Financial Reporting. The Borrower will maintain, for itself and each Subsidiary, a system of accounting established and administered in accordance with GAAP, and furnish to the Agent and the Lenders: 6.1.1 Within ninety (90) days after the close of each of its fiscal years, financial statements prepared in accordance with GAAP on a consolidated basis for itself and its Subsidiaries, including balance sheets as of the end of such period, statements of income and statements of cash flows, setting forth in comparative form figures for the preceding fiscal year, accompanied by an audit report, consistent with the requirements of the Securities and Exchange Commission, of a nationally recognized firm of independent public accountants or other independent public accountants reasonably acceptable to the Required Lenders. 6.1.2 Within forty-five (45) days after the close of the first three quarterly periods of each of its fiscal years, financial statements prepared in accordance with GAAP (other than with regard to the absence of footnotes and subject to changes resulting from audit and normal year-end audit adjustments to same) on a consolidated basis for itself and its Subsidiaries, including, consolidated unaudited balance sheets as at the close of each such period and consolidated unaudited statements of income and a statement of cash flows for the period from the beginning of such fiscal year to the end of such quarter, in each case setting forth in comparative form figures for the corresponding period of the preceding fiscal year, and accompanied by a certificate of the chief financial officer or treasurer of the Borrower to the effect that such quarterly financial statements fairly present in all material respects the financial condition of the Borrower and its Subsidiaries and have been prepared in accordance with GAAP (other than with regard to the absence of footnotes and subject to changes resulting from audit and normal year-end audit adjustments to same). 6.1.3 Together with the financial statements required under Sections 6.1.1 and 6.1.2, (i) a compliance certificate in substantially the form of Exhibit B signed by an Authorized Officer (a) showing the calculations necessary to determine compliance with Section 6.16, (b) stating that no Default or Unmatured Default exists, or if any Default or Unmatured Default exists, stating the nature and status thereof and (c) updating Schedule 1 with respect to its Subsidiaries, Material Subsidiaries and Excluded Subsidiaries, if appropriate and (ii) such financial information as reasonable requested by the Agent, including, but not limited to consolidating financial statements, as is necessary to account for Excluded Indebtedness and Excluded EBITDA for purposes of determining the Consolidated Leverage Ratio. 6.1.4 If requested, within 270 days after the close of each fiscal year of the Borrower, a copy of the actuarial report showing the Unfunded Liabilities of each Single Employer Plan as of the valuation date occurring in such fiscal year, certified by an actuary enrolled under ERISA. 6.1.5 As soon as possible and in any event within ten (10) days after an Authorized Officer knows that any Reportable Event has occurred with respect to any Plan that could reasonably be expected to have a Material Adverse Effect, a statement, signed by an Authorized Officer, describing said Reportable Event and the action which the Borrower proposes to take with respect thereto. 6.1.6 From time to time such additional information regarding the financial position or business of the Borrower and its Subsidiaries as the Agent, at the request of any Lender, may reasonably request, including the support for any pro forma calculations hereunder. 6.1.7 Promptly, upon the filing thereof, copies of all registration statements (other than any registration statement on Form S-8 and any registration statement in connection with a dividend reinvestment plan, shareholder purchase plan or employee benefit plan) and reports on form 10-K, 10-Q or 8-K (or their equivalents) which the Borrower or any of its Subsidiaries files with the Securities and Exchange Commission. 6.1.8 Promptly, information regarding any change in the Borrower’s Debt Rating. Information required to be delivered pursuant to these Sections 6.1.1, 6.1.2, and 6.1.7 shall be deemed to have been delivered on the date on which the Borrower provides notice to the Lenders that such information has been posted on the Securities and Exchange Commission website on the Internet at ▇▇▇.▇▇▇/▇▇▇▇▇/▇▇▇▇▇▇▇▇.▇▇▇, on the Borrower’s IntraLinks site at ▇▇▇▇▇▇▇▇▇▇.▇▇▇ or at another website identified in such notice and accessible by the Lenders without charge; provided that (i) such notice may be included in a certificate delivered pursuant to Section 6.1.3 and such notice or certificate shall also be deemed to have been delivered upon being posted to the Borrower’s IntraLinks site or such other website and (ii) the Borrower shall deliver paper copies of the information referred to in Sections 6.1.1, 6.1.2 and 6.1.7 to any Lender which requests such delivery.
Appears in 3 contracts
Sources: Credit Agreement (Oge Energy Corp.), Credit Agreement (OGE Enogex Partners L.P.), Credit Agreement (Oge Energy Corp)
Financial Reporting. The Borrower will maintain, for itself and each Subsidiary, a system of accounting established and administered in accordance with GAAPgenerally accepted accounting principles, and furnish to the Agent and the Lenders:
6.1.1 (i) Within ninety (90) 90 days after the close of each of its fiscal years, financial statements an unqualified (except for qualifications relating to changes in accounting principles or practices reflecting changes in generally accepted accounting principles and required or approved by the Borrower’s independent certified public accountants) audit report certified by independent certified public accountants reasonably acceptable to the Lenders, prepared in accordance with GAAP on a consolidated basis for itself and its Subsidiaries, including balance sheets as of the end of such period, statements related profit and loss and reconciliation of income surplus statements, and statements a statement of cash flows, setting forth in comparative form figures for the preceding fiscal year, accompanied by an audit report, consistent with the requirements of the Securities and Exchange Commission, of a nationally recognized firm of independent public accountants or other independent public accountants reasonably acceptable to the Required Lenders.
6.1.2 (ii) Within forty-five (45) 45 days after the close of the first three quarterly periods of each of its fiscal years, financial statements prepared in accordance with GAAP (other than with regard to the absence of footnotes and subject to changes resulting from audit and normal year-end audit adjustments to same) on a consolidated basis for itself and its Subsidiaries, including, consolidated unaudited balance sheets as at the close of each such period and consolidated unaudited profit and loss and reconciliation of surplus statements of income and a statement of cash flows for the period from the beginning of such fiscal year to the end of such quarter, in each case setting forth in comparative form figures for the corresponding period of the preceding fiscal yearall certified by its chief executive officer, and accompanied by a certificate of the chief financial officer or treasurer treasurer.
(iii) Notwithstanding the preceding provisions of this Section 6.1, if and so long as the Borrower shall file regular and periodic reports with the SEC pursuant to Sections 13 and 15 of the Borrower Securities Exchange Act of 1934, delivery to the effect that such quarterly financial statements fairly present in all material respects the financial condition Administrative Agent of copies of the Borrower Borrower’s reports on Forms 10K and its Subsidiaries 10Q promptly following filing thereof with the SEC, but in any event not later than within the periods set forth in subsections 6.1(i) and have been prepared in accordance (ii), shall constitute full compliance with GAAP (other than with regard to the absence of footnotes and subject to changes resulting from audit and normal year-end audit adjustments to same)those sections.
6.1.3 (iv) Together with the financial statements required under Sections 6.1.1 6.1(i) and 6.1.2(ii), (i) a compliance certificate in substantially the form of Exhibit B signed by an Authorized Officer (a) its chief executive officer, chief financial officer or treasurer showing the calculations necessary to determine compliance with Section 6.16, (b) this Agreement and stating that no Default or Unmatured Default exists, or if any Default or Unmatured Default exists, stating the nature and status thereof and (c) updating Schedule 1 with respect to its Subsidiaries, Material Subsidiaries and Excluded Subsidiaries, if appropriate and (ii) such financial information as reasonable requested by the Agent, including, but not limited to consolidating financial statements, as is necessary to account for Excluded Indebtedness and Excluded EBITDA for purposes of determining the Consolidated Leverage Ratiothereof.
6.1.4 If requested, within 270 days after the close of each fiscal year of the Borrower, a copy of the actuarial report showing the Unfunded Liabilities of each Single Employer Plan as of the valuation date occurring in such fiscal year, certified by an actuary enrolled under ERISA.
6.1.5 (v) As soon as possible and in any event within ten (10) 10 days after an Authorized Officer the Borrower knows that any Reportable Event has occurred with respect to any Plan that could reasonably be expected to have a Material Adverse EffectPension Plan, a statement, signed by an Authorized Officerthe chief financial officer or treasurer of the Borrower, describing said such Reportable Event and the action which the Borrower proposes to take with respect thereto.
6.1.6 From time (vi) As soon as possible and in any event within 10 days after receipt by the Borrower, a copy of (a) any notice or claim to time such additional information regarding the financial position effect that the Borrower or business any of its Principal Subsidiaries is or may be liable to any Person as a result of the Borrower and release by the Borrower, any of its Subsidiaries as the AgentPrincipal Subsidiaries, at the request or any other Person of any Lendertoxic or hazardous waste or substance into the environment, and (b) any notice alleging any violation of any federal, state or local environmental, health or safety law or regulation by the Borrower or any of its Principal Subsidiaries, which, in either case, could reasonably be expected to have a Material Adverse Effect. The Borrower may reasonably requestsatisfy any such notice requirement by delivering to the Administrative Agent a copy of the Borrower’s report on Form 8-K describing such event, including promptly following filing thereof with the support for any pro forma calculations hereunderSEC.
6.1.7 Promptly, (vii) Promptly upon the filing thereof, copies of all registration statements (and annual, quarterly, monthly or other than any registration statement on Form S-8 and any registration statement in connection with a dividend reinvestment plan, shareholder purchase plan or employee benefit plan) and regular reports on form 10-K, 10-Q or 8-K (or their equivalents) which the Borrower or any of its Principal Subsidiaries files with the Securities and Exchange CommissionSEC.
6.1.8 Promptly, (viii) Such other information regarding any change in (including non-financial information) as the Borrower’s Debt Rating. Information required to be delivered pursuant to these Sections 6.1.1, 6.1.2, and 6.1.7 shall be deemed to have been delivered on the date on which the Borrower provides notice to the Lenders that such information has been posted on the Securities and Exchange Commission website on the Internet at ▇▇▇.▇▇▇/▇▇▇▇▇/▇▇▇▇▇▇▇▇.▇▇▇, on the Borrower’s IntraLinks site at ▇▇▇▇▇▇▇▇▇▇.▇▇▇ Administrative Agent or at another website identified in such notice and accessible by the Lenders without charge; provided that (i) such notice may be included in a certificate delivered pursuant to Section 6.1.3 and such notice or certificate shall also be deemed to have been delivered upon being posted to the Borrower’s IntraLinks site or such other website and (ii) the Borrower shall deliver paper copies of the information referred to in Sections 6.1.1, 6.1.2 and 6.1.7 to any Lender which requests such deliverymay from time to time reasonably request.
Appears in 3 contracts
Sources: Credit Agreement (Madison Gas & Electric Co), Credit Agreement (Madison Gas & Electric Co), Credit Agreement (Madison Gas & Electric Co)
Financial Reporting. The Borrower will maintain, for itself and each Subsidiary, a system of accounting established and administered in accordance with GAAPthe Agreement Accounting Principles, and furnish to the Administrative Agent and in sufficient copies for each of the Lenders:
6.1.1 (i) Within ninety one hundred twenty (90120) days after the close of each of its fiscal yearsyears (or, financial statements if earlier, within thirty (30) days after the Borrower is required to file its Annual Report on Form 10-K with the Securities and Exchange Commission for such fiscal year), an unqualified (except for qualifications relating to changes in Agreement Accounting Principles or practices reflecting changes in Agreement Accounting Principles and required or approved by the Borrower’s independent certified public accountants) audit report certified by independent certified public accountants reasonably acceptable to the Lenders, prepared in accordance with GAAP the Agreement Accounting Principles on a consolidated and consolidating basis (consolidating statements need not be certified by such accountants) for itself and its Subsidiaries, including balance sheets as of the end of such period, statements related profit and loss and reconciliation of income surplus statements, and statements a statement of cash flows, setting forth in comparative form figures for . Delivery by the preceding fiscal year, accompanied by an audit report, consistent Borrower to the Administrative Agent of copies of the Parent’s Annual Report on Form 10-K filed with the requirements of the Securities and Exchange Commission, of a nationally recognized firm of independent public accountants or other independent public accountants reasonably acceptable Commission for any year shall satisfy the Borrower’s obligation under this clause (i) with respect to the Required Lenderssuch year.
6.1.2 (ii) Within forty-five sixty (4560) days after the close of the first three (3) quarterly period of each of its fiscal years (or, if earlier, within fifteen (15) days after the Borrower is required to file its Quarterly Report on Form 10-Q for with the Securities and Exchange Commission for such period), consolidated and consolidating unaudited balance sheets as at the close of each the first three (3) quarterly periods of each of its fiscal years, financial statements prepared in accordance with GAAP (other than with regard to the absence of footnotes and subject to changes resulting from audit and normal year-end audit adjustments to same) on a consolidated basis for itself and its Subsidiaries, including, consolidated unaudited balance sheets as at the close of each such period Subsidiaries and consolidated unaudited and consolidating profit and loss and reconciliation of surplus statements of income and a statement of cash flows for the period from the beginning of such fiscal year to the end of such quarter, in each case setting forth in comparative form figures for the corresponding period of the preceding fiscal year, and accompanied all certified by a certificate of the chief financial officer or treasurer of an Authorized Officer. Delivery by the Borrower to the effect that such quarterly financial statements fairly present in all material respects the financial condition Administrative Agent of copies of the Borrower Borrower’s Quarterly Report on Form 10-Q filed with the Securities and its Subsidiaries and have been prepared in accordance Exchange Commission for any quarter shall satisfy the Borrower’s obligation under this clause (ii) with GAAP (other than with regard respect to the absence of footnotes and subject to changes resulting from audit and normal year-end audit adjustments to same)such quarter.
6.1.3 (iii) Together with the financial statements required under Sections 6.1.1 6.1(i) and 6.1.2(ii), (iA) a compliance certificate in substantially the form of Exhibit B signed by an Authorized Officer (a) showing the calculations necessary to determine compliance with Section 6.16, (b) this Agreement and stating that no Default or Unmatured Default exists, or if any Default or Unmatured Default exists, stating the nature and status thereof and (cB) updating Schedule 1 with respect to its Subsidiaries, Material Subsidiaries and Excluded Subsidiaries, if appropriate and (iia calculation of the Indebtedness secured by Liens permitted under Section 6.11(xiii) in such financial information as reasonable requested by the Agent, including, but not limited to consolidating financial statements, form as is necessary reasonably satisfactory to account for Excluded Indebtedness and Excluded EBITDA for purposes of determining the Consolidated Leverage RatioAdministrative Agent.
6.1.4 If requested, within 270 days after the close of each fiscal year of the Borrower, a copy of the actuarial report showing the Unfunded Liabilities of each Single Employer Plan as of the valuation date occurring in such fiscal year, certified by an actuary enrolled under ERISA.
6.1.5 (iv) As soon as possible practicable and in any event within ten (10) days after an Authorized Officer the Borrower knows that any Reportable Event has occurred with respect to any Plan that could reasonably be expected to have a Material Adverse EffectPlan, a statement, signed by an Authorized Officer, describing said Reportable Event and the action which the Borrower proposes to take with respect thereto.
6.1.6 From time (v) As soon as practicable and in any event within ten (10) days after receipt by the Borrower, a copy of (a) any notice or claim to time such additional information regarding the financial position effect that the Borrower or business any of its Subsidiaries is or may be liable to any Person as a result of the Borrower and release by the Borrower, any of its Subsidiaries as the AgentSubsidiaries, at the request or any other Person of any Lendertoxic or hazardous waste or substance into the environment, may and (b) any notice alleging any violation of any federal, state or local environmental, health or safety law or regulation by the Borrower or any of its Subsidiaries, which, in either case, could reasonably request, including the support for any pro forma calculations hereunderbe expected to have a Material Adverse Effect.
6.1.7 Promptly(vi) Promptly upon the furnishing thereof to the shareholders of the Borrower, copies of all financial statements and reports so furnished.
(vii) Promptly upon the filing thereof, copies of all registration statements (and annual, quarterly, monthly or other than any registration statement on Form S-8 and any registration statement in connection with a dividend reinvestment plan, shareholder purchase plan or employee benefit plan) and regular reports on form 10-K, 10-Q or 8-K (or their equivalents) which the Borrower or any of its Subsidiaries files with the Securities and Exchange Commission.
6.1.8 Promptly, (viii) Such other information regarding any change in (including nonfinancial information) as the Borrower’s Debt Rating. Information required to be delivered pursuant to these Sections 6.1.1, 6.1.2, and 6.1.7 shall be deemed to have been delivered on the date on which the Borrower provides notice to the Lenders that such information has been posted on the Securities and Exchange Commission website on the Internet at ▇▇▇.▇▇▇/▇▇▇▇▇/▇▇▇▇▇▇▇▇.▇▇▇, on the Borrower’s IntraLinks site at ▇▇▇▇▇▇▇▇▇▇.▇▇▇ Administrative Agent or at another website identified in such notice and accessible by the Lenders without charge; provided that (i) such notice may be included in a certificate delivered pursuant to Section 6.1.3 and such notice or certificate shall also be deemed to have been delivered upon being posted to the Borrower’s IntraLinks site or such other website and (ii) the Borrower shall deliver paper copies of the information referred to in Sections 6.1.1, 6.1.2 and 6.1.7 to any Lender which requests such deliverymay from time to time reasonably request.
Appears in 3 contracts
Sources: Credit Agreement, Credit Agreement, Credit Agreement (Idacorp Inc)
Financial Reporting. The Borrower Company will maintain, for itself and each Consolidated Subsidiary, a system of accounting established and administered in accordance with GAAPgenerally accepted accounting principles, and furnish to the Agent and Administrative Agent, for distribution to the Lenders:
6.1.1 (i) Within ninety (90) 90 days after the close of each of its fiscal years, financial statements an audit report (with all amounts stated in Dollars) certified by Deloitte & Touche LLP or any other independent certified public accountants acceptable to the Required Lenders, prepared in accordance with U.S. GAAP on a consolidated basis for itself and its the Consolidated Subsidiaries, including consolidated balance sheets as of and the end of such period, related consolidated statements of income income, cash flows and statements of cash flowschanges in common shareholders' equity, setting forth in each case in comparative form the figures for such fiscal year and the preceding previous fiscal year, accompanied year (it being understood that the requirement to deliver such information may be satisfied by an audit report, consistent with the requirements delivery of the Securities and Exchange Commission, of a nationally recognized firm of independent public accountants or other independent public accountants reasonably acceptable Company's annual report on Form 10-K for such fiscal year so long as such annual report continues to the Required Lendersinclude such information).
6.1.2 (ii) Within forty-five (45) 45 days after the close of the first three quarterly periods of each of its fiscal years, financial statements prepared in accordance with GAAP (other than with regard to the absence of footnotes and subject to changes resulting from audit and normal year-end audit adjustments to same) on a consolidated basis for itself and its the Consolidated Subsidiaries, including, unaudited consolidated unaudited balance sheets as at the close of each such period and the related consolidated unaudited statements of income statement and a statement of cash flows for the period from the beginning of such fiscal year to the end of such quarter, in each case setting forth in the case of such statements of income and cash flows in comparative form the figures for the corresponding period quarter and the corresponding portion of the preceding Company's previous fiscal year, and accompanied year (it being understood that the requirement to deliver such information may be satisfied by a certificate the delivery of the chief financial officer or treasurer of the Borrower to the effect that Company's quarterly report on Form 10-Q for such fiscal quarter so long as such quarterly financial statements fairly present in report continues to include such information), all material respects the financial condition of the Borrower and its Subsidiaries and have been prepared in accordance with GAAP certified (other than with regard to the absence of footnotes and subject to changes resulting from audit and normal year-end audit adjustments adjustments) as to same)fairness of presentation, preparation in accordance with U.S. GAAP and consistency by a Financial Officer of the Company.
6.1.3 (iii) Together with the financial statements required under Sections 6.1.1 and 6.1.2hereunder, (i) a compliance certificate in substantially the form of Exhibit B K hereto signed by an Authorized its Financial Officer (a) showing the calculations necessary to determine compliance with Section 6.16, (b) this Agreement and stating that no Default or Unmatured Default exists, or if any Default or Unmatured Default exists, stating the nature and status thereof.
(iv) Promptly upon the furnishing thereof and (c) updating Schedule 1 with respect to its Subsidiariesthe shareholders of the Company, Material Subsidiaries and Excluded Subsidiaries, if appropriate and (ii) such financial information as reasonable requested by the Agent, including, but not limited to consolidating copies of all financial statements, as is necessary to account for Excluded Indebtedness reports and Excluded EBITDA for purposes of determining the Consolidated Leverage Ratioproxy statements so furnished.
6.1.4 If requested, within 270 days after the close of each fiscal year of the Borrower, a copy of the actuarial report showing the Unfunded Liabilities of each Single Employer Plan as of the valuation date occurring in such fiscal year, certified by an actuary enrolled under ERISA.
6.1.5 As soon as possible and in any event within ten (10v) days after an Authorized Officer knows that any Reportable Event has occurred with respect to any Plan that could reasonably be expected to have a Material Adverse Effect, a statement, signed by an Authorized Officer, describing said Reportable Event and the action which the Borrower proposes to take with respect thereto.
6.1.6 From time to time such additional information regarding the financial position or business of the Borrower and its Subsidiaries as the Agent, at the request of any Lender, may reasonably request, including the support for any pro forma calculations hereunder.
6.1.7 Promptly, Promptly upon the filing thereof, copies of all registration statements (other than the exhibits thereto and any registration statement statements on Form S-8 and any registration statement in connection with a dividend reinvestment plan, shareholder purchase plan or employee benefit planits equivalent) and annual, quarterly, monthly or other regular reports on form 10-K, 10-Q or 8-K (or their equivalents) which the Borrower Company or any of its Subsidiaries files with the Securities and Exchange Commission.
6.1.8 Promptly(vi) As soon as possible and in any event within 10 days after the Company knows that any Reportable Event has occurred with respect to any Plan, information regarding any change in a statement, signed by a Financial Officer of the Borrower’s Debt Rating. Information required to be delivered pursuant to these Sections 6.1.1Company, 6.1.2, describing said Reportable Event and 6.1.7 shall be deemed to have been delivered on the date on action which the Borrower provides notice Company proposes to take with respect thereto.
(vii) Such other information (including non-financial information) as the Lenders that such information has been posted on the Securities and Exchange Commission website on the Internet at ▇▇▇.▇▇▇/▇▇▇▇▇/▇▇▇▇▇▇▇▇.▇▇▇, on the Borrower’s IntraLinks site at ▇▇▇▇▇▇▇▇▇▇.▇▇▇ Administrative Agent or at another website identified in such notice and accessible by the Lenders without charge; provided that (i) such notice may be included in a certificate delivered pursuant to Section 6.1.3 and such notice or certificate shall also be deemed to have been delivered upon being posted to the Borrower’s IntraLinks site or such other website and (ii) the Borrower shall deliver paper copies of the information referred to in Sections 6.1.1, 6.1.2 and 6.1.7 to any Lender which requests such deliverymay from time to time reasonably request.
Appears in 2 contracts
Sources: Multicurrency Credit Agreement (Crane Co /De/), Multicurrency Credit Agreement (Crane Co /De/)
Financial Reporting. The Borrower Holdco will maintain, for itself and each Subsidiary, a system of accounting established and administered in accordance with GAAPgenerally accepted accounting principles, and will furnish to the Administrative Agent and for further distribution to the LendersLenders the following:
6.1.1 Within ninety (90a) within 90 days after the close of each fiscal year of its fiscal yearsHoldco, financial statements an audit report certified by independent certified public accountants of recognized national standing (which in each case shall be without a “going concern” or like qualification or exception and without any qualification or exception as to the scope of such audit), prepared in accordance with GAAP on a consolidated and consolidating basis (consolidating statements need not be certified by such accountants) for itself Holdco and its Subsidiaries, including balance sheets as of the end of such period, statements related profit and loss and reconciliation of income surplus statements, and statements a statement of cash flows, setting forth in comparative form figures for the preceding fiscal yearflows on a consolidated and consolidating basis, accompanied by an audit report, consistent with the requirements of the Securities and Exchange Commission, of a nationally recognized firm of independent public any final management letter prepared by said accountants or other independent public accountants reasonably acceptable to the Required Lenders.Holdco;
6.1.2 Within forty-five (45b) within 45 days after the close of the first three quarterly periods of each of its Holdco’s fiscal years, financial statements prepared in accordance with GAAP (other than with regard to the absence of footnotes and subject to changes resulting from audit and normal year-end audit adjustments to same) on a consolidated basis for itself Holdco and its Subsidiaries, including, consolidated and consolidating unaudited balance sheets as at the close of each such period period, consolidated and consolidated unaudited consolidating profit and loss and reconciliation of surplus statements of income and a consolidated and consolidating statement of cash flows for the period from the beginning of such fiscal year to the end of such quarter, certified by a Financial Officer of Holdco as in each case setting forth in comparative form figures for the corresponding period of the preceding fiscal yearfairly presenting, and accompanied by a certificate of the chief financial officer or treasurer of the Borrower to the effect that such quarterly financial statements fairly present in all material respects respects, the consolidated financial condition of the Borrower Holdco and its consolidated Subsidiaries and have been prepared in accordance with GAAP (other than with regard to the absence of footnotes and subject to changes resulting from audit and normal year-end audit adjustments and the absence of footnotes) and having been prepared in reasonable detail;
(c) so long as corresponding financial statements are required to same).be delivered under the Note Purchase Agreement or the Indenture, within 30 days after the end of each of the first two months of each fiscal quarter of Holdco, a company-prepared consolidated balance sheet of Holdco and its consolidated Subsidiaries as at the end of such period and related company-prepared statements of income in a form customarily prepared by management for Holdco and its consolidated Subsidiaries for such monthly period, certified by a Financial Officer of Holdco as fairly presenting, in all material respects, the consolidated financial condition of Holdco and its consolidated Subsidiaries (subject to normal year-end adjustments and the absence of footnotes) and having been prepared in reasonable detail;
6.1.3 Together (d) together with the financial statements required under Sections 6.1.1 6.01(a) and 6.1.2(b), (i) a compliance certificate in substantially the form of Exhibit B E signed by an Authorized a Financial Officer (a) showing the calculations necessary to determine compliance with Section 6.16, this Agreement (bincluding Sections 6.22(a) and 6.22(b)) and stating that no Default or Unmatured Default exists, or if any Default or Unmatured Default exists, stating the nature and status thereof thereof;
(e) within 60 days after the commencement of each fiscal year of Holdco and its Subsidiaries (ccommencing with the fiscal year beginning January 1, 2012), a financial forecast of Holdco and its Subsidiaries for such fiscal year;
(f) updating Schedule 1 with respect to its Subsidiaries, Material Subsidiaries and Excluded Subsidiaries, if appropriate and (ii) such financial information as reasonable requested by the Agent, including, but not limited to consolidating financial statements, as is necessary to account for Excluded Indebtedness and Excluded EBITDA for purposes of determining the Consolidated Leverage Ratio.
6.1.4 If requested, within 270 days after the close of each fiscal year of the Borroweryear, a copy statement of the actuarial report showing the Unfunded Liabilities of each Single Employer Plan as of the valuation date occurring in such fiscal yearPlan, certified as correct by an actuary enrolled under ERISA.;
6.1.5 As soon as possible and in any event (g) within ten (10) days 30 Business Days after an Authorized Officer the Borrower knows that any Reportable Event has occurred with respect to any Plan that could reasonably be expected to have a Material Adverse EffectSingle Employer Plan, a statement, signed by an Authorized Officer, a Financial Officer of the Borrower describing said Reportable Event and the action which the Borrower or any Affiliate of the Borrower proposes to take with respect thereto.;
6.1.6 From time to time such additional information regarding the financial position or business of the Borrower and its Subsidiaries as the Agent, at the request of any Lender, may reasonably request, including the support for any pro forma calculations hereunder.
6.1.7 Promptly, (h) promptly upon the filing thereof, copies electronic notice to the Administrative Agent of the filing of all proxy statements, registration statements (other than any registration statement on Form S-8 and any registration statement in connection with a dividend reinvestment plan, shareholder purchase plan or employee benefit plan) periodic and current reports on form forms 10-K, 10-Q or 10Q and 8-K (or their equivalents) which the Borrower Holdco or any of its Subsidiaries files with the Securities SEC;
(i) as soon as possible and Exchange Commission.in any event on the later of (i) 30 days following the occurrence of the following events or (ii) the first date required for delivery of the financial statements pursuant to Section 6.01(a) or Section 6.01(b) after the occurrence of the following events, written notice of the creation, establishment or acquisition of any Subsidiary or the issuance by or to the Borrower or any of its Subsidiaries of any Capital Stock; and
6.1.8 Promptly, (j) such other information regarding (including non financial information) as the Administrative Agent or any change in the Borrower’s Debt RatingLender may from time to time reasonably request. Information required to be delivered pursuant to these Sections 6.1.1, 6.1.2, and 6.1.7 this Section 6.01 shall be deemed to have been delivered if such information, or one or more annual or quarterly reports containing such information, shall have been posted by the Administrative Agent on an IntraLinks or similar site to which the Lenders have been granted access or such reports shall be available on the date on which website of the Borrower provides notice to the Lenders that such information has been posted on the Securities and Exchange Commission website on the Internet SEC at ▇▇▇▇://▇▇▇.▇▇▇/.▇▇▇ or on the website of Holdco at ▇▇▇▇▇/▇▇▇▇▇://▇▇▇.▇▇▇, on the Borrower’s IntraLinks site at ▇▇▇▇▇▇▇▇▇▇.▇▇▇ or at another website identified in and the Borrower has given notice that such notice and accessible by the Lenders without charge; provided that (i) such notice may reports are so available. Information required to be included in a certificate delivered pursuant to this Section 6.1.3 may also be delivered by electronic communications pursuant to procedures approved by the Administrative Agent. If any information which is required to be furnished to the Lenders under this Section 6.01 is required by law or regulation to be filed by Holdco or the Borrower with a government body on an earlier date, then the information required hereunder shall be furnished to the Lenders at such earlier date (which delivery may be by electronic communication including fax or email and such notice or certificate shall also be deemed to have been delivered upon being posted to the Borrower’s IntraLinks site or such other website and (ii) the Borrower shall deliver paper copies of the information referred to in Sections 6.1.1, 6.1.2 and 6.1.7 to any Lender which requests such deliverybe an original authentic counterpart thereof for all purposes).
Appears in 2 contracts
Sources: Credit Agreement (Moneygram International Inc), Credit Agreement (Moneygram International Inc)
Financial Reporting. The Borrower Borrowers covenant that they will maintainkeep or cause to be kept proper books of records and accounts in which full, for itself true, and each Subsidiary, a system correct entries will be made of accounting established all dealings or transactions of or in relation to the business and administered affairs of the Borrowers in accordance with GAAP, and furnish consistently applied, except as may be disclosed in the notes to the Agent audited financial statements referred to in subparagraph (c) below, and will furnish or cause to be furnished to the Issuer and the LendersTrustee:
6.1.1 Within ninety (90a) Internally prepared consolidated quarterly financial statements of BAG Holdings and the Borrowers of at least statements of financial position (balance sheets and income statements) and cash flow statements, as soon as practicable after they are available but in no event more than 45 days after the completion of such quarterly fiscal period, in the form and containing the information required by the “Quarterly Reports” to be delivered by the Borrower pursuant to Section 3(a)(2) of the Continuing Disclosure Agreement, which quarterly financial statements will be prepared and delivered commencing with the quarter ending June 30, 2022.
(b) As soon as practicable after it is available, but in no event more than 150 days after the end of the Fiscal Year ending December 31, 2022, and 120 days after the end of every Fiscal Year thereafter, a financial report for the preceding Fiscal Year certified by a firm of Independent certified public accountants covering the operations of the Borrowers for such Fiscal Year on a consolidated basis with BAG Holdings, in the form and containing the information required by the “Annual Reports” to be delivered by the Borrower pursuant to Section 3(a)(1) of the Continuing Disclosure Agreement, together with a separate written statement of the Accountants that such Accountants have obtained no knowledge of any default by the Borrower in the fulfillment of any of the terms, covenants, provisions, or conditions of the Loan Agreement insofar as they relate to accounting matters, or if such Accountants have obtained knowledge of any such default or defaults, they are obligated to disclose in such statement the default or defaults and the nature thereof (but such Accountants are not to be liable directly or indirectly to anyone for failure to obtain knowledge of any default).
(c) At or before the time of delivery of the financial reports referred to in subsection (a) or (b) above, a Certificate of the Borrower Representative, which may be substantially in the form attached as (i) Exhibit D to the Continuing Disclosure Agreement (in connection with the financial reports referred to in such subsection (a), and (ii) Exhibit B to the Continuing Disclosure Agreement (in connection with the financial reports referred to in such subsection (b), stating that the Borrower Representative has made a review of the activities of the Borrower during the preceding Fiscal Year or preceding period, as the case may be, for the purpose of determining whether or not the Borrowers have complied with all of the terms, provisions, and conditions of this Agreement and the other Financing Documents and that the Borrowers have kept, observed, performed, and fulfilled each and every covenant, provision, and condition of this Agreement on their part to be performed and is not in default in the performance or observance of any of the terms, covenants, provisions, or conditions of the Loan Agreement, or if the Borrowers are in default such Certificate will specify all such defaults and the nature thereof.
(d) Such additional information as the Trustee may reasonably request concerning the Borrowers in order to enable the Trustee to determine whether the covenants, terms, and provisions of the Loan Agreement have been complied with by the Borrowers and for that purpose all pertinent books, documents, and vouchers relating to the business, affairs, and property (other than donor and personnel records) of the Borrowers will, to the extent permitted by law, at all times during regular business hours be open to the inspection of any accountant or other agent (who may make copies of all or any part thereof) as is from time to time designated and compensated by the Trustee. Without limiting the foregoing, the Borrowers will permit, upon reasonable notice, the Trustee (or such persons as the Trustee may designate) to visit and inspect the Collateral Property and to discuss the affairs, finances, and accounts of the Borrowers with its officers and Independent Accountants, all at such reasonable times and locations and as often as the Trustee may reasonably desire of the Borrowers agree that they will have their books and records audited annually by an Independent Accountant as soon as practicable after the close of each of its fiscal yearsFiscal Year, financial statements prepared in accordance with GAAP on a consolidated basis for itself and its Subsidiaries, including balance sheets as of shall furnish within 180 days after the end of such period, statements of income and statements of cash flows, setting forth in comparative form figures for the preceding fiscal year, accompanied by an audit report, consistent with the requirements of the Securities and Exchange Commission, of a nationally recognized firm of independent public accountants or other independent public accountants reasonably acceptable each Fiscal Year to the Required Lenders.
6.1.2 Within forty-five (45) days after the close of the first three quarterly periods of each of its fiscal years, financial statements prepared in accordance with GAAP (other than with regard to the absence of footnotes and subject to changes resulting from audit and normal year-end audit adjustments to same) on a consolidated basis for itself and its Subsidiaries, including, consolidated unaudited balance sheets as at the close of each such period and consolidated unaudited statements of income and a statement of cash flows for the period from the beginning of such fiscal year to the end of such quarter, in each case setting forth in comparative form figures for the corresponding period of the preceding fiscal year, and accompanied by a certificate of the chief financial officer or treasurer of the Borrower to the effect that such quarterly financial statements fairly present in all material respects the financial condition of the Borrower and its Subsidiaries and have been prepared in accordance with GAAP (other than with regard to the absence of footnotes and subject to changes resulting from audit and normal year-end audit adjustments to same).
6.1.3 Together with the financial statements required under Sections 6.1.1 and 6.1.2, (i) a compliance certificate in substantially the form of Exhibit B signed by an Authorized Officer (a) showing the calculations necessary to determine compliance with Section 6.16, (b) stating that no Default or Unmatured Default exists, or if any Default or Unmatured Default exists, stating the nature and status thereof and (c) updating Schedule 1 with respect to its Subsidiaries, Material Subsidiaries and Excluded Subsidiaries, if appropriate and (ii) such financial information as reasonable requested by the Agent, including, but not limited to consolidating financial statements, as is necessary to account for Excluded Indebtedness and Excluded EBITDA for purposes of determining the Consolidated Leverage Ratio.
6.1.4 If requested, within 270 days after the close of each fiscal year of the Borrower, Trustee a copy of the actuarial consolidated audit report showing the Unfunded Liabilities of each Single Employer Plan as of the valuation date occurring in such fiscal year, certified by an actuary enrolled under ERISABorrowers.
6.1.5 As soon as possible and in any event within ten (10) days after an Authorized Officer knows that any Reportable Event has occurred with respect to any Plan that could reasonably be expected to have a Material Adverse Effect, a statement, signed by an Authorized Officer, describing said Reportable Event and the action which the Borrower proposes to take with respect thereto.
6.1.6 From time to time such additional information regarding the financial position or business of the Borrower and its Subsidiaries as the Agent, at the request of any Lender, may reasonably request, including the support for any pro forma calculations hereunder.
6.1.7 Promptly, upon the filing thereof, copies of all registration statements (other than any registration statement on Form S-8 and any registration statement in connection with a dividend reinvestment plan, shareholder purchase plan or employee benefit plan) and reports on form 10-K, 10-Q or 8-K (or their equivalents) which the Borrower or any of its Subsidiaries files with the Securities and Exchange Commission.
6.1.8 Promptly, information regarding any change in the Borrower’s Debt Rating. Information required to be delivered pursuant to these Sections 6.1.1, 6.1.2, and 6.1.7 shall be deemed to have been delivered on the date on which the Borrower provides notice to the Lenders that such information has been posted on the Securities and Exchange Commission website on the Internet at ▇▇▇.▇▇▇/▇▇▇▇▇/▇▇▇▇▇▇▇▇.▇▇▇, on the Borrower’s IntraLinks site at ▇▇▇▇▇▇▇▇▇▇.▇▇▇ or at another website identified in such notice and accessible by the Lenders without charge; provided that (i) such notice may be included in a certificate delivered pursuant to Section 6.1.3 and such notice or certificate shall also be deemed to have been delivered upon being posted to the Borrower’s IntraLinks site or such other website and (ii) the Borrower shall deliver paper copies of the information referred to in Sections 6.1.1, 6.1.2 and 6.1.7 to any Lender which requests such delivery.
Appears in 2 contracts
Sources: Loan Agreement (Wildfire New PubCo, Inc.), Loan Agreement (Wildfire New PubCo, Inc.)
Financial Reporting. The Borrower will maintain, for itself and each Subsidiary, a system of accounting established and administered in accordance with GAAPthe Agreement Accounting Principles, and furnish to the Administrative Agent and in sufficient copies for each of the Lenders:
6.1.1 (i) Within ninety one hundred twenty (90120) days after the close of each of its fiscal yearsyears (or, financial statements if earlier, within thirty (30) days after the Borrower is required to file its Annual Report on Form 10-K with the Securities and Exchange Commission for such fiscal year), an unqualified (except for qualifications relating to changes in Agreement Accounting Principles or practices reflecting changes in Agreement Accounting Principles and required or approved by the Borrower’s independent certified public accountants) audit report certified by independent certified public accountants reasonably acceptable to the Lenders, prepared in accordance with GAAP the Agreement Accounting Principles on a consolidated and consolidating basis (consolidating statements need not be certified by such accountants) for itself and its Subsidiaries, including balance sheets as of the end of such period, statements related profit and loss and reconciliation of income surplus statements, and statements a statement of cash flows, setting forth in comparative form figures for . Delivery by the preceding fiscal year, accompanied by an audit report, consistent Borrower to the Administrative Agent of copies of the Parent’s Annual Report on Form 10-K filed with the requirements of the Securities and Exchange Commission, of a nationally recognized firm of independent public accountants or other independent public accountants reasonably acceptable Commission for any year shall satisfy the Borrower’s obligation under this clause (i) with respect to the Required Lenderssuch year.
6.1.2 (ii) Within forty-five sixty (4560) days after the close of each of the first three (3) quarterly periods of each of its fiscal years (or, if earlier, within fifteen (15) days after the Borrower is required to file its Quarterly Report on Form 10-Q with the Securities and Exchange Commission for such period), consolidated and consolidating unaudited balance sheets as at the close of each of the first three (3) quarterly periods of each of its fiscal years, financial statements prepared in accordance with GAAP (other than with regard to the absence of footnotes and subject to changes resulting from audit and normal year-end audit adjustments to same) on a consolidated basis for itself and its Subsidiaries, including, consolidated unaudited balance sheets as at the close of each such period Subsidiaries and consolidated unaudited and consolidating profit and loss and reconciliation of surplus statements of income and a statement of cash flows for the period from the beginning of such fiscal year to the end of such quarter, in each case setting forth in comparative form figures for the corresponding period of the preceding fiscal year, and accompanied all certified by a certificate of the chief financial officer or treasurer of an Authorized Officer. Delivery by the Borrower to the effect that such quarterly financial statements fairly present in all material respects the financial condition Administrative Agent of copies of the Borrower Borrower’s Quarterly Report on Form 10-Q filed with the Securities and its Subsidiaries and have been prepared in accordance Exchange Commission for any quarter shall satisfy the Borrower’s obligation under this clause (ii) with GAAP (other than with regard respect to the absence of footnotes and subject to changes resulting from audit and normal year-end audit adjustments to same)such quarter.
6.1.3 (iii) Together with the financial statements required under Sections 6.1.1 6.1(i) and 6.1.2(ii), (iA) a compliance certificate in substantially the form of Exhibit B A signed by an Authorized Officer (a) showing the calculations necessary to determine compliance with Section 6.16, (b) this Agreement and stating that no Default or Unmatured Default exists, or if any Default or Unmatured Default exists, stating the nature and status thereof and (cB) updating Schedule 1 with respect to its Subsidiaries, Material Subsidiaries and Excluded Subsidiaries, if appropriate and (iia calculation of the Indebtedness secured by Liens permitted under Section 6.11(xiii) in such financial information as reasonable requested by the Agent, including, but not limited to consolidating financial statements, form as is necessary reasonably satisfactory to account for Excluded Indebtedness and Excluded EBITDA for purposes of determining the Consolidated Leverage RatioAdministrative Agent.
6.1.4 If requested, within 270 days after the close of each fiscal year of the Borrower, a copy of the actuarial report showing the Unfunded Liabilities of each Single Employer Plan as of the valuation date occurring in such fiscal year, certified by an actuary enrolled under ERISA.
6.1.5 (iv) As soon as possible practicable and in any event within ten (10) days after an Authorized Officer the Borrower knows that of the occurrence of any Reportable ERISA Event has occurred with respect to any Plan that could reasonably be expected to have a Material Adverse Effect, Effect (x) a statement, signed by written statement of an Authorized Officer, describing said Reportable Officer of the Borrower specifying the details of such ERISA Event and the action which that the Borrower or ERISA Affiliate has taken and proposes to take with respect thereto, (y) a copy of any notice with respect to such ERISA Event that may be required to be filed with the PBGC and (z) a copy of any notice delivered by the PBGC to the Borrower or an ERISA Affiliate with respect to such ERISA Event.
6.1.6 From time (v) As soon as practicable and in any event within ten (10) days after receipt by the Borrower, a copy of (a) any notice or claim to time such additional information regarding the financial position effect that the Borrower or business any of its Subsidiaries is or may be liable to any Person as a result of the Borrower and release by the Borrower, any of its Subsidiaries as the AgentSubsidiaries, at the request or any other Person of any Lendertoxic or hazardous waste or substance into the environment, may and (b) any notice alleging any violation of any federal, state or local environmental, health or safety law or regulation by the Borrower or any of its Subsidiaries, which, in either case, could reasonably request, including the support for any pro forma calculations hereunderbe expected to have a Material Adverse Effect.
6.1.7 Promptly(vi) Promptly upon the furnishing thereof to the shareholders of the Borrower, copies of all financial statements and reports so furnished.
(vii) Promptly upon the filing thereof, copies of all registration statements (and annual, quarterly, monthly or other than any registration statement on Form S-8 and any registration statement in connection with a dividend reinvestment plan, shareholder purchase plan or employee benefit plan) and regular reports on form 10-K, 10-Q or 8-K (or their equivalents) which the Borrower or any of its Subsidiaries files with the Securities and Exchange Commission.
6.1.8 Promptly(viii) Promptly upon the request thereof, such other information regarding and documentation required under applicable “know your customer” rules and regulations, the PATRIOT Act or any change applicable Anti-Money Laundering Laws or Anti-Corruption Laws, in the Borrower’s Debt Rating. Information required each case as from time to be delivered pursuant to these Sections 6.1.1, 6.1.2, and 6.1.7 shall be deemed to have been delivered on the date on which the Borrower provides notice to the Lenders that such information has been posted on the Securities and Exchange Commission website on the Internet at ▇▇▇.▇▇▇/▇▇▇▇▇/▇▇▇▇▇▇▇▇.▇▇▇, on the Borrower’s IntraLinks site at ▇▇▇▇▇▇▇▇▇▇.▇▇▇ or at another website identified in such notice and accessible time reasonably requested by the Lenders without charge; provided that Administrative Agent or any Lender.
(iix) such notice may be included in a certificate delivered pursuant to Section 6.1.3 and such notice Such other information (including nonfinancial information) as the Administrative Agent or certificate shall also be deemed to have been delivered upon being posted to the Borrower’s IntraLinks site or such other website and (ii) the Borrower shall deliver paper copies of the information referred to in Sections 6.1.1, 6.1.2 and 6.1.7 to any Lender which requests such deliverymay from time to time reasonably request.
Appears in 2 contracts
Sources: Credit Agreement, Credit Agreement (Idaho Power Co)
Financial Reporting. The Borrower Guarantor shall deliver or cause to be delivered the following to Buyer; provided that Guarantor will maintainnot be required to deliver any of the following to Buyer if Guarantor, for itself and each Subsidiaryas applicable, a system of accounting established and administered in accordance with GAAP, and furnish has delivered such item to Buyer pursuant to the Agent and terms of the LendersRocket Repurchase Agreement:
6.1.1 Within ninety (90i) days after the close of each of its fiscal years, financial statements prepared in accordance with GAAP on a consolidated basis for itself and its Subsidiaries, including balance sheets as of the end of such period, statements of income and statements of cash flows, setting forth in comparative form figures for the preceding fiscal year, accompanied by an audit report, consistent with the requirements of the Securities and Exchange Commission, of a nationally recognized firm of independent public accountants or other independent public accountants reasonably acceptable to the Required Lenders.
6.1.2 Within forty-five (45) days after the close end of the first three quarterly periods each calendar month, (1) consolidated and consolidating statements of income and changes in shareholders’ equity and cash flows for such month of Guarantor and Guarantor’s consolidated Subsidiaries and (2) statements of income and changes in shareholders’ equity and cash flows for such month of each of its Guarantor’s Subsidiaries (excluding any Subsidiary that is only a holding company), and for each of Guarantor and such Subsidiaries, the related balance sheet as at the end of such month, all in reasonable detail, prepared in accordance with GAAP, subject to year-end adjustments and a lack of footnotes;
(ii) Within ninety (90) days after (1) Guarantor’s fiscal yearsyear end, financial consolidated and consolidating statements of income, changes in shareholders’ equity and cash flows of Guarantor and Guarantor’s consolidated Subsidiaries for such fiscal year, and (2) the fiscal year end of each Subsidiary of Guarantor, statements of income, changes in shareholders’ equity and cash flows of such Subsidiary (excluding any Subsidiary that is only a holding company), and for each of Guarantor and such Subsidiaries, the related balance sheet as at the end of such fiscal year (setting forth in comparative form the corresponding figures for the preceding fiscal year), all in reasonable detail, prepared in accordance with GAAP and an opinion prepared by an accounting firm reasonably satisfactory to Buyer, or other independent certified public accountants of recognized standing selected by Guarantor, as to Guarantor’s and Guarantor’s consolidated Subsidiaries financial statements and, only if Guarantor elects to have them audited, as to such Subsidiaries’ financial statements;
(other than iii) Together with regard to the absence each delivery of footnotes financial statements required in Sections 14(e)(i) and subject to changes resulting from audit and normal year-end audit adjustments to same14(e)(ii) on above, a consolidated basis for itself and its Subsidiaries, including, consolidated unaudited balance sheets as at the close of each such period and consolidated unaudited statements of income and a statement of cash flows for the period from the beginning of such fiscal year to the end of such quarter, in each case setting forth in comparative form figures for the corresponding period of the preceding fiscal year, and accompanied Compliance Certificate executed by a certificate of the chief financial officer, chief executive officer or treasurer president of Guarantor, on behalf of Guarantor;
(iv) Photocopies or electronic copies of the Borrower to the effect that such quarterly financial statements fairly present in all material respects the financial condition of the Borrower and its Subsidiaries and have been prepared in accordance with GAAP (other than with regard to the absence of footnotes and subject to changes resulting from audit and normal year-end audit adjustments to same).
6.1.3 Together with the financial statements required under Sections 6.1.1 and 6.1.2, (i) a compliance certificate in substantially the form of Exhibit B signed by an Authorized Officer (a) showing the calculations necessary to determine compliance with Section 6.16, (b) stating that no Default or Unmatured Default exists, or if any Default or Unmatured Default exists, stating the nature and status thereof and (c) updating Schedule 1 with respect to its Subsidiaries, Material Subsidiaries and Excluded Subsidiaries, if appropriate and (ii) such financial information as reasonable requested by the Agent, including, but not limited to consolidating financial statements, as is necessary to account for Excluded Indebtedness and Excluded EBITDA for purposes of determining the Consolidated Leverage Ratio.
6.1.4 If requested, within 270 days after the close of each fiscal year of the Borrower, a copy of the actuarial report showing the Unfunded Liabilities of each Single Employer Plan as of the valuation date occurring in such fiscal year, certified by an actuary enrolled under ERISA.
6.1.5 As soon as possible and in any event within ten (10) days after an Authorized Officer knows that any Reportable Event has occurred with respect to any Plan that could reasonably be expected to have a Material Adverse Effect, a statement, signed by an Authorized Officer, describing said Reportable Event and the action which the Borrower proposes to take with respect thereto.
6.1.6 From time to time such additional information regarding the financial position or business of the Borrower and its Subsidiaries as the Agent, at the request relevant portions of any Lender, may reasonably request, including the support for any pro forma calculations hereunder.
6.1.7 Promptly, upon the filing thereof, copies of all registration statements (other than any registration statement on Form S-8 and any registration statement in connection with a dividend reinvestment plan, shareholder purchase plan or employee benefit plan) and reports on form 10-K, 10-Q or 8-K (or their equivalents) which the Borrower or any of its Subsidiaries files with the Securities and Exchange Commission.
6.1.8 Promptly, information regarding any change in the Borrower’s Debt Rating. Information required to be delivered pursuant to these Sections 6.1.1, 6.1.2, and 6.1.7 shall be deemed to have been delivered on the date on which the Borrower provides notice to the Lenders that such information has been posted on the Securities and Exchange Commission website on the Internet at ▇▇▇.▇▇▇/final written audits completed by ▇▇▇▇▇/▇ ▇▇▇ of Guarantor that provide for material corrective action, material sanctions or classifications of the quality of Guarantor’s operations, not later than five (5) Business Days after receiving such audit;
(v) Weekly (and more frequently if reasonably requested by ▇▇▇▇▇▇▇▇.▇▇▇), on the Borrower’s IntraLinks site at a hedging report in a form mutually agreed to between ▇▇▇▇▇▇▇▇▇▇▇ and Guarantor; and
(vi) From time to time, with reasonable promptness, such further information regarding the Pledged Items, or the business, operations, properties or financial condition of Guarantor as Buyer may reasonably request.▇▇▇ or at another website identified in such notice and accessible by the Lenders without charge; provided that (i) such notice may be included in a certificate delivered pursuant to Section 6.1.3 and such notice or certificate shall also be deemed to have been delivered upon being posted to the Borrower’s IntraLinks site or such other website and (ii) the Borrower shall deliver paper copies of the information referred to in Sections 6.1.1, 6.1.2 and 6.1.7 to any Lender which requests such delivery.
Appears in 2 contracts
Sources: Master Repurchase Agreement (Rocket Companies, Inc.), Master Repurchase Agreement (Rocket Companies, Inc.)
Financial Reporting. The Borrower Newco will maintain, for itself and each Subsidiary, a system of accounting established and administered in accordance with GAAP, and furnish to the Agent and the LendersSprint:
6.1.1 (a) Within ninety five (905) days after its filing with the SEC, and in any event within 120 days after the close of each of its fiscal yearsFiscal Year, financial statements an unqualified audit report certified by independent certified public accountants (which shall be a "Big Six" accounting firm, or another nationally recognized accounting firm), prepared in accordance with GAAP on a consolidated and consolidating basis for itself and its Subsidiaries(consolidating statements need not be certified by such accountants), including balance sheets as of the end of such period, period and related statements of income and statements of cash flows, setting forth in comparative form figures for the preceding fiscal year, accompanied by an audit report(i) any management letter prepared by said accountants, consistent (ii) a certificate of said accountants that, in the course of the examination necessary for their certification of the foregoing, they have obtained no knowledge of any Default or Event of Default, or if, in the opinion of such accountants, any Default or Event of Default shall exist, stating the nature and status thereof, and (iii) a letter from said accountants addressed to Sprint acknowledging that Sprint is extending credit in primary reliance on such financial statements and authorizing such reliance. Newco hereby authorizes Sprint to communicate directly with such accountants following the occurrence of a Default or Event of Default.
(b) Within five (5) days after its filing with the requirements of the Securities SEC, and Exchange Commission, of a nationally recognized firm of independent public accountants or other independent public accountants reasonably acceptable to the Required Lenders.
6.1.2 Within forty-five (45) in any event within 65 days after the close of the first three quarterly periods Fiscal Quarters of each of its fiscal years, financial statements prepared in accordance with GAAP (other than with regard to the absence of footnotes and subject to changes resulting from audit and normal year-end audit adjustments to same) on a consolidated basis for itself and its Subsidiaries, includingFiscal Year, consolidated and consolidating unaudited balance sheets as at the close of each such period and consolidated unaudited and consolidating statements of income and a statement of cash flows for the period from the beginning of such fiscal year Fiscal Year to the end of such quarterFiscal Quarter, in each case setting forth in comparative form figures for the corresponding period of the preceding fiscal year, and accompanied all certified by a certificate of the its chief financial officer or treasurer of the Borrower to the effect that such quarterly financial statements fairly present in all material respects the financial condition of the Borrower and its Subsidiaries and have been prepared in accordance with GAAP (other than with regard to the absence of footnotes notes to financial statements and subject to changes resulting from audit and normal recurring year-end audit adjustments to sameadjustments).
6.1.3 (c) As soon as available, but in any event not later than 15 days before the end of each Fiscal Year, beginning with Fiscal Year 1998, a copy of the plan and forecast (including a projected consolidated and consolidating balance sheet, income statement and cash flow statement) of Newco and its Subsidiaries for the next Fiscal Year.
(d) Together with the financial statements required under Sections 6.1.1 by clauses (a) ----------- and 6.1.2(b) above, (i) a compliance certificate in substantially the form of --- Exhibit B hereto signed by an Authorized Officer (a) its chief financial officer showing the --------- calculations necessary to determine compliance with Section 6.16, (b) this Agreement and stating that no Default or Unmatured Event of Default existsexists and no Business Combination has occurred, or if any Default or Unmatured Event of Default exists, stating the nature and status thereof and (c) updating Schedule 1 with respect to its Subsidiaries, Material Subsidiaries and Excluded Subsidiaries, if appropriate and (ii) such financial information as reasonable requested by the Agent, including, but not limited to consolidating financial statements, as is necessary to account for Excluded Indebtedness and Excluded EBITDA for purposes of determining the Consolidated Leverage Ratiothereof.
6.1.4 If requested, within (e) Within 270 days after the close of each fiscal year of the BorrowerFiscal Year, a copy statement of the actuarial report showing the Unfunded Liabilities of each Single Employer Plan as of the valuation date occurring in such fiscal yearPlan, certified by an actuary enrolled under ERISA.
6.1.5 (f) As soon as possible and in any event within ten (10) days after an Authorized Officer Newco knows that any Reportable Event event has occurred which is a Termination Event with respect to any Plan that could reasonably be expected which is subject to have a Material Adverse EffectTitle IV of ERISA, a statement, signed by an Authorized Officerthe chief financial officer of Newco, describing said Reportable Termination Event and the any action which the Borrower Newco proposes to take with respect thereto.
6.1.6 From time (g) As soon as possible and in any event within ten (10) days after receipt by Newco, a copy of (i) any notice, claim, complaint or order to time such additional information regarding the financial position effect that Newco or business any of its Subsidiaries is or may be liable to any Person as a result of the Borrower and release by Newco, any of its Subsidiaries as the AgentSubsidiaries, at the request or any other Person of any LenderHazardous Materials into the environment or requiring that action be taken by Newco to respond to or clean up a Release of Hazardous Materials into the environment, may reasonably requestand (ii) any notice, including complaint or citation alleging any violation of any environmental law or environmental permit by Newco or any of its Subsidiaries. Within ten (10) days after Newco or any Subsidiary having Knowledge of the support for proposal, enactment or promulgation of any pro forma calculations hereunderenvironmental law which would have a Material Adverse Effect, Newco shall provide Sprint with written notice thereof.
6.1.7 (h) Promptly upon the furnishing thereof to the stockholders of Newco, copies of all financial statements, reports and proxy statements so furnished.
(i) Promptly, upon and in any event within five (5) days after the filing thereof, copies of all registration statements (other than any registration statement on Form S-8 and any registration statement in connection with a dividend reinvestment plan, shareholder purchase plan or employee benefit plan) and reports on form 10-K, 10-Q or 8-K (or their equivalents) which the Borrower Newco or any of its Subsidiaries files with the Securities and Exchange CommissionSEC.
6.1.8 (j) Promptly, and in any event within ten (10) days after learning thereof, notification of (i) any tax assessment, demand, notice of proposed deficiency or notice of deficiency received by Newco or any other Consolidated Person or (ii) the filing of any tax Lien or commencement of any judicial proceeding by or against any such Consolidated Person, if any such assessment, demand, notice, Lien or judicial proceeding relates to tax liabilities in excess of $1,000,000.
(k) Such other information regarding any change in the Borrower’s Debt Rating(including non-financial information) as Sprint may from time to time reasonably request. Information Each Borrower shall file, on a timely basis, all reports, schedules, forms, statements and other documents that are required to be delivered pursuant to these Sections 6.1.1filed with the SEC ("Borrower Filed SEC Documents"). As of their respective dates, 6.1.2, and 6.1.7 shall be deemed to have been delivered on the date on which the Borrower provides notice to Filed SEC Documents will comply in all material respects with the Lenders that such information has been posted on requirements of the Securities Act of 1933 or the Securities and Exchange Commission website on Act of 1934, as the Internet at ▇▇▇.▇▇▇/▇▇▇▇▇/▇▇▇▇▇▇▇▇.▇▇▇case may be, on the Borrower’s IntraLinks site at ▇▇▇▇▇▇▇▇▇▇.▇▇▇ or at another website identified in applicable to such notice Borrower Filed SEC Documents, and accessible by the Lenders without charge; provided that (i) such notice may be included in a certificate delivered pursuant to Section 6.1.3 and such notice or certificate shall also be deemed to have been delivered upon being posted to the Borrower’s IntraLinks site or such other website and (ii) none of the Borrower shall deliver paper copies Filed SEC Documents will contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in light of the information referred to in Sections 6.1.1circumstances under which they were made, 6.1.2 and 6.1.7 to any Lender which requests such deliverynot misleading.
Appears in 2 contracts
Sources: Credit Agreement (Earthlink Network Inc), Credit Agreement (Sprint Corp)
Financial Reporting. The Such Borrower will maintain, for itself and each SubsidiarySubsidiary of such Borrower, a system of accounting established and administered in accordance with GAAPAgreement Accounting Principles or SAP, as applicable, and furnish to the Agent and the Lenders:
6.1.1 Within ninety (90a) In the case of NFS, within 100 days after the close of each of its fiscal years, financial statements an unqualified audit report on Form 10K as filed with the Securities and Exchange Commission, certified by independent certified public accountants acceptable to the Lenders and prepared in accordance with GAAP Agreement Accounting Principles on a consolidated basis for itself and its Subsidiaries, including balance sheets as of the end of such period, period and related statements of income income, shareholders’ equity and statements of cash flows, setting forth in comparative form figures for the preceding fiscal year, accompanied by an audit report, consistent with the requirements of the Securities and Exchange Commission, of a nationally recognized firm of independent public accountants or other independent public accountants reasonably acceptable to the Required Lendersany internal control letter prepared by said accountants.
6.1.2 Within forty-five (45b) In the case of NFS, within 60 days after the close of the first three quarterly periods of each of its fiscal years, financial statements prepared in accordance with GAAP (other than with regard to the absence of footnotes and subject to changes resulting from audit and normal year-end audit adjustments to same) on a consolidated basis for itself and its Subsidiaries, including, consolidated unaudited balance sheets as at the close of each such period and consolidated unaudited statements of income income, shareholders’ equity and a statement of cash flows for the period from the beginning of such fiscal year to the end of such quarter, in all certified by its chief financial officer.
(i) In the case of each case setting forth in comparative form figures for of Nationwide Mutual and Nationwide Life, upon the corresponding period earlier of (A) thirty (30) days after the regulatory filing date or (B) one hundred (100) days after the close of each fiscal year of such Borrower, copies of the preceding unaudited Annual Statement of such Borrower, certified by the chief financial officer or the treasurer of such Borrower, all such statements to be prepared in accordance with SAP consistently applied throughout the periods reflected therein and (ii) in the case of Nationwide Life, no later than each June 15, copies of such Annual Statement audited and certified by independent certified public accountants of recognized national statement.
(d) In the case of Nationwide Mutual, (i) within thirty (30) days after the regulatory filing date, copies of the unaudited Combined Annual Statement of Nationwide Mutual, certified by the chief financial officer or the treasurer of Nationwide Mutual, all such statements to be prepared in accordance with SAP consistently applied throughout the periods reflected therein and (ii) no later than each June 15, copies of such Combined Annual Statement audited and certified by independent certified public accountants of recognized national statement.
(e) In the case of Nationwide Mutual and Nationwide Life, upon the earlier of (i) thirty (30) days after the regulatory filing date or (ii) sixty (60) days after the close of each of the first three (3) fiscal yearquarters of each fiscal year of Nationwide Mutual and Nationwide Life, and accompanied copies of the unaudited Quarterly Statement of such Borrower, certified by a certificate of the chief financial officer or treasurer of the Borrower such Borrower, all such statements to the effect that such quarterly financial statements fairly present in all material respects the financial condition of the Borrower and its Subsidiaries and have been be prepared in accordance with GAAP (other than with regard to SAP consistently applied through the absence of footnotes and subject to changes resulting from audit and normal year-end audit adjustments to same)period reflected therein.
6.1.3 (f) Together with the financial statements required under Sections 6.1.1 and 6.1.26.1(a), (ib), (c) and (e), a compliance certificate in substantially the form of Exhibit B signed by an Authorized Officer (a) its chief financial officer or treasurer showing the calculations necessary to determine compliance with Section 6.16, (b) this Agreement and stating that no Default or Unmatured Default exists, or if any Default or Unmatured Default exists, stating the nature and status thereof and (c) updating Schedule 1 with respect to its Subsidiaries, Material Subsidiaries and Excluded Subsidiaries, if appropriate and (ii) such financial information as reasonable requested by the Agent, including, but not limited to consolidating financial statements, as is necessary to account for Excluded Indebtedness and Excluded EBITDA for purposes of determining the Consolidated Leverage Ratiothereof.
6.1.4 If requested, within 270 days after the close of each fiscal year of the Borrower, a copy of the actuarial report showing the Unfunded Liabilities of each Single Employer Plan as of the valuation date occurring in such fiscal year, certified by an actuary enrolled under ERISA.
6.1.5 As soon as possible (g) Promptly and in any event within ten (10) days after learning thereof, notification of any changes after the Closing Date in the rating given by ▇▇▇▇▇’▇, S&P or A.M. Best & Co. in respect of any Borrower.
(h) Within five (5) Business Days after the receipt thereof by such Borrower, any written communication from the Insurance Department of the State of Ohio (provided that such communication is directed to such Borrower specifically with respect to a particular inquiry and not to insurance companies generally) which asserts in any material respect that such Borrower has an Authorized Officer unsound financial condition;
(i) Within ten (10) days after the required annual filing with the PBGC, a statement of the Unfunded Liabilities of each Single Employer Plan, if any, certified as correct by an actuary enrolled under ERISA.
(j) As soon as possible and in any event within 10 days after such Borrower knows that any Reportable Event has occurred with respect to any Plan that could reasonably be expected to have a Material Adverse EffectPlan, a statement, signed by an Authorized Officerthe chief financial officer of such Borrower, describing said Reportable Event and the action which the such Borrower proposes to take with respect thereto.
6.1.6 From time to time such additional information regarding the financial position or business of the Borrower and its Subsidiaries as the Agent, at the request of any Lender, may reasonably request, including the support for any pro forma calculations hereunder.
6.1.7 Promptly, (k) Promptly upon the filing thereoffurnishing thereof to the shareholders (in the case of NFS) or the policyholders (in the case of Nationwide Mutual), copies of all registration financial statements, reports and proxy statements so furnished.
(other than l) Promptly and in any registration statement on Form S-8 and event within ten (10) days after learning thereof, notification of (i) any registration statement in connection with a dividend reinvestment plantax assessment, shareholder purchase plan demand, notice of proposed deficiency or employee benefit plan) and reports on form 10-K, 10-Q or 8-K (or their equivalents) which the notice of deficiency received by such Borrower or any of its Subsidiaries files with the Securities and Exchange Commission.
6.1.8 Promptly, information regarding any change in the Borrower’s Debt Rating. Information required to be delivered pursuant to these Sections 6.1.1, 6.1.2, and 6.1.7 shall be deemed to have been delivered on the date on which the Borrower provides notice to the Lenders that such information has been posted on the Securities and Exchange Commission website on the Internet at ▇▇▇.▇▇▇/▇▇▇▇▇/▇▇▇▇▇▇▇▇.▇▇▇, on the Borrower’s IntraLinks site at ▇▇▇▇▇▇▇▇▇▇.▇▇▇ other Consolidated Person or at another website identified in such notice and accessible by the Lenders without charge; provided that (i) such notice may be included in a certificate delivered pursuant to Section 6.1.3 and such notice or certificate shall also be deemed to have been delivered upon being posted to the Borrower’s IntraLinks site or such other website and (ii) the filing of any tax Lien or commencement of any judicial proceeding by or against such Consolidated Person, if any such assessment, demand, notice, Lien or judicial proceeding (or all such assessments, demands, notices, Liens and judicial proceedings, in the aggregate) relates to tax liabilities in excess of ten percent (10%) of (A) in the case of Nationwide Mutual and Nationwide Life, the Statutory Surplus (determined without reduction for any reserve for liabilities) of such Borrower shall deliver paper copies or (B) in the case of NFS, the Consolidated Tangible Net Worth (determined without reduction for any reserve for liabilities) of NFS.
(m) Such other information referred to in Sections 6.1.1, 6.1.2 and 6.1.7 to (including non-financial information) as the Agent or any Lender which requests such deliverymay from time to time reasonably request.
Appears in 2 contracts
Sources: Credit Agreement (Nationwide Financial Services Inc/), 364 Day Credit Agreement (Nationwide Financial Services Inc/)
Financial Reporting. The Borrower Guarantor will maintain, for itself and each Subsidiary, a system of accounting established and administered in accordance with GAAPgenerally accepted accounting principles, and Guarantor and/or Borrower will furnish to the Agent and the Lenders:
6.1.1 (i) Within ninety (90) 90 days after the close of each of its fiscal years, financial statements (a) an unqualified audit report certified by independent certified public accountants acceptable to the Lenders, prepared in accordance with GAAP Agreement Accounting Principles on a consolidated basis for itself Guarantor and its Subsidiaries, including balance sheets as of the end of such period, related statements of income and statements retained earnings, and a statement of cash flows, setting forth in comparative form figures for the preceding fiscal year, accompanied by an audit reportany management letter prepared by said accountants and (b) unaudited financial statements for Borrower and its Subsidiaries, consistent prepared in accordance with the requirements Agreement Accounting Principles on a consolidated basis for Borrower and its Subsidiaries, including balance sheets as of the Securities end of such period, related profit and Exchange Commission, loss and reconciliation of surplus statements and a nationally recognized firm statement of independent public accountants or other independent public accountants reasonably acceptable to the Required Lenderscash flows.
6.1.2 (ii) Within forty-five (45) 45 days after the close of the first three quarterly periods of each of its fiscal years, financial statements prepared in accordance with GAAP (other than with regard to the absence of footnotes and subject to changes resulting from audit and normal year-end audit adjustments to same) on a consolidated basis for itself Guarantor and its Subsidiaries, including, Subsidiaries either (i) a consolidated unaudited balance sheets sheet as at the close of each such period and consolidated unaudited statements of income and retained earnings and a statement of cash flows for the period from the beginning of such fiscal year to the end of such quarter, in each case setting forth in comparative form figures for the corresponding period of the preceding fiscal year, and accompanied all certified by a certificate of the Guarantor’s chief financial officer or treasurer (ii) if Guarantor is then a “registrant” within the meaning of Rule 1-01 of Regulation S-X of the Borrower Securities and Exchange Commission and required to file a report on Form 10-Q with the effect that Securities and Exchange Commission, a copy of Guarantor’s report on Form 10-Q for such quarterly financial statements fairly present in all material respects the financial condition of the Borrower and its Subsidiaries and have been prepared in accordance with GAAP (other than with regard to the absence of footnotes and subject to changes resulting from audit and normal year-end audit adjustments to same)period.
