subsidiaries subsidiaries as of the close of such fiscal year and the consolidated results of their its operations during such year and, commencing with the fiscal year ending December 31, 2010, setting forth in comparative form the corresponding figures for the prior fiscal year, all and (ii) management’s discussion and analysis of significant operational and financial developments during such fiscal year, which consolidated balance sheet and related statements of operations, cash flows and owners’ equity shall be audited by independent public accountants of recognized national standing reasonably acceptable to the Administrative Agent and accompanied by an opinion of such accountants (which shall not be qualified in any material respect) to the effect that such consolidated financial statements fairly present, in all material respects, the financial position and results of operations of each of Holdings and its Subsidiaries and the Borrower and its Subsidiaries subsidiaries on a consolidated basis in accordance with GAAP, GAAP (it being understood that the delivery by Holdings the Borrower of its Annual Reports on Form 10-K as filed with the SEC shall satisfy its requirements (but not those of the Borrower and its Subsidiaries) under consolidated subsidiaries shall satisfy the requirements of this Section 5.04(a5.04
(a) to the extent such Annual Reports include the information specified herein);
(b) within 45 days (or, if applicable, such shorter period as the SEC shall specify for the filing of Quarterly Reports on Form 10-Q or, if applicable, such longer period permitted under Rule 12b-25 under the Exchange Act) after the end of each of the first three fiscal quarters of each fiscal year, commencing with the fiscal quarter ending March 31, 2010 (it being agreed that such deliverables shall be furnished no later than the date such requirements are complied with under the Senior Notes Indenture), (i) a consolidated balance sheet and related statements of operations and cash flows showing the financial position of each of Holdings and its Subsidiaries and the Borrower and its Subsidiaries subsidiaries as of the close of such fiscal quarter and the consolidated results of their its operations during such fiscal quarter and the then-elapsed portion of the fiscal year and 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 Financial Responsible Officer of Holdings or the Borrower, as the case may be, Borrower on behalf of Holdings or the Borrower, respectively, as fairly presenting, in all material respects, the financial position and results of operations of Holdings and its Subsidiaries or the Borrower and its Subsidiaries, as 102 AFFINION – A&R Credit Agreement
(b) to the case may be, in each case on a consolidated basis in accordance with GAAP (except for extent such Quarterly Reports include the absence of footnotes), subject to normal year-end audit adjustments, it being understood that the delivery by Holdings of its Form 10-Q as filed with the SEC shall satisfy its requirements (but not those of the Borrower and its Subsidiaries) under this Section 5.04(binformation specified herein);
(ci) concurrently with any delivery of financial statements under paragraph (a) or (b) above, a certificate of the accounting firm or Financial a Responsible Officer on behalf of the Borrower opining on or certifying such statements (which certificate, when furnished by an accounting firm, may be limited to accounting matters and disclaim responsibility for legal interpretations) (iA) certifying that no Event of Default or Default has occurred or, if such an Event of Default or Default has occurred, specifying the nature and extent thereof and any corrective action taken or proposed to be taken with respect thereto and thereto, (iiB) setting forth computations in reasonable detail satisfactory to the Administrative Agent demonstrating compliance with the covenants contained in Sections 6.106.10 and 6.11, 6.11 and 6.12 (it being understood that C) setting forth the information required by this clause calculation and uses of Available Free Cash Flow Amount for the fiscal period then ended if the Borrower shall have used the Available Free Cash Flow Amount for any purpose during such fiscal period, and (ii) may be provided in concurrently with any delivery of financial statements under paragraph (a) above, a certificate of a Financial Officer the accounting firm opining on behalf or certifying such statements stating whether they obtained knowledge during the course of the Borrower instead their examination of from such statements of any Default or Event of Default (which certificate may be limited to accounting firmmatters and disclaims responsibility for legal interpretations);
(d) promptly after the same become publicly available, copies of all periodic and other publicly available reports, proxy statements and, to the extent requested by the Administrative Agent, other materials reports and statements filed by Holdings, the Borrower or any of their Subsidiaries its subsidiaries with the SEC, or after an initial public offering, distributed to its shareholders 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 case may bewebsite of the Borrower or any website operated by the SEC containing “XXXXX” database information;
(e) if, as a result of any change in accounting principles and policies from those as applied in effect on the date of this Agreement (other than in respect preparation of the capitalization of repairs and maintenance expenses as provided financial statements referred to in Section 3.05(a)(ii) for the definition of GAAP)fiscal year ended December 31, 2009, the consolidated financial statements of Holdings or the Borrower (and their respective Subsidiaries) its 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 Responsible Officer on behalf of Holdings or the Borrower, as the case may be, Borrower reconciling such changes to what the financial statements would have been without such changes;
(f) within 30 90 days after the beginning of each fiscal year, a detailed consolidated quarterly budget in form satisfactory to the Agents prepared by Holdings for each of the four fiscal quarters of such fiscal year prepared in reasonable detailand, as soon as available, significant revisions, if any, of Holdings such budget and its Subsidiariesquarterly projections with respect to such fiscal year, accompanied by the statement including a description of a Financial Officer of Holdings to the effect that, to the best of his knowledgeunderlying assumptions with respect thereto (collectively, the budget is a reasonable estimate for the period covered thereby;“Budget”); 103 AFFINION – A&R Credit Agreement
(g) promptly following upon the creation or acquisition of any Subsidiary, a certificate from a Responsible Officer, identifying such new Subsidiary and the ownership interest reasonable request of the Borrower and Administrative Agent, an updated Perfection Certificate (or, to the Subsidiaries thereinextent such request relates to specified information contained in the Perfection Certificate, such information) reflecting all changes since the date of the information most recently received pursuant to this paragraph (g) or Section 5.11(f);
(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 receipt thereof by Holdings, the Borrower or any of their respective Subsidiariespromptly, a copy of all reports submitted to the Board of Directors (or any committee thereof) of any of Holdings, the Borrower or any Subsidiary 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; andSubsidiary;
(ji) promptly, from time to time, such other information regarding the operations, business affairs and financial condition of Holdings, the Borrower or any of their Subsidiariesits subsidiaries, or compliance with the terms of any Loan Document, or such consolidating financial statements, as in each case the Agents Administrative Agent may reasonably request (for itself or on behalf of any Lender, acting through ); and
(j) promptly upon request by the Administrative Agent, may copies of: (i) each Schedule B (Actuarial Information) to the most recent annual report (Form 5500 Series) filed with the Internal Revenue Service with respect to a Plan; (ii) the most recent actuarial valuation report for any Plan; (iii) all notices received from a Multiemployer Plan sponsor, a plan administrator or any governmental agency, or provided to any Multiemployer Plan by Holdings, 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.
Appears in 1 contract
Financial Statements, Reports, etc. Furnish to the Agents and each Lender:Administrative Agent (which will promptly furnish such information to the Lenders):
(a) within 90 days (or, if applicable, such shorter period as the SEC shall specify for the filing of annual reports on Form 10-K) after the end of each fiscal yearyear (commencing with the fiscal year 2004), a consolidated balance sheet and related statements of operations, cash flows and owners' equity or stockholders' ’ equity showing the financial position of each of Holdings and its Subsidiaries and the Borrower and its Subsidiaries as of the close of such fiscal year and the consolidated results of their its operations during such year and setting forth in comparative form the corresponding figures for the prior fiscal year, all which consolidated balance sheet and related statements of operations, cash flows and owners’ equity shall be audited by independent public accountants of recognized national standing reasonably acceptable to the Administrative Agent and accompanied by an opinion of such accountants (which shall not be qualified in any material respect) to the effect that such consolidated financial statements fairly present, in all material respects, the financial position and results of operations of each of Holdings and its Subsidiaries and the Borrower and its Subsidiaries on a consolidated basis in accordance with GAAP, GAAP (it being understood that the delivery by Holdings the Borrower of its annual reports on Form 10-K as filed with the SEC shall satisfy its requirements (but not those of the Borrower and its Subsidiaries) under consolidated Subsidiaries shall satisfy the requirements of this Section 5.04(a) to the extent such annual reports include the information specified herein) (notwithstanding the foregoing, such requirements shall be deemed satisfied with respect to the Form 10-K for fiscal year 2004 prior to the commencement of an Exchange Offer by the filing within 120 days of the Issue Date with the SEC of the Exchange Offer Registration Statement and/or Shelf Registration Statement, and any amendments thereto, with such financial information that satisfies Regulation S-X of the Securities Act with respect to fiscal year 2004; provided that in any event the Borrower agrees to furnish such financial statements as soon as they are reasonably available);
(b) within 45 days (or, if applicable, such shorter period as the SEC shall specify for the filing of quarterly reports on Form 10-Q) after the end of each of the first three fiscal quarters of each fiscal yearyear (commencing with the first fiscal quarter of 2005), a consolidated balance sheet and related statements of operations and cash flows showing the financial position of each of Holdings and its Subsidiaries and the Borrower and its Subsidiaries as of the close of such fiscal quarter and the consolidated results of their its operations during such fiscal quarter and the then-elapsed portion of the fiscal year and setting forth in comparative form the corresponding figures for the corresponding periods of the prior fiscal year, all of which shall be in reasonable detail and which consolidated balance sheet and related statements of operations and cash flows shall be certified by a Financial Officer of Holdings or the Borrower, as the case may be, Borrower on behalf of Holdings or the Borrower, respectively, Borrower as fairly presenting, in all material respects, the financial position and results of operations of Holdings and its Subsidiaries or the Borrower and its Subsidiaries, as the case may be, in each case Subsidiaries on a consolidated basis in accordance with GAAP (except for the absence of footnotes), subject to normal year-end audit adjustments, adjustments and the absence of footnotes) (it being understood that the delivery by Holdings the Borrower of its quarterly reports on Form 10-Q as filed with the SEC shall satisfy its requirements (but not those of the Borrower and its Subsidiaries) under consolidated Subsidiaries shall satisfy the requirements of this Section 5.04(b);
(c) concurrently with any delivery of financial statements under (a) or (b) above, a certificate of the accounting firm or Financial Officer on behalf of the Borrower opining on or certifying such statements (which certificate, when furnished by an accounting firm, may be limited to accounting matters and disclaim responsibility for legal interpretations) (i) certifying that no Event of Default or Default has occurred or, if such an Event of Default or Default has occurred, specifying the nature and extent thereof and any corrective action taken or proposed to be taken with respect thereto and (ii) setting forth computations in reasonable detail satisfactory to the Administrative Agent demonstrating compliance with the covenants contained in Sections 6.10, 6.11 and 6.12 (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) promptly after the same become publicly available, copies of all periodic and other publicly available reports, proxy statements and, to the extent requested by such quarterly reports include 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 beinformation specified herein);
(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 Holdings or the Borrower, as the case may be, reconciling such changes to what the financial statements would have been without such changes;
(f) 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 receipt thereof by Holdings, the Borrower or 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 time, such other information regarding the operations, business affairs and financial condition of Holdings, the Borrower or any of their Subsidiaries, or compliance with the terms of any Loan Document, or such 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: Credit Agreement (PQ Systems INC)
Financial Statements, Reports, etc. Furnish to the Agents and each Lender:Administrative Agent (which will promptly furnish such information to the Lenders):
(a) within 90 Within 105 days after (or, if applicable, such other time period as specified in the SEC’s rules and regulations with respect to non-accelerated filers for the filing of annual reports on Form 10-K), following the end of each fiscal yearyear (commencing with the fiscal year ending December 31, 2007), a consolidated balance sheet and related statements of operations, cash flows and owners' equity or stockholders' ’ equity showing the financial position of each of Holdings and its Subsidiaries and the Borrower and its Subsidiaries as of the close of such fiscal year and the consolidated results of their its operations during such year and, starting with the fiscal year ending December 31, 2007, setting forth in comparative form the corresponding figures for the prior fiscal year, all which consolidated balance sheet and related statements of operations, cash flows and owners’ equity shall be audited by independent public accountants of recognized national standing reasonably acceptable to the Administrative Agent and accompanied by an opinion of such accountants (which shall not be qualified in any material respect) to the effect that such consolidated financial statements fairly present, in all material respects, the financial position and results of operations of each of Holdings and its Subsidiaries and the Borrower and its Subsidiaries on a consolidated basis in accordance with GAAP, GAAP (it being understood that the delivery by Holdings the Borrower of its annual reports on Form 10-K as filed with the SEC shall satisfy its requirements (but not those of the Borrower and its Subsidiaries) under consolidated Subsidiaries shall satisfy the requirements of this Section 5.04(a) to the extent such annual reports include the information specified herein);
(b) Within 60 days (or, if applicable, such other time period as specified in the SEC’s rules and regulations with respect to non-accelerated filers for the filing of quarterly reports on Form 10-Q) (or, in the case of the first fiscal quarter for which quarterly financial statements are required to be delivered hereunder, within 45 75 days after following the end of such fiscal quarter), following the end of each of the first three fiscal quarters of each fiscal year, a consolidated balance sheet and related statements of operations and cash flows showing the financial position of each of Holdings and its Subsidiaries and the Borrower and its Subsidiaries as of the close of such fiscal quarter and the consolidated results of their its operations during such fiscal quarter and the then-elapsed portion of the fiscal year and setting forth in comparative form the corresponding figures for the corresponding periods of the prior fiscal year, all of which shall be in reasonable detail and which consolidated balance sheet and related statements of operations and cash flows shall be certified by a Financial Officer of Holdings or the Borrower, as the case may be, Borrower on behalf of Holdings or the Borrower, respectively, Borrower as fairly presenting, in all material respects, the financial position and results of operations of Holdings and its Subsidiaries or the Borrower and its Subsidiaries, as the case may be, in each case Subsidiaries on a consolidated basis in accordance with GAAP (except for the absence of footnotes), subject to normal year-end audit adjustments, adjustments and the absence of footnotes) (it being understood that the delivery by Holdings the Borrower of its quarterly reports on Form 10-Q as filed with the SEC shall satisfy its requirements (but not those of the Borrower and its Subsidiaries) under consolidated Subsidiaries shall satisfy the requirements of this Section 5.04(b);
(c) concurrently with any delivery of financial statements under (a) or (b) above, a certificate of the accounting firm or Financial Officer on behalf of the Borrower opining on or certifying such statements (which certificate, when furnished by an accounting firm, may be limited to accounting matters and disclaim responsibility for legal interpretations) (i) certifying that no Event of Default or Default has occurred or, if such an Event of Default or Default has occurred, specifying the nature and extent thereof and any corrective action taken or proposed to be taken with respect thereto and (ii) setting forth computations in reasonable detail satisfactory to the Administrative Agent demonstrating compliance with the covenants contained in Sections 6.10, 6.11 and 6.12 (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) promptly after the same become publicly available, copies of all periodic and other publicly available reports, proxy statements and, to the extent requested by such quarterly reports include 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 beinformation specified herein);
(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 Holdings or the Borrower, as the case may be, reconciling such changes to what the financial statements would have been without such changes;
(f) 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 receipt thereof by Holdings, the Borrower or 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 time, such other information regarding the operations, business affairs and financial condition of Holdings, the Borrower or any of their Subsidiaries, or compliance with the terms of any Loan Document, or such 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: Amendment Agreement (Caesars Entertainment Operating Company, Inc.)
