Items to be Furnished. The Loan Parties shall cause the following to be furnished to Agent, for distribution to each Lender at its respective principal office, as designated by each Lender to Agent and Loan Parties from time to time: (a) Promptly after preparation, and no later than one hundred twenty (120) days after the last day of each fiscal year of the Loan Parties (provided, that, for the fiscal year ending December 31, 2015, the delivery date shall be one hundred eighty (180) days after the last day of such fiscal year), audited financial statements (including statements of income, cash flows and Equityholders’ equity and a balance sheet) showing the consolidated financial condition and results of operations of the Loan Parties as of, and for the year ended on, that last day, accompanied by: (i) the unqualified opinion of a firm of independent certified public accountants acceptable to Lenders (the “Accounting Firm”), based on an audit using generally accepted auditing standards, that the financial statements were prepared in accordance with GAAP and present fairly, in all material respects, the consolidated financial condition and results of operations of the Loan Parties; and (ii) a Compliance Certificate with respect to such financial statements certifying (A) as to the Loan Parties’ compliance with the financial covenants set forth in Section 10 of this Agreement and (B) that such financial statements were prepared in accordance with the Accounting Practices (subject to normal year-end adjustments and the absence of footnote disclosures) and present fairly, in all material respects, the consolidated financial condition and results of operations of the Loan Parties. (b) Promptly after preparation, and no later than thirty (30) days after the last day of each calendar month of the Loan Parties, internally-certified unaudited financial statements (including consolidated statements of income and cash flows and a balance sheet) showing the consolidated financial condition and results of operations of the Loan Parties as of, and for the month, year-to-date and, if applicable, quarter period ended on, that last day. The Loan Parties’ certificate included with the unaudited financial statements will, at a minimum, include a statement that such financial statements were prepared in accordance with the Accounting Practices (subject to normal year-end adjustments and the absence of footnote disclosures) and present fairly, in all material respects, the consolidated financial condition and results of operations of the Loan Parties. (c) Promptly after preparation, and no later than thirty (30) days after the last day of each fiscal quarter of Loan Parties: (i) a management discussion and analysis that includes a discussion and explanation of material variances among (A) the comparison of the Loan Parties’ actual operating results to budget for such fiscal quarter and for the year to date period then ended, (B) the comparison of the Loan Parties’ operating results for such fiscal quarter and for the year to date period then ended to the corresponding periods in the prior year and (C) a comparison of the Loan Parties’ operating results for such fiscal quarter to the immediately preceding fiscal quarter; and (ii) a Compliance Certificate with respect to such financial statements certifying (A) as to the Loan Parties’ compliance with the financial covenants set forth in Section 10 of this Agreement, and (B) that such financial statements (I) were prepared on a basis consistent with the Accounting Practices (subject to normal year-end adjustments and the absence of footnote disclosures), and (II) present fairly, in all material respects, the consolidated financial condition and results of operations of the Loan Parties. (d) Promptly after preparation, and no later than the last day of January of each year (assuming a fiscal year end of December 31), an annual operating plan (with a level of detail consistent with the Projections) for the Loan Parties on a consolidated basis, approved by the Board of Directors of the Company, for the current fiscal year (if delivered in January of such year), that (i) includes a statement of all of the material assumptions on which such plan is based, (ii) includes budgeted monthly balance sheets, income statements and statements of cash flows for such fiscal year, as well as comparisons of such items to the corresponding months in the prior fiscal year, and (iii) integrates sales, gross profits, operating expenses, operating profit and cash flow projections, all prepared on the same basis and in similar detail as that on which operating results are reported (and in the case of cash flow projections, representing management’s good faith estimates of future financial performance based on historical performance), and including plans for personnel, Capital Expenditures and facilities; provided, however, that with respect to fiscal year 2016, the operating plan shall be prepared consistent with the Loan Parties’ historical practices, and include monthly budgeted profit and loss (but not balance sheet) information only. Agent and Lenders acknowledge and agree that such projections are estimates only and that actual financial performance may vary materially from that set forth in such projections. (e) Promptly after preparation, and no later than five (5) Business Days after the Loan Parties’ federal income tax return has been filed, copies of each federal income tax return (and Form K-1’s, if applicable) and to the extent reasonably requested by the Agent, related tax reporting information for each Loan Party for the applicable fiscal year. (f) Promptly after receipt, a copy of each interim or special audit report and management letter issued by independent accountants with respect to any Loan Party or its financial records. (g) Notice, promptly after any Loan Party receives notice of, or otherwise becomes aware of, (i) the institution of any Litigation involving any Loan Party which, if adversely determined, could reasonably be expected to result in a Material Adverse Event, (ii) any other event which could reasonably be expected to result in a Material Adverse Event, (iii) any violation by any Loan Party of ERISA or any Law with respect to an Employee Plan, where there is any reasonable likelihood of the imposition of liability on such Loan Party as a result thereof that could be reasonably expected to result in a Material Adverse Event, or (iv) any Default or Potential Default, specifying the nature thereof and what action, if any, each Loan Party has taken, is taking or proposes to take.
Appears in 3 contracts
Samples: Loan Agreement, Loan Agreement, Loan Agreement (YogaWorks, Inc.)
Items to be Furnished. The Loan Parties Borrowers and Guarantor shall cause the following to be furnished to Agent, for distribution to each Lender at its respective principal office, as designated by each Lender to Agent and Loan Parties from time to timeLender:
(a) Promptly after preparationAs soon as available, and but no later than one hundred twenty (120) 150 days after the last day of each fiscal year of the Loan Parties (providedGuarantor, that, for the fiscal year ending December 31, 2015, the delivery date shall be one hundred eighty (180) days after the last day of such fiscal year), audited financial statements (including statements of income, cash flows and Equityholders’ equity and a balance sheet) Financial Statements showing the consolidated financial condition and results of operations of the Loan Parties Guarantor and its Subsidiaries as of, and for the year ended on, that such last day, accompanied by:
by (i) the unqualified opinion of opinion, without material qualification, by a firm of independent certified public accountants acceptable to Lenders (the “Accounting Firm”)Lender, based on an audit using generally accepted auditing standards, that the financial statements such Financial Statements were prepared in accordance with GAAP and present fairly, in all material respects, fairly the consolidated financial condition and results of operations of the Loan Parties; and
Guarantor and its Subsidiaries, and (ii) a Compliance Financial Report Certificate with respect to such financial statements certifying (A) as to the Loan Parties’ compliance with the financial covenants set forth in Section 10 of this Agreement and (B) that such financial statements were prepared in accordance with the Accounting Practices (subject to normal year-end adjustments and the absence of footnote disclosures) and present fairly, in all material respects, the consolidated financial condition and results of operations of the Loan PartiesFinancial Statements.
(b) Promptly after preparationAs soon as available, and but no later than thirty (30) days after the last day of each calendar month of the Loan Parties, internally-certified unaudited financial statements (including consolidated statements of income and cash flows and a balance sheet) showing the consolidated financial condition and results of operations of the Loan Parties as of, and for the month, year-to-date and, if applicable, quarter period ended on, that last day. The Loan Parties’ certificate included with the unaudited financial statements will, at a minimum, include a statement that such financial statements were prepared in accordance with the Accounting Practices (subject to normal year-end adjustments and the absence of footnote disclosures) and present fairly, in all material respects, the consolidated financial condition and results of operations of the Loan Parties.
(c) Promptly after preparation, and no later than thirty (30) 75 days after the last day of each fiscal quarter of Loan Parties:
Borrowers and Guarantor (i) a management discussion and analysis that includes a discussion and explanation of material variances among (A) Financial Statements showing the comparison of the Loan Parties’ actual operating results to budget for such fiscal quarter and for the year to date period then ended, (B) the comparison of the Loan Parties’ operating results for such fiscal quarter and for the year to date period then ended to the corresponding periods in the prior year and (C) a comparison of the Loan Parties’ operating results for such fiscal quarter to the immediately preceding fiscal quarter; and
(ii) a Compliance Certificate with respect to such financial statements certifying (A) as to the Loan Parties’ compliance with the financial covenants set forth in Section 10 of this Agreement, and (B) that such financial statements (I) were prepared on a basis consistent with the Accounting Practices (subject to normal year-end adjustments and the absence of footnote disclosures), and (II) present fairly, in all material respects, the consolidated financial condition and results of operations of Borrowers and Guarantor as of, and for the Loan Partiesperiod from the beginning of the current fiscal year to, such last day, and a Financial Report Certificate with respect to such Financial Statements, and (ii) a report from each of the Borrowers summarizing the results of their respective Pipeline Systems, in form and substance acceptable to the Lender.
(c) Concurrently with the delivery of each of the Financial Statements referred to in subparagraphs (a) and (b) of this Section 6.3, a certificate of the chief financial officer of Borrowers and Guarantor (i) stating that to the best of such officer’s knowledge, no Default has occurred and is continuing, or if a Default has occurred and is continuing, a statement as to the nature thereof and the action that is proposed to be taken with respect thereto and (ii) showing in reasonable detail the calculations demonstrating compliance with Sections 6.29, 6.30 and 6.31.
(d) Promptly after preparationthe issuance thereof, true copies of any order issued by any Tribunal in any Litigation to which Borrowers or Guarantor are a party, and no later than any press release or other statement made available generally by or on behalf of Borrowers or Guarantor to the last day of January of each year (assuming public, which relate to any facts or circumstances that individually or in the aggregate may have a fiscal year end of December 31), an annual operating plan (with a level of detail consistent with the Projections) for the Loan Parties Material Adverse Effect on a consolidated basis, approved by the Board of Directors any of the Company, for the current fiscal year (if delivered in January of such year), that (i) includes a statement of all of the material assumptions on which such plan is based, (ii) includes budgeted monthly balance sheets, income statements and statements of cash flows for such fiscal year, as well as comparisons of such items to the corresponding months in the prior fiscal year, and (iii) integrates sales, gross profits, operating expenses, operating profit and cash flow projections, all prepared on the same basis and in similar detail as that on which operating results are reported (and in the case of cash flow projections, representing management’s good faith estimates of future financial performance based on historical performance), and including plans for personnel, Capital Expenditures and facilities; provided, however, that with respect to fiscal year 2016, the operating plan shall be prepared consistent with the Loan Parties’ historical practices, and include monthly budgeted profit and loss (but not balance sheet) information only. Agent and Lenders acknowledge and agree that such projections are estimates only and that actual financial performance may vary materially from that set forth in such projectionsBorrowers or Guarantor.
(e) Promptly Notice promptly after preparationBorrowers or Guarantor know or should know of any change in any fact or circumstance represented or warranted in any Loan Document which individually or in the aggregate may have a Material Adverse Effect on any of the Borrowers or Guarantor, or a Default or Potential Default, written notice of the nature thereof and no later than the action Borrowers or Guarantor has taken, is taking, or proposes to take with respect thereto.
(f) A summary, or when requested by Lender, copies, of all material proceedings, hearings or other actions conducted before any Tribunal in respect of the Collateral and the operations of Borrowers or Guarantor in respect thereto which relate to any facts or circumstances that individually or in the aggregate may have a Material Adverse Effect on any of the Borrowers or Guarantor.
(g) As soon as possible and in any event within five (5) Business Days after the Loan Parties’ federal income tax return Borrowers or Guarantor know or should know that any Reportable Event or Prohibited Transaction has been filed, copies of each federal income tax return (and Form K-1’s, if applicable) and to the extent reasonably requested by the Agent, related tax reporting information for each Loan Party for the applicable fiscal year.
(f) Promptly after receipt, a copy of each interim or special audit report and management letter issued by independent accountants occurred with respect to any Loan Party Plan or its that the PBGC, Borrowers or Guarantor have instituted or will institute proceedings under Title IV of ERISA to terminate any Plan, in each case, which would reasonably be expected to have a Material Adverse Effect, a certificate of the chief financial recordsofficer of Borrowers or Guarantor setting forth the details as to such Reportable Event or Prohibited Transaction or Plan termination and the action that Borrowers or Guarantor propose to take with respect thereto.
(gh) NoticeAs soon as possible and in any event within five (5) days after the occurrence thereof, promptly after any Loan Party receives written notice of, or otherwise becomes aware of, (i) the institution of any Litigation involving any Loan Party which, if adversely determined, matter that could reasonably be expected to result in have a Material Adverse EventEffect.
(i) Promptly upon request therefor by Lender, such information (iinot otherwise required to be furnished under the Loan Documents) any other event which could respecting the business affairs, assets, and liabilities of Borrowers or Guarantor and such opinions, certifications, and documents, in addition to those mentioned herein, as Lender may reasonably be expected to result in a Material Adverse Event, (iii) any violation by any Loan Party of ERISA or any Law with respect to an Employee Plan, where there is any reasonable likelihood of the imposition of liability on such Loan Party as a result thereof that could be reasonably expected to result in a Material Adverse Event, or (iv) any Default or Potential Default, specifying the nature thereof and what action, if any, each Loan Party has taken, is taking or proposes to takerequest.
Appears in 3 contracts
Samples: Credit Agreement (Gateway Energy Corp/Ne), Credit Agreement (Gateway Energy Corp/Ne), Credit Agreement (Gateway Energy Corp/Ne)
Items to be Furnished. The Loan Parties Borrower shall cause the following to be furnished to Agent, for distribution to the Administrative Agent and each Lender at its respective principal office, as designated by each Lender to Agent and Loan Parties from time to time:(through the Administrative Agent):
(a) Promptly after preparation, and no later than one hundred twenty (120) 90 days after the last day of each fiscal year of the Loan Parties (providedBorrower, that, for commencing with the fiscal year ending December 31, 20152020, the delivery date shall be one hundred eighty (180) days after the last day of such fiscal year), audited financial statements (including statements of income, cash flows and Equityholders’ equity and a balance sheet) Financial Statements showing the consolidated financial condition and results of operations of the Loan Parties Companies as of, and for the year ended on, that such last day, accompanied by:
by (i) the unqualified opinion of a firm of independent certified public accountants acceptable to Lenders (the “Accounting Firm”)of recognized national standing, based on an audit using generally accepted auditing standards, that the financial statements such Financial Statements were prepared in accordance with GAAP and present fairly, in all material respects, fairly the consolidated financial condition and results of operations of the Loan Parties; and
Companies (and such accountants shall indicate in a letter to the Administrative Agent, that during their audit no Default or Event of Default not already reported was discovered or, if such Default or Event of Default was discovered, the nature and period of existence thereof) and (ii) a Compliance Financial Report Certificate with respect to such financial statements certifying (A) as to the Loan Parties’ compliance with the financial covenants set forth in Section 10 of this Agreement and (B) that such financial statements were prepared in accordance with the Accounting Practices (subject to normal year-end adjustments and the absence of footnote disclosures) and present fairly, in all material respects, the consolidated financial condition and results of operations of the Loan PartiesFinancial Statements.
(b) Promptly after preparation, and no later than thirty (30) 45 days after the last day of each calendar month of the Loan Partiesfirst three quarters of each fiscal year of the Borrower (commencing with the fiscal quarter ending March 31, internally-certified unaudited financial statements 2021), (including consolidated statements of income and cash flows and a balance sheeti) Financial Statements showing the consolidated financial condition and results of operations of the Loan Parties Companies as of, and for the monthperiod from the beginning of the current fiscal year to, year-to-date and, if applicable, quarter period ended on, that such last day. The Loan Parties’ certificate included , and (ii) a Financial Report Certificate with the unaudited financial statements will, at a minimum, include a statement that respect to such financial statements were prepared in accordance with the Accounting Practices (subject to normal year-end adjustments and the absence of footnote disclosures) and present fairly, in all material respects, the consolidated financial condition and results of operations of the Loan PartiesFinancial Statements.
(c) Promptly after preparation, true copies of all regular and no later than thirty periodic reports, proxy statements and filings on Form 8-K furnished by or on behalf of any Company to stockholders generally or filed with the SEC; provided, however, that such reports, proxy statements, filings and other materials required to be delivered pursuant to this clause (30d) days after shall be deemed delivered for purposes of this Agreement when posted to the last day of each fiscal quarter of Loan Parties:
(i) a management discussion and analysis that includes a discussion and explanation of material variances among (A) the comparison website of the Loan Parties’ actual operating results to budget for such fiscal quarter and for Borrower or the year to date period then ended, (B) the comparison website of the Loan Parties’ operating results for SEC and written notice of such fiscal quarter and for the year to date period then ended posting has been delivered to the corresponding periods in the prior year and (C) a comparison Administrative Agent. However, only registration statements covering more than 2% of the Loan Parties’ operating results for such fiscal quarter Borrower’s outstanding shares of common stock shall be required to be furnished unless specifically requested by the immediately preceding fiscal quarter; and
(ii) a Compliance Certificate with respect to such financial statements certifying (A) as to the Loan Parties’ compliance with the financial covenants set forth in Section 10 of this Agreement, and (B) that such financial statements (I) were prepared on a basis consistent with the Accounting Practices (subject to normal year-end adjustments and the absence of footnote disclosures), and (II) present fairly, in all material respects, the consolidated financial condition and results of operations of the Loan PartiesAdministrative Agent.
(d) Promptly after preparation, and no later than the last day of January of each year (assuming a fiscal year end of December 31), an annual operating plan (with a level of detail consistent with the Projections) for the Loan Parties on a consolidated basis, approved by the Board of Directors any Responsible Officer of the CompanyBorrower obtains actual knowledge thereof, for any Event of Default or Default, specifying the current fiscal year nature and extent thereof and the corrective action (if delivered in January of such year), that (iany) includes a statement of all of the material assumptions on which such plan is based, (ii) includes budgeted monthly balance sheets, income statements and statements of cash flows for such fiscal year, as well as comparisons of such items proposed to the corresponding months in the prior fiscal year, and (iii) integrates sales, gross profits, operating expenses, operating profit and cash flow projections, all prepared on the same basis and in similar detail as that on which operating results are reported (and in the case of cash flow projections, representing management’s good faith estimates of future financial performance based on historical performance), and including plans for personnel, Capital Expenditures and facilities; provided, however, that be taken with respect to fiscal year 2016, the operating plan shall be prepared consistent with the Loan Parties’ historical practices, and include monthly budgeted profit and loss (but not balance sheet) information only. Agent and Lenders acknowledge and agree that such projections are estimates only and that actual financial performance may vary materially from that set forth in such projectionsthereto.
(e) Promptly after preparationany Responsible Officer of the Borrower obtains actual knowledge thereof, notice of the filing or commencement of, or any written threat or notice of intention of any person to file or commence, any action, suit or proceeding, whether at law or in equity or by or before any Tribunal or in arbitration, against any Company as to which an adverse determination is reasonably probable and no later than five (5) Business Days after the Loan Parties’ federal income tax return has been filed, copies of each federal income tax return (and Form K-1’swhich, if applicable) and adversely determined, would reasonably be expected to the extent reasonably requested by the Agent, related tax reporting information for each Loan Party for the applicable fiscal yearhave a Material Adverse Effect.
(f) Promptly after receiptany Responsible Officer of the Borrower obtains actual knowledge thereof, notice of any other development specific to any Company that is not a matter of general public knowledge and that has had, or would reasonably be expected to have, a copy of each interim or special audit report and management letter issued by independent accountants with respect to any Loan Party or its financial recordsMaterial Adverse Effect.
(g) Notice, promptly Promptly after any Loan Party receives Responsible Officer of the Borrower obtains actual knowledge thereof, notice of, or otherwise becomes aware of, (i) the institution of any Litigation involving any Loan Party whichERISA Event that, if adversely determinedtogether with all other ERISA Events that have occurred, could would reasonably be expected to result in have a Material Adverse Event, Effect. 52 48429166.1
(iih) any other event which could reasonably be expected to result in a Material Adverse Event, (iii) any violation by any Loan Party of ERISA Promptly upon the Administrative Agent’s or any Law with respect Lender’s reasonable request, such information (not otherwise required to an Employee Planbe furnished under the Loan Papers) respecting the business affairs, where there is assets, and liabilities of any reasonable likelihood of the imposition of liability on such Loan Party as a result thereof that could be reasonably expected Company, and any opinions, certifications, and documents, in addition to result in a Material Adverse Event, or those mentioned herein.
(ivi) any Default or Potential Default, specifying the nature thereof and what action, if any, each Loan Party has taken, is taking or proposes to takeIntentionally Omitted.
Appears in 2 contracts
Samples: Credit Agreement (Qwest Corp), Credit Agreement (Lumen Technologies, Inc.)
Items to be Furnished. The Loan Parties Borrower shall cause the following to be furnished to Agent, Administrative Agent for distribution delivery to each Lender at its respective principal office, as designated by each Lender to Agent and Loan Parties from time to timeLenders:
(a) Promptly after preparation, and no later than one hundred twenty (120) 120 days after the last day of each fiscal year of the Loan Parties (providedeach of Parent and Communications, that, for the fiscal year ending December 31, 2015, the delivery date shall be one hundred eighty (180) days after the last day of such fiscal year), audited financial statements (including statements of income, cash flows and Equityholders’ equity and a balance sheet) Financial Statements showing the consolidated and consolidating financial condition and results of operations calculated separately for each of the Loan Parties (x) Parent and its Subsidiaries and (y) Communications and its Subsidiaries (other than Logix and its Subsidiaries), as of, and for the year ended on, that last such day, each accompanied by:
(i) with respect to the consolidated Financial Statements of Parent and its Subsidiaries and the consolidated and consolidating Financial Statements of Communications and its Subsidiaries, the unqualified opinion of a firm of nationally-recognized independent certified public accountants acceptable to Lenders (the “Accounting Firm”)accountants, based on an audit using generally accepted auditing standards, that such Financial Statements (calculated with respect to Parent and its Subsidiaries or Communications and its Subsidiaries (other than Logix and its Subsidiaries), as the financial statements case may be) were prepared in accordance with GAAP and present fairly, in all material respects, fairly the consolidated financial condition and results of operations of Parent and its Subsidiaries or Communications and its Subsidiaries (other than Logix and its Subsidiaries), as the Loan Partiescase may be;
(ii) any management letter prepared by such accounting firm;
(iii) with respect to the Financial Statements of the Parent and its Subsidiaries, a certificate from such accounting firm to Administrative Agent indicating that during its audit it obtained no knowledge of any Default or Potential Default or, if it obtained such knowledge, the nature and period of existence thereof;
(iv) a letter from such accounting firm addressed to Parent or Communications (as the case may be), with a copy to Administrative Agent, acknowledging that (A) Parent or Communications, as the case may be, plans to provide Administrative Agent with such audited Financial Statements and accompanying audit report, (B) Administrative Agent has informed Parent or Communications, as the case may be, that Administrative Agent and Lenders intend to rely on such firm's audit report accompanying such Financial Statements, and (C) Parent or Communications, as the case may be, intends for Administrative Agent and Lenders to so rely; and
(iiv) a Compliance Certificate with respect to such financial statements certifying (A) as to the Loan Parties’ compliance with the financial covenants set forth in Section 10 of this Agreement and (B) that such financial statements were prepared in accordance with the Accounting Practices (subject to normal year-end adjustments and the absence of footnote disclosures) and present fairly, in all material respects, the consolidated financial condition and results of operations consolidating Financial Statements of the Loan PartiesParent, a Compliance Certificate.
(b) Promptly after preparation, and no later than thirty (30) days after the last day of each calendar month of the Loan Parties, internally-certified unaudited financial statements (including consolidated statements of income and cash flows and a balance sheet) showing the consolidated financial condition and results of operations of the Loan Parties as of, and for the month, year-to-date and, if applicable, quarter period ended on, that last day. The Loan Parties’ certificate included with the unaudited financial statements will, at a minimum, include a statement that such financial statements were prepared in accordance with the Accounting Practices (subject to normal year-end adjustments and the absence of footnote disclosures) and present fairly, in all material respects, the consolidated financial condition and results of operations of the Loan Parties.
(c) Promptly after preparation, and no later than thirty (30) 60 days after the last day of each fiscal quarter of Loan Parties:
(i) a management discussion Parent and analysis that includes a discussion and explanation of material variances among (A) the comparison of the Loan Parties’ actual operating results to budget for such fiscal quarter and for the year to date period then endedBorrower, (B) the comparison of the Loan Parties’ operating results for such fiscal quarter and for the year to date period then ended to the corresponding periods in the prior year and (C) a comparison of the Loan Parties’ operating results for such fiscal quarter to the immediately preceding fiscal quarter; and
(ii) a Compliance Certificate with respect to such financial statements certifying (A) as to the Loan Parties’ compliance with the financial covenants set forth in Section 10 of this Agreement, and (B) that such financial statements (I) were prepared on a basis consistent with the Accounting Practices (subject to normal year-end adjustments and the absence of footnote disclosures), and (II) present fairly, in all material respects, Financial Statements showing the consolidated financial condition and results of operations calculated for the Parent and its Subsidiaries and the Companies for such fiscal quarter and for the period from the beginning of the Loan Partiesthen-current fiscal year to, such last day, accompanied by a Compliance Certificate with respect to such Financial Statements.
(c) Within 60 days after the end of each fiscal quarter of Borrower, a management report, showing for each System results of operations and subscriber counts, discussing the financial results and comparing actual performance results to the Budget for such period, and outlining principal factors affecting performances of each market, all in form and substance satisfactory to Administrative Agent.
(d) Promptly after preparation, and no later than the last day of January On or prior to March 31 of each year (assuming a fiscal year end of December 31)Borrower, an annual operating plan (with a level of detail consistent with the Projections) for the Loan Parties on a consolidated basis, approved by the Board of Directors of the Company, for the current fiscal year (if delivered in January of such year), that (i) includes a statement of all of the material assumptions on which such plan is based, (ii) includes budgeted monthly balance sheets, income statements and statements of cash flows financial Budget for such fiscal year, as well as comparisons of accompanied by a certificate executed by a Responsible Officer, certifying that such items to the corresponding months in the prior fiscal year, and (iii) integrates sales, gross profits, operating expenses, operating profit and cash flow projections, all Budget was prepared on the same basis and in similar detail as that on which operating results are reported (and in the case of cash flow projections, representing management’s good faith estimates of future financial performance by Borrower based on assumptions which, in light of the historical performance)performance of the Companies and their prospects for the future, are realistic and including plans for personnel, Capital Expenditures and facilities; provided, however, that with respect to fiscal year 2016, the operating plan shall be prepared consistent with the Loan Parties’ historical practices, and include monthly budgeted profit and loss (but not balance sheet) information only. Agent and Lenders acknowledge and agree that such projections are estimates only and that actual financial performance may vary materially from that set forth in such projectionsachievable.
(e) Promptly after preparation, and no later than five (5) Business Days after the Loan Parties’ federal income tax return has been filedupon receipt thereof, copies of each federal income tax return (and Form K-1’s, if applicable) and all auditor's annual management letters delivered to the extent reasonably requested by the Agent, related tax reporting information for each Loan Party for the applicable fiscal yearBorrower.
(f) Promptly after receipt, a copy of each interim or special audit report and management letter issued by independent accountants with respect to any Loan Party or its financial records.
(g) Notice, promptly after any Loan Party receives notice of, or otherwise becomes aware of, (i) the institution of any Litigation involving any Loan Party which, if adversely determined, could reasonably be expected to result in a Material Adverse Event, (ii) any other event which could reasonably be expected to result in a Material Adverse Event, (iii) any violation by any Loan Party of ERISA or any Law with respect to an Employee Plan, where there is any reasonable likelihood of the imposition of liability on such Loan Party as a result thereof that could be reasonably expected to result in a Material Adverse Event, or (iv) any Default or Potential Default, specifying the nature thereof and what action, if any, each Loan Party has taken, is taking or proposes to take.
Appears in 2 contracts
Samples: Credit Agreement (Dobson Communications Corp), Credit Agreement (Dobson Sygnet Communications Co)
Items to be Furnished. The Loan Parties Borrower shall cause the following to be furnished to Agent, for distribution to the Administrative Agent and each Lender at its respective principal office, as designated by each Lender to Agent and Loan Parties from time to time:(through the Administrative Agent):
(a) Promptly after preparation, and no later than one hundred twenty (120) 120 days after the last day of each fiscal year of the Loan Parties (providedBorrower, that, for the fiscal year ending December 31, 2015, the delivery date shall be one hundred eighty (180) days after the last day of such fiscal year), audited financial statements (including statements of income, cash flows and Equityholders’ equity and a balance sheet) Financial Statements showing the consolidated financial condition and results of operations of the Loan Parties Companies as of, and for the year ended on, that such last day, accompanied by:
by (i) the unqualified opinion of a KPMG LLP (or another firm of nationally-recognized independent certified public accountants reasonably acceptable to Lenders (the “Accounting Firm”Majority Lenders), based on an audit using generally accepted auditing standards, that the financial statements such Financial Statements were prepared in accordance with GAAP and present fairly, in all material respects, fairly the consolidated financial condition and results of operations of the Loan Parties; and
Companies (and such accountants shall indicate in a letter to the Administrative Agent, that during their audit no Default or Event of Default not already reported was discovered or, if such Default or Event of Default was discovered, the nature and period of existence thereof) and (ii) a Compliance Financial Report Certificate with respect to such financial statements certifying (A) as to the Loan Parties’ compliance with the financial covenants set forth in Section 10 of this Agreement and (B) that such financial statements were prepared in accordance with the Accounting Practices (subject to normal year-end adjustments and the absence of footnote disclosures) and present fairly, in all material respects, the consolidated financial condition and results of operations of the Loan PartiesFinancial Statements.
(b) Promptly after preparation, and no later than thirty (30) 60 days after the last day of each calendar month of the Loan Partiesfirst three quarters of each fiscal year of the Borrower, internally-certified unaudited financial statements (including consolidated statements of income and cash flows and a balance sheeti) Financial Statements showing the consolidated financial condition and results of operations of the Loan Parties Companies as of, and for the monthperiod from the beginning of the current fiscal year to, year-to-date and, if applicable, quarter period ended on, that such last day. The Loan Parties’ certificate included , and (ii) a Financial Report Certificate with the unaudited financial statements will, at a minimum, include a statement that respect to such financial statements were prepared in accordance with the Accounting Practices (subject to normal year-end adjustments and the absence of footnote disclosures) and present fairly, in all material respects, the consolidated financial condition and results of operations of the Loan PartiesFinancial Statements.
(c) Promptly after preparation, preparation (and no later than thirty the later of 15 days (30a) days after such filing is due or (b) after timely filing, if filed with the last day Securities and Exchange Commission), true copies of each fiscal quarter all regular and periodic reports, proxy statements and filings on Form 8-K furnished by or on behalf of Loan Parties:
(i) a management discussion any Company to stockholders generally or filed with the Securities and analysis that includes a discussion and explanation of material variances among (A) the comparison Exchange Commission. However, only registration statements covering more than 2 percent of the Loan Parties’ actual operating results Borrower’s outstanding shares of common stock shall be required to budget for such fiscal quarter and for be furnished unless specifically requested by the year to date period then ended, (B) the comparison of the Loan Parties’ operating results for such fiscal quarter and for the year to date period then ended to the corresponding periods in the prior year and (C) a comparison of the Loan Parties’ operating results for such fiscal quarter to the immediately preceding fiscal quarter; and
(ii) a Compliance Certificate with respect to such financial statements certifying (A) as to the Loan Parties’ compliance with the financial covenants set forth in Section 10 of this Agreement, and (B) that such financial statements (I) were prepared on a basis consistent with the Accounting Practices (subject to normal year-end adjustments and the absence of footnote disclosures), and (II) present fairly, in all material respects, the consolidated financial condition and results of operations of the Loan PartiesAdministrative Agent.
(d) Promptly after preparationupon receipt thereof, and no later than the last day copies of January of each year any notices received from any Tribunal (assuming a fiscal year end of December 31)including, an annual operating plan (with a level of detail consistent with the Projectionswithout limitation, state regulatory agencies) for the Loan Parties on a consolidated basis, approved by the Board of Directors of the Company, for the current fiscal year (if delivered in January of such year), that (i) includes a statement of all of the material assumptions on which such plan is based, (ii) includes budgeted monthly balance sheets, income statements and statements of cash flows for such fiscal year, as well as comparisons of such items relating to the corresponding months in the prior fiscal year, and (iii) integrates sales, gross profits, operating expenses, operating profit and cash flow projections, all prepared on the same basis and in similar detail as that on possible violation or violation of any Law which operating results are reported (and in the case of cash flow projections, representing management’s good faith estimates of future financial performance based on historical performance), and including plans for personnel, Capital Expenditures and facilities; provided, however, that with respect to fiscal year 2016, the operating plan shall be prepared consistent with the Loan Parties’ historical practices, and include monthly budgeted profit and loss (but not balance sheet) information only. Agent and Lenders acknowledge and agree that such projections are estimates only and that actual financial performance may vary materially from that set forth in such projectionsmight have a Material Adverse Effect.
(e) Promptly after preparation, and no later than five (5) Business Days after the Loan Parties’ federal income tax return has been filed, copies of each federal income tax return (and Form K-1’s, if applicable) and to the extent reasonably requested by the Agent, related tax reporting information for each Loan Party for the applicable fiscal year.
(f) Promptly after receipt, a copy of each interim or special audit report and management letter issued by independent accountants with respect to any Loan Party or its financial records.
(g) Notice, promptly after any Loan Party receives notice of, the Borrower knows or otherwise becomes aware has reason to know of, (i) the institution existence of any material Litigation involving any Loan Party which, if adversely determined, could reasonably be expected to result as defined in a Material Adverse EventSection 4.6, (ii) any other event which could reasonably be expected to result material change in a Material Adverse Eventany material fact or circumstance represented or warranted in any Loan Paper, or (iii) any violation by any Loan Party of ERISA or any Law with respect to an Employee Plan, where there is any reasonable likelihood of the imposition of liability on such Loan Party as a result thereof that could be reasonably expected to result in a Material Adverse Event, or (iv) any Default or Potential Event of Default, specifying the nature thereof and what action, if any, each Loan Party action the Borrower or any other Company has taken, is taking taking, or proposes to taketake with respect thereto.
(f) Notice, promptly after the Borrower knows or has reason to know of, a Subsidiary Encumbrance, as defined in Section 7.14(b).
(g) Within 10 days after execution thereof, copies of any supplements, modifications or amendments to the Equity Units documentation.
(h) Promptly upon the Administrative Agent’s or any Lender’s reasonable request, such information (not otherwise required to be furnished under the Loan Papers) respecting the business affairs, assets, and liabilities of any Company, and any opinions, certifications, and documents, in addition to those mentioned herein.
Appears in 2 contracts
Samples: Five Year Revolving Credit Agreement (Centurytel Inc), Five Year Revolving Credit Agreement (Centurytel Inc)
Items to be Furnished. The Loan Parties Borrower shall cause the following to be furnished to Agent, for distribution to each Lender at its respective principal office, as designated by each Lender to Agent and Loan Parties from time to timeLender:
(a) Promptly after preparation, and no later than one hundred twenty (120) days after the last day of With respect to each fiscal year of the Loan Parties (providedCompanies, that, for the fiscal year ending December 31, 2015, the delivery date shall be one hundred eighty (180) days within 5 Business Days after the last day date required to be filed with the Securities and Exchange Commission as part of such fiscal year)the Companies’ periodic reporting, audited financial statements (including statements of income, cash flows and Equityholders’ equity and a balance sheet) Financial Statements showing the consolidated financial condition and results of operations of the Loan Parties Companies as of, and for the year ended on, that last day, accompanied by:
: (iA) the unqualified opinion of a firm of independent certified public accountants acceptable to Lenders (the “Registered Public Accounting Firm”)” (as such term is specified in the Securities Laws) of nationally-recognized standing, based on an audit using generally accepted auditing standardsstandards and applicable Securities Laws, that the financial statements Financial Statements were prepared in accordance with GAAP and present fairly, in all material respects, the consolidated financial condition and results of operations of the Loan Parties; and
Companies, (iiB) any management letter prepared by the accounting firm delivered in connection with its audit, (C) a certificate from the accounting firm to Administrative Agent indicating that during its audit it obtained no knowledge of any Default or Potential Default, or if it obtained knowledge, the nature and period of existence thereof, and (D) a Compliance Certificate with respect to such financial statements certifying (A) as to the Loan Parties’ compliance with the financial covenants set forth in Section 10 of this Agreement and (B) that such financial statements were prepared in accordance with the Accounting Practices (subject to normal year-end adjustments and the absence of footnote disclosures) and present fairly, in all material respects, the consolidated financial condition and results of operations of the Loan PartiesFinancial Statements.
(b) Promptly after preparationWith respect to each fiscal quarter of the Companies (other than the last fiscal quarter of each fiscal year), and no later than thirty (30) days within 5 Business Days after the last day of each calendar month date required to be filed with the Securities and Exchange Commission as part of the Loan PartiesCompanies periodic reportings, internally-certified unaudited financial statements (including consolidated statements of income and cash flows and a balance sheet) Financial Statements showing the consolidated financial condition and results of operations of the Loan Parties as of, and for the month, year-to-date and, if applicable, quarter period ended on, that last day. The Loan Parties’ certificate included with the unaudited financial statements will, at a minimum, include a statement that such financial statements were prepared in accordance with the Accounting Practices (subject to normal year-end adjustments and the absence of footnote disclosures) and present fairly, in all material respects, the consolidated financial condition and results of operations of the Loan Parties.
(c) Promptly after preparation, and no later than thirty (30) days after the last day of each fiscal quarter of Loan Parties:
(i) a management discussion and analysis that includes a discussion and explanation of material variances among (A) the comparison of the Loan Parties’ actual operating results to budget Companies for such fiscal quarter and for the period from the beginning of the current fiscal year to date period then ended, (B) the comparison last day of the Loan Parties’ operating results for such fiscal quarter and for the year to date period then ended to the corresponding periods in the prior year and (C) a comparison of the Loan Parties’ operating results for such fiscal quarter to the immediately preceding fiscal quarter; and
(ii) , accompanied by a Compliance Certificate with respect to such financial statements certifying (A) as to the Loan Parties’ compliance with the financial covenants set forth in Section 10 of this Agreement, and (B) that such financial statements (I) were prepared on a basis consistent with the Accounting Practices (subject to normal year-end adjustments and the absence of footnote disclosures), and (II) present fairly, in all material respects, the consolidated financial condition and results of operations of the Loan PartiesFinancial Statements.
(d) Promptly after preparation, and no later than the last day of January of each year (assuming a fiscal year end of December 31), an annual operating plan (with a level of detail consistent with the Projections) for the Loan Parties on a consolidated basis, approved by the Board of Directors of the Company, for the current fiscal year (if delivered in January of such year), that (i) includes a statement of all of the material assumptions on which such plan is based, (ii) includes budgeted monthly balance sheets, income statements and statements of cash flows for such fiscal year, as well as comparisons of such items to the corresponding months in the prior fiscal year, and (iii) integrates sales, gross profits, operating expenses, operating profit and cash flow projections, all prepared on the same basis and in similar detail as that on which operating results are reported (and in the case of cash flow projections, representing management’s good faith estimates of future financial performance based on historical performance), and including plans for personnel, Capital Expenditures and facilities; provided, however, that with respect to fiscal year 2016, the operating plan shall be prepared consistent with the Loan Parties’ historical practices, and include monthly budgeted profit and loss (but not balance sheet) information only. Agent and Lenders acknowledge and agree that such projections are estimates only and that actual financial performance may vary materially from that set forth in such projections.
(e) Promptly after preparation, and no later than five (5) Business Days after the Loan Parties’ federal income tax return has been filed, copies of each federal income tax return (and Form K-1’s, if applicable) and to the extent reasonably requested by the Agent, related tax reporting information for each Loan Party for the applicable fiscal year.
(fc) Promptly after receipt, a copy of each interim or special audit report report, management letter, and management letter recommendations issued by independent accountants with respect to any Loan Party Company or its financial records.