6.1.3 (iii) Together with the financial statements required under Sections 6.1.1 6.1(i) and 6.1.2(ii), (i) a compliance certificate in substantially the form of Exhibit B C signed by an Authorized its Chief Financial Officer (a) or Treasurer showing the calculations necessary to determine compliance with Section 6.16, (b) this Agreement and stating that no No Default or Unmatured Default exists, or if any Default or Unmatured Default exists, stating the nature and status thereof and (c) updating Schedule 1 with respect to its Subsidiaries, Material Subsidiaries and Excluded Subsidiaries, if appropriate and (ii) such financial information as reasonable requested by the Agent, including, but not limited to consolidating financial statements, as is necessary to account for Excluded Indebtedness and Excluded EBITDA for purposes of determining the Consolidated Leverage Ratiothereof.
6.1.4 If requested, within 270 days after the close of each fiscal year of the Borrower, a copy of the actuarial report showing the Unfunded Liabilities of each Single Employer Plan as of the valuation date occurring in such fiscal year, certified by an actuary enrolled under ERISA.
6.1.5 (iv) As soon as possible and in any event within ten (10) 10 days after an Authorized Officer Borrower knows that any Reportable Event has occurred with respect to any Plan Plan, a statement, signed by the chief financial officer of Borrower, describing said Reportable Event and the action which Borrower proposes to take with respect thereto.
(v) As soon as possible and in any event within 10 days after receipt by Borrower, a copy of (a) any notice or claim to the effect that Borrower or any of its Subsidiaries is or may be liable to any Person as a result of the release by Borrower, any of its Subsidiaries, or any other Person of any toxic or hazardous waste or substance into the environment, and (b) any notice alleging any violation of any federal, state or local environmental, health or safety law or regulation by Borrower or any of its Subsidiaries, which, in either case, could reasonably be expected to have a Material Adverse Effect, a statement, signed by an Authorized Officer, describing said Reportable Event and the action which the Borrower proposes to take with respect thereto.
6.1.6 From time (vi) Promptly upon the furnishing thereof to time such additional information regarding the shareholders of Guarantor, copies of all financial position or business of the Borrower statements, reports and its Subsidiaries as the Agent, at the request of any Lender, may reasonably request, including the support for any pro forma calculations hereunderproxy statements so furnished.
6.1.7 Promptly, (vii) Promptly upon the filing thereof, copies of all registration statements (other than any registration statement statements on Form S-8 or any successor form thereto and any other than registration statement in connection with statements relating to shares to be issued under a dividend reinvestment plan, shareholder purchase plan or employee benefit plan) and annual, quarterly, monthly or other regular reports on form 10-K, 10-Q or 8-K (or their equivalents) which the Borrower Guarantor or any of its Subsidiaries files with the Securities and Exchange Commission.
6.1.8 Promptly, (viii) Such other information regarding (including non-financial information) as the Administrative Agent or any change in the Borrower’s Debt RatingLender may from time to time reasonably request. Information Documents required to be delivered pursuant to these Sections 6.1.1clause (i), 6.1.2(ii), and 6.1.7 (vi) or (vii) above may be delivered electronically and, if so delivered, shall be deemed to have been delivered on the date (i) on which the Borrower posts such documents, or provides notice to the Lenders that such information has been posted a link thereto, on the Securities and Exchange Commission a website on the Internet internet at ▇▇▇.▇▇▇/▇▇▇▇▇/▇▇▇▇▇▇▇▇.▇▇▇, a website address previously specified to the Administrative Agent and the Lenders; or (ii) on the which such documents are posted on Borrower’s behalf on IntraLinks site at ▇▇▇▇▇▇▇▇▇▇.▇▇▇ or at another website identified in such notice relevant website, if any, to which each of the Administrative Agent and accessible by the Lenders without chargeeach Lender has access; provided that (ix) such notice may be included in a certificate delivered pursuant to Section 6.1.3 and such notice upon request of the Administrative Agent or certificate shall also be deemed to have been delivered upon being posted to the Borrower’s IntraLinks site or such other website and (ii) the any Lender, Borrower shall deliver paper copies of such documents to the information Administrative Agent or such Lender (until a written request to cease delivering paper copies is given by the Administrative Agent or such Lender) and (y) Borrower shall notify (which may be by facsimile or electronic mail) the Administrative Agent and each Lender of the posting of any documents. The Administrative Agent shall have no obligation to request the delivery of, or to maintain copies of, the documents referred to in Sections 6.1.1above or to monitor compliance by Borrower with any such request for delivery, 6.1.2 and 6.1.7 each Lender shall be solely responsible for requesting delivery to any Lender which requests it or maintaining its copies of such deliverydocuments.
Appears in 2 contracts
Sources: Credit Agreement (Vectren Corp), Credit Agreement (Vectren Corp)
Financial Reporting. The Borrower will maintain, for itself and each Subsidiaryof the Subsidiaries, a system of accounting established and administered in accordance with GAAP, and furnish to the Administrative Agent and the Lenders, in each case in form and scope reasonably acceptable to the Administrative Agent and the Initial Lenders:
6.1.1 (a) Within ninety (90) 75 days after the close of each Fiscal Year, an unqualified (except for qualifications relating to changes in accounting principles or practices reflecting changes in GAAP) audit report, with no going concern modifier, certified by the Borrower’s current independent certified public accountants or other independent certified public accountants of its fiscal yearsnational reputation and standing reasonably acceptable to the Lenders, financial statements prepared in accordance with GAAP on a consolidated basis for itself the Borrower and its Subsidiaries, including a balance sheets sheet as of the end of such period, period and related statements of income operations, stockholders’ investment, and statements of cash flows, setting forth in comparative form figures for the preceding fiscal year, accompanied by an audit reportany management letter, consistent with if issued, prepared by said accountants (provided that if such management letter is not available at such time, the requirements of the Securities and Exchange Commission, of a nationally recognized firm of independent public accountants or other independent public accountants reasonably acceptable to the Required LendersBorrower shall deliver it promptly following receipt thereof).
6.1.2 (b) Within forty-five (45) 45 days after the close of the first three quarterly (3) Fiscal Quarter periods of after each of its fiscal yearsFiscal Years, financial statements prepared in accordance with GAAP (other than with regard to for the absence of footnotes and subject to changes resulting from audit and normal year-end audit adjustments to same) on a consolidated basis for itself Borrower and its Subsidiaries, including, consolidated unaudited balance sheets as at the close of each such period and consolidated unaudited statements of income profit and loss and a statement of cash flows for the period from the beginning of such fiscal year Fiscal Year to the end of such quarter, in each case setting forth in comparative form figures for all certified by the corresponding period of the preceding fiscal yearBorrower’s chief financial officer, and accompanied by a certificate of which certification may be done through the chief financial officer or treasurer officer’s certifications made to the U.S. Securities and Exchange Commission to the extent that such financial statements have been filed with the U.S. Securities and Exchange Commission.
(c) As soon as available, but in any event within 45 days after the first day of each Fiscal Year of the Borrower to Borrower, a copy of the effect that such quarterly financial statements fairly present in all material respects the financial condition plan and forecast (including a projected consolidated balance sheet, income statement, Capital Expenditures budget and cash flow statement) of the Borrower and its the Subsidiaries and have been prepared in accordance with GAAP (other than with regard to the absence of footnotes and subject to changes resulting from audit and normal year-end audit adjustments to same)for such Fiscal Year.
6.1.3 Together (d) Commencing with the first period that financial statements are required under Section 6.1(a) and thereafter when financial statements are required under Sections 6.1.1 6.1(a) and 6.1.26.1(b), (i) a compliance certificate in substantially the form of Exhibit B A signed by an Authorized Officer (a) the chief financial officer of the Borrower showing the calculations necessary to determine compliance with Section 6.16, (b) this Agreement and stating that no Default or Unmatured Event of Default exists, or if any Default or Unmatured Event of Default exists, stating the nature and status thereof and (c) updating Schedule 1 with respect to its Subsidiaries, Material Subsidiaries and Excluded Subsidiaries, if appropriate and (ii) such financial information as reasonable requested by the Agent, including, but not limited to consolidating financial statements, as is necessary to account for Excluded Indebtedness and Excluded EBITDA for purposes of determining the Consolidated Leverage Ratiothereof.
6.1.4 If requested, within 270 days after (e) Promptly upon the close of each fiscal year furnishing thereof to the shareholders of the Borrower, a copy copies of the actuarial report showing the Unfunded Liabilities of each Single Employer Plan as of the valuation date occurring in such fiscal yearall financial statements, certified by an actuary enrolled under ERISA.
6.1.5 As soon as possible reports and in any event within ten (10) days after an Authorized Officer knows proxy statements so furnished that any Reportable Event has occurred with respect to any Plan that could reasonably be expected to have a Material Adverse Effect, a statement, signed by an Authorized Officer, describing said Reportable Event and the action which the Borrower proposes to take with respect thereto.
6.1.6 From time to time such additional information regarding the financial position or business of the Borrower and its Subsidiaries as the Agent, at the request of any Lender, may reasonably request, including the support for any pro forma calculations are not otherwise provided hereunder.
6.1.7 Promptly, (f) Promptly upon the filing thereof, copies of all registration statements (and annual, quarterly, monthly or other than any registration statement on Form S-8 and any registration statement in connection with a dividend reinvestment plan, shareholder purchase plan or employee benefit plan) and regular reports on form 10-K, 10-Q or 8-K (or their equivalents) which the Borrower or any of its Subsidiaries files with the U.S. Securities and Exchange Commission.
6.1.8 Promptly(g) On or promptly after any time at which the Borrower or any Subsidiary becomes subject to the Beneficial Ownership Regulation, a completed Beneficial Ownership Certification in form and substance acceptable to the Administrative Agent.
(h) Such other information regarding (including non-financial information) as the Administrative Agent or any change in the Borrower’s Debt RatingLender may from time to time reasonably request. Information Any financial statement or other information required to be delivered furnished pursuant to these Sections 6.1.1Section 6.1(a), 6.1.2Section 6.1(b), Section 6.1(e) and 6.1.7 Section 6.1(f) shall be deemed to have been delivered furnished on the date on which the Lenders receive notice that the Borrower provides notice to has filed such financial statement or other information with the Lenders that such information has been posted on the U.S. Securities and Exchange Commission and is available on the ▇▇▇▇▇ website on the Internet at ▇▇▇.▇▇▇/▇▇▇▇▇/▇▇▇▇▇▇▇▇.▇▇▇, on the Borrower’s IntraLinks site at ▇▇▇▇▇▇▇▇▇▇.▇▇▇ or at another any successor government website identified in such notice that is freely and accessible by readily available to the Administrative Agent and the Lenders without charge; provided that (i) such the Borrower shall give notice may be included in of any filing of a certificate delivered pursuant to Section 6.1.3 and such notice or certificate shall also be deemed to have been delivered upon being posted registration statement to the Borrower’s IntraLinks site Administrative Agent (who shall then give notice of any such filing to the Lenders) and Borrower shall give notice to the Administrative Agent if it shall fail to make any timely filing of any regular report or proxy statement with the U.S. Securities and Exchange Commission (who shall then give notice of any such other website and (ii) late filing to the Lenders). Notwithstanding the foregoing, the Borrower shall deliver paper or electronic copies of any such financial statement to the Administrative Agent if the Administrative Agent or an Initial Lender requests the Borrower to furnish such paper or electronic copies until written notice to cease delivering such paper or electronic copies is given by the Administrative Agent or such Initial Lender. If any information that is required to be furnished to the Lenders under this Section is required by law or regulation to be filed by the Borrower with a government body on an earlier date, then the information referred required hereunder shall be furnished to in Sections 6.1.1, 6.1.2 and 6.1.7 to any Lender which requests the Lenders at such deliveryearlier date.
Appears in 2 contracts
Sources: Credit Agreement (Hawkins Inc), Credit Agreement (Hawkins Inc)
Financial Reporting. The Borrower will maintain4.1.1 As soon as available, for itself and each Subsidiary, a system of accounting established and administered but in accordance with GAAP, and furnish to the Agent and the Lenders:
6.1.1 Within ninety any event within five (905) business days after the close of each submission of its fiscal years, annual financial statements prepared in accordance with GAAP on a consolidated basis for itself and its Subsidiaries, including balance sheets as of the end of such period, statements of income and statements of cash flows, setting forth in comparative form figures for the preceding fiscal year, accompanied by an audit report, consistent with the requirements of to the Securities and Exchange Commission, of Guarantor shall provide Motorola with a nationally recognized firm of independent public accountants or other independent public accountants reasonably acceptable to the Required Lenders.
6.1.2 Within forty-five (45) days after the close copy of the first three quarterly periods consolidated and consolidating balance sheet of each of its fiscal years, financial statements prepared in accordance with GAAP (other than with regard to the absence of footnotes and subject to changes resulting from audit and normal year-end audit adjustments to same) on a consolidated basis for itself Guarantor and its Subsidiaries, including, consolidated unaudited balance sheets as at the close of each such period and consolidated unaudited statements of income and a statement of cash flows for the period from the beginning of such fiscal year to the end of such quarterFiscal Year, as well as the related statements of operations and statement of cash flow for such Fiscal Year, in each case setting forth in comparative form the figures for the fiscal year most recently ended, certified without a material qualification arising out of the scope of the audit, by nationally recognized independent certified public accountants selected by Guarantor.
4.1.2 As soon as available, but in any event within five (5) business days after the submission of its quarterly financial statements to the Securities and Exchange Commission, Guarantor shall provide Motorola with a copy of (i) the unaudited consolidated and consolidating balance sheets of Guarantor and its Subsidiaries as at the end of such fiscal Chadmoore/Parent Guaranty.004 8 December 23, 1996 9 quarter, setting forth in comparative form the consolidated figures for the fiscal year most recently ended, (ii) the unaudited consolidated and consolidating statements of operations of the Guarantor and its Subsidiaries for such quarterly fiscal period and for the portion of the fiscal year ending with such quarterly fiscal period, in each case setting forth in comparative form the consolidated figures for the corresponding period of the preceding fiscal year, and accompanied by a certificate (iii) statement of cash flow of the chief financial officer or treasurer Guarantor and its Subsidiaries for the portion of the Borrower to the effect that fiscal year ending with such quarterly fiscal period, setting forth in comparative form the consolidated figures for the corresponding period of the preceding fiscal year.
4.1.3 All financial statements provided pursuant to Sections 4.1.1 and 4.1.2 shall be present fairly present in all material respects the financial condition results of operations of the Borrower Guarantor and its Subsidiaries and have been shall be prepared in reasonable detail and in accordance with GAAP (other than with regard to applied consistently throughout the absence of periods reflected therein, except that interim period statements will not have footnotes and shall be subject to changes resulting from audit and normal year-year end audit adjustments to same)adjustments.
6.1.3 Together with the financial statements required under Sections 6.1.1 and 6.1.2, (i) a compliance certificate in substantially the form of Exhibit B signed by an Authorized Officer (a) showing the calculations necessary to determine compliance with Section 6.16, (b) stating that no Default or Unmatured Default exists, or if any Default or Unmatured Default exists, stating the nature and status thereof and (c) updating Schedule 1 with respect to its Subsidiaries, Material Subsidiaries and Excluded Subsidiaries, if appropriate and (ii) such financial information as reasonable requested by the Agent, including, but not limited to consolidating financial statements, as is necessary to account for Excluded Indebtedness and Excluded EBITDA for purposes of determining the Consolidated Leverage Ratio.
6.1.4 If requested, within 270 days after the close of each fiscal year of the Borrower, a copy of the actuarial report showing the Unfunded Liabilities of each Single Employer Plan as of the valuation date occurring in such fiscal year, certified by an actuary enrolled under ERISA.
6.1.5 As soon as possible and in any event within ten (10) days after an Authorized Officer knows that any Reportable Event has occurred with respect to any Plan that could reasonably be expected to have a Material Adverse Effect, a statement, signed by an Authorized Officer, describing said Reportable Event and the action which the Borrower proposes to take with respect thereto.
6.1.6 From time to time such additional information regarding the financial position or business of the Borrower and its Subsidiaries as the Agent, at the request of any Lender, may reasonably request, including the support for any pro forma calculations hereunder.
6.1.7 Promptly, upon the filing thereof, copies of all registration statements (other than any registration statement on Form S-8 and any registration statement in connection with a dividend reinvestment plan, shareholder purchase plan or employee benefit plan) and reports on form 10-K, 10-Q or 8-K (or their equivalents) which the Borrower or any of its Subsidiaries files with the Securities and Exchange Commission.
6.1.8 Promptly, information regarding any change in the Borrower’s Debt Rating. Information required to be delivered pursuant to these Sections 6.1.1, 6.1.2, and 6.1.7 shall be deemed to have been delivered on the date on which the Borrower provides notice to the Lenders that such information has been posted on the Securities and Exchange Commission website on the Internet at ▇▇▇.▇▇▇/▇▇▇▇▇/▇▇▇▇▇▇▇▇.▇▇▇, on the Borrower’s IntraLinks site at ▇▇▇▇▇▇▇▇▇▇.▇▇▇ or at another website identified in such notice and accessible by the Lenders without charge; provided that (i) such notice may be included in a certificate delivered pursuant to Section 6.1.3 and such notice or certificate shall also be deemed to have been delivered upon being posted to the Borrower’s IntraLinks site or such other website and (ii) the Borrower shall deliver paper copies of the information referred to in Sections 6.1.1, 6.1.2 and 6.1.7 to any Lender which requests such delivery.
Appears in 2 contracts
Sources: Guaranty and Security Agreement (Chadmoore Wireless Group Inc), Guaranty and Security Agreement (Chadmoore Wireless Group Inc)
Financial Reporting. The Borrower will maintain, for itself and each Subsidiary, a system of accounting established and administered in accordance with GAAP, and furnish to the Agent and for each of the Lenders:
6.1.1 Within ninety (90i) within 120 days after the close of each of its fiscal years, financial statements an annual audit report certified by KPMG or other independent certified public accountants of nationally recognized standing, prepared in accordance with GAAP on a Agreement Accounting Principles, together with the consolidated basis for itself balance sheet of the Borrower and its Subsidiaries, including balance sheets Consolidated Subsidiaries as of the end of such period, fiscal year and the related consolidated statements of income earnings and statements of cash flows, setting forth in comparative form figures flows for the preceding such fiscal year, accompanied by an audit report, consistent with the requirements of the Securities and Exchange Commission, of a nationally recognized firm of independent public accountants or other independent public accountants reasonably acceptable to the Required Lenders.;
6.1.2 Within forty-five (45ii) within 60 days after the close of the first three quarterly periods fiscal quarters of each of its fiscal years, financial statements prepared in accordance with GAAP (other than with regard to the absence of footnotes and subject to changes resulting from audit and normal year-end audit adjustments to same) on a consolidated basis for itself and its Subsidiaries, including, consolidated unaudited balance sheets as at the close of each such period and consolidated unaudited statements of income and a statement of cash flows for the period from the beginning of such fiscal year to the end of such quarter, in each case setting forth in comparative form figures for the corresponding period of the preceding fiscal year, and accompanied by a certificate of the chief financial officer or treasurer of the Borrower to the effect that such quarterly financial statements fairly present in all material respects the financial condition sheet of the Borrower and its Consolidated Subsidiaries as of the end of such fiscal quarter and have been the related consolidated statements of earnings and cash flow for the portion of each fiscal year ended at the end of such fiscal quarter, all certified by an Authorized Officer and prepared in accordance with GAAP (other than with regard to the absence of footnotes and Agreement Accounting Principles, subject to changes resulting from audit and normal year-end audit adjustments to same).and the absence of footnotes;
6.1.3 Together (iii) together with the financial statements required under Sections 6.1.1 6.1(i) and 6.1.2(ii), (i) a compliance certificate in substantially the form of Exhibit B F hereto signed by an Authorized Officer Officer;
(aiv) showing the calculations necessary to determine compliance with Section 6.16, (b) stating that no Default or Unmatured Default exists, or if any Default or Unmatured Default exists, stating the nature and status thereof and (c) updating Schedule 1 with respect to its Subsidiaries, Material Subsidiaries and Excluded Subsidiaries, if appropriate and (ii) such financial information as reasonable requested by the Agent, including, but not limited to consolidating financial statements, as is necessary to account for Excluded Indebtedness and Excluded EBITDA for purposes of determining the Consolidated Leverage Ratio.
6.1.4 If requested, within 270 days after the close of each fiscal year of the Borrower, a copy of the actuarial report showing the Unfunded Liabilities of each Single Employer Plan as of the valuation date occurring in such fiscal year, certified by an actuary enrolled under ERISA.
6.1.5 As soon as possible promptly and in any event within ten (10) 5 days after a Responsible Officer of the Borrower obtains knowledge of the occurrence of any event which constitutes a Default, or Unmatured Default, notice of such occurrence together with a detailed statement by an Authorized Officer knows that any Reportable Event has occurred with respect to any Plan that could reasonably be expected to have a Material Adverse Effect, a statement, signed by an Authorized Officer, describing said Reportable Event and the action which the Borrower proposes to take with respect thereto.
6.1.6 From time to time such additional information regarding the financial position or business of the Borrower and its Subsidiaries as of the Agent, at steps being taken by the request Borrower or the appropriate Subsidiary to cure the effect of any Lender, may reasonably request, including the support for any pro forma calculations hereunder.such event;
6.1.7 Promptly, (v) promptly upon the filing thereof, copies of all registration statements (other than any registration statement statements on Form S-8 and any registration statement in connection with a dividend reinvestment plan, shareholder purchase plan or employee benefit planits equivalent) and reports on form Form 10-K, K and 10-Q or 8-K (or their equivalents) ), if any, which the Borrower or any of its Subsidiaries files with the Securities and Exchange Commission.Commission under Section 13 or Section 15(d) of the Securities Exchange Act of 1934, as amended; and
6.1.8 Promptly(vi) from time to time, with reasonable promptness, but subject to restrictions imposed by applicable security clearance regulations, such further information regarding the business and financial condition of the Borrower and its Subsidiaries as any change Lender may reasonably request through the Agent. In lieu of furnishing the Agent the items referred to in clauses (i), (ii) and (v) above, the Borrower may make available such items on the Borrower’s Debt Rating. Information required to be delivered pursuant to these Sections 6.1.1, 6.1.2, and 6.1.7 shall be deemed to have been delivered on the date on which the Borrower provides notice to the Lenders that such information has been posted on the Securities and Exchange Commission website on the Internet at ▇▇▇.▇▇▇/▇▇▇▇▇/▇▇▇▇▇▇▇▇.▇▇▇, on the Borrower’s IntraLinks site at ▇▇▇▇▇▇▇.▇▇▇.▇▇▇ or at another website identified such other websites as notified to the Agent, in such notice each case to which each Lender and accessible by the Lenders without charge; provided that (i) such notice may be included in a certificate delivered pursuant to Section 6.1.3 and such notice or certificate Agent have access, which shall also be deemed to have been delivered upon being posted to satisfied the Borrower’s IntraLinks site or requirements of delivery of such other website and (ii) the Borrower shall deliver paper copies of the information referred to items in Sections 6.1.1, 6.1.2 and 6.1.7 to any Lender which requests such deliveryaccordance with this Section.
Appears in 2 contracts
Sources: Five Year Credit Agreement (General Dynamics Corp), 364 Day Credit Agreement (General Dynamics Corp)
Financial Reporting. The Borrower will maintain, for itself and each Subsidiary, a system of accounting established and administered in accordance with GAAP, and furnish shall deliver to the Agent and the LendersLender:
6.1.1 Within ninety (90i) as soon as available and in any event within five (5) days after the close same is required to be filed with the Securities and Exchange Commission (but in no event later than fifty (50) days after the end of each of its the first, second and third fiscal yearsquarters of Borrower), financial statements prepared in accordance with GAAP on a the unaudited consolidated basis for itself balance sheet of Borrower and its SubsidiariesSubsidiaries as at the end of such period and the related unaudited consolidated statements of income, including balance sheets shareholders’ equity and cash flows of Borrower and its Subsidiaries for such period, setting forth in each case in comparative form the figures as of the end of and for the corresponding periods of the previous fiscal year, all of which shall be certified by the chief executive officer or chief financial officer of Borrower, in his or her opinion, to present fairly, in accordance with GAAP and in all material respects, the consolidated financial position of Borrower and its Subsidiaries as at the date thereof and the results of operations for such periodperiod (subject to normal year-end audit adjustments);
(ii) as soon as available and in any event within five (5) days after the same is required to be filed with the Securities and Exchange Commission (but in no event later than ninety-five (95) days after the end of each fiscal year of Borrower), the audited consolidated balance sheet of Borrower and its Subsidiaries as at the end of such fiscal year and the related audited consolidated statements of income income, shareholders’ equity and statements cash flows of cash flowsBorrower and its Subsidiaries for such fiscal year, setting forth in comparative form the figures as at the end of and for the preceding previous fiscal year, all of which shall be (a) certified by the chief executive officer or chief financial officer of Borrower, in his or her opinion, to present fairly, in accordance with GAAP and in all material respects, the consolidated financial position of Borrower and its Subsidiaries as at the date thereof and the results of operations for such period and (b) accompanied by an audit reportthe report thereon of independent certified public accountants of recognized national standing acceptable to Lender, consistent whose certificate shall be unqualified;
(iii) as soon as available and in any event within five (5) days after the same is filed with the requirements of the Securities and Exchange Commission, notice of a nationally recognized firm the filing of independent public accountants all registration statements, reports on Forms 10-K, 10-Q and 8-K (or their equivalents) and all other independent public accountants reasonably acceptable to periodic reports which Borrower or any Subsidiary shall file with the Required Lenders.Securities and Exchange Commission (or any Governmental Authority substituted therefor);
6.1.2 Within forty-(iv) within five (455) days after the close of the first three quarterly periods of each of its fiscal years, financial statements prepared in accordance with GAAP (other than with regard to the absence of footnotes and subject to changes resulting from audit and normal year-end audit adjustments to same) on a consolidated basis for itself and its Subsidiaries, including, consolidated unaudited balance sheets as at the close of each such period and consolidated unaudited statements of income and a statement of cash flows for the period from the beginning of such fiscal year to the end of such quartereach calendar month, in each case setting forth in comparative form figures for the corresponding period of the preceding fiscal year, and accompanied by a certificate of the chief financial officer or treasurer of the Borrower to the effect that such quarterly financial statements fairly present in all material respects the financial condition of the Borrower and its Subsidiaries and have been prepared in accordance with GAAP (other than with regard to the absence of footnotes and subject to changes resulting from audit and normal year-end audit adjustments to same).
6.1.3 Together with the financial statements required under Sections 6.1.1 and 6.1.2, (i) a compliance certificate in substantially the form of Exhibit B signed by an Authorized Officer (a) showing the calculations necessary to determine compliance with Section 6.16, (b) stating that no Default or Unmatured Default exists, or if any Default or Unmatured Default exists, stating the nature and status thereof and (c) updating Schedule 1 with respect to its Subsidiaries, Material Subsidiaries and Excluded Subsidiaries, if appropriate and (ii) such financial information as reasonable requested by the Agent, including, but not limited to consolidating monthly financial statements, as is necessary to account for Excluded Indebtedness and Excluded EBITDA for purposes of determining the Consolidated Leverage Ratio.; and
6.1.4 If requested, within 270 days after the close of each fiscal year of the Borrower, a copy of the actuarial report showing the Unfunded Liabilities of each Single Employer Plan as of the valuation date occurring in such fiscal year, certified by an actuary enrolled under ERISA.
6.1.5 As soon as possible and in any event within ten (10v) days after an Authorized Officer knows that any Reportable Event has occurred with respect to any Plan that could reasonably be expected to have a Material Adverse Effect, a statement, signed by an Authorized Officer, describing said Reportable Event and the action which the Borrower proposes to take with respect thereto.
6.1.6 From from time to time such additional information regarding the financial position or business of the Borrower and its Subsidiaries as the Agent, at the request of any Lender, Lender may reasonably request, including the support for any pro forma calculations hereunder.
6.1.7 Promptly, upon the filing thereof, copies of all registration statements (other than any registration statement on Form S-8 and any registration statement in connection with a dividend reinvestment plan, shareholder purchase plan or employee benefit plan) and reports on form 10-K, 10-Q or 8-K (or their equivalents) which the Borrower or any of its Subsidiaries files with the Securities and Exchange Commission.
6.1.8 Promptly, information regarding any change in the Borrower’s Debt Rating. Information required to be delivered pursuant to these Sections 6.1.1, 6.1.2, and 6.1.7 shall be deemed to have been delivered on the date on which the Borrower provides notice to the Lenders that such information has been posted on the Securities and Exchange Commission website on the Internet at ▇▇▇.▇▇▇/▇▇▇▇▇/▇▇▇▇▇▇▇▇.▇▇▇, on the Borrower’s IntraLinks site at ▇▇▇▇▇▇▇▇▇▇.▇▇▇ or at another website identified in such notice and accessible by the Lenders without charge; provided that (i) such notice may be included in a certificate delivered pursuant to Section 6.1.3 and such notice or certificate shall also be deemed to have been delivered upon being posted to the Borrower’s IntraLinks site or such other website and (ii) the Borrower shall deliver paper copies of the information referred to in Sections 6.1.1, 6.1.2 and 6.1.7 to any Lender which requests such delivery.
Appears in 2 contracts
Sources: Credit Agreement (Nevada Property 1 LLC), Credit Agreement (Nevada Property 1 LLC)
Financial Reporting. The Borrower Guarantor shall deliver or cause to be delivered the following to Buyer; provided that Guarantor will maintainnot be required to deliver any of the following to Buyer if Guarantor, for itself and each Subsidiaryas applicable, a system of accounting established and administered in accordance with GAAP, and furnish has delivered such item to Buyer pursuant to the Agent and terms of the LendersQuicken Repurchase Agreement:
6.1.1 Within ninety (90i) days after the close of each of its fiscal years, financial statements prepared in accordance with GAAP on a consolidated basis for itself and its Subsidiaries, including balance sheets as of the end of such period, statements of income and statements of cash flows, setting forth in comparative form figures for the preceding fiscal year, accompanied by an audit report, consistent with the requirements of the Securities and Exchange Commission, of a nationally recognized firm of independent public accountants or other independent public accountants reasonably acceptable to the Required Lenders.
6.1.2 Within forty-five (45) days after the close end of the first three quarterly periods each calendar month, (1) consolidated and consolidating statements of income and changes in shareholders’ equity and cash flows for such month of Guarantor and Guarantor’s consolidated Subsidiaries and (2) statements of income and changes in shareholders’ equity and cash flows for such month of each of its Guarantor’s Subsidiaries (excluding any Subsidiary that is only a holding company), and for each of Guarantor and such Subsidiaries, the related balance sheet as at the end of such month, all in reasonable detail, prepared in accordance with GAAP, subject to year-end adjustments and a lack of footnotes;
(ii) Within ninety (90) days after (1) Guarantor’s fiscal yearsyear end, financial consolidated and consolidating statements of income, changes in shareholders’ equity and cash flows of Guarantor and Guarantor’s consolidated Subsidiaries for such fiscal year, and (2) the fiscal year end of each Subsidiary of Guarantor, statements of income, changes in shareholders’ equity and cash flows of such Subsidiary (excluding any Subsidiary that is only a holding company), and for each of Guarantor and such Subsidiaries, the related balance sheet as at the end of such fiscal year (setting forth in comparative form the corresponding figures for the preceding fiscal year), all in reasonable detail, prepared in accordance with GAAP and an opinion prepared by an accounting firm reasonably satisfactory to Buyer, or other independent certified public accountants of recognized standing selected by Guarantor, as to Guarantor’s and Guarantor’s consolidated Subsidiaries financial statements and, only if Guarantor elects to have them audited, as to such Subsidiaries’ financial statements;
(other than iii) Together with regard to the absence each delivery of footnotes financial statements required in Sections 14(e)(i) and subject to changes resulting from audit and normal year-end audit adjustments to same) on 14(e)(ii), a consolidated basis for itself and its Subsidiaries, including, consolidated unaudited balance sheets as at the close of each such period and consolidated unaudited statements of income and a statement of cash flows for the period from the beginning of such fiscal year to the end of such quarter, in each case setting forth in comparative form figures for the corresponding period of the preceding fiscal year, and accompanied Compliance Certificate executed by a certificate of the chief financial officer, chief executive officer or treasurer president of Guarantor, on behalf of Guarantor;
(iv) Photocopies or electronic copies of all regular or periodic financial and other reports, if any, that Guarantor shall file with the SEC, not later than thirty (30) days after filing;
(v) Photocopies or electronic copies of the Borrower relevant portions of any final written audits completed by any Agency of Guarantor that provide for material corrective action, material sanctions or classifications of the quality of Guarantor’s operations, not later than five (5) Business Days after receiving such audit;
(vi) Weekly (and more frequently if reasonably requested by Buyer), a hedging report in a form mutually agreed to between Buyer and Guarantor; and
(vii) From time to time, with reasonable promptness, such further information regarding the effect that such quarterly financial statements fairly present in all material respects Pledged Items, or the business, operations, properties or financial condition of the Borrower and its Subsidiaries and have been prepared in accordance with GAAP (other than with regard to the absence of footnotes and subject to changes resulting from audit and normal year-end audit adjustments to same).
6.1.3 Together with the financial statements required under Sections 6.1.1 and 6.1.2, (i) a compliance certificate in substantially the form of Exhibit B signed by an Authorized Officer (a) showing the calculations necessary to determine compliance with Section 6.16, (b) stating that no Default or Unmatured Default exists, or if any Default or Unmatured Default exists, stating the nature and status thereof and (c) updating Schedule 1 with respect to its Subsidiaries, Material Subsidiaries and Excluded Subsidiaries, if appropriate and (ii) such financial information Guarantor as reasonable requested by the Agent, including, but not limited to consolidating financial statements, as is necessary to account for Excluded Indebtedness and Excluded EBITDA for purposes of determining the Consolidated Leverage Ratio.
6.1.4 If requested, within 270 days after the close of each fiscal year of the Borrower, a copy of the actuarial report showing the Unfunded Liabilities of each Single Employer Plan as of the valuation date occurring in such fiscal year, certified by an actuary enrolled under ERISA.
6.1.5 As soon as possible and in any event within ten (10) days after an Authorized Officer knows that any Reportable Event has occurred with respect to any Plan that could reasonably be expected to have a Material Adverse Effect, a statement, signed by an Authorized Officer, describing said Reportable Event and the action which the Borrower proposes to take with respect thereto.
6.1.6 From time to time such additional information regarding the financial position or business of the Borrower and its Subsidiaries as the Agent, at the request of any Lender, Buyer may reasonably request, including the support for any pro forma calculations hereunder.
6.1.7 Promptly, upon the filing thereof, copies of all registration statements (other than any registration statement on Form S-8 and any registration statement in connection with a dividend reinvestment plan, shareholder purchase plan or employee benefit plan) and reports on form 10-K, 10-Q or 8-K (or their equivalents) which the Borrower or any of its Subsidiaries files with the Securities and Exchange Commission.
6.1.8 Promptly, information regarding any change in the Borrower’s Debt Rating. Information required to be delivered pursuant to these Sections 6.1.1, 6.1.2, and 6.1.7 shall be deemed to have been delivered on the date on which the Borrower provides notice to the Lenders that such information has been posted on the Securities and Exchange Commission website on the Internet at ▇▇▇.▇▇▇/▇▇▇▇▇/▇▇▇▇▇▇▇▇.▇▇▇, on the Borrower’s IntraLinks site at ▇▇▇▇▇▇▇▇▇▇.▇▇▇ or at another website identified in such notice and accessible by the Lenders without charge; provided that (i) such notice may be included in a certificate delivered pursuant to Section 6.1.3 and such notice or certificate shall also be deemed to have been delivered upon being posted to the Borrower’s IntraLinks site or such other website and (ii) the Borrower shall deliver paper copies of the information referred to in Sections 6.1.1, 6.1.2 and 6.1.7 to any Lender which requests such delivery.
Appears in 2 contracts
Sources: Master Repurchase Agreement (Rocket Companies, Inc.), Master Repurchase Agreement (Rocket Companies, Inc.)
Financial Reporting. The Borrower will maintain, for itself and each Subsidiary, a system of accounting established and administered in accordance with GAAPgenerally accepted accounting principles, and will furnish to the Administrative Agent and for further distribution to the LendersLenders the following:
6.1.1 Within ninety (90a) within 90 days after the close of each fiscal year of its fiscal yearsthe Borrower, financial statements an audit report certified by independent certified public accountants of recognized national standing (which in each case shall be without a “going concern” or like qualification or exception and without any qualification or exception as to the scope of such audit), prepared in accordance with GAAP on a consolidated and consolidating basis (consolidating statements need not be certified by such accountants) for itself the Borrower and its Subsidiaries, including balance sheets as of the end of such period, statements related profit and loss and reconciliation of income surplus statements, and statements a statement of cash flows, setting forth in comparative form figures for the preceding fiscal yearflows on a consolidated and consolidating basis, accompanied by an audit report, consistent with the requirements of the Securities and Exchange Commission, of a nationally recognized firm of independent public any final management letter prepared by said accountants or other independent public accountants reasonably acceptable to the Required Lenders.Borrower;
6.1.2 Within forty-five (45b) within 45 days after the close of the first three quarterly periods of each of its the Borrower’s fiscal yearsyears (commencing with the first fiscal quarter ending after the Amendment Effective Date), financial statements prepared in accordance with GAAP (other than with regard to for the absence of footnotes and subject to changes resulting from audit and normal year-end audit adjustments to same) on a consolidated basis for itself Borrower and its Subsidiaries, including, consolidated and consolidating unaudited balance sheets as at the close of each such period period, consolidated and consolidated unaudited consolidating profit and loss and reconciliation of surplus statements of income and a consolidated and consolidating statement of cash flows for the period from the beginning of such fiscal year to the end of such quarter, certified by a Financial Officer of the Borrower as in each case setting forth in comparative form figures for the corresponding period of the preceding fiscal yearfairly presenting, and accompanied by a certificate of the chief financial officer or treasurer of the Borrower to the effect that such quarterly financial statements fairly present in all material respects respects, the consolidated financial condition of the Borrower and its consolidated Subsidiaries and have been prepared in accordance with GAAP (other than with regard to the absence of footnotes and subject to changes resulting from audit and normal year-end audit adjustments to same).and the absence of footnotes) and having been prepared in reasonable detail;
6.1.3 Together (c) [Reserved];
(d) together with the financial statements required under Sections 6.1.1 6.01(a) and 6.1.2(b), (i) a compliance certificate in substantially the form of Exhibit B E signed by an Authorized a Financial Officer (a) showing the calculations necessary to determine compliance with Section 6.16this Agreement (including, (bfor fiscal periods ending prior to the Revolver Termination Date, Sections 6.22(a), 6.22(b), 6.22(c) and 6.22(d)) and stating that no Default or Unmatured Default exists, or if any Default or Unmatured Default exists, stating the nature and status thereof thereof;
(e) within 60 days after the commencement of each fiscal year of the Borrower and (c) updating Schedule 1 with respect to its Subsidiaries, Material a financial forecast of the Borrower and its Subsidiaries and Excluded Subsidiaries, if appropriate and for such fiscal year;
(iif) such financial information as reasonable requested by the Agent, including, but not limited to consolidating financial statements, as is necessary to account for Excluded Indebtedness and Excluded EBITDA for purposes of determining the Consolidated Leverage Ratio.
6.1.4 If requested, within 270 days after the close of each fiscal year of the Borroweryear, a copy statement of the actuarial report showing the Unfunded Liabilities of each Single Employer Plan as of the valuation date occurring in such fiscal yearPlan, certified as correct by an actuary enrolled under ERISA.;
6.1.5 As soon as possible and in any event (g) within ten (10) days 30 Business Days after an Authorized Officer the Borrower knows that any Reportable Event has occurred with respect to any Plan that could reasonably be expected to have a Material Adverse EffectSingle Employer Plan, a statement, signed by an Authorized Officer, a Financial Officer of the Borrower describing said Reportable Event and the action which the Borrower or any Affiliate of the Borrower proposes to take with respect thereto.;
6.1.6 From time to time such additional information regarding the financial position or business of the Borrower and its Subsidiaries as the Agent, at the request of any Lender, may reasonably request, including the support for any pro forma calculations hereunder.
6.1.7 Promptly, (h) promptly upon the filing thereof, copies electronic notice to the Administrative Agent of the filing of all proxy statements, registration statements (other than any registration statement on Form S-8 and any registration statement in connection with a dividend reinvestment plan, shareholder purchase plan or employee benefit plan) periodic and current reports on form forms 10-K, 10-Q or 10Q and 8-K (or their equivalents) which the Borrower or any of its Subsidiaries files with the Securities SEC;
(i) as soon as possible and Exchange Commission.in any event on the later of (i) 30 days following the occurrence of the following events or (ii) the first date required for delivery of the financial statements pursuant to Section 6.01(a) or 6.01(b) after the occurrence of the following events, written notice of the creation, establishment or acquisition of any Subsidiary or the issuance by or to the Borrower or any of its Subsidiaries of any Capital Stock; and
6.1.8 Promptly, (j) such other information regarding (including non-financial information) as the Administrative Agent or any change in the Borrower’s Debt RatingLender may from time to time reasonably request. Information required to be delivered pursuant to these Sections 6.1.1, 6.1.2, and 6.1.7 this Section 6.01 shall be deemed to have been delivered if such information, or one or more annual or quarterly reports containing such information, shall have been posted by the Administrative Agent on an IntraLinks or similar site to which the Lenders have been granted access or such reports shall be available on the date on which website of the Borrower provides notice to the Lenders that such information has been posted on the Securities and Exchange Commission website on the Internet SEC at ▇▇▇▇://▇▇▇.▇▇▇/.▇▇▇ or on the website of the Borrower at ▇▇▇▇▇/▇▇▇▇▇://▇▇▇.▇▇▇, on the Borrower’s IntraLinks site at ▇▇▇▇▇▇▇▇▇▇.▇▇▇ or at another website identified in and the Borrower has given notice that such notice and accessible by the Lenders without charge; provided that (i) such notice may reports are so available. Information required to be included in a certificate delivered pursuant to this Section 6.1.3 may also be delivered by electronic communications pursuant to procedures approved by the Administrative Agent. If any information which is required to be furnished to the Lenders under this Section 6.01 is required by law or regulation to be filed by the Borrower or the Borrower with a government body on an earlier date, then the information required hereunder shall be furnished to the Lenders at such earlier date (which delivery may be by electronic communication including fax or email and such notice or certificate shall also be deemed to have been delivered upon being posted to the Borrower’s IntraLinks site or such other website and (ii) the Borrower shall deliver paper copies of the information referred to in Sections 6.1.1, 6.1.2 and 6.1.7 to any Lender which requests such deliverybe an original authentic counterpart thereof for all purposes).
Appears in 2 contracts
Sources: Credit Agreement (Moneygram International Inc), Credit Agreement (Moneygram International Inc)
Financial Reporting. The Borrower will maintain, for itself and each Subsidiary, a system of accounting established and administered in accordance with GAAPgenerally accepted accounting principles, and furnish to the Agent and the Lenders:
6.1.1 (i) Within ninety (90) 90 days after the close of each of its fiscal years, financial statements an unqualified (except for qualifications relating to changes in accounting principles or practices reflecting changes in generally accepted accounting principles and required or approved by the Borrower's independent certified public accountants) audit report certified by independent certified public accountants acceptable to the Lenders, prepared in accordance with GAAP Agreement Accounting Principles on a consolidated and consolidating basis (provided that consolidating statements may be internally prepared and do not need to be certified by such accountants and shall not be required to be delivered until 100 days after the close of each fiscal year) for itself and its Subsidiaries, including balance sheets as of the end of such period, statements related profit and loss and reconciliation of income surplus statements, and statements a statement of cash flows, setting forth in comparative form figures for the preceding fiscal year, accompanied by an audit report, consistent with the requirements of the Securities and Exchange Commission, of a nationally recognized firm of independent public accountants or other independent public accountants reasonably acceptable to the Required Lendersany management letter prepared by said accountants.
6.1.2 (ii) Within forty-five 45 days (45or 60 days in the case of consolidating statements) days after the close of the first three quarterly periods of each of its fiscal years, financial statements prepared in accordance with GAAP (other than with regard to the absence of footnotes and subject to changes resulting from audit and normal year-end audit adjustments to same) on a consolidated basis for itself and its Subsidiaries, including, consolidated and consolidating unaudited balance sheets as at the close of each such period and consolidated unaudited and consolidating profit and loss and reconciliation of surplus statements of income and a statement of cash flows for the period from the beginning of such fiscal year to the end of such quarter, in each case setting forth in comparative form figures for the corresponding period of the preceding fiscal year, and accompanied all certified by a certificate of the its chief financial officer or treasurer of the Borrower to the effect that such quarterly financial statements fairly present in all material respects the financial condition of the Borrower and its Subsidiaries and have been prepared in accordance with GAAP (other than with regard to the absence of footnotes and subject to changes resulting from audit and normal year-end audit adjustments to same)officer.
6.1.3 (iii) Together with the financial statements required under Sections 6.1.1 6.1(i) and 6.1.2(ii), (i) a compliance certificate in substantially the form of Exhibit B signed by an Authorized Officer (a) its chief financial officer showing the calculations necessary to determine compliance with Section 6.16, (b) this Agreement and stating that no Default or Unmatured Default exists, or if any Default or Unmatured Default exists, stating the nature and status thereof thereof.
(iv) Within 30 Business Days after the end of each month, a Borrowing Base Certificate prepared as of the close of business on the last day of each month and (c) updating Schedule 1 with respect to its Subsidiaries, Material Subsidiaries and Excluded Subsidiaries, if appropriate and (ii) such financial information as reasonable supporting schedules requested by the Agent, including, but not limited to consolidating certified as true and correct by the chief financial statements, as is necessary to account for Excluded Indebtedness and Excluded EBITDA for purposes officer of determining the Consolidated Leverage RatioBorrower.
6.1.4 If requested, within (v) Within 270 days after the close of each fiscal year of the Borroweryear, a copy statement of the actuarial report showing the Unfunded Liabilities of each Single Employer Plan as of the valuation date occurring in such fiscal yearPlan, certified as correct by an actuary enrolled under ERISA.
6.1.5 (vi) As soon as possible and in any event within ten (10) 15 days after an Authorized Officer the Borrower knows that any Reportable Event has occurred with respect to any Plan that could reasonably be expected to have a Material Adverse EffectPlan, a statement, signed by an Authorized Officerthe chief financial officer of the Borrower, describing said Reportable Event and the action which the Borrower proposes to take with respect thereto.
6.1.6 From time (vii) As soon as possible and in any event within 15 days after receipt by the Borrower, a copy of (a) any notice or claim to time such additional information regarding the financial position effect that the Borrower or business any of its Subsidiaries is or may be liable to any Person as a result of the Borrower and release by the Borrower, any of its Subsidiaries as the AgentSubsidiaries, at the request or any other Person of any Lendertoxic or hazardous waste or substance into the environment, may and (b) any notice alleging any violation of any federal, state or local environmental, health or safety law or regulation by the Borrower or any of its Subsidiaries, which, in either case, could reasonably request, including the support for any pro forma calculations hereunderbe expected to have a Material Adverse Effect.
6.1.7 Promptly(viii) Promptly upon the furnishing thereof to the shareholders of the Borrower, copies of all financial statements, reports and proxy statements so furnished.
(ix) Promptly upon the filing thereof, copies of all registration statements (and annual, quarterly, monthly or other than any registration statement on Form S-8 and any registration statement in connection with a dividend reinvestment plan, shareholder purchase plan or employee benefit plan) and regular reports on form 10-K, 10-Q or 8-K (or their equivalents) which the Borrower or any of its Subsidiaries files with the Securities and Exchange Commission.
6.1.8 Promptly, (x) Such other information regarding any change in (including non-financial information) as the Borrower’s Debt Rating. Information required to be delivered pursuant to these Sections 6.1.1, 6.1.2, and 6.1.7 shall be deemed to have been delivered on the date on which the Borrower provides notice to the Lenders that such information has been posted on the Securities and Exchange Commission website on the Internet at ▇▇▇.▇▇▇/▇▇▇▇▇/▇▇▇▇▇▇▇▇.▇▇▇, on the Borrower’s IntraLinks site at ▇▇▇▇▇▇▇▇▇▇.▇▇▇ Agent or at another website identified in such notice and accessible by the Lenders without charge; provided that (i) such notice may be included in a certificate delivered pursuant to Section 6.1.3 and such notice or certificate shall also be deemed to have been delivered upon being posted to the Borrower’s IntraLinks site or such other website and (ii) the Borrower shall deliver paper copies of the information referred to in Sections 6.1.1, 6.1.2 and 6.1.7 to any Lender which requests such deliverymay from time to time reasonably request.
Appears in 2 contracts
Sources: Credit Agreement (Pioneer Standard Electronics Inc), 364 Day Credit Agreement (Pioneer Standard Electronics Inc)
Financial Reporting. The Borrower and the Guarantor will maintain, for itself themselves and each Subsidiary, and shall cause each Qualified Borrower and Investment Affiliate to maintain, a system of accounting established and administered in accordance with GAAP, and shall furnish to the Agent and the Lenders:
6.1.1 Within ninety (90a) days after the close of each of its fiscal yearsAs soon as available, financial statements prepared but in accordance with GAAP on a consolidated basis for itself and its Subsidiaries, including balance sheets as of the end of such period, statements of income and statements of cash flows, setting forth in comparative form figures for the preceding fiscal year, accompanied by an audit report, consistent with the requirements of the Securities and Exchange Commission, of a nationally recognized firm of independent public accountants or other independent public accountants reasonably acceptable to the Required Lenders.
6.1.2 Within any event not later than forty-five (45) days after the close of each fiscal quarter, for the first three quarterly periods Borrower and the Guarantor an unaudited consolidated balance sheet as of each of its fiscal years, financial statements prepared in accordance with GAAP (other than with regard to the absence of footnotes and subject to changes resulting from audit and normal year-end audit adjustments to same) on a consolidated basis for itself and its Subsidiaries, including, consolidated unaudited balance sheets as at the close of each such period and the related unaudited consolidated unaudited statements of income and a statement retained earnings and of cash flows of the Borrower, the Guarantor and their Subsidiaries for such period and the period from portion of the beginning of such fiscal year to through the end of such quarterperiod, setting forth in each case setting forth in comparative form the figures for the corresponding period previous year, including, without limitation, a list of all contingent liabilities, all certified by the preceding Borrower's and the Guarantor's chief Authorized Officers, and, for the Guarantor, as soon as available, but in any event not later than ninety (90) days after the close of each fiscal year, and accompanied similar audited financial statements prepared by a certificate public accounting firm acceptable to the Agent;
(b) As soon as available, but in any event not later than forty-five (45) days after the close of each fiscal quarter, for the Borrower, the Guarantor and their Subsidiaries, related reports in form and substance satisfactory to the Lenders, all certified by the Borrower's and the Guarantor's chief financial officers or chief accounting officers, including a statement of Funds From Operations, Adjusted EBITDA, a listing of capital expenditures (in the level of detail as disclosed in the Borrower's most recent Form 10Q), a report listing and describing all Collateral Pool Properties included in either the Secured or Negative Collateral Pools, including, without limitation, each Collateral Pool Property's name, franchise affiliations, lessee name and address, Adjusted Cash Flow, Borrowing Base, Cost, Property Operating Income, Adjusted EBITDA, lease payments, real estate taxes, calculation of the chief financial officer Capital Expenditure Reserve Amount, management fees, occupancy rates, square footage, date acquired or treasurer completed, and such other information as may be requested to evaluate the quarterly compliance certificate delivered as provided below;
(c) As soon as publicly available but in no event later than the date such reports are to be filed with the Securities Exchange Commission, copies of all Form 1OKs, ▇▇▇▇, 8Ks, and any other annual, quarterly, monthly or other reports, copies of all registration statements and any other public information which the Borrower, the Guarantor or any of their Subsidiaries files with the Securities Exchange Commission and to the extent any of such reports contains information required under the other subsections of this Section 7.1, the information need not be furnished separately under the other subsections;
(d) As soon as available, but in any event not later than ninety (90) days after the close of each fiscal year of the Borrower Borrower, the Guarantor and their Subsidiaries, reports in form and substance satisfactory to the effect that such quarterly financial statements fairly present in all material respects Lenders, certified by their respective Authorized Officers containing Property Operating Income for each Collateral Pool Property;
(e) Not later than forty-five (45) days after the financial condition end of each of the Borrower first three fiscal quarters, and its Subsidiaries and have been prepared in accordance with GAAP not later than ninety (other than with regard to 90) days after the absence end of footnotes and subject to changes resulting from audit and normal the fiscal year-end audit adjustments to same).
6.1.3 Together with the financial statements required under Sections 6.1.1 and 6.1.2, (i) a compliance certificate in substantially the form of Exhibit B C hereto signed by an the Borrower's and the Guarantor's Authorized Officer (a) Officers confirming that the Borrower and the Guarantor are in compliance with all of the covenants of the Loan Documents, showing the calculations and computations necessary to determine compliance with Section 6.16, the financial covenants contained in this Agreement (bincluding such schedules and backup information as may be necessary to demonstrate such compliance) and stating that to such officer's best knowledge, no other Default or Unmatured Default exists, or if any Default or Unmatured Default exists, stating the nature and status thereof and thereof;
(cf) updating Schedule 1 with respect to its Subsidiaries, Material Subsidiaries and Excluded Subsidiaries, if appropriate and (ii) such financial information as reasonable requested by the Agent, including, but not limited to consolidating financial statements, as is necessary to account for Excluded Indebtedness and Excluded EBITDA for purposes of determining the Consolidated Leverage Ratio.
6.1.4 If requested, within 270 days after the close of each fiscal year of the Borrower, a copy of the actuarial report showing the Unfunded Liabilities of each Single Employer Plan as of the valuation date occurring in such fiscal year, certified by an actuary enrolled under ERISA.
6.1.5 As soon as possible and in any event within ten (10) days Business Days after an Authorized Officer the Borrower or the Guarantor knows that any Reportable Event has occurred with respect to any Plan that could reasonably be expected to have a Material Adverse EffectPlan, a statement, signed by an their chief Authorized OfficerOfficers, describing said Reportable Event and the action which the Borrower proposes to take with respect thereto.
6.1.6 From time to time such additional information regarding the financial position or business of the Borrower and its Subsidiaries as the Agent, at the request of any Lender, may reasonably request, including the support for any pro forma calculations hereunder.
6.1.7 Promptly, upon the filing thereof, copies of all registration statements (other than any registration statement on Form S-8 and any registration statement in connection with a dividend reinvestment plan, shareholder purchase plan or employee benefit plan) and reports on form 10-K, 10-Q or 8-K (or their equivalents) which the Borrower or any of its Subsidiaries files with the Securities and Exchange Commission.
6.1.8 Promptly, information regarding any change in the Borrower’s Debt Rating. Information required to be delivered pursuant to these Sections 6.1.1, 6.1.2, and 6.1.7 shall be deemed to have been delivered on the date on which the Borrower provides notice to the Lenders that such information has been posted on the Securities and Exchange Commission website on the Internet at ▇▇▇.▇▇▇/▇▇▇▇▇/▇▇▇▇▇▇▇▇.▇▇▇, on the Borrower’s IntraLinks site at ▇▇▇▇▇▇▇▇▇▇.▇▇▇ or at another website identified in such notice and accessible by the Lenders without charge; provided that (i) such notice may be included in a certificate delivered pursuant to Section 6.1.3 and such notice or certificate shall also be deemed to have been delivered upon being posted to the Borrower’s IntraLinks site or such other website and (ii) the Borrower shall deliver paper copies of the information referred to in Sections 6.1.1, 6.1.2 and 6.1.7 to any Lender which requests such delivery.describing
Appears in 1 contract
Sources: Revolving Credit Agreement (RFS Hotel Investors Inc)
Financial Reporting. The Borrower will maintain, for itself and each Subsidiary, a system of accounting established and administered in accordance with GAAP, and furnish to the Agent and the Lenders:
6.1.1 Within ninety (90i) days after the close of each of its fiscal yearsAs soon as available, financial statements prepared but in accordance with GAAP on a consolidated basis for itself and its Subsidiaries, including balance sheets as of the end of such period, statements of income and statements of cash flows, setting forth in comparative form figures for the preceding fiscal year, accompanied by an audit report, consistent with the requirements of the Securities and Exchange Commission, of a nationally recognized firm of independent public accountants or other independent public accountants reasonably acceptable to the Required Lenders.
6.1.2 Within forty-five (45) any event not later than 45 days after the close of the first three quarterly periods fiscal quarters of each of its fiscal yearsyear, financial statements prepared in accordance commencing with GAAP (other than with regard to the absence of footnotes and subject to changes resulting from audit and normal year-end audit adjustments to same) on a consolidated basis fiscal quarter ended June 30, 2006, for itself the Borrower and its Subsidiaries, including, a copy of Borrower's Financial Statements in the form filed under 10-Q which shall include an unaudited consolidated unaudited balance sheets sheet as at of the close of each such period and the related unaudited consolidated unaudited statements of income and a statement retained earnings and of cash flows for the period from the beginning of such fiscal year to the end of such quarter, in each case setting forth in comparative form figures for the corresponding period of the preceding fiscal year, and accompanied by a certificate of the chief financial officer or treasurer of the Borrower to the effect that such quarterly financial statements fairly present in all material respects the financial condition of the Borrower and its Subsidiaries for such period and have been prepared the portion of the fiscal year through the end of such period, setting forth in accordance with GAAP each case in comparative form the figures for the previous year, all certified by the Borrower's chief financial officer or chief accounting officer;
(ii) As soon as available, but in any event not later than 45 days after the close of the first three fiscal quarters, for the Borrower and its Subsidiaries, a copy of the Borrower's Quarterly Financial Supplement and other than with regard schedules as may be required containing the following reports in form and substance reasonably satisfactory to the absence Lenders, which may be in the form filed as its 10-Q, all certified by the entity's chief financial officer or chief accounting officer: a statement of footnotes Funds From Operations, a statement detailing Consolidated Outstanding Indebtedness, Consolidated Secured Indebtedness, Consolidated Unsecured Indebtedness, Consolidated Cash Flow and subject an Asset Schedule listing all assets and their net operating income with a breakdown between Unencumbered Assets and other assets, and newly acquired Projects, Borrower will provide such other information as may be reasonably requested;
(iii) As soon as available, but in any event not later than 90 days after the close of each fiscal year, for the Borrower and its Subsidiaries, audited annual financial statements in the form filed as 10-K, including a consolidated balance sheet as at the end of such year and the related consolidated statements of income and retained earnings and of cash flows for such year, setting forth in each case in comparative form the figures for the previous year, without a "going concern" or like qualification or exception, or qualification arising out of the scope of the audit, prepared by PricewaterhouseCoopers (or other independent certified public accountants of nationally recognized standing reasonably acceptable to changes resulting from audit and normal year-end audit adjustments to sameAdministrative Agent).;
6.1.3 (iv) Together with the quarterly and annual financial statements required under Sections 6.1.1 and 6.1.2hereunder, (i) a compliance certificate in substantially the form of Exhibit B C hereto signed by an Authorized Officer (a) the Borrower's chief financial officer or chief accounting officer showing the calculations and computations necessary to determine compliance with Section 6.16this Agreement and stating that, (b) stating that to such officer's knowledge, no Default or Unmatured Default exists, or if if, to such officer's knowledge, any Default or Unmatured Default exists, stating the nature and status thereof and thereof;
(cv) updating Schedule 1 with respect to its Subsidiaries, Material Subsidiaries and Excluded Subsidiaries, if appropriate and (ii) such financial information as reasonable requested by the Agent, including, but not limited to consolidating financial statements, as is necessary to account for Excluded Indebtedness and Excluded EBITDA for purposes of determining the Consolidated Leverage Ratio.
6.1.4 If requested, within 270 days after the close of each fiscal year of the Borrower, a copy of the actuarial report showing the Unfunded Liabilities of each Single Employer Plan as of the valuation date occurring in such fiscal year, certified by an actuary enrolled under ERISA.
6.1.5 As soon as possible and in any event within ten (10) 10 days after an Authorized Officer a responsible officer of the Borrower knows that any Reportable Event has occurred with respect to any Plan that could reasonably be expected to have a Material Adverse EffectPlan, a statement, signed by an Authorized Officerthe chief financial officer of the Borrower, describing said Reportable Event and the action which the Borrower proposes to take with respect thereto.;
6.1.6 From time to time such additional information regarding the financial position or business (vi) As soon as possible and in any event within 10 days after receipt by a responsible officer of the Borrower, a copy of (a) any notice or claim to the effect that the Borrower and or any of its Subsidiaries is or may be liable to any Person as a result of the Agentrelease by the Borrower, at the request any of its Subsidiaries, or any other Person of any Lendertoxic or hazardous waste or substance into the environment, may reasonably requestand (b) any notice alleging any violation of any federal, including state or local environmental, health or safety law or regulation by the support for Borrower or any pro forma calculations hereunder.of its Subsidiaries, which, in either case, could have a Material Adverse Effect;
6.1.7 Promptly(vii) Promptly upon the furnishing thereof to the shareholders of the Borrower, copies of all financial statements, reports and proxy statements so furnished;
(viii) Promptly upon the filing thereof, copies of all registration statements (and annual, quarterly, monthly or other than any registration statement on Form S-8 reports and any registration statement in connection with a dividend reinvestment plan, shareholder purchase plan or employee benefit plan) and reports on form 10-K, 10-Q or 8-K (or their equivalents) other public information which the Borrower or any of its Subsidiaries files with the Securities and Exchange Commission.; and
6.1.8 Promptly(ix) Such other information (including, information regarding any change in the Borrower’s Debt Rating. Information required to be delivered pursuant to these Sections 6.1.1without limitation, 6.1.2, and 6.1.7 shall be deemed to have been delivered on the date on which financial statements for the Borrower provides notice to and non-financial information) as the Lenders that such information has been posted on the Securities and Exchange Commission website on the Internet at ▇▇▇.▇▇▇/▇▇▇▇▇/▇▇▇▇▇▇▇▇.▇▇▇, on the Borrower’s IntraLinks site at ▇▇▇▇▇▇▇▇▇▇.▇▇▇ Administrative Agent or at another website identified in such notice and accessible by the Lenders without charge; provided that (i) such notice may be included in a certificate delivered pursuant to Section 6.1.3 and such notice or certificate shall also be deemed to have been delivered upon being posted to the Borrower’s IntraLinks site or such other website and (ii) the Borrower shall deliver paper copies of the information referred to in Sections 6.1.1, 6.1.2 and 6.1.7 to any Lender which requests such deliverymay from time to time reasonably request.
Appears in 1 contract
Sources: Credit Agreement (Developers Diversified Realty Corp)
Financial Reporting. The Borrower represents, warrants and covenants unto Lender that it will maintaindeliver to Lender the following financial information, all of which shall accurately reflect the financial condition of Borrower and the other parties set forth therein at and for itself the periods of time described therein and each Subsidiary, a system of accounting established and administered shall be prepared in accordance with GAAP, and furnish to the Agent and the Lenders:
6.1.1 Within ninety (90) A. As soon as available but in no event later than 120 days after the close of each of its Fiscal Year (beginning with the fiscal yearsyear ending December 31, 2020), consolidated and consolidating financial statements prepared in accordance with GAAP on a consolidated basis for itself of Parent and its SubsidiariesSubsidiaries audited by independent certified public accountants selected by Parent and approved by Lender in writing in its reasonable discretion, including any management letters issued by such certified public accounting firm to Parent, including, but not limited to, (1) a balance sheets as of the end of such periodsheet, statements (2) a statement of income and statements retained earnings, and (3) a statement of cash flows, setting forth in comparative form figures for the preceding fiscal year, accompanied by an audit report, consistent with the requirements of the Securities and Exchange Commission, of a nationally recognized firm of independent public accountants or other independent public accountants reasonably acceptable to the Required Lenders.
6.1.2 Within forty-five (45) B. As soon as available but in no event later than 120 days after the close of each Fiscal Year (beginning with the first three quarterly periods of each of its fiscal yearsyear ending December 31, 2020), consolidated and consolidating financial statements prepared in accordance with GAAP (other than with regard to the absence of footnotes and subject to changes resulting from audit and normal year-end audit adjustments to same) on a consolidated basis for itself Borrower and its SubsidiariesSubsidiaries reviewed by independent certified public accountants selected by Borrower and approved by Lender in writing in its reasonable discretion, including any management letters issued by such certified public accounting firm to Borrower, including, consolidated unaudited but not limited to, (1) a balance sheets as at the close of each such period and consolidated unaudited statements sheet, (2) a statement of income and retained earnings, and (3) a statement of cash flows for the period from the beginning of such fiscal year to flows.
C. As soon as available but in no event later than 45 days after the end of such each calendar quarter, Borrower’s and its Subsidiaries’ internally prepared consolidated and consolidating financial statements, including, but not limited to, (1) a balance sheet, (2) a statement of income and retained Page 45 earnings, (3) a statement of cash flows, and (4) a work in each case setting forth in comparative form figures progress report, all for the corresponding period previous calendar month, and the year-to-date statement for that portion of the preceding fiscal yearFiscal Year then elapsed.
D. Concurrently with the delivery of the financial statements described in Section 9.5(B) above and Section 9.5(C) above, and accompanied by a certificate certificates of the chief financial officer or treasurer any Designated Person of Borrower in form and substance acceptable to Lender, certifying to Lender that, based upon such financial statements, (1) Borrower is in compliance with all financial covenants and ratios contained in this Loan Agreement, together with the calculations for the financial covenants and ratios described therein; and (2) the chief financial officer or such Designated Person, as the case may be, is not aware of any event or occurrence which constitutes an Unmatured Event of Default or Event of Default.
E. As soon as available, but in no event later than 30 days after the end of each calendar month, the following reports for Borrower dated not earlier than the last day of the immediately preceding calendar month (the “Monthly Collateral Reports”):
(1) Accounts receivable aging, (2) Accounts receivable summary report (including a reconciliation of Borrower’s cash and Accounts to Borrower’s general ledger), (3) an Inventory Report, (4) an accounts payable aging and (5) a Borrowing Base Certificate.
F. As soon as available, but in no event later than 60 days after the end of each Fiscal Year, Borrower’s internally prepared financial projections and business plans for the forthcoming year, including, without limitation, (1) a balance sheet, and (2) a statement of income and retained earnings, all for the forthcoming year prepared on a month by month and year-to-date basis.
G. Such other data and information, financial and otherwise as Lender, from time to time, may request, including, without limitation, more frequent financial reporting and reporting with respect to the Collateral. Lender hereby agrees to use commercially reasonable efforts to assure that the information relating to Borrower which (a) is furnished by Borrower to the effect that Lender (or to any affiliate of Lender) pursuant to this Section 9.5; and (b) is non-public, confidential or proprietary in nature, shall be kept confidential by Lender or such quarterly financial statements fairly present in all material respects the financial condition of the Borrower and its Subsidiaries and have been prepared affiliate in accordance with GAAP (other than with regard to the absence of footnotes and subject to changes resulting from audit and normal year-end audit adjustments to same).
6.1.3 Together with the financial statements required under Sections 6.1.1 and 6.1.2applicable law; provided, (i) a compliance certificate in substantially the form of Exhibit B signed by an Authorized Officer (a) showing the calculations necessary to determine compliance with Section 6.16however, (b) stating that no Default or Unmatured Default exists, or if any Default or Unmatured Default exists, stating the nature and status thereof and (c) updating Schedule 1 with respect to its Subsidiaries, Material Subsidiaries and Excluded Subsidiaries, if appropriate and (ii) such financial information as reasonable requested by the Agent, including, but not limited to consolidating financial statements, as is necessary to account for Excluded Indebtedness and Excluded EBITDA for purposes of determining the Consolidated Leverage Ratio.
6.1.4 If requested, within 270 days after the close of each fiscal year of the Borrower, a copy of the actuarial report showing the Unfunded Liabilities of each Single Employer Plan as of the valuation date occurring in such fiscal year, certified by an actuary enrolled under ERISA.
6.1.5 As soon as possible and in any event within ten (10) days after an Authorized Officer knows that any Reportable Event has occurred with respect to any Plan that could reasonably be expected to have a Material Adverse Effect, a statement, signed by an Authorized Officer, describing said Reportable Event and the action which the Borrower proposes to take with respect thereto.
6.1.6 From time to time such additional information regarding the financial position or business of the Borrower and its Subsidiaries as the Agent, at the request of any Lender, may reasonably request, including the support for any pro forma calculations hereunder.
6.1.7 Promptly, upon the filing thereof, copies of all registration statements (other than any registration statement on Form S-8 and any registration statement in connection with a dividend reinvestment plan, shareholder purchase plan or employee benefit plan) and reports on form 10-K, 10-Q or 8-K (or their equivalents) which the Borrower or any of its Subsidiaries files with the Securities and Exchange Commission.
6.1.8 Promptly, information regarding any change in the Borrower’s Debt Rating. Information required to be delivered pursuant to these Sections 6.1.1, 6.1.2, and 6.1.7 shall be deemed to have been delivered on the date on which the Borrower provides notice to the Lenders that such information has been posted on the Securities and Exchange Commission website on the Internet at ▇▇▇.▇▇▇/▇▇▇▇▇/▇▇▇▇▇▇▇▇.▇▇▇, on the Borrower’s IntraLinks site at ▇▇▇▇▇▇▇▇▇▇.▇▇▇ or at another website identified in such notice and accessible by the Lenders without charge; provided that (i) such notice other credit information relating to Borrower may be included in a certificate delivered pursuant to Section 6.1.3 and such notice or certificate shall also be deemed to have been delivered upon being posted to the Borrower’s IntraLinks site distributed by Lender or such affiliate to Lender’s or such affiliate’s directors, managers, officers, employees, attorneys, affiliates, assignees, participants, auditors, agents and regulators, and upon the order of a court or other website governmental agency having jurisdiction over Lender or such affiliate, to any other party. In addition such information and (ii) the Borrower shall deliver paper copies other credit information may be distributed by Lender to potential participants or assignees of any portion of the information referred Liabilities, provided, that such potential participant or assignee agrees to in Sections 6.1.1, 6.1.2 and 6.1.7 to any Lender which requests such deliveryfollow the confidentiality requirements set forth herein.