Financial Statements, Reports, etc. Furnish to the Agents and each Lender:Administrative Agent (which will promptly furnish such information to the Lenders):
(a) within Within 90 days after (or such longer time period as specified in the SEC’s rules and regulations with respect to non-accelerated filers for the filing of annual reports on Form 10-K), following the end of each fiscal yearyear (commencing with the fiscal year ending December 31, 2017), a consolidated balance sheet and related statements of operations, cash flows and owners' equity or stockholders' ’ equity showing the financial position of each of Holdings and its Subsidiaries and the Borrower and its the Subsidiaries as of the close of such fiscal year and the consolidated results of their operations during such year and setting forth in comparative form the corresponding figures for the prior fiscal year, all which consolidated balance sheet and related statements of operations, cash flows and owners’ equity shall be audited by independent public accountants of recognized national standing reasonably acceptable to the Administrative Agent and accompanied by an opinion of such accountants (which opinion shall not be qualified as to scope of audit or as to the status of the Borrower or any Material Subsidiary as a going concern, other than solely with respect to, or resulting solely from an upcoming maturity date under any series of Indebtedness occurring within one year from the time such opinion is delivered or potential inability to satisfy a financial maintenance covenant under any series of Indebtedness on a future date or in any material respecta future period) to the effect that such consolidated financial statements fairly present, in all material respects, the financial position and results of operations of each of Holdings and its Subsidiaries and the Borrower and its the Subsidiaries on a consolidated basis in accordance with GAAP, GAAP (it being understood that the delivery by Holdings the Borrower of its annual reports on Form 10-K as filed with the SEC shall satisfy its requirements (but not those of the Borrower and its Subsidiaries) under consolidated Subsidiaries shall satisfy the requirements of this Section 5.04(a) to the extent such annual reports include the information specified herein);
(b) within 45 Within 60 days after (or such longer time period as specified in the SEC’s rules and regulations with respect to non-accelerated filers for the filing of quarterly reports on Form 10-Q), following the end of each of the first three fiscal quarters of each fiscal yearyear (commencing with the fiscal quarter ending September 30, 2017), a consolidated balance sheet and related statements of operations and cash flows showing the financial position of each of Holdings and its Subsidiaries and the Borrower and its the Subsidiaries as of the close of such fiscal quarter and the consolidated results of their operations during such fiscal quarter and the then-elapsed portion of the fiscal year and setting forth in comparative form the corresponding figures for the corresponding periods of the prior fiscal year, all of which shall be in reasonable detail and which consolidated balance sheet and related statements of operations and cash flows shall be certified by a Financial Officer of Holdings or the Borrower, as the case may be, Borrower on behalf of Holdings or the Borrower, respectively, Borrower as fairly presenting, in all material respects, the financial position and results of operations of Holdings and its Subsidiaries or the Borrower and its Subsidiaries, as the case may be, in each case Subsidiaries on a consolidated basis in accordance with GAAP (except for the absence of footnotes), subject to normal year-end audit adjustments, adjustments and the absence of footnotes) (it being understood that the delivery by Holdings the Borrower of its quarterly reports on Form 10-Q as filed with the SEC shall satisfy its requirements (but not those of the Borrower and its Subsidiaries) under consolidated Subsidiaries shall satisfy the requirements of this Section 5.04(b);
(c) concurrently with any delivery of financial statements under (a) or (b) above, a certificate of the accounting firm or Financial Officer on behalf of the Borrower opining on or certifying such statements (which certificate, when furnished by an accounting firm, may be limited to accounting matters and disclaim responsibility for legal interpretations) (i) certifying that no Event of Default or Default has occurred or, if such an Event of Default or Default has occurred, specifying the nature and extent thereof and any corrective action taken or proposed to be taken with respect thereto and (ii) setting forth computations in reasonable detail satisfactory to the Administrative Agent demonstrating compliance with the covenants contained in Sections 6.10, 6.11 and 6.12 (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) promptly after the same become publicly available, copies of all periodic and other publicly available reports, proxy statements and, to the extent requested by such quarterly reports include 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 beinformation specified herein);
(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 Holdings or the Borrower, as the case may be, reconciling such changes to what the financial statements would have been without such changes;
(f) 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 receipt thereof by Holdings, the Borrower or 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 time, such other information regarding the operations, business affairs and financial condition of Holdings, the Borrower or any of their Subsidiaries, or compliance with the terms of any Loan Document, or such consolidating financial statements, as in each case the Agents or any Lender, acting through the Administrative Agent, may reasonably request.
Appears in 1 contract
Financial Statements, Reports, etc. Furnish to the Agents and each Lender:Administrative Agent (which will promptly furnish such information to the Lenders):
(a) within 90 days (or, if applicable, such shorter period as the SEC shall specify for the filing of Annual Reports on Form 10-K or, if applicable, such longer period permitted under Rule 12b-25 under the Exchange Act) after the end of each fiscal year, (i) a consolidated balance sheet and related statements of operations, cash flows and owners' equity or stockholders' ’ equity showing the financial position of each of Holdings and its Subsidiaries and the U.S. Borrower and its Subsidiaries subsidiaries as of the close of such fiscal year and the consolidated results of their its operations during such year and setting forth in comparative form the corresponding figures for the prior fiscal year and (ii) management’s discussion and analysis of significant operational and financial developments during such fiscal year, all which consolidated balance sheet and related statements of operations, cash flows and owners’ equity shall be audited by independent public accountants of recognized national standing reasonably acceptable to the Administrative Agent and accompanied by an opinion of such accountants (which shall not be qualified in any material respect) to the effect that such consolidated financial statements fairly present, in all material respects, the financial position and results of operations of each of Holdings and its Subsidiaries and the U.S. Borrower and its Subsidiaries subsidiaries on a consolidated basis in accordance with GAAP, GAAP (it being understood that the delivery by Holdings the U.S. Borrower of its Annual Reports on Form 10-K as filed with the SEC shall satisfy its requirements (but not those of the U.S. Borrower and its Subsidiaries) under consolidated subsidiaries shall satisfy the requirements of this Section 5.04(a) to the extent such Annual Reports include the information specified herein);
(b) within 45 days (or, if applicable, such shorter period as the SEC shall specify for the filing of Quarterly Reports on Form 10-Q or, if applicable, such longer period permitted under Rule 12b-25 under the Exchange Act) after the end of each of the first three fiscal quarters of each fiscal year, (i) a consolidated balance sheet and related statements of operations and cash flows showing the financial position of each of Holdings and its Subsidiaries and the U.S. Borrower and its Subsidiaries subsidiaries as of the close of such fiscal quarter and the consolidated results of their its operations during such fiscal quarter and the then-elapsed portion of the fiscal yearyear 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 Financial Officer of Holdings or the Borrower, as the case may be, U.S. Borrower on behalf of Holdings or the Borrower, respectively, U.S. Borrower as fairly presenting, in all material respects, the financial position and results of operations of Holdings and its Subsidiaries or the U.S. Borrower and its Subsidiaries, as the case may be, in each case subsidiaries on a consolidated basis in accordance with GAAP (except for the absence of footnotes), subject to normal year-end audit adjustments, adjustments and the absence of footnotes (it being understood that the delivery by Holdings the U.S. Borrower of its Quarterly Reports on Form 10-Q as filed with the SEC shall satisfy its requirements (but not those of the U.S. Borrower and its Subsidiaries) under consolidated subsidiaries shall satisfy the requirements of this Section 5.04(b);
(c) concurrently with any delivery of financial statements under (a) or (b) above, a certificate of the accounting firm or Financial Officer on behalf of the Borrower opining on or certifying such statements (which certificate, when furnished by an accounting firm, may be limited to accounting matters and disclaim responsibility for legal interpretations) (i) certifying that no Event of Default or Default has occurred or, if such an Event of Default or Default has occurred, specifying the nature and extent thereof and any corrective action taken or proposed to be taken with respect thereto and (ii) setting forth computations in reasonable detail satisfactory to the Administrative Agent demonstrating compliance with the covenants contained in Sections 6.10, 6.11 and 6.12 (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) promptly after the same become publicly available, copies of all periodic and other publicly available reports, proxy statements and, to the extent requested by such Quarterly Reports include 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 beinformation specified herein);
(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 Holdings or the Borrower, as the case may be, reconciling such changes to what the financial statements would have been without such changes;
(f) 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 receipt thereof by Holdings, the Borrower or 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 time, such other information regarding the operations, business affairs and financial condition of Holdings, the Borrower or any of their Subsidiaries, or compliance with the terms of any Loan Document, or such 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: Credit Agreement (Hexion Specialty Chemicals, Inc.)
