Financial Statements, Reports. The Borrower shall furnish to the Administrative Agent the following: (i) As soon as available and in no event later than 60 days after the last day of each of the first three fiscal quarters of each fiscal year of the Borrower, a copy of the Financial Statements of the Borrower Entities (prepared on a consolidated basis) for the fiscal year to date, certified by the Chief Accounting Officer or the Chief Financial Officer of the Borrower to present fairly in all material respects the financial condition, results of operations, cash flows, and other information reflected therein and to have been prepared in accordance with GAAP (subject to normal year end audit adjustments and omission of footnotes and statement of shareholder’s equity); (ii) As soon as available and in no event later than 120 days after the close of each fiscal year of the Borrower, copies of (A) the audited consolidated Financial Statements of the Borrower Entities for such year, audited by Ernst & Young LLP or other independent certified public accountants of recognized national standing and registered with the Public Company Accounting Oversight Board and (B) copies of the unqualified opinions of such accountants; (iii) Commencing with the fiscal quarter ended June 30, 2008, as soon as available and in no event later than 60 days after the last day of each of the first three fiscal quarters of each fiscal year in respect of quarterly Financial Statements of the Borrower Entities, 90 days after the close of each fiscal year in respect of yearly Financial Statements of the CBII Entities and 120 days after the close of each fiscal year in respect of yearly Financial Statements of the Borrower Entities in accordance with clause (i) above, clause (v) below and clause (ii) above, respectively, a compliance certificate of the Chief Accounting Officer or Treasurer of the Borrower (a “Compliance Certificate”) in substantially the form of Exhibit G-1; provided, however, that the only calculations to be provided in the Compliance Certificate delivered in connection with yearly Financial Statements of the CBII Entities shall be with respect to the Consolidated Adjusted Leverage Ratio; (iv) As soon as available and in no event later than 45 days after the last day of each of the first three fiscal quarters of each fiscal year of CBII, a copy of the Quarterly Report for CBII on Form 10-Q for such quarter and for the fiscal year to date; provided that such information, to the extent the Borrower directly or indirectly provides the Administrative Agent with written notice and an appropriate internet link thereto, shall be accessed by Lenders on XXXXX; (v) As soon as available and in no event later than 90 days after the close of each fiscal year of CBII, (A) copies of the Annual Report for CBII on Form 10-K for such year, audited by Ernst & Young LLP or other independent certified public accountants of recognized national standing and registered with the Public Company Accounting Oversight Board and (B) copies of the unqualified opinions of such accountants; provided that such information, to the extent the Borrower directly or indirectly provides the Administrative Agent with written notice and an appropriate internet link thereto, shall be accessed by Lenders on XXXXX; (A) As soon as available and in no event later than 120 days after the close of each fiscal year of CBII, (1) a written supplement to Schedule 4.01(n) (setting forth all necessary Trademark information as set forth in Section 4.01(n) and relating to the Trademarks that are material to the conduct of the Significant Parties’ respective businesses as then operated), (2) a written supplement to Schedule 3.06 to each Security Agreement, (3) any additional disclosures under Section 4.01(n) after Due Inquiry and (4) any additional disclosures to be provided on an annual basis under the Security Documents and (B) promptly, but in any event within a reasonable time after any officer of CBII or the Borrower obtains knowledge of the occurrence of an event that could reasonably be expected to result in a Material Adverse Effect on any of the Principal Trademarks or the Trademark Licenses, give the Administrative Agent notice of the occurrence of any such event; (vii) (A) As soon as available and in no event later than 120 days after the close of each fiscal year of CBII, a written supplement to Schedule 4.01(q) (setting forth each of the US Subsidiaries, each of the Significant Subsidiaries and each of the De Minimis US Subsidiaries, its jurisdiction of organization, the classes of its Equity Securities, the number of shares of each such class issued and outstanding, the percentages of shares of each such class owned directly or indirectly by CBII or the Borrower and whether CBII or the Borrower owns such shares directly or, if not, the CBII Entities that own such shares and the number of shares and percentages of shares of each such class owned directly or indirectly by such CBII Entities) and (B) promptly upon the reasonable request of the Administrative Agent and in no event more often than annually, a current hierarchy report for the CBII Entities, in the form and with the substance of the hierarchy report delivered pursuant to Section 3.01(g)(iii); (viii) As soon as possible and in no event later than 30 days after any officer or director of any Significant Party knows of the occurrence or existence of (A) any ERISA Event under any Pension Plan or Multiemployer Plan which, either individually or in the aggregate, could reasonably be expected to have a Material Adverse Effect, (B) any actual or threatened litigation, suits, claims, disputes or investigations against any Significant Party involving potential monetary damages or in which injunctive relief or similar relief is sought, which could reasonably be expected to have a Material Adverse Effect, (C) any other event or condition which, either individually or in the aggregate, could reasonably be expected to have a Material Adverse Effect, including any of the following which could reasonably be expected to have a Material Adverse Effect: (1) breach or non-performance of, or any default under, a Contractual Obligation of any Significant Party, (2) any dispute, litigation, investigation, proceeding or suspension between any Significant Party and any Governmental Authority or (3) the commencement of, or any material development in, any litigation or proceeding affecting any Significant Party, including pursuant to any applicable Environmental Laws, or (D) any Default, the statement of the Chief Accounting Officer, Chief Financial Officer, or Treasurer of the Borrower setting forth details of such event, condition or Default and the action which CBII or the Borrower proposes to take with respect thereto. Each notice pursuant to this Section 5.01(a)(viii) shall be accompanied by a statement of an Officer of the Borrower setting forth details of the occurrence referred to therein and stating what action CBII or the Borrower has taken and proposes to take with respect thereto. Each notice pursuant to this Section 5.01(a)(viii) shall describe with particularity any and all provisions of this Agreement or other Credit Document that have been breached; (ix) In no event later than five Business Days after they are sent, made available or filed, copies of (A) all registration statements and reports filed by any CBII Entities with any securities exchange or the United States Securities and Exchange Commission (including all 10-Q, 10-K and 8-K reports), (B) all reports, proxy statements and Financial Statements sent or made available by CBII to its Equity Securities holders and (C) all press releases and other similar public announcements concerning any material developments in the business of CBII made available by CBII to the public generally; provided that such information, to the extent the Borrower directly or indirectly provides the Administrative Agent with written notice and an appropriate internet link thereto, shall be accessed by Lenders on XXXXX; (x) As soon as available and in no event later than 30 days after they are filed, copies of all IRS Form 5500 reports for all Pension Plans required to file such form; (xi) Within the earlier to occur of (i) five days after the Board of Directors of the Borrower or CBII shall have publicly announced the earnings for the most recently completed fiscal year of the Borrower or CBII and (ii) 60 days after the end of each fiscal year of the Borrower and CBII, during each year when this Agreement is in effect, a forecast for the current fiscal year of the Borrower Entities and the CBII Entities which includes projected consolidated statement of income for such fiscal year and a projected consolidated statement of cash flows for such fiscal year and projected consolidated balance sheets, statements of income and statements of cash flows on a quarterly basis for such fiscal year; provided that the parties acknowledge that the information in such forecasts is not compiled or presented in accordance with GAAP and may not necessarily be presented on a basis consistent with the Borrower’s Financial Statements to be delivered pursuant to Section 5.01(a); (xii) As soon as possible and in no event later than the later of (A) any of CBII’s or the Borrower’s officers or directors learning thereof or (B) five Business Days prior to the occurrence of any event or circumstance (except for asset losses in which case as promptly as is reasonable after such asset loss) that would require a prepayment pursuant to Section 2.06(c), the statement of the Chief Financial Officer, Chief Accounting Officer or Treasurer of the Borrower setting forth the details thereof; (xiii) As soon as possible and in no event later than 30 days after the receipt thereof by any Loan Party (or subsequent determination after Due Inquiry by an officer of the Borrower that it could reasonably be expected to result in a Material Adverse Effect), a copy of any notice, summons, citations or other written communications concerning any actual, alleged, suspected or threatened violation of any Environmental Law or any liability of any Loan Party for Environmental Damages that in any such case could reasonably be expected to result in a Material Adverse Effect; (xiv) Such other instruments, agreements, certificates, opinions, statements, documents and information relating to the properties, operations or condition (financial or otherwise) of the Significant Parties, and compliance by the Significant Parties with the terms of this Agreement and the other Credit Documents as the Administrative Agent or any Lender (through the Administrative Agent) may from time to time reasonably request; (xv) As soon as available and in no event later than five Business Days after any of CBII’s or the Borrower’s officers or directors receive notice or become aware of any actions (including derivative actions), suits, proceedings or investigations that are pending or, to the knowledge of any of CBII’s or the Borrower’s officers or directors, threatened against any Significant Party at law or in equity in any court, arbitration proceeding or before any other Governmental Authority which seek to enjoin, either directly or indirectly, the execution, delivery or performance by any Loan Party of the Credit Documents or the transactions contemplated thereby; (xvi) As soon as available and in no event later than 120 days after the close of each fiscal year of CBII, a written supplement to Schedule 4.01(w) (setting forth a true and complete listing of all insurance maintained by the Significant Parties); (xvii) Within 120 days after the close of each fiscal year of CBII, a written supplement disclosing any matters required to update factual matters relating to Section 4.01
Appears in 3 contracts
Samples: Credit Agreement (Chiquita Brands International Inc), Credit Agreement (Chiquita Brands International Inc), Credit Agreement (Chiquita Brands International Inc)
Financial Statements, Reports. The Borrower shall furnish Provide Bank with the following by submitting to the Administrative Agent the followingFinancial Statement Repository or otherwise submitting to Bank:
(ia) As as soon as available and in available, but no event later than 60 thirty (30) days after the last day of each month (but upon the occurrence of the first three fiscal quarters of each fiscal year of the Borroweran IPO and at all times thereafter, a copy of the Financial Statements of the Borrower Entities (prepared on a consolidated basis) for the fiscal year to date, certified by the Chief Accounting Officer or the Chief Financial Officer of the Borrower to present fairly in all material respects the financial condition, results of operations, cash flows, and other information reflected therein and to have been prepared in accordance with GAAP (subject to normal year end audit adjustments and omission of footnotes and statement of shareholder’s equity);
(ii) As soon as available and in no event not later than 120 days after the close of each fiscal year of the Borrower, copies of forty-five (A45) the audited consolidated Financial Statements of the Borrower Entities for such year, audited by Ernst & Young LLP or other independent certified public accountants of recognized national standing and registered with the Public Company Accounting Oversight Board and (B) copies of the unqualified opinions of such accountants;
(iii) Commencing with the fiscal quarter ended June 30, 2008, as soon as available and in no event later than 60 days after the last day of each fiscal quarter of the first three fiscal (3) quarters of each Borrower’s fiscal year in respect of quarterly Financial Statements of the Borrower Entities, 90 and not later than ninety (90) days after the close last day of each Borrower’s fiscal year in respect of yearly Financial Statements of the CBII Entities and 120 days after the close of each fiscal year in respect of yearly Financial Statements of the Borrower Entities in accordance with clause (i) above, clause (v) below and clause (ii) above, respectivelyyear), a compliance certificate company-prepared consolidated balance sheet and income statement (including, without limitation, a profit and loss statement) covering Borrower’s consolidated operations for such month if no IPO has occurred and for such quarter upon the occurrence of an IPO and at all times thereafter, certified by a Responsible Officer and in a form acceptable to Bank in its reasonable discretion (the Chief Accounting Officer or Treasurer of the Borrower (a “Compliance CertificatePeriod-Ending Financial Statements”) in substantially the form of Exhibit G-1; provided, however, that the only calculations to be provided in the Compliance Certificate delivered in connection with yearly Financial Statements of the CBII Entities shall be with respect to the Consolidated Adjusted Leverage Ratio);
(ivb) As soon as available and in no event later than 45 within thirty (30) days after the last day of each month, a completed Compliance Statement, confirming that, as of the first three fiscal quarters end of each fiscal year such period, Borrower was in full compliance with all of CBIIthe terms and conditions of this Agreement, and setting forth calculations showing compliance with the financial covenants set forth in this Agreement and such other information as Bank may reasonably request, including, without limitation, a copy statement that at the end of the Quarterly Report for CBII on Form 10-Q for such quarter and for the fiscal year to date; provided that such information, to the extent the Borrower directly or indirectly provides the Administrative Agent with written notice and an appropriate internet link thereto, shall be accessed by Lenders on XXXXXperiod there were no held checks;
(vc) As soon as available and in no event later than 90 days after the close of each fiscal year of CBII, within thirty (A30) copies of the Annual Report for CBII on Form 10-K for such year, audited by Ernst & Young LLP or other independent certified public accountants of recognized national standing and registered with the Public Company Accounting Oversight Board and (B) copies of the unqualified opinions of such accountants; provided that such information, to the extent the Borrower directly or indirectly provides the Administrative Agent with written notice and an appropriate internet link thereto, shall be accessed by Lenders on XXXXX;
(A) As soon as available and in no event later than 120 days after the close of each fiscal year of CBII, (1) a written supplement to Schedule 4.01(n) (setting forth all necessary Trademark information as set forth in Section 4.01(n) and relating to the Trademarks that are material to the conduct of the Significant Parties’ respective businesses as then operated), (2) a written supplement to Schedule 3.06 to each Security Agreement, (3) any additional disclosures under Section 4.01(n) after Due Inquiry and (4) any additional disclosures to be provided on an annual basis under the Security Documents and (B) promptly, but in any event within a reasonable time after any officer of CBII or the Borrower obtains knowledge of the occurrence of an event that could reasonably be expected to result in a Material Adverse Effect on any of the Principal Trademarks or the Trademark Licenses, give the Administrative Agent notice of the occurrence of any such event;
(vii) (A) As soon as available and in no event later than 120 days after the close of each fiscal year of CBII, a written supplement to Schedule 4.01(q) (setting forth each of the US Subsidiaries, each of the Significant Subsidiaries and each of the De Minimis US Subsidiaries, its jurisdiction of organization, the classes of its Equity Securities, the number of shares of each such class issued and outstanding, the percentages of shares of each such class owned directly or indirectly by CBII or the Borrower and whether CBII or the Borrower owns such shares directly or, if not, the CBII Entities that own such shares and the number of shares and percentages of shares of each such class owned directly or indirectly by such CBII Entities) and (B) promptly upon the reasonable request of the Administrative Agent and in no event more often than annually, a current hierarchy report for the CBII Entities, in the form and with the substance of the hierarchy report delivered pursuant to Section 3.01(g)(iii);
(viii) As soon as possible and in no event later than 30 days after any officer or director of any Significant Party knows of the occurrence or existence of (A) any ERISA Event under any Pension Plan or Multiemployer Plan which, either individually or in the aggregate, could reasonably be expected to have a Material Adverse Effect, (B) any actual or threatened litigation, suits, claims, disputes or investigations against any Significant Party involving potential monetary damages or in which injunctive relief or similar relief is sought, which could reasonably be expected to have a Material Adverse Effect, (C) any other event or condition which, either individually or in the aggregate, could reasonably be expected to have a Material Adverse Effect, including any of the following which could reasonably be expected to have a Material Adverse Effect: (1) breach or non-performance of, or any default under, a Contractual Obligation of any Significant Party, (2) any dispute, litigation, investigation, proceeding or suspension between any Significant Party and any Governmental Authority or (3) the commencement of, or any material development in, any litigation or proceeding affecting any Significant Party, including pursuant to any applicable Environmental Laws, or (D) any Default, the statement of the Chief Accounting Officer, Chief Financial Officer, or Treasurer of the Borrower setting forth details of such event, condition or Default and the action which CBII or the Borrower proposes to take with respect thereto. Each notice pursuant to this Section 5.01(a)(viii) shall be accompanied by a statement of an Officer of the Borrower setting forth details of the occurrence referred to therein and stating what action CBII or the Borrower has taken and proposes to take with respect thereto. Each notice pursuant to this Section 5.01(a)(viii) shall describe with particularity any and all provisions of this Agreement or other Credit Document that have been breached;
(ix) In no event later than five Business Days after they are sent, made available or filed, copies of (A) all registration statements and reports filed by any CBII Entities with any securities exchange or the United States Securities and Exchange Commission (including all 10-Q, 10-K and 8-K reports), (B) all reports, proxy statements and Financial Statements sent or made available by CBII to its Equity Securities holders and (C) all press releases and other similar public announcements concerning any material developments in the business of CBII made available by CBII to the public generally; provided that such information, to the extent the Borrower directly or indirectly provides the Administrative Agent with written notice and an appropriate internet link thereto, shall be accessed by Lenders on XXXXX;
(x) As soon as available and in no event later than 30 days after they are filed, copies of all IRS Form 5500 reports for all Pension Plans required to file such form;
(xi) Within the earlier to occur of (i) five days after the Board of Directors of the Borrower or CBII shall have publicly announced the earnings for the most recently completed fiscal year of the Borrower or CBII and (ii) 60 days after the end of each fiscal year of the Borrower Borrower, and CBIIpromptly following any updates or amendments thereto, during each year when this Agreement is in effect(A) annual operating budgets (including income statements, a forecast balance sheets and cash flow statements, by month) for the current fiscal year of Borrower, and (B) annual financial projections for the Borrower Entities and the CBII Entities which includes projected consolidated statement of income for such current fiscal year and a projected consolidated statement of cash flows for such fiscal year and projected consolidated balance sheets, statements of income and statements of cash flows (on a quarterly basis for basis), in each case as approved by the Board, together with any related business forecasts used in the preparation of such annual financial projections;
(d) Commencing with Borrower’s fiscal year ending on December 31, 2019, as soon as available, and in any event within one hundred eighty (180) days following the end of Borrower’s fiscal year; provided , audited consolidated financial statements prepared under GAAP, consistently applied, together with an unqualified opinion (except for any period within the twelve-month period prior to the Maturity Date to the extent such qualification is the result of the Advances (or any portion thereof) being treated as short-term Indebtedness) on the financial statements from an independent certified public accounting firm reasonably acceptable to Bank;
(e) prompt written notice of any changes to the beneficial ownership information set out in Section 2 of the Perfection Certificate. Borrower understands and acknowledges that Bank relies on such true, accurate and up-to-date beneficial ownership information to meet Bank’s regulatory obligations to obtain, verify and record information about the parties acknowledge beneficial owners of its legal entity customers.
(f) in the event that Borrower becomes subject to the information in such forecasts is not compiled or presented in accordance with GAAP reporting requirements under the Exchange Act within five (5) days of filing, copies of all periodic and may not necessarily be presented on a basis consistent other reports, proxy statements and other materials filed by Borrower and/or any Guarantor with the Borrower’s Financial Statements SEC, any Governmental Authority succeeding to any or all of the functions of the SEC or with any national securities exchange, or distributed to its shareholders (in their capacities as such), as the case may be. Documents required to be delivered pursuant to Section 5.01(a)the terms hereof (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 on which Borrower posts such documents, or provides a link thereto, on Borrower’s website on the internet at Borrower’s website address; provided, however, Borrower shall promptly notify Bank in writing (which may be by electronic mail) of the posting of any such documents;
(xiig) As soon as possible within five (5) days of delivery, copies of all statements, reports and in no event later than the later of (A) any of CBII’s or the notices made available to Borrower’s officers security holders or directors learning thereof or (B) five Business Days prior to the occurrence any holders of any event or circumstance (except for asset losses in which case as promptly as is reasonable after such asset loss) that would require a prepayment pursuant to Section 2.06(c), the statement of the Chief Financial Officer, Chief Accounting Officer or Treasurer of the Borrower setting forth the details thereofSubordinated Debt;
(xiiih) As soon as possible and prompt report of any legal actions pending or threatened in no event later than 30 days after the receipt thereof by writing against Borrower or any Loan Party (or subsequent determination after Due Inquiry by an officer of the Borrower its Subsidiaries that it reasonably could reasonably be expected to result in a Material Adverse Effect), a copy of any notice, summons, citations damages or other written communications concerning any actual, alleged, suspected or threatened violation of any Environmental Law costs to Borrower or any liability of any Loan Party for Environmental Damages that its Subsidiaries of, individually or in any such case could reasonably be expected to result in a Material Adverse Effect;the aggregate, Five Hundred Thousand Dollars ($500,000) or more; and
(xivi) Such promptly, from time to time, such other instruments, agreements, certificates, opinions, statements, documents and information relating to the properties, operations regarding Borrower or condition (financial or otherwise) of the Significant Parties, and compliance by the Significant Parties with the terms of this Agreement and the other Credit any Loan Documents as reasonably requested by Bank. Any submission by Borrower of a Compliance Statement submitted to the Administrative Agent Financial Statement Repository pursuant to this Section 6.2 or otherwise submitted to Bank shall be deemed to be a representation by Borrower that (i) as of the date of such Compliance Statement, the information and calculations set forth therein are true, accurate and correct in all material respects, (ii) as of the end of the compliance period set forth in such submission, Borrower is in complete compliance with all required covenants except as noted in such Compliance Statement, as applicable, (iii) as of the date of such submission, no Events of Default have occurred and are continuing except as noted in such Compliance Statement, (iv) all representations and warranties other than any representations or warranties that are made as of a specific date in Section 5 remain true and correct in all material respects as of the date of such submission except as noted in such Compliance Statement or other financial statement, as applicable, (v) as of the date of such submission, Borrower and each of its Subsidiaries has timely filed all required tax returns and reports, and Borrower has timely paid all foreign, federal, state and local taxes, assessments, deposits and contributions owed by Borrower except as otherwise permitted pursuant to the terms of Sections 5.8 and 6.4, and (vi) as of the date of such submission, no Liens have been levied or claims made against Borrower or any Lender (through the Administrative Agent) may from time to time reasonably request;
(xv) As soon as available and in no event later than five Business Days after any of CBII’s or the Borrower’s officers or directors receive notice or become aware of any actions (including derivative actions), suits, proceedings or investigations that are pending or, to the knowledge of any of CBII’s or the Borrower’s officers or directors, threatened against any Significant Party at law or in equity in any court, arbitration proceeding or before any other Governmental Authority which seek to enjoin, either directly or indirectly, the execution, delivery or performance by any Loan Party of the Credit Documents or the transactions contemplated thereby;
(xvi) As soon as available and in no event later than 120 days after the close of each fiscal year of CBII, a written supplement to Schedule 4.01(w) (setting forth a true and complete listing of all insurance maintained by the Significant Parties);
(xvii) Within 120 days after the close of each fiscal year of CBII, a written supplement disclosing any matters required to update factual matters its Subsidiaries relating to Section 4.01unpaid employee payroll or benefits of which Borrower has not previously provided written notification to Bank
Appears in 2 contracts
Samples: Loan and Security Agreement (Livongo Health, Inc.), Loan and Security Agreement (Livongo Health, Inc.)
Financial Statements, Reports. The Borrower shall furnish Furnish to the Administrative Agent the followingLender:
(i) As soon as available and in no event not later than 60 days after the last ninetieth (90th) day of each of the first three fiscal quarters of each fiscal year of the Borrower, a copy of the Financial Statements of the Borrower Entities (prepared on a consolidated basis) for the fiscal year to date, certified by the Chief Accounting Officer or the Chief Financial Officer of the Borrower to present fairly in all material respects the financial condition, results of operations, cash flows, and other information reflected therein and to have been prepared in accordance with GAAP (subject to normal year end audit adjustments and omission of footnotes and statement of shareholder’s equity);
(ii) As soon as available and in no event later than 120 days after the close of each fiscal year of the Borrower, copies of (A) the audited consolidated Financial Statements of the Borrower Entities for such year, audited by Ernst & Young LLP or other independent certified public accountants of recognized national standing and registered with the Public Company Accounting Oversight Board and (B) copies of the unqualified opinions of such accountants;
(iii) Commencing with the fiscal quarter ended June 30, 2008, as soon as available and in no event later than 60 days after the last day of each of the first three fiscal quarters of each fiscal year in respect of quarterly Financial Statements of the Borrower Entities, 90 days after the close of each fiscal year in respect of yearly Financial Statements of the CBII Entities and 120 days after the close of each fiscal year in respect of yearly Financial Statements of the Borrower Entities in accordance with clause (i) above, clause (v) below and clause (ii) above, respectively, a compliance certificate of the Chief Accounting Officer or Treasurer of the Borrower (a “Compliance Certificate”) in substantially the form of Exhibit G-1; provided, however, that the only calculations to be provided in the Compliance Certificate delivered in connection with yearly Financial Statements of the CBII Entities shall be with respect to the Consolidated Adjusted Leverage Ratio;
(iv) As soon as available and in no event later than 45 days after the last day of each of the first three fiscal quarters of each fiscal year of CBII, a copy of the Quarterly Report for CBII on Form 10-Q for such quarter and for the fiscal year to date; provided that such information, to the extent the Borrower directly or indirectly provides the Administrative Agent with written notice and an appropriate internet link thereto, shall be accessed by Lenders on XXXXX;
(v) As soon as available and in no event later than 90 days after the close of each fiscal year of CBII, (A) copies of the Annual Report for CBII on Form 10-K for such year, audited by Ernst & Young LLP or other independent certified public accountants of recognized national standing and registered with the Public Company Accounting Oversight Board and (B) copies of the unqualified opinions of such accountants; provided that such information, to the extent the Borrower directly or indirectly provides the Administrative Agent with written notice and an appropriate internet link thereto, shall be accessed by Lenders on XXXXX;
(A) As soon as available and in no event later than 120 days after the close of each fiscal year of CBII, (1) a written supplement to Schedule 4.01(n) (setting forth all necessary Trademark information as set forth in Section 4.01(n) and relating to the Trademarks that are material to the conduct of the Significant Parties’ respective businesses as then operated), (2) a written supplement to Schedule 3.06 to each Security Agreement, (3) any additional disclosures under Section 4.01(n) after Due Inquiry and (4) any additional disclosures to be provided on an annual basis under the Security Documents and (B) promptly, but in any event within a reasonable time after any officer of CBII or the Borrower obtains knowledge of the occurrence of an event that could reasonably be expected to result in a Material Adverse Effect on any of the Principal Trademarks or the Trademark Licenses, give the Administrative Agent notice of the occurrence of any such event;
(vii) (A) As soon as available and in no event later than 120 days after the close of each fiscal year of CBII, a written supplement to Schedule 4.01(q) (setting forth each of the US Subsidiaries, each of the Significant Subsidiaries and each of the De Minimis US Subsidiaries, its jurisdiction of organization, the classes of its Equity Securities, the number of shares of each such class issued and outstanding, the percentages of shares of each such class owned directly or indirectly by CBII or the Borrower and whether CBII or the Borrower owns such shares directly or, if not, the CBII Entities that own such shares and the number of shares and percentages of shares of each such class owned directly or indirectly by such CBII Entities) and (B) promptly upon the reasonable request of the Administrative Agent and in no event more often than annually, a current hierarchy report for the CBII Entities, in the form and with the substance of the hierarchy report delivered pursuant to Section 3.01(g)(iii);
(viii) As soon as possible and in no event later than 30 days after any officer or director of any Significant Party knows of the occurrence or existence of (A) any ERISA Event under any Pension Plan or Multiemployer Plan which, either individually or in the aggregate, could reasonably be expected to have a Material Adverse Effect, (B) any actual or threatened litigation, suits, claims, disputes or investigations against any Significant Party involving potential monetary damages or in which injunctive relief or similar relief is sought, which could reasonably be expected to have a Material Adverse Effect, (C) any other event or condition which, either individually or in the aggregate, could reasonably be expected to have a Material Adverse Effect, including any of the following which could reasonably be expected to have a Material Adverse Effect: (1) breach or non-performance of, or any default under, a Contractual Obligation of any Significant Party, (2) any dispute, litigation, investigation, proceeding or suspension between any Significant Party and any Governmental Authority or (3) the commencement of, or any material development in, any litigation or proceeding affecting any Significant Party, including pursuant to any applicable Environmental Laws, or (D) any Default, the statement of the Chief Accounting Officer, Chief Financial Officer, or Treasurer of the Borrower setting forth details of such event, condition or Default and the action which CBII or the Borrower proposes to take with respect thereto. Each notice pursuant to this Section 5.01(a)(viii) shall be accompanied by a statement of an Officer of the Borrower setting forth details of the occurrence referred to therein and stating what action CBII or the Borrower has taken and proposes to take with respect thereto. Each notice pursuant to this Section 5.01(a)(viii) shall describe with particularity any and all provisions of this Agreement or other Credit Document that have been breached;
(ix) In no event later than five Business Days after they are sent, made available or filed, copies of (A) all registration statements and reports filed by any CBII Entities with any securities exchange or the United States Securities and Exchange Commission (including all 10-Q, 10-K and 8-K reports), (B) all reports, proxy statements and Financial Statements sent or made available by CBII to its Equity Securities holders and (C) all press releases and other similar public announcements concerning any material developments in the business of CBII made available by CBII to the public generally; provided that such information, to the extent the Borrower directly or indirectly provides the Administrative Agent with written notice and an appropriate internet link thereto, shall be accessed by Lenders on XXXXX;
(x) As soon as available and in no event later than 30 days after they are filed, copies of all IRS Form 5500 reports for all Pension Plans required to file such form;
(xi) Within the earlier to occur of (i) five days after the Board of Directors of the Borrower or CBII shall have publicly announced the earnings for the most recently completed fiscal year of the Borrower or CBII and (ii) 60 days after the end of each fiscal year of the Borrower and CBIIBorrower, during each year when this Agreement is in effect, a forecast for the current fiscal year Consolidated balance sheets of the Borrower Entities and its Subsidiaries as at the end of such year and the CBII Entities which includes projected consolidated statement related Consolidated statements of income for such fiscal year income, shareholders’ equity and a projected consolidated statement of cash flows for such fiscal year of the Borrower and projected consolidated balance sheets, statements of income and statements of cash flows on a quarterly basis its Subsidiaries for such fiscal year; provided , setting forth in each case in comparative form (x) the Consolidated figures for the previous fiscal year and (y) the figures set forth in the budget for such period, all in reasonable detail and accompanied by a report of Xxxxxxxx LLP or other reputable firm of independent registered public accounting firm, which report shall state that the parties acknowledge that Consolidated financial statements of the information Borrower for such period present fairly the financial position of the Borrower and its Subsidiaries as at the dates indicated and the results of their operations and their cash flows for the periods indicated in such forecasts is not compiled or presented in accordance conformity with GAAP and may not necessarily be presented applied on a basis consistent with prior years (except as otherwise specified in such report) and that the audit by such accountants in connection with such Consolidated financial statements has been made in accordance with GAAP; provided that so long as the Borrower is subject to the reporting provisions of the Securities Exchange Act, timely delivery of copies of the Borrower’s Financial Statements to be delivered pursuant to Section 5.01(aannual report on Form 10-K for such period will satisfy the requirements of this paragraph (i) (except for the requirement included in clause (y) above);
(xiiii) As soon as possible and in no event not later than the later forty-fifth (45th) day after the end of (A) any each of CBII’s or the first three quarterly fiscal periods in each fiscal year of the Borrower’s officers or directors learning thereof or (B) five Business Days prior to the occurrence of any event or circumstance (except for asset losses in which case as promptly as is reasonable after such asset loss) that would require a prepayment pursuant to Section 2.06(c), the statement of the Chief Financial Officer, Chief Accounting Officer or Treasurer Consolidated balance sheets of the Borrower and its Subsidiaries as at the end of such period and the related Consolidated statements of income, shareholders’ equity and cash flows of the Borrower and its Subsidiaries for such period and (in the case of the second and third quarterly periods) for the period from the beginning of the current fiscal year to the end of such quarterly period, setting forth in each case in comparative form (x) the details thereof;
consolidated figures for the corresponding periods of the previous fiscal year and (xiiiy) As soon as possible the figures set forth in the budget for such period, all in reasonable detail and in no event later than 30 days after the receipt thereof certified by any Loan Party (or subsequent determination after Due Inquiry by an a principal financial officer of the Borrower as presenting fairly, in accordance with GAAP (except for the absence of notes thereto) applied (except as specifically set forth therein) on a basis consistent with such prior fiscal periods, the information contained therein, subject to changes resulting from normal year-end audit adjustments; provided that it could reasonably be expected to result in a Material Adverse Effect), a copy of any notice, summons, citations or other written communications concerning any actual, alleged, suspected or threatened violation of any Environmental Law or any liability of any Loan Party for Environmental Damages that in any such case could reasonably be expected to result in a Material Adverse Effect;
(xiv) Such other instruments, agreements, certificates, opinions, statements, documents and information relating so long as the Borrower is subject to the properties, operations or condition (financial or otherwise) reporting provisions of the Significant PartiesSecurities Exchange Act, and compliance by the Significant Parties with the terms timely delivery of this Agreement and the other Credit Documents as the Administrative Agent or any Lender (through the Administrative Agent) may from time to time reasonably request;
(xv) As soon as available and in no event later than five Business Days after any copies of CBII’s or the Borrower’s officers or directors receive notice or become aware quarterly report on Form 10-Q for such period will satisfy the requirements of any actions this paragraph (including derivative actions), suits, proceedings or investigations that are pending or, to the knowledge of any of CBII’s or the Borrower’s officers or directors, threatened against any Significant Party at law or in equity in any court, arbitration proceeding or before any other Governmental Authority which seek to enjoin, either directly or indirectly, the execution, delivery or performance by any Loan Party of the Credit Documents or the transactions contemplated thereby;
(xvi) As soon as available and in no event later than 120 days after the close of each fiscal year of CBII, a written supplement to Schedule 4.01(wii) (setting forth a true and complete listing of all insurance maintained by except for the Significant Partiesrequirement included in clause (y) above);
(xvii) Within 120 days after the close of each fiscal year of CBII, a written supplement disclosing any matters required to update factual matters relating to Section 4.01
Appears in 2 contracts
Samples: Secured Credit Facility and Warrant Purchase Agreement (Environmental Tectonics Corp), Secured Credit Facility and Warrant Purchase Agreement (Environmental Tectonics Corp)
Financial Statements, Reports. The Borrower shall furnish Provide Bank with the following by submitting to the Administrative Agent the followingFinancial Statement Repository:
(a) within thirty (30) days after the end of each month (i) As monthly accounts receivable agings, aged by invoice date, (ii) monthly accounts payable agings, aged by invoice date, and outstanding or held check registers, if any, and (iii) monthly reconciliations of accounts receivable agings (aged by invoice date), transaction reports and general ledger, each in a form acceptable to Bank;
(b) as soon as available and in available, but no event later than 60 thirty (30) days after the last day of each of the first three fiscal quarters of each fiscal year of the month, a company prepared consolidated, and if prepared by Borrower, a copy of the Financial Statements of the Borrower Entities (prepared on a consolidating, balance sheet and income statement covering Borrower’s consolidated basis) for the fiscal year to date, certified by the Chief Accounting Officer or the Chief Financial Officer of the Borrower to present fairly in all material respects the financial condition, results of operations, cash flowsand, and other information reflected therein if prepared by Borrower, Borrower’s and each of its Subsidiary’s consolidating, operations for such month in a form acceptable to have been prepared in accordance with GAAP Bank (subject to normal year end audit adjustments and omission of footnotes and statement of shareholder’s equitythe “Monthly Financial Statements”);
(iic) As soon as available and in no event later than 120 days after the close of each fiscal year of the Borrower, copies of within thirty (A30) the audited consolidated Financial Statements of the Borrower Entities for such year, audited by Ernst & Young LLP or other independent certified public accountants of recognized national standing and registered with the Public Company Accounting Oversight Board and (B) copies of the unqualified opinions of such accountants;
(iii) Commencing with the fiscal quarter ended June 30, 2008, as soon as available and in no event later than 60 days after the last day of each month and together with the Monthly Financial Statements, a duly completed Compliance Statement, confirming that as of the end of such month, Borrower was in full compliance with all of the terms and conditions of this Agreement, and setting forth calculations showing compliance with the financial covenants set forth in this Agreement and such other information as Bank may reasonably request, including, without limitation, a statement that at the end of such month there were no held checks;
(d) at least annually, as soon as available, and in any event no later than the earlier to occur of (i) the first three fiscal quarters meeting of the Board each year and (ii) sixty (60) days following the end of each fiscal year of Borrower, and contemporaneously with any updates or amendments thereto, (A) annual operating budgets (including income statements, balance sheets and cash flow statements, by month), and (B) annual financial projections (on a quarterly basis), in respect of quarterly Financial Statements of each case as approved by the Borrower EntitiesBoard, 90 days after the close of each fiscal year in respect of yearly Financial Statements of the CBII Entities and 120 days after the close of each fiscal year in respect of yearly Financial Statements of the Borrower Entities in accordance together with clause (i) above, clause (v) below and clause (ii) above, respectively, a compliance certificate of the Chief Accounting Officer or Treasurer of the Borrower (a “Compliance Certificate”) in substantially the form of Exhibit G-1; provided, however, that the only calculations to be provided any related business forecasts used in the Compliance Certificate delivered in connection with yearly Financial Statements preparation of the CBII Entities shall be with respect to the Consolidated Adjusted Leverage Ratiosuch annual financial projections;
(ive) As as soon as available available, and in any event within one hundred eighty (180) days following the end of Borrower’s fiscal year, audited consolidated financial statements prepared under GAAP, consistently applied, together with an unqualified opinion on the financial statements from an independent certified public accounting firm reasonably acceptable to Bank;
(f) as soon as available, but no event later than 45 thirty (30) days after the last day of each month, a SaaS metrics report (including, without limitation, details of Borrower’s recurring revenue, customer churn, revenue churn, LTV, CAC, and other relevant KPI metrics), in a form acceptable to Bank;
(g) as soon as available, but no later than thirty (30) days after the last day of each month, a company prepared report of Borrower’s loan portfolio metrics (including, without limitation, underlying asset data, underlying loan tapes, details of delinquencies, past-due accounts and charge-offs) for such month in a form acceptable to Bank;
(h) in the event that Borrower becomes subject to the reporting requirements under the Exchange Act, within five (5) days of filing, copies of all periodic and other reports, proxy statements and other materials filed by Borrower with the SEC, any Governmental Authority succeeding to any or all of the first three fiscal quarters of each fiscal year of CBII, a copy functions of the Quarterly Report for CBII on Form 10-Q for such quarter and for SEC or with any national securities exchange, or distributed to its shareholders, as the fiscal year case may be. Documents required to date; provided that such information, be delivered pursuant to the terms hereof (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 on which Borrower directly posts such documents, or indirectly provides the Administrative Agent with written notice and an appropriate internet a link thereto, on Borrower’s website on the internet at Borrower’s website address; provided, however, Borrower shall promptly notify Bank in writing (which may be accessed by Lenders on XXXXXelectronic mail) of the posting of any such documents;
(vi) As soon as available and in no event later than 90 within five (5) days after the close of each fiscal year of CBIIdelivery, (A) copies of the Annual Report for CBII on Form 10-K for such yearall statements, audited by Ernst & Young LLP reports and notices made available to Borrower’s security holders or other independent certified public accountants to any holders of recognized national standing and registered with the Public Company Accounting Oversight Board and (B) copies of the unqualified opinions of such accountants; provided that such information, to the extent the Borrower directly or indirectly provides the Administrative Agent with written notice and an appropriate internet link thereto, shall be accessed by Lenders on XXXXXSubordinated Debt;
(Aj) As soon as available and in no event later than 120 days after prompt written notice of any changes to the close of each fiscal year of CBII, (1) a written supplement to Schedule 4.01(n) (setting forth all necessary Trademark beneficial ownership information as set forth out in Section 4.01(n) and relating to the Trademarks that are material to the conduct 14 of the Significant Parties’ respective businesses as then operated)Perfection Certificate. Borrower understands and acknowledges that Bank relies on such true, accurate and up-to-date beneficial ownership information to meet Bank’s regulatory obligations to obtain, verify and record information about the beneficial owners of its legal entity customers;
(2k) a written supplement to Schedule 3.06 to each Security Agreement, (3) prompt report of any additional disclosures under Section 4.01(n) after Due Inquiry and (4) legal actions pending or threatened in writing against Borrower or any additional disclosures to be provided on an annual basis under the Security Documents and (B) promptly, but in any event within a reasonable time after any officer of CBII or the Borrower obtains knowledge of the occurrence of an event its Subsidiaries that could reasonably be expected to result in a Material Adverse Effect on damages or costs to Borrower or any of its Subsidiaries of, individually or in the Principal Trademarks aggregate, Two Hundred Fifty Thousand Dollars ($250,000.00) or more;
(l) within thirty (30) days after the Trademark Licenseslast day of each month, give the Administrative Agent provide a report of Borrower’s and its Subsidiaries cash balances and working capital balances, together with such other information related thereto as Bank may reasonably request, in a form acceptable to Bank;
(m) prompt written notice of the occurrence of any such event;event of default (however defined) beyond any applicable cure period under any Account purchase, loan financing, warehouse, or other similar agreement, by Borrower or any Subsidiary or Affiliate of Borrower; and
(viin) (A) As soon as available and in no event later than 120 days after the close of each fiscal year of CBIIpromptly, a written supplement from time to Schedule 4.01(q) (setting forth each of the US Subsidiariestime, each of the Significant Subsidiaries and each of the De Minimis US Subsidiaries, its jurisdiction of organization, the classes of its Equity Securities, the number of shares of each such class issued and outstanding, the percentages of shares of each such class owned directly other information regarding Borrower or indirectly by CBII or the Borrower and whether CBII or the Borrower owns such shares directly or, if not, the CBII Entities that own such shares and the number of shares and percentages of shares of each such class owned directly or indirectly by such CBII Entities) and (B) promptly upon the reasonable request of the Administrative Agent and in no event more often than annually, a current hierarchy report for the CBII Entities, in the form and compliance with the substance of the hierarchy report delivered pursuant to Section 3.01(g)(iii);
(viii) As soon as possible and in no event later than 30 days after any officer or director terms of any Significant Party knows Loan Documents as reasonably requested by Bank. Any submission by Borrower of the occurrence a Compliance Statement or existence of (A) any ERISA Event under any Pension Plan or Multiemployer Plan which, either individually or in the aggregate, could reasonably be expected to have a Material Adverse Effect, (B) any actual or threatened litigation, suits, claims, disputes or investigations against any Significant Party involving potential monetary damages or in which injunctive relief or similar relief is sought, which could reasonably be expected to have a Material Adverse Effect, (C) any other event or condition which, either individually or in financial statement submitted to the aggregate, could reasonably be expected to have a Material Adverse Effect, including any of the following which could reasonably be expected to have a Material Adverse Effect: (1) breach or non-performance of, or any default under, a Contractual Obligation of any Significant Party, (2) any dispute, litigation, investigation, proceeding or suspension between any Significant Party and any Governmental Authority or (3) the commencement of, or any material development in, any litigation or proceeding affecting any Significant Party, including pursuant to any applicable Environmental Laws, or (D) any Default, the statement of the Chief Accounting Officer, Chief Financial Officer, or Treasurer of the Borrower setting forth details of such event, condition or Default and the action which CBII or the Borrower proposes to take with respect thereto. Each notice Statement Repository pursuant to this Section 5.01(a)(viii) 6.2 or otherwise submitted to Bank shall be accompanied deemed to be a representation by a statement of an Officer Borrower that (a) as of the Borrower setting forth details date of the occurrence referred to therein and stating what action CBII or the Borrower has taken and proposes to take with respect thereto. Each notice pursuant to this Section 5.01(a)(viii) shall describe with particularity any and all provisions of this Agreement such Compliance Statement or other Credit Document that have been breached;
(ix) In no event later than five Business Days after they financial statement, the information and calculations set forth therein are senttrue, made available or filed, copies of (A) all registration statements accurate and reports filed by any CBII Entities with any securities exchange or the United States Securities and Exchange Commission (including all 10-Q, 10-K and 8-K reports)correct, (Bb) all reports, proxy statements and Financial Statements sent or made available by CBII to its Equity Securities holders and (C) all press releases and other similar public announcements concerning any material developments in the business as of CBII made available by CBII to the public generally; provided that such information, to the extent the Borrower directly or indirectly provides the Administrative Agent with written notice and an appropriate internet link thereto, shall be accessed by Lenders on XXXXX;
(x) As soon as available and in no event later than 30 days after they are filed, copies of all IRS Form 5500 reports for all Pension Plans required to file such form;
(xi) Within the earlier to occur of (i) five days after the Board of Directors of the Borrower or CBII shall have publicly announced the earnings for the most recently completed fiscal year of the Borrower or CBII and (ii) 60 days after the end of each fiscal year the compliance period set forth in such submission, Borrower is in complete compliance with all required covenants except as noted in such Compliance Statement or other financial statement, as applicable; (c) as of the date of such submission, no Events of Default have occurred or are continuing; (d) all representations and warranties other than any representations or warranties that are made as of a specific date in Section 5 remain true and correct in all material respects as of the date of such submission except as noted in such Compliance Statement or other financial statement, as applicable; (e) as of the date of such submission, Borrower and CBIIeach of its Subsidiaries have timely filed all required tax returns and reports, during each year when this Agreement is in effectand Borrower has timely paid all foreign, a forecast for the current fiscal year of the federal, state and local taxes, assessments, deposits and contributions owed by Borrower Entities and the CBII Entities which includes projected consolidated statement of income for such fiscal year and a projected consolidated statement of cash flows for such fiscal year and projected consolidated balance sheets, statements of income and statements of cash flows on a quarterly basis for such fiscal year; provided that the parties acknowledge that the information in such forecasts is not compiled or presented in accordance with GAAP and may not necessarily be presented on a basis consistent with the Borrower’s Financial Statements to be delivered except as otherwise permitted pursuant to Section 5.01(a);
(xii) As soon as possible and in no event later than the later of (A) any of CBII’s or the Borrower’s officers or directors learning thereof or (B) five Business Days prior to the occurrence of any event or circumstance (except for asset losses in which case as promptly as is reasonable after such asset loss) that would require a prepayment pursuant to Section 2.06(c), the statement of the Chief Financial Officer, Chief Accounting Officer or Treasurer of the Borrower setting forth the details thereof;
(xiii) As soon as possible and in no event later than 30 days after the receipt thereof by any Loan Party (or subsequent determination after Due Inquiry by an officer of the Borrower that it could reasonably be expected to result in a Material Adverse Effect), a copy of any notice, summons, citations or other written communications concerning any actual, alleged, suspected or threatened violation of any Environmental Law or any liability of any Loan Party for Environmental Damages that in any such case could reasonably be expected to result in a Material Adverse Effect;
(xiv) Such other instruments, agreements, certificates, opinions, statements, documents and information relating to the properties, operations or condition (financial or otherwise) of the Significant Parties, and compliance by the Significant Parties with the terms of this Agreement Section 5.8; and (f) as of the other Credit Documents as the Administrative Agent date of such submission, no Liens have been levied or claims made against Borrower or any Lender (through the Administrative Agent) may from time to time reasonably request;
(xv) As soon as available and in no event later than five Business Days after any of CBII’s or the Borrower’s officers or directors receive notice or become aware of any actions (including derivative actions), suits, proceedings or investigations that are pending or, to the knowledge of any of CBII’s or the Borrower’s officers or directors, threatened against any Significant Party at law or in equity in any court, arbitration proceeding or before any other Governmental Authority which seek to enjoin, either directly or indirectly, the execution, delivery or performance by any Loan Party of the Credit Documents or the transactions contemplated thereby;
(xvi) As soon as available and in no event later than 120 days after the close of each fiscal year of CBII, a written supplement to Schedule 4.01(w) (setting forth a true and complete listing of all insurance maintained by the Significant Parties);
(xvii) Within 120 days after the close of each fiscal year of CBII, a written supplement disclosing any matters required to update factual matters its Subsidiaries relating to Section 4.01unpaid employee payroll or benefits of which Borrower has not previously provided written notification to Bank.
Appears in 2 contracts
Samples: Loan and Security Agreement (Moneylion Inc.), Loan and Security Agreement (Fusion Acquisition Corp.)