Appears in 1 contract
Sources: Loan and Security Agreement (Better Choice Co Inc.)
Financial Reporting. The Borrower will maintain, for itself and each Subsidiary, a system of accounting established and administered in accordance with GAAPthe Agreement Accounting Principles, and furnish to the Administrative Agent and in sufficient copies for each of the Lenders:
6.1.1 (i) Within ninety (90) 120 days after the close of each of its fiscal yearsyears (or, financial statements if earlier, within 30 days after the Borrower is required to file its annual Report on 10K with the Securities and Exchange Commission for such fiscal year), an unqualified (except for qualifications relating to changes in Agreement Accounting Principles or practices reflecting changes in Agreement Accounting Principles and required or approved by the Borrower's independent certified public accountants) audit report certified by independent certified public accountants reasonably acceptable to the Lenders, prepared in accordance with GAAP the Agreement Accounting Principles on a consolidated and consolidating basis (consolidating statements need not be certified by such accountants) for itself and its Subsidiaries, including balance sheets as of the end of such period, statements related profit and loss and reconciliation of income surplus statements, and statements a statement of cash flows, setting forth in comparative form figures for . Delivery by the preceding fiscal year, accompanied by an audit report, consistent Borrower to the Administrative Agent of copies of the Borrower's Annual Report to Shareholders and its annual Report on Form 10-K filed with the requirements of the Securities and Exchange Commission, of a nationally recognized firm of independent public accountants or other independent public accountants reasonably acceptable Commission for any year shall satisfy the Borrower's obligation under this clause (i) with respect to the Required Lenderssuch year.
6.1.2 (ii) Within forty-five (45) 60 days after the close of the first three quarterly period of each of its fiscal years (or, if earlier, within 15 days after the Borrower is required to file its Quarterly Report on Form 10-Q for with the Securities and Exchange Commission for such period), consolidated and consolidating unaudited balance sheets as at the close of each the first three quarterly periods of each of its fiscal years, financial statements prepared in accordance with GAAP (other than with regard to the absence of footnotes and subject to changes resulting from audit and normal year-end audit adjustments to same) on a consolidated basis for itself and its Subsidiaries, including, consolidated unaudited balance sheets as at the close of each such period Subsidiaries and consolidated unaudited and consolidating profit and loss and reconciliation of surplus statements of income and a statement of cash flows for the period from the beginning of such fiscal year to the end of such quarter, in each case setting forth in comparative form figures for the corresponding period of the preceding fiscal year, and accompanied all certified by a certificate of the chief financial officer or treasurer of an Authorized Officer. Delivery by the Borrower to the effect that such quarterly financial statements fairly present in all material respects the financial condition Administrative Agent of copies of the Borrower Borrower's Quarterly Report on Form 10-Q filed with the Securities and its Subsidiaries and have been prepared in accordance Exchange Commission for any quarter shall satisfy the Borrower's obligation under the clause (ii) with GAAP (other than with regard respect to the absence of footnotes and subject to changes resulting from audit and normal year-end audit adjustments to same)such quarter.
6.1.3 (iii) Together with the financial statements required under Sections 6.1.1 6.1(i) and 6.1.2(ii), (iA) a compliance certificate in substantially the form of Exhibit B signed by an Authorized Officer (a) showing the calculations necessary to determine compliance with Section 6.16, (b) this Agreement and stating that no Default or Unmatured Default exists, or if any Default or Unmatured Default exists, stating the nature and status thereof and (cB) updating Schedule 1 with respect to its Subsidiaries, Material Subsidiaries and Excluded Subsidiaries, if appropriate and (iia calculation of the Indebtedness secured by Liens permitted under Section 6.11(xiii) in such financial information as reasonable requested by the Agent, including, but not limited to consolidating financial statements, form as is necessary reasonably satisfactory to account for Excluded Indebtedness and Excluded EBITDA for purposes of determining the Consolidated Leverage RatioAdministrative Agent.
6.1.4 If requested, within 270 days after the close of each fiscal year of the Borrower, a copy of the actuarial report showing the Unfunded Liabilities of each Single Employer Plan as of the valuation date occurring in such fiscal year, certified by an actuary enrolled under ERISA.
6.1.5 (iv) As soon as possible and in any event within ten (10) 10 days after an Authorized Officer the Borrower knows that any Reportable Event has occurred with respect to any Plan that could reasonably be expected to have a Material Adverse EffectPlan, a statement, signed by an Authorized Officer, describing said Reportable Event and the action which the Borrower proposes to take with respect thereto.
6.1.6 From time (v) As soon as possible and in any event within 10 days after receipt by the Borrower, a copy of (a) any notice or claim to time such additional information regarding the financial position effect that the Borrower or business any of its Subsidiaries is or may be liable to any Person as a result of the Borrower and release by the Borrower, any of its Subsidiaries as the AgentSubsidiaries, at the request or any other Person of any Lendertoxic or hazardous waste or substance into the environment, may and (b) any notice alleging any violation of any federal, state or local environmental, health or safety law or regulation by the Borrower or any of its Subsidiaries, which, in either case, could reasonably request, including the support for any pro forma calculations hereunderbe expected to have a Material Adverse Effect.
6.1.7 Promptly(vi) Promptly upon the furnishing thereof to the shareholders of the Borrower, copies of all financial statements, reports and proxy statements so furnished.
(vii) Promptly upon the filing thereof, copies of all registration statements (and annual, quarterly, monthly or other than any registration statement on Form S-8 and any registration statement in connection with a dividend reinvestment plan, shareholder purchase plan or employee benefit plan) and regular reports on form 10-K, 10-Q or 8-K (or their equivalents) which the Borrower or any of its Subsidiaries files with the Securities and Exchange Commission.
6.1.8 Promptly, (viii) Such other information regarding any change in (including nonfinancial information) as the Borrower’s Debt Rating. Information required to be delivered pursuant to these Sections 6.1.1, 6.1.2, and 6.1.7 shall be deemed to have been delivered on the date on which the Borrower provides notice to the Lenders that such information has been posted on the Securities and Exchange Commission website on the Internet at ▇▇▇.▇▇▇/▇▇▇▇▇/▇▇▇▇▇▇▇▇.▇▇▇, on the Borrower’s IntraLinks site at ▇▇▇▇▇▇▇▇▇▇.▇▇▇ Administrative Agent or at another website identified in such notice and accessible by the Lenders without charge; provided that (i) such notice may be included in a certificate delivered pursuant to Section 6.1.3 and such notice or certificate shall also be deemed to have been delivered upon being posted to the Borrower’s IntraLinks site or such other website and (ii) the Borrower shall deliver paper copies of the information referred to in Sections 6.1.1, 6.1.2 and 6.1.7 to any Lender which requests such deliverymay from time to time reasonably request.
Appears in 1 contract
Sources: Credit Agreement (Idaho Power Co)
Financial Reporting. The Borrower will maintain, for itself and each Subsidiary, a system of accounting established and administered in accordance with GAAP, and furnish to the Agent and the Lenders:
6.1.1 Within ninety (90i) days after the close of each of its fiscal yearsAs soon as available, financial statements prepared but in accordance with GAAP on a consolidated basis for itself and its Subsidiaries, including balance sheets as of the end of such period, statements of income and statements of cash flows, setting forth in comparative form figures for the preceding fiscal year, accompanied by an audit report, consistent with the requirements of the Securities and Exchange Commission, of a nationally recognized firm of independent public accountants or other independent public accountants reasonably acceptable to the Required Lenders.
6.1.2 Within forty-five (45) any event not later than 45 days after the close of the first three quarterly periods fiscal quarters of each of its fiscal yearsyear, financial statements prepared in accordance commencing with GAAP (other than with regard to the absence of footnotes and subject to changes resulting from audit and normal year-end audit adjustments to same) on a consolidated basis fiscal quarter ended June 30, 2006, for itself the Borrower and its Subsidiaries, including, a copy of Borrower’s Financial Statements in the form filed under 10-Q which shall include an unaudited consolidated unaudited balance sheets sheet as at of the close of each such period period, which may be in the form filed as its 10-Q, and the related unaudited consolidated unaudited statements of income and a statement retained earnings and of cash flows for the period from the beginning of such fiscal year to the end of such quarter, in each case setting forth in comparative form figures for the corresponding period of the preceding fiscal year, and accompanied by a certificate of the chief financial officer or treasurer of the Borrower to the effect that such quarterly financial statements fairly present in all material respects the financial condition of the Borrower and its Subsidiaries for such period and have been prepared the portion of the fiscal year through the end of such period, setting forth in accordance with GAAP each case in comparative form the figures for the previous year, all certified by the Borrower’s chief financial officer or chief accounting officer;
(ii) As soon as available, but in any event not later than 45 days after the close of the first three fiscal quarters, for the Borrower and its Subsidiaries, a copy of the Borrower’s Quarterly Financial Supplement and other than with regard schedules as may be required containing the following reports in form and substance reasonably satisfactory to the absence Lenders, which may be in the form filed as its 10-Q, all certified by the entity’s chief financial officer or chief accounting officer: a statement of footnotes Funds From Operations, a statement detailing Consolidated Outstanding Indebtedness, Consolidated Secured Indebtedness, Consolidated Unsecured Indebtedness, Consolidated Cash Flow and subject an Asset Schedule listing all assets and their net operating income with a breakdown between Unencumbered Assets and other assets, and newly acquired Projects, and Borrower will provide such other information on all Projects as may be reasonably requested;
(iii) As soon as available, but in any event not later than 90 days after the close of each fiscal year, for the Borrower and its Subsidiaries, audited financial statements in the form filed as 10-K, including a consolidated balance sheet as at the end of such year and the related consolidated statements of income and retained earnings and of cash flows for such year, setting forth in each case in comparative form the figures for the previous year, without a “going concern” or like qualification or exception, or qualification arising out of the scope of the audit, prepared by PricewaterhouseCoopers (or other independent certified public accountants of nationally recognized standing reasonably acceptable to changes resulting from audit and normal year-end audit adjustments to sameAdministrative Agent).;
6.1.3 (iv) Together with the quarterly and annual financial statements required under Sections 6.1.1 and 6.1.2hereunder, (i) a compliance certificate in substantially the form of Exhibit B Compliance Certificate signed by an Authorized Officer (a) the Borrower’s chief financial officer or chief accounting officer showing the calculations and computations necessary to determine compliance with Section 6.16this Agreement and stating that, (b) stating that to such officer’s knowledge, no Default or Unmatured Default exists, or if if, to such officer’s knowledge, any Default or Unmatured Default exists, stating the nature and status thereof and thereof;
(cv) updating Schedule 1 with respect to its Subsidiaries, Material Subsidiaries and Excluded Subsidiaries, if appropriate and (ii) such financial information as reasonable requested by the Agent, including, but not limited to consolidating financial statements, as is necessary to account for Excluded Indebtedness and Excluded EBITDA for purposes of determining the Consolidated Leverage Ratio.
6.1.4 If requested, within 270 days after the close of each fiscal year of the Borrower, a copy of the actuarial report showing the Unfunded Liabilities of each Single Employer Plan as of the valuation date occurring in such fiscal year, certified by an actuary enrolled under ERISA.
6.1.5 As soon as possible and in any event within ten (10) 10 days after an Authorized Officer a responsible officer of the Borrower knows that any Reportable Event has occurred with respect to any Plan that could reasonably be expected to have a Material Adverse EffectPlan, a statement, signed by an Authorized Officerthe chief financial officer of the Borrower, describing said Reportable Event and the action which the Borrower proposes to take with respect thereto.;
6.1.6 From time to time such additional information regarding the financial position or business (vi) As soon as possible and in any event within 10 days after receipt by a responsible officer of the Borrower, a copy of (a) any notice or claim to the effect that the Borrower and or any of its Subsidiaries is or may be liable to any Person as a result of the Agentrelease by the Borrower, at the request any of its Subsidiaries, or any other Person of any Lendertoxic or hazardous waste or substance into the environment, may reasonably requestand (b) any notice alleging any violation of any federal, including state or local environmental, health or safety law or regulation by the support for Borrower or any pro forma calculations hereunder.of its Subsidiaries, which, in either case, could have a Material Adverse Effect;
6.1.7 Promptly(vii) Promptly upon the furnishing thereof to the shareholders of the Borrower, copies of all financial statements, reports and proxy statements so furnished;
(viii) Promptly upon the filing thereof, copies of all registration statements (and annual, quarterly, monthly or other than any registration statement on Form S-8 reports and any registration statement in connection with a dividend reinvestment plan, shareholder purchase plan or employee benefit plan) and reports on form 10-K, 10-Q or 8-K (or their equivalents) other public information which the Borrower or any of its Subsidiaries files with the Securities and Exchange Commission.;
6.1.8 Promptly(ix) Prompt written notice of any default or event of default under any of the Subject Property Loan Documents together with copies of any such notices of default or event of default;
(x) If required by Administrative Agent, information regarding concurrently with the delivery of the financial statements referred to in Sections 6.1(i) and 6.1(iii), a list of all the Subject Properties owned by any change in the Borrower’s Debt Rating. Information required to be delivered pursuant to these Sections 6.1.1, 6.1.2, and 6.1.7 shall be deemed to have been delivered on the date on which Subsidiary of the Borrower provides notice as of the last day of such fiscal quarter setting forth the following information with respect to the Lenders that each such information has been posted on the Securities and Exchange Commission website on the Internet at ▇▇▇.▇▇▇/▇▇▇▇▇/▇▇▇▇▇▇▇▇.▇▇▇, on the Borrower’s IntraLinks site at ▇▇▇▇▇▇▇▇▇▇.▇▇▇ or at another website identified in Subject Property as of such notice and accessible by the Lenders without charge; provided that date: (i) such notice may be included in a certificate delivered pursuant to Section 6.1.3 and such notice or certificate shall also be deemed to have been delivered upon being posted to the Borrower’s IntraLinks site or such other website and location; (ii) the Borrower shall deliver paper copies Net Operating Income for such Subject Property during such fiscal quarter, and (iii) a list of the Subject Property Indebtedness for such Subject Property in the form of Schedule 2; and
(xi) Such other information referred to in Sections 6.1.1(including, 6.1.2 without limitation, financial statements for the Borrower and 6.1.7 to non-financial information) as the Administrative Agent or any Lender which requests such deliverymay from time to time reasonably request.
Appears in 1 contract
Sources: Secured Term Loan Agreement (Developers Diversified Realty Corp)
Financial Reporting. The Borrower will maintain, for itself and each Subsidiary, a system of accounting established and administered in accordance with GAAP, and furnish to the Administrative Agent and the Lenders:
6.1.1 (a) Within ninety (90) 90 days after the close of each of its fiscal yearsFiscal Years, financial statements an unqualified (except for qualifications relating to changes in accounting principles or practices reflecting changes in GAAP) audit report, with no going concern modifier, certified by independent certified public accountants acceptable to Lenders, prepared in accordance with GAAP on a consolidated basis for itself and its Subsidiaries, including a balance sheets sheet as of the end of such period, related consolidated statements of income, cash flows and changes in stockholders equity, accompanied by any management letter prepared by said accountants. ▇▇▇▇▇▇▇ -47- ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ LLP
(b) (i) By March 31, 2015, for itself and its Subsidiaries, a consolidated unaudited balance sheet as of December 31, 2014 and related consolidated statements of income and statements of cash flows, setting forth in comparative form figures flows for the preceding fiscal yearperiod from the beginning of Fiscal Year 2014 through December 31, accompanied by an audit report2014 and (ii) thereafter, consistent with the requirements of the Securities and Exchange Commission, of a nationally recognized firm of independent public accountants or other independent public accountants reasonably acceptable to the Required Lenders.
6.1.2 Within forty-five (45) within 45 days after the close of the first three quarterly periods (3) Fiscal Quarters of each of its fiscal yearsFiscal Year, financial statements prepared in accordance with GAAP (other than with regard to the absence of footnotes and subject to changes resulting from audit and normal year-end audit adjustments to same) on a consolidated basis for itself and its Subsidiaries, including, a consolidated unaudited balance sheets sheet as at of the close of each such period Fiscal Quarter and related consolidated unaudited statements of income and a statement of cash flows for the period from the beginning of such fiscal year Fiscal Year to the end of such quarterFiscal Quarter, all certified by its Chief Financial Officer or Controller.
(c) As soon as available, but in any event within fifteen (15) days after the start of each Fiscal Year, forecasts prepared by management of Borrower, in each case setting forth in comparative form figures for the corresponding period satisfactory to Administrative Agent, of the preceding fiscal year, consolidated balance sheets and accompanied by a certificate statements of the chief financial officer or treasurer income and cash flows of the Borrower to the effect that such quarterly financial statements fairly present in all material respects the financial condition of the Borrower and its Subsidiaries and have been prepared on a quarterly basis for such Fiscal Year (including the fiscal year in accordance with GAAP (other than with regard to which the absence of footnotes and subject to changes resulting from audit and normal year-end audit adjustments to sameFacility Termination Date occurs).
6.1.3 (d) Together with the financial statements required under Sections 6.1.1 6.1(a) and 6.1.2(b), (i) a compliance certificate Compliance Certificate in substantially the form of Exhibit B A signed by an Authorized its Chief Financial Officer (a) showing the calculations necessary to determine compliance with Section 6.16, (b) this Agreement and stating that no Default or Unmatured Event of Default exists, or if any Default or Unmatured Event of Default exists, stating the nature and status thereof.
(e) Promptly upon the furnishing thereof and (c) updating Schedule 1 with respect to its Subsidiariesthe shareholders of Borrower, Material Subsidiaries and Excluded Subsidiaries, if appropriate and (ii) such financial information as reasonable requested by the Agent, including, but not limited to consolidating copies of all financial statements, as is necessary to account for Excluded Indebtedness reports and Excluded EBITDA for purposes of determining the Consolidated Leverage Ratioproxy statements so furnished.
6.1.4 If requested, within 270 days after the close of each fiscal year of the Borrower, a copy of the actuarial report showing the Unfunded Liabilities of each Single Employer Plan as of the valuation date occurring in such fiscal year, certified by an actuary enrolled under ERISA.
6.1.5 As soon as possible and in any event within ten (10f) days after an Authorized Officer knows that any Reportable Event has occurred with respect to any Plan that could reasonably be expected to have a Material Adverse Effect, a statement, signed by an Authorized Officer, describing said Reportable Event and the action which the Borrower proposes to take with respect thereto.
6.1.6 From time to time such additional information regarding the financial position or business of the Borrower and its Subsidiaries as the Agent, at the request of any Lender, may reasonably request, including the support for any pro forma calculations hereunder.
6.1.7 Promptly, Promptly upon the filing thereof, copies of all registration statements (and annual, quarterly, monthly or other than any registration statement on Form S-8 and any registration statement in connection with a dividend reinvestment plan, shareholder purchase plan or employee benefit plan) and regular reports on form 10-K, 10-Q or 8-K (or their equivalents) which the Borrower or any of its Subsidiaries files with the U.S. Securities and Exchange Commission.
6.1.8 Promptly, (g) Such other information regarding (including non-financial information and environmental reports) as Administrative Agent or any change in the Borrower’s Debt Rating. Information Lender may from time to time reasonably request.
(h) Any financial statement required to be delivered furnished pursuant to these Sections 6.1.1, 6.1.2, and 6.1.7 Section 6.1(a) or Section 6.1(b) shall be deemed to have been delivered furnished on the date on which Lenders receive notice that Borrower has filed such financial statement with the Borrower provides notice to the Lenders that such information has been posted on the U.S. Securities and Exchange Commission and is available on the ▇▇▇▇▇ website on the Internet at ▇▇▇.▇▇▇/▇▇▇▇▇/▇▇▇▇▇▇▇▇.▇▇▇, on the Borrower’s IntraLinks site at ▇▇▇▇▇▇▇▇▇▇.▇▇▇ or at another any successor government website identified in such notice that is freely and accessible by the readily available to Administrative Agent and Lenders without charge; provided that Borrower shall give notice of any such filing to Administrative Agent (i) who shall then give notice of any such notice may be included in a certificate delivered pursuant filing to Section 6.1.3 and such notice or certificate shall also be deemed to have been delivered upon being posted to Lenders). Notwithstanding the Borrower’s IntraLinks site or such other website and (ii) the foregoing, Borrower shall deliver paper or electronic copies of any such financial statement to Administrative Agent if Administrative Agent requests Borrower to furnish such paper or electronic copies until written notice to cease delivering such paper or electronic copies is given by Administrative Agent. If any information which is required to be furnished to Lenders under this Section 6.1 is filed by Borrower with a Governmental Authority on an earlier date, then the information referred required hereunder shall be furnished to in Sections 6.1.1, 6.1.2 and 6.1.7 to any Lender which requests Lenders at such deliveryearlier date.
Appears in 1 contract
Financial Reporting. The Borrower will maintain, for itself and each Subsidiary, a system of accounting established and administered in accordance with GAAPAgreement Accounting Principles, and furnish to the Agent and the Lenders:
6.1.1 (i) Within ninety (90) 90 days after the close of each of its fiscal years, financial statements an unqualified (except for qualifications relating to changes in accounting principles or practices reflecting changes in generally accepted accounting principles and required or approved by the Borrower's independent certified public accountants) audit report certified by nationally recognized independent certified public accountants, prepared in accordance with GAAP Agreement Accounting Principles on a consolidated basis for itself and its Subsidiaries, including balance sheets as of the end of such period, statements related profit and loss and reconciliation of income surplus statements, and statements a statement of cash flows, setting forth in comparative form figures for the preceding fiscal year, accompanied by an audit report, consistent with the requirements of the Securities and Exchange Commission, of a nationally recognized firm of independent public accountants or other independent public accountants reasonably acceptable to the Required Lendersany management letter prepared by said accountants.
6.1.2 (ii) Within forty-five (45) 45 days after the close of the first three quarterly periods of each of its fiscal years, financial statements prepared in accordance with GAAP (other than with regard to the absence of footnotes and subject to changes resulting from audit and normal year-end audit adjustments to same) on a consolidated basis for itself and its Subsidiaries, including, consolidated unaudited balance sheets as at the close of each such period and consolidated unaudited profit and loss and reconciliation of surplus statements of income and a statement of cash flows for the period from the beginning of such fiscal year to the end of such quarter, in each case setting forth in comparative form figures for the corresponding period of the preceding fiscal year, and accompanied by a certificate of the chief financial officer or treasurer of the Borrower to the effect that such quarterly financial statements fairly present in all material respects the financial condition of the Borrower and its Subsidiaries and have been prepared in accordance with GAAP (other than with regard to the absence of footnotes and subject to changes resulting from audit and normal year-end audit adjustments to same).
6.1.3 Together with the financial statements required under Sections 6.1.1 and 6.1.2, (i) a compliance certificate in substantially the form of Exhibit B signed certified by an Authorized Officer (a) showing the calculations necessary to determine compliance with Section 6.16, (b) stating that no Default or Unmatured Default exists, or if any Default or Unmatured Default exists, stating the nature and status thereof and (c) updating Schedule 1 with respect to its Subsidiaries, Material Subsidiaries and Excluded Subsidiaries, if appropriate and (ii) such financial information as reasonable requested by the Agent, including, but not limited to consolidating financial statements, as is necessary to account for Excluded Indebtedness and Excluded EBITDA for purposes of determining the Consolidated Leverage RatioOfficer.
6.1.4 If requested, within 270 days after the close of each fiscal year of the Borrower, a copy of the actuarial report showing the Unfunded Liabilities of each Single Employer Plan as of the valuation date occurring in such fiscal year, certified by an actuary enrolled under ERISA.
6.1.5 (iii) As soon as possible and in any event within ten (10) 10 days after an Authorized Officer the Borrower knows that any Reportable Event has occurred with respect to any Plan that could reasonably be expected to have a Material Adverse EffectPlan, a statement, signed by an Authorized Officer, describing said Reportable Event and the action which the Borrower proposes to take with respect thereto.
6.1.6 From time (iv) As soon as possible and in any event within 10 days after receipt by the Borrower, a copy of (a) any notice or claim to time such additional information regarding the financial position effect that the Borrower or business any of its Subsidiaries is or may be liable to any Person as a result of the Borrower and release by the Borrower, any of its Subsidiaries as the AgentSubsidiaries, at the request or any other Person of any Lendertoxic or hazardous waste or substance into the environment, may and (b) any notice alleging any violation of any federal, state or local environmental, health or safety law or regulation by the Borrower or any of its Subsidiaries, which, in either case, could reasonably request, including the support for any pro forma calculations hereunderbe expected to have a Material Adverse Effect.
6.1.7 Promptly(v) Promptly upon the furnishing thereof to the shareholders of the Borrower, copies of all financial statements, reports and proxy statements so furnished.
(vi) Promptly upon the filing thereof, copies of all registration statements (and annual, quarterly, monthly or other than any registration statement on Form S-8 and any registration statement in connection with a dividend reinvestment plan, shareholder purchase plan or employee benefit plan) and regular reports on form 10-K, 10-Q or 8-K (or their equivalents) which the Borrower or any of its Subsidiaries files with the Securities and Exchange CommissionSEC.
6.1.8 Promptly, information regarding any change (vii) Together with the annual and quarterly reports referred to in the Borrower’s Debt Rating. Information required to be delivered pursuant to these Sections 6.1.1, 6.1.2, and 6.1.7 shall be deemed to have been delivered on the date on which the Borrower provides notice to the Lenders that such information has been posted on the Securities and Exchange Commission website on the Internet at ▇▇▇.▇▇▇/▇▇▇▇▇/▇▇▇▇▇▇▇▇.▇▇▇, on the Borrower’s IntraLinks site at ▇▇▇▇▇▇▇▇▇▇.▇▇▇ or at another website identified in such notice and accessible by the Lenders without charge; provided that clauses (i) such notice may be included in a certificate delivered pursuant to Section 6.1.3 and such notice or certificate shall also be deemed to have been delivered upon being posted to the Borrower’s IntraLinks site or such other website and (ii) above, a certificate in the Borrower shall deliver paper copies form of Exhibit F, certified by an Authorized Officer.
(viii) Such other information (including non-financial information) as the information referred to in Sections 6.1.1, 6.1.2 and 6.1.7 to Agent or any Lender which requests such deliverymay from time to time reasonably request.
Appears in 1 contract
Financial Reporting. The Borrower will maintain, for itself and each Subsidiary, a system of accounting established and administered in accordance with GAAPthe Agreement Accounting Principles, and furnish to the Administrative Agent and in sufficient copies for each of the Lenders:
6.1.1 (i) Within ninety (90) 120 days after the close of each of its fiscal yearsyears (or, financial statements if earlier, within 30 days after the Borrower is required to file its annual Report on 10K with the Securities and Exchange Commission for such fiscal year), an unqualified (except for qualifications relating to changes in Agreement Accounting Principles or practices reflecting changes in Agreement Accounting Principles and required or approved by the Borrower's independent certified public accountants) audit report certified by independent certified public accountants reasonably acceptable to the Lenders, prepared in accordance with GAAP the Agreement Accounting Principles on a consolidated and consolidating basis (consolidating statements need not be certified by such accountants) for itself and its Subsidiaries, including balance sheets as of the end of such period, statements related profit and loss and reconciliation of income surplus statements, and statements a statement of cash flows, setting forth in comparative form figures for . Delivery by the preceding fiscal year, accompanied by an audit report, consistent Borrower to the Administrative Agent of copies of the Parent's Annual Report to Shareholders and its annual Report on Form 10-K filed with the requirements of the Securities and Exchange Commission, of a nationally recognized firm of independent public accountants or other independent public accountants reasonably acceptable Commission for any year shall satisfy the Borrower's obligation under this clause (i) with respect to the Required Lenderssuch year.
6.1.2 (ii) Within forty-five (45) 60 days after the close of the first three quarterly period of each of its fiscal years (or, if earlier, within 15 days after the Borrower is required to file its Quarterly Report on Form 10-Q for with the Securities and Exchange Commission for such period), consolidated and consolidating unaudited balance sheets as at the close of each the first three quarterly periods of each of its fiscal years, financial statements prepared in accordance with GAAP (other than with regard to the absence of footnotes and subject to changes resulting from audit and normal year-end audit adjustments to same) on a consolidated basis for itself and its Subsidiaries, including, consolidated unaudited balance sheets as at the close of each such period Subsidiaries and consolidated unaudited and consolidating profit and loss and reconciliation of surplus statements of income and a statement of cash flows for the period from the beginning of such fiscal year to the end of such quarter, in each case setting forth in comparative form figures for the corresponding period of the preceding fiscal year, and accompanied all certified by a certificate of the chief financial officer or treasurer of an Authorized Officer. Delivery by the Borrower to the effect that such quarterly financial statements fairly present in all material respects the financial condition Administrative Agent of copies of the Borrower Borrower's Quarterly Report on Form 10-Q filed with the Securities and its Subsidiaries and have been prepared in accordance Exchange Commission for any quarter shall satisfy the Borrower's obligation under the clause (ii) with GAAP (other than with regard respect to the absence of footnotes and subject to changes resulting from audit and normal year-end audit adjustments to same)such quarter.
6.1.3 (iii) Together with the financial statements required under Sections 6.1.1 6.1(i) and 6.1.2(ii), (iA) a compliance certificate in substantially the form of Exhibit B signed by an Authorized Officer (a) showing the calculations necessary to determine compliance with Section 6.16, (b) this Agreement and stating that no Default or Unmatured Default exists, or if any Default or Unmatured Default exists, stating the nature and status thereof and (cB) updating Schedule 1 with respect to its Subsidiaries, Material Subsidiaries and Excluded Subsidiaries, if appropriate and (iia calculation of the Indebtedness secured by Liens permitted under Section 6.11(xiii) in such financial information as reasonable requested by the Agent, including, but not limited to consolidating financial statements, form as is necessary reasonably satisfactory to account for Excluded Indebtedness and Excluded EBITDA for purposes of determining the Consolidated Leverage RatioAdministrative Agent.
6.1.4 If requested, within 270 days after the close of each fiscal year of the Borrower, a copy of the actuarial report showing the Unfunded Liabilities of each Single Employer Plan as of the valuation date occurring in such fiscal year, certified by an actuary enrolled under ERISA.
6.1.5 (iv) As soon as possible and in any event within ten (10) 10 days after an Authorized Officer the Borrower knows that any Reportable Event has occurred with respect to any Plan that could reasonably be expected to have a Material Adverse EffectPlan, a statement, signed by an Authorized Officer, describing said Reportable Event and the action which the Borrower proposes to take with respect thereto.
6.1.6 From time (v) As soon as possible and in any event within 10 days after receipt by the Borrower, a copy of (a) any notice or claim to time such additional information regarding the financial position effect that the Borrower or business any of its Subsidiaries is or may be liable to any Person as a result of the Borrower and release by the Borrower, any of its Subsidiaries as the AgentSubsidiaries, at the request or any other Person of any Lendertoxic or hazardous waste or substance into the environment, may and (b) any notice alleging any violation of any federal, state or local environmental, health or safety law or regulation by the Borrower or any of its Subsidiaries, which, in either case, could reasonably request, including the support for any pro forma calculations hereunderbe expected to have a Material Adverse Effect.
6.1.7 Promptly(vi) Promptly upon the furnishing thereof to the shareholders of the Borrower, copies of all financial statements, reports and proxy statements so furnished.
(vii) Promptly upon the filing thereof, copies of all registration statements (and annual, quarterly, monthly or other than any registration statement on Form S-8 and any registration statement in connection with a dividend reinvestment plan, shareholder purchase plan or employee benefit plan) and regular reports on form 10-K, 10-Q or 8-K (or their equivalents) which the Borrower or any of its Subsidiaries files with the Securities and Exchange Commission.
6.1.8 Promptly, (viii) Such other information regarding any change in (including nonfinancial information) as the Borrower’s Debt Rating. Information required to be delivered pursuant to these Sections 6.1.1, 6.1.2, and 6.1.7 shall be deemed to have been delivered on the date on which the Borrower provides notice to the Lenders that such information has been posted on the Securities and Exchange Commission website on the Internet at ▇▇▇.▇▇▇/▇▇▇▇▇/▇▇▇▇▇▇▇▇.▇▇▇, on the Borrower’s IntraLinks site at ▇▇▇▇▇▇▇▇▇▇.▇▇▇ Administrative Agent or at another website identified in such notice and accessible by the Lenders without charge; provided that (i) such notice may be included in a certificate delivered pursuant to Section 6.1.3 and such notice or certificate shall also be deemed to have been delivered upon being posted to the Borrower’s IntraLinks site or such other website and (ii) the Borrower shall deliver paper copies of the information referred to in Sections 6.1.1, 6.1.2 and 6.1.7 to any Lender which requests such deliverymay from time to time reasonably request.
Appears in 1 contract
Sources: Credit Agreement (Idaho Power Co)
Financial Reporting. The Borrower will maintain, for itself and each -------------------- Subsidiary, a system of accounting established and administered in accordance with GAAPgenerally accepted accounting principles, consistently applied, and furnish to the Agent and the Lenders:
6.1.1 Within ninety (90a) As soon as practicable and in any event within 95 days after the close of each of its fiscal yearsFiscal Years, financial statements an unqualified audit report certified by independent certified public accountants, acceptable to the Lenders, prepared in accordance with GAAP Agreement Accounting Principles on a consolidated and consolidating basis (consolidating statements need not be certified by such accountants) for itself and its Subsidiaries, including balance sheets as of the end of such period, period and related statements of income income, retained earnings and cash flows (but not consolidating statements of retained earnings or cash flows, setting forth in comparative form figures for the preceding fiscal year, ) accompanied by an audit reporta certificate of said accountants that, consistent with in the requirements course of the Securities examination necessary for their certification of the foregoing, they have obtained no knowledge of Default or Unmatured Default, or if, in the opinion of such accountants, any Default or Unmatured Default shall exist, stating the nature and Exchange Commission, of a nationally recognized firm of independent public accountants or other independent public accountants reasonably acceptable to the Required Lendersstatus thereof.
6.1.2 Within forty-five (45b) As soon as practicable and in any event within 50 days after the close of the first three quarterly periods Fiscal Quarters of each of its fiscal yearsFiscal Years, financial statements prepared in accordance with GAAP (other than with regard to the absence of footnotes and subject to changes resulting from audit and normal year-end audit adjustments to same) on a consolidated basis for itself and its Subsidiaries, including, consolidated and consolidating unaudited balance sheets as at the close of each such period and consolidated unaudited and consolidating statements of income income, retained earnings and a statement of cash flows for (but not consolidating statements of retained earnings or cash flows)for the period from the beginning of such fiscal year Fiscal Year to the end of such quarter, all certified by an Authorized Officer.
(c) As soon as available, but in any event not later than the last Business Day in November of each case setting forth in comparative form figures for the corresponding period year, a copy of the preceding fiscal year, plan and accompanied by a certificate forecast of the chief financial officer or treasurer of the Borrower to the effect that such quarterly financial statements fairly present in all material respects the financial condition of the Borrower Borrower, and its Subsidiaries for the next Fiscal Year organized by individual lines of business (including a projected consolidated and have been prepared in accordance with GAAP (other than with regard to the absence of footnotes consolidating balance sheet, income statement and subject to changes resulting from audit and normal year-end audit adjustments to samefunds flow statement).
6.1.3 (d) Together with the financial statements required under Sections 6.1.1 by clauses (a) and 6.1.2(b) ----------- --- above, (i) a compliance certificate in substantially the form of Exhibit B G hereto --------- signed by an Authorized Officer (a) showing the calculations necessary to determine compliance with Section 6.16, (b) this Agreement and stating that no Default or Unmatured Default exists, or if any Default or Unmatured Default exists, stating the nature and status thereof and (c) updating Schedule 1 with respect to its Subsidiaries, Material Subsidiaries and Excluded Subsidiaries, if appropriate and (ii) such financial information as reasonable requested by the Agent, including, but not limited to consolidating financial statements, as is necessary to account for Excluded Indebtedness and Excluded EBITDA for purposes of determining the Consolidated Leverage Ratiothereof.
6.1.4 If requested, within (e) Within 270 days after the close of each fiscal year of the BorrowerFiscal Year, a copy statement of the actuarial report showing the Unfunded Liabilities of each Single Employer Plan as of the valuation date occurring in such fiscal yearPlan, certified as correct by an actuary enrolled under ERISA.
6.1.5 (f) As soon as possible and in any event within ten (10) 10 days after an Authorized Officer the Borrower knows that any Reportable Termination Event has occurred with respect to any Plan that could reasonably be expected to have a Material Adverse EffectPlan, a statement, signed by an Authorized Officerthe chief financial officer, treasurer or controller of the Borrower, describing said Reportable Termination Event and the action which the Borrower proposes to take with respect thereto.
6.1.6 From time to time such additional information regarding (g) As soon as possible and in any event within 10 days after the financial position or business Borrower learns thereof, notice of the Borrower and its Subsidiaries as the Agent, at the request assertion or commencement of any Lenderclaims, may action, suit or proceeding against or affecting the Borrower or any Subsidiary which could reasonably request, including the support for any pro forma calculations hereunderbe expected to have a Material Adverse Effect.
6.1.7 Promptly(h) Promptly upon the furnishing thereof to the shareholders of the Borrower, copies of all financial statements, reports and proxy statements so furnished.
(i) Promptly upon the filing thereof, copies of all registration statements (and annual, quarterly, monthly or other than any registration statement on Form S-8 and any registration statement in connection with a dividend reinvestment plan, shareholder purchase plan or employee benefit plan) and regular reports on form 10-K, 10-Q or 8-K (or their equivalents) which the Borrower or any of its Subsidiaries files with the Securities and Exchange Commission.
6.1.8 Promptly, (j) Such other information regarding any change in (including non-financial information) as the Borrower’s Debt Rating. Information required to be delivered pursuant to these Sections 6.1.1, 6.1.2, and 6.1.7 shall be deemed to have been delivered on the date on which the Borrower provides notice to the Lenders that such information has been posted on the Securities and Exchange Commission website on the Internet at ▇▇▇.▇▇▇/▇▇▇▇▇/▇▇▇▇▇▇▇▇.▇▇▇, on the Borrower’s IntraLinks site at ▇▇▇▇▇▇▇▇▇▇.▇▇▇ Administrative Agent or at another website identified in such notice and accessible by the Lenders without charge; provided that (i) such notice may be included in a certificate delivered pursuant to Section 6.1.3 and such notice or certificate shall also be deemed to have been delivered upon being posted to the Borrower’s IntraLinks site or such other website and (ii) the Borrower shall deliver paper copies of the information referred to in Sections 6.1.1, 6.1.2 and 6.1.7 to any Lender which requests such deliverymay from time to time reasonably request.
Appears in 1 contract
Financial Reporting. The Borrower will maintain, for itself and each Subsidiary, a system of accounting established and administered in accordance with GAAPgenerally accepted accounting principles, and will furnish to the Administrative Agent and for further distribution to the LendersLenders the following:
6.1.1 Within ninety (90a) within 90 days after the close of each fiscal year of its fiscal yearsthe Borrower, financial statements an audit report certified by independent certified public accountants of recognized national standing (which in each case shall be without a “going concern” or like qualification or exception and without any qualification or exception as to the scope of such audit), prepared in accordance with GAAP on a consolidated and consolidating basis (consolidating statements need not be certified by such accountants) for itself the Borrower and its Subsidiaries, including balance sheets as of the end of such period, statements related profit and loss and reconciliation of income surplus statements, and statements a statement of cash flows, setting forth in comparative form figures for the preceding fiscal yearflows on a consolidated and consolidating basis, accompanied by an audit report, consistent with the requirements of the Securities and Exchange Commission, of a nationally recognized firm of independent public any final management letter prepared by said accountants or other independent public accountants reasonably acceptable to the Required Lenders.Borrower;
6.1.2 Within forty-five (45b) within 45 days after the close of the first three quarterly periods of each of its the Borrower’s fiscal yearsyears (commencing with the first fiscal quarter ending after the Closing Date), financial statements prepared in accordance with GAAP (other than with regard to for the absence of footnotes and subject to changes resulting from audit and normal year-end audit adjustments to same) on a consolidated basis for itself Borrower and its Subsidiaries, including, consolidated and consolidating unaudited balance sheets as at the close of each such period period, consolidated and consolidated unaudited consolidating profit and loss and reconciliation of surplus statements of income and a consolidated and consolidating statement of cash flows for the period from the beginning of such fiscal year to the end of such quarter, certified by a Financial Officer of the Borrower as in each case setting forth in comparative form figures for the corresponding period of the preceding fiscal yearfairly presenting, and accompanied by a certificate of the chief financial officer or treasurer of the Borrower to the effect that such quarterly financial statements fairly present in all material respects respects, the consolidated financial condition of the Borrower and its consolidated Subsidiaries and have been prepared in accordance with GAAP (other than with regard to the absence of footnotes and subject to changes resulting from audit and normal year-end audit adjustments to same).and the absence of footnotes) and having been prepared in reasonable detail;
6.1.3 Together (c) [Reserved];
(d) together with the financial statements required under Sections 6.1.1 6.01(a) and 6.1.2(b), (i) a compliance certificate in substantially the form of Exhibit B signed by an Authorized Officer (a) Compliance Certificate showing the calculations necessary to determine compliance with this Agreement (including, Section 6.16, (b6.27) and stating that no Default or Unmatured Default exists, or if any Default or Unmatured Default exists, stating the nature and status thereof thereof;
(e) within 60 days after the commencement of each fiscal year of the Borrower and (c) updating Schedule 1 with respect to its Subsidiaries, Material a financial forecast of the Borrower and its Subsidiaries and Excluded Subsidiaries, if appropriate and for such fiscal year;
(iif) such financial information as reasonable requested by the Agent, including, but not limited to consolidating financial statements, as is necessary to account for Excluded Indebtedness and Excluded EBITDA for purposes of determining the Consolidated Leverage Ratio.
6.1.4 If requested, within 270 days after the close of each fiscal year of the Borroweryear, a copy statement of the actuarial report showing the Unfunded Liabilities of each Single Employer Plan as of the valuation date occurring in such fiscal yearPlan, certified as correct by an actuary enrolled under ERISA.;
6.1.5 As soon as possible and in any event (g) within ten (10) days 30 Business Days after an Authorized Officer the Borrower knows that any Reportable Event has occurred with respect to any Plan that could reasonably be expected to have a Material Adverse EffectSingle Employer Plan, a statement, signed by an Authorized Officer, a Financial Officer of the Borrower describing said Reportable Event and the action which the Borrower or any Affiliate of the Borrower proposes to take with respect thereto.;
6.1.6 From time (h) promptly (and in any event within 10 Business Days) following the occurrence of the following events, copies of (i) any amendments, supplements or other modifications to time the Senior Priority Debt Documents (as defined in the First Lien/Second Lien Intercreditor Agreement) and (ii) any new Senior Priority Debt Documents (as defined in the First Lien/Second Lien Intercreditor Agreement);
(i) as soon as possible and in any event on the later of (i) 30 days following the occurrence of the following events or (ii) the first date required for delivery of the financial statements pursuant to Section 6.01(a) or 6.01(b) after the occurrence of the following events, written notice of the creation, establishment or acquisition of any Subsidiary or the issuance by or to the Borrower or any of its Subsidiaries of any Capital Stock; and
(j) promptly following any request therefor, (i) such additional other information regarding the business, financial position or business corporate affairs of the Borrower and its Subsidiaries as the Agent, at the request of Administrative Agent or any Lender, Lender may from time to time reasonably request, and (ii) all documentation and other information reasonably requested by the Administrative Agent or any Lender that is required for compliance with the Act or other “know your customer” and anti-money laundering rules and regulations, including the support for any pro forma calculations hereunder.
6.1.7 Promptly, upon the filing thereof, copies of all registration statements (other than any registration statement on Form S-8 and any registration statement in connection with a dividend reinvestment plan, shareholder purchase plan or employee benefit plan) and reports on form 10-K, 10-Q or 8-K (or their equivalents) which the Borrower or any of its Subsidiaries files with the Securities and Exchange Commission.
6.1.8 Promptly, information regarding any change in the Borrower’s Debt RatingBeneficial Ownership Regulation. Information required to be delivered pursuant to these Sections 6.1.1, 6.1.2, and 6.1.7 this Section 6.01 shall be deemed to have been delivered if such information, or one or more annual, quarterly or current reports containing such information, shall have been posted by the Administrative Agent on an IntraLinks or similar site to which the Lenders have been granted access or such reports shall be available on the date on which website of the Borrower provides notice to the Lenders that such information has been posted on the Securities and Exchange Commission website on the Internet SEC at ▇▇▇▇://▇▇▇.▇▇▇/.▇▇▇ or on the website of the Borrower at ▇▇▇▇▇/▇▇▇▇▇://▇▇▇.▇▇▇, on the Borrower’s IntraLinks site at ▇▇▇▇▇▇▇▇▇▇.▇▇▇ or at another website identified and, except in the case of quarterly and annual financial statements under Section 6.01(a) and Section 6.01(b), the Borrower has given notice that such notice and accessible by the Lenders without charge; provided that (i) such notice may reports are so available. Information required to be included in a certificate delivered pursuant to this Section 6.1.3 may also be delivered by electronic communications pursuant to procedures approved by the Administrative Agent. If any information which is required to be furnished to the Lenders under this Section 6.01 is required by law or regulation to be filed by the Borrower or the Borrower with a government body on an earlier date, then the information required hereunder shall be furnished to the Lenders at such earlier date (which delivery may be by electronic communication including fax or email and shall be deemed to be an original authentic counterpart thereof for all purposes). The Borrower hereby acknowledges that (a) the Administrative Agent and/or the Arrangers may, but shall not be obligated to, make available to the Lenders materials and/or information provided by or on behalf of the Borrower hereunder (collectively, “Borrower Materials”) by posting the Borrower Materials on IntraLinks, Syndtrak, ClearPar, or a substantially similar electronic transmission system (the “Platform”) and (b) certain of the Lenders (each, a “Public Lender”) may have personnel who do not wish to receive material non-public information with respect to the Borrower or its Affiliates, or the respective securities of any of the foregoing, and who may be engaged in investment and other market-related activities with respect to such notice or certificate Persons’ securities. The Borrower hereby agrees that it will use commercially reasonable efforts to identify that portion of the Borrower Materials that may be distributed to the Public Lenders and that (w) all such Borrower Materials shall also be clearly and conspicuously marked “PUBLIC” which, at a minimum, shall mean that the word “PUBLIC” shall appear prominently on the first page thereof; (x) by marking Borrower Materials “PUBLIC,” the Borrower shall be deemed to have been delivered upon being posted authorized the Administrative Agent, the Arrangers and the Lenders to treat such Borrower Materials as not containing any material non-public information (although it may be sensitive and proprietary) with respect to the Borrower’s IntraLinks site Borrower or its securities for purposes of United States Federal and state securities laws (provided, however, that to the extent such other website Borrower Materials constitute Information, they shall be treated as set forth in Section 9.09); (y) all Borrower Materials marked “PUBLIC” are permitted to be made available through a portion of the Platform designated “Public Side Information;” and (iiz) the Administrative Agent and the Arrangers shall be entitled to treat any Borrower shall deliver paper copies Materials that are not marked “PUBLIC” as being suitable only for posting on a portion of the information referred to in Sections 6.1.1, 6.1.2 and 6.1.7 to any Lender which requests such deliveryPlatform not designated “Public Side Information.”
Appears in 1 contract
Sources: Second Lien Credit Agreement (Moneygram International Inc)
Financial Reporting. The (i) Borrower will maintain, for itself and each Subsidiary, a system of accounting established and administered in accordance with GAAP, and agrees to furnish to Bank or cause to be furnished to Bank, at the Agent cost and expense of Borrower, the Lendersfollowing:
6.1.1 Within ninety (90A) as soon as practicable and in any event within 45 days after the close end of each fiscal quarter of its each fiscal yearsyear of Borrower, financial statements prepared in accordance with GAAP on a consolidated basis for itself and its Subsidiaries, including balance sheets as of the end of such period, statements of income and statements of cash flows, setting forth in comparative form figures for the preceding fiscal year, accompanied by an audit report, consistent beginning with the requirements of the Securities and Exchange Commissionquarter ended March 31, of a nationally recognized firm of independent public accountants or other independent public accountants reasonably acceptable to the Required Lenders.
6.1.2 Within forty-five (45) days after the close of the first three quarterly periods of each of its fiscal years2009, financial statements prepared in accordance with GAAP (other than with regard to the absence of footnotes and subject to changes resulting from audit and normal year-end audit adjustments to same) on a consolidated basis for itself and its Subsidiaries, including, consolidated unaudited balance sheets as at the close of each such period and consolidated unaudited statements of income and a statement of cash flows results of operations of Borrower and a consolidated statement of results of operations of Borrower and its Subsidiaries for the period from the beginning of such the current fiscal year of Borrower to the end of such quarter, and a balance sheet and income statement of Borrower and a consolidated balance sheet and income statement of Borrower and its Subsidiaries as at the end of such quarter, setting forth in each case setting forth in comparative form figures for the corresponding period of in the preceding fiscal yearyear of Borrower, all in reasonable detail and accompanied by prepared in accordance with generally accepted accounting principles, together with a certificate of certification from the chief financial officer or treasurer of Borrower that the Borrower to the effect that information contained in such quarterly financial statements fairly present in all material respects the financial condition of the Borrower and its Subsidiaries and have been prepared in accordance with GAAP (other than with regard to on the absence of footnotes and date thereof, subject to changes resulting from audit and normal year-end audit adjustments to same).adjustments; and
6.1.3 Together with the financial statements required under Sections 6.1.1 (B) as soon as practicable and 6.1.2, (i) a compliance certificate in substantially the form of Exhibit B signed by an Authorized Officer (a) showing the calculations necessary to determine compliance with Section 6.16, (b) stating that no Default or Unmatured Default exists, or if any Default or Unmatured Default exists, stating the nature and status thereof and (c) updating Schedule 1 with respect to its Subsidiaries, Material Subsidiaries and Excluded Subsidiaries, if appropriate and (ii) such financial information as reasonable requested by the Agent, including, but not limited to consolidating financial statements, as is necessary to account for Excluded Indebtedness and Excluded EBITDA for purposes of determining the Consolidated Leverage Ratio.
6.1.4 If requested, event within 270 120 days after the close of each fiscal year of the Borrower, a copy beginning with the close of the actuarial report showing the Unfunded Liabilities current fiscal year of each Single Employer Plan as Borrower, audited financial statements of the valuation date occurring in Borrower for such fiscal year, certified by an actuary enrolled under ERISA.
6.1.5 As soon as possible year and in any event within ten (10) days after an Authorized Officer knows that any Reportable Event has occurred with respect to any Plan that could reasonably be expected to have a Material Adverse Effect, a statement, signed by an Authorized Officer, describing said Reportable Event and the action which the Borrower proposes to take with respect thereto.
6.1.6 From time to time such additional information regarding the audited consolidated financial position or business statements of the Borrower and its Subsidiaries as for such year, to include, without limitation, balance sheets and statements of income and cash flow of Borrower and consolidated balance sheets and statements of income and cash flow of Borrower and its Subsidiaries for such fiscal year of Borrower, prepared in accordance with generally accepted accounting principles by an independent certified public accountant selected by Borrower and acceptable to the AgentBank, and certified by the chief financial officer of Borrower and such independent certified public accountant that the information contained in such financial statements fairly present in all material respects the financial condition of Borrower and its Subsidiaries for the period covered thereby; and
(C) concurrently with the delivery of the financial statements described in subsection (B) above, a certificate from the chief financial officer of Borrower or other representative of Borrower reasonably acceptable to Bank certifying to the Bank on behalf of Borrower (1) that no Event of Default, or any event which with the giving of notice or lapse of time or both would constitute an Event of Default, has occurred and is continuing, or if any such event has occurred specifying any such event, and (2) the amount of Borrower’s audited net worth at the request of any Lender, may reasonably request, including the support for any pro forma calculations hereunder.such year-end; and
6.1.7 Promptly, (D) promptly upon the filing Borrower’s receipt thereof, copies of any written communications from certified public accountants or any other report Borrower deems material with respect to the financial condition or operations of Second Parties, taken as a whole; and
(E) promptly following the filing with the applicable internal revenue office complete copies of Borrower’s state and federal income tax returns; and
(F) promptly upon the Bank’s request, such other information about the financial condition and operations of Second Parties and/or any Subsidiary or Subsidiaries of any Second Party as Bank may from time to time reasonably request. The form and level of detail of all registration financial statements must be reasonably acceptable to Bank in its sole discretion; and
(other than any registration statement on Form S-8 G) concurrently with the delivery of quarterly financial statements described in subsection (A) above, a certificate signed by the chief financial officer of Borrower, in a form reasonably acceptable to Bank and any registration statement accompanied by calculations and relevant supporting materials, (a) certifying to Bank Borrower’s compliance with the financial covenants set forth in connection with a dividend reinvestment plan, shareholder purchase plan or employee benefit planSections 4(z)(i) and reports on form 10(ii) hereof at each quarter-K, 10-Q or 8-K end and (b) certifying no changes (or their equivalentsif any changes occurred, disclosing such changes) which the in any A.M. Best financial strength rating of Borrower or any of its Subsidiaries files with the Securities and Exchange Commissionrelated Subsidiaries.
6.1.8 Promptly, information regarding any change in the Borrower’s Debt Rating. Information required to be delivered pursuant to these Sections 6.1.1, 6.1.2, and 6.1.7 shall be deemed to have been delivered on the date on which the Borrower provides notice to the Lenders that such information has been posted on the Securities and Exchange Commission website on the Internet at ▇▇▇.▇▇▇/▇▇▇▇▇/▇▇▇▇▇▇▇▇.▇▇▇, on the Borrower’s IntraLinks site at ▇▇▇▇▇▇▇▇▇▇.▇▇▇ or at another website identified in such notice and accessible by the Lenders without charge; provided that (i) such notice may be included in a certificate delivered pursuant to Section 6.1.3 and such notice or certificate shall also be deemed to have been delivered upon being posted to the Borrower’s IntraLinks site or such other website and (ii) the Borrower shall deliver paper copies of the information referred to in Sections 6.1.1, 6.1.2 and 6.1.7 to any Lender which requests such delivery.
Appears in 1 contract
Financial Reporting. The Borrower will maintainLoan Parties shall keep and maintain on a calendar year basis, for itself and each Subsidiary, a system of accounting established and administered in accordance with GAAPthe requirements for a Special Purpose Entity set forth herein, as applicable, and furnish GAAP (or such other consistently applied accounting basis that is reasonably acceptable to the Administrative Agent), proper and accurate books, records and accounts reflecting all of the financial affairs of the Loan Parties and all items of income and expense in connection with the operation on an individual basis of the Financed Properties. The Administrative Agent shall have the right from time to time at all times during normal business hours upon reasonable notice (and, in any event, not more than twice in any calendar year (unless an Event of Default shall have occurred and be continuing, in which case no such restriction shall apply)) to examine such books, records, accounts, agreements, leases, instruments and other documents and the collection systems of the Loan Parties or Manager at the offices of the Loan Parties or any other Person maintaining such books, records and accounts and to make such copies or extracts thereof as the Administrative Agent shall desire. After the occurrence of an Event of Default, the Loan Parties shall pay any reasonable costs and expenses incurred by the Administrative Agent to examine the Loan Parties’ and the Managers’ accounting records, as the Administrative Agent shall determine to be necessary or appropriate in the protection of the Lenders’ interest. The Loan Parties will furnish the following financial reports to the Administrative Agent:
(i) as soon as available and in any event within sixty (60) days after the end of each calendar quarter commencing with the first calendar quarter ending after the Closing Date, (A) consolidated balance sheets, statements of operations and retained earnings and statements of cash flows of the Loan Parties; provided that such consolidated balance sheets, statements of operations and retained earnings and statements of cash flows furnished for the calendar quarter ending June 30, 2017 shall be solely with respect to the Borrowers, (B) for any calendar quarter ending prior to the Restatement Effective Date, consolidated balance sheets, statements of operations and retained earnings and statements of cash flows of the Parent and its Subsidiaries, (C) for any calendar quarter ending prior to the Restatement Effective Date, consolidated balance sheets, statements of operations and retained earnings and statements of cash flows of JV Sponsor and its Subsidiaries and (D) consolidated balance sheets, statements of operations and retained earnings and statements of cash flows of (i) for any calendar quarter ending prior to the Restatement Effective Date, Limited Indemnitor and its Subsidiaries and (ii) for any calendar quarter ending from and after the Restatement Effective Date, commencing with the calendar quarter ending September 30, 2017, the Sponsor and it Subsidiaries, in each case, as at the end of such quarter and for the period commencing at the end of the immediately preceding calendar year and ending with the end of such quarter, setting forth in each case in comparative form the figures for the corresponding date or period of the immediately preceding calendar year, all in reasonable detail and certified by a Responsible Officer of Equity Owner, Parent, JV Sponsor, Limited Indemnitor or Sponsor, as applicable, as fairly presenting, in all material respects, the consolidated financial position of such Persons as of the end of such quarter and the results of operations and cash flows of such Persons for such quarter, in accordance with GAAP applied in a manner consistent with that of the most recent audited financial statements of such Persons furnished to the Administrative Agent and the Lenders:, subject to normal year-end adjustments and the absence of footnotes;
6.1.1 Within (ii) for each calendar year ending prior to the Restatement Effective Date, as soon as available, and in any event within ninety (90) days after the close end of such calendar year, (A) consolidated balance sheets, statements of operations and retained earnings, and statements of cash flows of the Loan Parties, (B) consolidated balance sheets, statements of operations and retained earnings, and statements of cash flows of Parent and its Subsidiaries, (C) consolidated balance sheets, statements of operations and retained earnings, and statements of cash flows of JV Sponsor and its Subsidiaries and (D) consolidated balance sheets, statements of operations and retained earnings, and statements of cash flows of Limited Indemnitor and its Subsidiaries, in each case, as at the end of its fiscal yearssuch calendar year, financial statements setting forth in each case in comparative form the corresponding figures for the immediately preceding calendar year (if any), all in reasonable detail and prepared in accordance with GAAP GAAP, and accompanied by a report and an unqualified opinion, prepared in accordance with generally accepted auditing standards, of a Big Four accounting firm or other independent certified public accountants of recognized national standing selected by such Person that is reasonably acceptable to the Administrative Agent (which opinion on such consolidated information shall be without (1) any qualification as to the scope of such audit or (2) a “going concern” or like qualification), together with a written statement of such accountants (A) to the effect that, in making the examination necessary for their certification of such financial statements, they have not obtained any actual knowledge of the existence of an Event of Default and (B) if such accountants shall have obtained any knowledge of the existence of an Event of Default, describing the nature thereof;
(iii) for each calendar year ending after the Restatement Effective Date, as soon as available, and in any event within ninety (90) days after the end of such calendar year, (A) consolidated basis for itself balance sheets, statements of operations and retained earnings, and statements of cash flows of the Loan Parties, (B) consolidated balance sheets, statements of operations and retained earnings, and statements of cash flows of Sponsor and its Subsidiaries, including balance sheets in each case, as of at the end of such period, statements of income and statements of cash flowscalendar year, setting forth in each case in comparative form the corresponding figures for the immediately preceding fiscal yearcalendar year (if any), all in reasonable detail and prepared in accordance with GAAP, and accompanied by a report and an audit reportunqualified opinion, consistent prepared in accordance with the requirements of the Securities and Exchange Commissiongenerally accepted auditing standards, of a nationally recognized Big Four accounting firm of independent public accountants or other independent certified public accountants of recognized national standing selected by such Person that is reasonably acceptable to the Required Lenders.Administrative Agent (which opinion on such consolidated information shall be without (1) any qualification as to the scope of such audit or (2) a “going concern” or like qualification), together with a written statement of such accountants (A) to the effect that, in making the examination necessary for their certification of such financial statements, they have not obtained any actual knowledge of the existence of an Event of Default and (B) if such accountants shall have obtained any knowledge of the existence of an Event of Default, describing the nature thereof;
6.1.2 Within (iv) as soon as available, and in any event within forty-five (45) days after the close end of each calendar month (A) an operating statement in respect of such calendar month and a calendar year-to-date operating statement for the Borrowers on a combined basis, (B) a statement for each Financed Property showing (1) rent roll in respect of such calendar month and calendar year-to-date, (2) vacancy status, (3) security deposits maintained, (4) Tenant payment status, (5) Capital Expenditures, repairs, leasing commissions and turnover costs, (6) property tax and insurance payments, (7) other income and (8) any known violations of any Legal Requirements that may render any Financed Property ineligible for lease or would otherwise be material to any Loan Party or subject a Loan Party to criminal penalties, and (C) upon the Administrative Agent’s request, other information that is reasonably requested regarding the financial position, ongoing maintenance and results of operation of the first three quarterly periods of each of its fiscal years, financial statements prepared in accordance with GAAP Financed Properties (other than with regard to the absence of footnotes and subject to changes resulting from audit and normal year-end audit adjustments to same) on a consolidated basis for itself and its Subsidiaries, including, consolidated unaudited balance sheets as at combined basis) during such calendar month;
(v) simultaneously with the close delivery of each such period and consolidated unaudited statements of income and a statement of cash flows for the period from the beginning of such fiscal year to the end of such quarter, in each case setting forth in comparative form figures for the corresponding period of the preceding fiscal year, and accompanied by a certificate of the chief financial officer or treasurer of the Borrower to the effect that such quarterly financial statements fairly present in all material respects the financial condition of the Borrower and its Subsidiaries and have been prepared in accordance with GAAP (other than with regard to the absence of footnotes and subject to changes resulting from audit and normal year-end audit adjustments to same).
6.1.3 Together with the financial statements required under Sections 6.1.1 and 6.1.2by clauses (i), (iii) and (iii) above, a compliance certificate of an Responsible Officer of Equity Owner stating that such Responsible Officer has reviewed the provisions of this Agreement and the other Loan Documents and has made or caused to be made under his or her supervision a review of the condition and operations of the Relevant Parties with a view to determining whether the Relevant Parties are in substantially the form of Exhibit B signed by an Authorized Officer (a) showing the calculations necessary to determine compliance with Section 6.16the provisions of this Agreement and such Loan Documents at the time of such review, (b) stating and that no such review has not disclosed, and such Responsible Officer has not obtained actual knowledge of, the existence of an Event of Default or Unmatured Default or, if an Event of Default or Default exists, or if any Default or Unmatured Default exists, stating describing the nature and status period of existence thereof and (c) updating Schedule 1 with respect to its Subsidiaries, Material Subsidiaries and Excluded Subsidiaries, if appropriate and (ii) such financial information as reasonable requested by the Agent, including, but not limited to consolidating financial statements, as is necessary to account for Excluded Indebtedness and Excluded EBITDA for purposes of determining the Consolidated Leverage Ratio.
6.1.4 If requested, within 270 days after the close of each fiscal year of the Borrower, a copy of the actuarial report showing the Unfunded Liabilities of each Single Employer Plan as of the valuation date occurring in such fiscal year, certified by an actuary enrolled under ERISA.
6.1.5 As soon as possible and in any event within ten (10) days after an Authorized Officer knows that any Reportable Event has occurred with respect to any Plan that could reasonably be expected to have a Material Adverse Effect, a statement, signed by an Authorized Officer, describing said Reportable Event and the action which the Borrower proposes Relevant Parties propose to take or have taken with respect thereto.;
6.1.6 From time to time such additional information regarding (vi) simultaneously with the delivery of the financial position or business statements required by clauses (i), (ii) and (iii) above, a reconciliation for the relevant period of the Borrower consolidated net income of the Borrowers to Underwritten Net Cash Flow;
(vii) simultaneously with the delivery of the financial statements required by clause (i) above for (A) any calendar quarter ending prior to the Restatement Effective Date, a duly completed Compliance Certificate with respect to each of the Parent and its Subsidiaries as the AgentLimited Indemnitor, at with appropriate insertions, containing the request data and calculations set forth on Exhibit I-1 and I-2 to the Existing Agreement, respectively (including, in the Compliance Certificate with respect to the Limited Indemnitor, a calculation in reasonable detail of any Lender, may reasonably request, including the support for any pro forma calculations hereunder.
6.1.7 Promptly, upon items set forth in the filing thereof, copies definition of all registration statements (other than any registration statement on Form S-8 and any registration statement in connection with a dividend reinvestment plan, shareholder purchase plan or employee benefit planLimited Indemnitor Financial Covenants) and reports on form 10-K(B) any calendar quarter ending from and after the Restatement Effective Date, 10-Q or 8-K (or their equivalentsi) which the Borrower or any of its Subsidiaries files commencing with the Securities calendar quarter ending June 30, 2017, a duly completed Compliance Certificate with respect to each of the Loan Parties, with appropriate insertions, containing the data and Exchange Commission.
6.1.8 Promptly, information regarding any change in the Borrower’s Debt Rating. Information required to be delivered pursuant to these Sections 6.1.1, 6.1.2, and 6.1.7 shall be deemed to have been delivered calculations set forth on the date on which the Borrower provides notice to the Lenders that such information has been posted on the Securities and Exchange Commission website on the Internet at ▇▇▇.▇▇▇/▇▇▇▇▇/▇▇▇▇▇▇▇▇.▇▇▇, on the Borrower’s IntraLinks site at ▇▇▇▇▇▇▇▇▇▇.▇▇▇ or at another website identified in such notice and accessible by the Lenders without chargeExhibit I-1; provided that (i) such notice may be included in a certificate Compliance Certificate delivered pursuant to Section 6.1.3 for the calendar quarter ending June 30, 2017 shall contain data and such notice or certificate shall also be deemed to have been delivered upon being posted calculations solely with respect to the Borrower’s IntraLinks site or such other website Borrowers, and (ii) commencing with the Borrower shall deliver paper copies calendar quarter ending September 30, 2017, a duly completed Compliance Certificate with respect to the Sponsor, with appropriate insertions, containing the data and calculations set forth on I-2 (including a calculation in reasonable detail of the information referred items set forth in the definition of Sponsor Financial Covenants); and
(viii) promptly after the end of each calendar month, monthly account statements or, to in Sections 6.1.1the extent not previously provided, 6.1.2 online access to each Property Account and 6.1.7 to any Lender which requests such deliveryBorrower Operating Account.
Appears in 1 contract
Financial Reporting. The Borrower and the General Partner each will maintain, for itself and each Subsidiary, a system of accounting established and administered in accordance with GAAPAgreement Accounting Principles, and furnish to the Agent (and Agent shall thereafter promptly deliver to the Lenders:):
6.1.1 (i) Within ninety (90) 90 days after the close of each of its fiscal years, financial statements an unqualified (except for qualifications relating to changes in accounting principles or practices reflecting changes in generally accepted accounting principles and required or approved by the General Partner's independent certified public accountants) audit report certified by independent certified public accountants acceptable to the Agent (which shall include KPMG), prepared in accordance with GAAP Agreement Accounting Principles on a consolidated basis for itself and its Subsidiariesthe Consolidated Group, including balance sheets as of the end of such period, statements related profit and loss and reconciliation of income surplus statements, and statements a statement of cash flows, setting forth in comparative form figures for the preceding fiscal year, accompanied by an audit report, consistent with the requirements of the Securities and Exchange Commission, of a nationally recognized firm of independent public accountants or other independent public accountants reasonably acceptable to the Required Lenders.
6.1.2 (ii) Within forty-five (45) 45 days after the close of the first three quarterly periods of each of its fiscal years, financial statements prepared in accordance with GAAP (other than with regard to for the absence of footnotes and subject to changes resulting from audit and normal year-end audit adjustments to same) on a consolidated basis for itself and its Subsidiaries, includingConsolidated Group, consolidated unaudited balance sheets as at the close of each such period and consolidated unaudited profit and loss and reconciliation of surplus statements of income and a statement of cash flows for the period from the beginning of such fiscal year to the end of such quarter, in each case setting forth in comparative form figures for the corresponding period of the preceding fiscal year, and accompanied all certified by a certificate of the its chief financial officer or treasurer principal accounting officer and, upon request by the Agent, within 45 days after the close of any quarterly period. Borrower shall provide to Agent a listing of capital expenditures, a report listing and describing all newly acquired Properties, including their cash flow, cost and secured or unsecured Indebtedness assumed in connection with such acquisition, if any, summary Property information for all Properties, including, without limitation, their Net Operating Income, occupancy rates, square footage, property type and date acquired or built, and such other information as may be reasonably requested by Agent to evaluate the Borrower to the effect that such quarterly financial statements fairly present in all material respects the financial condition of the Borrower compliance certificate delivered as provided below, and its Subsidiaries and have been prepared in accordance with GAAP (other than with regard to the absence of footnotes and subject to changes resulting from audit and normal year-end audit adjustments to same)any additional information regarding Qualifying Investment Affiliates as Agent may reasonably request.
6.1.3 (iii) Together with the financial statements required under Sections 6.1.1 6.1(i) and 6.1.2(ii), (i) a compliance certificate in substantially the form of Exhibit B signed by an Authorized Officer (a) its chief financial officer or principal accounting officer showing the calculations necessary to determine compliance with Section 6.16, (b) this Agreement and stating that no Default or Unmatured Default exists, or if any Default or Unmatured Default exists, stating the nature and status thereof and (c) updating Schedule 1 with respect to its Subsidiaries, Material Subsidiaries and Excluded Subsidiaries, if appropriate and (ii) such financial information as reasonable requested by the Agent, including, but not limited to consolidating financial statements, as is necessary to account for Excluded Indebtedness and Excluded EBITDA for purposes of determining the Consolidated Leverage Ratiothereof.