Financial Statements, Reports, etc. Furnish to the Agents and each Lender:Administrative Agent (which will promptly furnish such information to the Lenders):
(a) within 90 days (or, if applicable, such shorter period as the SEC shall specify for the filing of Annual Reports on Form 10-K if the Borrower is required to file such an Annual Report) after the end of each fiscal year, a consolidated balance sheet and related statements of operations, cash flows and owners' equity or stockholders' ’ equity showing the financial position of each of Holdings and its Subsidiaries and the Borrower and its Subsidiaries as of the close of such fiscal year and the consolidated results of their its operations during such year and (commencing in fiscal year 2006) setting forth in comparative form the corresponding figures for the prior fiscal year, all which consolidated balance sheet and related statements of operations, cash flows and owners’ equity shall be audited by independent public accountants of recognized national standing reasonably acceptable to the Administrative Agent and accompanied by an opinion of such accountants (which shall not be qualified in any material respect) to the effect that such consolidated financial statements fairly present, in all material respects, the financial position and results of operations of each of Holdings and its Subsidiaries and the Borrower and its Subsidiaries on a consolidated basis in accordance with GAAP, GAAP (it being understood that the delivery by Holdings the Borrower of its Annual Reports on Form 10-K as filed with the SEC shall satisfy its requirements (but not those of the Borrower and its Subsidiaries) under consolidated Subsidiaries shall satisfy the requirements of this Section 5.04(a) to the extent such Annual Reports include the information specified herein);
(b) within 45 days (or, if applicable, such shorter period as the SEC shall specify for the filing of Quarterly Reports on Form 10-Q if the Borrower is required to file such a Quarterly Report) after the end of each of the first three fiscal quarters of each fiscal yearyear (commencing with the first fiscal quarter of 2005, which may be delivered within 80 days after the end of such fiscal quarter), a consolidated balance sheet and related statements of operations and cash flows showing the financial position of each of Holdings and its Subsidiaries and the Borrower and its Subsidiaries as of the close of such fiscal quarter and the consolidated results of their its operations during such fiscal quarter and the then-elapsed portion of the fiscal year and (commencing in fiscal year 2006) setting forth in comparative form the corresponding figures for the corresponding periods of the prior fiscal year, all of which shall be in reasonable detail and which consolidated balance sheet and related statements of operations and cash flows shall be certified by a Financial Officer of Holdings or the Borrower, as the case may be, Borrower on behalf of Holdings or the Borrower, respectively, Borrower as fairly presenting, in all material respects, the financial position and results of operations of Holdings and its Subsidiaries or the Borrower and its Subsidiaries, as the case may be, in each case Subsidiaries on a consolidated basis in accordance with GAAP (except for the absence of footnotes), subject to normal year-end audit adjustments, adjustments and the absence of footnotes (it being understood that the delivery by Holdings the Borrower of its Quarterly Reports on Form 10-Q as filed with the SEC shall satisfy its requirements (but not those of the Borrower and its Subsidiaries) under consolidated Subsidiaries shall satisfy the requirements of this Section 5.04(b);
(c) concurrently with any delivery of financial statements under (a) or (b) above, a certificate of the accounting firm or Financial Officer on behalf of the Borrower opining on or certifying such statements (which certificate, when furnished by an accounting firm, may be limited to accounting matters and disclaim responsibility for legal interpretations) (i) certifying that no Event of Default or Default has occurred or, if such an Event of Default or Default has occurred, specifying the nature and extent thereof and any corrective action taken or proposed to be taken with respect thereto and (ii) setting forth computations in reasonable detail satisfactory to the Administrative Agent demonstrating compliance with the covenants contained in Sections 6.10, 6.11 and 6.12 (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) promptly after the same become publicly available, copies of all periodic and other publicly available reports, proxy statements and, to the extent requested by such Quarterly Reports include 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 beinformation specified herein);
(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 Holdings or the Borrower, as the case may be, reconciling such changes to what the financial statements would have been without such changes;
(f) 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 receipt thereof by Holdings, the Borrower or 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 time, such other information regarding the operations, business affairs and financial condition of Holdings, the Borrower or any of their Subsidiaries, or compliance with the terms of any Loan Document, or such 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 (Hughes Communications, Inc.)
Financial Statements, Reports, etc. Furnish to (x) the Agents Administrative Agent (which will promptly furnish such information to the Revolving Lenders and each Lender:the FILO A Lenders) and (y) to the FILO B Documentation Agent (which will promptly furnish such information to the FILO B Lenders):
(a) within 90 ninety (90) days after the end of each fiscal year, a consolidated balance sheet of Holdings and its Subsidiaries as at the end of such fiscal year, and the related statements of operations, cash flows and owners' equity or stockholders' equity ’ equity, showing the financial position of each of Holdings and its Subsidiaries and the Borrower and its Subsidiaries as of the close of such fiscal year and the consolidated results of their its operations during such fiscal year and setting forth in comparative form the corresponding figures for the prior fiscal year, all which consolidated balance sheet and related statements of operations, cash flows and owners’ equity shall be accompanied by customary management’s discussion and analysis and audited by independent public accountants of recognized national standing reasonably acceptable to the Administrative Agent and accompanied by an opinion of such accountants (which opinion shall not be qualified in (x) without a “going concern” or like qualification or exception, other than solely with respect to an upcoming maturity date of Indebtedness or a potential inability to satisfy a financial covenant, and (y) without any material respectqualification or exception as to the scope of such audit) to the effect that such consolidated financial statements fairly present, in all material respects, the financial position condition and results of operations of each of Holdings and its Subsidiaries and the Borrower and its Subsidiaries on a consolidated basis in accordance with GAAP, supporting schedules reconciling such consolidated balance sheet and related statements of operations and cash flows with the consolidated financial condition and results of operations of Holdings or the Borrower, as applicable, for the relevant period (it being understood that the delivery by Holdings the Borrower of its annual reports on Form 10-K as filed with the SEC of Holdings and its consolidated Subsidiaries shall satisfy its the requirements (but not those of the Borrower and its Subsidiaries) under this Section 5.04(a) to the extent such annual reports include the information specified herein);
(b) within 45 forty-five (45) days after the end of each of the first three fiscal quarters of each fiscal year, a consolidated balance sheet of Holdings and its Subsidiaries as at the end of such fiscal year, and the related statements of operations and cash flows flows, showing the financial position of each of Holdings and its Subsidiaries and the Borrower and its Subsidiaries as of the close of such fiscal quarter and the consolidated results of their its operations during such fiscal quarter and the then-elapsed portion of the fiscal year and setting forth in comparative form the corresponding figures for the corresponding periods of the prior fiscal year, all of which shall be in reasonable detail and which consolidated balance sheet and related statements of operations and cash flows shall be accompanied by customary management’s discussion and analysis and certified by a Financial Officer of Holdings or the Borrower, as the case may be, Borrower on behalf of Holdings or the Borrower, respectively, Borrower as fairly presenting, in all material respects, the financial position and results of operations of 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 GAAP (except for the absence of footnotes), subject to normal year-end audit adjustmentsadjustments and the absence of footnotes), supporting schedules reconciling such consolidated balance sheet and related statements of operations and cash flows with the consolidated financial position and results of operations of Holdings or the Borrower, as applicable, for the relevant period (it being understood that the delivery by Holdings the Borrower of its quarterly reports on Form 10-Q as filed with the SEC of Holdings and its consolidated Subsidiaries shall satisfy its the requirements (but not those of the Borrower and its Subsidiaries) under this Section 5.04(b) to the extent such quarterly reports include the information specified herein);
(c) in respect of any fiscal month during which a Monthly Financial Statement Reporting Period in effect, within thirty (30) days after the end of such fiscal month (other than any fiscal month that corresponds to the end of a fiscal quarter), a consolidated balance sheet of Holdings and its Subsidiaries as at the end of such fiscal month, and the related 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 its operations during such month, all of which shall be in reasonable detail and 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 Holdings and its Subsidiaries on a consolidated basis in accordance with GAAP (subject to normal year-end audit adjustments and the absence of footnotes);
(d) concurrently with any delivery of financial statements under (aSection 5.04(a) or (b) above), a certificate of the accounting firm or Financial Officer on behalf of the Borrower opining on or certifying such statements (which certificateCompliance Certificate, when furnished by an accounting firm, may be limited to accounting matters and disclaim responsibility for legal interpretations) (i) certifying that no Default or Event of Default or Default has occurred or, if such a Default or an Event of Default or Default has occurred, specifying the nature and extent thereof and any corrective action taken or proposed to be taken with respect thereto and (ii) setting forth computations in reasonable detail satisfactory to the Administrative Agent demonstrating compliance with the covenants contained in Sections 6.10, 6.11 and 6.12 (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)thereto;
(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 Holdings, the Borrower or any of their its Subsidiaries with the SECSEC or any securities exchange, or distributed to its shareholders stockholders generally, as applicable and all press releases and other statements made available generally by Holdings or any of its Subsidiaries to 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 public concerning material developments in the definition of GAAP), the consolidated financial statements business of Holdings or the Borrower (and their respective any of its 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 Holdings or the Borrower, as the case may be, reconciling such changes to what the financial statements would have been without such changes;
(f) within 30 days after together with each delivery under Section 5.04(a), a detailed consolidated and consolidated monthly budget for such fiscal year (including (i) a projected consolidated and consolidated balance sheet of Holdings and its Subsidiaries as of the beginning end of each month during such fiscal year, a budget in form satisfactory to and the Agents prepared by Holdings related consolidated and consolidated statements of projected cash flow and projected income for each of fiscal quarter during such fiscal year and for the four fiscal quarters portion of such fiscal year prepared in reasonable detailthen elapsed and (b) projected Borrowing Bases and Availability as of the end of each fiscal month during such fiscal year) and, as soon as available, significant revisions, if any, of Holdings such budget and its Subsidiariesquarterly projections with respect to such fiscal year (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 Holdings the Borrower to the effect that, to the best of his such Financial Officer’s knowledge, the budget Budget is a reasonable estimate for the period covered thereby;
(g) promptly following a request therefor, all documentation and other information that the creation Administrative Agent reasonably requests on its behalf or acquisition on behalf of any SubsidiaryLender in order to comply with its ongoing obligations under applicable “know your customer” and anti-money laundering rules and regulations, a certificate from a Responsible Officer, identifying such new Subsidiary including the USA PATRIOT Act and the ownership interest of the Borrower and the Subsidiaries thereinBeneficial Ownership Regulation;
(h) simultaneously together with the delivery of any financial statements the annual Compliance Certificate delivered pursuant to paragraph (aSection 5.04(d), deliver an updated Perfection Certificate reflecting all changes since the date of the information most recently received pursuant to this Section 5.04(h) or (b) above, a balance sheet and related statements of operations, cash flows and stockholder's equity for each unconsolidated Subsidiary for the applicable periodSection 5.09(e);
(i) promptly after following reasonable request therefor from the receipt thereof by HoldingsAdministrative 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 Borrower Loan Party(ies) and/or the ERISA Affiliate(s) shall promptly make a request for such documents or any of their respective Subsidiaries, a copy of all reports submitted in connection with any material interim notices from such administrator or special audit made by independent accountants of the books of Holdings, sponsor and the Borrower or any shall provide copies of their Subsidiaries; andsuch documents and notices to the Administrative Agent promptly after receipt thereof;
(j) promptly, from time to time, such other information regarding the operations, business affairs and financial condition of Holdings, the Borrower or any of their its Subsidiaries, or compliance with the terms of any Loan Document, or such consolidating financial statements, as in each case the Agents Administrative Agent may reasonably request (for itself or on behalf of any Lender);