Financial Statements, Reports. The Borrower shall furnish Furnish to the Administrative Agent the followingPurchaser:
(i) As soon as available and in no event not later than 60 days after the last ninetieth day of each of the first three fiscal quarters of each fiscal year of the Borrower, a copy of the Financial Statements of the Borrower Entities (prepared on a consolidated basis) for the fiscal year to date, certified by the Chief Accounting Officer or the Chief Financial Officer of the Borrower to present fairly in all material respects the financial condition, results of operations, cash flows, and other information reflected therein and to have been prepared in accordance with GAAP (subject to normal year end audit adjustments and omission of footnotes and statement of shareholder’s equity);
(ii) As soon as available and in no event later than 120 days after the close of each fiscal year of the Borrower, copies of (A) the audited consolidated Financial Statements of the Borrower Entities for such year, audited by Ernst & Young LLP or other independent certified public accountants of recognized national standing and registered with the Public Company Accounting Oversight Board and (B) copies of the unqualified opinions of such accountants;
(iii) Commencing with the fiscal quarter ended June 30, 2008, as soon as available and in no event later than 60 days after the last day of each of the first three fiscal quarters of each fiscal year in respect of quarterly Financial Statements of the Borrower Entities, 90 days after the close of each fiscal year in respect of yearly Financial Statements of the CBII Entities and 120 days after the close of each fiscal year in respect of yearly Financial Statements of the Borrower Entities in accordance with clause (i) above, clause (v) below and clause (ii) above, respectively, a compliance certificate of the Chief Accounting Officer or Treasurer of the Borrower (a “Compliance Certificate”) in substantially the form of Exhibit G-1; provided, however, that the only calculations to be provided in the Compliance Certificate delivered in connection with yearly Financial Statements of the CBII Entities shall be with respect to the Consolidated Adjusted Leverage Ratio;
(iv) As soon as available and in no event later than 45 days after the last day of each of the first three fiscal quarters of each fiscal year of CBII, a copy of the Quarterly Report for CBII on Form 10-Q for such quarter and for the fiscal year to date; provided that such information, to the extent the Borrower directly or indirectly provides the Administrative Agent with written notice and an appropriate internet link thereto, shall be accessed by Lenders on XXXXX;
(v) As soon as available and in no event later than 90 days after the close of each fiscal year of CBII, (A) copies of the Annual Report for CBII on Form 10-K for such year, audited by Ernst & Young LLP or other independent certified public accountants of recognized national standing and registered with the Public Company Accounting Oversight Board and (B) copies of the unqualified opinions of such accountants; provided that such information, to the extent the Borrower directly or indirectly provides the Administrative Agent with written notice and an appropriate internet link thereto, shall be accessed by Lenders on XXXXX;
(A) As soon as available and in no event later than 120 days after the close of each fiscal year of CBII, (1) a written supplement to Schedule 4.01(n) (setting forth all necessary Trademark information as set forth in Section 4.01(n) and relating to the Trademarks that are material to the conduct of the Significant Parties’ respective businesses as then operated), (2) a written supplement to Schedule 3.06 to each Security Agreement, (3) any additional disclosures under Section 4.01(n) after Due Inquiry and (4) any additional disclosures to be provided on an annual basis under the Security Documents and (B) promptly, but in any event within a reasonable time after any officer of CBII or the Borrower obtains knowledge of the occurrence of an event that could reasonably be expected to result in a Material Adverse Effect on any of the Principal Trademarks or the Trademark Licenses, give the Administrative Agent notice of the occurrence of any such event;
(vii) (A) As soon as available and in no event later than 120 days after the close of each fiscal year of CBII, a written supplement to Schedule 4.01(q) (setting forth each of the US Subsidiaries, each of the Significant Subsidiaries and each of the De Minimis US Subsidiaries, its jurisdiction of organization, the classes of its Equity Securities, the number of shares of each such class issued and outstanding, the percentages of shares of each such class owned directly or indirectly by CBII or the Borrower and whether CBII or the Borrower owns such shares directly or, if not, the CBII Entities that own such shares and the number of shares and percentages of shares of each such class owned directly or indirectly by such CBII Entities) and (B) promptly upon the reasonable request of the Administrative Agent and in no event more often than annually, a current hierarchy report for the CBII Entities, in the form and with the substance of the hierarchy report delivered pursuant to Section 3.01(g)(iii);
(viii) As soon as possible and in no event later than 30 days after any officer or director of any Significant Party knows of the occurrence or existence of (A) any ERISA Event under any Pension Plan or Multiemployer Plan which, either individually or in the aggregate, could reasonably be expected to have a Material Adverse Effect, (B) any actual or threatened litigation, suits, claims, disputes or investigations against any Significant Party involving potential monetary damages or in which injunctive relief or similar relief is sought, which could reasonably be expected to have a Material Adverse Effect, (C) any other event or condition which, either individually or in the aggregate, could reasonably be expected to have a Material Adverse Effect, including any of the following which could reasonably be expected to have a Material Adverse Effect: (1) breach or non-performance of, or any default under, a Contractual Obligation of any Significant Party, (2) any dispute, litigation, investigation, proceeding or suspension between any Significant Party and any Governmental Authority or (3) the commencement of, or any material development in, any litigation or proceeding affecting any Significant Party, including pursuant to any applicable Environmental Laws, or (D) any Default, the statement of the Chief Accounting Officer, Chief Financial Officer, or Treasurer of the Borrower setting forth details of such event, condition or Default and the action which CBII or the Borrower proposes to take with respect thereto. Each notice pursuant to this Section 5.01(a)(viii) shall be accompanied by a statement of an Officer of the Borrower setting forth details of the occurrence referred to therein and stating what action CBII or the Borrower has taken and proposes to take with respect thereto. Each notice pursuant to this Section 5.01(a)(viii) shall describe with particularity any and all provisions of this Agreement or other Credit Document that have been breached;
(ix) In no event later than five Business Days after they are sent, made available or filed, copies of (A) all registration statements and reports filed by any CBII Entities with any securities exchange or the United States Securities and Exchange Commission (including all 10-Q, 10-K and 8-K reports), (B) all reports, proxy statements and Financial Statements sent or made available by CBII to its Equity Securities holders and (C) all press releases and other similar public announcements concerning any material developments in the business of CBII made available by CBII to the public generally; provided that such information, to the extent the Borrower directly or indirectly provides the Administrative Agent with written notice and an appropriate internet link thereto, shall be accessed by Lenders on XXXXX;
(x) As soon as available and in no event later than 30 days after they are filed, copies of all IRS Form 5500 reports for all Pension Plans required to file such form;
(xi) Within the earlier to occur of (i) five days after the Board of Directors of the Borrower or CBII shall have publicly announced the earnings for the most recently completed fiscal year of the Borrower or CBII and (ii) 60 days after the end of each fiscal year of the Borrower and CBIIBorrower, during each year when this Agreement is in effect, a forecast for the current fiscal year Consolidated balance sheets of the Borrower Entities and its Subsidiaries as at the end of such year and the CBII Entities which includes projected consolidated statement related Consolidated statements of income for such fiscal year income, stockholders' equity and a projected consolidated statement of cash flows for such fiscal year of the Borrower and projected consolidated balance sheets, statements of income and statements of cash flows on a quarterly basis its Subsidiaries for such fiscal year; provided , setting forth in each case in comparative form (x) the Consolidated figures for the previous fiscal year and (y) the figures set forth in the budget for such period, all in reasonable detail and accompanied by a report thereon of Xxxxx Xxxxxxxx LLP or other reputable firm of independent public accountants, which report shall state that such consolidated financial statements present fairly the parties acknowledge that financial position of the information Borrower and its Subsidiaries as at the dates indicated and the results of their operations and their cash flows for the periods indicated in such forecasts is not compiled or presented in accordance conformity with GAAP and may not necessarily be presented applied on a basis consistent with prior years (except as otherwise specified in such report) and that the audit by such accountants in connection with such Consolidated financial statements has been made in accordance with GAAP; provided that so long as the Borrower is subject to the reporting provisions of the Exchange Act, timely delivery of copies of the Borrower’s Financial Statements to be delivered pursuant to Section 5.01(a's annual report on Form 10-K for such period will satisfy the requirements of this paragraph (i) (except for the requirement included in clause (y) above);
(xiiii) As soon as possible and in no event not later than the later sixtieth day after the end of (A) any each of CBII’s or the first three quarterly fiscal periods in each fiscal year of the Borrower’s officers or directors learning thereof or (B) five Business Days prior to the occurrence of any event or circumstance (except for asset losses in which case as promptly as is reasonable after such asset loss) that would require a prepayment pursuant to Section 2.06(c), the statement of the Chief Financial Officer, Chief Accounting Officer or Treasurer Consolidated balance sheets of the Borrower and its Subsidiaries as at the end of such period and the related Consolidated statements of income, stockholders' equity and cash flows of the Borrower and its Subsidiaries for such period and (in the case of the second and third quarterly periods) for the period from the beginning of the current fiscal year to the end of such quarterly period, setting forth in each case in comparative form (x) the details thereof;
consolidated figures for the corresponding periods of the previous fiscal year and (xiiiy) As soon as possible the figures set forth in the budget for such period, all in reasonable detail and in no event later than 30 days after the receipt thereof certified by any Loan Party (or subsequent determination after Due Inquiry by an a principal financial officer of the Borrower as presenting fairly, in accordance with GAAP (except for the absence of notes thereto) applied (except as specifically set forth therein) on a basis consistent with such prior fiscal periods, the information contained therein, subject to changes resulting from normal year-end audit adjustments; provided that it could reasonably be expected to result in a Material Adverse Effect), a copy of any notice, summons, citations or other written communications concerning any actual, alleged, suspected or threatened violation of any Environmental Law or any liability of any Loan Party for Environmental Damages that in any such case could reasonably be expected to result in a Material Adverse Effect;
(xiv) Such other instruments, agreements, certificates, opinions, statements, documents and information relating so long as the Borrower is subject to the properties, operations or condition (financial or otherwise) reporting provisions of the Significant PartiesExchange Act, and compliance by timely delivery of copies of the Significant Parties with Borrower's quarterly report on Form 10-Q for such period will satisfy the terms requirements of this Agreement and the other Credit Documents as the Administrative Agent or any Lender paragraph (through the Administrative Agent) may from time to time reasonably request;
(xv) As soon as available and in no event later than five Business Days after any of CBII’s or the Borrower’s officers or directors receive notice or become aware of any actions (including derivative actions), suits, proceedings or investigations that are pending or, to the knowledge of any of CBII’s or the Borrower’s officers or directors, threatened against any Significant Party at law or in equity in any court, arbitration proceeding or before any other Governmental Authority which seek to enjoin, either directly or indirectly, the execution, delivery or performance by any Loan Party of the Credit Documents or the transactions contemplated thereby;
(xvi) As soon as available and in no event later than 120 days after the close of each fiscal year of CBII, a written supplement to Schedule 4.01(wii) (setting forth a true and complete listing of all insurance maintained by except for the Significant Partiesrequirement included in clause (y) above);
(xvii) Within 120 days after the close of each fiscal year of CBII, a written supplement disclosing any matters required to update factual matters relating to Section 4.01
Appears in 2 contracts
Samples: Convertible Note and Warrant Purchase Agreement (Environmental Tectonics Corp), Convertible Note and Warrant Purchase Agreement (Lenfest H F)
Financial Statements, Reports. The Borrower shall furnish deliver or cause to be delivered to Lender each month, a detailed report showing the progress of the Work. In addition to such progress reports and any other financial statements required to be delivered to Lender pursuant to the Administrative Agent provisions of any of the other Loan Documents, Borrower will from time to time furnish or cause to be furnished to Lender such information and reports, financial and otherwise, concerning each Obligor, the performance of the Work and the operation of the Project as Lender reasonably requires, including, without limitation, the following:
(ia) As soon as available and in no event later than 60 days after the last day of each of the first three fiscal quarters of each fiscal year of the BorrowerUpon construction completion, a copy of the Financial Statements of the Borrower Entities within ninety (prepared on a consolidated basis90) for the fiscal year to date, certified by the Chief Accounting Officer or the Chief Financial Officer of the Borrower to present fairly in all material respects the financial condition, results of operations, cash flows, and other information reflected therein and to have been prepared in accordance with GAAP (subject to normal year end audit adjustments and omission of footnotes and statement of shareholder’s equity);
(ii) As soon as available and in no event later than 120 days after the close of each fiscal year of the Borrower, copies of (A) the audited consolidated Financial Statements of the Borrower Entities for such year, audited by Ernst & Young LLP or other independent certified public accountants of recognized national standing and registered with the Public Company Accounting Oversight Board and (B) copies of the unqualified opinions of such accountants;
(iii) Commencing with the fiscal quarter ended June 30, 2008, as soon as available and in no event later than 60 days after the last day of each of the first three fiscal quarters of each fiscal year in respect of quarterly Financial Statements of the Borrower Entities, 90 days after the close of each fiscal year in respect of yearly Financial Statements of the CBII Entities and 120 days after the close of each fiscal year in respect of yearly Financial Statements of the Borrower Entities in accordance with clause (i) above, clause (v) below and clause (ii) above, respectively, a compliance certificate of the Chief Accounting Officer or Treasurer of the Borrower (a “Compliance Certificate”) in substantially the form of Exhibit G-1; provided, however, that the only calculations to be provided in the Compliance Certificate delivered in connection with yearly Financial Statements of the CBII Entities shall be with respect to the Consolidated Adjusted Leverage Ratio;
(iv) As soon as available and in no event later than 45 days after the last day of each of the first three fiscal quarters of each fiscal year of CBII, a copy of the Quarterly Report for CBII on Form 10-Q for such quarter and for the fiscal year to date; provided that such information, to the extent the Borrower directly or indirectly provides the Administrative Agent with written notice and an appropriate internet link thereto, shall be accessed by Lenders on XXXXX;
(v) As soon as available and in no event later than 90 days after the close of each fiscal year of CBII, (A) copies of the Annual Report for CBII on Form 10-K for such year, audited by Ernst & Young LLP or other independent certified public accountants of recognized national standing and registered with the Public Company Accounting Oversight Board and (B) copies of the unqualified opinions of such accountants; provided that such information, to the extent the Borrower directly or indirectly provides the Administrative Agent with written notice and an appropriate internet link thereto, shall be accessed by Lenders on XXXXX;
(A) As soon as available and in no event later than 120 days after the close of each fiscal year of CBII, (1) a written supplement to Schedule 4.01(n) (setting forth all necessary Trademark information as set forth in Section 4.01(n) and relating to the Trademarks that are material to the conduct of the Significant Parties’ respective businesses as then operated), (2) a written supplement to Schedule 3.06 to each Security Agreement, (3) any additional disclosures under Section 4.01(n) after Due Inquiry and (4) any additional disclosures to be provided on an annual basis under the Security Documents and (B) promptly, but in any event within a reasonable time after any officer of CBII or the Borrower obtains knowledge of the occurrence of an event that could reasonably be expected to result in a Material Adverse Effect on any of the Principal Trademarks or the Trademark Licenses, give the Administrative Agent notice of the occurrence of any such event;
(vii) (A) As soon as available and in no event later than 120 days after the close of each fiscal year of CBII, a written supplement to Schedule 4.01(q) (setting forth each of the US Subsidiaries, each of the Significant Subsidiaries and each of the De Minimis US Subsidiaries, its jurisdiction of organization, the classes of its Equity Securities, the number of shares of each such class issued and outstanding, the percentages of shares of each such class owned directly or indirectly by CBII or the Borrower and whether CBII or the Borrower owns such shares directly or, if not, the CBII Entities that own such shares and the number of shares and percentages of shares of each such class owned directly or indirectly by such CBII Entities) and (B) promptly upon the reasonable request of the Administrative Agent and in no event more often than annually, a current hierarchy report for the CBII Entities, in the form and with the substance of the hierarchy report delivered pursuant to Section 3.01(g)(iii);
(viii) As soon as possible and in no event later than 30 days after any officer or director of any Significant Party knows of the occurrence or existence of (A) any ERISA Event under any Pension Plan or Multiemployer Plan which, either individually or in the aggregate, could reasonably be expected to have a Material Adverse Effect, (B) any actual or threatened litigation, suits, claims, disputes or investigations against any Significant Party involving potential monetary damages or in which injunctive relief or similar relief is sought, which could reasonably be expected to have a Material Adverse Effect, (C) any other event or condition which, either individually or in the aggregate, could reasonably be expected to have a Material Adverse Effect, including any of the following which could reasonably be expected to have a Material Adverse Effect: (1) breach or non-performance of, or any default under, a Contractual Obligation of any Significant Party, (2) any dispute, litigation, investigation, proceeding or suspension between any Significant Party and any Governmental Authority or (3) the commencement of, or any material development in, any litigation or proceeding affecting any Significant Party, including pursuant to any applicable Environmental Laws, or (D) any Default, the statement of the Chief Accounting Officer, Chief Financial Officer, or Treasurer of the Borrower setting forth details of such event, condition or Default and the action which CBII or the Borrower proposes to take with respect thereto. Each notice pursuant to this Section 5.01(a)(viii) shall be accompanied by a statement of an Officer of the Borrower setting forth details of the occurrence referred to therein and stating what action CBII or the Borrower has taken and proposes to take with respect thereto. Each notice pursuant to this Section 5.01(a)(viii) shall describe with particularity any and all provisions of this Agreement or other Credit Document that have been breached;
(ix) In no event later than five Business Days after they are sent, made available or filed, copies of (A) all registration statements and reports filed by any CBII Entities with any securities exchange or the United States Securities and Exchange Commission (including all 10-Q, 10-K and 8-K reports), (B) all reports, proxy statements and Financial Statements sent or made available by CBII to its Equity Securities holders and (C) all press releases and other similar public announcements concerning any material developments in the business of CBII made available by CBII to the public generally; provided that such information, to the extent the Borrower directly or indirectly provides the Administrative Agent with written notice and an appropriate internet link thereto, shall be accessed by Lenders on XXXXX;
(x) As soon as available and in no event later than 30 days after they are filed, copies of all IRS Form 5500 reports for all Pension Plans required to file such form;
(xi) Within the earlier to occur of (i) five days after the Board of Directors of the Borrower or CBII shall have publicly announced the earnings for the most recently completed fiscal year of the Borrower or CBII and (ii) 60 days after the end of each fiscal year (ending July 31 of the Borrower each year) and CBII, during each year when this Agreement is in effect, a forecast for the current fiscal year of the Borrower Entities and the CBII Entities which includes projected consolidated statement of income for such fiscal year and a projected consolidated statement of cash flows for such fiscal year and projected consolidated balance sheets, statements of income and statements of cash flows on a quarterly basis for such fiscal year; provided that the parties acknowledge that the information in such forecasts is not compiled or presented in accordance with GAAP and may not necessarily be presented on a basis consistent with the Borrower’s Financial Statements to be delivered pursuant to Section 5.01(a);
within sixty (xii60) As soon as possible and in no event later than the later of (A) any of CBII’s or the Borrower’s officers or directors learning thereof or (B) five Business Days prior to the occurrence of any event or circumstance (except for asset losses in which case as promptly as is reasonable after such asset loss) that would require a prepayment pursuant to Section 2.06(c), the statement of the Chief Financial Officer, Chief Accounting Officer or Treasurer of the Borrower setting forth the details thereof;
(xiii) As soon as possible and in no event later than 30 days after the receipt thereof by any Loan Party (or subsequent determination after Due Inquiry by an officer end of each fiscal quarter, compiled financial statements of the Borrower that it could reasonably be expected Project on a form acceptable to result in Lender, containing income and expense statements and a Material Adverse Effect), a copy of any notice, summons, citations or other written communications concerning any actual, alleged, suspected or threatened violation of any Environmental Law or any liability of any Loan Party for Environmental Damages that in any such case could reasonably be expected to result in a Material Adverse Effect;balance sheet.
(xivb) Such other instruments, agreements, certificates, opinions, statements, documents and information relating to the properties, operations or condition Within ninety (financial or otherwise90) of the Significant Parties, and compliance by the Significant Parties with the terms of this Agreement and the other Credit Documents as the Administrative Agent or any Lender (through the Administrative Agent) may from time to time reasonably request;
(xv) As soon as available and in no event later than five Business Days after any of CBII’s or the Borrower’s officers or directors receive notice or become aware of any actions (including derivative actions), suits, proceedings or investigations that are pending or, to the knowledge of any of CBII’s or the Borrower’s officers or directors, threatened against any Significant Party at law or in equity in any court, arbitration proceeding or before any other Governmental Authority which seek to enjoin, either directly or indirectly, the execution, delivery or performance by any Loan Party of the Credit Documents or the transactions contemplated thereby;
(xvi) As soon as available and in no event later than 120 days after the close end of each fiscal year of CBIIyear, a written supplement financial statements for each Guarantor, such financial statements to Schedule 4.01(w) (setting forth a true be on Lender’s standard form or another form acceptable to Lender, and complete listing of all insurance maintained certified by such Guarantor as fairly and accurately presenting the Significant Parties);information contained therein.
(xviic) Within 120 thirty (30) days of the filing thereof (but not later than April 1 unless proper extension requests have been filed and copies delivered to Lender within ten days of the extended filing date), copies of the federal and state income tax returns for each Obligor, together with all supporting schedules.
(d) Upon construction completion, within thirty (30) days after the close end of each fiscal year of CBIIquarter, a written supplement disclosing any matters required rent roll covering all leases of space in the Project, on a form acceptable to update factual matters relating to Section 4.01Lender, and certified by the chief financial officer of Borrower as fairly and accurately presenting the information contained therein.
(e) Upon request from Lender, leasing updates, general building information, projected tax expenses, tax information, and applicable market data.
Appears in 2 contracts
Samples: Construction Loan Agreement (Campus Crest Communities, Inc.), Construction Loan Agreement (Campus Crest Communities, Inc.)
Financial Statements, Reports. The Borrower shall furnish to the Administrative Agent the following:
(i) As soon as available and in no event later than 60 days after the last day of each audited consolidated balance sheet of the first three fiscal quarters Company and its Subsidiaries as of each fiscal year of the BorrowerDecember 31, a copy of the Financial 2000, together with its audited consolidated Statements of the Borrower Entities (prepared on a consolidated basis) Operations and Comprehensive Loss, Statements of Changes in Stockholders' Equity and Consolidated Statements of Cash Flows for the fiscal year to datethen ended (collectively, certified by the Chief Accounting Officer or the Chief Financial Officer of the Borrower to present "FINANCIAL STATEMENTS") fairly present, in all material respects the financial condition, results of operations, cash flows, and other information reflected therein and to have been prepared in accordance with GAAP GAAP, the consolidated financial condition of the Company and its Subsidiaries and the consolidated results of their operations, changes in stockholders' equity and cash flows as of the dates and for the periods referred to. There are no material Liabilities of the Company or any of its Subsidiaries as of the date of such balance sheet which are not reflected therein or in the notes thereto, and there has been no Material Adverse Effect since December 31, 2000. The Company has made available to the Purchasers each registration statement, report, proxy statement or information statement filed by it since December 31, 2000 (subject to normal the "AUDIT DATE"), including (i) the Company's Annual Report on Form 10-K for the year end audit adjustments ended December 31, 2000, together with all amendments thereto, and omission of footnotes and statement of shareholder’s equity);
(ii) As soon as available and in no event later than 120 days after the close of each fiscal year of the Borrower, copies of (A) the audited consolidated Financial Statements of the Borrower Entities for such year, audited by Ernst & Young LLP or other independent certified public accountants of recognized national standing and registered with the Public Company Accounting Oversight Board and (B) copies of the unqualified opinions of such accountants;
(iii) Commencing with the fiscal quarter ended June 30, 2008, as soon as available and in no event later than 60 days after the last day of each of the first three fiscal quarters of each fiscal year in respect of quarterly Financial Statements of the Borrower Entities, 90 days after the close of each fiscal year in respect of yearly Financial Statements of the CBII Entities and 120 days after the close of each fiscal year in respect of yearly Financial Statements of the Borrower Entities in accordance with clause (i) above, clause (v) below and clause (ii) above, respectively, a compliance certificate of the Chief Accounting Officer or Treasurer of the Borrower (a “Compliance Certificate”) in substantially the form of Exhibit G-1; provided, however, that the only calculations to be provided in the Compliance Certificate delivered in connection with yearly Financial Statements of the CBII Entities shall be with respect to the Consolidated Adjusted Leverage Ratio;
(iv) As soon as available and in no event later than 45 days after the last day of each of the first three fiscal quarters of each fiscal year of CBII, a copy of the Company's Quarterly Report for CBII on Form 10-Q for such quarter and for the fiscal year to date; provided that such informationthree months ended March 31, 2001, together with amendments thereto filed with the SEC prior to the extent date hereof, each in the Borrower directly form (including exhibits, annexes and any amendments thereto) filed with the SEC (collectively, including any such reports filed subsequent to the date hereof, the "REPORTS"). As of their respective dates, the Reports did not, and any Reports filed with the SEC subsequent to the date hereof will not, contain any untrue statement of a material fact or indirectly provides omit to state a material fact required to be stated therein or necessary to make the Administrative Agent statements made therein, in light of the circumstances in which they were made, not misleading. Each of the consolidated balance sheets included in or incorporated by reference into any Reports filed with written notice and an appropriate internet link thereto, shall be accessed by Lenders on XXXXX;
(v) As soon as available and in no event later than 90 days the SEC after the close of each fiscal year of CBIIdate hereof (including the related notes and schedules) will fairly present in all material respects, (A) copies the consolidated financial position of the Annual Report for CBII on Form 10-K for such year, audited by Ernst & Young LLP or other independent certified public accountants Company and its Subsidiaries as of recognized national standing and registered with the Public Company Accounting Oversight Board and (B) copies of the unqualified opinions of such accountants; provided that such information, to the extent the Borrower directly or indirectly provides the Administrative Agent with written notice and an appropriate internet link thereto, shall be accessed by Lenders on XXXXX;
(A) As soon as available and in no event later than 120 days after the close of each fiscal year of CBII, (1) a written supplement to Schedule 4.01(n) (setting forth all necessary Trademark information as set forth in Section 4.01(n) and relating to the Trademarks that are material to the conduct of the Significant Parties’ respective businesses as then operated), (2) a written supplement to Schedule 3.06 to each Security Agreement, (3) any additional disclosures under Section 4.01(n) after Due Inquiry and (4) any additional disclosures to be provided on an annual basis under the Security Documents and (B) promptly, but in any event within a reasonable time after any officer of CBII or the Borrower obtains knowledge of the occurrence of an event that could reasonably be expected to result in a Material Adverse Effect on any of the Principal Trademarks or the Trademark Licenses, give the Administrative Agent notice of the occurrence of any such event;
(vii) (A) As soon as available and in no event later than 120 days after the close of each fiscal year of CBII, a written supplement to Schedule 4.01(q) (setting forth each of the US Subsidiaries, each of the Significant Subsidiaries its date and each of the De Minimis US Subsidiaries, its jurisdiction consolidated statements of organization, the classes of its Equity Securities, the number of shares of each such class issued operations and outstanding, the percentages of shares of each such class owned directly or indirectly by CBII or the Borrower and whether CBII or the Borrower owns such shares directly or, if not, the CBII Entities that own such shares and the number of shares and percentages of shares of each such class owned directly or indirectly by such CBII Entities) and (B) promptly upon the reasonable request of the Administrative Agent and in no event more often than annually, a current hierarchy report for the CBII Entities, in the form and with the substance of the hierarchy report delivered pursuant to Section 3.01(g)(iii);
(viii) As soon as possible and in no event later than 30 days after any officer or director of any Significant Party knows of the occurrence or existence of (A) any ERISA Event under any Pension Plan or Multiemployer Plan which, either individually or in the aggregate, could reasonably be expected to have a Material Adverse Effect, (B) any actual or threatened litigation, suits, claims, disputes or investigations against any Significant Party involving potential monetary damages or in which injunctive relief or similar relief is sought, which could reasonably be expected to have a Material Adverse Effect, (C) any other event or condition which, either individually or in the aggregate, could reasonably be expected to have a Material Adverse Effect, including any of the following which could reasonably be expected to have a Material Adverse Effect: (1) breach or non-performance of, or any default under, a Contractual Obligation of any Significant Party, (2) any dispute, litigation, investigation, proceeding or suspension between any Significant Party and any Governmental Authority or (3) the commencement of, or any material development in, any litigation or proceeding affecting any Significant Party, including pursuant to any applicable Environmental Laws, or (D) any Default, the statement of the Chief Accounting Officer, Chief Financial Officer, or Treasurer of the Borrower setting forth details of such event, condition or Default and the action which CBII or the Borrower proposes to take with respect thereto. Each notice pursuant to this Section 5.01(a)(viii) shall be accompanied by a statement of an Officer of the Borrower setting forth details of the occurrence referred to therein and stating what action CBII or the Borrower has taken and proposes to take with respect thereto. Each notice pursuant to this Section 5.01(a)(viii) shall describe with particularity any and all provisions of this Agreement or other Credit Document that have been breached;
(ix) In no event later than five Business Days after they are sent, made available or filed, copies of (A) all registration statements and reports filed by any CBII Entities with any securities exchange or the United States Securities and Exchange Commission (including all 10-Q, 10-K and 8-K reports), (B) all reports, proxy statements and Financial Statements sent or made available by CBII to its Equity Securities holders and (C) all press releases and other similar public announcements concerning any material developments in the business of CBII made available by CBII to the public generally; provided that such information, to the extent the Borrower directly or indirectly provides the Administrative Agent with written notice and an appropriate internet link thereto, shall be accessed by Lenders on XXXXX;
(x) As soon as available and in no event later than 30 days after they are filed, copies of all IRS Form 5500 reports for all Pension Plans required to file such form;
(xi) Within the earlier to occur of (i) five days after the Board of Directors of the Borrower or CBII shall have publicly announced the earnings for the most recently completed fiscal year of the Borrower or CBII and (ii) 60 days after the end of each fiscal year of the Borrower and CBII, during each year when this Agreement is in effect, a forecast for the current fiscal year of the Borrower Entities and the CBII Entities which includes projected consolidated statement of income for such fiscal year and a projected consolidated statement of cash flows for such fiscal year and projected consolidated balance sheetscomprehensive loss, statements of income changes in stockholders' equity and statements of cash flows on a quarterly basis included in or incorporated by reference into any such Reports (including any related notes and schedules) will fairly present in all material respects the results of operations, retained earnings and cash flows, as the case may be, of Company and its Subsidiaries for such fiscal the periods set forth therein (subject, in the case of unaudited statements, to the absence of complete notes and to normal, recurring, year; provided -end audit adjustments that the parties acknowledge that the information will not be material in such forecasts is not compiled amount or presented effect), in each case in accordance with GAAP and consistently applied during the periods involved, except as may not necessarily be presented on a basis consistent with the Borrower’s Financial Statements to be delivered pursuant to Section 5.01(a);
(xii) As soon as possible and in no event later than the later of (A) any of CBII’s or the Borrower’s officers or directors learning thereof or (B) five Business Days prior to the occurrence of any event or circumstance (except for asset losses in which case as promptly as is reasonable after such asset loss) that would require a prepayment pursuant to Section 2.06(c), the statement of the Chief Financial Officer, Chief Accounting Officer or Treasurer of the Borrower setting forth the details thereof;
(xiii) As soon as possible and in no event later than 30 days after the receipt thereof by any Loan Party (or subsequent determination after Due Inquiry by an officer of the Borrower that it could reasonably be expected to result in a Material Adverse Effect), a copy of any notice, summons, citations or other written communications concerning any actual, alleged, suspected or threatened violation of any Environmental Law or any liability of any Loan Party for Environmental Damages that in any such case could reasonably be expected to result in a Material Adverse Effect;
(xiv) Such other instruments, agreements, certificates, opinions, statements, documents and information relating to the properties, operations or condition (financial or otherwise) of the Significant Parties, and compliance by the Significant Parties with the terms of this Agreement and the other Credit Documents as the Administrative Agent or any Lender (through the Administrative Agent) may from time to time reasonably request;
(xv) As soon as available and in no event later than five Business Days after any of CBII’s or the Borrower’s officers or directors receive notice or become aware of any actions (including derivative actions), suits, proceedings or investigations that are pending or, to the knowledge of any of CBII’s or the Borrower’s officers or directors, threatened against any Significant Party at law or in equity in any court, arbitration proceeding or before any other Governmental Authority which seek to enjoin, either directly or indirectly, the execution, delivery or performance by any Loan Party of the Credit Documents or the transactions contemplated thereby;
(xvi) As soon as available and in no event later than 120 days after the close of each fiscal year of CBII, a written supplement to Schedule 4.01(w) (setting forth a true and complete listing of all insurance maintained by the Significant Parties);
(xvii) Within 120 days after the close of each fiscal year of CBII, a written supplement disclosing any matters required to update factual matters relating to Section 4.01noted therein.
Appears in 2 contracts
Samples: Preferred Stock Purchase Agreement (Optimark Holdings Inc), Preferred Stock Purchase Agreement (Softbank Holdings Inc Et Al)
Financial Statements, Reports. The Borrower shall furnish Provide Bank with the following by submitting to the Administrative Agent Financial Statement Repository or otherwise submitting to Bank: at. a Borrowing Base Statement (and any schedules related thereto and including any other information requested by Bank with respect to Borrower’s Accounts, including, without limitation, an accounts receivable ledger report), (i) at all times when Advances are outstanding, within seven (7) Business Days after the following:end of each month, and (ii) at all other times, within five (5) days after Magnite files its 10-Q and 10-K reports with the SEC;
(i) As soon as available and in no event later than 60 days after the last day of each of the first three fiscal quarters of each fiscal year of the Borroweraccounts receivable agings, a copy of the Financial Statements of the Borrower Entities (prepared on a consolidated basis) for the fiscal year to aged by invoice date, certified by the Chief Accounting Officer or the Chief Financial Officer of the Borrower to present fairly in all material respects the financial condition, results of operations, cash flows, and other information reflected therein and to have been prepared in accordance with GAAP (subject to normal year end audit adjustments and omission of footnotes and statement of shareholder’s equity);
(ii) As soon as available accounts payable agings, aged by invoice date, and in no event later than 120 days after the close of each fiscal year of the Borroweroutstanding or held check registers, copies of (A) the audited consolidated Financial Statements of the Borrower Entities for such yearif any, audited by Ernst & Young LLP or other independent certified public accountants of recognized national standing and registered with the Public Company Accounting Oversight Board and (B) copies of the unqualified opinions of such accountants;
(iii) Commencing with the fiscal quarter ended June 30reconciliations of accounts receivable agings (aged by invoice date), 2008transaction reports, as soon as available a detailed debtor listing, and in no event later than 60 general ledger, within five (5) days after the last day of each of the first three fiscal quarters of each fiscal year in respect of quarterly Financial Statements of the Borrower Entities, 90 days after the close of each fiscal year in respect of yearly Financial Statements of the CBII Entities and 120 days after the close of each fiscal year in respect of yearly Financial Statements of the Borrower Entities in accordance with clause (i) above, clause (v) below and clause (ii) above, respectively, a compliance certificate of the Chief Accounting Officer or Treasurer of the Borrower (a “Compliance Certificate”) in substantially the form of Exhibit G-1; provided, however, that the only calculations to be provided in the Compliance Certificate delivered in connection with yearly Financial Statements of the CBII Entities shall be with respect to the Consolidated Adjusted Leverage Ratio;
(iv) As soon as available and in no event later than 45 days after the last day of each of the first three fiscal quarters of each fiscal year of CBII, a copy of the Quarterly Report for CBII on Form Magnite files its 10-Q for such quarter and for the fiscal year to date; provided that such information, to the extent the Borrower directly or indirectly provides the Administrative Agent with written notice and an appropriate internet link thereto, shall be accessed by Lenders on XXXXX;
(v) As soon as available and in no event later than 90 days after the close of each fiscal year of CBII, (A) copies of the Annual Report for CBII on Form 10-K for such year, audited by Ernst & Young LLP or other independent certified public accountants of recognized national standing and registered reports with the Public Company Accounting Oversight Board and (B) copies SEC; av. a completed Compliance Statement, confirming that, as of the unqualified opinions end of such accountants; provided that such informationthe applicable quarter, to Borrower was in full compliance with all of the extent the Borrower directly or indirectly provides the Administrative Agent with written notice terms and an appropriate internet link theretoconditions of this Agreement, shall be accessed by Lenders on XXXXX;
(A) As soon as available and in no event later than 120 days after the close of each fiscal year of CBII, (1) a written supplement to Schedule 4.01(n) (setting forth all necessary Trademark information as calculations showing compliance with the financial covenants set forth in Section 4.01(nthis Agreement (if applicable) and relating to such other information as Bank may reasonably request, including, without limitation, a statement that at the Trademarks that are material to the conduct end of the Significant Parties’ respective businesses as then operated)such quarter there were no held checks, within five (25) a written supplement to Schedule 3.06 to each Security Agreement, (3) any additional disclosures under Section 4.01(n) after Due Inquiry and (4) any additional disclosures to be provided on an annual basis under the Security Documents and (B) promptly, but in any event within a reasonable time after any officer of CBII or the Borrower obtains knowledge of the occurrence of an event that could reasonably be expected to result in a Material Adverse Effect on any of the Principal Trademarks or the Trademark Licenses, give the Administrative Agent notice of the occurrence of any such event;
(vii) (A) As soon as available and in no event later than 120 days after the close of each fiscal year of CBII, a written supplement to Schedule 4.01(q) (setting forth each of the US Subsidiaries, each of the Significant Subsidiaries and each of the De Minimis US Subsidiaries, Magnite files its jurisdiction of organization, the classes of its Equity Securities, the number of shares of each such class issued and outstanding, the percentages of shares of each such class owned directly or indirectly by CBII or the Borrower and whether CBII or the Borrower owns such shares directly or, if not, the CBII Entities that own such shares and the number of shares and percentages of shares of each such class owned directly or indirectly by such CBII Entities) and (B) promptly upon the reasonable request of the Administrative Agent and in no event more often than annually, a current hierarchy report for the CBII Entities, in the form and with the substance of the hierarchy report delivered pursuant to Section 3.01(g)(iii);
(viii) As soon as possible and in no event later than 30 days after any officer or director of any Significant Party knows of the occurrence or existence of (A) any ERISA Event under any Pension Plan or Multiemployer Plan which, either individually or in the aggregate, could reasonably be expected to have a Material Adverse Effect, (B) any actual or threatened litigation, suits, claims, disputes or investigations against any Significant Party involving potential monetary damages or in which injunctive relief or similar relief is sought, which could reasonably be expected to have a Material Adverse Effect, (C) any other event or condition which, either individually or in the aggregate, could reasonably be expected to have a Material Adverse Effect, including any of the following which could reasonably be expected to have a Material Adverse Effect: (1) breach or non-performance of, or any default under, a Contractual Obligation of any Significant Party, (2) any dispute, litigation, investigation, proceeding or suspension between any Significant Party and any Governmental Authority or (3) the commencement of, or any material development in, any litigation or proceeding affecting any Significant Party, including pursuant to any applicable Environmental Laws, or (D) any Default, the statement of the Chief Accounting Officer, Chief Financial Officer, or Treasurer of the Borrower setting forth details of such event, condition or Default and the action which CBII or the Borrower proposes to take with respect thereto. Each notice pursuant to this Section 5.01(a)(viii) shall be accompanied by a statement of an Officer of the Borrower setting forth details of the occurrence referred to therein and stating what action CBII or the Borrower has taken and proposes to take with respect thereto. Each notice pursuant to this Section 5.01(a)(viii) shall describe with particularity any and all provisions of this Agreement or other Credit Document that have been breached;
(ix) In no event later than five Business Days after they are sent, made available or filed, copies of (A) all registration statements and reports filed by any CBII Entities with any securities exchange or the United States Securities and Exchange Commission (including all 10-Q, Q and 10-K and 8-K reports), (B) all reports, proxy statements and Financial Statements sent or made available by CBII to its Equity Securities holders and (C) all press releases and other similar public announcements concerning any material developments in reports with the business of CBII made available by CBII to the public generallySEC; provided that such information, to the extent the Borrower directly or indirectly provides the Administrative Agent with written notice and an appropriate internet link thereto, shall be accessed by Lenders on XXXXX;
(x) As soon as available and in no event later than 30 days after they are filed, copies of all IRS Form 5500 reports for all Pension Plans required to file such form;
(xi) Within aw. the earlier to occur of (i) five thirty (30) days after the approval by the Board of Directors of the Borrower or CBII shall have publicly announced the earnings for the most recently completed fiscal year of the Borrower or CBII and (ii) 60 sixty (60) days after the end of each fiscal year of the Borrower Borrower, and CBIIcontemporaneously with any updates or amendments thereto, during each year when this Agreement is in effect(A) annual operating budgets (including income statements, a forecast balance sheets and cash flow statements, by quarter) for the current upcoming fiscal year of Borrower, and (B) annual financial projections for the Borrower Entities and the CBII Entities which includes projected consolidated statement of income for such following fiscal year and a projected consolidated statement of cash flows for such fiscal year and projected consolidated balance sheets, statements of income and statements of cash flows (on a quarterly basis for such fiscal year; provided that the parties acknowledge that the information basis), in such forecasts is not compiled or presented in accordance with GAAP and may not necessarily be presented on a basis consistent with the Borrower’s Financial Statements to be delivered pursuant to Section 5.01(a);
(xii) As soon as possible and in no event later than the later of (A) any of CBII’s or the Borrower’s officers or directors learning thereof or (B) five Business Days prior to the occurrence of any event or circumstance (except for asset losses in which each case as promptly as is reasonable after such asset loss) that would require a prepayment pursuant to Section 2.06(c), the statement of the Chief Financial Officer, Chief Accounting Officer or Treasurer of the Borrower setting forth the details thereof;
(xiii) As soon as possible and in no event later than 30 days after the receipt thereof by any Loan Party (or subsequent determination after Due Inquiry by an officer of the Borrower that it could reasonably be expected to result in a Material Adverse Effect), a copy of any notice, summons, citations or other written communications concerning any actual, alleged, suspected or threatened violation of any Environmental Law or any liability of any Loan Party for Environmental Damages that in any such case could reasonably be expected to result in a Material Adverse Effect;
(xiv) Such other instruments, agreements, certificates, opinions, statements, documents and information relating to the properties, operations or condition (financial or otherwise) of the Significant Parties, and compliance approved by the Significant Parties Board, together with any related business forecasts used in the terms preparation of this Agreement and the other Credit Documents as the Administrative Agent or any Lender (through the Administrative Agent) may from time to time reasonably requestsuch annual financial projections;
(xv) As soon as available and in no event later than five Business Days after any of CBII’s or the Borrower’s officers or directors receive notice or become aware of any actions (including derivative actions), suits, proceedings or investigations that are pending or, to the knowledge of any of CBII’s or the Borrower’s officers or directors, threatened against any Significant Party at law or in equity in any court, arbitration proceeding or before any other Governmental Authority which seek to enjoin, either directly or indirectly, the execution, delivery or performance by any Loan Party of the Credit Documents or the transactions contemplated thereby;
(xvi) As soon as available and in no event later than 120 days after the close of each fiscal year of CBII, a written supplement to Schedule 4.01(w) (setting forth a true and complete listing of all insurance maintained by the Significant Parties);
(xvii) Within 120 days after the close of each fiscal year of CBII, a written supplement disclosing any matters required to update factual matters relating to Section 4.01
Appears in 1 contract
Financial Statements, Reports. The Borrower shall furnish Certificates). Sub-sections (a) through (e) of the Loan agreement are amended and restated in their entirety to the Administrative Agent the followingread as follows:
(a) a Borrowing Base Statement (and any schedules related thereto and including any other information requested by Bank with respect to Borrower’s Accounts), including, without limitation, details of Borrower’s recurring revenue, including, without limitation, total MRR and the Annualized Churn Rate, (i) As with each request for an Advance, (ii) quarterly within forty-five (45) days of each quarter end, and (iii) monthly, within 30 days of the end of each calendar month at all times when the sum of Xxxxxxxx’s unrestricted cash and Cash Equivalents held at Bank is below the Testing Threshold;
(b) reserved;
(c) as soon as available and in available, but no event later than 60 (i) forty-five (45) days after the last day of the first three calendar quarters of each fiscal year, and (ii) ninety (90) days after the last day of the last fiscal quarter of each fiscal year, a company-prepared consolidated and consolidating (if applicable) balance sheet, cash flow statement, and income statement covering Borrower’s and each of its Subsidiary’s operations for such calendar quarter in a form acceptable to Bank (the “Quarterly Financial Statements”);
(d) (i) together with the Quarterly Financial Statements, and (ii) within thirty (30) days after the last day of each month (other than the month which is also a fiscal quarter end), a duly completed Compliance Certificate signed by a Responsible Officer, certifying that as of the first three fiscal quarters end of each fiscal year such quarter or month, as applicable, Borrower was in full compliance with all of the Borrowerterms and conditions of this Agreement, and setting forth calculations showing compliance with the financial covenants set forth in this Agreement and such other information as Bank may reasonably request, including, without limitation, a copy statement that at the end of the Financial Statements of the Borrower Entities (prepared on a consolidated basis) for the fiscal year to datesuch month or quarter, certified by the Chief Accounting Officer or the Chief Financial Officer of the Borrower to present fairly in all material respects the financial conditionas applicable, results of operations, cash flows, and other information reflected therein and to have been prepared in accordance with GAAP (subject to normal year end audit adjustments and omission of footnotes and statement of shareholder’s equity)there were no held checks;
(iie) As soon as available and in no event later than 120 days after the close of each fiscal year of the Borrower, copies of within forty-five (A45) the audited consolidated Financial Statements of the Borrower Entities for such year, audited by Ernst & Young LLP or other independent certified public accountants of recognized national standing and registered with the Public Company Accounting Oversight Board and (B) copies of the unqualified opinions of such accountants;
(iii) Commencing with the fiscal quarter ended June 30, 2008, as soon as available and in no event later than 60 days after the last day of each of the first three fiscal quarters of each fiscal year in respect of quarterly Financial Statements of the Borrower Entities, 90 days after the close of each fiscal year in respect of yearly Financial Statements of the CBII Entities and 120 days after the close of each fiscal year in respect of yearly Financial Statements of the Borrower Entities in accordance with clause (i) above, clause (v) below and clause (ii) above, respectively, a compliance certificate of the Chief Accounting Officer or Treasurer of the Borrower (a “Compliance Certificate”) in substantially the form of Exhibit G-1; provided, however, that the only calculations to be provided in the Compliance Certificate delivered in connection with yearly Financial Statements of the CBII Entities shall be with respect to the Consolidated Adjusted Leverage Ratio;
(iv) As soon as available and in no event later than 45 days after the last day of each of the first three fiscal quarters of each fiscal year of CBII, a copy of the Quarterly Report for CBII on Form 10-Q for such quarter and for the fiscal year to date; provided that such information, to the extent the Borrower directly or indirectly provides the Administrative Agent with written notice and an appropriate internet link thereto, shall be accessed by Lenders on XXXXX;
(v) As soon as available and in no event later than 90 days after the close of each fiscal year of CBII, (A) copies of the Annual Report for CBII on Form 10-K for such year, audited by Ernst & Young LLP or other independent certified public accountants of recognized national standing and registered with the Public Company Accounting Oversight Board and (B) copies of the unqualified opinions of such accountants; provided that such information, to the extent the Borrower directly or indirectly provides the Administrative Agent with written notice and an appropriate internet link thereto, shall be accessed by Lenders on XXXXX;
(A) As soon as available and in no event later than 120 days after the close of each fiscal year of CBII, (1) a written supplement to Schedule 4.01(n) (setting forth all necessary Trademark information as set forth in Section 4.01(n) and relating to the Trademarks that are material to the conduct of the Significant Parties’ respective businesses as then operated), (2) a written supplement to Schedule 3.06 to each Security Agreement, (3) any additional disclosures under Section 4.01(n) after Due Inquiry and (4) any additional disclosures to be provided on an annual basis under the Security Documents and (B) promptly, but in any event within a reasonable time after any officer of CBII or the Borrower obtains knowledge of the occurrence of an event that could reasonably be expected to result in a Material Adverse Effect on any of the Principal Trademarks or the Trademark Licenses, give the Administrative Agent notice of the occurrence of any such event;
(vii) (A) As soon as available and in no event later than 120 days after the close of each fiscal year of CBII, a written supplement to Schedule 4.01(q) (setting forth each of the US Subsidiaries, each of the Significant Subsidiaries and each of the De Minimis US Subsidiaries, its jurisdiction of organization, the classes of its Equity Securities, the number of shares of each such class issued and outstanding, the percentages of shares of each such class owned directly or indirectly by CBII or the Borrower and whether CBII or the Borrower owns such shares directly or, if not, the CBII Entities that own such shares and the number of shares and percentages of shares of each such class owned directly or indirectly by such CBII Entities) and (B) promptly upon the reasonable request of the Administrative Agent and in no event more often than annually, a current hierarchy report for the CBII Entities, in the form and with the substance of the hierarchy report delivered pursuant to Section 3.01(g)(iii);
(viii) As soon as possible and in no event later than 30 days after any officer or director of any Significant Party knows of the occurrence or existence of (A) any ERISA Event under any Pension Plan or Multiemployer Plan which, either individually or in the aggregate, could reasonably be expected to have a Material Adverse Effect, (B) any actual or threatened litigation, suits, claims, disputes or investigations against any Significant Party involving potential monetary damages or in which injunctive relief or similar relief is sought, which could reasonably be expected to have a Material Adverse Effect, (C) any other event or condition which, either individually or in the aggregate, could reasonably be expected to have a Material Adverse Effect, including any of the following which could reasonably be expected to have a Material Adverse Effect: (1) breach or non-performance of, or any default under, a Contractual Obligation of any Significant Party, (2) any dispute, litigation, investigation, proceeding or suspension between any Significant Party and any Governmental Authority or (3) the commencement of, or any material development in, any litigation or proceeding affecting any Significant Party, including pursuant to any applicable Environmental Laws, or (D) any Default, the statement of the Chief Accounting Officer, Chief Financial Officer, or Treasurer of the Borrower setting forth details of such event, condition or Default and the action which CBII or the Borrower proposes to take with respect thereto. Each notice pursuant to this Section 5.01(a)(viii) shall be accompanied by a statement of an Officer of the Borrower setting forth details of the occurrence referred to therein and stating what action CBII or the Borrower has taken and proposes to take with respect thereto. Each notice pursuant to this Section 5.01(a)(viii) shall describe with particularity any and all provisions of this Agreement or other Credit Document that have been breached;
(ix) In no event later than five Business Days after they are sent, made available or filed, copies of (A) all registration statements and reports filed by any CBII Entities with any securities exchange or the United States Securities and Exchange Commission (including all 10-Q, 10-K and 8-K reports), (B) all reports, proxy statements and Financial Statements sent or made available by CBII to its Equity Securities holders and (C) all press releases and other similar public announcements concerning any material developments in the business of CBII made available by CBII to the public generally; provided that such information, to the extent the Borrower directly or indirectly provides the Administrative Agent with written notice and an appropriate internet link thereto, shall be accessed by Lenders on XXXXX;
(x) As soon as available and in no event later than 30 days after they are filed, copies of all IRS Form 5500 reports for all Pension Plans required to file such form;
(xi) Within the earlier to occur of (i) five days after the Board of Directors of the Borrower or CBII shall have publicly announced the earnings for the most recently completed fiscal year of the Borrower or CBII and (ii) 60 days after the end of each fiscal year of the Borrower and CBII, during each year when this Agreement is in effectquarter, a forecast for the current fiscal year of the Borrower Entities and the CBII Entities which includes projected consolidated statement of income for such fiscal year and report in a projected consolidated statement of cash flows for such fiscal year and projected consolidated balance sheetsform acceptable to Bank, statements of income and statements of cash flows on a quarterly basis for such fiscal year; provided that the parties acknowledge that the information in such forecasts is not compiled or presented in accordance with GAAP and may not necessarily be presented on a basis consistent with the detailing Borrower’s Financial Statements to be delivered pursuant to Section 5.01(a)total MRR, Annualized Churn Rate, Existing Customer Accounts, CAC and LTV;
(xii) As soon as possible and in no event later than the later of (A) any of CBII’s or the Borrower’s officers or directors learning thereof or (B) five Business Days prior to the occurrence of any event or circumstance (except for asset losses in which case as promptly as is reasonable after such asset loss) that would require a prepayment pursuant to Section 2.06(c), the statement of the Chief Financial Officer, Chief Accounting Officer or Treasurer of the Borrower setting forth the details thereof;
(xiii) As soon as possible and in no event later than 30 days after the receipt thereof by any Loan Party (or subsequent determination after Due Inquiry by an officer of the Borrower that it could reasonably be expected to result in a Material Adverse Effect), a copy of any notice, summons, citations or other written communications concerning any actual, alleged, suspected or threatened violation of any Environmental Law or any liability of any Loan Party for Environmental Damages that in any such case could reasonably be expected to result in a Material Adverse Effect;
(xiv) Such other instruments, agreements, certificates, opinions, statements, documents and information relating to the properties, operations or condition (financial or otherwise) of the Significant Parties, and compliance by the Significant Parties with the terms of this Agreement and the other Credit Documents as the Administrative Agent or any Lender (through the Administrative Agent) may from time to time reasonably request;
(xv) As soon as available and in no event later than five Business Days after any of CBII’s or the Borrower’s officers or directors receive notice or become aware of any actions (including derivative actions), suits, proceedings or investigations that are pending or, to the knowledge of any of CBII’s or the Borrower’s officers or directors, threatened against any Significant Party at law or in equity in any court, arbitration proceeding or before any other Governmental Authority which seek to enjoin, either directly or indirectly, the execution, delivery or performance by any Loan Party of the Credit Documents or the transactions contemplated thereby;
(xvi) As soon as available and in no event later than 120 days after the close of each fiscal year of CBII, a written supplement to Schedule 4.01(w) (setting forth a true and complete listing of all insurance maintained by the Significant Parties);
(xvii) Within 120 days after the close of each fiscal year of CBII, a written supplement disclosing any matters required to update factual matters relating to Section 4.01”
Appears in 1 contract
Samples: Loan and Security Agreement (Weave Communications, Inc.)
Financial Statements, Reports. The Borrower shall and NADG Guarantor will from time to time furnish to the Administrative Agent such information and reports, financial and otherwise, concerning each Obligor and the operation of the Portfolio as Administrative Agent may reasonably require, including, without limitation, the following:
(ia) As soon as available and in no event later than 60 days after the last day of each of the first three fiscal quarters of each fiscal year of the BorrowerQuarterly, a copy of the Financial Statements of the Borrower Entities within forty-five (prepared on a consolidated basis45) for the fiscal year to date, certified by the Chief Accounting Officer or the Chief Financial Officer of the Borrower to present fairly in all material respects the financial condition, results of operations, cash flows, and other information reflected therein and to have been prepared in accordance with GAAP (subject to normal year end audit adjustments and omission of footnotes and statement of shareholder’s equity);
(ii) As soon as available and in no event later than 120 days after the close of each fiscal year of the Borrower, copies of (A) the audited consolidated Financial Statements of the Borrower Entities for such year, audited by Ernst & Young LLP or other independent certified public accountants of recognized national standing and registered with the Public Company Accounting Oversight Board and (B) copies of the unqualified opinions of such accountants;
(iii) Commencing with the fiscal quarter ended June 30, 2008, as soon as available and in no event later than 60 days after the last day of each of the first three fiscal quarters of each fiscal year in respect of quarterly Financial Statements of the Borrower Entities, 90 days after the close of each fiscal year in respect of yearly Financial Statements of the CBII Entities and 120 days after the close of each fiscal year in respect of yearly Financial Statements of the Borrower Entities in accordance with clause (i) above, clause (v) below and clause (ii) above, respectively, a compliance certificate of the Chief Accounting Officer or Treasurer of the Borrower (a “Compliance Certificate”) in substantially the form of Exhibit G-1; provided, however, that the only calculations to be provided in the Compliance Certificate delivered in connection with yearly Financial Statements of the CBII Entities shall be with respect to the Consolidated Adjusted Leverage Ratio;
(iv) As soon as available and in no event later than 45 days after the last day of each of the first three fiscal quarters of each fiscal year of CBII, a copy of the Quarterly Report for CBII on Form 10-Q for such quarter and for the fiscal year to date; provided that such information, to the extent the Borrower directly or indirectly provides the Administrative Agent with written notice and an appropriate internet link thereto, shall be accessed by Lenders on XXXXX;
(v) As soon as available and in no event later than 90 days after the close of each fiscal year of CBII, (A) copies of the Annual Report for CBII on Form 10-K for such year, audited by Ernst & Young LLP or other independent certified public accountants of recognized national standing and registered with the Public Company Accounting Oversight Board and (B) copies of the unqualified opinions of such accountants; provided that such information, to the extent the Borrower directly or indirectly provides the Administrative Agent with written notice and an appropriate internet link thereto, shall be accessed by Lenders on XXXXX;
(A) As soon as available and in no event later than 120 days after the close of each fiscal year of CBII, (1) a written supplement to Schedule 4.01(n) (setting forth all necessary Trademark information as set forth in Section 4.01(n) and relating to the Trademarks that are material to the conduct of the Significant Parties’ respective businesses as then operated), (2) a written supplement to Schedule 3.06 to each Security Agreement, (3) any additional disclosures under Section 4.01(n) after Due Inquiry and (4) any additional disclosures to be provided on an annual basis under the Security Documents and (B) promptly, but in any event within a reasonable time after any officer of CBII or the Borrower obtains knowledge of the occurrence of an event that could reasonably be expected to result in a Material Adverse Effect on any of the Principal Trademarks or the Trademark Licenses, give the Administrative Agent notice of the occurrence of any such event;
(vii) (A) As soon as available and in no event later than 120 days after the close of each fiscal year of CBII, a written supplement to Schedule 4.01(q) (setting forth each of the US Subsidiaries, each of the Significant Subsidiaries and each of the De Minimis US Subsidiaries, its jurisdiction of organization, the classes of its Equity Securities, the number of shares of each such class issued and outstanding, the percentages of shares of each such class owned directly or indirectly by CBII or the Borrower and whether CBII or the Borrower owns such shares directly or, if not, the CBII Entities that own such shares and the number of shares and percentages of shares of each such class owned directly or indirectly by such CBII Entities) and (B) promptly upon the reasonable request of the Administrative Agent and in no event more often than annually, a current hierarchy report for the CBII Entities, in the form and with the substance of the hierarchy report delivered pursuant to Section 3.01(g)(iii);
(viii) As soon as possible and in no event later than 30 days after any officer or director of any Significant Party knows of the occurrence or existence of (A) any ERISA Event under any Pension Plan or Multiemployer Plan which, either individually or in the aggregate, could reasonably be expected to have a Material Adverse Effect, (B) any actual or threatened litigation, suits, claims, disputes or investigations against any Significant Party involving potential monetary damages or in which injunctive relief or similar relief is sought, which could reasonably be expected to have a Material Adverse Effect, (C) any other event or condition which, either individually or in the aggregate, could reasonably be expected to have a Material Adverse Effect, including any of the following which could reasonably be expected to have a Material Adverse Effect: (1) breach or non-performance of, or any default under, a Contractual Obligation of any Significant Party, (2) any dispute, litigation, investigation, proceeding or suspension between any Significant Party and any Governmental Authority or (3) the commencement of, or any material development in, any litigation or proceeding affecting any Significant Party, including pursuant to any applicable Environmental Laws, or (D) any Default, the statement of the Chief Accounting Officer, Chief Financial Officer, or Treasurer of the Borrower setting forth details of such event, condition or Default and the action which CBII or the Borrower proposes to take with respect thereto. Each notice pursuant to this Section 5.01(a)(viii) shall be accompanied by a statement of an Officer of the Borrower setting forth details of the occurrence referred to therein and stating what action CBII or the Borrower has taken and proposes to take with respect thereto. Each notice pursuant to this Section 5.01(a)(viii) shall describe with particularity any and all provisions of this Agreement or other Credit Document that have been breached;
(ix) In no event later than five Business Days after they are sent, made available or filed, copies of (A) all registration statements and reports filed by any CBII Entities with any securities exchange or the United States Securities and Exchange Commission (including all 10-Q, 10-K and 8-K reports), (B) all reports, proxy statements and Financial Statements sent or made available by CBII to its Equity Securities holders and (C) all press releases and other similar public announcements concerning any material developments in the business of CBII made available by CBII to the public generally; provided that such information, to the extent the Borrower directly or indirectly provides the Administrative Agent with written notice and an appropriate internet link thereto, shall be accessed by Lenders on XXXXX;
(x) As soon as available and in no event later than 30 days after they are filed, copies of all IRS Form 5500 reports for all Pension Plans required to file such form;
(xi) Within the earlier to occur of (i) five days after the Board of Directors of the Borrower or CBII shall have publicly announced the earnings for the most recently completed fiscal year of the Borrower or CBII and (ii) 60 days after the end of each fiscal year calendar quarter, a current rent roll and operating statements for each Portfolio Property, certified by Borrower as true and complete.
(b) Within, ninety (90) days after each June 30, and one hundred twenty (120) days after each December 31, an executed Compliance Certificate from Borrower calculating the Debt Service Coverage Ratio (Imputed Rate).
(c) Within fifteen (15) days of the Borrower filing thereof (but not later than April 15 unless proper extension requests have been filed and CBII, during each year when this Agreement is in effect, a forecast for the current fiscal year copies delivered to Administrative Agent within ten (10) days of the Borrower Entities extended filing date), copies of the federal and the CBII Entities which includes projected consolidated statement of state income tax returns for such fiscal year and a projected consolidated statement of cash flows for such fiscal year and projected consolidated balance sheets, statements of income and statements of cash flows on a quarterly basis for such fiscal year; provided that the parties acknowledge that the information in such forecasts is not compiled or presented in accordance with GAAP and may not necessarily be presented on a basis consistent with the Borrower’s Financial Statements to be delivered pursuant to Section 5.01(a);.