6.1.4 If requested, within 270 days after the close of each fiscal year of the Borrower, a copy of the actuarial report showing the Unfunded Liabilities of each Single Employer Plan as of the valuation date occurring in such fiscal year, certified by an actuary enrolled under ERISA.
6.1.5 (iv) As soon as possible and in any event within ten (10) 10 days after an Authorized Officer the Borrower or the General Partner knows that any Reportable Event has occurred with respect to any Plan that could reasonably be expected to have a Material Adverse EffectPlan, a statement, signed by an Authorized Officerthe chief financial officer of the Borrower, describing said Reportable Event and the action which the Borrower or the General Partner proposes to take with respect thereto.
6.1.6 From time (v) As soon as possible and in any event within 10 days after receipt by the Borrower or the General Partner, a copy of (a) any written notice or claim to time such additional information regarding the financial position effect that the Borrower or business the General Partner or any of their Subsidiaries is or may be liable to any Person as a result of the Borrower and its Subsidiaries as release by the AgentBorrower, at the request General Partner, any of their Subsidiaries, or any other Person of any Lendertoxic or hazardous waste or substance into the environment, may and (b) any written notice alleging any violation of any federal, state or local environmental, health or safety law or regulation by the Borrower, the General Partner or any of their Subsidiaries, which, in either case of (a) or (b), could reasonably request, including the support for any pro forma calculations hereunderbe expected to have a Material Adverse Effect.
6.1.7 Promptly(vi) Promptly upon the furnishing thereof to the shareholders of the General Partner, copies of all financial statements, material reports and proxy statements so furnished.
(vii) Promptly upon the filing thereof, copies of all registration statements (and Form lOKs, Form lOQs, proxy statements, and upon request of the Agent any other than any registration statement on Form S-8 and any registration statement in connection with a dividend reinvestment plan, shareholder purchase plan reports which the General Partner or employee benefit plan) and reports on form 10-K, 10-Q or 8-K (or their equivalents) which the Borrower or any of its Subsidiaries files with the Securities and Exchange Commission.
6.1.8 Promptly, (viii) Such other information regarding any change in (including non financial information) as the Borrower’s Debt Rating. Information required to be delivered pursuant to these Sections 6.1.1, 6.1.2, and 6.1.7 shall be deemed to have been delivered on the date on which the Borrower provides notice to the Lenders that such information has been posted on the Securities and Exchange Commission website on the Internet at ▇▇▇.▇▇▇/▇▇▇▇▇/▇▇▇▇▇▇▇▇.▇▇▇, on the Borrower’s IntraLinks site at ▇▇▇▇▇▇▇▇▇▇.▇▇▇ Agent or at another website identified in such notice and accessible by the Lenders without charge; provided that (i) such notice may be included in a certificate delivered pursuant to Section 6.1.3 and such notice or certificate shall also be deemed to have been delivered upon being posted to the Borrower’s IntraLinks site or such other website and (ii) the Borrower shall deliver paper copies of the information referred to in Sections 6.1.1, 6.1.2 and 6.1.7 to any Lender which requests such deliverymay from time to time reasonably request.
Appears in 1 contract
Sources: Term Loan Agreement (Amli Residential Properties Trust)
Financial Reporting. The Each of Parent and the Borrower will maintain, for itself and each Subsidiaryof its respective Subsidiaries, a system of accounting established and administered in accordance with GAAP, and furnish to the Agent and the Lenders:Administrative Agent: LEGAL02/46224329v7
6.1.1 Within ninety (90i) days after the close of each of its fiscal years, financial statements prepared in accordance with GAAP on a consolidated basis for itself and its Subsidiaries, including balance sheets as of the end of such period, statements of income and statements of cash flows, setting forth in comparative form figures for the preceding fiscal year, accompanied by an audit report, consistent with the requirements of the Securities and Exchange Commission, of a nationally recognized firm of independent public accountants or other independent public accountants reasonably acceptable to the Required Lenders.
6.1.2 Within Not later than forty-five (45) days after the close of each of the first three quarterly periods (3) fiscal quarters of each of its fiscal yearsyear, financial statements prepared in accordance commencing with GAAP (other than with regard to the absence of footnotes and subject to changes resulting from audit and normal year-end audit adjustments to same) on a consolidated basis fiscal quarter ended June 30, 2025, for itself Parent and its Subsidiaries, including, a copy of Parent’s financial statements in the form filed under 10-Q which shall include an unaudited consolidated unaudited balance sheets sheet as at of the close of each such period and the related unaudited consolidated unaudited statements of income and retained earnings and of cash flows of Parent and its Subsidiaries for such period and the portion of the fiscal year through the end of such period, setting forth in each case (commencing with the fiscal quarter ending March 31, 2026) in comparative form the figures for the previous year, all certified by ▇▇▇▇▇▇’s chief financial officer or chief accounting officer;
(ii) Not later than forty-five (45) days after the close of each of the first three (3) fiscal quarters of each fiscal year, commencing with the fiscal quarter ended June 30, 2025, for Parent and its Subsidiaries, a copy of Parent’s quarterly financial supplement and other schedules as may be required containing the following reports in form and substance reasonably satisfactory to the Lenders, which may be in the form filed as its 10-Q, all certified by Parent’s chief financial officer or chief accounting officer: a statement of Funds From Operations, a statement detailing Consolidated Outstanding Indebtedness, Consolidated Secured Indebtedness, Consolidated Unsecured Indebtedness, Consolidated Cash Flow and, upon request, an asset schedule listing all consolidated assets and their net operating income for the trailing twelve-month period, with a breakdown between Unencumbered Assets and other assets, and Acquisition Assets;
(iii) Not later than ninety (90) days after the close of each fiscal year, for Parent and its Subsidiaries, (A) audited annual financial statements in the form filed as 10-K, including a consolidated balance sheet as at the end of such year and the related consolidated statements of income and retained earnings and of cash flows for the period from the beginning of such fiscal year to the end of such quarteryear, setting forth in each case setting forth in comparative form the figures for the corresponding period previous year, without a “going concern” or like qualification or exception, or qualification arising out of the preceding fiscal yearscope of the audit, prepared by PricewaterhouseCoopers (or other independent certified public accountants of nationally recognized standing reasonably acceptable to Administrative Agent) and (B) an asset schedule listing all consolidated assets and their net operating income for the trailing twelve-month period, with a breakdown between Unencumbered Assets and other assets, and accompanied by a certificate of the chief financial officer or treasurer of the Borrower to the effect that such quarterly financial statements fairly present in all material respects the financial condition of the Borrower and its Subsidiaries and have been prepared in accordance with GAAP Acquisition Assets;
(other than with regard to the absence of footnotes and subject to changes resulting from audit and normal year-end audit adjustments to same).
6.1.3 iv) Together with the quarterly and annual financial statements required under Sections 6.1.1 and 6.1.2hereunder, (i) a compliance certificate in substantially the form of Exhibit B D hereto signed by an Authorized Officer (a) ▇▇▇▇▇▇’s chief financial officer or chief accounting officer showing the calculations and computations necessary to determine compliance with Section 6.16this Agreement and stating that, (b) stating that to such officer’s knowledge, no Default or Unmatured Default exists, or if if, to such officer’s knowledge, any Default or Unmatured Default exists, stating the nature and status thereof and thereof; LEGAL02/46224329v7
(cv) updating Schedule 1 with respect to its Subsidiaries, Material Subsidiaries and Excluded Subsidiaries, if appropriate and (ii) such financial information as reasonable requested by the Agent, including, but not limited to consolidating financial statements, as is necessary to account for Excluded Indebtedness and Excluded EBITDA for purposes of determining the Consolidated Leverage Ratio.
6.1.4 If requested, within 270 days after the close of each fiscal year of the Borrower, a copy of the actuarial report showing the Unfunded Liabilities of each Single Employer Plan as of the valuation date occurring in such fiscal year, certified by an actuary enrolled under ERISA.
6.1.5 As soon as possible Promptly and in any event within ten (10) days after an Authorized Officer a responsible officer of Parent knows that any Reportable Event has occurred with respect to any Plan Plan, a statement, signed by the chief financial officer of Parent, describing said Reportable Event and the action which Parent and the Borrower propose to take with respect thereto;
(vi) Promptly and in any event within ten (10) days after receipt by an Authorized Officer of Parent, a copy of (a) any notice or claim to the effect that could Parent, the Borrower or any of their respective Subsidiaries is or may be liable to any Person as a result of the release by Parent, any of its Subsidiaries, or any other Person of any toxic or hazardous waste or substance into the environment, (b) any notice alleging any violation of any federal, state or local environmental, health or safety law or regulation by Parent or any of its Subsidiaries, and (c) the filing or commencement of any action, suit, proceeding or investigation by or before any Governmental Authority or arbitrator against or affecting Parent or any Subsidiary which, in any case, would reasonably be expected to have a Material Adverse Effect;
(vii) Promptly upon the furnishing thereof to the shareholders of Parent, a statementcopies of all financial statements, signed by an Authorized Officer, describing said Reportable Event reports and the action which the Borrower proposes to take with respect thereto.proxy statements so furnished;
6.1.6 From time to time such additional information regarding the financial position or business of the Borrower and its Subsidiaries as the Agent, at the request of any Lender, may reasonably request, including the support for any pro forma calculations hereunder.
6.1.7 Promptly, (viii) Promptly upon the filing thereof, copies of all registration statements (and annual, quarterly, monthly or other than any registration statement on Form S-8 reports and any registration statement in connection with a dividend reinvestment plan, shareholder purchase plan or employee benefit plan) and reports on form 10-K, 10-Q or 8-K (or their equivalents) other public information which the Borrower Parent or any of its Subsidiaries files with the Securities and Exchange Commission.; and
6.1.8 Promptly(ix) (A) Such other information (including, without limitation, financial statements for Parent, the Borrower or any of their respective Subsidiaries and non-financial information) as the Administrative Agent or any Lender may from time to time reasonably request, (B) information regarding and documentation reasonably requested by the Administrative Agent or any Lender for purposes of compliance with applicable “know your customer” and anti-money laundering rules and regulations, including the Patriot Act and the Beneficial Ownership Regulation, and (C) notice of any change in the Borrower’s Debt Ratinginformation provided in any Beneficial Ownership Certification delivered to such Lender that would result in a change to the list of beneficial owners identified in such Beneficial Ownership Certification. Information Documents required to be delivered pursuant to these Sections 6.1.16.1(i), 6.1.2(ii), (iii), (vii) or (viii) (to the extent any such documents are included in materials otherwise filed with the Securities and 6.1.7 Exchange Commission) may be delivered electronically and if so delivered, shall be deemed to have been delivered on the date (i) on which the Borrower Parent posts such documents, or provides notice to the Lenders that such information has been posted a link thereto, on the Securities and Exchange Commission Parent’s website on the Internet at ▇▇▇.▇▇▇/▇▇▇▇▇/▇▇▇▇▇▇▇▇.▇▇▇the website address listed in Article XIII; or (ii) on which such documents are posted on Parent’s behalf on an Internet or intranet website, if any, to which each Lender and the Administrative Agent have access (whether a commercial, third-party website or whether sponsored by the Administrative Agent). The Administrative Agent shall have no obligation to request the delivery of or to maintain paper copies of the documents referred to above, and in any event shall have no responsibility to monitor compliance by Parent or the Borrower LEGAL02/46224329v7 with any such request by a Lender for delivery, and each Lender shall be solely responsible for requesting delivery to it or maintaining its copies of such documents. Each of Parent and the Borrower hereby acknowledges that (a) the Administrative Agent and/or the Joint Lead Arrangers will make available to the Lenders materials and/or information provided by or on behalf of Parent or the Borrower hereunder (collectively, “Borrower Materials”) by posting the Borrower Materials on the Borrower’s IntraLinks site at ▇▇▇▇▇▇▇▇▇▇.▇▇▇ or at another website identified in such notice Approved Electronic Platform and accessible by (b) certain of the Lenders without charge; provided may be “public-side” Lenders (i.e., Lenders that do not wish to receive material non-public information with respect to Parent or the Borrower or its securities) (each, a “Public Lender”). Each of Parent and the Borrower hereby agrees that (iw) such notice may all Borrower Materials that are to be included in made available to Public Lenders shall be clearly and conspicuously marked “PUBLIC” which, at a certificate delivered pursuant to Section 6.1.3 minimum, shall mean that the word “PUBLIC” shall appear prominently on the first page thereof; (x) by marking Borrower Materials “PUBLIC,” Parent and such notice or certificate the Borrower shall also be deemed to have been delivered upon being posted authorized the Administrative Agent, the Joint Lead Arrangers, and the Lenders to treat such Borrower Materials as not containing any material non-public information with respect to Parent or the Borrower’s IntraLinks site Borrower or such other website its securities for purposes of United States Federal and state securities laws; (y) all Borrower Materials marked “PUBLIC” are permitted to be made available through a portion of the Approved Electronic Platform designated “Public Side Information;” and (iiz) the Administrative Agent and the Joint Lead Arrangers shall treat any Borrower shall deliver paper copies Materials that are not marked “PUBLIC” as being suitable only for posting on a portion of the information referred to in Sections 6.1.1, 6.1.2 and 6.1.7 to any Lender which requests such deliveryApproved Electronic Platform not designated “Public Side Information.”
Appears in 1 contract
Financial Reporting. The Borrower will maintain, for itself and each Subsidiaryits Subsidiaries, a system of accounting established and administered in accordance with GAAPAgreement Accounting Principles, and furnish to the Agent and the Lenders:
6.1.1 Within ninety (90i) As soon as practicable but in any event within 105 days after the close of each of its fiscal years, an audit report (which audit report shall be unqualified or shall be otherwise reasonably acceptable to the Required Lenders; PROVIDED that such report may set forth qualifications to the extent such qualifications pertain solely to changes in generally accepted accounting principles from the Agreement Accounting Principles applied during earlier accounting periods, the implementation of which changes (with the concurrence of such accountants) is reflected in the financial statements accompanying such report), certified by independent certified public accountants who are reasonably acceptable to the Required Lenders, prepared in accordance with GAAP Agreement Accounting Principles on a consolidated and consolidating divisional basis (consolidating divisional statements need not be certified by such accountants and need be prepared only consistently with the past practices of the Borrower with respect to the preparation of its divisional statements) for itself and its Subsidiaries, including balance sheets as of the end of such period, period and the related statements of income income, and statements of consolidated stockholder's equity and cash flows, setting forth in comparative form figures for the preceding fiscal year, accompanied by an audit reporta certificate of said accountants that, consistent with in the requirements course of their examination necessary for their certification of the Securities foregoing, they have obtained no knowledge of any Default or Unmatured Default, or if, in the opinion of such accountants, any Default or Unmatured Default shall exist, stating the nature and Exchange Commission, of a nationally recognized firm of independent public accountants or other independent public accountants reasonably acceptable to the Required Lendersstatus thereof.
6.1.2 Within forty-five (45ii) As soon as practicable but in any event within 60 days after the close of each of the first three quarterly periods of each of its fiscal years, financial statements prepared in accordance with GAAP (other than with regard to the absence of footnotes and subject to changes resulting from audit and normal year-end audit adjustments to same) on a consolidated basis for itself and its Subsidiaries, including, Subsidiaries on a consolidated unaudited and consolidating divisional basis (consolidating divisional statements need be prepared only consistently with the past practices of the Borrower with respect to the preparation of its divisional statements) balance sheets as at of the close end of each such period and consolidated unaudited the related statements of income income, and a statement of consolidated stockholder's equity and cash flows for the period from the beginning of such fiscal year to the end of such quarter, in each case setting forth in comparative form figures for the corresponding period all certified by its Chief Financial Officer or Treasurer as to fairness of the preceding fiscal yearpresentation and prepared, and accompanied by a certificate of the chief financial officer or treasurer of the Borrower with respect to the effect that such quarterly financial statements fairly present in all material respects the financial condition of the Borrower and its Subsidiaries and have been prepared consolidated statements, in accordance with GAAP Agreement Accounting Principles (other than with regard to the absence of footnotes and subject to changes resulting from audit and normal year-year end audit adjustments to sameadjustments).
6.1.3 Together with the financial statements required under Sections 6.1.1 and 6.1.2, (i) a compliance certificate in substantially the form of Exhibit B signed by an Authorized Officer (a) showing the calculations necessary to determine compliance with Section 6.16, (b) stating that no Default or Unmatured Default exists, or if any Default or Unmatured Default exists, stating the nature and status thereof and (c) updating Schedule 1 with respect to its Subsidiaries, Material Subsidiaries and Excluded Subsidiaries, if appropriate and (ii) such financial information as reasonable requested by the Agent, including, but not limited to consolidating financial statements, as is necessary to account for Excluded Indebtedness and Excluded EBITDA for purposes of determining the Consolidated Leverage Ratio.
6.1.4 If requested, within 270 days after the close of each fiscal year of the Borrower, a copy of the actuarial report showing the Unfunded Liabilities of each Single Employer Plan as of the valuation date occurring in such fiscal year, certified by an actuary enrolled under ERISA.
6.1.5 As soon as possible and in any event within ten (10) days after an Authorized Officer knows that any Reportable Event has occurred with respect to any Plan that could reasonably be expected to have a Material Adverse Effect, a statement, signed by an Authorized Officer, describing said Reportable Event and the action which the Borrower proposes to take with respect thereto.
6.1.6 From time to time such additional information regarding the financial position or business of the Borrower and its Subsidiaries as the Agent, at the request of any Lender, may reasonably request, including the support for any pro forma calculations hereunder.
6.1.7 Promptly, upon the filing thereof, copies of all registration statements (other than any registration statement on Form S-8 and any registration statement in connection with a dividend reinvestment plan, shareholder purchase plan or employee benefit plan) and reports on form 10-K, 10-Q or 8-K (or their equivalents) which the Borrower or any of its Subsidiaries files with the Securities and Exchange Commission.
6.1.8 Promptly, information regarding any change in the Borrower’s Debt Rating. Information required to be delivered pursuant to these Sections 6.1.1, 6.1.2, and 6.1.7 shall be deemed to have been delivered on the date on which the Borrower provides notice to the Lenders that such information has been posted on the Securities and Exchange Commission website on the Internet at ▇▇▇.▇▇▇/▇▇▇▇▇/▇▇▇▇▇▇▇▇.▇▇▇, on the Borrower’s IntraLinks site at ▇▇▇▇▇▇▇▇▇▇.▇▇▇ or at another website identified in such notice and accessible by the Lenders without charge; provided that (i) such notice may be included in a certificate delivered pursuant to Section 6.1.3 and such notice or certificate shall also be deemed to have been delivered upon being posted to the Borrower’s IntraLinks site or such other website and (ii) the Borrower shall deliver paper copies of the information referred to in Sections 6.1.1, 6.1.2 and 6.1.7 to any Lender which requests such delivery.
Appears in 1 contract
Financial Reporting. The Borrower will maintain, for itself and each Subsidiary, a system of accounting established and administered in accordance with GAAP, and Companies agree to furnish to the Agent and the Lenders (it being understood that the filing of any of the following by Parent with the Securities and Exchange Commission shall constitute "furnishing to the Agent and the Lenders:" for all purposes hereunder):
6.1.1 Within (i) (x) within ninety (90) days after the end of each fiscal year of Parent, a Consolidated Balance Sheet and a Consolidating Balance Sheet as at the close of each such year, and consolidated and consolidating statements of profit and loss and cash flow of Parent and its fiscal yearsconsolidated Subsidiaries for such year, audited by independent public accountants selected by Parent, together with (x) the unqualified opinion of the accountants preparing such consolidated financial statements prepared in accordance with GAAP on and (y) if requested by the Agent, such accountants' management practice letter, as soon as practicable after such letter is received by Parent;
(a) within thirty (30) days after the end of each month (excluding the months of February and March of each fiscal year), (x) a consolidated basis for itself Consolidated Balance Sheet and its Subsidiaries, including balance sheets a Consolidating Balance Sheet as of at the end of such periodmonth, (y) consolidated and consolidating statements of income profit and loss of Parent and its consolidated Subsidiaries for the period commencing on the first day of the current fiscal year through the end of such month, and consolidated statements of cash flowsprofit and loss for such month, setting forth in and (z) comparative form figures statements of profit and loss of Parent and its consolidated Subsidiaries for the preceding same month and same fiscal year-to-date period in the prior fiscal year, accompanied certified by an audit report, consistent with the requirements authorized financial or accounting officer of the Securities and Exchange Commission, of a nationally recognized firm of independent public accountants Funds Administrator (or any other independent public accountants reasonably acceptable authorized officer satisfactory to the Required Lenders.Agent); and
6.1.2 Within (b) within forty-five (45) days after the close of the first three quarterly periods end of each of its fiscal yearsquarter, financial statements prepared in accordance with GAAP (other than with regard to the absence of footnotes x) a Consolidated Balance Sheet and subject to changes resulting from audit and normal year-end audit adjustments to same) on a consolidated basis for itself and its Subsidiaries, including, consolidated unaudited balance sheets Consolidating Balance Sheet as at the close of each such period and consolidated unaudited statements of income and a statement of cash flows for the period from the beginning of such fiscal year to the end of such fiscal quarter, in each case setting forth in comparative form figures (y) consolidated and consolidating statements of profit and loss of Parent and its consolidated Subsidiaries for the corresponding period commencing on the first day of the preceding current fiscal year through the end of such fiscal quarter, and consolidated statements of profit and loss for such fiscal quarter, and (z) comparative statements of profit and loss of Parent and its consolidated Subsidiaries for the same fiscal quarter and same fiscal year, and accompanied by a certificate of -to-date period in the chief financial officer or treasurer of the Borrower to the effect that such quarterly financial statements fairly present in all material respects the financial condition of the Borrower and its Subsidiaries and have been prepared in accordance with GAAP (other than with regard to the absence of footnotes and subject to changes resulting from audit and normal year-end audit adjustments to same).
6.1.3 Together with the financial statements required under Sections 6.1.1 and 6.1.2, (i) a compliance certificate in substantially the form of Exhibit B signed by an Authorized Officer (a) showing the calculations necessary to determine compliance with Section 6.16, (b) stating that no Default or Unmatured Default exists, or if any Default or Unmatured Default exists, stating the nature and status thereof and (c) updating Schedule 1 with respect to its Subsidiaries, Material Subsidiaries and Excluded Subsidiaries, if appropriate and (ii) such financial information as reasonable requested by the Agent, including, but not limited to consolidating financial statements, as is necessary to account for Excluded Indebtedness and Excluded EBITDA for purposes of determining the Consolidated Leverage Ratio.
6.1.4 If requested, within 270 days after the close of each fiscal year of the Borrower, a copy of the actuarial report showing the Unfunded Liabilities of each Single Employer Plan as of the valuation date occurring in such prior fiscal year, certified by an actuary enrolled under authorized financial or accounting officer of the Funds Administrator (or any other authorized officer satisfactory to the Agent);
(iii) as and when filed by Parent and/or any of its Subsidiaries, copies of all (x) financial reports, registration statements and other documents filed by Parent with the U.S. Securities and Exchange Commission, as and when filed by Parent, and (ii) annual reports filed pursuant to ERISA in connection with each benefit plan of each Company subject to ERISA.; and
6.1.5 As soon as possible and in any event within ten (10iv) no later than forty-five (45) days after an Authorized Officer knows that any Reportable Event has occurred with respect prior to any Plan that could reasonably the beginning of each fiscal year of Parent, monthly projections of Consolidated Balance Sheet of Parent and its consolidated Subsidiaries, and consolidated statements of profits and loss of Parent and its consolidated Subsidiaries, as well as monthly projected Net Availability for the Companies for such fiscal year. Each financial statement which the Companies are required to submit pursuant to clauses (i) and (ii) above must be expected to have accompanied by a Material Adverse Effect, a statementCompliance Certificate substantially in the form set forth on Exhibit D attached hereto, signed by an Authorized Officer, describing said Reportable Event and authorized financial or accounting officer of the action Funds Administrator (or any other authorized officer satisfactory to the Agent). The financial statements which the Borrower proposes to take with respect thereto.
6.1.6 From time to time such additional information regarding the financial position or business of the Borrower and its Subsidiaries as the Agent, at the request of any Lender, may reasonably request, including the support for any pro forma calculations hereunder.
6.1.7 Promptly, upon the filing thereof, copies of all registration statements (other than any registration statement on Form S-8 and any registration statement in connection with a dividend reinvestment plan, shareholder purchase plan or employee benefit plan) and reports on form 10-K, 10-Q or 8-K (or their equivalents) which the Borrower or any of its Subsidiaries files with the Securities and Exchange Commission.
6.1.8 Promptly, information regarding any change in the Borrower’s Debt Rating. Information Companies is required to be delivered submit pursuant to these Sections 6.1.1, 6.1.2, and 6.1.7 shall be deemed to have been delivered on the date on which the Borrower provides notice to the Lenders that such information has been posted on the Securities and Exchange Commission website on the Internet at ▇▇▇.▇▇▇/▇▇▇▇▇/▇▇▇▇▇▇▇▇.▇▇▇, on the Borrower’s IntraLinks site at ▇▇▇▇▇▇▇▇▇▇.▇▇▇ or at another website identified in such notice and accessible by the Lenders without charge; provided that (i) such notice may be included in a certificate delivered pursuant to Section 6.1.3 and such notice or certificate shall also be deemed to have been delivered upon being posted to the Borrower’s IntraLinks site or such other website and clause (ii) (b) above must also be reviewed by independent public accountants selected by Parent. In addition, should the Borrower shall Companies modify their accounting principles and procedures from those in effect on the Closing Date, the Companies agree to prepare and deliver paper copies to the Agent and the Lenders statements of reconciliation in form and substance reasonably satisfactory to the information referred to in Sections 6.1.1, 6.1.2 and 6.1.7 to any Lender which requests such deliveryAgent.
Appears in 1 contract
Financial Reporting. The Borrower will maintain, for itself and each Subsidiary, a system of accounting established and administered in accordance with GAAP, and furnish to the Agent and the Lenders:
6.1.1 Within ninety (90i) As soon as available, but in any event not later than 45 days after the close of each of its fiscal yearsquarter, financial statements prepared in accordance with GAAP on a consolidated basis for itself Borrower and its Subsidiaries, including an unaudited consolidated and consolidating balance sheets sheet as of the end of such period, statements of income and statements of cash flows, setting forth in comparative form figures for the preceding fiscal year, accompanied by an audit report, consistent with the requirements of the Securities and Exchange Commission, of a nationally recognized firm of independent public accountants or other independent public accountants reasonably acceptable to the Required Lenders.
6.1.2 Within forty-five (45) days after the close of the first three quarterly periods of each of its fiscal years, financial statements prepared in accordance with GAAP (other than with regard to the absence of footnotes and subject to changes resulting from audit and normal year-end audit adjustments to same) on a consolidated basis for itself and its Subsidiaries, including, consolidated unaudited balance sheets as at the close of each such period and the related unaudited consolidated unaudited and consolidating statements of income and retained earnings for such period and the portion of the fiscal year through the end of such period and of year to date cash flows of Borrower and its Subsidiaries, all certified by an Authorized Financial Officer;
(ii) As soon as available, but in any event not later than 45 days after the close of each fiscal quarter, for Borrower and its Subsidiaries, related reports in form and substance satisfactory to Lenders, all certified by Borrower's Authorized Financial Officer, a statement detailing Consolidated Outstanding Indebtedness;
(iii) As soon as available, but in any event not later than 90 days after the close of each fiscal year, for Borrower and its Subsidiaries, (i) audited financial statements, including a consolidated balance sheet as at the end of such year and the related consolidated statements of income and retained earnings and of cash flows for the period from the beginning of such fiscal year to the end of such quarteryear, in each case setting forth in comparative form the figures for the corresponding period previous year, reported on without a "going concern" or like qualification or exception, by Ernst & Young, LLP (or other independent certified public accountants of nationally recognized standing acceptable to (Agent), and (ii) unaudited financial statements, including a consolidating balance sheet as at the preceding end of such year and the related consolidating statements of income and retained earnings and of cash flow for such year;
(iv) As soon as available, but in any event not later than 90 days after the close of each fiscal year, and accompanied by a certificate of the chief financial officer or treasurer of the Borrower to the effect that such quarterly financial statements fairly present in all material respects the financial condition of the for Borrower and its Subsidiaries Subsidiaries, the following related reports in form and have been prepared in accordance with GAAP substance satisfactory to Lenders, all certified by the entity's Authorized Financial Officer: a statement of Consolidated Outstanding Indebtedness;
(other than with regard to the absence of footnotes and subject to changes resulting from audit and normal year-end audit adjustments to same).
6.1.3 v) Together with the quarterly and annual financial statements required under Sections 6.1.1 and 6.1.2hereunder, (i) a compliance certificate in substantially the form of Exhibit B EXHIBIT L hereto signed by an Authorized Officer (a) showing the calculations and computations necessary to determine compliance with Section 6.16, (b) the financial covenants set forth in this Agreement and stating that no Default or Unmatured Default exists, or if any Default or Unmatured Default exists, stating the nature and status thereof and thereof;
(cvi) updating Schedule 1 with respect to its Subsidiaries, Material Subsidiaries and Excluded Subsidiaries, if appropriate and (ii) such financial information as reasonable requested by the Agent, including, but not limited to consolidating financial statements, as is necessary to account for Excluded Indebtedness and Excluded EBITDA for purposes of determining the Consolidated Leverage Ratio.
6.1.4 If requested, within 270 days after the close of each fiscal year of the Borrower, a copy of the actuarial report showing the Unfunded Liabilities of each Single Employer Plan as of the valuation date occurring in such fiscal year, certified by an actuary enrolled under ERISA.
6.1.5 As soon as possible and in any event within ten (10) 10 days after an Authorized Officer Borrower knows that any Reportable Event has occurred with respect to any Plan that could reasonably be expected to have a Material Adverse EffectPlan, a statement, signed by an Authorized OfficerFinancial Officer of Borrower, describing said Reportable Event and the action which the Borrower proposes to take with respect thereto.;
6.1.6 From time (vii) As soon as possible and in any event within 10 days after receipt by Borrower, a copy of (a) any notice or claim to time such additional information regarding the financial position effect that Borrower or business any of its Subsidiaries is or may be liable to any Person as a result of the Borrower and release by any Borrower, any of its Subsidiaries as the AgentSubsidiaries, at the request or any other Person of any Lendertoxic or hazardous waste or substance into the environment, may which could reasonably requestbe expected to result in a Material Adverse Change and (b) any notice alleging any violation of any federal, including the support for state or local environmental, health or safety law or regulation by Borrower or any pro forma calculations hereunder.of its Subsidiaries, which, in either case, could reasonably be expected to result in a Material Adverse Change;
6.1.7 Promptly, (viii) Promptly upon the filing thereoffurnishing thereof to the shareholders of Borrower, copies of all financial statements, reports and proxy statements so furnished;
(ix) Within three (3) business days after due to the SEC, copies of all registration statements (and annual, quarterly, monthly or other than any registration statement on Form S-8 reports and any registration statement in connection with a dividend reinvestment plan, shareholder purchase plan or employee benefit plan) and reports on form 10-K, 10-Q or 8-K (or their equivalents) other public information which the Borrower or any of its Subsidiaries files with the Securities and Exchange Commission; and
(x) Such other information (including, without limitation, financial statements for Borrower and nonfinancial information) as Agent may from time to time reasonably request.
6.1.8 Promptly, information regarding any change in the Borrower’s Debt Rating. Information required to be delivered pursuant to these Sections 6.1.1, 6.1.2, and 6.1.7 shall be deemed to have been delivered on the date on which the Borrower provides notice to the Lenders that such information has been posted on the Securities and Exchange Commission website on the Internet at ▇▇▇.▇▇▇/▇▇▇▇▇/▇▇▇▇▇▇▇▇.▇▇▇, on the Borrower’s IntraLinks site at ▇▇▇▇▇▇▇▇▇▇.▇▇▇ or at another website identified in such notice and accessible by the Lenders without charge; provided that (i) such notice may be included in a certificate delivered pursuant to Section 6.1.3 and such notice or certificate shall also be deemed to have been delivered upon being posted to the Borrower’s IntraLinks site or such other website and (ii) the Borrower shall deliver paper copies of the information referred to in Sections 6.1.1, 6.1.2 and 6.1.7 to any Lender which requests such delivery.
Appears in 1 contract
Sources: Credit Agreement (Pioneer Standard Electronics Inc)
Financial Reporting. The Borrower will maintain, for itself and each Subsidiary, a system of accounting established and administered in accordance with GAAPgenerally accepted accounting principles, and furnish to the Administrative Agent and the Lenders:
6.1.1 (a) Within ninety (90) 90 days after the close of each of its fiscal years, financial statements an unqualified (except for qualifications relating to changes in accounting principles or practices reflecting changes in generally accepted accounting principles) audit report, with no going concern modifier, certified by independent certified public accountants acceptable to the Lenders, prepared in accordance with GAAP on a consolidated and consolidating basis (consolidating statements need not be certified by such accountants) for itself and its Subsidiaries, including balance sheets as of the end of such period, statements related profit and loss and reconciliation of income surplus statements, and statements a statement of cash flows, setting forth in comparative form figures for the preceding fiscal year, accompanied by an audit report, consistent with the requirements of the Securities and Exchange Commission, of a nationally recognized firm of independent public accountants or other independent public accountants reasonably acceptable to the Required Lenders(a) any management letter prepared by said accountants.
6.1.2 (b) Within forty-five (45) 45 days after the close of the first three quarterly periods of each of its fiscal years, financial statements prepared in accordance with GAAP (other than with regard to the absence of footnotes and subject to changes resulting from audit and normal year-end audit adjustments to same) on a consolidated basis for itself and its Subsidiaries, including, consolidated and consolidating unaudited balance sheets as at the close of each such period and consolidated unaudited and consolidating profit and loss and reconciliation of surplus statements (including sufficient detail for independent calculation of income the financial covenants set forth in Section 6.16) and a statement of cash flows for the period from the beginning of such fiscal year to the end of such quarter, in all certified by its chief financial officer.
(c) Within 45 days after the close of each case setting forth in comparative form figures for the corresponding period fiscal quarter, copies of the preceding fiscal yearquarterly (and where appropriate, annual) call reports and accompanied other regulatory reports, including, without limitation, FRY-9C and FRY-9LP reports filed by a certificate of the chief financial officer Borrowers or treasurer of any Subsidiary Bank with any regulatory authority, provided that, for any period for which the Borrower is required to the effect that file such quarterly financial statements fairly present in all material respects the financial condition of the Borrower FRY-9C and its Subsidiaries FRY-9LP reports semi-annually, only such semi-annual reports shall be delivered within 45 days after June 30 and have been prepared in accordance with GAAP (other than with regard to the absence of footnotes and subject to changes resulting from audit and normal year-end audit adjustments to same)December 31.
6.1.3 (d) Together with the financial statements required under Sections 6.1.1 6.1(a) and 6.1.2(b), (i) a compliance certificate in substantially the form of Exhibit B signed by an Authorized Officer (a) its chief financial officer showing the calculations necessary to determine compliance with Section 6.16, (b) this Agreement and stating that no Default or Unmatured Event of Default exists, or if any Default or Unmatured Event of Default exists, stating the nature and status thereof and (c) updating Schedule 1 with respect to its Subsidiaries, Material Subsidiaries and Excluded Subsidiaries, if appropriate and (ii) such financial information as reasonable requested by the Agent, including, but not limited to consolidating financial statements, as is necessary to account for Excluded Indebtedness and Excluded EBITDA for purposes of determining the Consolidated Leverage Ratiothereof.
6.1.4 If requested, within 270 days after (e) Promptly upon the close of each fiscal year furnishing thereof to the shareholders of the Borrower, a copy copies of the actuarial report showing the Unfunded Liabilities of each Single Employer Plan as of the valuation date occurring in such fiscal yearall financial statements, certified by an actuary enrolled under ERISAreports and proxy statements so furnished.
6.1.5 As soon as possible and in any event within ten (10f) days after an Authorized Officer knows that any Reportable Event has occurred with respect to any Plan that could reasonably be expected to have a Material Adverse Effect, a statement, signed by an Authorized Officer, describing said Reportable Event and the action which the Borrower proposes to take with respect thereto.
6.1.6 From time to time such additional information regarding the financial position or business of the Borrower and its Subsidiaries as the Agent, at the request of any Lender, may reasonably request, including the support for any pro forma calculations hereunder.
6.1.7 Promptly, Promptly upon the filing thereof, copies of all registration statements (and annual, quarterly, monthly or other than any registration statement on Form S-8 and any registration statement in connection with a dividend reinvestment plan, shareholder purchase plan or employee benefit plan) and regular reports on form 10-K, 10-Q or 8-K (or their equivalents) which the Borrower or any of its Subsidiaries files with the Securities and Exchange Commission.
6.1.8 Promptly(g) As soon as available, information regarding any change to the extent allowed by law, copies of all Regulatory Actions that have not been disclosed in the Borrower’s Debt Ratingmost recent call report delivered to the Administrative Agent affecting or pertaining to the Borrower or any Subsidiary Bank.
(h) Upon any Authorized Officer of the Borrower becoming aware of any adverse development in any Regulatory Action, a notice from the Borrower describing the nature thereof, the nature and status of such Regulatory Action, and, within a reasonable time thereafter, what action the Borrower proposes to take with respect thereto.
(i) Such other information (including non-financial information and environmental reports) as the Administrative Agent or any Lender may from time to time reasonably request. Information If any information which is required to be delivered furnished to the Lenders under this Section 6.1 is required by law or regulation to be filed by the Borrower with a government body on an earlier date, then the information required hereunder shall be furnished to the Lenders at such earlier date. Any financial statement required to be furnished pursuant to these Sections 6.1.1, 6.1.2, and 6.1.7 Section 6.1(a) or Section 6.1(b) shall be deemed to have been delivered furnished on the date on which the Lenders receive notice that the Borrower provides notice to the Lenders that has filed such information has been posted on financial statement with the Securities and Exchange Commission and is available on the E▇▇▇▇ website on the Internet at ▇w▇▇.▇▇▇/▇▇▇▇▇/▇▇▇▇▇▇▇▇.▇▇▇, on the Borrower’s IntraLinks site at ▇▇▇▇▇▇▇▇▇▇.▇▇▇ or at another any successor government website identified in such notice that is freely and accessible by readily available to the Administrative Agent and the Lenders without charge; provided that (i) the Borrower shall give notice of any such notice may be included in a certificate delivered pursuant to Section 6.1.3 and such notice or certificate shall also be deemed to have been delivered upon being posted filing to the Borrower’s IntraLinks site or Administrative Agent (who shall then give notice of any such other website and (ii) filing to the Lenders). Notwithstanding the foregoing, the Borrower shall deliver paper copies of any such financial statement to the information referred Administrative Agent if the Administrative Agent requests the Borrower to in Sections 6.1.1, 6.1.2 and 6.1.7 furnish such paper copies until written notice to any Lender which requests cease delivering such deliverypaper copies is given by the Administrative Agent.
Appears in 1 contract
Financial Reporting. The Borrower will maintain, for itself and each Subsidiary, a system of accounting established and administered in accordance with GAAP, and furnish to the Agent and the LendersAdministrative Agent:
6.1.1 (a) Within ninety (90) 120 days after the close of each of its fiscal years, financial statements an unqualified (except for qualifications relating (1) to changes in accounting principles or practices reflecting changes in GAAP, (2) for any period within twelve months of the Facility Termination Date, the impending maturity of the Obligations) audit report, with no going concern modifier, certified by (1) nationally recognized independent certified accountants or (2) independent certified public accountants acceptable to the Lenders, prepared in accordance with GAAP on a consolidated basis for itself the Loan Parties and its their respective Subsidiaries, including balance sheets as of the end of such period, statements related profit and loss and reconciliation of income surplus statements, and statements a statement of cash flows, setting forth in comparative form figures for the preceding fiscal yearaccompanied by, accompanied if prepared and delivered, any management letter prepared by an audit report, consistent with the requirements of the Securities and Exchange Commission, of a nationally recognized firm of independent public accountants or other independent public accountants reasonably acceptable to the Required Lenderssaid accountants.
6.1.2 (b) Within forty-five (45) days after the close of the first three (3) quarterly periods of each of its fiscal years, financial statements prepared in accordance with GAAP (other than with regard to for the absence of footnotes Loan Parties and subject to changes resulting from audit and normal year-end audit adjustments to same) on a consolidated basis for itself and its their respective Subsidiaries, including, consolidated unaudited balance sheets as at the close of each such period and consolidated unaudited profit and loss statements (including sufficient detail for independent calculation of income the financial covenants set forth in Section 6.23) and a statement of cash flows for the period from the beginning of such fiscal year to the end of such quarter, in each case setting forth in comparative form figures for the corresponding period of the preceding fiscal year, and accompanied all certified by a certificate of the its chief financial officer or treasurer of the Borrower to the effect that such quarterly financial statements fairly present in all material respects the financial condition of the Borrower and its Subsidiaries and have been as being prepared in accordance with GAAP (other than with regard to the absence of footnotes and GAAP, subject to changes resulting from audit and normal year-end audit adjustments to same)and the absence of footnotes.
6.1.3 Together with the financial statements required under Sections 6.1.1 and 6.1.2, (i) a compliance certificate in substantially the form of Exhibit B signed by an Authorized Officer (a) showing the calculations necessary to determine compliance with Section 6.16, (b) stating that no Default or Unmatured Default exists, or if any Default or Unmatured Default exists, stating the nature and status thereof and (c) updating Schedule 1 with respect to its Subsidiaries, Material Subsidiaries and Excluded Subsidiaries, if appropriate and Within forty-five (ii45) such financial information as reasonable requested by the Agent, including, but not limited to consolidating financial statements, as is necessary to account for Excluded Indebtedness and Excluded EBITDA for purposes of determining the Consolidated Leverage Ratio.
6.1.4 If requested, within 270 days after the close end of each calendar quarter, Borrower shall provide Administrative Agent with a Borrowing Base Certificate (and Administrative Agent will promptly forward to each Lender) showing Borrower’s calculations of the components of the Borrowing Base and such data supporting such calculations as the Administrative Agent may reasonably require, which Borrowing Base Certificate shall be subject to the Administrative Agent’s reasonable approval and adjustment.
(d) As soon as available, but in any event within 30 days after the beginning of each fiscal year of the Borrower, a copy of the actuarial report showing the Unfunded Liabilities of each Single Employer Plan as plan and forecast (including a projected consolidated balance sheet, income statement and cash flow statement) of the valuation date occurring in Borrower for such fiscal year, certified by an actuary enrolled under ERISA.
6.1.5 As soon as possible (e) Together with the financial statements required under Sections 6.1(a) and in any event within ten (10) days after an Authorized Officer knows that any Reportable Event has occurred with respect to any Plan that could reasonably be expected to have a Material Adverse Effectb), a statement, compliance certificate in substantially the form of Exhibit I signed by an Authorized Officerits chief financial officer showing the calculations necessary to determine compliance with Section 6.23 of this Agreement and stating that no Default or Event of Default exists, describing said Reportable or if any Default or Event of Default exists, stating the nature and the action which the Borrower proposes to take with respect theretostatus thereof.
6.1.6 From time to time such additional information regarding the financial position or business of the Borrower and its Subsidiaries as the Agent, at the request of any Lender, may reasonably request, including the support for any pro forma calculations hereunder.
6.1.7 Promptly, (f) Promptly upon the filing thereof, copies of all registration statements (and annual, quarterly, monthly or other than any registration statement on Form S-8 and any registration statement in connection with a dividend reinvestment plan, shareholder purchase plan or employee benefit plan) and regular reports on form 10-K, 10-Q or 8-K (or their equivalents) which the Borrower or any of its Subsidiaries files with the Securities and Exchange CommissionSEC.
6.1.8 Promptly(g) within 20 days after each month-end, a monthly sales report for all Properties and Projects owned by Borrower.
(h) Such other information regarding (including non-financial information and environmental reports, if available) as the Administrative Agent may from time to time reasonably request. If any change in the Borrower’s Debt Rating. Information information which is required to be delivered furnished to the Lenders under this Section 6.1 is required by law or regulation to be filed by the Borrower with a government body on an earlier date, then the information required hereunder shall be furnished to the Lenders at such earlier date. Any financial statement or report required to be furnished pursuant to these Sections 6.1.1Section 6.1(a), 6.1.2, and 6.1.7 Section 6.1(b) or Section 6.1(f) shall be deemed to have been delivered furnished on the date on which the Lenders receive notice that the Borrower provides notice to has filed such financial statement with the Lenders that such information has been posted on the U.S. Securities and Exchange Commission and is available on the ▇▇▇▇▇ website on the Internet at ▇▇▇.▇▇▇/▇▇▇▇▇/▇▇▇▇▇▇▇▇.▇▇▇, on the Borrower’s IntraLinks site at ▇▇▇▇▇▇▇▇▇▇.▇▇▇ or at another any successor government website identified in such notice that is freely and accessible by readily available to the Administrative Agent and the Lenders without charge; provided that (i) such notice may be included in a certificate delivered pursuant to Section 6.1.3 and such notice or certificate shall also be deemed to have been delivered upon being posted to . Notwithstanding the Borrower’s IntraLinks site or such other website and (ii) foregoing, the Borrower shall deliver paper copies of any such financial statement to the information referred Administrative Agent if the Administrative Agent requests the Borrower to in Sections 6.1.1, 6.1.2 and 6.1.7 furnish such paper copies until written notice to any Lender which requests cease delivering such deliverypaper copies is given by the Administrative Agent.
Appears in 1 contract
Financial Reporting. The a. Borrower will maintain, for itself at all times hereafter shall maintain a standard and each Subsidiary, a modern system of accounting established and administered in accordance with GAAPGAAP consistently applied with ledger and account cards and/or computer tapes and computer disks, computer printouts and furnish computer records pertaining to the Agent Collateral which contain information as may from time to time be requested by Bank, not modify or change its method of accounting or enter into, modify or terminate any agreement presently existing, or at any time hereafter entered into with any third party accounting firm and/or service bureau for the preparation and/or storage of Borrower's accounting records without the written consent of Bank first obtained and without said accounting firm and/or service bureau agreeing to provide information regarding the Accounts and Inventory and Borrower's financial condition to Bank; permit Bank and any of its employees, officers or agents, upon demand, during Borrower's usual business hours, or the usual business hours of third persons having control thereof, to have access to and examine all of Borrower's Books relating to the Collateral, Borrower's Indebtedness to Bank, Borrower's financial condition and the Lenders:results of Borrower's operations and in connection therewith, permit Bank or any of its agents, employees or officers to copy and make extracts therefrom.
6.1.1 Within ninety b. Borrower shall deliver to Bank within thirty five (9035) days after the close end of each of its fiscal yearsmonth, monthly consolidated and consolidating financial statements prepared in accordance with GAAP on a consolidated basis for itself of Borrower and its Subsidiariessubsidiaries, including balance sheets as of the end of such period, statements of income and statements of cash flows, setting forth in comparative form figures for the preceding fiscal year, accompanied by an audit report, consistent with the requirements of the Securities and Exchange Commission, of a nationally recognized firm of independent public accountants or other independent public accountants reasonably acceptable deliver to the Required Lenders.
6.1.2 Within forty-Bank forty five (45) days after the close end of each quarter, quarterly consolidated and consolidating financial statements of Borrower and its subsidiaries and deliver to Bank within one hundred twenty (120) days after the first three quarterly periods end of each of its Borrower's fiscal years, years audited annual consolidated financial statements prepared in accordance with GAAP (other than with regard to the absence of footnotes Borrower and subject to changes resulting from audit and normal year-end audit adjustments to same) on subsidiaries, including but not limited to, a consolidated basis for itself and its Subsidiariesbalance sheet, including, consolidated unaudited balance sheets as at the close of each such period and consolidated unaudited statements of income and a statement of cash flows for the period from the beginning of such fiscal year and profit and loss statement and any other report requested by Bank relating to the end Collateral and the financial condition of such quarter, in each case setting forth in comparative form figures for the corresponding period of the preceding fiscal yearBorrower, and accompanied by a certificate signed by an authorized employee of the chief financial officer or treasurer of the Borrower to the effect that such quarterly financial statements fairly all reports, statements, computer disk or tape files, computer printouts, computer runs, or other computer prepared information of any kind or nature relating to the foregoing or documents delivered or caused to be delivered to Bank under this subparagraph are complete, correct and thoroughly present in all material respects the financial condition of the Borrower and its Subsidiaries and have been prepared in accordance with GAAP (other than with regard that there exists on the date of delivery to the absence Bank no condition or event which constitutes a breach or Event of footnotes and subject to changes resulting from audit and normal year-end audit adjustments to same)Default under this Agreement.
6.1.3 Together with c. In addition to the financial statements required under Sections 6.1.1 requested above, Borrower agrees to provide Bank with the following schedules and 6.1.2reports, each in form satisfactory to Bank:
(i1) Accounts Receivable Agings on a compliance certificate monthly basis within twenty (20) days after the end of each month; LOAN AND SECURITY AGREEMENT (ACCOUNTS AND INVENTORY) --------------------------------------------------------------------------------
(2) Accounts Payable Agings on a monthly basis within twenty (20) days after the end of each month;
(3) Borrowing Base Certificate on a monthly basis within twenty (20) days after the end of each month;
(4) Inventory report listing the age of Inventory on hand from the date of purchase on a monthly basis within twenty (20) days after the end of each month;
(5) Compliance Certificate, in substantially the form of Exhibit B signed by A, and a certificate of an Authorized Officer (a) showing the calculations necessary to determine compliance with Section 6.16, (b) stating authorized officer of Borrower that no Event of Default or Unmatured Default exists, or if any Default or Unmatured Default exists, stating the nature and status thereof and has occurred within forty five (c45) updating Schedule 1 with respect to its Subsidiaries, Material Subsidiaries and Excluded Subsidiaries, if appropriate and (ii) such financial information as reasonable requested by the Agent, including, but not limited to consolidating financial statements, as is necessary to account for Excluded Indebtedness and Excluded EBITDA for purposes of determining the Consolidated Leverage Ratio.
6.1.4 If requested, within 270 days after the close end of each fiscal quarter; and
(6) Financial projections for each fiscal year of the Borrower, a copy of the actuarial report showing the Unfunded Liabilities of each Single Employer Plan as of the valuation date occurring in such fiscal year, certified by an actuary enrolled under ERISA.
6.1.5 As soon as possible and in any event within ten forty five (1045) days after an Authorized Officer knows that any Reportable Event has occurred with respect to any Plan that could reasonably be expected to have a Material Adverse Effect, a statement, signed by an Authorized Officer, describing said Reportable Event and the action which the Borrower proposes to take with respect thereto.
6.1.6 From time to time such additional information regarding the financial position or business last day of the Borrower and its Subsidiaries as the Agent, at the request of any Lender, may reasonably request, including the support for any pro forma calculations hereunderprior fiscal year.
6.1.7 Promptly, upon the filing thereof, copies of all registration statements (other than any registration statement on Form S-8 and any registration statement in connection with a dividend reinvestment plan, shareholder purchase plan or employee benefit plan) and reports on form 10-K, 10-Q or 8-K (or their equivalents) which the Borrower or any of its Subsidiaries files with the Securities and Exchange Commission.
6.1.8 Promptly, information regarding any change in the Borrower’s Debt Rating. Information required to be delivered pursuant to these Sections 6.1.1, 6.1.2, and 6.1.7 shall be deemed to have been delivered on the date on which the Borrower provides notice to the Lenders that such information has been posted on the Securities and Exchange Commission website on the Internet at ▇▇▇.▇▇▇/▇▇▇▇▇/▇▇▇▇▇▇▇▇.▇▇▇, on the Borrower’s IntraLinks site at ▇▇▇▇▇▇▇▇▇▇.▇▇▇ or at another website identified in such notice and accessible by the Lenders without charge; provided that (i) such notice may be included in a certificate delivered pursuant to Section 6.1.3 and such notice or certificate shall also be deemed to have been delivered upon being posted to the Borrower’s IntraLinks site or such other website and (ii) the Borrower shall deliver paper copies of the information referred to in Sections 6.1.1, 6.1.2 and 6.1.7 to any Lender which requests such delivery.
Appears in 1 contract
Sources: Loan and Security Agreement (Signature Eyewear Inc)
Financial Reporting. The Borrower will maintain, for itself and each Subsidiary, a system of accounting established and administered in accordance with GAAP, and furnish to the Agent and the LendersAdministrative Agent:
6.1.1 (a) Within ninety (90) 90 days after the close of each of its fiscal years, financial statements an unqualified (except for qualifications relating (1) to changes in accounting principles or practices reflecting changes in GAAP, (2) for any period within twelve months of the Facility Termination Date, the impending maturity of the Obligations) audit report, with no going concern modifier, certified by (1) nationally recognized independent certified accountants or (2) independent certified public accountants acceptable to the Lenders, prepared in accordance with GAAP on a consolidated basis for itself the Loan Parties and its their respective Subsidiaries, including balance sheets as of the end of such period, statements related profit and loss and reconciliation of income surplus statements, and statements a statement of cash flows, setting forth in comparative form figures for the preceding fiscal yearaccompanied by, accompanied if prepared and delivered, any management letter prepared by an audit report, consistent with the requirements of the Securities and Exchange Commission, of a nationally recognized firm of independent public accountants or other independent public accountants reasonably acceptable to the Required Lenderssaid accountants.
6.1.2 (b) Within forty-five (45) days after the close of the first three (3) quarterly periods of each of its fiscal years, financial statements prepared in accordance with GAAP (other than with regard to for the absence of footnotes Loan Parties and subject to changes resulting from audit and normal year-end audit adjustments to same) on a consolidated basis for itself and its their respective Subsidiaries, including, consolidated unaudited balance sheets as at the close of each such period and consolidated unaudited profit and loss statements (including sufficient detail for independent calculation of income the financial covenants set forth in Section 6.23) and a statement of cash flows for the period from the beginning of such fiscal year to the end of such quarter, in each case setting forth in comparative form figures for the corresponding period of the preceding fiscal year, and accompanied all certified by a certificate of the its chief financial officer or treasurer of the Borrower to the effect that such quarterly financial statements fairly present in all material respects the financial condition of the Borrower and its Subsidiaries and have been as being prepared in accordance with GAAP (other than with regard to the absence of footnotes and GAAP, subject to changes resulting from audit and normal year-end audit adjustments to same)and the absence of footnotes.
6.1.3 Together with the financial statements required under Sections 6.1.1 and 6.1.2, (i) a compliance certificate in substantially the form of Exhibit B signed by an Authorized Officer (a) showing the calculations necessary to determine compliance with Section 6.16, (b) stating that no Default or Unmatured Default exists, or if any Default or Unmatured Default exists, stating the nature and status thereof and (c) updating Schedule 1 with respect to its Subsidiaries, Material Subsidiaries and Excluded Subsidiaries, if appropriate and Within forty-five (ii45) such financial information as reasonable requested by the Agent, including, but not limited to consolidating financial statements, as is necessary to account for Excluded Indebtedness and Excluded EBITDA for purposes of determining the Consolidated Leverage Ratio.
6.1.4 If requested, within 270 days after the close end of each calendar quarter, Borrower shall provide Administrative Agent with a Borrowing Base Certificate (and Administrative Agent will promptly forward to each Lender) showing Borrower’s calculations of the components of the Borrowing Base and such data supporting such calculations as the Administrative Agent may reasonably require, which Borrowing Base Certificate shall be subject to the Administrative Agent’s reasonable approval and adjustment.
(d) As soon as available, but in any event within 30 days after the beginning of each fiscal year of the Borrower, a copy of the actuarial report showing the Unfunded Liabilities of each Single Employer Plan as plan and forecast (including a projected consolidated balance sheet, income statement and cash flow statement) of the valuation date occurring in Borrower for such fiscal year, certified by an actuary enrolled under ERISA.
6.1.5 As soon as possible (e) Together with the financial statements required under Sections 6.1(a) and in any event within ten (10) days after an Authorized Officer knows that any Reportable Event has occurred with respect to any Plan that could reasonably be expected to have a Material Adverse Effectb), a statement, compliance certificate in substantially the form of Exhibit I signed by an Authorized Officerits chief financial officer showing the calculations necessary to determine compliance with Section 6.23 of this Agreement and stating that no Default or Event of Default exists, describing said Reportable or if any Default or Event of Default exists, stating the nature and the action which the Borrower proposes to take with respect theretostatus thereof.
6.1.6 From time to time such additional information regarding the financial position or business of the Borrower and its Subsidiaries as the Agent, at the request of any Lender, may reasonably request, including the support for any pro forma calculations hereunder.
6.1.7 Promptly, (f) Promptly upon the filing thereof, copies of all registration statements (and annual, quarterly, monthly or other than any registration statement on Form S-8 and any registration statement in connection with a dividend reinvestment plan, shareholder purchase plan or employee benefit plan) and regular reports on form 10-K, 10-Q or 8-K (or their equivalents) which the Borrower or any of its Subsidiaries files with the Securities and Exchange CommissionSEC.
6.1.8 Promptly(g) within 20 days after each month-end, a monthly sales report for all Properties and Projects owned by Borrower.
(h) Such other information regarding (including non-financial information and environmental reports, if available) as the Administrative Agent may from time to time reasonably request. If any change in the Borrower’s Debt Rating. Information information which is required to be delivered furnished to the Lenders under this Section 6.1 is required by law or regulation to be filed by the Borrower with a government body on an earlier date, then the information required hereunder shall be furnished to the Lenders at such earlier date. Any financial statement or report required to be furnished pursuant to these Sections 6.1.1Section 6.1(a), 6.1.2, and 6.1.7 Section 6.1(b) or Section 6.1(f) shall be deemed to have been delivered furnished on the date on which the Lenders receive notice that the Borrower provides notice has posted such financial statement on a website that is freely and readily available to the Lenders that such information has been posted on the Securities Administrative Agent and Exchange Commission website on the Internet at ▇▇▇.▇▇▇/▇▇▇▇▇/▇▇▇▇▇▇▇▇.▇▇▇, on the Borrower’s IntraLinks site at ▇▇▇▇▇▇▇▇▇▇.▇▇▇ or at another website identified in such notice and accessible by the Lenders without charge; provided that (i) such notice may be included in a certificate delivered pursuant to Section 6.1.3 and such notice or certificate shall also be deemed to have been delivered upon being posted to . Notwithstanding the Borrower’s IntraLinks site or such other website and (ii) foregoing, the Borrower shall deliver paper copies of any such financial statement to the information referred Administrative Agent if the Administrative Agent requests the Borrower to in Sections 6.1.1, 6.1.2 and 6.1.7 furnish such paper copies until written notice to any Lender which requests cease delivering such deliverypaper copies is given by the Administrative Agent.
Appears in 1 contract
Financial Reporting. The Borrower will maintain, for itself and each Subsidiaryits Subsidiaries, a system of accounting established and administered in accordance with GAAPgenerally accepted accounting principles, consistently applied, and will furnish to the Agent and the Lenders:
6.1.1 Within (i) As soon as practicable and in any event within ninety (90) days after the close of each of its fiscal yearsFiscal Years, financial statements an unqualified audit report certified by independent certified public accountants, acceptable to the Lenders, prepared in accordance with GAAP generally accepted accounting principles on a consolidated basis for itself and its Subsidiaries, including balance sheets as of the end of such period, period and related statements of income income, retained earnings and cash flows accompanied by (A) any management letter prepared by said accountants and (B) a certificate of said accountants that, in the course of their examination necessary for their certification of the foregoing, they have obtained no knowledge of any Default or Unmatured Default, or if, in the opinion of such accountants, any Default or Unmatured Default shall exist, stating the nature and status thereof.
(ii) If the Closing Date has not occurred, as soon as practicable upon the same being made available by the Company to the Borrower, an unqualified audit report for the fiscal year of the Company ending September 30, 2010 certified by nationally recognized independent certified accountants, prepared in accordance with generally accepted accounting principles on a consolidated basis for the Company and its subsidiaries, including balance sheets as of the end of such period and related statements of income, retained earnings and cash flows, setting forth flows for such period; provided that the Borrower shall use commercially reasonable efforts to obtain such audit report from the Company promptly following the due date for delivery thereof in comparative form figures for the preceding fiscal year, accompanied by an audit report, consistent accordance with the requirements of the Securities and Exchange Commission, of a nationally recognized firm of independent public accountants or other independent public accountants reasonably acceptable to the Required LendersMerger Agreement.
6.1.2 Within forty-five (45i) As soon as practicable and in any event within 45 days after the close of the first three quarterly periods Fiscal Quarters of each of its fiscal yearsFiscal Years, financial statements prepared in accordance with GAAP (other than with regard to the absence of footnotes and subject to changes resulting from audit and normal year-end audit adjustments to same) on a consolidated basis for itself and its Subsidiaries, including, consolidated unaudited balance sheets as at the close of each such period and consolidated unaudited statements of income income, retained earnings and a statement cash flows for the period from the beginning of such Fiscal Year to the end of such quarter, all certified by its president or chief financial officer.
(ii) If the Closing Date has not occurred, as soon as practicable upon the same being made available by the Company to the Borrower, for the Company and its subsidiaries, consolidated unaudited balance sheets as of the close of any fiscal quarter of the Company ending during the period beginning on the Effective Date and ending on the Closing Date, and consolidated statements of income, retained earnings and cash flows for the period from the beginning of such fiscal year to the end of such fiscal quarter, in each case setting forth in comparative form figures for all certified by the corresponding period of the preceding fiscal year, and accompanied by a certificate of the Company’s president or chief financial officer or treasurer of provided that the Borrower shall use commercially reasonable efforts to obtain such unaudited balance sheets from the effect that such quarterly financial statements fairly present in all material respects Company promptly following the financial condition of the Borrower and its Subsidiaries and have been prepared due date for delivery thereof in accordance with GAAP (other than with regard to the absence of footnotes and subject to changes resulting from audit and normal year-end audit adjustments to same)Merger Agreement.
6.1.3 (c) Together with the financial statements required under Sections 6.1.1 by clauses (a)(i) and 6.1.2(b)(i) above, (i) a compliance certificate in substantially the form of Exhibit B hereto signed by an Authorized Officer the Borrower’s president or chief financial officer (ai) showing the calculations necessary to determine compliance with Section 6.16, (b) stating that no Default or Unmatured Default exists, or if any Default or Unmatured Default exists, stating the nature and status thereof and (c) updating Schedule 1 with respect to its Subsidiaries, Material Subsidiaries and Excluded Subsidiaries, if appropriate and (ii) such financial information as reasonable requested by the Agent, including, but not limited to consolidating financial statements, as is necessary to account for Excluded Indebtedness and Excluded EBITDA for purposes of determining the Consolidated Leverage Ratio.
6.1.4 If requested, within 270 days after the close of each fiscal year of the Borrower, a copy of the actuarial report showing the Unfunded Liabilities of each Single Employer Plan as of the valuation date occurring in such fiscal year, certified by an actuary enrolled under ERISA.
6.1.5 As soon as possible and in any event within ten (10) days after an Authorized Officer knows that any Reportable Event has occurred with respect to any Plan that could reasonably be expected to have a Material Adverse Effect, a statement, signed by an Authorized Officer, describing said Reportable Event and the action which the Borrower proposes to take with respect thereto.
6.1.6 From time to time such additional information regarding the financial position or business of the Borrower and its Subsidiaries as the Agent, at the request of any Lender, may reasonably request, including the support for any pro forma calculations hereunder.
6.1.7 Promptly, upon the filing thereof, copies of all registration statements (other than any registration statement on Form S-8 and any registration statement in connection with a dividend reinvestment plan, shareholder purchase plan or employee benefit plan) and reports on form 10-K, 10-Q or 8-K (or their equivalents) which the Borrower or any of its Subsidiaries files with the Securities and Exchange Commission.
6.1.8 Promptly, information regarding any change in the Borrower’s Debt Rating. Information required to be delivered pursuant to these Sections 6.1.1, 6.1.2, and 6.1.7 shall be deemed to have been delivered on the date on which the Borrower provides notice to the Lenders that such information has been posted on the Securities and Exchange Commission website on the Internet at ▇▇▇.▇▇▇/▇▇▇▇▇/▇▇▇▇▇▇▇▇.▇▇▇, on the Borrower’s IntraLinks site at ▇▇▇▇▇▇▇▇▇▇.▇▇▇ or at another website identified in such notice and accessible by the Lenders without charge; provided that (i) such notice may be included in a certificate delivered pursuant to Section 6.1.3 and such notice or certificate shall also be deemed to have been delivered upon being posted to the Borrower’s IntraLinks site or such other website and (ii) the Borrower shall deliver paper copies of the information referred to in Sections 6.1.1, 6.1.2 and 6.1.7 to any Lender which requests such delivery.with
Appears in 1 contract
Sources: Senior Bridge Term Loan Credit Agreement (Aon Corp)
Financial Reporting. The Borrower will maintain, for itself and each Subsidiary, a system of accounting established and administered in accordance with GAAP, and Borrowers agree to furnish to the Agent and the Lenders:
6.1.1 Within (i) within ninety (90) days after the end of each fiscal year of Skechers, a Consolidated Balance Sheet as at the close of each of its fiscal yearssuch year, financial statements prepared in accordance with GAAP on and a consolidated basis statement of profit and loss and cash flow of Skechers for itself and its Subsidiaries, including balance sheets as of the end of such period, statements of income and statements of cash flows, setting forth in comparative form figures for the preceding fiscal year, accompanied audited by an audit report, consistent with the requirements of the Securities and Exchange Commission, of a nationally recognized firm of independent public accountants or other independent public accountants reasonably acceptable selected by Skechers and satisfactory to the Required Lenders.Agent, together with (x) the unqualified opinion of the accountants preparing such financial statements and (y) if requested by the Agent, such accountants’ management practice letter;
6.1.2 Within (ii) within forty-five (45) days after the close of the first three quarterly periods end of each of its fiscal yearsmonth, financial statements prepared in accordance with GAAP (other than with regard to the absence of footnotes and subject to changes resulting from audit and normal year-end audit adjustments to samex) on a consolidated basis for itself and its Subsidiaries, including, consolidated unaudited balance sheets Consolidated Balance Sheet as at the close of each such period and consolidated unaudited statements of income and a statement of cash flows for the period from the beginning of such fiscal year to the end of such quartermonth, in each case setting forth in comparative form figures (y) a consolidated statement of profit and loss and cash flow of Skechers for such month and for the corresponding period commencing on the first day of the preceding current fiscal year through the end of such month, and (z) comparative statements of profit and loss and cash flow of Skechers for the same month and same fiscal year, and accompanied by a certificate of -to-date period in the chief financial officer or treasurer of the Borrower to the effect that such quarterly financial statements fairly present in all material respects the financial condition of the Borrower and its Subsidiaries and have been prepared in accordance with GAAP (other than with regard to the absence of footnotes and subject to changes resulting from audit and normal year-end audit adjustments to same).
6.1.3 Together with the financial statements required under Sections 6.1.1 and 6.1.2, (i) a compliance certificate in substantially the form of Exhibit B signed by an Authorized Officer (a) showing the calculations necessary to determine compliance with Section 6.16, (b) stating that no Default or Unmatured Default exists, or if any Default or Unmatured Default exists, stating the nature and status thereof and (c) updating Schedule 1 with respect to its Subsidiaries, Material Subsidiaries and Excluded Subsidiaries, if appropriate and (ii) such financial information as reasonable requested by the Agent, including, but not limited to consolidating financial statements, as is necessary to account for Excluded Indebtedness and Excluded EBITDA for purposes of determining the Consolidated Leverage Ratio.
6.1.4 If requested, within 270 days after the close of each fiscal year of the Borrower, a copy of the actuarial report showing the Unfunded Liabilities of each Single Employer Plan as of the valuation date occurring in such prior fiscal year, certified by an actuary enrolled under authorized financial or accounting officer of Skechers (or any other authorized officer satisfactory to the Agent);
(iii) as and when filed by Skechers, copies of all (y) financial reports, registration statements and other documents filed by Skechers with the U.S. Securities and Exchange Commission, as and when filed by Skechers, and (z) annual reports filed pursuant to ERISA in connection with each benefit plan of the Borrowers subject to ERISA.; and
6.1.5 As soon (iv) promptly after receipt of a request from the Agent, monthly projections of Skechers’ Consolidated Balance Sheet, and consolidated statements of profits and loss and cash flow of Skechers, as possible well as monthly projected Net Availability for the Borrowers for the following fiscal year. Each financial statement which the Borrowers are required to submit pursuant to clauses (i) and (ii) above must be accompanied, at any time that Revolving Loans are outstanding, by an officer’s certificate substantially in any event within ten (10) days after an Authorized Officer knows that any Reportable Event has occurred with respect to any Plan that could reasonably be expected to have a Material Adverse Effect, a statementthe form set forth on Exhibit C attached hereto, signed by an Authorized Officerauthorized financial or accounting officer of Skechers (or any other authorized officer satisfactory to the Agent). In addition, describing said Reportable Event should the Borrowers modify their accounting principles and procedures from those in effect on the Restatement Effective Date, the Borrowers agree to prepare and deliver to the Agent and the action which the Borrower proposes Lenders statements of reconciliation in form and substance reasonably satisfactory to take with respect thereto.
6.1.6 From time to time such additional information regarding the financial position or business of the Borrower and its Subsidiaries as the Agent, at the request of any Lender, may reasonably request, including the support for any pro forma calculations hereunder.