(k) promptly, but in any event within three (3) Business Days after the furnishing, receipt or execution thereof, copies of (i) any amendment, waiver, consent or other written modification of the Term Loan Agreement or any Lendermaterial amendment, acting through waiver, consent or other written modification of any other Term Loan Document, (ii) any notice of default or any notice related to the exercise of remedies under the Term Loan Documents, and (iii) any other material notice, certificate or other information or document provided to, or received from, the Term Loan Agent or the Term Loan Secured Parties (in their capacities as such), including in any event, copies of all Compliance Certificates (as defined in the Term Loan Agreement), monthly financial statements and cash flow forecasts and reports required to be delivered pursuant to the Term Loan Agreement;
(l) together with delivery of any monthly financial statements pursuant to Section 5.04(c) or (k), a reasonably detailed calculation of “EBITDA” (as defined in, and calculated in the manner required by, the Term Loan Agreement as in effect on the Closing Date), which calculation may be set forth in any “Compliance Certificate” delivered pursuant to Section 5.04(k); and
(m) promptly, but in any event within five (5) Business Days after the furnishing, receipt or execution thereof, copies of (i) any termination, material amendment or other material written modification of any Material Agreement or any Material Indebtedness (other than the Term Loan Obligations), and (ii) any notice of default or any notice related to the exercise of remedies with respect to any Material Indebtedness (other than the Term Loan Obligations). Documents required to be delivered pursuant to Section 5.04(a), (b), (c) or (e) may be delivered electronically and if so delivered, shall be deemed to have been delivered on the date (i) on which Holdings or the Borrower (or a representative thereof) posts such documents (or provides a link thereto) at wxx.xxxxxxxxxxxxxx.xxx; provided that, other than with respect to items required to be delivered pursuant to Section 5.04(e), Holdings or the Borrower shall promptly notify (which notice may be by facsimile or electronic mail) the Administrative Agent and the FILO B Documentation Agent of the posting of any such documents at wxx.xxxxxxxxxxxxxx.xxx and provide to the Administrative Agent by electronic mail electronic versions (i.e., soft copies) of such documents; (ii) on which such documents are delivered by Holdings or the Borrower to the Administrative Agent for posting on behalf of Holdings and the Borrower on Internet or intranet website (or the Platform), 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); (iii) on which such documents are faxed to the Administrative Agent (or electronically mailed to an address provided by the Administrative Agent); or (iv) with respect to any item required to be delivered pursuant to Section 5.04(e) in respect of information filed by Holdings or its applicable Parent Entity with any securities exchange or with the SEC or any analogous Governmental Authority or private regulatory authority with jurisdiction over matters relating to securities (other than Form 10-Q reports and Form 10-K reports), on which such items have been made available on the SEC website or the website of the relevant analogous governmental or private regulatory authority. The Loan Parties hereby acknowledge that the Administrative Agent may reasonably requestmake available materials or information provided by or on behalf of the Loan Parties hereunder (collectively, “Borrower Materials”) to the Lenders and the Issuing Banks by posting the Borrower Materials on IntraLinks, SyndTrack or another similar secure electronic transmission system (the “Platform”). Each Loan Party further agrees that certain of the Lenders may be “public-side” Lenders (i.e., Lenders that do not wish to receive material non-public information with respect to the Loan Parties or their securities) (each, a “Public Lender”). The Loan Parties shall be deemed to have authorized Administrative Agent and its Affiliates and the Lenders to treat Borrower Materials marked “PUBLIC” or otherwise at any time filed with the SEC as not containing any material non-public information with respect to the Loan Parties or their securities for purposes of United States federal and state securities laws. All Borrower Materials marked “PUBLIC” are permitted to be made available through a portion of the Platform designated as “Public Investor” (or another similar term). The Administrative Agent and its Affiliates and the Lenders shall be entitled to treat any Borrower Materials that are not marked “PUBLIC” or that are not at any time filed with the SEC as being suitable only for posting on a portion of the Platform not marked as “Public Investor” (or such other similar term).
Appears in 1 contract
Financial Statements, Reports, etc. Furnish to the Agents and each LenderAdministrative Agent for distribution by the Administrative Agent to the Lenders:
(a) within 90 No later than ninety (90) days after (or in the case of the first Fiscal Year for which annual financial statements are required, one hundred twenty (120) days) following the end of each fiscal yearFiscal Year (commencing with the Fiscal Year beginning after the Commencement of Operations of the Development), a consolidated balance sheet and related statements of operations, cash flows and owners' equity or stockholders' ’ equity showing the financial position of each of Holdings and its Subsidiaries and the Borrower and its Subsidiaries as of the close of such fiscal year Fiscal Year and the consolidated results of their its operations during such yearyear and, all commencing with the second Fiscal Year beginning after the Commencement of Operations of the Development, 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 by independent public accountants of recognized national standing reasonably acceptable to the Administrative Agent and accompanied by an opinion of such accountants (which shall not be qualified in as to scope of audit or as to the status of the Borrower or any material respectMaterial Subsidiary as a going concern) to the effect that such consolidated financial statements fairly present, in all material respects, the financial position and results of operations of each of Holdings and its Subsidiaries and the Borrower and its Subsidiaries on a consolidated basis in accordance with GAAP, GAAP (it being understood that the delivery by Holdings the Borrower of its annual reports on Form 10-K as filed with the SEC shall satisfy its requirements (but not those of the Borrower and its Subsidiaries) under consolidated Subsidiaries shall satisfy the requirements of this Section 5.04(a6.3
(a) to the extent such annual reports include the information specified herein);
(b) No later than forty-five (45) days (or, in the case of the first Fiscal Quarter for which quarterly financial statements are required to be delivered hereunder, within 45 days after seventy-five (75) days), following the end of each of the first three fiscal quarters Fiscal Quarters of each fiscal yearFiscal Year (commencing with the first full Fiscal Quarter after the Commencement of Operations of the Development), a consolidated balance sheet and related statements of operations and cash flows showing the financial position of each of Holdings and its Subsidiaries and the Borrower and its Subsidiaries as of the close of such fiscal quarter Fiscal Quarter and the consolidated results of their its operations during such fiscal quarter Fiscal Quarter and the then-elapsed portion of the fiscal yearFiscal Year and setting forth (commencing with the second Fiscal Year after the Commencement of Operations of the Development) in comparative form the corresponding figures for the corresponding periods of the prior Fiscal Year, all of which shall be in reasonable detail and which consolidated balance sheet and related statements of operations and cash flows shall be certified by a Financial Officer of Holdings or the Borrower, as the case may be, Borrower on behalf of Holdings or the Borrower, respectively, as fairly presenting, in all material respects, the financial position and results of operations of 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 GAAP (except for the absence of footnotes), subject to normal year-end audit adjustments, it being understood that the delivery by Holdings of its Form 10-Q as filed with the SEC shall satisfy its requirements (but not those of the Borrower and its Subsidiaries) under this Section 5.04(b);the
(c) concurrently with any delivery of financial statements under (a) or (b) above, a certificate of the accounting firm or Financial Officer on behalf of the Borrower opining on or certifying such statements (which certificate, when furnished by an accounting firm, may be limited to accounting matters and disclaim responsibility for legal interpretations) (i) certifying that no Event of Default or Default has occurred or, if such an Event of Default or Default has occurred, specifying the nature and extent thereof and any corrective action taken or proposed to be taken with respect thereto and (ii) setting forth computations in reasonable detail satisfactory to the Administrative Agent demonstrating compliance with the covenants contained in Sections 6.10, 6.11 and 6.12 (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) promptly after the same become publicly available, copies of all periodic and other publicly available reports, proxy statements and, to the extent requested by such quarterly reports include 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 beinformation specified herein);
(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 Holdings or the Borrower, as the case may be, reconciling such changes to what the financial statements would have been without such changes;
(f) 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 receipt thereof by Holdings, the Borrower or 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 time, such other information regarding the operations, business affairs and financial condition of Holdings, the Borrower or any of their Subsidiaries, or compliance with the terms of any Loan Document, or such consolidating financial statements, as in each case the Agents or any Lender, acting through the Administrative Agent, may reasonably request.
Appears in 1 contract
Financial Statements, Reports, etc. Furnish to the Agents and each Lender:Administrative Agent (which will promptly furnish such information to the Lenders):
(a) within 90 days (or, if applicable, such shorter period as the SEC shall specify for the filing of annual reports on Form 10-K or on any applicable equivalent form) after the end of each fiscal year, year a consolidated balance sheet and related statements of operations, cash flows and owners' equity or stockholders' ’ equity showing the financial position of each of Holdings and its Subsidiaries and the Borrower and its Subsidiaries as of the close of such fiscal year and the consolidated results of their operations during such fiscal year and setting forth in comparative form the corresponding figures for the prior fiscal year, all which consolidated balance sheets and related statements of operations, cash flows and owners’ equity shall be audited by PricewaterhouseCoopers, LLP or other independent public accountants of recognized national standing reasonably acceptable to the Administrative Agent and accompanied by an opinion of such accountants (which opinion shall not be qualified in as to scope of audit or as to the status of the Borrower or any material respectMaterial Subsidiary as a going concern) to the effect that such consolidated financial statements fairly present, in all material respects, the financial position and results of operations of each of Holdings and its Subsidiaries and the Borrower and its Subsidiaries on a consolidated basis in accordance with GAAP, GAAP (it being understood that the delivery by Holdings the Borrower of its annual reports on Form 10-K as filed with or the SEC shall satisfy its requirements (but not those equivalent of the Borrower and its Subsidiariesconsolidated Subsidiaries shall satisfy the requirements of this (a) under this Section 5.04(ato the extent such annual reports include the information specified herein);
(b) within 45 days (or, if applicable, such shorter period as the SEC shall specify for the filing of quarterly reports on Form 10-Q or on any applicable equivalent form) after the end of each of the first three fiscal quarters of each fiscal year, a consolidated balance sheet and related statements of operations and cash flows showing the financial position of each of Holdings and its Subsidiaries and the Borrower and its Subsidiaries as of the close of such fiscal quarter and the consolidated results of their operations during such fiscal quarter and the then-elapsed portion of the fiscal year and setting forth in comparative form the corresponding figures for the corresponding periods of the prior fiscal year, all of which shall be in reasonable detail and which consolidated balance sheet and related statements of operations and cash flows shall be certified by a Financial Officer of Holdings or the Borrower, as the case may be, Borrower on behalf of Holdings or the Borrower, respectively, as fairly presenting, in all material respects, the financial position and results of operations of 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 GAAP (except for the absence of footnotes), subject to normal year-end audit adjustments, adjustments and the absence of footnotes) (it being understood that the delivery by Holdings the Borrower of its quarterly reports on Form 10-Q as filed with the SEC shall satisfy its requirements (but not those of the Borrower and its Subsidiaries) under consolidated Subsidiaries shall satisfy the requirements of this Section 5.04(b);
(c) concurrently with any delivery of financial statements under (a) or (b) above, a certificate of the accounting firm or Financial Officer on behalf of the Borrower opining on or certifying such statements (which certificate, when furnished by an accounting firm, may be limited to accounting matters and disclaim responsibility for legal interpretations) (i) certifying that no Event of Default or Default has occurred or, if such an Event of Default or Default has occurred, specifying the nature and extent thereof and any corrective action taken or proposed to be taken with respect thereto and (ii) setting forth computations in reasonable detail satisfactory to the Administrative Agent demonstrating compliance with the covenants contained in Sections 6.10, 6.11 and 6.12 (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) promptly after the same become publicly available, copies of all periodic and other publicly available reports, proxy statements and, to the extent requested by such quarterly reports include 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 beinformation specified herein);
(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 Holdings or the Borrower, as the case may be, reconciling such changes to what the financial statements would have been without such changes;
(f) 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 receipt thereof by Holdings, the Borrower or 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 time, such other information regarding the operations, business affairs and financial condition of Holdings, the Borrower or any of their Subsidiaries, or compliance with the terms of any Loan Document, or such 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: Credit Agreement (Norwegian Cruise Line Holdings Ltd.)