(gd) Notice, promptly after any Loan Party receives notice ofCompany knows or has reason to know, or otherwise becomes aware of, of (i) the institution existence and status of any Litigation involving any Loan Party whichthat, if determined adversely determinedto any Company, could reasonably would be expected to result in a Material Adverse Event, (ii) any change in any material fact or circumstance represented or warranted by any Restricted Company in connection with any Loan Paper, (iii) the receipt by any Company of notice of any violation or alleged violation of any Environmental Law or ERISA (which individually or collectively with other event which could violations or allegations is reasonably be expected likely to result in constitute a Material Adverse Event), (iii) any violation by any Loan Party of ERISA or any Law with respect to an Employee Plan, where there is any reasonable likelihood of the imposition of liability on such Loan Party as a result thereof that could be reasonably expected to result in a Material Adverse Event, or (iv) any a Default or Potential Default, specifying the nature thereof and what action, if any, each Loan Party has action the Restricted Companies have taken, is taking are taking, or proposes propose to take., (v) any breach or nonperformance of, or default under, a Material Agreement of a Restricted Company that is reasonably likely to result in a Material Adverse Event, (vi) any material change in accounting policies or financial reporting practices by any Restricted Company, (vii) the occurrence of any Internal Control Event, or (viii) the occurrence of any event pursuant to which any “person” or “group” (as such terms are used in Sections 13(d) and 14(d) of the Securities Exchange Act of 1934, but excluding any employee benefit plan of such person or its subsidiaries, and any person or entity acting in its capacity as trustee, agent, or other fiduciary or administrator of any such plan) is granted or otherwise obtains or receives the right to acquire (such right, an “option right”), whether such right is exercisable immediately or only after the passage of time, directly or indirectly, 5% or more of the equity securities of VRI entitled to vote for members of the board of directors or equivalent governing body of VRI on a fully-diluted basis (and taking into account all such securities that such person or group has the right to acquire pursuant to any option right). Each notice pursuant to Section 9.1(d)
Appears in 2 contracts
Samples: Amendment Agreement (Vail Resorts Inc), Credit Agreement (Vail Resorts Inc)
Items to be Furnished. The Loan Parties Borrower shall cause the following to be furnished to Agent, for distribution to each Lender at its respective principal office, as designated by each Lender to the Administrative Agent and Loan Parties from time to timeeach Lender:
(a) Promptly after preparation, and no later than one hundred twenty (120) 120 days after the last day of each fiscal year of the Loan Parties (providedBorrower, that, for the fiscal year ending December 31, 2015, the delivery date shall be one hundred eighty (180) days after the last day of such fiscal year), audited financial statements (including statements of income, cash flows and Equityholders’ equity and a balance sheet) Financial Statements showing the consolidated financial condition and results of operations of the Loan Parties Companies as of, and for the year ended on, that such last day, accompanied by:
by (i) the unqualified opinion of a KPMG LLP (or another firm of nationally-recognized independent certified public accountants reasonably acceptable to Lenders (the “Accounting Firm”Majority Lenders), based on an audit using generally accepted auditing standards, that the financial statements such Financial Statements were prepared in accordance with GAAP and present fairly, in all material respects, fairly the consolidated financial condition and results of operations of the Loan Parties; and
Companies (and such accountants shall indicate in a letter to the Administrative Agent, that during their audit no Default or Event of Default not already reported was discovered or, if such Default or Event of Default was discovered, the nature and period of existence thereof) and (ii) a Compliance Financial Report Certificate with respect to such financial statements certifying (A) as to the Loan Parties’ compliance with the financial covenants set forth in Section 10 of this Agreement and (B) that such financial statements were prepared in accordance with the Accounting Practices (subject to normal year-end adjustments and the absence of footnote disclosures) and present fairly, in all material respects, the consolidated financial condition and results of operations of the Loan PartiesFinancial Statements.
(b) Promptly after preparation, and no later than thirty (30) 60 days after the last day of each calendar month of the Loan Partiesfirst three quarters of each fiscal year of the Borrower, internally-certified unaudited financial statements (including consolidated statements of income and cash flows and a balance sheeti) Financial Statements showing the consolidated financial condition and results of operations of the Loan Parties Companies as of, and for the monthperiod from the beginning of the current fiscal year to, year-to-date and, if applicable, quarter period ended on, that such last day. The Loan Parties’ certificate included , and (ii) a Financial Report Certificate with the unaudited financial statements will, at a minimum, include a statement that respect to such financial statements were prepared in accordance with the Accounting Practices (subject to normal year-end adjustments and the absence of footnote disclosures) and present fairly, in all material respects, the consolidated financial condition and results of operations of the Loan PartiesFinancial Statements.
(c) Promptly after preparation, preparation (and no later than thirty the later of 15 days (30a) days after such filing is due or (b) after timely filing, if filed with the last day Securities and Exchange Commission), true copies of each fiscal quarter all regular and periodic reports, statements, documents, plans, and other written communications furnished by or on behalf of Loan Parties:
(i) a management discussion any Company to stockholders or to the Securities and analysis that includes a discussion and explanation of material variances among (A) the comparison Exchange Commission. However, only registration statements covering more than 2 percent of the Loan Parties’ actual operating results Borrower's outstanding shares of common stock shall be required to budget for such fiscal quarter and for be furnished unless specifically requested by the year to date period then ended, (B) the comparison of the Loan Parties’ operating results for such fiscal quarter and for the year to date period then ended to the corresponding periods in the prior year and (C) a comparison of the Loan Parties’ operating results for such fiscal quarter to the immediately preceding fiscal quarter; and
(ii) a Compliance Certificate with respect to such financial statements certifying (A) as to the Loan Parties’ compliance with the financial covenants set forth in Section 10 of this Agreement, and (B) that such financial statements (I) were prepared on a basis consistent with the Accounting Practices (subject to normal year-end adjustments and the absence of footnote disclosures), and (II) present fairly, in all material respects, the consolidated financial condition and results of operations of the Loan PartiesAdministrative Agent.
(d) Promptly after preparationupon receipt thereof, and no later than the last day copies of January of each year any notices received from any Tribunal (assuming a fiscal year end of December 31)including, an annual operating plan (with a level of detail consistent with the Projectionswithout limitation, state regulatory agencies) for the Loan Parties on a consolidated basis, approved by the Board of Directors of the Company, for the current fiscal year (if delivered in January of such year), that (i) includes a statement of all of the material assumptions on which such plan is based, (ii) includes budgeted monthly balance sheets, income statements and statements of cash flows for such fiscal year, as well as comparisons of such items relating to the corresponding months in the prior fiscal year, and (iii) integrates sales, gross profits, operating expenses, operating profit and cash flow projections, all prepared on the same basis and in similar detail as that on possible violation or violation of any Law which operating results are reported (and in the case of cash flow projections, representing management’s good faith estimates of future financial performance based on historical performance), and including plans for personnel, Capital Expenditures and facilities; provided, however, that with respect to fiscal year 2016, the operating plan shall be prepared consistent with the Loan Parties’ historical practices, and include monthly budgeted profit and loss (but not balance sheet) information only. Agent and Lenders acknowledge and agree that such projections are estimates only and that actual financial performance may vary materially from that set forth in such projectionsmight have a Material Adverse Effect.
(e) Promptly after preparation, and no later than five (5) Business Days after the Loan Parties’ federal income tax return has been filed, copies of each federal income tax return (and Form K-1’s, if applicable) and to the extent reasonably requested by the Agent, related tax reporting information for each Loan Party for the applicable fiscal year.
(f) Promptly after receipt, a copy of each interim or special audit report and management letter issued by independent accountants with respect to any Loan Party or its financial records.
(g) Notice, promptly after any Loan Party receives notice of, the Borrower knows or otherwise becomes aware has reason to know of, (i) the institution existence of any material Litigation involving any Loan Party which, if adversely determined, could reasonably be expected to result as defined in a Material Adverse EventSection 3.6, (ii) any other event which could reasonably be expected to result material change in a Material Adverse Eventany material fact or circumstance represented or warranted in any Loan Paper, or (iii) any violation by any Loan Party of ERISA or any Law with respect to an Employee Plan, where there is any reasonable likelihood of the imposition of liability on such Loan Party as a result thereof that could be reasonably expected to result in a Material Adverse Event, or (iv) any Default or Potential Event of Default, specifying the nature thereof and what action, if any, each Loan Party action the Borrower or any other Company has taken, is taking taking, or proposes to taketake with respect thereto.
(f) Notice, promptly after the Borrower knows or has reason to know of, a Subsidiary Encumbrance, as defined in Section 6.14(c).
(g) Within 10 days after execution thereof, copies of any supplements, modifications or amendments to the Equity Units documentation.
(h) Promptly upon the Administrative Agent's or any Lender's reasonable request, such information (not otherwise required to be furnished under the Loan Papers) respecting the business affairs, assets, and liabilities of any Company, and any opinions, certifications, and documents, in addition to those mentioned herein.
Appears in 2 contracts
Samples: Revolving Credit Agreement (Centurytel Inc), 364 Day Revolving Credit Agreement (Centurytel Inc)
Items to be Furnished. The Loan Parties Borrower shall cause the following to be furnished to Agent, for distribution to the Administrative Agent and each Lender at its respective principal office, as designated by each Lender to Agent and Loan Parties from time to time:(through the Administrative Agent):
(a) Promptly after preparation, and no later than one hundred twenty (120) 90 days after the last day of each fiscal year of the Loan Parties (providedBorrower, that, for commencing with the fiscal year ending December 31, 20152020, the delivery date shall be one hundred eighty (180) days after the last day of such fiscal year), audited financial statements (including statements of income, cash flows and Equityholders’ equity and a balance sheet) Financial Statements showing the consolidated financial condition and results of operations of the Loan Parties Companies as of, and for the year ended on, that such last day, accompanied by:
by (i) the unqualified opinion of a firm of independent certified public accountants acceptable to Lenders (the “Accounting Firm”)of recognized national standing, based on an audit using generally accepted auditing standards, that the financial statements such Financial Statements were prepared in accordance with GAAP and present fairly, in all material respects, fairly the consolidated financial condition and results of operations of the Loan Parties; and
Companies (and such accountants shall indicate in a letter to the Administrative Agent, that during their audit no Default or Event of Default not already reported was discovered or, if such Default or Event of Default was discovered, the nature and period of existence thereof) and (ii) a Compliance Financial Report Certificate with respect to such financial statements certifying (A) as to the Loan Parties’ compliance with the financial covenants set forth in Section 10 of this Agreement and (B) that such financial statements were prepared in accordance with the Accounting Practices (subject to normal year-end adjustments and the absence of footnote disclosures) and present fairly, in all material respects, the consolidated financial condition and results of operations of the Loan PartiesFinancial Statements.
(b) Promptly after preparation, and no later than thirty (30) 45 days after the last day of each calendar month of the Loan Partiesfirst three quarters of each fiscal year of the Borrower (commencing with the fiscal quarter ending March 31, internally-certified unaudited financial statements 2021), (including consolidated statements of income and cash flows and a balance sheeti) Financial Statements showing the consolidated financial condition and results of operations of the Loan Parties Companies as of, and for the monthperiod from the beginning of the current fiscal year to, year-to-date and, if applicable, quarter period ended on, that such last day. The Loan Parties’ certificate included , and (ii) a Financial Report Certificate with the unaudited financial statements will, at a minimum, include a statement that respect to such financial statements were prepared in accordance with the Accounting Practices (subject to normal year-end adjustments and the absence of footnote disclosures) and present fairly, in all material respects, the consolidated financial condition and results of operations of the Loan PartiesFinancial Statements.
(c) Promptly after preparation, true copies of all regular and no later than thirty periodic reports, proxy statements and filings on Form 8-K furnished by or on behalf of any Company to stockholders generally or filed with the SEC; provided, however, that such reports, proxy statements, filings and other materials required to be delivered pursuant to this clause (30d) days after shall be deemed delivered for purposes of this Agreement when posted to the last day of each fiscal quarter of Loan Parties:
(i) a management discussion and analysis that includes a discussion and explanation of material variances among (A) the comparison website of the Loan Parties’ actual operating results to budget for such fiscal quarter and for Borrower or the year to date period then ended, (B) the comparison website of the Loan Parties’ operating results for SEC and written notice of such fiscal quarter and for the year to date period then ended posting has been delivered to the corresponding periods in the prior year and (C) a comparison Administrative Agent. However, only registration statements covering more than 2% of the Loan Parties’ operating results for such fiscal quarter Borrower’s outstanding shares of common stock shall be required to be furnished unless specifically requested by the immediately preceding fiscal quarter; and
(ii) a Compliance Certificate with respect to such financial statements certifying (A) as to the Loan Parties’ compliance with the financial covenants set forth in Section 10 of this Agreement, and (B) that such financial statements (I) were prepared on a basis consistent with the Accounting Practices (subject to normal year-end adjustments and the absence of footnote disclosures), and (II) present fairly, in all material respects, the consolidated financial condition and results of operations of the Loan PartiesAdministrative Agent.
(d) Promptly after preparation, and no later than the last day of January of each year (assuming a fiscal year end of December 31), an annual operating plan (with a level of detail consistent with the Projections) for the Loan Parties on a consolidated basis, approved by the Board of Directors any Responsible Officer of the CompanyBorrower obtains actual knowledge thereof, for any Event of Default or Default, specifying the current fiscal year nature and extent thereof and the corrective action (if delivered in January of such year), that (iany) includes a statement of all of the material assumptions on which such plan is based, (ii) includes budgeted monthly balance sheets, income statements and statements of cash flows for such fiscal year, as well as comparisons of such items proposed to the corresponding months in the prior fiscal year, and (iii) integrates sales, gross profits, operating expenses, operating profit and cash flow projections, all prepared on the same basis and in similar detail as that on which operating results are reported (and in the case of cash flow projections, representing management’s good faith estimates of future financial performance based on historical performance), and including plans for personnel, Capital Expenditures and facilities; provided, however, that be taken with respect to fiscal year 2016, the operating plan shall be prepared consistent with the Loan Parties’ historical practices, and include monthly budgeted profit and loss (but not balance sheet) information only. Agent and Lenders acknowledge and agree that such projections are estimates only and that actual financial performance may vary materially from that set forth in such projectionsthereto.
(e) Promptly after preparationany Responsible Officer of the Borrower obtains actual knowledge thereof, notice of the filing or commencement of, or any written threat or notice of intention of any person to file or commence, any action, suit or proceeding, whether at law or in equity or by or before any Tribunal or in arbitration, against any Company as to which an adverse determination is reasonably probable and no later than five (5) Business Days after the Loan Parties’ federal income tax return has been filed, copies of each federal income tax return (and Form K-1’swhich, if applicable) and adversely determined, would reasonably be expected to the extent reasonably requested by the Agent, related tax reporting information for each Loan Party for the applicable fiscal yearhave a Material Adverse Effect.
(f) Promptly after receiptany Responsible Officer of the Borrower obtains actual knowledge thereof, notice of any other development specific to any Company that is not a matter of general public knowledge and that has had, or would reasonably be expected to have, a copy of each interim or special audit report and management letter issued by independent accountants with respect to any Loan Party or its financial recordsMaterial Adverse Effect.
(g) Notice, promptly Promptly after any Loan Party receives Responsible Officer of the Borrower obtains actual knowledge thereof, notice of, or otherwise becomes aware of, (i) the institution of any Litigation involving any Loan Party whichERISA Event that, if adversely determinedtogether with all other ERISA Events that have occurred, could would reasonably be expected to result in have a Material Adverse Event, Effect.
(iih) any other event which could reasonably be expected to result in a Material Adverse Event, (iii) any violation by any Loan Party of ERISA Promptly upon the Administrative Agent’s or any Law with respect Lender’s reasonable request, such information (not otherwise required to an Employee Planbe furnished under the Loan Papers) respecting the business affairs, where there is assets, and liabilities of any reasonable likelihood of the imposition of liability on such Loan Party as a result thereof that could be reasonably expected Company, and any opinions, certifications, and documents, in addition to result in a Material Adverse Event, or those mentioned herein.
(ivi) any Default or Potential Default, specifying the nature thereof and what action, if any, each Loan Party has taken, is taking or proposes to takeIntentionally Omitted.
Appears in 2 contracts
Samples: Credit Agreement (Qwest Corp), Credit Agreement (Lumen Technologies, Inc.)
Items to be Furnished. The Loan Parties Borrower shall cause the following to be furnished to Agent, for distribution to each Lender at its respective principal office, as designated by each Lender to Agent and Loan Parties from time to timeLender:
(a) Promptly after preparation, and no later than one hundred twenty (120) days after the last day of With respect to each fiscal year of the Loan Parties (providedCompanies, that, for the fiscal year ending December 31, 2015, the delivery date shall be one hundred eighty (180) days within 5 Business Days after the last day date required to be filed with the Securities and Exchange Commission as part of such fiscal year)the Companies’ periodic reporting, audited financial statements (including statements of income, cash flows and Equityholders’ equity and a balance sheet) Financial Statements showing the consolidated financial condition and results of operations of the Loan Parties Companies as of, and for the year ended on, that last day, accompanied by:
: (iA) the unqualified opinion of a firm of independent certified public accountants acceptable to Lenders (the “Registered Public Accounting Firm”)” (as such term is specified in the Securities Laws) of nationally-recognized standing, based on an audit using generally accepted auditing standardsstandards and applicable Securities Laws, that the financial statements Financial Statements were prepared in accordance with GAAP and present fairly, in all material respects, the consolidated financial condition and results of operations of the Loan PartiesCompanies; and
provided, that such opinion may include appropriate qualifications related to any actual or potential impact, direct or indirect, arising as a result of or related to (iior could reasonably be expected to arise out of or result from) COVID-19 on the Companies’ consolidated financial condition, (B) any management letter prepared by the accounting firm delivered in connection with its audit, (C) a certificate from the accounting firm to Administrative Agent indicating that during its audit it obtained no knowledge of any Default or Potential Default, or if it obtained knowledge, the nature and period of existence thereof, and (D) a Compliance Certificate with respect to such financial statements certifying (A) as to the Loan Parties’ compliance with the financial covenants set forth in Section 10 of this Agreement and (B) that such financial statements were prepared in accordance with the Accounting Practices (subject to normal year-end adjustments and the absence of footnote disclosures) and present fairly, in all material respects, the consolidated financial condition and results of operations of the Loan PartiesFinancial Statements.
(b) Promptly after preparationWith respect to each fiscal quarter of the Companies (other than the last fiscal quarter of each fiscal year), and no later than thirty (30) days within 5 Business Days after the last day of each calendar month date required to be filed with the Securities and Exchange Commission as part of the Loan PartiesCompanies periodic reportings, internally-certified unaudited financial statements (including consolidated statements of income and cash flows and a balance sheet) Financial Statements showing the consolidated financial condition and results of operations of the Loan Parties as of, and for the month, year-to-date and, if applicable, quarter period ended on, that last day. The Loan Parties’ certificate included with the unaudited financial statements will, at a minimum, include a statement that such financial statements were prepared in accordance with the Accounting Practices (subject to normal year-end adjustments and the absence of footnote disclosures) and present fairly, in all material respects, the consolidated financial condition and results of operations of the Loan Parties.
(c) Promptly after preparation, and no later than thirty (30) days after the last day of each fiscal quarter of Loan Parties:
(i) a management discussion and analysis that includes a discussion and explanation of material variances among (A) the comparison of the Loan Parties’ actual operating results to budget Companies for such fiscal quarter and for the period from the beginning of the current fiscal year to date period then ended, (B) the comparison last day of the Loan Parties’ operating results for such fiscal quarter and for the year to date period then ended to the corresponding periods in the prior year and (C) a comparison of the Loan Parties’ operating results for such fiscal quarter to the immediately preceding fiscal quarter; and
(ii) , accompanied by a Compliance Certificate with respect to the Financial Statements; provided that during the Temporary Waiver Period, Borrower shall include in such financial statements certifying (A) as to the Loan Parties’ compliance with Compliance Certificate, for informational purposes only, calculations of the financial covenants set forth in Section 10 of this Agreement, and (B) that such financial statements (I) were prepared on a basis consistent with the Accounting Practices (subject to normal year-end adjustments and the absence of footnote disclosures), and (II) present fairly, in all material respects, the consolidated financial condition and results of operations of the Loan Parties11.
(d) Promptly after preparation, and no later than the last day of January of each year (assuming a fiscal year end of December 31), an annual operating plan (with a level of detail consistent with the Projections) for the Loan Parties on a consolidated basis, approved by the Board of Directors of the Company, for the current fiscal year (if delivered in January of such year), that (i) includes a statement of all of the material assumptions on which such plan is based, (ii) includes budgeted monthly balance sheets, income statements and statements of cash flows for such fiscal year, as well as comparisons of such items to the corresponding months in the prior fiscal year, and (iii) integrates sales, gross profits, operating expenses, operating profit and cash flow projections, all prepared on the same basis and in similar detail as that on which operating results are reported (and in the case of cash flow projections, representing management’s good faith estimates of future financial performance based on historical performance), and including plans for personnel, Capital Expenditures and facilities; provided, however, that with respect to fiscal year 2016, the operating plan shall be prepared consistent with the Loan Parties’ historical practices, and include monthly budgeted profit and loss (but not balance sheet) information only. Agent and Lenders acknowledge and agree that such projections are estimates only and that actual financial performance may vary materially from that set forth in such projections.
(e) Promptly after preparation, and no later than five (5) Business Days after the Loan Parties’ federal income tax return has been filed, copies of each federal income tax return (and Form K-1’s, if applicable) and to the extent reasonably requested by the Agent, related tax reporting information for each Loan Party for the applicable fiscal year.
(fc) Promptly after receipt, a copy of each interim or special audit report report, management letter, and management letter recommendations issued by independent accountants with respect to any Loan Party Company or its financial records.
(gd) Notice, promptly after any Loan Party receives notice ofCompany knows or has reason to know, or otherwise becomes aware of, of (i) the institution existence and status of any Litigation involving any Loan Party whichthat, if determined adversely determinedto any Company, could reasonably would be expected to result in a Material Adverse Event, (ii) any change in any material fact or circumstance represented or warranted by any Restricted Company in connection with any Loan Paper, (iii) the receipt by any Company of notice of any violation or alleged violation of any Environmental Law or ERISA (which individually or collectively with other event which could violations or allegations is reasonably be expected likely to result in constitute a Material Adverse Event), (iii) any violation by any Loan Party of ERISA or any Law with respect to an Employee Plan, where there is any reasonable likelihood of the imposition of liability on such Loan Party as a result thereof that could be reasonably expected to result in a Material Adverse Event, or (iv) any a Default or Potential Default, specifying the nature thereof and what action, if any, each Loan Party has action the Restricted Companies have taken, is taking are taking, or proposes propose to take., (v) any breach or nonperformance of, or default under, a Material Agreement of a Restricted Company that is reasonably likely to result in a Material Adverse Event, (vi) any material change in accounting policies or financial reporting practices by any Restricted Company, (vii) the occurrence of any Internal Control Event, or (viii) the occurrence of any event pursuant to which any “person” or “group” (as such terms are used in Sections 13(d) and 14(d) of the Securities Exchange Act of 1934, but excluding any employee benefit plan of such person or its subsidiaries, and any person or entity acting in its capacity as trustee, agent, or other fiduciary or administrator of any such plan) is granted or otherwise obtains or receives the right to acquire (such right, an “option right”), whether such right is exercisable immediately or only after the passage of time, directly or indirectly, 5% or more of the equity securities of VRI entitled to vote for members of the board of directors or equivalent governing body of VRI on a fully-diluted basis (and taking into account all such securities that such person or group has the right to acquire pursuant to any option right). Each notice pursuant to Section 9.1(d)
Appears in 2 contracts
Samples: Credit Agreement (Vail Resorts Inc), Credit Agreement (Vail Resorts Inc)
Items to be Furnished. The Loan Parties Borrower shall cause the following to be furnished to Agent, for distribution to each Lender at its respective principal office, as designated by each Lender to Agent and Loan Parties from time to time:
(a) Promptly after preparation, and no later than one hundred twenty (120) 120 days after the last day of each fiscal year of the Loan Parties (providedBorrower, that, for the fiscal year ending December 31, 2015, the delivery date shall be one hundred eighty (180) days after the last day of such fiscal year), audited financial statements (including statements of income, cash flows and Equityholders’ equity and a balance sheet) Financial Statements showing the consolidated financial condition and results of operations of the Loan Parties Companies as of, and for the year ended on, that last day, accompanied by:
(i) the unqualified opinion of a firm of nationally-recognized independent certified public accountants acceptable to Lenders (the “Accounting Firm”)accountants, based on an audit using generally accepted auditing standards, that the financial statements Financial Statements were prepared in accordance with GAAP and present fairly, in all material respects, the consolidated financial condition and results of operations of the Loan Parties; Companies,
(ii) any management letter prepared by the accounting firm delivered in connection with its audit, and
(iiiii) a Compliance Certificate with respect to such financial statements certifying (A) as to the Loan Parties’ compliance with the financial covenants set forth in Section 10 of this Agreement and (B) that such financial statements were prepared in accordance with the Accounting Practices (subject to normal year-end adjustments and the absence of footnote disclosures) and present fairly, in all material respects, the consolidated financial condition and results of operations of the Loan PartiesFinancial Statements.
(b) Promptly after preparation, and no later than thirty (30) 45 days after the last day of each calendar month fiscal quarter of the Loan PartiesBorrower, internally-certified unaudited financial statements (including consolidated statements of income and cash flows and a balance sheet) Financial Statements showing the consolidated financial condition and results of operations of the Loan Parties as of, and Companies for the month, year-to-date and, if applicable, quarter period ended on, that last day. The Loan Parties’ certificate included with the unaudited financial statements will, at a minimum, include a statement that such financial statements were prepared in accordance with the Accounting Practices (subject to normal year-end adjustments and the absence of footnote disclosures) and present fairly, in all material respects, the consolidated financial condition and results of operations of the Loan Parties.
(c) Promptly after preparation, and no later than thirty (30) days after the last day of each fiscal quarter of Loan Parties:
(i) a management discussion and analysis that includes a discussion and explanation of material variances among (A) the comparison of the Loan Parties’ actual operating results to budget for such fiscal quarter and for the period from the beginning of the current fiscal year to date period then ended, (B) the comparison last day of the Loan Parties’ operating results for such fiscal quarter and for the year to date period then ended to the corresponding periods in the prior year and (C) a comparison of the Loan Parties’ operating results for such fiscal quarter to the immediately preceding fiscal quarter; and
(ii) , accompanied by a Compliance Certificate with respect to such financial statements certifying (A) as to the Loan Parties’ compliance with the financial covenants set forth in Section 10 of this Agreement, and (B) that such financial statements (I) were prepared on a basis consistent with the Accounting Practices (subject to normal year-end adjustments and the absence of footnote disclosures), and (II) present fairly, in all material respects, the consolidated financial condition and results of operations of the Loan PartiesFinancial Statements.
(d) Promptly after preparation, and no later than the last day of January of each year (assuming a fiscal year end of December 31), an annual operating plan (with a level of detail consistent with the Projections) for the Loan Parties on a consolidated basis, approved by the Board of Directors of the Company, for the current fiscal year (if delivered in January of such year), that (i) includes a statement of all of the material assumptions on which such plan is based, (ii) includes budgeted monthly balance sheets, income statements and statements of cash flows for such fiscal year, as well as comparisons of such items to the corresponding months in the prior fiscal year, and (iii) integrates sales, gross profits, operating expenses, operating profit and cash flow projections, all prepared on the same basis and in similar detail as that on which operating results are reported (and in the case of cash flow projections, representing management’s good faith estimates of future financial performance based on historical performance), and including plans for personnel, Capital Expenditures and facilities; provided, however, that with respect to fiscal year 2016, the operating plan shall be prepared consistent with the Loan Parties’ historical practices, and include monthly budgeted profit and loss (but not balance sheet) information only. Agent and Lenders acknowledge and agree that such projections are estimates only and that actual financial performance may vary materially from that set forth in such projections.
(e) Promptly after preparation, and no later than five (5) Business Days after the Loan Parties’ federal income tax return has been filed, copies of each federal income tax return (and Form K-1’s, if applicable) and to the extent reasonably requested by the Agent, related tax reporting information for each Loan Party for the applicable fiscal year.
(fc) Promptly after receipt, a copy of each interim or special audit report and management letter issued by independent accountants with respect to any Loan Party Company or its financial records.
(gd) Notice, promptly (and, in any event, within five Business Days) after any Loan Party receives notice ofBorrower knows or has reason to know, or otherwise becomes aware of, of (i) the institution existence and status of any Litigation involving any Loan Party whichthat, if determined adversely determinedto any Company, could reasonably would be expected to result in a Material Adverse Event, (ii) any other event which could reasonably be expected to result change in a Material Adverse Eventany material fact or circumstance represented or warranted by any Company in any Loan Document, (iii) the receipt by any Company of notice of any violation by any Loan Party or alleged violation of ERISA or any Environmental Law with respect or of any condition which, under any applicable Environmental Law, could give rise to an Employee Planliability or impair the saleable value of any real property now or previously owned, where there is leased or used by any reasonable likelihood of the imposition of liability on such Loan Party as a result thereof that could be reasonably expected to result in a Material Adverse EventCompany, or (iv) any a Default, Potential Default or Potential DefaultMaterial Adverse Event, in each case specifying the nature thereof and what action, if any, each Loan Party has action the Companies have taken, is taking are taking, or proposes propose to take.
(e) Promptly (and, in any event, within 10 days) after filing or sending, copies of all material reports or filings filed by or on behalf of any Company with any Tribunal (including, without limitation, copies of each Form 10-K, Form 10-Q and Form S-8 filed by or on behalf of any Company with the Securities and Exchange Commission) or sent to its stockholders.
(f) Promptly after preparation, and no later than 30 days after the last day of each fiscal quarter of Borrower, copies of all Phase I Environmental Site Assessment Reports obtained by the Companies in connection with acquisitions of interests in real property (or acquisitions of Persons owning interests in real property) closed during such fiscal quarter.
(g) Promptly upon reasonable request by Agent or Determining Lenders (through Agent), information (not otherwise required to be furnished under the Loan Documents) respecting the business affairs, assets and liabilities of the Companies and opinions, certifications and documents in addition to those mentioned in this Agreement.
Appears in 2 contracts
Samples: Credit Agreement (Nci Building Systems Inc), Credit Agreement (Nci Building Systems Inc)
Items to be Furnished. The Loan Parties Borrower shall cause the following to be furnished to Agent, Administrative Agent (with sufficient copies for distribution to each Lender at its respective principal office, as designated by each Lender to Agent and Loan Parties from time to time:Lender):
(a) Promptly after preparation, and no later than one hundred twenty (120100) days after the last day of each fiscal year of the Loan Parties (providedBorrower, that, for the fiscal year ending December 31, 2015, the delivery date shall be one hundred eighty (180) days after the last day of such fiscal year), audited financial statements (including statements of income, cash flows and Equityholders’ equity and a balance sheet) Financial Statements showing the consolidated financial condition and results of operations of the Loan Parties Companies as of, and for the year ended on, that last day, accompanied by:
(i) the unqualified opinion of a the firm of Xxxxxx Xxxxxxxx & Co. or another firm of nationally-recognized independent certified public accountants acceptable to Lenders (the “Accounting Firm”)accountants, based on an audit using generally accepted auditing standards, that the financial statements Financial Statements were prepared in accordance with GAAP and present fairly, in all material respects, the consolidated financial condition and results of operations of the Loan Parties; andCompanies;
(ii) any management letter prepared by the accounting firm delivered in connection with its audit;
(iii) a certificate from the accounting firm to Administrative Agent indicating that during its audit it obtained no knowledge of any Default or Potential Default or, if it obtained knowledge, the nature and period of existence thereof;
(iv) a Compliance Certificate with respect to such financial statements certifying the Financial Statements; and
(Av) as to a certificate listing the Loan Parties’ Properties in the Pool and Operating Sub-Pool, together with a computation in reasonable detail of the Historical Values and the Implied Value and showing Borrower's compliance with the financial covenants set forth in Section 10 of this Agreement Sections 7.15 and (B) that such financial statements were prepared in accordance with the Accounting Practices (subject to normal year-end adjustments and the absence of footnote disclosures) and present fairly, in all material respects, the consolidated financial condition and results of operations of the Loan Parties8.14.
(b) Promptly after preparation, and no later than thirty fifty (3050) days after the last day of each calendar month fiscal quarter (except the last) of the Loan PartiesBorrower, internally-certified unaudited financial statements (including consolidated statements of income and cash flows and a balance sheeti) Financial Statements showing the consolidated financial condition and results of operations of the Loan Parties as of, and Companies for the month, year-to-date and, if applicable, quarter period ended on, that last day. The Loan Parties’ certificate included with the unaudited financial statements will, at a minimum, include a statement that such financial statements were prepared in accordance with the Accounting Practices (subject to normal year-end adjustments and the absence of footnote disclosures) and present fairly, in all material respects, the consolidated financial condition and results of operations of the Loan Parties.
(c) Promptly after preparation, and no later than thirty (30) days after the last day of each fiscal quarter of Loan Parties:
(i) a management discussion and analysis that includes a discussion and explanation of material variances among (A) the comparison of the Loan Parties’ actual operating results to budget for such fiscal quarter and for the period from the beginning of the current fiscal year to date period then ended, (B) the comparison last day of the Loan Parties’ operating results for such fiscal quarter and for the year to date period then ended to the corresponding periods in the prior year and (C) a comparison of the Loan Parties’ operating results for such fiscal quarter to the immediately preceding fiscal quarter; and
, (ii) a Compliance Certificate with respect to such financial statements certifying (A) as to the Loan Parties’ compliance with the financial covenants set forth in Section 10 of this Agreement, and (B) that such financial statements (I) were prepared on a basis consistent with the Accounting Practices (subject to normal year-end adjustments and the absence of footnote disclosures), and (II) present fairly, in all material respects, the consolidated financial condition and results of operations of the Loan Parties.
(d) Promptly after preparation, and no later than the last day of January of each year (assuming a fiscal year end of December 31), an annual operating plan (with a level of detail consistent with the Projections) for the Loan Parties on a consolidated basis, approved by the Board of Directors of the Company, for the current fiscal year (if delivered in January of such year), that (i) includes a statement of all of the material assumptions on which such plan is based, (ii) includes budgeted monthly balance sheets, income statements and statements of cash flows for such fiscal year, as well as comparisons of such items to the corresponding months in the prior fiscal yearFinancial Statements, and (iii) integrates sales, gross profits, operating expenses, operating profit and cash flow projections, all prepared on a certificate listing the same basis and in similar detail as that on which operating results are reported (and Properties in the case Pool and Operating Sub-Pool, together with a computation in reasonable detail of cash flow projections, representing management’s good faith estimates of future financial performance based on historical performance), the Historical Values and including plans for personnel, Capital Expenditures the Implied Value and facilities; provided, however, that showing Borrower's compliance with respect to fiscal year 2016, the operating plan shall be prepared consistent with the Loan Parties’ historical practices, Sections 7.15 and include monthly budgeted profit and loss (but not balance sheet) information only. Agent and Lenders acknowledge and agree that such projections are estimates only and that actual financial performance may vary materially from that set forth in such projections8.14.
(e) Promptly after preparation, and no later than five (5) Business Days after the Loan Parties’ federal income tax return has been filed, copies of each federal income tax return (and Form K-1’s, if applicable) and to the extent reasonably requested by the Agent, related tax reporting information for each Loan Party for the applicable fiscal year.
(fc) Promptly after receipt, a copy of each interim or special audit report and management letter issued by independent accountants with respect to any Loan Party Company or its financial records.
(gd) Notice, promptly after any Loan Party receives notice of, or otherwise becomes aware of, a Responsible Officer of Borrower knows of (i) the institution existence and status of any Litigation involving any Loan Party whichthat, if determined adversely determinedto any Company, could reasonably be expected to result in a Material Adverse Event, (ii) any other event which could reasonably be expected to result change in a Material Adverse Eventany material fact or circumstance represented or warranted by any Company in any Loan Document, (iii) the receipt by any Company of notice of any violation by or alleged violation of any Loan Party of ERISA Applicable Pension Law or any Environmental Law which individually or collectively with respect to an Employee Plan, where there is any reasonable likelihood of the imposition of liability on such Loan Party as a result thereof that other violations or allegations could reasonably be reasonably expected to result in a Material Adverse Event, or (iv) any a Default or Potential Default, specifying the nature thereof and what action, if any, each Loan Party action Borrower has taken, is taking taking, or proposes to taketake with respect thereto.
(e) Promptly after filing, true, correct, and complete copies of all material reports or filings filed by or on behalf of any Company with any Tribunal (including copies of each Form 10-K, Form 10-Q, and Form S-8 filed by or on behalf of any Company with the Securities and Exchange Commission).
(f) Promptly after the mailing or delivery thereof, copies of all material reports or other information from Borrower generally to the holders of its common or preferred Stock.
(g) Promptly upon the consummation thereof, a description in reasonable detail of any acquisition of material assets other than investments in industrial Properties.
(h) Promptly upon any Change in Control, notice of such event together with a description of the transaction giving rise thereto.
(i) Promptly upon written request by Administrative Agent and to the extent available after reasonable inquiry by Borrower, a list of all registered major holders of Stock of Borrower.
Appears in 2 contracts
Samples: Credit Agreement (Prologis Trust), Term Loan Credit Agreement (Prologis Trust)
Items to be Furnished. The Loan Parties Borrower shall cause the following to be furnished to Agent, Administrative Agent for distribution delivery to each Lender at its respective principal office, as designated by each Lender to Agent and Loan Parties from time to timeLenders:
(a) Promptly after preparation, and no later than one hundred twenty (120) 120 days after the last day of each fiscal year of the Loan Parties (providedeach of Borrower and Communications, that, for the fiscal year ending December 31, 2015, the delivery date shall be one hundred eighty (180) days after the last day of such fiscal year), audited financial statements (including statements of income, cash flows and Equityholders’ equity and a balance sheet) Financial Statements showing the consolidated and consolidating financial condition and results of operations calculated separately for each of (x) the Loan Parties Companies and (y) Communications and its Restricted Subsidiaries, as of, and for the year ended on, that last such day, each accompanied by:
(i) the unqualified opinion of a firm of nationally-recognized independent certified public accountants acceptable to Lenders (the “Accounting Firm”)accountants, based on an audit using generally accepted auditing standards, that such Financial Statements (calculated with respect to the financial statements Companies or Communications and its Restricted Subsidiaries, as the case may be) were prepared in accordance with GAAP and present fairly, in all material respects, fairly the consolidated financial condition and results of operations of the Loan PartiesCompanies or Communications and its Restricted Subsidiaries, as the case may be;
(ii) any management letter prepared by such accounting firm;
(iii) with respect to the Financial Statements of the Companies, a certificate from such accounting firm to Administrative Agent indicating that during its audit it obtained no knowledge of any Default or Potential Default or, if it obtained such knowledge, the nature and period of existence thereof;
(iv) a letter from such accounting firm addressed to Borrower or Communications (as the case may be), with a copy to Administrative Agent, acknowledging that (A) Borrower or Communications, as the case may be, plans to provide Administrative Agent with such audited Financial Statements and accompanying audit report, (B) Administrative Agent has informed Borrower or Communications, as the case may be, that Administrative Agent and Lenders intend to rely on such firm's audit report accompanying such Financial Statements, and (C) Borrower or Communications, as the case may be, intends for Administrative Agent and Lenders to so rely; and
(iiv) a Compliance Certificate with respect to such financial statements certifying (A) as to the Loan Parties’ compliance with the financial covenants set forth in Section 10 of this Agreement and (B) that such financial statements were prepared in accordance with the Accounting Practices (subject to normal year-end adjustments and the absence of footnote disclosures) and present fairly, in all material respects, the consolidated financial condition and results of operations Financial Statements of the Loan PartiesCompanies, a Compliance Certificate.
(b) Promptly after preparation, and no later than thirty (30) days after the last day of each calendar month of the Loan Parties, internally-certified unaudited financial statements (including consolidated statements of income and cash flows and a balance sheet) showing the consolidated financial condition and results of operations of the Loan Parties as of, and for the month, year-to-date and, if applicable, quarter period ended on, that last day. The Loan Parties’ certificate included with the unaudited financial statements will, at a minimum, include a statement that such financial statements were prepared in accordance with the Accounting Practices (subject to normal year-end adjustments and the absence of footnote disclosures) and present fairly, in all material respects, the consolidated financial condition and results of operations of the Loan Parties.
(c) Promptly after preparation, and no later than thirty (30) 60 days after the last day of each fiscal quarter of Loan Parties:
(i) a management discussion and analysis that includes a discussion and explanation of material variances among (A) the comparison of the Loan Parties’ actual operating results to budget for such fiscal quarter and for the year to date period then endedBorrower, (B) the comparison of the Loan Parties’ operating results for such fiscal quarter and for the year to date period then ended to the corresponding periods in the prior year and (C) a comparison of the Loan Parties’ operating results for such fiscal quarter to the immediately preceding fiscal quarter; and
(ii) a Compliance Certificate with respect to such financial statements certifying (A) as to the Loan Parties’ compliance with the financial covenants set forth in Section 10 of this Agreement, and (B) that such financial statements (I) were prepared on a basis consistent with the Accounting Practices (subject to normal year-end adjustments and the absence of footnote disclosures), and (II) present fairly, in all material respects, Financial Statements showing the consolidated financial condition and results of operations calculated for the Companies for such fiscal quarter and for the period from the beginning of the Loan Partiesthen-current fiscal year to, such last day, accompanied by a Compliance Certificate with respect to such Financial Statements.
(c) Within 60 days after the end of each fiscal quarter of Borrower, a management report, showing for each System results of operations and subscriber counts, discussing the financial results and comparing actual performance results to the Budget for such period, and outlining principal factors affecting performances of each market, and detailing the outstanding principal amount of intercompany loans and advances from Borrower to any Cellular Partnership Obligor, if any, all in form and substance satisfactory to Administrative Agent.
(d) Promptly after preparation, and no later than the last day of January On or prior to March 31 of each year (assuming a fiscal year end of December 31)Borrower, an annual operating plan (with a level of detail consistent with the Projections) for the Loan Parties on a consolidated basis, approved by the Board of Directors of the Company, for the current fiscal year (if delivered in January of such year), that (i) includes a statement of all of the material assumptions on which such plan is based, (ii) includes budgeted monthly balance sheets, income statements and statements of cash flows financial Budget for such fiscal year, as well as comparisons of accompanied by a certificate executed by a Responsible Officer, certifying that such items to the corresponding months in the prior fiscal year, and (iii) integrates sales, gross profits, operating expenses, operating profit and cash flow projections, all Budget was prepared on the same basis and in similar detail as that on which operating results are reported (and in the case of cash flow projections, representing management’s good faith estimates of future financial performance by Borrower based on assumptions which, in light of the historical performance)performance of the Companies and their prospects for the future, are realistic and including plans for personnel, Capital Expenditures and facilities; provided, however, that with respect to fiscal year 2016, the operating plan shall be prepared consistent with the Loan Parties’ historical practices, and include monthly budgeted profit and loss (but not balance sheet) information only. Agent and Lenders acknowledge and agree that such projections are estimates only and that actual financial performance may vary materially from that set forth in such projectionsachievable.