6.1.7 Promptly, upon the filing thereof, copies of all registration statements (other than any registration statement on Form S-8 and any registration statement in connection with a dividend reinvestment plan, shareholder purchase plan or employee benefit plan) and reports on form 10-K, 10-Q or 8-K (or their equivalents) which the Borrower or any of its Subsidiaries files with the Securities and Exchange Commission.
6.1.8 Promptly, information regarding any change in the Borrower’s Debt Rating. Information required to be delivered pursuant to these Sections 6.1.1, 6.1.2, and 6.1.7 shall be deemed to have been delivered on the date on which the Borrower provides notice to the Lenders that such information has been posted on the Securities and Exchange Commission website on the Internet at ▇▇▇.▇▇▇/▇▇▇▇▇/▇▇▇▇▇▇▇▇.▇▇▇, on the Borrower’s IntraLinks site at ▇▇▇▇▇▇▇▇▇▇.▇▇▇ or at another website identified in such notice and accessible by the Lenders without charge; provided that (i) such notice may be included in a certificate delivered pursuant to Section 6.1.3 and such notice or certificate shall also be deemed to have been delivered upon being posted to the Borrower’s IntraLinks site or such other website and (ii) the Borrower shall deliver paper copies of the information referred to in Sections 6.1.1, 6.1.2 and 6.1.7 to any Lender which requests such delivery.
Appears in 1 contract
Financial Reporting. The Borrower shall promptly furnish to Administrative Agent all such financial information with respect to Parent, Borrower and its Subsidiaries as Administrative Agent may reasonably request. Without limiting the foregoing, Borrower will maintainfurnish to Administrative Agent the following:
(a) (i) on or before June 3, 2011, with respect to December 31, 2010 and (ii) as soon as available, but in any event not later than one hundred twenty (120) days after the end of each Fiscal Year thereafter, consolidated audited and consolidating audited balance sheets, and statements of income and expense, cash flow and of stockholders' equity for each of (A) Parent and (B) Borrower and its Subsidiaries, for itself such Fiscal Year, and each Subsidiarythe accompanying notes thereto, a system of accounting established and administered prepared in accordance with GAAP, in reasonable detail and furnish fairly presenting the financial position and results of operations of Parent, and Borrower and its consolidated Subsidiaries, respectively, as of the date thereof and for the Fiscal Year then ended. Such statements shall be examined in accordance with generally accepted auditing standards by independent certified public accountants selected by Parent and Borrower, as applicable, and reasonably satisfactory to Administrative Agent, whose report thereon shall not be qualified in any respect. Borrower hereby authorizes Administrative Agent to communicate directly with its certified public accountants and, by this provision, authorizes such accountants to disclose to Administrative Agent any and all financial statements and other supporting financial documents and schedules relating to Borrower and to discuss directly with Administrative Agent the Agent finances and the Lenders:affairs of Borrower.
6.1.1 Within ninety (90b) As soon as available, but in any event not later than thirty (30) days after the close end of each Fiscal Month, consolidated and consolidating unaudited balance sheets of its fiscal years, financial statements prepared in accordance with GAAP on a consolidated basis for itself (i) Parent and (ii) Borrower and its consolidated Subsidiaries, including balance sheets as of the end of such periodFiscal Month, statements of income and statements of cash flows, setting forth in comparative form figures for the preceding fiscal year, accompanied by an audit report, consistent with the requirements of the Securities and Exchange Commission, of a nationally recognized firm of independent public accountants or other independent public accountants reasonably acceptable to the Required Lenders.
6.1.2 Within forty-five (45) days after the close of the first three quarterly periods of each of its fiscal years, financial statements prepared in accordance with GAAP (other than with regard to the absence of footnotes and subject to changes resulting from audit and normal year-end audit adjustments to same) on a consolidated basis for itself and its Subsidiaries, including, consolidated unaudited balance sheets as at the close of each such period and consolidated and consolidating unaudited statements of income and a statement of expense and cash flows flow for Parent, and Borrower and its consolidated Subsidiaries, respectively, for such Fiscal Month and for the period from the beginning of such fiscal year the Fiscal Year to the end of such quarterFiscal Month, all in each case setting forth in comparative form figures for reasonable detail, fairly presenting the corresponding period financial position and results of operations of Parent, and Borrower and its consolidated Subsidiaries, respectively, as of the preceding fiscal yeardate thereof and for such Fiscal Months, and accompanied prepared in accordance with GAAP applied consistently with the audited financial statements required by Section 8.4(a). Borrower shall certify by a certificate of the chief financial officer or treasurer of the Borrower to the effect signed by a Responsible Officer that all such quarterly financial statements fairly present in all material respects the financial condition of the Borrower and its Subsidiaries and have been prepared in accordance with GAAP (other than with regard to the absence of footnotes and present fairly, subject to changes resulting from audit and normal year-end audit adjustments to same)adjustments, the financial position of Parent and Borrower, respectively, as of the dates thereof and its results of operations for the Fiscal Months then ended.
6.1.3 Together with the financial statements required under Sections 6.1.1 and 6.1.2, (i) a compliance certificate in substantially the form of Exhibit B signed by an Authorized Officer (a) showing the calculations necessary to determine compliance with Section 6.16, (b) stating that no Default or Unmatured Default exists, or if any Default or Unmatured Default exists, stating the nature and status thereof and (c) updating Schedule 1 with respect No sooner than sixty (60) days and not less than thirty (30) days prior to its Subsidiaries, Material Subsidiaries and Excluded Subsidiaries, if appropriate and (ii) such financial information as reasonable requested by the Agent, including, but not limited to consolidating financial statements, as is necessary to account for Excluded Indebtedness and Excluded EBITDA for purposes of determining the Consolidated Leverage Ratio.
6.1.4 If requested, within 270 days after the close beginning of each fiscal year Fiscal Year, annual forecasts (to include forecasted consolidated and consolidating balance sheets, statements of the Borrower, a copy income and expenses and statements of the actuarial report showing the Unfunded Liabilities of each Single Employer Plan as of the valuation date occurring in such fiscal year, certified by an actuary enrolled under ERISA.
6.1.5 As soon as possible and in any event within ten (10cash flow) days after an Authorized Officer knows that any Reportable Event has occurred with respect to any Plan that could reasonably be expected to have a Material Adverse Effect, a statement, signed by an Authorized Officer, describing said Reportable Event and the action which the Borrower proposes to take with respect thereto.
6.1.6 From time to time such additional information regarding the financial position or business of the for Borrower and its Subsidiaries as of the Agent, at the request end of any Lender, may reasonably request, including the support and for any pro forma calculations hereundereach Fiscal Month of such Fiscal Year.
6.1.7 Promptly(d) As soon as available, upon the filing but in any event not later than fifteen (15) days after Borrower's receipt thereof, copies a copy of all registration statements management reports and management letters prepared for Parent or Borrower by any independent certified public accountants of Parent or Borrower.
(other than any registration statement on Form S-8 e) Promptly after filing, a copy of each tax return filed by Borrower and any registration statement in connection with a dividend reinvestment plan, shareholder purchase plan or employee benefit planeach Guarantor.
(f) Such additional information as Administrative Agent may from time to time reasonably request regarding the financial and reports on form 10-K, 10-Q or 8-K (or their equivalents) which the business affairs of Borrower or any of its Subsidiaries files with the Securities and Exchange CommissionSubsidiaries.
6.1.8 Promptly, information regarding any change in the Borrower’s Debt Rating. Information required to be delivered pursuant to these Sections 6.1.1, 6.1.2, and 6.1.7 shall be deemed to have been delivered on the date on which the Borrower provides notice to the Lenders that such information has been posted on the Securities and Exchange Commission website on the Internet at ▇▇▇.▇▇▇/▇▇▇▇▇/▇▇▇▇▇▇▇▇.▇▇▇, on the Borrower’s IntraLinks site at ▇▇▇▇▇▇▇▇▇▇.▇▇▇ or at another website identified in such notice and accessible by the Lenders without charge; provided that (i) such notice may be included in a certificate delivered pursuant to Section 6.1.3 and such notice or certificate shall also be deemed to have been delivered upon being posted to the Borrower’s IntraLinks site or such other website and (ii) the Borrower shall deliver paper copies of the information referred to in Sections 6.1.1, 6.1.2 and 6.1.7 to any Lender which requests such delivery.
Appears in 1 contract
Sources: Loan and Security Agreement (Icts International N V)
Financial Reporting. The Borrower will maintain, for itself and each Subsidiary, a system of accounting established and administered in accordance with GAAP, and furnish to the Agent and Furnish the Lenders, through the Agent, with financial reports, in reasonable detail and form approved by the Agent, as follows:
6.1.1 (a) Within ninety (90) 60 days after the close of each of its quarterly accounting period in each fiscal years, financial statements prepared in accordance with GAAP on year:
(i) a consolidated basis statement of Net Worth and a consolidated statement of cash flow of the Borrower and the Subsidiaries for itself such quarterly period; (ii) a consolidated income statement of the Borrower and its Subsidiaries, including the Subsidiaries for such quarterly period; (iii) a consolidated balance sheets sheet of the Borrower and the Subsidiaries as of the end of such quarterly period, statements ; (iv) summary schedules of income and statements of cash flows, setting forth in comparative form figures flow for the preceding fiscal yearBorrower's resort division and pineapple division, accompanied by an audit reportNapili Plaza and Kaahumanu Center, consistent with the requirements of the Securities and Exchange Commission, of a nationally recognized firm of independent public accountants or other independent public accountants reasonably acceptable to the Required Lenders.
6.1.2 Within forty-five (45) days after the close of the first three quarterly periods of each of its fiscal years, financial statements prepared in accordance with GAAP (other than with regard to the absence of footnotes and subject to changes resulting from audit and normal year-end audit adjustments to same) on a consolidated basis for itself and its Subsidiaries, including, consolidated unaudited balance sheets as at certified by the close of each such period and consolidated unaudited statements of income and a statement of cash flows for the period from the beginning of such fiscal year to the end of such quarter, in each case setting forth in comparative form figures for the corresponding period of the preceding fiscal year, and accompanied by a certificate of the Borrower's President or chief financial officer or treasurer of the Borrower to the effect that such quarterly financial statements fairly present in all material respects the financial condition of the Borrower and its Subsidiaries and have been prepared in accordance with GAAP by the Borrower and Subsidiaries, except for any inconsistencies explained in such certificate; and (other than with regard to the absence of footnotes and subject to changes resulting from audit and normal year-end audit adjustments to same).
6.1.3 Together with the financial statements required under Sections 6.1.1 and 6.1.2, (iv) a compliance certificate in substantially written summary of all projects approved by the form Borrower or any of Exhibit B signed by an Authorized Officer (a) showing the calculations necessary its Subsidiaries during such quarterly period which are reasonably expected to determine compliance with Section 6.16, involve Capital Expenditures exceeding $1,000,000.00;
(b) stating that no Default or Unmatured Default exists, or if any Default or Unmatured Default exists, stating the nature and status thereof and (c) updating Schedule 1 with respect to its Subsidiaries, Material Subsidiaries and Excluded Subsidiaries, if appropriate and (ii) such financial information as reasonable requested by the Agent, including, but not limited to consolidating financial statements, as is necessary to account for Excluded Indebtedness and Excluded EBITDA for purposes of determining the Consolidated Leverage Ratio.
6.1.4 If requested, within 270 Within 90 days after the close of each fiscal year year: (i) a consolidated statement of the Borrower, Net Worth and a copy consolidated statement of the actuarial report showing the Unfunded Liabilities of each Single Employer Plan as of the valuation date occurring in such fiscal year, certified by an actuary enrolled under ERISA.
6.1.5 As soon as possible and in any event within ten (10) days after an Authorized Officer knows that any Reportable Event has occurred with respect to any Plan that could reasonably be expected to have a Material Adverse Effect, a statement, signed by an Authorized Officer, describing said Reportable Event and the action which the Borrower proposes to take with respect thereto.
6.1.6 From time to time such additional information regarding the financial position or business cash flow of the Borrower and its the Subsidiaries as the Agent, at the request of any Lender, may reasonably request, including the support for any pro forma calculations hereunder.
6.1.7 Promptly, upon the filing thereof, copies of all registration statements (other than any registration statement on Form S-8 and any registration statement in connection with a dividend reinvestment plan, shareholder purchase plan or employee benefit plan) and reports on form 10-K, 10-Q or 8-K (or their equivalents) which the Borrower or any of its Subsidiaries files with the Securities and Exchange Commission.
6.1.8 Promptly, information regarding any change in the Borrower’s Debt Rating. Information required to be delivered pursuant to these Sections 6.1.1, 6.1.2, and 6.1.7 shall be deemed to have been delivered on the date on which the Borrower provides notice to the Lenders that such information has been posted on the Securities and Exchange Commission website on the Internet at ▇▇▇.▇▇▇/▇▇▇▇▇/▇▇▇▇▇▇▇▇.▇▇▇, on the Borrower’s IntraLinks site at ▇▇▇▇▇▇▇▇▇▇.▇▇▇ or at another website identified in such notice and accessible by the Lenders without chargefiscal year; provided that (i) such notice may be included in a certificate delivered pursuant to Section 6.1.3 and such notice or certificate shall also be deemed to have been delivered upon being posted to the Borrower’s IntraLinks site or such other website and (ii) a consolidated income statement of the Borrower shall deliver paper copies and the Subsidiaries for such fiscal year; (iii) a consolidated balance sheet of the information referred Borrower and the Subsidiaries as of the end of such fiscal year (all of the aforementioned financialstatements to in Sections 6.1.1, 6.1.2 be audited and 6.1.7 certified to any Lender which requests such delivery.without qualification by independent certified public accountants selected by the Borrower);
Appears in 1 contract
Sources: Revolving Credit and Term Loan Agreement (Maui Land & Pineapple Co Inc)
Financial Reporting. The Borrower will maintain, for itself and each Subsidiary, a system of accounting established and administered in accordance with GAAPAgreement Accounting Principles, consistently applied, and furnish to the Agent and the Lenders:
6.1.1 (a) Within ninety (90) 90 days after the close of each of its fiscal years, financial statements an audit report unqualified as to going concern or as to access to information or in any other material respect and certified by independent certified public accountants, acceptable to the Lenders, prepared in accordance with GAAP Agreement Accounting Principles, as in effect from time to time, applied consistently on a consolidated basis for itself and its the Subsidiaries, including balance sheets as of the end of such period, period and related statements of income income, retained earnings, and statements cash flows accompanied by a certificate of cash flowssaid accountants that, setting forth in comparative form figures the course of the examination necessary for their certification of the foregoing, they have obtained no knowledge of any Default or Unmatured Default, or if, in the opinion of such accountants, any Default or Unmatured Default shall exist, stating the nature and status thereof. The 90-day period referenced above shall be extended for up to 15 days for any fiscal year as to which the Borrower has received an extension from the SEC for the preceding fiscal year, accompanied by an audit report, consistent with the requirements filing of the Securities and Exchange Commission, of a nationally recognized firm of independent public accountants or other independent public accountants reasonably acceptable to the Required Lenders.its annual report on SEC Form 10K.
6.1.2 (b) Within forty-five (45) 45 days after the close of the first three quarterly periods of each of its fiscal years, financial statements prepared in accordance with GAAP (other than with regard to the absence of footnotes and subject to changes resulting from audit and normal year-end audit adjustments to same) on a consolidated basis for itself and its the Subsidiaries, including, consolidated unaudited balance sheets as at the close of each such period and consolidated unaudited statements of income income, retained earnings, and a statement of cash flows for the period from the beginning of such fiscal year to the end of such quarter, in each case setting forth in comparative form figures all certified by its chief financial officer. The 45-day period referenced above shall be extended for up to 15 days for any fiscal quarter as to which the Borrower has received an extension from the SEC for the corresponding period filing of its quarterly report on SEC Form 10Q.
(c) Within 45 days after the close of each fiscal quarter, for each of the preceding Borrowing Subsidiaries, consolidating unaudited balance sheets as at the close of each such period and consolidating statements of income for the period from the beginning of such fiscal yearyear to the end of such quarter, and accompanied all certified by a certificate of the Borrower's chief financial officer or treasurer of officer. The 45-day period referenced above shall be extended for up to 15 days for any fiscal quarter as to which the Borrower to has received an extension from the effect that such SEC for the filing of its quarterly financial statements fairly present in all material respects the financial condition of the Borrower and its Subsidiaries and have been prepared in accordance with GAAP report on SEC Form 10Q.
(other than with regard to the absence of footnotes and subject to changes resulting from audit and normal year-end audit adjustments to same).
6.1.3 d) Together with the financial statements required under Sections 6.1.1 by clauses (a) and 6.1.2(b) above, (i) a compliance certificate in substantially the form of Exhibit B G signed by an Authorized Officer (a) of the Borrower showing the calculations necessary to determine compliance with Section 6.16, (b) this Agreement and stating that no Default or Unmatured Default exists, or if any Default or Unmatured Default exists, stating the nature and status thereof and (c) updating Schedule 1 with respect to its Subsidiaries, Material Subsidiaries and Excluded Subsidiaries, if appropriate and (ii) such financial information as reasonable requested by the Agent, including, but not limited to consolidating financial statements, as is necessary to account for Excluded Indebtedness and Excluded EBITDA for purposes of determining the Consolidated Leverage Ratiothereof.
6.1.4 If requested, within 270 days (e) Within 10 Business Days after the close of each fiscal year of the Borrower, a copy of the actuarial report showing the Unfunded Liabilities of each Single Employer Plan as of the valuation date occurring in such fiscal year, certified by an actuary enrolled under ERISA.
6.1.5 As soon as possible and in any event within ten (10) days after an Authorized Officer Borrower knows that any Reportable Termination Event that could reasonably be expected to cause a Material Adverse Effect has occurred with respect to any Plan that could reasonably be expected to have a Material Adverse EffectPlan, a statement, signed by an Authorized OfficerOfficer of the Borrower, describing said Reportable such Termination Event and the action which the Borrower proposes to take with respect thereto.
6.1.6 From time (f) Within 30 days after receipt by the Borrower, a copy of (i) any notice, claim, complaint or order to time such additional information regarding the financial position effect that the Borrower or business any of the Subsidiaries is or may be liable to any Person in an amount which could reasonably be expected to exceed $5,000,000 as a result of the release by the Borrower, any of the Subsidiaries, or any other Person of any Hazardous Materials into the environment or requiring that action be taken to respond to or clean up a Release of Hazardous Materials into the environment and (ii) any notice, complaint, or citation alleging any violation of any Environmental Law or Environmental Permit by the Borrower or any of the Subsidiaries as to which the liability of the Borrower and its the Subsidiaries as the Agent, at the request of any Lender, may reasonably request, including the support for any pro forma calculations hereunderbe expected to exceed $5,000,000.
6.1.7 Promptly(g) Promptly upon the furnishing thereof to the stockholders of the Borrower, copies of all financial statements, reports, and proxy statements so furnished.
(h) Promptly upon the filing thereof, copies of all registration statements (and annual, quarterly, monthly, or other than any registration statement on Form S-8 and any registration statement in connection with a dividend reinvestment plan, shareholder purchase plan or employee benefit plan) and regular reports on form 10-K, 10-Q or 8-K (or their equivalents) which the Borrower or any of its the Subsidiaries files with the Securities and Exchange CommissionSEC.
6.1.8 Promptly, information regarding any change in the Borrower’s Debt Rating. Information required to be delivered pursuant to these Sections 6.1.1, 6.1.2, and 6.1.7 shall be deemed to have been delivered on the date on which the Borrower provides notice to the Lenders that such information has been posted on the Securities and Exchange Commission website on the Internet at ▇▇▇.▇▇▇/▇▇▇▇▇/▇▇▇▇▇▇▇▇.▇▇▇, on the Borrower’s IntraLinks site at ▇▇▇▇▇▇▇▇▇▇.▇▇▇ or at another website identified in such notice and accessible by the Lenders without charge; provided that (i) such notice may be included in a certificate delivered pursuant to Section 6.1.3 and such notice Such other information (including non-financial information) as the Agent or certificate shall also be deemed to have been delivered upon being posted to the Borrower’s IntraLinks site or such other website and (ii) the Borrower shall deliver paper copies of the information referred to in Sections 6.1.1, 6.1.2 and 6.1.7 to any Lender which requests such deliverymay from time to time reasonably request.
Appears in 1 contract
Financial Reporting. The Borrower will maintain, for itself and each Subsidiary, a system of accounting established and administered in accordance with GAAPgenerally accepted accounting principles, and furnish to the Agent and the Lenders:
6.1.1 (i) Within ninety (90) 90 days after the close of each of its fiscal years, financial statements an unqualified (except for qualifications relating to changes in accounting principles or practices reflecting changes in generally accepted accounting principles and required or approved by the Borrower’s independent certified public accountants) audit report certified by independent certified public accountants reasonably acceptable to the Lenders, prepared in accordance with GAAP on a consolidated and consolidating (with respect to Material Domestic Subsidiaries only) basis (consolidating statements need not be certified by such accountants) for itself and its Material Domestic Subsidiaries, including balance sheets as of the end of such period, statements related profit and loss and reconciliation of income surplus statements, and statements a statement of cash flows, setting forth in comparative form figures for the preceding fiscal yearflows (on a consolidated basis only), accompanied by an audit report, consistent with the requirements of the Securities and Exchange Commission, of a nationally recognized firm of independent public accountants or other independent public accountants reasonably acceptable to the Required Lendersany management letter prepared by said accountants.
6.1.2 (ii) Within forty-five (45) 45 days after the close of the first three quarterly periods of each of its fiscal years, financial statements prepared in accordance with GAAP (other than with regard to for the absence of footnotes and subject to changes resulting from audit and normal year-end audit adjustments to same) on a consolidated basis for itself Borrower and its Material Domestic Subsidiaries, including, consolidated and consolidating unaudited balance sheets as at the close of each such period and consolidated unaudited and consolidating profit and loss and reconciliation of surplus statements of income and a statement of cash flows (on a consolidated basis only) for the period from the beginning of such fiscal year to the end of such quarter, in each case setting forth in comparative form figures for the corresponding period of the preceding fiscal year, and accompanied all certified by a certificate of the its chief financial officer or treasurer of the Borrower to the effect that such quarterly financial statements fairly present in all material respects the financial condition of the Borrower and its Subsidiaries and have been prepared in accordance with GAAP (other than with regard to the absence of footnotes and subject to changes resulting from audit and normal year-end audit adjustments to same)controller.
6.1.3 (iii) Together with the financial statements required under Sections 6.1.1 6.1(i) and 6.1.2(ii), (i) a compliance certificate in substantially the form of Exhibit B C signed by an Authorized Officer (a) its chief financial officer or its controller showing the calculations necessary to determine compliance with Section 6.16, (b) this Agreement and stating that no Default or Unmatured Default exists, or if any Default or Unmatured Default exists, stating the nature and status thereof and (c) updating Schedule 1 with respect to its Subsidiaries, Material Subsidiaries and Excluded Subsidiaries, if appropriate and (ii) such financial information as reasonable requested by the Agent, including, but not limited to consolidating financial statements, as is necessary to account for Excluded Indebtedness and Excluded EBITDA for purposes of determining the Consolidated Leverage Ratiothereof.
6.1.4 If requested, within (iv) Within 270 days after the close of each fiscal year of the Borroweryear, a copy statement of the actuarial report showing the Unfunded Liabilities of each Single Employer Plan as of the valuation date occurring in such fiscal yearPlan, certified as correct by an actuary enrolled under ERISA.
6.1.5 (v) As soon as possible and in any event within ten (10) 10 days after an Authorized Officer the Borrower knows that any Reportable Event has occurred with respect to any Plan that could reasonably be expected to have a Material Adverse EffectSingle Employer Plan, a statement, signed by an Authorized Officerthe chief financial officer or controller of the Borrower, describing said Reportable Event and the action which the Borrower proposes to take with respect thereto.
6.1.6 From time (vi) As soon as possible and in any event within 10 days after receipt by the Borrower, a copy of (a) any notice or claim to time such additional information regarding the financial position effect that the Borrower or business any of its Subsidiaries is or may be liable to any Person as a result of the Borrower and release by the Borrower, any of its Subsidiaries as the AgentSubsidiaries, at the request or any other Person of any Lendertoxic or hazardous waste or substance into the environment, may and (b) any notice alleging any violation of any federal, state or local environmental, health or safety law or regulation by the Borrower or any of its Subsidiaries, which, in either case, could reasonably request, including the support for any pro forma calculations hereunderbe expected to have a Material Adverse Effect.
6.1.7 Promptly, (vii) Promptly upon the filing thereof, copies electronic notice to the Administrative Agent of the filing of all proxy statements, registration statements (other than any registration statement on Form S-8 and any registration statement in connection with a dividend reinvestment plan, shareholder purchase plan or employee benefit plan) periodic and current reports on form forms 10-K, 10-Q or 10Q and 8-K (or their equivalents) which the Borrower or any of its Subsidiaries files with the Securities and Exchange Commission.
6.1.8 Promptly, (viii) Such other information regarding (including non-financial information) as the Administrative Agent or any change in the Borrower’s Debt RatingLender may from time to time reasonably request. Information If any information which is required to be delivered pursuant to these Sections 6.1.1, 6.1.2, and 6.1.7 shall be deemed to have been delivered on the date on which the Borrower provides notice furnished to the Lenders that such information has been posted on the Securities and Exchange Commission website on the Internet at ▇▇▇.▇▇▇/▇▇▇▇▇/▇▇▇▇▇▇▇▇.▇▇▇, on the Borrower’s IntraLinks site at ▇▇▇▇▇▇▇▇▇▇.▇▇▇ under this Section 6.1 is required by law or at another website identified in such notice and accessible regulation to be filed by the Lenders without charge; provided that (i) such notice may Borrower with a government body on an earlier date, then the information required hereunder shall be included in a certificate delivered pursuant to Section 6.1.3 and such notice or certificate shall also be deemed to have been delivered upon being posted furnished to the Borrower’s IntraLinks site or Lenders at such other website and (ii) the Borrower shall deliver paper copies of the information referred to in Sections 6.1.1, 6.1.2 and 6.1.7 to any Lender which requests such deliveryearlier date.
Appears in 1 contract
Sources: 364 Day Credit Agreement (Moneygram International Inc)
Financial Reporting. The Borrower Guarantor will maintain, for itself and each Subsidiary, a system of accounting established and administered in accordance with GAAP, and furnish to the Administrative Agent and the Lenders:
6.1.1 Within ninety (90a) commencing the quarter ended March 31, 2025, as soon as available and in any event within sixty days after the close end of each of its the first three quarters of each fiscal yearsyear of the Guarantor, financial statements prepared in accordance with GAAP on a consolidated basis for itself balance sheet of the Guarantor and its Subsidiaries, including balance sheets Subsidiaries as of at the end of such period, quarter and consolidated statements of income and statements of cash flows, setting forth in comparative form figures for the preceding fiscal year, accompanied by an audit report, consistent with the requirements flows of the Securities and Exchange Commission, of a nationally recognized firm of independent public accountants or other independent public accountants reasonably acceptable to the Required Lenders.
6.1.2 Within forty-five (45) days after the close of the first three quarterly periods of each of its fiscal years, financial statements prepared in accordance with GAAP (other than with regard to the absence of footnotes and subject to changes resulting from audit and normal year-end audit adjustments to same) on a consolidated basis for itself Guarantor and its Subsidiaries, including, consolidated unaudited balance sheets as at the close of each such period and consolidated unaudited statements of income and a statement of cash flows Subsidiaries for the period from commencing at the beginning end of such the previous fiscal year to and ending with the end of such quarter, all in each case setting forth in comparative form figures for the corresponding period of the preceding fiscal reasonable detail and duly certified (subject to year, and accompanied -end audit adjustments) by a certificate of the chief financial officer or treasurer of Senior Financial Officer as having been prepared in accordance (in all material respects) with GAAP; provided that delivery by the Borrower to the effect that such quarterly financial statements fairly present in all material respects the financial condition Administrative Agent of copies of the Borrower and its Subsidiaries and have been prepared in accordance with GAAP (other than with regard to the absence of footnotes and subject to changes resulting from audit and normal yearGuarantor’s Quarterly Report on Form 10-end audit adjustments to same).
6.1.3 Together Q filed with the financial statements required Securities and Exchange Commission for any quarter shall satisfy the Borrower’s obligation under Sections 6.1.1 and 6.1.2, (ithis Section 6.1(a) a compliance certificate in substantially the form of Exhibit B signed by an Authorized Officer (a) showing the calculations necessary with respect to determine compliance with Section 6.16, such quarter;
(b) stating that no Default or Unmatured Default existscommencing the fiscal year of the Guarantor ended December 31, or if any Default or Unmatured Default exists, stating the nature and status thereof and (c) updating Schedule 1 with respect to its Subsidiaries, Material Subsidiaries and Excluded Subsidiaries, if appropriate and (ii) such financial information as reasonable requested by the Agent, including, but not limited to consolidating financial statements2025, as is necessary to account for Excluded Indebtedness soon as available and Excluded EBITDA for purposes of determining the Consolidated Leverage Ratio.
6.1.4 If requested, in any event within 270 120 days after the close end of each fiscal year of the BorrowerGuarantor, a copy of the actuarial report showing the Unfunded Liabilities of each Single Employer Plan as audited consolidated balance sheet of the valuation date occurring in Guarantor and its Subsidiaries as at the end of such fiscal year and consolidated statements of income, retained earnings and cash flows of the Guarantor and its Subsidiaries for such fiscal year, such consolidated statements to be accompanied by a report and opinion of an independent certified public accountant of nationally recognized standing, which report and opinion shall be prepared in accordance with generally accepted auditing standards and shall not be subject to any “going concern” or like qualification or exception or any qualification or exception as to the scope of such audit; provided that delivery by an actuary enrolled the Borrower to the Administrative Agent of copies of the Guarantor’s annual Form 10-K filed with the Securities and Exchange Commission for any year shall satisfy the Borrower’s obligation under ERISA.
6.1.5 As soon as possible and in any event within ten (10this Section 6.1(b) days after an Authorized Officer knows that any Reportable Event has occurred with respect to any Plan that could reasonably be expected such year; and
(c) concurrently with the delivery of the financial statements referred to have a Material Adverse Effectin subsections (a) and (b) above, a statement, Compliance Certificate signed by two Senior Financial Officers (x) stating whether a Default or Event of Default has occurred and is continuing on the date of such certificate, and if a Default or an Authorized OfficerEvent of Default has then occurred and is continuing, describing said Reportable Event specifying the details thereof and the action which that the Borrower or the Guarantor, as applicable, has taken or proposes to take with respect thereto.
6.1.6 From time to time such additional information regarding the financial position or business of the Borrower , (y) setting forth in reasonable detail calculations demonstrating compliance with Section 7.8 and its Subsidiaries as the Agent, at the request of any Lender, may reasonably request, including the support for any pro forma calculations hereunder.
6.1.7 Promptly, upon the filing thereof, copies of all registration statements (other than any registration statement on Form S-8 and any registration statement in connection with a dividend reinvestment plan, shareholder purchase plan or employee benefit planz) and reports on form 10-K, 10-Q or 8-K (or their equivalents) which the Borrower or any of its Subsidiaries files with the Securities and Exchange Commission.
6.1.8 Promptly, information regarding stating whether any change in GAAP or the Borrower’s Debt Ratingapplication thereof has occurred since the date of the audited financial statements referred to in Section 5.4 and, if any change has occurred, specifying the effect of such change on the financial statements accompanying such certificate. Information Any financial statement required to be delivered furnished pursuant to these Sections 6.1.1, 6.1.2, and 6.1.7 Section 6.1(a) or (b) shall be deemed to have been delivered furnished on the date on which the Lenders receive notice from the Borrower provides notice to that the Lenders that Borrower has filed such information has been posted on financial statement with the U.S. Securities and Exchange Commission and is available on the ▇▇▇▇▇ website on the Internet at ▇▇▇.▇▇▇/▇▇▇▇▇/▇▇▇▇▇▇▇▇.▇▇▇, on the Borrower’s IntraLinks site at ▇▇▇▇▇▇▇▇▇▇.▇▇▇ or at another any successor government website identified in such notice that is freely and accessible by readily available to the Administrative Agent and the Lenders without charge; provided that (i) . The Borrower will give notice of any such notice may be included in a certificate delivered pursuant to Section 6.1.3 and such notice or certificate shall also be deemed to have been delivered upon being posted filing to the Borrower’s IntraLinks site or Administrative Agent (who will then give notice of any such other website and (ii) filing to the Lenders). Notwithstanding the foregoing, the Borrower shall will deliver paper or electronic copies of any such financial statement to the Administrative Agent if the Administrative Agent requests the Borrower to furnish such paper or electronic copies until written notice to cease delivering such paper or electronic copies is given by the Administrative Agent. If any information required to be furnished to the Lenders under this Section 6.1 is required by Applicable Law to be filed by the Borrower with a government body on an earlier date, then the information referred required hereunder must be furnished to in Sections 6.1.1, 6.1.2 and 6.1.7 to any Lender which requests the Lenders at such deliveryearlier date.
Appears in 1 contract
Financial Reporting. The Borrower will maintain, for itself and each Subsidiary, a system of accounting established and administered in accordance with GAAP, and Companies agree to furnish to the Agent and the Lenders:
6.1.1 Within CIT: (i) within ninety (90) days after the end of each fiscal year of each Company, a Consolidated Balance Sheet and a Consolidating Balance Sheet as at the close of each such year, consolidated and consolidating statements of its fiscal yearsprofit and loss and consolidated statement of cash flow of the Companies for such year, audited by independent public accountants selected by the Companies and reasonably satisfactory to CIT, together with (x) the unqualified opinion of the accountants preparing such financial statements prepared and (y) if requested by CIT, such accountants' management practice letter; (ii) except as provided in accordance with GAAP on Section 7.2(h)(iii), within thirty (30) days after the end of each fiscal month, (x) a consolidated basis for itself Consolidated Balance Sheet and its Subsidiaries, including balance sheets a Consolidating Balance Sheet as of at the end of such periodmonth, (y) consolidated and consolidating statements of income profit and loss and consolidated statement of cash flow of the Companies for such month and for the period commencing on the first day of the current fiscal year through the end of such month, and (z) comparative statements of profit and loss and cash flows, setting forth in comparative form figures flow of the Companies for the preceding same month and same fiscal year-to-date period in the prior fiscal year, accompanied certified by an audit report, consistent with the requirements authorized financial or accounting officer of the Securities and Exchange Commission, of a nationally recognized firm of independent public accountants Funds Administrator (or any other independent public accountants reasonably acceptable authorized officer satisfactory to the Required Lenders.
6.1.2 Within CIT); (iii) within forty-five (45) days after the close of the first three quarterly periods end of each of its fiscal yearsquarter, financial statements prepared in accordance with GAAP (other than with regard to the absence of footnotes x) a Consolidated Balance Sheet and subject to changes resulting from audit and normal year-end audit adjustments to same) on a consolidated basis for itself and its Subsidiaries, including, consolidated unaudited balance sheets Consolidating Balance Sheet as at the close of each such period and consolidated unaudited statements of income and a statement of cash flows for the period from the beginning of such fiscal year to the end of such quarter, in each case setting forth in comparative form figures (y) consolidated and consolidating statements of profit and loss and consolidated statement of cash flow of the Companies for such quarter and for the corresponding period commencing on the first day of the preceding current fiscal year through the end of such quarter, and (z) comparative statements of profit and loss and cash flow of the Companies for the same quarter and same fiscal year-to-date period in the prior fiscal year, and accompanied certified by a certificate an authorized financial or accounting officer of the chief Funds Administrator (or any other authorized officer satisfactory to CIT); (iv) as and when filed by each Company, copies of all (x) financial officer or treasurer of the Borrower to the effect that reports, registration statements and other documents filed by such quarterly financial statements fairly present in all material respects the financial condition of the Borrower and its Subsidiaries and have been prepared in accordance with GAAP (other than with regard to the absence of footnotes and subject to changes resulting from audit and normal year-end audit adjustments to same).
6.1.3 Together Company with the financial statements required under Sections 6.1.1 U.S. Securities and 6.1.2Exchange Commission, (i) a compliance certificate in substantially the form of Exhibit B signed as and when filed by an Authorized Officer (a) showing the calculations necessary to determine compliance with Section 6.16such Company, (b) stating that no Default or Unmatured Default exists, or if any Default or Unmatured Default exists, stating the nature and status thereof and (c) updating Schedule 1 with respect to its Subsidiaries, Material Subsidiaries and Excluded Subsidiaries, if appropriate and (ii) such financial information as reasonable requested by annual reports filed pursuant to ERISA in connection with each benefit plan of each Company subject to ERISA; and (v) no later than the Agent, including, but not limited to consolidating financial statements, as is necessary to account for Excluded Indebtedness and Excluded EBITDA for purposes of determining the Consolidated Leverage Ratio.
6.1.4 If requested, within 270 days after the close first Business Day of each fiscal year of the BorrowerCompanies, a copy monthly projections of the actuarial report showing the Unfunded Liabilities Companies' Consolidated Balance Sheet and Consolidating Balance Sheet, and consolidated and consolidating statements of each Single Employer Plan as profits and loss and quarterly projections of consolidated statement of cash flow of the valuation date occurring in Companies, as well as monthly projected Net Availability for the Companies for such fiscal year, certified . Each financial statement which the Companies are required to submit pursuant to clauses (i) and (ii) above must be accompanied by an actuary enrolled under ERISA.
6.1.5 As soon as possible and officer's certificate substantially in any event within ten (10) days after an Authorized Officer knows that any Reportable Event has occurred with respect to any Plan that could reasonably be expected to have a Material Adverse Effect, a statementthe form set forth on Exhibit A attached hereto, signed by an Authorized Officer, describing said Reportable Event and the action which the Borrower proposes to take with respect thereto.
6.1.6 From time to time such additional information regarding the authorized financial position or business accounting officer of the Borrower and its Subsidiaries as the Agent, at the request of any Lender, may reasonably request, including the support for any pro forma calculations hereunder.
6.1.7 Promptly, upon the filing thereof, copies of all registration statements (other than any registration statement on Form S-8 and any registration statement in connection with a dividend reinvestment plan, shareholder purchase plan or employee benefit plan) and reports on form 10-K, 10-Q or 8-K Funds Administrator (or any other authorized officer satisfactory to CIT). In addition, should the Companies modify their equivalents) which the Borrower or any of its Subsidiaries files with the Securities accounting principles and Exchange Commission.
6.1.8 Promptly, information regarding any change procedures from those in the Borrower’s Debt Rating. Information required to be delivered pursuant to these Sections 6.1.1, 6.1.2, and 6.1.7 shall be deemed to have been delivered effect on the date on which Closing 37 <PAGE> Date, the Borrower provides notice Companies agree to the Lenders that such information has been posted on the Securities prepare and Exchange Commission website on the Internet at ▇▇▇deliver to CIT statements of reconciliation in form and substance reasonably satisfactory to CIT.▇▇▇/▇▇▇▇▇/▇▇▇▇▇▇▇▇.▇▇▇, on the Borrower’s IntraLinks site at ▇▇▇▇▇▇▇▇▇▇.▇▇▇ or at another website identified in such notice and accessible by the Lenders without charge; provided that (i) such notice may be included in a certificate delivered pursuant to Section 6.1.3 and such notice or certificate shall also be deemed to have been delivered upon being posted to the Borrower’s IntraLinks site or such other website and (ii) the Borrower shall deliver paper copies of the information referred to in Sections 6.1.1, 6.1.2 and 6.1.7 to any Lender which requests such delivery.
Appears in 1 contract
Sources: Financing Agreement
Financial Reporting. The Borrower will maintainfurnish to the Lender:
(a) as soon as available, for itself and but in any event within 180 days after the end of each Subsidiaryfiscal year of the Borrower, a system balance sheet of accounting established the Borrower as at the end of such fiscal year, and administered the related statements of income or operations and cash flows for such fiscal year; each such statement of assets and liabilities and the related schedule of investments and statements of operations and changes in net assets shall be certified without qualification by independent public accountants, which certification shall (i) state that the examination by such independent public accountants in connection with such financial statements has been made in accordance with GAAPthose auditing standards required by the ICA and prescribed by the SEC for the Borrower or, to the extent not so required or prescribed, generally accepted auditing standards in the United States and (ii) include the opinion of such independent public accountants that such financial statements have been prepared in conformity with Applicable Accounting Principles;
(b) as soon as available, but in any event within 90 days after the end of the first semiannual accounting period in each fiscal year of the Borrower, a copy of the Borrower’s statement of assets and liabilities as at the end of such semiannual period, together with the related schedule of investments and statements of operations and changes in net assets for such period all in reasonable detail, prepared in accordance with Applicable Accounting Principles, consistently applied, and furnish certified (subject to the Agent absence of footnotes and the Lenders:normal year-end adjustments) as to fairness of presentation, Applicable Accounting Principles and consistency by its chief financial officer.
6.1.1 Within ninety (90c) as soon as available, but in any event within four (4) days after the close end of each week, a duly completed valuation certificate, substantially in the form of its fiscal yearsExhibit A certified to be true and correct by an Authorized Officer of the Borrower which shall include a statement (i) with the composition of the Borrower’s assets with respect to the Collateral held in the Custody Account, financial statements prepared in accordance with GAAP on a consolidated basis for itself (ii) calculations of the Borrower’s Asset Coverage and its Subsidiaries, including balance sheets Adjusted Net Assets as of the end of such period, statements of income calendar week and statements of cash flows, setting forth in comparative form figures for the preceding fiscal year, accompanied by an audit report, consistent (iii) a calculation demonstrating compliance with the requirements of the Securities and Exchange Commission, of a nationally recognized firm of independent public accountants or other independent public accountants reasonably acceptable to the Required Lenders.Section 2.2;
6.1.2 Within forty-five (45d) days after the close of the first three quarterly periods of each of its fiscal years, financial statements prepared in accordance with GAAP (other than with regard to the absence of footnotes and subject to changes resulting from audit and normal year-end audit adjustments to same) on a consolidated basis for itself and its Subsidiaries, including, consolidated unaudited balance sheets as at the close of each such period and consolidated unaudited statements of income and a statement of cash flows for the period from the beginning of such fiscal year to the end of such quarter, in each case setting forth in comparative form figures for the corresponding period of the preceding fiscal year, and accompanied by a certificate of the chief financial officer or treasurer of the Borrower to the effect that such quarterly financial statements fairly present in all material respects the financial condition of the Borrower and its Subsidiaries and have been prepared in accordance with GAAP (other than with regard to the absence of footnotes and subject to changes resulting from audit and normal year-end audit adjustments to same).
6.1.3 Together together with the financial statements required under Sections 6.1.1 6.1(a) and 6.1.2(b), (i) a compliance certificate in substantially the form of Exhibit B signed by an Authorized Officer (a) its chief financial officer showing the calculations necessary to determine compliance with Section 6.16, (b) this Agreement and stating that no Default or Unmatured Event of Default exists, or if any Default or Unmatured Event of Default exists, stating the nature and status thereof;
(e) promptly upon the furnishing thereof and (c) updating Schedule 1 with respect to its Subsidiariesthe shareholders of the Borrower or the SEC, Material Subsidiaries and Excluded Subsidiaries, if appropriate and (ii) such financial information as reasonable requested by the Agent, including, but not limited to consolidating copies of all financial statements, as is necessary to account for Excluded Indebtedness reports and Excluded EBITDA for purposes of determining the Consolidated Leverage Ratio.proxy statements so furnished;
6.1.4 If requested, within 270 days after the close of each fiscal year of the Borrower, a copy of the actuarial report showing the Unfunded Liabilities of each Single Employer Plan as of the valuation date occurring in such fiscal year, certified by an actuary enrolled under ERISA.
6.1.5 As soon as possible and in any event within ten (10f) days after an Authorized Officer knows that any Reportable Event has occurred with respect to any Plan that could reasonably be expected to have a Material Adverse Effect, a statement, signed by an Authorized Officer, describing said Reportable Event and the action which the Borrower proposes to take with respect thereto.
6.1.6 From time to time such additional information regarding the financial position or business of the Borrower and its Subsidiaries as the Agent, at the request of any Lender, may reasonably request, including the support for any pro forma calculations hereunder.
6.1.7 Promptly, promptly upon the filing thereof, copies of all registration statements (other than any registration statement on Form S-8 and any registration statement in connection with a dividend reinvestment plan, shareholder purchase plan or employee benefit planamendments thereto) and annual, quarterly, monthly or other regular reports on form 10-K, 10-Q or 8-K (or their equivalents) which the Borrower or files with the SEC;
(i) prompt written notice in the event that (i) the Borrower’s Board of Directors approve to effect a change in any of its Subsidiaries files with Investment Policies and Restrictions or (ii) the Securities and Exchange Commission.
6.1.8 Promptly, information regarding any change in approval of the Borrower’s Debt Ratingshareholders is sought for a change in any of its Investment Policies and Restrictions, and (ii) prior to it effective date, copies of all amendments or other modifications to the Investment Policies and Restrictions, the Prospectus or the Borrower’s Constituent Documents;
(h) prompt written notice in the event that any officer or employee of the Borrower or the Investment Adviser that has material involvement with the investment activities of the Borrower or the Investment Adviser shall have been indicted, with respect to a Governmental Authority in a jurisdiction in the United States, or charged with a criminal offense by any other Governmental Authority that is punishable by deprivation of liberty for a maximum term which shall be greater than one (1) year, for a fraudulent act, a violation of securities or banking laws, or for a willful act related to the Borrower, the Investment Adviser, or their respective businesses; and
(i) such other information (including non-financial information and environmental reports) as the Lender may from time to time reasonably request. Information Any financial statement required to be delivered furnished pursuant to these Sections 6.1.1, 6.1.2, and 6.1.7 Section 6.1(a) or Section 6.1(b) shall be deemed to have been delivered furnished on the date on which the Lender receives notice that the Borrower provides notice to has filed such financial statement with the Lenders that such information has been posted SEC and is available on the Securities and Exchange Commission E▇▇▇▇ website on the Internet at ▇w▇▇.▇▇▇/▇▇▇▇▇/▇▇▇▇▇▇▇▇.▇▇▇, on the Borrower’s IntraLinks site at ▇▇▇▇▇▇▇▇▇▇.▇▇▇ or at another any successor government website identified in such notice that is freely and accessible by readily available to the Lenders Lender without charge; provided that (i) the Borrower shall give notice of any such notice may be included in a certificate delivered pursuant to Section 6.1.3 and such notice or certificate shall also be deemed to have been delivered upon being posted filing to the Borrower’s IntraLinks site or such other website and (ii) Lender. Notwithstanding the foregoing, the Borrower shall deliver paper or electronic copies of any such financial statement to the Lender if the Lender requests the Borrower to furnish such paper or electronic copies until written notice to cease delivering such paper or electronic copies is given by the Lender. If any information which is required to be furnished to the Lender under this Section 6.1 is required by Applicable Law to be filed by the Borrower with a government body on an earlier date, then the information referred required hereunder shall be furnished to in Sections 6.1.1, 6.1.2 and 6.1.7 to any the Lender which requests at such deliveryearlier date.
Appears in 1 contract
Sources: Credit Agreement (RiverNorth/DoubleLine Strategic Opportunity Fund, Inc.)
Financial Reporting. The Borrower will maintain, for itself and each Subsidiary, a system of accounting established and administered in accordance with GAAPgenerally accepted accounting principles, and furnish to the Agent and the LendersBank:
6.1.1 (i) Within ninety (90) 110 days after the close of each of its fiscal years, financial statements an unqualified audit report certified by independent certified public accountants acceptable to the Bank, prepared in accordance with GAAP Agreement Accounting Principles on a consolidated (and if requested by the Bank consolidating) basis (except that consolidated balance sheets and statements of operations and retained earnings need not be given for Inactive Subsidiaries or Active Subsidiaries whose only asset is the Capital Stock of another Subsidiary of the Borrower and consolidating statements need not be certified by such accountants) for itself and its Subsidiaries, including balance sheets as of the end of such period, statements related profit and loss and reconciliation of income surplus statements, and statements a statement of cash flows, setting forth in comparative form figures for the preceding fiscal year, accompanied by an audit report, consistent with the requirements a certificate of the Securities and Exchange Commission, of a nationally recognized firm of independent public accountants Borrower's chief financial officer or other independent public accountants reasonably acceptable to the Required Lendersprincipal accounting officer as required under Section 6.1(ii).
6.1.2 (ii) Within forty-five (45) 45 days after the close of the first three quarterly periods of each of its fiscal yearsquarter, financial statements prepared in accordance with GAAP (other than with regard to the absence of footnotes and subject to changes resulting from audit and normal year-end audit adjustments to same) on a consolidated basis for itself and its Subsidiaries, including, consolidated (and if requested by the Bank consolidating) unaudited balance sheets as at the close of each such period fiscal quarter and consolidated unaudited (and if requested by the Bank consolidating) profit and loss and reconciliation of surplus statements of income and a statement of cash flows for the period from the beginning of such fiscal year to the end of such quarter, in each case setting forth in comparative form figures fiscal quarter (except that consolidating balance sheets and statements of operations and retained earnings need not be given for Inactive Subsidiaries or Active Subsidiaries whose only asset is the corresponding period Capital Stock of another Subsidiary of the preceding fiscal yearBorrower), and accompanied all certified by a certificate of the its chief financial officer or treasurer of principal accounting officer as fairly presenting the Borrower to the effect that such quarterly consolidated financial statements fairly present in all material respects the financial condition position of the Borrower and its Subsidiaries for the periods contained therein and have as having been prepared in accordance with GAAP (other than Agreement Accounting Principles, together with regard to the absence of footnotes and subject to changes resulting from audit and normal year-end audit adjustments to same).
6.1.3 Together with the financial statements required under Sections 6.1.1 and 6.1.2, (i) a compliance certificate and attached compliance statement substantially in substantially the form of Exhibit B signed by an Authorized Officer B.
(aiii) showing the calculations necessary to determine compliance with Section 6.16, (b) stating that no Default or Unmatured Default exists, or if any Default or Unmatured Default exists, stating the nature and status thereof and (c) updating Schedule 1 with respect to its Subsidiaries, Material Subsidiaries and Excluded Subsidiaries, if appropriate and (ii) such financial information as reasonable requested by the Agent, including, but not limited to consolidating financial statements, as is necessary to account for Excluded Indebtedness and Excluded EBITDA for purposes of determining the Consolidated Leverage Ratio.
6.1.4 If requested, within 270 days after the close of each fiscal year of the Borrower, a copy of the actuarial report showing the Unfunded Liabilities of each Single Employer Plan as of the valuation date occurring in such fiscal year, certified by an actuary enrolled under ERISA.
6.1.5 As soon as possible and in any event within ten (10) 10 days after an Authorized Officer the Borrower knows that any Reportable Event has occurred with respect to any Plan that could reasonably be expected to have a Material Adverse EffectPlan, a statement, signed by an Authorized Officerthe chief financial officer of the Borrower, describing said Reportable Event and the action which the Borrower proposes to take with respect thereto.
6.1.6 From time (iv) As soon as possible and in any event within 10 days after receipt by the Borrower, a copy of (a) any notice or claim to time such additional information regarding the financial position effect that the Borrower or business any of its Subsidiaries is or may be liable to any Person as a result of the Borrower and release by the Borrower, any of its Subsidiaries as the AgentSubsidiaries, at the request or any other Person of any Lendertoxic or hazardous waste or substance into the environment, may reasonably requestand (b) any notice alleging any violation of any federal, including state or local environmental, health or safety law or regulation by the support for Borrower or any pro forma calculations hereunderof its Subsidiaries.
6.1.7 Promptly(v) Promptly upon the furnishing thereof to the shareholders of the Borrower, copies of all financial statements, reports and proxy statements so furnished.
(vi) Promptly upon the filing thereof, copies notice regarding the filing of all registration statements (and annual, quarterly, monthly or other than any registration statement on Form S-8 and any registration statement in connection with a dividend reinvestment plan, shareholder purchase plan or employee benefit plan) and regular reports on form 10-K, 10-Q or 8-K (or their equivalents) which the Borrower or any of its Subsidiaries files with the Securities and Exchange Commission.
6.1.8 Promptly, information regarding any change in the Borrower’s Debt Rating. Information required to be delivered pursuant to these Sections 6.1.1, 6.1.2, and 6.1.7 shall be deemed to have been delivered on the date on which the Borrower provides notice to the Lenders that such information has been posted on the Securities and Exchange Commission website on the Internet at ▇▇▇.▇▇▇/▇▇▇▇▇/▇▇▇▇▇▇▇▇.▇▇▇, on the Borrower’s IntraLinks site at ▇▇▇▇▇▇▇▇▇▇.▇▇▇ or at another website identified in such notice and accessible by the Lenders without charge; provided that (ivii) such notice may be included in a certificate delivered pursuant to Section 6.1.3 and such notice or certificate shall also be deemed to have been delivered upon being posted to the Borrower’s IntraLinks site or such other website and [Reserved]
(iiviii) the Borrower shall deliver paper copies of the information referred to in Sections 6.1.1, 6.1.2 and 6.1.7 to any Lender which requests such delivery.[Reserved]
Appears in 1 contract
Financial Reporting. The Borrower will maintain, for itself and each Subsidiary, a system of accounting established and administered in accordance with GAAP, and furnish Furnish to the Agent and the LendersAgent:
6.1.1 Within ninety (90i) As soon as available and in any event within 120 days after the close end of each Fiscal Year of its fiscal yearsthe Borrower, financial statements prepared in accordance with GAAP on a consolidated basis for itself and consolidating balance sheet of the Borrower and its Subsidiaries, including balance sheets Consolidated Subsidiaries as of the end of such period, statements of Fiscal Year and a consolidated and consolidating income statement and statements statement of cash flowsflows and statement of changes in stockholders' equity of the Borrower and its Consolidated Subsidiaries for such Fiscal Year, setting forth all in reasonable detail and stating in comparative form the respective consolidated and consolidating figures for the preceding fiscal year, accompanied by an audit report, consistent with corresponding date and period in the requirements of the Securities prior Fiscal Year and Exchange Commission, of a nationally recognized firm of independent public accountants or other independent public accountants reasonably acceptable to the Required Lenders.
6.1.2 Within forty-five (45) days after the close of the first three quarterly periods of each of its fiscal years, financial statements all prepared in accordance with GAAP (other than with regard and as to the absence consolidated statements accompanied by an unqualified audit opinion thereon acceptable to the Agent by Ernst & Young or other independent accountants of footnotes and subject to changes resulting from audit and normal year-end audit adjustments to samenational standing selected by the Borrower;
(ii) on a consolidated basis for itself and its Subsidiaries, including, consolidated unaudited balance sheets as at not later than 60 days following the close of each Fiscal Year, a copy of the Borrower's annual budget, reasonably detailed for each fiscal quarter, for the following Fiscal Year.
(iii) As soon as available and in any event within 45 days after the end of each of the first three quarters of each Fiscal Year of the Borrower, an unaudited consolidated balance sheet of the Borrower and its Consolidated Subsidiaries as of the end of such period and consolidated unaudited statements of income quarter and a consolidated income statement of cash flows the Borrower and its Consolidated Subsidiaries for the period from commencing at the beginning end of such fiscal year to the previous Fiscal Year and ending with the end of such quarter, all in each case setting forth reasonable detail and stating in comparative form the respective consolidated figures for the corresponding date and period of in the preceding fiscal year, previous Fiscal Year and accompanied by a certificate of the chief financial officer or treasurer of the Borrower to the effect that such quarterly financial statements fairly present in all material respects the financial condition of the Borrower and its Subsidiaries and have been prepared in accordance with GAAP and certified by the chief financial officer of the Borrower (other than with regard to the absence of footnotes and subject to changes resulting from audit and normal year-end audit adjustments and absence of footnote disclosures);
(iv) Promptly upon receipt thereof, copies of any reports submitted to same).
6.1.3 Together the Borrower or any of its Subsidiaries by independent certified public accountants in connection with examination of the financial statements required under Sections 6.1.1 and 6.1.2, of the Borrower or any such Subsidiary made by such accountants;
(v) Simultaneously with the delivery of the financial statements referred to in (i) and (iii) above, a compliance certificate in substantially of the form Chief Financial Officer or President of Exhibit B signed by an Authorized Officer Borrower (ax) showing certifying that to the calculations necessary to determine compliance with Section 6.16, (b) stating that best of his knowledge no Default or Unmatured Event of Default existshas occurred and is continuing or, if a Default or Event of Default has occurred and is continuing, a statement as to the nature thereof and the action which is proposed to be taken with respect thereto, and (y) with computations demonstrating compliance with the covenants contained in Article VII;
(vi) Simultaneously with the delivery of the annual financial statements referred to in subparagraph 5.01(h)(i) above, a certificate of the independent public accountants who audited such statements to the effect that, in making the examination necessary for the audit of such statements, they have obtained no knowledge of any condition or event which constitutes a Default or Event of Default, or if such accountants shall have obtained knowledge of any Default such condition or Unmatured Default existsevent, stating specifying in such certificate each such condition or event of which they have knowledge and the nature and status thereof thereof;
(vii) Promptly after the commencement thereof, notice of all material actions, suits, and (c) updating Schedule 1 with respect to proceedings before any court or governmental department, commission, board, bureau, agency or instrumentality, domestic or foreign, affecting the Borrower or any of its Subsidiaries, Material Subsidiaries and Excluded Subsidiarieswhich, if appropriate and (ii) determined adversely to the Borrower or such financial information as reasonable requested by the AgentSubsidiary, including, but not limited to consolidating financial statements, as is necessary to account for Excluded Indebtedness and Excluded EBITDA for purposes of determining the Consolidated Leverage Ratiocould have a Materially Adverse Effect.
6.1.4 If requested, within 270 days after the close of each fiscal year of the Borrower, a copy of the actuarial report showing the Unfunded Liabilities of each Single Employer Plan as of the valuation date occurring in such fiscal year, certified by an actuary enrolled under ERISA.
6.1.5 (viii) As soon as possible and in any event within ten (10) 10 days after the Borrower or an Authorized Officer executive officer thereof becomes aware (or reasonably should be expected to have become aware of) the occurrence of each Default or Event of Default a written notice setting forth the details of such Default or Event of Default and the action which is proposed to be taken by the Borrower with respect thereto;
(ix) Promptly after the filing or receiving thereof, copies of all reports, including annual reports, and notices which the Borrower or any Subsidiary files with or receives from the PBGC or the U.S. Department of Labor under ERISA with respect to a Plan; and as soon as possible and in any event within 10 days after the Borrower or any of its Subsidiaries knows or has reason to know that any Reportable ERISA Event or Prohibited Transaction has occurred with respect to any Plan or that could reasonably be expected to have a Material Adverse Effectthe PBGC or the
(x) Promptly after the furnishing thereof, a statement, signed by an Authorized Officer, describing said Reportable Event and the action which the Borrower proposes to take with respect thereto.
6.1.6 From time to time such additional information regarding the financial position or business of the Borrower and its Subsidiaries as the Agent, at the request copies of any Lenderstatement or report furnished to any other party pursuant to the terms of any indenture, may reasonably request, including loan or credit or similar agreement and not otherwise required to be furnished to the support for Lenders pursuant to any pro forma calculations hereunder.other clause of this Section 5.01(h);
6.1.7 Promptly, upon (xi) Promptly after the sending or filing thereof, copies of all registration proxy statements, financial statements (other than any registration statement on Form S-8 and any registration statement in connection with a dividend reinvestment plan, shareholder purchase plan or employee benefit plan) and reports on form 10-K, 10-Q or 8-K (or their equivalents) which the Borrower or any of its Subsidiaries sends to its stockholders, and copies of all regular, periodic and special reports, and all registration statements which the Borrower or any such Subsidiary files with the Securities and Exchange Commission.Commission or any governmental authority which may be substituted therefor, or with any national securities exchange;
6.1.8 Promptly, information regarding any change in the Borrower’s Debt Rating. Information required to be delivered pursuant to these Sections 6.1.1, 6.1.2, and 6.1.7 shall be deemed to have been delivered (xii) on the date on which the Borrower provides notice hereof, with respect to the Lenders that such information has been posted on fiscal quarter ended December 31, 1998, and thereafter as soon as available and in any event within 45 days after the Securities and Exchange Commission website on end of each quarter with respect to the Internet at ▇▇▇.▇▇▇/▇▇▇▇▇/▇▇▇▇▇▇▇▇.▇▇▇fiscal quarter then ended, on an Informal Borrowing Base Certificate;
(xiii) During the continuance of any Default or Event of Default, the Agent may require an audit of the Borrower’s IntraLinks site 's accounts receivable and inventory at ▇▇▇▇▇▇▇▇▇▇.▇▇▇ or at another website identified in such notice and accessible by the Lenders without charge; provided that (i) such notice may be included in a certificate delivered pursuant to Section 6.1.3 and such notice or certificate shall also be deemed to have been delivered upon being posted to the Borrower’s IntraLinks site or such other website and (ii) 's reasonable expense; for this purpose the Borrower shall deliver paper copies utilize independent accountants or other qualified professionals reasonably satisfactory to the Majority Lenders;
(xiv) Upon the conclusion of any audit of the type described in subparagraph (xiii), a detailed report of the results of such audit;
(xv) Such other information referred respecting the condition or operations, financial or otherwise, of the Borrower or any of its Subsidiaries as any Lender, through its Agent, may from time to in Sections 6.1.1, 6.1.2 and 6.1.7 to any Lender which requests such delivery.time reasonably request;
Appears in 1 contract
Sources: Credit Agreement (Lecroy Corp)
Financial Reporting. The Borrower will maintain, for itself and each Subsidiary, a system of accounting established and administered in accordance with GAAPthe Agreement Accounting Principles, and furnish to the Administrative Agent and in sufficient copies for each of the Lenders:
6.1.1 (i) Within ninety one hundred twenty (90120) days after the close of each of its fiscal yearsyears (or, financial statements if earlier, within thirty (30) days after the Borrower is required to file its Annual Report on Form 10-K with the Securities and Exchange Commission for such fiscal year), an unqualified (except for qualifications relating to changes in Agreement Accounting Principles or practices reflecting changes in Agreement Accounting Principles and required or approved by the Borrower's independent certified public accountants) audit report certified by independent certified public accountants reasonably acceptable to the Lenders, prepared in accordance with GAAP the Agreement Accounting Principles on a consolidated and consolidating basis (consolidating statements need not be certified by such accountants) for itself and its Subsidiaries, including balance sheets as of the end of such period, statements related profit and loss and reconciliation of income surplus statements, and statements a statement of cash flows, setting forth in comparative form figures for . Delivery by the preceding fiscal year, accompanied by an audit report, consistent Borrower to the Administrative Agent of copies of the Parent's Annual Report on Form 10-K filed with the requirements of the Securities and Exchange Commission, of a nationally recognized firm of independent public accountants or other independent public accountants reasonably acceptable Commission for any year shall satisfy the Borrower's obligation under this clause (i) with respect to the Required Lenderssuch year.
6.1.2 (ii) Within forty-five sixty (4560) days after the close of the first three quarterly period of each of its fiscal years (or, if earlier, within fifteen (15) days after the Borrower is required to file its Quarterly Report on Form 10-Q for with the Securities and Exchange Commission for such period), consolidated and consolidating unaudited balance sheets as at the close of each the first three quarterly periods of each of its fiscal years, financial statements prepared in accordance with GAAP (other than with regard to the absence of footnotes and subject to changes resulting from audit and normal year-end audit adjustments to same) on a consolidated basis for itself and its Subsidiaries, including, consolidated unaudited balance sheets as at the close of each such period Subsidiaries and consolidated unaudited and consolidating profit and loss and reconciliation of surplus statements of income and a statement of cash flows for the period from the beginning of such fiscal year to the end of such quarter, in each case setting forth in comparative form figures for the corresponding period of the preceding fiscal year, and accompanied all certified by a certificate of the chief financial officer or treasurer of an Authorized Officer. Delivery by the Borrower to the effect that such quarterly financial statements fairly present in all material respects the financial condition Administrative Agent of copies of the Borrower Borrower's Quarterly Report on Form 10-Q filed with the Securities and its Subsidiaries and have been prepared in accordance Exchange Commission for any quarter shall satisfy the Borrower's obligation under the clause (ii) with GAAP (other than with regard respect to the absence of footnotes and subject to changes resulting from audit and normal year-end audit adjustments to same)such quarter.
6.1.3 (iii) Together with the financial statements required under Sections 6.1.1 6.1(i) and 6.1.2(ii), (iA) a compliance certificate in substantially the form of Exhibit B signed by an Authorized Officer (a) showing the calculations necessary to determine compliance with Section 6.16, (b) this Agreement and stating that no Default or Unmatured Default exists, or if any Default or Unmatured Default exists, stating the nature and status thereof and (cB) updating Schedule 1 with respect to its Subsidiaries, Material Subsidiaries and Excluded Subsidiaries, if appropriate and (iia calculation of the Indebtedness secured by Liens permitted under Section 6.11(xiii) in such financial information as reasonable requested by the Agent, including, but not limited to consolidating financial statements, form as is necessary reasonably satisfactory to account for Excluded Indebtedness and Excluded EBITDA for purposes of determining the Consolidated Leverage RatioAdministrative Agent.
6.1.4 If requested, within 270 days after the close of each fiscal year of the Borrower, a copy of the actuarial report showing the Unfunded Liabilities of each Single Employer Plan as of the valuation date occurring in such fiscal year, certified by an actuary enrolled under ERISA.
6.1.5 (iv) As soon as possible and in any event within ten (10) days after an Authorized Officer the Borrower knows that any Reportable Event has occurred with respect to any Plan that could reasonably be expected to have a Material Adverse EffectPlan, a statement, signed by an Authorized Officer, describing said Reportable Event and the action which the Borrower proposes to take with respect thereto.
6.1.6 From time (v) As soon as possible and in any event within ten (10) days after receipt by the Borrower, a copy of (a) any notice or claim to time such additional information regarding the financial position effect that the Borrower or business any of its Subsidiaries is or may be liable to any Person as a result of the Borrower and release by the Borrower, any of its Subsidiaries as the AgentSubsidiaries, at the request or any other Person of any Lendertoxic or hazardous waste or substance into the environment, may and (b) any notice alleging any violation of any federal, state or local environmental, health or safety law or regulation by the Borrower or any of its Subsidiaries, which, in either case, could reasonably request, including the support for any pro forma calculations hereunderbe expected to have a Material Adverse Effect.
6.1.7 Promptly(vi) Promptly upon the furnishing thereof to the shareholders of the Borrower, copies of all financial statements and reports so furnished.
(vii) Promptly upon the filing thereof, copies of all registration statements (and annual, quarterly, monthly or other than any registration statement on Form S-8 and any registration statement in connection with a dividend reinvestment plan, shareholder purchase plan or employee benefit plan) and regular reports on form 10-K, 10-Q or 8-K (or their equivalents) which the Borrower or any of its Subsidiaries files with the Securities and Exchange Commission.
6.1.8 Promptly, (viii) Such other information regarding any change in (including nonfinancial information) as the Borrower’s Debt Rating. Information required to be delivered pursuant to these Sections 6.1.1, 6.1.2, and 6.1.7 shall be deemed to have been delivered on the date on which the Borrower provides notice to the Lenders that such information has been posted on the Securities and Exchange Commission website on the Internet at ▇▇▇.▇▇▇/▇▇▇▇▇/▇▇▇▇▇▇▇▇.▇▇▇, on the Borrower’s IntraLinks site at ▇▇▇▇▇▇▇▇▇▇.▇▇▇ Administrative Agent or at another website identified in such notice and accessible by the Lenders without charge; provided that (i) such notice may be included in a certificate delivered pursuant to Section 6.1.3 and such notice or certificate shall also be deemed to have been delivered upon being posted to the Borrower’s IntraLinks site or such other website and (ii) the Borrower shall deliver paper copies of the information referred to in Sections 6.1.1, 6.1.2 and 6.1.7 to any Lender which requests such deliverymay from time to time reasonably request.
Appears in 1 contract
Sources: Credit Agreement (Idaho Power Co)
Financial Reporting. The Borrower will maintain, for itself and each Subsidiary, a system of accounting established and administered in accordance with GAAPgenerally accepted accounting principles, and will furnish to the Administrative Agent and for further distribution to the LendersLenders the following:
6.1.1 Within ninety (90a) within 90 days after the close of each fiscal year of its fiscal yearsthe Borrower, financial statements an audit report certified by independent certified public accountants of recognized national standing (which in each case shall be without a “going concern” or like qualification or exception and without any qualification or exception as to the scope of such audit), prepared in accordance with GAAP on a consolidated basis for itself the Borrower and its Subsidiaries, including balance sheets as of the end of such period, statements related profit and loss and reconciliation of income surplus statements, and statements a statement of cash flows, setting forth in comparative form figures for the preceding fiscal yearflows on a consolidated basis, accompanied by an audit report, consistent with the requirements of the Securities and Exchange Commission, of a nationally recognized firm of independent public any final management letter prepared by said accountants or other independent public accountants reasonably acceptable to the Required Lenders.Borrower;
6.1.2 Within forty-five (45b) within 45 days after the close of the first three quarterly periods of each of its the Borrower’s fiscal yearsyears (commencing with the first fiscal quarter ending after the Closing Date), financial statements prepared in accordance with GAAP (other than with regard to for the absence of footnotes and subject to changes resulting from audit and normal year-end audit adjustments to same) on a consolidated basis for itself Borrower and its Subsidiaries, including, consolidated unaudited balance sheets as at the close of each such period period, consolidated profit and consolidated unaudited loss and reconciliation of surplus statements of income and a consolidated statement of cash flows for the period from the beginning of such fiscal year to the end of such quarter, certified by a Financial Officer of the Borrower as in each case setting forth in comparative form figures for the corresponding period of the preceding fiscal yearfairly presenting, and accompanied by a certificate of the chief financial officer or treasurer of the Borrower to the effect that such quarterly financial statements fairly present in all material respects respects, the consolidated financial condition of the Borrower and its consolidated Subsidiaries and have been prepared in accordance with GAAP (other than with regard to the absence of footnotes and subject to changes resulting from audit and normal year-end audit adjustments to same).and the absence of footnotes) and having been prepared in reasonable detail;
6.1.3 Together (c) [Reserved];
(d) together with the financial statements required under Sections 6.1.1 6.01(a) and 6.1.2(b), (i) a compliance certificate in substantially the form of Exhibit B signed by an Authorized Officer (a) Compliance Certificate showing the calculations necessary to determine compliance with this Agreement (including, for fiscal periods (x) ending prior to the Revolver Termination Date, Sections 6.22(a) and 6.22(d) and (y) ending prior to the Term Loan Maturity Date, Section 6.16, (b6.27) and stating that no Default or Unmatured Default exists, or if any Default or Unmatured Default exists, stating the nature and status thereof thereof;
(e) within 60 days after the commencement of each fiscal year of the Borrower and (c) updating Schedule 1 with respect to its Subsidiaries, Material a financial forecast of the Borrower and its Subsidiaries and Excluded Subsidiaries, if appropriate and for such fiscal year;
(iif) such financial information as reasonable requested by the Agent, including, but not limited to consolidating financial statements, as is necessary to account for Excluded Indebtedness and Excluded EBITDA for purposes of determining the Consolidated Leverage Ratio.