Financial Statements, Reports, etc. Furnish to the Agents and each Lender:Administrative Agent (which will promptly furnish such information to the Lenders):
(a) within 90 days (or, if applicable, such shorter period as the SEC shall specify for the filing of Annual Reports on Form 10-K if the Borrower is required to file such an Annual Report) after the end of each fiscal year, a consolidated balance sheet and related statements of operations, cash flows and owners' equity or stockholders' ’ equity showing the financial position of each of Holdings and its Subsidiaries and the Borrower and its Subsidiaries as of the close of such fiscal year and the consolidated results of their its operations during such year and (commencing in fiscal year 2006) setting forth in comparative form the corresponding figures for the prior fiscal year, all which consolidated balance sheet and related statements of operations, cash flows and owners’ equity shall be audited by independent public accountants of recognized national standing reasonably acceptable to the Administrative Agent and accompanied by an opinion of such accountants (which shall not be qualified in any material respect) to the effect that such consolidated financial statements fairly present, in all material respects, the financial position and results of operations of each of Holdings and its Subsidiaries and the Borrower and its Subsidiaries on a consolidated basis in accordance with GAAP, GAAP (it being understood that the delivery by Holdings the Borrower of its Annual Reports on Form 10-K as filed with the SEC shall satisfy its requirements (but not those of the Borrower and its Subsidiaries) under consolidated Subsidiaries shall satisfy the requirements of this Section 5.04(a) to the extent such Annual Reports include the information specified herein);
(b) within 45 days (or, if applicable, such shorter period as the SEC shall specify for the filing of Quarterly Reports on Form 10-Q if the Borrower is required to file such a Quarterly Report) after the end of each of the first three fiscal quarters of each fiscal yearyear (commencing with the first fiscal quarter of 2005, which may be delivered within 80 days after the end of such fiscal quarter), a consolidated balance sheet and related statements of operations and cash flows showing the financial position of each of Holdings and its Subsidiaries and the Borrower and its Subsidiaries as of the close of such fiscal quarter and the consolidated results of their its operations during such fiscal quarter and the then-elapsed portion of the fiscal year and (commencing in fiscal year 2006) setting forth in comparative form the corresponding figures for the corresponding periods of the prior fiscal year, all of which shall be in reasonable detail and which consolidated balance sheet and related statements of operations and cash flows shall be certified by a Financial Officer of Holdings or the Borrower, as the case may be, Borrower on behalf of Holdings or the Borrower, respectively, Borrower as fairly presenting, in all material respects, the financial position and results of operations of Holdings and its Subsidiaries or the Borrower and its Subsidiaries, as the case may be, in each case Subsidiaries on a consolidated basis in accordance with GAAP (except for the absence of footnotes), subject to normal year-end audit adjustments, adjustments and the absence of footnotes (it being understood that the delivery by Holdings the Borrower of its Quarterly Reports on Form 10-Q as filed with the SEC shall satisfy its requirements (but not those of the Borrower and its Subsidiaries) under consolidated Subsidiaries shall satisfy the requirements of this Section 5.04(b) to the extent such Quarterly Reports include the information specified herein);
(c) concurrently with any delivery of financial statements under (a) or (b) above, a certificate of the accounting firm or a Financial Officer on behalf of the Borrower opining on or certifying such statements (which certificate, when furnished by an accounting firm, may be limited to accounting matters and disclaim responsibility for legal interpretations) (i) certifying that no Event of Default or Default has occurred or, if such an Event of Default or Default has occurred, specifying the nature and extent thereof and any corrective action taken or proposed to be taken with respect thereto and (ii) commencing with the fiscal quarter of the Borrower ending June 30, 2006, 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 (it being understood that the information required by this clause (ii) may be provided in a certificate of a Financial Officer on behalf Receivables Coverage Ratio as of the Borrower instead end of from such accounting firm)fiscal quarter;
(d) promptly after the same become publicly available, copies of all periodic and other publicly available reports, proxy statements and, to the extent requested by the Administrative Agent, other materials filed by Holdings, the Borrower or any of their the Restricted Subsidiaries with the SEC, or after an initial public offering, distributed to its shareholders stockholders generally, as the case may beapplicable;
(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)Closing Date, the consolidated financial statements of Holdings or the Borrower (and their respective Subsidiaries) its Subsidiaries delivered pursuant to paragraph 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 Holdings or the Borrower, as the case may be, Borrower reconciling such changes to what the financial statements would have been without such changes;
(f) within 30 days after the beginning of each fiscal yearpromptly upon receipt thereof, 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 copies of any Subsidiaryand all notices and other written communications from any Governmental Authority, 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 respect 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 receipt thereof by Holdings, the Borrower or any of their respective Subsidiaries, its Subsidiaries relating to any matter that could reasonably be expected to result in a copy of all reports submitted in connection with any material interim or special audit made by independent accountants Material Adverse Effect.
(g) upon the reasonable request of the books Administrative Agent, deliver an updated Perfection Certificate (or, to the extent such request relates to specified information contained in the Perfection Certificate, such information) reflecting all changes since the date of Holdings, the Borrower or any of their Subsidiaries; andinformation most recently received pursuant to this paragraph (g);
(jh) promptly, from time to time, such other information regarding the operations, business affairs and financial condition of Holdings, the Borrower or any of their the Restricted Subsidiaries, or compliance with the terms of any Loan Document, or such consolidating financial statements, as in each case the Agents Administrative Agent may reasonably request (for itself or on behalf of any Lender, acting through );
(i) promptly upon request by the Administrative Agent, may copies of: (i) each Schedule B (Actuarial Information) to the annual report (Form 5500 Series) filed with the Internal Revenue Service with respect to a Plan; (ii) the most recent actuarial valuation report for any Plan; (iii) all notices received from a Multiemployer Plan sponsor or any governmental agency concerning an ERISA Event; and (iv) such other documents or governmental reports or filings relating to any Plan or Multiemployer Plan as the Administrative Agent shall reasonably request; and
(j) within 90 days after the beginning of each fiscal year commencing in 2006, a detailed consolidated quarterly budget for such fiscal year and, as soon as available, quarterly projections with respect to such fiscal year, including a description of underlying assumptions with respect thereto (collectively, the “Budget”).
Appears in 1 contract
Financial Statements, Reports, etc. Furnish to the Agents and each Lender:Administrative Agent (which will promptly furnish such information to the Lenders):
(a) within 90 one hundred ten (110) days after the end of each fiscal yearyear (commencing with fiscal year 2011), (x) a consolidated balance sheet and related statements of operations, cash flows and owners' equity or stockholders' ’ equity showing the financial position of each of Holdings and its Subsidiaries and the Borrower Parent and its Subsidiaries as of the close of such fiscal year and the consolidated results of their its operations during such year and setting forth in comparative form the corresponding figures for the prior fiscal year, all which consolidated balance sheet and related statements of operations, cash flows and owners’ equity shall be audited by independent public accountants of recognized national standing reasonably acceptable to the Administrative Agent and accompanied by an opinion of such accountants (which opinion shall not be qualified in without a “going concern” or like qualification or exception and without any material respectqualification or exception as to the scope of such audit) to the effect that such consolidated financial statements fairly present, in all material respects, the financial position condition and results of operations of each of Holdings and its Subsidiaries and the Borrower Parent and its Subsidiaries on a consolidated basis in accordance with GAAP, it being understood that (y) a consolidating balance sheet and related statements of operations and cash flows showing the delivery by Holdings of its Form 10-K as filed with the SEC shall satisfy its requirements (but not those financial position of the Borrower and its SubsidiariesRestricted 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) under this Section 5.04(a)but shall be certified by a Financial Officer of the Borrower to the extent that such consolidating financial statements fairly present, in all material respects, the financial condition and results of operations of the 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 Borrower, as applicable, for the relevant period;
(b) within 45 forty-five (45) days after the end of each of the first three (3) fiscal quarters of each fiscal yearyear (commencing with the first fiscal quarter of 2012), (x) a consolidated balance sheet and related statements of operations and cash flows showing the financial position of each of Holdings and its Subsidiaries and the Borrower Parent and its Subsidiaries as of the close of such fiscal quarter and the consolidated results of their its operations during such fiscal quarter and the then-elapsed portion of the fiscal year and setting forth in comparative form the corresponding figures for the corresponding periods of the prior fiscal year, all of which shall be in reasonable detail and which consolidated balance sheet and related statements of operations and cash flows shall be certified by a Financial Officer of Holdings or the Borrower, as the case may be, Borrower on behalf of Holdings or the Borrower, respectively, Borrower as fairly presenting, in all material respects, the financial position and results of operations of Holdings the Parent and its Subsidiaries or the Borrower and its Subsidiaries, as the case may be, in each case on a consolidated basis in accordance with GAAP (except for the absence of footnotes), subject to normal year-end audit adjustments, adjustments and the absence of footnotes) (it being understood that the delivery by Holdings the Borrower of its quarterly reports on Form 10-Q as filed with of the SEC Parent and its consolidated Subsidiaries shall satisfy its the requirements of this Section 5.04(b) to the extent such quarterly reports include the information specified herein), (but not those y) a consolidating balance sheet and related statements of operations and cash flows showing the financial position of the Borrower and its SubsidiariesRestricted 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 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 Restricted Subsidiaries on a consolidating basis in accordance with GAAP and (z) under this Section 5.04(bin 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 Borrower, as applicable, for the relevant period;
(ci) concurrently with any delivery of financial statements under paragraphs (a) or (b) above, a certificate of the accounting firm or a Financial Officer on behalf of the Borrower opining on or certifying such statements in substantially the form attached hereto as Exhibit I (which certificate, when furnished by an accounting firm, may be limited to accounting matters and disclaim responsibility for legal interpretations) (ix) certifying that no Default or Event of Default or Default has occurred or, if such a Default or an Event of Default or Default has occurred, specifying the nature and extent thereof and any corrective action taken or proposed to be taken with respect thereto and thereto, (iiy) commencing with the fiscal quarter ending March 31, 2012, setting forth computations in reasonable detail reasonably satisfactory to the Administrative Agent demonstrating compliance with the covenants contained in Sections 6.10, 6.11 Financial Covenants and 6.12 (it being understood that z) setting forth the information required by this clause amount of Adjusted Consolidated Net Income for the applicable period and (ii) may be provided in concurrently with any delivery of financial statements under paragraph (a) above, a certificate of a Financial Officer on behalf of the Borrower instead commencing with the 2012 Excess Cash Flow Period, setting forth the amount, if any, of from such accounting firm)Excess Cash Flow for the Excess Cash Flow Period then ended, 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 their its Subsidiaries with the SECSEC or any securities exchange, or after an initial public offering, distributed to its shareholders stockholders generally, as applicable and all press releases and other statements made available generally by Holdings or any of its Subsidiaries to the case may bepublic concerning material developments in the business of Holdings or any of its Subsidiaries;
(e) if, as a result of any change in accounting principles and policies from those as in effect on the date of this Agreement within ninety (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 Subsidiaries90) 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 Holdings or the Borrower, as the case may be, reconciling such changes to what the financial statements would have been without such changes;
(f) within 30 days after the beginning of each fiscal year, a detailed consolidated and consolidated quarterly budget in form satisfactory to the Agents prepared by Holdings for each such fiscal year (including a projected consolidated and consolidated balance sheet of the four fiscal quarters Borrower and its Subsidiaries as of the end of such fiscal year prepared in reasonable detailyear, and the related consolidated and consolidated statements of projected cash flow and projected income) and, as soon as available, significant revisions, if any, of Holdings such budget and its Subsidiariesquarterly projections with respect to such fiscal year (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 Holdings the Borrower to the effect that, to the best of his such Financial Officer’s knowledge, the budget Budget is a reasonable estimate for the period covered thereby;
(gf) promptly following a request therefor, all documentation and other information that the creation Administrative Agent reasonably requests on its behalf or acquisition on behalf of any SubsidiaryLender in order to comply with its ongoing obligations under applicable “know your customer” and anti-money laundering rules and regulations, a certificate from a Responsible Officer, identifying such new Subsidiary and including the ownership interest USA PATRIOT Act;
(g) together with the delivery of the Borrower and annual compliance certificate required by Section 5.04(c), deliver an updated Collateral Questionnaire reflecting all changes since the Subsidiaries thereindate of the information most recently received pursuant to this paragraph (g) or Section 5.09(f);
(h) simultaneously with promptly following reasonable request therefore from the delivery Administrative Agent, copies 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) 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 Borrower shall provide copies of such documents and notices to the Administrative Agent promptly after the receipt thereof by Holdings, the Borrower or 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 Subsidiariesthereof; and
(ji) promptly, from time to time, such other information regarding the operations, business affairs and financial condition of Holdings, the Borrower or any of their its Subsidiaries, or compliance with the terms of any Loan Document, or such consolidating financial statements, as in each case the Agents Administrative Agent may reasonably request (for itself or on behalf of any Lender, acting through the Administrative Agent, may reasonably request).