(e) Promptly after preparation, and no later than five (5) Business Days after the Loan Parties’ federal income tax return has been filedupon receipt thereof, copies of each federal income tax return (and Form K-1’s, if applicable) and all auditor's annual management letters delivered to the extent reasonably requested by the Agent, related tax reporting information for each Loan Party for the applicable fiscal yearBorrower.
(f) Promptly after receipt, a copy of each interim or special audit report and management letter issued by independent accountants with respect to any Loan Party or its financial records.
(g) Notice, promptly after any Loan Party receives notice of, or otherwise becomes aware of, (i) the institution of any Litigation involving any Loan Party which, if adversely determined, could reasonably be expected to result in a Material Adverse Event, (ii) any other event which could reasonably be expected to result in a Material Adverse Event, (iii) any violation by any Loan Party of ERISA or any Law with respect to an Employee Plan, where there is any reasonable likelihood of the imposition of liability on such Loan Party as a result thereof that could be reasonably expected to result in a Material Adverse Event, or (iv) any Default or Potential Default, specifying the nature thereof and what action, if any, each Loan Party has taken, is taking or proposes to take.
Appears in 1 contract
Samples: Revolving Credit Agreement (Dobson Communications Corp)
Items to be Furnished. The Loan Parties Borrower shall cause the following to be furnished to the Administrative Agent, for distribution to each Lender at its respective principal office, as designated by each Lender to Agent and Loan Parties from time to time:
(a) Promptly after preparation, and no later than one hundred twenty (120) 120 days after the last day of each fiscal year of the Loan Parties (providedBorrower, that, for the fiscal year ending December 31, 2015, the delivery date shall be one hundred eighty (180) days after the last day of such fiscal year), audited financial statements (including statements of income, cash flows and Equityholders’ equity and a balance sheet) Financial Statements showing the consolidated financial condition and results of operations of the Loan Parties Companies as of, and for the year ended on, that such last day, accompanied by:
by (i) the unqualified opinion of a KPMG Peat Marwick LLP (or another firm of nationally-recognized independent certified public accountants reasonably acceptable to Lenders (the “Accounting Firm”Majority Lenders), based on an audit using generally accepted auditing standards, that the financial statements such Financial Statements were prepared in accordance with GAAP and present fairly, in all material respects, fairly the consolidated financial condition and results of operations of the Loan Parties; and
Companies (and such accountants shall indicate in a letter to the Administrative Agent, that during their audit no Default or Event of Default not already reported was discovered or, if such Default or Event of Default was discovered, the nature and period of existence thereof) and (ii) a Compliance Financial Report Certificate with respect to such financial statements certifying (A) as to the Loan Parties’ compliance with the financial covenants set forth in Section 10 of this Agreement and (B) that such financial statements were prepared in accordance with the Accounting Practices (subject to normal year-end adjustments and the absence of footnote disclosures) and present fairly, in all material respects, the consolidated financial condition and results of operations of the Loan PartiesFinancial Statements.
(b) Promptly after preparation, and no later than thirty (30) 60 days after the last day of each calendar month of the Loan Partiesfirst three quarters of each fiscal year of the Borrower, internally-certified unaudited financial statements (including consolidated statements of income and cash flows and a balance sheet) i)Financial Statements showing the consolidated financial condition and results of operations of the Loan Parties Companies as of, and for the monthperiod from the beginning of the current fiscal year to, year-to-date and, if applicable, quarter period ended on, that such last day. The Loan Parties’ certificate included , and (ii) a Financial Report Certificate with the unaudited financial statements will, at a minimum, include a statement that respect to such financial statements were prepared in accordance with the Accounting Practices (subject to normal year-end adjustments and the absence of footnote disclosures) and present fairly, in all material respects, the consolidated financial condition and results of operations of the Loan PartiesFinancial Statements.
(c) Promptly after preparation, preparation (and no later than thirty the later of 15 days (30a) days after such filing is due or (b) after timely filing, if filed with the last day Securities and Exchange Commission), true copies of each fiscal quarter all regular and periodic reports, statements, documents, plans, and other written communications furnished by or on behalf of Loan Parties:
(i) a management discussion any Company to stockholders or to the Securities and analysis that includes a discussion and explanation of material variances among (A) the comparison Exchange Commission. However, only registration statements covering more than 2 percent of the Loan Parties’ actual operating results Borrower's outstanding shares of common stock shall be required to budget for such fiscal quarter and for be furnished unless specifically requested by the year to date period then ended, (B) the comparison of the Loan Parties’ operating results for such fiscal quarter and for the year to date period then ended to the corresponding periods in the prior year and (C) a comparison of the Loan Parties’ operating results for such fiscal quarter to the immediately preceding fiscal quarter; and
(ii) a Compliance Certificate with respect to such financial statements certifying (A) as to the Loan Parties’ compliance with the financial covenants set forth in Section 10 of this Agreement, and (B) that such financial statements (I) were prepared on a basis consistent with the Accounting Practices (subject to normal year-end adjustments and the absence of footnote disclosures), and (II) present fairly, in all material respects, the consolidated financial condition and results of operations of the Loan PartiesAdministrative Agent.
(d) Promptly after preparationupon receipt thereof, and no later than copies of any notices received from any Tribunal (including, without limitation, state regulatory agencies) relating to the last day possible violation or violation of January of each year (assuming a fiscal year end of December 31)any Law which might adversely affect the material franchises, an annual operating plan (with a level of detail consistent with the Projections) permits, or rights for the Loan Parties on a consolidated basis, approved by the Board of Directors operation of the business of any Company, for the current fiscal year (if delivered in January of such year), that (i) includes a statement of all of the material assumptions on which such plan is based, (ii) includes budgeted monthly balance sheets, income statements and statements of cash flows for such fiscal year, as well as comparisons of such items to the corresponding months in the prior fiscal year, and (iii) integrates sales, gross profits, operating expenses, operating profit and cash flow projections, all prepared on the same basis and in similar detail as that on which operating results are reported (and in the case of cash flow projections, representing management’s good faith estimates of future financial performance based on historical performance), and including plans for personnel, Capital Expenditures and facilities; provided, however, that with respect to fiscal year 2016, the operating plan shall be prepared consistent with the Loan Parties’ historical practices, and include monthly budgeted profit and loss (but not balance sheet) information only. Agent and Lenders acknowledge and agree that such projections are estimates only and that actual financial performance may vary materially from that set forth in such projections.
(e) Promptly after preparation, and no later than five (5) Business Days after the Loan Parties’ federal income tax return has been filed, copies of each federal income tax return (and Form K-1’s, if applicable) and to the extent reasonably requested by the Agent, related tax reporting information for each Loan Party for the applicable fiscal year.
(f) Promptly after receipt, a copy of each interim or special audit report and management letter issued by independent accountants with respect to any Loan Party or its financial records.
(g) Notice, promptly after any Loan Party receives notice of, the Borrower knows or otherwise becomes aware has reason to know of, (i) the institution existence of any Material Litigation involving any Loan Party which, if adversely determined, could reasonably be expected to result as defined in a Material Adverse EventSection 3.6, (ii) any other event which could reasonably be expected to result material change in a Material Adverse Eventany material fact or circum- stance represented or warranted in any Loan Paper, or (iii) any violation by any Loan Party of ERISA or any Law with respect to an Employee Plan, where there is any reasonable likelihood of the imposition of liability on such Loan Party as a result thereof that could be reasonably expected to result in a Material Adverse Event, or (iv) any Default or Potential Event of Default, specifying the nature thereof and what action, if any, each Loan Party action the Borrower or any other Company has taken, is taking taking, or proposes to taketake with respect thereto.
(f) Notice, promptly after the Borrower knows or has reason to know of, a Subsidiary Encumbrance, as defined in Section 5.25(c).
(g) Promptly upon the Administrative Agent's reasonable request, such information (not otherwise required to be furnished under the Loan Papers) respecting the business affairs, assets, and liabilities of any Company, and any opinions, certifications, and documents, in addition to those mentioned herein.
Appears in 1 contract
Samples: Revolving Credit Facility Agreement (Centurytel Inc)
Items to be Furnished. The Loan Parties Borrower shall cause the following to be furnished to Agent, for distribution to each Lender at its respective principal office, as designated by each Lender to Administrative Agent and Loan Parties from time to timeeach Lender:
(ai) Promptly after preparation, and no later than one hundred twenty (120100) days after the last day of each fiscal year of the Loan Parties (providedBorrower, that, for the fiscal year ending December 31, 2015, the delivery date shall be one hundred eighty (180) days after the last day of such fiscal year), audited financial statements (including statements of income, cash flows and Equityholders’ equity and a balance sheet) Financial Statements showing the consolidated financial condition and results of operations of the Loan Parties Companies as of, and for the year ended on, that last day, accompanied by:
(i) the unqualified opinion of a firm of independent certified public accountants acceptable to Lenders (the “Accounting Firm”)Borrower's Accountants, based on an audit using generally accepted auditing standards, that the financial statements Financial Statements were prepared in accordance with GAAP and present fairly, in all material respects, the consolidated financial condition and results of operations of the Loan Parties; Companies,
(ii) certificate from the accounting firm to Administrative Agent indicating that during its audit it obtained no knowledge of any Default or Potential Default or, if it obtained knowledge, the nature and period of existence thereof, and
(iiiii) a Compliance Certificate with respect to such financial statements certifying (A) as to the Loan Parties’ compliance with the financial covenants set forth in Section 10 of this Agreement and (B) that such financial statements were prepared in accordance with the Accounting Practices (subject to normal year-end adjustments and the absence of footnote disclosures) and present fairly, in all material respects, the consolidated financial condition and results of operations of the Loan PartiesFinancial Statements.
(bii) Promptly after preparation, and no later than thirty fifty (3050) days after the last day of each calendar month the first three fiscal quarters of the Loan PartiesBorrower, internally-certified unaudited financial statements (including consolidated statements of income and cash flows and a balance sheet) Financial Statements showing the consolidated financial condition and results of operations of the Loan Parties as of, Companies for the fiscal quarter and for the monthperiod from the beginning of the current fiscal year to the last day of the fiscal quarter, year-to-date and, if applicable, quarter period ended on, that last day. The Loan Parties’ certificate included with the unaudited financial statements will, at a minimum, include a statement that such financial statements were prepared in accordance with the Accounting Practices (subject to normal ordinary year-end adjustments and adjustments, accompanied by a Compliance Certificate with respect to the absence of footnote disclosures) and present fairly, in all material respects, the consolidated financial condition and results of operations of the Loan PartiesFinancial Statements.
(ciii) Promptly after preparation, and no later than Within thirty (30) days after the last day end of each fiscal quarter year of Loan Parties:
Borrower (i) commencing with the fiscal year ending on or about March 31, 2006), the financial budget for the next succeeding fiscal year, accompanied by a management discussion and analysis certificate executed by a Responsible Officer certifying that includes a discussion and explanation of material variances among (A) the comparison budget was prepared by Borrower based on assumptions that, in light of the Loan Parties’ actual operating results to budget for such fiscal quarter historical performance of the Companies and their prospects for the year to date period then endedfuture, (B) the comparison are reasonable as of the Loan Parties’ operating results for such fiscal quarter and for the year to date period then ended to the corresponding periods in the prior year and (C) a comparison of the Loan Parties’ operating results for such fiscal quarter to the immediately preceding fiscal quarter; and
(ii) a Compliance Certificate with respect to such financial statements certifying (A) as to the Loan Parties’ compliance with the financial covenants set forth in Section 10 of this Agreement, and (B) that such financial statements (I) were prepared on a basis consistent with the Accounting Practices (subject to normal year-end adjustments and the absence of footnote disclosures), and (II) present fairly, in all material respects, the consolidated financial condition and results of operations of the Loan Partiesprepared.
(d) Promptly after preparation, and no later than the last day of January of each year (assuming a fiscal year end of December 31), an annual operating plan (with a level of detail consistent with the Projections) for the Loan Parties on a consolidated basis, approved by the Board of Directors of the Company, for the current fiscal year (if delivered in January of such year), that (i) includes a statement of all of the material assumptions on which such plan is based, (ii) includes budgeted monthly balance sheets, income statements and statements of cash flows for such fiscal year, as well as comparisons of such items to the corresponding months in the prior fiscal year, and (iii) integrates sales, gross profits, operating expenses, operating profit and cash flow projections, all prepared on the same basis and in similar detail as that on which operating results are reported (and in the case of cash flow projections, representing management’s good faith estimates of future financial performance based on historical performance), and including plans for personnel, Capital Expenditures and facilities; provided, however, that with respect to fiscal year 2016, the operating plan shall be prepared consistent with the Loan Parties’ historical practices, and include monthly budgeted profit and loss (but not balance sheet) information only. Agent and Lenders acknowledge and agree that such projections are estimates only and that actual financial performance may vary materially from that set forth in such projections.
(e) Promptly after preparation, and no later than five (5) Business Days after the Loan Parties’ federal income tax return has been filed, copies of each federal income tax return (and Form K-1’s, if applicable) and to the extent reasonably requested by the Agent, related tax reporting information for each Loan Party for the applicable fiscal year.
(fiv) Promptly after receipt, a copy of each interim or special audit report and management letter issued by independent accountants Borrower's Accountants with respect to any Loan Party Company or its financial records.
(g) Notice, promptly after any Loan Party receives notice of, or otherwise becomes aware of, (i) the institution of any Litigation involving any Loan Party which, if adversely determined, could reasonably be expected to result in a Material Adverse Event, (ii) any other event which could reasonably be expected to result in a Material Adverse Event, (iii) any violation by any Loan Party of ERISA or any Law with respect to an Employee Plan, where there is any reasonable likelihood of the imposition of liability on such Loan Party as a result thereof that could be reasonably expected to result in a Material Adverse Event, or (iv) any Default or Potential Default, specifying the nature thereof and what action, if any, each Loan Party has taken, is taking or proposes to take.
Appears in 1 contract
Items to be Furnished. The Loan Parties Borrower shall cause the following to be furnished to Agent, for distribution to each Lender at its respective principal office, as designated by each Lender to Administrative Agent and Loan Parties from time to timeeach Lender:
(a) Promptly after preparation, and no later than one hundred twenty (120100) days after the last day of each fiscal year of the Loan Parties (providedBorrower, that, for the fiscal year ending December 31, 2015, the delivery date shall be one hundred eighty (180) days after the last day of such fiscal year), audited financial statements (including statements of income, cash flows and Equityholders’ equity and a balance sheet) Financial Statements showing the consolidated financial condition and results of operations of the Loan Parties Companies as of, and for the year ended on, that last day, accompanied by:
(i) the unqualified opinion of a firm of independent certified public accountants acceptable to Lenders (the “Accounting Firm”)Borrower’s Accountants, based on an audit using generally accepted auditing standards, that the financial statements Financial Statements were prepared in accordance with GAAP and present fairly, in all material respects, the consolidated financial condition and results of operations of the Loan Parties; Companies,
(ii) certificate from the accounting firm to Administrative Agent indicating that during its audit it obtained no knowledge of any Default or Potential Default or, if it obtained knowledge, the nature and period of existence thereof, and
(iiiii) a Compliance Certificate with respect to such financial statements certifying (A) as to the Loan Parties’ compliance with the financial covenants set forth in Section 10 of this Agreement and (B) that such financial statements were prepared in accordance with the Accounting Practices (subject to normal year-end adjustments and the absence of footnote disclosures) and present fairly, in all material respects, the consolidated financial condition and results of operations of the Loan PartiesFinancial Statements.
(b) Promptly after preparation, and no later than thirty fifty (3050) days after the last day of each calendar month the first three fiscal quarters of the Loan PartiesBorrower, internally-certified unaudited financial statements (including consolidated statements of income and cash flows and a balance sheet) Financial Statements showing the consolidated financial condition and results of operations of the Loan Parties as of, Companies for the fiscal quarter and for the monthperiod from the beginning of the current fiscal year to the last day of the fiscal quarter, year-to-date and, if applicable, quarter period ended on, that last day. The Loan Parties’ certificate included with the unaudited financial statements will, at a minimum, include a statement that such financial statements were prepared in accordance with the Accounting Practices (subject to normal ordinary year-end adjustments and adjustments, accompanied by a Compliance Certificate with respect to the absence of footnote disclosures) and present fairly, in all material respects, the consolidated financial condition and results of operations of the Loan PartiesFinancial Statements.
(c) Promptly after preparation, and no later than Within thirty (30) days after the last day end of each fiscal quarter year of Loan Parties:
Borrower (i) commencing with the fiscal year ending on or about March 31, 2019), the financial budget for the next succeeding fiscal year, accompanied by a management discussion and analysis certificate executed by a Responsible Officer certifying that includes a discussion and explanation of material variances among (A) the comparison budget was prepared by Borrower based on assumptions that, in light of the Loan Parties’ actual operating results to budget for such fiscal quarter historical performance of the Companies and their prospects for the year to date period then endedfuture, (B) the comparison are reasonable as of the Loan Parties’ operating results for such fiscal quarter and for the year to date period then ended to the corresponding periods in the prior year and (C) a comparison of the Loan Parties’ operating results for such fiscal quarter to the immediately preceding fiscal quarter; and
(ii) a Compliance Certificate with respect to such financial statements certifying (A) as to the Loan Parties’ compliance with the financial covenants set forth in Section 10 of this Agreement, and (B) that such financial statements (I) were prepared on a basis consistent with the Accounting Practices (subject to normal year-end adjustments and the absence of footnote disclosures), and (II) present fairly, in all material respects, the consolidated financial condition and results of operations of the Loan Partiesprepared.
(d) Promptly after preparation, and no later than the last day of January of each year (assuming a fiscal year end of December 31), an annual operating plan (with a level of detail consistent with the Projections) for the Loan Parties on a consolidated basis, approved by the Board of Directors of the Company, for the current fiscal year (if delivered in January of such year), that (i) includes a statement of all of the material assumptions on which such plan is based, (ii) includes budgeted monthly balance sheets, income statements and statements of cash flows for such fiscal year, as well as comparisons of such items to the corresponding months in the prior fiscal year, and (iii) integrates sales, gross profits, operating expenses, operating profit and cash flow projections, all prepared on the same basis and in similar detail as that on which operating results are reported (and in the case of cash flow projections, representing management’s good faith estimates of future financial performance based on historical performance), and including plans for personnel, Capital Expenditures and facilities; provided, however, that with respect to fiscal year 2016, the operating plan shall be prepared consistent with the Loan Parties’ historical practices, and include monthly budgeted profit and loss (but not balance sheet) information only. Agent and Lenders acknowledge and agree that such projections are estimates only and that actual financial performance may vary materially from that set forth in such projections.
(e) Promptly after preparation, and no later than five (5) Business Days after the Loan Parties’ federal income tax return has been filed, copies of each federal income tax return (and Form K-1’s, if applicable) and to the extent reasonably requested by the Agent, related tax reporting information for each Loan Party for the applicable fiscal year.
(f) Promptly after receipt, a copy of each interim or special audit report and management letter issued by independent accountants Borrower’s Accountants with respect to any Loan Party Company or its financial records.
(ge) Notice, promptly after any Loan Party receives notice ofBorrower knows or has reason to know, or otherwise becomes aware of, of (i) the institution existence and status of any Litigation involving that, if determined adversely to any Company, would be a Material Adverse Event; (ii) any change in any material fact or circumstance represented or warranted by any Company in any Loan Party which, if adversely determined, Paper; (iii) the receipt by any Company of notice of any violation or alleged violation of ERISA or any Environmental Law (which individually or collectively with other violations or allegations could reasonably be expected to result in constitute a Material Adverse Event, (ii) any other event which could reasonably be expected to result in a Material Adverse Event, (iii) any violation by any Loan Party of ERISA or any Law with respect to an Employee Plan, where there is any reasonable likelihood of the imposition of liability on such Loan Party as a result thereof that could be reasonably expected to result in a Material Adverse Event, ); or (iv) any a Default or Potential Default, specifying the nature thereof and what action, if any, each Loan Party has action the Companies have taken, is taking are taking, or proposes propose to take.
(f) Promptly after filing, copies of all material reports or filings filed by or on behalf of any Company with any Tribunal.
(g) Promptly following any written request therefor, such other information and documentation reasonably requested by the Administrative Agent or any Lender (through Administrative Agent) for purposes of compliance with applicable “know your customer” requirements under the USA Patriot Act, the Beneficial Ownership Regulation or other applicable Anti-Corruption and Anti-Terrorism Laws.
(h) Promptly upon reasonable request by Administrative Agent or Majority Lenders (through Administrative Agent), information (not otherwise required to be furnished under the Loan Papers) respecting the business affairs, assets, and liabilities of the Companies and opinions, projections, certifications, and documents in addition to those mentioned in this Agreement.
(i) Promptly following any such change, written notification of any change in the information provided in the most recently delivered Beneficial Ownership Certification that would result in a change to the list of beneficial owners identified therein.
Appears in 1 contract
Samples: Credit Agreement (Monro, Inc.)
Items to be Furnished. The Loan Parties Borrower shall cause the following --------------------- to be furnished to Agent, for distribution to each Lender at its respective principal office, as designated by each Lender to Agent and Loan Parties from time to time:
(a) Promptly after preparation, and no later than one hundred twenty (120) 95 days after the last day of each fiscal year of the Loan Parties (providedBorrower, that, for the fiscal year ending December 31, 2015, the delivery date shall be one hundred eighty (180) days after the last day of such fiscal year), audited financial statements (including statements of income, cash flows and Equityholders’ equity and a balance sheet) Financial Statements showing the consolidated financial condition and results of operations of the Loan Parties Companies and a statement of stockholders equity as of, and for the year ended on, that last day, accompanied by:
(i) the unqualified opinion of a firm of nationally-recognized independent certified public accountants acceptable to Lenders (the “Accounting Firm”)accountants, based on an audit using generally accepted auditing standards, that the financial statements Financial Statements were prepared in accordance with GAAP and present fairly, in all material respects, the consolidated financial condition and results of operations of the Loan PartiesCompanies;
(ii) any management letter prepared by the accounting firm delivered in connection with its audit; and
(iiiii) a Compliance Certificate with respect to such financial statements certifying (A) as to the Loan Parties’ compliance with the financial covenants set forth in Section 10 of this Agreement and (B) that such financial statements were prepared in accordance with the Accounting Practices (subject to normal year-end adjustments and the absence of footnote disclosures) and present fairly, in all material respects, the consolidated financial condition and results of operations of the Loan PartiesFinancial Statements.
(b) Promptly after preparation, and no later than thirty (30) 50 days after the last day of each calendar month of the Loan Partiesfirst three fiscal quarters of the Companies' fiscal year, internally-certified unaudited financial statements (including consolidated statements of income and cash flows and a balance sheet) Financial Statements showing the consolidated financial condition and results of operations of the Loan Parties as of, Companies for the fiscal quarter and for the month, year-to-date and, if applicable, quarter period ended on, that last day. The Loan Parties’ certificate included with from the unaudited financial statements will, at a minimum, include a statement that such financial statements were prepared in accordance with the Accounting Practices (subject to normal year-end adjustments and the absence of footnote disclosures) and present fairly, in all material respects, the consolidated financial condition and results of operations beginning of the Loan Partiescurrent fiscal year to the last day of the fiscal quarter, accompanied by a Compliance Certificate with respect to the Financial Statements.
(c) Promptly after preparation, and no later than thirty (30) 30 days after the last day of each month which is not the last month in a fiscal quarter of Loan Parties:
(i) a management discussion and analysis that includes a discussion and explanation of material variances among (A) the comparison of the Loan Parties’ actual operating results to budget for such fiscal quarter and for the year to date period then endedBorrower, (B) the comparison of the Loan Parties’ operating results for such fiscal quarter and for the year to date period then ended to the corresponding periods in the prior year and (C) a comparison of the Loan Parties’ operating results for such fiscal quarter to the immediately preceding fiscal quarter; and
(ii) a Compliance Certificate with respect to such financial statements certifying (A) as to the Loan Parties’ compliance with the financial covenants set forth in Section 10 of this Agreement, and (B) that such financial statements (I) were prepared on a basis consistent with the Accounting Practices (subject to normal year-end adjustments and the absence of footnote disclosures), and (II) present fairly, in all material respects, Financial Statements showing the consolidated financial condition and results of operations of the Loan PartiesCompanies for the month and for the period from the beginning of the current fiscal year to the last day of such month.
(d) Promptly after preparation, and no later than the last day of January of each year (assuming a fiscal year end of December 31), an annual operating plan (with a level of detail consistent with the Projections) for the Loan Parties on a consolidated basis, approved by the Board of Directors of the Company, for the current fiscal year (if delivered in January of such year), that (i) includes a statement of all of the material assumptions on which such plan is based, (ii) includes budgeted monthly balance sheets, income statements and statements of cash flows for such fiscal year, as well as comparisons of such items to the corresponding months in the prior fiscal year, and (iii) integrates sales, gross profits, operating expenses, operating profit and cash flow projections, all prepared on the same basis and in similar detail as that on which operating results are reported Notice (and in the case delivery of cash flow projections, representing management’s good faith estimates of future financial performance based on historical performancea revised schedule if a representation or warranty under Section 7 is affected), and including plans for personnel, Capital Expenditures and facilities; provided, however, that with respect to fiscal year 2016, the operating plan shall be prepared consistent with the Loan Parties’ historical practices, and include monthly budgeted profit and loss (but not balance sheet) information only. Agent and Lenders acknowledge and agree that such projections are estimates only and that actual financial performance may vary materially from that set forth in such projections.
(e) Promptly after preparation, and no later than five (5) Business Days after the Loan Parties’ federal income tax return has been filed, copies of each federal income tax return (and Form K-1’s, if applicable) and to the extent reasonably requested by the Agent, related tax reporting information for each Loan Party for the applicable fiscal year.
(f) Promptly after receipt, a copy of each interim or special audit report and management letter issued by independent accountants with respect to any Loan Party or its financial records.
(g) Notice, promptly after any Loan Party receives notice of, or otherwise becomes aware of, Company knows of (i) the institution existence and status of any Litigation involving any Loan Party whichthat, if determined adversely determinedto any Company, could reasonably be expected to result in a Material Adverse Event, (ii) any material adverse change in any material fact or circumstance represented or warranted by any Company in any Loan Paper, (iii) the receipt by any Company of notice of any violation or alleged violation of ERISA or any Environmental Law (which individually or collectively with other event which violations or allegations could reasonably be expected to result in a Material Adverse Event, (iii) any violation by any Loan Party of ERISA or any Law with respect to an Employee Plan, where there is any reasonable likelihood of the imposition of liability on such Loan Party as a result thereof that could be reasonably expected to result in a Material Adverse Event), or (iv) any a Default or Potential Default, specifying the nature thereof and what action, if any, each Loan Party has action the Companies have taken, is taking are taking, or proposes propose to take.
(e) Promptly after filing, copies of all material reports or filings filed by or on behalf of any Company with the Securities and Exchange Commission (including, without limitation, copies of each Form 10-K, Form 10-Q, and Form 8-K).
(f) Promptly upon reasonable request by Agent or Required Lenders (through Agent), information (not otherwise required to be furnished under the Loan Papers) respecting the business affairs, assets and liabilities of the Companies and certifications and documents in the possession of or otherwise reasonably available to the Companies in addition to those mentioned in this Agreement.
Appears in 1 contract
Items to be Furnished. The Loan Parties Borrower shall cause the following to be furnished to Agent, for distribution to the Administrative Agent and each Lender at its respective principal office, as designated by each Lender to Agent and Loan Parties from time to time:(through the Administrative Agent):
(a) Promptly after preparation, and no later than one hundred twenty (120) 90 days after the last day of each fiscal year of the Loan Parties (providedBorrower, that, for the fiscal year ending December 31, 2015, the delivery date shall be one hundred eighty (180) days after the last day of such fiscal year), audited financial statements (including statements of income, cash flows and Equityholders’ equity and a balance sheet) Financial Statements showing the consolidated financial condition and results of operations of the Loan Parties Companies as of, and for the year ended on, that such last day, accompanied by:
by (i) the unqualified opinion of a KPMG LLP (or another firm of nationally-recognized independent certified public accountants reasonably acceptable to Lenders (the “Accounting Firm”Majority Lenders), based on an audit using generally accepted auditing standards, that the financial statements such Financial Statements were prepared in accordance with GAAP and present fairly, in all material respects, fairly the consolidated financial condition and results of operations of the Loan Parties; and
Companies (and such accountants shall indicate in a letter to the Administrative Agent, that during their audit no Default or Event of Default not already reported was discovered or, if such Default or Event of Default was discovered, the nature and period of existence thereof) and (ii) a Compliance Financial Report Certificate with respect to such financial statements certifying (A) as to the Loan Parties’ compliance with the financial covenants set forth in Section 10 of this Agreement and (B) that such financial statements were prepared in accordance with the Accounting Practices (subject to normal year-end adjustments and the absence of footnote disclosures) and present fairly, in all material respects, the consolidated financial condition and results of operations of the Loan PartiesFinancial Statements.
(b) Promptly after preparation, and no later than thirty (30) 45 days after the last day of each calendar month of the Loan Partiesfirst three quarters of each fiscal year of the Borrower, internally-certified unaudited financial statements (including consolidated statements of income and cash flows and a balance sheeti) Financial Statements showing the consolidated financial condition and results of operations of the Loan Parties Companies as of, and for the monthperiod from the beginning of the current fiscal year to, year-to-date and, if applicable, quarter period ended on, that such last day. The Loan Parties’ certificate included , and (ii) a Financial Report Certificate with the unaudited financial statements will, at a minimum, include a statement that respect to such financial statements were prepared in accordance with the Accounting Practices (subject to normal year-end adjustments and the absence of footnote disclosures) and present fairly, in all material respects, the consolidated financial condition and results of operations of the Loan PartiesFinancial Statements.
(c) Promptly after preparation, preparation (and no later than thirty the later of 15 days (30a) days after such filing is due or (b) after timely filing, if filed with the last day SEC), true copies of each fiscal quarter all regular and periodic reports, proxy statements and filings on Form 8-K furnished by or on behalf of Loan Parties:
(i) a management discussion and analysis that includes a discussion and explanation of material variances among (A) any Company to stockholders generally or filed with the comparison SEC. However, only registration statements covering more than 2% of the Loan Parties’ actual operating results Borrower’s outstanding shares of common stock shall be required to budget for such fiscal quarter and for be furnished unless specifically requested by the year to date period then ended, (B) the comparison of the Loan Parties’ operating results for such fiscal quarter and for the year to date period then ended to the corresponding periods in the prior year and (C) a comparison of the Loan Parties’ operating results for such fiscal quarter to the immediately preceding fiscal quarter; and
(ii) a Compliance Certificate with respect to such financial statements certifying (A) as to the Loan Parties’ compliance with the financial covenants set forth in Section 10 of this Agreement, and (B) that such financial statements (I) were prepared on a basis consistent with the Accounting Practices (subject to normal year-end adjustments and the absence of footnote disclosures), and (II) present fairly, in all material respects, the consolidated financial condition and results of operations of the Loan PartiesAdministrative Agent.
(d) Promptly after preparationupon receipt thereof, and no later than the last day copies of January of each year any notices received from any Tribunal (assuming a fiscal year end of December 31)including, an annual operating plan (with a level of detail consistent with the Projectionswithout limitation, state regulatory agencies) for the Loan Parties on a consolidated basis, approved by the Board of Directors of the Company, for the current fiscal year (if delivered in January of such year), that (i) includes a statement of all of the material assumptions on which such plan is based, (ii) includes budgeted monthly balance sheets, income statements and statements of cash flows for such fiscal year, as well as comparisons of such items relating to the corresponding months in the prior fiscal year, and (iii) integrates sales, gross profits, operating expenses, operating profit and cash flow projections, all prepared on the same basis and in similar detail as that on possible violation or violation of any Law which operating results are reported (and in the case of cash flow projections, representing management’s good faith estimates of future financial performance based on historical performance), and including plans for personnel, Capital Expenditures and facilities; provided, however, that with respect to fiscal year 2016, the operating plan shall be prepared consistent with the Loan Parties’ historical practices, and include monthly budgeted profit and loss (but not balance sheet) information only. Agent and Lenders acknowledge and agree that such projections are estimates only and that actual financial performance may vary materially from that set forth in such projectionsmight have a Material Adverse Effect.
(e) Promptly after preparation, and no later than five (5) Business Days after the Loan Parties’ federal income tax return has been filed, copies of each federal income tax return (and Form K-1’s, if applicable) and to the extent reasonably requested by the Agent, related tax reporting information for each Loan Party for the applicable fiscal year.
(f) Promptly after receipt, a copy of each interim or special audit report and management letter issued by independent accountants with respect to any Loan Party or its financial records.
(g) Notice, promptly after any Loan Party receives notice of, the Borrower knows or otherwise becomes aware has reason to know of, (i) the institution existence of any material Litigation involving any Loan Party which, if adversely determined, could reasonably be expected to result as defined in a Material Adverse EventSection 4.6, (ii) any other event which could reasonably be expected to result material change in a Material Adverse Eventany material fact or circumstance represented or warranted in any Loan Paper, or (iii) any violation by any Loan Party of ERISA or any Law with respect to an Employee Plan, where there is any reasonable likelihood of the imposition of liability on such Loan Party as a result thereof that could be reasonably expected to result in a Material Adverse Event, or (iv) any Default or Potential Event of Default, specifying the nature thereof and what action, if any, each Loan Party action the Borrower or any other Company has taken, is taking taking, or proposes to taketake with respect thereto.
(f) Notice, promptly after the Borrower knows or has reason to know of, a Subsidiary Encumbrance, as defined in Section 7.14(b), except with respect to Permitted Refinancing Debt.
(g) Within 10 days after execution thereof, copies of any supplements, modifications or amendments to the Equity Units documentation.
(h) Promptly upon the Administrative Agent’s or any Lender’s reasonable request, such information (not otherwise required to be furnished under the Loan Papers) respecting the business affairs, assets, and liabilities of any Company, and any opinions, certifications, and documents, in addition to those mentioned herein.
(i) Promptly following receipt thereof, copies of any documents described in sections 101(k) or 101(l) of ERISA that any Company or any ERISA Affiliate may request with respect to any Multiemployer Plan or documents described in Section 101(f) of ERISA that any Company or any ERISA Affiliate may request with respect to any Plan; provided, that if the Companies or any of their ERISA Affiliates have not requested such documents or notices from the administrator or sponsor of the applicable Multiemployer Plan, then, upon reasonable request of the Administrative Agent, the Companies and/or their ERISA Affiliates shall promptly make a request for such documents or notices from such administrator or sponsor and the Borrower shall provide copies of such documents and notices to the Administrative Agent promptly after receipt thereof.
(j) Notice, promptly after any Company or ERISA Affiliate knows or has reason to know of, (i) the failure of any Plan to comply with any material provisions of ERISA and/or the Code (and applicable regulations under either) or with the material terms of such Plan; (ii) the failure of any Plan to meet the minimum funding standards (within the meaning of Section 412 of the Code or section 302 of ERISA) applicable to such Plan (whether or not waived), the filing pursuant to section 412(c) of the Code or section 302(c) of ERISA of an application for a waiver of the minimum funding standard with respect to any Plan, or the receipt by any Plan of a determination that it is, or is expected to be in “at risk” status (within the meaning of section 430 of the Code or Section 303 of ERISA; (iii) the incurrence by any Company or ERISA Affiliate of liability to the PBGC in connection with any Plan; (iv) the withdrawal (in whole or in part) by any Company or ERISA Affiliate from participation in a Plan or Multiemployer Plan or receipt by any Company or ERISA Affiliate of notice from any Multiemployer Plan with respect to the imposition of Withdrawal Liability or that such Multiemployer Plan is, or is expected to be Insolvent, in Reorganization, “terminated” (within the meaning of section 4041A of ERISA), or in “endangered” or “critical” status (within the meaning of section 432 of the Code or section 305 of ERISA); (v) the occurrence of a non-exempt Prohibited Transaction or a Reportable Event (excluding any Reportable Event that occurs solely as a result of the consummation of this Agreement); or (vi) the failure of any insured medical plan sponsored by any Company for any current or former employee(s) to satisfy the non-discrimination requirements of section 105 of the Code.
(k) Concurrently with the delivery of any Financial Statements pursuant to clause (a) or (b) above, a list of the Guarantor Significant Subsidiaries as of the last day of the relevant fiscal period.
(l) Notice, promptly after the Borrower knows or has reason to know of the acquisition of one or more Excluded Specified Subsidiaries.
Appears in 1 contract
Samples: Credit Agreement (Centurylink, Inc)
Items to be Furnished. The Loan Parties Borrower shall cause the following to be furnished to Agent, for distribution to the Administrative Agent and each Lender at its respective principal office, as designated by each Lender to Agent and Loan Parties from time to time:(through the Administrative Agent):
(a) Promptly after preparation, and no later than one hundred twenty (120) 120 days after the last day of each fiscal year of the Loan Parties (providedBorrower, that, for the fiscal year ending December 31, 2015, the delivery date shall be one hundred eighty (180) days after the last day of such fiscal year), audited financial statements (including statements of income, cash flows and Equityholders’ equity and a balance sheet) Financial Statements showing the consolidated financial condition and results of operations of the Loan Parties Companies as of, and for the year ended on, that such last day, accompanied by:
by (i) the unqualified opinion of a KPMG LLP (or another firm of nationally-recognized independent certified public accountants reasonably acceptable to Lenders (the “Accounting Firm”Majority Lenders), based on an audit using generally accepted auditing standards, that the financial statements such Financial Statements were prepared in accordance with GAAP and present fairly, in all material respects, fairly the consolidated financial condition and results of operations of the Loan Parties; and
Companies (and such accountants shall indicate in a letter to the Administrative Agent, that during their audit no Default or Event of Default not already reported was discovered or, if such Default or Event of Default was discovered, the nature and period of existence thereof) and (ii) a Compliance Financial Report Certificate with respect to such financial statements certifying (A) as to the Loan Parties’ compliance with the financial covenants set forth in Section 10 of this Agreement and (B) that such financial statements were prepared in accordance with the Accounting Practices (subject to normal year-end adjustments and the absence of footnote disclosures) and present fairly, in all material respects, the consolidated financial condition and results of operations of the Loan PartiesFinancial Statements.
(b) Promptly after preparation, and no later than thirty (30) 60 days after the last day of each calendar month of the Loan Partiesfirst three quarters of each fiscal year of the Borrower, internally-certified unaudited financial statements (including consolidated statements of income and cash flows and a balance sheeti) Financial Statements showing the consolidated financial condition and results of operations of the Loan Parties Companies as of, and for the monthperiod from the beginning of the current fiscal year to, year-to-date and, if applicable, quarter period ended on, that such last day. The Loan Parties’ certificate included , and (ii) a Financial Report Certificate with the unaudited financial statements will, at a minimum, include a statement that respect to such financial statements were prepared in accordance with the Accounting Practices (subject to normal year-end adjustments and the absence of footnote disclosures) and present fairly, in all material respects, the consolidated financial condition and results of operations of the Loan PartiesFinancial Statements.
(c) Promptly after preparation, preparation (and no later than thirty the later of 15 days (30a) days after such filing is due or (b) after timely filing, if filed with the last day Securities and Exchange Commission), true copies of each fiscal quarter all regular and periodic reports, proxy statements and filings on Form 8-K furnished by or on behalf of Loan Parties:
(i) a management discussion any Company to stockholders generally or filed with the Securities and analysis that includes a discussion and explanation of material variances among (A) the comparison Exchange Commission. However, only registration statements covering more than 2 percent of the Loan Parties’ actual operating results Borrower's outstanding shares of common stock shall be required to budget for such fiscal quarter and for be furnished unless specifically requested by the year to date period then ended, (B) the comparison of the Loan Parties’ operating results for such fiscal quarter and for the year to date period then ended to the corresponding periods in the prior year and (C) a comparison of the Loan Parties’ operating results for such fiscal quarter to the immediately preceding fiscal quarter; and
(ii) a Compliance Certificate with respect to such financial statements certifying (A) as to the Loan Parties’ compliance with the financial covenants set forth in Section 10 of this Agreement, and (B) that such financial statements (I) were prepared on a basis consistent with the Accounting Practices (subject to normal year-end adjustments and the absence of footnote disclosures), and (II) present fairly, in all material respects, the consolidated financial condition and results of operations of the Loan PartiesAdministrative Agent.
(d) Promptly after preparationupon receipt thereof, and no later than the last day copies of January of each year any notices received from any Tribunal (assuming a fiscal year end of December 31)including, an annual operating plan (with a level of detail consistent with the Projectionswithout limitation, state regulatory agencies) for the Loan Parties on a consolidated basis, approved by the Board of Directors of the Company, for the current fiscal year (if delivered in January of such year), that (i) includes a statement of all of the material assumptions on which such plan is based, (ii) includes budgeted monthly balance sheets, income statements and statements of cash flows for such fiscal year, as well as comparisons of such items relating to the corresponding months in the prior fiscal year, and (iii) integrates sales, gross profits, operating expenses, operating profit and cash flow projections, all prepared on the same basis and in similar detail as that on possible violation or violation of any Law which operating results are reported (and in the case of cash flow projections, representing management’s good faith estimates of future financial performance based on historical performance), and including plans for personnel, Capital Expenditures and facilities; provided, however, that with respect to fiscal year 2016, the operating plan shall be prepared consistent with the Loan Parties’ historical practices, and include monthly budgeted profit and loss (but not balance sheet) information only. Agent and Lenders acknowledge and agree that such projections are estimates only and that actual financial performance may vary materially from that set forth in such projectionsmight have a Material Adverse Effect.