6.1.4 If requested, within 270 days after the close of each fiscal year of the Borroweryear, a copy statement of the actuarial report showing the Unfunded Liabilities of each Single Employer Plan as of the valuation date occurring in such fiscal yearPlan, certified as correct by an actuary enrolled under ERISA.;
6.1.5 As soon as possible and in any event (g) within ten (10) days 30 Business Days after an Authorized Officer the Borrower knows that any Reportable Event has occurred with respect to any Plan that could reasonably be expected to have a Material Adverse EffectSingle Employer Plan, a statement, signed by an Authorized Officer, a Financial Officer of the Borrower describing said Reportable Event and the action which the Borrower or any Affiliate of the Borrower proposes to take with respect thereto.;
6.1.6 From time (h) promptly (and in any event within 10 Business Days) following the occurrence of the following events, copies of (i) any amendments, supplements or other modifications to time the Additional First-Priority Debt Agreements (as defined in the First Lien/First Lien Intercreditor Agreement) and (ii) any new Additional First-Priority Debt Agreements (as defined in the First Lien/First Lien Intercreditor Agreement);
(i) as soon as possible and in any event on the later of (i) 30 days following the occurrence of the following events or (ii) the first date required for delivery of the financial statements pursuant to Section 6.01(a) or 6.01(b) after the occurrence of the following events, written notice of the creation, establishment or acquisition of any Subsidiary or the issuance by or to the Borrower or any of its Subsidiaries of any Capital Stock; and
(j) promptly following any request therefor, (i) such additional other information regarding the business, financial position or business corporate affairs of the Borrower and its Subsidiaries as the Agent, at the request of Administrative Agent or any Lender, Lender may from time to time reasonably request, and (ii) all documentation and other information reasonably requested by the Administrative Agent or any Lender that is required for compliance with the Act or other “know your customer” and anti-money laundering rules and regulations, including the support for any pro forma calculations hereunder.
6.1.7 Promptly, upon the filing thereof, copies of all registration statements (other than any registration statement on Form S-8 and any registration statement in connection with a dividend reinvestment plan, shareholder purchase plan or employee benefit plan) and reports on form 10-K, 10-Q or 8-K (or their equivalents) which the Borrower or any of its Subsidiaries files with the Securities and Exchange Commission.
6.1.8 Promptly, information regarding any change in the Borrower’s Debt RatingBeneficial Ownership Regulation. Information required to be delivered pursuant to these Sections 6.1.1, 6.1.2, and 6.1.7 this Section 6.01 shall be deemed to have been delivered if such information, or one or more annual, quarterly or current reports containing such information, shall have been posted by the Administrative Agent on an IntraLinks or similar site to which the Lenders have been granted access or such reports shall be available on the date on which website of the Borrower provides notice to the Lenders that such information has been posted on the Securities and Exchange Commission website on the Internet SEC at ▇▇▇▇://▇▇▇.▇▇▇/.▇▇▇ or on the website of the Borrower at ▇▇▇▇▇/▇▇▇▇▇://▇▇▇.▇▇▇, on the Borrower’s IntraLinks site at ▇▇▇▇▇▇▇▇▇▇.▇▇▇ or at another website identified and, except in the case of quarterly and annual financial statements under Section 6.01(a) and Section 6.01(b), the Borrower has given notice that such notice and accessible by the Lenders without charge; provided that (i) such notice may reports are so available. Information required to be included in a certificate delivered pursuant to this Section 6.1.3 may also be delivered by electronic communications pursuant to procedures approved by the Administrative Agent. If any information which is required to be furnished to the Lenders under this Section 6.01 is required by law or regulation to be filed by the Borrower or the Borrower with a government body on an earlier date, then the information required hereunder shall be furnished to the Lenders at such earlier date (which delivery may be by electronic communication including fax or email and shall be deemed to be an original authentic counterpart thereof for all purposes). The Borrower hereby acknowledges that (a) the Administrative Agent and/or the Arrangers may, but shall not be obligated to, make available to the Lenders and the LC Issuers materials and/or information provided by or on behalf of the Borrower hereunder (collectively, “Borrower Materials”) by posting the Borrower Materials on IntraLinks, Syndtrak, ClearPar, or a substantially similar electronic transmission system (the “Platform”) and (b) certain of the Lenders (each, a “Public Lender”) may have personnel who do not wish to receive material non-public information with respect to the Borrower or its Affiliates, or the respective securities of any of the foregoing, and who may be engaged in investment and other market-related activities with respect to such notice or certificate Persons’ securities. The Borrower hereby agrees that it will use commercially reasonable efforts to identify that portion of the Borrower Materials that may be distributed to the Public Lenders and that (w) all such Borrower Materials shall also be clearly and conspicuously marked “PUBLIC” which, at a minimum, shall mean that the word “PUBLIC” shall appear prominently on the first page thereof; (x) by marking Borrower Materials “PUBLIC,” the Borrower shall be deemed to have been delivered upon being posted authorized the Administrative Agent, the Arrangers, the LC Issuer and the Lenders to treat such Borrower Materials as not containing any material non-public information (although it may be sensitive and proprietary) with respect to the Borrower’s IntraLinks site Borrower or its securities for purposes of United States Federal and state securities laws (provided, however, that to the extent such other website Borrower Materials constitute Information, they shall be treated as set forth in Section 9.09); (y) all Borrower Materials marked “PUBLIC” are permitted to be made available through a portion of the Platform designated “Public Side Information;” and (iiz) the Administrative Agent and the Arrangers shall be entitled to treat any Borrower shall deliver paper copies Materials that are not marked “PUBLIC” as being suitable only for posting on a portion of the information referred to in Sections 6.1.1, 6.1.2 and 6.1.7 to any Lender which requests such deliveryPlatform not designated “Public Side Information.”
Appears in 1 contract
Financial Reporting. The Borrower will maintain, for itself and each Subsidiary, a system of accounting established and administered in accordance with GAAP, and furnish Furnish to the Agent and the LendersAgent:
6.1.1 Within ninety (90i) As soon as available and in any event within 120 days after the close end of each Fiscal Year of its fiscal yearsthe Borrower, financial statements prepared in accordance with GAAP on a consolidated basis for itself and consolidating balance sheet of the Borrower and its Subsidiaries, including balance sheets Consolidated Subsidiaries as of the end of such period, statements of Fiscal Year and a consolidated and consolidating income statement and statements statement of cash flowsflows and statement of changes in stockholders' equity of the Borrower and its Consolidated Subsidiaries for such Fiscal Year, setting forth all in reasonable detail and stating in comparative form the respective consolidated and consolidating figures for the preceding fiscal year, accompanied by an audit report, consistent with corresponding date and period in the requirements of the Securities prior Fiscal Year and Exchange Commission, of a nationally recognized firm of independent public accountants or other independent public accountants reasonably acceptable to the Required Lenders.
6.1.2 Within forty-five (45) days after the close of the first three quarterly periods of each of its fiscal years, financial statements all prepared in accordance with GAAP (other than with regard and as to the absence consolidated statements accompanied by an unqualified audit opinion thereon acceptable to the Agent by Ernst & Young or other independent accountants of footnotes and subject to changes resulting from audit and normal year-end audit adjustments to samenational standing selected by the Borrower;
(ii) on a consolidated basis for itself and its Subsidiaries, including, consolidated unaudited balance sheets as at not later than 60 days following the close of each Fiscal Year, a copy of the Borrower's annual budget, reasonably detailed for each fiscal quarter, for the following Fiscal Year.
(iii) As soon as available and in any event within 45 days after the end of each of the first three quarters of each Fiscal Year of the Borrower, an unaudited consolidated balance sheet of the Borrower and its Consolidated Subsidiaries as of the end of such period and consolidated unaudited statements of income quarter and a consolidated income statement of cash flows the Borrower and its Consolidated Subsidiaries for the period from commencing at the beginning end of such fiscal year to the previous Fiscal Year and ending with the end of such quarter, all in each case setting forth reasonable detail and stating in comparative form the respective consolidated figures for the corresponding date and period of in the preceding fiscal year, previous Fiscal Year and accompanied by a certificate of the chief financial officer or treasurer of the Borrower to the effect that such quarterly financial statements fairly present in all material respects the financial condition of the Borrower and its Subsidiaries and have been prepared in accordance with GAAP and certified by the chief financial officer of the Borrower (other than with regard to the absence of footnotes and subject to changes resulting from audit and normal year-end audit adjustments and absence of footnote disclosures);
(iv) Promptly upon receipt thereof, copies of any reports submitted to same).
6.1.3 Together the Borrower or any of its Subsidiaries by independent certified public accountants in connection with examination of the financial statements required under Sections 6.1.1 and 6.1.2, of the Borrower or any such Subsidiary made by such accountants;
(v) Simultaneously with the delivery of the financial statements referred to in (i) and (iii) above, a compliance certificate in substantially of the form Chief Financial Officer or President of Exhibit B signed by an Authorized Officer Borrower (ax) showing certifying that to the calculations necessary to determine compliance with Section 6.16, (b) stating that best of his knowledge no Default or Unmatured Event of Default existshas occurred and is continuing or, if a Default or Event of Default has occurred and is continuing, a statement as to the nature thereof and the action which is proposed to be taken with respect thereto, and (y) with computations demonstrating compliance with the covenants contained in Article VII;
(vi) Simultaneously with the delivery of the annual financial statements referred to in subparagraph 5.01(h)(i) above, a certificate of the independent public accountants who audited such statements to the effect that, in making the examination necessary for the audit of such statements, they have obtained no knowledge of any condition or event which constitutes a Default or Event of Default, or if such accountants shall have obtained knowledge of any Default such condition or Unmatured Default existsevent, stating specifying in such certificate each such condition or event of which they have knowledge and the nature and status thereof thereof;
(vii) Promptly after the commencement thereof, notice of all material actions, suits, and (c) updating Schedule 1 with respect to proceedings before any court or governmental department, commission, board, bureau, agency or instrumentality, domestic or foreign, affecting the Borrower or any of its Subsidiaries, Material Subsidiaries and Excluded Subsidiarieswhich, if appropriate and (ii) determined adversely to the Borrower or such financial information as reasonable requested by the AgentSubsidiary, including, but not limited to consolidating financial statements, as is necessary to account for Excluded Indebtedness and Excluded EBITDA for purposes of determining the Consolidated Leverage Ratiocould have a Materially Adverse Effect.
6.1.4 If requested, within 270 days after the close of each fiscal year of the Borrower, a copy of the actuarial report showing the Unfunded Liabilities of each Single Employer Plan as of the valuation date occurring in such fiscal year, certified by an actuary enrolled under ERISA.
6.1.5 (viii) As soon as possible and in any event within ten (10) 10 days after the Borrower or an Authorized Officer executive officer thereof becomes aware (or reasonably should be expected to have become aware of) the occurrence of each Default or Event of Default a written notice setting forth the details of such Default or Event of Default and the action which is proposed to be taken by the Borrower with respect thereto;
(ix) Promptly after the filing or receiving thereof, copies of all reports, including annual reports, and notices which the Borrower or any Subsidiary files with or receives from the PBGC or the U.S. Department of Labor under ERISA with respect to a Plan; and as soon as possible and in any event within 10 days after the Borrower or any of its Subsidiaries knows or has reason to know that any Reportable ERISA Event or Prohibited Transaction has occurred with respect to any Plan or that could reasonably be expected the PBGC or the Borrower or any such Subsidiary has instituted or will institute proceedings under Title IV of ERISA to have terminate any Plan, the Borrower will deliver to the Agent a Material Adverse Effect, a statement, signed by an Authorized Officer, describing said Reportable certificate of the chief financial officer of the Borrower setting forth details to the best of his knowledge as to such ERISA Event or Prohibited Transaction or Plan termination and the action which the Borrower proposes to take with respect thereto.;
6.1.6 From time to time such additional information regarding (x) Promptly after the financial position or business of the Borrower and its Subsidiaries as the Agentfurnishing thereof, at the request copies of any Lenderstatement or report furnished to any other party pursuant to the terms of any indenture, may reasonably request, including loan or credit or similar agreement and not otherwise required to be furnished to the support for Lenders pursuant to any pro forma calculations hereunder.other clause of this Section 5.01(h);
6.1.7 Promptly, upon (xi) Promptly after the sending or filing thereof, copies of all registration proxy statements, financial statements (other than any registration statement on Form S-8 and any registration statement in connection with a dividend reinvestment plan, shareholder purchase plan or employee benefit plan) and reports on form 10-K, 10-Q or 8-K (or their equivalents) which the Borrower or any of its Subsidiaries sends to its stockholders, and copies of all regular, periodic and special reports, and all registration statements which the Borrower or any such Subsidiary files with the Securities and Exchange Commission.Commission or any governmental authority which may be substituted therefor, or with any national securities exchange;
6.1.8 Promptly(xii) within 20 days after the end of each month, information regarding commencing with the month ending June 30, 2000, an Informal Borrowing Base Certificate (modified to reflect monthly reporting);
(xiii) During the continuance of any change in Default or Event of Default, the Agent may require an audit of the Borrower’s Debt Rating. Information required 's accounts receivable and inventory at the Borrower's reasonable expense; for this purpose the Borrower shall utilize independent accountants or other qualified professionals reasonably satisfactory to be delivered pursuant to these Sections 6.1.1the Majority Lenders;
(xiv) Upon the conclusion of any audit of the type described in subparagraph (xiii), 6.1.2, and 6.1.7 shall be deemed to have been delivered a detailed report of the results of such audit;
(xv) on the date on which last Business Day of each month commencing May 31, 2000, written, consolidating three (3) month cash flow projections of the Borrower provides notice and each Guarantor on schedules in form and substance reasonably satisfactory to the Agent and the Lenders (which projections shall include, but not be limited to, projections showing expected weekly and monthly cash, inventory and receivables and anticipated liquidity needs for the applicable three (3) month reporting period) and be certified as true, accurate and complete by the chief financial officer of the Borrower;
(xvi) on the last Business Day of each week, verbal status updates acceptable to the Lenders that such information has been posted on and Agent from the Securities and Exchange Commission website on chief financial officer of the Internet at ▇▇▇.▇▇▇/▇▇▇▇▇/▇▇▇▇▇▇▇▇.▇▇▇, on the Borrower’s IntraLinks site at ▇▇▇▇▇▇▇▇▇▇.▇▇▇ Borrower or at another website identified in such notice and accessible by the Lenders without charge; provided that (i) such notice may be included in a certificate delivered pursuant to Section 6.1.3 and such notice or certificate shall also be deemed to have been delivered upon being posted other officer reasonably acceptable to the Borrower’s IntraLinks site or such other website Agent and (ii) the Borrower shall deliver paper copies of the information referred to in Sections 6.1.1, 6.1.2 and 6.1.7 to any Lender which requests such delivery.Lenders regarding
Appears in 1 contract
Financial Reporting. The Borrower Guarantor shall deliver or cause to be delivered the following to Buyer; provided that Guarantor will maintainnot be required to deliver any of the following to Buyer if Guarantor, for itself and each Subsidiaryas applicable, a system of accounting established and administered in accordance with GAAP, and furnish has delivered such item to Buyer pursuant to the Agent and terms of the LendersRocket Repurchase Agreement:
6.1.1 Within ninety (90i) days after the close of each of its fiscal years, financial statements prepared in accordance with GAAP on a consolidated basis for itself and its Subsidiaries, including balance sheets as of the end of such period, statements of income and statements of cash flows, setting forth in comparative form figures for the preceding fiscal year, accompanied by an audit report, consistent with the requirements of the Securities and Exchange Commission, of a nationally recognized firm of independent public accountants or other independent public accountants reasonably acceptable to the Required Lenders.
6.1.2 Within forty-five (45) days after the close end of each of the first three quarterly fiscal periods of each fiscal year, (1) consolidated and consolidating statements of its income and changes in shareholders’ equity and cash flows for such month of Guarantor and Guarantor’s consolidated Subsidiaries and (2) statements of income and changes in shareholders’ equity and cash flows for such month of each of Guarantor’s Subsidiaries (excluding any Subsidiary that is only a holding company), and for each of Guarantor and such Subsidiaries, the related balance sheet as at the end of such month, all in reasonable detail, prepared in accordance with GAAP, subject to year-end adjustments and a lack of footnotes;
(ii) Within ninety (90) days after (1) Guarantor’s fiscal yearsyear end, financial consolidated and consolidating statements of income, changes in shareholders’ equity and cash flows of Guarantor and Guarantor’s consolidated Subsidiaries for such fiscal year, and (2) the fiscal year end of each Subsidiary of Guarantor, statements of income, changes in shareholders’ equity and cash flows of such Subsidiary (excluding any Subsidiary that is only a holding company), and for each of Guarantor and such Subsidiaries, the related balance sheet as at the end of such fiscal year (setting forth in comparative form the corresponding figures for the preceding fiscal year), all in reasonable detail, prepared in accordance with GAAP (and an opinion prepared by an accounting firm reasonably satisfactory to Buyer, or other than with regard independent certified public accountants of recognized standing selected by Guarantor, as to the absence of footnotes Guarantor’s and subject to changes resulting from audit and normal year-end audit adjustments to same) on a Guarantor’s consolidated basis for itself and its Subsidiaries, including, consolidated unaudited balance sheets as at the close of each such period and consolidated unaudited statements of income and a statement of cash flows for the period from the beginning of such fiscal year to the end of such quarter, in each case setting forth in comparative form figures for the corresponding period of the preceding fiscal year, and accompanied by a certificate of the chief financial officer or treasurer of the Borrower to the effect that such quarterly Subsidiaries financial statements fairly present in all material respects the and, only if Guarantor elects to have them audited, as to such Subsidiaries’ financial condition of the Borrower and its Subsidiaries and have been prepared in accordance with GAAP statements;
(other than with regard to the absence of footnotes and subject to changes resulting from audit and normal year-end audit adjustments to same).
6.1.3 iii) Together with the each delivery of financial statements required under in Sections 6.1.1 14(e)(i) and 6.1.214(e)(ii) above, (i) a compliance certificate Quarterly Certification in substantially the form of Exhibit B signed G attached hereto, executed by an Authorized Officer the chief financial officer, chief executive officer or president of Guarantor, on behalf of Guarantor;
(aiv) showing Photocopies or electronic copies of the calculations necessary to determine compliance with Section 6.16relevant portions of any final written audits completed by any Agency of Guarantor that provide for material corrective action, material sanctions or classifications of the quality of Guarantor’s operations, not later than five (b5) stating that no Default or Unmatured Default exists, or Business Days after receiving such audit;
(v) Weekly (and more frequently if any Default or Unmatured Default exists, stating the nature and status thereof and (c) updating Schedule 1 with respect to its Subsidiaries, Material Subsidiaries and Excluded Subsidiaries, if appropriate and (ii) such financial information as reasonable reasonably requested by the Agent, including, but not limited to consolidating financial statements, as is necessary to account for Excluded Indebtedness and Excluded EBITDA for purposes of determining the Consolidated Leverage Ratio.
6.1.4 If requested, within 270 days after the close of each fiscal year of the Borrower, a copy of the actuarial report showing the Unfunded Liabilities of each Single Employer Plan as of the valuation date occurring in such fiscal year, certified by an actuary enrolled under ERISA.
6.1.5 As soon as possible and in any event within ten (10) days after an Authorized Officer knows that any Reportable Event has occurred with respect to any Plan that could reasonably be expected to have a Material Adverse Effect, a statement, signed by an Authorized Officer, describing said Reportable Event and the action which the Borrower proposes to take with respect thereto.
6.1.6 From time to time such additional information regarding the financial position or business of the Borrower and its Subsidiaries as the Agent, at the request of any Lender, may reasonably request, including the support for any pro forma calculations hereunder.
6.1.7 Promptly, upon the filing thereof, copies of all registration statements (other than any registration statement on Form S-8 and any registration statement in connection with a dividend reinvestment plan, shareholder purchase plan or employee benefit plan) and reports on form 10-K, 10-Q or 8-K (or their equivalents) which the Borrower or any of its Subsidiaries files with the Securities and Exchange Commission.
6.1.8 Promptly, information regarding any change in the Borrower’s Debt Rating. Information required to be delivered pursuant to these Sections 6.1.1, 6.1.2, and 6.1.7 shall be deemed to have been delivered on the date on which the Borrower provides notice to the Lenders that such information has been posted on the Securities and Exchange Commission website on the Internet at ▇▇▇.▇▇▇/▇▇▇▇▇/), a hedging report in a form mutually agreed to between ▇▇▇▇▇▇▇▇▇ and Guarantor; and
(vi) From time to time, with reasonable promptness, such further information regarding the Pledged Items, or the business, operations, properties or financial condition of Guarantor as Buyer may reasonably request.▇▇▇, on the Borrower’s IntraLinks site at ▇▇▇▇▇▇▇▇▇▇.▇▇▇ or at another website identified in such notice and accessible by the Lenders without charge; provided that (i) such notice may be included in a certificate delivered pursuant to Section 6.1.3 and such notice or certificate shall also be deemed to have been delivered upon being posted to the Borrower’s IntraLinks site or such other website and (ii) the Borrower shall deliver paper copies of the information referred to in Sections 6.1.1, 6.1.2 and 6.1.7 to any Lender which requests such delivery.
Appears in 1 contract
Sources: Amended and Restated Master Repurchase Agreement (Rocket Companies, Inc.)
Financial Reporting. The Borrower will maintain, for itself and each Subsidiary, Maintain a system of accounting established and administered in accordance with GAAP, and the Company, on behalf of the Company Group, will furnish and deliver to the Agent and Agent, which will deliver to the LendersBanks:
6.1.1 (a) Within ninety (90) days after the close of each fiscal year commencing with the fiscal year ending September 30, 1996, an audited consolidated and consolidating balance sheet of its the Company Group, a consolidated and consolidating statement of income and retained earnings of the Company Group and a consolidated statement of cash flows of the Company Group, each set forth in comparative form with corresponding figures from the immediately preceding fiscal yearsyear, financial in each case such statements to be furnished in reasonable detail and prepared in accordance with GAAP on a consolidated basis for itself GAAP, and its Subsidiaries, including balance sheets as of the end of such period, statements of income and statements of cash flows, setting forth in comparative form figures for the preceding fiscal year, to be accompanied by an audit report, consistent with the requirements unqualified opinion of the Securities and Exchange Commission, independent certified public accountants of a nationally recognized firm of independent public accountants or other independent public accountants reasonably standing acceptable to the Required LendersBanks.
6.1.2 (b) Within forty-five (45) days after the close of each of the first three quarterly periods (3) quarters of each of its fiscal yearsyear, financial statements prepared in accordance with GAAP (other than with regard to the absence of footnotes and subject to changes resulting from audit and normal year-end audit adjustments to same) on a consolidated basis for itself and its Subsidiaries, including, consolidated unaudited balance sheets as at the close of each such period and consolidated unaudited statements consolidating statement of income and a statement of cash flows the Company Group for the period from the beginning of such fiscal year to the end of the quarter thereof, and a consolidated and consolidating balance sheet of the Company Group as of the end of such quarter, in each case together with schedules detailing depreciation, amortization, dividends, scheduled payments of principal on Indebtedness, all outstanding letters of credit, and all capital expenditures, setting forth in comparative form figures for reasonable detail and prepared in accordance with historical practice, which shall be certified by the corresponding period Chief Financial Officer of the preceding fiscal year, Company as complete and accompanied by a certificate of the chief financial officer or treasurer of the Borrower to the effect that such quarterly financial statements fairly present correct in all material respects the financial condition of the Borrower and its Subsidiaries and have been prepared in accordance with GAAP (other than with regard to the absence best knowledge and belief of footnotes and subject to changes resulting from audit and normal year-end audit adjustments to same)such officer after diligent inquiry.
6.1.3 (c) Together with the financial statements required under Sections 6.1.1 hereunder, a Compliance Certificate. The Compliance Certificate for the fiscal quarter in which Capital Adjustment Costs are accrued or expensed and 6.1.2, the Compliance Certificate to be delivered for the succeeding four (i4) a compliance certificate in substantially fiscal quarters shall include as an annex thereto the form of Exhibit B signed by an Authorized Officer (a) showing the calculations necessary to determine compliance with Section 6.16, (b) stating that no Default or Unmatured Default exists, or if any Default or Unmatured Default exists, stating the nature and status thereof and (c) updating Schedule 1 with respect to its Subsidiaries, Material Subsidiaries and Excluded Subsidiaries, if appropriate and (ii) such financial information as reasonable requested by the Agent, including, but not limited to consolidating financial statements, as is necessary to account for Excluded Indebtedness and Excluded EBITDA for purposes of determining the Consolidated Leverage Ratiocontained on SCHEDULE 7 hereof.
6.1.4 If requested(d) Within twenty (20) days after the end of each month, within 270 a Borrowing Base Certificate.
(e) Within one hundred eighty (180) days after the close of each fiscal year of the Borroweryear, a copy statement of the actuarial report showing the Unfunded Liabilities of each Single Employer Plan as of the valuation date occurring in such fiscal yearPlan, if any, certified as correct by an actuary enrolled under ERISA.
6.1.5 (f) As soon as possible and in any event within ten (10) days after an Authorized Officer the Company knows that any Reportable Event has occurred with respect to any Plan that could reasonably be expected to have a Material Adverse EffectPlan, a statement, signed by an Authorized Officerthe Chief Financial Officer or Treasurer of the Company, describing said Reportable Event and the action which the Borrower Company proposes to take with respect thereto.
6.1.6 From time to time such additional (g) Such other material and pertinent information regarding (including non-financial information) as the financial position Agent or business of the Borrower and its Subsidiaries as Banks, through the Agent, at the request of any Lendermay, may from time to time, reasonably request, including the support for any pro forma calculations hereunder.
6.1.7 Promptly, upon the filing thereof, copies of all registration statements (other than any registration statement on Form S-8 and any registration statement in connection with a dividend reinvestment plan, shareholder purchase plan or employee benefit plan) and reports on form 10-K, 10-Q or 8-K (or their equivalents) which the Borrower or any of its Subsidiaries files with the Securities and Exchange Commission.
6.1.8 Promptly, information regarding any change in the Borrower’s Debt Rating. Information required to be delivered pursuant to these Sections 6.1.1, 6.1.2, and 6.1.7 shall be deemed to have been delivered on the date on which the Borrower provides notice to the Lenders that such information has been posted on the Securities and Exchange Commission website on the Internet at ▇▇▇.▇▇▇/▇▇▇▇▇/▇▇▇▇▇▇▇▇.▇▇▇, on the Borrower’s IntraLinks site at ▇▇▇▇▇▇▇▇▇▇.▇▇▇ or at another website identified in such notice and accessible by the Lenders without charge; provided that (i) such notice may be included in a certificate delivered pursuant to Section 6.1.3 and such notice or certificate shall also be deemed to have been delivered upon being posted to the Borrower’s IntraLinks site or such other website and (ii) the Borrower shall deliver paper copies of the information referred to in Sections 6.1.1, 6.1.2 and 6.1.7 to any Lender which requests such delivery.
Appears in 1 contract
Sources: Credit Agreement (Haggar Corp)
Financial Reporting. The Borrower will maintain (or cause the Parent to maintain, ) for itself and each Subsidiary, the Consolidated Group a system of accounting established and administered in accordance with GAAP, and furnish to the Administrative Agent (and the Administrative Agent shall promptly thereafter post for review by the Lenders:):
6.1.1 Within ninety (90i) As soon as available, but in any event not later than 45 days after the close of each of the first, second and third fiscal quarterquarters, for the BorrowerParent and its Subsidiaries, commencing with the fiscal yearsquarter ending September 30, 2021, financial statements prepared in accordance with GAAP on a consolidated basis for itself and its SubsidiariesGAAP, including an unaudited consolidated balance sheets sheet as of the end of such period, statements of income and statements of cash flows, setting forth in comparative form figures for the preceding fiscal year, accompanied by an audit report, consistent with the requirements of the Securities and Exchange Commission, of a nationally recognized firm of independent public accountants or other independent public accountants reasonably acceptable to the Required Lenders.
6.1.2 Within forty-five (45) days after the close of the first three quarterly periods of each of its fiscal years, financial statements prepared in accordance with GAAP (other than with regard to the absence of footnotes and subject to changes resulting from audit and normal year-end audit adjustments to same) on a consolidated basis for itself and its Subsidiaries, including, consolidated unaudited balance sheets as at the close of each such period and the related unaudited consolidated unaudited income statement and statement of cash flows of the BorrowerParent and its Subsidiaries for such period and the portion of the fiscal year through the end of such period, setting forth in each case in comparative form the figures for the previous year, if any, all certified by an Authorized Officer of the Parent or the Borrower, as applicable;
(ii) As soon as available, but in any event not later than 45 days after the close of each fiscal quarter,Together with the quarterly and annual financial statements required hereunder for the BorrowerParent and its Subsidiaries, commencing with the fiscal quarter ending September 30, 2021, the following reports in form and substance reasonably satisfactory to the Administrative Agent, all certified by an Authorized Officer of the Parent or the Borrower, as applicable:
(1) a schedule listing all Projects and summary information for each Project, including location, square footage, occupancy, Net Operating Income, debt, and such additional information on all Projects as may be reasonably requested by the Administrative Agent, and
(2) a statement of the Adjusted Unencumbered Pool NOI and occupancy percentage of the Unencumbered Pool as of the end of the prior fiscal quarter.
(iii) As soon as available, but in any event not later than 90 days after the close of each fiscal year, for the BorrowerParent and its Subsidiaries, audited financial statements, including a consolidated balance sheet as at the end of such year and the related consolidated statements of income and a statement retained earnings and of cash flows for the period from the beginning of such fiscal year to the end of such quarteryear, setting forth in each case setting forth in comparative form the figures for the corresponding period previous year, without a “going concern” or like qualification or exception, or qualification arising out of the preceding fiscal yearscope of the audit, prepared by independent certified public accountants of nationally recognized standing reasonably acceptable to Administrative Agent, and accompanied indicating no material weakness in Parent’s or Borrower’s internal controls, together with such additional information and consolidating schedules as may be reasonably requested by the Administrative Agent;
(iv) As soon as available, but in any event not later than 90 days after the close of each fiscal year for the BorrowerParent and its Subsidiaries, a certificate of statement detailing the chief financial officer or treasurer of contributions to Consolidated NOI from each individual Project for the Borrower prior fiscal year in form and substance reasonably satisfactory to the effect that such quarterly financial statements fairly present in all material respects the financial condition of the Borrower and its Subsidiaries and have been prepared in accordance with GAAP (other than with regard to the absence of footnotes and subject to changes resulting from audit and normal year-end audit adjustments to same).
6.1.3 Together with the financial statements required under Sections 6.1.1 and 6.1.2Administrative Agent, (i) a compliance certificate in substantially the form of Exhibit B signed certified by an Authorized Officer of the Parent or the Borrower, as applicable;
(av) Together with the quarterly and annual financial statements required hereunder, a Compliance Certificate showing the calculations and computations necessary to determine compliance with Section 6.16this Agreement and stating that, (b) stating that to the knowledge of the Authorized Officer of the Parent or the Borrower, as applicable, signing such Compliance Certificate, no Default or Unmatured Default exists, or if if, to such Authorized Officer’s knowledge, any Default or Unmatured Default exists, stating the nature and status thereof and (c) updating Schedule 1 with respect to its Subsidiaries, Material Subsidiaries and Excluded Subsidiaries, if appropriate and (ii) such financial information as reasonable requested by the Agent, including, but not limited to consolidating financial statements, as is necessary to account for Excluded Indebtedness and Excluded EBITDA for purposes of determining the Consolidated Leverage Ratiothereof; .
6.1.4 If requested, within 270 days after the close of each fiscal year of the Borrower, a copy of the actuarial report showing the Unfunded Liabilities of each Single Employer Plan as of the valuation date occurring in such fiscal year, certified by an actuary enrolled under ERISA.
6.1.5 (vi) As soon as possible and in any event within ten (10) 10 days after an Authorized Officer of the Parent or the Borrower, as applicable, knows that any Reportable Event has occurred with respect to any Plan that could reasonably be expected to have a Material Adverse EffectPlan, a statement, signed by an Authorized OfficerOfficer of the Parent or the Borrower, as applicable, describing said Reportable Event and the action which the Borrower proposes to take with respect thereto.;
6.1.6 From time to time such additional information regarding the financial position or business (vii) As soon as possible and in any event within 10 days after receipt by an Authorized Officer of the Borrower and Parent or the Borrower, as applicable, a copy of (a) any notice or claim to the effect that the BorrowerParent or any of its Subsidiaries is or may be liable to any Person as a result of the Agentrelease by the Parent, at the request Borrower, any of itstheir respective Subsidiaries, or any other Person of any Lendertoxic or hazardous waste or substance into the environment, may reasonably requestand (b) any notice alleging any violation of any federal, including the support for any pro forma calculations hereunder.
6.1.7 Promptlystate or local environmental, upon the filing thereof, copies of all registration statements (other than any registration statement on Form S-8 and any registration statement in connection with a dividend reinvestment plan, shareholder purchase plan health or employee benefit plan) and reports on form 10-K, 10-Q safety law or 8-K (or their equivalents) which the regulation by such Borrower or any of its Subsidiaries files Subsidiaries, which, in either case, could have a Material Adverse Effect;
(viii) Promptly upon the furnishing thereof to the shareholders of the BorrowerParent, copies of all financial statements, reports and proxy statements so furnished, including without limitation all form 10-K and 10-Q reports filed with the Securities and Exchange Commission.SEC; and
6.1.8 Promptly(ix) Such other information (including, information regarding any change in without limitation, financial statements for the Borrower’s Debt Rating. Information required to be delivered pursuant to these Sections 6.1.1, 6.1.2, and 6.1.7 shall be deemed to have been delivered on the date on which Parent or the Borrower provides notice to and non-financial information) as the Lenders that such information has been posted on the Securities and Exchange Commission website on the Internet at ▇▇▇.▇▇▇/▇▇▇▇▇/▇▇▇▇▇▇▇▇.▇▇▇, on the Borrower’s IntraLinks site at ▇▇▇▇▇▇▇▇▇▇.▇▇▇ Administrative Agent or at another website identified in such notice and accessible by the Lenders without charge; provided that (i) such notice may be included in a certificate delivered pursuant to Section 6.1.3 and such notice or certificate shall also be deemed to have been delivered upon being posted to the Borrower’s IntraLinks site or such other website and (ii) the Borrower shall deliver paper copies of the information referred to in Sections 6.1.1, 6.1.2 and 6.1.7 to any Lender which requests such delivery.may from time to time reasonably request; and
Appears in 1 contract
Financial Reporting. The Borrower will maintain, for itself and each Subsidiary, a system of accounting established and administered in accordance with GAAP, and furnish to the Administrative Agent and the Lenders:
6.1.1 (a) Within ninety (90) 100 days after the close of each of its fiscal years, financial statements an audit report, which report shall not be subject to any “going concern” qualification or qualification as to the scope of such audit report, certified by one of the “Big Four” accounting firms or other nationally recognized independent certified public accountants reasonably acceptable to the Lenders, prepared in accordance with GAAP on a consolidated and consolidating basis (provided that (i) with respect to any New Subsidiary that becomes a Subsidiary during the final fiscal quarter of such fiscal year and is included in the Borrower’s consolidated financial statements, such reports shall include consolidating statements of such New Subsidiary for such fiscal quarter and (ii) consolidating statements need not be certified by such accountants) for itself and its Subsidiaries, including balance sheets as of the end of such period, statements of income related profit and statements loss and stockholders’ equity statement, and a statement of cash flows, setting forth in comparative form figures for the preceding fiscal year, accompanied by an audit report, consistent with the requirements of the Securities and Exchange Commission, of a nationally recognized firm of independent public accountants or other independent public accountants reasonably acceptable to the Required Lendersany management letter prepared by said accountants.
6.1.2 (b) Within forty-five (45) 60 days after the close of the first three (3) quarterly periods of each of its fiscal years, financial statements prepared in accordance with GAAP (other than with regard to the absence of footnotes and subject to changes resulting from audit and normal year-end audit adjustments to same) on a consolidated basis for itself and its Subsidiaries, including, consolidated and consolidating unaudited balance sheets as at the close of each such period and consolidated unaudited statements of income and consolidating profit and loss and stockholders’ equity statement and a statement of cash flows for the period from the beginning of such fiscal year to the end of such quarter (provided that with respect to any New Subsidiary that becomes a Subsidiary during such fiscal quarter and is included in the Borrower’s consolidated financial statements, such reports shall include consolidating statements of such New Subsidiary for such fiscal quarter), in each case setting forth in comparative form figures for the corresponding period of the preceding fiscal year, and accompanied all certified by a certificate of the its chief financial officer or treasurer of the Borrower to the effect that such quarterly financial statements fairly present in all material respects the financial condition of the Borrower and its Subsidiaries and have been prepared in accordance with GAAP (other than with regard to the absence of footnotes and subject to changes resulting from audit and normal year-end audit adjustments to same)Authorized Officer.
6.1.3 (c) Together with the financial statements required under Sections 6.1.1 6.1(a) and 6.1.2(b), (i) a compliance certificate in substantially the form of Exhibit B signed by an its chief financial officer or other Authorized Officer (a) showing the calculations necessary to determine compliance with Section 6.16, this Agreement (bincluding Sections 6.19(a) through (c)) and stating that no Default or Unmatured Event of Default exists, or if any Default or Unmatured Event of Default exists, stating the nature and status thereof and (c) updating Schedule 1 with respect to its Subsidiaries, Material Subsidiaries and Excluded Subsidiaries, if appropriate and (ii) such financial information as reasonable requested by the Agent, including, but not limited to consolidating financial statements, as is necessary to account for Excluded Indebtedness and Excluded EBITDA for purposes of determining the Consolidated Leverage Ratiothereof.
6.1.4 If requested, within 270 days after (d) By the close forty-fifth (45th) day of each fiscal quarter of each fiscal year (and without regard to whether the Borrower has a Leverage Ratio in excess of 55%), a Borrowing Base Certificate of an Authorized Officer of the Borrower, a copy of the actuarial report showing the Unfunded Liabilities of each Single Employer Plan as of the valuation date occurring in such fiscal year, certified by an actuary enrolled under ERISA.
6.1.5 As soon as possible and in any event within ten (10) days after an Authorized Officer knows that any Reportable Event has occurred with respect to any Plan that could reasonably be expected to have a Material Adverse Effect, a statement, signed by an Authorized Officer, describing said Reportable Event and the action which Inventory Valuation Date occurring on the Borrower proposes to take with respect theretolast day of the immediately preceding fiscal quarter.
6.1.6 From time (e) Promptly upon the furnishing thereof to time such additional information regarding the financial position or business shareholders of the Borrower Borrower, copies of all financial statements, reports and its Subsidiaries as the Agent, at the request of any Lender, may reasonably request, including the support for any pro forma calculations hereunderproxy statements so furnished.
6.1.7 Promptly, (f) Promptly upon the filing thereof, copies of all registration statements (other than any registration statement on except Form S-8 and any registration statement in connection with a dividend reinvestment plan, shareholder purchase plan or employee benefit planS-8) and reports on form 10-Kannual, 10-Q quarterly, or 8-K other periodic reports, with the exception of exhibits (or their equivalents) unless otherwise requested by the Administrative Agent), which the Borrower or any of its Subsidiaries files with the U.S. Securities and Exchange Commission.
6.1.8 Promptly(g) Such other information (including additional financial information (such as, by way of example and without limitation, the plan and forecast for the next fiscal year and a projected consolidated and consolidating balance sheet, income statement and statement of cash flows of the Borrower for the next fiscal year), and reasonably related non-financial information) as the Administrative Agent or any Lender may from time to time reasonably request.
(h) On or promptly after any time at which the Borrower or any Subsidiary becomes subject to the Beneficial Ownership Regulation, a completed Beneficial Ownership Certification in form and substance reasonably acceptable to the Administrative Agent.
(i) Such other information regarding reasonably requested by the Administrative Agent or any change in Lender for purposes of compliance with applicable “know your customer” requirements under the Borrower’s Debt RatingPATRIOT Act or other applicable anti-money laundering Laws. Information Any financial statement required to be furnished pursuant to Section 6.1(a) or Section 6.1(b) or any document required to be delivered pursuant to these Sections 6.1.1, 6.1.2, and 6.1.7 Section 6.1(e) or Section 6.1(f) shall be deemed to have been delivered furnished on the date on which the Lenders receive notice that the Borrower provides notice to has filed such financial statement with the Lenders that such information has been posted on the U.S. Securities and Exchange Commission and is available on the ▇▇▇▇▇ website on the Internet at ▇▇▇.▇▇▇/▇▇▇▇▇/▇▇▇▇▇▇▇▇.▇▇▇, on the Borrower’s IntraLinks site at ▇▇▇▇▇▇▇▇▇▇.▇▇▇ or at another any successor government website identified in such notice that is freely and accessible by readily available to the Administrative Agent and the Lenders without charge; provided that (i) the Borrower shall give notice of any such notice may be included in a certificate delivered pursuant to Section 6.1.3 and such notice or certificate shall also be deemed to have been delivered upon being posted filing to the Borrower’s IntraLinks site or Administrative Agent (who shall then give notice of any such other website and (ii) filing to the Lenders). Notwithstanding the foregoing, the Borrower shall deliver paper or electronic copies of any such financial statement to the Administrative Agent if the Administrative Agent requests the Borrower to furnish such paper or electronic copies until written notice to cease delivering such paper or electronic copies is given by the Administrative Agent. If any information which is required to be furnished to the Lenders under this Section 6.1 is required by law or regulation to be filed by the Borrower with a government body on an earlier date, then the information referred required hereunder shall be furnished to in Sections 6.1.1, 6.1.2 and 6.1.7 to any Lender which requests the Lenders at such deliveryearlier date.
Appears in 1 contract
Financial Reporting. The Borrower will maintain, for itself and each Subsidiary, a system of accounting established and administered in accordance with GAAP, and furnish to the Administrative Agent and for the Administrative Agent’s distribution to the Lenders:
6.1.1 Within ninety (90a) days As soon as available, but in any event on or prior to the earlier of (i) the 90th day after the close of each of its fiscal yearsyears and (ii) the day that is five (5) Business Days after the date the Borrower’s annual report on Form 10-K is required to be filed with the SEC after giving effect to any extensions permitted by the SEC (commencing with the first fiscal year of the Borrower ending after the Initial Funding Date), financial a consolidated balance sheet as of the end of such period, related statements of earnings, statements of equity and cash flows prepared in accordance with GAAP on a consolidated basis for itself and its Subsidiaries, including balance sheets subsidiaries together with an audit report certified by independent certified public accountants of recognized standing whose opinion shall not be qualified as to the scope of audit or as to the status of the end of such period, statements of income Borrower and statements of cash flows, setting forth in comparative form figures for the preceding fiscal yearits consolidated subsidiaries as a going concern, accompanied by an audit reportany management letter prepared by said accountants.
(b) As soon as available, consistent with the requirements of the Securities and Exchange Commission, of a nationally recognized firm of independent public accountants but in any event on or other independent public accountants reasonably acceptable prior to the Required Lenders.
6.1.2 Within forty-five earlier of (45i) days the 45th day after the close of the first three quarterly periods of each of its fiscal yearsyears and (ii) the day that is five (5) Business Days after the date the Borrower’s quarterly report on Form 10-Q is required to be filed with the SEC after giving effect to any extensions permitted by the SEC (commencing with the first fiscal quarter of the Borrower ending after the Initial Funding Date), financial statements prepared in accordance with GAAP (other than with regard to the absence of footnotes and subject to changes resulting from audit and normal year-end audit adjustments to same) on a consolidated basis for itself and its Subsidiariessubsidiaries, including, a consolidated unaudited balance sheets sheet as at the close of each such period and consolidated unaudited statements of income earnings, statements of equity and a statement of cash flows for the period from the beginning of such fiscal year to the end of such quarter, in each case setting forth in comparative form figures for the corresponding period of the preceding fiscal year, and accompanied all certified by a certificate of the its chief financial officer, chief accounting officer or treasurer of the Borrower to the effect that such quarterly financial statements fairly present in all material respects the financial condition of the Borrower and its Subsidiaries and have been prepared in accordance with GAAP (other than with regard to the absence of footnotes and subject to changes resulting from audit and normal year-end audit adjustments to same)treasurer.
6.1.3 (c) Together with the financial statements required under Sections 6.1.1 6.01(a) and 6.1.2(b), (i) a compliance certificate in substantially the form of Exhibit B signed by an Authorized Officer (a) its chief financial officer, chief accounting officer or treasurer showing the calculations necessary to determine compliance with the financial covenant set forth in Section 6.16, (b) 6.10 and stating that no Default or Unmatured Default exists, or if any Default or Unmatured Default exists, stating the nature and status thereof thereof; it being understood and agreed that in the event the Borrower delivers a notice to the Administrative Agent pursuant to the proviso to the definition of “Agreement Accounting Principles”, “Capitalized Leases” and/or “Capitalized Lease Obligations”, the Borrower shall deliver an additional calculation of compliance with the financial covenant set forth in Section 6.10 demonstrating that notwithstanding GAAP in effect at such time, the Borrower has complied with Section 6.10 under GAAP (ci) updating Schedule 1 with respect to its Subsidiaries, Material Subsidiaries as in effect and Excluded Subsidiaries, if appropriate and applied immediately before such change in GAAP (in the case of such a notice under “Agreement Accounting Principles) or (ii) such financial information as reasonable requested by the Agent, including, but not limited it relates to consolidating financial statementsoperating leases, as is necessary in effect on January 1, 2015 (in the case of such a notice under “Capitalized Leases” or “Capitalized Lease Obligations), which shall satisfy the Borrower’s obligation to account for Excluded Indebtedness and Excluded EBITDA for purposes furnish a calculation of determining compliance in this Section 6.01(c); provided that in no event shall the Consolidated Leverage RatioBorrower be required to furnish the Administrative Agent with more than one version of financial statements pursuant to Section 6.01(a) or Section 6.01(b) prepared in accordance with different versions of GAAP as a result of any such notice.
6.1.4 If requested, within 270 days after the close of each fiscal year of the Borrower, a copy of the actuarial report showing the Unfunded Liabilities of each Single Employer Plan as of the valuation date occurring in such fiscal year, certified by an actuary enrolled under ERISA.
6.1.5 As soon as possible and in any event within ten (10d) days after an Authorized Officer knows that any Reportable Event has occurred with respect to any Plan that could reasonably be expected to have a Material Adverse Effect, a statement, signed by an Authorized Officer, describing said Reportable Event and the action which the Borrower proposes to take with respect thereto.
6.1.6 From time to time such additional information regarding the financial position or business of the Borrower and its Subsidiaries as the Agent, at the request of any Lender, may reasonably request, including the support for any pro forma calculations hereunder.
6.1.7 Promptly, Promptly upon the filing thereof, copies of all registration statements (or other than any registration statement on Form S-8 and any registration statement in connection with a dividend reinvestment plan, shareholder purchase plan or employee benefit plan) and regular reports on form 10-K, 10-Q or 8-K (or their equivalents) not otherwise provided pursuant to this Section 6.01 which the Borrower or any of its Subsidiaries files with the Securities and Exchange CommissionSEC.
6.1.8 Promptly(e) Such other information with respect to the business, information regarding condition or operations, financial or otherwise, and Properties of the Borrower and its Subsidiaries as the Administrative Agent, including at the request of any change in the Borrower’s Debt RatingLender, may from time to time reasonably request. Information Documents required to be delivered pursuant to these Sections 6.1.1Section 6.01(a), 6.1.2(b) or (d) may be delivered electronically and if so delivered, and 6.1.7 shall be deemed to have been delivered on the date (i) on which the Borrower posts such documents, or provides notice to the Lenders that such information has been posted a link thereto on the Securities and Exchange Commission Borrower’s website on the Internet at ▇▇▇.▇▇▇/▇▇▇▇▇/://▇▇▇▇▇▇▇▇.▇▇▇, on the Borrower’s IntraLinks site at ▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ or at another such other website identified in with respect to which the Borrower may from time to time notify the Administrative Agent and to which the Lenders have access; or (ii) on which such notice and accessible documents are posted on the Borrower’s behalf by the Lenders without chargeAdministrative Agent on SyndTrak or another relevant website, if any, to which each Lender and the Administrative Agent have access (whether a commercial, third-party website or whether sponsored by the Administrative Agent) or filed electronically through ▇▇▇▇▇ and available on the Internet at ▇▇▇.▇▇▇.▇▇▇; provided that the Borrower shall notify (i) such notice which may be included by facsimile or electronic mail) the Administrative Agent of the posting or filing of any such documents and provide to the Administrative Agent by electronic mail electronic versions (i.e., soft copies) of such documents. The Administrative Agent shall have no obligation to request the delivery or to maintain copies of the documents referred to above, and in any event shall have no responsibility to monitor compliance by the Borrower with any such request for delivery. The Borrower hereby acknowledges that (a) the Administrative Agent and/or the Arranger will make available to the Lenders materials and/or information provided by or on behalf of the Borrower hereunder (collectively, “Borrower Materials”) by posting the Borrower Materials on SyndTrak or another similar electronic system (the “Platform”) and (b) certain of the Lenders (each a certificate delivered pursuant “Public Lender”) may have personnel who do not wish to Section 6.1.3 receive material non-public information with respect to the Borrower or its Affiliates, or the respective securities of any of the foregoing, and who may be engaged in investment and other market-related activities with respect to such notice or certificate Persons’ securities. The Borrower hereby agrees that (w) all Borrower Materials that are to be made available to Public Lenders shall also be clearly and conspicuously marked “PUBLIC” which, at a minimum, shall mean that the word “PUBLIC” shall appear prominently on the first page thereof; (x) by marking Borrower Materials “PUBLIC,” the Borrower shall be deemed to have been delivered upon being posted authorized the Administrative Agent, the Arranger and the Lenders to treat the Borrower Materials as not containing any material non-public information with respect to the Borrower’s IntraLinks site Borrower or such other website its securities for purposes of United States Federal and state securities laws (provided, however, that to the extent the Borrower Materials constitute Information, they shall be treated as set forth in Section 9.10); (y) all Borrower Materials marked “PUBLIC” are permitted to be made available through a portion of the Platform designated “Public Side Information;” and (iiz) the Administrative Agent and the Arranger shall be entitled to treat the Borrower shall deliver paper copies Materials that are not marked “PUBLIC” as being suitable only for posting on a portion of the information referred to in Sections 6.1.1, 6.1.2 and 6.1.7 to any Lender which requests such deliveryPlatform that is not designated “Public Side Information.”
Appears in 1 contract
Sources: Term Loan Credit Agreement (Walgreens Boots Alliance, Inc.)
Financial Reporting. The Borrower will maintain, for itself and each Subsidiary, a system of accounting established and administered in accordance with GAAPthe Agreement Accounting Principles, and furnish to the Administrative Agent and in sufficient copies for each of the Lenders:
6.1.1 (i) Within ninety one hundred twenty (90120) days after the close of each of its fiscal yearsyears (or, financial statements if earlier, within thirty (30) days after the Borrower is required to file its Annual Report on Form 10-K with the Securities and Exchange Commission for such fiscal year), an unqualified (except for qualifications relating to changes in Agreement Accounting Principles or practices reflecting changes in Agreement Accounting Principles and required or approved by the Borrower’s independent certified public 72 15484836v115484836v9 accountants) audit report certified by independent certified public accountants reasonably acceptable to the Lenders, prepared in accordance with GAAP the Agreement Accounting Principles on a consolidated and consolidating basis (consolidating statements need not be certified by such accountants) for itself and its Subsidiaries, including balance sheets as of the end of such period, statements related profit and loss and reconciliation of income surplus statements, and statements a statement of cash flows, setting forth in comparative form figures for . Delivery by the preceding fiscal year, accompanied by an audit report, consistent Borrower to the Administrative Agent of copies of the Parent’s Annual Report on Form 10-K filed with the requirements of the Securities and Exchange Commission, of a nationally recognized firm of independent public accountants or other independent public accountants reasonably acceptable Commission for any year shall satisfy the Borrower’s obligation under this clause (i) with respect to the Required Lenderssuch year.
6.1.2 (ii) Within forty-five sixty (4560) days after the close of each of the first three (3) quarterly periodperiods of each of its fiscal years (or, if earlier, within fifteen (15) days after the Borrower is required to file its Quarterly Report on Form 10-Q for with the Securities and Exchange Commission for such period), consolidated and consolidating unaudited balance sheets as at the close of each of the first three (3) quarterly periods of each of its fiscal years, financial statements prepared in accordance with GAAP (other than with regard to the absence of footnotes and subject to changes resulting from audit and normal year-end audit adjustments to same) on a consolidated basis for itself and its Subsidiaries, including, consolidated unaudited balance sheets as at the close of each such period Subsidiaries and consolidated unaudited and consolidating profit and loss and reconciliation of surplus statements of income and a statement of cash flows for the period from the beginning of such fiscal year to the end of such quarter, in each case setting forth in comparative form figures for the corresponding period of the preceding fiscal year, and accompanied all certified by a certificate of the chief financial officer or treasurer of an Authorized Officer. Delivery by the Borrower to the effect that such quarterly financial statements fairly present in all material respects the financial condition Administrative Agent of copies of the Borrower Borrower’s Quarterly Report on Form 10-Q filed with the Securities and its Subsidiaries and have been prepared in accordance Exchange Commission for any quarter shall satisfy the Borrower’s obligation under this clause (ii) with GAAP (other than with regard respect to the absence of footnotes and subject to changes resulting from audit and normal year-end audit adjustments to same)such quarter.
6.1.3 (iii) Together with the financial statements required under Sections 6.1.1 6.1(i) and 6.1.2(ii), (iA) a compliance certificate in substantially the form of Exhibit B A signed by an Authorized Officer (a) showing the calculations necessary to determine compliance with Section 6.16, (b) this Agreement and stating that no Default or Unmatured Default exists, or if any Default or Unmatured Default exists, stating the nature and status thereof and (cB) updating Schedule 1 with respect to its Subsidiaries, Material Subsidiaries and Excluded Subsidiaries, if appropriate and (iia calculation of the Indebtedness secured by Liens permitted under Section 6.11(xiii) in such financial information as reasonable requested by the Agent, including, but not limited to consolidating financial statements, form as is necessary reasonably satisfactory to account for Excluded Indebtedness and Excluded EBITDA for purposes of determining the Consolidated Leverage RatioAdministrative Agent.
6.1.4 If requested, within 270 days after the close of each fiscal year of the Borrower, a copy of the actuarial report showing the Unfunded Liabilities of each Single Employer Plan as of the valuation date occurring in such fiscal year, certified by an actuary enrolled under ERISA.
6.1.5 (iv) As soon as possible practicable and in any event within ten (10) days after an Authorized Officer the Borrower knows that of the occurrence of any Reportable ERISA Event has occurred with respect to any Plan that could reasonably be expected to have a Material Adverse Effect, Effect (x) a statement, signed by written statement of an Authorized Officer, describing said Reportable Officer of the Borrower specifying the details of such ERISA Event and the action which that the Borrower or ERISA Affiliate has taken and proposes to take with respect thereto.
6.1.6 From time to time such additional information regarding the financial position or business of the Borrower and its Subsidiaries as the Agent, at the request (y) a copy of any Lender, notice with respect to such ERISA Event that may reasonably request, including be required to be filed with the support for PBGC and (z) a copy of any pro forma calculations hereunder.
6.1.7 Promptly, upon notice delivered by the filing thereof, copies of all registration statements (other than any registration statement on Form S-8 and any registration statement in connection with a dividend reinvestment plan, shareholder purchase plan or employee benefit plan) and reports on form 10-K, 10-Q or 8-K (or their equivalents) which PBGC to the Borrower or any of its Subsidiaries files an ERISA Affiliate with the Securities and Exchange Commissionrespect to such ERISA Event.
6.1.8 Promptly, information regarding any change in the Borrower’s Debt Rating. Information required to be delivered pursuant to these Sections 6.1.1, 6.1.2, and 6.1.7 shall be deemed to have been delivered on the date on which the Borrower provides notice to the Lenders that such information has been posted on the Securities and Exchange Commission website on the Internet at ▇▇▇.▇▇▇/▇▇▇▇▇/▇▇▇▇▇▇▇▇.▇▇▇, on the Borrower’s IntraLinks site at ▇▇▇▇▇▇▇▇▇▇.▇▇▇ or at another website identified in such notice and accessible by the Lenders without charge; provided that (i) such notice may be included in a certificate delivered pursuant to Section 6.1.3 and such notice or certificate shall also be deemed to have been delivered upon being posted to the Borrower’s IntraLinks site or such other website and (ii) the Borrower shall deliver paper copies of the information referred to in Sections 6.1.1, 6.1.2 and 6.1.7 to any Lender which requests such delivery.
Appears in 1 contract
Sources: Credit Agreement (Idaho Power Co)
Financial Reporting. The Borrower Guarantor shall deliver or cause to be delivered the following to Buyer; provided that Guarantor will maintainnot be required to deliver any of the following to Buyer if Guarantor, for itself and each Subsidiaryas applicable, a system of accounting established and administered in accordance with GAAP, and furnish has delivered such item to Buyer pursuant to the Agent and terms of the LendersRocket Repurchase Agreement:
6.1.1 Within ninety (90i) days after the close of each of its fiscal years, financial statements prepared in accordance with GAAP on a consolidated basis for itself and its Subsidiaries, including balance sheets as of the end of such period, statements of income and statements of cash flows, setting forth in comparative form figures for the preceding fiscal year, accompanied by an audit report, consistent with the requirements of the Securities and Exchange Commission, of a nationally recognized firm of independent public accountants or other independent public accountants reasonably acceptable to the Required Lenders.
6.1.2 Within forty-five (45) days after the close end of the first three quarterly periods each calendar month, (1) consolidated and consolidating statements of income and changes in shareholders’ equity and cash flows for such month of Guarantor and Guarantor’s consolidated Subsidiaries and (2) statements of income and changes in shareholders’ equity and cash flows for such month of each of its Guarantor’s Subsidiaries (excluding any Subsidiary that is only a holding company), and for each of Guarantor and such Subsidiaries, the related balance sheet as at the end of such month, all in reasonable detail, prepared in accordance with GAAP, subject to year-end adjustments and a lack of footnotes;
(ii) Within ninety (90) days after (1) Guarantor’s fiscal yearsyear end, financial consolidated and consolidating statements of income, changes in shareholders’ equity and cash flows of Guarantor and Guarantor’s consolidated Subsidiaries for such fiscal year, and (2) the fiscal year end of each Subsidiary of Guarantor, statements of income, changes in shareholders’ equity and cash flows of such Subsidiary (excluding any Subsidiary that is only a holding company), and for each of Guarantor and such Subsidiaries, the related balance sheet as at the end of such fiscal year (setting forth in comparative form the corresponding figures for the preceding fiscal year), all in reasonable detail, prepared in accordance with GAAP and an opinion prepared by an accounting firm reasonably satisfactory to Buyer, or other independent certified public accountants of recognized standing selected by Guarantor, as to Guarantor’s and Guarantor’s consolidated Subsidiaries financial statements and, only if Guarantor elects to have them audited, as to such Subsidiaries’ financial statements;
(other than iii) Together with regard to the absence each delivery of footnotes financial statements required in Sections 14(e)(i) and subject to changes resulting from audit and normal year-end audit adjustments to same) on 14(e)(ii), a consolidated basis for itself and its Subsidiaries, including, consolidated unaudited balance sheets as at the close of each such period and consolidated unaudited statements of income and a statement of cash flows for the period from the beginning of such fiscal year to the end of such quarter, in each case setting forth in comparative form figures for the corresponding period of the preceding fiscal year, and accompanied Compliance Certificate executed by a certificate of the chief financial officer, chief executive officer or treasurer president of Guarantor, on behalf of Guarantor;
(iv) Photocopies or electronic copies of all regular or periodic financial and other reports, if any, that Guarantor shall file with the SEC, not later than thirty (30) days after filing; LEGAL02/41441953v3
(v) Photocopies or electronic copies of the Borrower relevant portions of any final written audits completed by any Agency of Guarantor that provide for material corrective action, material sanctions or classifications of the quality of Guarantor’s operations, not later than five (5) Business Days after receiving such audit;
(vi) Weekly (and more frequently if reasonably requested by Buyer), a hedging report in a form mutually agreed to between Buyer and Guarantor; and
(vii) From time to time, with reasonable promptness, such further information regarding the effect that such quarterly financial statements fairly present in all material respects Pledged Items, or the business, operations, properties or financial condition of the Borrower and its Subsidiaries and have been prepared in accordance with GAAP (other than with regard to the absence of footnotes and subject to changes resulting from audit and normal year-end audit adjustments to same).
6.1.3 Together with the financial statements required under Sections 6.1.1 and 6.1.2, (i) a compliance certificate in substantially the form of Exhibit B signed by an Authorized Officer (a) showing the calculations necessary to determine compliance with Section 6.16, (b) stating that no Default or Unmatured Default exists, or if any Default or Unmatured Default exists, stating the nature and status thereof and (c) updating Schedule 1 with respect to its Subsidiaries, Material Subsidiaries and Excluded Subsidiaries, if appropriate and (ii) such financial information Guarantor as reasonable requested by the Agent, including, but not limited to consolidating financial statements, as is necessary to account for Excluded Indebtedness and Excluded EBITDA for purposes of determining the Consolidated Leverage Ratio.
6.1.4 If requested, within 270 days after the close of each fiscal year of the Borrower, a copy of the actuarial report showing the Unfunded Liabilities of each Single Employer Plan as of the valuation date occurring in such fiscal year, certified by an actuary enrolled under ERISA.
6.1.5 As soon as possible and in any event within ten (10) days after an Authorized Officer knows that any Reportable Event has occurred with respect to any Plan that could reasonably be expected to have a Material Adverse Effect, a statement, signed by an Authorized Officer, describing said Reportable Event and the action which the Borrower proposes to take with respect thereto.
6.1.6 From time to time such additional information regarding the financial position or business of the Borrower and its Subsidiaries as the Agent, at the request of any Lender, Buyer may reasonably request, including the support for any pro forma calculations hereunder.
6.1.7 Promptly, upon the filing thereof, copies of all registration statements (other than any registration statement on Form S-8 and any registration statement in connection with a dividend reinvestment plan, shareholder purchase plan or employee benefit plan) and reports on form 10-K, 10-Q or 8-K (or their equivalents) which the Borrower or any of its Subsidiaries files with the Securities and Exchange Commission.
6.1.8 Promptly, information regarding any change in the Borrower’s Debt Rating. Information required to be delivered pursuant to these Sections 6.1.1, 6.1.2, and 6.1.7 shall be deemed to have been delivered on the date on which the Borrower provides notice to the Lenders that such information has been posted on the Securities and Exchange Commission website on the Internet at ▇▇▇.▇▇▇/▇▇▇▇▇/▇▇▇▇▇▇▇▇.▇▇▇, on the Borrower’s IntraLinks site at ▇▇▇▇▇▇▇▇▇▇.▇▇▇ or at another website identified in such notice and accessible by the Lenders without charge; provided that (i) such notice may be included in a certificate delivered pursuant to Section 6.1.3 and such notice or certificate shall also be deemed to have been delivered upon being posted to the Borrower’s IntraLinks site or such other website and (ii) the Borrower shall deliver paper copies of the information referred to in Sections 6.1.1, 6.1.2 and 6.1.7 to any Lender which requests such delivery.
Appears in 1 contract
Sources: Master Repurchase Agreement (Rocket Companies, Inc.)
Financial Reporting. The Borrower will, and will maintaincause each of its Subsidiaries to, for itself maintain books and each Subsidiary, records including a system of accounting established and administered in accordance with sound business practices to permit preparation of financial statements in accordance with GAAP, and the Borrower will furnish to the Administrative Agent and the Lenders:
6.1.1 (a) Within ninety (90) 90 days after the close of each of its fiscal yearsyears (or such lesser number of days within which the Borrower shall be required to file (or under the SEC’s Rule 12b-25 or any successor shall be deemed to have timely filed) its Annual Report on Form 10-K for such fiscal year with the SEC), financial the audited consolidated balance sheet and related statements prepared in accordance with GAAP on a consolidated basis for itself of income, shareholders’ equity and cash flows of the Borrower and its Subsidiaries, including balance sheets Subsidiaries as of the end of and for such period, statements of income and statements of cash flowsyear, setting forth in each case in comparative form the figures for (or, in the preceding case of the balance sheet, as of the end of) the previous fiscal year, accompanied all reported on by an audit report, consistent with the requirements of the Securities and Exchange Commission, of a nationally recognized firm of independent public accountants of recognized national standing (without a “going concern” or other independent public accountants reasonably acceptable like qualification or exception and without any qualification or exception as to the Required Lenders.scope of such audit) and certified by the chief financial officer of the Borrower to the effect that such consolidated financial statements present fairly in all material respects the financial condition and results of operations of the Borrower and its Subsidiaries on a consolidated basis in accordance with GAAP consistently applied;
6.1.2 (b) Within forty-five (45) 45 days after the close of the first three quarterly periods of each of its fiscal yearsyears (or such lesser number of days within which the Borrower shall be required to file (or under the SEC’s Rule 12b-25 or any successor shall be deemed to have timely filed) its Quarterly Report on Form 10-Q for such fiscal quarter with the SEC), financial the unaudited consolidated balance sheet and related statements prepared in accordance with GAAP (other than with regard to of income, shareholders’ equity and cash flows of the absence of footnotes and subject to changes resulting from audit and normal year-end audit adjustments to same) on a consolidated basis for itself Borrower and its Subsidiaries, including, consolidated unaudited balance sheets Subsidiaries as at of the close end of each and for such period fiscal quarter and consolidated unaudited statements of income and a statement of cash flows for the period from the beginning then elapsed portion of such fiscal year to the end of such quarteryear, setting forth in each case setting forth in comparative form the figures for (or, in the corresponding case of the balance sheet, as of the end of) the same period of the preceding previous fiscal year, and accompanied all certified by a certificate of the chief financial officer or treasurer of the Borrower to the effect that such quarterly financial statements as presenting fairly present in all material respects the financial condition and results of operations of the Borrower and its consolidated Subsidiaries and have been prepared on a consolidated basis in accordance with GAAP (other than with regard to the absence of footnotes and consistently applied, subject to changes resulting from audit and normal year-end audit adjustments to same).and the absence of footnotes;
6.1.3 Together with the financial statements required under Sections 6.1.1 and 6.1.2, (i) a compliance certificate in substantially the form of Exhibit B signed by an Authorized Officer (a) showing the calculations necessary to determine compliance with Section 6.16, (b) stating that no Default or Unmatured Default exists, or if any Default or Unmatured Default exists, stating the nature and status thereof and (c) updating Schedule 1 with respect to its Subsidiaries, Material Subsidiaries and Excluded Subsidiaries, if appropriate and (ii) such financial information As soon as reasonable requested by the Agent, includingavailable, but not limited to consolidating financial statements, as is necessary to account for Excluded Indebtedness and Excluded EBITDA for purposes of determining the Consolidated Leverage Ratio.
6.1.4 If requested, in any event within 270 90 days after the close beginning of each fiscal year of the Borrower, a copy of the actuarial report showing the Unfunded Liabilities of each Single Employer Plan as plan and forecast (including a projected consolidated balance sheet, income statement and funds flow statement) of the valuation date occurring in Borrower for such fiscal year, certified by an actuary enrolled ;
(d) Together with the financial statements required under ERISA.
6.1.5 As soon as possible Sections 6.01(a) and in any event within ten (10) days after an Authorized Officer knows that any Reportable Event has occurred with respect to any Plan that could reasonably be expected to have a Material Adverse Effectb), a statement, Compliance Certificate signed by an Authorized Officerits Chief Financial Officer showing the calculations necessary to determine compliance with this Agreement and stating that no Default or Event of Default exists, describing said Reportable or if any Default or Event of Default exists, stating the nature and status thereof (which delivery may, unless the action which the Borrower proposes to take with respect thereto.
6.1.6 From time to time such additional information regarding the financial position Administrative Agent or business of the Borrower a Lender requests executed originals, be by electronic communication including fax or email and its Subsidiaries as the Agent, at the request of any Lender, may reasonably request, including the support for any pro forma calculations hereunder.