Appears in 1 contract
Financial Statements, Reports, etc. Furnish to the Agents and each Lender:Administrative Agent (which will promptly furnish such information to the Lenders):
(a) within 90 days (or, if applicable, such shorter period as the SEC shall specify for the filing of annual reports on Form 10-K) after the end of each fiscal year, a consolidated balance sheet and related statements of operations, cash flows and owners' equity or stockholders' ’ equity showing the financial position of each of Holdings and its Subsidiaries and the Borrower Company and its Subsidiaries as of the close of such fiscal year and the consolidated results of their its operations during such year and, beginning with the financials delivered pursuant to this clause (a) in respect of the 2008 fiscal year, all 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 by independent public accountants of recognized national standing reasonably acceptable to the Administrative Agent and accompanied by an opinion of such accountants (which opinion shall not be qualified in as to scope of audit or as to the status of the Company or any material respectMaterial Subsidiary as a going concern) to the effect that such consolidated financial statements fairly present, in all material respects, the financial position and results of operations of each of Holdings and its Subsidiaries and the Borrower Company and its Subsidiaries on a consolidated basis in accordance with GAAP, GAAP (it being understood that the delivery by Holdings the Company of its annual reports on Form 10-K as filed with of the SEC Company and its consolidated Subsidiaries shall satisfy its the requirements (but not those of the Borrower and its Subsidiaries) under this Section 5.04(a) to the extent such annual reports include the information specified herein);
(b) within 45 days (or, if applicable, such shorter period as the SEC shall specify for the filing of quarterly reports on Form 10‑Q) after the end of each of the first three fiscal quarters of each fiscal year beginning with the fiscal quarter ending June 30, 2007, for each of the first three fiscal quarters of each fiscal year, (i) a consolidated balance sheet and related statements of operations and cash flows showing the financial position of each of Holdings and its Subsidiaries and the Borrower Company and its Subsidiaries as of the close of such fiscal quarter and the consolidated results of their its operations during such fiscal quarter and the then-elapsed then‑elapsed portion of the fiscal year and setting forth in comparative form the corresponding figures for the corresponding 108 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 Financial Officer of Holdings or the Borrower, as the case may be, Company on behalf of Holdings or the Borrower, respectively, Company as fairly presenting, in all material respects, the financial position and results of operations of Holdings the Company and its Subsidiaries or the Borrower and its Subsidiaries, as the case may be, in each case on a consolidated basis in accordance with GAAP (except for subject to normal year‑end audit adjustments and the absence of footnotes), subject to normal year-end audit adjustments, ) (it being understood that the delivery by Holdings the Company of quarterly reports on Form 10‑Q of the Company and its Form 10-Q as filed with the SEC consolidated Subsidiaries shall satisfy its the requirements (but not those of the Borrower and its Subsidiaries) under this Section 5.04(b) to the extent such quarterly reports include the information specified herein);
(c) (x) concurrently with any delivery of financial statements under paragraph (a) or (b) above, a certificate of the accounting firm or a Financial Officer on behalf of the Borrower opining on or Company certifying such statements (which certificate, when furnished by an accounting firm, may be limited to accounting matters and disclaim responsibility for legal interpretations) (i) certifying that no Event of Default or Default has occurred or, if such an Event of Default or Default has occurred, specifying the nature and extent thereof and any corrective action taken or proposed to be taken with respect thereto and thereto, (ii) setting forth computations whether an Availability Triggering Event has occurred during the applicable period covered by such financial statements, (iii) the calculation of the ABL Fixed Charge Coverage Ratio as of the last day of the applicable period covered by such financial statements, and (iv) that the aggregate amount of the Revolving Facility Credit Exposure for which any Borrower is the borrower (in reasonable detail satisfactory the case of Loans) or the account party (in the case of Letters of Credit) does not exceed the portion of the Borrowing Base attributable to such Borrower’s Accounts and Inventory, together with, if requested by the Administrative Agent demonstrating compliance Agent, calculations evidencing and supporting such certification, (v) the calculation and uses of the Cumulative Credit for the fiscal period then ended if the Company shall have used the Cumulative Credit for any purpose during such fiscal period, (vi) a list of names of all Immaterial Subsidiaries for the following fiscal quarter, that each Subsidiary set forth on such list individually qualifies as an Immaterial Subsidiary and that all such Subsidiaries in the aggregate (together with all Unrestricted Subsidiaries) do not exceed the covenants contained limitation set forth in Sections 6.10, 6.11 and 6.12 (it being understood that the information required by this clause (iib) may be provided in of the definition of the term Immaterial Subsidiary, and (vii) 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 its policies of its national office, a certificate of a Financial Officer the accounting firm opining on behalf or certifying such statements stating whether they obtained knowledge during the course of the Borrower instead their examination of from such statements of any Default or Event of Default (which certificate may be limited to accounting firmmatters 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 Company or any of their the Subsidiaries with the SEC, or after an initial public offering, distributed to its shareholders 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 case may be;website of the Company; 109
(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 Holdings or the Borrower, as the case may be, reconciling such changes to what the financial statements would have been without such changes;
(f) within 30 90 days after the beginning of each fiscal year, a reasonably detailed consolidated quarterly 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, (including a projected consolidated balance sheet of Holdings the Company and its SubsidiariesSubsidiaries 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 Holdings the Company to the effect thatthat 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 best extent such request relates to specified information contained in the Perfection Certificate, such information) reflecting all changes since the date of his knowledge, the budget is a reasonable estimate for the period covered therebyinformation most recently received pursuant to this paragraph (f) or Section 5.10(g);
(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 receipt thereof by Holdings, the Borrower or 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 time, such other information regarding the operations, business affairs and financial condition of Holdings, the Borrower Company or any of their the Subsidiaries, or compliance with the terms of any Loan Document, or such consolidating financial statements, statements as in each case the Agents Administrative Agent may reasonably request (for itself or on behalf of any Lender);
(h) in the event that (i) in respect of the Second Lien Notes, the First Priority Notes or the Senior Subordinated Notes, and any Refinancing Indebtedness with respect thereto, the rules and regulations of the SEC permit the Company, Holdings or any LenderParent Entity to report at Holdings’ or such Parent Entity’s level on a consolidated basis and (ii) Holdings or such Parent Entity, acting through 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 Company and the incurrence of Indebtedness for borrowed money (and, without limitation on the foregoing, does not have any subsidiaries other than the Company and the Company’s Subsidiaries and any direct or indirect parent companies of the Company 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 5.04 for the Company (together with a reconciliation showing the adjustments necessary to determine the ABL Fixed Charge Coverage Ratio) will satisfy the requirements of such paragraphs;
(i) promptly upon request by the Administrative Agent, may copies of: (i) each Schedule SB (Actuarial Information) to the most recent annual report (Form 5500 Series) filed with the U.S. Department of Labor with respect to a Plan; (ii) the most recent actuarial valuation report for any Plan; (iii) all notices received from a Multiemployer Plan sponsor, a plan administrator or any governmental agency, or provided to any Multiemployer Plan by Holdings, the Company, 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 110
(j) promptly upon Holdings, the Company or the Subsidiaries becoming aware of any fact or condition which would reasonably be expected to result in an ERISA Event, the Company shall deliver to Administrative Agent a summary of such facts and circumstances and any action it or Holdings or the Subsidiaries intend to take regarding such facts or conditions.
Appears in 1 contract
Financial Statements, Reports, etc. Furnish to the Agents and each Lender:Administrative Agent (which will promptly furnish such information to the Lenders):
(a) within 90 days after the end of each fiscal year, a consolidated balance sheet and related consolidated statements of operations, cash flows and owners' equity or stockholders' ’ equity showing the financial position of each of Holdings and its Subsidiaries and the Borrower and its Subsidiaries as of the close of such fiscal year and the consolidated results of their operations during such year, with all consolidated statements audited by independent public accountants of recognized national standing reasonably acceptable to the Administrative Agent and accompanied by an opinion of such accountants (which shall not be qualified in any material respect) to the effect that such consolidated financial statements fairly present, in all material respects, the financial position and results of operations of each of Holdings and its Subsidiaries and the Borrower and its Subsidiaries on a consolidated basis in accordance with GAAP, US GAAP (it being understood that the delivery by Holdings of its Form 10-K as filed (i) financial information for such fiscal year that would be required to be contained in a filing with the SEC on Forms 6-K and 20-F if Holdings were required to file such forms, (ii) whether or not 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 its the requirements (but not those of the Borrower and its Subsidiaries) under this Section 5.04(a));
(b) within 45 days after the end of each of the first three fiscal quarters of each fiscal yearyear commencing with the fiscal quarter ending December 31, 2004, a consolidated balance sheet and related consolidated statements of operations and cash flows showing the financial position of each of Holdings and its Subsidiaries 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, all certified by a Financial Officer of Holdings or the Borrower, as the case may beHoldings, on behalf of Holdings or the Borrower, respectivelyHoldings, as fairly presenting, in all material respects, the financial position and results of operations of 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 US GAAP (except for the absence of footnotes), subject to normal year-end audit adjustments, adjustments and the absence of footnotes) (it being understood that the delivery by Holdings of its Form 10-Q as filed (i) financial information for such period that would be required to be contained in a filing with the SEC on Forms 6-K and 20-F if Holdings were required to file such forms, (ii) whether or not required by the forms referred to above, a “Management’s Discussion and Analysis of Financial Condition and Results of Operations” and (iii) the officer’s certificate referred to above, shall satisfy its the requirements (but not those of the Borrower and its Subsidiaries) under this Section 5.04(b));
(c) (x) concurrently with any delivery of financial statements under (a) or (b) above, a certificate of the accounting firm or a Financial Officer on behalf of the Borrower opining on or certifying such statements (which certificate, when furnished by an accounting firm, may be limited to accounting matters and disclaim responsibility for legal interpretations) Holdings (i) certifying that no Event of Default or Default has occurred or, if such an Event of Default or Default has occurred, specifying the nature and extent thereof and any corrective action taken or proposed to be taken with respect thereto and (ii) commencing with the fiscal period ending December 31, 2004, 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 (it being understood that the information required by this clause y) concurrently with any delivery of financial statements under (iia) may be provided in above, a certificate of a Financial Officer the accounting firm opining on behalf or certifying such statements stating whether they obtained knowledge during the course of the Borrower instead their examination of from such statements of any Default or Event of Default (which certificate may be limited to accounting firmmatters and disclaims responsibility for legal interpretations);
(d) promptly after the same become publicly available, copies of all periodic and other publicly available reports, proxy statements and, to the extent requested by the Administrative Agent, other materials filed by Holdings, the Borrower Parent or any of their the Subsidiaries with the SEC, or after an initial public offering, distributed to its shareholders stockholders generally, as the case may beapplicable;
(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)Closing Date, the consolidated financial statements of Holdings or and the Borrower (and their respective Subsidiaries) Subsidiaries delivered pursuant to paragraph 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 Holdings or the Borrower, as the case may be, reconciling such changes to what the financial statements would have been without such changes;
(f) within 30 90 days after the beginning of each fiscal year, a budget an operating and capital expenditure budget, in form reasonably satisfactory to the Agents Administrative Agent prepared by Holdings for each of the four fiscal quarters of such fiscal year prepared in reasonable detail, of Holdings and its the 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 upon the creation or acquisition of any Subsidiary, a certificate from a Responsible Officer, identifying such new Subsidiary and the ownership interest reasonable request of the Borrower and Administrative Agent (which request shall not be made more than once in any 12-month period unless specifically provided otherwise in any of the Subsidiaries thereinDutch Security Documents), deliver updated information reflecting all changes since the date of the information most recently received pursuant to this paragraph (g) or Section 5.10(e);
(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 receipt thereof by Holdings, the Borrower or any of their respective Subsidiariespromptly, a copy of all reports submitted to the Management Board (or any committee thereof) of any of Holdings, Parent or any Material Subsidiary in connection with any material interim or special audit that is material made by independent accountants of the books of Holdings, the Borrower Parent or any of their Subsidiaries; andSubsidiary;
(ji) promptly, from time to time, such other information regarding the operations, business affairs and financial condition of Holdings, the Borrower Parent or any of their the Subsidiaries, or compliance with the terms of any Loan Document, or such consolidating financial statements, as in each case the Agents or any Lender, acting through Administrative Agent may reasonably request; and
(j) promptly upon request by the Administrative Agent, may copies of: (i) each Schedule B (Actuarial Information) to the annual report (Form 5500 Series) filed with the Internal Revenue Service with respect to a Plan; (ii) the most recent actuarial valuation report for any Plan; (iii) all notices received from a Multiemployer Plan sponsor or any governmental agency concerning an ERISA Event; and (iv) such other documents or governmental reports or filings relating to any Non-U.S. Pension Plan, Plan or Multiemployer Plan as the Administrative Agent shall reasonably request.