(xiid) As soon as possible and in no event later than Quarterly, within ninety (90) days after the later end of (A) any of CBII’s or the Borrower’s officers or directors learning thereof or (B) five Business Days prior to the occurrence of any event or circumstance each calendar quarter (except for asset losses in the annual statement, which case as promptly as is reasonable after such asset lossone hundred twenty (120) that would require a prepayment pursuant to Section 2.06(cdays), the statement management-prepared financial statements of the Chief Financial Officer, Chief Accounting Officer or Treasurer of the Borrower setting forth the details thereof;NADG Guarantor.
(xiiie) As soon as possible and in no event later than 30 Annually, within one hundred twenty (120) days after the receipt thereof end of each calendar year, audited financial statements of NADG Guarantor which have been reviewed by any Loan Party (or subsequent determination after Due Inquiry by an officer of the Borrower that it could a certified public accountant reasonably be expected acceptable to result in a Material Adverse Effect), a copy of any notice, summons, citations or other written communications concerning any actual, alleged, suspected or threatened violation of any Environmental Law or any liability of any Loan Party for Environmental Damages that in any such case could reasonably be expected to result in a Material Adverse Effect;Administrative Agent.
(xivf) Such other instrumentsWithin ninety (90) days after each June 30 and within one hundred twenty (120) days after each December 31, agreements, certificates, opinions, statements, documents and information relating an executed Compliance Certificate in the form attached to the propertiesGuaranty executed by NADG Guarantor from NADG Guarantor confirming the Net Worth and Liquidity covenants of NADG Guarantor contained in Sections 11 and 12 of such Guaranty.
(g) Upon request from Administrative Agent, operations projected tax expenses, tax information, applicable market data and any other information related to the Obligors or condition (financial or otherwise) of the Significant Parties, and compliance Portfolio reasonably requested by the Significant Parties with the terms of this Agreement and the other Credit Documents as the Administrative Agent or any Lender (through the Administrative Agent) may from time to time reasonably request;
(xv) As soon as available and in no event later than five Business Days after any the possession or control of CBII’s Borrower or the Borrower’s officers or directors receive notice or become aware of any actions (including derivative actions), suits, proceedings or investigations that are pending or, to the knowledge of any of CBII’s or the Borrower’s officers or directors, threatened against any Significant Party at law or in equity in any court, arbitration proceeding or before any other Governmental Authority which seek to enjoin, either directly or indirectly, the execution, delivery or performance by any Loan Party of the Credit Documents or the transactions contemplated thereby;
(xvi) As soon as available and in no event later than 120 days after the close of each fiscal year of CBII, a written supplement to Schedule 4.01(w) (setting forth a true and complete listing of all insurance maintained by the Significant Parties);
(xvii) Within 120 days after the close of each fiscal year of CBII, a written supplement disclosing any matters required to update factual matters relating to Section 4.01NADG Guarantor.
Appears in 1 contract
Financial Statements, Reports. The Borrower shall furnish Provide Bank with the following by submitting to the Administrative Agent the followingFinancial Statement Repository:
(ia) As a Borrowing Base Statement (and any schedules related thereto and including any other information requested by Bank with respect to Borrower’s Inventory, including monthly perpetual inventory reports for Inventory valued on a first-in, first-out basis at cost (in accordance with GAAP), Inventory agings, sell through reports, and such other inventory reports as are requested by Bank in its good faith business judgment), within seven (7) days after the end of each month;
(b) within seven (7) days after the end of each month, (A) monthly accounts receivable agings, aged by invoice date, (B) monthly accounts payable agings, aged by invoice date, and outstanding or held check registers, if any, and (C) monthly reconciliations of accounts receivable agings (aged by invoice date), transaction reports, and general ledger, each in form reasonably acceptable to Bank;
(c) as soon as available and in available, but no event later than 60 thirty (30) days after the last day of each of the first three fiscal quarters of each fiscal year of the Borrowermonth, a copy of company prepared consolidated and consolidating balance sheet and income statement covering Borrower’s and Borrower’s Subsidiaries consolidated and consolidating operations for such month in a form acceptable to Bank in its reasonable discretion (the “Monthly Financial Statements of the Borrower Entities (prepared on a consolidated basis) for the fiscal year to date, certified by the Chief Accounting Officer or the Chief Financial Officer of the Borrower to present fairly in all material respects the financial condition, results of operations, cash flows, and other information reflected therein and to have been prepared in accordance with GAAP (subject to normal year end audit adjustments and omission of footnotes and statement of shareholder’s equityStatements”);
(iid) As soon as available and in no event later than 120 days after the close of each fiscal year of the Borrower, copies of within thirty (A30) the audited consolidated Financial Statements of the Borrower Entities for such year, audited by Ernst & Young LLP or other independent certified public accountants of recognized national standing and registered with the Public Company Accounting Oversight Board and (B) copies of the unqualified opinions of such accountants;
(iii) Commencing with the fiscal quarter ended June 30, 2008, as soon as available and in no event later than 60 days after the last day of each month and together with the Monthly Financial Statements, a completed Compliance Statement, confirming that, as of the first three fiscal quarters end of such month, Borrower was in full compliance with all of the terms and conditions of this Agreement, and setting forth calculations showing compliance with the financial covenants set forth in this Agreement and such other information as Bank may reasonably request, including, without limitation, a statement that at the end of such month there were no held checks;
(e) within thirty (30) days after the earlier to occur of (i) Board approval or (ii) the end of each fiscal year of Borrower, and contemporaneously with any updates or amendments thereto, (A) annual operating budgets (including income statements, balance sheets and cash flow statements, by month) for the upcoming fiscal year of Borrower, and (B) annual financial projections for the following fiscal year (on a quarterly basis), in each case, as approved by the Board and commensurate in form and substance with those provided to Borrower’s venture capital investors, together with any related business forecasts used in the preparation of such annual financial projections;
(f) as soon as available, and in any event within one hundred eighty (180) days following the end of Borrower’s fiscal year, audited consolidated financial statements prepared under GAAP, consistently applied, together with an unqualified opinion (provided, however, Borrower’s unqualified opinion on the financial statements may contain a qualification as to going concern (and, solely with respect to Borrower’s fiscal year ended December 31, 2020, material weakness) typical for venture backed companies similar to Borrower) on the financial statements from an independent certified public accounting firm reasonably acceptable to Bank, in the case of quarterly Financial Statements CPA-audited financial statements;
(g) in the event that Borrower becomes subject to the reporting requirements under the Exchange Act, within ten (10) days of filing, copies of all periodic and other reports, proxy statements and other materials filed by Borrower and/or any Guarantor with the SEC, any Governmental Authority succeeding to any or all of the Borrower Entities, 90 days after the close of each fiscal year in respect of yearly Financial Statements functions of the CBII Entities SEC or with any national securities exchange, or distributed to its shareholders, as the case may be. Documents required to be delivered pursuant to the terms hereof (to the extent any such documents are included in materials otherwise filed with the SEC) may be delivered electronically and 120 days after if so delivered, shall be deemed to have been delivered on the close of each fiscal year in respect of yearly Financial Statements of date on which Borrower posts such documents, or provides a link thereto, on Borrower’s website on the Borrower Entities in accordance with clause (i) above, clause (v) below and clause (ii) above, respectively, a compliance certificate of the Chief Accounting Officer or Treasurer of the Borrower (a “Compliance Certificate”) in substantially the form of Exhibit G-1internet at Borrower’s website address; provided, however, that the only calculations to Borrower shall promptly notify Bank in writing (which may be provided in the Compliance Certificate delivered in connection with yearly Financial Statements by electronic mail) of the CBII Entities shall be with respect to the Consolidated Adjusted Leverage Ratioposting of any such documents;
(ivh) As soon as within ten (10) days of delivery, copies of all statements, reports and notices made available and in no event later than 45 days after the last day to Borrower’s security holders or to any holders of each of the first three fiscal quarters of each fiscal year of CBII, a copy of the Quarterly Report for CBII on Form 10-Q for such quarter and for the fiscal year to date; provided that such information, to the extent the Borrower directly or indirectly provides the Administrative Agent with written notice and an appropriate internet link thereto, shall be accessed by Lenders on XXXXXSubordinated Debt;
(vi) As soon as available and prompt report of any legal actions pending or threatened in no event later than 90 days after the close writing against Borrower or any of each fiscal year of CBII, (A) copies of the Annual Report for CBII on Form 10-K for such year, audited by Ernst & Young LLP or other independent certified public accountants of recognized national standing and registered with the Public Company Accounting Oversight Board and (B) copies of the unqualified opinions of such accountants; provided that such information, to the extent the Borrower directly or indirectly provides the Administrative Agent with written notice and an appropriate internet link thereto, shall be accessed by Lenders on XXXXX;
(A) As soon as available and in no event later than 120 days after the close of each fiscal year of CBII, (1) a written supplement to Schedule 4.01(n) (setting forth all necessary Trademark information as set forth in Section 4.01(n) and relating to the Trademarks that are material to the conduct of the Significant Parties’ respective businesses as then operated), (2) a written supplement to Schedule 3.06 to each Security Agreement, (3) any additional disclosures under Section 4.01(n) after Due Inquiry and (4) any additional disclosures to be provided on an annual basis under the Security Documents and (B) promptly, but in any event within a reasonable time after any officer of CBII or the Borrower obtains knowledge of the occurrence of an event its Subsidiaries that could reasonably be expected to result in a Material Adverse Effect on damages or costs to Borrower or any of the Principal Trademarks or the Trademark Licensesits Subsidiaries of, give the Administrative Agent notice of the occurrence of any such event;
(vii) (A) As soon as available and in no event later than 120 days after the close of each fiscal year of CBII, a written supplement to Schedule 4.01(q) (setting forth each of the US Subsidiaries, each of the Significant Subsidiaries and each of the De Minimis US Subsidiaries, its jurisdiction of organization, the classes of its Equity Securities, the number of shares of each such class issued and outstanding, the percentages of shares of each such class owned directly or indirectly by CBII or the Borrower and whether CBII or the Borrower owns such shares directly or, if not, the CBII Entities that own such shares and the number of shares and percentages of shares of each such class owned directly or indirectly by such CBII Entities) and (B) promptly upon the reasonable request of the Administrative Agent and in no event more often than annually, a current hierarchy report for the CBII Entities, in the form and with the substance of the hierarchy report delivered pursuant to Section 3.01(g)(iii);
(viii) As soon as possible and in no event later than 30 days after any officer or director of any Significant Party knows of the occurrence or existence of (A) any ERISA Event under any Pension Plan or Multiemployer Plan which, either individually or in the aggregate, could Two Hundred Fifty Thousand Dollars ($250,000.00) or more;
(j) prompt written notice of any changes to the beneficial ownership information set out in Section 14 of the Perfection Certificate. Borrower understands and acknowledges that Bank relies on such true, accurate and up-to-date beneficial ownership information to meet Bank’s regulatory obligations to obtain, verify and record information about the beneficial owners of its legal entity customers; and
(k) promptly, from time to time, such other information regarding Borrower or compliance with the terms of any Loan Documents as reasonably be expected to have requested by Bank. Any submission by Borrower of a Material Adverse EffectBorrowing Base Statement, (B) any actual Compliance Statement or threatened litigation, suits, claims, disputes or investigations against any Significant Party involving potential monetary damages or in which injunctive relief or similar relief is sought, which could reasonably be expected to have a Material Adverse Effect, (C) any other event or condition which, either individually or in financial statement submitted to the aggregate, could reasonably be expected to have a Material Adverse Effect, including any of the following which could reasonably be expected to have a Material Adverse Effect: (1) breach or non-performance of, or any default under, a Contractual Obligation of any Significant Party, (2) any dispute, litigation, investigation, proceeding or suspension between any Significant Party and any Governmental Authority or (3) the commencement of, or any material development in, any litigation or proceeding affecting any Significant Party, including pursuant to any applicable Environmental Laws, or (D) any Default, the statement of the Chief Accounting Officer, Chief Financial Officer, or Treasurer of the Borrower setting forth details of such event, condition or Default and the action which CBII or the Borrower proposes to take with respect thereto. Each notice Statement Repository pursuant to this Section 5.01(a)(viii) 6.2 or otherwise submitted to Bank shall be accompanied deemed to be a representation by a statement of an Officer of the Borrower setting forth details of the occurrence referred to therein and stating what action CBII or the Borrower has taken and proposes to take with respect thereto. Each notice pursuant to this Section 5.01(a)(viii) shall describe with particularity any and all provisions of this Agreement or other Credit Document that have been breached;
(ix) In no event later than five Business Days after they are sent, made available or filed, copies of (A) all registration statements and reports filed by any CBII Entities with any securities exchange or the United States Securities and Exchange Commission (including all 10-Q, 10-K and 8-K reports), (B) all reports, proxy statements and Financial Statements sent or made available by CBII to its Equity Securities holders and (C) all press releases and other similar public announcements concerning any material developments in the business of CBII made available by CBII to the public generally; provided that such information, to the extent the Borrower directly or indirectly provides the Administrative Agent with written notice and an appropriate internet link thereto, shall be accessed by Lenders on XXXXX;
(x) As soon as available and in no event later than 30 days after they are filed, copies of all IRS Form 5500 reports for all Pension Plans required to file such form;
(xi) Within the earlier to occur of (i) five days after the Board of Directors as of the Borrower date of such Borrowing Base Statement, Compliance Statement or CBII shall have publicly announced other financial statement, the earnings for the most recently completed fiscal year of the Borrower or CBII information and calculations set forth therein are true, accurate and correct, (ii) 60 days after as of the end of each fiscal year the compliance period set forth in such submission, Borrower is in complete compliance with all required covenants except as noted in such Borrowing Base Statement, Compliance Statement or other financial statement, as applicable; (iii) as of the date of such submission, no Events of Default have occurred or are continuing; (iv) all representations and warranties other than any representations or warranties that are made as of a specific date or time period in Section 5 remain true and correct in all material respects as of the date of such submission except as noted in such Borrowing Base Statement, Compliance Statement or other financial statement, as applicable; (v) as of the date of such submission, Borrower and CBIIeach of its Subsidiaries has timely filed all required tax returns and reports, during each year when this Agreement is in effectand Borrower has timely paid all foreign, a forecast for the current fiscal year of the federal, state and local taxes, assessments, deposits and contributions owed by Borrower Entities and the CBII Entities which includes projected consolidated statement of income for such fiscal year and a projected consolidated statement of cash flows for such fiscal year and projected consolidated balance sheets, statements of income and statements of cash flows on a quarterly basis for such fiscal year; provided that the parties acknowledge that the information in such forecasts is not compiled or presented in accordance with GAAP and may not necessarily be presented on a basis consistent with the Borrower’s Financial Statements to be delivered except as otherwise permitted pursuant to Section 5.01(a);
(xii) As soon as possible and in no event later than the later of (A) any of CBII’s or the Borrower’s officers or directors learning thereof or (B) five Business Days prior to the occurrence of any event or circumstance (except for asset losses in which case as promptly as is reasonable after such asset loss) that would require a prepayment pursuant to Section 2.06(c), the statement of the Chief Financial Officer, Chief Accounting Officer or Treasurer of the Borrower setting forth the details thereof;
(xiii) As soon as possible and in no event later than 30 days after the receipt thereof by any Loan Party (or subsequent determination after Due Inquiry by an officer of the Borrower that it could reasonably be expected to result in a Material Adverse Effect), a copy of any notice, summons, citations or other written communications concerning any actual, alleged, suspected or threatened violation of any Environmental Law or any liability of any Loan Party for Environmental Damages that in any such case could reasonably be expected to result in a Material Adverse Effect;
(xiv) Such other instruments, agreements, certificates, opinions, statements, documents and information relating to the properties, operations or condition (financial or otherwise) of the Significant Parties, and compliance by the Significant Parties with the terms of this Agreement Section 5.9; and (vi) as of the other Credit Documents as the Administrative Agent date of such submission, no Liens have been levied or claims made against Borrower or any Lender (through the Administrative Agent) may from time to time reasonably request;
(xv) As soon as available and in no event later than five Business Days after any of CBII’s or the Borrower’s officers or directors receive notice or become aware of any actions (including derivative actions), suits, proceedings or investigations that are pending or, to the knowledge of any of CBII’s or the Borrower’s officers or directors, threatened against any Significant Party at law or in equity in any court, arbitration proceeding or before any other Governmental Authority which seek to enjoin, either directly or indirectly, the execution, delivery or performance by any Loan Party of the Credit Documents or the transactions contemplated thereby;
(xvi) As soon as available and in no event later than 120 days after the close of each fiscal year of CBII, a written supplement to Schedule 4.01(w) (setting forth a true and complete listing of all insurance maintained by the Significant Parties);
(xvii) Within 120 days after the close of each fiscal year of CBII, a written supplement disclosing any matters required to update factual matters its Subsidiaries relating to Section 4.01unpaid employee payroll or benefits of which Borrower has not previously provided written notification to Bank.
Appears in 1 contract
Financial Statements, Reports. The Borrower shall furnish Provide Bank with the following by submitting to the Administrative Agent the followingFinancial Statement Repository or otherwise submitting to Bank:
(a) a Borrowing Base Statement (and any schedules related thereto and including any other information requested by Bank with respect to Borrower’s Accounts) upon each request for an Advance and (i) As soon as available and in no event later than 60 within thirty (30) days after the last day of each of the first three fiscal quarters month when a Streamline Period is in effect, and (ii) no later than Friday of each fiscal year of week when a Streamline Period is not in effect;
(b) (i) monthly accounts receivable agings, aged by invoice date, (ii) monthly accounts payable agings, aged by invoice date, and outstanding or held check registers, if any, and (iii) inventory reports for the Borrower, a copy of the Financial Statements of the Borrower Entities (prepared Inventory valued on a consolidated basis) for reasonable efforts first-in, first-out basis at the fiscal year to date, certified by the Chief Accounting Officer lower of cost or the Chief Financial Officer of the Borrower to present fairly in all material respects the financial condition, results of operations, cash flows, and other information reflected therein and to have been prepared market (in accordance with GAAP GAAP) or such other inventory reports as are requested by Bank in its good faith business judgment, (subject to normal year end audit adjustments and omission of footnotes and statement of shareholder’s equity);
x) within thirty (ii30) As soon as available and in no event later than 120 days after the close of each fiscal year of the Borrower, copies of (A) the audited consolidated Financial Statements of the Borrower Entities for such year, audited by Ernst & Young LLP or other independent certified public accountants of recognized national standing and registered with the Public Company Accounting Oversight Board and (B) copies of the unqualified opinions of such accountants;
(iii) Commencing with the fiscal quarter ended June 30, 2008, as soon as available and in no event later than 60 days after the last day of each of the first three fiscal quarters month when a Streamline Period is in effect, and (y) no later than Friday of each fiscal year week when a Streamline Period is not in respect of quarterly Financial Statements of the Borrower Entities, 90 days after the close of each fiscal year in respect of yearly Financial Statements of the CBII Entities and 120 days after the close of each fiscal year in respect of yearly Financial Statements of the Borrower Entities in accordance with clause (i) above, clause (v) below and clause (ii) above, respectively, a compliance certificate of the Chief Accounting Officer or Treasurer of the Borrower (a “Compliance Certificate”) in substantially the form of Exhibit G-1; provided, however, that the only calculations to be provided in the Compliance Certificate delivered in connection with yearly Financial Statements of the CBII Entities shall be with respect to the Consolidated Adjusted Leverage Ratioeffect;
(ivc) As as soon as available and in available, but no event later than 45 thirty (30) days after the last day of each month, a company-prepared consolidated and consolidating (if applicable) balance sheet and income statement covering Borrower’s consolidated operations and key performance indicators for such month in a form acceptable to Bank (the “Monthly Financial Statements”);
(d) within thirty (30) days after the last day of each month and together with the Monthly Financial Statements, a completed Compliance Statement, confirming that, as of the first three fiscal quarters end of each such month, Borrower was in full compliance with all of the terms and conditions of this Agreement, and setting forth calculations showing compliance with the financial covenants set forth in this Agreement and such other information as Bank may reasonably request, including, without limitation, a statement that at the end of such month there were no held checks;
(e) as soon as available but no later than the earlier of forty-five (45) days after the last day of the fiscal year of CBII, a copy of the Quarterly Report for CBII on Form 10Borrower or forty-Q for such quarter and for the fiscal year to date; provided that such information, to the extent the Borrower directly or indirectly provides the Administrative Agent with written notice and an appropriate internet link thereto, shall be accessed by Lenders on XXXXX;
five (v45) As soon as available and in no event later than 90 days after approval by the close Board, and within seven (7) days of each fiscal year of CBII, (A) copies of the Annual Report for CBII on Form 10any Board-K for such year, audited by Ernst & Young LLP approved updates or other independent certified public accountants of recognized national standing and registered with the Public Company Accounting Oversight Board and (B) copies of the unqualified opinions of such accountants; provided that such information, to the extent the Borrower directly or indirectly provides the Administrative Agent with written notice and an appropriate internet link amendments thereto, shall be accessed by Lenders on XXXXX;
(A) As soon as available and in no event later than 120 days after the close of each fiscal year of CBII, (1) a written supplement to Schedule 4.01(nannual operating budgets (including income statements, balance sheets and cash flow statements, by month) (setting forth all necessary Trademark information as set forth in Section 4.01(n) for the upcoming fiscal year of Borrower, and relating to the Trademarks that are material to the conduct of the Significant Parties’ respective businesses as then operated), (2) annual financial projections for the following fiscal year (on a written supplement monthly or quarterly basis), in each case as approved by the Board and commensurate in form and substance with those provided to Schedule 3.06 to each Security Agreementthe Board, together with any related business forecasts used in the preparation of such annual financial projections;
(3f) any additional disclosures under Section 4.01(n) after Due Inquiry as soon as available, and (4) any additional disclosures to be provided on an annual basis under the Security Documents and (B) promptly, but in any event within two hundred ten (210) days after the last day of Borrower’s fiscal year, audited consolidated financial statements prepared under GAAP, consistently applied, together with an unqualified opinion (provided, however, Borrower’s unqualified opinion on financial statements may contain a reasonable time after qualification as to going concern typical for venture backed companies similar to Borrower) on the financial statements from an independent certified public accounting firm reasonably acceptable to Bank;
(g) in the event that Borrower becomes subject to the reporting requirements under the Exchange Act within five (5) days of filing, copies of all periodic and other reports, proxy statements and other materials filed by Borrower and/or any officer of CBII Guarantor with the SEC, any Governmental Authority succeeding to any or the Borrower obtains knowledge all of the occurrence functions of an event the SEC or with any national securities exchange, or distributed to its shareholders, as the case may be. Documents required to be delivered pursuant to the terms hereof (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 on which Borrower posts such documents, or provides a link thereto, on Borrower’s website on the internet at Borrower’s website address; provided, however, Borrower shall promptly notify Bank in writing (which may be by electronic mail) of the posting of any such documents;
(h) within five (5) Business Days of delivery by Borrower, copies of all material statements, reports and notices made generally available by Borrower to Borrower’s security holders or to any holders of Subordinated Debt;
(i) prompt report of any legal actions pending or threatened in writing against Borrower or any of its Subsidiaries that could reasonably be expected to result in a Material Adverse Effect on damages or costs to Borrower or any of the Principal Trademarks or the Trademark Licensesits Subsidiaries of, give the Administrative Agent notice of the occurrence of any such event;
(vii) (A) As soon as available and in no event later than 120 days after the close of each fiscal year of CBII, a written supplement to Schedule 4.01(q) (setting forth each of the US Subsidiaries, each of the Significant Subsidiaries and each of the De Minimis US Subsidiaries, its jurisdiction of organization, the classes of its Equity Securities, the number of shares of each such class issued and outstanding, the percentages of shares of each such class owned directly or indirectly by CBII or the Borrower and whether CBII or the Borrower owns such shares directly or, if not, the CBII Entities that own such shares and the number of shares and percentages of shares of each such class owned directly or indirectly by such CBII Entities) and (B) promptly upon the reasonable request of the Administrative Agent and in no event more often than annually, a current hierarchy report for the CBII Entities, in the form and with the substance of the hierarchy report delivered pursuant to Section 3.01(g)(iii);
(viii) As soon as possible and in no event later than 30 days after any officer or director of any Significant Party knows of the occurrence or existence of (A) any ERISA Event under any Pension Plan or Multiemployer Plan which, either individually or in the aggregate, could Three Hundred Seventy-Five Thousand Dollars ($375,000) or more;
(j) promptly, from time to time, such other information regarding Borrower or compliance with the terms of any Loan Documents as reasonably be expected requested by Bank; and
(k) prompt written notice of any changes to have a Material Adverse Effect, (B) any actual or threatened litigation, suits, claims, disputes or investigations against any Significant Party involving potential monetary damages or in which injunctive relief or similar relief is sought, which could reasonably be expected to have a Material Adverse Effect, (C) any other event or condition which, either individually or the beneficial ownership information set out in the aggregateBeneficial Ownership Information Disclosure Form. Borrower understands and acknowledges that Bank relies on such true, could reasonably be expected accurate and up-to-date beneficial ownership information to have meet Bank’s regulatory obligations to obtain, verify and record information about the beneficial owners of its legal entity customers. Any submission by Borrower of a Material Adverse EffectCompliance Statement, including any of the following which could reasonably be expected to have a Material Adverse Effect: (1) breach or non-performance ofBorrowing Base Statement, or any default under, a Contractual Obligation of any Significant Party, (2) any dispute, litigation, investigation, proceeding or suspension between any Significant Party and any Governmental Authority or (3) other financial statement submitted to the commencement of, or any material development in, any litigation or proceeding affecting any Significant Party, including pursuant to any applicable Environmental Laws, or (D) any Default, the statement of the Chief Accounting Officer, Chief Financial Officer, or Treasurer of the Borrower setting forth details of such event, condition or Default and the action which CBII or the Borrower proposes to take with respect thereto. Each notice Statement Repository pursuant to this Section 5.01(a)(viii) 6.2 or otherwise submitted to Bank shall be accompanied deemed to be a representation by a statement of an Officer of the Borrower setting forth details of the occurrence referred to therein and stating what action CBII or the Borrower has taken and proposes to take with respect thereto. Each notice pursuant to this Section 5.01(a)(viii) shall describe with particularity any and all provisions of this Agreement or other Credit Document that have been breached;
(ix) In no event later than five Business Days after they are sent, made available or filed, copies of (A) all registration statements and reports filed by any CBII Entities with any securities exchange or the United States Securities and Exchange Commission (including all 10-Q, 10-K and 8-K reports), (B) all reports, proxy statements and Financial Statements sent or made available by CBII to its Equity Securities holders and (C) all press releases and other similar public announcements concerning any material developments in the business of CBII made available by CBII to the public generally; provided that such information, to the extent the Borrower directly or indirectly provides the Administrative Agent with written notice and an appropriate internet link thereto, shall be accessed by Lenders on XXXXX;
(x) As soon as available and in no event later than 30 days after they are filed, copies of all IRS Form 5500 reports for all Pension Plans required to file such form;
(xi) Within the earlier to occur of (i) five days after the Board of Directors as of the Borrower date of such Compliance Statement, Borrowing Base Statement, or CBII shall have publicly announced other financial statement, the earnings for the most recently completed fiscal year of the Borrower or CBII information and calculations set forth therein are true, accurate, and correct, (ii) 60 days after as of the end of each fiscal year the compliance period forth in such submission, Borrower is in complete compliance with all required covenants except as noted in such Compliance Statement, Borrowing Base Statement, or other financial statement, as applicable; (iii) as of the date of such submission, no Events of Default have occurred or are continuing, except as noted in such Compliance Statement; (iv) all representations and warranties other than any representations or warranties that are made as of a specific date in Section 5 remain true and correct in all material respects as of the date of such submission except as noted in such Compliance Statement, Borrowing Base Statement, or other financial statement, as applicable; (v) as of the date of such submission, Borrower and CBIIeach of its Subsidiaries have timely filed all required tax returns and reports, during each year when this Agreement is in effectand Borrower has timely paid all foreign, a forecast for the current fiscal year of the federal, state and local taxes, assessments, deposits and contributions owed by Borrower Entities and the CBII Entities which includes projected consolidated statement of income for such fiscal year and a projected consolidated statement of cash flows for such fiscal year and projected consolidated balance sheets, statements of income and statements of cash flows on a quarterly basis for such fiscal year; provided that the parties acknowledge that the information in such forecasts is not compiled or presented in accordance with GAAP and may not necessarily be presented on a basis consistent with the Borrower’s Financial Statements to be delivered except as otherwise permitted pursuant to Section 5.01(a);
(xii) As soon as possible and in no event later than the later of (A) any of CBII’s or the Borrower’s officers or directors learning thereof or (B) five Business Days prior to the occurrence of any event or circumstance (except for asset losses in which case as promptly as is reasonable after such asset loss) that would require a prepayment pursuant to Section 2.06(c), the statement of the Chief Financial Officer, Chief Accounting Officer or Treasurer of the Borrower setting forth the details thereof;
(xiii) As soon as possible and in no event later than 30 days after the receipt thereof by any Loan Party (or subsequent determination after Due Inquiry by an officer of the Borrower that it could reasonably be expected to result in a Material Adverse Effect), a copy of any notice, summons, citations or other written communications concerning any actual, alleged, suspected or threatened violation of any Environmental Law or any liability of any Loan Party for Environmental Damages that in any such case could reasonably be expected to result in a Material Adverse Effect;
(xiv) Such other instruments, agreements, certificates, opinions, statements, documents and information relating to the properties, operations or condition (financial or otherwise) of the Significant Parties, and compliance by the Significant Parties with the terms of this Agreement Section 5.9; and (vi) as of the other Credit Documents as the Administrative Agent date of such submission, no Liens have been levied or claims made against Borrower or any Lender (through the Administrative Agent) may from time to time reasonably request;
(xv) As soon as available and in no event later than five Business Days after any of CBII’s or the Borrower’s officers or directors receive notice or become aware of any actions (including derivative actions), suits, proceedings or investigations that are pending or, to the knowledge of any of CBII’s or the Borrower’s officers or directors, threatened against any Significant Party at law or in equity in any court, arbitration proceeding or before any other Governmental Authority which seek to enjoin, either directly or indirectly, the execution, delivery or performance by any Loan Party of the Credit Documents or the transactions contemplated thereby;
(xvi) As soon as available and in no event later than 120 days after the close of each fiscal year of CBII, a written supplement to Schedule 4.01(w) (setting forth a true and complete listing of all insurance maintained by the Significant Parties);
(xvii) Within 120 days after the close of each fiscal year of CBII, a written supplement disclosing any matters required to update factual matters its Subsidiaries relating to Section 4.01unpaid employee payroll or benefits of which Borrower has not previously provided written notification to Bank.
Appears in 1 contract
Samples: Loan and Security Agreement (Grove Collaborative Holdings, Inc.)
Financial Statements, Reports. The Borrower (a) Mortgagor shall furnish maintain full and accurate books of accounts and other records reflecting Mortgagor's financial conditions and transactions, and shall furnish, or cause to the Administrative Agent the followingbe furnished, to Mortgagee:
(i) As soon as available and in no event later than 60 days after the last day of each of the first three fiscal quarters of each fiscal year of the Borrower, a copy of the Financial Statements of the Borrower Entities within one hundred twenty (prepared on a consolidated basis120) for the fiscal year to date, certified by the Chief Accounting Officer or the Chief Financial Officer of the Borrower to present fairly in all material respects the financial condition, results of operations, cash flows, and other information reflected therein and to have been prepared in accordance with GAAP (subject to normal year end audit adjustments and omission of footnotes and statement of shareholder’s equity);
(ii) As soon as available and in no event later than 120 days after the close of each fiscal year of the Borrower, copies of (A) the audited consolidated Financial Statements of the Borrower Entities for such year, audited by Ernst & Young LLP or other independent certified public accountants of recognized national standing and registered with the Public Company Accounting Oversight Board and (B) copies of the unqualified opinions of such accountants;
(iii) Commencing with the fiscal quarter ended June 30, 2008, as soon as available and in no event later than 60 days after the last day of each of the first three fiscal quarters of each fiscal year in respect of quarterly Financial Statements of the Borrower Entities, 90 days after the close of each fiscal year in respect of yearly Financial Statements of the CBII Entities and 120 days after the close of each fiscal year in respect of yearly Financial Statements of the Borrower Entities in accordance with clause (i) above, clause (v) below and clause (ii) above, respectively, a compliance certificate of the Chief Accounting Officer or Treasurer of the Borrower (a “Compliance Certificate”) in substantially the form of Exhibit G-1; provided, however, that the only calculations to be provided in the Compliance Certificate delivered in connection with yearly Financial Statements of the CBII Entities shall be with respect to the Consolidated Adjusted Leverage Ratio;
(iv) As soon as available and in no event later than 45 days after the last day of each of the first three fiscal quarters of each fiscal year of CBII, a copy of the Quarterly Report for CBII on Form 10-Q for such quarter and for the fiscal year to date; provided that such information, to the extent the Borrower directly or indirectly provides the Administrative Agent with written notice and an appropriate internet link thereto, shall be accessed by Lenders on XXXXX;
(v) As soon as available and in no event later than 90 days after the close of each fiscal year of CBII, (A) copies of the Annual Report for CBII on Form 10-K for such year, audited by Ernst & Young LLP or other independent certified public accountants of recognized national standing and registered with the Public Company Accounting Oversight Board and (B) copies of the unqualified opinions of such accountants; provided that such information, to the extent the Borrower directly or indirectly provides the Administrative Agent with written notice and an appropriate internet link thereto, shall be accessed by Lenders on XXXXX;
(A) As soon as available and in no event later than 120 days after the close of each fiscal year of CBII, (1) a written supplement to Schedule 4.01(n) (setting forth all necessary Trademark information as set forth in Section 4.01(n) and relating to the Trademarks that are material to the conduct of the Significant Parties’ respective businesses as then operated), (2) a written supplement to Schedule 3.06 to each Security Agreement, (3) any additional disclosures under Section 4.01(n) after Due Inquiry and (4) any additional disclosures to be provided on an annual basis under the Security Documents and (B) promptly, but in any event within a reasonable time after any officer of CBII or the Borrower obtains knowledge of the occurrence of an event that could reasonably be expected to result in a Material Adverse Effect on any of the Principal Trademarks or the Trademark Licenses, give the Administrative Agent notice of the occurrence of any such event;
(vii) (A) As soon as available and in no event later than 120 days after the close of each fiscal year of CBII, a written supplement to Schedule 4.01(q) (setting forth each of the US Subsidiaries, each of the Significant Subsidiaries and each of the De Minimis US Subsidiaries, its jurisdiction of organization, the classes of its Equity Securities, the number of shares of each such class issued and outstanding, the percentages of shares of each such class owned directly or indirectly by CBII or the Borrower and whether CBII or the Borrower owns such shares directly or, if not, the CBII Entities that own such shares and the number of shares and percentages of shares of each such class owned directly or indirectly by such CBII Entities) and (B) promptly upon the reasonable request of the Administrative Agent and in no event more often than annually, a current hierarchy report for the CBII Entities, in the form and with the substance of the hierarchy report delivered pursuant to Section 3.01(g)(iii);
(viii) As soon as possible and in no event later than 30 days after any officer or director of any Significant Party knows of the occurrence or existence of (A) any ERISA Event under any Pension Plan or Multiemployer Plan which, either individually or in the aggregate, could reasonably be expected to have a Material Adverse Effect, (B) any actual or threatened litigation, suits, claims, disputes or investigations against any Significant Party involving potential monetary damages or in which injunctive relief or similar relief is sought, which could reasonably be expected to have a Material Adverse Effect, (C) any other event or condition which, either individually or in the aggregate, could reasonably be expected to have a Material Adverse Effect, including any of the following which could reasonably be expected to have a Material Adverse Effect: (1) breach or non-performance of, or any default under, a Contractual Obligation of any Significant Party, (2) any dispute, litigation, investigation, proceeding or suspension between any Significant Party and any Governmental Authority or (3) the commencement of, or any material development in, any litigation or proceeding affecting any Significant Party, including pursuant to any applicable Environmental Laws, or (D) any Default, the statement of the Chief Accounting Officer, Chief Financial Officer, or Treasurer of the Borrower setting forth details of such event, condition or Default and the action which CBII or the Borrower proposes to take with respect thereto. Each notice pursuant to this Section 5.01(a)(viii) shall be accompanied by a statement of an Officer of the Borrower setting forth details of the occurrence referred to therein and stating what action CBII or the Borrower has taken and proposes to take with respect thereto. Each notice pursuant to this Section 5.01(a)(viii) shall describe with particularity any and all provisions of this Agreement or other Credit Document that have been breached;
(ix) In no event later than five Business Days after they are sent, made available or filed, copies of (A) all registration statements and reports filed by any CBII Entities with any securities exchange or the United States Securities and Exchange Commission (including all 10-Q, 10-K and 8-K reports), (B) all reports, proxy statements and Financial Statements sent or made available by CBII to its Equity Securities holders and (C) all press releases and other similar public announcements concerning any material developments in the business of CBII made available by CBII to the public generally; provided that such information, to the extent the Borrower directly or indirectly provides the Administrative Agent with written notice and an appropriate internet link thereto, shall be accessed by Lenders on XXXXX;
(x) As soon as available and in no event later than 30 days after they are filed, copies of all IRS Form 5500 reports for all Pension Plans required to file such form;
(xi) Within the earlier to occur of (i) five days after the Board of Directors of the Borrower or CBII shall have publicly announced the earnings for the most recently completed fiscal year of the Borrower or CBII and (ii) 60 days after the end of each fiscal year of Mortgagor, financial statements (which shall mean and include a balance sheet, statement of cash flow and income statement for Mortgagor, such reports to be in such form and in reasonable detail as Mortgagee may request, setting forth the Borrower financial condition (including all contingent liabilities), cash flow and CBII, during each year when this Agreement is in effect, a forecast the income and expenses for Mortgagor for the current immediately preceding fiscal year) of Mortgagor, prepared in accordance with generally accepted accounting principles consistently applied, and which fairly present the financial condition and transactions of Mortgagor as of the date thereof or for the period covered thereby, and audited and certified to by an independent certified public accountant firm acceptable to Mortgagee;
(ii) within sixty (60) days after the end of each fiscal year of Mortgagor, the Borrower Entities and the CBII Entities which includes projected consolidated statement of income for same financial statements specified in clause (i) above, except that such fiscal year and a projected consolidated statement of cash flows for such fiscal year and projected consolidated balance sheets, financial statements of income and statements of cash flows on a quarterly basis for such fiscal year; provided that the parties acknowledge that the information in such forecasts is need not compiled or presented in accordance with GAAP and may not necessarily be presented on a basis consistent with the Borrower’s Financial Statements audited by an independent certified public accountant but must be certified to be delivered pursuant to Section 5.01(a)by Mortgagor;
(xiiiii) As soon as possible a tax return for each fiscal year of Mortgagor from and after the date hereof, within thirty (30) days after same has been filed with the Internal Revenue Service, but in no event later than one hundred twenty (120) days after the later end of each fiscal year (Aprovided, however, if Mortgagor shall have duly filed for an extension of the filing deadline for such tax return, and promptly furnished evidence thereof to Mortgagee, then such tax return shall be delivered to Mortgagee on or before two hundred fifty-five (255) any days after the end of CBII’s such fiscal year);
(iv) on or before one hundred twenty (120) days after the Borrower’s officers end of each fiscal year of Mortgagor, a certificate by Mortgagor certifying that, as of the date thereof, there does or directors learning thereof does not (as the case may be) exist an event which constitutes, or which upon due notice or lapse of time or both would constitute an Event of Default or, if an Event of Default exists specifying the nature thereof; and
(Bv) five Business Days prior to the occurrence immediate notice of any event material adverse changes in the financial condition or circumstance business prospects of Mortgagor. The fiscal year of Mortgagor ends on December 31st.
(except for asset losses b) Mortgagor shall cause any guarantor of the Loan (as identified and set forth in the Loan Agreement and herein collectively referred to as "Guarantor") (if Guarantor is more than one party, then each party constituting Guarantor) to promptly furnish or cause to be furnished to Mortgagee:
(i) within one hundred twenty (120) days after the end of each fiscal year of Guarantor, financial statements (which case as promptly as is reasonable after such asset loss) that would require shall mean and include a prepayment pursuant to Section 2.06(c)balance sheet, the statement of the Chief Financial Officercash flow and income statement for Guarantor, Chief Accounting Officer or Treasurer of the Borrower such reports to be in such form and in reasonable detail as Mortgagee may request, setting forth the details thereoffinancial condition (including all contingent liabilities), cash flow and the income and expenses for Guarantor for the immediately preceding fiscal year) of Guarantor, (1) prepared in accordance with generally accepted accounting principles consistently applied, as to Transeastern Properties of South Florida, Inc., a Florida corporation ("Transeastern Properties") and (2) prepared in a manner which fairly present the financial condition and transactions of each individual Guarantor and (y) as to each individual Guarantor, as of the date thereof or for the period covered thereby, and in a format approved by Lender as to any individual Guarantor, and (x) as to Transeastern, audited and certified to by an independent certified public accountant with a national reputation, certified and sworn to by each individual Guarantor under penalty of perjury;
(xiiiii) As a tax return for each fiscal year of Guarantor from and after the date hereof, as soon as possible and available, but in no event later than 30 one hundred twenty (120) days after the receipt thereof by any Loan Party end of each fiscal year (or subsequent determination after Due Inquiry by provided, however, if Guarantor shall have duly filed for an officer extension of the Borrower that it could reasonably deadline for such tax return, and promptly furnish evidence thereof to Mortgagee, then such tax return shall be expected delivered to result in a Material Adverse EffectMortgagee on or before two hundred fifty- five (255) days after the end of such fiscal year), a copy of any notice, summons, citations or other written communications concerning any actual, alleged, suspected or threatened violation of any Environmental Law or any liability of any Loan Party for Environmental Damages that in any such case could reasonably be expected to result in a Material Adverse Effect;
(xiviii) Such other instruments, agreements, certificates, opinions, statements, documents and information relating to the properties, operations or condition (financial or otherwise) of the Significant Parties, and compliance by the Significant Parties with the terms of this Agreement and the other Credit Documents as the Administrative Agent or any Lender (through the Administrative Agent) may from time to time reasonably request;
(xv) As soon as available and in no event later than five Business Days after any of CBII’s or the Borrower’s officers or directors receive notice or become aware of any actions (including derivative actions), suits, proceedings or investigations that are pending or, to the knowledge of any of CBII’s or the Borrower’s officers or directors, threatened against any Significant Party at law or in equity in any court, arbitration proceeding on or before any other Governmental Authority which seek to enjoin, either directly or indirectly, the execution, delivery or performance by any Loan Party of the Credit Documents or the transactions contemplated thereby;
one hundred twenty (xvi120) As soon as available and in no event later than 120 days after the close end of each fiscal year of CBIIGuarantor, a written supplement to Schedule 4.01(wcertificate by Guarantor certifying that, as of the date thereof, there does or does not (as the case may be) (setting forth a true and complete listing exist an event which constitutes, or which upon due notice or lapse of all insurance maintained time or both would constitute an event of default under the any guaranty executed by Guarantor or, if such event of default exists, specifying the Significant Parties);nature thereof; and
(xviiiv) Within 120 immediate notice of any material adverse change in the financial condition or business prospects of Guarantor. The fiscal year of any individual Guarantor ends on December 31st, and as to Transeastern Properties, the fiscal year end is June 30th.
(c) In the event Mortgagor fails to furnish or cause to be furnished any financial statement or report as required under this Subsection 1.16 or Mortgaged Property report as required under the preceding Subsection 1.15, Mortgagee may charge Mortgagor a $25.00 per day administrative fee for each day of delay in the submission of the required reports. Such fee shall not exceed $1,000.00; provided that if Mortgagor does not furnish or cause to be furnished any required statement or report within forty (40) days after the close due date specified above, then Mortgagee may, at the expense of each fiscal year Mortgagor, cause a certified public accountant designated by Mortgagee to prepare such balance sheets and statements and the costs thereof shall become part of CBII, a written supplement disclosing any matters required the principal secured hereby until repaid with interest at the rate of two percent (2%) per annum above the rate from time to update factual matters relating to Section 4.01time as set forth in the Note.
Appears in 1 contract
Samples: Land Acquisition and Development Loan Agreement (Transeastern Properties Inc)
Financial Statements, Reports. The Borrower After the Closing and until the earlier of (x) the date which Parent Co. or its Affiliates holds in the aggregate less than 5% of the Tower Aggregator Common Stock (assuming conversion of all outstanding shares of Tower Aggregator preferred stock) or (y) the completion of an Initial Public Offering by Tower Aggregator, Tower Aggregator, shall furnish provide to the Administrative Agent the followingParent Co.:
(ia) As soon as available and in no event later than 60 days after the last day of each of the first three fiscal quarters of each fiscal year of the Borrower, a copy of the Financial Statements of the Borrower Entities (prepared on a consolidated basis) for the fiscal year to date, certified by the Chief Accounting Officer or the Chief Financial Officer of the Borrower to present fairly in all material respects the financial condition, results of operations, cash flows, and other information reflected therein and to have been prepared in accordance with GAAP (subject to normal year end audit adjustments and omission of footnotes and statement of shareholder’s equity);
(ii) As soon as available and in no event later than 120 days after the close of each fiscal year of the Borrower, copies of (A) the audited consolidated Financial Statements of the Borrower Entities for such year, audited by Ernst & Young LLP or other independent certified public accountants of recognized national standing and registered with the Public Company Accounting Oversight Board and (B) copies of the unqualified opinions of such accountants;
(iii) Commencing with the fiscal quarter ended June 30, 2008, as soon as available and in no event later than 60 days after the last day of each of the first three fiscal quarters of each fiscal year in respect of quarterly Financial Statements of the Borrower Entities, within 90 days after the close of each fiscal year in respect of yearly Financial Statements of the CBII Entities and 120 days after the close of each fiscal year in respect of yearly Financial Statements of the Borrower Entities in accordance with clause (i) above, clause (v) below and clause (ii) above, respectively, a compliance certificate of the Chief Accounting Officer or Treasurer of the Borrower (a “Compliance Certificate”) in substantially the form of Exhibit G-1; provided, however, that the only calculations to be provided in the Compliance Certificate delivered in connection with yearly Financial Statements of the CBII Entities shall be with respect to the Consolidated Adjusted Leverage Ratio;
(iv) As soon as available and in no event later than 45 days after the last day of each of the first three fiscal quarters of each fiscal year of CBII, a copy of the Quarterly Report for CBII on Form 10-Q for such quarter and for the fiscal year to date; provided that such information, to the extent the Borrower directly or indirectly provides the Administrative Agent with written notice and an appropriate internet link thereto, shall be accessed by Lenders on XXXXX;
(v) As soon as available and in no event later than 90 days after the close of each fiscal year of CBII, (A) copies of the Annual Report for CBII on Form 10-K for such year, audited by Ernst & Young LLP or other independent certified public accountants of recognized national standing and registered with the Public Company Accounting Oversight Board and (B) copies of the unqualified opinions of such accountants; provided that such information, to the extent the Borrower directly or indirectly provides the Administrative Agent with written notice and an appropriate internet link thereto, shall be accessed by Lenders on XXXXX;
(A) As soon as available and in no event later than 120 days after the close of each fiscal year of CBII, (1) a written supplement to Schedule 4.01(n) (setting forth all necessary Trademark information as set forth in Section 4.01(n) and relating to the Trademarks that are material to the conduct of the Significant Parties’ respective businesses as then operated), (2) a written supplement to Schedule 3.06 to each Security Agreement, (3) any additional disclosures under Section 4.01(n) after Due Inquiry and (4) any additional disclosures to be provided on an annual basis under the Security Documents and (B) promptly, but in any event within a reasonable time after any officer of CBII or the Borrower obtains knowledge of the occurrence of an event that could reasonably be expected to result in a Material Adverse Effect on any of the Principal Trademarks or the Trademark Licenses, give the Administrative Agent notice of the occurrence of any such event;
(vii) (A) As soon as available and in no event later than 120 days after the close of each fiscal year of CBII, a written supplement to Schedule 4.01(q) (setting forth each of the US Subsidiaries, each of the Significant Subsidiaries and each of the De Minimis US Subsidiaries, its jurisdiction of organization, the classes of its Equity Securities, the number of shares of each such class issued and outstanding, the percentages of shares of each such class owned directly or indirectly by CBII or the Borrower and whether CBII or the Borrower owns such shares directly or, if not, the CBII Entities that own such shares and the number of shares and percentages of shares of each such class owned directly or indirectly by such CBII Entities) and (B) promptly upon the reasonable request of the Administrative Agent and in no event more often than annually, a current hierarchy report for the CBII Entities, in the form and with the substance of the hierarchy report delivered pursuant to Section 3.01(g)(iii);
(viii) As soon as possible and in no event later than 30 days after any officer or director of any Significant Party knows of the occurrence or existence of (A) any ERISA Event under any Pension Plan or Multiemployer Plan which, either individually or in the aggregate, could reasonably be expected to have a Material Adverse Effect, (B) any actual or threatened litigation, suits, claims, disputes or investigations against any Significant Party involving potential monetary damages or in which injunctive relief or similar relief is sought, which could reasonably be expected to have a Material Adverse Effect, (C) any other event or condition which, either individually or in the aggregate, could reasonably be expected to have a Material Adverse Effect, including any of the following which could reasonably be expected to have a Material Adverse Effect: (1) breach or non-performance of, or any default under, a Contractual Obligation of any Significant Party, (2) any dispute, litigation, investigation, proceeding or suspension between any Significant Party and any Governmental Authority or (3) the commencement of, or any material development in, any litigation or proceeding affecting any Significant Party, including pursuant to any applicable Environmental Laws, or (D) any Default, the statement of the Chief Accounting Officer, Chief Financial Officer, or Treasurer of the Borrower setting forth details of such event, condition or Default and the action which CBII or the Borrower proposes to take with respect thereto. Each notice pursuant to this Section 5.01(a)(viii) shall be accompanied by a statement of an Officer of the Borrower setting forth details of the occurrence referred to therein and stating what action CBII or the Borrower has taken and proposes to take with respect thereto. Each notice pursuant to this Section 5.01(a)(viii) shall describe with particularity any and all provisions of this Agreement or other Credit Document that have been breached;
(ix) In no event later than five Business Days after they are sent, made available or filed, copies of (A) all registration statements and reports filed by any CBII Entities with any securities exchange or the United States Securities and Exchange Commission (including all 10-Q, 10-K and 8-K reports), (B) all reports, proxy statements and Financial Statements sent or made available by CBII to its Equity Securities holders and (C) all press releases and other similar public announcements concerning any material developments in the business of CBII made available by CBII to the public generally; provided that such information, to the extent the Borrower directly or indirectly provides the Administrative Agent with written notice and an appropriate internet link thereto, shall be accessed by Lenders on XXXXX;
(x) As soon as available and in no event later than 30 days after they are filed, copies of all IRS Form 5500 reports for all Pension Plans required to file such form;
(xi) Within the earlier to occur of (i) five days after the Board of Directors of the Borrower or CBII shall have publicly announced the earnings for the most recently completed fiscal year of the Borrower or CBII and (ii) 60 days after the end of each fiscal year of the Borrower and CBII, during each year when this Agreement is in effectTower Aggregator, a forecast consolidated balance sheet of Tower Aggregator and its Subsidiaries as of the end of such fiscal year and the related consolidated statements of income, changes in stockholders' equity and cash flows of Tower Aggregator and its Subsidiaries for the current fiscal year then ended, together with supporting notes thereto, prepared in accordance with generally accepted accounting principles and accompanied by a report, without qualification as to scope of audit, by a firm of independent public accountants of recognized national standing selected by Tower Aggregator;
(b) commencing with the month ending March 31, 1999, within 20 days after the end of each month in each fiscal year, a consolidated balance sheet of Tower Aggregator and its Subsidiaries and the related consolidated statement of income, unaudited but certified by the principal financial officer of Tower Aggregator, such balance sheets to be as of the end of such month and such statements of income to be for such month and for the period from the beginning of the fiscal year to the end of such month, in each case subject to normal year-end adjustments;
(c) within 20 days prior to the beginning of each fiscal year of Tower Aggregator (and with respect to any revision thereof, promptly after such revision has been prepared), an operating budget for Tower Aggregator and its subsidiaries approved by the Borrower Entities and the CBII Entities which includes Board of Directors of Tower Aggregator, including projected consolidated statement of monthly income for statements, cash flow statements during such fiscal year and a projected consolidated statement balance sheet as of cash flows for such fiscal year and projected consolidated balance sheets, statements the end of income and statements of cash flows on a quarterly basis for such fiscal year; provided that the parties acknowledge that the information in such forecasts is not compiled or presented in accordance with GAAP , and may not necessarily be presented on a basis consistent with the Borrower’s Financial Statements to be delivered each monthly financial statement furnished pursuant to Section 5.01(a);
(xiib) As soon as possible and in no event later than the later of (A) any of CBII’s or the Borrower’s officers or directors learning thereof or (B) five Business Days prior to the occurrence of any event or circumstance (except for asset losses in which case as promptly as is reasonable after above shall reflect variances from such asset loss) that would require a prepayment pursuant to Section 2.06(c)operating budget, the statement of the Chief Financial Officer, Chief Accounting Officer or Treasurer of the Borrower setting forth the details thereof;
(xiii) As soon as possible and in no event later than 30 days after the receipt thereof by any Loan Party (or subsequent determination after Due Inquiry by an officer of the Borrower that it could reasonably be expected to result in a Material Adverse Effect), a copy of any notice, summons, citations or other written communications concerning any actual, alleged, suspected or threatened violation of any Environmental Law or any liability of any Loan Party for Environmental Damages that in any such case could reasonably be expected to result in a Material Adverse Effect;
(xiv) Such other instruments, agreements, certificates, opinions, statements, documents and information relating to the properties, operations or condition (financial or otherwise) of the Significant Parties, and compliance by the Significant Parties with the terms of this Agreement and the other Credit Documents as the Administrative Agent or any Lender (through the Administrative Agent) same may from time to time reasonably requestbe revised;
(xvd) As soon as available promptly upon filing, copies of all registration statements, prospectuses, periodic reports, and in no event later than five Business Days after other documents filed by Tower Aggregator or any of CBII’s its Subsidiaries with the Securities and Exchange Commission; and
(e) prompt notice of (x) any event of default under any agreement with respect to material indebtedness for borrowed money or the Borrower’s officers or directors receive a material purchase money obligation, and any event which, upon notice or become aware lapse of time or both, would constitute such an event of default which would in any actions such case permit the holder of such indebtedness or obligation to accelerate the maturity thereof, and (including derivative actions)y) any action, suits, proceedings suit or investigations that are pending or, to the knowledge of any of CBII’s or the Borrower’s officers or directors, threatened against any Significant Party proceeding at law or in equity in any court, arbitration proceeding or by or before any other Governmental Authority which seek to enjoingovernmental instrumentality or agency which, either directly or indirectlyif adversely determined, the execution, delivery or performance by any Loan Party of the Credit Documents or the transactions contemplated thereby;
(xvi) As soon as available and in no event later than 120 days after the close of each fiscal year of CBII, would have a written supplement to Schedule 4.01(w) (setting forth a true and complete listing of all insurance maintained by the Significant Parties);
(xvii) Within 120 days after the close of each fiscal year of CBII, a written supplement disclosing any matters required to update factual matters relating to Section 4.01Material Adverse Effect.