(e) Promptly after preparation, and no later than five (5) Business Days after the Loan Parties’ federal income tax return has been filed, copies of each federal income tax return (and Form K-1’s, if applicable) and to the extent reasonably requested by the Agent, related tax reporting information for each Loan Party for the applicable fiscal year.
(f) Promptly after receipt, a copy of each interim or special audit report and management letter issued by independent accountants with respect to any Loan Party or its financial records.
(g) Notice, promptly after any Loan Party receives notice of, the Borrower knows or otherwise becomes aware has reason to know of, (i) the institution existence of any material Litigation involving any Loan Party which, if adversely determined, could reasonably be expected to result as defined in a Material Adverse EventSection 4.6, (ii) any other event which could reasonably be expected to result material change in a Material Adverse Eventany material fact or circumstance represented or warranted in any Loan Paper, or (iii) any violation by any Loan Party of ERISA or any Law with respect to an Employee Plan, where there is any reasonable likelihood of the imposition of liability on such Loan Party as a result thereof that could be reasonably expected to result in a Material Adverse Event, or (iv) any Default or Potential Event of Default, specifying the nature thereof and what action, if any, each Loan Party action the Borrower or any other Company has taken, is taking taking, or proposes to taketake with respect thereto.
(f) Notice, promptly after the Borrower knows or has reason to know of, a Subsidiary Encumbrance, as defined in Section 7.14(b).
(g) Within 10 days after execution thereof, copies of any supplements, modifications or amendments to the Equity Units documentation.
(h) Promptly upon the Administrative Agent's or any Lender's reasonable request, such information (not otherwise required to be furnished under the Loan Papers) respecting the business affairs, assets, and liabilities of any Company, and any opinions, certifications, and documents, in addition to those mentioned herein.
Appears in 1 contract
Items to be Furnished. The Loan Parties Borrower shall cause the following to be furnished to the Administrative Agent, for distribution to each Lender at its respective principal office, as designated by each Lender to Agent and Loan Parties from time to time:
(a) Promptly after preparation, and no later than one hundred twenty (120) 120 days after the last day of each fiscal year of the Loan Parties (providedBorrower, that, for the fiscal year ending December 31, 2015, the delivery date shall be one hundred eighty (180) days after the last day of such fiscal year), audited financial statements (including statements of income, cash flows and Equityholders’ equity and a balance sheet) Financial Statements showing the consolidated financial condition and results of operations of the Loan Parties Companies as of, and for the year ended on, that such last day, accompanied by:
by (i) the unqualified opinion of a KPMG Peat Marwick LLP (or another firm of nationally-recognized independent certified public accountants reasonably acceptable to Lenders (the “Accounting Firm”Majority Lenders), based on an audit using generally accepted auditing standards, that the financial statements such Financial Statements were prepared in accordance with GAAP and present fairly, in all material respects, fairly the consolidated financial condition and results of operations of the Loan Parties; and
Companies (and such accountants shall indicate in a letter to the Administrative Agent, that during their audit no Default or Event of Default not already reported was discovered or, if such Default or Event of Default was discovered, the nature and period of existence thereof) and (ii) a Compliance Financial Report Certificate with respect to such financial statements certifying (A) as to the Loan Parties’ compliance with the financial covenants set forth in Section 10 of this Agreement and (B) that such financial statements were prepared in accordance with the Accounting Practices (subject to normal year-end adjustments and the absence of footnote disclosures) and present fairly, in all material respects, the consolidated financial condition and results of operations of the Loan PartiesFinancial Statements.
(b) Promptly after preparation, and no later than thirty (30) 60 days after the last day of each calendar month of the Loan Partiesfirst three quarters of each fiscal year of the Borrower, internally-certified unaudited financial statements (including consolidated statements of income and cash flows and a balance sheeti) Financial Statements showing the consolidated financial condition and results of operations of the Loan Parties Companies as of, and for the monthperiod from the beginning of the current fiscal year to, year-to-date and, if applicable, quarter period ended on, that such last day. The Loan Parties’ certificate included , and (ii) a Financial Report Certificate with the unaudited financial statements will, at a minimum, include a statement that respect to such financial statements were prepared in accordance with the Accounting Practices (subject to normal year-end adjustments and the absence of footnote disclosures) and present fairly, in all material respects, the consolidated financial condition and results of operations of the Loan PartiesFinancial Statements.
(c) Promptly after preparation, preparation (and no later than thirty the later of 15 days (30a) days after such filing is due or (b) after timely filing, if filed with the last day Securities and Exchange Commission), true copies of each fiscal quarter all regular and periodic reports, statements, documents, plans, and other written communications furnished by or on behalf of Loan Parties:
(i) a management discussion any Company to stockholders or to the Securities and analysis that includes a discussion and explanation of material variances among (A) the comparison Exchange Commission. However, only registration statements covering more than 2 percent of the Loan Parties’ actual operating results Borrower's outstanding shares of common stock shall be required to budget for such fiscal quarter and for be furnished unless specifically requested by the year to date period then ended, (B) the comparison of the Loan Parties’ operating results for such fiscal quarter and for the year to date period then ended to the corresponding periods in the prior year and (C) a comparison of the Loan Parties’ operating results for such fiscal quarter to the immediately preceding fiscal quarter; and
(ii) a Compliance Certificate with respect to such financial statements certifying (A) as to the Loan Parties’ compliance with the financial covenants set forth in Section 10 of this Agreement, and (B) that such financial statements (I) were prepared on a basis consistent with the Accounting Practices (subject to normal year-end adjustments and the absence of footnote disclosures), and (II) present fairly, in all material respects, the consolidated financial condition and results of operations of the Loan PartiesAdministrative Agent.
(d) Promptly after preparationupon receipt thereof, and no later than the last day copies of January of each year any notices received from any Tribunal (assuming a fiscal year end of December 31)including, an annual operating plan (with a level of detail consistent with the Projectionswithout limitation, state regulatory agencies) for the Loan Parties on a consolidated basis, approved by the Board of Directors of the Company, for the current fiscal year (if delivered in January of such year), that (i) includes a statement of all of the material assumptions on which such plan is based, (ii) includes budgeted monthly balance sheets, income statements and statements of cash flows for such fiscal year, as well as comparisons of such items relating to the corresponding months in the prior fiscal year, and (iii) integrates sales, gross profits, operating expenses, operating profit and cash flow projections, all prepared on the same basis and in similar detail as that on possible violation or violation of any Law which operating results are reported (and in the case of cash flow projections, representing management’s good faith estimates of future financial performance based on historical performance), and including plans for personnel, Capital Expenditures and facilities; provided, however, that with respect to fiscal year 2016, the operating plan shall be prepared consistent with the Loan Parties’ historical practices, and include monthly budgeted profit and loss (but not balance sheet) information only. Agent and Lenders acknowledge and agree that such projections are estimates only and that actual financial performance may vary materially from that set forth in such projectionsmight have a Material Adverse Effect.
(e) Promptly after preparation, and no later than five (5) Business Days after the Loan Parties’ federal income tax return has been filed, copies of each federal income tax return (and Form K-1’s, if applicable) and to the extent reasonably requested by the Agent, related tax reporting information for each Loan Party for the applicable fiscal year.
(f) Promptly after receipt, a copy of each interim or special audit report and management letter issued by independent accountants with respect to any Loan Party or its financial records.
(g) Notice, promptly after any Loan Party receives notice of, the Borrower knows or otherwise becomes aware has reason to know of, (i) the institution existence of any Material Litigation involving any Loan Party which, if adversely determined, could reasonably be expected to result as defined in a Material Adverse EventSection 3.6, (ii) any other event which could reasonably be expected to result material change in a Material Adverse Eventany material fact or circumstance represented or warranted in any Loan Paper, or (iii) any violation by any Loan Party of ERISA or any Law with respect to an Employee Plan, where there is any reasonable likelihood of the imposition of liability on such Loan Party as a result thereof that could be reasonably expected to result in a Material Adverse Event, or (iv) any Default or Potential Event of Default, specifying the nature thereof and what action, if any, each Loan Party action the Borrower or any other Company has taken, is taking taking, or proposes to taketake with respect thereto.
(f) Notice, promptly after the Borrower knows or has reason to know of, a Subsidiary Encumbrance, as defined in Section 5.24(c).
(g) Promptly upon the Administrative Agent's reasonable request, such information (not otherwise required to be furnished under the Loan Papers) respecting the business affairs, assets, and liabilities of any Company, and any opinions, certifications, and documents, in addition to those mentioned herein.
Appears in 1 contract
Samples: 364 Day Revolving Credit Agreement (Centurytel Inc)
Items to be Furnished. The Loan Parties Borrower shall cause the following to be furnished to Agent, for distribution to each Lender at its respective principal office, as designated by each Lender to Agent and Loan Parties from time to timeLender:
(a) Promptly after preparation, and no later than one hundred twenty (120) days after the last day of With respect to each fiscal year of the Loan Parties (providedCompanies, that, for the fiscal year ending December 31, 2015, the delivery date shall be one hundred eighty (180) days within 5 Business Days after the last day date required to be filed with the Securities and Exchange Commission as part of such fiscal year)the Companies’ periodic reporting, audited financial statements (including statements of income, cash flows and Equityholders’ equity and a balance sheet) Financial Statements showing the consolidated financial condition and results of operations of the Loan Parties Companies as of, and for the year ended on, that last day, accompanied by:
: (iA) the unqualified opinion of a firm of independent certified public accountants acceptable to Lenders (the “Registered Public Accounting Firm”)” (as such term is specified in the Securities Laws) of nationally-recognized standing, based on an audit using generally accepted auditing standardsstandards and applicable Securities Laws, that the financial statements Financial Statements were prepared in accordance with GAAP and present fairly, in all material respects, the consolidated financial condition and results of operations of the Loan Parties; and
Companies, (iiB) any management letter prepared by the accounting firm delivered in connection with its audit, (C) a certificate from the accounting firm to Administrative Agent indicating that during its audit it obtained no knowledge of any Default or Potential Default, or if it obtained knowledge, the nature and period of existence thereof, and (D) a Compliance Certificate with respect to such financial statements certifying (A) as to the Loan Parties’ compliance with the financial covenants set forth in Section 10 of this Agreement and (B) that such financial statements were prepared in accordance with the Accounting Practices (subject to normal year-end adjustments and the absence of footnote disclosures) and present fairly, in all material respects, the consolidated financial condition and results of operations of the Loan PartiesFinancial Statements.
(b) Promptly after preparationWith respect to each fiscal quarter of the Companies (other than the last fiscal quarter of each fiscal year), and no later than thirty (30) days within 5 Business Days after the last day of each calendar month date required to be filed with the Securities and Exchange Commission as part of the Loan PartiesCompanies periodic reportings, internally-certified unaudited financial statements (including consolidated statements of income and cash flows and a balance sheet) Financial Statements showing the consolidated financial condition and results of operations of the Loan Parties as of, and for the month, year-to-date and, if applicable, quarter period ended on, that last day. The Loan Parties’ certificate included with the unaudited financial statements will, at a minimum, include a statement that such financial statements were prepared in accordance with the Accounting Practices (subject to normal year-end adjustments and the absence of footnote disclosures) and present fairly, in all material respects, the consolidated financial condition and results of operations of the Loan Parties.
(c) Promptly after preparation, and no later than thirty (30) days after the last day of each fiscal quarter of Loan Parties:
(i) a management discussion and analysis that includes a discussion and explanation of material variances among (A) the comparison of the Loan Parties’ actual operating results to budget Companies for such fiscal quarter and for the period from the beginning of the current fiscal year to date period then ended, (B) the comparison last day of the Loan Parties’ operating results for such fiscal quarter and for the year to date period then ended to the corresponding periods in the prior year and (C) a comparison of the Loan Parties’ operating results for such fiscal quarter to the immediately preceding fiscal quarter; and
(ii) , accompanied by a Compliance Certificate with respect to such financial statements certifying (A) as to the Loan Parties’ compliance with the financial covenants set forth in Section 10 of this Agreement, and (B) that such financial statements (I) were prepared on a basis consistent with the Accounting Practices (subject to normal year-end adjustments and the absence of footnote disclosures), and (II) present fairly, in all material respects, the consolidated financial condition and results of operations of the Loan PartiesFinancial Statements.
(d) Promptly after preparation, and no later than the last day of January of each year (assuming a fiscal year end of December 31), an annual operating plan (with a level of detail consistent with the Projections) for the Loan Parties on a consolidated basis, approved by the Board of Directors of the Company, for the current fiscal year (if delivered in January of such year), that (i) includes a statement of all of the material assumptions on which such plan is based, (ii) includes budgeted monthly balance sheets, income statements and statements of cash flows for such fiscal year, as well as comparisons of such items to the corresponding months in the prior fiscal year, and (iii) integrates sales, gross profits, operating expenses, operating profit and cash flow projections, all prepared on the same basis and in similar detail as that on which operating results are reported (and in the case of cash flow projections, representing management’s good faith estimates of future financial performance based on historical performance), and including plans for personnel, Capital Expenditures and facilities; provided, however, that with respect to fiscal year 2016, the operating plan shall be prepared consistent with the Loan Parties’ historical practices, and include monthly budgeted profit and loss (but not balance sheet) information only. Agent and Lenders acknowledge and agree that such projections are estimates only and that actual financial performance may vary materially from that set forth in such projections.
(e) Promptly after preparation, and no later than five (5) Business Days after the Loan Parties’ federal income tax return has been filed, copies of each federal income tax return (and Form K-1’s, if applicable) and to the extent reasonably requested by the Agent, related tax reporting information for each Loan Party for the applicable fiscal year.
(fc) Promptly after receipt, a copy of each interim or special audit report report, management letter, and management letter recommendations issued by independent accountants with respect to any Loan Party Company or its financial records.
(gd) Notice, promptly after any Loan Party receives notice ofCompany knows or has reason to know, or otherwise becomes aware of, of (i) the institution existence and status of any Litigation involving any Loan Party whichthat, if determined adversely determinedto any Company, could reasonably would be expected to result in a Material Adverse Event, (ii) any other event which could reasonably be expected to result change in a Material Adverse Event, (iii) any violation by any Loan Party of ERISA material fact or any Law with respect to an Employee Plan, where there is any reasonable likelihood of the imposition of liability on such Loan Party as a result thereof that could be reasonably expected to result in a Material Adverse Event, or (iv) any Default or Potential Default, specifying the nature thereof and what action, if any, each Loan Party has taken, is taking or proposes to take.circumstance represented or
Appears in 1 contract
Samples: Credit Agreement (Vail Resorts Inc)
Items to be Furnished. The Loan Parties Borrower shall cause the following to be furnished to Agent, for distribution to each Lender at its respective principal office, as designated by each Lender to Administrative Agent and Loan Parties from time to timeeach Lender:
(a) Promptly after preparation, and no later than one hundred twenty (120100) days after the last day of each fiscal year of the Loan Parties (providedBorrower, that, for the fiscal year ending December 31, 2015, the delivery date shall be one hundred eighty (180) days after the last day of such fiscal year), audited financial statements (including statements of income, cash flows and Equityholders’ equity and a balance sheet) Financial Statements showing the consolidated financial condition and results of operations of the Loan Parties Companies as of, and for the year ended on, that last day, accompanied by:
(i) the unqualified opinion of a firm of independent certified public accountants acceptable to Lenders (the “Accounting Firm”)Borrower’s Accountants, based on an audit using generally accepted auditing standards, that the financial statements Financial Statements were prepared in accordance with GAAP and present fairly, in all material respects, the consolidated financial condition and results of operations of the Loan Parties; Companies,
(ii) certificate from the accounting firm to Administrative Agent indicating that during its audit it obtained no knowledge of any Default or Potential Default or, if it obtained knowledge, the nature and period of existence thereof, and
(iiiii) a Compliance Certificate with respect to such financial statements certifying (A) as to the Loan Parties’ compliance with the financial covenants set forth in Section 10 of this Agreement and (B) that such financial statements were prepared in accordance with the Accounting Practices (subject to normal year-end adjustments and the absence of footnote disclosures) and present fairly, in all material respects, the consolidated financial condition and results of operations of the Loan PartiesFinancial Statements.
(b) Promptly after preparation, and no later than thirty fifty (3050) days after the last day of each calendar month the first three fiscal quarters of the Loan PartiesBorrower, internally-certified unaudited financial statements (including consolidated statements of income and cash flows and a balance sheet) Financial Statements showing the consolidated financial condition and results of operations of the Loan Parties as of, Companies for the fiscal quarter and for the monthperiod from the beginning of the current fiscal year to the last day of the fiscal quarter, year-to-date and, if applicable, quarter period ended on, that last day. The Loan Parties’ certificate included with the unaudited financial statements will, at a minimum, include a statement that such financial statements were prepared in accordance with the Accounting Practices (subject to normal ordinary year-end adjustments and adjustments, accompanied by a Compliance Certificate with respect to the absence of footnote disclosures) and present fairly, in all material respects, the consolidated financial condition and results of operations of the Loan PartiesFinancial Statements.
(c) Promptly after preparation, and no later than Within thirty (30) days after the last day end of each fiscal quarter year of Loan Parties:
Borrower (i) commencing with the fiscal year ending on or about March 31, 2016), the financial budget for the next succeeding fiscal year, accompanied by a management discussion and analysis certificate executed by a Responsible Officer certifying that includes a discussion and explanation of material variances among (A) the comparison budget was prepared by Borrower based on assumptions that, in light of the Loan Parties’ actual operating results to budget for such fiscal quarter historical performance of the Companies and their prospects for the year to date period then endedfuture, (B) the comparison are reasonable as of the Loan Parties’ operating results for such fiscal quarter and for the year to date period then ended to the corresponding periods in the prior year and (C) a comparison of the Loan Parties’ operating results for such fiscal quarter to the immediately preceding fiscal quarter; and
(ii) a Compliance Certificate with respect to such financial statements certifying (A) as to the Loan Parties’ compliance with the financial covenants set forth in Section 10 of this Agreement, and (B) that such financial statements (I) were prepared on a basis consistent with the Accounting Practices (subject to normal year-end adjustments and the absence of footnote disclosures), and (II) present fairly, in all material respects, the consolidated financial condition and results of operations of the Loan Partiesprepared.
(d) Promptly after preparation, and no later than the last day of January of each year (assuming a fiscal year end of December 31), an annual operating plan (with a level of detail consistent with the Projections) for the Loan Parties on a consolidated basis, approved by the Board of Directors of the Company, for the current fiscal year (if delivered in January of such year), that (i) includes a statement of all of the material assumptions on which such plan is based, (ii) includes budgeted monthly balance sheets, income statements and statements of cash flows for such fiscal year, as well as comparisons of such items to the corresponding months in the prior fiscal year, and (iii) integrates sales, gross profits, operating expenses, operating profit and cash flow projections, all prepared on the same basis and in similar detail as that on which operating results are reported (and in the case of cash flow projections, representing management’s good faith estimates of future financial performance based on historical performance), and including plans for personnel, Capital Expenditures and facilities; provided, however, that with respect to fiscal year 2016, the operating plan shall be prepared consistent with the Loan Parties’ historical practices, and include monthly budgeted profit and loss (but not balance sheet) information only. Agent and Lenders acknowledge and agree that such projections are estimates only and that actual financial performance may vary materially from that set forth in such projections.
(e) Promptly after preparation, and no later than five (5) Business Days after the Loan Parties’ federal income tax return has been filed, copies of each federal income tax return (and Form K-1’s, if applicable) and to the extent reasonably requested by the Agent, related tax reporting information for each Loan Party for the applicable fiscal year.
(f) Promptly after receipt, a copy of each interim or special audit report and management letter issued by independent accountants Borrower’s Accountants with respect to any Loan Party Company or its financial records.
(ge) Notice, promptly after any Loan Party receives notice ofBorrower knows or has reason to know, or otherwise becomes aware of, of (i) the institution existence and status of any Litigation involving that, if determined adversely to any Company, would be a Material Adverse Event; (ii) any change in any material fact or circumstance represented or warranted by any Company in any Loan Party which, if adversely determined, Paper; (iii) the receipt by any Company of notice of any violation or alleged violation of ERISA or any Environmental Law (which individually or collectively with other violations or allegations could reasonably be expected to result in constitute a Material Adverse Event, (ii) any other event which could reasonably be expected to result in a Material Adverse Event, (iii) any violation by any Loan Party of ERISA or any Law with respect to an Employee Plan, where there is any reasonable likelihood of the imposition of liability on such Loan Party as a result thereof that could be reasonably expected to result in a Material Adverse Event, ); or (iv) any a Default or Potential Default, specifying the nature thereof and what action, if any, each Loan Party has action the Companies have taken, is taking are taking, or proposes propose to take.
(f) Promptly after filing, copies of all material reports or filings filed by or on behalf of any Company with any Tribunal.
(g) Promptly following a request therefor, all documentation and other information that any Lender reasonably requests in writing as necessary in order for it to comply with its ongoing obligations under applicable “know your customer” and anti-money laundering rules and regulations, including the USA Patriot Act.
(h) Promptly upon reasonable request by Administrative Agent or Majority Lenders (through Administrative Agent), information (not otherwise required to be furnished under the Loan Papers) respecting the business affairs, assets, and liabilities of the Companies and opinions, projections, certifications, and documents in addition to those mentioned in this Agreement.
Appears in 1 contract
Items to be Furnished. The Loan Parties Borrower shall cause the following to be furnished to Agent, for distribution to the Administrative Agent and each Lender at its respective principal office, as designated by each Lender to Agent and Loan Parties from time to time:(through the Administrative Agent):
(a) Promptly after preparation, and no later than one hundred twenty (120) 90 days after the last day of each fiscal year of the Loan Parties (providedBorrower, that, for the fiscal year ending December 31, 2015, the delivery date shall be one hundred eighty (180) days after the last day of such fiscal year), audited financial statements (including statements of income, cash flows and Equityholders’ equity and a balance sheet) Financial Statements showing the consolidated financial condition and results of operations of the Loan Parties Companies as of, and for the year ended on, that such last day, accompanied by:
by (i) the unqualified opinion of a KPMG LLP (or another firm of nationally-recognized independent certified public accountants reasonably acceptable to Lenders (the “Accounting Firm”Majority Lenders), based on an audit using generally accepted auditing standards, that the financial statements such Financial Statements were prepared in accordance with GAAP and present fairly, in all material respects, fairly the consolidated financial condition and results of operations of the Loan Parties; and
Companies (and such accountants shall indicate in a letter to the Administrative Agent, that during their audit no Default or Event of Default not already reported was discovered or, if such Default or Event of Default was discovered, the nature and period of existence thereof) and (ii) a Compliance Financial Report Certificate with respect to such financial statements certifying (A) as to the Loan Parties’ compliance with the financial covenants set forth in Section 10 of this Agreement and (B) that such financial statements were prepared in accordance with the Accounting Practices (subject to normal year-end adjustments and the absence of footnote disclosures) and present fairly, in all material respects, the consolidated financial condition and results of operations of the Loan PartiesFinancial Statements.
(b) Promptly after preparation, and no later than thirty (30) 45 days after the last day of each calendar month of the Loan Partiesfirst three quarters of each fiscal year of the Borrower, internally-certified unaudited financial statements (including consolidated statements of income and cash flows and a balance sheeti) Financial Statements showing the consolidated financial condition and results of operations of the Loan Parties Companies as of, and for the monthperiod from the beginning of the current fiscal year to, year-to-date and, if applicable, quarter period ended on, that such last day. The Loan Parties’ certificate included , and (ii) a Financial Report Certificate with the unaudited financial statements will, at a minimum, include a statement that respect to such financial statements were prepared in accordance with the Accounting Practices (subject to normal year-end adjustments and the absence of footnote disclosures) and present fairly, in all material respects, the consolidated financial condition and results of operations of the Loan PartiesFinancial Statements.
(c) Promptly after preparation, preparation (and no later than thirty the later of 15 days (30a) days after such filing is due or (b) after timely filing, if filed with the last day SEC), true copies of each fiscal quarter all regular and periodic reports, proxy statements and filings on Form 8-K furnished by or on behalf of Loan Parties:
(i) a management discussion and analysis that includes a discussion and explanation of material variances among (A) any Company to stockholders generally or filed with the comparison SEC. However, only registration statements covering more than 2% of the Loan Parties’ actual operating results Borrower’s outstanding shares of common stock shall be required to budget for such fiscal quarter and for be furnished unless specifically requested by the year to date period then ended, (B) the comparison of the Loan Parties’ operating results for such fiscal quarter and for the year to date period then ended to the corresponding periods in the prior year and (C) a comparison of the Loan Parties’ operating results for such fiscal quarter to the immediately preceding fiscal quarter; and
(ii) a Compliance Certificate with respect to such financial statements certifying (A) as to the Loan Parties’ compliance with the financial covenants set forth in Section 10 of this Agreement, and (B) that such financial statements (I) were prepared on a basis consistent with the Accounting Practices (subject to normal year-end adjustments and the absence of footnote disclosures), and (II) present fairly, in all material respects, the consolidated financial condition and results of operations of the Loan PartiesAdministrative Agent.
(d) Promptly after preparationupon receipt thereof, and no later than the last day copies of January of each year any notices received from any Tribunal (assuming a fiscal year end of December 31)including, an annual operating plan (with a level of detail consistent with the Projectionswithout limitation, state regulatory agencies) for the Loan Parties on a consolidated basis, approved by the Board of Directors of the Company, for the current fiscal year (if delivered in January of such year), that (i) includes a statement of all of the material assumptions on which such plan is based, (ii) includes budgeted monthly balance sheets, income statements and statements of cash flows for such fiscal year, as well as comparisons of such items relating to the corresponding months in the prior fiscal year, and (iii) integrates sales, gross profits, operating expenses, operating profit and cash flow projections, all prepared on the same basis and in similar detail as that on possible violation or violation of any Law which operating results are reported (and in the case of cash flow projections, representing management’s good faith estimates of future financial performance based on historical performance), and including plans for personnel, Capital Expenditures and facilities; provided, however, that with respect to fiscal year 2016, the operating plan shall be prepared consistent with the Loan Parties’ historical practices, and include monthly budgeted profit and loss (but not balance sheet) information only. Agent and Lenders acknowledge and agree that such projections are estimates only and that actual financial performance may vary materially from that set forth in such projectionsmight have a Material Adverse Effect.
(e) Promptly after preparation, and no later than five (5) Business Days after the Loan Parties’ federal income tax return has been filed, copies of each federal income tax return (and Form K-1’s, if applicable) and to the extent reasonably requested by the Agent, related tax reporting information for each Loan Party for the applicable fiscal year.
(f) Promptly after receipt, a copy of each interim or special audit report and management letter issued by independent accountants with respect to any Loan Party or its financial records.
(g) Notice, promptly after any Loan Party receives notice of, the Borrower knows or otherwise becomes aware has reason to know of, (i) the institution existence of any material Litigation involving any Loan Party which, if adversely determined, could reasonably be expected to result as defined in a Material Adverse EventSection 4.6, (ii) any other event which could reasonably be expected to result material change in a Material Adverse Eventany material fact or circumstance represented or warranted in any Loan Paper, or (iii) any violation by any Loan Party of ERISA or any Law with respect to an Employee Plan, where there is any reasonable likelihood of the imposition of liability on such Loan Party as a result thereof that could be reasonably expected to result in a Material Adverse Event, or (iv) any Default or Potential Event of Default, specifying the nature thereof and what action, if any, each Loan Party action the Borrower or any other Company has taken, is taking taking, or proposes to taketake with respect thereto.
(f) Notice, promptly after the Borrower knows or has reason to know of, a Subsidiary Encumbrance, as defined in Section 7.14(b).
(g) Within 10 days after execution thereof, copies of any supplements, modifications or amendments to the Equity Units documentation.
(h) Promptly upon the Administrative Agent’s or any Lender’s reasonable request, such information (not otherwise required to be furnished under the Loan Papers) respecting the business affairs, assets, and liabilities of any Company, and any opinions, certifications, and documents, in addition to those mentioned herein.
(i) Promptly following receipt thereof, copies of any documents described in sections 101(k) or 101(l) of ERISA that any Company or any ERISA Affiliate may request with respect to any Multiemployer Plan; provided, that if the Companies or any of their ERISA Affiliates have not requested such documents or notices from the administrator or sponsor of the applicable Multiemployer Plan, then, upon reasonable request of the Administrative Agent, the Companies and/or their ERISA Affiliates shall promptly make a request for such documents or notices from such administrator or sponsor and the Borrower shall provide copies of such documents and notices to the Administrative Agent promptly after receipt thereof.
(j) Notice, promptly after any Company or ERISA Affiliate knows or has reason to know of, (i) the failure of any Plan to comply with any material provisions of ERISA and/or the Code (and applicable regulations under either) or with the material terms of such Plan; (ii) the failure of any Plan to meet the minimum funding standards (within the meaning of Section 412 of the Code or section 302 of ERISA) applicable to such Plan (whether or not waived), the filing pursuant to section 412(c) of the Code or section 302(c) of ERISA of an application for a waiver of the minimum funding standard with respect to any Plan, or the receipt by any Plan of a determination that it is, or is expected to be in “at risk” status (within the meaning of section 430 of the Code or Section 303 of ERISA; (iii) the incurrence by any Company or ERISA Affiliate of liability to the PBGC in connection with any Plan; (iv) the withdrawal (in whole or in part) by any Company or ERISA Affiliate from participation in a Plan or Multiemployer Plan or receipt by any Company or ERISA Affiliate of notice from any Multiemployer Plan with respect to the imposition of Withdrawal Liability or that such Multiemployer Plan is, or is expected to be Insolvent, in Reorganization, “terminated” (within the meaning of section 4041A of ERISA), or in “endangered” or “critical” status (within the meaning of section 432 of the Code or section 305 of ERISA); (v) the occurrence of a non-exempt Prohibited Transaction or a Reportable Event (excluding any Reportable Event that occurs solely as a result of the consummation of the Transactions); or (vi) the failure of any insured medical plan sponsored by any Company for any current or former employee(s) to satisfy the non-discrimination requirements of section 105 of the Code.
(k) Concurrently with the delivery of any Financial Statements pursuant to clause (a) or (b) above, a list of the Significant Subsidiaries as of the last day of the relevant fiscal period. Financial statements, opinions of independent certified public accountants, other information and officers’ certificates required to be delivered by the Borrower pursuant to Sections 4.4 and 6.3 shall be deemed to have been delivered if any of the following, to the extent applicable, are satisfied: (i) such financial statements satisfying the requirements of Sections 4.4 and 6.3 and related certificate satisfying the requirements of Section 6.3 are delivered to the Lenders by e-mail, (ii) the Borrower shall have timely filed such Form 10-Q or Form 10-K, satisfying the requirements of Section 6.3 as the case may be, with the SEC on “XXXXX” and shall have made such form and the related certificate satisfying the requirements of Section 6.3 available on the Investor Relations portion of its home page on the worldwide web (at the date of this Agreement located at xxxx://xxx.xxxxxxxxxxx.xxx), (iii) such financial statements satisfying the requirements of Section 6.3 are timely posted by or on behalf of the Company on SyndTrak Online, IntraLinks or on any other similar website to which each Lender has free access or (iv) the Borrower shall have filed any of the items referred to in Section 6.3 with the SEC on “XXXXX” and shall have made such items available on the Investor Relations portion of its home page on the worldwide web or if any of such items are timely posted by or on behalf of the Borrower on IntraLinks or on any other similar website to which each Lender has free access; provided, however, that upon request of any Lender, the Borrower will thereafter deliver written copies of such forms, financial statements, other information and certificates to such Lender.
Appears in 1 contract
Items to be Furnished. The Loan Parties Borrower shall cause the following to be furnished to Agent, for distribution to the Administrative Agent and each Lender at its respective principal office, as designated by each Lender to Agent and Loan Parties from time to time:(through the Administrative Agent):
(a) Promptly after preparation, and no later than one hundred twenty (120) 90 days after the last day of each fiscal year of the Loan Parties (providedBorrower, that, for the fiscal year ending December 31, 2015, the delivery date shall be one hundred eighty (180) days after the last day of such fiscal year), audited financial statements (including statements of income, cash flows and Equityholders’ equity and a balance sheet) Financial Statements showing the consolidated financial condition and results of operations of the Loan Parties Companies as of, and for the year ended on, that such last day, accompanied by:
by (i) the unqualified opinion of a KPMG LLP (or another firm of nationally-recognized independent certified public accountants reasonably acceptable to Lenders (the “Accounting Firm”Majority Lenders), based on an audit using generally accepted auditing standards, that the financial statements such Financial Statements were prepared in accordance with GAAP and present fairly, in all material respects, fairly the consolidated financial condition and results of operations of the Loan Parties; and
Companies (and such accountants shall indicate in a letter to the Administrative Agent, that during their audit no Default or Event of Default not already reported was discovered or, if such Default or Event of Default was discovered, the nature and period of existence thereof) and (ii) a Compliance Financial Report Certificate with respect to such financial statements certifying (A) as to the Loan Parties’ compliance with the financial covenants set forth in Section 10 of this Agreement and (B) that such financial statements were prepared in accordance with the Accounting Practices (subject to normal year-end adjustments and the absence of footnote disclosures) and present fairly, in all material respects, the consolidated financial condition and results of operations of the Loan PartiesFinancial Statements.
(b) Promptly after preparation, and no later than thirty (30) 45 days after the last day of each calendar month of the Loan Partiesfirst three quarters of each fiscal year of the Borrower, internally-certified unaudited financial statements (including consolidated statements of income and cash flows and a balance sheeti) Financial Statements showing the consolidated financial condition and results of operations of the Loan Parties Companies as of, and for the monthperiod from the beginning of the current fiscal year to, year-to-date and, if applicable, quarter period ended on, that such last day. The Loan Parties’ certificate included , and (ii) a Financial Report Certificate with the unaudited financial statements will, at a minimum, include a statement that respect to such financial statements were prepared in accordance with the Accounting Practices (subject to normal year-end adjustments and the absence of footnote disclosures) and present fairly, in all material respects, the consolidated financial condition and results of operations of the Loan PartiesFinancial Statements.
(c) Promptly after preparation, preparation (and no later than thirty the later of 15 days (30a) days after such filing is due or (b) after timely filing, if filed with the last day SEC), true copies of each fiscal quarter all regular and periodic reports, proxy statements and filings on Form 8-K furnished by or on behalf of Loan Parties:
(i) a management discussion and analysis that includes a discussion and explanation of material variances among (A) any Company to stockholders generally or filed with the comparison SEC. However, only registration statements covering more than 2% of the Loan Parties’ actual operating results Borrower’s outstanding shares of common stock shall be required to budget for such fiscal quarter and for be furnished unless specifically requested by the year to date period then ended, (B) the comparison of the Loan Parties’ operating results for such fiscal quarter and for the year to date period then ended to the corresponding periods in the prior year and (C) a comparison of the Loan Parties’ operating results for such fiscal quarter to the immediately preceding fiscal quarter; and
(ii) a Compliance Certificate with respect to such financial statements certifying (A) as to the Loan Parties’ compliance with the financial covenants set forth in Section 10 of this Agreement, and (B) that such financial statements (I) were prepared on a basis consistent with the Accounting Practices (subject to normal year-end adjustments and the absence of footnote disclosures), and (II) present fairly, in all material respects, the consolidated financial condition and results of operations of the Loan PartiesAdministrative Agent.
(d) Promptly after preparationupon receipt thereof, and no later than the last day copies of January of each year any notices received from any Tribunal (assuming a fiscal year end of December 31)including, an annual operating plan (with a level of detail consistent with the Projectionswithout limitation, state regulatory agencies) for the Loan Parties on a consolidated basis, approved by the Board of Directors of the Company, for the current fiscal year (if delivered in January of such year), that (i) includes a statement of all of the material assumptions on which such plan is based, (ii) includes budgeted monthly balance sheets, income statements and statements of cash flows for such fiscal year, as well as comparisons of such items relating to the corresponding months in the prior fiscal year, and (iii) integrates sales, gross profits, operating expenses, operating profit and cash flow projections, all prepared on the same basis and in similar detail as that on possible violation or violation of any Law which operating results are reported (and in the case of cash flow projections, representing management’s good faith estimates of future financial performance based on historical performance), and including plans for personnel, Capital Expenditures and facilities; provided, however, that with respect to fiscal year 2016, the operating plan shall be prepared consistent with the Loan Parties’ historical practices, and include monthly budgeted profit and loss (but not balance sheet) information only. Agent and Lenders acknowledge and agree that such projections are estimates only and that actual financial performance may vary materially from that set forth in such projectionsmight have a Material Adverse Effect.
(e) Promptly after preparation, and no later than five (5) Business Days after the Loan Parties’ federal income tax return has been filed, copies of each federal income tax return (and Form K-1’s, if applicable) and to the extent reasonably requested by the Agent, related tax reporting information for each Loan Party for the applicable fiscal year.
(f) Promptly after receipt, a copy of each interim or special audit report and management letter issued by independent accountants with respect to any Loan Party or its financial records.
(g) Notice, promptly after any Loan Party receives notice of, the Borrower knows or otherwise becomes aware has reason to know of, (i) the institution existence of any material Litigation involving any Loan Party which, if adversely determined, could reasonably be expected to result as defined in a Material Adverse EventSection 3.6, (ii) any other event which could reasonably be expected to result material change in a Material Adverse Eventany material fact or circumstance represented or warranted in any Loan Paper, or (iii) any violation by any Loan Party of ERISA or any Law with respect to an Employee Plan, where there is any reasonable likelihood of the imposition of liability on such Loan Party as a result thereof that could be reasonably expected to result in a Material Adverse Event, or (iv) any Default or Potential Event of Default, specifying the nature thereof and what action, if any, each Loan Party action the Borrower or any other Company has taken, is taking taking, or proposes to taketake with respect thereto.
(f) Notice, promptly after the Borrower knows or has reason to know of, a Subsidiary Encumbrance, as defined in Section 6.14(b), except with respect to Permitted Refinancing Debt.
(g) Within 10 days after execution thereof, copies of any supplements, modifications or amendments to the Equity Units documentation.
(h) Promptly upon the Administrative Agent’s or any Lender’s reasonable request, such information (not otherwise required to be furnished under the Loan Papers) respecting the business affairs, assets, and liabilities of any Company, and any opinions, certifications, and documents, in addition to those mentioned herein.
(i) Promptly following receipt thereof, copies of any documents described in sections 101(k) or 101(l) of ERISA that any Company or any ERISA Affiliate may request with respect to any Multiemployer Plan or documents described in Section 101(f) of ERISA that any Company or any ERISA Affiliate may request with respect to any Plan; provided, that if the Companies or any of their ERISA Affiliates have not requested such documents or notices from the administrator or sponsor of the applicable Multiemployer Plan, then, upon reasonable request of the Administrative Agent, the Companies and/or their ERISA Affiliates shall promptly make a request for such documents or notices from such administrator or sponsor and the Borrower shall provide copies of such documents and notices to the Administrative Agent promptly after receipt thereof.
(j) Notice, promptly after any Company or ERISA Affiliate knows or has reason to know of, (i) the failure of any Plan to comply with any material provisions of ERISA and/or the Code (and applicable regulations under either) or with the material terms of such Plan; (ii) the failure of any Plan to meet the minimum funding standards (within the meaning of Section 412 of the Code or section 302 of ERISA) applicable to such Plan (whether or not waived), the filing pursuant to section 412(c) of the Code or section 302(c) of ERISA of an application for a waiver of the minimum funding standard with respect to any Plan, or the receipt by any Plan of a determination that it is, or is expected to be in “at risk” status (within the meaning of section 430 of the Code or Section 303 of ERISA; (iii) the incurrence by any Company or ERISA Affiliate of liability to the PBGC in connection with any Plan; (iv) the withdrawal (in whole or in part) by any Company or ERISA Affiliate from participation in a Plan or Multiemployer Plan or receipt by any Company or ERISA Affiliate of notice from any Multiemployer Plan with respect to the imposition of Withdrawal Liability or that such Multiemployer Plan is, or is expected to be Insolvent, in Reorganization, “terminated” (within the meaning of section 4041A of ERISA), or in “endangered” or “critical” status (within the meaning of section 432 of the Code or section 305 of ERISA); (v) the occurrence of a non-exempt Prohibited Transaction or a Reportable Event (excluding any Reportable Event that occurs solely as a result of the consummation of this Agreement); or (vi) the failure of any insured medical plan sponsored by any Company for any current or former employee(s) to satisfy the non-discrimination requirements of section 105 of the Code.
(k) Concurrently with the delivery of any Financial Statements pursuant to clause (a) or (b) above, a list of the Guarantor Significant Subsidiaries as of the last day of the relevant fiscal period.
(l) Notice, promptly after the Borrower knows or has reason to know of the acquisition of one or more Excluded Specified Subsidiaries. Financial statements, opinions of independent certified public accountants, other information and officers’ certificates required to be delivered by the Borrower pursuant to Sections 3.4 and 5.3 shall be deemed to have been delivered if any of the following, to the extent applicable, are satisfied: (i) such financial statements satisfying the requirements of Sections 3.4 and 5.3 and related certificate satisfying the requirements of Section 5.3 are delivered to the Lenders by e-mail, (ii) the Borrower shall have timely filed such Form 10-Q or Form 10-K, satisfying the requirements of Section 5.3 as the case may be, with the SEC on “XXXXX” and shall have made such form and the related certificate satisfying the requirements of Section 5.3 available on the Investor Relations portion of its home page on the worldwide web (at the ClosingFirst Amendment Effective Date located at xxxx://xxx.xxxxxxxxxxx.xxx), (iii) such financial statements satisfying the requirements of Section 5.3 are timely posted by or on behalf of the Company on SyndTrak Online, IntraLinks or on any other similar website to which each Lender has free access or (iv) the Borrower shall have filed any of the items referred to in Section 5.3 with the SEC on “XXXXX” and shall have made such items available on the Investor Relations portion of its home page on the worldwide web or if any of such items are timely posted by or on behalf of the Borrower on IntraLinks or on any other similar website to which each Lender has free access; provided, however, that upon request of any Lender, the Borrower will thereafter deliver written copies of such forms, financial statements, other information and certificates to such Lender.