Appears in 1 contract
Samples: Credit Agreement (New Skies Satellites Holdings Ltd.)
Financial Statements, Reports, etc. Furnish to the Agents and each Lender:Administrative Agent (which will promptly furnish such information to the Lenders):
(a) within 90 Within 105 days (or, if applicable, such shorter period as the SEC shall specify for the filing of annual reports on Form 10 K) after the end of each fiscal yearyear (commencing with the fiscal year ending September 30, 2006), a consolidated balance sheet and related statements of operations, cash flows and owners' equity or stockholders' ’ equity showing the financial position of each of Holdings and its Subsidiaries and the Borrower Company and its Subsidiaries as of the close of such fiscal year and the consolidated results of their its operations during such year and, starting with the fiscal year ending September 30, 2007, setting forth in comparative form the corresponding figures for the prior fiscal year, all which consolidated balance sheet and related statements of operations, cash flows and owners’ equity shall be audited by independent public accountants of recognized national standing reasonably acceptable to the Administrative Agent and accompanied by an opinion of such accountants (which shall not be qualified in as to scope of audit or as to the status of any material respectCompany or any Material Subsidiary as a going concern) to the effect that such consolidated financial statements fairly present, in all material respects, the financial position and results of operations of each of Holdings and its Subsidiaries and the Borrower Company and its Subsidiaries on a consolidated basis in accordance with GAAP, GAAP (it being understood that the delivery by Holdings the Company of annual reports on Form 10 K of the Company and its Form 10-K as filed with the SEC consolidated Subsidiaries shall satisfy its the requirements (but not those of the Borrower and its Subsidiaries) under this Section 5.04(a) to the extent such annual reports include the information specified herein);
(b) within 45 60 days (or, if applicable, such shorter period as the SEC shall specify for the filing of quarterly reports on Form 10-Q) after the end of each of the first three fiscal quarters of each fiscal yearyear (commencing with the fiscal quarter ending June 30, 2006), a consolidated balance sheet and related statements of operations and cash flows showing the financial position of each of Holdings and its Subsidiaries and the Borrower Company and its Subsidiaries as of the close of such fiscal quarter and the consolidated results of their its operations during such fiscal quarter and the then-elapsed portion of the fiscal year and, starting with the fiscal quarter ending June 30, 2007, setting forth in comparative form the corresponding figures for the corresponding periods of the prior fiscal year, all of which shall be in reasonable detail and which consolidated balance sheet and related statements of operations and cash flows shall be certified by a Financial Officer of Holdings or the Borrower, as the case may be, Company on behalf of Holdings or the Borrower, respectively, Company as fairly presenting, in all material respects, the financial position and results of operations of Holdings the Company and its Subsidiaries or the Borrower and its Subsidiaries, as the case may be, in each case on a consolidated basis in accordance with GAAP (except for the absence of footnotes), subject to normal year-end audit adjustments, adjustments and the absence of footnotes) (it being understood that the delivery by Holdings the Company of its quarterly reports on Form 10-Q as filed with of the SEC Company and its consolidated Subsidiaries shall satisfy its the requirements (but not those of the Borrower and its Subsidiaries) under this Section 5.04(b);
(c) concurrently with any delivery of financial statements under (a) or (b) above, a certificate of the accounting firm or Financial Officer on behalf of the Borrower opining on or certifying such statements (which certificate, when furnished by an accounting firm, may be limited to accounting matters and disclaim responsibility for legal interpretations) (i) certifying that no Event of Default or Default has occurred or, if such an Event of Default or Default has occurred, specifying the nature and extent thereof and any corrective action taken or proposed to be taken with respect thereto and (ii) setting forth computations in reasonable detail satisfactory to the Administrative Agent demonstrating compliance with the covenants contained in Sections 6.10, 6.11 and 6.12 (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) promptly after the same become publicly available, copies of all periodic and other publicly available reports, proxy statements and, to the extent requested by such quarterly reports include 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 beinformation specified herein);
(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 Holdings or the Borrower, as the case may be, reconciling such changes to what the financial statements would have been without such changes;
(f) 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 receipt thereof by Holdings, the Borrower or 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 time, such other information regarding the operations, business affairs and financial condition of Holdings, the Borrower or any of their Subsidiaries, or compliance with the terms of any Loan Document, or such 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: Revolving Credit Agreement (Covalence Specialty Adhesives LLC)
Financial Statements, Reports, etc. Furnish to the Agents and each Lender:Administrative Agent (which will promptly furnish such information to the Lenders):
(a) within 90 ninety (90) days (or such shorter period as the SEC shall specify for the filing of Annual Reports on Form 10-K) after the end of each fiscal year, if not filed electronically with the SEC and publicly available for retrieval by the Lenders, a consolidated balance sheet and related statements of operations, cash flows and owners' equity or stockholders' ’ equity showing the financial position of each of Holdings and its Subsidiaries and the Borrower Company and its Subsidiaries as of the close of such fiscal year and the consolidated results of their operations during such year and setting forth in comparative form the corresponding figures for the prior fiscal year, all audited by independent public accountants of recognized national standing reasonably acceptable to the Administrative Agent and accompanied by an opinion of such accountants (which shall not be qualified in any material respect, other than a qualification resulting solely from the classification of any of the Loans as short-term indebtedness during that twelve-month period prior to the Maturity Date) to the effect that such consolidated financial statements fairly present, in all material respects, the financial position and results of operations of each of Holdings and its Subsidiaries and the Borrower Company and its Subsidiaries on a consolidated basis in accordance with GAAP, GAAP (it being understood that the delivery electronic filing with the SEC by Holdings Company of its Annual Reports on Form 10-K as filed with of Company and its consolidated Subsidiaries to the SEC extent publicly available for retrieval by the Lenders shall satisfy its the requirements (but not those of the Borrower and its Subsidiaries) under this Section 5.04(a) to the extent such Annual Reports include the information specified herein);.