Appears in 1 contract
Financial Statements, Reports. The Borrower shall furnish Provide Bank with the following by submitting to the Administrative Agent the followingFinancial Statement Repository or otherwise submitting to Bank:
(a) a Borrowing Base Statement accompanied by a detailed accounts receivable ledger (and any schedules related thereto and including any other information requested by Bank with respect to Borrower’s Accounts) (i) As soon as available and in with each request for an Advance, (ii) no event later than 60 Friday of each week when a Streamline Period is not in effect and any Advances are outstanding, (iii) within thirty (30) days after the last day end of each of month when a Streamline Period is in effect and any Advances are outstanding, and (iv) within forty-five (45) days after the first three fiscal quarters end of each fiscal year quarter of Borrower when no Advances are outstanding;
(b) within forty-five (45) days after the end of each fiscal quarter of Borrower, a copy (A) accounts receivable agings, aged by invoice date, (B) accounts payable agings, aged by invoice date, and (C) if any Advances are outstanding, reconciliations of the Financial Statements accounts receivable agings (aged by invoice date), general ledger, detailed accounts receivable ledger, and detailed listing of the Borrower Entities Account Debtors, and (prepared D) monthly perpetual inventory reports for Inventory valued on a consolidated basis) for first-in, first-out basis at the fiscal year to date, certified by the Chief Accounting Officer lower of cost or the Chief Financial Officer of the Borrower to present fairly in all material respects the financial condition, results of operations, cash flows, and other information reflected therein and to have been prepared market (in accordance with GAAP GAAP) or such other inventory reports as are requested by Bank in its good faith business judgment;
(subject to normal year c) as soon as available, but no later than forty-five (45) days after the end audit adjustments of each fiscal quarter of Borrower (except for the fourth (4th) fiscal quarter of each fiscal year), a consolidated balance sheet and omission of footnotes and income statement of shareholdercovering Borrower’s equityconsolidated operations for such fiscal in form consistent with such reports filed with the SEC (the “Quarterly Financial Statements”);
(iid) As soon as available and in no event later than 120 within forty-five (45) days after the close end of each fiscal year quarter of Borrower and together with the Quarterly Financial Statements, a completed Compliance Statement, confirming that, as of the Borrowerend of such fiscal quarter, copies of (A) the audited consolidated Financial Statements Borrower was in full compliance with all of the Borrower Entities for such yearterms and conditions of this Agreement, audited by Ernst & Young LLP or other independent certified public accountants of recognized national standing and registered setting forth calculations showing compliance with the Public Company Accounting Oversight Board and (B) copies of the unqualified opinions of such accountants;
(iii) Commencing with the fiscal quarter ended June 30, 2008, as soon as available and in no event later than 60 days after the last day of each of the first three fiscal quarters of each fiscal year in respect of quarterly Financial Statements of the Borrower Entities, 90 days after the close of each fiscal year in respect of yearly Financial Statements of the CBII Entities and 120 days after the close of each fiscal year in respect of yearly Financial Statements of the Borrower Entities in accordance with clause (i) above, clause (v) below and clause (ii) above, respectively, a compliance certificate of the Chief Accounting Officer or Treasurer of the Borrower (a “Compliance Certificate”) in substantially the form of Exhibit G-1; provided, however, that the only calculations to be provided in the Compliance Certificate delivered in connection with yearly Financial Statements of the CBII Entities shall be with respect to the Consolidated Adjusted Leverage Ratio;
(iv) As soon as available and in no event later than 45 days after the last day of each of the first three fiscal quarters of each fiscal year of CBII, a copy of the Quarterly Report for CBII on Form 10-Q for such quarter and for the fiscal year to date; provided that such information, to the extent the Borrower directly or indirectly provides the Administrative Agent with written notice and an appropriate internet link thereto, shall be accessed by Lenders on XXXXX;
(v) As soon as available and in no event later than 90 days after the close of each fiscal year of CBII, (A) copies of the Annual Report for CBII on Form 10-K for such year, audited by Ernst & Young LLP or other independent certified public accountants of recognized national standing and registered with the Public Company Accounting Oversight Board and (B) copies of the unqualified opinions of such accountants; provided that such information, to the extent the Borrower directly or indirectly provides the Administrative Agent with written notice and an appropriate internet link thereto, shall be accessed by Lenders on XXXXX;
(A) As soon as available and in no event later than 120 days after the close of each fiscal year of CBII, (1) a written supplement to Schedule 4.01(n) (setting forth all necessary Trademark information as financial covenants set forth in Section 4.01(n) this Agreement and relating to the Trademarks that are material to the conduct of the Significant Parties’ respective businesses such other information as then operated), (2) a written supplement to Schedule 3.06 to each Security Agreement, (3) any additional disclosures under Section 4.01(n) after Due Inquiry and (4) any additional disclosures to be provided on an annual basis under the Security Documents and (B) promptly, but in any event within a reasonable time after any officer of CBII or the Borrower obtains knowledge of the occurrence of an event that could Bank may reasonably be expected to result in a Material Adverse Effect on any of the Principal Trademarks or the Trademark Licenses, give the Administrative Agent notice of the occurrence of any such event;request; [†] DESIGNATES PORTIONS OF THIS DOCUMENT THAT HAVE BEEN OMITTED PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT FILED SEPARATELY WITH THE COMMISSION
(viie) within sixty (A60) As soon as available and in no event later than 120 days after the close of each fiscal year of CBII, a written supplement to Schedule 4.01(q) (setting forth each of the US Subsidiaries, each of the Significant Subsidiaries and each of the De Minimis US Subsidiaries, its jurisdiction of organization, the classes of its Equity Securities, the number of shares of each such class issued and outstanding, the percentages of shares of each such class owned directly or indirectly by CBII or the Borrower and whether CBII or the Borrower owns such shares directly or, if not, the CBII Entities that own such shares and the number of shares and percentages of shares of each such class owned directly or indirectly by such CBII Entities) and (B) promptly upon the reasonable request of the Administrative Agent and in no event more often than annually, a current hierarchy report for the CBII Entities, in the form and with the substance of the hierarchy report delivered pursuant to Section 3.01(g)(iii);
(viii) As soon as possible and in no event later than 30 days after any officer or director of any Significant Party knows of the occurrence or existence of (A) any ERISA Event under any Pension Plan or Multiemployer Plan which, either individually or in the aggregate, could reasonably be expected to have a Material Adverse Effect, (B) any actual or threatened litigation, suits, claims, disputes or investigations against any Significant Party involving potential monetary damages or in which injunctive relief or similar relief is sought, which could reasonably be expected to have a Material Adverse Effect, (C) any other event or condition which, either individually or in the aggregate, could reasonably be expected to have a Material Adverse Effect, including any of the following which could reasonably be expected to have a Material Adverse Effect: (1) breach or non-performance of, or any default under, a Contractual Obligation of any Significant Party, (2) any dispute, litigation, investigation, proceeding or suspension between any Significant Party and any Governmental Authority or (3) the commencement of, or any material development in, any litigation or proceeding affecting any Significant Party, including pursuant to any applicable Environmental Laws, or (D) any Default, the statement of the Chief Accounting Officer, Chief Financial Officer, or Treasurer of the Borrower setting forth details of such event, condition or Default and the action which CBII or the Borrower proposes to take with respect thereto. Each notice pursuant to this Section 5.01(a)(viii) shall be accompanied by a statement of an Officer of the Borrower setting forth details of the occurrence referred to therein and stating what action CBII or the Borrower has taken and proposes to take with respect thereto. Each notice pursuant to this Section 5.01(a)(viii) shall describe with particularity any and all provisions of this Agreement or other Credit Document that have been breached;
(ix) In no event later than five Business Days after they are sent, made available or filed, copies of (A) all registration statements and reports filed by any CBII Entities with any securities exchange or the United States Securities and Exchange Commission (including all 10-Q, 10-K and 8-K reports), (B) all reports, proxy statements and Financial Statements sent or made available by CBII to its Equity Securities holders and (C) all press releases and other similar public announcements concerning any material developments in the business of CBII made available by CBII to the public generally; provided that such information, to the extent the Borrower directly or indirectly provides the Administrative Agent with written notice and an appropriate internet link thereto, shall be accessed by Lenders on XXXXX;
(x) As soon as available and in no event later than 30 days after they are filed, copies of all IRS Form 5500 reports for all Pension Plans required to file such form;
(xi) Within the earlier to occur of (i) five days after the Board of Directors of the Borrower or CBII shall have publicly announced the earnings for the most recently completed fiscal year of the Borrower or CBII and (ii) 60 days after the end of each fiscal year of the Borrower Borrower, and CBIIcontemporaneously with any updates or amendments thereto, during each year when this Agreement is in effect(A) annual operating budgets (including income statements, a forecast balance sheets and cash flow statements, by month) for the current upcoming fiscal year of Borrower, and (B) annual financial projections for the subsequent fiscal year, in each case as approved by the Board, together with any related business forecasts presented together with such annual financial projections (for example, Borrower Entities shall deliver its operating budget and financial projections for its fiscal year ending December 31, 2018 within 60 days after the CBII Entities which includes projected last day of its fiscal year ending December 31, 2017);
(f) as soon as available, and in any event within ninety (90) days following the end of Borrower’s fiscal year, annual consolidated statement of income financial statements covering Borrower’s consolidated operations for such fiscal year and a projected consolidated statement of cash flows for such fiscal year and projected consolidated balance sheets, statements of income and statements of cash flows on a quarterly basis for such fiscal year; provided that the parties acknowledge that the information in such forecasts is not compiled or presented in accordance with GAAP and may not necessarily be presented on a basis form consistent with such reports filed with the BorrowerSEC;
(g) prompt written notice of any changes to the beneficial ownership information set out in Item 13 of the Perfection Certificate. Borrower understands and acknowledges that Bank relies on such true, accurate and up-to-date beneficial ownership information to meet Bank’s Financial Statements regulatory obligations to obtain, verify and record information about the beneficial owners of its legal entity customers;
(h) within five (5) days of filing, copies of all periodic and other reports, proxy statements and other materials filed by Borrower and/or any Guarantor with the SEC, any Governmental Authority succeeding to any or all of the functions of the SEC or with any national securities exchange, or distributed to its shareholders, as the case may be. Documents required to be delivered pursuant to Section 5.01(a)the terms hereof (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 on which Borrower posts such documents on Borrower’s website on the internet at Borrower’s website address, or provides a link or other access thereto to an email account specified by Bank;
(xiii) As soon as possible within five (5) days of delivery, copies of all statements, reports and in no event later than the later of (A) any of CBII’s or the notices made available to Borrower’s officers security holders or directors learning thereof or (B) five Business Days prior to the occurrence any holders of any event or circumstance (except for asset losses in which case as promptly as is reasonable after such asset loss) that would require a prepayment pursuant to Section 2.06(c), the statement of the Chief Financial Officer, Chief Accounting Officer or Treasurer of the Borrower setting forth the details thereofSubordinated Debt;
(xiiij) As soon as possible and prompt report of any legal actions pending or threatened in no event later than 30 days after the receipt thereof by writing against Borrower or any Loan Party (or subsequent determination after Due Inquiry by an officer of the Borrower its Subsidiaries that it could reasonably be expected to result in a Material Adverse Effect), a copy of any notice, summons, citations damages or other written communications concerning any actual, alleged, suspected or threatened violation of any Environmental Law costs to Borrower or any liability of any Loan Party for Environmental Damages that its Subsidiaries of, individually or in any such case could reasonably be expected to result in a Material Adverse Effectthe aggregate, Five Hundred Thousand Dollars ($500,000) or more;
(xivk) Such other instruments, agreements, certificates, opinions, statements, documents and information relating together with the next Compliance Statement to be delivered after the properties, operations or condition (financial or otherwise) closing of any Permitted Commercialization Arrangement for which the value of the Significant Partiescash and tangible property Investments by Borrower (valued at cost) would exceed Two Million Five Hundred Thousand Dollars ($2,500,000), and executed copies of the transaction documents for such Permitted Commercialization Arrangement; and
(l) promptly, from time to time, such other information regarding Borrower or compliance by the Significant Parties with the terms of this Agreement and the other Credit any Loan Documents as the Administrative Agent reasonably requested by Bank. Any submission by Borrower of a Compliance Statement, a Borrowing Base Statement or any Lender other financial statement submitted to the Financial Statement Repository pursuant to this Section 6.2 or otherwise submitted to Bank shall be deemed to be a representation by Borrower that (through i) as of the Administrative Agentdate of such Compliance Statement, Borrowing Base Statement or other financial statement, the information and calculations set forth therein are true, accurate and correct, (ii) may from time as of the end of the compliance period set forth in such submission, Borrower is in complete compliance with all required covenants except as noted in such Compliance Statement, Borrowing Base Statement or other financial statement, as applicable, (iii) as of the date of such submission, no Events of Default have occurred or are continuing, (iv) all representations and warranties other than any representations or warranties that are made as of a specific date in Section 5 remain true and correct in all material respects as of the date of such submission except as noted in such Compliance Statement, Borrowing Base Statement or other financial statement, as applicable, (v) as of the date of such submission, Borrower and each of its Subsidiaries has timely filed all required tax returns and reports, and Borrower has timely paid all foreign, federal, state and local taxes, assessments, deposits and contributions owed by Borrower except as otherwise permitted pursuant to time reasonably request;
the terms of Section 5.9, and (xvvi) As soon as available and in of the date of such submission, no event later than five Business Days after Liens have been levied or claims made against Borrower or any of CBII’s or the Borrower’s officers or directors receive notice or become aware of any actions (including derivative actions), suits, proceedings or investigations that are pending or, to the knowledge of any of CBII’s or the Borrower’s officers or directors, threatened against any Significant Party at law or in equity in any court, arbitration proceeding or before any other Governmental Authority which seek to enjoin, either directly or indirectly, the execution, delivery or performance by any Loan Party of the Credit Documents or the transactions contemplated thereby;
(xvi) As soon as available and in no event later than 120 days after the close of each fiscal year of CBII, a written supplement to Schedule 4.01(w) (setting forth a true and complete listing of all insurance maintained by the Significant Parties);
(xvii) Within 120 days after the close of each fiscal year of CBII, a written supplement disclosing any matters required to update factual matters its Subsidiaries relating to Section 4.01unpaid employee payroll or benefits of which Borrower has not previously provided written notification to Bank.
Appears in 1 contract
Samples: Loan and Security Agreement (NanoString Technologies Inc)
Financial Statements, Reports. The Borrower shall furnish Provide Bank with the following by submitting to the Administrative Agent the followingFinancial Statement Repository or otherwise submitting to Bank:
(a) a Borrowing Base Statement accompanied by a detailed accounts receivable ledger (and any schedules related thereto and including any other information requested by Bank with respect to Borrower’s Accounts) (i) As soon as available and in with each request for an Advance, (ii) no event later than 60 Friday of each week when a Streamline Period is not in effect and any Advances are outstanding, (iii) within thirty (30) days after the last day end of each of month when a Streamline Period is in effect and any Advances are outstanding, and (iv) within forty-five (45) days after the first three fiscal quarters end of each fiscal year quarter of Borrower when no Advances are outstanding;
(b) within forty-five (45) days after the end of each fiscal quarter of Borrower, a copy (A) accounts receivable agings, aged by invoice date, (B) accounts payable agings, aged by invoice date, and outstanding or held check registers, if any, and (C) if any Advances are outstanding, reconciliations of accounts receivable agings (aged by invoice date), general ledger, detailed accounts receivable ledger, and detailed listing of Account Debtors;
(c) as soon as available, but no later than forty-five (45) days after the Financial Statements end of each fiscal quarter of Borrower (except for the Borrower Entities fourth (prepared on 4th) fiscal quarter of each fiscal year), a consolidated basis) balance sheet and income statement covering Borrower’s consolidated operations for such fiscal in form consistent with such reports filed with the fiscal year to date, certified by SEC (the Chief Accounting Officer or the Chief “Quarterly Financial Officer of the Borrower to present fairly in all material respects the financial condition, results of operations, cash flows, and other information reflected therein and to have been prepared in accordance with GAAP (subject to normal year end audit adjustments and omission of footnotes and statement of shareholder’s equityStatements”);
(iid) As soon as available and in no event later than 120 within forty-five (45) days after the close end of each fiscal year quarter of Borrower and together with the Quarterly Financial Statements, a completed Compliance Statement, confirming that, as of the Borrowerend of such fiscal quarter, copies of (A) the audited consolidated Financial Statements Borrower was in full compliance with all of the Borrower Entities for such yearterms and conditions of this Agreement, audited by Ernst & Young LLP or other independent certified public accountants of recognized national standing and registered setting forth calculations showing compliance with the Public Company Accounting Oversight Board financial covenants set forth in this Agreement and (B) copies of the unqualified opinions of such accountantsother information as Bank may reasonably request;
(iiie) Commencing with the fiscal quarter ended June 30, 2008, as soon as available and in no event later than 60 days after the last day of each of the first three fiscal quarters of each fiscal year in respect of quarterly Financial Statements of the Borrower Entities, 90 days after the close of each fiscal year in respect of yearly Financial Statements of the CBII Entities and 120 days after the close of each fiscal year in respect of yearly Financial Statements of the Borrower Entities in accordance with clause within sixty (i60) above, clause (v) below and clause (ii) above, respectively, a compliance certificate of the Chief Accounting Officer or Treasurer of the Borrower (a “Compliance Certificate”) in substantially the form of Exhibit G-1; provided, however, that the only calculations to be provided in the Compliance Certificate delivered in connection with yearly Financial Statements of the CBII Entities shall be with respect to the Consolidated Adjusted Leverage Ratio;
(iv) As soon as available and in no event later than 45 days after the last day of each of the first three fiscal quarters of each fiscal year of CBII, a copy of the Quarterly Report for CBII on Form 10-Q for such quarter and for the fiscal year to date; provided that such information, to the extent the Borrower directly or indirectly provides the Administrative Agent with written notice and an appropriate internet link thereto, shall be accessed by Lenders on XXXXX;
(v) As soon as available and in no event later than 90 days after the close of each fiscal year of CBII, (A) copies of the Annual Report for CBII on Form 10-K for such year, audited by Ernst & Young LLP or other independent certified public accountants of recognized national standing and registered with the Public Company Accounting Oversight Board and (B) copies of the unqualified opinions of such accountants; provided that such information, to the extent the Borrower directly or indirectly provides the Administrative Agent with written notice and an appropriate internet link thereto, shall be accessed by Lenders on XXXXX;
(A) As soon as available and in no event later than 120 days after the close of each fiscal year of CBII, (1) a written supplement to Schedule 4.01(n) (setting forth all necessary Trademark information as set forth in Section 4.01(n) and relating to the Trademarks that are material to the conduct of the Significant Parties’ respective businesses as then operated), (2) a written supplement to Schedule 3.06 to each Security Agreement, (3) any additional disclosures under Section 4.01(n) after Due Inquiry and (4) any additional disclosures to be provided on an annual basis under the Security Documents and (B) promptly, but in any event within a reasonable time after any officer of CBII or the Borrower obtains knowledge of the occurrence of an event that could reasonably be expected to result in a Material Adverse Effect on any of the Principal Trademarks or the Trademark Licenses, give the Administrative Agent notice of the occurrence of any such event;
(vii) (A) As soon as available and in no event later than 120 days after the close of each fiscal year of CBII, a written supplement to Schedule 4.01(q) (setting forth each of the US Subsidiaries, each of the Significant Subsidiaries and each of the De Minimis US Subsidiaries, its jurisdiction of organization, the classes of its Equity Securities, the number of shares of each such class issued and outstanding, the percentages of shares of each such class owned directly or indirectly by CBII or the Borrower and whether CBII or the Borrower owns such shares directly or, if not, the CBII Entities that own such shares and the number of shares and percentages of shares of each such class owned directly or indirectly by such CBII Entities) and (B) promptly upon the reasonable request of the Administrative Agent and in no event more often than annually, a current hierarchy report for the CBII Entities, in the form and with the substance of the hierarchy report delivered pursuant to Section 3.01(g)(iii);
(viii) As soon as possible and in no event later than 30 days after any officer or director of any Significant Party knows of the occurrence or existence of (A) any ERISA Event under any Pension Plan or Multiemployer Plan which, either individually or in the aggregate, could reasonably be expected to have a Material Adverse Effect, (B) any actual or threatened litigation, suits, claims, disputes or investigations against any Significant Party involving potential monetary damages or in which injunctive relief or similar relief is sought, which could reasonably be expected to have a Material Adverse Effect, (C) any other event or condition which, either individually or in the aggregate, could reasonably be expected to have a Material Adverse Effect, including any of the following which could reasonably be expected to have a Material Adverse Effect: (1) breach or non-performance of, or any default under, a Contractual Obligation of any Significant Party, (2) any dispute, litigation, investigation, proceeding or suspension between any Significant Party and any Governmental Authority or (3) the commencement of, or any material development in, any litigation or proceeding affecting any Significant Party, including pursuant to any applicable Environmental Laws, or (D) any Default, the statement of the Chief Accounting Officer, Chief Financial Officer, or Treasurer of the Borrower setting forth details of such event, condition or Default and the action which CBII or the Borrower proposes to take with respect thereto. Each notice pursuant to this Section 5.01(a)(viii) shall be accompanied by a statement of an Officer of the Borrower setting forth details of the occurrence referred to therein and stating what action CBII or the Borrower has taken and proposes to take with respect thereto. Each notice pursuant to this Section 5.01(a)(viii) shall describe with particularity any and all provisions of this Agreement or other Credit Document that have been breached;
(ix) In no event later than five Business Days after they are sent, made available or filed, copies of (A) all registration statements and reports filed by any CBII Entities with any securities exchange or the United States Securities and Exchange Commission (including all 10-Q, 10-K and 8-K reports), (B) all reports, proxy statements and Financial Statements sent or made available by CBII to its Equity Securities holders and (C) all press releases and other similar public announcements concerning any material developments in the business of CBII made available by CBII to the public generally; provided that such information, to the extent the Borrower directly or indirectly provides the Administrative Agent with written notice and an appropriate internet link thereto, shall be accessed by Lenders on XXXXX;
(x) As soon as available and in no event later than 30 days after they are filed, copies of all IRS Form 5500 reports for all Pension Plans required to file such form;
(xi) Within the earlier to occur of (i) five days after the Board of Directors of the Borrower or CBII shall have publicly announced the earnings for the most recently completed fiscal year of the Borrower or CBII and (ii) 60 days after the end of each fiscal year of the Borrower Borrower, and CBIIcontemporaneously with any updates or amendments thereto, during each year when this Agreement is in effect(A) annual operating budgets (including income statements, a forecast balance sheets and cash flow statements, by month) for the current upcoming fiscal year of Borrower, and (B) annual financial projections for the subsequent fiscal year, in each case as approved by the Board, together with any related business forecasts presented together with such annual financial projections (for example, Borrower Entities shall deliver its operating budget and financial projections for its fiscal year ending December 31, 2018 within 60 days after the CBII Entities which includes projected last day of its fiscal year ending December 31, 2017);
(f) as soon as available, and in any event within ninety (90) days following the end of Borrower’s fiscal year, annual consolidated statement of income financial statements covering Borrower’s consolidated operations for such fiscal year and a projected consolidated statement of cash flows for such fiscal year and projected consolidated balance sheets, statements of income and statements of cash flows on a quarterly basis for such fiscal year; provided that the parties acknowledge that the information in such forecasts is not compiled or presented in accordance with GAAP and may not necessarily be presented on a basis form consistent with such reports filed with the Borrower’s Financial Statements SEC;
(g) within five (5) days of filing, copies of all periodic and other reports, proxy statements and other materials filed by Borrower and/or any Guarantor with the SEC, any Governmental Authority succeeding to any or all of the functions of the SEC or with any national securities exchange, or distributed to its shareholders, as the case may be. Documents required to be delivered pursuant to Section 5.01(a)the terms hereof (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 on which Borrower posts such documents on Borrower’s website on the internet at Borrower’s website address, or provides a link or other access thereto to an email account specified by Bank;
(xiih) As soon as possible within five (5) days of delivery, copies of all statements, reports and in no event later than the later of (A) any of CBII’s or the notices made available to Borrower’s officers security holders or directors learning thereof or (B) five Business Days prior to the occurrence any holders of any event or circumstance (except for asset losses in which case as promptly as is reasonable after such asset loss) that would require a prepayment pursuant to Section 2.06(c), the statement of the Chief Financial Officer, Chief Accounting Officer or Treasurer of the Borrower setting forth the details thereofSubordinated Debt;
(xiiii) As soon as possible and prompt report of any legal actions pending or threatened in no event later than 30 days after the receipt thereof by writing against Borrower or any Loan Party (or subsequent determination after Due Inquiry by an officer of the Borrower its Subsidiaries that it could reasonably be expected to result in a Material Adverse Effect), a copy of any notice, summons, citations damages or other written communications concerning any actual, alleged, suspected or threatened violation of any Environmental Law costs to Borrower or any liability of any Loan Party for Environmental Damages that its Subsidiaries of, individually or in any such case could reasonably be expected to result in a Material Adverse Effectthe aggregate, Five Hundred Thousand Dollars ($500,000) or more;
(xivj) Such other instruments, agreements, certificates, opinions, statements, documents and information relating together with the next Compliance Statement to be delivered after the properties, operations or condition (financial or otherwise) closing of any Permitted Commercialization Arrangement for which the value of the Significant Partiescash and tangible property Investments by Borrower (valued at cost) would exceed Two Million Five Hundred Thousand Dollars ($2,500,000), and executed copies of the transaction documents for such Permitted Commercialization Arrangement; and
(k) promptly, from time to time, such other information regarding Borrower or compliance by the Significant Parties with the terms of this Agreement and the other Credit any Loan Documents as the Administrative Agent reasonably requested by Bank. Any submission by Borrower of a Compliance Statement, a Borrowing Base Statement or any Lender other financial statement submitted to the Financial Statement Repository pursuant to this Section 6.2 or otherwise submitted to Bank shall be deemed to be a representation by Borrower that (through i) as of the Administrative Agentdate of such Compliance Statement, Borrowing Base Statement or other financial statement, the information and calculations set forth therein are true, accurate and correct, (ii) may from time as of the end of the compliance period set forth in such submission, Borrower is in complete compliance with all required covenants except as noted in such Compliance Statement, Borrowing Base Statement or other financial statement, as applicable, (iii) as of the date of such submission, no Events of Default have occurred or are continuing, (iv) all representations and warranties other than any representations or warranties that are made as of a specific date in Section 5 remain true and correct in all material respects as of the date of such submission except as noted in such Compliance Statement, Borrowing Base Statement or other financial statement, as applicable, (v) as of the date of such submission, Borrower and each of its Subsidiaries has timely filed all required tax returns and reports, and Borrower has timely paid all foreign, federal, state and local taxes, assessments, deposits and contributions owed by Borrower except as otherwise permitted pursuant to time reasonably request;
the terms of Section 5.9, and (xvvi) As soon as available and in of the date of such submission, no event later than five Business Days after Liens have been levied or claims made against Borrower or any of CBII’s or the Borrower’s officers or directors receive notice or become aware of any actions (including derivative actions), suits, proceedings or investigations that are pending or, to the knowledge of any of CBII’s or the Borrower’s officers or directors, threatened against any Significant Party at law or in equity in any court, arbitration proceeding or before any other Governmental Authority which seek to enjoin, either directly or indirectly, the execution, delivery or performance by any Loan Party of the Credit Documents or the transactions contemplated thereby;
(xvi) As soon as available and in no event later than 120 days after the close of each fiscal year of CBII, a written supplement to Schedule 4.01(w) (setting forth a true and complete listing of all insurance maintained by the Significant Parties);
(xvii) Within 120 days after the close of each fiscal year of CBII, a written supplement disclosing any matters required to update factual matters its Subsidiaries relating to Section 4.01unpaid employee payroll or benefits of which Borrower has not previously provided written notification to Bank.
Appears in 1 contract
Financial Statements, Reports. The Borrower shall furnish to the Administrative Agent the following:
(i) As soon as available and in no event later than 60 days after the last day of each of the first three fiscal quarters of each fiscal year of the Borrower, a copy of the Financial Statements of the Borrower Entities (prepared on a consolidated basis) for the fiscal year to date, certified by the Chief Accounting Officer or the Chief Financial Officer of the Borrower to present fairly in all material respects the financial condition, results of operations, cash flows, and other information reflected therein and to have been prepared in accordance with GAAP (subject to normal year end audit adjustments and omission of footnotes and statement of shareholder’s equity);
(ii) As soon as available and in no event later than 120 days after the close of each fiscal year of the Borrower, copies of (A) the audited consolidated Financial Statements of the Borrower Entities for such year, audited by Ernst & Young LLP or other independent certified public accountants of recognized national standing and registered with the Public Company Accounting Oversight Board and (B) copies of the unqualified opinions of such accountants;
(iii) Commencing with the fiscal quarter ended June 30, 2008, as As soon as available and in no event later than 60 days after the last day of each of the first three fiscal quarters of each fiscal year in respect of quarterly Financial Statements of the Borrower Entities, 90 days after the close of each fiscal year in respect of yearly Financial Statements of the CBII Entities and 120 days after the close of each fiscal year in respect of yearly Financial Statements of the Borrower Entities in accordance with clause clauses (i) above, clause (v) below and clause (ii) abovehereof, respectively, a compliance certificate of the Chief Accounting Officer or Treasurer of the Borrower in substantially the form of Exhibit G-1 hereto (a “Compliance Certificate”) in substantially the form of Exhibit G-1; provided, however, that the only calculations to be provided in the Compliance Certificate delivered in connection with yearly Financial Statements of the CBII Entities shall be with respect to the Consolidated Adjusted Leverage Ratio);
(iv) As soon as available and in no event later than 45 days after the last day of each of the first three fiscal quarters of each fiscal year of CBII, a copy of the Quarterly Report for CBII on Form 10-Q for such quarter and for the fiscal year to date; provided that such informationthese items are publicly filed and, to the extent the Borrower directly or indirectly provides the Administrative Agent with written notice and an appropriate internet link theretolink, shall be accessed by Lenders on XXXXX;
(v) As soon as available and in no event later than 90 days after the close of each fiscal year of CBII, (A) copies of the Annual Report for CBII on Form 10-K for such year, audited by Ernst & Young LLP or other independent certified public accountants of recognized national standing and registered with the Public Company Accounting Oversight Board and (B) copies of the unqualified opinions of such accountants; provided that such informationthese items are publicly filed and, to the extent the Borrower directly or indirectly provides the Administrative Agent with written notice and an appropriate internet link theretolink, shall be accessed by Lenders on XXXXX;
(A) As soon as available and in no event later than 120 days after the close of each fiscal year of CBII, (1) a written supplement to Schedule 4.01(n) hereto (setting forth all necessary Trademark Xxxxxxxx Trademarks information as set forth in Section 4.01(n) and relating to the Xxxxxxxx Trademarks that are material to the conduct of the Significant Parties’ respective businesses as then operated), (2) a written supplement to Schedule 3.06 to each Security Agreement, (3) as well as any additional disclosures under Section 4.01(n) after Due Inquiry and (4) any additional disclosures to be provided on an annual basis under the Security Documents Inquiry; and (B) promptly, but in any event within a reasonable time after any officer of CBII or the Borrower obtains knowledge of the occurrence of an event that could reasonably be expected to result in a Material Adverse Effect on any of the Principal Trademarks or the Trademark Licenses, give the Administrative Agent notice of the occurrence of any such event;.
(vii) (A) As soon as available and in no event later than 120 days after the close of each fiscal year of CBII, a written supplement to Schedule 4.01(q) hereto (setting forth each of the US Subsidiaries, Subsidiaries and each of the Significant Subsidiaries and each of the De Minimis US SubsidiariesBorrower, its jurisdiction of organization, the classes of its Equity Securities, the number of shares of each such class issued and outstanding, the percentages of shares of each such class owned directly or indirectly by CBII or the Borrower and whether CBII or the Borrower owns such shares directly or, if not, the CBII Entities that own such shares and the number of shares and percentages of shares of each such class owned directly or indirectly by such CBII Entities) and (B) promptly upon the reasonable request of the Administrative Agent and in no event more often than annually, a current hierarchy report for the CBII Entities, in the form and with the substance of the hierarchy report delivered pursuant to Section 3.01(g)(iiiBorrower);
(viii) As soon as possible and in no event later than 30 days after any officer or director of any Significant Party knows of the occurrence or existence of (A) any ERISA Event under any Pension Plan or Multiemployer Plan which, either individually or in the aggregate, could reasonably be expected to have a Material Adverse Effect, (B) any actual or threatened litigation, suits, claims, disputes or investigations against any Significant Party involving potential monetary damages or in which injunctive relief or similar relief is sought, which could reasonably be expected to have a Material Adverse Effect, (C) any other event or condition which, either individually or in the aggregate, could reasonably be expected to have a Material Adverse Effect, including any of the following which could reasonably be expected to have a Material Adverse Effect: (1I) breach or non-performance of, or any default under, a Contractual Obligation of any Significant Party, ; (2II) any dispute, litigation, investigation, proceeding or suspension between any Significant Party and any Governmental Authority Authority; or (3III) the commencement of, or any material development in, any litigation or proceeding affecting any Significant Party, including pursuant to any applicable Environmental Laws, ; or (D) any Default, the statement of the Chief Accounting Officer, Chief Financial Officer, or Treasurer of the Borrower setting forth details of such event, condition or Default and the action which CBII or the Borrower proposes to take with respect thereto. Each notice pursuant to this Section 5.01(a)(viii) shall be accompanied by a statement of an Officer of the Borrower setting forth details of the occurrence referred to therein and stating what action CBII or the Borrower has taken and proposes to take with respect thereto. Each notice pursuant to this Section 5.01(a)(viii) shall describe with particularity any and all provisions of this Agreement or other Credit Document that have been breached;
(ix) In no event later than five Business Days after they are sent, made available or filed, copies of (A) all registration statements and reports filed by any CBII Entities with any securities exchange or the United States Securities and Exchange Commission (including all 10-Q, 10-K and 8-K reports), ; (B) all reports, proxy statements and Financial Statements sent or made available by CBII to its Equity Securities holders holders; and (C) all press releases and other similar public announcements concerning any material developments in the business of CBII made available by CBII to the public generally; provided that such informationthese items are publicly filed and, to the extent the Borrower directly or indirectly provides the Administrative Agent with written notice and an appropriate internet link theretolink, shall be accessed by Lenders on XXXXX;
(x) As soon as available and in no event later than 30 days after they are filed, copies of all IRS Form 5500 reports for all Pension Plans required to file such form;
(xi) Within the earlier to occur of (i) five days after the Board of Directors of the Borrower or CBII shall have publicly announced the earnings for the most recently completed fiscal year of the Borrower or CBII and (ii) 60 No later than 45 days after the end of each fiscal year of Borrower Entities and the Borrower and CBII, CBII Entities during each year when this Agreement is in effect, a forecast for the current fiscal year of the Borrower Entities and the CBII Entities which includes projected consolidated statement of income for such fiscal year and a projected consolidated statement of cash flows for such fiscal year and projected consolidated balance sheets, statements of income and statements of cash flows on a quarterly basis for such fiscal year; provided that the parties acknowledge that the information in such forecasts is not compiled or presented in accordance with GAAP and may not necessarily be presented on a basis consistent with the Borrower’s Financial Statements to be delivered pursuant to Section 5.01(a);
(xii) As soon as possible and in no event later than the later of (Ai) any of CBII’s or the Borrower’s officers or directors learning thereof or (Bii) five Business Days prior to the occurrence of any event or circumstance (except for asset losses in which case as promptly as is reasonable after such asset loss) that would require a prepayment pursuant to Section 2.06(c2.07(c), the statement of the Chief Financial Officer, Chief Accounting Officer or Treasurer of the Borrower setting forth the details thereof;
(xiii) As soon as possible and in no event later than 30 days after the receipt thereof by any Loan Party (or subsequent determination after Due Inquiry by an officer of the Borrower that it could reasonably be expected to result in a Material Adverse Effect), a copy of any notice, summons, citations or other written communications concerning any actual, alleged, suspected or threatened violation of any Environmental Law or any liability of any Loan Party for Environmental Damages that in any such case could reasonably be expected to result in a Material Adverse Effect;
(xiv) Such other instruments, agreements, certificates, opinions, statements, documents and information relating to the properties, operations or condition (financial or otherwise) of the Significant Parties, and compliance by the Significant Parties with the terms of this Agreement and the other Credit Documents as the Administrative Agent or any Lender (through the Administrative Agent) may from time to time reasonably request;
(xv) As soon as available and in no event later than five 5 Business Days after any of CBII’s or the Borrower’s officers or directors receive notice or become aware of any actions (including derivative actions), suits, proceedings or investigations that are pending or, or to the knowledge of any of CBII’s or the Borrower’s officers or directorsdirectors threatened, threatened against any Significant Party at law or in equity in any court, arbitration proceeding or before any other Governmental Authority which seek to enjoin, either directly or indirectly, the execution, delivery or performance by any Loan Party of the Credit Documents or the transactions contemplated thereby;
(xvi) As soon as available and in no event later than 120 days after the close of each fiscal year of CBII, a written supplement to Schedule 4.01(w) hereto (setting forth a true and complete listing of all insurance maintained by the Significant Parties);
(xvii) Within 120 days after the close of each fiscal year of CBII, a written supplement disclosing any matters required to update factual matters relating to Section 4.014.01(s); and
(xviii) To the extent delivered (and thereafter requested by Administrative Agent or Lenders), management letters delivered by CBII’s or Borrower’s accountants in connection with any of CBII’s or Borrower’s Financial Statements;
Appears in 1 contract
Samples: Credit Agreement (Chiquita Brands International Inc)
Financial Statements, Reports. The Borrower shall furnish Provide Bank with the following by submitting to the Administrative Agent Financial Statement Repository or otherwise submitting to Bank:
(a) a Borrowing Base Statement (and any schedules related thereto and including any other information requested by Bank with respect to Borrower’s Accounts): (i) no later than Friday of each week when a Streamline Period is not in effect and the following:principal amount outstanding under the Revolving Line is greater than Zero Dollars ($0.00); (ii) within seven (7) days after the end of each month (provided however that if such seventh day is not a Business Day, then such Borrowing Base Statement shall be delivered on next Business Day) when a Streamline Period is in effect at all times during such month and the principal amount outstanding under the Revolving Line was greater than Zero Dollars ($0.00) at any time during such calendar month; and (iii) within seven (7) days after the end of each fiscal quarter when the principal amount outstanding under the Revolving Line was equal to Zero Dollars ($0.00) at all times during such fiscal quarter;
(i) As soon as available and in no event later than 60 Within thirty (30) days after the last day end of each fiscal quarter when the principal amount outstanding under the Revolving Line was equal to Zero Dollars ($0.00) at all times during such fiscal quarter, and (ii) within thirty (30) days after the end of each month when the principal amount outstanding under the Revolving Line was greater than Zero Dollars ($0.00) at any time during such calendar month, (A) monthly accounts receivable agings, aged by invoice date, (B) monthly accounts payable agings, aged by invoice date (C) monthly reconciliations of accounts receivable agings (aged by invoice date) and general ledger, and (D) monthly perpetual inventory reports for Inventory consisting of finished products valued on a first-in, first-out basis at the lower of cost or market (in accordance with GAAP) or such other inventory reports as are requested by Bank in its good faith business judgment;
(c) as soon as available, but no later than within forty-five (45) days after the end of each fiscal quarter, a company prepared consolidated balance sheet and income statement covering Borrower’s and each of its Subsidiary’s operations for such period in a form acceptable to Bank (the “Quarterly Financial Statements”); provided, however, notwithstanding the foregoing, the Quarterly Financial Statements for Borrower’s fourth (4th) quarter of each fiscal year, shall be due within ninety (90) days of such fiscal quarter;
(d) (i) within forty-five (45) days after the end of each fiscal quarter when the principal amount outstanding under the Revolving Line was equal to Zero Dollars ($0.00) at all times during such fiscal quarter, and (ii) within thirty (30) days after the end of each month when the principal amount outstanding under the Revolving Line was greater than Zero Dollars ($0.00) at any time during such calendar month, and together with the Quarterly Financial Statements when due in accordance with the terms set forth in Section 6.2(d)(i) above, a completed Compliance Statement, confirming that, as of the first three fiscal quarters end of such month, Borrower was in full compliance with all of the terms and conditions of this Agreement and such other information as Bank may reasonably request;
(e) within thirty (30) days of the end of each fiscal year of the Borrower, a copy and within seven (7) days of the Financial Statements of the Borrower Entities any updates or amendments thereto, (prepared on a A) consolidated basisannual operating budgets (including income statements, balance sheets and cash flow statements, by quarter) for the fiscal year to date, certified by the Chief Accounting Officer or the Chief Financial Officer of the Borrower to present fairly in all material respects the financial condition, results of operations, cash flows, and other information reflected therein and to have been prepared in accordance with GAAP (subject to normal year end audit adjustments and omission of footnotes and statement of shareholder’s equity);
(ii) As soon as available and in no event later than 120 days after the close of each then-current fiscal year of the Borrower, copies of (A) the audited consolidated Financial Statements of the Borrower Entities for such year, audited by Ernst & Young LLP or other independent certified public accountants of recognized national standing and registered with the Public Company Accounting Oversight Board its Subsidiaries and (B) copies of annual financial projections for the unqualified opinions then-current fiscal year (on a quarterly basis), in each case as approved by the Board, together with any related business forecasts used in the preparation of such accountantsannual financial projections;
(iiif) Commencing within five (5) days of filing, copies of all periodic and other reports, proxy statements and other materials filed by Borrower and/or any Guarantor with the fiscal quarter ended June 30SEC, 2008any Governmental Authority succeeding to any or all of the functions of the SEC or with any national securities exchange, or distributed to its shareholders, as soon as available the case may be. Documents required to be delivered pursuant to the terms hereof (to the extent any such documents are included in materials otherwise filed with the SEC) may be delivered electronically and in no event later than 60 days after if so delivered, shall be deemed to have been delivered on the last day of each of date on which Borrower posts such documents, or provides a link thereto, on Borrower’s website on the first three fiscal quarters of each fiscal year in respect of quarterly Financial Statements of the Borrower Entities, 90 days after the close of each fiscal year in respect of yearly Financial Statements of the CBII Entities and 120 days after the close of each fiscal year in respect of yearly Financial Statements of the Borrower Entities in accordance with clause (i) above, clause (v) below and clause (ii) above, respectively, a compliance certificate of the Chief Accounting Officer or Treasurer of the Borrower (a “Compliance Certificate”) in substantially the form of Exhibit G-1internet at Borrower’s website address; provided, however, that the only calculations to Borrower shall promptly notify Bank in writing (which may be provided in the Compliance Certificate delivered in connection with yearly Financial Statements by electronic mail) of the CBII Entities shall be with respect to the Consolidated Adjusted Leverage Ratioposting of any such documents;
(ivg) As soon as available and prompt report of any legal actions pending or threatened in no event later than 45 days after the last day writing against Borrower or any of each of the first three fiscal quarters of each fiscal year of CBII, a copy of the Quarterly Report for CBII on Form 10-Q for such quarter and for the fiscal year to date; provided that such information, to the extent the Borrower directly or indirectly provides the Administrative Agent with written notice and an appropriate internet link thereto, shall be accessed by Lenders on XXXXX;
(v) As soon as available and in no event later than 90 days after the close of each fiscal year of CBII, (A) copies of the Annual Report for CBII on Form 10-K for such year, audited by Ernst & Young LLP or other independent certified public accountants of recognized national standing and registered with the Public Company Accounting Oversight Board and (B) copies of the unqualified opinions of such accountants; provided that such information, to the extent the Borrower directly or indirectly provides the Administrative Agent with written notice and an appropriate internet link thereto, shall be accessed by Lenders on XXXXX;
(A) As soon as available and in no event later than 120 days after the close of each fiscal year of CBII, (1) a written supplement to Schedule 4.01(n) (setting forth all necessary Trademark information as set forth in Section 4.01(n) and relating to the Trademarks that are material to the conduct of the Significant Parties’ respective businesses as then operated), (2) a written supplement to Schedule 3.06 to each Security Agreement, (3) any additional disclosures under Section 4.01(n) after Due Inquiry and (4) any additional disclosures to be provided on an annual basis under the Security Documents and (B) promptly, but in any event within a reasonable time after any officer of CBII or the Borrower obtains knowledge of the occurrence of an event its Subsidiaries that could reasonably be expected to result in a Material Adverse Effect on damages or costs to Borrower or any of the Principal Trademarks or the Trademark Licensesits Subsidiaries of, give the Administrative Agent notice of the occurrence of any such event;
(vii) (A) As soon as available and in no event later than 120 days after the close of each fiscal year of CBII, a written supplement to Schedule 4.01(q) (setting forth each of the US Subsidiaries, each of the Significant Subsidiaries and each of the De Minimis US Subsidiaries, its jurisdiction of organization, the classes of its Equity Securities, the number of shares of each such class issued and outstanding, the percentages of shares of each such class owned directly or indirectly by CBII or the Borrower and whether CBII or the Borrower owns such shares directly or, if not, the CBII Entities that own such shares and the number of shares and percentages of shares of each such class owned directly or indirectly by such CBII Entities) and (B) promptly upon the reasonable request of the Administrative Agent and in no event more often than annually, a current hierarchy report for the CBII Entities, in the form and with the substance of the hierarchy report delivered pursuant to Section 3.01(g)(iii);
(viii) As soon as possible and in no event later than 30 days after any officer or director of any Significant Party knows of the occurrence or existence of (A) any ERISA Event under any Pension Plan or Multiemployer Plan which, either individually or in the aggregate, could One Million Dollars ($1,000,000) or more;
(h) within thirty (30) days of the end of each calendar quarter, an update on the status of any litigation disclosed on the Perfection Certificate along with such other information relating thereto as reasonably be expected requested by Bank;
(i) prompt written notice of any changes to have the beneficial ownership information set out in Section 13 to the Perfection Certificate. Borrower understands and acknowledges that Bank relies on such true, accurate and up-to-date beneficial ownership information to meet Bank’s regulatory obligations to obtain, verify and record information about the beneficial owners of its legal entity customers; and
(j) promptly, from time to time, such other information regarding Borrower or compliance with the terms of any Loan Documents as reasonably requested by Bank. Any submission by Borrower of a Material Adverse EffectCompliance Statement, (B) any actual a Borrowing Base Statement or threatened litigation, suits, claims, disputes or investigations against any Significant Party involving potential monetary damages or in which injunctive relief or similar relief is sought, which could reasonably be expected to have a Material Adverse Effect, (C) any other event or condition which, either individually or in financial statement submitted to the aggregate, could reasonably be expected to have a Material Adverse Effect, including any of the following which could reasonably be expected to have a Material Adverse Effect: (1) breach or non-performance of, or any default under, a Contractual Obligation of any Significant Party, (2) any dispute, litigation, investigation, proceeding or suspension between any Significant Party and any Governmental Authority or (3) the commencement of, or any material development in, any litigation or proceeding affecting any Significant Party, including pursuant to any applicable Environmental Laws, or (D) any Default, the statement of the Chief Accounting Officer, Chief Financial Officer, or Treasurer of the Borrower setting forth details of such event, condition or Default and the action which CBII or the Borrower proposes to take with respect thereto. Each notice Statement Repository pursuant to this Section 5.01(a)(viii) 6.2 or otherwise submitted to Bank shall be accompanied deemed to be a representation by a statement of an Officer of the Borrower setting forth details of the occurrence referred to therein and stating what action CBII or the Borrower has taken and proposes to take with respect thereto. Each notice pursuant to this Section 5.01(a)(viii) shall describe with particularity any and all provisions of this Agreement or other Credit Document that have been breached;
(ix) In no event later than five Business Days after they are sent, made available or filed, copies of (A) all registration statements and reports filed by any CBII Entities with any securities exchange or the United States Securities and Exchange Commission (including all 10-Q, 10-K and 8-K reports), (B) all reports, proxy statements and Financial Statements sent or made available by CBII to its Equity Securities holders and (C) all press releases and other similar public announcements concerning any material developments in the business of CBII made available by CBII to the public generally; provided that such information, to the extent the Borrower directly or indirectly provides the Administrative Agent with written notice and an appropriate internet link thereto, shall be accessed by Lenders on XXXXX;
(x) As soon as available and in no event later than 30 days after they are filed, copies of all IRS Form 5500 reports for all Pension Plans required to file such form;
(xi) Within the earlier to occur of (i) five days after the Board of Directors as of the Borrower date of such Compliance Statement, Borrowing Base Statement or CBII shall have publicly announced other financial statement, the earnings for the most recently completed fiscal year of the Borrower or CBII information and calculations set forth therein are true, accurate and correct, (ii) 60 days after as of the end of each fiscal year the compliance period set forth in such submission, Borrower is in complete compliance with all required covenants except as noted in such Compliance Statement, Borrowing Base Statement or other financial statement, as applicable, (iii) as of the date of such submission, no Events of Default have occurred or are continuing, (iv) all representations and warranties other than any representations or warranties that are made as of a specific date in Section 5 remain true and correct in all material respects as of the date of such submission except as noted in such Compliance Statement, Borrowing Base Statement or other financial statement, as applicable, (v) as of the date of such submission, Borrower and CBIIeach of its Subsidiaries has timely filed all required tax returns and reports, during each year when this Agreement is in effectand Borrower has timely paid all foreign, a forecast for the current fiscal year of the federal, state and local taxes, assessments, deposits and contributions owed by Borrower Entities and the CBII Entities which includes projected consolidated statement of income for such fiscal year and a projected consolidated statement of cash flows for such fiscal year and projected consolidated balance sheets, statements of income and statements of cash flows on a quarterly basis for such fiscal year; provided that the parties acknowledge that the information in such forecasts is not compiled or presented in accordance with GAAP and may not necessarily be presented on a basis consistent with the Borrower’s Financial Statements to be delivered except as otherwise permitted pursuant to Section 5.01(a);
(xii) As soon as possible and in no event later than the later of (A) any of CBII’s or the Borrower’s officers or directors learning thereof or (B) five Business Days prior to the occurrence of any event or circumstance (except for asset losses in which case as promptly as is reasonable after such asset loss) that would require a prepayment pursuant to Section 2.06(c), the statement of the Chief Financial Officer, Chief Accounting Officer or Treasurer of the Borrower setting forth the details thereof;
(xiii) As soon as possible and in no event later than 30 days after the receipt thereof by any Loan Party (or subsequent determination after Due Inquiry by an officer of the Borrower that it could reasonably be expected to result in a Material Adverse Effect), a copy of any notice, summons, citations or other written communications concerning any actual, alleged, suspected or threatened violation of any Environmental Law or any liability of any Loan Party for Environmental Damages that in any such case could reasonably be expected to result in a Material Adverse Effect;
(xiv) Such other instruments, agreements, certificates, opinions, statements, documents and information relating to the properties, operations or condition (financial or otherwise) of the Significant Parties, and compliance by the Significant Parties with the terms of this Agreement Section 5.9, and (vi) as of the other Credit Documents as the Administrative Agent date of such submission, no Liens have been levied or claims made against Borrower or any Lender (through the Administrative Agent) may from time to time reasonably request;
(xv) As soon as available and in no event later than five Business Days after any of CBII’s or the Borrower’s officers or directors receive notice or become aware of any actions (including derivative actions), suits, proceedings or investigations that are pending or, to the knowledge of any of CBII’s or the Borrower’s officers or directors, threatened against any Significant Party at law or in equity in any court, arbitration proceeding or before any other Governmental Authority which seek to enjoin, either directly or indirectly, the execution, delivery or performance by any Loan Party of the Credit Documents or the transactions contemplated thereby;
(xvi) As soon as available and in no event later than 120 days after the close of each fiscal year of CBII, a written supplement to Schedule 4.01(w) (setting forth a true and complete listing of all insurance maintained by the Significant Parties);
(xvii) Within 120 days after the close of each fiscal year of CBII, a written supplement disclosing any matters required to update factual matters its Subsidiaries relating to unpaid employee payroll or benefits of which Borrower has not previously provided written notification to Bank.”