Appears in 1 contract
Samples: Credit Agreement (Centurylink, Inc)
Items to be Furnished. The Loan Parties Guarantor shall cause the following to be furnished to Agent, for distribution to each Lender at its respective principal office, as designated by each Lender to Agent and Loan Parties from time to timeLessor:
(a) i. Promptly after preparation, and no later than one hundred twenty (120100) days after the last day of each fiscal year of the Loan Parties (providedGuarantor, that, for the fiscal year ending December 31, 2015, the delivery date shall be one hundred eighty (180) days after the last day of such fiscal year), audited financial statements (including statements of income, cash flows and Equityholders’ equity and a balance sheet) Financial Statements showing the consolidated financial condition and results of operations of the Loan Parties Companies as of, and for the year ended on, that last day, accompanied by:
(i) the unqualified opinion of a firm of independent certified public accountants acceptable to Lenders (the “Accounting Firm”)Guarantor's Accountants, based on an audit using generally accepted auditing standards, that the financial statements Financial Statements were prepared in accordance with GAAP and present fairly, in all material respects, the consolidated financial condition and results of operations of the Loan Parties; Companies,
(ii) a certificate from the accounting firm to Lessor indicating that during its audit it obtained no knowledge of any Default or Potential Default or, if it obtained knowledge, the nature and period of existence thereof, and
(iiiii) a Compliance Certificate with respect to such financial statements certifying (A) as to the Loan Parties’ compliance with the financial covenants set forth in Section 10 of this Agreement and (B) that such financial statements were prepared in accordance with the Accounting Practices (subject to normal year-end adjustments and the absence of footnote disclosures) and present fairly, in all material respects, the consolidated financial condition and results of operations of the Loan PartiesFinancial Statements.
(b) ii. Promptly after preparation, and no later than thirty fifty (3050) days after the last day of each calendar month the first three fiscal quarters of the Loan PartiesGuarantor, internally-certified unaudited financial statements (including consolidated statements of income and cash flows and a balance sheet) Financial Statements showing the consolidated financial condition and results of operations of the Loan Parties as of, Companies for the fiscal quarter and for the monthperiod from the beginning of the current fiscal year to the last day of the fiscal quarter, year-to-date and, if applicable, quarter period ended on, that last day. The Loan Parties’ certificate included with the unaudited financial statements will, at a minimum, include a statement that such financial statements were prepared in accordance with the Accounting Practices (subject to normal ordinary year-end adjustments and adjustments, accompanied by a Compliance Certificate with respect to the absence of footnote disclosures) and present fairly, in all material respects, the consolidated financial condition and results of operations of the Loan PartiesFinancial Statements.
(c) Promptly after preparation, and no later than iii. Within thirty (30) days after the last day end of each fiscal quarter year of Loan Parties:
Guarantor (i) a management discussion and analysis that includes a discussion and explanation of material variances among (A) the comparison of the Loan Parties’ actual operating results to budget for such fiscal quarter and for the year to date period then ended, (B) the comparison of the Loan Parties’ operating results for such fiscal quarter and for the year to date period then ended to the corresponding periods in the prior year and (C) a comparison of the Loan Parties’ operating results for such fiscal quarter to the immediately preceding fiscal quarter; and
(ii) a Compliance Certificate with respect to such financial statements certifying (A) as to the Loan Parties’ compliance commencing with the financial covenants set forth in Section 10 of this Agreement, and (B) that such financial statements (I) were prepared on a basis consistent with the Accounting Practices (subject to normal year-end adjustments and the absence of footnote disclosures), and (II) present fairly, in all material respects, the consolidated financial condition and results of operations of the Loan Parties.
(d) Promptly after preparation, and no later than the last day of January of each year (assuming a fiscal year end of December ending March 31), an annual operating plan (with a level of detail consistent with the Projections) for the Loan Parties on a consolidated basis1999, approved by the Board of Directors of the Company, for the current fiscal year (if delivered in January of such year), that (i) includes a statement of all of the material assumptions on which such plan is based, (ii) includes budgeted monthly balance sheets, income statements and statements of cash flows for such fiscal year, as well as comparisons of such items to the corresponding months in the prior fiscal year, and (iii) integrates sales, gross profits, operating expenses, operating profit and cash flow projections, all prepared on the same basis and in similar detail as that on which operating results are reported (and in the case of cash flow financial projections, representing management’s good faith estimates and commencing with the fiscal year ending March 31, 1999, in the case of future financial performance budgets), financial projections for the succeeding three (3) fiscal years and the financial budget for the next succeeding fiscal year, accompanied by a certificate executed by a Responsible Officer certifying that the projections and budget were prepared by Guarantor based on assumptions that, in light of the historical performance)performance of the Companies and their prospects for the future, and including plans for personnel, Capital Expenditures and facilities; provided, however, that with respect to fiscal year 2016, are reasonable as of the operating plan shall be prepared consistent with the Loan Parties’ historical practices, and include monthly budgeted profit and loss (but not balance sheet) information only. Agent and Lenders acknowledge and agree that such projections are estimates only and that actual financial performance may vary materially from that set forth in such projectionsdate prepared.
(e) Promptly after preparation, and no later than five (5) Business Days after the Loan Parties’ federal income tax return has been filed, copies of each federal income tax return (and Form K-1’s, if applicable) and to the extent reasonably requested by the Agent, related tax reporting information for each Loan Party for the applicable fiscal year.
(f) iv. Promptly after receipt, a copy of each interim or special audit report and management letter issued by independent accountants Guarantor's Accountants with respect to any Loan Party Company or its financial records.
(g) Notice, promptly after any Loan Party receives notice of, or otherwise becomes aware of, (i) the institution of any Litigation involving any Loan Party which, if adversely determined, could reasonably be expected to result in a Material Adverse Event, (ii) any other event which could reasonably be expected to result in a Material Adverse Event, (iii) any violation by any Loan Party of ERISA or any Law with respect to an Employee Plan, where there is any reasonable likelihood of the imposition of liability on such Loan Party as a result thereof that could be reasonably expected to result in a Material Adverse Event, or (iv) any Default or Potential Default, specifying the nature thereof and what action, if any, each Loan Party has taken, is taking or proposes to take.
Appears in 1 contract
Samples: Guaranty (Monro Muffler Brake Inc)
Items to be Furnished. The Loan Parties Borrower shall cause the following to be --------------------- furnished to Agent, Administrative Agent for distribution delivery to each Lender at its respective principal office, as designated by each Lender to Agent and Loan Parties from time to timeLenders:
(a) Promptly after preparation, and no later than one hundred twenty (120) 90 days after the last day of each fiscal year of the Loan Parties (providedBorrower, that, for the fiscal year ending December 31, 2015, the delivery date shall be one hundred eighty (180) days after the last day of such fiscal year), audited financial statements (including statements of income, cash flows and Equityholders’ equity and a balance sheet) Financial Statements showing the consolidated and consolidating financial condition and results of operations calculated separately for each of the Loan Parties Companies, as of, and for the year ended on, that last such day, each accompanied by:
(i) the unqualified opinion of a firm of nationally- recognized independent certified public accountants acceptable to Lenders (the “Accounting Firm”)accountants, based on an audit using generally accepted auditing standards, that the financial statements such Financial Statements were prepared in accordance with GAAP and present fairly, in all material respects, fairly the consolidated financial condition and results of operations of the Loan PartiesCompanies; and
(ii) a Compliance Certificate with respect to such financial statements certifying (A) as to the Loan Parties’ compliance with the financial covenants set forth in Section 10 of this Agreement and (B) that such financial statements were prepared in accordance with the Accounting Practices (subject to normal year-end adjustments and the absence of footnote disclosures) and present fairly, in all material respects, the consolidated financial condition and results of operations Financial Statements of the Loan PartiesCompanies, a Compliance Certificate.
(b) Promptly after preparation, and no later than thirty (30) 45 days after the last day of each calendar month fiscal quarter of the Loan PartiesBorrower, internally-certified unaudited financial statements (including consolidated statements of income and cash flows and a balance sheet) Financial Statements showing the consolidated and consolidating financial condition and results of operations of calculated for Borrower and its Subsidiaries and the Loan Parties as of, Companies for such fiscal quarter and for the monthperiod from the beginning of the then-current fiscal year to, year-to-date and, if applicable, quarter period ended on, that such last day. The Loan Parties’ certificate included with the unaudited financial statements will, at accompanied by a minimum, include a statement that such financial statements were prepared in accordance with the Accounting Practices (subject to normal year-end adjustments and the absence of footnote disclosures) and present fairly, in all material respects, the consolidated financial condition and results of operations of the Loan PartiesCompliance Certificate.
(c) Promptly after preparationNo later than forty-five (45) days following the last day of each of September, October, November, and December, 2001, and no later than thirty (30) days after following the last day end of each fiscal quarter of Loan Partiesmonth thereafter, the following:
(i) a management discussion and analysis that includes a discussion and explanation of material variances among (A) Borrowing Base Certificate setting forth the comparison calculation of the Loan Parties’ actual operating results to budget for such fiscal quarter and for the year to date period then endedBorrowing Base, (B) the comparison including a calculation of each component thereof, as of the Loan Parties’ operating results for close of business as of the last day of such fiscal quarter month, all in such detail as shall be satisfactory to Administrative Agent (and for all calculations of the year Borrowing Base in connection with the preparation of any Borrowing Base Certificate shall initially be made by the Borrower and certified to date period then ended Administrative Agent; provided, that Administrative Agent shall have the right to review and adjust, in the exercise of its reasonable credit judgment, any such calculation (x) to reflect its reasonable estimate of declines in value of any of the Collateral described therein, and (y) to the corresponding periods extent that such calculation is not in the prior year and (C) a comparison of the Loan Parties’ operating results for such fiscal quarter to the immediately preceding fiscal quarteraccordance with this Agreement); and
(ii) a Compliance Certificate, dated as of the date of the Borrowing Base Certificate with respect to such financial statements certifying (A) as to the Loan Parties’ compliance be delivered in accordance with the financial covenants set forth in Section 10 of this Agreement, and preceding clause (B) that such financial statements (I) were prepared on a basis consistent with the Accounting Practices (subject to normal year-end adjustments and the absence of footnote disclosuresi), and (II) present fairly, in all material respects, the consolidated financial condition and results of operations of the Loan Parties.
(d) Promptly after preparation, and no later than the last day of January of each year (assuming a fiscal year end of December 31), an annual operating plan (with a level of detail consistent with the Projections) for the Loan Parties on a consolidated basis, approved by the Board of Directors of the Company, for the current fiscal year (if delivered in January of such year), that (i) includes a statement of all of the material assumptions on which such plan is based, (ii) includes budgeted monthly balance sheets, income statements and statements of cash flows for such fiscal year, as well as comparisons of such items to the corresponding months in the prior fiscal year, and (iii) integrates sales, gross profits, operating expenses, operating profit and cash flow projections, all prepared on the same basis and in similar detail as that on which operating results are reported (and in the case of cash flow projections, representing management’s good faith estimates of future financial performance based on historical performance), and including plans for personnel, Capital Expenditures and facilities; provided, however, that with respect to fiscal year 2016, the operating plan shall be prepared consistent with the Loan Parties’ historical practices, and include monthly budgeted profit and loss (but not balance sheet) information only. Agent and Lenders acknowledge and agree that such projections are estimates only and that actual financial performance may vary materially from that set forth in such projections.
(e) Promptly after preparation, and no later than Within five (5) Business Days after the Loan Parties’ federal income tax return has been fileddays of receipt thereof, copies of each federal income tax return (and Form K-1’s, if applicable) and all auditor's annual management letters delivered to the extent reasonably requested by the Agent, related tax reporting information for each Loan Party for the applicable fiscal yearBorrower.
(f) Promptly after receipt, a copy of each interim or special audit report and management letter issued by independent accountants with respect to any Loan Party or its financial records.
(g) Notice, promptly after any Loan Party receives notice of, or otherwise becomes aware of, (i) the institution of any Litigation involving any Loan Party which, if adversely determined, could reasonably be expected to result in a Material Adverse Event, (ii) any other event which could reasonably be expected to result in a Material Adverse Event, (iii) any violation by any Loan Party of ERISA or any Law with respect to an Employee Plan, where there is any reasonable likelihood of the imposition of liability on such Loan Party as a result thereof that could be reasonably expected to result in a Material Adverse Event, or (iv) any Default or Potential Default, specifying the nature thereof and what action, if any, each Loan Party has taken, is taking or proposes to take.
Appears in 1 contract
Items to be Furnished. The Loan Parties Borrower shall cause the following to be furnished to Agent, Administrative Agent for distribution delivery to each Lender at its respective principal office, as designated by each Lender to Agent and Loan Parties from time to timeFacility B Lenders:
(a) Promptly after preparation, and no later than one hundred twenty (120) 90 days after the last day of each fiscal year of the Loan Parties (providedBorrower, that, for the fiscal year ending December 31, 2015, the delivery date shall be one hundred eighty (180) days after the last day of such fiscal year), audited financial statements (including statements of income, cash flows and Equityholders’ equity and a balance sheet) Financial Statements showing the consolidated financial condition and results of operations calculated for the Consolidated Companies (and calculated separately for (i) MFS and its Subsidiaries on a consolidated basis for so long as MFS and its Subsidiaries are Unrestricted Subsidiaries, and (ii) for any fiscal year of Borrower in which either (A) the Operating Cash Flow of the Loan Parties Unrestricted Subsidiaries is greater than 7.5% of total Operating Cash Flow of the Consolidated Companies, or (B) the value of the assets (determined in accordance with GAAP) of the Unrestricted Subsidiaries (excluding the Receivables Subsidiary) is greater than 7.5% of the aggregate value of all assets (determined in accordance with GAAP) of the Consolidated Companies, each other Unrestricted Subsidiary designated from time to time pursuant to SECTION 7.27) as of, and for the year ended on, that last such day, accompanied by:
(i) the unqualified opinion of a firm of nationally-recognized independent certified public accountants acceptable to Lenders (the “Accounting Firm”)accountants, based on an audit using generally accepted auditing standards, that such Financial Statements (calculated with respect to the financial statements Consolidated Companies) were prepared in accordance with GAAP and present fairly, in all material respects, fairly the consolidated financial condition and results of operations of the Loan PartiesConsolidated Companies;
(ii) any management letter prepared by such accounting firm;
(iii) a certificate from such accounting firm to Administrative Agent indicating that during its audit it obtained no knowledge of any Default or Potential Default or, if it obtained such knowledge, the nature and period of existence thereof;
(iv) a letter from such accounting firm addressed to Borrower, with a copy to Administrative Agent, acknowledging that (A) Borrower plans to provide Administrative Agent with such audited Financial Statements and accompanying audit report, (B) Administrative Agent has informed Borrower that Administrative Agent and Facility B Lenders intend to rely on such firm's audit report accompanying such Financial Statements, and (C) Borrower intends for Administrative Agent and Facility B Lenders to so rely; and
(iiv) a Compliance Certificate with respect to such financial statements certifying (A) as to the Loan Parties’ compliance with the financial covenants set forth in Section 10 of this Agreement and (B) that such financial statements were prepared in accordance with the Accounting Practices (subject to normal year-end adjustments and the absence of footnote disclosures) and present fairly, in all material respects, the consolidated financial condition and results of operations of the Loan PartiesFinancial Statements.
(b) Promptly after preparation, and no later than thirty (30) days after the last day of each calendar month of the Loan Parties, internally-certified unaudited financial statements (including consolidated statements of income and cash flows and a balance sheet) showing the consolidated financial condition and results of operations of the Loan Parties as of, and for the month, year-to-date and, if applicable, quarter period ended on, that last day. The Loan Parties’ certificate included with the unaudited financial statements will, at a minimum, include a statement that such financial statements were prepared in accordance with the Accounting Practices (subject to normal year-end adjustments and the absence of footnote disclosures) and present fairly, in all material respects, the consolidated financial condition and results of operations of the Loan Parties.
(c) Promptly after preparation, and no later than thirty (30) 45 days after the last day of each fiscal quarter of Loan Parties:
Borrower (i) a management discussion and analysis that includes a discussion and explanation of material variances among (A) other than the comparison of the Loan Parties’ actual operating results to budget for such fourth fiscal quarter and for the year to date period then ended, (B) the comparison of the Loan Parties’ operating results for such each fiscal quarter and for the year to date period then ended to the corresponding periods in the prior year and (C) a comparison of the Loan Parties’ operating results for such fiscal quarter to the immediately preceding fiscal quarter; and
(ii) a Compliance Certificate with respect to such financial statements certifying (A) as to the Loan Parties’ compliance with the financial covenants set forth in Section 10 of this Agreement, and (B) that such financial statements (I) were prepared on a basis consistent with the Accounting Practices (subject to normal year-end adjustments and the absence of footnote disclosures), and (II) present fairly, in all material respects, Financial Statements showing the consolidated financial condition and results of operations of the Loan Parties.
(d) Promptly after preparation, and no later than the last day of January of each year (assuming a fiscal year end of December 31), an annual operating plan (with a level of detail consistent with the Projections) calculated for the Loan Parties Consolidated Companies (and calculated separately for (i) MFS and its Subsidiaries on a consolidated basisbasis for so long as MFS and its Subsidiaries are Unrestricted Subsidiaries, approved by the Board of Directors of the Company, for the current fiscal year (if delivered in January of such year), that (i) includes a statement of all of the material assumptions on which such plan is based, and (ii) includes budgeted monthly balance sheets, income statements and statements of cash flows for such fiscal year, as well as comparisons of such items to the corresponding months in the prior fiscal year, and (iii) integrates sales, gross profits, operating expenses, operating profit and cash flow projections, all prepared on the same basis and in similar detail as that on which operating results are reported (and in the case of cash flow projections, representing management’s good faith estimates of future financial performance based on historical performance), and including plans for personnel, Capital Expenditures and facilities; provided, however, that with respect to any fiscal year 2016, the operating plan shall be prepared consistent with the Loan Parties’ historical practices, and include monthly budgeted profit and loss of Borrower in which either (but not balance sheet) information only. Agent and Lenders acknowledge and agree that such projections are estimates only and that actual financial performance may vary materially from that set forth in such projections.
(e) Promptly after preparation, and no later than five (5) Business Days after the Loan Parties’ federal income tax return has been filed, copies of each federal income tax return (and Form K-1’s, if applicable) and to the extent reasonably requested by the Agent, related tax reporting information for each Loan Party for the applicable fiscal year.
(f) Promptly after receipt, a copy of each interim or special audit report and management letter issued by independent accountants with respect to any Loan Party or its financial records.
(g) Notice, promptly after any Loan Party receives notice of, or otherwise becomes aware of, (iA) the institution of any Litigation involving any Loan Party which, if adversely determined, could reasonably be expected to result in a Material Adverse Event, (ii) any other event which could reasonably be expected to result in a Material Adverse Event, (iii) any violation by any Loan Party of ERISA or any Law with respect to an Employee Plan, where there is any reasonable likelihood Operating Cash Flow of the imposition Unrestricted Subsidiaries is greater than 7.5% of liability on such Loan Party as a result thereof that could be reasonably expected to result in a Material Adverse Event, or (iv) any Default or Potential Default, specifying total Operating Cash Flow of the nature thereof and what action, if any, each Loan Party has taken, is taking or proposes to take.Consolidated
Appears in 1 contract
Samples: Revolving Credit and Term Loan Agreement (Worldcom Inc /Ga/)
Items to be Furnished. The Loan Parties Guarantor shall cause the following to be furnished to Agent, Agent for distribution to each Lender at its respective principal office, as designated by each Lender to Agent and Loan Parties from time to timethe benefit of the Lenders:
(a) 1. Promptly after preparation, and no later than one hundred twenty (120100) days after the last day of each fiscal year of the Loan Parties (providedGuarantor, that, for the fiscal year ending December 31, 2015, the delivery date shall be one hundred eighty (180) days after the last day of such fiscal year), audited financial statements (including statements of income, cash flows and Equityholders’ equity and a balance sheet) Financial Statements showing the consolidated financial condition and results of operations of the Loan Parties Companies as of, and for the year ended on, that last day, accompanied by:
(i) the unqualified opinion of a firm of independent certified public accountants acceptable to Lenders (the “Accounting Firm”)Guarantor's Accountants, based on an audit using generally accepted auditing standards, that the financial statements Financial Statements were prepared in accordance with GAAP and present fairly, in all material respects, the consolidated financial condition and results of operations of the Loan Parties; Companies,
(ii) a certificate from the accounting firm to the Lenders indicating that during its audit it obtained no knowledge of any Default or Potential Default or, if it obtained knowledge, the nature and period of existence thereof, and
(iiiii) a Compliance Certificate with respect to such financial statements certifying (A) as to the Loan Parties’ compliance with the financial covenants set forth in Section 10 of this Agreement and (B) that such financial statements were prepared in accordance with the Accounting Practices (subject to normal year-end adjustments and the absence of footnote disclosures) and present fairly, in all material respects, the consolidated financial condition and results of operations of the Loan PartiesFinancial Statements.
(b) 2. Promptly after preparation, and no later than thirty fifty (3050) days after the last day of each calendar month the first three fiscal quarters of the Loan PartiesGuarantor, internally-certified unaudited financial statements (including consolidated statements of income and cash flows and a balance sheet) Financial Statements showing the consolidated financial condition and results of operations of the Loan Parties as of, Companies for the fiscal quarter and for the monthperiod from the beginning of the current fiscal year to the last day of the fiscal quarter, year-to-date and, if applicable, quarter period ended on, that last day. The Loan Parties’ certificate included with the unaudited financial statements will, at a minimum, include a statement that such financial statements were prepared in accordance with the Accounting Practices (subject to normal ordinary year-end adjustments and adjustments, accompanied by a Compliance Certificate with respect to the absence of footnote disclosures) and present fairly, in all material respects, the consolidated financial condition and results of operations of the Loan PartiesFinancial Statements.
(c) Promptly after preparation, and no later than 3. Within thirty (30) days after the last day end of each fiscal quarter year of Loan Parties:
Guarantor (i) a management discussion and analysis that includes a discussion and explanation of material variances among (A) the comparison of the Loan Parties’ actual operating results to budget for such fiscal quarter and for the year to date period then ended, (B) the comparison of the Loan Parties’ operating results for such fiscal quarter and for the year to date period then ended to the corresponding periods in the prior year and (C) a comparison of the Loan Parties’ operating results for such fiscal quarter to the immediately preceding fiscal quarter; and
(ii) a Compliance Certificate with respect to such financial statements certifying (A) as to the Loan Parties’ compliance commencing with the financial covenants set forth in Section 10 of this Agreement, and (B) that such financial statements (I) were prepared on a basis consistent with the Accounting Practices (subject to normal year-end adjustments and the absence of footnote disclosures), and (II) present fairly, in all material respects, the consolidated financial condition and results of operations of the Loan Parties.
(d) Promptly after preparation, and no later than the last day of January of each year (assuming a fiscal year end of December ending March 31), an annual operating plan (with a level of detail consistent with the Projections) for the Loan Parties on a consolidated basis1999, approved by the Board of Directors of the Company, for the current fiscal year (if delivered in January of such year), that (i) includes a statement of all of the material assumptions on which such plan is based, (ii) includes budgeted monthly balance sheets, income statements and statements of cash flows for such fiscal year, as well as comparisons of such items to the corresponding months in the prior fiscal year, and (iii) integrates sales, gross profits, operating expenses, operating profit and cash flow projections, all prepared on the same basis and in similar detail as that on which operating results are reported (and in the case of cash flow financial projections, representing management’s good faith estimates and commencing with the fiscal year ending March 31, 1999, in the case of future financial performance budgets), financial projections for the succeeding three (3) fiscal years and the financial budget for the next succeeding fiscal year, accompanied by a certificate executed by a Responsible Officer certifying that the projections and budget were prepared by Guarantor based on assumptions that, in light of the historical performance)performance of the Companies and their prospects for the future, and including plans for personnel, Capital Expenditures and facilities; provided, however, that with respect to fiscal year 2016, are reasonable as of the operating plan shall be prepared consistent with the Loan Parties’ historical practices, and include monthly budgeted profit and loss (but not balance sheet) information only. Agent and Lenders acknowledge and agree that such projections are estimates only and that actual financial performance may vary materially from that set forth in such projectionsdate prepared.
(e) Promptly after preparation, and no later than five (5) Business Days after the Loan Parties’ federal income tax return has been filed, copies of each federal income tax return (and Form K-1’s, if applicable) and to the extent reasonably requested by the Agent, related tax reporting information for each Loan Party for the applicable fiscal year.
(f) 4. Promptly after receipt, a copy of each interim or special audit report and management letter issued by independent accountants Guarantor's Accountants with respect to any Loan Party Company or its financial records.
(g) Notice, promptly after any Loan Party receives notice of, or otherwise becomes aware of, (i) the institution of any Litigation involving any Loan Party which, if adversely determined, could reasonably be expected to result in a Material Adverse Event, (ii) any other event which could reasonably be expected to result in a Material Adverse Event, (iii) any violation by any Loan Party of ERISA or any Law with respect to an Employee Plan, where there is any reasonable likelihood of the imposition of liability on such Loan Party as a result thereof that could be reasonably expected to result in a Material Adverse Event, or (iv) any Default or Potential Default, specifying the nature thereof and what action, if any, each Loan Party has taken, is taking or proposes to take.
Appears in 1 contract
Items to be Furnished. The Loan Parties Borrower shall cause the following to be furnished to Agent, for distribution to each Lender at its respective principal office, as designated by each Lender to Agent and Loan Parties from time to timeLender:
(a) Promptly after preparation, and no later than one hundred twenty (120) days after the last day of With respect to each fiscal year of the Loan Parties (providedCompanies, that, for the fiscal year ending December 31, 2015, the delivery date shall be one hundred eighty (180) days within 5 Business Days after the last day date required to be filed with the Securities and Exchange Commission as part of such fiscal year)the Companies’ periodic reporting, audited financial statements (including statements of income, cash flows and Equityholders’ equity and a balance sheet) Financial Statements showing the consolidated financial condition and results of operations of the Loan Parties Companies as of, and for the year ended on, that last day, accompanied by:
: (iA) the unqualified opinion of a firm of independent certified public accountants acceptable to Lenders (the “Registered Public Accounting Firm”)” (as such term is specified in the Securities Laws) of nationally-recognized standing, based on an audit using generally accepted auditing standardsstandards and applicable Securities Laws, that the financial statements Financial Statements were prepared in accordance with GAAP and present fairly, in all material respects, the consolidated financial condition and results of operations of the Loan PartiesCompanies; and
provided, that such opinion may include appropriate qualifications related to any actual or potential impact, direct or indirect, arising as a result of or related to (iior could reasonably be expected to arise out of or result from) COVID-19 on the Companies’ consolidated financial condition, (B) any management letter prepared by the accounting firm delivered in connection with its audit, (C) a certificate from the accounting firm to Administrative Agent indicating that during its audit it obtained no knowledge of any Default or Potential Default, or if it obtained knowledge, the nature and period of existence thereof, and (D) a Compliance Certificate with respect to such financial statements certifying (A) as to the Loan Parties’ compliance with the financial covenants set forth in Section 10 of this Agreement and (B) that such financial statements were prepared in accordance with the Accounting Practices (subject to normal year-end adjustments and the absence of footnote disclosures) and present fairly, in all material respects, the consolidated financial condition and results of operations of the Loan PartiesFinancial Statements.
(b) Promptly after preparationWith respect to each fiscal quarter of the Companies (other than the last fiscal quarter of each fiscal year), and no later than thirty (30) days within 5 Business Days after the last day of each calendar month date required to be filed with the Securities and Exchange Commission as part of the Loan PartiesCompanies’ periodic reportings, internally-certified unaudited financial statements (including consolidated statements of income and cash flows and a balance sheet) Financial Statements showing the consolidated financial condition and results of operations of the Loan Parties as of, and for the month, year-to-date and, if applicable, quarter period ended on, that last day. The Loan Parties’ certificate included with the unaudited financial statements will, at a minimum, include a statement that such financial statements were prepared in accordance with the Accounting Practices (subject to normal year-end adjustments and the absence of footnote disclosures) and present fairly, in all material respects, the consolidated financial condition and results of operations of the Loan Parties.
(c) Promptly after preparation, and no later than thirty (30) days after the last day of each fiscal quarter of Loan Parties:
(i) a management discussion and analysis that includes a discussion and explanation of material variances among (A) the comparison of the Loan Parties’ actual operating results to budget Companies for such fiscal quarter and for the period from the beginning of the current fiscal year to date period then ended, (B) the comparison last day of the Loan Parties’ operating results for such fiscal quarter and for the year to date period then ended to the corresponding periods in the prior year and (C) a comparison of the Loan Parties’ operating results for such fiscal quarter to the immediately preceding fiscal quarter; and
(ii) , accompanied by a Compliance Certificate with respect to such financial statements certifying (A) as to the Loan Parties’ compliance with the financial covenants set forth in Section 10 of this Agreement, and (B) that such financial statements (I) were prepared on a basis consistent with the Accounting Practices (subject to normal year-end adjustments and the absence of footnote disclosures), and (II) present fairly, in all material respects, the consolidated financial condition and results of operations of the Loan PartiesFinancial Statements.
(d) Promptly after preparation, and no later than the last day of January of each year (assuming a fiscal year end of December 31), an annual operating plan (with a level of detail consistent with the Projections) for the Loan Parties on a consolidated basis, approved by the Board of Directors of the Company, for the current fiscal year (if delivered in January of such year), that (i) includes a statement of all of the material assumptions on which such plan is based, (ii) includes budgeted monthly balance sheets, income statements and statements of cash flows for such fiscal year, as well as comparisons of such items to the corresponding months in the prior fiscal year, and (iii) integrates sales, gross profits, operating expenses, operating profit and cash flow projections, all prepared on the same basis and in similar detail as that on which operating results are reported (and in the case of cash flow projections, representing management’s good faith estimates of future financial performance based on historical performance), and including plans for personnel, Capital Expenditures and facilities; provided, however, that with respect to fiscal year 2016, the operating plan shall be prepared consistent with the Loan Parties’ historical practices, and include monthly budgeted profit and loss (but not balance sheet) information only. Agent and Lenders acknowledge and agree that such projections are estimates only and that actual financial performance may vary materially from that set forth in such projections.
(e) Promptly after preparation, and no later than five (5) Business Days after the Loan Parties’ federal income tax return has been filed, copies of each federal income tax return (and Form K-1’s, if applicable) and to the extent reasonably requested by the Agent, related tax reporting information for each Loan Party for the applicable fiscal year.
(fc) Promptly after receipt, a copy of each interim or special audit report report, management letter, and management letter recommendations issued by independent accountants with respect to any Loan Party Company or its financial records.
(gd) Notice, promptly after any Loan Party receives notice ofCompany knows or has reason to know, or otherwise becomes aware of, of (i) the institution existence and status of any Litigation involving any Loan Party whichthat, if determined adversely determinedto any Company, could reasonably would be expected to result in a Material Adverse Event, (ii) any other event which could reasonably be expected to result change in a Material Adverse Eventany material fact or circumstance represented or warranted by any Restricted Company in connection with any Loan Paper, (iii) the receipt by any Company of notice of any violation by or alleged violation of any Loan Party of Environmental Law or ERISA (which individually or any Law collectively with respect to an Employee Plan, where there is any reasonable likelihood of the imposition of liability on such Loan Party as a result thereof that could be reasonably expected to result in a Material Adverse Event, or (iv) any Default or Potential Default, specifying the nature thereof and what action, if any, each Loan Party has taken, is taking or proposes to take.other
Appears in 1 contract
Samples: Credit Agreement (Vail Resorts Inc)
Items to be Furnished. The Loan Parties Borrower shall cause the following to be furnished to Agent, for distribution to each Lender at its respective principal office, as designated by each Lender to Agent and Loan Parties from time to timeLender:
(a) Promptly after preparation, and no later than one hundred twenty (120) days after the last day of With respect to each fiscal year of the Loan Parties (providedCompanies, that, for the fiscal year ending December 31, 2015, the delivery date shall be one hundred eighty (180) days within 5 Business Days after the last day date required to be filed with the Securities and Exchange Commission as part of such fiscal year)the Companies’ periodic reporting, audited financial statements (including statements of income, cash flows and Equityholders’ equity and a balance sheet) Financial Statements showing the consolidated financial condition and results of operations of the Loan Parties Companies as of, and for the year ended on, that last day, accompanied by:
: (iA) the unqualified opinion of a firm of independent certified public accountants acceptable to Lenders (the “Registered Public Accounting Firm”)” (as such term is specified in the Securities Laws) of nationally-recognized standing, based on an audit using generally accepted auditing standardsstandards and applicable Securities Laws, that the financial statements Financial Statements were prepared in accordance with GAAP and present fairly, in all material respects, the consolidated financial condition and results of operations of the Loan Parties; and
Companies, (iiB) any management letter prepared by the accounting firm delivered in connection with its audit, (C) a certificate from the accounting firm to Administrative Agent indicating that during its audit it obtained no knowledge of any Default or Potential Default, or if it obtained knowledge, the nature and period of existence thereof, and (D) a Compliance Certificate with respect to such financial statements certifying (A) as to the Loan Parties’ compliance with the financial covenants set forth in Section 10 of this Agreement and (B) that such financial statements were prepared in accordance with the Accounting Practices (subject to normal year-end adjustments and the absence of footnote disclosures) and present fairly, in all material respects, the consolidated financial condition and results of operations of the Loan PartiesFinancial Statements.
(b) Promptly after preparationWith respect to each fiscal quarter of the Companies (other than the last fiscal quarter of each fiscal year), and no later than thirty (30) days within 5 Business Days after the last day of each calendar month date required to be filed with the Securities and Exchange Commission as part of the Loan PartiesCompanies periodic reportings, internally-certified unaudited financial statements (including consolidated statements of income and cash flows and a balance sheet) Financial Statements showing the consolidated financial condition and results of operations of the Loan Parties as of, and for the month, year-to-date and, if applicable, quarter period ended on, that last day. The Loan Parties’ certificate included with the unaudited financial statements will, at a minimum, include a statement that such financial statements were prepared in accordance with the Accounting Practices (subject to normal year-end adjustments and the absence of footnote disclosures) and present fairly, in all material respects, the consolidated financial condition and results of operations of the Loan Parties.
(c) Promptly after preparation, and no later than thirty (30) days after the last day of each fiscal quarter of Loan Parties:
(i) a management discussion and analysis that includes a discussion and explanation of material variances among (A) the comparison of the Loan Parties’ actual operating results to budget Companies for such fiscal quarter and for the period from the beginning of the current fiscal year to date period then ended, (B) the comparison last day of the Loan Parties’ operating results for such fiscal quarter and for the year to date period then ended to the corresponding periods in the prior year and (C) a comparison of the Loan Parties’ operating results for such fiscal quarter to the immediately preceding fiscal quarter; and
(ii) , accompanied by a Compliance Certificate with respect to such financial statements certifying (A) as to the Loan Parties’ compliance with the financial covenants set forth in Section 10 of this Agreement, and (B) that such financial statements (I) were prepared on a basis consistent with the Accounting Practices (subject to normal year-end adjustments and the absence of footnote disclosures), and (II) present fairly, in all material respects, the consolidated financial condition and results of operations of the Loan PartiesFinancial Statements.
(d) Promptly after preparation, and no later than the last day of January of each year (assuming a fiscal year end of December 31), an annual operating plan (with a level of detail consistent with the Projections) for the Loan Parties on a consolidated basis, approved by the Board of Directors of the Company, for the current fiscal year (if delivered in January of such year), that (i) includes a statement of all of the material assumptions on which such plan is based, (ii) includes budgeted monthly balance sheets, income statements and statements of cash flows for such fiscal year, as well as comparisons of such items to the corresponding months in the prior fiscal year, and (iii) integrates sales, gross profits, operating expenses, operating profit and cash flow projections, all prepared on the same basis and in similar detail as that on which operating results are reported (and in the case of cash flow projections, representing management’s good faith estimates of future financial performance based on historical performance), and including plans for personnel, Capital Expenditures and facilities; provided, however, that with respect to fiscal year 2016, the operating plan shall be prepared consistent with the Loan Parties’ historical practices, and include monthly budgeted profit and loss (but not balance sheet) information only. Agent and Lenders acknowledge and agree that such projections are estimates only and that actual financial performance may vary materially from that set forth in such projections.
(e) Promptly after preparation, and no later than five (5) Business Days after the Loan Parties’ federal income tax return has been filed, copies of each federal income tax return (and Form K-1’s, if applicable) and to the extent reasonably requested by the Agent, related tax reporting information for each Loan Party for the applicable fiscal year.
(fc) Promptly after receipt, a copy of each interim or special audit report report, management letter, and management letter recommendations issued by independent accountants with respect to any Loan Party Company or its financial records.
(gd) Notice, promptly after any Loan Party receives notice ofCompany knows or has reason to know, or otherwise becomes aware of, of (i) the institution existence and status of any Litigation involving any Loan Party whichthat, if determined adversely determinedto any Company, could reasonably would be expected to result in a Material Adverse Event, (ii) any change in any material fact or circumstance represented or warranted by any Restricted Company in connection with any Loan Paper, (iii) the receipt by any Company of notice of any violation or alleged violation of any Environmental Law or ERISA (which individually or collectively with other event which could violations or allegations is reasonably be expected likely to result in constitute a Material Adverse Event), (iii) any violation by any Loan Party of ERISA or any Law with respect to an Employee Plan, where there is any reasonable likelihood of the imposition of liability on such Loan Party as a result thereof that could be reasonably expected to result in a Material Adverse Event, or (iv) any a Default or Potential Default, specifying the nature thereof and what action, if any, each Loan Party has action the Restricted Companies have taken, is taking are taking, or proposes propose to take., (v) any breach or nonperformance of, or default under, a Material Agreement of a Restricted Company that is reasonably likely to result in a Material Adverse Event, (vi) any material change in accounting policies or financial reporting practices by any Restricted Company, (vii) the occurrence of any Internal Control Event, or (viii) the occurrence of any event pursuant to which any “person” or
Appears in 1 contract
Samples: Credit Agreement (Vail Resorts Inc)
Items to be Furnished. The Loan Parties Borrower shall cause the following to be furnished to Agent, for distribution to the Administrative Agent and each Lender at its respective principal office, as designated by each Lender to Agent and Loan Parties from time to time:(through the Administrative Agent):
(a) Promptly after preparation, and no later than one hundred twenty (120) 90 days after the last day of each fiscal year of the Loan Parties (providedBorrower, that, for the fiscal year ending December 31, 2015, the delivery date shall be one hundred eighty (180) days after the last day of such fiscal year), audited financial statements (including statements of income, cash flows and Equityholders’ equity and a balance sheet) Financial Statements showing the consolidated financial condition and results of operations of the Loan Parties Companies as of, and for the year ended on, that such last day, accompanied by:
by (i) the unqualified opinion of a KPMG LLP (or another firm of nationally-recognized independent certified public accountants reasonably acceptable to Lenders (the “Accounting Firm”Majority Lenders), based on an audit using generally accepted auditing standards, that the financial statements such Financial Statements were prepared in accordance with GAAP and present fairly, in all material respects, fairly the consolidated financial condition and results of operations of the Loan Parties; and
Companies (and such accountants shall indicate in a letter to the Administrative Agent, that during their audit no Default or Event of Default not already reported was discovered or, if such Default or Event of Default was discovered, the nature and period of existence thereof) and (ii) a Compliance Financial Report Certificate with respect to such financial statements certifying (A) as to the Loan Parties’ compliance with the financial covenants set forth in Section 10 of this Agreement and (B) that such financial statements were prepared in accordance with the Accounting Practices (subject to normal year-end adjustments and the absence of footnote disclosures) and present fairly, in all material respects, the consolidated financial condition and results of operations of the Loan PartiesFinancial Statements.
(b) Promptly after preparation, and no later than thirty (30) 45 days after the last day of each calendar month of the Loan Partiesfirst three quarters of each fiscal year of the Borrower, internally-certified unaudited financial statements (including consolidated statements of income and cash flows and a balance sheeti) Financial Statements showing the consolidated financial condition and results of operations of the Loan Parties Companies as of, and for the monthperiod from the beginning of the current fiscal year to, year-to-date and, if applicable, quarter period ended on, that such last day. The Loan Parties’ certificate included , and (ii) a Financial Report Certificate with the unaudited financial statements will, at a minimum, include a statement that respect to such financial statements were prepared in accordance with the Accounting Practices (subject to normal year-end adjustments and the absence of footnote disclosures) and present fairly, in all material respects, the consolidated financial condition and results of operations of the Loan PartiesFinancial Statements.