6.1.7 Promptly, upon the filing thereof, copies of all registration statements (other than any registration statement on Form S-8 and any registration statement in connection with a dividend reinvestment plan, shareholder purchase plan or employee benefit plan) and reports on form 10-K, 10-Q or 8-K (or their equivalents) which the Borrower or any of its Subsidiaries files with the Securities and Exchange Commission.
6.1.8 Promptly, information regarding any change in the Borrower’s Debt Rating. Information required to be delivered pursuant to these Sections 6.1.1, 6.1.2, and 6.1.7 shall be deemed to have been delivered on the date on which the Borrower provides notice to the Lenders that such information has been posted on the Securities and Exchange Commission website on the Internet at ▇▇▇.▇▇▇/▇▇▇▇▇/▇▇▇▇▇▇▇▇.▇▇▇, on the Borrower’s IntraLinks site at ▇▇▇▇▇▇▇▇▇▇.▇▇▇ or at another website identified in such notice and accessible by the Lenders without charge; provided that (i) such notice may be included in a certificate delivered pursuant to Section 6.1.3 and such notice or certificate shall also be deemed to have been delivered upon being posted to the Borrower’s IntraLinks site or such other website and (ii) the Borrower shall deliver paper copies of the information referred to in Sections 6.1.1, 6.1.2 and 6.1.7 to any Lender which requests such delivery.an original authentic counterpart thereof for all purposes);
Appears in 1 contract
Sources: Credit Agreement (Clarcor Inc.)
Financial Reporting. The Borrower will maintain, for itself and each Subsidiary, a system of accounting established and administered in accordance with GAAPthe Agreement Accounting Principles, and furnish to the Administrative Agent and in sufficient copies for each of the Lenders:
6.1.1 (i) Within ninety one hundred twenty (90120) days after the close of each of its fiscal yearsyears (or, financial statements if earlier, within thirty (30) days after the Borrower is required to file its Annual Report on Form 10-K with the Securities and Exchange Commission for such fiscal 72 15524773v115524773v5 year), an unqualified (except for qualifications relating to changes in Agreement Accounting Principles or practices reflecting changes in Agreement Accounting Principles and required or approved by the Borrower’s independent certified public accountants) audit report certified by independent certified public accountants reasonably acceptable to the Lenders, prepared in accordance with GAAP the Agreement Accounting Principles on a consolidated and consolidating basis (consolidating statements need not be certified by such accountants) for itself and its Subsidiaries, including balance sheets as of the end of such period, statements related profit and loss and reconciliation of income surplus statements, and statements a statement of cash flows, setting forth in comparative form figures for . Delivery by the preceding fiscal year, accompanied by an audit report, consistent Borrower to the Administrative Agent of copies of the Borrower’s Annual Report on Form 10-K filed with the requirements of the Securities and Exchange Commission, of a nationally recognized firm of independent public accountants or other independent public accountants reasonably acceptable Commission for any year shall satisfy the Borrower’s obligation under this clause (i) with respect to the Required Lenderssuch year.
6.1.2 (ii) Within forty-five sixty (4560) days after the close of each of the first three (3) quarterly periodperiods of each of its fiscal years (or, if earlier, within fifteen (15) days after the Borrower is required to file its Quarterly Report on Form 10-Q for with the Securities and Exchange Commission for such period), consolidated and consolidating unaudited balance sheets as at the close of each of the first three (3) quarterly periods of each of its fiscal years, financial statements prepared in accordance with GAAP (other than with regard to the absence of footnotes and subject to changes resulting from audit and normal year-end audit adjustments to same) on a consolidated basis for itself and its Subsidiaries, including, consolidated unaudited balance sheets as at the close of each such period Subsidiaries and consolidated unaudited and consolidating profit and loss and reconciliation of surplus statements of income and a statement of cash flows for the period from the beginning of such fiscal year to the end of such quarter, in each case setting forth in comparative form figures for the corresponding period of the preceding fiscal year, and accompanied all certified by a certificate of the chief financial officer or treasurer of an Authorized Officer. Delivery by the Borrower to the effect that such quarterly financial statements fairly present in all material respects the financial condition Administrative Agent of copies of the Borrower Borrower’s Quarterly Report on Form 10-Q filed with the Securities and its Subsidiaries and have been prepared in accordance Exchange Commission for any quarter shall satisfy the Borrower’s obligation under this clause (ii) with GAAP (other than with regard respect to the absence of footnotes and subject to changes resulting from audit and normal year-end audit adjustments to same)such quarter.
6.1.3 (iii) Together with the financial statements required under Sections 6.1.1 6.1(i) and 6.1.2(ii), (iA) a compliance certificate in substantially the form of Exhibit B A signed by an Authorized Officer (a) showing the calculations necessary to determine compliance with Section 6.16, (b) this Agreement and stating that no Default or Unmatured Default exists, or if any Default or Unmatured Default exists, stating the nature and status thereof and (cB) updating Schedule 1 with respect to its Subsidiaries, Material Subsidiaries and Excluded Subsidiaries, if appropriate and (iia calculation of the Indebtedness secured by Liens permitted under Section 6.11(xiii) in such financial information as reasonable requested by the Agent, including, but not limited to consolidating financial statements, form as is necessary reasonably satisfactory to account for Excluded Indebtedness and Excluded EBITDA for purposes of determining the Consolidated Leverage RatioAdministrative Agent.
6.1.4 If requested, within 270 days after the close of each fiscal year of the Borrower, a copy of the actuarial report showing the Unfunded Liabilities of each Single Employer Plan as of the valuation date occurring in such fiscal year, certified by an actuary enrolled under ERISA.
6.1.5 (iv) As soon as possible practicable and in any event within ten (10) days after an Authorized Officer the Borrower knows that of the occurrence of any Reportable ERISA Event has occurred with respect to any Plan that could reasonably be expected to have a Material Adverse Effect, Effect (x) a statement, signed by written statement of an Authorized Officer, describing said Reportable Officer of the Borrower specifying the details of such ERISA Event and the action which that the Borrower or ERISA Affiliate has taken and proposes to take with respect thereto, (y) a copy of any notice with respect to such ERISA Event that may be required to be filed with the PBGC and (z) a copy of any notice delivered by the PBGC to the Borrower or an ERISA Affiliate with respect to such ERISA Event.
6.1.6 From time (v) As soon as practicable and in any event within ten (10) days after receipt by the Borrower, a copy of (a) any notice or claim to time such additional information regarding the financial position effect that the Borrower or business any of its Subsidiaries is or may be liable to any Person as a result of the Borrower and release by the Borrower, any of its Subsidiaries as the AgentSubsidiaries, at the request or any other Person of any Lendertoxic or hazardous waste or 73 15524773v115524773v5 substance into the environment, may and (b) any notice alleging any violation of any federal, state or local environmental, health or safety law or regulation by the Borrower or any of its Subsidiaries, which, in either case, could reasonably request, including the support for any pro forma calculations hereunderbe expected to have a Material Adverse Effect.
6.1.7 Promptly(vi) Promptly upon the furnishing thereof to the shareholders of the Borrower, copies of all financial statements and reports so furnished.
(vii) Promptly upon the filing thereof, copies of all registration statements (and annual, quarterly, monthly or other than any registration statement on Form S-8 and any registration statement in connection with a dividend reinvestment plan, shareholder purchase plan or employee benefit plan) and regular reports on form 10-K, 10-Q or 8-K (or their equivalents) which the Borrower or any of its Subsidiaries files with the Securities and Exchange Commission.
6.1.8 Promptly(viii) Promptly upon the request thereof, such other information regarding and documentation required under applicable “know your customer” rules and regulations, the PATRIOT Act or any change applicable Anti-Money Laundering Laws or Anti-Corruption Laws, in the Borrower’s Debt Rating. Information required each case as from time to be delivered pursuant to these Sections 6.1.1, 6.1.2, and 6.1.7 shall be deemed to have been delivered on the date on which the Borrower provides notice to the Lenders that such information has been posted on the Securities and Exchange Commission website on the Internet at ▇▇▇.▇▇▇/▇▇▇▇▇/▇▇▇▇▇▇▇▇.▇▇▇, on the Borrower’s IntraLinks site at ▇▇▇▇▇▇▇▇▇▇.▇▇▇ or at another website identified in such notice and accessible time reasonably requested by the Lenders without charge; provided that Administrative Agent or any Lender.
(iix) such notice may be included in a certificate delivered pursuant to Section 6.1.3 and such notice Such other information (including nonfinancial information) as the Administrative Agent or certificate shall also be deemed to have been delivered upon being posted to the Borrower’s IntraLinks site or such other website and (ii) the Borrower shall deliver paper copies of the information referred to in Sections 6.1.1, 6.1.2 and 6.1.7 to any Lender which requests such deliverymay from time to time reasonably request.
Appears in 1 contract
Sources: Credit Agreement (Idaho Power Co)
Financial Reporting. The Borrower will maintain, for itself and each Subsidiary, a system of accounting established and administered in accordance with GAAPgenerally accepted accounting principles, and will furnish to the Administrative Agent and for further distribution to the LendersLenders the following:
6.1.1 Within ninety (90a) within 90 days after the close of each fiscal year of its fiscal yearsthe Borrower, financial statements an audit report certified by independent certified public accountants of recognized national standing (which in each case shall be without a “going concern” or like qualification or exception and without any qualification or exception as to the scope of such audit), prepared in accordance with GAAP on a consolidated and consolidating basis (consolidating statements need not be certified by such accountants) for itself the Borrower and its Subsidiaries, including balance sheets as of the end of such period, statements related profit and loss and reconciliation of income surplus statements, and statements a statement of cash flows, setting forth in comparative form figures for the preceding fiscal yearflows on a consolidated and consolidating basis, accompanied by an audit report, consistent with the requirements of the Securities and Exchange Commission, of a nationally recognized firm of independent public any final management letter prepared by said accountants or other independent public accountants reasonably acceptable to the Required Lenders.Borrower;
6.1.2 Within forty-five (45b) within 45 days after the close of the first three quarterly periods of each of its the Borrower’s fiscal yearsyears (commencing with the first fiscal quarter ending after the Amendment Effective Date), financial statements prepared in accordance with GAAP (other than with regard to for the absence of footnotes and subject to changes resulting from audit and normal year-end audit adjustments to same) on a consolidated basis for itself Borrower and its Subsidiaries, including, consolidated and consolidating unaudited balance sheets as at the close of each such period period, consolidated and consolidated unaudited consolidating profit and loss and reconciliation of surplus statements of income and a consolidated and consolidating statement of cash flows for the period from the beginning of such fiscal year to the end of such quarter, certified by a Financial Officer of the Borrower as in each case setting forth in comparative form figures for the corresponding period of the preceding fiscal yearfairly presenting, and accompanied by a certificate of the chief financial officer or treasurer of the Borrower to the effect that such quarterly financial statements fairly present in all material respects respects, the consolidated financial condition of the Borrower and its consolidated Subsidiaries and have been prepared in accordance with GAAP (other than with regard to the absence of footnotes and subject to changes resulting from audit and normal year-end audit adjustments to same).
6.1.3 Together with the financial statements required under Sections 6.1.1 and 6.1.2, (i) a compliance certificate in substantially the form of Exhibit B signed by an Authorized Officer (a) showing the calculations necessary to determine compliance with Section 6.16, (b) stating that no Default or Unmatured Default exists, or if any Default or Unmatured Default exists, stating the nature and status thereof and (c) updating Schedule 1 with respect to its Subsidiaries, Material Subsidiaries and Excluded Subsidiaries, if appropriate and (ii) such financial information as reasonable requested by the Agent, including, but not limited to consolidating financial statements, as is necessary to account for Excluded Indebtedness and Excluded EBITDA for purposes of determining the Consolidated Leverage Ratio.
6.1.4 If requested, within 270 days after the close of each fiscal year of the Borrower, a copy of the actuarial report showing the Unfunded Liabilities of each Single Employer Plan as of the valuation date occurring in such fiscal year, certified by an actuary enrolled under ERISA.
6.1.5 As soon as possible and in any event within ten (10) days after an Authorized Officer knows that any Reportable Event has occurred with respect to any Plan that could reasonably be expected to have a Material Adverse Effect, a statement, signed by an Authorized Officer, describing said Reportable Event and the action which the Borrower proposes to take with respect thereto.
6.1.6 From time to time such additional information regarding the financial position or business absence of the Borrower and its Subsidiaries as the Agent, at the request of any Lender, may reasonably request, including the support for any pro forma calculations hereunder.
6.1.7 Promptly, upon the filing thereof, copies of all registration statements (other than any registration statement on Form S-8 and any registration statement in connection with a dividend reinvestment plan, shareholder purchase plan or employee benefit planfootnotes) and reports on form 10-K, 10-Q or 8-K (or their equivalents) which the Borrower or any of its Subsidiaries files with the Securities and Exchange Commission.
6.1.8 Promptly, information regarding any change having been prepared in the Borrower’s Debt Rating. Information required to be delivered pursuant to these Sections 6.1.1, 6.1.2, and 6.1.7 shall be deemed to have been delivered on the date on which the Borrower provides notice to the Lenders that such information has been posted on the Securities and Exchange Commission website on the Internet at ▇▇▇.▇▇▇/▇▇▇▇▇/▇▇▇▇▇▇▇▇.▇▇▇, on the Borrower’s IntraLinks site at ▇▇▇▇▇▇▇▇▇▇.▇▇▇ or at another website identified in such notice and accessible by the Lenders without charge; provided that (i) such notice may be included in a certificate delivered pursuant to Section 6.1.3 and such notice or certificate shall also be deemed to have been delivered upon being posted to the Borrower’s IntraLinks site or such other website and (ii) the Borrower shall deliver paper copies of the information referred to in Sections 6.1.1, 6.1.2 and 6.1.7 to any Lender which requests such delivery.reasonable detail;
Appears in 1 contract
Financial Reporting. The Borrower will maintain, for itself and for each Subsidiary, a system of accounting established and administered in accordance with GAAPAgreement Accounting Principles, and furnish to the Agent and the Lenders:
6.1.1 (i) Within ninety (90) 90 days after the close end of each of its Borrower's fiscal yearsyears (ending December 31), financial statements an unqualified audit report certified by independent certified public accountants acceptable to the Lenders, prepared in accordance with GAAP Agreement Accounting Principles on a consolidated and consolidating basis (consolidating statements need not be certified by such accountants) for itself Borrower and its Subsidiaries, including balance sheets as of the end of such period, statements related profit and loss statement, statement of income changes in shareholders equity and statements statement of cash flows, setting forth in comparative form figures for the preceding fiscal year, accompanied by an audit reporta certificate of said accountants that, consistent with in the requirements course of their examination necessary for their certification of the Securities foregoing, they have obtained no knowledge of any Default or Unmatured Default, or if, in the opinion of such accountants, any Default or Unmatured Default shall exist, stating the nature and Exchange Commission, of a nationally recognized firm of independent public accountants or other independent public accountants reasonably acceptable to the Required Lendersstatus thereof.
6.1.2 (ii) Within forty-five (45) 45 days after the close of the first three quarterly periods end of each of its fiscal years, financial statements prepared in accordance with GAAP (other than with regard to the absence of footnotes and subject to changes resulting from audit and normal year-end audit adjustments to same) on a consolidated basis for itself and its Subsidiaries, includingcalendar month, consolidated and consolidating unaudited balance sheets as at the close end of each such period month and consolidated unaudited statements of income and a statement of cash flows consolidating profit and loss statements, for the period from the beginning of such fiscal year to the end of such quartermonth, in each case setting forth in comparative form figures for the corresponding period of the preceding fiscal year, and accompanied all certified by a certificate of the its chief financial officer or treasurer of the Borrower to the effect that such quarterly financial statements fairly present in all material respects the financial condition of the Borrower and its Subsidiaries and have been prepared in accordance with GAAP (other than with regard to the absence of footnotes and subject to changes resulting from audit and normal year-end audit adjustments to same)officer.
6.1.3 (iii) Together with the financial statements required under Sections 6.1.1 and 6.1.2, (i6.1(i) a compliance certificate in substantially the form of Exhibit B signed by an Authorized Officer (a) showing the calculations necessary to determine compliance with Section 6.16, (b) stating that no Default or Unmatured Default exists, or if any Default or Unmatured Default exists, stating the nature and status thereof and (c) updating Schedule 1 with respect to its Subsidiaries, Material Subsidiaries and Excluded Subsidiaries, if appropriate and (ii) (but only quarterly), a Compliance Certificate.
(iv) Within 20 days after the end of each calendar month (or within 5 days after any request by the Agent), a Borrowing Base Certificate with respect to the Borrower and its Subsidiaries, accompanied by such financial information supporting detail and documentation as reasonable shall be requested by the Agent, including, but not limited to consolidating financial statements, as is necessary to account for Excluded Indebtedness and Excluded EBITDA for purposes of determining the Consolidated Leverage Ratio.
6.1.4 If requested, within 270 (v) Within 20 days after the close end of each fiscal year calendar month, a report of the work in progress inventory of the Borrower and each Subsidiary as of the end of such month, in form and substance satisfactory to the Agent.
(vi) Within 20 days after the end of each calendar month, an accounts receivable aging report for the Borrower and each of its Subsidiaries as of the end of such month, in form and substance satisfactory to the Agent (including notations indicating which accounts receivable are supported by letters of credit issued or confirmed by banks located in the United States).
(vii) Within 45 days of the end of each calendar month, a report of the backlog/jobs in progress of the Borrower and each Subsidiary as of the end of such month, in form and substance satisfactory to the Agent.
(viii) Within 45 days after the end of each calendar month, an accounts payable report for the Borrower and each of its Subsidiaries as of the end of such month, in form and substance satisfactory to the Agent.
(ix) As soon as available, but in any event within 30 days after the beginning of each of Borrower's fiscal year, a copy of the actuarial report showing the Unfunded Liabilities of each Single Employer Plan as plan and forecast (including a projected consolidated and consolidating balance sheet, income statement and funds flow statement) of the valuation date occurring in Borrower and its Subsidiaries for each fiscal quarter of such fiscal year, certified by an actuary enrolled under ERISAyear and for such fiscal year as a whole.
6.1.5 (x) As soon as possible and in any event within ten (10) 10 days after an Authorized Officer the Borrower knows that any Reportable Event has occurred with respect to any Plan that could reasonably be expected to have a Material Adverse EffectPlan, a statement, statement signed by an Authorized Officerthe chief financial officer of the Borrower, describing said Reportable Event and the action which the Borrower proposes to take with respect thereto.
6.1.6 From time (xi) As soon as possible and in any event within 10 days after receipt by the Borrower, a copy of (a) any notice or claim to time such additional information regarding the financial position effect that the Borrower or business any of its Subsidiaries is or may be liable to any Person as a result of the Borrower and release by the Borrower, any of its Subsidiaries as the AgentSubsidiaries, at the request or any other Person of any Lendertoxic or hazardous waste or substance into the environment, may and (b) any notice alleging any violation of any federal, state or local environmental, health or safety law or regulation by the Borrower or any of its Subsidiaries, which, in either case, could reasonably request, including the support for any pro forma calculations hereunderbe expected to have a Material Adverse Effect.
6.1.7 Promptly(xii) Promptly upon the furnishing thereof to the shareholders of the Borrower, copies of all financial statements, reports and proxy statements so furnished.
(xiii) Promptly upon the filing thereof, copies of all registration statements (and annual, quarterly, monthly or other than any registration statement on Form S-8 and any registration statement in connection with a dividend reinvestment plan, shareholder purchase plan or employee benefit plan) and regular reports on form 10-K, 10-Q or 8-K (or their equivalents) which the Borrower or any of its Subsidiaries files with the Securities and Exchange Commission.
6.1.8 Promptly, (xiv) Such other information regarding any change in (including non-financial information) as the Borrower’s Debt Rating. Information required to be delivered pursuant to these Sections 6.1.1, 6.1.2, and 6.1.7 shall be deemed to have been delivered on the date on which the Borrower provides notice to the Lenders that such information has been posted on the Securities and Exchange Commission website on the Internet at ▇▇▇.▇▇▇/▇▇▇▇▇/▇▇▇▇▇▇▇▇.▇▇▇, on the Borrower’s IntraLinks site at ▇▇▇▇▇▇▇▇▇▇.▇▇▇ Agent or at another website identified in such notice and accessible by the Lenders without charge; provided that (i) such notice may be included in a certificate delivered pursuant to Section 6.1.3 and such notice or certificate shall also be deemed to have been delivered upon being posted to the Borrower’s IntraLinks site or such other website and (ii) the Borrower shall deliver paper copies of the information referred to in Sections 6.1.1, 6.1.2 and 6.1.7 to any Lender which requests such deliverymay from time to time reasonably request.
Appears in 1 contract
Financial Reporting. The Borrower will maintain, for itself and each Subsidiary, a system of accounting established and administered in accordance with GAAP, and furnish to the Administrative Agent and on behalf of the Lenders:
6.1.1 (i) Within ninety (90) 90 days after the close of each of its fiscal years, financial statements an unqualified (except for qualifications relating to (x) changes in accounting GAAP or practices reflecting changes in generally accepted accounting principles and required or approved by the Borrower’s independent certified public accountants and (y) the debt maturity of any Obligations occurring within one year from the time such report is delivered) audit report certified by independent certified public accountants reasonably acceptable to the Lenders, prepared in accordance with GAAP on a consolidated and consolidating basis (consolidating statements need not be certified by such accountants and shall be in a form reasonably satisfactory to the Administrative Agent) for itself and its Subsidiaries, including balance sheets as of the end of such period, statements related profit and loss and reconciliation of income surplus statements, and statements a statement of cash flows, setting forth in comparative form figures for the preceding fiscal year, accompanied by an audit report, consistent with the requirements of the Securities and Exchange Commission, of a nationally recognized firm of independent public accountants or other independent public accountants reasonably acceptable to the Required Lendersany management letter prepared by said accountants.
6.1.2 (ii) (A) Within forty-five (45) 45 days after the close of the first three quarterly periods of each of its fiscal yearsyears (or, financial statements prepared in accordance solely with GAAP (other than with regard respect to the absence fiscal quarter ending March 31, 2020, within 75 days after the close of footnotes and subject to changes resulting from audit and normal year-end audit adjustments to same) on a consolidated basis such fiscal quarter), for itself and its Subsidiaries, including, consolidated and consolidating unaudited balance sheets as at the close of each such period and consolidated unaudited and consolidating profit and loss and reconciliation of surplus statements of income and a statement of cash flows for the period from the beginning of such fiscal year to the end of such quarter, in all certified by its chief financial officer and (B) solely during the Covenant Waiver Period and commencing with the monthly period ending July 31, 2020, (x) within 30 days after the close of each case setting forth in comparative form figures for the corresponding monthly period of its fiscal years that does not coincide with the preceding end of a fiscal quarter or a fiscal year, and accompanied by a certificate (y) within 45 days after the close of each monthly period that coincides with the end of any of the first three fiscal quarters of each of its fiscal years and (z) within 60 days after the close of each monthly period of each of its fiscal years that coincides with the end of a fiscal year, in each case, for itself and its Subsidiaries, consolidated and consolidating unaudited balance sheets as at the close of each such period and consolidated and consolidating profit and loss and reconciliation of surplus statements and a statement of cash flows for the period from the beginning of such fiscal year to the end of such month, all certified by its chief financial officer or treasurer officer.
(iii) As soon as available, but in any event within 60 days after the beginning of each fiscal year of the Borrower to Borrower, a copy of the effect that such quarterly financial statements fairly present in all material respects the financial condition plan and forecast (including a projected consolidated and consolidating balance sheet, income statement and funds flow statement) of the Borrower and its Subsidiaries for such fiscal year; provided, however, that the preceding plan and have been prepared forecast shall be required to be delivered only if, as of September 30 of the year immediately preceding the year in accordance with GAAP (other which such plan and forecast would otherwise be required to be delivered, the Leverage Ratio is greater than with regard 2.00 to the absence of footnotes and subject to changes resulting from audit and normal year-end audit adjustments to same)1.00.
6.1.3 (iv) Together with the financial statements required under Sections 6.1.1 6.1(i) and 6.1.2(ii)(A), (i) a compliance certificate in substantially the form of Exhibit B signed by an Authorized Officer (a) its chief financial officer showing the calculations necessary to determine compliance with Section 6.16, (b) this Agreement and stating that no Default or Unmatured Default exists, or if any Default or Unmatured Default exists, stating the nature and status thereof (for the avoidance of doubt, it is understood and agreed that such compliance certificate is required to be delivered pursuant to this clause (civ) updating Schedule 1 with respect to its Subsidiaries, Material Subsidiaries and Excluded Subsidiaries, if appropriate and (ii) such financial information as reasonable requested by regardless of whether the Agent, including, but not limited to consolidating financial statements, as Covenant Waiver Period is necessary to account for Excluded Indebtedness and Excluded EBITDA for purposes of determining the Consolidated Leverage Ratiothen in effect).
6.1.4 If requested, within 270 days after the close of each fiscal year of the Borrower, a copy of the actuarial report showing the Unfunded Liabilities of each Single Employer Plan as of the valuation date occurring in such fiscal year, certified by an actuary enrolled under ERISA.
6.1.5 (v) As soon as possible and in any event within ten (10) days 10 Business Days after an Authorized Officer the Borrower knows that any Reportable Event has occurred with respect to any Single Employer Plan, which Reportable Event, a failure to make required contributions with respect to a Plan or Multiemployer Plan, or the initiation of the termination of a Plan that could reasonably be expected to have a Material Adverse EffectEffect or result in the imposition of a Lien, a statement, signed by an Authorized Officerthe chief financial officer of the Borrower, describing said Reportable Event or such other event and the action which the Borrower proposes to take with respect thereto.
6.1.6 From time (vi) As soon as possible and in any event within 10 Business Days after receipt by the Borrower, a copy of (a) any written notice or written claim to time such additional information regarding the financial position effect that the Borrower or business any of its Subsidiaries is or may be liable to any Person as a result of the Borrower and release by the Borrower, any of its Subsidiaries as the AgentSubsidiaries, at the request or any other Person of any Lendertoxic or hazardous waste or substance into the environment, may and (b) any written notice alleging any violation of any federal, state or local environmental, health or safety law or regulation by the Borrower or any of its Subsidiaries, which, in either case, could reasonably request, including the support for any pro forma calculations hereunderbe expected to have a Material Adverse Effect.
6.1.7 Promptly(vii) Promptly upon the furnishing thereof to the shareholders of the Borrower, copies of all financial statements, reports and proxy statements so furnished.
(viii) Promptly upon the filing thereof, copies notice of the filing to the Administrative Agent of all registration statements (other than any registration statement on Form S-8 and any registration statement in connection with a dividend reinvestment plan, shareholder purchase plan or employee benefit plan) periodic and current reports on form forms 10-K, 10-Q or and 8-K (or their equivalents) which the Borrower or any of its Subsidiaries files with the Securities and Exchange Commission.
6.1.8 Promptly(ix) (A) Promptly following any request therefor, information regarding and documentation reasonably requested by the Administrative Agent or any Lender for purposes of compliance with applicable “know your customer” and anti-money laundering rules and regulations, including the Patriot Act and the Beneficial Ownership Regulation and (B) promptly following any change in the Borrower’s Debt Ratinginformation provided in the Beneficial Ownership Certification delivered to any Lender that would result in a change to the list of beneficial owners identified in such certification, a revised Beneficial Ownership Certification.
(x) So long as the Covenant Waiver Period is in effect, not later than Friday of every other week (commencing with Friday, May 8, 2020), a report setting forth (A) an updated rolling 13-week cash flow forecast for the LoanCredit Parties covering the 13-week period beginning with the Monday immediately preceding each such Friday (each such forecast to be in form and substance reasonably acceptable to the Administrative Agent and in a form consistent with the cash flow forecasts previously submitted to the Administrative Agent) and (B) a reasonably detailed summary of the status of all major events, shows, attractions and lodges of the Borrower and its Subsidiaries, including, without limitation, information with respect to postponements, cancelations, payments, deposits, pending claims, accelerations, notices of terminations and lawsuits, in each case, to the extent related to the foregoing items set forth in this clause (B).
(xi) Such other information (including non-financial information) as the Administrative Agent or any Lender may from time to time reasonably request. Information If any information which is required to be furnished to the Lenders under this Section 6.1 is required by law or regulation to be filed by the Borrower with a government body on an earlier date, then the information required hereunder shall, to the extent reasonably practicable under the circumstances, be furnished to the Lenders at such earlier date. Documents required to be delivered pursuant to these Sections 6.1.1this Section 6.1 (to the extent any such documents are included in materials otherwise filed with the Securities and Exchange Commission) may be delivered electronically and if so delivered, 6.1.2, and 6.1.7 shall be deemed to have been delivered on the date (i) on which the Borrower posts such documents, or provides notice to the Lenders that such information has been posted on the Securities and Exchange Commission website on the Internet at ▇▇▇.▇▇▇/▇▇▇▇▇/▇▇▇▇▇▇▇▇.▇▇▇, a link thereto on the Borrower’s IntraLinks site at ▇▇▇▇▇▇▇▇▇▇.▇▇▇ website on the Internet; or at another (ii) on which such documents are posted on the Borrower’s behalf on an Internet or intranet website, if any, to which each Lender and the Administrative Agent have access (whether a commercial, third-party website identified in such notice and accessible or whether sponsored by the Lenders without chargeAdministrative Agent); provided that (i) such notice may be included in a certificate delivered pursuant to Section 6.1.3 and such notice or certificate shall also be deemed to have been delivered upon being posted to the Borrower’s IntraLinks site or such other website and (ii) the Borrower shall deliver paper copies of such documents to the information Administrative Agent on behalf of any Lender that requests delivery of such paper copies until a written request to cease delivering paper copies is given by the Administrative Agent or such Lender. Except for the compliance certificates, the Administrative Agent shall have no obligation to request the delivery or to maintain copies of the documents referred to above, and in Sections 6.1.1any event shall have no responsibility to monitor compliance by the Borrower with any such request for delivery, 6.1.2 and 6.1.7 each Lender shall be solely responsible for requesting delivery to any Lender which requests it or maintaining its copies of such deliverydocuments.
Appears in 1 contract
Sources: Credit Agreement (Viad Corp)
Financial Reporting. The Borrower will maintain, for itself and each Subsidiary, a system of accounting established and administered in accordance with GAAPgenerally accepted accounting principles, and furnish to the Agent and the Lenders:
6.1.1 (i) Within ninety (90) 90 days after the close of each of its fiscal years, financial statements an unqualified (except for qualifications relating to changes in accounting principles or practices reflecting changes in generally accepted accounting principles and required or approved by the Borrower’s independent certified public accountants) audit report certified by independent certified public accountants reasonably acceptable to the Lenders, prepared in accordance with GAAP on a consolidated and consolidating (with respect to Material Domestic Subsidiaries only) basis (consolidating statements need not be certified by such accountants) for itself and its Material Domestic Subsidiaries, including balance sheets as of the end of such period, statements related profit and loss and reconciliation of income surplus statements, and statements a statement of cash flows, setting forth in comparative form figures for the preceding fiscal yearflows (on a consolidated basis only), accompanied by an audit report, consistent with the requirements of the Securities and Exchange Commission, of a nationally recognized firm of independent public accountants or other independent public accountants reasonably acceptable to the Required Lendersany management letter prepared by said accountants.
6.1.2 (ii) Within forty-five (45) 45 days after the close of the first three quarterly periods of each of its fiscal years, financial statements prepared in accordance with GAAP (other than with regard to for the absence of footnotes and subject to changes resulting from audit and normal year-end audit adjustments to same) on a consolidated basis for itself Borrower and its Material Domestic Subsidiaries, including, consolidated and consolidating unaudited balance sheets as at the close of each such period and consolidated unaudited and consolidating profit and loss and reconciliation of surplus statements of income and a statement of cash flows (on a consolidated basis only) for the period from the beginning of such fiscal year to the end of such quarter, in each case setting forth in comparative form figures for the corresponding period of the preceding fiscal year, and accompanied all certified by a certificate of the its chief financial officer or treasurer of the Borrower to the effect that such quarterly financial statements fairly present in all material respects the financial condition of the Borrower and its Subsidiaries and have been prepared in accordance with GAAP (other than with regard to the absence of footnotes and subject to changes resulting from audit and normal year-end audit adjustments to same)controller.
6.1.3 (iii) Together with the financial statements required under Sections 6.1.1 6.1(i) and 6.1.2(ii), (i) a compliance certificate in substantially the form of Exhibit B E signed by an Authorized Officer (a) its chief financial officer or its controller showing the calculations necessary to determine compliance with Section 6.16, (b) this Agreement and stating that no Default or Unmatured Default exists, or if any Default or Unmatured Default exists, stating the nature and status thereof and (c) updating Schedule 1 with respect to its Subsidiaries, Material Subsidiaries and Excluded Subsidiaries, if appropriate and (ii) such financial information as reasonable requested by the Agent, including, but not limited to consolidating financial statements, as is necessary to account for Excluded Indebtedness and Excluded EBITDA for purposes of determining the Consolidated Leverage Ratiothereof.
6.1.4 If requested, within (iv) Within 270 days after the close of each fiscal year of the Borroweryear, a copy statement of the actuarial report showing the Unfunded Liabilities of each Single Employer Plan as of the valuation date occurring in such fiscal yearPlan, certified as correct by an actuary enrolled under ERISA.
6.1.5 (v) As soon as possible and in any event within ten (10) 10 days after an Authorized Officer the Borrower knows that any Reportable Event has occurred with respect to any Plan that could reasonably be expected to have a Material Adverse EffectSingle Employer Plan, a statement, signed by an Authorized Officerthe chief financial officer or controller of the Borrower, describing said Reportable Event and the action which the Borrower proposes to take with respect thereto.
6.1.6 From time (vi) As soon as possible and in any event within 10 days after receipt by the Borrower, a copy of (a) any notice or claim to time such additional information regarding the financial position effect that the Borrower or business any of its Subsidiaries is or may be liable to any Person as a result of the Borrower and release by the Borrower, any of its Subsidiaries as the AgentSubsidiaries, at the request or any other Person of any Lendertoxic or hazardous waste or substance into the environment, may and (b) any notice alleging any violation of any federal, state or local environmental, health or safety law or regulation by the Borrower or any of its Subsidiaries, which, in either case, could reasonably request, including the support for any pro forma calculations hereunderbe expected to have a Material Adverse Effect.
6.1.7 Promptly, (vii) Promptly upon the filing thereof, copies electronic notice to the Administrative Agent of the filing of all proxy statements, registration statements (other than any registration statement on Form S-8 and any registration statement in connection with a dividend reinvestment plan, shareholder purchase plan or employee benefit plan) periodic and current reports on form forms 10-K, 10-Q or 10Q and 8-K (or their equivalents) which the Borrower or any of its Subsidiaries files with the Securities and Exchange Commission.
6.1.8 Promptly, (viii) Such other information regarding (including non-financial information) as the Administrative Agent or any change in the Borrower’s Debt RatingLender may from time to time reasonably request. Information If any information which is required to be delivered pursuant to these Sections 6.1.1, 6.1.2, and 6.1.7 shall be deemed to have been delivered on the date on which the Borrower provides notice furnished to the Lenders that such information has been posted on the Securities and Exchange Commission website on the Internet at ▇▇▇.▇▇▇/▇▇▇▇▇/▇▇▇▇▇▇▇▇.▇▇▇, on the Borrower’s IntraLinks site at ▇▇▇▇▇▇▇▇▇▇.▇▇▇ under this Section 6.1 is required by law or at another website identified in such notice and accessible regulation to be filed by the Lenders without charge; provided that (i) such notice may Borrower with a government body on an earlier date, then the information required hereunder shall be included in a certificate delivered pursuant to Section 6.1.3 and such notice or certificate shall also be deemed to have been delivered upon being posted furnished to the Borrower’s IntraLinks site or Lenders at such other website and (ii) the Borrower shall deliver paper copies of the information referred to in Sections 6.1.1, 6.1.2 and 6.1.7 to any Lender which requests such deliveryearlier date.
Appears in 1 contract
Financial Reporting. The Borrower will maintain, for itself and each Subsidiary, a system of accounting established and administered in accordance with GAAPgenerally accepted accounting principles, and the Borrower will furnish to the Agent and Lenders the Lendersfollowing:
6.1.1 Within ninety (90i) within 90 days after the close of Holdco’s fiscal year (in the case of the fiscal year ending on December 31, 2007) and the Borrower’s fiscal year in the case of each fiscal year ending on or after December 31, 2008, an audit report certified by Deloitte & Touche USA LLP or other independent certified public accountants of its fiscal yearsrecognized national standing (which in each case shall be without a “going concern” or like qualification or exception and without any qualification or exception as to the scope of such audit), financial statements prepared in accordance with GAAP on a consolidated and consolidating basis (consolidating statements need not be certified by such accountants) for itself Holdco and its SubsidiariesSubsidiaries (in the case of fiscal year 2007 only) and the Borrower and its Subsidiaries (in the case of each subsequent fiscal year), including balance sheets as of the end of such period, statements related profit and loss and reconciliation of income surplus statements, and statements a statement of cash flows, setting forth in comparative form figures for the preceding fiscal yearflows on a consolidated and consolidating basis, accompanied by an any final management letter prepared by said accountants to Holdco or the Borrower, as applicable; provided, however, that such audit reportreport with respect to Holdco’s fiscal year ending December 31, consistent with 2007 shall be furnished as soon as practicable, but in any event on or before the requirements date required pursuant to this clause for delivery of the Securities and Exchange Commissionaudited financial statements for the Borrower’s fiscal year ending December 31, of a nationally recognized firm of independent public accountants or other independent public accountants reasonably acceptable to the Required Lenders.2008;
6.1.2 Within forty-five (45ii) within 45 days after the close of the first three quarterly periods of each of its the Borrower’s fiscal years, financial statements prepared in accordance with GAAP (other than with regard to for the absence of footnotes and subject to changes resulting from audit and normal year-end audit adjustments to same) on a consolidated basis for itself Borrower and its Subsidiaries, including, consolidated and consolidating unaudited balance sheets as at the close of each such period period, consolidated and consolidated unaudited consolidating profit and loss and reconciliation of surplus statements of income and a consolidated and consolidating statement of cash flows for the period from the beginning of such fiscal year to the end of such quarter, and a balance sheet as at the close of such period and such profit and loss and reconciliation of surplus statements and statement of cash flows for the Borrower individually, certified by a Financial Officer of the Borrower as in each case setting forth in comparative form figures for the corresponding period of the preceding fiscal yearfairly presenting, and accompanied by a certificate of the chief financial officer or treasurer of the Borrower to the effect that such quarterly financial statements fairly present in all material respects respects, the consolidated financial condition of the Borrower and its consolidated Subsidiaries and have been prepared in accordance with GAAP (other than with regard to or the absence of footnotes and Borrower individually, as applicable) (subject to changes resulting from audit and normal year-end audit adjustments and the absence of footnotes) and having been prepared in reasonable detail;
(iii) so long as corresponding financial statements are required to same).be delivered under the Note Purchase Agreement or the Indenture, within 30 days after the end of each of the first two months of each fiscal quarter of the Borrower, a company-prepared consolidated balance sheet of the Borrower and its consolidated Subsidiaries as at the end of such period and related company-prepared statements of income in a form customarily prepared by management for the Borrower and its consolidated Subsidiaries for such monthly period, certified by a Financial Officer of the Borrower as fairly presenting, in all material respects, the consolidated financial condition of the Borrower and its consolidated Subsidiaries (subject to normal year-end adjustments and the absence of footnotes) and having been prepared in reasonable detail;
6.1.3 Together (iv) together with the financial statements required under Sections 6.1.1 6.1(i) and 6.1.2(ii), (i) a compliance certificate in substantially the form of Exhibit B E signed by an Authorized a Financial Officer (a) showing the calculations necessary to determine compliance with Section 6.16this Agreement (including Sections 6.19.1, (b6.19.2 and 6.20) and stating that no Default or Unmatured Default exists, or if any Default or Unmatured Default exists, stating the nature and status thereof thereof;
(v) within 60 days after the commencement of each fiscal year of the Borrower and its Subsidiaries (c) updating Schedule 1 commencing with respect to the fiscal year ending December 31, 2008), a budget of the Borrower and its Subsidiaries, Material Subsidiaries and Excluded Subsidiaries, if appropriate and (ii) for such financial information as reasonable requested fiscal year in the form approved by the Agent, including, but not limited to consolidating financial statements, as is necessary to account for Excluded Indebtedness and Excluded EBITDA for purposes board of determining directors of the Consolidated Leverage Ratio.Borrower;
6.1.4 If requested, (vi) within 270 days after the close of each fiscal year of the Borroweryear, a copy statement of the actuarial report showing the Unfunded Liabilities of each Single Employer Plan as of the valuation date occurring in such fiscal yearPlan, certified as correct by an actuary enrolled under ERISA.;
6.1.5 As soon as possible and in any event (vii) within ten (10) days 10 Business Days after an Authorized Officer the Borrower knows that any Reportable Event has occurred with respect to any Plan that could reasonably be expected to have a Material Adverse EffectSingle Employer Plan, a statement, signed by an Authorized Officer, a Financial Officer of the Borrower describing said Reportable Event and the action which the Borrower proposes to take with respect thereto.
6.1.6 From time to time such additional information regarding the financial position or business of the Borrower and its Subsidiaries as the Agent, at the request of any Lender, may reasonably request, including the support for any pro forma calculations hereunder.
6.1.7 Promptly, (viii) promptly upon the filing thereof, copies electronic notice to the Administrative Agent of the filing of all proxy statements, registration statements (other than any registration statement on Form S-8 and any registration statement in connection with a dividend reinvestment plan, shareholder purchase plan or employee benefit plan) periodic and current reports on form forms 10-K, 10-Q or 10Q and 8-K (or their equivalents) which the Borrower or any of its Subsidiaries files with the Securities SEC;
(ix) as soon as possible and Exchange Commission.in any event on the later of (i) 30 days following the occurrence of the following events or (ii) the first date required for delivery of the financial statements pursuant to Section 6.1(i) or (ii) after the occurrence of the following events, written notice of the creation, establishment or acquisition of any Subsidiary or the issuance by or to the Borrower or any of its Subsidiaries of any Capital Stock; and
6.1.8 Promptly, (x) such other information regarding (including non-financial information) as the Administrative Agent or any change in the Borrower’s Debt RatingLender may from time to time reasonably request. Information required to be delivered pursuant to these Sections 6.1.1, 6.1.2, and 6.1.7 this Section 6.1 shall be deemed to have been delivered if such information, or one or more annual or quarterly reports containing such information, shall have been posted by the Administrative Agent on an IntraLinks or similar site to which the Lenders have been granted access or such reports shall be available on the date on which website of the Borrower provides notice to the Lenders that such information has been posted on the Securities and Exchange Commission website on the Internet SEC at ▇▇▇▇://▇▇▇.▇▇▇/.▇▇▇ or on the website of Holdco at ▇▇▇▇▇/▇▇▇▇▇://▇▇▇.▇▇▇, on the Borrower’s IntraLinks site at ▇▇▇▇▇▇▇▇▇▇.▇▇▇ or at another website identified in and the Borrower has given notice that such notice and accessible by the Lenders without charge; provided that (i) such notice may reports are so available. Information required to be included in a certificate delivered pursuant to this Section 6.1.3 and such notice or certificate shall may also be deemed delivered by electronic communications pursuant to have been delivered upon being posted procedures approved by the Administrative Agent. If any information which is required to be furnished to the Borrower’s IntraLinks site Lenders under this Section 6.1 is required by law or such other website and (ii) regulation to be filed by Holdco or the Borrower shall deliver paper copies of with a government body on an earlier date (other than the December 31, 2007 financial statements and any filings required by the SEC for the fiscal year then ended), then the information referred required hereunder shall be furnished to in Sections 6.1.1, 6.1.2 and 6.1.7 to any Lender which requests the Lenders at such deliveryearlier date.
Appears in 1 contract
Financial Reporting. The Borrower will maintainBNY Mellon shall provide the following financial reporting services for each Fund: Prepare, for itself Review and each Subsidiary, a system of accounting established File Quarterly Reports on Form 10-Q and administered Annual Reports on Form 10-K in accordance with GAAPU.S. GAAP and with deference to Sponsor preferences in a timely fashion • Statements of Financial Condition • Schedules of Investments • Statements of Operations • Statements of Changes in Shareholders’ Equity • Statements of Cash Flows • Notes to Financial Statements • Trust Combined Statements Review/Prepare other financial data included in the 10-Qs and 10-Ks. Prepare Quarterly Reports on Form 10-Q for the Fund for each of the first three fiscal quarters of the Funds, and furnish Annual Report on Form 10-K for the Funds fiscal year, or as requested by the sponsor. The preparation of each Form 10-Q and 10-K includes facilitating delivery of the filing to the Agent printer, coordination of all printer and author edits, the review of printer drafts and the Lenders:
6.1.1 Within ninety review of final printer invoices. Upon review and approval of each form 10-K and 10-Q by the Sponsor’s Principal Financial Officer (90or such person performing such functions), the Administrator shall edgarize and file, or cause to be edgarized and filed, such reports (including the XBRL versions) with the SEC, CFTC and/or NFA, as required, including any applicable executive officer certifications or other exhibits to such reports. The Administrator shall also coordinate with the printer an XBRL file and web-ready 10-K file that can be uploaded to the Sponsor’s Website. BNY Mellon shall provide the following fund administration services for each Fund: Coordinate with Auditors the review of the quarterly report in the 10-Q and the audit of the annual report in the 10-K, including weekly meetings, open item list, etc. Prepare Monthly Account Statements in conformity with CFTC Regulations within 20 days after month end. Prepare quarterly CPO-PQR reporting within a mutually agreed upon timeframe following the close of each of its quarter end. Prepare Annual Report that is filed electronically with NFA (PFS) within a mutually agreed upon timeframe following the Funds fiscal years, financial statements prepared year end. Prepare Liquidation Statements in accordance with GAAP on NFA regulations in a consolidated basis for itself timely manner. Prepare and its Subsidiaries, including balance sheets as coordinate the Annual Shareholder Mailing within 90 days of the end of such period, statements of income and statements of cash flows, setting forth Funds’ fiscal year subject to final review by Sponsor in comparative form figures for the preceding fiscal year, accompanied by an audit report, consistent compliance with the requirements of CFTC Rule 4.22(c). BNY Mellon, in consultation with the Securities and Exchange CommissionFunds Sponsor, shall facilitate delivery of a nationally recognized firm of independent public accountants or other independent public accountants reasonably acceptable the filing to the Required Lenders.
6.1.2 Within forty-five (45) days after printer. Such preparation includes the close coordination of all printer and author edits, the first three review of printer drafts and review of final printer invoices. Prepare Seed Financial Statements as needed. Determine monthly management fees payable and prepare authorizations for disbursements. Prepare a quarterly periods of each of its fiscal years, financial statements prepared in accordance with GAAP (other than with regard to the absence of footnotes and subject to changes resulting from audit and normal year-end audit adjustments to same) on a consolidated basis for itself and its Subsidiaries, including, consolidated unaudited balance sheets as at the close of each such period and consolidated unaudited statements of income and a statement of cash flows for the period from the beginning of such fiscal year to the end of such quarter, in each case setting forth in comparative form figures for the corresponding period of the preceding fiscal year, and accompanied by a certificate of the chief financial officer or treasurer of the Borrower to the effect report listing any known material errors/compliance violations that such quarterly financial statements fairly present in all material respects the financial condition of the Borrower and its Subsidiaries and have been prepared in accordance with GAAP (other than with regard to the absence of footnotes and subject to changes resulting from audit and normal year-end audit adjustments to same).
6.1.3 Together with the financial statements required under Sections 6.1.1 and 6.1.2, (i) a compliance certificate in substantially the form of Exhibit B signed by an Authorized Officer (a) showing the calculations necessary to determine compliance with Section 6.16, (b) stating that no Default or Unmatured Default exists, or if any Default or Unmatured Default exists, stating the nature and status thereof and (c) updating Schedule 1 with respect to its Subsidiaries, Material Subsidiaries and Excluded Subsidiaries, if appropriate and (ii) such financial information as reasonable requested by the Agent, including, but not limited to consolidating financial statements, as is necessary to account for Excluded Indebtedness and Excluded EBITDA for purposes of determining the Consolidated Leverage Ratio.
6.1.4 If requested, within 270 days after the close of each fiscal year of the Borrower, a copy of the actuarial report showing the Unfunded Liabilities of each Single Employer Plan as of the valuation date occurring in such fiscal year, certified by an actuary enrolled under ERISA.
6.1.5 As soon as possible and in any event within ten (10) days after an Authorized Officer knows that any Reportable Event has occurred with respect to any Plan that could reasonably be expected BNY Mellon’s procedures. Provide assets and/or calculations of license fees to have a Material Adverse Effectlicense providers. Prepare, a statement, signed by an Authorized Officer, describing said Reportable Event update and the action which the Borrower proposes to take maintain regulatory calendars with respect thereto.
6.1.6 From time to time such additional information regarding services provided by BNY Mellon. Maintain books and records, compliance materials and other Fund Documents prepared by BNY Mellon. As requested by the financial position or business of Sponsor, assist with requests for information/documentation from the Borrower and its Subsidiaries as the AgentSEC, at the request of any LenderCFTC, may reasonably requestNFA, including the support for any pro forma calculations hereunder.
6.1.7 Promptly, upon the filing thereof, copies of all registration statements (other than any registration statement on Form S-8 and any registration statement in connection with a dividend reinvestment plan, shareholder purchase plan or employee benefit plan) and reports on form 10-K, 10-Q or 8-K (or their equivalents) which the Borrower or any of its Subsidiaries files with the Securities and Exchange Commission.
6.1.8 Promptly, information regarding any change in the Borrower’s Debt Rating. Information required to be delivered pursuant to these Sections 6.1.1, 6.1.2applicable exchanges, and 6.1.7 shall be deemed to have been delivered on the date on which the Borrower provides notice other regulatory authorities to the Lenders that extent BNY Mellon is in possession of such information has been posted on information. Provide the Securities and Exchange Commission website on the Internet at ▇▇▇.▇▇▇/▇▇▇▇▇/Sponsor sub-certifications relating to ▇▇▇▇▇▇▇▇.▇▇▇, on the Borrower’s IntraLinks site at -▇▇▇▇▇▇▇▇▇▇.▇▇▇ or at another website identified attestation for Form 10-K, and Form 10-Q filings. Assist in such notice responses for inquiries from the SEC and accessible other regulatory authorities required. Establish expense accruals, maintain expense files and coordinate payment of invoices. Monitor Expense reductions related to Offering costs. Prepare fund budgets and recommendations for adjustments as necessary. Prepare Monthly Fund expense pro-formas. Prepare Stock split info as needed. Provide financial data for S-1/S-3 and other regulatory filings. Prepare statistical reports for information services. Calculate and maintain standard SEC yield and total return information. Prepare performance data every other month within ten days of month-end for inclusion in S-1/S-3 and as requested by Sponsor. Obtain Tax ID numbers, CUSIP numbers, ISIN numbers, and NSCC CUSIPs/Symbols. Coordinate and facilitate DCP meetings, including preparing agendas and providing minutes. Establish control accounts for the new funds. IRS CIRCULAR 230 DISCLOSURE: To ensure compliance with requirements imposed by the Lenders without charge; provided Internal Revenue Service, BNY Mellon informs the Fund that any U.S. tax advice contained in any communication from BNY Mellon to the Fund (including any future communications) is not intended or written to be used, and cannot be used, for the purpose of (i) such notice may be included in a certificate delivered pursuant to Section 6.1.3 and such notice avoiding penalties under the Internal Revenue Code or certificate shall also be deemed to have been delivered upon being posted to the Borrower’s IntraLinks site or such other website and (ii) the Borrower shall deliver paper copies of the information referred promoting, marketing or recommending to in Sections 6.1.1, 6.1.2 and 6.1.7 to another party any Lender which requests such deliverytransaction or matter addressed herein or therein.
Appears in 1 contract
Sources: Administration and Accounting Agreement (ProShares Trust II)
Financial Reporting. The Borrower will maintain, for itself and each Subsidiaryof the Subsidiaries, a system of accounting established and administered in accordance with GAAP, and furnish to the Administrative Agent and the Lenders, in each case in form and scope reasonably acceptable to the Administrative Agent and the Initial Lenders:
6.1.1 (a) Within ninety (90) 75 days after the close of each Fiscal Year, an unqualified (except for qualifications relating to changes in accounting principles or practices reflecting changes in GAAP) audit report, with no going concern modifier, certified by the Borrower’s current independent certified public accountants or other independent certified public accountants of its fiscal yearsnational reputation and standing reasonably acceptable to the Lenders, financial statements prepared in accordance with GAAP on a consolidated basis for itself the Borrower and its Subsidiaries, including a balance sheets sheet as of the end of such period, period and related statements of income operations, stockholders’ investment, and statements of cash flows, setting forth in comparative form figures for the preceding fiscal year, accompanied by an audit reportany management letter, consistent with if issued, prepared by said accountants (provided that if such management letter is not available at such time, the requirements of the Securities and Exchange Commission, of a nationally recognized firm of independent public accountants or other independent public accountants reasonably acceptable to the Required Lenders.Borrower shall deliver it promptly following receipt thereof). 72
6.1.2 (b) Within forty-five (45) 45 days after the close of the first three quarterly (3) Fiscal Quarter periods of after each of its fiscal yearsFiscal Years, financial statements prepared in accordance with GAAP (other than with regard to for the absence of footnotes and subject to changes resulting from audit and normal year-end audit adjustments to same) on a consolidated basis for itself Borrower and its Subsidiaries, including, consolidated unaudited balance sheets as at the close of each such period and consolidated unaudited statements of income profit and loss and a statement of cash flows for the period from the beginning of such fiscal year Fiscal Year to the end of such quarter, in each case setting forth in comparative form figures for all certified by the corresponding period of the preceding fiscal yearBorrower’s chief financial officer, and accompanied by a certificate of which certification may be done through the chief financial officer or treasurer officer’s certifications made to the U.S. Securities and Exchange Commission to the extent that such financial statements have been filed with the U.S. Securities and Exchange Commission.
(c) As soon as available, but in any event within 45 days after the first day of each Fiscal Year of the Borrower to Borrower, a copy of the effect that such quarterly financial statements fairly present in all material respects the financial condition plan and forecast (including a projected consolidated balance sheet, income statement, Capital Expenditures budget and cash flow statement) of the Borrower and its the Subsidiaries and have been prepared in accordance with GAAP (other than with regard to the absence of footnotes and subject to changes resulting from audit and normal year-end audit adjustments to same)for such Fiscal Year.
6.1.3 Together (d) Commencing with the first period that financial statements are required under Section 6.1(a) and thereafter when financial statements are required under Sections 6.1.1 6.1(a) and 6.1.26.1(b), (i) a compliance certificate in substantially the form of Exhibit B A signed by an Authorized Officer (a) the chief financial officer of the Borrower showing the calculations necessary to determine compliance with Section 6.16, (b) this Agreement and stating that no Default or Unmatured Event of Default exists, or if any Default or Unmatured Event of Default exists, stating the nature and status thereof and (c) updating Schedule 1 with respect to its Subsidiaries, Material Subsidiaries and Excluded Subsidiaries, if appropriate and (ii) such financial information as reasonable requested by the Agent, including, but not limited to consolidating financial statements, as is necessary to account for Excluded Indebtedness and Excluded EBITDA for purposes of determining the Consolidated Leverage Ratiothereof.
6.1.4 If requested, within 270 days after (e) Promptly upon the close of each fiscal year furnishing thereof to the shareholders of the Borrower, a copy copies of the actuarial report showing the Unfunded Liabilities of each Single Employer Plan as of the valuation date occurring in such fiscal yearall financial statements, certified by an actuary enrolled under ERISA.
6.1.5 As soon as possible reports and in any event within ten (10) days after an Authorized Officer knows proxy statements so furnished that any Reportable Event has occurred with respect to any Plan that could reasonably be expected to have a Material Adverse Effect, a statement, signed by an Authorized Officer, describing said Reportable Event and the action which the Borrower proposes to take with respect thereto.
6.1.6 From time to time such additional information regarding the financial position or business of the Borrower and its Subsidiaries as the Agent, at the request of any Lender, may reasonably request, including the support for any pro forma calculations are not otherwise provided hereunder.
6.1.7 Promptly, (f) Promptly upon the filing thereof, copies of all registration statements (and annual, quarterly, monthly or other than any registration statement on Form S-8 and any registration statement in connection with a dividend reinvestment plan, shareholder purchase plan or employee benefit plan) and regular reports on form 10-K, 10-Q or 8-K (or their equivalents) which the Borrower or any of its Subsidiaries files with the U.S. Securities and Exchange Commission.
6.1.8 Promptly(g) On or promptly after any time at which the Borrower or any Subsidiary becomes subject to the Beneficial Ownership Regulation, a completed Beneficial Ownership Certification in form and substance acceptable to the Administrative Agent.
(h) Such other information regarding (including non-financial information) as the Administrative Agent or any change in the Borrower’s Debt RatingLender may from time to time reasonably request. Information Any financial statement or other information required to be delivered furnished pursuant to these Sections 6.1.1Section 6.1(a), 6.1.2Section 6.1(b), Section 6.1(e) and 6.1.7 Section 6.1(f) shall be deemed to have been delivered furnished on the date on which the Lenders receive notice that the Borrower provides notice to has filed such financial statement or other information with the Lenders that such information has been posted on the U.S. Securities and Exchange Commission and is available on the ▇▇▇▇▇ website on the Internet at ▇▇▇.▇▇▇/▇▇▇▇▇/▇▇▇▇▇▇▇▇.▇▇▇, on the Borrower’s IntraLinks site at ▇▇▇▇▇▇▇▇▇▇.▇▇▇ or at another any successor government website identified in such notice that is freely and accessible by readily available to the Administrative Agent and the Lenders without charge; provided that (i) such the Borrower shall give notice may be included in of any filing of a certificate delivered pursuant to Section 6.1.3 and such notice or certificate shall also be deemed to have been delivered upon being posted registration statement to the Borrower’s IntraLinks site Administrative Agent (who shall then give notice of any such filing to the Lenders) and Borrower shall give notice to the Administrative Agent if it shall fail to make any timely filing of any regular report or proxy statement with the U.S. Securities and Exchange Commission (who shall then give notice of any such other website and (ii) late filing to the Lenders). Notwithstanding the foregoing, the Borrower shall deliver paper or electronic copies of any such financial statement to the Administrative Agent if the Administrative Agent or an Initial Lender requests the Borrower to furnish such paper or electronic copies until written notice to cease delivering such paper or electronic copies is given by the Administrative Agent or such Initial Lender. If any information that is required to be furnished to the Lenders under this Section is required by law or regulation to be filed by the Borrower with a government body on an earlier date, then the information referred required hereunder shall be furnished to in Sections 6.1.1, 6.1.2 and 6.1.7 to any Lender which requests the Lenders at such deliveryearlier date.
Appears in 1 contract
Financial Reporting. The Borrower Visa Inc. will maintain, for itself and each Subsidiary, a system of accounting established and administered in accordance with GAAP, and furnish or cause to be furnished to the Administrative Agent and (for distribution to the Lenders:):
6.1.1 Within ninety (90a) within 50 days after the close end of each of its the first three quarters of each fiscal yearsyear of Visa Inc., financial statements prepared in accordance with GAAP on a consolidated basis for itself balance sheet of Visa Inc. and its Subsidiaries, including balance sheets Subsidiaries as of the end of such period, quarter and consolidated statements of income and statements of cash flows, setting forth in comparative form figures for the preceding fiscal year, accompanied by an audit report, consistent with the requirements of the Securities and Exchange Commission, of a nationally recognized firm of independent public accountants or other independent public accountants reasonably acceptable to the Required Lenders.
6.1.2 Within forty-five (45) days after the close of the first three quarterly periods of each of its fiscal years, financial statements prepared in accordance with GAAP (other than with regard to the absence of footnotes and subject to changes resulting from audit and normal year-end audit adjustments to same) on a consolidated basis for itself and its Subsidiaries, including, consolidated unaudited balance sheets as at the close of each such period and consolidated unaudited statements of income and a statement of cash flows of Visa Inc. and its Subsidiaries for the period from commencing at the beginning end of such the previous fiscal year to and ending with the end of such quarter, all in each case setting forth in comparative form figures for the corresponding period reasonable detail and duly certified (subject to year-end audit adjustments and absence of the preceding fiscal year, and accompanied footnotes) by a certificate of the chief financial officer or treasurer of the Borrower to the effect that such quarterly financial statements fairly present in all material respects the financial condition of the Borrower and its Subsidiaries and have an Authorized Officer as having been prepared in accordance with GAAP (other than with regard to the absence of footnotes and subject to changes resulting from audit and normal year-end audit adjustments to same).GAAP;
6.1.3 Together with the financial statements required under Sections 6.1.1 and 6.1.2, (i) a compliance certificate in substantially the form of Exhibit B signed by an Authorized Officer (a) showing the calculations necessary to determine compliance with Section 6.16, (b) stating that no Default or Unmatured Default exists, or if any Default or Unmatured Default exists, stating the nature and status thereof and (c) updating Schedule 1 with respect to its Subsidiaries, Material Subsidiaries and Excluded Subsidiaries, if appropriate and (ii) such financial information as reasonable requested by the Agent, including, but not limited to consolidating financial statements, as is necessary to account for Excluded Indebtedness and Excluded EBITDA for purposes of determining the Consolidated Leverage Ratio.
6.1.4 If requested, within 270 90 days after the close end of each fiscal year of the BorrowerVisa Inc., a copy of the actuarial annual audit report showing the Unfunded Liabilities for such year for Visa Inc. and its Subsidiaries (and, if its fiscal year-end financial statements are then being audited, of each Single Employer Plan of Visa International, Visa U.S.A., VEL and their respective Subsidiaries), containing a consolidated balance sheet of such Borrower and its Subsidiaries as of the valuation date occurring in end of such fiscal yearyear and consolidated statements of income and of cash flows of such Borrower and its Subsidiaries for such fiscal year reported on without a “going concern” or like qualification or exception, or qualification arising out of the scope of the audit, by KPMG LLP or other independent certified by an actuary enrolled public accountants of nationally recognized standing in accordance with generally accepted auditing standards;
(c) promptly after the same are available, copies of each annual report, proxy or financial statement or other report or communication sent to the holders of the equity interests of Visa Inc. and copies of all annual, regular, periodic and special reports and registration statements which Visa Inc. files with the Securities and Exchange Commission under ERISA.Section 13 or 15(d) of the Securities Exchange Act of 1934 and not otherwise required to be delivered to the Lenders pursuant hereto;
6.1.5 As soon as possible (d) promptly and in any event within ten (10) days 10 Business Days after any Borrower or any ERISA Affiliate knows or has reason to know that any ERISA Event has occurred, a statement of an Authorized Officer knows of such Borrower describing such ERISA Event;
(e) promptly after any Borrower receives notice thereof, notice of all actions, suits and proceedings before any Governmental Authority affecting such Borrower or any of its Subsidiaries that any Reportable Event has occurred with respect to any Plan that could would reasonably be expected to have a Material Adverse Effect;
(f) promptly after any change in, a statementor withdrawal of, signed Visa Inc.’s ▇▇▇▇▇’▇ Rating or S&P Rating, written notice of such change or withdrawal;
(g) promptly after the occurrence thereof, written notice of any material change in accounting policies or financial reporting practices by an Authorized OfficerVisa Inc. or any of its Subsidiaries (except as required by GAAP, describing said Reportable Event and the action which the Borrower proposes to take with respect thereto.
6.1.6 From time to time such additional information regarding material changes will be described in the financial position statements reflecting such material changes); and
(h) such other information respecting the condition or business of the Borrower and its Subsidiaries as the Agentoperations, at the request financial or otherwise, of any Lender, may reasonably request, including the support for any pro forma calculations hereunder.
6.1.7 Promptly, upon the filing thereof, copies of all registration statements (other than any registration statement on Form S-8 and any registration statement in connection with a dividend reinvestment plan, shareholder purchase plan or employee benefit plan) and reports on form 10-K, 10-Q or 8-K (or their equivalents) which the Borrower or any of its Subsidiaries files as any Lender through the Administrative Agent may from time to time reasonably request. Documents required to be delivered pursuant to Section 6.1(a), 6.1(b) or 6.1(c) (to the extent any such documents are included in materials otherwise filed with the Securities and Exchange Commission.
6.1.8 Promptly, information regarding any change in the Borrower’s Debt Rating. Information required to ) may be delivered pursuant to these Sections 6.1.1electronically and if so delivered, 6.1.2, and 6.1.7 shall be deemed to have been delivered on the date (i) on which Visa Inc. (or its representative or designee) notifies the Borrower Administrative Agent (by electronic mail or otherwise) of the filing of the document with the Securities and Exchange Commission, (ii) on which Visa Inc. posts such documents, or provides notice to a link thereto, on Visa Inc.’s website on the Lenders that Internet or (iii) on which such information has been documents are posted on Visa Inc.’s behalf on an Internet or intranet website, if any, to which each Lender and the Administrative Agent have access (whether a commercial, third-party website or whether sponsored by the Administrative Agent); provided that (x) paper copies of documents to be delivered pursuant to Section 6.1(a) or 6.1(b) shall be delivered to any Lender that requests the delivery of such paper copies until a written request to cease delivering paper copies is given by such Lender and (y) Visa Inc. shall notify the Administrative Agent (by telecopier or electronic mail) of the posting of any such documents or the filing of documents with the Securities and Exchange Commission website on and shall provide to the Internet at ▇▇▇.▇▇▇/▇▇▇▇▇/▇▇▇▇▇▇▇▇.▇▇▇Administrative Agent by electronic mail electronic versions or links to electronic versions (i.e., on the Borrower’s IntraLinks site at ▇▇▇▇▇▇▇▇▇▇.▇▇▇ or at another website identified in soft copies) of such notice and accessible by the Lenders without charge; provided documents. Each Borrower hereby acknowledges that (i) such notice the Administrative Agent and/or the Arrangers will make available to the Lenders materials and/or information provided by or on behalf of the any Borrower hereunder (collectively, “Borrower Materials”) by posting the Borrower Materials on IntraLinks, Syndtrak, ClearPar or a substantially similar electronic transmission system (the “Platform”) and (ii) certain of the Lenders (each, a “Public Lender”) may have personnel who do not wish to receive material non-public information with respect to the Borrowers or their Affiliates, or the respective securities of any of the foregoing, and who may be included engaged in investment and other market-related activities with respect to such Persons’ securities. Each Borrower hereby agrees that (w) all Borrower Materials that are to be made available to Public Lenders shall be clearly and conspicuously marked “PUBLIC” which, at a certificate delivered pursuant minimum, shall mean that the word “PUBLIC” shall appear prominently on the first page thereof (it being understood that documents filed with the Securities and Exchange Commission shall be deemed to Section 6.1.3 be “PUBLIC” and shall not be required to be so marked); (x) by marking Borrower Materials “PUBLIC,” such notice or certificate Borrower shall also be deemed to have been delivered upon being posted authorized the Administrative Agent, the Arrangers and the Lenders to treat such Borrower Materials as either publicly available information or not material information (although it may be sensitive and proprietary) with respect to such Borrower or its securities for purposes of United States Federal and state securities Laws; (y) all Borrower Materials marked “PUBLIC” are permitted to be made available through a portion of the Borrower’s IntraLinks site or such other website Platform designated “Public Investor;” and (iiz) the Administrative Agent and the Arrangers shall be entitled to treat any Borrower shall deliver paper copies Materials that are not marked “PUBLIC” as being suitable only for posting on a portion of the information referred to in Sections 6.1.1, 6.1.2 and 6.1.7 to any Lender which requests such deliveryPlatform not designated “Public Investor.”
Appears in 1 contract
Financial Reporting. The Borrower will maintain, for itself and each Subsidiary, a system of accounting established and administered in accordance with GAAP, and furnish to the Agent and the Lenders:
6.1.1 Within ninety (90i) As soon as available, but in any event not later than 45 days after the close of each of its fiscal yearsquarter, financial statements prepared in accordance with GAAP on a consolidated basis for itself the Borrower and its Subsidiaries, including a copy of Borrower’s Financial Statements in the form filed under 10-Q which shall include an unaudited consolidated balance sheets sheet as of the end of such period, statements of income and statements of cash flows, setting forth in comparative form figures for the preceding fiscal year, accompanied by an audit report, consistent with the requirements of the Securities and Exchange Commission, of a nationally recognized firm of independent public accountants or other independent public accountants reasonably acceptable to the Required Lenders.