2.9 Section 4.016.13
Appears in 1 contract
Financial Statements, Reports. The Borrower shall furnish etc. Furnish to the Administrative each Agent the followingand each Lender:
(ia) As soon as available and in no event later than 60 within 90 days after the last day end of each fiscal year, the balance sheet and related statements of income, stockholders' equity and cash flows showing the financial condition of the Borrowers on a combined basis as of the close of such fiscal year and the results of its operations and the operations of the Borrowers on a combined basis during such year, together with comparative figures for the immediately preceding fiscal year, all audited by an independent public accountant of recognized national standing and accompanied by an opinion of such accountants (which shall not be qualified in any material respect except for a going concern qualification and as indicated below) to the effect that such financial statements fairly present the financial condition and results of operations of the Borrowers in accordance with GAAP (except for the exclusion of Scotia Pacific, Salmon Creek and Scotia Inn except as losses in excess of investments in subsidiaries as a component of stockholder's equity unless otherwise indicated or the context indicates otherwise) consistently applied;
(b) within 45 days after the end of each of the first three fiscal quarters of each fiscal year year, the balance sheet and related statements of income, stockholders' equity and cash flows showing the financial condition of the Borrower, Borrowers on a copy combined basis as of the Financial Statements close of such fiscal quarter and the results of its operations and the operations of the Borrower Entities (prepared Borrowers during such fiscal quarter and the then elapsed portion of the fiscal year, and commencing April, 2006, comparative figures for the same periods in the immediately preceding fiscal year, all certified by one of PALCO's Financial Officers as fairly presenting the financial condition and results of operations of the Borrowers on a consolidated basis) for the fiscal year to date, certified by the Chief Accounting Officer or the Chief Financial Officer of the Borrower to present fairly in all material respects the financial condition, results of operations, cash flows, and other information reflected therein and to have been prepared combined basis in accordance with GAAP (except for the exclusion of Scotia Pacific, Salmon Creek and Scotia Inn except as losses in excess of investments in subsidiaries as a component of stockholder's equity and consolidating the financial statements thereof, and inventory presented on a FIFO basis) consistently applied, subject to normal year year-end audit adjustments and omission the absence of footnotes;
(c) within 30 days after the end of each fiscal month of each fiscal quarter, (i) the combined balance sheet and related statements of income and cash flows showing the financial condition of the Borrowers during such fiscal month and the then elapsed portion of the fiscal year, all certified by one of its Financial Officers as fairly presenting the financial condition and results of operations of the Borrowers in accordance with GAAP (except for the exclusion of Scotia Pacific, Salmon Creek and Scotia Inn except as losses in excess of investments in subsidiaries as a component of stockholder's equity and consolidating the financial statements thereof, and inventory presented on a FIFO basis) consistently applied, subject to normal year-end audit adjustments and the absence of footnotes and statement (ii) the separate, internally prepared entity-only balance sheet and related statements of shareholder’s equityincome and cash flows showing the financial condition of each Borrower, and the eliminations reflected in the corresponding financial statements delivered pursuant to the preceding clause (i), for such month and the then-elapsed portion of the fiscal year (and, commencing with such financial statements for the month of April, 2006, for the corresponding month and elapsed portion of the preceding fiscal year) all certified by one of its Financial Officers as fairly presenting the financial condition and results of operations of the Borrowers in accordance with GAAP (except for the exclusion of PALCO's wholly owned subsidiaries Scotia Pacific, Salmon Creek and Scotia Inn except as losses in excess of investments in subsidiaries as a component of stockholder's equity and consolidating the financial statements thereof, and inventory presented on a FIFO basis) consistently applied, subject to normal year-end audit adjustments and the absence of footnotes;
(d) concurrently with any delivery of financial statements under paragraph (a), (b) or (c) above, (i) a certificate of the accounting firm (in the case of paragraph (a)) or Financial Officer (in the case of paragraph (b)) opining on or certifying such statements 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 (which certificate, when furnished by an accounting firm, may be limited to providing negative assurances regarding financial covenants related to accounting matters and disclaim responsibility for legal interpretations), (ii) As soon as available a certificate executed by any officer of PALCO setting forth computations in reasonable detail satisfactory to the Agents demonstrating compliance with the covenants contained in Sections 6.10, 6.11, 6.12 and 6.13, (iii) (x) a management report, in no event later than 120 days after reasonable detail, signed by the close chief financial officer of each PALCO, describing the operations and financial condition of the Loan Parties and their Subsidiaries for the month and the portion of the fiscal year then ended (or for the fiscal year then ended in the case of annual financial statements) and (y) a report setting forth in comparative form the corresponding figures for the corresponding periods of the Borrowerprevious fiscal year and the corresponding figures from the most recent budget for the applicable periods delivered to the Agents (and discussing the reasons for any significant variations from such budget), copies (iv) a report, in form reasonably acceptable to the Agents, setting forth the Asset Sales which have occurred during such period and since the Closing Date and a description of the status of the sale process with respect to all other Assets Sales and (v) (v) a report, in form reasonably acceptable to the Agents, in reasonable detail, signed by the chief financial officer of PALCO, describing (A) the audited consolidated Financial Statements of the Borrower Entities for such year, audited by Ernst & Young LLP or other independent certified public accountants of recognized national standing and registered with the Public Company Accounting Oversight Board and (B) copies of the unqualified opinions of such accountants;
(iii) Commencing with the fiscal quarter ended June 30, 2008, as soon as available and in no event later than 60 days after the last day of each of the first three fiscal quarters of each fiscal year in respect of quarterly Financial Statements of the Borrower Entities, 90 days after the close of each fiscal year in respect of yearly Financial Statements of the CBII Entities and 120 days after the close of each fiscal year in respect of yearly Financial Statements of the Borrower Entities in accordance with clause (i) above, clause (v) below and clause (ii) above, respectively, a compliance certificate of the Chief Accounting Officer or Treasurer of the Borrower (a “Compliance Certificate”) in substantially the form of Exhibit G-1; provided, however, that the only calculations to be provided in the Compliance Certificate delivered in connection with yearly Financial Statements of the CBII Entities shall be with respect to the Consolidated Adjusted Leverage Ratio;
(iv) As soon as available and in no event later than 45 days after the last day of each of the first three fiscal quarters of each fiscal year of CBII, a copy of the Quarterly Report for CBII on Form 10-Q for such quarter and for the fiscal year to date; provided that such information, to the extent the Borrower directly or indirectly provides the Administrative Agent with written notice and an appropriate internet link thereto, shall be accessed by Lenders on XXXXX;
(v) As soon as available and in no event later than 90 days after the close of each fiscal year of CBII, (A) copies of the Annual Report for CBII on Form 10-K for such year, audited by Ernst & Young LLP or other independent certified public accountants of recognized national standing and registered with the Public Company Accounting Oversight Board and (B) copies of the unqualified opinions of such accountants; provided that such information, to the extent the Borrower directly or indirectly provides the Administrative Agent with written notice and an appropriate internet link thereto, shall be accessed by Lenders on XXXXX;
(A) As soon as available and in no event later than 120 days after the close of each fiscal year of CBII, (1) a written supplement to Schedule 4.01(n) (setting forth all necessary Trademark information as set forth in Section 4.01(n) and relating to the Trademarks that are material to the conduct of the Significant Parties’ respective businesses as then operated), (2) a written supplement to Schedule 3.06 to each Security Agreement, (3) any additional disclosures under Section 4.01(n) after Due Inquiry and (4) any additional disclosures to be provided on an annual basis under the Security Documents and (B) promptly, but in any event within a reasonable time after any officer of CBII or the Borrower obtains knowledge of the occurrence of an event any matter that could reasonably be expected to result in a Material Adverse Effect on any Environmental Liability to Holdings, the Borrower or its Subsidiaries in excess of $5,000,000, (B) the status of Borrower's and its Subsidiaries' compliance with the matters discussed in the "Water Quality" subsection of Schedule 3.17, including without limitation (1) TMDL's, (2) waste discharge reporting, (3) operational requirements and (4) WWDR's (including the results of the Principal Trademarks required monitoring program and any modifications or the Trademark Licensesamendments thereto), give the Administrative Agent notice of and (C) the occurrence of any such eventEnvironmental Liability pursuant to Senate Bill 810 or related to a violation of the Borrower's Habixxx Conservation Plan or other plans and/or Permits related to listed species and (v) a report, in form reasonably acceptable to the Agents, with respect to the Annexation process listing all applicable material objections, milestones, changes in scheduling, new governmental requirements and all other issues material to the Annexation process, and generally setting forth the status and progress of the Annexation since the delivery of the prior financial statements;
(viie) (A) As soon as available and in no event later than 120 days after the close of each fiscal year of CBII, a written supplement to Schedule 4.01(q) (setting forth each of the US Subsidiaries, each of the Significant Subsidiaries and each of the De Minimis US Subsidiaries, its jurisdiction of organization, the classes of its Equity Securities, the number of shares of each such class issued and outstanding, the percentages of shares of each such class owned directly or indirectly by CBII or the Borrower and whether CBII or the Borrower owns such shares directly or, if not, the CBII Entities that own such shares and the number of shares and percentages of shares of each such class owned directly or indirectly by such CBII Entities) and (B) promptly upon the reasonable request of the Administrative Agent and in no event more often than annually, a current hierarchy report for the CBII Entities, in the form and with the substance of the hierarchy report delivered pursuant to Section 3.01(g)(iii);
(viii) As soon as possible and in no event later than at least 30 days after any officer or director of any Significant Party knows of the occurrence or existence of (A) any ERISA Event under any Pension Plan or Multiemployer Plan which, either individually or in the aggregate, could reasonably be expected prior to have a Material Adverse Effect, (B) any actual or threatened litigation, suits, claims, disputes or investigations against any Significant Party involving potential monetary damages or in which injunctive relief or similar relief is sought, which could reasonably be expected to have a Material Adverse Effect, (C) any other event or condition which, either individually or in the aggregate, could reasonably be expected to have a Material Adverse Effect, including any of the following which could reasonably be expected to have a Material Adverse Effect: (1) breach or non-performance of, or any default under, a Contractual Obligation of any Significant Party, (2) any dispute, litigation, investigation, proceeding or suspension between any Significant Party and any Governmental Authority or (3) the commencement of, or any material development in, any litigation or proceeding affecting any Significant Party, including pursuant to any applicable Environmental Laws, or (D) any Default, the statement of the Chief Accounting Officer, Chief Financial Officer, or Treasurer of the Borrower setting forth details of such event, condition or Default and the action which CBII or the Borrower proposes to take with respect thereto. Each notice pursuant to this Section 5.01(a)(viii) shall be accompanied by a statement of an Officer of the Borrower setting forth details of the occurrence referred to therein and stating what action CBII or the Borrower has taken and proposes to take with respect thereto. Each notice pursuant to this Section 5.01(a)(viii) shall describe with particularity any and all provisions of this Agreement or other Credit Document that have been breached;
(ix) In no event later than five Business Days after they are sent, made available or filed, copies of (A) all registration statements and reports filed by any CBII Entities with any securities exchange or the United States Securities and Exchange Commission (including all 10-Q, 10-K and 8-K reports), (B) all reports, proxy statements and Financial Statements sent or made available by CBII to its Equity Securities holders and (C) all press releases and other similar public announcements concerning any material developments in the business of CBII made available by CBII to the public generally; provided that such information, to the extent the Borrower directly or indirectly provides the Administrative Agent with written notice and an appropriate internet link thereto, shall be accessed by Lenders on XXXXX;
(x) As soon as available and in no event later than 30 days after they are filed, copies of all IRS Form 5500 reports for all Pension Plans required to file such form;
(xi) Within the earlier to occur of (i) five days after the Board of Directors of the Borrower or CBII shall have publicly announced the earnings for the most recently completed fiscal year of the Borrower or CBII and (ii) 60 days after the end of each fiscal year of the Borrower and CBII, during each year when this Agreement is in effectPALCO, a forecast detailed consolidated budget for the current following fiscal year (including a projected consolidated and consolidating balance sheet and related statements of projected operations and cash flows as of the Borrower Entities end of and the CBII Entities which includes projected consolidated statement of income for such following fiscal year and a projected consolidated statement setting forth the assumptions used for purposes of cash flows for preparing such fiscal year and projected consolidated balance sheetsbudget) and, statements promptly when available, any significant revisions of income and statements of cash flows on a quarterly basis for such fiscal year; provided that the parties acknowledge that the information in such forecasts is not compiled or presented in accordance with GAAP and may not necessarily be presented on a basis consistent with the Borrower’s Financial Statements to be delivered pursuant to Section 5.01(a)budget;
(xiif) As soon as possible promptly after the same become publicly available, copies of all periodic and in no event later than other reports, proxy statements and other materials filed by PALCO or any Subsidiary with the later of (A) Securities and Exchange Commission, or any of CBII’s Governmental Authority succeeding to any or the Borrower’s officers or directors learning thereof or (B) five Business Days prior to the occurrence of any event or circumstance (except for asset losses in which case as promptly as is reasonable after such asset loss) that would require a prepayment pursuant to Section 2.06(c), the statement all of the Chief Financial Officerfunctions of said Commission, Chief Accounting Officer or Treasurer of the Borrower setting forth the details thereofwith any national securities exchange;
(xiiig) As soon as possible and in no event later than 30 days promptly after the receipt thereof by either PALCO or any Loan Party (or subsequent determination after Due Inquiry by an officer of the Borrower that it could reasonably be expected to result in a Material Adverse Effect)Subsidiaries, a copy of any noticefinal "management letter" received by any such person from its certified public accountants and the management's response thereto (it being understood that the term "management letter" does not include communications from such public accountants to an audit committee that by their terms expressly state that they may not be provided to third parties);
(h) promptly, summonsupon the Collateral Agent's request, citations and in any event no less frequently than noon New York time on the third (3rd) Business Day after the end of each week, each of the following reports, each of which shall be prepared by Borrowers as of the last day of the immediately preceding week: (A) a Borrowing Base Certificate with respect to each Borrower, accompanied by such supporting detail and documentation as shall be requested by the Collateral Agent in its reasonable discretion; (B) with respect to each Borrower, a summary of Inventory by location and type with a supporting perpetual Inventory report, in each case accompanied by such supporting detail and documentation as shall be requested by the Collateral Agent in its reasonable discretion; and (C) with respect to each Borrower, a trial balance showing Accounts outstanding aged from invoice date as follows: 1 to 30 days, 31 to 60 days, 61 to 90 days, 91 days to 120 days and 120 days or other written communications concerning more, accompanied by such supporting detail and documentation as shall be requested by the Collateral Agent in its reasonable discretion;
(i) on a weekly basis or at such more frequent intervals as the Collateral Agent may request from time to time (together with a copy of all or any actualpart of such delivery requested by any Lender in writing after the Closing Date), allegedcollateral reports with respect to each Borrower, suspected including all additions and reductions (cash and non-cash) with respect to Accounts of each Borrower, in each case accompanied by such supporting detail and documentation as shall be requested by Collateral Agent in its reasonable discretion each of which shall be prepared by the applicable Borrower as of the last day of the immediately preceding week or threatened violation the date 2 days prior to the date of any Environmental Law request;
(j) at the time of delivery of each of the monthly financial statements delivered pursuant to Section 5.04(c): (A) a reconciliation of the most recent monthly Borrowing Base, general ledger and month-end Inventory reports of each Borrower to each Borrower's general ledger and monthly financial statements delivered pursuant to Section 5.04(c), in each case accompanied by such supporting detail and documentation as shall be requested by the Collateral Agent in its reasonable discretion; (B) a reconciliation of the perpetual inventory by location to each Borrower's most recent monthly Borrowing Base Certificate, general ledger and monthly financial statements delivered pursuant to Section 5.04(c), in each case accompanied by such supporting detail and documentation as shall be requested by the Collateral Agent in its reasonable discretion; (C) an aging of accounts payable and a reconciliation of that accounts payable aging to each Borrower's general ledger and monthly financial statements delivered pursuant to Section 5.04(c), in each case accompanied by such supporting detail and documentation as shall be requested by the Collateral Agent in its reasonable discretion; and (D) a reconciliation of the outstanding Loans to each Borrower's general ledger and monthly financial statements delivered pursuant to Section 5.04(c), in each case accompanied by such supporting detail and documentation as shall be requested by the Collateral Agent in its reasonable discretion;
(k) from time to time, if Collateral Agent determines in its sole discretion that obtaining appraisals is necessary or appropriate for any reason, the Collateral Agent will, at Borrower's expense, obtain appraisal reports in form and substance and from appraisers satisfactory to the Collateral Agent stating the then current market values of all or any liability portion of the Real Property and personal property, including Appraisals of Borrowers' Inventory, owned by any of the Loan Parties;
(l) Borrowers, at their own expense, shall deliver to the Collateral Agent the results of each physical verification, if any, that any Loan Party may in their discretion have made, or caused any other person to have made on their behalf, of all or any portion of their Inventory (and, if a Default or an Event of Default has occurred and is continuing, Borrowers shall, upon the request of the Collateral Agent, conduct, and deliver the results of, such physical verifications as the Collateral Agent may require); and
(m) promptly, from time to time, such other information regarding the operations, business affairs and financial condition of any Loan Party for Environmental Damages that in any such case could reasonably be expected to result in a Material Adverse Effect;
(xiv) Such other instrumentsor Scotia Pacific, agreements, certificates, opinions, statements, documents and information relating to the properties, operations or condition (financial or otherwise) of the Significant Parties, and compliance by the Significant Parties with the terms of this Agreement and the other Credit Documents any Loan Document, as the Administrative Agent, the Collateral Agent or any Lender (through the Administrative Agent) may from time to time reasonably request;
(xv) As soon as available and in no event later than five Business Days after any of CBII’s or the Borrower’s officers or directors receive notice or become aware of any actions (including derivative actions), suits, proceedings or investigations that are pending or, to the knowledge of any of CBII’s or the Borrower’s officers or directors, threatened against any Significant Party at law or in equity in any court, arbitration proceeding or before any other Governmental Authority which seek to enjoin, either directly or indirectly, the execution, delivery or performance by any Loan Party of the Credit Documents or the transactions contemplated thereby;
(xvi) As soon as available and in no event later than 120 days after the close of each fiscal year of CBII, a written supplement to Schedule 4.01(w) (setting forth a true and complete listing of all insurance maintained by the Significant Parties);
(xvii) Within 120 days after the close of each fiscal year of CBII, a written supplement disclosing any matters required to update factual matters relating to Section 4.01."
Appears in 1 contract
Financial Statements, Reports. The Borrower shall furnish Provide Bank with the following by submitting to the Administrative Agent the followingFinancial Statement Repository or otherwise submitting to Bank:
(a) (i) As at all times prior to the consummation of an IPO, as soon as available and in available, but no event later than 60 [***] days after the last day of each of the first three fiscal quarters of each fiscal year of the Borrowermonth, a copy company prepared consolidated balance sheet and income statement covering Borrower’s and each of the Financial Statements of the Borrower Entities (prepared on its Subsidiary’s operations for such month in a consolidated basis) for the fiscal year form reasonably acceptable to date, certified by the Chief Accounting Officer or the Chief Financial Officer of the Borrower to present fairly in all material respects the financial condition, results of operations, cash flowsBank, and other information reflected therein and to have been prepared in accordance with GAAP (subject to normal year end audit adjustments and omission of footnotes and statement of shareholder’s equity);
(ii) As soon as available and in no event later than 120 days at all times after the close consummation of each fiscal year of the Borrower, copies of (A) the audited consolidated Financial Statements of the Borrower Entities for such year, audited by Ernst & Young LLP or other independent certified public accountants of recognized national standing and registered with the Public Company Accounting Oversight Board and (B) copies of the unqualified opinions of such accountants;
(iii) Commencing with the fiscal quarter ended June 30, 2008an IPO, as soon as available and in available, but no event later than 60 [***] days after the last day of each of the first three fiscal quarters quarter of each fiscal year in respect of quarterly Financial Statements of the Borrower Entities, 90 days after the close of each fiscal year in respect of yearly Financial Statements of the CBII Entities and 120 days after the close of each fiscal year in respect of yearly Financial Statements of the Borrower Entities in accordance with clause (i) above, clause (v) below and clause (ii) above, respectivelyyear, a compliance certificate company prepared consolidated balance sheet and income statement covering Borrower’s and each of the Chief Accounting Officer or Treasurer of the Borrower (its Subsidiary’s operations for such fiscal quarter in a “Compliance Certificate”) form reasonably acceptable to Bank, it being understood, in substantially each case, that the form of Exhibit G-1; provided, however, that the only calculations financial statements previously delivered to be provided in the Compliance Certificate delivered in connection with yearly Financial Statements of the CBII Entities shall be with respect Bank prior to the Consolidated Adjusted Leverage RatioEffective Date are acceptable;
(ivb) As as soon as available and in available, but no event later than 45 [***] days after the last day of each fiscal quarter, a completed Compliance Statement, confirming that, as of the first three fiscal quarters end of each fiscal year such quarter, Borrower was in full compliance with all of CBIIthe terms and conditions of this Agreement, and setting forth calculations showing compliance with the financial covenants set forth in this Agreement (if any) and such other information as Bank may reasonably request, including, without limitation, a copy statement that at the end of the Quarterly Report for CBII on Form 10-Q for such quarter and for the fiscal year to date; provided that such information, to the extent the Borrower directly or indirectly provides the Administrative Agent with written notice and an appropriate internet link thereto, shall be accessed by Lenders on XXXXXmonth there were no held checks;
(vc) As soon as available and in no event later than 90 days after the close of each fiscal year of CBII, (A) copies of the Annual Report for CBII on Form 10-K for such year, audited by Ernst & Young LLP or other independent certified public accountants of recognized national standing and registered with the Public Company Accounting Oversight Board and (B) copies of the unqualified opinions of such accountants; provided that such information, to the extent the Borrower directly or indirectly provides the Administrative Agent with written notice and an appropriate internet link thereto, shall be accessed by Lenders on XXXXX;
(A) As soon as available and in no event later than 120 days after the close of each fiscal year of CBII, (1) a written supplement to Schedule 4.01(n) (setting forth all necessary Trademark information as set forth in Section 4.01(n) and relating to the Trademarks that are material to the conduct of the Significant Parties’ respective businesses as then operated), (2) a written supplement to Schedule 3.06 to each Security Agreement, (3) any additional disclosures under Section 4.01(n) after Due Inquiry and (4) any additional disclosures to be provided on an annual basis under the Security Documents and (B) promptly, but in any event within a reasonable time after any officer of CBII or the Borrower obtains knowledge of the occurrence of an event that could reasonably be expected to result in a Material Adverse Effect on any of the Principal Trademarks or the Trademark Licenses, give the Administrative Agent notice of the occurrence of any such event;
(vii) (A) As soon as available and in no event later than 120 days after the close of each fiscal year of CBII, a written supplement to Schedule 4.01(q) (setting forth each of the US Subsidiaries, each of the Significant Subsidiaries and each of the De Minimis US Subsidiaries, its jurisdiction of organization, the classes of its Equity Securities, the number of shares of each such class issued and outstanding, the percentages of shares of each such class owned directly or indirectly by CBII or the Borrower and whether CBII or the Borrower owns such shares directly or, if not, the CBII Entities that own such shares and the number of shares and percentages of shares of each such class owned directly or indirectly by such CBII Entities) and (B) promptly upon the reasonable request of the Administrative Agent and in no event more often than annually, a current hierarchy report for the CBII Entities, in the form and with the substance of the hierarchy report delivered pursuant to Section 3.01(g)(iii);
(viii) As soon as possible and in no event later than 30 days after any officer or director of any Significant Party knows of the occurrence or existence of (A) any ERISA Event under any Pension Plan or Multiemployer Plan which, either individually or in the aggregate, could reasonably be expected to have a Material Adverse Effect, (B) any actual or threatened litigation, suits, claims, disputes or investigations against any Significant Party involving potential monetary damages or in which injunctive relief or similar relief is sought, which could reasonably be expected to have a Material Adverse Effect, (C) any other event or condition which, either individually or in the aggregate, could reasonably be expected to have a Material Adverse Effect, including any of the following which could reasonably be expected to have a Material Adverse Effect: (1) breach or non-performance of, or any default under, a Contractual Obligation of any Significant Party, (2) any dispute, litigation, investigation, proceeding or suspension between any Significant Party and any Governmental Authority or (3) the commencement of, or any material development in, any litigation or proceeding affecting any Significant Party, including pursuant to any applicable Environmental Laws, or (D) any Default, the statement of the Chief Accounting Officer, Chief Financial Officer, or Treasurer of the Borrower setting forth details of such event, condition or Default and the action which CBII or the Borrower proposes to take with respect thereto. Each notice pursuant to this Section 5.01(a)(viii) shall be accompanied by a statement of an Officer of the Borrower setting forth details of the occurrence referred to therein and stating what action CBII or the Borrower has taken and proposes to take with respect thereto. Each notice pursuant to this Section 5.01(a)(viii) shall describe with particularity any and all provisions of this Agreement or other Credit Document that have been breached;
(ix) In no event later than five Business Days after they are sent, made available or filed, copies of (A) all registration statements and reports filed by any CBII Entities with any securities exchange or the United States Securities and Exchange Commission (including all 10-Q, 10-K and 8-K reports), (B) all reports, proxy statements and Financial Statements sent or made available by CBII to its Equity Securities holders and (C) all press releases and other similar public announcements concerning any material developments in the business of CBII made available by CBII to the public generally; provided that such information, to the extent the Borrower directly or indirectly provides the Administrative Agent with written notice and an appropriate internet link thereto, shall be accessed by Lenders on XXXXX;
(x) As soon as available and in no event later than 30 days after they are filed, copies of all IRS Form 5500 reports for all Pension Plans required to file such form;
(xi) Within the earlier to occur of (i) five days after the Board of Directors of the Borrower or CBII shall have publicly announced the earnings for the most recently completed fiscal year of the Borrower or CBII and (ii) 60 [***] days after the end of each fiscal year of the Borrower Borrower, and CBIIcontemporaneously with any updates or amendments thereto, during each year when this Agreement is in effect(A) annual operating budgets (including income statements, a forecast balance sheets and cash flow statements, by month) for the current fiscal year of Borrower, and (B) annual financial projections for the Borrower Entities and the CBII Entities which includes projected consolidated statement of income for such current fiscal year and a projected consolidated statement of cash flows for such fiscal year and projected consolidated balance sheets, statements of income and statements of cash flows (on a quarterly basis for basis), in each case as approved by the Board, together with any related business forecasts used in the preparation of such annual financial projections;
(d) as soon as available, but no later than [***] days after the last day of Borrower’s fiscal year, company prepared consolidated financial statements prepared under GAAP, consistently applied, together with and commensurate with those provided to the Board; provided, however, if audited consolidated financial statements are required by the Board, Borrower shall deliver not later than [***] days after the last day of each such fiscal year; provided , beginning with the fiscal year ending December 31, 2020, audited consolidated financial statements prepared under GAAP, consistently applied, together with an unqualified opinion on the financial statements (except the opinion on financial statements may contain a qualification as to going concern typical for venture backed companies similar to Borrower) from KPMG or another independent certified public accounting firm reasonably acceptable to Bank;
(e) at all times that the parties acknowledge that the information in such forecasts Borrower is not compiled a public company or presented in accordance with GAAP and may not necessarily be presented on a basis consistent an issuer of securities that are registered with the BorrowerSEC under Section 12 of the Exchange Act (or that is required to file reports under Section 15(d) of the Exchange Act), prompt written notice of any changes to the beneficial ownership information set out in items 2(d) through 2(g) of the Perfection Certificate. Borrower understands and acknowledges that Bank relies on such true, accurate and up-to-date beneficial ownership information to meet Bank’s Financial Statements regulatory obligations to obtain, verify and record information about the beneficial owners of its legal entity customers;
(f) in the event that Borrower becomes subject to the reporting requirements under the Exchange Act within [***] days of filing, copies of all periodic and other reports, proxy statements and other materials filed by Borrower and/or any Guarantor with the SEC, any Governmental Authority succeeding to any or all of the functions of the SEC or with any national securities exchange, or distributed to its shareholders, as the case may be. Documents required to be delivered pursuant to Section 5.01(a)the terms hereof (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 on which Borrower posts such documents, or provides a link thereto, on Borrower’s website on the internet at Borrower’s website address; provided, however, Borrower shall promptly notify Bank in writing (which may be by electronic mail) of the posting of any such documents;
(xiig) As soon as possible within [***] days of delivery, copies of all statements, reports and in no event later than the later of (A) any of CBII’s or the notices made available to Borrower’s officers security holders or directors learning thereof or (B) five Business Days prior to the occurrence any holders of any event or circumstance (except for asset losses in which case as promptly as is reasonable after such asset loss) that would require a prepayment pursuant to Section 2.06(c), the statement of the Chief Financial Officer, Chief Accounting Officer or Treasurer of the Borrower setting forth the details thereofSubordinated Debt;
(xiiih) As soon prompt report of any legal actions pending or threatened in writing against Borrower or any of its Subsidiaries that could result in damages or costs to Borrower or any of its Subsidiaries of, individually or in the aggregate, [***] Dollars ($[***]) or more; and
(i) promptly, from time to time, such other information regarding Borrower’s operations, business affairs, and financial condition as possible and in no event later than 30 days after reasonably requested by Bank. Any submission by Borrower of a Compliance Statement or any financial statement submitted to the receipt thereof Financial Statement Repository pursuant to this Section 6.2 or otherwise submitted to Bank shall be deemed to be a representation by any Loan Party Borrower that (or subsequent determination after Due Inquiry by an officer i) as of the Borrower that it could reasonably be expected to result in a Material Adverse Effect)date of such Compliance Statement or financial statement, a copy of any noticethe information and calculations set forth therein are true and correct, summons, citations or other written communications concerning any actual, alleged, suspected or threatened violation of any Environmental Law or any liability of any Loan Party for Environmental Damages that in any such case could reasonably be expected to result in a Material Adverse Effect;
(xivii) Such other instruments, agreements, certificates, opinions, statements, documents and information relating to the properties, operations or condition (financial or otherwise) as of the Significant Partiesend of the compliance period set forth in such submission, Borrower is in compliance with all required covenants except as noted in such Compliance Statement or financial statement, as applicable, (iii) as of the date of such submission, no Events of Default have occurred and are continuing, (iv) all representations and warranties other than any representations or warranties that are made as of a specific date in Section 5 remain true and correct in all material respects as of the date of such submission except as noted in such Compliance Statement or financial statement, as applicable, (v) as of the date of such submission, Borrower and each of its Subsidiaries has timely filed all required tax returns and reports, and compliance Borrower has timely paid all foreign, federal, state and local taxes, assessments, deposits and contributions owed by the Significant Parties with Borrower except as otherwise permitted pursuant to the terms of this Agreement Section 6.5, and (vi) as of the date of such submission, no Liens (other Credit Documents as the Administrative Agent than Permitted Liens) have been levied or claims made against Borrower or any Lender (through the Administrative Agent) may from time to time reasonably request;
(xv) As soon as available and in no event later than five Business Days after any of CBII’s or the Borrower’s officers or directors receive notice or become aware of any actions (including derivative actions), suits, proceedings or investigations that are pending or, to the knowledge of any of CBII’s or the Borrower’s officers or directors, threatened against any Significant Party at law or in equity in any court, arbitration proceeding or before any other Governmental Authority which seek to enjoin, either directly or indirectly, the execution, delivery or performance by any Loan Party of the Credit Documents or the transactions contemplated thereby;
(xvi) As soon as available and in no event later than 120 days after the close of each fiscal year of CBII, a written supplement to Schedule 4.01(w) (setting forth a true and complete listing of all insurance maintained by the Significant Parties);
(xvii) Within 120 days after the close of each fiscal year of CBII, a written supplement disclosing any matters required to update factual matters its Subsidiaries relating to Section 4.01unpaid employee payroll or benefits of which Borrower has not previously provided written notification to Bank.
Appears in 1 contract
Financial Statements, Reports. The Borrower shall furnish Provide Bank with the following by submitting to the Administrative Agent the followingBank:
(ia) As soon as available and in no event later than 60 days after the last day of for each of the first three fiscal quarters of Xxxxxxxx’s fiscal year, as soon as available, but no later than the earlier of (i) forty-five (45) days after the end of each such fiscal quarter, or (ii) five (5) days after filing with the SEC, a consolidated balance sheet and income statement covering Borrower’s and each of its Subsidiary’s operations for such quarter in a form of presentation reasonably acceptable to Bank (the “Quarterly Financial Statements”);
(b) together with the Quarterly Financial Statements delivered pursuant to Section 6.2(a) and the Annual Financial Statements delivered pursuant to Section 6.2(d) , a completed Compliance Statement, confirming that, as of the end of such fiscal period, Borrower was in full compliance with all of the terms and conditions of this Agreement, and setting forth calculations showing compliance with the financial covenants set forth in this Agreement and such other information as Bank may reasonably request;
(c) within the earlier of (i) fifteen (15) days after approval by the Board or (ii) sixty (60) days after each fiscal year of the Borrower, and contemporaneously with any updates or amendments thereto, (A) annual budgeted income statement for the then-current fiscal year of Borrower, and (B) annual financial projections for the then-current fiscal year, in each case as approved by the Board;
(d) as soon as available, but no later than the earlier of (i) one hundred twenty (120) days following the end of Borrower’s fiscal year, or (ii) five (5) days after filing with the SEC, audited consolidated financial statements prepared under GAAP, consistently applied, together with an unqualified (other than a copy qualification with respect to “going concern” or like qualification or exception solely as a result of the Financial Statements final maturity date of any Advance being scheduled to occur within twelve (12) months from the Borrower Entities (prepared date of such opinion) opinion on a consolidated basis) for the fiscal year to date, certified by the Chief Accounting Officer or the Chief Financial Officer of the Borrower to present fairly in all material respects the financial condition, results of operations, cash flows, and other information reflected therein and statements from an independent certified public accounting firm reasonably acceptable to have been prepared in accordance with GAAP Bank (subject to normal year end audit adjustments and omission of footnotes and statement of shareholder’s equitythe “Annual Financial Statements”);
(iie) As soon as available and in no event later than 120 [reserved];
(f) within five (5) days after the close of each fiscal year of the Borrowerfiling, copies of (A) all periodic and other reports, proxy statements and other materials filed by Xxxxxxxx and/or any Guarantor with the audited consolidated Financial Statements SEC, any Governmental Authority succeeding to any or all of the Borrower Entities for such year, audited by Ernst & Young LLP or other independent certified public accountants of recognized national standing and registered with the Public Company Accounting Oversight Board and (B) copies functions of the unqualified opinions of such accountantsSEC or with any national securities exchange, or distributed to its shareholders, as the case may be;
(iiig) Commencing with the fiscal quarter ended June 30within five (5) days of delivery, 2008copies of all statements, reports and notices made available to all of Borrower’s security holders (in their capacity as soon as available and in no event later than 60 days after the last day such) or to any holders of each of the first three fiscal quarters of each fiscal year in respect of quarterly Financial Statements of the Borrower Entities, 90 days after the close of each fiscal year in respect of yearly Financial Statements of the CBII Entities and 120 days after the close of each fiscal year in respect of yearly Financial Statements of the Borrower Entities in accordance with clause (i) above, clause (v) below and clause (ii) above, respectively, a compliance certificate of the Chief Accounting Officer or Treasurer of the Borrower (a “Compliance Certificate”) in substantially the form of Exhibit G-1; provided, however, that the only calculations to be provided in the Compliance Certificate delivered in connection with yearly Financial Statements of the CBII Entities shall be with respect to the Consolidated Adjusted Leverage RatioSubordinated Debt;
(ivh) As soon as available and prompt report of any legal actions pending or threatened in no event later than 45 days after the last day writing against Borrower or any of each of the first three fiscal quarters of each fiscal year of CBII, a copy of the Quarterly Report for CBII on Form 10-Q for such quarter and for the fiscal year to date; provided that such information, to the extent the Borrower directly or indirectly provides the Administrative Agent with written notice and an appropriate internet link thereto, shall be accessed by Lenders on XXXXX;
(v) As soon as available and in no event later than 90 days after the close of each fiscal year of CBII, (A) copies of the Annual Report for CBII on Form 10-K for such year, audited by Ernst & Young LLP or other independent certified public accountants of recognized national standing and registered with the Public Company Accounting Oversight Board and (B) copies of the unqualified opinions of such accountants; provided that such information, to the extent the Borrower directly or indirectly provides the Administrative Agent with written notice and an appropriate internet link thereto, shall be accessed by Lenders on XXXXX;
(A) As soon as available and in no event later than 120 days after the close of each fiscal year of CBII, (1) a written supplement to Schedule 4.01(n) (setting forth all necessary Trademark information as set forth in Section 4.01(n) and relating to the Trademarks that are material to the conduct of the Significant Parties’ respective businesses as then operated), (2) a written supplement to Schedule 3.06 to each Security Agreement, (3) any additional disclosures under Section 4.01(n) after Due Inquiry and (4) any additional disclosures to be provided on an annual basis under the Security Documents and (B) promptly, but in any event within a reasonable time after any officer of CBII or the Borrower obtains knowledge of the occurrence of an event its Subsidiaries that could reasonably be expected to result in a Material Adverse Effect on damages or costs to Borrower or any of the Principal Trademarks or the Trademark Licensesits Subsidiaries of, give the Administrative Agent notice of the occurrence of any such event;
(vii) (A) As soon as available and in no event later than 120 days after the close of each fiscal year of CBII, a written supplement to Schedule 4.01(q) (setting forth each of the US Subsidiaries, each of the Significant Subsidiaries and each of the De Minimis US Subsidiaries, its jurisdiction of organization, the classes of its Equity Securities, the number of shares of each such class issued and outstanding, the percentages of shares of each such class owned directly or indirectly by CBII or the Borrower and whether CBII or the Borrower owns such shares directly or, if not, the CBII Entities that own such shares and the number of shares and percentages of shares of each such class owned directly or indirectly by such CBII Entities) and (B) promptly upon the reasonable request of the Administrative Agent and in no event more often than annually, a current hierarchy report for the CBII Entities, in the form and with the substance of the hierarchy report delivered pursuant to Section 3.01(g)(iii);
(viii) As soon as possible and in no event later than 30 days after any officer or director of any Significant Party knows of the occurrence or existence of (A) any ERISA Event under any Pension Plan or Multiemployer Plan which, either individually or in the aggregate, could reasonably be expected to have a Material Adverse Effect, Two Million Five Hundred Thousand Dollars (B$2,500,000) any actual or threatened litigation, suits, claims, disputes or investigations against any Significant Party involving potential monetary damages or in which injunctive relief or similar relief is sought, which could reasonably be expected to have a Material Adverse Effect, more;
(Ci) any other event or condition which, either individually or in the aggregate, could reasonably be expected to have a Material Adverse Effect, including any of the following which could reasonably be expected to have a Material Adverse Effect: (1) breach or non-performance of, or any default under, a Contractual Obligation of any Significant Party, (2) any dispute, litigation, investigation, proceeding or suspension between any Significant Party and any Governmental Authority or (3) the commencement of, or any material development in, any litigation or proceeding affecting any Significant Party, including pursuant to any applicable Environmental Laws, or (D) any Default, the statement of the Chief Accounting Officer, Chief Financial Officer, or Treasurer of the Borrower setting forth details of such event, condition or Default and the action which CBII or the Borrower proposes to take with respect thereto. Each prompt written notice pursuant to this Section 5.01(a)(viii) shall be accompanied by a statement of an Officer of the Borrower setting forth details of the occurrence referred to therein and stating what action CBII of a Default or the Borrower has taken and proposes to take with respect thereto. Each notice pursuant to this Section 5.01(a)(viii) shall describe with particularity any and all provisions Event of this Agreement or other Credit Document that have been breached;Default; and
(ixj) In no event later than five Business Days after they are sentpromptly, made available or filedfrom time to time, copies of (A) all registration statements and reports filed by any CBII Entities with any securities exchange or the United States Securities and Exchange Commission (including all 10-Q, 10-K and 8-K reports), (B) all reports, proxy statements and Financial Statements sent or made available by CBII to its Equity Securities holders and (C) all press releases and such other similar public announcements concerning any material developments in the business of CBII made available by CBII to the public generally; provided that such information, to the extent the Borrower directly or indirectly provides the Administrative Agent with written notice and an appropriate internet link thereto, shall be accessed by Lenders on XXXXX;
(x) As soon as available and in no event later than 30 days after they are filed, copies of all IRS Form 5500 reports for all Pension Plans required to file such form;
(xi) Within the earlier to occur of (i) five days after the Board of Directors of the information regarding Borrower or CBII shall have publicly announced the earnings for the most recently completed fiscal year of the Borrower or CBII and (ii) 60 days after the end of each fiscal year of the Borrower and CBII, during each year when this Agreement is in effect, a forecast for the current fiscal year of the Borrower Entities and the CBII Entities which includes projected consolidated statement of income for such fiscal year and a projected consolidated statement of cash flows for such fiscal year and projected consolidated balance sheets, statements of income and statements of cash flows on a quarterly basis for such fiscal year; provided that the parties acknowledge that the information in such forecasts is not compiled or presented in accordance with GAAP and may not necessarily be presented on a basis consistent with the Borrower’s Financial Statements to be delivered pursuant to Section 5.01(a);
(xii) As soon as possible and in no event later than the later of (A) any of CBII’s or the Borrower’s officers or directors learning thereof or (B) five Business Days prior to the occurrence of any event or circumstance (except for asset losses in which case as promptly as is reasonable after such asset loss) that would require a prepayment pursuant to Section 2.06(c), the statement of the Chief Financial Officer, Chief Accounting Officer or Treasurer of the Borrower setting forth the details thereof;
(xiii) As soon as possible and in no event later than 30 days after the receipt thereof by any Loan Party (or subsequent determination after Due Inquiry by an officer of the Borrower that it could reasonably be expected to result in a Material Adverse Effect), a copy of any notice, summons, citations or other written communications concerning any actual, alleged, suspected or threatened violation of any Environmental Law or any liability of any Loan Party for Environmental Damages that in any such case could reasonably be expected to result in a Material Adverse Effect;
(xiv) Such other instruments, agreements, certificates, opinions, statements, documents and information relating to the properties, operations or condition (financial or otherwise) of the Significant Parties, and compliance by the Significant Parties with the terms of this Agreement and the other Credit any Loan Documents as the Administrative Agent or any Lender (through the Administrative Agent) may from time to time reasonably request;
(xv) As soon as available and in no event later than five Business Days after any of CBII’s or the Borrower’s officers or directors receive notice or become aware of any actions (including derivative actions), suits, proceedings or investigations that are pending or, to the knowledge of any of CBII’s or the Borrower’s officers or directors, threatened against any Significant Party at law or in equity in any court, arbitration proceeding or before any other Governmental Authority which seek to enjoin, either directly or indirectly, the execution, delivery or performance requested by any Loan Party of the Credit Documents or the transactions contemplated thereby;
(xvi) As soon as available and in no event later than 120 days after the close of each fiscal year of CBII, a written supplement to Schedule 4.01(w) (setting forth a true and complete listing of all insurance maintained by the Significant Parties);
(xvii) Within 120 days after the close of each fiscal year of CBII, a written supplement disclosing any matters required to update factual matters relating to Section 4.01Bank.
Appears in 1 contract
Financial Statements, Reports. The Borrower shall furnish Provide Bank with the following by submitting to the Administrative Agent the followingFinancial Statement Repository or otherwise submitting to Bank:
49. a Borrowing Base Statement (and any schedules related thereto and including any other information requested by Bank with respect to Borrower’s Accounts, including, without limitation, an accounts receivable ledger report), (i) As at all times when a Streamline Period is not in effect and Advances are outstanding, within seven (7) Business Days after the end of each month and, (ii) at all other times, within five (5) days after Rubicon files its 10-Q and 10-K reports with the SEC;
50. (i) accounts receivable agings, aged by invoice date, (ii) accounts payable agings, aged by invoice date, and outstanding or held check registers, if any, and (iii) reconciliations of accounts receivable agings (aged by invoice date), transaction reports, a detailed debtor listing, and general ledger, (A) at all times when a Streamline Period is in effect, within five (5) days after Rubicon files its 10-Q and 10-K reports with the SEC, and, (B) at all times when a Streamline Period is not in effect, within thirty (30) days after the end of each month; 51. at all times a Streamline Period is not in effect, as soon as available and in available, but no event later than 60 thirty (30) days after the last day of each month, a company prepared consolidated balance sheet and income statement covering Borrower’s consolidated operations for such month in a form acceptable to Bank;
52. a completed Compliance Statement, confirming that, as of the first three fiscal quarters of each fiscal year end of the Borrowerapplicable quarter or month, Borrower was in full compliance with all of the terms and conditions of this Agreement, and setting forth calculations showing compliance with the financial covenants set forth in this Agreement (if applicable) and such other information as Bank may reasonably request, including, without limitation, a copy statement that at the end of such quarter there were no held checks, (i) at all times when a Streamline Period is in effect, within five (5) days after Rubicon files its 10-Q and 10-K reports with the Financial Statements of the Borrower Entities (prepared on a consolidated basis) for the fiscal year to dateSEC, certified by the Chief Accounting Officer or the Chief Financial Officer of the Borrower to present fairly in all material respects the financial conditionand, results of operations, cash flows, and other information reflected therein and to have been prepared in accordance with GAAP (subject to normal year end audit adjustments and omission of footnotes and statement of shareholder’s equity);
(ii) As soon as available and at all times when a Streamline Period is not in no event later than 120 days after the close of each fiscal year of the Borrowereffect, copies of within thirty (A30) the audited consolidated Financial Statements of the Borrower Entities for such year, audited by Ernst & Young LLP or other independent certified public accountants of recognized national standing and registered with the Public Company Accounting Oversight Board and (B) copies of the unqualified opinions of such accountants;
(iii) Commencing with the fiscal quarter ended June 30, 2008, as soon as available and in no event later than 60 days after the last day of each of the first three fiscal quarters of each fiscal year in respect of quarterly Financial Statements of the Borrower Entities, 90 days after the close of each fiscal year in respect of yearly Financial Statements of the CBII Entities and 120 days after the close of each fiscal year in respect of yearly Financial Statements of the Borrower Entities in accordance with clause (i) above, clause (v) below and clause (ii) above, respectively, a compliance certificate of the Chief Accounting Officer or Treasurer of the Borrower (a “Compliance Certificate”) in substantially the form of Exhibit G-1; provided, however, that the only calculations to be provided in the Compliance Certificate delivered in connection with yearly Financial Statements of the CBII Entities shall be with respect to the Consolidated Adjusted Leverage Ratio;
(iv) As soon as available and in no event later than 45 days after the last day of each of the first three fiscal quarters of each fiscal year of CBII, a copy of the Quarterly Report for CBII on Form 10-Q for such quarter and for the fiscal year to date; provided that such information, to the extent the Borrower directly or indirectly provides the Administrative Agent with written notice and an appropriate internet link thereto, shall be accessed by Lenders on XXXXX;
(v) As soon as available and in no event later than 90 days after the close of each fiscal year of CBII, (A) copies of the Annual Report for CBII on Form 10-K for such year, audited by Ernst & Young LLP or other independent certified public accountants of recognized national standing and registered with the Public Company Accounting Oversight Board and (B) copies of the unqualified opinions of such accountants; provided that such information, to the extent the Borrower directly or indirectly provides the Administrative Agent with written notice and an appropriate internet link thereto, shall be accessed by Lenders on XXXXX;
(A) As soon as available and in no event later than 120 days after the close of each fiscal year of CBII, (1) a written supplement to Schedule 4.01(n) (setting forth all necessary Trademark information as set forth in Section 4.01(n) and relating to the Trademarks that are material to the conduct of the Significant Parties’ respective businesses as then operated), (2) a written supplement to Schedule 3.06 to each Security Agreement, (3) any additional disclosures under Section 4.01(n) after Due Inquiry and (4) any additional disclosures to be provided on an annual basis under the Security Documents and (B) promptly, but in any event within a reasonable time after any officer of CBII or the Borrower obtains knowledge of the occurrence of an event that could reasonably be expected to result in a Material Adverse Effect on any of the Principal Trademarks or the Trademark Licenses, give the Administrative Agent notice of the occurrence of any such event;
(vii) (A) As soon as available and in no event later than 120 days after the close of each fiscal year of CBII, a written supplement to Schedule 4.01(q) (setting forth each of the US Subsidiaries, each of the Significant Subsidiaries and each of the De Minimis US Subsidiaries, its jurisdiction of organization, the classes of its Equity Securities, the number of shares of each such class issued and outstanding, the percentages of shares of each such class owned directly or indirectly by CBII or the Borrower and whether CBII or the Borrower owns such shares directly or, if not, the CBII Entities that own such shares and the number of shares and percentages of shares of each such class owned directly or indirectly by such CBII Entities) and (B) promptly upon the reasonable request of the Administrative Agent and in no event more often than annually, a current hierarchy report for the CBII Entities, in the form and with the substance of the hierarchy report delivered pursuant to Section 3.01(g)(iii);
(viii) As soon as possible and in no event later than 30 days after any officer or director of any Significant Party knows of the occurrence or existence of (A) any ERISA Event under any Pension Plan or Multiemployer Plan which, either individually or in the aggregate, could reasonably be expected to have a Material Adverse Effect, (B) any actual or threatened litigation, suits, claims, disputes or investigations against any Significant Party involving potential monetary damages or in which injunctive relief or similar relief is sought, which could reasonably be expected to have a Material Adverse Effect, (C) any other event or condition which, either individually or in the aggregate, could reasonably be expected to have a Material Adverse Effect, including any of the following which could reasonably be expected to have a Material Adverse Effect: (1) breach or non-performance of, or any default under, a Contractual Obligation of any Significant Party, (2) any dispute, litigation, investigation, proceeding or suspension between any Significant Party and any Governmental Authority or (3) the commencement of, or any material development in, any litigation or proceeding affecting any Significant Party, including pursuant to any applicable Environmental Laws, or (D) any Default, the statement of the Chief Accounting Officer, Chief Financial Officer, or Treasurer of the Borrower setting forth details of such event, condition or Default and the action which CBII or the Borrower proposes to take with respect thereto. Each notice pursuant to this Section 5.01(a)(viii) shall be accompanied by a statement of an Officer of the Borrower setting forth details of the occurrence referred to therein and stating what action CBII or the Borrower has taken and proposes to take with respect thereto. Each notice pursuant to this Section 5.01(a)(viii) shall describe with particularity any and all provisions of this Agreement or other Credit Document that have been breached;
(ix) In no event later than five Business Days after they are sent, made available or filed, copies of (A) all registration statements and reports filed by any CBII Entities with any securities exchange or the United States Securities and Exchange Commission (including all 10-Q, 10-K and 8-K reports), (B) all reports, proxy statements and Financial Statements sent or made available by CBII to its Equity Securities holders and (C) all press releases and other similar public announcements concerning any material developments in the business of CBII made available by CBII to the public generally; provided that such information, to the extent the Borrower directly or indirectly provides the Administrative Agent with written notice and an appropriate internet link thereto, shall be accessed by Lenders on XXXXX;
(x) As soon as available and in no event later than 30 days after they are filed, copies of all IRS Form 5500 reports for all Pension Plans required to file such form;
(xi) Within the earlier to occur of (i) five days after the Board of Directors of the Borrower or CBII shall have publicly announced the earnings for the most recently completed fiscal year of the Borrower or CBII and (ii) 60 days after the end of each fiscal year of the Borrower and CBII, during each year when this Agreement is in effect, a forecast for the current fiscal year of the Borrower Entities and the CBII Entities which includes projected consolidated statement of income for such fiscal year and a projected consolidated statement of cash flows for such fiscal year and projected consolidated balance sheets, statements of income and statements of cash flows on a quarterly basis for such fiscal year; provided that the parties acknowledge that the information in such forecasts is not compiled or presented in accordance with GAAP and may not necessarily be presented on a basis consistent with the Borrower’s Financial Statements to be delivered pursuant to Section 5.01(a)month;
(xii) As soon as possible and in no event later than the later of (A) any of CBII’s or the Borrower’s officers or directors learning thereof or (B) five Business Days prior to the occurrence of any event or circumstance (except for asset losses in which case as promptly as is reasonable after such asset loss) that would require a prepayment pursuant to Section 2.06(c), the statement of the Chief Financial Officer, Chief Accounting Officer or Treasurer of the Borrower setting forth the details thereof;
(xiii) As soon as possible and in no event later than 30 days after the receipt thereof by any Loan Party (or subsequent determination after Due Inquiry by an officer of the Borrower that it could reasonably be expected to result in a Material Adverse Effect), a copy of any notice, summons, citations or other written communications concerning any actual, alleged, suspected or threatened violation of any Environmental Law or any liability of any Loan Party for Environmental Damages that in any such case could reasonably be expected to result in a Material Adverse Effect;
(xiv) Such other instruments, agreements, certificates, opinions, statements, documents and information relating to the properties, operations or condition (financial or otherwise) of the Significant Parties, and compliance by the Significant Parties with the terms of this Agreement and the other Credit Documents as the Administrative Agent or any Lender (through the Administrative Agent) may from time to time reasonably request;
(xv) As soon as available and in no event later than five Business Days after any of CBII’s or the Borrower’s officers or directors receive notice or become aware of any actions (including derivative actions), suits, proceedings or investigations that are pending or, to the knowledge of any of CBII’s or the Borrower’s officers or directors, threatened against any Significant Party at law or in equity in any court, arbitration proceeding or before any other Governmental Authority which seek to enjoin, either directly or indirectly, the execution, delivery or performance by any Loan Party of the Credit Documents or the transactions contemplated thereby;
(xvi) As soon as available and in no event later than 120 days after the close of each fiscal year of CBII, a written supplement to Schedule 4.01(w) (setting forth a true and complete listing of all insurance maintained by the Significant Parties);
(xvii) Within 120 days after the close of each fiscal year of CBII, a written supplement disclosing any matters required to update factual matters relating to Section 4.01
Appears in 1 contract
Samples: Loan and Security Agreement (Rubicon Project, Inc.)