(c) Promptly after preparation, preparation (and no later than thirty the later of 15 days (30a) days after such filing is due or (b) after timely filing, if filed with the last day SEC), true copies of each fiscal quarter all regular and periodic reports, proxy statements and filings on Form 8-K furnished by or on behalf of Loan Parties:
(i) a management discussion and analysis that includes a discussion and explanation of material variances among (A) any Company to stockholders generally or filed with the comparison SEC. However, only registration statements covering more than 2% of the Loan Parties’ actual operating results Borrower’s outstanding shares of common stock shall be required to budget for such fiscal quarter and for be furnished unless specifically requested by the year to date period then ended, (B) the comparison of the Loan Parties’ operating results for such fiscal quarter and for the year to date period then ended to the corresponding periods in the prior year and (C) a comparison of the Loan Parties’ operating results for such fiscal quarter to the immediately preceding fiscal quarter; and
(ii) a Compliance Certificate with respect to such financial statements certifying (A) as to the Loan Parties’ compliance with the financial covenants set forth in Section 10 of this Agreement, and (B) that such financial statements (I) were prepared on a basis consistent with the Accounting Practices (subject to normal year-end adjustments and the absence of footnote disclosures), and (II) present fairly, in all material respects, the consolidated financial condition and results of operations of the Loan PartiesAdministrative Agent.
(d) Promptly after preparationupon receipt thereof, and no later than the last day copies of January of each year any notices received from any Tribunal (assuming a fiscal year end of December 31)including, an annual operating plan (with a level of detail consistent with the Projectionswithout limitation, state regulatory agencies) for the Loan Parties on a consolidated basis, approved by the Board of Directors of the Company, for the current fiscal year (if delivered in January of such year), that (i) includes a statement of all of the material assumptions on which such plan is based, (ii) includes budgeted monthly balance sheets, income statements and statements of cash flows for such fiscal year, as well as comparisons of such items relating to the corresponding months in the prior fiscal year, and (iii) integrates sales, gross profits, operating expenses, operating profit and cash flow projections, all prepared on the same basis and in similar detail as that on possible violation or violation of any Law which operating results are reported (and in the case of cash flow projections, representing management’s good faith estimates of future financial performance based on historical performance), and including plans for personnel, Capital Expenditures and facilities; provided, however, that with respect to fiscal year 2016, the operating plan shall be prepared consistent with the Loan Parties’ historical practices, and include monthly budgeted profit and loss (but not balance sheet) information only. Agent and Lenders acknowledge and agree that such projections are estimates only and that actual financial performance may vary materially from that set forth in such projectionsmight have a Material Adverse Effect.
(e) Promptly after preparation, and no later than five (5) Business Days after the Loan Parties’ federal income tax return has been filed, copies of each federal income tax return (and Form K-1’s, if applicable) and to the extent reasonably requested by the Agent, related tax reporting information for each Loan Party for the applicable fiscal year.
(f) Promptly after receipt, a copy of each interim or special audit report and management letter issued by independent accountants with respect to any Loan Party or its financial records.
(g) Notice, promptly after any Loan Party receives notice of, the Borrower knows or otherwise becomes aware has reason to know of, (i) the institution existence of any material Litigation involving any Loan Party which, if adversely determined, could reasonably be expected to result as defined in a Material Adverse EventSection 3.6, (ii) any other event which could reasonably be expected to result material change in a Material Adverse Eventany material fact or circumstance represented or warranted in any Loan Paper, or (iii) any violation by any Loan Party of ERISA or any Law with respect to an Employee Plan, where there is any reasonable likelihood of the imposition of liability on such Loan Party as a result thereof that could be reasonably expected to result in a Material Adverse Event, or (iv) any Default or Potential Event of Default, specifying the nature thereof and what action, if any, each Loan Party action the Borrower or any other Company has taken, is taking taking, or proposes to taketake with respect thereto.
(f) Notice, promptly after the Borrower knows or has reason to know of, a Subsidiary Encumbrance, as defined in Section 6.14(b), except with respect to Permitted Refinancing Debt.
(g) Within 10 days after execution thereof, copies of any supplements, modifications or amendments to the Equity Units documentation.
(h) Promptly upon the Administrative Agent’s or any Lender’s reasonable request, such information (not otherwise required to be furnished under the Loan Papers) respecting the business affairs, assets, and liabilities of any Company, and any opinions, certifications, and documents, in addition to those mentioned herein.
(i) Promptly following receipt thereof, copies of any documents described in sections 101(k)or 101(l) of ERISA that any Company or any ERISA Affiliate may request with respect to any Multiemployer Plan or documents described in Section 101(f) of ERISA that any Company or ERISA Affiliate may request with respect to any Plan; provided, that if the Companies or any of their ERISA Affiliates have not requested such documents or notices from the administrator or sponsor of the applicable Multiemployer Plan, then, upon reasonable request of the Administrative Agent, the Companies and/or their ERISA Affiliates shall promptly make a request for such documents or notices from such administrator or sponsor and the Borrower shall provide copies of such documents and notices to the Administrative Agent promptly after receipt thereof.
(j) Notice, promptly after any Company or ERISA Affiliate knows or has reason to know of, (i) the failure of any Plan to comply with any material provisions of ERISA and/or the Code (and applicable regulations under either) or with the material terms of such Plan; (ii) the failure of any Plan to meet the minimum funding standards (within the meaning of Section 412 of the Code or section 302 of ERISA) applicable to such Plan (whether or not waived), the filing pursuant to section 412(c) of the Code or section 302(c) of ERISA of an application for a waiver of the minimum funding standard with respect to any Plan, or the receipt by any Plan of a determination that it is, or is expected to be in “at risk” status (within the meaning of section 430 of the Code or Section 303 of ERISA; (iii) the incurrence by any Company or ERISA Affiliate of liability to the PBGC in connection with any Plan; (iv) the withdrawal (in whole or in part) by any Company or ERISA Affiliate from participation in a Plan or Multiemployer Plan or receipt by any Company or ERISA Affiliate of notice from any Multiemployer Plan with respect to the imposition of Withdrawal Liability or that such Multiemployer Plan is, or is expected to be, Insolvent, in Reorganization, “terminated” (within the meaning of section 4041A of ERISA), or in “endangered” or “critical” status (within the meaning of section 432 of the Code or section 305 of ERISA); (v) the occurrence of a non-exempt Prohibited Transaction or a Reportable Event (excluding any Reportable Event that occurs solely as a result of the consummation of this Agreement); or (vi) the failure of any insured medical plan sponsored by any Company for any current or former employee(s) to satisfy the non-discrimination requirements of section 105 of the Code.
(k) Concurrently with the delivery of any Financial Statements pursuant to clause (a) or (b) above, a list of the Guarantor Significant Subsidiaries as of the last day of the relevant fiscal period.
(l) Notice, promptly after the Borrower knows or has reason to know of the acquisition of one more Excluded Specified Subsidiaries. Financial statements, opinions of independent certified public accountants, other information and officers’ certificates required to be delivered by the Borrower pursuant to Sections 3.4 and 5.3 shall be deemed to have been delivered if any of the following, to the extent applicable, are satisfied: (i) such financial statements satisfying the requirements of Sections 3.4 and 5.3 and related certificate satisfying the requirements of Section 5.3 are delivered to the Lenders by e-mail, (ii) the Borrower shall have timely filed such Form 10-Q or Form 10-K, satisfying the requirements of Section 5.3 as the case may be, with the SEC on “XXXXX” and shall have made such form and the related certificate satisfying the requirements of Section 5.3 available on the Investor Relations portion of its home page on the worldwide web (at the Closing Date located at xxxx://xxx.xxxxxxxxxxx.xxx, (iii) such financial statements satisfying the requirements of Section 5.3 are timely posted by or on behalf of the Company on SyndTrak Online, IntraLinks or on any other similar website to which each Lender has free access or (iv) the Borrower shall have filed any of the items referred to in Section 5.3 with the SEC on “XXXXX” and shall have made such items available on the Investor Relations portion of its home page on the worldwide web or if any of such items are timely posted by or on behalf of the Borrower on IntraLinks or on any other similar website to which each Lender has free access; provided, however, that upon request of any Lender, the Borrower will thereafter deliver written copies of such forms, financial statements, other information and certificates to such Lender.
Appears in 1 contract
Samples: Credit Agreement (Qwest Corp)
Items to be Furnished. The Loan Parties Borrower shall cause the following to be furnished to Agent, for distribution to each Lender at its respective principal office, as designated by each Lender to Agent and Loan Parties from time to timeLender:
(a) Promptly after preparation, and no later than one hundred twenty (120) days after the last day of With respect to each fiscal year of the Loan Parties (providedCompanies, that, for the fiscal year ending December 31, 2015, the delivery date shall be one hundred eighty (180) days within 5 Business Days after the last day date required to be filed with the Securities and Exchange Commission as part of such fiscal year)the Companies’ periodic reporting, audited financial statements (including statements of income, cash flows and Equityholders’ equity and a balance sheet) Financial Statements showing the consolidated financial condition and results of operations of the Loan Parties Companies as of, and for the year ended on, that last day, accompanied by:
: (iA) the unqualified opinion of a firm of independent certified public accountants acceptable to Lenders (the “Registered Public Accounting Firm”)” (as such term is specified in the Securities Laws) of nationally-recognized standing, based on an audit using generally accepted auditing standardsstandards and applicable Securities Laws, that the financial statements Financial Statements were prepared in accordance with GAAP and present fairly, in all material respects, the consolidated financial condition and results of operations of the Loan Parties; and
Companies, (iiB) any management letter prepared by the accounting firm delivered in connection with its audit, (C) a certificate from the accounting firm to Administrative Agent indicating that during its audit it obtained no knowledge of any Default or Potential Default, or if it obtained knowledge, the nature and period of existence thereof, and (D) a Compliance Certificate with respect to such financial statements certifying (A) as to the Loan Parties’ compliance with the financial covenants set forth in Section 10 of this Agreement and (B) that such financial statements were prepared in accordance with the Accounting Practices (subject to normal year-end adjustments and the absence of footnote disclosures) and present fairly, in all material respects, the consolidated financial condition and results of operations of the Loan PartiesFinancial Statements.
(b) Promptly after preparationWith respect to each fiscal quarter of the Companies (other than the last fiscal quarter of each fiscal year), and no later than thirty (30) days within 5 Business Days after the last day of each calendar month date required to be filed with the Securities and Exchange Commission as part of the Loan PartiesCompanies periodic reportings, internally-certified unaudited financial statements (including consolidated statements of income and cash flows and a balance sheet) Financial Statements showing the consolidated financial condition and results of operations of the Loan Parties as of, and for the month, year-to-date and, if applicable, quarter period ended on, that last day. The Loan Parties’ certificate included with the unaudited financial statements will, at a minimum, include a statement that such financial statements were prepared in accordance with the Accounting Practices (subject to normal year-end adjustments and the absence of footnote disclosures) and present fairly, in all material respects, the consolidated financial condition and results of operations of the Loan Parties.
(c) Promptly after preparation, and no later than thirty (30) days after the last day of each fiscal quarter of Loan Parties:
(i) a management discussion and analysis that includes a discussion and explanation of material variances among (A) the comparison of the Loan Parties’ actual operating results to budget Companies for such fiscal quarter and for the period from the beginning of the current fiscal year to date period then ended, (B) the comparison last day of the Loan Parties’ operating results for such fiscal quarter and for the year to date period then ended to the corresponding periods in the prior year and (C) a comparison of the Loan Parties’ operating results for such fiscal quarter to the immediately preceding fiscal quarter; and
(ii) , accompanied by a Compliance Certificate with respect to such financial statements certifying (A) as to the Loan Parties’ compliance with the financial covenants set forth in Section 10 of this Agreement, and (B) that such financial statements (I) were prepared on a basis consistent with the Accounting Practices (subject to normal year-end adjustments and the absence of footnote disclosures), and (II) present fairly, in all material respects, the consolidated financial condition and results of operations of the Loan PartiesFinancial Statements.
(d) Promptly after preparation, and no later than the last day of January of each year (assuming a fiscal year end of December 31), an annual operating plan (with a level of detail consistent with the Projections) for the Loan Parties on a consolidated basis, approved by the Board of Directors of the Company, for the current fiscal year (if delivered in January of such year), that (i) includes a statement of all of the material assumptions on which such plan is based, (ii) includes budgeted monthly balance sheets, income statements and statements of cash flows for such fiscal year, as well as comparisons of such items to the corresponding months in the prior fiscal year, and (iii) integrates sales, gross profits, operating expenses, operating profit and cash flow projections, all prepared on the same basis and in similar detail as that on which operating results are reported (and in the case of cash flow projections, representing management’s good faith estimates of future financial performance based on historical performance), and including plans for personnel, Capital Expenditures and facilities; provided, however, that with respect to fiscal year 2016, the operating plan shall be prepared consistent with the Loan Parties’ historical practices, and include monthly budgeted profit and loss (but not balance sheet) information only. Agent and Lenders acknowledge and agree that such projections are estimates only and that actual financial performance may vary materially from that set forth in such projections.
(e) Promptly after preparation, and no later than five (5) Business Days after the Loan Parties’ federal income tax return has been filed, copies of each federal income tax return (and Form K-1’s, if applicable) and to the extent reasonably requested by the Agent, related tax reporting information for each Loan Party for the applicable fiscal year.
(fc) Promptly after receipt, a copy of each interim or special audit report and report, management letter and recommendations issued by independent accountants with respect to any Loan Party Company or its financial records.
(gd) Notice, promptly after any Loan Party receives notice ofCompany knows or has reason to know, or otherwise becomes aware of, of (i) the institution existence and status of any Litigation involving any Loan Party whichthat, if determined adversely determinedto any Company, could reasonably would be expected to result in a Material Adverse Event, (ii) any change in any material fact or circumstance represented or warranted by any Restricted Company in connection with any Loan Paper, (iii) the receipt by any Company of notice of any violation or alleged violation of any Environmental Law or ERISA (which individually or collectively with other event which could violations or allegations is reasonably be expected likely to result in constitute a Material Adverse Event), (iii) any violation by any Loan Party of ERISA or any Law with respect to an Employee Plan, where there is any reasonable likelihood of the imposition of liability on such Loan Party as a result thereof that could be reasonably expected to result in a Material Adverse Event, or (iv) any a Default or Potential Default, specifying the nature thereof and what actionaction the Restricted Companies have taken, are taking, or propose to take, (v) any breach or nonperformance of, or default under, a Material Agreement of a Restricted Company that is reasonably likely to result in a Material Adverse Event, (vi) any material change in accounting policies or financial reporting practices by any Restricted Company, (vii) the occurrence of any Internal Control Event, or (viii) the occurrence of any event pursuant to which any “person” or “group” (as such terms are used in Sections 13(d) and 14(d) of the Securities Exchange Act of 1934, but excluding any employee benefit plan of such person or its subsidiaries, and any person or entity acting in its capacity as trustee, agent, or other fiduciary or administrator of any such plan) is granted or otherwise obtains or receives the right to acquire (such right, an “option right”), whether such right is exercisable immediately or only after the passage of time, directly or indirectly, 5% or more of the equity securities of VRI entitled to vote for members of the board of directors or equivalent governing body of VRI on a fully-diluted basis (and taking into account all such securities that such person or group has the right to acquire pursuant to any option right). Each notice pursuant to Section 9.1(d)(iv) shall describe with particularity any and all provisions of this Agreement and any other Loan Paper that have been breached.
(e) Promptly after filing, copies of all material reports or filings filed by or on behalf of any Company with any securities exchange or the Securities and Exchange Commission (including, without limitation, copies of each Form 10-K, Form 10-Q and Form S-8 filed by or on behalf of VRI with the Securities and Exchange Commission within 15 days after filing).
(f) Documents required to be delivered pursuant to Section 9.1(a) and (b) and Section 9.1(e) (to the extent any such documents are included in materials otherwise filed with the SEC) may be delivered electronically and if so delivered, shall be deemed to have been delivered on the date (i) on which Borrower posts such documents, or provides a link thereto on Borrower’s website on the Internet at the website address listed on Schedule 1, or (ii) on which such documents are posted on Borrower’s behalf on an Internet or intranet website, if any, to which each Lender and Administrative Agent have access (whether a commercial, third-party website or whether sponsored by Administrative Agent); provided, that: (x) Borrower shall deliver paper copies of such documents to Administrative Agent or any Lender that requests Borrower to deliver such paper copies until a written request to cease delivering paper copies is given by Administrative Agent or such Lender, and (y) Borrower shall notify Administrative Agent and each Lender (by telecopier or electronic mail) of the posting of any such documents and provide to Administrative Agent by electronic mail electronic versions (i.e., soft copies) of such documents. Notwithstanding anything contained herein, in every instance Borrower shall be required to provide paper copies of the Compliance Certificates required by Section 9.1(a) and (b) to Administrative Agent. Except for such Compliance Certificates, Administrative Agent shall have no obligation to request the delivery or to maintain copies of the documents referred to above, and in any event shall have no responsibility to monitor compliance by Borrower with any such request for delivery, and each Lender shall be solely responsible for requesting delivery to it or maintaining its copies of such documents. Borrower hereby acknowledges that Administrative Agent will make available to Lenders and L/C Issuers materials and/or information provided by or on behalf of Borrower hereunder (collectively, “Borrower Materials”) by posting the Borrower Materials on IntraLinks or another similar electronic system (the “Platform”).
(g) Subject to the confidentiality provisions set forth in Section 15.15, promptly upon reasonable request by Administrative Agent or any Lender (through Administrative Agent), information (not otherwise required to be furnished under the Loan Party has takenPapers) respecting the business affairs, is taking assets and liabilities of the Companies (including, but not limited to, seasonal operating statistics, annual budgets, etc.) and opinions, certifications and documents in addition to those mentioned in this Agreement.
(h) With respect to the post-closing items set forth on Schedule 7.1, if any, deliver, or proposes cause to takebe delivered, to Administrative Agent, all agreements, documents, instruments, or other items listed on Schedule 7.1 on or prior to the date specified for delivery thereof on Schedule 7.1.
Appears in 1 contract
Samples: Credit Agreement (Vail Resorts Inc)
Items to be Furnished. The Loan Parties Borrower shall cause the following to be furnished to Agent, Agent (with sufficient copies for distribution to each Lender at its respective principal office, as designated by each Lender to Agent and Loan Parties from time to time:Lender):
(a) Promptly after preparation, and no later than one hundred twenty (120100) days after the last day of each fiscal year of the Loan Parties (providedBorrower, that, for the fiscal year ending December 31, 2015, the delivery date shall be one hundred eighty (180) days after the last day of such fiscal year), audited financial statements (including statements of income, cash flows and Equityholders’ equity and a balance sheet) Financial Statements showing the consolidated financial condition and results of operations of the Loan Parties Borrower and its Consolidated Affiliates as of, and for the year ended on, that last day, accompanied by:
(i) the unqualified opinion of a the firm of Xxxxxx Xxxxxxxx & Co. or another firm of nationally-recognized independent certified public accountants acceptable to Lenders (the “Accounting Firm”)accountants, based on an audit using generally accepted auditing standards, that the financial statements Financial Statements were prepared in accordance with GAAP and present fairly, in all material respects, the consolidated financial condition and results of operations of the Loan Parties; andBorrower and its Consolidated Affiliates;
(ii) any management letter prepared by the accounting firm delivered in connection with its audit;
(iii) a certificate from the accounting firm to Agent indicating that during its audit it obtained no knowledge of any Default or Potential Default or, if it obtained knowledge, the nature and period of existence thereof;
(iv) a Compliance Certificate with respect to such financial statements certifying the Financial Statements; and
(Av) as to a certificate listing the Loan Parties’ Properties in the Pool and Operating Sub-Pool, together with a computation in reasonable detail of the Historical Values and the Required Level and showing Borrower's compliance with the financial covenants set forth in Section 10 of this Agreement Sections 7.15 and (B) that such financial statements were prepared in accordance with the Accounting Practices (subject to normal year-end adjustments and the absence of footnote disclosures) and present fairly, in all material respects, the consolidated financial condition and results of operations of the Loan Parties8.14.
(b) Promptly after preparation, and no later than thirty fifty (3050) days after the last day of each calendar month fiscal quarter (except the last) of the Loan PartiesBorrower, internally-certified unaudited financial statements (including consolidated statements of income and cash flows and a balance sheeti) Financial Statements showing the consolidated financial condition and results of operations of the Loan Parties as of, Borrower and its Consolidated Affiliates for the month, year-to-date and, if applicable, quarter period ended on, that last day. The Loan Parties’ certificate included with the unaudited financial statements will, at a minimum, include a statement that such financial statements were prepared in accordance with the Accounting Practices (subject to normal year-end adjustments and the absence of footnote disclosures) and present fairly, in all material respects, the consolidated financial condition and results of operations of the Loan Parties.
(c) Promptly after preparation, and no later than thirty (30) days after the last day of each fiscal quarter of Loan Parties:
(i) a management discussion and analysis that includes a discussion and explanation of material variances among (A) the comparison of the Loan Parties’ actual operating results to budget for such fiscal quarter and for the period from the beginning of the current fiscal year to date period then ended, (B) the comparison last day of the Loan Parties’ operating results for such fiscal quarter and for the year to date period then ended to the corresponding periods in the prior year and (C) a comparison of the Loan Parties’ operating results for such fiscal quarter to the immediately preceding fiscal quarter; and
, (ii) a Compliance Certificate with respect to such financial statements certifying (A) as to the Loan Parties’ compliance with the financial covenants set forth in Section 10 of this Agreement, and (B) that such financial statements (I) were prepared on a basis consistent with the Accounting Practices (subject to normal year-end adjustments and the absence of footnote disclosures), and (II) present fairly, in all material respects, the consolidated financial condition and results of operations of the Loan Parties.
(d) Promptly after preparation, and no later than the last day of January of each year (assuming a fiscal year end of December 31), an annual operating plan (with a level of detail consistent with the Projections) for the Loan Parties on a consolidated basis, approved by the Board of Directors of the Company, for the current fiscal year (if delivered in January of such year), that (i) includes a statement of all of the material assumptions on which such plan is based, (ii) includes budgeted monthly balance sheets, income statements and statements of cash flows for such fiscal year, as well as comparisons of such items to the corresponding months in the prior fiscal yearFinancial Statements, and (iii) integrates sales, gross profits, operating expenses, operating profit and cash flow projections, all prepared on a certificate listing the same basis and in similar detail as that on which operating results are reported (and Properties in the case Pool and Operating Sub-Pool, together with a computation in reasonable detail of cash flow projections, representing management’s good faith estimates of future financial performance based on historical performance), the Historical Values and including plans for personnel, Capital Expenditures the Required Level and facilities; provided, however, that showing Borrower's compliance with respect to fiscal year 2016, the operating plan shall be prepared consistent with the Loan Parties’ historical practices, Sections 7.15 and include monthly budgeted profit and loss (but not balance sheet) information only. Agent and Lenders acknowledge and agree that such projections are estimates only and that actual financial performance may vary materially from that set forth in such projections8.14.
(e) Promptly after preparation, and no later than five (5) Business Days after the Loan Parties’ federal income tax return has been filed, copies of each federal income tax return (and Form K-1’s, if applicable) and to the extent reasonably requested by the Agent, related tax reporting information for each Loan Party for the applicable fiscal year.
(fc) Promptly after receipt, a copy of each interim or special audit report and management letter issued by independent accountants with respect to Borrower or any Loan Party of its Consolidated Affiliates or its financial records.
(gd) Notice, promptly after any Loan Party receives notice of, or otherwise becomes aware of, a Responsible Officer of Borrower knows of (i) the institution existence and status of any Litigation involving any Loan Party whichthat, if determined adversely determinedto Borrower or any of its Consolidated Affiliates, could reasonably be expected to result in a Material Adverse Event, (ii) any change in any material fact or circumstance represented or warranted by Borrower or any of its Consolidated Affiliates in any Loan Document, (iii) the receipt by Borrower or any of its Consolidated Affiliates of notice of any violation or alleged violation of ERISA or any Environmental Law (which individually or collectively with other event which violations or allegations could reasonably be expected to result in a Material Adverse Event, (iii) any violation by any Loan Party of ERISA or any Law with respect to an Employee Plan, where there is any reasonable likelihood of the imposition of liability on such Loan Party as a result thereof that could be reasonably expected to result in a Material Adverse Event), or (iv) any a Default or Potential Default, specifying the nature thereof and what action, if any, each Loan Party action Borrower has taken, is taking taking, or proposes to take.
(e) Promptly after filing, true, correct, and complete copies of all material reports or filings filed by or on behalf of Borrower or any of its Consolidated Affiliates with any Tribunal (including copies of each Form 10-K, Form 10-Q, and Form S-8 filed by or on behalf of Borrower or any of its Consolidated Affiliates with the Securities and Exchange Commission).
(f) Promptly after the mailing or delivery thereof, copies of all material reports or other information from Borrower to its shareholders.
(g) Promptly upon the consummation thereof, a description in reasonable detail of any acquisition of material assets other than investments in industrial Properties.
(h) Promptly upon any Change in Control of the outstanding capital stock of Borrower, notice of such event together with a description of the transaction giving rise thereto and a list of all shareholders of Borrower after giving effect thereto.
(i) Promptly upon written request by Agent and to the extent available after reasonable inquiry by Borrower, a list of all major shareholders of Borrower.
Appears in 1 contract
Samples: Credit Agreement (Security Capital Industrial Trust)
Items to be Furnished. The Loan Parties Borrower shall cause the following to be furnished to Agent, for distribution to each Lender at its respective principal office, as designated by each Lender to Agent and Loan Parties from time to timeLender:
(a) Promptly after preparation, and no later than one hundred twenty (120) days after the last day of With respect to each fiscal year of the Loan Parties (providedCompanies, that, for the fiscal year ending December 31, 2015, the delivery date shall be one hundred eighty (180) days within 5 Business Days after the last day date required to be filed with the Securities and Exchange Commission as part of such fiscal year)the Companies’ periodic reporting, audited financial statements (including statements of income, cash flows and Equityholders’ equity and a balance sheet) Financial Statements showing the consolidated financial condition and results of operations of the Loan Parties Companies as of, and for the year ended on, that last day, accompanied by:
: (iA) the unqualified opinion of a firm of independent certified public accountants acceptable to Lenders (the “Registered Public Accounting Firm”)” (as such term is specified in the Securities Laws) of nationally-recognized standing, based on an audit using generally accepted auditing standardsstandards and applicable Securities Laws, that the financial statements Financial Statements were prepared in accordance with GAAP and present fairly, in all material respects, the consolidated financial condition and results of operations of the Loan PartiesCompanies; and
provided, that such opinion may include appropriate qualifications related to any actual or potential impact, direct or indirect, arising as a result of or related to (iior could reasonably be expected to arise out of or result from) COVID-19 on the Companies’ consolidated financial condition, (B) any management letter prepared by the accounting firm delivered in connection with its audit, (C) a certificate from the accounting firm to Administrative Agent indicating that during its audit it obtained no knowledge of any Default or Potential Default, or if it obtained knowledge, the nature and period of existence thereof, and (D) a Compliance Certificate with respect to such financial statements certifying (A) as to the Loan Parties’ compliance with the financial covenants set forth in Section 10 of this Agreement and (B) that such financial statements were prepared in accordance with the Accounting Practices (subject to normal year-end adjustments and the absence of footnote disclosures) and present fairly, in all material respects, the consolidated financial condition and results of operations of the Loan PartiesFinancial Statements.
(b) Promptly after preparationWith respect to each fiscal quarter of the Companies (other than the last fiscal quarter of each fiscal year), and no later than thirty (30) days within 5 Business Days after the last day of each calendar month date required to be filed with the Securities and Exchange Commission as part of the Loan PartiesCompanies periodic reportings, internally-certified unaudited financial statements (including consolidated statements of income and cash flows and a balance sheet) Financial Statements showing the consolidated financial condition and results of operations of the Loan Parties as of, and for the month, year-to-date and, if applicable, quarter period ended on, that last day. The Loan Parties’ certificate included with the unaudited financial statements will, at a minimum, include a statement that such financial statements were prepared in accordance with the Accounting Practices (subject to normal year-end adjustments and the absence of footnote disclosures) and present fairly, in all material respects, the consolidated financial condition and results of operations of the Loan Parties.
(c) Promptly after preparation, and no later than thirty (30) days after the last day of each fiscal quarter of Loan Parties:
(i) a management discussion and analysis that includes a discussion and explanation of material variances among (A) the comparison of the Loan Parties’ actual operating results to budget Companies for such fiscal quarter and for the period from the beginning of the current fiscal year to date period then ended, (B) the comparison last day of the Loan Parties’ operating results for such fiscal quarter and for the year to date period then ended to the corresponding periods in the prior year and (C) a comparison of the Loan Parties’ operating results for such fiscal quarter to the immediately preceding fiscal quarter; and
(ii) , accompanied by a Compliance Certificate with respect to the Financial Statements; provided that during the Temporary Waiver Period, Borrower shall include in such financial statements certifying (A) as to the Loan Parties’ compliance with Compliance Certificate, for informational purposes only, calculations of the financial covenants set forth in Section 10 of this Agreement, and (B) that such financial statements (I) were prepared on a basis consistent with the Accounting Practices (subject to normal year-end adjustments and the absence of footnote disclosures), and (II) present fairly, in all material respects, the consolidated financial condition and results of operations of the Loan Parties11.
(d) Promptly after preparation, and no later than the last day of January of each year (assuming a fiscal year end of December 31), an annual operating plan (with a level of detail consistent with the Projections) for the Loan Parties on a consolidated basis, approved by the Board of Directors of the Company, for the current fiscal year (if delivered in January of such year), that (i) includes a statement of all of the material assumptions on which such plan is based, (ii) includes budgeted monthly balance sheets, income statements and statements of cash flows for such fiscal year, as well as comparisons of such items to the corresponding months in the prior fiscal year, and (iii) integrates sales, gross profits, operating expenses, operating profit and cash flow projections, all prepared on the same basis and in similar detail as that on which operating results are reported (and in the case of cash flow projections, representing management’s good faith estimates of future financial performance based on historical performance), and including plans for personnel, Capital Expenditures and facilities; provided, however, that with respect to fiscal year 2016, the operating plan shall be prepared consistent with the Loan Parties’ historical practices, and include monthly budgeted profit and loss (but not balance sheet) information only. Agent and Lenders acknowledge and agree that such projections are estimates only and that actual financial performance may vary materially from that set forth in such projections.
(e) Promptly after preparation, and no later than five (5) Business Days after the Loan Parties’ federal income tax return has been filed, copies of each federal income tax return (and Form K-1’s, if applicable) and to the extent reasonably requested by the Agent, related tax reporting information for each Loan Party for the applicable fiscal year.
(fc) Promptly after receipt, a copy of each interim or special audit report report, management letter, and management letter recommendations issued by independent accountants with respect to any Loan Party Company or its financial records.
(gd) Notice, promptly after any Loan Party receives notice ofCompany knows or has reason to know, or otherwise becomes aware of, of (i) the institution existence and status of any Litigation involving any Loan Party whichthat, if determined adversely determinedto any Company, could reasonably would be expected to result in a Material Adverse Event, (ii) any other event which could reasonably be expected to result in a Material Adverse Event, (iii) any violation by any Loan Party of ERISA or any Law with respect to an Employee Plan, where there is any reasonable likelihood of the imposition of liability on such Loan Party as a result thereof that could be reasonably expected to result in a Material Adverse Event, or (iv) any Default or Potential Default, specifying the nature thereof and what action, if any, each Loan Party has taken, is taking or proposes to take.Adverse
Appears in 1 contract
Samples: Eighth Amended and Restated Credit Agreement (Vail Resorts Inc)
Items to be Furnished. The Loan Parties Borrower shall cause the following to be furnished to Agent, for distribution to the Administrative Agent and each Lender at its respective principal office, as designated by each Lender to Agent and Loan Parties from time to time:(through the Administrative Agent):
(a) Promptly after preparation, and no later than one hundred twenty (120) 90 days after the last day of each fiscal year of the Loan Parties (providedBorrower, that, for the fiscal year ending December 31, 2015, the delivery date shall be one hundred eighty (180) days after the last day of such fiscal year), audited financial statements (including statements of income, cash flows and Equityholders’ equity and a balance sheet) Financial Statements showing the consolidated financial condition and results of operations of the Loan Parties Companies as of, and for the year ended on, that such last day, accompanied by:
by (i) the unqualified opinion of a KPMG LLP (or another firm of nationally-recognized independent certified public accountants reasonably acceptable to Lenders (the “Accounting Firm”Majority Lenders), based on an audit using generally accepted auditing standards, that the financial statements such Financial Statements were prepared in accordance with GAAP and present fairly, in all material respects, fairly the consolidated financial condition and results of operations of the Loan Parties; and
Companies (and such accountants shall indicate in a letter to the Administrative Agent, that during their audit no Default or Event of Default not already reported was discovered or, if such Default or Event of Default was discovered, the nature and period of existence thereof) and (ii) a Compliance Financial Report Certificate with respect to such financial statements certifying (A) as to the Loan Parties’ compliance with the financial covenants set forth in Section 10 of this Agreement and (B) that such financial statements were prepared in accordance with the Accounting Practices (subject to normal year-end adjustments and the absence of footnote disclosures) and present fairly, in all material respects, the consolidated financial condition and results of operations of the Loan PartiesFinancial Statements.
(b) Promptly after preparation, and no later than thirty (30) 45 days after the last day of each calendar month of the Loan Partiesfirst three quarters of each fiscal year of the Borrower, internally-certified unaudited financial statements (including consolidated statements of income and cash flows and a balance sheeti) Financial Statements showing the consolidated financial condition and results of operations of the Loan Parties Companies as of, and for the monthperiod from the beginning of the current fiscal year to, year-to-date and, if applicable, quarter period ended on, that such last day. The Loan Parties’ certificate included , and (ii) a Financial Report Certificate with the unaudited financial statements will, at a minimum, include a statement that respect to such financial statements were prepared in accordance with the Accounting Practices (subject to normal year-end adjustments and the absence of footnote disclosures) and present fairly, in all material respects, the consolidated financial condition and results of operations of the Loan PartiesFinancial Statements.
(c) Promptly after preparation, preparation (and no later than thirty the later of 15 days (30a) days after such filing is due or (b) after timely filing, if filed with the last day SEC), true copies of each fiscal quarter all regular and periodic reports, proxy statements and filings on Form 8-K furnished by or on behalf of Loan Parties:
(i) a management discussion and analysis that includes a discussion and explanation of material variances among (A) any Company to stockholders generally or filed with the comparison SEC. However, only registration statements covering more than 2% of the Loan Parties’ actual operating results Borrower’s outstanding shares of common stock shall be required to budget for such fiscal quarter and for be furnished unless specifically requested by the year to date period then ended, (B) the comparison of the Loan Parties’ operating results for such fiscal quarter and for the year to date period then ended to the corresponding periods in the prior year and (C) a comparison of the Loan Parties’ operating results for such fiscal quarter to the immediately preceding fiscal quarter; and
(ii) a Compliance Certificate with respect to such financial statements certifying (A) as to the Loan Parties’ compliance with the financial covenants set forth in Section 10 of this Agreement, and (B) that such financial statements (I) were prepared on a basis consistent with the Accounting Practices (subject to normal year-end adjustments and the absence of footnote disclosures), and (II) present fairly, in all material respects, the consolidated financial condition and results of operations of the Loan PartiesAdministrative Agent.
(d) Promptly after preparationupon receipt thereof, and no later than the last day copies of January of each year any notices received from any Tribunal (assuming a fiscal year end of December 31)including, an annual operating plan (with a level of detail consistent with the Projectionswithout limitation, state regulatory agencies) for the Loan Parties on a consolidated basis, approved by the Board of Directors of the Company, for the current fiscal year (if delivered in January of such year), that (i) includes a statement of all of the material assumptions on which such plan is based, (ii) includes budgeted monthly balance sheets, income statements and statements of cash flows for such fiscal year, as well as comparisons of such items relating to the corresponding months in the prior fiscal year, and (iii) integrates sales, gross profits, operating expenses, operating profit and cash flow projections, all prepared on the same basis and in similar detail as that on possible violation or violation of any Law which operating results are reported (and in the case of cash flow projections, representing management’s good faith estimates of future financial performance based on historical performance), and including plans for personnel, Capital Expenditures and facilities; provided, however, that with respect to fiscal year 2016, the operating plan shall be prepared consistent with the Loan Parties’ historical practices, and include monthly budgeted profit and loss (but not balance sheet) information only. Agent and Lenders acknowledge and agree that such projections are estimates only and that actual financial performance may vary materially from that set forth in such projectionsmight have a Material Adverse Effect.
(e) Promptly after preparation, and no later than five (5) Business Days after the Loan Parties’ federal income tax return has been filed, copies of each federal income tax return (and Form K-1’s, if applicable) and to the extent reasonably requested by the Agent, related tax reporting information for each Loan Party for the applicable fiscal year.
(f) Promptly after receipt, a copy of each interim or special audit report and management letter issued by independent accountants with respect to any Loan Party or its financial records.
(g) Notice, promptly after any Loan Party receives notice of, the Borrower knows or otherwise becomes aware has reason to know of, (i) the institution existence of any material Litigation involving any Loan Party which, if adversely determined, could reasonably be expected to result as defined in a Material Adverse EventSection 4.6, (ii) any other event which could reasonably be expected to result material change in a Material Adverse Eventany material fact or circumstance represented or warranted in any Loan Paper, or (iii) any violation by any Loan Party of ERISA or any Law with respect to an Employee Plan, where there is any reasonable likelihood of the imposition of liability on such Loan Party as a result thereof that could be reasonably expected to result in a Material Adverse Event, or (iv) any Default or Potential Event of Default, specifying the nature thereof and what action, if any, each Loan Party action the Borrower or any other Company has taken, is taking taking, or proposes to taketake with respect thereto.
(f) Notice, promptly after the Borrower knows or has reason to know of, a Subsidiary Encumbrance, as defined in Section 7.14(b), except with respect to Permitted Refinancing Debt.
(g) Within 10 days after execution thereof, copies of any supplements, modifications or amendments to the Equity Units documentation.
(h) Promptly upon the Administrative Agent’s or any Lender’s reasonable request, such information (not otherwise required to be furnished under the Loan Papers) respecting the business affairs, assets, and liabilities of any Company, and any opinions, certifications, and documents, in addition to those mentioned herein.
(i) Promptly following receipt thereof, copies of any documents described in sections 101(k) or 101(l) of ERISA that any Company or any ERISA Affiliate may request with respect to any Multiemployer Plan; provided, that if the Companies or any of their ERISA Affiliates have not requested such documents or notices from the administrator or sponsor of the applicable Multiemployer Plan, then, upon reasonable request of the Administrative Agent, the Companies and/or their ERISA Affiliates shall promptly make a request for such documents or notices from such administrator or sponsor and the Borrower shall provide copies of such documents and notices to the Administrative Agent promptly after receipt thereof.
(j) Notice, promptly after any Company or ERISA Affiliate knows or has reason to know of, (i) the failure of any Plan to comply with any material provisions of ERISA and/or the Code (and applicable regulations under either) or with the material terms of such Plan; (ii) the failure of any Plan to meet the minimum funding standards (within the meaning of Section 412 of the Code or section 302 of ERISA) applicable to such Plan (whether or not waived), the filing pursuant to section 412(c) of the Code or section 302(c) of ERISA of an application for a waiver of the minimum funding standard with respect to any Plan, or the receipt by any Plan of a determination that it is, or is expected to be in “at risk” status (within the meaning of section 430 of the Code or Section 303 of ERISA; (iii) the incurrence by any Company or ERISA Affiliate of liability to the PBGC in connection with any Plan; (iv) the withdrawal (in whole or in part) by any Company or ERISA Affiliate from participation in a Plan or Multiemployer Plan or receipt by any Company or ERISA Affiliate of notice from any Multiemployer Plan with respect to the imposition of Withdrawal Liability or that such Multiemployer Plan is, or is expected to be Insolvent, in Reorganization, “terminated” (within the meaning of section 4041A of ERISA), or in “endangered” or “critical” status (within the meaning of section 432 of the Code or section 305 of ERISA); (v) the occurrence of a non-exempt Prohibited Transaction or a Reportable Event (excluding any Reportable Event that occurs solely as a result of the consummation of this Agreement); or (vi) the failure of any insured medical plan sponsored by any Company for any current or former employee(s) to satisfy the non-discrimination requirements of section 105 of the Code.
(k) Concurrently with the delivery of any Financial Statements pursuant to clause (a) or (b) above, a list of the Guarantor Significant Subsidiaries as of the last day of the relevant fiscal period. Financial statements, opinions of independent certified public accountants, other information and officers’ certificates required to be delivered by the Borrower pursuant to Sections 4.4 and 6.3 shall be deemed to have been delivered if any of the following, to the extent applicable, are satisfied: (i) such financial statements satisfying the requirements of Sections 4.4 and 6.3 and related certificate satisfying the requirements of Section 6.3 are delivered to the Lenders by e-mail, (ii) the Borrower shall have timely filed such Form 10-Q or Form 10-K, satisfying the requirements of Section 6.3 as the case may be, with the SEC on “XXXXX” and shall have made such form and the related certificate satisfying the requirements of Section 6.3 available on the Investor Relations portion of its home page on the worldwide web (at the Restatement Effective Date located at xxxx://xxx.xxxxxxxxxxx.xxx), (iii) such financial statements satisfying the requirements of Section 6.3 are timely posted by or on behalf of the Company on SyndTrak Online, IntraLinks or on any other similar website to which each Lender has free access or (iv) the Borrower shall have filed any of the items referred to in Section 6.3 with the SEC on “XXXXX” and shall have made such items available on the Investor Relations portion of its home page on the worldwide web or if any of such items are timely posted by or on behalf of the Borrower on IntraLinks or on any other similar website to which each Lender has free access; provided, however, that upon request of any Lender, the Borrower will thereafter deliver written copies of such forms, financial statements, other information and certificates to such Lender.