(b) within 45 forty-five (45) days (or such shorter period as the SEC shall specify for the filing of Quarterly Reports on Form 10-Q) after the end of each of the first three (3) fiscal quarters of each fiscal year, if not filed electronically with the SEC and publicly available for retrieval by the Lenders, a consolidated balance sheet and related statements of operations and cash flows showing the financial position of each of Holdings and its Subsidiaries and the Borrower Company and its Subsidiaries as of the close of such fiscal quarter and the consolidated results of their operations during such fiscal quarter and the then-elapsed portion of the fiscal year and setting forth in comparative form the corresponding figures for the corresponding periods of the prior fiscal year, all certified by a Financial Officer of Holdings or the Borrower, as the case may beCompany, on behalf of Holdings or the Borrower, respectivelyCompany, as fairly presenting, in all material respects, the financial position and results of operations of Holdings Company and its Subsidiaries or the Borrower and its Subsidiaries, as the case may be, in each case on a consolidated basis in accordance with GAAP (except for the absence of footnotes), subject to normal year-end audit adjustments, adjustments and the absence of footnotes) (it being understood that the delivery electronic filing with the SEC by Holdings Company of its Quarterly Reports on Form 10-Q as filed with of Company and its consolidated Subsidiaries to the SEC extent publicly available for retrieval by the Lenders shall satisfy its the requirements (but not those of the Borrower and its Subsidiaries) under this Section 5.04(b) to the extent such Quarterly Reports include the information specified herein);
(c) (x) concurrently with any delivery of financial statements under (a) or (b) above, a certificate of the accounting firm or a Financial Officer on behalf of the Borrower opining on or certifying such statements (which certificate, when furnished by an accounting firm, may be limited to accounting matters and disclaim responsibility for legal interpretations) Company (i) certifying that no Event of Default or Default has occurred or, if such an Event of Default or Default has occurred, specifying the nature and extent thereof and any corrective action taken or proposed to be taken with respect thereto and (ii) commencing with the fiscal period ending September 30, 2017 setting forth computations in reasonable detail satisfactory to the Administrative Agent demonstrating compliance with the covenants contained in Sections 6.106.10 (to the extent that the Company is required to maintain a certain level of Liquidity pursuant to such Section 6.10 at such time), 6.11 and 6.12 and (it being understood 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), provided that issuance by such accounting firm of an unqualified audit opinion shall be deemed to satisfy the information required by requirement under this clause (ii) may be provided in a certificate of a Financial Officer on behalf of the Borrower instead of from such accounting firmy);
(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 their Subsidiaries with the SEC, or distributed to its shareholders generally, as the case may be[Intentionally Omitted];
(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)Closing Date, the consolidated financial statements of Holdings or the Borrower (Company and their respective Subsidiaries) its Subsidiaries delivered pursuant to paragraph 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 Holdings or the Borrower, as the case may be, Company reconciling such changes to what the financial statements would have been without such changes;
(f) within 30 ninety (90) days after the beginning of each fiscal year, a budget an operating and capital expenditure budget, in form satisfactory to the Agents Administrative Agent prepared by Holdings the Company for each of the four (4) fiscal quarters of such fiscal year prepared in reasonable detail, of Holdings the Company and its the Subsidiaries, accompanied by the statement of a Financial Officer of Holdings the Company to the effect that, to the best of his knowledge, the budget is a reasonable estimate for the period covered thereby;
(g) promptly following annually, upon the creation or acquisition of any Subsidiary, a certificate from a Responsible Officer, identifying such new Subsidiary and the ownership interest reasonable request of the Borrower and Administrative Agent, updated Perfection Certificates (or, to the Subsidiaries thereinextent such request relates to specified information contained in the Perfection Certificates, such information) reflecting all changes since the date of the information most recently received pursuant to this paragraph (g) or Section 5.10(d);
(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 receipt thereof by Holdings, the Borrower or any of their respective Subsidiariespromptly, a copy of all reports submitted to the Board of Directors (or any committee thereof) of the Company or any Subsidiary in connection with any material interim or special audit made by independent accountants of the books of Holdings, the Borrower Company or any of their Subsidiaries; andSubsidiary;
(ji) promptly, from time to time, such other information regarding the operations, business affairs and financial condition of Holdings, the Borrower Company or any of their the Subsidiaries, or compliance with the terms of any Loan Document, or such consolidating financial statements, as in each case the Agents Administrative Agent may reasonably request (for itself or on behalf of any Lender, acting through ); and
(j) promptly upon request by the Administrative Agent, may 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. Furnish to the Agents and each Lender:Administrative Agent (which will promptly furnish such information to the Lenders):
(a) within 90 days (or, if applicable, such shorter period as the SEC shall specify for the filing of Annual Reports on Form 10-K) after the end of each fiscal year, (i) a consolidated balance sheet and related statements of operations, cash flows and owners' equity or stockholders' ’ equity showing the financial position of each of Holdings and its Subsidiaries and the Borrower and its Subsidiaries as of the close of such fiscal year and the consolidated results of their its operations during such year and setting forth in comparative form the corresponding figures for the prior fiscal year and (ii) management’s discussion and analysis of significant operational and financial developments during such fiscal year, all which consolidated balance sheet and related statements of operations, cash flows and owners’ equity shall be audited by independent public accountants of recognized national standing reasonably acceptable to the Administrative Agent and accompanied by an opinion of such accountants (which shall not be qualified in any material respect) to the effect that such consolidated financial statements fairly present, in all material respects, the financial position and results of operations of each of Holdings and its Subsidiaries and the Borrower and its Subsidiaries on a consolidated basis in accordance with GAAP, GAAP (it being understood that the delivery by Holdings the Borrower of its Annual Reports on Form 10-K as filed with the SEC shall satisfy its requirements (but not those of the Borrower and its Subsidiaries) under consolidated Subsidiaries shall satisfy the requirements of this Section 5.04(a) to the extent such Annual Reports include the information specified herein);
(b) within 45 days (or, if applicable, such shorter period as the SEC shall specify for the filing of Quarterly Reports on Form 10-Q) after the end of each of the first three fiscal quarters of each fiscal yearyear (commencing with the third fiscal quarter of 2004), (i) a consolidated balance sheet and related statements of operations and cash flows showing the financial position of each of Holdings and its Subsidiaries and the Borrower and its Subsidiaries as of the close of such fiscal quarter and the consolidated results of their its operations during such fiscal quarter and the then-elapsed portion of the fiscal yearyear 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 Financial Officer of Holdings or the Borrower, as the case may be, Borrower on behalf of Holdings or the Borrower, respectively, Borrower as fairly presenting, in all material respects, the financial position and results of operations of Holdings and its Subsidiaries or the Borrower and its Subsidiaries, as the case may be, in each case Subsidiaries on a consolidated basis in accordance with GAAP (except for the absence of footnotes), subject to normal year-end audit adjustments, adjustments and the absence of footnotes (it being understood that the delivery by Holdings the Borrower of its Quarterly Reports on Form 10-Q as filed with the SEC shall satisfy its requirements (but not those of the Borrower and its Subsidiaries) under consolidated Subsidiaries shall satisfy the requirements of this Section 5.04(b);
(c) concurrently with any delivery of financial statements under (a) or (b) above, a certificate of the accounting firm or Financial Officer on behalf of the Borrower opining on or certifying such statements (which certificate, when furnished by an accounting firm, may be limited to accounting matters and disclaim responsibility for legal interpretations) (i) certifying that no Event of Default or Default has occurred or, if such an Event of Default or Default has occurred, specifying the nature and extent thereof and any corrective action taken or proposed to be taken with respect thereto and (ii) setting forth computations in reasonable detail satisfactory to the Administrative Agent demonstrating compliance with the covenants contained in Sections 6.10, 6.11 and 6.12 (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) promptly after the same become publicly available, copies of all periodic and other publicly available reports, proxy statements and, to the extent requested by such Quarterly Reports include 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 beinformation specified herein);
(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 Holdings or the Borrower, as the case may be, reconciling such changes to what the financial statements would have been without such changes;
(f) 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 receipt thereof by Holdings, the Borrower or 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 time, such other information regarding the operations, business affairs and financial condition of Holdings, the Borrower or any of their Subsidiaries, or compliance with the terms of any Loan Document, or such 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: Credit Agreement (Hexion Specialty Chemicals, Inc.)
Financial Statements, Reports, etc. Furnish to the Agents and each Lender:Administrative Agent (which will promptly furnish such information to the Lenders):
(a) within 90 days after the end of each fiscal year, a consolidated balance sheet and related consolidated statements of operations, cash flows and owners' equity or stockholders' ’ equity showing the financial position of each of Holdings ParentHoldings and its Subsidiaries and the Borrower and its Subsidiaries consolidated subsidiaries as of the close of such fiscal year and the consolidated results of their operations during such year, with all consolidated statements audited by independent public accountants of recognized national standing reasonably acceptable to the Administrative Agent and accompanied by an opinion of such accountants (which shall not be qualified in any material respect) to the effect that such consolidated financial statements fairly present, in all material respects, the financial position and results of operations of each of Holdings ParentHoldings and its Subsidiaries and the Borrower and its Subsidiaries consolidated subsidiaries on a consolidated basis in accordance with GAAP, US GAAP (it being understood that the delivery by Holdings ParentHoldings of its Annual Reports on Form 10-K as filed with the SEC of ParentHoldings and its consolidated subsidiaries shall satisfy its the requirements (but not those of the Borrower and its Subsidiaries) under this Section 5.04(a) to the extent such Annual Reports include the information specified herein);
(b) within 45 days after the end of each of the first three fiscal quarters of each fiscal year, a consolidated balance sheet and related consolidated statements of operations and cash flows showing the financial position of each of Holdings ParentHoldings and its Subsidiaries and the Borrower and its Subsidiaries consolidated subsidiaries as of the close of such fiscal quarter and the consolidated results of their operations during such fiscal quarter and the then-elapsed portion of the fiscal year, all certified by a Financial Officer of Holdings or the Borrower, as the case may beParentHoldings, on behalf of Holdings or the Borrower, respectivelyParentHoldings, as fairly presenting, in all material respects, the financial position and results of operations of Holdings ParentHoldings and its Subsidiaries or the Borrower and its Subsidiaries, as the case may be, in each case consolidated subsidiaries on a consolidated basis in accordance with US GAAP (except for the absence of footnotes), subject to normal year-end audit adjustments, adjustments and the absence of footnotes) (it being understood that the delivery by Holdings ParentHoldings of its Quarterly Reports on Form 10-Q as filed with the SEC of ParentHoldings and its consolidated subsidiaries shall satisfy its the requirements (but not those of the Borrower and its Subsidiaries) under this Section 5.04(b);
(c) concurrently with any delivery of financial statements under (a) or (b) above, a certificate of the accounting firm or Financial Officer on behalf of the Borrower opining on or certifying such statements (which certificate, when furnished by an accounting firm, may be limited to accounting matters and disclaim responsibility for legal interpretations) (i) certifying that no Event of Default or Default has occurred or, if such an Event of Default or Default has occurred, specifying the nature and extent thereof and any corrective action taken or proposed to be taken with respect thereto and (ii) setting forth computations in reasonable detail satisfactory to the Administrative Agent demonstrating compliance with the covenants contained in Sections 6.10, 6.11 and 6.12 (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) promptly after the same become publicly available, copies of all periodic and other publicly available reports, proxy statements and, to the extent requested by such Quarterly Reports include 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 beinformation specified herein);
(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 Holdings or the Borrower, as the case may be, reconciling such changes to what the financial statements would have been without such changes;
(f) 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 receipt thereof by Holdings, the Borrower or 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 time, such other information regarding the operations, business affairs and financial condition of Holdings, the Borrower or any of their Subsidiaries, or compliance with the terms of any Loan Document, or such 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: Amendment Agreement (Celanese CORP)
Financial Statements, Reports, etc. Furnish to the Agents and each Lender:Administrative Agent (which will promptly furnish such information to the Lenders):
(a) within 90 one hundred ten (110) days after the end of each fiscal yearyear (commencing with fiscal year 2012), (x) a consolidated balance sheet and related statements of operations, cash flows and owners' equity or stockholders' ’ equity showing the financial position of each of Holdings and its Subsidiaries and the Borrower Parent and its Subsidiaries as of the close of such fiscal year and the consolidated results of their its operations during such year and setting forth in comparative form the corresponding figures for the prior fiscal year, all which consolidated balance sheet and related statements of operations, cash flows and owners’ equity shall be audited by independent public accountants of recognized national standing reasonably acceptable to the Administrative Agent and accompanied by an opinion of such accountants (which opinion shall not be qualified in without a “going concern” or like qualification or exception and without any material respectqualification or exception as to the scope of such audit) to the effect that such consolidated financial statements fairly present, in all material respects, the financial position condition and results of operations of each of Holdings and its Subsidiaries and the Borrower Parent and its Subsidiaries on a consolidated basis in accordance with GAAP, it being understood that the delivery by Holdings of its Form 10-K as filed with the SEC shall satisfy its requirements (but not those of the Borrower and its Subsidiariesy) under this Section 5.04(a);
(b) within 45 days after the end of each of the first three fiscal quarters of each fiscal year, a consolidated consolidating balance sheet and related statements of operations and cash flows showing the financial position of each of Holdings and its Subsidiaries and the Borrower and its Restricted Subsidiaries as of the close of such fiscal quarter year and the consolidated consolidating results of their its operations during such fiscal quarter year and setting forth in comparative form the then-elapsed portion of corresponding figures for the prior fiscal year, all 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 Holdings or the Borrower, as Borrower to the case may be, on behalf of Holdings or the Borrower, respectively, as extent that such consolidating financial statements fairly presentingpresent, in all material respects, the financial position condition and results of operations of Holdings and its Subsidiaries or the Borrower and its Subsidiaries, as the case may be, in each case Restricted Subsidiaries on a consolidated consolidating basis in accordance with GAAP (except for the absence of footnotes), subject to normal year-end audit adjustments, it being understood that the delivery by Holdings of its Form 10-Q as filed with the SEC shall satisfy its requirements (but not those of the Borrower and its SubsidiariesGAAP) under this Section 5.04(b);
(c) concurrently with any delivery of financial statements under (a) or (b) above, a certificate of the accounting firm or Financial Officer on behalf of the Borrower opining on or certifying such statements (which certificate, when furnished by an accounting firm, may be limited to accounting matters and disclaim responsibility for legal interpretations) (i) certifying that no Event of Default or Default has occurred or, if such an Event of Default or Default has occurred, specifying the nature and extent thereof and any corrective action taken or proposed to be taken with respect thereto and (iiz) 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 (it being understood that case of the information required by this pursuant to clause (ii) may be provided in a certificate of a Financial Officer on behalf of the Borrower instead of from such accounting firm);
(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 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 (ax) 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 Holdings or the Borrower, as the case may be, reconciling such changes to what the financial statements would have been without such changes;
(f) 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 receipt thereof by Holdings, the Borrower or 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 time, such other information regarding the operations, business affairs and financial condition of Holdings, the Borrower or any of their Subsidiaries, or compliance with the terms of any Loan Document, or such consolidating financial statements, as in each case the Agents or any Lender, acting through the Administrative Agent, may reasonably request.clause
Appears in 1 contract