Financial Statements, Reports. The Borrower shall furnish to the Administrative Agent the following:
(i) As soon as available and in no event later than 60 days after the last day of each of the first three fiscal quarters of each fiscal year of the Borrower, a copy of the Financial Statements of the Borrower Entities (prepared on a consolidated basis) for the fiscal year to date, certified by the Chief Accounting Officer or the Chief Financial Officer of the Borrower to present fairly in all material respects the financial condition, results of operations, cash flows, and other information reflected therein and to have been prepared in accordance with GAAP (subject to normal year end audit adjustments and omission of footnotes and statement of shareholder’s equity);
(ii) As soon as available and in no event later than 120 days after the close of each fiscal year of the Borrower, copies of (A) the audited consolidated Financial Statements of the Borrower Entities for such year, audited by Ernst & Young LLP or other independent certified public accountants of recognized national standing and registered with the Public Company Accounting Oversight Board and (B) copies of the unqualified opinions of such accountants;
(iii) Commencing with the fiscal quarter ended June 30, 2008, as As soon as available and in no event later than 60 days after the last day of each of the first three fiscal quarters of each fiscal year in respect of quarterly Financial Statements of the Borrower Entities, 90 days after the close of each fiscal year in respect of yearly Financial Statements of the CBII Entities and 120 days after the close of each fiscal year in respect of yearly Financial Statements of the Borrower Entities in accordance with clause clauses (i) above, clause (v) below and clause (ii) abovehereof, respectively, a compliance certificate of the Chief Accounting Officer or Treasurer of the Borrower (a “Compliance Certificate”) in substantially the form of Exhibit G-1; provided, however, that the only calculations to be provided in the Compliance Certificate delivered in connection with yearly Financial Statements of the CBII Entities shall be with respect to the Consolidated Adjusted Leverage RatioG-1 hereto;
(iv) As soon as available and in no event later than 45 days after the last day of each of the first three fiscal quarters of each fiscal year of CBII, a copy of the Quarterly Report for CBII on Form 10-Q for such quarter and for the fiscal year to date; provided that such information, to the extent the Borrower directly or indirectly provides the Administrative Agent with written notice and an appropriate internet link thereto, shall be accessed by Lenders on XXXXX;
(v) As soon as available and in no event later than 90 days after the close of each fiscal year of CBII, (A) copies of the Annual Report for CBII on Form 10-K for such year, audited by Ernst & Young LLP or other independent certified public accountants of recognized national standing and registered with the Public Company Accounting Oversight Board and (B) copies of the unqualified opinions of such accountants; provided that such information, to the extent the Borrower directly or indirectly provides the Administrative Agent with written notice and an appropriate internet link thereto, shall be accessed by Lenders on XXXXX;
(A) As soon as available and in no event later than 120 days after the close of each fiscal year of CBII, (1) a written supplement to Schedule 4.01(n) hereto (setting forth all necessary Trademark Xxxxxxxx Trademarks and Fresh Express Trademarks information as set forth in Section 4.01(n) and relating to the Xxxxxxxx Trademarks and Fresh Express Trademarks that are material to the conduct of the Significant Parties’ respective businesses as then operated), (2) a written supplement to Schedule 3.06 to each Security Agreement, (3) as well as any additional disclosures under Section 4.01(n) after Due Inquiry and (4) any additional disclosures to be provided on an annual basis under the Security Documents and (B) promptly, but in any event within a reasonable time after any officer of CBII or the Borrower obtains knowledge of the occurrence of an event that could reasonably be expected to result in a Material Adverse Effect on any of the Principal Trademarks or the Trademark Licenses, give the Administrative Agent notice of the occurrence of any such event;
(vii) (A) As soon as available and in no event later than 120 days after the close of each fiscal year of CBII, a written supplement to Schedule 4.01(q) hereto (setting forth each of the US Subsidiaries, Subsidiaries and each of the Significant Subsidiaries and each of the De Minimis US SubsidiariesBorrower, its jurisdiction of organization, the classes of its Equity Securities, the number of shares of each such class issued and outstanding, the percentages of shares of each such class owned directly or indirectly by CBII or the Borrower and whether CBII or the Borrower owns such shares directly or, if not, the CBII Entities that own such shares and the number of shares and percentages of shares of each such class owned directly or indirectly by such CBII Entities) and (B) promptly upon the reasonable request of the Administrative Agent and in no event more often than annually, a current hierarchy report for the CBII Entities, in the form and with the substance of the hierarchy report delivered pursuant to Section 3.01(g)(iii);
(viii) As soon as possible and in no event later than 30 days after any officer or director of any Significant Party knows of the occurrence or existence of (A) any ERISA Event under any Pension Plan or Multiemployer Plan which, either individually or in the aggregate, could reasonably be expected to have a Material Adverse Effect, (B) any actual or threatened litigation, suits, claims, disputes or investigations against any Significant Party involving potential monetary damages or in which injunctive relief or similar relief is sought, which could reasonably be expected to have a Material Adverse Effect, (C) any other event or condition which, either individually or in the aggregate, could reasonably be expected to have a Material Adverse Effect, including any of the following which could reasonably be expected to have a Material Adverse Effect: (1I) breach or non-performance of, or any default under, a Contractual Obligation of any Significant Party, (2II) any dispute, litigation, investigation, proceeding or suspension between any Significant Party and any Governmental Authority or (3III) the commencement of, or any material development in, any litigation or proceeding affecting any Significant Party, including pursuant to any applicable Environmental Laws, Laws or (D) any Default, the statement of the Chief Accounting Officer, Chief Financial Officer, or Treasurer of the Borrower setting forth details of such event, condition or Default and the action which CBII or the Borrower proposes to take with respect thereto. Each notice pursuant to this Section 5.01(a)(viii) shall be accompanied by a statement of an Officer of the Borrower setting forth details of the occurrence referred to therein and stating what action CBII or the Borrower has taken and proposes to take with respect thereto. Each notice pursuant to this Section 5.01(a)(viii) shall describe with particularity any and all provisions of this Agreement or other Credit Document that have been breached;
(ix) In no event later than five Business Days after they are sent, made available or filed, copies of (A) all registration statements and reports filed by any CBII Entities with any securities exchange or the United States Securities and Exchange Commission (including all 10-Q, 10-K and 8-K reports), (B) all reports, proxy statements and Financial Statements sent or made available by CBII to its Equity Securities holders and (C) all press releases and other similar public announcements concerning any material developments in the business of CBII made available by CBII to the public generally; provided that such information, to the extent the Borrower directly or indirectly provides the Administrative Agent with written notice and an appropriate internet link thereto, shall be accessed by Lenders on XXXXX;
(x) As soon as available and in no event later than 30 days after they are filed, copies of all IRS Form 5500 reports for all Pension Plans required to file such form;
(xi) Within the earlier to occur of (i) five days after the Board of Directors of the Borrower or CBII shall have publicly announced the earnings for the most recently completed fiscal year of the Borrower or CBII and (ii) 60 No later than 45 days after the end of each fiscal year of the Borrower and CBII, CBII during each year when this Agreement is in effect, a forecast for the current fiscal year of the Borrower Entities and the CBII Entities which includes projected consolidated statement of income for such fiscal year and a projected consolidated statement of cash flows for such fiscal year and projected consolidated balance sheets, statements of income and statements of cash flows on a quarterly basis for such fiscal year; provided that the parties acknowledge that the information in such forecasts is not compiled or presented in accordance with GAAP and may not necessarily be presented on a basis consistent with the Borrower’s Financial Statements to be delivered pursuant to Section 5.01(a);
(xii) As soon as possible and in no event later than the later of (A) any of CBII’s or the Borrower’s officers or directors learning thereof or (B) five Business Days prior to the occurrence of any event or circumstance (except for asset losses in which case as promptly as is reasonable after such asset loss) that would require a prepayment pursuant to Section 2.06(c), the statement of the Chief Financial Officer, Chief Accounting Officer or Treasurer of the Borrower setting forth the details thereof;
(xiii) As soon as possible and in no event later than 30 days after the receipt thereof by any Loan Party (or subsequent determination after Due Inquiry by an officer of the Borrower that it could reasonably be expected to result in a Material Adverse Effect), a copy of any notice, summons, citations or other written communications concerning any actual, alleged, suspected or threatened violation of any Environmental Law or any liability of any Loan Party for Environmental Damages that in any such case could reasonably be expected to result in a Material Adverse Effect;
(xiv) Such other instruments, agreements, certificates, opinions, statements, documents and information relating to the properties, operations or condition (financial or otherwise) of the Significant Parties, and compliance by the Significant Parties with the terms of this Agreement and the other Credit Documents as the Administrative Agent or any Lender (through the Administrative Agent) may from time to time reasonably request;
(xv) As soon as available and in no event later than five 5 Business Days after any of CBII’s or the Borrower’s officers or directors receive notice or become aware of any actions (including derivative actions), suits, proceedings or investigations that are pending or, or to the knowledge of any of CBII’s or the Borrower’s officers or directorsdirectors threatened, threatened against any Significant Party at law or in equity in any court, arbitration proceeding or before any other Governmental Authority which seek to enjoin, either directly or indirectly, the execution, delivery or performance by any Loan Party of the Credit Documents or the transactions contemplated thereby;
(xvi) As soon as available and in no event later than 120 days after the close of each fiscal year of CBII, a written supplement to Schedule 4.01(w) hereto (setting forth a true and complete listing of all insurance maintained by the Significant Parties);
(xvii) Within 120 days after the close of each fiscal year of CBII, a written supplement disclosing any matters required to update factual matters relating to Section 4.014.01(s); and
(xviii) To the extent delivered (and thereafter requested by Administrative Agent or Lenders), management letters delivered by CBII’s or Borrower’s accountants in connection with any of CBII’s or Borrower’s Financial Statements.
Appears in 1 contract
Samples: Credit Agreement (Chiquita Brands International Inc)
Financial Statements, Reports. The Borrower shall furnish Certificates). Sub-sections (a) through (e) of the Loan agreement are amended and restated in their entirety to the Administrative Agent the followingread as follows:
(a) a Borrowing Base Statement (and any schedules related thereto and including any other information requested by Bank with respect to Borrower’s Accounts), including, without limitation, details of Borrower’s recurring revenue, including, without limitation, total MRR and the Annualized Churn Rate, (i) As with each request for an Advance, (ii) quarterly within forty-five (45) days of each quarter end, and (iii) monthly, within 30 days of the end of each calendar month at all times when the sum of Borrower’s unrestricted cash and Cash Equivalents held at Bank is below the Testing Threshold;
(b) reserved;
(c) as soon as available and in available, but no event later than 60 (i) forty-five (45) days after the last day of the first three calendar quarters of each fiscal year, and (ii) ninety (90) days after the last day of the last fiscal quarter of each fiscal year, a company-prepared consolidated and consolidating (if applicable) balance sheet, cash flow statement, and income statement covering Borrower’s and each of its Subsidiary’s operations for such calendar quarter in a form acceptable to Bank (the “Quarterly Financial Statements”);
(d) (i) together with the Quarterly Financial Statements, and (ii) within thirty (30) days after the last day of each month (other than the month which is also a fiscal quarter end), a duly completed Compliance Certificate signed by a Responsible Officer, certifying that as of the first three fiscal quarters end of each fiscal year such quarter or month, as applicable, Borrower was in full compliance with all of the Borrowerterms and conditions of this Agreement, and setting forth calculations showing compliance with the financial covenants set forth in this Agreement and such other information as Bank may reasonably request, including, without limitation, a copy statement that at the end of the Financial Statements of the Borrower Entities (prepared on a consolidated basis) for the fiscal year to datesuch month or quarter, certified by the Chief Accounting Officer or the Chief Financial Officer of the Borrower to present fairly in all material respects the financial conditionas applicable, results of operations, cash flows, and other information reflected therein and to have been prepared in accordance with GAAP (subject to normal year end audit adjustments and omission of footnotes and statement of shareholder’s equity)there were no held checks;
(iie) As soon as available and in no event later than 120 days after the close of each fiscal year of the Borrower, copies of within forty-five (A45) the audited consolidated Financial Statements of the Borrower Entities for such year, audited by Ernst & Young LLP or other independent certified public accountants of recognized national standing and registered with the Public Company Accounting Oversight Board and (B) copies of the unqualified opinions of such accountants;
(iii) Commencing with the fiscal quarter ended June 30, 2008, as soon as available and in no event later than 60 days after the last day of each of the first three fiscal quarters of each fiscal year in respect of quarterly Financial Statements of the Borrower Entities, 90 days after the close of each fiscal year in respect of yearly Financial Statements of the CBII Entities and 120 days after the close of each fiscal year in respect of yearly Financial Statements of the Borrower Entities in accordance with clause (i) above, clause (v) below and clause (ii) above, respectively, a compliance certificate of the Chief Accounting Officer or Treasurer of the Borrower (a “Compliance Certificate”) in substantially the form of Exhibit G-1; provided, however, that the only calculations to be provided in the Compliance Certificate delivered in connection with yearly Financial Statements of the CBII Entities shall be with respect to the Consolidated Adjusted Leverage Ratio;
(iv) As soon as available and in no event later than 45 days after the last day of each of the first three fiscal quarters of each fiscal year of CBII, a copy of the Quarterly Report for CBII on Form 10-Q for such quarter and for the fiscal year to date; provided that such information, to the extent the Borrower directly or indirectly provides the Administrative Agent with written notice and an appropriate internet link thereto, shall be accessed by Lenders on XXXXX;
(v) As soon as available and in no event later than 90 days after the close of each fiscal year of CBII, (A) copies of the Annual Report for CBII on Form 10-K for such year, audited by Ernst & Young LLP or other independent certified public accountants of recognized national standing and registered with the Public Company Accounting Oversight Board and (B) copies of the unqualified opinions of such accountants; provided that such information, to the extent the Borrower directly or indirectly provides the Administrative Agent with written notice and an appropriate internet link thereto, shall be accessed by Lenders on XXXXX;
(A) As soon as available and in no event later than 120 days after the close of each fiscal year of CBII, (1) a written supplement to Schedule 4.01(n) (setting forth all necessary Trademark information as set forth in Section 4.01(n) and relating to the Trademarks that are material to the conduct of the Significant Parties’ respective businesses as then operated), (2) a written supplement to Schedule 3.06 to each Security Agreement, (3) any additional disclosures under Section 4.01(n) after Due Inquiry and (4) any additional disclosures to be provided on an annual basis under the Security Documents and (B) promptly, but in any event within a reasonable time after any officer of CBII or the Borrower obtains knowledge of the occurrence of an event that could reasonably be expected to result in a Material Adverse Effect on any of the Principal Trademarks or the Trademark Licenses, give the Administrative Agent notice of the occurrence of any such event;
(vii) (A) As soon as available and in no event later than 120 days after the close of each fiscal year of CBII, a written supplement to Schedule 4.01(q) (setting forth each of the US Subsidiaries, each of the Significant Subsidiaries and each of the De Minimis US Subsidiaries, its jurisdiction of organization, the classes of its Equity Securities, the number of shares of each such class issued and outstanding, the percentages of shares of each such class owned directly or indirectly by CBII or the Borrower and whether CBII or the Borrower owns such shares directly or, if not, the CBII Entities that own such shares and the number of shares and percentages of shares of each such class owned directly or indirectly by such CBII Entities) and (B) promptly upon the reasonable request of the Administrative Agent and in no event more often than annually, a current hierarchy report for the CBII Entities, in the form and with the substance of the hierarchy report delivered pursuant to Section 3.01(g)(iii);
(viii) As soon as possible and in no event later than 30 days after any officer or director of any Significant Party knows of the occurrence or existence of (A) any ERISA Event under any Pension Plan or Multiemployer Plan which, either individually or in the aggregate, could reasonably be expected to have a Material Adverse Effect, (B) any actual or threatened litigation, suits, claims, disputes or investigations against any Significant Party involving potential monetary damages or in which injunctive relief or similar relief is sought, which could reasonably be expected to have a Material Adverse Effect, (C) any other event or condition which, either individually or in the aggregate, could reasonably be expected to have a Material Adverse Effect, including any of the following which could reasonably be expected to have a Material Adverse Effect: (1) breach or non-performance of, or any default under, a Contractual Obligation of any Significant Party, (2) any dispute, litigation, investigation, proceeding or suspension between any Significant Party and any Governmental Authority or (3) the commencement of, or any material development in, any litigation or proceeding affecting any Significant Party, including pursuant to any applicable Environmental Laws, or (D) any Default, the statement of the Chief Accounting Officer, Chief Financial Officer, or Treasurer of the Borrower setting forth details of such event, condition or Default and the action which CBII or the Borrower proposes to take with respect thereto. Each notice pursuant to this Section 5.01(a)(viii) shall be accompanied by a statement of an Officer of the Borrower setting forth details of the occurrence referred to therein and stating what action CBII or the Borrower has taken and proposes to take with respect thereto. Each notice pursuant to this Section 5.01(a)(viii) shall describe with particularity any and all provisions of this Agreement or other Credit Document that have been breached;
(ix) In no event later than five Business Days after they are sent, made available or filed, copies of (A) all registration statements and reports filed by any CBII Entities with any securities exchange or the United States Securities and Exchange Commission (including all 10-Q, 10-K and 8-K reports), (B) all reports, proxy statements and Financial Statements sent or made available by CBII to its Equity Securities holders and (C) all press releases and other similar public announcements concerning any material developments in the business of CBII made available by CBII to the public generally; provided that such information, to the extent the Borrower directly or indirectly provides the Administrative Agent with written notice and an appropriate internet link thereto, shall be accessed by Lenders on XXXXX;
(x) As soon as available and in no event later than 30 days after they are filed, copies of all IRS Form 5500 reports for all Pension Plans required to file such form;
(xi) Within the earlier to occur of (i) five days after the Board of Directors of the Borrower or CBII shall have publicly announced the earnings for the most recently completed fiscal year of the Borrower or CBII and (ii) 60 days after the end of each fiscal year of the Borrower and CBII, during each year when this Agreement is in effectquarter, a forecast for the current fiscal year of the Borrower Entities and the CBII Entities which includes projected consolidated statement of income for such fiscal year and report in a projected consolidated statement of cash flows for such fiscal year and projected consolidated balance sheetsform acceptable to Bank, statements of income and statements of cash flows on a quarterly basis for such fiscal year; provided that the parties acknowledge that the information in such forecasts is not compiled or presented in accordance with GAAP and may not necessarily be presented on a basis consistent with the detailing Borrower’s Financial Statements to be delivered pursuant to Section 5.01(a)total MRR, Annualized Churn Rate, Existing Customer Accounts, CAC and LTV;
(xii) As soon as possible and in no event later than the later of (A) any of CBII’s or the Borrower’s officers or directors learning thereof or (B) five Business Days prior to the occurrence of any event or circumstance (except for asset losses in which case as promptly as is reasonable after such asset loss) that would require a prepayment pursuant to Section 2.06(c), the statement of the Chief Financial Officer, Chief Accounting Officer or Treasurer of the Borrower setting forth the details thereof;
(xiii) As soon as possible and in no event later than 30 days after the receipt thereof by any Loan Party (or subsequent determination after Due Inquiry by an officer of the Borrower that it could reasonably be expected to result in a Material Adverse Effect), a copy of any notice, summons, citations or other written communications concerning any actual, alleged, suspected or threatened violation of any Environmental Law or any liability of any Loan Party for Environmental Damages that in any such case could reasonably be expected to result in a Material Adverse Effect;
(xiv) Such other instruments, agreements, certificates, opinions, statements, documents and information relating to the properties, operations or condition (financial or otherwise) of the Significant Parties, and compliance by the Significant Parties with the terms of this Agreement and the other Credit Documents as the Administrative Agent or any Lender (through the Administrative Agent) may from time to time reasonably request;
(xv) As soon as available and in no event later than five Business Days after any of CBII’s or the Borrower’s officers or directors receive notice or become aware of any actions (including derivative actions), suits, proceedings or investigations that are pending or, to the knowledge of any of CBII’s or the Borrower’s officers or directors, threatened against any Significant Party at law or in equity in any court, arbitration proceeding or before any other Governmental Authority which seek to enjoin, either directly or indirectly, the execution, delivery or performance by any Loan Party of the Credit Documents or the transactions contemplated thereby;
(xvi) As soon as available and in no event later than 120 days after the close of each fiscal year of CBII, a written supplement to Schedule 4.01(w) (setting forth a true and complete listing of all insurance maintained by the Significant Parties);
(xvii) Within 120 days after the close of each fiscal year of CBII, a written supplement disclosing any matters required to update factual matters relating to Section 4.01”
Appears in 1 contract
Samples: Loan and Security Agreement (Weave Communications, Inc.)
Financial Statements, Reports. The Borrower shall furnish Provide Bank with the following by submitting to the Administrative Agent the followingFinancial Statement Repository or otherwise submitting to Bank:
(ia) As as soon as available and in available, but no event later than 60 thirty (30) days after the last day of each of the first three fiscal quarters of each fiscal year of the Borrowermonth, a copy company-prepared consolidated and consolidating balance sheet and income statement covering Borrower’s and each of its Subsidiary’s operations for such month in a form reasonably acceptable to Bank (the “Monthly Financial Statements of the Borrower Entities (prepared on a consolidated basis) for the fiscal year to date, certified by the Chief Accounting Officer or the Chief Financial Officer of the Borrower to present fairly in all material respects the financial condition, results of operations, cash flows, and other information reflected therein and to have been prepared in accordance with GAAP (subject to normal year end audit adjustments and omission of footnotes and statement of shareholder’s equityStatements”);
(iib) As soon as available and in no event later than 120 days after the close of each fiscal year of the Borrower, copies of within (Ai) the audited consolidated Financial Statements of the Borrower Entities for such year, audited by Ernst & Young LLP or other independent certified public accountants of recognized national standing and registered with the Public Company Accounting Oversight Board and thirty (B30) copies of the unqualified opinions of such accountants;
(iii) Commencing with the fiscal quarter ended June 30, 2008, as soon as available and in no event later than 60 days after the last day of each of the first three fiscal quarters of each fiscal year in respect of quarterly Financial Statements of the Borrower Entities, 90 days after the close of each fiscal year in respect of yearly Financial Statements of the CBII Entities month and 120 days after the close of each fiscal year in respect of yearly Financial Statements of the Borrower Entities in accordance with clause (i) above, clause (v) below and clause (ii) above, respectively, a compliance certificate of the Chief Accounting Officer or Treasurer of the Borrower forty-five (a “Compliance Certificate”45) in substantially the form of Exhibit G-1; provided, however, that the only calculations to be provided in the Compliance Certificate delivered in connection with yearly Financial Statements of the CBII Entities shall be with respect to the Consolidated Adjusted Leverage Ratio;
(iv) As soon as available and in no event later than 45 days after the last day of each fiscal quarter of Borrower, and together with the Monthly Financial Statements and Quarterly Financial Statements, a completed Compliance Statement, confirming that as of the first three end of such month or fiscal quarters quarter, as applicable, Borrower was in full compliance with all of the terms and conditions of this Agreement, and setting forth calculations showing compliance with the financial covenants (if any) set forth in this Agreement and such other information as Bank may reasonably request, including, without limitation, a statement that at the end of such month or fiscal quarter, as applicable, there were no held checks;
(c) as soon as available, and in any event within forty-five (45) days after the last day of each fiscal quarter of Borrower, company-prepared consolidated and consolidating balance sheet and income statement covering Borrower’s and each of its Subsidiary’s operations for such quarter certified by a Responsible Officer and in a form reasonably acceptable to Bank (the “Quarterly Financial Statements”);
(d) as soon as available but no later than the earlier of (i) thirty (30) days after the approval thereof by the Board or (ii) January 31st of each year, and contemporaneously with any updates or amendments thereto, (1) annual operating budgets (including income statements, balance sheets and cash flow statements, by month) for the upcoming fiscal year of CBIIBorrower, and (2) annual financial projections for the following fiscal year (on a quarterly basis), in each case as approved by the Board, together with any related business forecasts used in the preparation of such annual financial projections;
(e) as soon as available, and in any event within one hundred eighty (180) days after the last day of Borrower’s fiscal year, audited consolidated financial statements prepared under GAAP, consistently applied, together with an unqualified opinion on the financial statements from an independent certified public accounting firm reasonably acceptable to Bank;
(f) in the event that Borrower becomes subject to the reporting requirements under the Exchange Act within five (5) days of filing, copies of all periodic and other reports, proxy statements and other similar materials filed by Borrower and/or any Guarantor with the SEC, any Governmental Authority succeeding to any or all of the functions of the SEC or with any national securities exchange, or distributed to all of its shareholders (or required to be distributed), as the case may be (other than materials filed by Borrower on a “confidential treatment” basis). Documents required to be delivered pursuant to the terms hereof (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 on which Borrower posts such documents, or provides a link thereto, on Borrower’s website on the internet at Borrower’s website address, or are available at xxx.xxx.xxx (or any successor site maintained by the SEC for similar purposes); provided, however, Borrower shall promptly notify Bank in writing (which may be by electronic mail) of the posting of any such documents;
(g) within five (5) days of delivery, copies of all statements, reports and notices made available to Borrower’s security holders or to any holders of Subordinated Debt;
(h) within thirty (30) after completion thereof, a copy of the Quarterly Report each 409(a) valuation report for CBII on Form 10-Q for such quarter and for the fiscal year to date; provided that such information, to the extent the Borrower directly or indirectly provides the Administrative Agent with written notice and an appropriate internet link thereto, shall be accessed by Lenders on XXXXXBorrower’s capital stock;
(vi) As soon as available prompt written notice of any changes to the beneficial ownership information set out in the Client Attestation provided by Borrower on the Effective Date. Borrower understands and in no event later than 90 acknowledges that Bank relies on such true, accurate and up-to-date beneficial ownership information to meet Bank’s regulatory obligations to obtain, verify and record information about the beneficial owners of its legal entity customers;
(j) within five (5) days after the close of each fiscal year of CBIIoccurrence thereof, (A) copies of the Annual Report for CBII on Form 10-K for such year, audited by Ernst & Young LLP or other independent certified public accountants of recognized national standing and registered with the Public Company Accounting Oversight Board and (B) copies of the unqualified opinions of such accountants; provided that such information, to the extent the Borrower directly or indirectly provides the Administrative Agent with written notice and an appropriate internet link thereto, shall of a Key Person departing from or ceasing to be accessed employed by Lenders on XXXXXBorrower;
(Ak) As soon as available and prompt report of any legal actions pending or threatened in no event later than 120 days after the close writing against Borrower or any of each fiscal year of CBII, (1) a written supplement to Schedule 4.01(n) (setting forth all necessary Trademark information as set forth in Section 4.01(n) and relating to the Trademarks that are material to the conduct of the Significant Parties’ respective businesses as then operated), (2) a written supplement to Schedule 3.06 to each Security Agreement, (3) any additional disclosures under Section 4.01(n) after Due Inquiry and (4) any additional disclosures to be provided on an annual basis under the Security Documents and (B) promptly, but in any event within a reasonable time after any officer of CBII or the Borrower obtains knowledge of the occurrence of an event its Subsidiaries that could reasonably be expected to result in a Material Adverse Effect on damages or costs to Borrower or any of the Principal Trademarks or the Trademark Licensesits Subsidiaries of, give the Administrative Agent notice of the occurrence of any such event;
(vii) (A) As soon as available and in no event later than 120 days after the close of each fiscal year of CBII, a written supplement to Schedule 4.01(q) (setting forth each of the US Subsidiaries, each of the Significant Subsidiaries and each of the De Minimis US Subsidiaries, its jurisdiction of organization, the classes of its Equity Securities, the number of shares of each such class issued and outstanding, the percentages of shares of each such class owned directly or indirectly by CBII or the Borrower and whether CBII or the Borrower owns such shares directly or, if not, the CBII Entities that own such shares and the number of shares and percentages of shares of each such class owned directly or indirectly by such CBII Entities) and (B) promptly upon the reasonable request of the Administrative Agent and in no event more often than annually, a current hierarchy report for the CBII Entities, in the form and with the substance of the hierarchy report delivered pursuant to Section 3.01(g)(iii);
(viii) As soon as possible and in no event later than 30 days after any officer or director of any Significant Party knows of the occurrence or existence of (A) any ERISA Event under any Pension Plan or Multiemployer Plan which, either individually or in the aggregate, could Two Hundred Fifty Thousand Dollars ($250,000.00) or more; and
(l) promptly, from time to time, such other financial information regarding Borrower or compliance with the terms of any Loan Documents as reasonably be expected to have requested by Bank. Any submission by Borrower of a Material Adverse Effect, (B) any actual Compliance Statement or threatened litigation, suits, claims, disputes or investigations against any Significant Party involving potential monetary damages or in which injunctive relief or similar relief is sought, which could reasonably be expected to have a Material Adverse Effect, (C) any other event or condition which, either individually or in financial statement submitted to the aggregate, could reasonably be expected to have a Material Adverse Effect, including any of the following which could reasonably be expected to have a Material Adverse Effect: (1) breach or non-performance of, or any default under, a Contractual Obligation of any Significant Party, (2) any dispute, litigation, investigation, proceeding or suspension between any Significant Party and any Governmental Authority or (3) the commencement of, or any material development in, any litigation or proceeding affecting any Significant Party, including pursuant to any applicable Environmental Laws, or (D) any Default, the statement of the Chief Accounting Officer, Chief Financial Officer, or Treasurer of the Borrower setting forth details of such event, condition or Default and the action which CBII or the Borrower proposes to take with respect thereto. Each notice Statement Repository pursuant to this Section 5.01(a)(viii) 6.2 or otherwise submitted to Bank shall be accompanied deemed to be a representation by a statement of an Officer Borrower that (a) as of the Borrower setting forth details date of the occurrence referred to therein and stating what action CBII or the Borrower has taken and proposes to take with respect thereto. Each notice pursuant to this Section 5.01(a)(viii) shall describe with particularity any and all provisions of this Agreement such Compliance Statement or other Credit Document that have been breached;
(ix) In no event later than five Business Days after they financial statement, the information and calculations set forth therein are senttrue, made available or filed, copies of (A) all registration statements accurate and reports filed by any CBII Entities with any securities exchange or the United States Securities and Exchange Commission (including all 10-Q, 10-K and 8-K reports)correct, (Bb) all reports, proxy statements and Financial Statements sent or made available by CBII to its Equity Securities holders and (C) all press releases and other similar public announcements concerning any material developments in the business as of CBII made available by CBII to the public generally; provided that such information, to the extent the Borrower directly or indirectly provides the Administrative Agent with written notice and an appropriate internet link thereto, shall be accessed by Lenders on XXXXX;
(x) As soon as available and in no event later than 30 days after they are filed, copies of all IRS Form 5500 reports for all Pension Plans required to file such form;
(xi) Within the earlier to occur of (i) five days after the Board of Directors of the Borrower or CBII shall have publicly announced the earnings for the most recently completed fiscal year of the Borrower or CBII and (ii) 60 days after the end of each fiscal year the compliance period set forth in such submission, Borrower is in complete compliance with all required covenants except as noted in such Compliance Statement or other financial statement, as applicable; (c) as of the date of such submission, no Events of Default have occurred or are continuing; (d) all representations and warranties other than any representations or warranties that are made as of a specific date in Article 5 remain true and correct in all material respects as of the date of such submission except as noted in such Compliance Statement or other financial statement, as applicable; (e) as of the date of such submission, Borrower and CBIIeach of its Subsidiaries has timely filed all required tax returns and reports, during each year when this Agreement is in effectand Borrower has timely paid all foreign, a forecast for the current fiscal year of the federal, state and local taxes, assessments, deposits and contributions owed by Borrower Entities and the CBII Entities which includes projected consolidated statement of income for such fiscal year and a projected consolidated statement of cash flows for such fiscal year and projected consolidated balance sheets, statements of income and statements of cash flows on a quarterly basis for such fiscal year; provided that the parties acknowledge that the information in such forecasts is not compiled or presented in accordance with GAAP and may not necessarily be presented on a basis consistent with the Borrower’s Financial Statements to be delivered except as otherwise permitted pursuant to Section 5.01(a);
(xii) As soon as possible and in no event later than the later of (A) any of CBII’s or the Borrower’s officers or directors learning thereof or (B) five Business Days prior to the occurrence of any event or circumstance (except for asset losses in which case as promptly as is reasonable after such asset loss) that would require a prepayment pursuant to Section 2.06(c), the statement of the Chief Financial Officer, Chief Accounting Officer or Treasurer of the Borrower setting forth the details thereof;
(xiii) As soon as possible and in no event later than 30 days after the receipt thereof by any Loan Party (or subsequent determination after Due Inquiry by an officer of the Borrower that it could reasonably be expected to result in a Material Adverse Effect), a copy of any notice, summons, citations or other written communications concerning any actual, alleged, suspected or threatened violation of any Environmental Law or any liability of any Loan Party for Environmental Damages that in any such case could reasonably be expected to result in a Material Adverse Effect;
(xiv) Such other instruments, agreements, certificates, opinions, statements, documents and information relating to the properties, operations or condition (financial or otherwise) of the Significant Parties, and compliance by the Significant Parties with the terms of this Agreement Section 5.9; and (f) as of the other Credit Documents as the Administrative Agent date of such submission, no Liens have been levied or claims made against Borrower or any Lender (through the Administrative Agent) may from time to time reasonably request;
(xv) As soon as available and in no event later than five Business Days after any of CBII’s or the Borrower’s officers or directors receive notice or become aware of any actions (including derivative actions), suits, proceedings or investigations that are pending or, to the knowledge of any of CBII’s or the Borrower’s officers or directors, threatened against any Significant Party at law or in equity in any court, arbitration proceeding or before any other Governmental Authority which seek to enjoin, either directly or indirectly, the execution, delivery or performance by any Loan Party of the Credit Documents or the transactions contemplated thereby;
(xvi) As soon as available and in no event later than 120 days after the close of each fiscal year of CBII, a written supplement to Schedule 4.01(w) (setting forth a true and complete listing of all insurance maintained by the Significant Parties);
(xvii) Within 120 days after the close of each fiscal year of CBII, a written supplement disclosing any matters required to update factual matters its Subsidiaries relating to Section 4.01unpaid employee payroll or benefits of which Borrower has not previously provided written notification to Bank.
Appears in 1 contract
Financial Statements, Reports. The Borrower shall furnish Provide Bank with the following by submitting to the Administrative Agent the followingFinancial Statement Repository or otherwise submitting to Bank:
(ia) As soon as available a Borrowing Base Statement (and in no event later than 60 any schedules related thereto and including any other information requested by Bank with respect to Borrower’s Accounts) and a detailed accounts receivable ledger upon each request for an Advance and within seven (7) days after the last day of each of the first three fiscal quarters of each fiscal year of the Borrower, a copy of the Financial Statements of the Borrower Entities (prepared on a consolidated basis) for the fiscal year to date, certified by the Chief Accounting Officer or the Chief Financial Officer of the Borrower to present fairly in all material respects the financial condition, results of operations, cash flows, and other information reflected therein and to have been prepared in accordance with GAAP (subject to normal year end audit adjustments and omission of footnotes and statement of shareholder’s equity)month;
(iib) As soon as available and in no event later than 120 days after the close of each fiscal year of the Borrower, copies of within thirty (A30) the audited consolidated Financial Statements of the Borrower Entities for such year, audited by Ernst & Young LLP or other independent certified public accountants of recognized national standing and registered with the Public Company Accounting Oversight Board and (B) copies of the unqualified opinions of such accountants;
(iii) Commencing with the fiscal quarter ended June 30, 2008, as soon as available and in no event later than 60 days after the last day of each of the first three fiscal quarters of each fiscal year in respect of quarterly Financial Statements of the Borrower Entitiesmonth, 90 days after the close of each fiscal year in respect of yearly Financial Statements of the CBII Entities and 120 days after the close of each fiscal year in respect of yearly Financial Statements of the Borrower Entities in accordance with clause (i) abovemonthly accounts receivable agings, clause (v) below and clause aged by invoice date, (ii) abovemonthly accounts payable agings, respectivelyaged by invoice date, a compliance certificate and outstanding or held check registers, if any, and (iii) monthly reconciliations of the Chief Accounting Officer or Treasurer of the Borrower accounts receivable agings (a “Compliance Certificate”) in substantially the form of Exhibit G-1; providedaged by invoice date), howeverdetailed Account Debtor listing, that the only calculations to be provided in the Compliance Certificate delivered in connection with yearly Financial Statements of the CBII Entities shall be with respect to the Consolidated Adjusted Leverage Ratioinventory sell-through report, and general ledger;
(ivc) As as soon as available and in available, but no event later than 45 thirty (30) days after the last day of each month, a company-prepared consolidated and consolidating balance sheet and income statement covering Borrower’s and each of its Subsidiary’s operations for such month in a form reasonably acceptable to Bank (the first three fiscal quarters “Monthly Financial Statements”);
(d) within (i) thirty (30) days after the last day of each month and (ii) forty-five (45) days after the last day of each fiscal quarter of Borrower, and together with the Monthly Financial Statements and Quarterly Financial Statements, a completed Compliance Statement, confirming that as of the end of such month or fiscal quarter, as applicable, Borrower was in full compliance with all of the terms and conditions of this Agreement, and setting forth calculations showing compliance with the financial covenants set forth in this Agreement and such other information as Bank may reasonably request, including, without limitation, a statement that at the end of such month or fiscal quarter, as applicable, there were no held checks;
(e) as soon as available, and in any event within forty-five (45) days after the last day of each fiscal quarter of Borrower, company-prepared consolidated and consolidating balance sheet and income statement covering Borrower’s and each of its Subsidiary’s operations for such quarter certified by a Responsible Officer and in a form reasonably acceptable to Bank (the “Quarterly Financial Statements”);
(f) as soon as available but no later than the earlier of (i) thirty (30) days after the approval thereof by the Board or (ii) January 31st of each year, and contemporaneously with any updates or amendments thereto, (1) annual operating budgets (including income statements, balance sheets and cash flow statements, by month) for the upcoming fiscal year of CBIIBorrower, and (2) annual financial projections for the following fiscal year (on a quarterly basis), in each case as approved by the Board, together with any related business forecasts used in the preparation of such annual financial projections;
(g) as soon as available, and in any event within one hundred eighty (180) days after the last day of Borrower’s fiscal year, audited consolidated financial statements prepared under GAAP, consistently applied, together with an unqualified opinion on the financial statements from an independent certified public accounting firm reasonably acceptable to Bank;
(h) in the event that Borrower becomes subject to the reporting requirements under the Exchange Act within five (5) days of filing, copies of all periodic and other reports, proxy statements and other similar materials filed by Borrower and/or any Guarantor with the SEC, any Governmental Authority succeeding to any or all of the functions of the SEC or with any national securities exchange, or distributed to all of its shareholders (or required to be distributed), as the case may be (other than materials filed by Borrower on a “confidential treatment” basis). Documents required to be delivered pursuant to the terms hereof (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 on which Borrower posts such documents, or provides a link thereto, on Borrower’s website on the internet at Borrower’s website address, or are available at xxx.xxx.xxx (or any successor site maintained by the SEC for similar purposes); provided, however, Borrower shall promptly notify Bank in writing (which may be by electronic mail) of the posting of any such documents;
(i) within five (5) days of delivery, copies of all statements, reports and notices made available to Borrower’s security holders or to any holders of Subordinated Debt;
(j) within thirty (30) after completion thereof, a copy of the Quarterly Report each 409(a) valuation report for CBII on Form 10-Q for such quarter and for the fiscal year to date; provided that such information, to the extent the Borrower directly or indirectly provides the Administrative Agent with written notice and an appropriate internet link thereto, shall be accessed by Lenders on XXXXXBorrower’s capital stock;
(vk) As soon as available prompt written notice of any changes to the beneficial ownership information set out in the Client Attestation provided by Borrower on the Effective Date. Borrower understands and in no event later than 90 acknowledges that Bank relies on such true, accurate and up-to-date beneficial ownership information to meet Bank’s regulatory obligations to obtain, verify and record information about the beneficial owners of its legal entity customers;
(l) within five (5) days after the close of each fiscal year of CBIIoccurrence thereof, (A) copies of the Annual Report for CBII on Form 10-K for such year, audited by Ernst & Young LLP or other independent certified public accountants of recognized national standing and registered with the Public Company Accounting Oversight Board and (B) copies of the unqualified opinions of such accountants; provided that such information, to the extent the Borrower directly or indirectly provides the Administrative Agent with written notice and an appropriate internet link thereto, shall of a Key Person departing from or ceasing to be accessed employed by Lenders on XXXXXBorrower;
(Am) As soon as available and prompt report of any legal actions pending or threatened in no event later than 120 days after the close writing against Borrower or any of each fiscal year of CBII, (1) a written supplement to Schedule 4.01(n) (setting forth all necessary Trademark information as set forth in Section 4.01(n) and relating to the Trademarks that are material to the conduct of the Significant Parties’ respective businesses as then operated), (2) a written supplement to Schedule 3.06 to each Security Agreement, (3) any additional disclosures under Section 4.01(n) after Due Inquiry and (4) any additional disclosures to be provided on an annual basis under the Security Documents and (B) promptly, but in any event within a reasonable time after any officer of CBII or the Borrower obtains knowledge of the occurrence of an event its Subsidiaries that could reasonably be expected to result in a Material Adverse Effect on damages or costs to Borrower or any of the Principal Trademarks or the Trademark Licensesits Subsidiaries of, give the Administrative Agent notice of the occurrence of any such event;
(vii) (A) As soon as available and in no event later than 120 days after the close of each fiscal year of CBII, a written supplement to Schedule 4.01(q) (setting forth each of the US Subsidiaries, each of the Significant Subsidiaries and each of the De Minimis US Subsidiaries, its jurisdiction of organization, the classes of its Equity Securities, the number of shares of each such class issued and outstanding, the percentages of shares of each such class owned directly or indirectly by CBII or the Borrower and whether CBII or the Borrower owns such shares directly or, if not, the CBII Entities that own such shares and the number of shares and percentages of shares of each such class owned directly or indirectly by such CBII Entities) and (B) promptly upon the reasonable request of the Administrative Agent and in no event more often than annually, a current hierarchy report for the CBII Entities, in the form and with the substance of the hierarchy report delivered pursuant to Section 3.01(g)(iii);
(viii) As soon as possible and in no event later than 30 days after any officer or director of any Significant Party knows of the occurrence or existence of (A) any ERISA Event under any Pension Plan or Multiemployer Plan which, either individually or in the aggregate, could Two Hundred Fifty Thousand Dollars ($250,000.00) or more; and
(n) promptly, from time to time, such other financial information regarding Borrower or compliance with the terms of any Loan Documents as reasonably be expected to have requested by Bank. Any submission by Borrower of a Material Adverse EffectCompliance Statement, (B) any actual a Borrowing Base Statement or threatened litigation, suits, claims, disputes or investigations against any Significant Party involving potential monetary damages or in which injunctive relief or similar relief is sought, which could reasonably be expected to have a Material Adverse Effect, (C) any other event or condition which, either individually or in financial statement submitted to the aggregate, could reasonably be expected to have a Material Adverse Effect, including any of the following which could reasonably be expected to have a Material Adverse Effect: (1) breach or non-performance of, or any default under, a Contractual Obligation of any Significant Party, (2) any dispute, litigation, investigation, proceeding or suspension between any Significant Party and any Governmental Authority or (3) the commencement of, or any material development in, any litigation or proceeding affecting any Significant Party, including pursuant to any applicable Environmental Laws, or (D) any Default, the statement of the Chief Accounting Officer, Chief Financial Officer, or Treasurer of the Borrower setting forth details of such event, condition or Default and the action which CBII or the Borrower proposes to take with respect thereto. Each notice Statement Repository pursuant to this Section 5.01(a)(viii) 6.2 or otherwise submitted to Bank shall be accompanied deemed to be a representation by a statement of an Officer Borrower that (a) as of the Borrower setting forth details date of the occurrence referred to therein and stating what action CBII or the Borrower has taken and proposes to take with respect thereto. Each notice pursuant to this Section 5.01(a)(viii) shall describe with particularity any and all provisions of this Agreement such Compliance Statement, Borrowing Base Statement or other Credit Document that have been breached;
(ix) In no event later than five Business Days after they financial statement, the information and calculations set forth therein are senttrue, made available or filed, copies of (A) all registration statements accurate and reports filed by any CBII Entities with any securities exchange or the United States Securities and Exchange Commission (including all 10-Q, 10-K and 8-K reports)correct, (Bb) all reports, proxy statements and Financial Statements sent or made available by CBII to its Equity Securities holders and (C) all press releases and other similar public announcements concerning any material developments in the business as of CBII made available by CBII to the public generally; provided that such information, to the extent the Borrower directly or indirectly provides the Administrative Agent with written notice and an appropriate internet link thereto, shall be accessed by Lenders on XXXXX;
(x) As soon as available and in no event later than 30 days after they are filed, copies of all IRS Form 5500 reports for all Pension Plans required to file such form;
(xi) Within the earlier to occur of (i) five days after the Board of Directors of the Borrower or CBII shall have publicly announced the earnings for the most recently completed fiscal year of the Borrower or CBII and (ii) 60 days after the end of each fiscal year the compliance period set forth in such submission, Borrower is in complete compliance with all required covenants except as noted in such Compliance Statement, Borrowing Base Statement or other financial statement, as applicable; (c) as of the date of such submission, no Events of Default have occurred or are continuing; (d) all representations and warranties other than any representations or warranties that are made as of a specific date in Article 5 remain true and correct in all material respects as of the date of such submission except as noted in such Compliance Statement, Borrowing Base Statement or other financial statement, as applicable; (e) as of the date of such submission, Borrower and CBIIeach of its Subsidiaries has timely filed all required tax returns and reports, during each year when this Agreement is in effectand Borrower has timely paid all foreign, a forecast for the current fiscal year of the federal, state and local taxes, assessments, deposits and contributions owed by Borrower Entities and the CBII Entities which includes projected consolidated statement of income for such fiscal year and a projected consolidated statement of cash flows for such fiscal year and projected consolidated balance sheets, statements of income and statements of cash flows on a quarterly basis for such fiscal year; provided that the parties acknowledge that the information in such forecasts is not compiled or presented in accordance with GAAP and may not necessarily be presented on a basis consistent with the Borrower’s Financial Statements to be delivered except as otherwise permitted pursuant to Section 5.01(a);
(xii) As soon as possible and in no event later than the later of (A) any of CBII’s or the Borrower’s officers or directors learning thereof or (B) five Business Days prior to the occurrence of any event or circumstance (except for asset losses in which case as promptly as is reasonable after such asset loss) that would require a prepayment pursuant to Section 2.06(c), the statement of the Chief Financial Officer, Chief Accounting Officer or Treasurer of the Borrower setting forth the details thereof;
(xiii) As soon as possible and in no event later than 30 days after the receipt thereof by any Loan Party (or subsequent determination after Due Inquiry by an officer of the Borrower that it could reasonably be expected to result in a Material Adverse Effect), a copy of any notice, summons, citations or other written communications concerning any actual, alleged, suspected or threatened violation of any Environmental Law or any liability of any Loan Party for Environmental Damages that in any such case could reasonably be expected to result in a Material Adverse Effect;
(xiv) Such other instruments, agreements, certificates, opinions, statements, documents and information relating to the properties, operations or condition (financial or otherwise) of the Significant Parties, and compliance by the Significant Parties with the terms of this Agreement Section 5.9; and (f) as of the other Credit Documents as the Administrative Agent date of such submission, no Liens have been levied or claims made against Borrower or any Lender (through the Administrative Agent) may from time to time reasonably request;
(xv) As soon as available and in no event later than five Business Days after any of CBII’s or the Borrower’s officers or directors receive notice or become aware of any actions (including derivative actions), suits, proceedings or investigations that are pending or, to the knowledge of any of CBII’s or the Borrower’s officers or directors, threatened against any Significant Party at law or in equity in any court, arbitration proceeding or before any other Governmental Authority which seek to enjoin, either directly or indirectly, the execution, delivery or performance by any Loan Party of the Credit Documents or the transactions contemplated thereby;
(xvi) As soon as available and in no event later than 120 days after the close of each fiscal year of CBII, a written supplement to Schedule 4.01(w) (setting forth a true and complete listing of all insurance maintained by the Significant Parties);
(xvii) Within 120 days after the close of each fiscal year of CBII, a written supplement disclosing any matters required to update factual matters its Subsidiaries relating to Section 4.01unpaid employee payroll or benefits of which Borrower has not previously provided written notification to Bank.
Appears in 1 contract
Financial Statements, Reports. The Borrower shall furnish Provide Agent with the following by submitting to the Administrative Agent the followingFinancial Statement Repository or otherwise submitting to Agent:
(ia) As promptly following Agent’s reasonable request, (A) monthly accounts receivable agings, aged by invoice date, (B) monthly accounts payable agings, aged by invoice date, and outstanding or held check registers, if any, (C) monthly reconciliations of accounts receivable agings (aged by invoice date), (D) transaction reports, Deferred Revenue reports, and a general ledger, or (E) a pipeline report and detailed capital expenditure report, each in a form reasonably acceptable to Agent;
(b) as soon as available and in available, but no event later than 60 thirty (30) days after the last day of each month (other than the last month of any fiscal quarter), a company prepared consolidated balance sheet and income statement, covering Borrower’s and its Subsidiaries’ operations for such month in a form reasonably acceptable to Agent (the first three fiscal quarters “Monthly Financial Statements”);
(c) as soon as available, and in any event within forty five (45) days following the end of each fiscal year quarter of Borrower, unaudited interim and year-to-date financial statements as of the Borrower, a copy end of the Financial Statements of the Borrower Entities such calendar quarter (prepared on a consolidated basis) for the fiscal year to date), including balance sheet and related statements of income and cash flows, certified by the Borrower’s Chief Accounting Executive Officer or the Chief Financial Officer of to the Borrower to present fairly in all material respects the financial condition, results of operations, cash flows, and other information reflected therein and to effect that they have been prepared in accordance with GAAP GAAP, except (i) for the absence of footnotes, and (ii) that they are subject to normal year year-end audit adjustments and omission of footnotes and statement of shareholder’s equity(the “Quarterly Financial Statements”);
(iid) As soon as available and in no event later than 120 days after the close of each fiscal year of the Borrower, copies of within thirty (A30) the audited consolidated Financial Statements of the Borrower Entities for such year, audited by Ernst & Young LLP or other independent certified public accountants of recognized national standing and registered with the Public Company Accounting Oversight Board and (B) copies of the unqualified opinions of such accountants;
(iii) Commencing with the fiscal quarter ended June 30, 2008, as soon as available and in no event later than 60 days after the last day of each of month and together with the first three fiscal quarters of each fiscal year in respect of quarterly Monthly Financial Statements of and the Borrower EntitiesQuarterly Financial Statements, 90 days after the close of each fiscal year in respect of yearly Financial Statements of the CBII Entities and 120 days after the close of each fiscal year in respect of yearly Financial Statements of the Borrower Entities in accordance with clause (i) above, clause (v) below and clause (ii) above, respectivelyif applicable, a compliance certificate of the Chief Accounting Officer or Treasurer of the Borrower (a “completed Compliance Certificate”) Statement substantially in substantially the form of Exhibit G-1; provided, however, that the only calculations to be provided in the Compliance Certificate delivered in connection with yearly Financial Statements of the CBII Entities shall be with respect to the Consolidated Adjusted Leverage RatioB attached hereto;
(ive) As soon as available and in no event later than 45 within the earlier of (i) sixty (60) days after the last day of each of the first three fiscal quarters end of each fiscal year of CBIIBorrower, a copy or (ii) seven (7) days after approval of the Quarterly Report for CBII on Form same by the Board, and within ten (10-Q for such quarter and for ) Business Days of approval by the fiscal year to date; provided that such information, to the extent the Borrower directly Board of any updates or indirectly provides the Administrative Agent with written notice and an appropriate internet link amendments thereto, shall be accessed by Lenders on XXXXX;
(v) As soon as available and in no event later than 90 days after the close of each fiscal year of CBII, (A) copies annual operating budgets (including income statements, balance sheets and cash flow statements, by month) for the then-current fiscal year of Borrower, and (B) annual financial projections for the Annual Report for CBII then-current fiscal year (on Form 10-K for a quarterly basis), in each case as approved by the Board, together with any related business forecasts used in the preparation of such annual financial projections;
(f) as soon as available, and in any event within one hundred eighty (180) days following the end of Borrower’s fiscal year, audited by Ernst & Young LLP consolidated financial statements prepared under GAAP, consistently applied, together with an unqualified opinion (other than a going concern qualification with respect to (i) Borrower’s liquidity only typical for venture backed companies similar to Borrower or (ii) the upcoming maturity of any series of indebtedness or termination of any revolving commitment within twelve (12) months following the date such opinion is rendered) on the financial statements from Deloitte, any “Big Four” accounting firm or any other independent certified public accountants accounting firm reasonably acceptable to Agent (the “Annual Financial Statements”);
(g) as soon as available, but no later than fifteen (15) days after each meeting of recognized national standing and registered with the Public Company Accounting Oversight Board and (B) Board, copies of board packets provided to the unqualified opinions of Board in connection with each such accountantsmeeting; provided that (i) any information that may be subject to attorney-client privilege (if access to such information, information could reasonably be expected to adversely affect the extent the attorney-client privilege between Borrower directly or indirectly provides the Administrative Agent with written notice and an appropriate internet link thereto, shall be accessed by Lenders on XXXXX;
(A) As soon as available and in no event later than 120 days after the close of each fiscal year of CBII, (1) a written supplement to Schedule 4.01(n) (setting forth all necessary Trademark information as set forth in Section 4.01(n) and relating to the Trademarks that are material to the conduct of the Significant Parties’ respective businesses as then operatedits counsel), (2) a written supplement to Schedule 3.06 to each Security Agreement, (3ii) any additional disclosures information subject to restrictions under Section 4.01(n) after Due Inquiry any applicable export control laws and regulations, or (4iii) any additional disclosures to be provided on an annual basis under the Security Documents and (B) promptly, but in any event within a reasonable time after any officer of CBII or the Borrower obtains knowledge of the occurrence of an event information that could reasonably be expected to result in a Material Adverse Effect on conflict of interest between Agent or a Lender and Borrower or any Guarantor with respect to matters concerning this financing transaction between Agent, the Lenders, Borrower, and any Guarantor, may be redacted or omitted from any such materials;
(h) in the event that Borrower becomes subject to the reporting requirements under the Exchange Act within five (5) Business Days of filing, copies of all periodic and other reports, proxy statements and other materials filed by Borrower and/or any Guarantor with the SEC, any Governmental Authority succeeding to any or all of the Principal Trademarks or the Trademark Licenses, give the Administrative Agent notice functions of the occurrence SEC or with any national securities exchange, or distributed to its shareholders, as the case may be. Documents required to be delivered pursuant to the terms hereof (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 on which Borrower posts such documents, or provides a link thereto, on Borrower’s website on the internet at Borrower’s website address; provided, however, Borrower shall promptly notify Agent in writing (which may be by electronic mail) of the posting of any such eventdocuments;
(viii) (A) As soon as available and prompt report of any legal actions pending or threatened in no event later than 120 days after the close of each fiscal year of CBII, a written supplement to Schedule 4.01(q) (setting forth each of the US Subsidiaries, each of the Significant Subsidiaries and each of the De Minimis US Subsidiaries, its jurisdiction of organization, the classes writing against Borrower or any of its Equity SecuritiesSubsidiaries that could result in damages or costs to Borrower or any of its Subsidiaries of, the number of shares of each such class issued and outstanding, the percentages of shares of each such class owned directly or indirectly by CBII or the Borrower and whether CBII or the Borrower owns such shares directly or, if not, the CBII Entities that own such shares and the number of shares and percentages of shares of each such class owned directly or indirectly by such CBII Entities) and (B) promptly upon the reasonable request of the Administrative Agent and in no event more often than annually, a current hierarchy report for the CBII Entities, in the form and with the substance of the hierarchy report delivered pursuant to Section 3.01(g)(iii);
(viii) As soon as possible and in no event later than 30 days after any officer or director of any Significant Party knows of the occurrence or existence of (A) any ERISA Event under any Pension Plan or Multiemployer Plan which, either individually or in the aggregate, could reasonably be expected to have a Material Adverse EffectOne Million Dollars ($1,000,000) or more;
(j) promptly after the sending or filing thereof, (B) any actual or threatened litigationas the case may be, suits, claims, disputes or investigations against any Significant Party involving potential monetary damages or in which injunctive relief or similar relief is sought, which could reasonably be expected to have a Material Adverse Effect, (C) any other event or condition which, either individually or in the aggregate, could reasonably be expected to have a Material Adverse Effect, including any of the following which could reasonably be expected to have a Material Adverse Effect: (1) breach or non-performance of, or any default under, a Contractual Obligation copies of any Significant Partyproxy statements, financial statements or reports that Borrower has made available to holders of its preferred stock; and
(2k) promptly, from time to time, such other financial information regarding Borrower or compliance with the terms of any dispute, litigation, investigation, proceeding or suspension between any Significant Party and any Governmental Authority or (3) Loan Documents as reasonably requested by Agent. Any submission by Borrower of a Compliance Statement submitted to the commencement of, or any material development in, any litigation or proceeding affecting any Significant Party, including pursuant to any applicable Environmental Laws, or (D) any Default, the statement of the Chief Accounting Officer, Chief Financial Officer, or Treasurer of the Borrower setting forth details of such event, condition or Default and the action which CBII or the Borrower proposes to take with respect thereto. Each notice Statement Repository pursuant to this Section 5.01(a)(viii) 6.2 or otherwise submitted to Agent shall be accompanied deemed to be a representation by a statement of an Officer Borrower that (i) as of the Borrower setting date of such Compliance Statement, the information and calculations set forth details therein are true, accurate and correct, (ii) as of the occurrence referred end of the compliance period set forth in such submission, Borrower is in complete compliance with all required covenants except as noted in such Compliance Statement, or otherwise disclosed in writing to therein Agent by Borrower, (iii) as of the date of such submission, no Events of Default have occurred or are continuing except as noted in such Compliance Statement or otherwise disclosed in writing to Agent by Borrower, (iv) all representations and stating what action CBII warranties other than any representations or warranties that are made as of a specific date in Article 5 are true and correct in all material respects as of the date of such submission except as noted in such Compliance Statement, or otherwise disclosed in writing to Agent by Borrower, (v) as of the date of such submission, Borrower and each of its Subsidiaries has timely filed all required tax returns and reports, and Borrower has taken timely paid all foreign, federal, state and proposes to take with respect thereto. Each notice local taxes, assessments, deposits and contributions owed by Borrower except as otherwise permitted pursuant to this the terms of Section 5.01(a)(viii5.9, and (vi) shall describe with particularity as of the date of such submission, no Liens have been levied or claims made against Borrower or any and all provisions of its Subsidiaries relating to unpaid employee payroll or benefits of which Borrower has not previously provided written notification to Agent. Notwithstanding the foregoing or anything else to the contrary in this Agreement or any other Credit Document that have been breached;
Loan Document, documents required to be delivered under this Section 6.2 (ix) In no event later than five Business Days after they are sent, made available or filed, copies of (A) all registration statements and reports filed by any CBII Entities with any securities exchange or the United States Securities and Exchange Commission (including all 10-Q, 10-K and 8-K reports), (B) all reports, proxy statements and Financial Statements sent or made available by CBII to its Equity Securities holders and (C) all press releases and other similar public announcements concerning any material developments in the business of CBII made available by CBII to the public generally; provided that such information, to the extent any such documents are included in materials otherwise filed with the SEC) are deemed to have been delivered on the earliest date on which (y) such documents are posted publicly by the SEC or otherwise, or (z) Borrower directly posts such documents, or indirectly provides the Administrative Agent with written notice and an appropriate internet a link thereto, shall be accessed by Lenders on XXXXX;
(x) As soon as available and in no event later than 30 days after they are filed, copies of all IRS Form 5500 reports for all Pension Plans required to file such form;
(xi) Within the earlier to occur of (i) five days after the Board of Directors of the Borrower or CBII shall have publicly announced the earnings for the most recently completed fiscal year of the Borrower or CBII and (ii) 60 days after the end of each fiscal year of the Borrower and CBII, during each year when this Agreement is in effect, a forecast for the current fiscal year of the Borrower Entities and the CBII Entities which includes projected consolidated statement of income for such fiscal year and a projected consolidated statement of cash flows for such fiscal year and projected consolidated balance sheets, statements of income and statements of cash flows on a quarterly basis for such fiscal year; provided that the parties acknowledge that the information in such forecasts is not compiled or presented in accordance with GAAP and may not necessarily be presented on a basis consistent with the Borrower’s Financial Statements to be delivered pursuant to Section 5.01(a);
(xii) As soon as possible and in no event later than website on the later of (A) any of CBII’s or the Internet at Borrower’s officers or directors learning thereof or (B) five Business Days prior to the occurrence of any event or circumstance (except for asset losses in which case as promptly as is reasonable after such asset loss) that would require a prepayment pursuant to Section 2.06(c), the statement of the Chief Financial Officer, Chief Accounting Officer or Treasurer of the Borrower setting forth the details thereof;
(xiii) As soon as possible and in no event later than 30 days after the receipt thereof by any Loan Party (or subsequent determination after Due Inquiry by an officer of the Borrower that it could reasonably be expected to result in a Material Adverse Effect), a copy of any notice, summons, citations or other written communications concerning any actual, alleged, suspected or threatened violation of any Environmental Law or any liability of any Loan Party for Environmental Damages that in any such case could reasonably be expected to result in a Material Adverse Effect;
(xiv) Such other instruments, agreements, certificates, opinions, statements, documents and information relating to the properties, operations or condition (financial or otherwise) of the Significant Parties, and compliance by the Significant Parties with the terms of this Agreement and the other Credit Documents as the Administrative Agent or any Lender (through the Administrative Agent) may from time to time reasonably request;
(xv) As soon as available and in no event later than five Business Days after any of CBII’s or the Borrower’s officers or directors receive notice or become aware of any actions (including derivative actions), suits, proceedings or investigations that are pending or, to the knowledge of any of CBII’s or the Borrower’s officers or directors, threatened against any Significant Party at law or in equity in any court, arbitration proceeding or before any other Governmental Authority which seek to enjoin, either directly or indirectly, the execution, delivery or performance by any Loan Party of the Credit Documents or the transactions contemplated thereby;
(xvi) As soon as available and in no event later than 120 days after the close of each fiscal year of CBII, a written supplement to Schedule 4.01(w) (setting forth a true and complete listing of all insurance maintained by the Significant Parties);
(xvii) Within 120 days after the close of each fiscal year of CBII, a written supplement disclosing any matters required to update factual matters relating to Section 4.01website address.