Appears in 1 contract
Samples: Credit Agreement (Centurylink, Inc)
Items to be Furnished. The Loan Parties Borrower and Parent shall cause the following to be furnished to Agent, Administrative Agent for distribution delivery to each Lender at its respective principal office, as designated by each Lender to Agent and Loan Parties from time to timeLenders:
(a) Promptly after preparation, and no later than one hundred twenty (120) 120 days after the last day of each fiscal year of the Loan Parties (providedParent, that, for the fiscal year ending December 31, 2015, the delivery date shall be one hundred eighty (180) days after the last day of such fiscal year), audited financial statements (including statements of income, cash flows and Equityholders’ equity and a balance sheet) Financial Statements showing the consolidated financial condition and results of operations of calculated for the Loan Parties Companies as of, and for the year ended on, that last such day, accompanied by:
(i) the The unqualified opinion of a firm of nationally-recognized independent certified public accountants acceptable to Lenders (the “Accounting Firm”)accountants, based on an audit using generally accepted auditing standards, that such Financial Statements (calculated with respect to the financial statements Companies) were prepared in accordance with GAAP and present fairly, in all material respects, fairly the consolidated financial condition and results of operations of the Loan PartiesCompanies;
(ii) A certificate from such accounting firm addressed to Administrative Agent indicating that during its audit it obtained no knowledge of any Default or Potential Default or, if it obtained such knowledge, the nature and period of existence thereof; and
(iiiii) With respect to the Financial Statements of the Companies, a Compliance Certificate with respect to such financial statements certifying (A) as to the Loan Parties’ compliance with the financial covenants set forth in Section 10 of this Certificate. Credit Agreement and (B) that such financial statements were prepared in accordance with the Accounting Practices (subject to normal year-end adjustments and the absence of footnote disclosures) and present fairly, in all material respects, the consolidated financial condition and results of operations of the Loan Parties.66
(b) Promptly after preparation, and no later than thirty (30) days after the last day of each calendar month of the Loan Parties, internally-certified unaudited financial statements (including consolidated statements of income and cash flows and a balance sheet) showing the consolidated financial condition and results of operations of the Loan Parties as of, and for the month, year-to-date and, if applicable, quarter period ended on, that last day. The Loan Parties’ certificate included with the unaudited financial statements will, at a minimum, include a statement that such financial statements were prepared in accordance with the Accounting Practices (subject to normal year-end adjustments and the absence of footnote disclosures) and present fairly, in all material respects, the consolidated financial condition and results of operations of the Loan Parties.
(c) Promptly after preparation, and no later than thirty (30) 60 days after the last day of each fiscal quarter of Loan Parties:
(i) a management discussion and analysis that includes a discussion and explanation of material variances among (A) the comparison of the Loan Parties’ actual operating results to budget for such fiscal quarter and for the year to date period then endedParent, (B) the comparison of the Loan Parties’ operating results for such fiscal quarter and for the year to date period then ended to the corresponding periods in the prior year and (C) a comparison of the Loan Parties’ operating results for such fiscal quarter to the immediately preceding fiscal quarter; and
(ii) a Compliance Certificate with respect to such financial statements certifying (A) as to the Loan Parties’ compliance with the financial covenants set forth in Section 10 of this Agreement, and (B) that such financial statements (I) were prepared on a basis consistent with the Accounting Practices (subject to normal year-end adjustments and the absence of footnote disclosures), and (II) present fairly, in all material respects, Financial Statements showing the consolidated financial condition and results of operations calculated for the Companies for such fiscal quarter and for the period from the beginning of the Loan Partiesthen-current fiscal year to, such last day, accompanied by a Compliance Certificate with respect to the Financial Statements of the Companies.
(c) Within 60 days after the end of each fiscal quarter of Parent, a management report, showing for each System (or group of Systems if such Systems are managed as a group and are geographically contiguous or substantially contiguous) results of operations and subscriber counts, discussing the financial results and comparing actual performance results to the Budget for such period, and outlining principal factors affecting performances of each market (all items to be delivered under this clause (c) shall be in form and substance satisfactory to Administrative Agent).
(d) Promptly after preparation, and no later than the last day of January On or prior to March 31 of each year (assuming a fiscal year end of December 31)Parent, an annual operating plan (with a level of detail consistent with the Projections) for the Loan Parties on a consolidated basis, approved by the Board of Directors of the Company, for the current fiscal year (if delivered in January of such year), that (i) includes a statement of all of the material assumptions on which such plan is based, (ii) includes budgeted monthly balance sheets, income statements and statements of cash flows financial Budget for such fiscal year, as well as comparisons accompanied by a certificate executed by a Responsible Officer of Parent and a Responsible Officer of Borrower, certifying that such items to Budget was prepared by the corresponding months in the prior fiscal year, and (iii) integrates sales, gross profits, operating expenses, operating profit and cash flow projections, all prepared on the same basis and in similar detail as that on which operating results are reported (and in the case of cash flow projections, representing management’s good faith estimates of future financial performance Companies based on assumptions which, in light of the historical performance)performance of the Companies and their prospects for the future, and including plans for personnel, Capital Expenditures and facilities; provided, however, that with respect to fiscal year 2016, the operating plan shall be prepared consistent with the Loan Parties’ historical practices, and include monthly budgeted profit and loss (but not balance sheet) information only. Agent and Lenders acknowledge and agree that such projections are estimates only and that actual financial performance may vary materially from that set forth in such projectionsreasonable.
(e) Promptly after preparation, and no later than five (5) Business Days after the Loan Parties’ federal income tax return has been filedupon receipt thereof, copies of each federal income tax return (and Form K-1’s, if applicable) and all auditor's annual management letters delivered to the extent reasonably requested by the Agent, related tax reporting information for each Loan Party for the applicable fiscal yearany Company.
(f) Promptly after receipt, a copy of each interim or special audit report and management letter issued by independent accountants with respect to any Loan Party or its financial records.
(g) Notice, promptly after any Loan Party receives notice of, Company knows or otherwise becomes aware of, has reason to know of (i) the institution existence and status of any Litigation involving any Loan Party which, if adversely determined, which could reasonably be expected to result be a Material Adverse Event, or of any order or judgment for the payment of money which (individually or collectively) is in excess of $5,000,000, or any warrant of attachment, sequestration, or similar proceeding against the assets of any Company having a value (individually or collectively) of $5,000,000, (ii) any material change in any material fact or circumstance represented or warranted in any Loan Document, (iii) a Default or Potential Default specifying the nature thereof and what action any Company has taken, is taking, or proposes to take with respect thereto, (iv) the receipt by any Company of any notice from any Governmental Authority of the expiration without renewal, termination, material modification or suspension of, or institution of any proceedings to terminate, materially modify, or suspend, any Authorization granted by the FCC or any applicable PUC, or any other Authorization which any Company is required to hold in order to operate its business in compliance with all applicable Laws, other than such expirations, terminations, suspensions, or modifications which, individually or in the aggregate, could not reasonably be expected to be a Material Adverse Event, (iiv) any other event federal, state, or local Law limiting or controlling the operations of any Company which has been issued or adopted hereafter and which could reasonably be expected to result in be a Material Adverse Event, (iiivi) the receipt by any Company of notice of any violation by or alleged violation of any Loan Party of ERISA Environmental Law or Environmental Permit or any Law Environmental Liability or potential Environmental Liability, which violation or liability or alleged violation or liability could, individually or collectively with respect to an Employee Planother such violations or allegations, where there is any reasonable likelihood of the imposition of liability on such Loan Party as a result thereof that could reasonably be reasonably expected to result in be a Material Adverse Event, or (ivvii) (A) any Default expressed statement in writing on the part of the PBGC of any "prohibited transaction," or Potential Default(B) the creation of, specifying maintenance of, or acquisition of any Employee Plan by any Company or any ERISA Affiliate. Credit Agreement 67
(g) Promptly after any of the nature information or disclosures provided on any of the Schedules delivered pursuant to this Agreement or any Annexes to any of the Collateral Documents becomes outdated or incorrect in any material respect, such revised or updated Schedule(s) or Annexes as may be necessary or appropriate to update or correct such information or disclosures; provided that, no deletions may be made to any Annexes describing Collateral in any of the Collateral Documents unless such asset disposition is expressly permitted by the Loan Documents or is approved by Required Lenders.
(h) Promptly after preparation, true, correct, and complete copies of all material reports or filings filed by or on behalf of any Company with any Governmental Authority (including the FCC and the Securities and Exchange Commission).
(i) Promptly after the filing thereof, a true, correct, and complete copy of each Form 10-K, Form 10-Q, and Form 8-K filed by or on behalf of any Company with the Securities and Exchange Commission.
(j) Promptly upon request therefor by Administrative Agent or Lenders, such information (not otherwise required to be furnished under the Loan Documents) respecting the business affairs, assets, and liabilities of the Companies, and such opinions, certifications, and documents, in addition to those mentioned in this Agreement, as reasonably requested.
(k) With respect to the post-closing requirements set forth on Schedule 7.1A, deliver, or cause to be delivered, to Administrative Agent, all agreements, documents, instruments, or other items listed on Schedule 7.1A on or prior to the date specified for delivery thereof and what action, if any, each Loan Party has taken, is taking or proposes to take.on Schedule 7.1A.
Appears in 1 contract
Items to be Furnished. The Loan Parties Borrower shall cause the following to be furnished to Agent, for distribution to each Lender at its respective principal office, as designated by each Lender to Agent and Loan Parties from time to timeLender:
(a) Promptly after preparation, and no later than one hundred twenty (120) 90 days after the last day of each fiscal year of the Loan Parties (provided, that, for Borrower beginning with the fiscal year ending December 31, 2015, the delivery date shall be one hundred eighty (180) days after the last day of such fiscal year)2008, audited financial statements (including statements of incomeoperations, stockholders’ equity, and cash flows and Equityholders’ equity and a balance sheet) showing the consolidated financial condition and results of operations of the Loan Parties Companies as of, and for the year ended on, that last day, and accompanied by:
(i) the unqualified opinion of a firm of independent certified public accountants acceptable satisfactory to Lenders (the “Accounting Firm”)Lender, based on an audit using generally accepted auditing standards, that the financial statements were prepared in accordance with GAAP and present fairly, in all material respects, the consolidated financial condition and results of operations of the Loan Parties; Companies, and
(ii) a Compliance Certificate with respect to such financial statements to be delivered under this clause (a), calculating and certifying (A) as to the Loan PartiesCompanies’ compliance with the financial covenants set forth in Section 10 of under this Agreement and (B) that such financial statements were prepared in accordance with the Accounting Practices (subject to normal year-end adjustments and the absence of footnote disclosures) and present fairly, in all material respects, the consolidated financial condition and results of operations of the Loan PartiesAgreement.
(b) Promptly after preparation, and no later than thirty (30) 45 days after the last day of each calendar month of the Loan PartiesMarch, internally-certified June, September and December unaudited financial statements (including consolidated statements of income operations, stockholders’ equity, and cash flows and a balance sheet) showing the consolidated financial condition and results of operations of the Loan Parties as of, Companies for the prior quarter and for the month, year-to-date and, if applicable, quarter period ended on, that last day. The Loan Parties’ certificate included with from the unaudited financial statements will, at a minimum, include a statement that such financial statements were prepared in accordance with the Accounting Practices (subject to normal year-end adjustments and the absence of footnote disclosures) and present fairly, in all material respects, the consolidated financial condition and results of operations beginning of the Loan Parties.
(c) Promptly after preparation, and no later than thirty (30) days after current fiscal year to the last day of each fiscal quarter of Loan Parties:
(i) a management discussion and analysis that includes a discussion and explanation of material variances among (A) the comparison of the Loan Parties’ actual operating results to budget for such fiscal quarter and for the year to date period then endedquarter, (B) the comparison of the Loan Parties’ operating results for such fiscal quarter and for the year to date period then ended to the corresponding periods in the prior year and (C) a comparison of the Loan Parties’ operating results for such fiscal quarter to the immediately preceding fiscal quarter; and
(ii) accompanied by a Compliance Certificate Certificate, with respect to such financial statements to be delivered under this clause (b), calculating and certifying (A) as to the Loan PartiesCompanies’ compliance with the financial covenants set forth in Section 10 of under this Agreement, Agreement and (B) certifying that such financial statements (I) were prepared on a basis consistent with the Accounting Practices (subject to normal year-end adjustments and the absence of footnote disclosures), and (II) present fairly, in all material respects, the consolidated financial condition and results of operations of the Loan Partiesno Default or Potential Default exists.
(d) Promptly after preparation, and no later than the last day of January of each year (assuming a fiscal year end of December 31), an annual operating plan (with a level of detail consistent with the Projections) for the Loan Parties on a consolidated basis, approved by the Board of Directors of the Company, for the current fiscal year (if delivered in January of such year), that (i) includes a statement of all of the material assumptions on which such plan is based, (ii) includes budgeted monthly balance sheets, income statements and statements of cash flows for such fiscal year, as well as comparisons of such items to the corresponding months in the prior fiscal year, and (iii) integrates sales, gross profits, operating expenses, operating profit and cash flow projections, all prepared on the same basis and in similar detail as that on which operating results are reported (and in the case of cash flow projections, representing management’s good faith estimates of future financial performance based on historical performance), and including plans for personnel, Capital Expenditures and facilities; provided, however, that with respect to fiscal year 2016, the operating plan shall be prepared consistent with the Loan Parties’ historical practices, and include monthly budgeted profit and loss (but not balance sheet) information only. Agent and Lenders acknowledge and agree that such projections are estimates only and that actual financial performance may vary materially from that set forth in such projections.
(e) Promptly after preparation, and no later than five (5) Business Days after the Loan Parties’ federal income tax return has been filed, copies of each federal income tax return (and Form K-1’s, if applicable) and to the extent reasonably requested by the Agent, related tax reporting information for each Loan Party for the applicable fiscal year.
(f) Promptly after receipt, a copy of each interim or special audit report and management letter issued by independent accountants with respect to any Loan Party or its financial records.
(gc) Notice, promptly after any Loan Party Company receives notice of, or otherwise becomes aware of, (i) the institution of any Litigation involving any Loan Party whichCompany for which the monetary amount at issue is greater than $250,000, if adversely determinedindividually, could reasonably be expected to result or $250,000 in a Material Adverse Eventthe aggregate, (ii) any other event which could reasonably be expected to result in a Material Adverse Eventliability or alleged liability under any Environmental Law arising out of, or directly affecting, the properties or operations of such Company, (iii) any violation by substantial dispute with any Loan Party of ERISA or any Law with respect to an Employee PlanGovernmental Authority, where there is any reasonable likelihood of the imposition of liability on such Loan Party as a result thereof that could be reasonably expected to result in a Material Adverse Event, or (iv) the incurrence of any material contingent Debt other than performance guaranties in respect of contracts entered into by any Company in the ordinary course of its business, and (v) a Default or Potential Default, specifying the nature thereof and what action, if any, action each Loan Party Company has taken, is taking taking, or proposes to take.
(d) Promptly after preparation, but no later than 10 days after the date of filing, a completed tax return of Borrower, together with a certificate of Responsible Officer of Borrower certifying as to the dividends or distributions declared or made in respect of the calendar year covered by such tax return.
(e) To the extent it is not part of the Borrower’s consolidated tax return, promptly after preparation, but no later than 10 days after the date of filing, a completed tax return of each Guarantor.
(f) Concurrently with the occurrence of (i) such change, notify Lender of any change in the name, legal structure, place of business, or chief executive office of any Company, or (ii) any acquisition or creation of a Subsidiary by any Company, notify Lender that any Person has become a Subsidiary of such Company.
(g) Upon Lender’s request, but in any event on at least an annual basis, true and correct current financial statements of Borrower and each Guarantor in form and substance satisfactory to Lender. The financial statements shall include, among other things, detailed information regarding (i) any entities such as corporations, partnerships, or limited liability companies of which Borrower or any Guarantor is the majority owner and (ii) any entities of which Borrower or any Guarantor is not the majority owner, but for which Borrower or such Guarantor is directly or contingently liable on debts or obligations of any kind incurred by those entities.
(h) Promptly upon reasonable request by Lender, information and documents not otherwise required to be furnished under the Loan Documents respecting the business affairs, assets and liabilities of the Companies.
Appears in 1 contract
Samples: Credit Agreement (Deep Down, Inc.)
Items to be Furnished. The Loan Parties Borrower shall cause the following to be furnished to Agent, for distribution to each Lender at its respective principal office, as designated by each Lender to Agent and Loan Parties from time to timethe Arranger:
(a) Promptly after preparation, and no later than one hundred twenty (120) 120 days after the last day of each fiscal year of the Loan Parties (providedBorrower, that, for the fiscal year ending December 31, 2015, the delivery date shall be one hundred eighty (180) days after the last day of such fiscal year), audited financial statements (including statements of income, cash flows and Equityholders’ equity and a balance sheet) Financial Statements showing the consolidated financial condition and results of operations of the Loan Parties Companies as of, and for the year ended on, that such last day, accompanied by:
by (i) the unqualified opinion of a KPMG Peat Marwick LLP (or another firm of nationally-recognized independent certified public accountants reasonably acceptable to Lenders (the “Accounting Firm”Majority Lenders), based on an audit using generally accepted auditing standards, that the financial statements such Financial Statements were prepared in accordance with GAAP and present fairly, in all material respects, fairly the consolidated financial condition and results of operations of the Loan Parties; and
Companies (and such accountants shall indicate in a letter to the Arranger, that during their audit no Default or Event of Default not already reported was discovered or, if such Default or Event of Default was discovered, the nature and period of existence thereof) and (ii) a Compliance Financial Report Certificate with respect to such financial statements certifying (A) as to the Loan Parties’ compliance with the financial covenants set forth in Section 10 of this Agreement and (B) that such financial statements were prepared in accordance with the Accounting Practices (subject to normal year-end adjustments and the absence of footnote disclosures) and present fairly, in all material respects, the consolidated financial condition and results of operations of the Loan PartiesFinancial Statements.
(b) Promptly after preparation, and no later than thirty (30) 60 days after the last day of each calendar month of the Loan Partiesfirst three quarters of each fiscal year of the Borrower, internally-certified unaudited financial statements (including consolidated statements of income and cash flows and a balance sheeti) Financial Statements showing the consolidated financial condition and results of operations of the Loan Parties Companies as of, and for the monthperiod from the beginning of the current fiscal year to, year-to-date and, if applicable, quarter period ended on, that such last day. The Loan Parties’ certificate included , and (ii) a Financial Report Certificate with the unaudited financial statements will, at a minimum, include a statement that respect to such financial statements were prepared in accordance with the Accounting Practices (subject to normal year-end adjustments and the absence of footnote disclosures) and present fairly, in all material respects, the consolidated financial condition and results of operations of the Loan PartiesFinancial Statements.
(c) Promptly after preparation, preparation (and no later than thirty the later of 15 days (30a) days after such filing is due or (b) after timely filing, if filed with the last day Securities and Exchange Commission), true copies of each fiscal quarter all regular and periodic reports, statements, documents, plans, and other written communications furnished by or on behalf of Loan Parties:
(i) a management discussion any Company to stockholders or to the Securities and analysis that includes a discussion and explanation of material variances among (A) the comparison Exchange Commission. However, only registration statements covering more than 2 percent of the Loan Parties’ actual operating results Borrower's outstanding shares of common stock shall be required to budget for such fiscal quarter and for be furnished unless specifically requested by the year to date period then ended, (B) the comparison of the Loan Parties’ operating results for such fiscal quarter and for the year to date period then ended to the corresponding periods in the prior year and (C) a comparison of the Loan Parties’ operating results for such fiscal quarter to the immediately preceding fiscal quarter; and
(ii) a Compliance Certificate with respect to such financial statements certifying (A) as to the Loan Parties’ compliance with the financial covenants set forth in Section 10 of this Agreement, and (B) that such financial statements (I) were prepared on a basis consistent with the Accounting Practices (subject to normal year-end adjustments and the absence of footnote disclosures), and (II) present fairly, in all material respects, the consolidated financial condition and results of operations of the Loan PartiesArranger.
(d) Promptly after preparationupon receipt thereof, and no later than the last day copies of January of each year any notices received from any Tribunal (assuming a fiscal year end of December 31)including, an annual operating plan (with a level of detail consistent with the Projectionswithout limitation, state regulatory agencies) for the Loan Parties on a consolidated basis, approved by the Board of Directors of the Company, for the current fiscal year (if delivered in January of such year), that (i) includes a statement of all of the material assumptions on which such plan is based, (ii) includes budgeted monthly balance sheets, income statements and statements of cash flows for such fiscal year, as well as comparisons of such items relating to the corresponding months in the prior fiscal year, and (iii) integrates sales, gross profits, operating expenses, operating profit and cash flow projections, all prepared on the same basis and in similar detail as that on possible violation or violation of any Law which operating results are reported (and in the case of cash flow projections, representing management’s good faith estimates of future financial performance based on historical performance), and including plans for personnel, Capital Expenditures and facilities; provided, however, that with respect to fiscal year 2016, the operating plan shall be prepared consistent with the Loan Parties’ historical practices, and include monthly budgeted profit and loss (but not balance sheet) information only. Agent and Lenders acknowledge and agree that such projections are estimates only and that actual financial performance may vary materially from that set forth in such projectionsmight have a Material Adverse Effect.
(e) Promptly after preparation, and no later than five (5) Business Days after the Loan Parties’ federal income tax return has been filed, copies of each federal income tax return (and Form K-1’s, if applicable) and to the extent reasonably requested by the Agent, related tax reporting information for each Loan Party for the applicable fiscal year.
(f) Promptly after receipt, a copy of each interim or special audit report and management letter issued by independent accountants with respect to any Loan Party or its financial records.
(g) Notice, promptly after any Loan Party receives notice of, the Borrower knows or otherwise becomes aware has reason to know of, (i) the institution existence of any "Material" Litigation involving any Loan Party which, if adversely determined, could reasonably be expected to result as defined in a Material Adverse EventSection 3.6, (ii) any other event which could reasonably be expected to result material change in a Material Adverse Eventany material fact or circumstance represented or warranted in any Loan Paper, or (iii) any violation by any Loan Party of ERISA or any Law with respect to an Employee Plan, where there is any reasonable likelihood of the imposition of liability on such Loan Party as a result thereof that could be reasonably expected to result in a Material Adverse Event, or (iv) any Default or Potential Event of Default, specifying the nature thereof and what action, if any, each Loan Party action the Borrower or any other Company has taken, is taking taking, or proposes to taketake with respect thereto.
(f) Notice, promptly after the Borrower knows or has reason to know of, a Subsidiary Encumbrance, as defined in Section 5.24(c).
(g) Promptly upon the Arranger's reasonable request, such information (not otherwise required to be furnished under the Loan Papers) respecting the business affairs, assets, and liabilities of any Company, and any opinions, certifications, and documents, in addition to those mentioned herein.
Appears in 1 contract
Samples: Credit Agreement (Centurytel Inc)
Items to be Furnished. The Loan Parties Borrower shall cause the following to be furnished to Agent, for distribution to each Lender at its respective principal office, as designated by each Lender to Administrative Agent and Loan Parties from time to timeeach Lender:
(a) Promptly after preparation, and no later than one hundred twenty (120100) days after the last day of each fiscal year of the Loan Parties (providedBorrower, that, for the fiscal year ending December 31, 2015, the delivery date shall be one hundred eighty (180) days after the last day of such fiscal year), audited financial statements (including statements of income, cash flows and Equityholders’ equity and a balance sheet) Financial Statements showing the consolidated financial condition and results of operations of the Loan Parties Companies as of, and for the year ended on, that last day, accompanied by:
(i) the unqualified opinion of a firm of independent certified public accountants acceptable to Lenders (the “Accounting Firm”)Borrower’s Accountants, based on an audit using generally accepted auditing standards, that the financial statements Financial Statements were prepared in accordance with GAAP and present fairly, in all material respects, the consolidated financial condition and results of operations of the Loan Parties; Companies,
(ii) certificate from the accounting firm to Administrative Agent indicating that during its audit it obtained no knowledge of any Default or Potential Default or, if it obtained knowledge, the nature and period of existence thereof, and
(iiiii) a Compliance Certificate with respect to such financial statements certifying (A) as to the Loan Parties’ compliance with the financial covenants set forth in Section 10 of this Agreement and (B) that such financial statements were prepared in accordance with the Accounting Practices (subject to normal year-end adjustments and the absence of footnote disclosures) and present fairly, in all material respects, the consolidated financial condition and results of operations of the Loan PartiesFinancial Statements.
(b) Promptly after preparation, and no later than thirty fifty (3050) days after the last day of each calendar month the first three fiscal quarters of the Loan PartiesBorrower, internally-certified unaudited financial statements (including consolidated statements of income and cash flows and a balance sheet) Financial Statements showing the consolidated financial condition and results of operations of the Loan Parties as of, Companies for the fiscal quarter and for the monthperiod from the beginning of the current fiscal year to the last day of the fiscal quarter, year-to-date and, if applicable, quarter period ended on, that last day. The Loan Parties’ certificate included with the unaudited financial statements will, at a minimum, include a statement that such financial statements were prepared in accordance with the Accounting Practices (subject to normal ordinary year-end adjustments and adjustments, accompanied by a Compliance Certificate with respect to the absence of footnote disclosures) and present fairly, in all material respects, the consolidated financial condition and results of operations of the Loan PartiesFinancial Statements.
(c) Promptly after preparation, and no later than Within thirty (30) days after the last day end of each fiscal quarter year of Loan Parties:
Borrower (i) commencing with the fiscal year ending on or about March 31, 2011), the financial budget for the next succeeding fiscal year, accompanied by a management discussion and analysis certificate executed by a Responsible Officer certifying that includes a discussion and explanation of material variances among (A) the comparison budget was prepared by Borrower based on assumptions that, in light of the Loan Parties’ actual operating results to budget for such fiscal quarter historical performance of the Companies and their prospects for the year to date period then endedfuture, (B) the comparison are reasonable as of the Loan Parties’ operating results for such fiscal quarter and for the year to date period then ended to the corresponding periods in the prior year and (C) a comparison of the Loan Parties’ operating results for such fiscal quarter to the immediately preceding fiscal quarter; and
(ii) a Compliance Certificate with respect to such financial statements certifying (A) as to the Loan Parties’ compliance with the financial covenants set forth in Section 10 of this Agreement, and (B) that such financial statements (I) were prepared on a basis consistent with the Accounting Practices (subject to normal year-end adjustments and the absence of footnote disclosures), and (II) present fairly, in all material respects, the consolidated financial condition and results of operations of the Loan Partiesprepared.
(d) Promptly after preparation, and no later than the last day of January of each year (assuming a fiscal year end of December 31), an annual operating plan (with a level of detail consistent with the Projections) for the Loan Parties on a consolidated basis, approved by the Board of Directors of the Company, for the current fiscal year (if delivered in January of such year), that (i) includes a statement of all of the material assumptions on which such plan is based, (ii) includes budgeted monthly balance sheets, income statements and statements of cash flows for such fiscal year, as well as comparisons of such items to the corresponding months in the prior fiscal year, and (iii) integrates sales, gross profits, operating expenses, operating profit and cash flow projections, all prepared on the same basis and in similar detail as that on which operating results are reported (and in the case of cash flow projections, representing management’s good faith estimates of future financial performance based on historical performance), and including plans for personnel, Capital Expenditures and facilities; provided, however, that with respect to fiscal year 2016, the operating plan shall be prepared consistent with the Loan Parties’ historical practices, and include monthly budgeted profit and loss (but not balance sheet) information only. Agent and Lenders acknowledge and agree that such projections are estimates only and that actual financial performance may vary materially from that set forth in such projections.
(e) Promptly after preparation, and no later than five (5) Business Days after the Loan Parties’ federal income tax return has been filed, copies of each federal income tax return (and Form K-1’s, if applicable) and to the extent reasonably requested by the Agent, related tax reporting information for each Loan Party for the applicable fiscal year.
(f) Promptly after receipt, a copy of each interim or special audit report and management letter issued by independent accountants Borrower’s Accountants with respect to any Loan Party Company or its financial records.
(ge) Notice, promptly after any Loan Party receives notice ofBorrower knows or has reason to know, or otherwise becomes aware of, of (i) the institution existence and status of any Litigation involving any Loan Party whichthat, if determined adversely determinedto any Company, could reasonably would be expected to result in a Material Adverse Event, ; (ii) any change in any material fact or circumstance represented or warranted by any Company in any Loan Paper; (iii) the receipt by any Company of notice of any violation or alleged violation of ERISA or any Environmental Law (which individually or collectively with other event which violations or allegations could reasonably be expected to result in constitute a Material Adverse Event, (iii) any violation by any Loan Party of ERISA or any Law with respect to an Employee Plan, where there is any reasonable likelihood of the imposition of liability on such Loan Party as a result thereof that could be reasonably expected to result in a Material Adverse Event, ); or (iv) any a Default or Potential Default, specifying the nature thereof and what action, if any, each Loan Party has action the Companies have taken, is taking are taking, or proposes propose to take.
(f) Promptly after filing, copies of all material reports or filings filed by or on behalf of any Company with any Tribunal.
(g) Promptly following a request therefor, all documentation and other information that any Lender reasonably requests in writing as necessary in order for it to comply with its ongoing obligations under applicable “know your customer” and anti-money laundering rules and regulations, including the USA Patriot Act.
(h) Promptly upon reasonable request by Administrative Agent or Majority Lenders (through Administrative Agent), information (not otherwise required to be furnished under the Loan Papers) respecting the business affairs, assets, and liabilities of the Companies and opinions, projections, certifications, and documents in addition to those mentioned in this Agreement.
Appears in 1 contract
Items to be Furnished. The Loan Parties Communications and Borrower shall cause the following to be furnished to Agent, Administrative Agent for distribution delivery to each Lender at its respective principal office, as designated by each Lender to Agent and Loan Parties from time to timeLenders:
(a) Promptly after preparation, and no later than one hundred twenty (120) 120 days after the last day of each fiscal year of the Loan Parties (providedCommunications and Borrower, that, for the fiscal year ending December 31, 2015, the delivery date shall be one hundred eighty (180) days after the last day of such fiscal year), audited financial statements (including statements of income, cash flows and Equityholders’ equity and a balance sheet) Financial Statements showing the consolidated financial condition and results of operations calculated separately for each of (x) Communications and its Restricted Subsidiaries and (y) the Loan Parties Companies, as of, and for the year ended on, that last such day, each accompanied by:
(i) the unqualified opinion of a firm of nationally-recognized independent certified public accountants acceptable to Lenders (the “Accounting Firm”)accountants, based on an audit using generally accepted auditing standards, that the financial statements such Financial Statements were prepared in accordance with GAAP and present fairly, in all material respects, fairly the consolidated financial condition and results of operations of Communications and its Restricted Subsidiaries and the Loan Parties; andCompanies, as the case may be;
(ii) a Compliance Certificate certificate from such accounting firm to Administrative Agent indicating that during its audit it obtained no knowledge of any Default or Potential Default or, if it obtained such knowledge, the nature and period of existence thereof; and
(iii) with respect to such financial statements certifying (A) as to the Loan Parties’ compliance with the financial covenants set forth in Section 10 of this Agreement and (B) that such financial statements were prepared in accordance with the Accounting Practices (subject to normal year-end adjustments and the absence of footnote disclosures) and present fairly, in all material respects, the consolidated financial condition and results of operations Financial Statements of the Loan PartiesCompanies, a Compliance Certificate in substantially the form of Exhibit E-1.
(b) Promptly after preparation, and no later than thirty (30) days after the last day of each calendar month of the Loan Parties, internally-certified unaudited financial statements (including consolidated statements of income and cash flows and a balance sheet) showing the consolidated financial condition and results of operations of the Loan Parties as of, and for the month, year-to-date and, if applicable, quarter period ended on, that last day. The Loan Parties’ certificate included with the unaudited financial statements will, at a minimum, include a statement that such financial statements were prepared in accordance with the Accounting Practices (subject to normal year-end adjustments and the absence of footnote disclosures) and present fairly, in all material respects, the consolidated financial condition and results of operations of the Loan Parties.
(c) Promptly after preparation, and no later than thirty (30) 60 days after the last day of each fiscal quarter of Loan Parties:
(i) a management discussion Communications and analysis that includes a discussion and explanation of material variances among (A) the comparison of the Loan Parties’ actual operating results to budget for such fiscal quarter and for the year to date period then endedBorrower, (B) the comparison of the Loan Parties’ operating results for such fiscal quarter and for the year to date period then ended to the corresponding periods in the prior year and (C) a comparison of the Loan Parties’ operating results for such fiscal quarter to the immediately preceding fiscal quarter; and
(ii) a Compliance Certificate with respect to such financial statements certifying (A) as to the Loan Parties’ compliance with the financial covenants set forth in Section 10 of this Agreement, and (B) that such financial statements (I) were prepared on a basis consistent with the Accounting Practices (subject to normal year-end adjustments and the absence of footnote disclosures), and (II) present fairly, in all material respects, Financial Statements showing the consolidated financial condition and results of operations calculated for Communications and its Restricted Subsidiaries and the Companies for such fiscal quarter and for the period from the beginning of the Loan Partiesthen-current fiscal year to, such last day, accompanied by a Compliance Certificate with respect to the Financial Statements of the Companies in substantially the form of Exhibit E-1.
(c) Within 60 days after the end of each fiscal quarter of Borrower a management report, showing for each System results of operations and subscriber counts, discussing the financial results and comparing actual performance results to the Budget for such period, and outlining principal factors affecting performances of each market (all items to be delivered under this clause (c) to be in form and substance satisfactory to Administrative Agent).
(d) Promptly after preparation, and no later than the last day of January On or prior to March 31 of each year (assuming a fiscal year end of December 31), an annual operating plan (with a level of detail consistent with the Projections) for the Loan Parties on a consolidated basis, approved by the Board of Directors of the CompanyCompanies, for the current fiscal year (if delivered in January of such year), that (i) includes a statement of all of the material assumptions on which such plan is based, (ii) includes budgeted monthly balance sheets, income statements and statements of cash flows financial Budget for such fiscal year, as well as comparisons of accompanied by a certificate executed by a Responsible Officer, certifying that such items to the corresponding months in the prior fiscal year, and (iii) integrates sales, gross profits, operating expenses, operating profit and cash flow projections, all Budget was prepared on the same basis and in similar detail as that on which operating results are reported (and in the case of cash flow projections, representing management’s good faith estimates of future financial performance by Borrower based on assumptions which, in light of the historical performance)performance of the Companies and their prospects for the future, are realistic and including plans for personnel, Capital Expenditures and facilities; provided, however, that with respect to fiscal year 2016, the operating plan shall be prepared consistent with the Loan Parties’ historical practices, and include monthly budgeted profit and loss (but not balance sheet) information only. Agent and Lenders acknowledge and agree that such projections are estimates only and that actual financial performance may vary materially from that set forth in such projectionsachievable.
(e) Promptly after preparation, and no later than five (5) Business Days after the Loan Parties’ federal income tax return has been filedupon receipt thereof, copies of each federal income tax return (and Form K-1’s, if applicable) and all auditor's annual management letters delivered to the extent reasonably requested by the Agent, related tax reporting information for each Loan Party for the applicable fiscal yearCommunications or Borrower.
(f) Promptly after receipt, a copy of each interim or special audit report and management letter issued by independent accountants with respect to any Loan Party or its financial records.
(g) Notice, promptly after any Loan Party receives notice of, knows or otherwise becomes aware of, has reason to know of (i) the existence and status of any Litigation which could be a Material Adverse Event, or of any order or judgment for the payment of money which (individually or collectively) is in excess of $5,000,000, or any warrant of attachment, sequestration, or similar proceeding against the assets of any Loan Party or any Subsidiary thereof having a value (individually or collectively) of $5,000,000, (ii) any material change in any material fact or circumstance represented or warranted in any Loan Document, (iii) a Default or Potential Default specifying the nature thereof and what action any Loan Party or any Subsidiary thereof has taken, is taking, or proposes to take with respect thereto, (iv) the receipt by any Loan Party or any Subsidiary thereof of any notice from any Governmental Authority of the expiration without renewal, termination, material modification or suspension of, or institution of any Litigation involving proceedings to terminate, materially modify, or suspend, any Authorization granted by the FCC or any applicable PUC, or any other Authorization which any Loan Party whichor any Subsidiary thereof is required to hold in order to operate its business in compliance with all applicable Laws, if adversely determinedother than such expirations, could reasonably be expected to result terminations, suspensions, or modifications which individually or in the aggregate would not constitute a Material Adverse Event, (iiv) any other event federal, state, or local Law limiting or controlling the operations of any Loan Party or any Subsidiary thereof which has been issued or adopted hereafter and which could reasonably be expected to result in a Material Adverse Event, (iiivi) any violation the receipt by any Loan Party of ERISA or any Subsidiary thereof of notice of any violation or alleged violation of any Environmental Law or Environmental Permit or any Environmental Liability or potential Environmental Liability, which violation or liability or alleged violation or liability could, individually or collectively with respect to an Employee Planother such violations or allegations, where there is any reasonable likelihood of the imposition of liability on such Loan Party as a result thereof that could be reasonably expected to result in constitute a Material Adverse Event, or (ivvii) (A) any Default expressed statement in writing on the part of the PBGC of any "Prohibited Transaction," or Potential Default(B) the creation of, specifying maintenance of, or acquisition of any Employee Plan by any Loan Party, any Subsidiary thereof, or any ERISA Affiliate of any Loan Party.
(g) Promptly after any of the nature thereof information or disclosures provided on any of the Schedules delivered pursuant to this Agreement or any Annexes to any of the Collateral Documents becomes outdated or incorrect in any material respect, such revised or updated Schedule(s) or Annexes as may be necessary or appropriate to update or correct such information or disclosures; provided that, no deletions may be made to any Annexes describing Collateral in any of the Collateral Documents unless approved by Required Lenders.
(h) Promptly after preparation, true, correct, and what action, if any, each complete copies of all material reports or filings filed by or on behalf of any Loan Party has takenwith any Governmental Authority (including the FCC and the Securities and Exchange Commission).
(i) Promptly after the filing thereof, is taking a true, correct, and complete copy of each Form 10-K, Form 10-Q, and Form 8-K filed by or proposes on behalf of any Loan Party or any Restricted Subsidiary thereof with the Securities and Exchange Commission.
(j) Promptly upon request therefor by Administrative Agent or Required Lenders, such information (not otherwise required to takebe furnished under the Loan Documents) respecting the business affairs, assets, and liabilities of the Loan Parties or Subsidiary thereof, and such opinions, certifications, and documents, in addition to those mentioned in this Agreement, as reasonably requested.
(k) With respect to the post-closing requirements set forth on Schedule 7.1A, deliver, or cause to be delivered, to Administrative Agent, all agreements, documents, instruments, or other items listed on Schedule 7.1A on or prior to the date specified for delivery thereof on Schedule 7.1A.
Appears in 1 contract
Samples: Revolving Credit Agreement (Dobson Communications Corp)
Items to be Furnished. The Loan Parties Borrower shall cause the following to be furnished to Agent, for distribution to the Administrative Agent and each Lender at its respective principal office, as designated by each Lender to Agent and Loan Parties from time to time:(through the Administrative Agent):
(a) Promptly after preparation, and no later than one hundred twenty (120) 90 days after the last day of each fiscal year of the Loan Parties (providedBorrower, that, for the fiscal year ending December 31, 2015, the delivery date shall be one hundred eighty (180) days after the last day of such fiscal year), audited financial statements (including statements of income, cash flows and Equityholders’ equity and a balance sheet) Financial Statements showing the consolidated financial condition and results of operations of the Loan Parties Companies as of, and for the year ended on, that such last day, accompanied by:
by (i) the unqualified opinion of a KPMG LLP (or another firm of nationally-recognized independent certified public accountants reasonably acceptable to Lenders (the “Accounting Firm”Majority Lenders), based on an audit using generally accepted auditing standards, that the financial statements such Financial Statements were prepared in accordance with GAAP and present fairly, in all material respects, fairly the consolidated financial condition and results of operations of the Loan Parties; and
Companies (and such accountants shall indicate in a letter to the Administrative Agent, that during their audit no Default or Event of Default not already reported was discovered or, if such Default or Event of Default was discovered, the nature and period of existence thereof) and (ii) a Compliance Financial Report Certificate with respect to such financial statements certifying (A) as to the Loan Parties’ compliance with the financial covenants set forth in Section 10 of this Agreement and (B) that such financial statements were prepared in accordance with the Accounting Practices (subject to normal year-end adjustments and the absence of footnote disclosures) and present fairly, in all material respects, the consolidated financial condition and results of operations of the Loan PartiesFinancial Statements.
(b) Promptly after preparation, and no later than thirty (30) 45 days after the last day of each calendar month of the Loan Partiesfirst three quarters of each fiscal year of the Borrower, internally-certified unaudited financial statements (including consolidated statements of income and cash flows and a balance sheeti) Financial Statements showing the consolidated financial condition and results of operations of the Loan Parties Companies as of, and for the monthperiod from the beginning of the current fiscal year to, year-to-date and, if applicable, quarter period ended on, that such last day. The Loan Parties’ certificate included , and (ii) a Financial Report Certificate with the unaudited financial statements will, at a minimum, include a statement that respect to such financial statements were prepared in accordance with the Accounting Practices (subject to normal year-end adjustments and the absence of footnote disclosures) and present fairly, in all material respects, the consolidated financial condition and results of operations of the Loan PartiesFinancial Statements.