Appears in 1 contract
Financial Statements, Reports. The Borrower shall furnish Provide Bank with the following by submitting to the Administrative Agent the followingFinancial Statement Repository or otherwise submitting to Bank:
(a) a Borrowing Base Statement (and any schedules related thereto and including any other information requested by Bank with respect to Borrower’s Accounts) (i) As no later than Friday of each week when a Streamline Period is not in effect and (ii) within thirty (30) days after the end of each month when a Streamline Period is in effect;
(b) within thirty (30) days after the end of each month, (A) monthly accounts receivable agings, aged by invoice date, (B) monthly accounts payable agings, aged by invoice date, and (C) a detailed accounts receivable ledger report, and (D) reconciliations of accounts receivable agings (aged by invoice date), transaction reports, and general ledger;
(c) as soon as available and in available, but no event later than 60 thirty (30) days after the last day of each of the first three fiscal quarters of each fiscal year of the Borrowermonth, a copy of company prepared consolidated balance sheet and income statement covering Borrower’s consolidated operations for such month in a form acceptable to Bank (the “Monthly Financial Statements of the Borrower Entities (prepared on a consolidated basis) for the fiscal year to date, certified by the Chief Accounting Officer or the Chief Financial Officer of the Borrower to present fairly in all material respects the financial condition, results of operations, cash flows, and other information reflected therein and to have been prepared in accordance with GAAP (subject to normal year end audit adjustments and omission of footnotes and statement of shareholder’s equityStatements”);
(iid) As soon as available and in no event later than 120 days after the close of each fiscal year of the Borrower, copies of within thirty (A30) the audited consolidated Financial Statements of the Borrower Entities for such year, audited by Ernst & Young LLP or other independent certified public accountants of recognized national standing and registered with the Public Company Accounting Oversight Board and (B) copies of the unqualified opinions of such accountants;
(iii) Commencing with the fiscal quarter ended June 30, 2008, as soon as available and in no event later than 60 days after the last day of each month and together with the Monthly Financial Statements, a duly completed Compliance Statement, substantially in the form of Exhibit B;
(e) contemporaneously with any updates or amendments thereto, within thirty (30) days of the first three fiscal quarters later of Board approval or the end of each fiscal year in respect of quarterly Financial Statements of Borrower, (A) annual operating budgets (including income statements, balance sheets and cash flow statements, by month) for the Borrower Entities, 90 days after the close of each upcoming fiscal year in respect of yearly Financial Statements of Borrower, and (B) annual financial projections for the CBII Entities and 120 days after the close of each following fiscal year (on a quarterly basis), in respect each case as approved by the Board, together with any related business forecasts used in the preparation of yearly Financial Statements such annual financial projections;
(f) as soon as available and in any event within one hundred eighty (180) days following the end of Borrower’s fiscal year, audited consolidated financial statements prepared under GAAP, consistently applied, together with an unqualified opinion (provided that such opinion may contain a going concern qualification typical for venture backed companies similar to Borrower) on the Borrower Entities in accordance with clause (i) above, clause (v) below and clause (ii) above, respectively, a compliance certificate of the Chief Accounting Officer or Treasurer of the Borrower (a “Compliance Certificate”) in substantially the form of Exhibit G-1financial statements from an independent certified public accounting firm reasonably acceptable to Bank; provided, however, that for any fiscal year for which the only calculations Board does not require Borrower to be provided in the Compliance Certificate delivered in connection with yearly Financial Statements of the CBII Entities prepare audited financial statements, Borrower shall be with respect instead deliver to the Consolidated Adjusted Leverage Ratio;
(iv) As Bank, as soon as available and in available, but no event later than 45 sixty (60) days after the last day of each Borrower’s fiscal year, a company-prepared consolidated balance sheet and income statement covering Borrower’s consolidated operations during such fiscal year in a form acceptable to Bank;
(g) in the event that Borrower becomes subject to the reporting requirements under the Exchange Act within five (5) days of filing, copies of all periodic and other reports, proxy statements and other materials filed by Borrower and/or any Guarantor with the SEC, any Governmental Authority succeeding to any or all of the first three fiscal quarters of each fiscal year of CBII, a copy functions of the Quarterly Report for CBII on Form 10-Q for such quarter and for SEC or with any national securities exchange, or distributed to its shareholders, as the fiscal year case may be. Documents required to date; provided that such information, be delivered pursuant to the terms hereof (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 on which Borrower directly posts such documents, or indirectly provides the Administrative Agent with written notice and an appropriate internet a link thereto, on Borrower’s website on the internet at Borrower’s website address; provided, however, Borrower shall promptly notify Bank in writing (which may be accessed by Lenders on XXXXXelectronic mail) of the posting of any such documents;
(vh) As soon as available and in no event later than 90 within five (5) days after the close of each fiscal year of CBIIdelivery, (A) copies of the Annual Report for CBII on Form 10-K for such yearall statements, audited by Ernst & Young LLP reports and notices made available to Borrower’s security holders or other independent certified public accountants to any holders of recognized national standing and registered with the Public Company Accounting Oversight Board and (B) copies of the unqualified opinions of such accountants; provided that such information, to the extent the Borrower directly or indirectly provides the Administrative Agent with written notice and an appropriate internet link thereto, shall be accessed by Lenders on XXXXXSubordinated Debt;
(A) As soon as available and in no event later than 120 days after the close of each fiscal year of CBII, (1i) a written supplement to Schedule 4.01(n) (setting forth all necessary Trademark information as set forth prompt report of any legal actions pending or threatened in Section 4.01(n) and relating to the Trademarks that are material to the conduct writing against Borrower or any of the Significant Parties’ respective businesses as then operated), (2) a written supplement to Schedule 3.06 to each Security Agreement, (3) any additional disclosures under Section 4.01(n) after Due Inquiry and (4) any additional disclosures to be provided on an annual basis under the Security Documents and (B) promptly, but in any event within a reasonable time after any officer of CBII or the Borrower obtains knowledge of the occurrence of an event its Subsidiaries that could reasonably be expected to result in a Material Adverse Effect on damages or costs to Borrower or any of the Principal Trademarks or the Trademark Licensesits Subsidiaries of, give the Administrative Agent notice of the occurrence of any such event;
(vii) (A) As soon as available and in no event later than 120 days after the close of each fiscal year of CBII, a written supplement to Schedule 4.01(q) (setting forth each of the US Subsidiaries, each of the Significant Subsidiaries and each of the De Minimis US Subsidiaries, its jurisdiction of organization, the classes of its Equity Securities, the number of shares of each such class issued and outstanding, the percentages of shares of each such class owned directly or indirectly by CBII or the Borrower and whether CBII or the Borrower owns such shares directly or, if not, the CBII Entities that own such shares and the number of shares and percentages of shares of each such class owned directly or indirectly by such CBII Entities) and (B) promptly upon the reasonable request of the Administrative Agent and in no event more often than annually, a current hierarchy report for the CBII Entities, in the form and with the substance of the hierarchy report delivered pursuant to Section 3.01(g)(iii);
(viii) As soon as possible and in no event later than 30 days after any officer or director of any Significant Party knows of the occurrence or existence of (A) any ERISA Event under any Pension Plan or Multiemployer Plan which, either individually or in the aggregate, could Five Hundred Thousand Dollars ($500,000) or more; and
(j) promptly, from time to time, such other information regarding Borrower or compliance with the terms of any Loan Documents as reasonably be expected to have requested by Bank. Any submission by Borrower of a Material Adverse EffectCompliance Statement, (B) any actual a Borrowing Base Statement or threatened litigation, suits, claims, disputes or investigations against any Significant Party involving potential monetary damages or in which injunctive relief or similar relief is sought, which could reasonably be expected to have a Material Adverse Effect, (C) any other event or condition which, either individually or in financial statement submitted to the aggregate, could reasonably be expected to have a Material Adverse Effect, including any of the following which could reasonably be expected to have a Material Adverse Effect: (1) breach or non-performance of, or any default under, a Contractual Obligation of any Significant Party, (2) any dispute, litigation, investigation, proceeding or suspension between any Significant Party and any Governmental Authority or (3) the commencement of, or any material development in, any litigation or proceeding affecting any Significant Party, including pursuant to any applicable Environmental Laws, or (D) any Default, the statement of the Chief Accounting Officer, Chief Financial Officer, or Treasurer of the Borrower setting forth details of such event, condition or Default and the action which CBII or the Borrower proposes to take with respect thereto. Each notice Statement Repository pursuant to this Section 5.01(a)(viii) 6.2 or otherwise submitted to Bank shall be accompanied deemed to be a representation by a statement of an Officer of the Borrower setting forth details of the occurrence referred to therein and stating what action CBII or the Borrower has taken and proposes to take with respect thereto. Each notice pursuant to this Section 5.01(a)(viii) shall describe with particularity any and all provisions of this Agreement or other Credit Document that have been breached;
(ix) In no event later than five Business Days after they are sent, made available or filed, copies of (A) all registration statements and reports filed by any CBII Entities with any securities exchange or the United States Securities and Exchange Commission (including all 10-Q, 10-K and 8-K reports), (B) all reports, proxy statements and Financial Statements sent or made available by CBII to its Equity Securities holders and (C) all press releases and other similar public announcements concerning any material developments in the business of CBII made available by CBII to the public generally; provided that such information, to the extent the Borrower directly or indirectly provides the Administrative Agent with written notice and an appropriate internet link thereto, shall be accessed by Lenders on XXXXX;
(x) As soon as available and in no event later than 30 days after they are filed, copies of all IRS Form 5500 reports for all Pension Plans required to file such form;
(xi) Within the earlier to occur of (i) five days after the Board of Directors as of the Borrower date of such Compliance Statement, Borrowing Base Statement or CBII shall have publicly announced other financial statement, the earnings for the most recently completed fiscal year of the Borrower or CBII information and calculations set forth therein are true, accurate and correct, (ii) 60 days after as of the end of each fiscal year the compliance period set forth in such submission, Borrower is in complete compliance with all required covenants except as noted in such Compliance Statement, Borrowing Base Statement or other financial statement, as applicable, (iii) as of the date of such submission, no Events of Default have occurred or are continuing, (iv) all representations and warranties other than any representations or warranties that are made as of a specific date in Section 5 remain true and correct in all material respects as of the date of such submission except as noted in such Compliance Statement, Borrowing Base Statement or other financial statement, as applicable, (v) as of the date of such submission, Borrower and CBIIeach of its Subsidiaries has timely filed all required tax returns and reports, during each year when this Agreement is in effectand Borrower has timely paid all foreign, a forecast for the current fiscal year of the federal, state and local taxes, assessments, deposits and contributions owed by Borrower Entities and the CBII Entities which includes projected consolidated statement of income for such fiscal year and a projected consolidated statement of cash flows for such fiscal year and projected consolidated balance sheets, statements of income and statements of cash flows on a quarterly basis for such fiscal year; provided that the parties acknowledge that the information in such forecasts is not compiled or presented in accordance with GAAP and may not necessarily be presented on a basis consistent with the Borrower’s Financial Statements to be delivered except as otherwise permitted pursuant to Section 5.01(a);
(xii) As soon as possible and in no event later than the later of (A) any of CBII’s or the Borrower’s officers or directors learning thereof or (B) five Business Days prior to the occurrence of any event or circumstance (except for asset losses in which case as promptly as is reasonable after such asset loss) that would require a prepayment pursuant to Section 2.06(c), the statement of the Chief Financial Officer, Chief Accounting Officer or Treasurer of the Borrower setting forth the details thereof;
(xiii) As soon as possible and in no event later than 30 days after the receipt thereof by any Loan Party (or subsequent determination after Due Inquiry by an officer of the Borrower that it could reasonably be expected to result in a Material Adverse Effect), a copy of any notice, summons, citations or other written communications concerning any actual, alleged, suspected or threatened violation of any Environmental Law or any liability of any Loan Party for Environmental Damages that in any such case could reasonably be expected to result in a Material Adverse Effect;
(xiv) Such other instruments, agreements, certificates, opinions, statements, documents and information relating to the properties, operations or condition (financial or otherwise) of the Significant Parties, and compliance by the Significant Parties with the terms of this Agreement Section 5.9, and (vi) as of the other Credit Documents as the Administrative Agent date of such submission, no Liens have been levied or claims made against Borrower or any Lender (through the Administrative Agent) may from time to time reasonably request;
(xv) As soon as available and in no event later than five Business Days after any of CBII’s or the Borrower’s officers or directors receive notice or become aware of any actions (including derivative actions), suits, proceedings or investigations that are pending or, to the knowledge of any of CBII’s or the Borrower’s officers or directors, threatened against any Significant Party at law or in equity in any court, arbitration proceeding or before any other Governmental Authority which seek to enjoin, either directly or indirectly, the execution, delivery or performance by any Loan Party of the Credit Documents or the transactions contemplated thereby;
(xvi) As soon as available and in no event later than 120 days after the close of each fiscal year of CBII, a written supplement to Schedule 4.01(w) (setting forth a true and complete listing of all insurance maintained by the Significant Parties);
(xvii) Within 120 days after the close of each fiscal year of CBII, a written supplement disclosing any matters required to update factual matters its Subsidiaries relating to Section 4.01unpaid employee payroll or benefits of which Borrower has not previously provided written notification to Bank.
Appears in 1 contract
Samples: Loan and Security Agreement (ShockWave Medical, Inc.)
Financial Statements, Reports. The Borrower shall furnish Provide Bank with the following by submitting to the Administrative Agent the followingFinancial Statement Repository or otherwise submitting to Bank:
(a) If any Advance or Non-Formula Advances are outstanding, a Borrowing Base Statement (and any schedules related thereto and including any other information reasonably requested by Bank with respect to Borrower’s Accounts) (i) As no later than Friday of each week when a Streamline Period is not in effect and (ii) within thirty (30) days after the end of each month when a Streamline Period is in effect;
(b) within thirty (30) days after the end of each month, (A) monthly accounts receivable agings, aged by invoice date, (B) monthly accounts payable agings, aged by invoice date, and outstanding or held check registers, if any, (C) monthly reconciliations of accounts receivable agings (aged by invoice date), Deferred Revenue report (if applicable), and general ledger; (D) accrued sales rebate schedule, and (E) detailed accrued accounts payable schedule;
(c) as soon as available and in available, but no event later than 60 thirty (30) days after the last day of each of the first three fiscal quarters of each fiscal year of the Borrowermonth, a copy of company prepared consolidated balance sheet and income statement covering Borrower’s consolidated operations for such month in a form reasonably acceptable to Bank (the “Monthly Financial Statements of the Borrower Entities (prepared on a consolidated basis) for the fiscal year to date, certified by the Chief Accounting Officer or the Chief Financial Officer of the Borrower to present fairly in all material respects the financial condition, results of operations, cash flows, and other information reflected therein and to have been prepared in accordance with GAAP (subject to normal year end audit adjustments and omission of footnotes and statement of shareholder’s equityStatements”);
(iid) As soon as available and in no event later than 120 days after the close of each fiscal year of the Borrower, copies of within thirty (A30) the audited consolidated Financial Statements of the Borrower Entities for such year, audited by Ernst & Young LLP or other independent certified public accountants of recognized national standing and registered with the Public Company Accounting Oversight Board and (B) copies of the unqualified opinions of such accountants;
(iii) Commencing with the fiscal quarter ended June 30, 2008, as soon as available and in no event later than 60 days after the last day of each month and together with the Monthly Financial Statements, a completed Compliance Statement, confirming that, as of the first three fiscal quarters end of each fiscal year such month, Borrower was in respect of quarterly Financial Statements full compliance with all of the Borrower Entitiesterms and conditions of this Agreement, 90 days after and setting forth calculations showing compliance with the close of each fiscal year financial covenants set forth in respect of yearly Financial Statements of the CBII Entities this Agreement and 120 days after the close of each fiscal year in respect of yearly Financial Statements of the Borrower Entities in accordance with clause (i) abovesuch other information as Bank may reasonably request, clause (v) below and clause (ii) aboveincluding, respectivelywithout limitation, a compliance certificate statement that at the end of the Chief Accounting Officer or Treasurer of the Borrower (a “Compliance Certificate”) in substantially the form of Exhibit G-1; provided, however, that the only calculations to be provided in the Compliance Certificate delivered in connection with yearly Financial Statements of the CBII Entities shall be with respect to the Consolidated Adjusted Leverage Ratiosuch month there were no held checks;
(ive) As soon as available and in no event later than 45 within thirty (30) days after approval by the last day of each of the first three fiscal quarters of each fiscal year of CBIIBoard, a copy of the Quarterly Report for CBII on Form 10-Q for such quarter and for the fiscal year to date; provided that such information, to the extent the Borrower directly promptly following any updates or indirectly provides the Administrative Agent with written notice and an appropriate internet link amendments thereto, shall be accessed by Lenders on XXXXX;
(v) As soon as available and in no event later than 90 days after the close of each fiscal year of CBII, (A) copies annual operating budgets (including income statements, balance sheets and cash flow statements, by quarter) for the upcoming fiscal year of Borrower, and (B) annual financial projections for the following fiscal year (on a quarterly basis), in each case as approved by the Board;
(f) as soon as available, and in any event within one hundred eighty (180) days following the end of Borrower’s fiscal year, (i) audited consolidated financial statements prepared under GAAP, consistently applied, or (ii) Borrower’s Annual Report for CBII on Form 10-K for such yearfiscal year as filed with the SEC, audited by Ernst & Young LLP or other in each case, together with an unqualified opinion on the financial statements from an independent certified public accountants of recognized national standing and registered with accounting firm reasonably acceptable to Bank (it being understood that KPMG LLP, the Public Company Accounting Oversight Board and (B) copies Company’s auditors as of the unqualified opinions of such accountants; provided that such information, Effective Date is acceptable to the extent the Borrower directly or indirectly provides the Administrative Agent with written notice and an appropriate internet link thereto, shall be accessed by Lenders on XXXXXBank);
(Ag) As soon as available within ten (10) days of filing, copies of all periodic and in no event later than 120 days after other reports, proxy statements and other materials filed by Borrower with the close of each fiscal year of CBIISEC, (1) a written supplement any Governmental Authority succeeding to Schedule 4.01(n) (setting forth any or all necessary Trademark information as set forth in Section 4.01(n) and relating to the Trademarks that are material to the conduct of the Significant Parties’ respective businesses functions of the SEC or with any national securities exchange, or distributed to its shareholders (in their capacities as then operatedsuch), as the case may be; Borrower shall not be required separately to furnish such information under clauses (c), (2e), and (g) a written supplement but the foregoing shall not be in derogation of the obligation of Borrower to Schedule 3.06 to each Security Agreementfurnish the information and materials described in such clauses (c), (3) any additional disclosures under Section 4.01(n) after Due Inquiry e), and (4g) at the times specified therein.
(h) within five (5) days of delivery, copies of all statements, reports and notices made available to Borrower’s security holders generally in their capacities as such or to any additional disclosures to be provided on an annual basis under the Security Documents and holders of Borrower’s Subordinated Debt (Bin their capacities as such);
(i) promptly, but prompt report of any legal actions pending or threatened in writing against Borrower or any event within a reasonable time after any officer of CBII or the Borrower obtains knowledge of the occurrence of an event its Subsidiaries that could reasonably be expected to result in a Material Adverse Effect on damages or costs to Borrower or any of the Principal Trademarks or the Trademark Licensesits Subsidiaries of, give the Administrative Agent notice of the occurrence of any such event;
(vii) (A) As soon as available and in no event later than 120 days after the close of each fiscal year of CBII, a written supplement to Schedule 4.01(q) (setting forth each of the US Subsidiaries, each of the Significant Subsidiaries and each of the De Minimis US Subsidiaries, its jurisdiction of organization, the classes of its Equity Securities, the number of shares of each such class issued and outstanding, the percentages of shares of each such class owned directly or indirectly by CBII or the Borrower and whether CBII or the Borrower owns such shares directly or, if not, the CBII Entities that own such shares and the number of shares and percentages of shares of each such class owned directly or indirectly by such CBII Entities) and (B) promptly upon the reasonable request of the Administrative Agent and in no event more often than annually, a current hierarchy report for the CBII Entities, in the form and with the substance of the hierarchy report delivered pursuant to Section 3.01(g)(iii);
(viii) As soon as possible and in no event later than 30 days after any officer or director of any Significant Party knows of the occurrence or existence of (A) any ERISA Event under any Pension Plan or Multiemployer Plan which, either individually or in the aggregate, could reasonably be expected Two Hundred Fifty Thousand Dollars ($250,000) or more; and
(j) promptly, from time to have a Material Adverse Effecttime, (B) any actual such other information regarding Borrower or threatened litigation, suits, claims, disputes or investigations against any Significant Party involving potential monetary damages or in which injunctive relief or similar relief is sought, which could reasonably be expected to have a Material Adverse Effect, (C) any other event or condition which, either individually or in compliance with the aggregate, could reasonably be expected to have a Material Adverse Effect, including any of the following which could reasonably be expected to have a Material Adverse Effect: (1) breach or non-performance of, or any default under, a Contractual Obligation terms of any Significant Party, (2) any dispute, litigation, investigation, proceeding or suspension between any Significant Party and any Governmental Authority or (3) the commencement of, or any material development in, any litigation or proceeding affecting any Significant Party, including pursuant to any applicable Environmental Laws, or (D) any Default, the statement of the Chief Accounting Officer, Chief Financial Officer, or Treasurer of the Borrower setting forth details of such event, condition or Default and the action which CBII or the Borrower proposes to take with respect theretoLoan Documents as reasonably requested by Bank. Each notice pursuant to this Section 5.01(a)(viii) shall be accompanied by a statement of an Officer of the Borrower setting forth details of the occurrence referred to therein and stating what action CBII or the Borrower has taken and proposes to take with respect thereto. Each notice pursuant to this Section 5.01(a)(viii) shall describe with particularity any and all provisions of this Agreement or other Credit Document that have been breached;
(ix) In no event later than five Business Days after they are sent, made available or filed, copies of (A) all registration statements and reports filed by any CBII Entities with any securities exchange or the United States Securities and Exchange Commission (including all 10-Q, 10-K and 8-K reports), (B) all reports, proxy statements and Financial Statements sent or made available by CBII to its Equity Securities holders and (C) all press releases and other similar public announcements concerning any material developments in the business of CBII made available by CBII to the public generally; provided that such information, to the extent the Borrower directly or indirectly provides the Administrative Agent with written notice and an appropriate internet link thereto, shall be accessed by Lenders on XXXXX;
(x) As soon as available and in no event later than 30 days after they are filed, copies of all IRS Form 5500 reports for all Pension Plans Documents required to file such form;
(xi) Within the earlier to occur of (i) five days after the Board of Directors of the Borrower or CBII shall have publicly announced the earnings for the most recently completed fiscal year of the Borrower or CBII and (ii) 60 days after the end of each fiscal year of the Borrower and CBII, during each year when this Agreement is in effect, a forecast for the current fiscal year of the Borrower Entities and the CBII Entities which includes projected consolidated statement of income for such fiscal year and a projected consolidated statement of cash flows for such fiscal year and projected consolidated balance sheets, statements of income and statements of cash flows on a quarterly basis for such fiscal year; provided that the parties acknowledge that the information in such forecasts is not compiled or presented in accordance with GAAP and may not necessarily be presented on a basis consistent with the Borrower’s Financial Statements to be delivered pursuant to Section 5.01(a);
the terms hereof (xiito the extent any such documents are included in materials otherwise filed with the SEC) As soon as possible and in no event later than may be delivered electronically and, if so delivered, shall be deemed to have been delivered on the later of (A) any of CBII’s date on which Borrower posts such documents, or the provides a link thereto, on Borrower’s officers or directors learning thereof or (B) five Business Days prior website on the internet at Borrower’s website address. Any submission by Borrower of a Compliance Statement submitted to the occurrence of any event or circumstance (except for asset losses in which case as promptly as is reasonable after such asset loss) that would require a prepayment Financial Statement Repository pursuant to this Section 2.06(c)6.2 or otherwise submitted to Bank shall be deemed to be a representation by Borrower that (i) as of the date of such Compliance Statement, the statement information and calculations set forth therein are true, accurate and correct in all material respects, (ii) as of the Chief Financial Officer, Chief Accounting Officer or Treasurer end of the compliance period set forth in such submission, Borrower setting forth the details thereof;
is in complete compliance with all required covenants except as noted in such Compliance Statement, (xiiiiii) As soon as possible and in no event later than 30 days after the receipt thereof by any Loan Party (or subsequent determination after Due Inquiry by an officer of the Borrower date of such submission, no Events of Default have occurred and are continuing except as noted in such Compliance Statement, (iv) all representations and warranties other than any representations or warranties that it could reasonably be expected to result are made as of a specific date in a Material Adverse Effect)Section 5 remain true and correct in all material respects as of the date of such submission except as noted in such Compliance Statement, a copy of any notice, summons, citations Borrowing Base Statement or other written communications concerning any actualfinancial statement, allegedas applicable, suspected or threatened violation of any Environmental Law or any liability of any Loan Party for Environmental Damages that in any such case could reasonably be expected to result in a Material Adverse Effect;
(xivv) Such other instruments, agreements, certificates, opinions, statements, documents and information relating to the properties, operations or condition (financial or otherwise) as of the Significant Partiesdate of such submission, Borrower and each of its Subsidiaries has timely filed all required tax returns and reports, and compliance Borrower has timely paid all foreign, federal, state and local taxes, assessments, deposits and contributions owed by the Significant Parties with Borrower except as otherwise permitted pursuant to the terms of this Agreement Sections 5.9 and 6.5, and (vi) as of the other Credit Documents as the Administrative Agent date of such submission, no Liens have been levied or claims made against Borrower or any Lender (through the Administrative Agent) may from time to time reasonably request;
(xv) As soon as available and in no event later than five Business Days after any of CBII’s or the Borrower’s officers or directors receive notice or become aware of any actions (including derivative actions), suits, proceedings or investigations that are pending or, to the knowledge of any of CBII’s or the Borrower’s officers or directors, threatened against any Significant Party at law or in equity in any court, arbitration proceeding or before any other Governmental Authority which seek to enjoin, either directly or indirectly, the execution, delivery or performance by any Loan Party of the Credit Documents or the transactions contemplated thereby;
(xvi) As soon as available and in no event later than 120 days after the close of each fiscal year of CBII, a written supplement to Schedule 4.01(w) (setting forth a true and complete listing of all insurance maintained by the Significant Parties);
(xvii) Within 120 days after the close of each fiscal year of CBII, a written supplement disclosing any matters required to update factual matters its Subsidiaries relating to Section 4.01unpaid employee payroll or benefits of which Borrower has not previously provided written notification to Bank.
Appears in 1 contract
Financial Statements, Reports. (a) The Borrower shall furnish to the Administrative Agent the following:
(i) As soon as available audited and in no event later than 60 days after the last day of each unaudited consolidated financial statements of the first three fiscal quarters of each fiscal year Company and its subsidiaries included or incorporated by reference in the Company Reports, and (ii) the unaudited consolidated financial statements of the BorrowerCompany and its subsidiaries as of and for the nine months ended September 30, a copy 2012 set forth in Section 4.4(a) of the Company Disclosure Letter (clauses (i) and (ii), collectively, the “Financial Statements of the Borrower Entities (prepared on a consolidated basis) for the fiscal year to dateStatements”), certified by the Chief Accounting Officer or the Chief Financial Officer of the Borrower to present fairly in all material respects the consolidated financial condition, position of the Company and its subsidiaries as of the respective dates thereof and their consolidated results of operations, cash flowsoperations for the respective periods then ended, and other information reflected therein consolidated shareholders’ equity and to cash flows for the years ended December 31, 2009, 2010, and 2011, and have been prepared in accordance with (x) the Company’s accounting policies and practices consistently applied throughout the periods included therein, and (y) GAAP consistently applied throughout the periods included therein (subject subject, in the case of unaudited financial statements, to normal year year-end audit adjustments and omission the absence of footnotes footnotes, none of which are material). The Company’s and statement its subsidiaries’ consolidated financial statements as of shareholder’s equity);
(ii) As soon as available and in no event later than 120 days after the close of each fiscal year of the Borrower, copies of (A) the audited consolidated Financial Statements of the Borrower Entities for such year, audited by Ernst & Young LLP or other independent certified public accountants of recognized national standing and registered with the Public Company Accounting Oversight Board and (B) copies of the unqualified opinions of such accountants;
(iii) Commencing with the fiscal quarter ended June 30, 2008, as soon as available and in no event later than 60 days after the last day of each of the first three fiscal quarters of each fiscal year in respect of quarterly Financial Statements of the Borrower Entities, 90 days after the close of each fiscal year in respect of yearly Financial Statements of the CBII Entities and 120 days after the close of each fiscal year in respect of yearly Financial Statements of the Borrower Entities in accordance with clause (i) above, clause (v) below and clause (ii) above, respectively, a compliance certificate of the Chief Accounting Officer or Treasurer of the Borrower (a “Compliance Certificate”) in substantially the form of Exhibit G-1; provided, however, that the only calculations to be provided in the Compliance Certificate delivered in connection with yearly Financial Statements of the CBII Entities shall be with respect to the Consolidated Adjusted Leverage Ratio;
(iv) As soon as available and in no event later than 45 days after the last day of each of the first three fiscal quarters of each fiscal year of CBII, a copy of the Quarterly Report for CBII on Form 10-Q for such quarter and for the fiscal year to date; provided that such informationended December 31, to 2011 contained in the extent the Borrower directly or indirectly provides the Administrative Agent with written notice and an appropriate internet link thereto, shall be accessed by Lenders on XXXXX;
(v) As soon as available and in no event later than 90 days after the close of each fiscal year of CBII, (A) copies of the Annual Report for CBII Company’s annual report on Form 10-K for such yearthe year ended December 31, audited 2011 are referred to herein as the “Most Recent Financial Statements.”
(b) The Company has filed or furnished, as applicable, on a timely basis all forms, statements, certifications, reports and documents required to be filed or furnished by Ernst & Young LLP or other independent certified public accountants of recognized national standing and registered it with the Public SEC pursuant to the Exchange Act or the Securities Act since December 31, 2009 (the forms, statements, certifications, reports and documents filed or furnished since such date, including any amendments thereto, the “Company Accounting Oversight Board Reports”). Each of the Company Reports, at the time of its filing or being furnished complied in all material respects with the applicable requirements of the Securities Act, the Exchange Act and the Sxxxxxxx-Xxxxx Act of 2002 and any rules and regulations promulgated thereunder (“SOX”) applicable to the Company Reports. As of their respective dates (or, if amended prior to the date of this Agreement, as of the date of such amendment), the Company Reports did not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements made therein, in light of the circumstances in which they were made, not misleading. All material correspondence between the SEC, on the one hand, and the Company and any of its subsidiaries, on the other hand, occurring since December 31, 2009 and prior to the date hereof is accessible by the Parent via EXXXX.
(c) The Company is and has been in compliance in all material respects with the applicable (i) provisions of SOX and (ii) listing and corporate governance rules and regulations of the NYSE MKT market. The Company and its subsidiaries maintain disclosure controls and procedures required by Rule 13a-15 or 15d-15 under the Exchange Act. Such disclosure controls and procedures are effective to ensure that information required to be disclosed by the Company is recorded and reported on a timely basis to the individuals responsible for the preparation of the Company’s filings with the SEC and other public disclosure documents. The Company and its subsidiaries maintain internal control over financial reporting (as defined in Rule 13a-15 or 15d-15, as applicable, under the Exchange Act). Such internal control over financial reporting is effective in providing reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with GAAP. The Company has disclosed, based on the most recent evaluation of its chief executive officer and its chief financial officer prior to the date of this Agreement, to the Company’s auditors and the audit committee of the Company’s board of directors (A) any significant deficiencies in the design or operation of its internal controls over financial reporting that are reasonably likely to adversely affect the Company’s ability to record, process, summarize and report financial information and has identified for the Company’s auditors and audit committee of the Company’s board of directors any material weaknesses in internal control over financial reporting and (B) copies any fraud, whether or not material, that involves management or other employees who have a significant role in the Company’s internal control over financial reporting. The Company has not received from its independent auditors any oral or written notification of a (x) “reportable condition” or (y) “material weakness” in the Company’s internal controls. For purposes of this Agreement, the terms “reportable condition” and “material weakness” shall have the meanings assigned to them in the Statements of Auditing Standards 60, as in effect on the date hereof.
(d) As of the unqualified opinions date of this Agreement, Indebtedness of the Company and Coastal is no more than the amount set forth in Section 4.4(d) of the Company Disclosure Letter (and Section 4.4(d) of the Company Disclosure Letter further sets forth the Company’s good faith estimate of the portion of such accountants; provided that such informationamount corresponding to each category of Indebtedness included in the definition thereof). As of September 30, to the extent the Borrower directly or indirectly provides the Administrative Agent with written notice and an appropriate internet link thereto, shall be accessed by Lenders on XXXXX;
(A) As soon as available and in no event later than 120 days after the close of each fiscal year of CBII2012, (1i) a written supplement to Schedule 4.01(nthe amount of Cash held by the Company and Coastal was no less than the amount set forth in Section 4.4(d) of the Company Disclosure Letter, and (setting forth all necessary Trademark information ii) the Net Book Value was no less than as set forth in Section 4.01(n) and relating to the Trademarks that are material to the conduct of the Significant Parties’ respective businesses as then operated), (2) a written supplement to Schedule 3.06 to each Security Agreement, (3) any additional disclosures under Section 4.01(n) after Due Inquiry and (4) any additional disclosures to be provided on an annual basis under the Security Documents and (B) promptly, but in any event within a reasonable time after any officer of CBII or the Borrower obtains knowledge of the occurrence of an event that could reasonably be expected to result in a Material Adverse Effect on any of the Principal Trademarks or the Trademark Licenses, give the Administrative Agent notice of the occurrence of any such event;
(vii) (A) As soon as available and in no event later than 120 days after the close of each fiscal year of CBII, a written supplement to Schedule 4.01(q) (setting forth each of the US Subsidiaries, each of the Significant Subsidiaries and each of the De Minimis US Subsidiaries, its jurisdiction of organization, the classes of its Equity Securities, the number of shares of each such class issued and outstanding, the percentages of shares of each such class owned directly or indirectly by CBII or the Borrower and whether CBII or the Borrower owns such shares directly or, if not, the CBII Entities that own such shares and the number of shares and percentages of shares of each such class owned directly or indirectly by such CBII Entities) and (B) promptly upon the reasonable request of the Administrative Agent and in no event more often than annually, a current hierarchy report for the CBII Entities, in the form and with the substance of the hierarchy report delivered pursuant to Section 3.01(g)(iii);
(viii) As soon as possible and in no event later than 30 days after any officer or director of any Significant Party knows of the occurrence or existence of (A) any ERISA Event under any Pension Plan or Multiemployer Plan which, either individually or in the aggregate, could reasonably be expected to have a Material Adverse Effect, (B) any actual or threatened litigation, suits, claims, disputes or investigations against any Significant Party involving potential monetary damages or in which injunctive relief or similar relief is sought, which could reasonably be expected to have a Material Adverse Effect, (C) any other event or condition which, either individually or in the aggregate, could reasonably be expected to have a Material Adverse Effect, including any of the following which could reasonably be expected to have a Material Adverse Effect: (1) breach or non-performance of, or any default under, a Contractual Obligation of any Significant Party, (2) any dispute, litigation, investigation, proceeding or suspension between any Significant Party and any Governmental Authority or (3) the commencement of, or any material development in, any litigation or proceeding affecting any Significant Party, including pursuant to any applicable Environmental Laws, or (D) any Default, the statement of the Chief Accounting Officer, Chief Financial Officer, or Treasurer of the Borrower setting forth details of such event, condition or Default and the action which CBII or the Borrower proposes to take with respect thereto. Each notice pursuant to this Section 5.01(a)(viii) shall be accompanied by a statement of an Officer of the Borrower setting forth details of the occurrence referred to therein and stating what action CBII or the Borrower has taken and proposes to take with respect thereto. Each notice pursuant to this Section 5.01(a)(viii) shall describe with particularity any and all provisions of this Agreement or other Credit Document that have been breached;
(ix) In no event later than five Business Days after they are sent, made available or filed, copies of (A) all registration statements and reports filed by any CBII Entities with any securities exchange or the United States Securities and Exchange Commission (including all 10-Q, 10-K and 8-K reports), (B) all reports, proxy statements and Financial Statements sent or made available by CBII to its Equity Securities holders and (C) all press releases and other similar public announcements concerning any material developments in the business of CBII made available by CBII to the public generally; provided that such information, to the extent the Borrower directly or indirectly provides the Administrative Agent with written notice and an appropriate internet link thereto, shall be accessed by Lenders on XXXXX;
(x) As soon as available and in no event later than 30 days after they are filed, copies of all IRS Form 5500 reports for all Pension Plans required to file such form;
(xi) Within the earlier to occur of (i) five days after the Board of Directors of the Borrower or CBII shall have publicly announced the earnings for the most recently completed fiscal year of the Borrower or CBII and (ii) 60 days after the end of each fiscal year of the Borrower and CBII, during each year when this Agreement is in effect, a forecast for the current fiscal year of the Borrower Entities and the CBII Entities which includes projected consolidated statement of income for such fiscal year and a projected consolidated statement of cash flows for such fiscal year and projected consolidated balance sheets, statements of income and statements of cash flows on a quarterly basis for such fiscal year; provided that the parties acknowledge that the information in such forecasts is not compiled or presented in accordance with GAAP and may not necessarily be presented on a basis consistent with the Borrower’s Financial Statements to be delivered pursuant to Section 5.01(a);
(xii) As soon as possible and in no event later than the later of (A) any of CBII’s or the Borrower’s officers or directors learning thereof or (B) five Business Days prior to the occurrence of any event or circumstance (except for asset losses in which case as promptly as is reasonable after such asset loss) that would require a prepayment pursuant to Section 2.06(c), the statement of the Chief Financial Officer, Chief Accounting Officer or Treasurer of the Borrower setting forth the details thereof;
(xiii) As soon as possible and in no event later than 30 days after the receipt thereof by any Loan Party (or subsequent determination after Due Inquiry by an officer of the Borrower that it could reasonably be expected to result in a Material Adverse Effect), a copy of any notice, summons, citations or other written communications concerning any actual, alleged, suspected or threatened violation of any Environmental Law or any liability of any Loan Party for Environmental Damages that in any such case could reasonably be expected to result in a Material Adverse Effect;
(xiv) Such other instruments, agreements, certificates, opinions, statements, documents and information relating to the properties, operations or condition (financial or otherwise4.4(d) of the Significant PartiesCompany Disclosure Letter. Since September 30, and compliance by 2012 to the Significant Parties with the terms date of this Agreement and the other Credit Documents as the Administrative Agent or any Lender (through the Administrative Agent) may from time Agreement, except for activities related to time reasonably request;
(xv) As soon as available and in no event later than five Business Days after any of CBII’s or the Borrower’s officers or directors receive notice or become aware of any actions (including derivative actions), suits, proceedings or investigations that are pending or, to the knowledge of any of CBII’s or the Borrower’s officers or directors, threatened against any Significant Party at law or in equity in any court, arbitration proceeding or before any other Governmental Authority which seek to enjoin, either directly or indirectlythis Agreement, the execution, delivery or performance by any Loan Party Companies have operated in the Ordinary Course of the Credit Documents or the transactions contemplated thereby;
(xvi) As soon as available and in no event later than 120 days after the close of each fiscal year of CBII, a written supplement to Schedule 4.01(w) (setting forth a true and complete listing of all insurance maintained by the Significant Parties);
(xvii) Within 120 days after the close of each fiscal year of CBII, a written supplement disclosing any matters required to update factual matters relating to Section 4.01Business.
Appears in 1 contract
Financial Statements, Reports. The Borrower shall furnish to the Administrative Agent the following:
(i) As soon as available and in no event later than 60 days after the last day of each of the first three fiscal quarters of each fiscal year of the Borrower, a copy of the Financial Statements of the Borrower Entities (prepared on a consolidated basis) for the fiscal year to date, certified by the Chief Accounting Officer or the Chief Financial Officer of the Borrower to present fairly in all material respects the financial condition, results of operations, cash flows, and other information reflected therein and to have been prepared in accordance with GAAP (subject to normal year end audit adjustments and omission of footnotes and statement of shareholder’s equity);
(ii) As soon as available and in no event later than 120 days after the close of each fiscal year of the Borrower, copies of (A) the audited consolidated Financial Statements of the Borrower Entities for such year, audited by Ernst & Young LLP or other independent certified public accountants of recognized national standing and registered with the Public Company Accounting Oversight Board and (B) copies of the unqualified opinions of such accountants;
(iii) Commencing with the fiscal quarter ended June 30, 2008, as soon as available and in no event later than 60 days after the last day of each of the first three fiscal quarters of each fiscal year in respect of quarterly Financial Statements of the Borrower Entities, 90 days after the close of each fiscal year in respect of yearly Financial Statements of the CBII Entities and 120 days after the close of each fiscal year in respect of yearly Financial Statements of the Borrower Entities in accordance with clause (i) above, clause (v) below and clause (ii) above, respectively, a compliance certificate of the Chief Accounting Officer or Treasurer of the Borrower (a “Compliance Certificate”) in substantially the form of Exhibit G-1; provided, however, that the only calculations to be provided in the Compliance Certificate delivered in connection with yearly Financial Statements of the CBII Entities shall be with respect to the Consolidated Adjusted Leverage Ratio;
(iv) As soon as available and in no event later than 45 days after the last day of each of the first three fiscal quarters of each fiscal year of CBII, a copy of the Quarterly Report for CBII on Form 10-Q for such quarter and for the fiscal year to date; provided that such information, to the extent the Borrower directly or indirectly provides the Administrative Agent with written notice and an appropriate internet link thereto, shall be accessed by Lenders on XXXXXEXXXX;
(v) As soon as available and in no event later than 90 days after the close of each fiscal year of CBII, (A) copies of the Annual Report for CBII on Form 10-K for such year, audited by Ernst & Young LLP or other independent certified public accountants of recognized national standing and registered with the Public Company Accounting Oversight Board and (B) copies of the unqualified opinions of such accountants; provided that such information, to the extent the Borrower directly or indirectly provides the Administrative Agent with written notice and an appropriate internet link thereto, shall be accessed by Lenders on XXXXXEXXXX;
(A) As soon as available and in no event later than 120 days after the close of each fiscal year of CBII, (1) a written supplement to Schedule 4.01(n) (setting forth all necessary Trademark information as set forth in Section 4.01(n) and relating to the Trademarks that are material to the conduct of the Significant Parties’ respective businesses as then operated), (2) a written supplement to Schedule 3.06 to each Security Agreement, (3) any additional disclosures under Section 4.01(n) after Due Inquiry and (4) any additional disclosures to be provided on an annual basis under the Security Documents and (B) promptly, but in any event within a reasonable time after any officer of CBII or the Borrower obtains knowledge of the occurrence of an event that could reasonably be expected to result in a Material Adverse Effect on any of the Principal Trademarks or the Trademark Licenses, give the Administrative Agent notice of the occurrence of any such event;
(vii) (A) As soon as available and in no event later than 120 days after the close of each fiscal year of CBII, a written supplement to Schedule 4.01(q) (setting forth each of the US Subsidiaries, each of the Significant Subsidiaries and each of the De Minimis US Subsidiaries, its jurisdiction of organization, the classes of its Equity Securities, the number of shares of each such class issued and outstanding, the percentages of shares of each such class owned directly or indirectly by CBII or the Borrower and whether CBII or the Borrower owns such shares directly or, if not, the CBII Entities that own such shares and the number of shares and percentages of shares of each such class owned directly or indirectly by such CBII Entities) and (B) promptly upon the reasonable request of the Administrative Agent and in no event more often than annually, a current hierarchy report for the CBII Entities, in the form and with the substance of the hierarchy report delivered pursuant to Section 3.01(g)(iii);
(viii) As soon as possible and in no event later than 30 days after any officer or director of any Significant Party knows of the occurrence or existence of (A) any ERISA Event under any Pension Plan or Multiemployer Plan which, either individually or in the aggregate, could reasonably be expected to have a Material Adverse Effect, (B) any actual or threatened litigation, suits, claims, disputes or investigations against any Significant Party involving potential monetary damages or in which injunctive relief or similar relief is sought, which could reasonably be expected to have a Material Adverse Effect, (C) any other event or condition which, either individually or in the aggregate, could reasonably be expected to have a Material Adverse Effect, including any of the following which could reasonably be expected to have a Material Adverse Effect: (1) breach or non-performance of, or any default under, a Contractual Obligation of any Significant Party, (2) any dispute, litigation, investigation, proceeding or suspension between any Significant Party and any Governmental Authority or (3) the commencement of, or any material development in, any litigation or proceeding affecting any Significant Party, including pursuant to any applicable Environmental Laws, or (D) any Default, the statement of the Chief Accounting Officer, Chief Financial Officer, or Treasurer of the Borrower setting forth details of such event, condition or Default and the action which CBII or the Borrower proposes to take with respect thereto. Each notice pursuant to this Section 5.01(a)(viii) shall be accompanied by a statement of an Officer of the Borrower setting forth details of the occurrence referred to therein and stating what action CBII or the Borrower has taken and proposes to take with respect thereto. Each notice pursuant to this Section 5.01(a)(viii) shall describe with particularity any and all provisions of this Agreement or other Credit Document that have been breached;
(ix) In no event later than five Business Days after they are sent, made available or filed, copies of (A) all registration statements and reports filed by any CBII Entities with any securities exchange or the United States Securities and Exchange Commission (including all 10-Q, 10-K and 8-K reports), (B) all reports, proxy statements and Financial Statements sent or made available by CBII to its Equity Securities holders and (C) all press releases and other similar public announcements concerning any material developments in the business of CBII made available by CBII to the public generally; provided that such information, to the extent the Borrower directly or indirectly provides the Administrative Agent with written notice and an appropriate internet link thereto, shall be accessed by Lenders on XXXXXEXXXX;
(x) As soon as available and in no event later than 30 days after they are filed, copies of all IRS Form 5500 reports for all Pension Plans required to file such form;
(xi) Within the earlier to occur of (i) five days after the Board of Directors of the Borrower or CBII shall have publicly announced the earnings for the most recently completed fiscal year of the Borrower or CBII and (ii) 60 days after the end of each fiscal year of the Borrower and CBII, during each year when this Agreement is in effect, a forecast for the current fiscal year of the Borrower Entities and the CBII Entities which includes projected consolidated statement of income for such fiscal year and a projected consolidated statement of cash flows for such fiscal year and projected consolidated balance sheets, statements of income and statements of cash flows on a quarterly basis for such fiscal year; provided that the parties acknowledge that the information in such forecasts is not compiled or presented in accordance with GAAP and may not necessarily be presented on a basis consistent with the Borrower’s Financial Statements to be delivered pursuant to Section 5.01(a);
(xii) As soon as possible and in no event later than the later of (A) any of CBII’s or the Borrower’s officers or directors learning thereof or (B) five Business Days prior to the occurrence of any event or circumstance (except for asset losses in which case as promptly as is reasonable after such asset loss) that would require a prepayment pursuant to Section 2.06(c), the statement of the Chief Financial Officer, Chief Accounting Officer or Treasurer of the Borrower setting forth the details thereof;
(xiii) As soon as possible and in no event later than 30 days after the receipt thereof by any Loan Party (or subsequent determination after Due Inquiry by an officer of the Borrower that it could reasonably be expected to result in a Material Adverse Effect), a copy of any notice, summons, citations or other written communications concerning any actual, alleged, suspected or threatened violation of any Environmental Law or any liability of any Loan Party for Environmental Damages that in any such case could reasonably be expected to result in a Material Adverse Effect;
(xiv) Such other instruments, agreements, certificates, opinions, statements, documents and information relating to the properties, operations or condition (financial or otherwise) of the Significant Parties, and compliance by the Significant Parties with the terms of this Agreement and the other Credit Documents as the Administrative Agent or any Lender (through the Administrative Agent) may from time to time reasonably request;
(xv) As soon as available and in no event later than five Business Days after any of CBII’s or the Borrower’s officers or directors receive notice or become aware of any actions (including derivative actions), suits, proceedings or investigations that are pending or, to the knowledge of any of CBII’s or the Borrower’s officers or directors, threatened against any Significant Party at law or in equity in any court, arbitration proceeding or before any other Governmental Authority which seek to enjoin, either directly or indirectly, the execution, delivery or performance by any Loan Party of the Credit Documents or the transactions contemplated thereby;
(xvi) As soon as available and in no event later than 120 days after the close of each fiscal year of CBII, a written supplement to Schedule 4.01(w) (setting forth a true and complete listing of all insurance maintained by the Significant Parties);
(xvii) Within 120 days after the close of each fiscal year of CBII, a written supplement disclosing any matters required to update factual matters relating to Section 4.014.01(s); and
(xviii) To the extent delivered (and thereafter requested by the Administrative Agent or the Lenders), management letters delivered by CBII’s or the Borrower’s accountants in connection with any of CBII’s or the Borrower’s Financial Statements.
Appears in 1 contract
Samples: Credit Agreement (Chiquita Brands International Inc)
Financial Statements, Reports. The Borrower shall furnish to the Administrative Agent the following:
(i) As soon as available and in no event later than 60 days after the last day of each of the first three fiscal quarters of each fiscal year of the Borrower, a copy of the Financial Statements of the Borrower Entities (prepared on a consolidated basis) for the fiscal year to date, certified by the Chief Accounting Officer or the Chief Financial Officer of the Borrower to present fairly in all material respects the financial condition, results of operations, cash flows, and other information reflected therein and to have been prepared in accordance with GAAP (subject to normal year end audit adjustments and omission of footnotes and statement of shareholder’s equity);
(ii) As soon as available and in no event later than 120 days after the close of each fiscal year of the Borrower, copies of (A) the audited consolidated Financial Statements of the Borrower Entities for such year, audited by Ernst & Young LLP or other independent certified public accountants of recognized national standing and registered with the Public Company Accounting Oversight Board and (B) copies of the unqualified opinions of such accountants;
(iii) Commencing with the fiscal quarter ended June 30, 2008, as soon as available and in no event later than 60 days after the last day of each of the first three fiscal quarters of each fiscal year in respect of quarterly Financial Statements of the Borrower Entities, 90 days after the close of each fiscal year in respect of yearly Financial Statements of the CBII Entities and 120 days after the close of each fiscal year in respect of yearly Financial Statements of the Borrower Entities in accordance with clause (i) above, clause (v) below and clause (ii) above, respectively, a compliance certificate of the Chief Accounting Officer or Treasurer of the Borrower (a “Compliance Certificate”) in substantially the form of Exhibit G-1; provided, however, that the only calculations to be provided in the Compliance Certificate delivered in connection with yearly Financial Statements of the CBII Entities shall be with respect to the Consolidated Adjusted Leverage Ratio;
(iv) As soon as available and in no event later than 45 days after the last day of each of the first three fiscal quarters of each fiscal year of CBII, a copy of the Quarterly Report for CBII on Form 10-Q for such quarter and for the fiscal year to date; provided that such information, to the extent the Borrower directly or indirectly provides the Administrative Agent with written notice and an appropriate internet link thereto, shall be accessed by Lenders on XXXXX;
(v) As soon as available and in no event later than 90 days after the close of each fiscal year of CBII, (A) copies of the Annual Report for CBII on Form 10-K for such year, audited by Ernst & Young LLP or other independent certified public accountants of recognized national standing and registered with the Public Company Accounting Oversight Board and (B) copies of the unqualified opinions of such accountants; provided that such information, to the extent the Borrower directly or indirectly provides the Administrative Agent with written notice and an appropriate internet link thereto, shall be accessed by Lenders on XXXXX;
(A) As soon as available and in no event later than 120 days after the close of each fiscal year of CBII, (1) a written supplement to Schedule 4.01(n) (setting forth all necessary Trademark information as set forth in Section 4.01(n) and relating to the Trademarks that are material to the conduct of the Significant Parties’ respective businesses as then operated), (2) a written supplement to Schedule 3.06 to each Security Agreement, (3) any additional disclosures under Section 4.01(n) after Due Inquiry and (4) any additional disclosures to be provided on an annual basis under the Security Documents and (B) promptly, but in any event within a reasonable time after any officer of CBII or the Borrower obtains knowledge of the occurrence of an event that could reasonably be expected to result in a Material Adverse Effect on any of the Principal Trademarks or the Trademark Licenses, give the Administrative Agent notice of the occurrence of any such event;
(vii) (A) As soon as available and in no event later than 120 days after the close of each fiscal year of CBII, a written supplement to Schedule 4.01(q) (setting forth each of the US Subsidiaries, each of the Significant Subsidiaries and each of the De Minimis US Subsidiaries, its jurisdiction of organization, the classes of its Equity Securities, the number of shares of each such class issued and outstanding, the percentages of shares of each such class owned directly or indirectly by CBII or the Borrower and whether CBII or the Borrower owns such shares directly or, if not, the CBII Entities that own such shares and the number of shares and percentages of shares of each such class owned directly or indirectly by such CBII Entities) and (B) promptly upon the reasonable request of the Administrative Agent and in no event more often than annually, a current hierarchy report for the CBII Entities, in the form and with the substance of the hierarchy report delivered pursuant to Section 3.01(g)(iii);
(viii) As soon as possible and in no event later than 30 days after any officer or director of any Significant Party knows of the occurrence or existence of (A) any ERISA Event under any Pension Plan or Multiemployer Plan which, either individually or in the aggregate, could reasonably be expected to have a Material Adverse Effect, (B) any actual or threatened litigation, suits, claims, disputes or investigations against any Significant Party involving potential monetary damages or in which injunctive relief or similar relief is sought, which could reasonably be expected to have a Material Adverse Effect, (C) any other event or condition which, either individually or in the aggregate, could reasonably be expected to have a Material Adverse Effect, including any of the following which could reasonably be expected to have a Material Adverse Effect: (1) breach or non-performance of, or any default under, a Contractual Obligation of any Significant Party, (2) any dispute, litigation, investigation, proceeding or suspension between any Significant Party and any Governmental Authority or (3) the commencement of, or any material development in, any litigation or proceeding affecting any Significant Party, including pursuant to any applicable Environmental Laws, or (D) any Default, the statement of the Chief Accounting Officer, Chief Financial Officer, or Treasurer of the Borrower setting forth details of such event, condition or Default and the action which CBII or the Borrower proposes to take with respect thereto. Each notice pursuant to this Section 5.01(a)(viii) shall be accompanied by a statement of an Officer of the Borrower setting forth details of the occurrence referred to therein and stating what action CBII or the Borrower has taken and proposes to take with respect thereto. Each notice pursuant to this Section 5.01(a)(viii) shall describe with particularity any and all provisions of this Agreement or other Credit Document that have been breached;
(ix) In no event later than five Business Days after they are sent, made available or filed, copies of (A) all registration statements and reports filed by any CBII Entities with any securities exchange or the United States Securities and Exchange Commission (including all 10-Q, 10-K and 8-K reports), (B) all reports, proxy statements and Financial Statements sent or made available by CBII to its Equity Securities holders and (C) all press releases and other similar public announcements concerning any material developments in the business of CBII made available by CBII to the public generally; provided that such information, to the extent the Borrower directly or indirectly provides the Administrative Agent with written notice and an appropriate internet link thereto, shall be accessed by Lenders on XXXXX;
(x) As soon as available and in no event later than 30 days after they are filed, copies of all IRS Form 5500 reports for all Pension Plans required to file such form;
(xi) Within the earlier to occur of (i) five days after the Board of Directors of the Borrower or CBII shall have publicly announced the earnings for the most recently completed fiscal year of the Borrower or CBII and (ii) 60 days after the end of each fiscal year of the Borrower and CBII, during each year when this Agreement is in effect, a forecast for the current fiscal year of the Borrower Entities and the CBII Entities which includes projected consolidated statement of income for such fiscal year and a projected consolidated statement of cash flows for such fiscal year and projected consolidated balance sheets, statements of income and statements of cash flows on a quarterly basis for such fiscal year; provided that the parties acknowledge that the information in such forecasts is not compiled or presented in accordance with GAAP and may not necessarily be presented on a basis consistent with the Borrower’s Financial Statements to be delivered pursuant to Section 5.01(a);
(xii) As soon as possible and in no event later than the later of (A) any of CBII’s or the Borrower’s officers or directors learning thereof or (B) five Business Days prior to the occurrence of any event or circumstance (except for asset losses in which case as promptly as is reasonable after such asset loss) that would require a prepayment pursuant to Section 2.06(c), the statement of the Chief Financial Officer, Chief Accounting Officer or Treasurer of the Borrower setting forth the details thereof;
(xiii) As soon as possible and in no event later than 30 days after the receipt thereof by any Loan Party (or subsequent determination after Due Inquiry by an officer of the Borrower that it could reasonably be expected to result in a Material Adverse Effect), a copy of any notice, summons, citations or other written communications concerning any actual, alleged, suspected or threatened violation of any Environmental Law or any liability of any Loan Party for Environmental Damages that in any such case could reasonably be expected to result in a Material Adverse Effect;
(xiv) Such other instruments, agreements, certificates, opinions, statements, documents and information relating to the properties, operations or condition (financial or otherwise) of the Significant Parties, and compliance by the Significant Parties with the terms of this Agreement and the other Credit Documents as the Administrative Agent or any Lender (through the Administrative Agent) may from time to time reasonably request;
(xv) As soon as available and in no event later than five Business Days after any of CBII’s or the Borrower’s officers or directors receive notice or become aware of any actions (including derivative actions), suits, proceedings or investigations that are pending or, to the knowledge of any of CBII’s or the Borrower’s officers or directors, threatened against any Significant Party at law or in equity in any court, arbitration proceeding or before any other Governmental Authority which seek to enjoin, either directly or indirectly, the execution, delivery or performance by any Loan Party of the Credit Documents or the transactions contemplated thereby;
(xvi) As soon as available and in no event later than 120 days after the close of each fiscal year of CBII, a written supplement to Schedule 4.01(w) (setting forth a true and complete listing of all insurance maintained by the Significant Parties);
(xvii) Within 120 days after the close of each fiscal year of CBII, a written supplement disclosing any matters required to update factual matters relating to Section 4.014.01(s); and
(xviii) To the extent delivered (and thereafter requested by the Administrative Agent or the Lenders), management letters delivered by CBII’s or the Borrower’s accountants in connection with any of CBII’s or the Borrower’s Financial Statements.
Appears in 1 contract
Samples: Credit Agreement (Chiquita Brands International Inc)
Financial Statements, Reports. The Borrower shall furnish CERTIFICATES. Deliver to the Administrative Agent the following:(with a copy to each Lender):
(ia) As as soon as available available, but in any event within 45 days after the end of each month, other than March, June, September and in no event later than December, and within 60 days after the last day end of each March, June, September and December, during each of the first three Borrower's fiscal quarters years: (i) a company prepared balance sheet, income statement, and statement of each fiscal year of the cash flow covering Borrower, 's operations during such period; (ii) a copy of the then-current "Grant Geophysical, Inc. Financial Statements Reports" or such other report as may be generated for the management personnel of Borrower in lieu thereof from time to time; and (iii) a report analyzing investments in, and revenue attributable to, the Data Library;
(b) as soon as available, but in any event within 120 days after the end of each of Borrower's fiscal years, financial statements of Borrower for each such fiscal year, audited by independent certified public accountants reasonably acceptable to Agent and certified, without any qualifications as to the scope of the audit or as to any other matter (except as to the Borrower's being a going concern), by such accountants to have been prepared in accordance with GAAP, together with a certificate of such accountants addressed to Agent stating that such accountants do not have knowledge of the existence of any Default or Event of Default (or, if in the opinion of such accounting firm, a Default or Event of Default has occurred or is continuing, a statement as to the nature thereof); and
(c) on or before the effective date of the Seventh Amendment to Loan and Security Agreement and on or before each December 15 thereafter, an Approved Budget. Such audited financial statements shall include a balance sheet, profit and loss statement, and statement of cash flow and, if prepared, such accountants' letter to management. In addition to the financial statements referred to above, Borrower Entities (agrees to deliver financial statements prepared on a consolidated basis) , and, beginning with the monthly financial statements required to be provided by Borrower for the fiscal year month ending August 31, 1999, on a consolidating basis, so as to datepresent Borrower and each such related entity separately. Together with the above, certified Borrower also shall deliver to Agent Borrower's Form 10-Q Quarterly Reports, Form 10-K Annual Reports, and Form 8-K Current Reports, and any other filings made by Borrower with the Chief Accounting Officer Securities and Exchange Commission, if any, as soon as the same are filed, or the Chief Financial Officer of the any other similar financial information that is provided by Borrower to present fairly in all material respects its shareholders, and any other report reasonably requested by Agent relating to the financial conditioncondition of Borrower. Each month, results of operationstogether with the financial statements provided pursuant to Section 6.3(a), cash flows, Borrower shall deliver to Agent and other information reflected therein and each Lender a certificate signed by its chief financial officer to the effect that: (i) all financial statements delivered or caused to be delivered to Agent hereunder have been prepared in accordance with GAAP (subject to normal year end audit adjustments and omission except, in the case of unaudited financial statements, for the lack of footnotes and statement being subject to yearend audit adjustments) and fairly present in all material respects the financial condition of shareholder’s equity);
Borrower, (ii) As soon the representations and warranties of Borrower contained in this Agreement and the other Loan Documents are true and correct in all material respects on and as available and in no event later than 120 days after the close of each fiscal year of the Borrower, copies of (A) the audited consolidated Financial Statements of the Borrower Entities for such year, audited by Ernst & Young LLP or other independent certified public accountants of recognized national standing and registered with the Public Company Accounting Oversight Board and (B) copies of the unqualified opinions date of such accountants;
certificate, as though made on and as of such date (except to the extent that such representations and warranties relate solely to an earlier date), (iii) Commencing with for the fiscal quarter ended June 30, 2008, as soon as available and in no event later than 60 days after the last day of each of the first three fiscal quarters of each fiscal year in respect of quarterly Financial Statements of the Borrower Entities, 90 days after the close of each fiscal year in respect of yearly Financial Statements of the CBII Entities and 120 days after the close of each fiscal year in respect of yearly Financial Statements of the Borrower Entities in accordance with clause (i) above, clause (v) below and clause (ii) above, respectivelymonth for which financial statements are being delivered, a compliance certificate of the Chief Accounting Officer or Treasurer of the Borrower (a “Compliance Certificate”) in substantially the form of Exhibit G-1; provided, however, that the only calculations to be provided in the Compliance Certificate delivered demonstrating in connection with yearly Financial Statements of reasonable detail whether or not the CBII Entities shall be with respect to the Consolidated Adjusted Leverage Ratio;
condition precedent set forth in Section 2.3(h) has been satisfied, and (iv) As soon as available and on the date of delivery of such certificate to Agent there does not exist any condition or event that constitutes a Default or Event of Default (or, in no event later than 45 days after the last day case of each of the first three fiscal quarters of each fiscal year of CBIIclauses (i), a copy of the Quarterly Report for CBII on Form 10-Q for such quarter and for the fiscal year to date; provided that such information(ii), (iii) or (iv), to the extent the Borrower directly or indirectly provides the Administrative Agent with written notice and an appropriate internet link thereto, shall be accessed by Lenders on XXXXX;
(v) As soon as available and in no event later than 90 days after the close of each fiscal year of CBII, (A) copies of the Annual Report for CBII on Form 10-K for such year, audited by Ernst & Young LLP or other independent certified public accountants of recognized national standing and registered with the Public Company Accounting Oversight Board and (B) copies of the unqualified opinions of such accountants; provided that such information, to the extent the Borrower directly or indirectly provides the Administrative Agent with written notice and an appropriate internet link thereto, shall be accessed by Lenders on XXXXX;
(A) As soon as available and in no event later than 120 days after the close of each fiscal year of CBII, (1) a written supplement to Schedule 4.01(n) (setting forth all necessary Trademark information as set forth in Section 4.01(n) and relating to the Trademarks that are material to the conduct of the Significant Parties’ respective businesses as then operated), (2) a written supplement to Schedule 3.06 to each Security Agreement, (3) any additional disclosures under Section 4.01(n) after Due Inquiry and (4) any additional disclosures to be provided on an annual basis under the Security Documents and (B) promptly, but in any event within a reasonable time after any officer of CBII or the Borrower obtains knowledge of the occurrence of an event that could reasonably be expected to result in a Material Adverse Effect on any of the Principal Trademarks or the Trademark Licenses, give the Administrative Agent notice of the occurrence of any such event;
(vii) (A) As soon as available and in no event later than 120 days after the close of each fiscal year of CBII, a written supplement to Schedule 4.01(q) (setting forth each of the US Subsidiaries, each of the Significant Subsidiaries and each of the De Minimis US Subsidiaries, its jurisdiction of organization, the classes of its Equity Securities, the number of shares of each such class issued and outstanding, the percentages of shares of each such class owned directly or indirectly by CBII or the Borrower and whether CBII or the Borrower owns such shares directly or, if not, the CBII Entities that own such shares and the number of shares and percentages of shares of each such class owned directly or indirectly by such CBII Entities) and (B) promptly upon the reasonable request of the Administrative Agent and in no event more often than annually, a current hierarchy report for the CBII Entities, in the form and with the substance of the hierarchy report delivered pursuant to Section 3.01(g)(iii);
(viii) As soon as possible and in no event later than 30 days after any officer or director of any Significant Party knows of the occurrence or existence of (A) any ERISA Event under any Pension Plan or Multiemployer Plan which, either individually or in the aggregate, could reasonably be expected to have a Material Adverse Effect, (B) any actual or threatened litigation, suits, claims, disputes or investigations against any Significant Party involving potential monetary damages or in which injunctive relief or similar relief is sought, which could reasonably be expected to have a Material Adverse Effect, (C) any other event or condition which, either individually or in the aggregate, could reasonably be expected to have a Material Adverse Effect, including any of the following which could reasonably be expected to have a Material Adverse Effect: (1) breach or non-performance ofcompliance, describing such non-compliance as to which he or she may have knowledge and what action Borrower has taken, is taking, or any default under, a Contractual Obligation of any Significant Party, (2) any dispute, litigation, investigation, proceeding or suspension between any Significant Party and any Governmental Authority or (3) the commencement of, or any material development in, any litigation or proceeding affecting any Significant Party, including pursuant to any applicable Environmental Laws, or (D) any Default, the statement of the Chief Accounting Officer, Chief Financial Officer, or Treasurer of the Borrower setting forth details of such event, condition or Default and the action which CBII or the Borrower proposes to take with respect thereto). Each notice pursuant Borrower shall have issued written instructions to this Section 5.01(a)(viii) shall be accompanied by a statement of an Officer of the its independent certified public accountants authorizing them to communicate with Agent and to release to Agent whatever financial information concerning Borrower setting forth details of the occurrence referred to therein that Agent may reasonably request. Borrower hereby irrevocably authorizes and stating what action CBII or the Borrower has taken and proposes to take with respect thereto. Each notice pursuant to this Section 5.01(a)(viii) shall describe with particularity any and directs all provisions of this Agreement auditors, accountants, or other Credit Document that have been breached;
(ix) In no event later than five Business Days after they are sentthird parties to deliver to Agent, made available or filedat Borrower's expense, copies of (A) all registration statements and reports filed by any CBII Entities with any securities exchange or the United States Securities and Exchange Commission (including all 10-QBorrower's financial statements, 10-K and 8-K reports)papers related thereto, (B) all reports, proxy statements and Financial Statements sent or made available by CBII to its Equity Securities holders and (C) all press releases and other similar public announcements concerning any material developments in the business of CBII made available by CBII to the public generally; provided that such information, to the extent the Borrower directly or indirectly provides the Administrative Agent with written notice and an appropriate internet link thereto, shall be accessed by Lenders on XXXXX;
(x) As soon as available and in no event later than 30 days after they are filed, copies of all IRS Form 5500 reports for all Pension Plans required to file such form;
(xi) Within the earlier to occur of (i) five days after the Board of Directors of the Borrower or CBII shall have publicly announced the earnings for the most recently completed fiscal year of the Borrower or CBII and (ii) 60 days after the end of each fiscal year of the Borrower and CBII, during each year when this Agreement is in effect, a forecast for the current fiscal year of the Borrower Entities and the CBII Entities which includes projected consolidated statement of income for such fiscal year and a projected consolidated statement of cash flows for such fiscal year and projected consolidated balance sheets, statements of income and statements of cash flows on a quarterly basis for such fiscal year; provided that the parties acknowledge that the information in such forecasts is not compiled or presented in accordance with GAAP and may not necessarily be presented on a basis consistent with the Borrower’s Financial Statements to be delivered pursuant to Section 5.01(a);
(xii) As soon as possible and in no event later than the later of (A) any of CBII’s or the Borrower’s officers or directors learning thereof or (B) five Business Days prior to the occurrence accounting records of any event or circumstance (except for asset losses nature in which case as promptly as is reasonable after such asset loss) that would require a prepayment pursuant to Section 2.06(c), the statement of the Chief Financial Officer, Chief Accounting Officer or Treasurer of the Borrower setting forth the details thereof;
(xiii) As soon as possible and in no event later than 30 days after the receipt thereof by any Loan Party (or subsequent determination after Due Inquiry by an officer of the Borrower that it could reasonably be expected to result in a Material Adverse Effect), a copy of any notice, summons, citations or other written communications concerning any actual, alleged, suspected or threatened violation of any Environmental Law or any liability of any Loan Party for Environmental Damages that in any such case could reasonably be expected to result in a Material Adverse Effect;
(xiv) Such other instruments, agreements, certificates, opinions, statements, documents and information relating to the properties, operations or condition (financial or otherwise) of the Significant Partiestheir possession, and compliance by the Significant Parties with the terms of this Agreement to disclose to Agent any information they may have regarding Borrower's business affairs and the other Credit Documents as the Administrative Agent or any Lender (through the Administrative Agent) may from time to time reasonably request;
(xv) As soon as available and in no event later than five Business Days after any of CBII’s or the Borrower’s officers or directors receive notice or become aware of any actions (including derivative actions), suits, proceedings or investigations that are pending or, to the knowledge of any of CBII’s or the Borrower’s officers or directors, threatened against any Significant Party at law or in equity in any court, arbitration proceeding or before any other Governmental Authority which seek to enjoin, either directly or indirectly, the execution, delivery or performance by any Loan Party of the Credit Documents or the transactions contemplated thereby;
(xvi) As soon as available and in no event later than 120 days after the close of each fiscal year of CBII, a written supplement to Schedule 4.01(w) (setting forth a true and complete listing of all insurance maintained by the Significant Parties);
(xvii) Within 120 days after the close of each fiscal year of CBII, a written supplement disclosing any matters required to update factual matters relating to Section 4.01financial conditions." AMENDMENT NO. 7 - PAGE 10
Appears in 1 contract
Samples: Loan and Security Agreement (Grant Geophysical Inc)
Financial Statements, Reports. The Borrower shall furnish to the Administrative Agent the following:
(i) As soon as available and in no event later than 60 days after the last day of each of the first three fiscal quarters of each fiscal year of the Borrower, a copy of the Financial Statements of the Borrower Entities (prepared on a consolidated basis) for the fiscal year to date, certified by the Chief Accounting Officer or the Chief Financial Officer of the Borrower to present fairly in all material respects the financial condition, results of operations, cash flows, and other information reflected therein and to have been prepared in accordance with GAAP (subject to normal year end audit adjustments and omission of footnotes and statement of shareholder’s equity);
(ii) As soon as available and in no event later than 120 days after the close of each fiscal year of the Borrower, copies of (A) the audited consolidated Financial Statements of the Borrower Entities for such year, audited by Ernst & Young LLP or other independent certified public accountants of recognized national standing and registered with the Public Company Accounting Oversight Board and (B) copies of the unqualified opinions of such accountants;
(iii) Commencing with the fiscal quarter ended June 30, 20082011, as soon as available and in no event later than 60 days after the last day of each of the first three fiscal quarters of each fiscal year in respect of quarterly Financial Statements of the Borrower Entities, 90 days after the close of each fiscal year in respect of yearly Financial Statements of the CBII Entities and 120 days after the close of each fiscal year in respect of yearly Financial Statements of the Borrower Entities in accordance with clause (i) above, clause (v) below and clause (ii) above, respectively, a compliance certificate of the Chief Accounting Officer or Treasurer of the Borrower (a “Compliance Certificate”) in substantially the form of Exhibit G-1; provided, however, that the only calculations to be provided in the Compliance Certificate delivered in connection with yearly Financial Statements of the CBII Entities shall be with respect to the Consolidated Adjusted Leverage Ratio;
(iv) As soon as available and in no event later than 45 days after the last day of each of the first three fiscal quarters of each fiscal year of CBII, a copy of the Quarterly Report for CBII on Form 10-Q for such quarter and for the fiscal year to date; provided that such information, to the extent the Borrower directly or indirectly provides the Administrative Agent with written notice and an appropriate internet link thereto, shall be accessed by Lenders on XXXXX;
(v) As soon as available and in no event later than 90 days after the close of each fiscal year of CBII, (A) copies of the Annual Report for CBII on Form 10-K for such year, audited by Ernst & Young LLP or other independent certified public accountants of recognized national standing and registered with the Public Company Accounting Oversight Board and (B) copies of the unqualified opinions of such accountants; provided that such information, to the extent the Borrower directly or indirectly provides the Administrative Agent with written notice and an appropriate internet link thereto, shall be accessed by Lenders on XXXXX;
(A) As soon as available and in no event later than 120 days after the close of each fiscal year of CBII, (1) a written supplement to Schedule 4.01(n) (setting forth all necessary Trademark information as set forth in Section 4.01(n) and relating to the Trademarks that are material to the conduct of the Significant Parties’ respective businesses as then operated), (2) a written supplement to Schedule 3.06 3.6 to each Security Agreement, (3) any additional disclosures under Section 4.01(n) after Due Inquiry and (4) any additional disclosures to be provided on an annual basis under the Security Documents and (B) promptly, but in any event within a reasonable time after any officer of CBII or the Borrower obtains knowledge of the occurrence of an event that could reasonably be expected to result in a Material Adverse Effect on any of the Principal Trademarks or the Trademark Licenses, give the Administrative Agent notice of the occurrence of any such event;
(vii) (A) As soon as available and in no event later than 120 days after the close of each fiscal year of CBII, a written supplement to Schedule 4.01(q) of the Disclosure Letter (setting forth each of the US Subsidiaries, each of the Significant Subsidiaries and each of the De Minimis US Subsidiaries, its jurisdiction of organization, the classes of its Equity Securities, the number of shares of each such class issued and outstanding, the percentages of shares of each such class owned directly or indirectly by CBII or the Borrower and whether CBII or the Borrower owns such shares directly or, if not, the CBII Entities that own such shares and the number of shares and percentages of shares of each such class owned directly or indirectly by such CBII Entities) and (B) promptly upon the reasonable request of the Administrative Agent and in no event more often than annually, a current hierarchy report for the CBII Entities, in the form and with the substance of the hierarchy report delivered pursuant to Section 3.01(g)(iii);
(viii) As soon as possible and in no event later than 30 days after any officer or director of any Significant Party knows of the occurrence or existence of (A) any ERISA Event under any Pension Plan or Multiemployer Plan which, either individually or in the aggregate, could reasonably be expected to have a Material Adverse Effect, (B) any actual or threatened litigation, suits, claims, disputes or investigations against any Significant Party involving potential monetary damages or in which injunctive relief or similar relief is sought, which could reasonably be expected to have a Material Adverse Effect, (C) any other event or condition which, either individually or in the aggregate, could reasonably be expected to have a Material Adverse Effect, including any of the following which could reasonably be expected to have a Material Adverse Effect: (1) breach or non-performance of, or any default under, a Contractual Obligation of any Significant Party, (2) any dispute, litigation, investigation, proceeding or suspension between any Significant Party and any Governmental Authority or (3) the commencement of, or any material development in, any litigation or proceeding affecting any Significant Party, including pursuant to any applicable Environmental Laws, or (D) any Default, the statement of the Chief Accounting Officer, Chief Financial Officer, or Treasurer of the Borrower setting forth details of such event, condition or Default and the action which CBII or the Borrower proposes to take with respect thereto. Each notice pursuant to this Section 5.01(a)(viii) shall be accompanied by a statement of an Officer of the Borrower setting forth details of the occurrence referred to therein and stating what action CBII or the Borrower has taken and proposes to take with respect thereto. Each notice pursuant to this Section 5.01(a)(viii) shall describe with particularity any and all provisions of this Agreement or other Credit Document that have been breached;
(ix) In no event later than five Business Days after they are sent, made available or filed, copies of (A) all registration statements and reports filed by any CBII Entities with any securities exchange or the United States Securities and Exchange Commission (including all 10-Q, 10-K and 8-K reports), (B) all reports, proxy statements and Financial Statements sent or made available by CBII to its Equity Securities holders and (C) all press releases and other similar public announcements concerning any material developments in the business of CBII made available by CBII to the public generally; provided that such information, to the extent the Borrower directly or indirectly provides the Administrative Agent with written notice and an appropriate internet link thereto, shall be accessed by Lenders on XXXXX;
(x) As soon as available and in no event later than 30 days after they are filed, copies of all IRS Form 5500 reports for all Pension Plans required to file such form;
(xi) Within the earlier to occur of (i) five days after the Board of Directors of the Borrower or CBII shall have publicly announced the earnings for the most recently completed fiscal year of the Borrower or CBII and (ii) 60 days after the end of each fiscal year of the Borrower and CBII, during each year when this Agreement is in effect, a forecast for the current fiscal year of the Borrower Entities and the CBII Entities which includes projected consolidated statement of income for such fiscal year and a projected consolidated statement of cash flows for such fiscal year and projected consolidated balance sheets, statements of income and statements of cash flows on a quarterly basis for such fiscal year; provided that the parties acknowledge that the information in such forecasts is not compiled or presented in accordance with GAAP and may not necessarily be presented on a basis consistent with the Borrower’s Financial Statements to be delivered pursuant to Section 5.01(a);
(xii) As soon as possible and in no event later than the later of (A) any of CBII’s or the Borrower’s officers or directors learning thereof or (B) five Business Days prior to the occurrence of any event or circumstance (except for asset losses in which case as promptly as is reasonable after such asset loss) that would require a prepayment pursuant to Section 2.06(c), the statement of the Chief Financial Officer, Chief Accounting Officer or Treasurer of the Borrower setting forth the details thereof;
(xiii) As soon as possible and in no event later than 30 days after the receipt thereof by any Loan Party (or subsequent determination after Due Inquiry by an officer of the Borrower that it could reasonably be expected to result in a Material Adverse Effect), a copy of any notice, summons, citations or other written communications concerning any actual, alleged, suspected or threatened violation of any Environmental Law or any liability of any Loan Party for Environmental Damages that in any such case could reasonably be expected to result in a Material Adverse Effect;
(xiv) Such other instruments, agreements, certificates, opinions, statements, documents and information relating to the properties, operations or condition (financial or otherwise) of the Significant Parties, and compliance by the Significant Parties with the terms of this Agreement and the other Credit Documents as the Administrative Agent or any Lender (through the Administrative Agent) may from time to time reasonably request;
(xv) As soon as available and in no event later than five Business Days after any of CBII’s or the Borrower’s officers or directors receive notice or become aware of any actions (including derivative actions), suits, proceedings or investigations that are pending or, to the knowledge of any of CBII’s or the Borrower’s officers or directors, threatened against any Significant Party at law or in equity in any court, arbitration proceeding or before any other Governmental Authority which seek to enjoin, either directly or indirectly, the execution, delivery or performance by any Loan Party of the Credit Documents or the transactions contemplated thereby;
(xvi) As soon as available and in no event later than 120 days after the close of each fiscal year of CBII, a written supplement to Schedule 4.01(w) (setting forth a true and complete listing of all insurance maintained by the Significant Parties);
(xvii) Within 120 days after the close of each fiscal year of CBII, a written supplement disclosing any matters required to update factual matters relating to Section 4.01which
Appears in 1 contract
Samples: Credit Agreement (Chiquita Brands International Inc)
Financial Statements, Reports. The Borrower shall furnish Provide Bank with the following by submitting to the Administrative Agent the followingFinancial Statement Repository or otherwise submitting to Bank:
(ia) As as soon as available and in available, but no event later than 60 thirty (30) days after the last day of each of the first three fiscal quarters of each fiscal year of the Borrowermonth, a copy of company-prepared consolidated balance sheet and income statement covering Borrower’s consolidated operations for such month in a form reasonably acceptable to Bank (the “Monthly Financial Statements of the Borrower Entities (prepared on a consolidated basis) for the fiscal year to date, certified by the Chief Accounting Officer or the Chief Financial Officer of the Borrower to present fairly in all material respects the financial condition, results of operations, cash flows, and other information reflected therein and to have been prepared in accordance with GAAP (subject to normal year end audit adjustments and omission of footnotes and statement of shareholder’s equityStatements”);
(iib) As soon as available and in no event later than 120 days after the close of each fiscal year of the Borrower, copies of (A) the audited consolidated Financial Statements of the Borrower Entities for such year, audited by Ernst & Young LLP or other independent certified public accountants of recognized national standing and registered with the Public Company Accounting Oversight Board and (B) copies of the unqualified opinions of such accountants;
(iii) Commencing with the fiscal quarter ended June 30, 2008at least annually, as soon as available available, and in any event no event later than 60 forty-five (45) days following the last day of each fiscal year, and contemporaneously with any updates or amendments thereto, (i) annual operating budgets (including income statements, balance sheets and cash flow statements, by month), and (ii) annual financial projections (on a quarterly basis), in each case as approved by the Board, together with any related business forecasts used in the preparation of such annual financial projections;
(c) as soon as available, and in any event within forty-five (45) days following the end of each fiscal quarter of Borrower, Borrower’s 10-Q for such fiscal quarter as filed with the SEC;
(d) as soon as available, and in any event within ninety (90) days following the end of Borrower’s fiscal year, Borrower’s 10-K for such fiscal year as filed with the SEC, together with an unqualified opinion on the 10-K from an independent certified public accounting firm reasonably acceptable to Bank;
(e) (i) within thirty (30) days after the last day of each of the first three fiscal quarters of each fiscal year in respect of quarterly Financial Statements of the Borrower Entities, 90 days after the close of each fiscal year in respect of yearly Financial Statements of the CBII Entities month and 120 days after the close of each fiscal year in respect of yearly Financial Statements of the Borrower Entities in accordance with clause (i) above, clause (v) below and clause (ii) above, respectively, a compliance certificate of the Chief Accounting Officer or Treasurer of the Borrower forty-five (a “Compliance Certificate”45) in substantially the form of Exhibit G-1; provided, however, that the only calculations to be provided in the Compliance Certificate delivered in connection with yearly Financial Statements of the CBII Entities shall be with respect to the Consolidated Adjusted Leverage Ratio;
(iv) As soon as available and in no event later than 45 days after the last day of each fiscal quarter, a completed Compliance Statement, confirming that, as of the first three fiscal quarters end of each fiscal year of CBIIsuch month or quarter, a copy as applicable, Borrower was in full compliance with all of the Quarterly Report for CBII on Form 10-Q for terms and conditions of this Agreement, and setting forth calculations showing compliance with the financial covenants set forth in this Agreement and such quarter other information as Bank may reasonably request;
(f) in the event that Borrower becomes subject to the reporting requirements under the Exchange Act, within five (5) days of filing, copies of all periodic and for other reports, proxy statements and other materials filed by Borrower and/or any Guarantor with the fiscal year SEC, any Governmental Authority succeeding to date; provided that such informationany or all of the functions of the SEC or with any national securities exchange, or distributed to its shareholders, as the case may be. Documents required to be delivered pursuant to the terms hereof (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 on which Borrower directly posts such documents, or indirectly provides the Administrative Agent with written notice and an appropriate internet a link thereto, on Borrower’s website on the internet at Borrower’s website address; provided, however, Borrower shall promptly notify Bank in writing (which may be accessed by Lenders on XXXXXelectronic mail) of the posting of any such documents;
(vg) As soon as available and in no event later than 90 within five (5) days after the close of each fiscal year of CBIIdelivery, (A) copies of the Annual Report for CBII on Form 10-K for such yearall statements, audited by Ernst & Young LLP reports and notices made available to Borrower’s security holders generally or other independent certified public accountants to any holders of recognized national standing and registered with the Public Company Accounting Oversight Board and (B) copies of the unqualified opinions of such accountants; provided that such information, to the extent the Borrower directly or indirectly provides the Administrative Agent with written notice and an appropriate internet link thereto, shall be accessed by Lenders on XXXXXSubordinated Debt;
(Ah) As soon as available and in no event later than 120 days after prompt written notice of any changes to the close of each fiscal year of CBII, (1) a written supplement to Schedule 4.01(n) (setting forth all necessary Trademark beneficial ownership information as set forth out in Section 4.01(n) and relating to the Trademarks that are material to the conduct 14 of the Significant Parties’ respective businesses as then operated)Perfection Certificate. Borrower understands and acknowledges that Bank relies on such true, accurate and up-to-date beneficial ownership information to meet Bank’s regulatory obligations to obtain, verify and record information about the beneficial owners of its legal entity customers;
(2i) a written supplement to Schedule 3.06 to each Security Agreement, (3) prompt report of any additional disclosures under Section 4.01(n) after Due Inquiry and (4) legal actions pending or threatened in writing against Borrower or any additional disclosures to be provided on an annual basis under the Security Documents and (B) promptly, but in any event within a reasonable time after any officer of CBII or the Borrower obtains knowledge of the occurrence of an event its Subsidiaries that could reasonably be expected to result in a Material Adverse Effect on damages or costs to Borrower or any of the Principal Trademarks or the Trademark Licensesits Subsidiaries of, give the Administrative Agent notice of the occurrence of any such event;
(vii) (A) As soon as available and in no event later than 120 days after the close of each fiscal year of CBII, a written supplement to Schedule 4.01(q) (setting forth each of the US Subsidiaries, each of the Significant Subsidiaries and each of the De Minimis US Subsidiaries, its jurisdiction of organization, the classes of its Equity Securities, the number of shares of each such class issued and outstanding, the percentages of shares of each such class owned directly or indirectly by CBII or the Borrower and whether CBII or the Borrower owns such shares directly or, if not, the CBII Entities that own such shares and the number of shares and percentages of shares of each such class owned directly or indirectly by such CBII Entities) and (B) promptly upon the reasonable request of the Administrative Agent and in no event more often than annually, a current hierarchy report for the CBII Entities, in the form and with the substance of the hierarchy report delivered pursuant to Section 3.01(g)(iii);
(viii) As soon as possible and in no event later than 30 days after any officer or director of any Significant Party knows of the occurrence or existence of (A) any ERISA Event under any Pension Plan or Multiemployer Plan which, either individually or in the aggregate, could Five Hundred Thousand Dollars ($500,000.00) or more; and
(j) promptly, from time to time, such other information regarding Borrower or compliance with the terms of any Loan Documents as reasonably be expected to have requested by Bank in writing. Any submission by Borrower of a Material Adverse Effect, (B) any actual Compliance Statement or threatened litigation, suits, claims, disputes or investigations against any Significant Party involving potential monetary damages or in which injunctive relief or similar relief is sought, which could reasonably be expected to have a Material Adverse Effect, (C) any other event or condition which, either individually or in financial statement submitted to the aggregate, could reasonably be expected to have a Material Adverse Effect, including any of the following which could reasonably be expected to have a Material Adverse Effect: (1) breach or non-performance of, or any default under, a Contractual Obligation of any Significant Party, (2) any dispute, litigation, investigation, proceeding or suspension between any Significant Party and any Governmental Authority or (3) the commencement of, or any material development in, any litigation or proceeding affecting any Significant Party, including pursuant to any applicable Environmental Laws, or (D) any Default, the statement of the Chief Accounting Officer, Chief Financial Officer, or Treasurer of the Borrower setting forth details of such event, condition or Default and the action which CBII or the Borrower proposes to take with respect thereto. Each notice Statement Repository pursuant to this Section 5.01(a)(viii) 6.2 or otherwise submitted to Bank shall be accompanied deemed to be a representation by a statement of an Officer Borrower that (a) as of the Borrower setting forth details date of the occurrence referred to therein and stating what action CBII or the Borrower has taken and proposes to take with respect thereto. Each notice pursuant to this Section 5.01(a)(viii) shall describe with particularity any and all provisions of this Agreement such Compliance Statement or other Credit Document that have been breached;
(ix) In no event later than five Business Days after they financial statement, the information and calculations set forth therein are senttrue, made available or filed, copies of (A) all registration statements accurate and reports filed by any CBII Entities with any securities exchange or the United States Securities and Exchange Commission (including all 10-Q, 10-K and 8-K reports)correct, (Bb) all reports, proxy statements and Financial Statements sent or made available by CBII to its Equity Securities holders and (C) all press releases and other similar public announcements concerning any material developments in the business as of CBII made available by CBII to the public generally; provided that such information, to the extent the Borrower directly or indirectly provides the Administrative Agent with written notice and an appropriate internet link thereto, shall be accessed by Lenders on XXXXX;
(x) As soon as available and in no event later than 30 days after they are filed, copies of all IRS Form 5500 reports for all Pension Plans required to file such form;
(xi) Within the earlier to occur of (i) five days after the Board of Directors of the Borrower or CBII shall have publicly announced the earnings for the most recently completed fiscal year of the Borrower or CBII and (ii) 60 days after the end of each fiscal year the compliance period set forth in such submission, Borrower is in complete compliance with all required covenants except as noted in such Compliance Statement or other financial statement, as applicable; (c) as of the date of such submission, except as otherwise set forth therein, no Events of Default have occurred or are continuing; (d) with respect to Compliance Statements only, all representations and warranties other than any representations or warranties that are made as of a specific date in Article 5 remain true and correct in all material respects as of the date of such submission except as noted in such Compliance Statement; (e) as of the date of such submission, Borrower and CBIIeach of its Subsidiaries has timely filed all required tax returns and reports, during each year when this Agreement is in effectand Borrower has timely paid all foreign, a forecast for the current fiscal year of the federal, state and local taxes, assessments, deposits and contributions owed by Borrower Entities and the CBII Entities which includes projected consolidated statement of income for such fiscal year and a projected consolidated statement of cash flows for such fiscal year and projected consolidated balance sheets, statements of income and statements of cash flows on a quarterly basis for such fiscal year; provided that the parties acknowledge that the information in such forecasts is not compiled or presented in accordance with GAAP and may not necessarily be presented on a basis consistent with the Borrower’s Financial Statements to be delivered except as otherwise permitted pursuant to Section 5.01(a);
(xii) As soon as possible and in no event later than the later of (A) any of CBII’s or the Borrower’s officers or directors learning thereof or (B) five Business Days prior to the occurrence of any event or circumstance (except for asset losses in which case as promptly as is reasonable after such asset loss) that would require a prepayment pursuant to Section 2.06(c), the statement of the Chief Financial Officer, Chief Accounting Officer or Treasurer of the Borrower setting forth the details thereof;
(xiii) As soon as possible and in no event later than 30 days after the receipt thereof by any Loan Party (or subsequent determination after Due Inquiry by an officer of the Borrower that it could reasonably be expected to result in a Material Adverse Effect), a copy of any notice, summons, citations or other written communications concerning any actual, alleged, suspected or threatened violation of any Environmental Law or any liability of any Loan Party for Environmental Damages that in any such case could reasonably be expected to result in a Material Adverse Effect;
(xiv) Such other instruments, agreements, certificates, opinions, statements, documents and information relating to the properties, operations or condition (financial or otherwise) of the Significant Parties, and compliance by the Significant Parties with the terms of this Agreement Section 5.8; and (f) as of the other Credit Documents as the Administrative Agent date of such submission, no Liens have been levied or claims made against Borrower or any Lender (through the Administrative Agent) may from time to time reasonably request;
(xv) As soon as available and in no event later than five Business Days after any of CBII’s or the Borrower’s officers or directors receive notice or become aware of any actions (including derivative actions), suits, proceedings or investigations that are pending or, to the knowledge of any of CBII’s or the Borrower’s officers or directors, threatened against any Significant Party at law or in equity in any court, arbitration proceeding or before any other Governmental Authority which seek to enjoin, either directly or indirectly, the execution, delivery or performance by any Loan Party of the Credit Documents or the transactions contemplated thereby;
(xvi) As soon as available and in no event later than 120 days after the close of each fiscal year of CBII, a written supplement to Schedule 4.01(w) (setting forth a true and complete listing of all insurance maintained by the Significant Parties);
(xvii) Within 120 days after the close of each fiscal year of CBII, a written supplement disclosing any matters required to update factual matters its Subsidiaries relating to Section 4.01unpaid employee payroll or benefits of which Borrower has not previously provided written notification to Bank.
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Financial Statements, Reports. The Borrower shall furnish Provide Bank with the following by submitting to the Administrative Agent the followingFinancial Statement Repository or otherwise submitting to Bank:
(ia) As within ten (10) Business Days after the end of each month (or more frequently as Bank in its good faith business judgment determines that conditions warrant), a Borrowing Base Statement (and any schedules related thereto and including detailed Account Debtor listings, and any other information requested by Bank in its good faith business judgment with respect to Co-Borrowers’ Accounts);
(b) within forty-five (45) days after the end of each month, (A) monthly accounts receivable agings, aged by invoice date, (B) monthly accounts payable agings, aged by invoice date, and outstanding or held check registers, if any, and (C) monthly reconciliations of accounts receivable agings (aged by invoice date), and Deferred Revenue report;
(c) as soon as available and in available, but no event later than 60 forty-five (45) days after the last day of each of the first three fiscal quarters of each fiscal year of the Borrowermonth, a copy of the Financial Statements of the Borrower Entities (company prepared on a consolidated basis) for the fiscal year to datebalance sheet, certified by the Chief Accounting Officer or the Chief Financial Officer of the Borrower to present fairly in all material respects the financial condition, results of operations, cash flowsincome statement, and other information reflected therein and cash flow statement covering Co-Borrowers’ consolidated operations for such month in a form reasonably acceptable to have been prepared in accordance with GAAP Bank (subject to normal year end audit adjustments and omission of footnotes and statement of shareholder’s equitythe “Monthly Financial Statements”);
(iid) As soon as available and in no event later than 120 days after the close of each fiscal year of the Borrower, copies of within forty-five (A45) the audited consolidated Financial Statements of the Borrower Entities for such year, audited by Ernst & Young LLP or other independent certified public accountants of recognized national standing and registered with the Public Company Accounting Oversight Board and (B) copies of the unqualified opinions of such accountants;
(iii) Commencing with the fiscal quarter ended June 30, 2008, as soon as available and in no event later than 60 days after the last day of each of month and together with the first three fiscal quarters of each fiscal year in respect of quarterly Monthly Financial Statements of the Borrower Entities, 90 days after the close of each fiscal year in respect of yearly Financial Statements of the CBII Entities and 120 days after the close of each fiscal year in respect of yearly Financial Statements of the Borrower Entities in accordance with clause (i) above, clause (v) below and clause (ii) above, respectivelyStatements, a compliance certificate of the Chief Accounting Officer or Treasurer of the Borrower (a “completed Compliance Certificate”) Statement in substantially the form of Exhibit G-1; provided, however, that the only calculations to be provided in the Compliance Certificate delivered in connection with yearly Financial Statements of the CBII Entities shall be with respect to the Consolidated Adjusted Leverage RatioB;
(ive) As soon as available and in no event later than 45 days after the last day of each of the first three fiscal quarters of each fiscal year of CBII, a copy of the Quarterly Report for CBII on Form 10-Q for such quarter and for the fiscal year to date; provided that such information, to the extent the Borrower directly or indirectly provides the Administrative Agent with written notice and an appropriate internet link thereto, shall be accessed by Lenders on XXXXX;
(v) As soon as available and in no event later than 90 days after the close of each fiscal year of CBII, (A) copies of the Annual Report for CBII on Form 10-K for such year, audited by Ernst & Young LLP or other independent certified public accountants of recognized national standing and registered with the Public Company Accounting Oversight Board and (B) copies of the unqualified opinions of such accountants; provided that such information, to the extent the Borrower directly or indirectly provides the Administrative Agent with written notice and an appropriate internet link thereto, shall be accessed by Lenders on XXXXX;
(A) As soon as available and in no event later than 120 days after the close of each fiscal year of CBII, (1) a written supplement to Schedule 4.01(n) (setting forth all necessary Trademark information as set forth in Section 4.01(n) and relating to the Trademarks that are material to the conduct of the Significant Parties’ respective businesses as then operated), (2) a written supplement to Schedule 3.06 to each Security Agreement, (3) any additional disclosures under Section 4.01(n) after Due Inquiry and (4) any additional disclosures to be provided on an annual basis under the Security Documents and (B) promptly, but in any event within a reasonable time after any officer of CBII or the Borrower obtains knowledge of the occurrence of an event that could reasonably be expected to result in a Material Adverse Effect on any of the Principal Trademarks or the Trademark Licenses, give the Administrative Agent notice of the occurrence of any such event;
(vii) (A) As soon as available and in no event later than 120 days after the close of each fiscal year of CBII, a written supplement to Schedule 4.01(q) (setting forth each of the US Subsidiaries, each of the Significant Subsidiaries and each of the De Minimis US Subsidiaries, its jurisdiction of organization, the classes of its Equity Securities, the number of shares of each such class issued and outstanding, the percentages of shares of each such class owned directly or indirectly by CBII or the Borrower and whether CBII or the Borrower owns such shares directly or, if not, the CBII Entities that own such shares and the number of shares and percentages of shares of each such class owned directly or indirectly by such CBII Entities) and (B) promptly upon the reasonable request of the Administrative Agent and in no event more often than annually, a current hierarchy report for the CBII Entities, in the form and with the substance of the hierarchy report delivered pursuant to Section 3.01(g)(iii);
(viii) As soon as possible and in no event later than 30 days after any officer or director of any Significant Party knows of the occurrence or existence of (A) any ERISA Event under any Pension Plan or Multiemployer Plan which, either individually or in the aggregate, could reasonably be expected to have a Material Adverse Effect, (B) any actual or threatened litigation, suits, claims, disputes or investigations against any Significant Party involving potential monetary damages or in which injunctive relief or similar relief is sought, which could reasonably be expected to have a Material Adverse Effect, (C) any other event or condition which, either individually or in the aggregate, could reasonably be expected to have a Material Adverse Effect, including any of the following which could reasonably be expected to have a Material Adverse Effect: (1) breach or non-performance of, or any default under, a Contractual Obligation of any Significant Party, (2) any dispute, litigation, investigation, proceeding or suspension between any Significant Party and any Governmental Authority or (3) the commencement of, or any material development in, any litigation or proceeding affecting any Significant Party, including pursuant to any applicable Environmental Laws, or (D) any Default, the statement of the Chief Accounting Officer, Chief Financial Officer, or Treasurer of the Borrower setting forth details of such event, condition or Default and the action which CBII or the Borrower proposes to take with respect thereto. Each notice pursuant to this Section 5.01(a)(viii) shall be accompanied by a statement of an Officer of the Borrower setting forth details of the occurrence referred to therein and stating what action CBII or the Borrower has taken and proposes to take with respect thereto. Each notice pursuant to this Section 5.01(a)(viii) shall describe with particularity any and all provisions of this Agreement or other Credit Document that have been breached;
(ix) In no event later than five Business Days after they are sent, made available or filed, copies of (A) all registration statements and reports filed by any CBII Entities with any securities exchange or the United States Securities and Exchange Commission (including all 10-Q, 10-K and 8-K reports), (B) all reports, proxy statements and Financial Statements sent or made available by CBII to its Equity Securities holders and (C) all press releases and other similar public announcements concerning any material developments in the business of CBII made available by CBII to the public generally; provided that such information, to the extent the Borrower directly or indirectly provides the Administrative Agent with written notice and an appropriate internet link thereto, shall be accessed by Lenders on XXXXX;
(x) As soon as available and in no event later than 30 days after they are filed, copies of all IRS Form 5500 reports for all Pension Plans required to file such form;
(xi) Within the earlier to occur of (i) five days ten (10) Business Days after the Board of Directors approval of the Borrower same by the Board, or CBII shall have publicly announced the earnings for the most recently completed fiscal year of the Borrower or CBII and (ii) 60 sixty (60) days after the end of each fiscal year of Co-Borrowers, and within ten (10) Business Days of any updates or amendments thereto approved by the Borrower Board, (A) annual operating budgets (including income statements, balance sheets and CBIIcash flow statements, during each year when this Agreement is in effect, a forecast by month) for the then-current fiscal year of Co-Borrowers, and (B) annual financial projections for the Borrower Entities and the CBII Entities which includes projected consolidated statement of income for such then-current fiscal year and a projected consolidated statement of cash flows for such fiscal year and projected consolidated balance sheets, statements of income and statements of cash flows (on a quarterly basis for basis), in each case as approved by the Board, together with any related business forecasts used in the preparation of such fiscal year; provided that the parties acknowledge that the information in annual financial projections;
(f) within five (5) Business Days of filing, copies of all periodic and other reports, proxy statements and other materials filed by such forecasts is not compiled or presented in accordance with GAAP and may not necessarily be presented on a basis consistent Co-Borrower and/or any Guarantor with the Borrower’s Financial Statements SEC, any Governmental Authority succeeding to any or all of the functions of the SEC or with any national securities exchange, or distributed to its shareholders, as the case may be. Documents required to be delivered pursuant to Section 5.01(a)the terms hereof (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 on which such Co-Borrower posts such documents, or provides a link thereto, on such Co-Borrower’s website on the internet at such Co-Borrower’s website address; provided, however, such Co-Borrower shall promptly notify Bank in writing (which may be by electronic mail) of the posting of any such documents;
(xiig) As soon as possible within five (5) Business Days of delivery, copies of all statements, reports and in no event later than the later of (A) any of CBII’s or the notices generally made available to each Co-Borrower’s officers security holders or directors learning thereof or (B) five Business Days prior to the occurrence any holders of any event or circumstance (except for asset losses in which case as promptly as is reasonable after such asset loss) that would require a prepayment pursuant to Section 2.06(c), the statement of the Chief Financial Officer, Chief Accounting Officer or Treasurer of the Borrower setting forth the details thereofSubordinated Debt;
(xiiih) As soon as possible and prompt report of any legal actions pending or threatened in no event later than 30 days after the receipt thereof by writing against a Co-Borrower or any Loan Party (or subsequent determination after Due Inquiry by an officer of the Borrower its Subsidiaries that it could reasonably be expected to result in a Material Adverse Effect), a copy of any notice, summons, citations damages or other written communications concerning any actual, alleged, suspected or threatened violation of any Environmental Law costs to such Co-Borrower or any liability of any Loan Party for Environmental Damages that its Subsidiaries of, individually or in any such case could reasonably be expected to result in a Material Adverse Effectthe aggregate, Two Hundred Fifty Thousand Dollars ($250,000) or more;
(xivi) Such other instruments, agreements, certificates, opinions, statements, documents and information relating a written description of any changes to the propertiesbeneficial ownership information set out in Section 13 to each Perfection Certificate in Co-Borrower’s next monthly Compliance Statement. Co-Borrowers understand and acknowledge that Bank relies on such true, operations accurate and up-to-date beneficial ownership information to meet Bank’s regulatory obligations to obtain, verify and record information about the beneficial owners of its legal entity customers; and
(j) promptly, from time to time, such other information regarding Co-Borrowers or condition (financial or otherwise) of the Significant Parties, and compliance by the Significant Parties with the terms of this Agreement and the other Credit any Loan Documents as reasonably requested by Bank. Any submission by a Co-Borrower of a Compliance Statement submitted to the Administrative Agent Financial Statement Repository pursuant to this Section 6.2 or otherwise submitted to Bank shall be deemed to be a representation by Co-Borrowers that (i) as of the date of such Compliance Statement, the information and calculations set forth therein are true, accurate and correct, (ii) as of the end of the compliance period set forth in such submission, Co-Borrowers are in complete compliance with all required covenants except as noted in such Compliance Statement or otherwise disclosed to Bank, (iii) as of the date of such submission, no Events of Default have occurred or are continuing except as noted in such Compliance Statement or otherwise disclosed to Bank, (iv) all representations and warranties other than any representations or warranties that are made as of a specific date in Section 5 remain true and correct in all material respects as of the date of such submission except as noted in such Compliance or otherwise disclosed to Bank, (v) as of the date of such submission, Co-Borrowers and each of their Subsidiaries have timely filed all required tax returns and reports, and Co-Borrowers have timely paid all foreign, federal, state and local taxes, assessments, deposits and contributions owed by Co-Borrowers except as otherwise permitted pursuant to the terms of Section 5.9, and (vi) as of the date of such submission, no Liens have been levied or claims made against any Co-Borrower or any Lender (through the Administrative Agent) may from time to time reasonably request;
(xv) As soon as available and in no event later than five Business Days after any of CBII’s or the Borrower’s officers or directors receive notice or become aware of any actions (including derivative actions), suits, proceedings or investigations that are pending or, to the knowledge of any of CBII’s or the Borrower’s officers or directors, threatened against any Significant Party at law or in equity in any court, arbitration proceeding or before any other Governmental Authority which seek to enjoin, either directly or indirectly, the execution, delivery or performance by any Loan Party of the Credit Documents or the transactions contemplated thereby;
(xvi) As soon as available and in no event later than 120 days after the close of each fiscal year of CBII, a written supplement to Schedule 4.01(w) (setting forth a true and complete listing of all insurance maintained by the Significant Parties);
(xvii) Within 120 days after the close of each fiscal year of CBII, a written supplement disclosing any matters required to update factual matters its Subsidiaries relating to Section 4.01unpaid employee payroll or benefits of which Co-Borrowers have not previously provided written notification to Bank.
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