(c) Promptly after preparation, preparation (and no later than thirty the later of 15 days (30a) days after such filing is due or (b) after timely filing, if filed with the last day SEC), true copies of each fiscal quarter all regular and periodic reports, proxy statements and filings on Form 8-K furnished by or on behalf of Loan Parties:
(i) a management discussion and analysis that includes a discussion and explanation of material variances among (A) any Company to stockholders generally or filed with the comparison SEC. However, only registration statements covering more than 2% of the Loan Parties’ actual operating results Borrower’s outstanding shares of common stock shall be required to budget for such fiscal quarter and for be furnished unless specifically requested by the year to date period then ended, (B) the comparison of the Loan Parties’ operating results for such fiscal quarter and for the year to date period then ended to the corresponding periods in the prior year and (C) a comparison of the Loan Parties’ operating results for such fiscal quarter to the immediately preceding fiscal quarter; and
(ii) a Compliance Certificate with respect to such financial statements certifying (A) as to the Loan Parties’ compliance with the financial covenants set forth in Section 10 of this Agreement, and (B) that such financial statements (I) were prepared on a basis consistent with the Accounting Practices (subject to normal year-end adjustments and the absence of footnote disclosures), and (II) present fairly, in all material respects, the consolidated financial condition and results of operations of the Loan PartiesAdministrative Agent.
(d) Promptly after preparationupon receipt thereof, and no later than the last day copies of January of each year any notices received from any Tribunal (assuming a fiscal year end of December 31)including, an annual operating plan (with a level of detail consistent with the Projectionswithout limitation, state regulatory agencies) for the Loan Parties on a consolidated basis, approved by the Board of Directors of the Company, for the current fiscal year (if delivered in January of such year), that (i) includes a statement of all of the material assumptions on which such plan is based, (ii) includes budgeted monthly balance sheets, income statements and statements of cash flows for such fiscal year, as well as comparisons of such items relating to the corresponding months in the prior fiscal year, and (iii) integrates sales, gross profits, operating expenses, operating profit and cash flow projections, all prepared on the same basis and in similar detail as that on possible violation or violation of any Law which operating results are reported (and in the case of cash flow projections, representing management’s good faith estimates of future financial performance based on historical performance), and including plans for personnel, Capital Expenditures and facilities; provided, however, that with respect to fiscal year 2016, the operating plan shall be prepared consistent with the Loan Parties’ historical practices, and include monthly budgeted profit and loss (but not balance sheet) information only. Agent and Lenders acknowledge and agree that such projections are estimates only and that actual financial performance may vary materially from that set forth in such projectionsmight have a Material Adverse Effect.
(e) Promptly after preparation, and no later than five (5) Business Days after the Loan Parties’ federal income tax return has been filed, copies of each federal income tax return (and Form K-1’s, if applicable) and to the extent reasonably requested by the Agent, related tax reporting information for each Loan Party for the applicable fiscal year.
(f) Promptly after receipt, a copy of each interim or special audit report and management letter issued by independent accountants with respect to any Loan Party or its financial records.
(g) Notice, promptly after any Loan Party receives notice of, the Borrower knows or otherwise becomes aware has reason to know of, (i) the institution existence of any material Litigation involving any Loan Party which, if adversely determined, could reasonably be expected to result as defined in a Material Adverse EventSection 3.6, (ii) any other event which could reasonably be expected to result material change in a Material Adverse Eventany material fact or circumstance represented or warranted in any Loan Paper, or (iii) any violation by any Loan Party of ERISA or any Law with respect to an Employee Plan, where there is any reasonable likelihood of the imposition of liability on such Loan Party as a result thereof that could be reasonably expected to result in a Material Adverse Event, or (iv) any Default or Potential Event of Default, specifying the nature thereof and what action, if any, each Loan Party action the Borrower or any other Company has taken, is taking taking, or proposes to taketake with respect thereto.
(f) Notice, promptly after the Borrower knows or has reason to know of, a Subsidiary Encumbrance, as defined in Section 6.14(b), except with respect to Permitted Refinancing Debt.
(g) Within 10 days after execution thereof, copies of any supplements, modifications or amendments to the Equity Units documentation.
(h) Promptly upon the Administrative Agent’s or any Lender’s reasonable request, such information (not otherwise required to be furnished under the Loan Papers) respecting the business affairs, assets, and liabilities of any Company, and any opinions, certifications, and documents, in addition to those mentioned herein.
(i) Promptly following receipt thereof, copies of any documents described in sections 101(k) or 101(l) of ERISA that any Company or any ERISA Affiliate may request with respect to any Multiemployer Plan; provided, that if the Companies or any of their ERISA Affiliates have not requested such documents or notices from the administrator or sponsor of the applicable Multiemployer Plan, then, upon reasonable request of the Administrative Agent, the Companies and/or their ERISA Affiliates shall promptly make a request for such documents or notices from such administrator or sponsor and the Borrower shall provide copies of such documents and notices to the Administrative Agent promptly after receipt thereof.
(j) Notice, promptly after any Company or ERISA Affiliate knows or has reason to know of, (i) the failure of any Plan to comply with any material provisions of ERISA and/or the Code (and applicable regulations under either) or with the material terms of such Plan; (ii) the failure of any Plan to meet the minimum funding standards (within the meaning of Section 412 of the Code or section 302 of ERISA) applicable to such Plan (whether or not waived), the filing pursuant to section 412(c) of the Code or section 302(c) of ERISA of an application for a waiver of the minimum funding standard with respect to any Plan, or the receipt by any Plan of a determination that it is, or is expected to be in “at risk” status (within the meaning of section 430 of the Code or Section 303 of ERISA; (iii) the incurrence by any Company or ERISA Affiliate of liability to the PBGC in connection with any Plan; (iv) the withdrawal (in whole or in part) by any Company or ERISA Affiliate from participation in a Plan or Multiemployer Plan or receipt by any Company or ERISA Affiliate of notice from any Multiemployer Plan with respect to the imposition of Withdrawal Liability or that such Multiemployer Plan is, or is expected to be Insolvent, in Reorganization, “terminated” (within the meaning of section 4041A of ERISA), or in “endangered” or “critical” status (within the meaning of section 432 of the Code or section 305 of ERISA); (v) the occurrence of a non-exempt Prohibited Transaction or a Reportable Event (excluding any Reportable Event that occurs solely as a result of the consummation of this Agreement); or (vi) the failure of any insured medical plan sponsored by any Company for any current or former employee(s) to satisfy the non-discrimination requirements of section 105 of the Code.
(k) Concurrently with the delivery of any Financial Statements pursuant to clause (a) or (b) above, a list of the Guarantor Significant Subsidiaries as of the last day of the relevant fiscal period. Financial statements, opinions of independent certified public accountants, other information and officers’ certificates required to be delivered by the Borrower pursuant to Sections 3.4 and 5.3 shall be deemed to have been delivered if any of the following, to the extent applicable, are satisfied: (i) such financial statements satisfying the requirements of Sections 3.4 and 5.3 and related certificate satisfying the requirements of Section 5.3 are delivered to the Lenders by e-mail, (ii) the Borrower shall have timely filed such Form 10-Q or Form 10-K, satisfying the requirements of Section 5.3 as the case may be, with the SEC on “XXXXX” and shall have made such form and the related certificate satisfying the requirements of Section 5.3 available on the Investor Relations portion of its home page on the worldwide web (at the Closing Date located at xxxx://xxx.xxxxxxxxxxx.xxx), (iii) such financial statements satisfying the requirements of Section 5.3 are timely posted by or on behalf of the Company on SyndTrak Online, IntraLinks or on any other similar website to which each Lender has free access or (iv) the Borrower shall have filed any of the items referred to in Section 5.3 with the SEC on “XXXXX” and shall have made such items available on the Investor Relations portion of its home page on the worldwide web or if any of such items are timely posted by or on behalf of the Borrower on IntraLinks or on any other similar website to which each Lender has free access; provided, however, that upon request of any Lender, the Borrower will thereafter deliver written copies of such forms, financial statements, other information and certificates to such Lender.
Appears in 1 contract
Samples: Credit Agreement (Centurylink, Inc)
Items to be Furnished. The Loan Parties Borrower shall cause the following to be furnished to Agent, for distribution to each Lender at its respective principal office, as designated by each Lender to Agent and Loan Parties from time to time:
(a) Promptly after preparation, and no later than one hundred twenty (120) a. Within 120 days after the last day of each fiscal year of the Loan Parties (providedPESCO, that, for the fiscal year ending December 31, 2015, the delivery date shall be one hundred eighty (180) days after the last day of such fiscal year), audited financial statements (including statements of income, cash flows and Equityholders’ equity and a balance sheet) Financial Statements showing the consolidated and consolidating (if applicable) financial condition conditions and results of operations of the Loan Parties PESCO as of, and for the year ended on, that such last day, accompanied by:
by (i) the unqualified opinion opinion, without material qualification, of a Deloitte & Touche or another firm of independent certified public accountants acceptable to Lenders (the “Accounting Firm”)Determining Lenders, based on an audit using generally accepted auditing standards, that the financial statements consolidated portions of such Financial Statements were prepared in accordance with GAAP and present fairly, in all material respects, the consolidated financial condition and results of operations of the Loan Parties; and
PESCO, (ii) a Compliance Financial Report Certificate with respect to such financial statements certifying (A) as to the Loan Parties’ compliance with the financial covenants set forth in Section 10 of this Agreement Financial Statements, and (Biii) that such financial statements were prepared the Fixed Charge Coverage Ratio calculation in accordance with the Accounting Practices form of EXHIBIT G.
b. As soon as practicable after the end of each fiscal year of Borrower:
(subject to normal year-end adjustments and i) Unaudited consolidating Financial Statements showing (by major management operation category) the absence of footnote disclosures) and present fairly, in all material respects, the consolidated financial condition and results of operations of the Loan Parties.PESCO; and
(bii) Promptly after preparationUnaudited or audited (to the extent prepared) Financial Statements showing the financial conditions and results of operations of the Borrower's unconsolidated affiliates, including, but not limited to, Pool Arabia, Ltd., Antah Drilling Sdn. Bhd, Pool Santxxx, Xxmited, and no later than thirty (30) Intairdril Oman L.L.C.
c. Within 60 days after the last day of each calendar month of the Loan Parties, internally-certified first three fiscal quarters of each fiscal year (i) unaudited financial statements (including consolidated statements of income and cash flows and a balance sheet) Financial Statements showing the consolidated and consolidating (if applicable) financial condition and results of operations of the Loan Parties PESCO as of, and for the monthperiod from the beginning of the current fiscal year to, year-to-date and, if applicable, quarter period ended on, that such last day. The Loan Parties’ certificate included with the unaudited financial statements will, at a minimum, include a statement that such financial statements were prepared in accordance with the Accounting Practices (subject to normal year-end adjustments and the absence of footnote disclosures) and present fairly, in all material respects, the consolidated financial condition and results of operations of the Loan Parties.
(c) Promptly after preparation, and no later than thirty (30) days after the last day of each fiscal quarter of Loan Parties:
(i) a management discussion and analysis that includes a discussion and explanation of material variances among (A) the comparison of the Loan Parties’ actual operating results to budget for such fiscal quarter and for the year to date period then ended, (B) the comparison of the Loan Parties’ operating results for such fiscal quarter and for the year to date period then ended to the corresponding periods in the prior year and (C) a comparison of the Loan Parties’ operating results for such fiscal quarter to the immediately preceding fiscal quarter; and
(ii) a Compliance Financial Report Certificate with respect to such financial statements certifying (A) as to the Loan Parties’ compliance with the financial covenants set forth in Section 10 of this Agreement, and (B) that such financial statements (I) were prepared on a basis consistent with the Accounting Practices (subject to normal year-end adjustments and the absence of footnote disclosures), and (II) present fairly, in all material respects, the consolidated financial condition and results of operations of the Loan Parties.
(d) Promptly after preparation, and no later than the last day of January of each year (assuming a fiscal year end of December 31), an annual operating plan (with a level of detail consistent with the Projections) for the Loan Parties on a consolidated basis, approved by the Board of Directors of the Company, for the current fiscal year (if delivered in January of such year), that (i) includes a statement of all of the material assumptions on which such plan is based, (ii) includes budgeted monthly balance sheets, income statements and statements of cash flows for such fiscal year, as well as comparisons of such items to the corresponding months in the prior fiscal yearFinancial Statements, and (iii) integrates sales, gross profits, operating expenses, operating profit and cash flow projections, all prepared on the same basis and in similar detail as that on which operating results are reported (and Fixed Charge Coverage Ratio calculation in the case form of cash flow projections, representing management’s good faith estimates EXHIBIT G.
d. On or before the 15th Business Day of future financial performance based on historical performance), and including plans for personnel, Capital Expenditures and facilities; provided, however, that with respect each calendar month a description of all obligations of PESCO or any of its consolidated Subsidiaries related to fiscal year 2016, surety bonds outstanding as of the operating plan shall be prepared consistent with last day of the Loan Parties’ historical practices, and include monthly budgeted profit and loss (but not balance sheet) information only. Agent and Lenders acknowledge and agree that such projections are estimates only and that actual financial performance may vary materially from that set forth in such projectionsimmediately preceding calendar month.
e. At Agent's or Determining Lenders' request, a weekly rig hour status report.
f. To the extent not delivered to Agent under CLAUSES (ea) Promptly and (b) preceding, promptly after preparationfiling or delivery thereof, and no later than five (5) Business Days after the Loan Parties’ federal income tax return has been filed, true copies of each federal income tax return (and Form K-1’s, if applicable) and all SEC Reports furnished by or on behalf of PESCO to the extent reasonably requested by the Agent, related tax reporting information for each Loan Party for the applicable fiscal yearits stockholders.
(f) Promptly after receipt, a copy of each interim or special audit report and management letter issued by independent accountants with respect to any Loan Party or its financial records.
(g) g. Notice, promptly after PESCO or any Loan Party receives notice of, of its consolidated Subsidiaries knows or otherwise becomes aware has reason to know of, (i) the institution existence and changes in the status of any Litigation involving any Loan Party whichwhich would, if adversely determinedindividually or in the aggregate, could be reasonably be expected likely to result in cause a Material Adverse EventEffect, (ii) any other event change in any material fact or circumstance represented or warranted in any Loan Paper which could would, individually or in the aggregate, be reasonably be expected likely to result in cause a Material Adverse EventEffect, (iii) any violation by any Loan Party of ERISA or any Law with respect to an Employee Plan, where there is any reasonable likelihood of the imposition of liability on such Loan Party as a result thereof that could be reasonably expected to result in a Material Adverse Event, or (iv) any Default or Potential Default, specifying the nature thereof and what action, if any, each Loan Party action PESCO or any of its consolidated Subsidiaries has taken, is taking taking, or proposes to take.take with respect thereto, or (iv) the occurrence of a reportable event (as defined in ERISA) with respect to any employee benefit plan of PESCO or any of its consolidated Subsidiaries subject to ERISA, or the complete or partial withdrawal from
Appears in 1 contract
Items to be Furnished. The Loan Parties Borrower shall cause the following to be furnished to Agent, for distribution to each Lender at its respective principal office, as designated by each Lender to Agent and Loan Parties from time to time:
(a) Promptly after preparation, and no later than one hundred twenty (120100) days after the last day of each fiscal year of the Loan Parties (providedBorrower, that, for the fiscal year ending December 31, 2015, the delivery date shall be one hundred eighty (180) days after the last day of such fiscal year), audited financial statements (including statements of income, cash flows and Equityholders’ equity and a balance sheet) Financial Statements showing the consolidated financial condition and results of operations of the Loan Parties Companies as of, and for the year ended on, that last day, accompanied by:
(i) the unqualified opinion of a firm of independent certified public accountants acceptable to Lenders (the “Accounting Firm”)Borrower's Accountants, based on an audit using generally accepted auditing standards, that the financial statements Financial Statements were prepared in accordance with GAAP and present fairly, in all material respects, the consolidated financial condition and results of operations of the Loan Parties; Companies,
(ii) a certificate from the accounting firm to Agent indicating that during its audit it obtained no knowledge of any Default or Potential Default or, if it obtained knowledge, the nature and period of existence thereof, and
(iiiii) a Compliance Certificate with respect to such financial statements certifying (A) as to the Loan Parties’ compliance with the financial covenants set forth in Section 10 of this Agreement and (B) that such financial statements were prepared in accordance with the Accounting Practices (subject to normal year-end adjustments and the absence of footnote disclosures) and present fairly, in all material respects, the consolidated financial condition and results of operations of the Loan PartiesFinancial Statements.
(b) Promptly after preparation, and no later than thirty fifty (3050) days after the last day of each calendar month the first three fiscal quarters of the Loan PartiesBorrower, internally-certified unaudited financial statements (including consolidated statements of income and cash flows and a balance sheet) Financial Statements showing the consolidated financial condition and results of operations of the Loan Parties as of, Companies for the fiscal quarter and for the monthperiod from the beginning of the current fiscal year to the last day of the fiscal quarter, year-to-date and, if applicable, quarter period ended on, that last day. The Loan Parties’ certificate included with the unaudited financial statements will, at a minimum, include a statement that such financial statements were prepared in accordance with the Accounting Practices (subject to normal ordinary year-end adjustments and adjustments, accompanied by a Compliance Certificate with respect to the absence of footnote disclosures) and present fairly, in all material respects, the consolidated financial condition and results of operations of the Loan PartiesFinancial Statements.
(c) Promptly after preparation, and no later than Within thirty (30) days after the last day end of each fiscal quarter year of Loan Parties:
Borrower (icommencing with the fiscal year ending March 31, 1999, in the case of financial projections, and commencing with the fiscal year ending March 31, 1999, in the case of financial budgets), financial projections for the succeeding three (3) fiscal years and the financial budget for the next succeeding fiscal year, accompanied by a management discussion certificate executed by a Responsible Officer certifying that the projections and analysis that includes a discussion and explanation of material variances among (A) the comparison budget were prepared by Borrower based on assumptions that, in light of the Loan Parties’ actual operating results to budget for such fiscal quarter historical performance of the Companies and their prospects for the year to date period then endedfuture, (B) the comparison are reasonable as of the Loan Parties’ operating results for such fiscal quarter and for the year to date period then ended to the corresponding periods in the prior year and (C) a comparison of the Loan Parties’ operating results for such fiscal quarter to the immediately preceding fiscal quarter; and
(ii) a Compliance Certificate with respect to such financial statements certifying (A) as to the Loan Parties’ compliance with the financial covenants set forth in Section 10 of this Agreement, and (B) that such financial statements (I) were prepared on a basis consistent with the Accounting Practices (subject to normal year-end adjustments and the absence of footnote disclosures), and (II) present fairly, in all material respects, the consolidated financial condition and results of operations of the Loan Partiesprepared.
(d) Promptly after preparation, and no later than the last day of January of each year (assuming a fiscal year end of December 31), an annual operating plan (with a level of detail consistent with the Projections) for the Loan Parties on a consolidated basis, approved by the Board of Directors of the Company, for the current fiscal year (if delivered in January of such year), that (i) includes a statement of all of the material assumptions on which such plan is based, (ii) includes budgeted monthly balance sheets, income statements and statements of cash flows for such fiscal year, as well as comparisons of such items to the corresponding months in the prior fiscal year, and (iii) integrates sales, gross profits, operating expenses, operating profit and cash flow projections, all prepared on the same basis and in similar detail as that on which operating results are reported (and in the case of cash flow projections, representing management’s good faith estimates of future financial performance based on historical performance), and including plans for personnel, Capital Expenditures and facilities; provided, however, that with respect to fiscal year 2016, the operating plan shall be prepared consistent with the Loan Parties’ historical practices, and include monthly budgeted profit and loss (but not balance sheet) information only. Agent and Lenders acknowledge and agree that such projections are estimates only and that actual financial performance may vary materially from that set forth in such projections.
(e) Promptly after preparation, and no later than five (5) Business Days after the Loan Parties’ federal income tax return has been filed, copies of each federal income tax return (and Form K-1’s, if applicable) and to the extent reasonably requested by the Agent, related tax reporting information for each Loan Party for the applicable fiscal year.
(f) Promptly after receipt, a copy of each interim or special audit report and management letter issued by independent accountants Borrower's Accountants with respect to any Loan Party Company or its financial records.
(ge) Notice, promptly after any Loan Party receives notice ofBorrower knows or has reason to know, or otherwise becomes aware of, of (i) the institution existence and status of any Litigation involving any Loan Party whichthat, if determined adversely determinedto any Company, could reasonably would be expected to result in a Material Adverse Event, (ii) any change in any material fact or circumstance represented or warranted by any Company in any Loan Paper, (iii) the receipt by any Company of notice of any violation or alleged violation of ERISA or any Environmental Law (which individually or collectively with other event which violations or allegations could reasonably be expected to result in constitute 36 a Material Adverse Event, (iii) any violation by any Loan Party of ERISA or any Law with respect to an Employee Plan, where there is any reasonable likelihood of the imposition of liability on such Loan Party as a result thereof that could be reasonably expected to result in a Material Adverse Event), or (iv) any a Default or Potential Default, specifying the nature thereof and what action, if any, each Loan Party has action the Companies have taken, is taking are taking, or proposes propose to take.
(f) Promptly after filing, copies of all material reports or filings filed by or on behalf of any Company with any Tribunal.
(g) Promptly upon reasonable request by Agent or Majority Lenders (through Agent), information (not otherwise required to be furnished under the Loan Papers) respecting the business affairs, assets and liabilities of the Companies and opinions, projections, certifications and documents in addition to those mentioned in this Agreement.
Appears in 1 contract
Items to be Furnished. The Loan Parties Parent and each Borrower shall cause the following to be furnished to Agent, Administrative Agent for distribution delivery to each Lender at its respective principal office, as designated by each Lender to Agent and Loan Parties from time to timeLenders:
(a) Promptly after preparation, and (UNLESS otherwise specified) no later than one hundred twenty (120) 90 days after the last day of each fiscal year of the Loan Parties (providedParent, thatLogix, for the fiscal year ending December 31Xxxxxx Telephone, 2015and each other Additional Borrower, the delivery date shall be one hundred eighty (180) days after the last day of such fiscal year), audited financial statements (including statements of income, cash flows and Equityholders’ equity and a balance sheet) Financial Statements showing the consolidated (and, in the case of Parent and its Subsidiaries, EXCEPT with respect to the cash flow statements, consolidating) financial condition and results of operations calculated separately for each of (w) Parent and its Subsidiaries, (x) the Logix Group (including separate balance sheets and statements of operations for each of the Loan Parties Fiber Business and the CLEC Business, in form and substance satisfactory to Agents), (y) Xxxxxx Telephone and its Subsidiaries, and (z) each Additional Borrower and its Subsidiaries as of, and for the year ended on, that last such day, each accompanied by:
(i) the unqualified opinion of a firm of nationally-recognized independent certified public accountants acceptable to Lenders (the “Accounting Firm”)accountants, based on an audit using generally accepted auditing standards, that the financial statements Financial Statements calculated with respect to Parent and its Subsidiaries were prepared in accordance with GAAP and present fairly, in all material respects, fairly the consolidated financial condition and results of operations of Parent and its Subsidiaries;
(ii) any management letter prepared by such accounting firm (PROVIDED THAT, such letter shall be furnished to Administrative Agents when received, but in no event later than 150 days after the Loan Partieslast day of the applicable fiscal year);
(iii) a certificate from such accounting firm to Administrative Agent, indicating that during its audit it obtained no knowledge of any Default or Potential Default or, if it obtained such knowledge, the nature and period of existence thereof; and
(iiiv) a Compliance Certificate with respect to such financial statements certifying (A) as the Financial Statements of Parent, The Logix Group, Xxxxxx Telephone and its Subsidiaries, and each Additional Borrower delivered pursuant to the Loan Parties’ compliance with the financial covenants set forth in Section 10 of this Agreement and (B) that such financial statements were prepared in accordance with the Accounting Practices (subject to normal year-end adjustments and the absence of footnote disclosures) and present fairlySECTION 9.3(a), in all material respects, the consolidated financial condition and results of operations of the Loan Partiesa Compliance Certificate.
(b) Promptly From the Closing Date until the Phase II Notice Date, promptly after preparationpreparation thereof, and no later than thirty (30) 30 days after the last day of each calendar month month, Financial Statements of the Loan PartiesParent, internally-certified unaudited financial statements (including consolidated statements of income Logix, Xxxxxx Telephone, and cash flows and a balance sheet) any other Additional Borrower, showing the consolidated (and, in the case of Parent and its Subsidiaries, EXCEPT with respect to the cash flow statements, consolidating) financial condition and results of operations calculated for the Parent and its Subsidiaries, the Logix Group (including separate balance sheets and statements of operations for the Loan Parties as of, Fiber Business and for the monthCLEC Business, yearin form and substance satisfactory to Agents), Xxxxxx Telephone and its Subsidiaries, and each other Additional Borrower and its Subsidiaries (as the case may be), for such calendar month and for the period from the beginning of the then-current fiscal year to-date and, if applicable, quarter period ended on, that such last day. The Loan Parties’ certificate included , accompanied by a (y) Compliance Certificate with the unaudited financial statements willrespect to such Financial Statements, at executed by a minimumResponsible Officer of Parent, include a statement that such financial statements were prepared in accordance with the Accounting Practices Logix, Xxxxxx Telephone, and each Additional Borrower (subject to normal year-end adjustments and the absence of footnote disclosures) and present fairly, in all material respects, the consolidated financial condition and results of operations of the Loan Partiesif any).
(c) Promptly after preparation, and no later than thirty (30) 45 days after the last day of each fiscal quarter of Loan Parties:
(i) a management discussion and analysis that includes a discussion and explanation of material variances among (A) the comparison of the Loan Parties’ actual operating first three fiscal quarters of each fiscal year of Parent, Logix, Xxxxxx Telephone, and any other Additional Borrower, Financial Statements showing the consolidated (and, in the case of Parent and its Subsidiaries, EXCEPT with respect to the cash flow statements, consolidating) financial condition and results of operations calculated for the Parent and its Subsidiaries, the Logix Group (including separate balance sheets and statements of operations for the Fiber Business and for the CLEC Business, in form and substance satisfactory to budget Agents), Xxxxxx Telephone and its Subsidiaries, and each other Additional Borrower and its Subsidiaries (as the case may be), for such fiscal quarter and for the year to date period then ended, (B) from the comparison beginning of the Loan Parties’ operating results for then-current fiscal year to, such fiscal quarter and for the year to date period then ended to the corresponding periods in the prior year and last day, accompanied by a (Cy) a comparison of the Loan Parties’ operating results for such fiscal quarter to the immediately preceding fiscal quarter; and
(ii) a Compliance Certificate with respect to such financial statements certifying (A) as to the Loan Parties’ compliance with the financial covenants set forth in Section 10 Financial Statements, executed by a Responsible Officer of this AgreementParent, Logix, Xxxxxx Telephone, and each Additional Borrower (B) that such financial statements (I) were prepared on a basis consistent with the Accounting Practices (subject to normal year-end adjustments and the absence of footnote disclosuresif any), and (II) present fairly, in all material respects, the consolidated financial condition and results of operations of the Loan Parties.
(d) (i) With respect to all statements of operation delivered pursuant to SECTION 9.3(a), (b), or (c) preceding, a comparison to the Benchmark Budget for each such period and an explanation of any variances from the applicable Benchmark Budget; and (ii) additionally, on or prior to March 31 of each fiscal year of Parent, Logix, Xxxxxx Telephone, and any other Additional Borrower, an operating budget (in form and substance satisfactory to Agents) for each such entity and its Subsidiaries for such fiscal year (including separate operating budgets for the Fiber Business and for the CLEC Business), each accompanied by a certificate executed by a Responsible Officer of the appropriate entity, certifying that such operating budget was prepared by such entity based on assumptions which, in light of the historical performance of such entity and its Subsidiaries and their prospects for the future, are realistic and achievable; PROVIDED THAT, notwithstanding the delivery of such operating budgets, no Benchmark Budget may be amended or modified (or amounts thereunder reallocated) without the prior written consent of Required Lenders.
(e) Promptly upon receipt thereof, copies of all auditor's annual management letters delivered to Parent.
(f) Notice, promptly after Parent or any Borrower knows or has reason to know of (i) the existence and status of any Litigation which could be a Material Adverse Event, or of any order or judgment for the payment of money which (individually or collectively) is in excess of $1,000,000, or any warrant of attachment, sequestration, or similar proceeding against the assets of any Loan Party or Subsidiary of Parent having a value (individually or collectively) of $1,000,000, (ii) any material change in any material fact or circumstance represented or warranted in any Loan Paper, (iii) a Default or Potential Default specifying the nature thereof and what action any Loan Party (or, if prior to the Second Capital Date, DCCLP) has taken, is taking, or proposes to take with respect thereto, (iv) the receipt by any Loan Party or Subsidiary of Parent of any notice from any Governmental Authority of the expiration without renewal, termination, material modification, or suspension of, or institution of any proceedings to terminate, materially modify, or suspend, any Authorization granted by the FCC or any applicable PUC, or any other Authorization which any Loan Party or Subsidiary of Parent is required to hold in order to operate its business in compliance with all applicable Laws, OTHER THAN such expirations, terminations, suspensions, or modifications which individually or in the aggregate would not constitute a Material Adverse Event, (v) any federal, state, or local statute, regulation, or ordinance or judicial or administrative order limiting or controlling the operations of any Loan Party or Subsidiary of Parent (or, if prior to the Second Capital Date, DCCLP) which has been issued or adopted hereafter and which is of material adverse importance or effect in relation to the operation of any Loan Party or Subsidiary of Parent, (vi) the receipt by any Loan Party or Subsidiary of Parent of notice of any violation or alleged violation of any Environmental Law, which violation or alleged violation could individually or collectively with other such violations or allegations, constitute a Material Adverse Event, (vii) (A) the occurrence of a Reportable Event that, alone or TOGETHER WITH any other Reportable Event, could reasonably be expected to result in liability of any Loan Party or Subsidiary of Parent to the PBGC in an aggregate amount exceeding $1,000,000; (B) any expressed statement in writing on the part of the PBGC of its intention to terminate any Employee Plan or Plans; (C) any Loan Party's or their ERISA Affiliate's becoming obligated to file with the PBGC a notice of failure to make a required installment or other payment with respect to an Employee Plan; (D) the receipt by any Loan Party or an ERISA Affiliate or any Loan Party from the sponsor of a Multiemployer Plan of either a notice concerning the imposition of withdrawal liability in an aggregate amount exceeding $1,000,000 or of the impending termination or reorganization of such Multiemployer Plan; or (E) the occurrence of any condition (under ERISA, the Code, or otherwise) for the imposition of a Lien in favor of the PBGC on the assets of any Loan Party; or (viii) any material, or potentially material, inaccuracy in any Benchmark Budget.
(g) Promptly (but in no event later than the last Business Day of the calendar month in which such change occurs) after any of the information or disclosures provided on any of the Schedules delivered pursuant to this Agreement or any annexes to any of the Collateral Documents becomes outdated or incorrect or requires supplementation in any material respect, such revised or updated Schedule(s) or annexes as may be necessary or appropriate to update or correct such information or disclosures; PROVIDED THAT, (i) no deletions may be made to any annexes describing Collateral in any of the Collateral Documents or to SCHEDULE 8.15 to this Agreement describing Material Agreements UNLESS approved by Required Lenders and (ii) in the case of SCHEDULES 6.6, 8.19, 9.13, and 9.14, the information thereon shall not be deemed accepted for purposes of the Loan Papers and shall not become part of the Loan Papers unless approved by Required Lenders.
(h) Promptly after preparation, true, correct, and complete copies of all material reports or filings filed by or on behalf of any Loan Party or any Subsidiary of a Loan Party with any Governmental Authority (including the FCC and the Securities and Exchange Commission).
(i) Promptly after the filing thereof, a true, correct, and complete copy of each FORM 10-K, FORM 10-Q, and FORM 8-K filed by or on behalf of any Loan Party or any Subsidiary of a Loan Party with the Securities and Exchange Commission.
(j) Promptly upon request therefor by Administrative Agent or Lenders, such information (not otherwise required to be furnished under the Loan Papers) respecting the business affairs, assets, and liabilities of any Loan Party or any Subsidiary of a Loan Party (including, without limitation, status reports concerning progress of implementation of its plan for addressing the Year 2000 Problem), and such opinions, certifications, and documents, in addition to those mentioned in this Agreement, as reasonably requested.
(k) Promptly after preparation, and no later than 30 days after the last day of January of each year calendar month (assuming a fiscal year end of December 31the "SUBJECT MONTH"), an annual operating plan a management report (with a level substantially in the form of detail consistent with EXHIBIT E-5), discussing the Projections) financial results, comparing actual performance results to the Benchmark Budget for the Loan Parties on a consolidated basisSubject Month and outlining principal changes in trends affecting each market, approved by the Board of Directors and separately detailing as of the Companylast day of the Subject Month, among other things, (i) the total number of Access Lines, CLEC Resale Access Lines, CLEC UNE-P Access Lines, and CLEC On-Switch Access Lines; (ii) average gross margins for each long distance, data transmission, and local business segment; (iii) Operating Cash Flow for each market served by each business segment; (iv) sales employee turnover during such period and for the Subject Month from the beginning of the then-current fiscal year to such last day; (if delivered in January of such year), that (iv) includes a statement descriptions of all Capital Expenditures made during the Subject Month; and (vi) a status report of Companies' efforts to raise the necessary capital to satisfy the requirements of the material assumptions on which such plan is based, (ii) includes budgeted monthly balance sheets, income statements First Capital Date and statements of cash flows for such fiscal year, as well as comparisons of such items to the corresponding months in the prior fiscal year, and (iii) integrates sales, gross profits, operating expenses, operating profit and cash flow projections, all prepared on the same basis and in similar detail as that on which operating results are reported (and in the case of cash flow projections, representing management’s good faith estimates of future financial performance based on historical performance), and including plans for personnel, Second Capital Expenditures and facilities; provided, however, that with respect to fiscal year 2016, the operating plan shall be prepared consistent with the Loan Parties’ historical practices, and include monthly budgeted profit and loss (but not balance sheet) information only. Agent and Lenders acknowledge and agree that such projections are estimates only and that actual financial performance may vary materially from that set forth in such projectionsDate.
(el) Promptly after preparation, and but no later than five (5) Business Days 30 days after the Loan Parties’ federal income tax return has been filed, copies last day of each federal income tax return (and Form K-1’s, if applicable) and to the extent reasonably requested by the Agent, related tax reporting information for each Loan Party for the applicable fiscal year.
(f) Promptly after receiptcalendar month, a copy of each interim or special audit report and management letter issued by independent accountants with respect to any Loan Party or its financial recordsBorrowing Base Report.
(g) Notice, promptly after any Loan Party receives notice of, or otherwise becomes aware of, (i) the institution of any Litigation involving any Loan Party which, if adversely determined, could reasonably be expected to result in a Material Adverse Event, (ii) any other event which could reasonably be expected to result in a Material Adverse Event, (iii) any violation by any Loan Party of ERISA or any Law with respect to an Employee Plan, where there is any reasonable likelihood of the imposition of liability on such Loan Party as a result thereof that could be reasonably expected to result in a Material Adverse Event, or (iv) any Default or Potential Default, specifying the nature thereof and what action, if any, each Loan Party has taken, is taking or proposes to take.
Appears in 1 contract
Samples: Revolving Credit Agreement (Logix Communications Enterprises Inc)
Items to be Furnished. The Loan Parties Borrower shall cause the following to be furnished to Agent, for distribution to each Lender at its respective principal office, as designated by each Lender to Agent and Loan Parties from time to timeLender:
(a) Promptly after preparation, and no later than one hundred twenty (120) days after the last day of With respect to each fiscal year of the Loan Parties (providedCompanies, that, for the fiscal year ending December 31, 2015, the delivery date shall be one hundred eighty (180) days within 5 Business Days after the last day date required to be filed with the Securities and Exchange Commission as part of such fiscal year)the Companies’ periodic reporting, audited financial statements (including statements of income, cash flows and Equityholders’ equity and a balance sheet) Financial Statements showing the consolidated financial condition and results of operations of the Loan Parties Companies as of, and for the year ended on, that last day, accompanied by:
: (iA) the unqualified opinion of a firm of independent certified public accountants acceptable to Lenders (the “Registered Public Accounting Firm”)” (as such term is specified in the Securities Laws) of nationally-recognized standing, based on an audit using generally accepted auditing standardsstandards and applicable Securities Laws, that the financial statements Financial Statements were prepared in accordance with GAAP and present fairly, in all material respects, the consolidated financial condition and results of operations of the Loan Parties; and
Companies, (iiB) any management letter prepared by the accounting firm delivered in connection with its audit, (C) a certificate from the accounting firm to Administrative Agent indicating that during its audit it obtained no knowledge of any Default or Potential Default, or if it obtained knowledge, the nature and period of existence thereof, and (D) a Compliance Certificate with respect to such financial statements certifying (A) as to the Loan Parties’ compliance with the financial covenants set forth in Section 10 of this Agreement and (B) that such financial statements were prepared in accordance with the Accounting Practices (subject to normal year-end adjustments and the absence of footnote disclosures) and present fairly, in all material respects, the consolidated financial condition and results of operations of the Loan PartiesFinancial Statements.
(b) Promptly after preparationWith respect to each fiscal quarter of the Companies (other than the last fiscal quarter of each fiscal year), and no later than thirty (30) days within 5 Business Days after the last day of each calendar month date required to be filed with the Securities and Exchange Commission as part of the Loan PartiesCompanies periodic reportings, internally-certified unaudited financial statements (including consolidated statements of income and cash flows and a balance sheet) Financial Statements showing the consolidated financial condition and results of operations of the Loan Parties as of, and for the month, year-to-date and, if applicable, quarter period ended on, that last day. The Loan Parties’ certificate included with the unaudited financial statements will, at a minimum, include a statement that such financial statements were prepared in accordance with the Accounting Practices (subject to normal year-end adjustments and the absence of footnote disclosures) and present fairly, in all material respects, the consolidated financial condition and results of operations of the Loan Parties.
(c) Promptly after preparation, and no later than thirty (30) days after the last day of each fiscal quarter of Loan Parties:
(i) a management discussion and analysis that includes a discussion and explanation of material variances among (A) the comparison of the Loan Parties’ actual operating results to budget Companies for such fiscal quarter and for the period from the beginning of the current fiscal year to date period then ended, (B) the comparison last day of the Loan Parties’ operating results for such fiscal quarter and for the year to date period then ended to the corresponding periods in the prior year and (C) a comparison of the Loan Parties’ operating results for such fiscal quarter to the immediately preceding fiscal quarter; and
(ii) , accompanied by a Compliance Certificate with respect to such financial statements certifying (A) as to the Loan Parties’ compliance with the financial covenants set forth in Section 10 of this Agreement, and (B) that such financial statements (I) were prepared on a basis consistent with the Accounting Practices (subject to normal year-end adjustments and the absence of footnote disclosures), and (II) present fairly, in all material respects, the consolidated financial condition and results of operations of the Loan PartiesFinancial Statements.
(d) Promptly after preparation, and no later than the last day of January of each year (assuming a fiscal year end of December 31), an annual operating plan (with a level of detail consistent with the Projections) for the Loan Parties on a consolidated basis, approved by the Board of Directors of the Company, for the current fiscal year (if delivered in January of such year), that (i) includes a statement of all of the material assumptions on which such plan is based, (ii) includes budgeted monthly balance sheets, income statements and statements of cash flows for such fiscal year, as well as comparisons of such items to the corresponding months in the prior fiscal year, and (iii) integrates sales, gross profits, operating expenses, operating profit and cash flow projections, all prepared on the same basis and in similar detail as that on which operating results are reported (and in the case of cash flow projections, representing management’s good faith estimates of future financial performance based on historical performance), and including plans for personnel, Capital Expenditures and facilities; provided, however, that with respect to fiscal year 2016, the operating plan shall be prepared consistent with the Loan Parties’ historical practices, and include monthly budgeted profit and loss (but not balance sheet) information only. Agent and Lenders acknowledge and agree that such projections are estimates only and that actual financial performance may vary materially from that set forth in such projections.
(e) Promptly after preparation, and no later than five (5) Business Days after the Loan Parties’ federal income tax return has been filed, copies of each federal income tax return (and Form K-1’s, if applicable) and to the extent reasonably requested by the Agent, related tax reporting information for each Loan Party for the applicable fiscal year.
(fc) Promptly after receipt, a copy of each interim or special audit report report, management letter, and management letter recommendations issued by independent accountants with respect to any Loan Party Company or its financial records.
(gd) Notice, promptly after any Loan Party receives notice ofCompany knows or has reason to know, or otherwise becomes aware of, of (i) the institution existence and status of any Litigation involving any Loan Party whichthat, if determined adversely determinedto any Company, could reasonably would be expected to result in a Material Adverse Event, (ii) any change in any material fact or circumstance represented or warranted by any Restricted Company in connection with any Loan Paper, (iii) the receipt by any Company of notice of any violation or alleged violation of any Environmental Law or ERISA (which individually or collectively with other event which could violations or allegations is reasonably be expected likely to result in constitute a Material Adverse Event), (iii) any violation by any Loan Party of ERISA or any Law with respect to an Employee Plan, where there is any reasonable likelihood of the imposition of liability on such Loan Party as a result thereof that could be reasonably expected to result in a Material Adverse Event, or (iv) any a Default or Potential Default, specifying the nature thereof and what action, if any, each Loan Party has action the Restricted Companies have taken, is taking are taking, or proposes propose to take., (v) any breach or nonperformance of, or default under, a Material Agreement of a Restricted Company that is reasonably likely to result in a Material Adverse Event, (vi) any material change in accounting policies or financial reporting practices by any Restricted Company, (vii) the occurrence of any
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