6.1.2 Within forty-five (45) days after the close of the first three quarterly periods of each of its fiscal years, financial statements prepared in accordance with GAAP (other than with regard to the absence of footnotes and subject to changes resulting from audit and normal year-end audit adjustments to same) on a consolidated basis for itself and its Subsidiaries, including, consolidated unaudited balance sheets as at the close of each such period and the related unaudited consolidated unaudited statements of income and a statement retained earnings and of cash flows for the period from the beginning of such fiscal year to the end of such quarter, in each case setting forth in comparative form figures for the corresponding period of the preceding fiscal year, and accompanied by a certificate of the chief financial officer or treasurer of the Borrower to the effect that such quarterly financial statements fairly present in all material respects the financial condition of the Borrower and its Subsidiaries for such period and have been prepared the portion of the fiscal year through the end of such period, setting forth in accordance with GAAP each case in comparative form the figures for the previous year, all certified by the Borrower’s chief financial officer or chief accounting officer;
(ii) As soon as available, but in any event not later than 45 days after the close of each fiscal quarter, for the Borrower and its Subsidiaries, a copy of the Borrower’s Quarterly Financial Supplement and other than with regard schedules as may be required containing the following reports in form and substance reasonably satisfactory to the absence Lenders, all certified by the entity’s chief financial officer or chief accounting officer: a statement of footnotes Funds From Operations, a statement detailing Consolidated Outstanding Indebtedness, Consolidated Secured Indebtedness, Consolidated Unsecured Indebtedness, Consolidated Cash Flow and subject an Asset Schedule listing all assets and their net operating income with a breakdown between Unencumbered Assets and other assets, and newly acquired Projects, Borrower will provide such other information as may be reasonably requested;
(iii) As soon as available, but in any event not later than 90 days after the close of each fiscal year, for the Borrower and its Subsidiaries, audited financial statements in the form filed as 10-K, including a consolidated balance sheet as at the end of such year and the related consolidated statements of income and retained earnings and of cash flows for such year, setting forth in each case in comparative form the figures for the previous year, without a “going concern” or like qualification or exception, or qualification arising out of the scope of the audit, prepared by PricewaterhouseCoopers (or other independent certified public accountants of nationally recognized standing reasonably acceptable to changes resulting from audit and normal year-end audit adjustments to sameAdministrative Agent).;
6.1.3 (iv) Together with the quarterly and annual financial statements required under Sections 6.1.1 and 6.1.2hereunder, (i) a compliance certificate in substantially the form of Exhibit B C hereto signed by an Authorized Officer (a) the Borrower’s chief financial officer or chief accounting officer showing the calculations and computations necessary to determine compliance with Section 6.16this Agreement and stating that, (b) stating that to such officer’s knowledge, no Default or Unmatured Default exists, or if if, to such officer’s knowledge, any Default or Unmatured Default exists, stating the nature and status thereof and thereof;
(cv) updating Schedule 1 with respect to its Subsidiaries, Material Subsidiaries and Excluded Subsidiaries, if appropriate and (ii) such financial information as reasonable requested by the Agent, including, but not limited to consolidating financial statements, as is necessary to account for Excluded Indebtedness and Excluded EBITDA for purposes of determining the Consolidated Leverage Ratio.
6.1.4 If requested, within 270 days after the close of each fiscal year of the Borrower, a copy of the actuarial report showing the Unfunded Liabilities of each Single Employer Plan as of the valuation date occurring in such fiscal year, certified by an actuary enrolled under ERISA.
6.1.5 As soon as possible and in any event within ten (10) 10 days after an Authorized Officer a responsible officer of the Borrower knows that any Reportable Event has occurred with respect to any Plan that could reasonably be expected to have a Material Adverse EffectPlan, a statement, signed by an Authorized Officerthe chief financial officer of the Borrower, describing said Reportable Event and the action which the Borrower proposes to take with respect thereto.;
6.1.6 From time to time such additional information regarding the financial position or business (vi) As soon as possible and in any event within 10 days after receipt by a responsible officer of the Borrower, a copy of (a) any notice or claim to the effect that the Borrower and or any of its Subsidiaries is or may be liable to any Person as a result of the Agentrelease by the Borrower, at the request any of its Subsidiaries, or any other Person of any Lendertoxic or hazardous waste or substance into the environment, may reasonably requestand (b) any notice alleging any violation of any federal, including state or local environmental, health or safety law or regulation by the support for Borrower or any pro forma calculations hereunder.of its Subsidiaries, which, in either case, could have a Material Adverse Effect;
6.1.7 Promptly(vii) Promptly upon the furnishing thereof to the shareholders of the Borrower, copies of all financial statements, reports and proxy statements so furnished;
(viii) Promptly upon the filing thereof, copies of all registration statements (and annual, quarterly, monthly or other than any registration statement on Form S-8 reports and any registration statement in connection with a dividend reinvestment plan, shareholder purchase plan or employee benefit plan) and reports on form 10-K, 10-Q or 8-K (or their equivalents) other public information which the Borrower or any of its Subsidiaries files with the Securities and Exchange Commission.; and
6.1.8 Promptly(ix) Such other information (including, information regarding any change in the Borrower’s Debt Rating. Information required to be delivered pursuant to these Sections 6.1.1without limitation, 6.1.2, and 6.1.7 shall be deemed to have been delivered on the date on which financial statements for the Borrower provides notice to and non-financial information) as the Lenders that such information has been posted on the Securities and Exchange Commission website on the Internet at ▇▇▇.▇▇▇/▇▇▇▇▇/▇▇▇▇▇▇▇▇.▇▇▇, on the Borrower’s IntraLinks site at ▇▇▇▇▇▇▇▇▇▇.▇▇▇ Administrative Agent or at another website identified in such notice and accessible by the Lenders without charge; provided that (i) such notice may be included in a certificate delivered pursuant to Section 6.1.3 and such notice or certificate shall also be deemed to have been delivered upon being posted to the Borrower’s IntraLinks site or such other website and (ii) the Borrower shall deliver paper copies of the information referred to in Sections 6.1.1, 6.1.2 and 6.1.7 to any Lender which requests such deliverymay from time to time reasonably request.
Appears in 1 contract
Sources: Credit Agreement (Developers Diversified Realty Corp)
Financial Reporting. The Borrower will maintain, for itself and each Subsidiary, a system of accounting established and administered in accordance with GAAPthe Agreement Accounting Principles, and furnish to the Administrative Agent and in sufficient copies for each of the Lenders:: 42
6.1.1 (i) Within ninety one hundred twenty (90120) days after the close of each of its fiscal yearsyears (or, financial statements if earlier, within thirty (30) days after the Borrower is required to file its Annual Report on Form 10-K with the Securities and Exchange Commission for such fiscal year), an unqualified (except for qualifications relating to changes in Agreement Accounting Principles or practices reflecting changes in Agreement Accounting Principles and required or approved by the Borrower’s independent certified public accountants) audit report certified by independent certified public accountants reasonably acceptable to the Lenders, prepared in accordance with GAAP the Agreement Accounting Principles on a consolidated and consolidating basis (consolidating statements need not be certified by such accountants) for itself and its Subsidiaries, including balance sheets as of the end of such period, statements related profit and loss and reconciliation of income surplus statements, and statements a statement of cash flows, setting forth in comparative form figures for . Delivery by the preceding fiscal year, accompanied by an audit report, consistent Borrower to the Administrative Agent of copies of the Borrower’s Annual Report on Form 10-K filed with the requirements of the Securities and Exchange Commission, of a nationally recognized firm of independent public accountants or other independent public accountants reasonably acceptable Commission for any year shall satisfy the Borrower’s obligation under this clause (i) with respect to the Required Lenderssuch year.
6.1.2 (ii) Within forty-five sixty (4560) days after the close of the first three quarterly period of each of its fiscal years (or, if earlier, within fifteen (15) days after the Borrower is required to file its Quarterly Report on Form 10-Q for with the Securities and Exchange Commission for such period), consolidated and consolidating unaudited balance sheets as at the close of each the first three quarterly periods of each of its fiscal years, financial statements prepared in accordance with GAAP (other than with regard to the absence of footnotes and subject to changes resulting from audit and normal year-end audit adjustments to same) on a consolidated basis for itself and its Subsidiaries, including, consolidated unaudited balance sheets as at the close of each such period Subsidiaries and consolidated unaudited and consolidating profit and loss and reconciliation of surplus statements of income and a statement of cash flows for the period from the beginning of such fiscal year to the end of such quarter, in each case setting forth in comparative form figures for the corresponding period of the preceding fiscal year, and accompanied all certified by a certificate of the chief financial officer or treasurer of an Authorized Officer. Delivery by the Borrower to the effect that such quarterly financial statements fairly present in all material respects the financial condition Administrative Agent of copies of the Borrower Borrower’s Quarterly Report on Form 10-Q filed with the Securities and its Subsidiaries and have been prepared in accordance Exchange Commission for any quarter shall satisfy the Borrower’s obligation under the clause (ii) with GAAP (other than with regard respect to the absence of footnotes and subject to changes resulting from audit and normal year-end audit adjustments to same)such quarter.
6.1.3 (iii) Together with the financial statements required under Sections 6.1.1 0 and 6.1.2(ii), (iA) a compliance certificate in substantially the form of Exhibit B signed by an Authorized Officer (a) showing the calculations necessary to determine compliance with Section 6.16, (b) this Agreement and stating that no Default or Unmatured Default exists, or if any Default or Unmatured Default exists, stating the nature and status thereof and (cB) updating Schedule 1 with respect to its Subsidiaries, Material Subsidiaries and Excluded Subsidiaries, if appropriate and (ii) a calculation of the Indebtedness secured by Liens permitted under Section 0 in such financial information as reasonable requested by the Agent, including, but not limited to consolidating financial statements, form as is necessary reasonably satisfactory to account for Excluded Indebtedness and Excluded EBITDA for purposes of determining the Consolidated Leverage RatioAdministrative Agent.
6.1.4 If requested, within 270 days after the close of each fiscal year of the Borrower, a copy of the actuarial report showing the Unfunded Liabilities of each Single Employer Plan as of the valuation date occurring in such fiscal year, certified by an actuary enrolled under ERISA.
6.1.5 (iv) As soon as possible and in any event within ten (10) days after an Authorized Officer the Borrower knows that any Reportable Event has occurred with respect to any Plan that could reasonably be expected to have a Material Adverse EffectPlan, a statement, signed by an Authorized Officer, describing said Reportable Event and the action which the Borrower proposes to take with respect thereto.
6.1.6 From time (v) As soon as possible and in any event within ten (10) days after receipt by the Borrower, a copy of (a) any notice or claim to time such additional information regarding the financial position effect that the Borrower or business any of its Subsidiaries is or may be liable to any Person as a result of the Borrower and release by the Borrower, any of its Subsidiaries as the AgentSubsidiaries, at the request or any other Person of any Lendertoxic or hazardous waste or substance into the environment, may and (b) any notice alleging any violation of any federal, state or local environmental, health or safety law or regulation by the Borrower or any of its Subsidiaries, which, in either case, could reasonably request, including the support for any pro forma calculations hereunderbe expected to have a Material Adverse Effect.
6.1.7 Promptly(vi) Promptly upon the furnishing thereof to the shareholders of the Borrower, copies of all financial statements, reports and proxy statements so furnished.
(vii) Promptly upon the filing thereof, copies of all registration statements (and annual, quarterly, monthly or other than any registration statement on Form S-8 and any registration statement in connection with a dividend reinvestment plan, shareholder purchase plan or employee benefit plan) and regular reports on form 10-K, 10-Q or 8-K (or their equivalents) which the Borrower or any of its Subsidiaries files with the Securities and Exchange Commission.
6.1.8 Promptly, (viii) Such other information regarding any change in (including nonfinancial information) as the Borrower’s Debt Rating. Information required to be delivered pursuant to these Sections 6.1.1, 6.1.2, and 6.1.7 shall be deemed to have been delivered on the date on which the Borrower provides notice to the Lenders that such information has been posted on the Securities and Exchange Commission website on the Internet at ▇▇▇.▇▇▇/▇▇▇▇▇/▇▇▇▇▇▇▇▇.▇▇▇, on the Borrower’s IntraLinks site at ▇▇▇▇▇▇▇▇▇▇.▇▇▇ Administrative Agent or at another website identified in such notice and accessible by the Lenders without charge; provided that (i) such notice may be included in a certificate delivered pursuant to Section 6.1.3 and such notice or certificate shall also be deemed to have been delivered upon being posted to the Borrower’s IntraLinks site or such other website and (ii) the Borrower shall deliver paper copies of the information referred to in Sections 6.1.1, 6.1.2 and 6.1.7 to any Lender which requests such deliverymay from time to time reasonably request.
Appears in 1 contract
Sources: Credit Agreement (Idacorp Inc)
Financial Reporting. The Borrower Whirlpool will maintain, for itself Whirlpool and each Subsidiaryof its Subsidiaries, a system of accounting established and administered in accordance with GAAPgenerally accepted accounting principles, and furnish to the Agent and Administrative Agent, for distribution to the Lenders:
6.1.1 (i) Within ninety (90) 90 days after the close of each of its Whirlpool’s fiscal years, financial statements an unqualified audit report certified by independent certified public accountants of recognized national standing selected by Whirlpool, prepared in accordance with GAAP generally accepted accounting principles on a consolidated basis for itself Whirlpool and its Consolidated Subsidiaries, including a consolidated balance sheets sheet as of the end of such period, period and related consolidated statements of income earnings and statements of cash flows, setting forth in comparative form figures for the preceding fiscal year, accompanied by an audit report, consistent provided that Whirlpool shall not be required to furnish separately any such financial statements that are filed electronically with the requirements of the Securities and Exchange Commission, of a nationally recognized firm of independent public accountants or other independent public accountants reasonably acceptable to Commission by Whirlpool at the Required Lenders.times specified herein;
6.1.2 (ii) Within forty-five (45) 60 days after the close of each of the first three quarterly periods of each of its Whirlpool’s fiscal years, financial statements prepared in accordance with GAAP (other than with regard to for Whirlpool and the absence of footnotes and subject to changes resulting from audit and normal year-end audit adjustments to same) on a consolidated basis for itself and its Consolidated Subsidiaries, including, an unaudited consolidated unaudited balance sheets sheet as at the close of each such period and a consolidated unaudited statements of income and a statement of earnings and cash flows for the period from the beginning of such fiscal year to the end of such quarter, in each case setting forth in comparative form figures for the corresponding period of the preceding fiscal yearall certified, and accompanied by a certificate of the chief financial officer or treasurer of the Borrower to the effect that such quarterly financial statements fairly present in all material respects the financial condition of the Borrower and its Subsidiaries and have been prepared in accordance with GAAP (other than with regard to the absence of footnotes and subject to changes resulting from audit and normal year-end audit adjustments adjustments, by an Authorized Officer; provided that Whirlpool shall not be required to same).furnish separately any such financial statements that are filed electronically with the Securities and Exchange Commission by Whirlpool at the times specified herein;
6.1.3 (iii) Together with the financial statements required under Sections 6.1.1 and 6.1.2, pursuant to clauses (i) and (ii) above, a compliance certificate in substantially the form of Exhibit B D hereto signed by an Authorized Officer (a) showing the calculations necessary to determine compliance with Section 6.16, (b) this Credit Agreement and stating that no Default or Unmatured Default exists, or if any Default or Unmatured Default exists, stating the nature and status thereof;
(iv) Promptly upon the furnishing thereof and (c) updating Schedule 1 with respect to its Subsidiariesthe shareholders of Whirlpool, Material Subsidiaries and Excluded Subsidiaries, if appropriate and (ii) such financial information as reasonable requested by the Agent, including, but not limited to consolidating copies of all financial statements, as is necessary reports and proxy statements so furnished, provided that Whirlpool shall not be required to account for Excluded Indebtedness furnish separately any such financial statements, reports and Excluded EBITDA for purposes of determining proxy statements that are filed electronically with the Consolidated Leverage Ratio.
6.1.4 If requested, within 270 days after the close of each fiscal year of the Borrower, a copy of the actuarial report showing the Unfunded Liabilities of each Single Employer Plan as of the valuation date occurring in such fiscal year, certified Securities and Exchange Commission by an actuary enrolled under ERISA.
6.1.5 As soon as possible and in any event within ten (10) days after an Authorized Officer knows that any Reportable Event has occurred with respect to any Plan that could reasonably be expected to have a Material Adverse Effect, a statement, signed by an Authorized Officer, describing said Reportable Event and the action which the Borrower proposes to take with respect thereto.
6.1.6 From time to time such additional information regarding the financial position or business of the Borrower and its Subsidiaries as the Agent, Whirlpool at the request of any Lender, may reasonably request, including the support for any pro forma calculations hereunder.times specified herein;
6.1.7 Promptly, (v) Promptly upon the filing thereof, copies of all registration statements (and annual, quarterly, monthly or other than any registration statement on Form S-8 and any registration statement in connection with a dividend reinvestment plan, shareholder purchase plan or employee benefit plan) and regular reports on form 10-K, 10-Q or 8-K (or their equivalents) which the Borrower Whirlpool or any of its Subsidiaries files with the Securities and Exchange Commission.
6.1.8 Promptly, information regarding any change in the Borrower’s Debt Rating. Information ; provided that documents that are required to be delivered pursuant to these Sections 6.1.1, 6.1.2, and 6.1.7 this clause (v) shall be deemed to have been be delivered on the date on which the Borrower provides notice to the Lenders that Whirlpool or any of its Subsidiaries files such information has been posted on documents with the Securities and Exchange Commission website on and provides written notification of such filing to the Internet at ▇▇▇.▇▇▇/▇▇▇▇▇/▇▇▇▇▇▇▇▇.▇▇▇Administrative Agent;
(vi) [Reserved];
(vii) Within a reasonable time after receipt of a request therefor, on the Borrower’s IntraLinks site at ▇▇▇▇▇▇▇▇▇▇.▇▇▇ or at another website identified which time shall in any event be not less than two days nor more than thirty days, such notice other information (including non-financial information and accessible information and documentation reasonably requested by the Lenders without charge; provided that (i) such notice may be included in a certificate delivered pursuant to Section 6.1.3 and such notice Administrative Agent or certificate shall also be deemed to have been delivered upon being posted to the Borrower’s IntraLinks site or such other website and (ii) the Borrower shall deliver paper copies of the information referred to in Sections 6.1.1, 6.1.2 and 6.1.7 to any Lender which requests such deliveryfor purposes of compliance with applicable “know your customer” and anti-money laundering rules and regulations, including the Patriot Act and the Beneficial Ownership Regulation) as the Administrative Agent or any Lender may from time to time reasonably request; and
(viii) Promptly after Whirlpool has notified the Administrative Agent of any intention by Whirlpool to treat the Advances as being a “reportable transaction” (within the meaning of Treasury Regulation Section 1.6011-4), a duly completed copy of IRS Form 8886 or any successor form.
Appears in 1 contract
Financial Reporting. The Such Borrower will maintain, for itself and each SubsidiarySubsidiary of such Borrower, a system of accounting established and administered in accordance with GAAPAgreement Accounting Principles or SAP, as applicable, and furnish to the Agent Lenders and the LendersFronting Banks:
6.1.1 Within ninety (90a) In the case of NFS, within 100 days after the close of each of its fiscal years, financial statements an unqualified audit report on Form 10K as filed with the Securities and Exchange Commission, certified by independent certified public accountants acceptable to the Lenders and the Fronting Banks and prepared in accordance with GAAP Agreement Accounting Principles on a consolidated basis for itself and its Subsidiaries, including balance sheets as of the end of such period, period and related statements of income income, shareholders’ equity and statements of cash flows, setting forth in comparative form figures for the preceding fiscal year, accompanied by an audit report, consistent with the requirements of the Securities and Exchange Commission, of a nationally recognized firm of independent public accountants or other independent public accountants reasonably acceptable to the Required Lendersany internal control letter prepared by said accountants.
6.1.2 Within forty-five (45b) In the case of NFS, within 60 days after the close of the first three quarterly periods of each of its fiscal years, financial statements prepared in accordance with GAAP (other than with regard to the absence of footnotes and subject to changes resulting from audit and normal year-end audit adjustments to same) on a consolidated basis for itself and its Subsidiaries, including, consolidated unaudited balance sheets as at the close of each such period and consolidated unaudited statements of income income, shareholders’ equity and a statement of cash flows for the period from the beginning of such fiscal year to the end of such quarter, in all certified by its chief financial officer.
(i) In the case of each case setting forth in comparative form figures for of Nationwide Mutual and Nationwide Life, upon the corresponding period earlier of (A) thirty (30) days after the regulatory filing date or (B) one hundred (100) days after the close of each fiscal year of such Borrower, copies of the preceding unaudited Annual Statement of such Borrower, certified by the chief financial officer or the treasurer of such Borrower, all such statements to be prepared in accordance with SAP consistently applied throughout the periods reflected therein and (ii) in the case of Nationwide Life, no later than each June 15, copies of such Annual Statement audited and certified by independent certified public accountants of recognized national statement.
(d) In the case of Nationwide Mutual, (i) within thirty (30) days after the regulatory filing date, copies of the unaudited Combined Annual Statement of Nationwide Mutual, certified by the chief financial officer or the treasurer of Nationwide Mutual, all such statements to be prepared in accordance with SAP consistently applied throughout the periods reflected therein and (ii) no later than each June 15, copies of such Combined Annual Statement audited and certified by independent certified public accountants of recognized national statement.
(e) In the case of Nationwide Mutual and Nationwide Life, upon the earlier of (i) thirty (30) days after the regulatory filing date or (ii) sixty (60) days after the close of each of the first three (3) fiscal yearquarters of each fiscal year of Nationwide Mutual and Nationwide Life, and accompanied copies of the unaudited Quarterly Statement of such Borrower, certified by a certificate of the chief financial officer or treasurer of the Borrower such Borrower, all such statements to the effect that such quarterly financial statements fairly present in all material respects the financial condition of the Borrower and its Subsidiaries and have been be prepared in accordance with GAAP (other than with regard to SAP consistently applied through the absence of footnotes and subject to changes resulting from audit and normal year-end audit adjustments to same)period reflected therein.
6.1.3 (f) Together with the financial statements required under Sections 6.1.1 and 6.1.26.1(a), (ib), (c) and (e), a compliance certificate in substantially the form of Exhibit B signed by an Authorized Officer (a) its chief financial officer or treasurer showing the calculations necessary to determine compliance with Section 6.16, (b) this Agreement and stating that no Default or Unmatured Default exists, or if any Default or Unmatured Default exists, stating the nature and status thereof and (c) updating Schedule 1 with respect to its Subsidiaries, Material Subsidiaries and Excluded Subsidiaries, if appropriate and (ii) such financial information as reasonable requested by the Agent, including, but not limited to consolidating financial statements, as is necessary to account for Excluded Indebtedness and Excluded EBITDA for purposes of determining the Consolidated Leverage Ratiothereof.
6.1.4 If requested, within 270 days after the close of each fiscal year of the Borrower, a copy of the actuarial report showing the Unfunded Liabilities of each Single Employer Plan as of the valuation date occurring in such fiscal year, certified by an actuary enrolled under ERISA.
6.1.5 As soon as possible (g) Promptly and in any event within ten (10) days after learning thereof, notification of any changes after the Closing Date in the rating given by ▇▇▇▇▇’▇, S&P or A.M. Best & Co. in respect of any Borrower.
(h) Within five (5) Business Days after the receipt thereof by such Borrower, any written communication from the Insurance Department of the State of Ohio (provided that such communication is directed to such Borrower specifically with respect to a particular inquiry and not to insurance companies generally) which asserts in any material respect that such Borrower has an Authorized Officer unsound financial condition;
(i) Within ten (10) days after the required annual filing with the PBGC, a statement of the Unfunded Liabilities of each Single Employer Plan, if any, certified as correct by an actuary enrolled under ERISA.
(j) As soon as possible and in any event within 10 days after such Borrower knows that any Reportable Event has occurred with respect to any Plan that could reasonably be expected to have a Material Adverse EffectPlan, a statement, signed by an Authorized Officerthe chief financial officer of such Borrower, describing said Reportable Event and the action which the such Borrower proposes to take with respect thereto.
6.1.6 From time (k) Promptly upon the furnishing thereof to time the shareholders (in the case of NFS) or the policyholders (in the case of Nationwide Mutual), copies of all financial statements, reports and proxy statements so furnished.
(l) Promptly and in any event within ten (10) days after learning thereof, notification of (i) any tax assessment, demand, notice of proposed deficiency or notice of deficiency received by such additional Borrower or any other Consolidated Person or (ii) the filing of any tax Lien or commencement of any judicial proceeding by or against such Consolidated Person, if any such assessment, demand, notice, Lien or judicial proceeding (or all such assessments, demands, notices, Liens and judicial proceedings, in the aggregate) relates to tax liabilities in excess of ten percent (10%) of (A) in the case of Nationwide Mutual and Nationwide Life, the Statutory Surplus (determined without reduction for any reserve for liabilities) of such Borrower or (B) in the case of NFS, the Consolidated Tangible Net Worth (determined without reduction for any reserve for liabilities) of NFS.
(m) Such other information regarding the (including non-financial position or business of the Borrower and its Subsidiaries information) as the Agent, at the request of any Lender, Lender or any Fronting Bank may from time to time reasonably request, including the support for any pro forma calculations hereunder.
6.1.7 Promptly, upon the filing thereof, copies of all registration statements (other than any registration statement on Form S-8 and any registration statement in connection with a dividend reinvestment plan, shareholder purchase plan or employee benefit plan) and reports on form 10-K, 10-Q or 8-K (or their equivalents) which the Borrower or any of its Subsidiaries files with the Securities and Exchange Commission.
6.1.8 Promptly, information regarding any change in the Borrower’s Debt Rating. Information required to be delivered pursuant to these Sections 6.1.1, 6.1.2, and 6.1.7 shall be deemed to have been delivered on the date on which the Borrower provides notice to the Lenders that such information has been posted on the Securities and Exchange Commission website on the Internet at ▇▇▇.▇▇▇/▇▇▇▇▇/▇▇▇▇▇▇▇▇.▇▇▇, on the Borrower’s IntraLinks site at ▇▇▇▇▇▇▇▇▇▇.▇▇▇ or at another website identified in such notice and accessible by the Lenders without charge; provided that (i) such notice may be included in a certificate delivered pursuant to Section 6.1.3 and such notice or certificate shall also be deemed to have been delivered upon being posted to the Borrower’s IntraLinks site or such other website and (ii) the Borrower shall deliver paper copies of the information referred to in Sections 6.1.1, 6.1.2 and 6.1.7 to any Lender which requests such delivery.
Appears in 1 contract
Sources: Five Year Credit Agreement (Nationwide Financial Services Inc/)
Financial Reporting. The Borrower will maintain, for itself and each Subsidiary, a system of accounting established and administered in accordance with GAAPgenerally accepted accounting principles, and furnish to the Agent and the Lenders:
6.1.1 (i) Within ninety (90) days after the close of each of its fiscal years, financial statements to the extent prepared to comply with SEC requirements, a copy of the Borrower’s report on SEC Form 10-K filed with the SEC for such fiscal year, or, if no such Form 10-K was filed by the Borrower, an unqualified (except for qualifications relating to changes in accounting principles or practices reflecting changes in generally accepted accounting principles and required or approved by the Borrower’s independent certified public accountants) audit report certified by independent certified public accountants acceptable to the Required Lenders, prepared in accordance with GAAP Agreement Accounting Principles on a consolidated basis for itself and its Subsidiaries, including balance sheets as of the end of such period, statements related profit and loss and reconciliation of income surplus statements, and statements a statement of cash flows, setting forth in comparative form figures for the preceding fiscal year, accompanied by an audit report, consistent with the requirements of the Securities and Exchange Commission, of a nationally recognized firm of independent public accountants or other independent public accountants reasonably acceptable to the Required Lenders.
6.1.2 (ii) Within forty-five (45) days after the close of the first three quarterly periods of each of its fiscal years, financial statements prepared in accordance with GAAP (other than with regard to the absence of footnotes and subject to changes resulting from audit and normal year-end audit adjustments to same) on a consolidated basis for itself and its Subsidiaries, includingto the extent prepared to comply with SEC requirements, a copy of the Borrower’s report on SEC Form 10-Q filed with the SEC for such fiscal quarter, or, if no such Form 10-Q was filed by the Borrower, consolidated unaudited balance sheets as at the close of each such period and consolidated unaudited profit and loss and reconciliation of surplus statements of income and a statement of cash flows for the period from the beginning of such fiscal year to the end of such quarter, all certified by its chief financial officer.
(iii) As soon as available, but in any event within ninety (90) days after the beginning of each case setting forth in comparative form figures for the corresponding period fiscal year of the preceding fiscal yearBorrower, and accompanied by a certificate copy of the chief financial officer or treasurer of the Borrower to the effect that such quarterly financial statements fairly present in all material respects the financial condition plan and forecast (including a projected consolidated balance sheet, income statement and funds flow statement) of the Borrower and its Subsidiaries and have been prepared in accordance with GAAP (other than with regard to the absence of footnotes and subject to changes resulting from audit and normal for such fiscal year-end audit adjustments to same).
6.1.3 Together with (iv) Within ten (10) days after the delivery of the Financial Statements required under Section 6.1(i) and within fifteen (15) days after the delivery of the financial statements required under Sections 6.1.1 and 6.1.2Section 6.1(ii), (i) a compliance certificate in substantially the form of Exhibit B A signed by an Authorized its Chief Financial Officer (a) or Treasurer showing the calculations necessary to determine compliance with Section 6.16, (b) this Agreement and stating that no Default or Unmatured Default exists, or if any Default or Unmatured Default exists, stating the nature and status thereof and (c) updating Schedule 1 with respect to its Subsidiaries, Material Subsidiaries and Excluded Subsidiaries, if appropriate and (ii) such financial information as reasonable requested by the Agent, including, but not limited to consolidating financial statements, as is necessary to account for Excluded Indebtedness and Excluded EBITDA for purposes of determining the Consolidated Leverage Ratiothereof.
6.1.4 If requested, within (v) Within 270 days after the close of each fiscal year of the Borroweryear, a copy statement of the actuarial report showing the Unfunded Liabilities of each Single Employer Plan as of the valuation date occurring in such fiscal yearPlan, certified as correct by an actuary enrolled under ERISA.
6.1.5 (vi) As soon as possible and in any event within ten thirty (1030) days after an Authorized Officer the Borrower knows that any Reportable Event has occurred with respect to any Plan that could reasonably be expected to have a Material Adverse EffectEffect has occurred with respect to any Plan, a statement, signed by an Authorized Officerthe chief financial officer of the Borrower, describing said Reportable Event and the action which the Borrower proposes to take with respect thereto.
6.1.6 From time (vii) As soon as possible and in any event within twenty (20) days after receipt by the Borrower, a copy of (a) any notice or claim to time such additional information regarding the financial position effect that the Borrower or business any of its Subsidiaries is or may be liable to any Person as a result of the Borrower and release by the Borrower, any of its Subsidiaries as the AgentSubsidiaries, at the request or any other Person of any Lendertoxic or hazardous waste or substance into the environment, may and (b) any notice alleging any violation of any federal, state or local environmental, health or safety law or regulation by the Borrower or any of its Subsidiaries, which, in either case, could reasonably request, including the support for any pro forma calculations hereunderbe expected to have a Material Adverse Effect.
6.1.7 Promptly(viii) Promptly upon the furnishing thereof to the shareholders of the Borrower, copies of all financial statements, reports and proxy statements so furnished.
(ix) Promptly upon the filing thereof, copies of all registration statements (and annual, quarterly, monthly or other than any registration statement on Form S-8 and any registration statement in connection with a dividend reinvestment plan, shareholder purchase plan or employee benefit plan) and regular reports on form 10-K, 10-Q or 8-K (or their equivalents) which the Borrower or any of its Subsidiaries files with the Securities and Exchange Commission.
6.1.8 Promptly, (x) Such other information regarding (including non-financial information) as the Agent or any change Lender may from time to time reasonably request.
(A) Within five (5) Business Days after each purchase by the Borrower or any of its Subsidiaries of Margin Stock in the Borrower’s Debt Ratingamount of $1,000,000 or more and (B) together with each delivery of a compliance certificate pursuant to Section 6.1(iv), a current list of all Margin Stock (and its current value) held by the Borrower or any of its Subsidiaries. Information required to be delivered pursuant to these Sections 6.1.1clauses (i), 6.1.2(ii), and 6.1.7 (viii) of this Section 6.1 (to the extent any such documents are included in materials otherwise filed with the SEC) shall be deemed to have been delivered on the date (a) on which the Borrower provides notice to the Lenders that such information has been posted on the Securities and Exchange Commission Borrower’s Internet website at the website address listed on the Internet at ▇▇▇.▇▇▇/▇▇▇▇▇/▇▇▇▇▇▇▇▇.▇▇▇, on the Borrower’s IntraLinks site at ▇▇▇▇▇▇▇▇▇▇.▇▇▇ signature page hereof or at another website identified in such notice and accessible by to the Lenders without charge; provided that or (ib) on which such notice may be included in a certificate delivered pursuant to Section 6.1.3 and such notice or certificate shall also be deemed to have been delivered upon being documents are posted to on the Borrower’s IntraLinks site behalf on an Internet or such other intranet website, if any, to which each Lender and the Agent have access (whether a commercial, third-party website and or whether sponsored by the Agent); provided that: (iix) the Borrower shall deliver paper copies of the such information referred to in Sections 6.1.1, 6.1.2 and 6.1.7 to any Lender which that requests such deliverydelivery and (y) the Borrower shall notify the Agent and each Lender (by facsimile or electronic mail) of the posting of any such documents and provide to the Agent by electronic mail electronic versions (i.e., soft copies) of such documents.
Appears in 1 contract
Financial Reporting. The Borrower will maintain, for itself and each Subsidiary, a system of accounting established and administered in accordance with GAAPthe Agreement Accounting Principles, and furnish to the Administrative Agent and in sufficient copies for each of the Lenders:
6.1.1 (i) Within ninety one hundred twenty (90120) days after the close of each of its fiscal yearsyears (or, financial statements if earlier, within thirty (30) days after the Borrower is required to file its Annual Report on Form 10-K with the Securities and Exchange Commission for such fiscal year), an unqualified (except for qualifications relating to changes in Agreement Accounting Principles or practices reflecting changes in Agreement Accounting Principles and required or approved by the Borrower’s independent certified public accountants) audit report certified by independent certified public accountants reasonably acceptable to the Lenders, prepared in accordance with GAAP the Agreement Accounting Principles on a consolidated and consolidating basis (consolidating statements need not be certified by such accountants) for itself and its Subsidiaries, including balance sheets as of the end of such period, statements related profit and loss and reconciliation of income surplus statements, and statements a statement of cash flows, setting forth in comparative form figures for . Delivery by the preceding fiscal year, accompanied by an audit report, consistent Borrower to the Administrative Agent of copies of the Parent’s Annual Report on Form 10-K filed with the requirements of the Securities and Exchange Commission, of a nationally recognized firm of independent public accountants or other independent public accountants reasonably acceptable Commission for any year shall satisfy the Borrower’s obligation under this clause (i) with respect to the Required Lenderssuch year.
6.1.2 (ii) Within forty-five sixty (4560) days after the close of the first three (3) quarterly period of each of its fiscal years (or, if earlier, within fifteen (15) days after the Borrower is required to file its Quarterly Report on Form 10-Q for with the Securities and Exchange Commission for such period), consolidated and consolidating unaudited balance sheets as at the close of each the first three (3) quarterly periods of each of its fiscal years, financial statements prepared in accordance with GAAP (other than with regard to the absence of footnotes and subject to changes resulting from audit and normal year-end audit adjustments to same) on a consolidated basis for itself and its Subsidiaries, including, consolidated unaudited balance sheets as at the close of each such period Subsidiaries and consolidated unaudited and consolidating profit and loss and reconciliation of surplus statements of income and a statement of cash flows for the period from the beginning of such fiscal year to the end of such quarter, in each case setting forth in comparative form figures for the corresponding period of the preceding fiscal year, and accompanied all certified by a certificate of the chief financial officer or treasurer of an Authorized Officer. Delivery by the Borrower to the effect that such quarterly financial statements fairly present in all material respects the financial condition Administrative Agent of copies of the Borrower Borrower’s Quarterly Report on Form 10-Q filed with the Securities and its Subsidiaries and have been prepared in accordance Exchange Commission for 12640621v 1 24740.0002 44 any quarter shall satisfy the Borrower’s obligation under this clause (ii) with GAAP (other than with regard respect to the absence of footnotes and subject to changes resulting from audit and normal year-end audit adjustments to same)such quarter.
6.1.3 (iii) Together with the financial statements required under Sections 6.1.1 6.1(i) and 6.1.2(ii), (iA) a compliance certificate in substantially the form of Exhibit B A signed by an Authorized Officer (a) showing the calculations necessary to determine compliance with Section 6.16, (b) this Agreement and stating that no Default or Unmatured Default exists, or if any Default or Unmatured Default exists, stating the nature and status thereof and (cB) updating Schedule 1 with respect to its Subsidiaries, Material Subsidiaries and Excluded Subsidiaries, if appropriate and (iia calculation of the Indebtedness secured by Liens permitted under Section 6.11(xiii) in such financial information as reasonable requested by the Agent, including, but not limited to consolidating financial statements, form as is necessary reasonably satisfactory to account for Excluded Indebtedness and Excluded EBITDA for purposes of determining the Consolidated Leverage RatioAdministrative Agent.
6.1.4 If requested, within 270 days after the close of each fiscal year of the Borrower, a copy of the actuarial report showing the Unfunded Liabilities of each Single Employer Plan as of the valuation date occurring in such fiscal year, certified by an actuary enrolled under ERISA.
6.1.5 (iv) As soon as possible practicable and in any event within ten (10) days after an Authorized Officer the Borrower knows that of the occurrence of any Reportable ERISA Event has occurred with respect to any Plan that could reasonably be expected to have a Material Adverse Effect, Effect (x) a statement, signed by written statement of an Authorized Officer, describing said Reportable Officer of the Borrower specifying the details of such ERISA Event and the action which that the Borrower or ERISA Affiliate has taken and proposes to take with respect thereto, (y) a copy of any notice with respect to such ERISA Event that may be required to be filed with the PBGC and (z) a copy of any notice delivered by the PBGC to the Borrower or an ERISA Affiliate with respect to such ERISA Event.
6.1.6 From time (v) As soon as practicable and in any event within ten (10) days after receipt by the Borrower, a copy of (a) any notice or claim to time such additional information regarding the financial position effect that the Borrower or business any of its Subsidiaries is or may be liable to any Person as a result of the Borrower and release by the Borrower, any of its Subsidiaries as the AgentSubsidiaries, at the request or any other Person of any Lendertoxic or hazardous waste or substance into the environment, may and (b) any notice alleging any violation of any federal, state or local environmental, health or safety law or regulation by the Borrower or any of its Subsidiaries, which, in either case, could reasonably request, including the support for any pro forma calculations hereunderbe expected to have a Material Adverse Effect.
6.1.7 Promptly(vi) Promptly upon the furnishing thereof to the shareholders of the Borrower, copies of all financial statements and reports so furnished.
(vii) Promptly upon the filing thereof, copies of all registration statements (and annual, quarterly, monthly or other than any registration statement on Form S-8 and any registration statement in connection with a dividend reinvestment plan, shareholder purchase plan or employee benefit plan) and regular reports on form 10-K, 10-Q or 8-K (or their equivalents) which the Borrower or any of its Subsidiaries files with the Securities and Exchange Commission.
6.1.8 Promptly(viii) Promptly upon the request thereof, such other information regarding and documentation required under applicable “know your customer” rules and regulations, the PATRIOT Act or any change applicable Anti-Money Laundering Laws or Anti-Corruption Laws, in the Borrower’s Debt Rating. Information required each case as from time to be delivered pursuant to these Sections 6.1.1, 6.1.2, and 6.1.7 shall be deemed to have been delivered on the date on which the Borrower provides notice to the Lenders that such information has been posted on the Securities and Exchange Commission website on the Internet at ▇▇▇.▇▇▇/▇▇▇▇▇/▇▇▇▇▇▇▇▇.▇▇▇, on the Borrower’s IntraLinks site at ▇▇▇▇▇▇▇▇▇▇.▇▇▇ or at another website identified in such notice and accessible time reasonably requested by the Lenders without charge; provided that (i) such notice may be included in a certificate delivered pursuant to Section 6.1.3 and such notice Administrative Agent or certificate shall also be deemed to have been delivered upon being posted to the Borrower’s IntraLinks site or such other website and (ii) the Borrower shall deliver paper copies of the information referred to in Sections 6.1.1, 6.1.2 and 6.1.7 to any Lender which requests such deliveryLender.
Appears in 1 contract
Sources: Credit Agreement (Idaho Power Co)
Financial Reporting. The Borrower will maintain, for itself and each Subsidiary, a system of accounting established and administered in accordance with GAAPgenerally accepted accounting principles, and furnish to the Agent and the Lenders:
6.1.1 Within ninety (90a) as soon as available and in any event within 50 days after the close end of each of its the first three quarters of each fiscal yearsyear of the Borrower, financial statements prepared in accordance with GAAP on a consolidated basis for itself balance sheet of the Borrower and its Subsidiaries, including balance sheets Subsidiaries as of the end of such period, quarter and consolidated statements of income and of cash flows of the Borrower and its Subsidiaries for the period commencing at the end of the previous fiscal year and ending with the end of such quarter, all in reasonable detail and duly certified (subject to year-end audit adjustments) by an Authorized Officer as having been prepared in accordance with Agreement Accounting Principles;
(b) as soon as available and in any event within 120 days after the end of each fiscal year of the Borrower, a copy of the annual audit report for such year for the Borrower and its Subsidiaries, containing a consolidated balance sheet of the Borrower and its Subsidiaries as of the end of such fiscal year and consolidated statements of income and of cash flows, setting forth in comparative form figures flows of the Borrower and its Subsidiaries for the preceding such fiscal year, in each case accompanied by an audit report, consistent opinion in substantially the form given with the requirements September 30, 2006 audited financial statements of the Securities and Exchange Commission, Borrower as set forth in Amendment No. 5 to the Form S-4 Registration Statement of a nationally recognized firm of independent public accountants Visa Inc. (or other independent public accountants otherwise reasonably acceptable to the Required Lenders.
6.1.2 Within forty-five ) (45) days after it being understood that the close of audit opinion may differ from this standard to the first three quarterly periods of each of its fiscal years, extent necessary to conform to the audit opinion requirements for a publicly traded company if such financial statements prepared cover periods after Visa Inc. becomes a publicly traded company) by the Borrower’s regularly retained independent public accountants in accordance with GAAP (other than generally accepted auditing standards; provided that in the event of any change in Agreement Accounting Principles used in the preparation of such financial statements, the Borrower shall also provide, if necessary for the determination of compliance with regard to the absence of footnotes and subject to changes resulting from audit and normal year-end audit adjustments to same) on a consolidated basis for itself and its SubsidiariesSection 6.17, including, consolidated unaudited balance sheets as at the close of each such period and consolidated unaudited statements of income and a statement of cash flows for the period from the beginning of reconciliation conforming such fiscal year to the end of such quarter, in each case setting forth in comparative form figures for the corresponding period of the preceding fiscal year, and accompanied by a certificate of the chief financial officer or treasurer of the Borrower to the effect that such quarterly financial statements fairly present in all material respects the financial condition to Agreement Accounting Principles;
(c) simultaneously with delivery of the Borrower and its Subsidiaries and have been prepared in accordance with GAAP (other than with regard to the absence of footnotes and subject to changes resulting from audit and normal year-end audit adjustments to same).
6.1.3 Together with the financial statements required under Sections 6.1.1 referred to in clauses (a) and 6.1.2(b) above, (i) a compliance certificate in substantially the form of Exhibit B signed by an Authorized Officer (a) its Chief Administrative Officer, Chief Financial Officer, Controller or Treasurer showing the calculations necessary to determine compliance with Section 6.16, (b) this Agreement and stating that no Default or Unmatured Event of Default exists, or if any Default or Unmatured Event of Default exists, stating the nature and status thereof and thereof;
(cd) updating Schedule 1 with respect to its Subsidiaries, Material Subsidiaries and Excluded Subsidiaries, if appropriate and (ii) such financial information as reasonable requested by the Agent, including, but not limited to consolidating financial statements, as is necessary to account for Excluded Indebtedness and Excluded EBITDA for purposes of determining the Consolidated Leverage Ratio.
6.1.4 If requested, within 270 days after the close of each fiscal year of the Borrower, a copy of the actuarial report showing the Unfunded Liabilities of each Single Employer Plan as of the valuation date occurring in such fiscal year, certified by an actuary enrolled under ERISA.
6.1.5 As soon as possible promptly and in any event within ten (10) days 10 Business Days after an Authorized Officer the Borrower or any ERISA Affiliate knows or has reason to know that any Reportable ERISA Event has occurred with respect to any Plan that could reasonably be expected to have a Material Adverse Effectoccurred, a statement, signed by an Authorized Officer, describing said Reportable Event and statement of the action which the Borrower proposes to take with respect thereto.
6.1.6 From time to time such additional information regarding the chief financial position or business officer of the Borrower and its Subsidiaries as describing such ERISA Event;
(e) promptly after the Agent, at the request of any Lender, may reasonably request, including the support for any pro forma calculations hereunder.
6.1.7 Promptly, upon the filing Borrower receives notice thereof, copies notice of all registration statements (other than actions, suits and proceedings before any registration statement on Form S-8 and any registration statement in connection with a dividend reinvestment plancourt or governmental department, shareholder purchase plan commission, board, bureau, agency or employee benefit plan) and reports on form 10-Kinstrumentality, 10-Q domestic or 8-K (or their equivalents) which foreign, affecting the Borrower or any of its Subsidiaries files with in which the Securities amount claimed is (a) prior to the Assumption and Exchange Commission.Release, U.S.$70,000,000 or more, or (b) from and after the Assumption and Release, U.S.$140,000,000 or more;
6.1.8 Promptly, information regarding (f) promptly after any change in in, or withdrawal of, the Borrower’s Debt Rating▇▇▇▇▇’▇ Rating or S&P Rating written notice of such change or withdrawal, which notice shall specify the new rating (if applicable), the date on which such change or withdrawal was publicly announced or, in the case of a private rating, disclosed to the Borrower and such other information with respect to such change or withdrawal as any Lender through the Administrative Agent may reasonably request;
(g) promptly after the occurrence thereof, written notice of any material change in accounting policies or financial reporting practices by the Borrower or any Subsidiary; and
(h) such other information respecting the condition or operations, financial or otherwise, of the Borrower or any of its Subsidiaries as any Lender through the Administrative Agent may from time to time reasonably request. Information required The Borrower hereby acknowledges that (i) the Administrative Agent and/or the Arrangers will make available to the Lenders materials and/or information provided by or on behalf of the Borrower hereunder (collectively, “Borrower Materials”) by posting the Borrower Materials on IntraLinks or another similar electronic system (the “Platform”) and (ii) certain of the Lenders (each, a “Public Lender”) may have personnel who do not wish to receive material non-public information with respect to the Borrower or its Affiliates, or the respective securities of any of the foregoing, and who may be engaged in investment and other market-related activities with respect to such Persons’ securities. The Borrower hereby agrees that (w) all Borrower Materials that are to be delivered pursuant made available to these Sections 6.1.1Public Lenders shall be clearly and conspicuously marked “PUBLIC” which, 6.1.2at a minimum, and 6.1.7 shall mean that the word “PUBLIC” shall appear prominently on the first page thereof; (x) by marking Borrower Materials “PUBLIC,” the Borrower shall be deemed to have been delivered on authorized the date on which Administrative Agent, the Arrangers, and the Lenders to treat such Borrower Materials as either publicly available information or not material information (although it may be sensitive and proprietary) with respect to the Borrower provides notice or its securities for purposes of United States Federal and state securities laws; (y) all Borrower Materials marked “PUBLIC” are permitted to be made available through a portion of the Lenders that such information has been posted on the Securities and Exchange Commission website on the Internet at ▇▇▇.▇▇▇/▇▇▇▇▇/▇▇▇▇▇▇▇▇.▇▇▇, on the Borrower’s IntraLinks site at ▇▇▇▇▇▇▇▇▇▇.▇▇▇ or at another website identified in such notice and accessible by the Lenders without charge; provided that (i) such notice may be included in a certificate delivered pursuant to Section 6.1.3 and such notice or certificate shall also be deemed to have been delivered upon being posted to the Borrower’s IntraLinks site or such other website Platform designated “Public Investor;” and (iiz) the Administrative Agent and the Arrangers shall be entitled to treat any Borrower shall deliver paper copies Materials that are not marked “PUBLIC” as being suitable only for posting on a portion of the information referred to in Sections 6.1.1, 6.1.2 and 6.1.7 to any Lender which requests such deliveryPlatform not designated “Public Investor.”
Appears in 1 contract
Financial Reporting. The Borrower will maintain (or cause the Parent to maintain, ) for itself and each Subsidiary, the Consolidated Group a system of accounting established and administered in accordance with GAAP, and furnish to the Administrative Agent (and the Administrative Agent shall promptly thereafter post for review by the Lenders:):
6.1.1 Within ninety (90i) As soon as available, but in any event not later than 45 days after the close of each of the first, second and third fiscal quarterquarters, for the BorrowerParent and its Subsidiaries, commencing with the fiscal yearsquarter ending JuneSeptember 30, 20192021, financial statements prepared in accordance with GAAP on a consolidated basis for itself and its SubsidiariesGAAP, including an unaudited consolidated balance sheets sheet as of the end of such period, statements of income and statements of cash flows, setting forth in comparative form figures for the preceding fiscal year, accompanied by an audit report, consistent with the requirements of the Securities and Exchange Commission, of a nationally recognized firm of independent public accountants or other independent public accountants reasonably acceptable to the Required Lenders.
6.1.2 Within forty-five (45) days after the close of the first three quarterly periods of each of its fiscal years, financial statements prepared in accordance with GAAP (other than with regard to the absence of footnotes and subject to changes resulting from audit and normal year-end audit adjustments to same) on a consolidated basis for itself and its Subsidiaries, including, consolidated unaudited balance sheets as at the close of each such period and the related unaudited consolidated unaudited income statement and statement of cash flows of the BorrowerParent and its Subsidiaries for such period and the portion of the fiscal year through the end of such period, setting forth in each case in comparative form the figures for the previous year, if any, all certified by an Authorized Officer of the Parent or the Borrower, as applicable;
(ii) As soon as available, but in any event not later than 45 days after the close of each fiscal quarter,Together with the quarterly and annual financial statements required hereunder for the BorrowerParent and its Subsidiaries, commencing with the fiscal quarter ending JuneSeptember 30, 20192021, the following reports in form and substance reasonably satisfactory to the Administrative Agent, all certified by an Authorized Officer of the Parent or the Borrower, as applicable:
(1) a schedule listing all Projects and summary information for each Project, including location, square footage, occupancy, Net Operating Income, debt, and such additional information on all Projects as may be reasonably requested by the Administrative Agent, and
(2) a statement of the Adjusted Unencumbered Pool NOI and occupancy percentage of the Unencumbered Pool as of the end of the prior fiscal quarter.
(iii) As soon as available, but in any event not later than 90 days after the close of each fiscal year, for the BorrowerParent and its Subsidiaries, audited financial statements, including a consolidated balance sheet as at the end of such year and the related consolidated statements of income and a statement retained earnings and of cash flows for the period from the beginning of such fiscal year to the end of such quarteryear, setting forth in each case setting forth in comparative form the figures for the corresponding period previous year, without a “going concern” or like qualification or exception, or qualification arising out of the preceding fiscal yearscope of the audit, prepared by independent certified public accountants of nationally recognized standing reasonably acceptable to Administrative Agent, and accompanied indicating no material weakness in Parent’s or Borrower’s internal controls, together with such additional information and consolidating schedules as may be reasonably requested by the Administrative Agent;
(iv) As soon as available, but in any event not later than 90 days after the close of each fiscal year for the BorrowerParent and its Subsidiaries, a certificate of statement detailing the chief financial officer or treasurer of contributions to Consolidated NOI from each individual Project for the Borrower prior fiscal year in form and substance reasonably satisfactory to the effect that such quarterly financial statements fairly present in all material respects the financial condition of the Borrower and its Subsidiaries and have been prepared in accordance with GAAP (other than with regard to the absence of footnotes and subject to changes resulting from audit and normal year-end audit adjustments to same).
6.1.3 Together with the financial statements required under Sections 6.1.1 and 6.1.2Administrative Agent, (i) a compliance certificate in substantially the form of Exhibit B signed certified by an Authorized Officer of the Parent or the Borrower, as applicable;
(av) Together with the quarterly and annual financial statements required hereunder, a Compliance Certificate showing the calculations and computations necessary to determine compliance with Section 6.16this Agreement and stating that, (b) stating that to the knowledge of the Authorized Officer of the Parent or the Borrower, as applicable, signing such Compliance Certificate, no Default or Unmatured Default exists, or if if, to such Authorized Officer’s knowledge, any Default or Unmatured Default exists, stating the nature and status thereof and thereof;
(cvi) updating Schedule 1 with respect to its Subsidiaries, Material Subsidiaries and Excluded Subsidiaries, if appropriate and (ii) such financial information as reasonable requested by the Agent, including, but not limited to consolidating financial statements, as is necessary to account for Excluded Indebtedness and Excluded EBITDA for purposes of determining the Consolidated Leverage Ratio.
6.1.4 If requested, within 270 days after the close of each fiscal year of the Borrower, a copy of the actuarial report showing the Unfunded Liabilities of each Single Employer Plan as of the valuation date occurring in such fiscal year, certified by an actuary enrolled under ERISA.
6.1.5 As soon as possible and in any event within ten (10) 10 days after an Authorized Officer of the Parent or the Borrower, as applicable, knows that any Reportable Event has occurred with respect to any Plan that could reasonably be expected to have a Material Adverse EffectPlan, a statement, signed by an Authorized OfficerOfficer of the Parent or the Borrower, as applicable, describing said Reportable Event and the action which the Borrower proposes to take with respect thereto.;
6.1.6 From time to time such additional information regarding the financial position or business (vii) As soon as possible and in any event within 10 days after receipt by an Authorized Officer of the Borrower and Parent or the Borrower, as applicable, a copy of (a) any notice or claim to the effect that the BorrowerParent or any of its Subsidiaries is or may be liable to any Person as a result of the Agentrelease by the Parent, at the request Borrower, any of itstheir respective Subsidiaries, or any other Person of any Lendertoxic or hazardous waste or substance into the environment, may reasonably requestand (b) any notice alleging any violation of any federal, including the support for any pro forma calculations hereunder.
6.1.7 Promptlystate or local environmental, upon the filing thereof, copies of all registration statements (other than any registration statement on Form S-8 and any registration statement in connection with a dividend reinvestment plan, shareholder purchase plan health or employee benefit plan) and reports on form 10-K, 10-Q safety law or 8-K (or their equivalents) which the regulation by such Borrower or any of its Subsidiaries files Subsidiaries, which, in either case, could have a Material Adverse Effect;
(viii) Promptly upon the furnishing thereof to the shareholders of the BorrowerParent, copies of all financial statements, reports and proxy statements so furnished, including without limitation all form 10-K and 10-Q reports filed with the Securities and Exchange Commission.SEC;
6.1.8 Promptly, information regarding (ix) Promptly following any change in beneficial ownership of the Borrower that would render any statement in the existing Beneficial Ownership Certification materially untrue or inaccurate, an updated Beneficial Ownership Certification for the Borrower’s Debt Rating. Information required to be delivered pursuant to these Sections 6.1.1; and
(x) Such other information (including, 6.1.2without limitation, and 6.1.7 shall be deemed to have been delivered on financial statements for the date on which Parent or the Borrower provides notice to and non-financial information) as the Lenders that such information has been posted on the Securities and Exchange Commission website on the Internet at ▇▇▇.▇▇▇/▇▇▇▇▇/▇▇▇▇▇▇▇▇.▇▇▇, on the Borrower’s IntraLinks site at ▇▇▇▇▇▇▇▇▇▇.▇▇▇ Administrative Agent or at another website identified in such notice and accessible by the Lenders without charge; provided that (i) such notice may be included in a certificate delivered pursuant to Section 6.1.3 and such notice or certificate shall also be deemed to have been delivered upon being posted to the Borrower’s IntraLinks site or such other website and (ii) the Borrower shall deliver paper copies of the information referred to in Sections 6.1.1, 6.1.2 and 6.1.7 to any Lender which requests such deliverymay from time to time reasonably request.
Appears in 1 contract
Financial Reporting. The Borrower will maintain, for itself and each Subsidiary, a system of accounting established and administered in accordance with GAAP, and Companies agree to furnish to the Agent and the LendersCIT:
6.1.1 Within (i) within ninety (90) days after the end of each fiscal year of each Company, a Consolidated Balance Sheet and a Consolidating Balance Sheet as at the close of each such year, consolidated and consolidating statements of its fiscal yearsprofit and loss and consolidated statement of cash flow of the Companies for such year, audited by independent public accountants selected by the Companies and reasonably satisfactory to CIT, together with (x) the unqualified opinion of the accountants preparing such financial statements prepared and (y) if requested by CIT, such accountants' management practice letter;
(ii) except as provided in accordance with GAAP on Section 7.2(h)(iii), within thirty (30) days after the end of each fiscal month, (x) a consolidated basis for itself Consolidated Balance Sheet and its Subsidiaries, including balance sheets a Consolidating Balance Sheet as of at the end of such periodmonth, (y) consolidated and consolidating statements of income profit and loss and consolidated statement of cash flow of the Companies for such month and for the period commencing on the first day of the current fiscal year through the end of such month, and (z) comparative statements of profit and loss and cash flows, setting forth in comparative form figures flow of the Companies for the preceding same month and same fiscal year-to-date period in the prior fiscal year, accompanied certified by an audit report, consistent with the requirements authorized financial or accounting officer of the Securities and Exchange Commission, of a nationally recognized firm of independent public accountants Funds Administrator (or any other independent public accountants reasonably acceptable authorized officer satisfactory to the Required Lenders.CIT);
6.1.2 Within (iii) within forty-five (45) days after the close of the first three quarterly periods end of each of its fiscal yearsquarter, financial statements prepared in accordance with GAAP (other than with regard to the absence of footnotes x) a Consolidated Balance Sheet and subject to changes resulting from audit and normal year-end audit adjustments to same) on a consolidated basis for itself and its Subsidiaries, including, consolidated unaudited balance sheets Consolidating Balance Sheet as at the close of each such period and consolidated unaudited statements of income and a statement of cash flows for the period from the beginning of such fiscal year to the end of such quarter, in each case setting forth in comparative form figures (y) consolidated and consolidating statements of profit and loss and consolidated statement of cash flow of the Companies for such quarter and for the corresponding period commencing on the first day of the preceding current fiscal year through the end of such quarter, and (z) comparative statements of profit and loss and cash flow of the Companies for the same quarter and same fiscal year-to-date period in the prior fiscal year, and accompanied certified by a certificate an authorized financial or accounting officer of the chief Funds Administrator (or any other authorized officer satisfactory to CIT);
(iv) as and when filed by each Company, copies of all (x) financial officer or treasurer of the Borrower to the effect that reports, registration statements and other documents filed by such quarterly financial statements fairly present in all material respects the financial condition of the Borrower and its Subsidiaries and have been prepared in accordance with GAAP (other than with regard to the absence of footnotes and subject to changes resulting from audit and normal year-end audit adjustments to same).
6.1.3 Together Company with the financial statements required under Sections 6.1.1 U.S. Securities and 6.1.2Exchange Commission, (i) a compliance certificate in substantially the form of Exhibit B signed as and when filed by an Authorized Officer (a) showing the calculations necessary to determine compliance with Section 6.16such Company, (b) stating that no Default or Unmatured Default exists, or if any Default or Unmatured Default exists, stating the nature and status thereof and (c) updating Schedule 1 with respect to its Subsidiaries, Material Subsidiaries and Excluded Subsidiaries, if appropriate and (ii) such financial information as reasonable requested by annual reports filed pursuant to ERISA in connection with each benefit plan of each Company subject to ERISA; and
(v) no later than the Agent, including, but not limited to consolidating financial statements, as is necessary to account for Excluded Indebtedness and Excluded EBITDA for purposes of determining the Consolidated Leverage Ratio.
6.1.4 If requested, within 270 days after the close first Business Day of each fiscal year of the BorrowerCompanies, a copy monthly projections of the actuarial report showing the Unfunded Liabilities Companies' Consolidated Balance Sheet and Consolidating Balance Sheet, and consolidated and consolidating statements of each Single Employer Plan as profits and loss and quarterly projections of consolidated statement of cash flow of the valuation date occurring in Companies, as well as monthly projected Net Availability for the Companies for such fiscal year, certified . Each financial statement which the Companies are required to submit pursuant to clauses (i) and (ii) above must be accompanied by an actuary enrolled under ERISA.
6.1.5 As soon as possible and officer's certificate substantially in any event within ten (10) days after an Authorized Officer knows that any Reportable Event has occurred with respect to any Plan that could reasonably be expected to have a Material Adverse Effect, a statementthe form set forth on Exhibit A attached hereto, signed by an Authorized Officer, describing said Reportable Event and the action which the Borrower proposes to take with respect thereto.
6.1.6 From time to time such additional information regarding the authorized financial position or business accounting officer of the Borrower and its Subsidiaries as the Agent, at the request of any Lender, may reasonably request, including the support for any pro forma calculations hereunder.
6.1.7 Promptly, upon the filing thereof, copies of all registration statements (other than any registration statement on Form S-8 and any registration statement in connection with a dividend reinvestment plan, shareholder purchase plan or employee benefit plan) and reports on form 10-K, 10-Q or 8-K Funds Administrator (or any other authorized officer satisfactory to CIT). In addition, should the Companies modify their equivalents) which the Borrower or any of its Subsidiaries files with the Securities accounting principles and Exchange Commission.
6.1.8 Promptly, information regarding any change procedures from those in the Borrower’s Debt Rating. Information required to be delivered pursuant to these Sections 6.1.1, 6.1.2, and 6.1.7 shall be deemed to have been delivered effect on the date on which Closing Date, the Borrower provides notice Companies agree to the Lenders that such information has been posted on the Securities prepare and Exchange Commission website on the Internet at ▇▇▇deliver to CIT statements of reconciliation in form and substance reasonably satisfactory to CIT.▇▇▇/▇▇▇▇▇/▇▇▇▇▇▇▇▇.▇▇▇, on the Borrower’s IntraLinks site at ▇▇▇▇▇▇▇▇▇▇.▇▇▇ or at another website identified in such notice and accessible by the Lenders without charge; provided that (i) such notice may be included in a certificate delivered pursuant to Section 6.1.3 and such notice or certificate shall also be deemed to have been delivered upon being posted to the Borrower’s IntraLinks site or such other website and (ii) the Borrower shall deliver paper copies of the information referred to in Sections 6.1.1, 6.1.2 and 6.1.7 to any Lender which requests such delivery.
Appears in 1 contract
Financial Reporting. The Borrower will maintain, for itself and each Subsidiary, a system of accounting established and administered in accordance with GAAP, and shall furnish to the Agent and the Lenders:
6.1.1 Within (a) (i) within fifteen (15) days of the filing of Borrower’s Form 10-K with the SEC, if applicable, but in any event not later than ninety (90) days after the close end of each calendar year, the audited consolidated balance sheet of its fiscal years, financial statements prepared in accordance with GAAP on a consolidated basis for itself Borrower and its Subsidiaries, including balance sheets as of Subsidiaries at the end of such periodyear, and the related audited consolidated statements of income income, changes in capital and statements of cash flowsflows for such year, setting forth in comparative form the figures for the preceding previous fiscal yearyear and all such statements to be in reasonable detail, prepared in accordance with GAAP, together with a certification by the chief financial officer or chief accounting officer of Borrower, on its behalf, that the information contained in such financial statements fairly presents the financial position of Borrower and its Subsidiaries, and accompanied by an audit report, consistent with auditor’s report prepared without qualification as to the requirements scope of the Securities and Exchange Commission, of audit by a nationally recognized firm accounting firm, and (ii) within a reasonable period of independent public accountants or time following request therefor, any other independent public accountants information the Lenders may reasonably acceptable request to complete a financial analysis of Borrower and its Subsidiaries;
(b) within fifteen (15) days of the Required Lenders.
6.1.2 Within filing of Borrower’s Form 10-Q with the SEC, if applicable, but in any event not later than forty-five (45) days after the close end of each of the first three quarterly periods calendar quarters of each year (except with respect to the quarter covered by the Borrower’s first Form 10-Q filed with the SEC following an IPO Event, in which case not later than the last date on which such Form 10-Q is due under applicable SEC rules and regulations), copies of the unaudited consolidated balance sheet of Borrower and its Subsidiaries, at the end of such quarter, and the related unaudited consolidated statements of income and cash flows for the portion of Borrower’s fiscal yearsyear then elapsed, financial statements all in reasonable detail and prepared in accordance with GAAP (other than with regard to the absence of provided that such statements need not include footnotes and subject to changes resulting from audit and normal year-end audit adjustments to same) on other presentation items), together with a consolidated basis for itself and its Subsidiaries, including, consolidated unaudited balance sheets as at the close of each such period and consolidated unaudited statements of income and a statement of cash flows for the period from the beginning of such fiscal year to the end of such quarter, in each case setting forth in comparative form figures for the corresponding period of the preceding fiscal year, and accompanied certification by a certificate of the chief financial officer or treasurer chief accounting officer of Borrower, on its behalf, that the information contained in such financial statements fairly presents the financial position of Borrower and its Subsidiaries on the date thereof (subject to year-end adjustments);
(c) simultaneously with the delivery of the financial statements referred to in subsections (a) and (b) above, a statement (a “Compliance Certificate”) certified by the chief financial officer or chief accounting officer of Borrower, on its behalf, in the form of Exhibit F hereto (or in such other form as the Agent may approve from time to time) setting forth in reasonable detail computations evidencing compliance or non-compliance (as the case may be) with the covenants contained in §8.1 and the other covenants described in such certificate and (if applicable) setting forth reconciliations to reflect material changes in GAAP effective since the Balance Sheet Date. The Compliance Certificate shall be accompanied by copies of the statement of Funds from Operations and Operating Cash Flow for such calendar quarter, prepared on a basis consistent with the statements furnished to the Agent prior to the date hereof and otherwise in form and substance reasonably satisfactory to the Agent, and a listing of the Appraised Values of not less than seventy percent (70%) by value of the Real Estate included in the calculation of Consolidated Total Adjusted Asset Value, together with a certification by the chief financial officer, chief accounting officer or applicable Executive Vice President of Borrower included within clause (e) of the definition of Change of Control, on its behalf, that the information contained in such statement fairly presents the Funds from Operations and Operating Cash Flow for such periods and such Appraised Values. In addition, the Compliance Certificate shall be accompanied by the stratification table report prepared by Borrower grouping its properties and loans by geographic region and concept in substantially the form attached hereto as Exhibit H-1;
(d) simultaneously with the delivery of the financial statements referred to in subsections (a) and (b) above, an Unencumbered Pool Certificate in the form of Exhibit E attached hereto (an “Unencumbered Pool Certificate”) pursuant to which the Borrower shall calculate the amount of the Unencumbered Pool Appraised Value Limit and the Unencumbered Pool Availability as of the end of the immediately preceding calendar quarter;
(e) simultaneously with the delivery of the financial statements referred to in subsection (a) above, the statement of all contingent liabilities involving amounts of $5,000,000.00 or more of the Borrower, the Guarantors and their respective Subsidiaries which are not reflected in such financial statements or referred to in the notes thereto (including, without limitation, all guaranties, endorsements and other contingent obligations in respect of the indebtedness of others, and obligations to reimburse the issuer in respect of any letters of credit);
(f) simultaneously with the delivery of the financial statements referred to in subsections (a) and (b) above, (i) the Unencumbered Pool Asset Schedule, which shall show the calculation of the covenant in §7.20(a)(xix), and (ii) the Unit-Level FCCR or Master Lease FCCR of each Unencumbered Pool Property together with a certification by the chief financial officer, the chief accounting officer or the applicable Executive Vice President of the Borrower included within clause (e) of the definition of Change of Control, on its behalf, that the Borrower, subject to §8.1(e)(iv), has received the applicable financial statements from the Tenants sufficient to permit the calculation of Unit-Level FCCR and Master Lease FCCR, as applicable, and that the calculation of the Unit-Level FCCR or Master Lease FCCR of each Unencumbered Pool Property is true and correct based on statements provided by the Tenant of such Unencumbered Pool Property;
(g) simultaneously with the delivery of the financial statements referred to in subsections (a) and (b) above, a statement listing the Real Estate owned by the Borrower, the Guarantors and their respective Subsidiaries (or in which the Borrower, the Guarantors or any of their respective Subsidiaries owns an interest) and stating the location (city and state) thereof, and the acquisition cost and the Appraised Value if an Appraisal is available or required under this Agreement;
(h) if a schedule of the information described in this subsection (h) reasonably acceptable to the effect that such quarterly Agent is not included in the financial statements fairly present referred to in all material respects subsections (a) and (b) above, then simultaneously with the delivery of the financial condition statements referred to in subsections (a) and (b) above, a statement listing the Indebtedness of the Borrower, the Guarantors and their respective Subsidiaries (excluding Indebtedness of the type described in §8.2(b)-(e)), which statement shall include, without limitation, a statement of the original principal amount of such Indebtedness and the current amount outstanding, the original lender, the maturity date and any extension options, the interest rate, the collateral provided for such Indebtedness and whether such Indebtedness is Recourse Indebtedness or Non-Recourse Indebtedness;
(i) simultaneously with the delivery of the financial statements referred to in subsections (a) and (b) above, quarterly portfolio performance data with respect to the Unencumbered Pool Assets and associated collateral, including, without limitation, outstanding principal balances, any outstanding delinquencies or defaults, amounts remaining to be funded with respect to Future Advance Properties and the estimated date of the completion, and Prepayments in whole or Prepayments in part;
(j) promptly following Agent’s request, after they are filed with the Internal Revenue Service, copies of all annual federal income tax returns and amendments thereto of the Borrower and its Subsidiaries and have been prepared in accordance with GAAP the Guarantors;
(other than with regard to the absence of footnotes and subject to changes resulting from audit and normal year-end audit adjustments to same).
6.1.3 Together with the financial statements required under Sections 6.1.1 and 6.1.2, (ik) a compliance certificate in substantially the form of Exhibit B signed by an Authorized Officer (a) showing the calculations necessary to determine compliance with Section 6.16, (b) stating that no Default or Unmatured Default exists, or if any Default or Unmatured Default exists, stating the nature and status thereof and (c) updating Schedule 1 with respect to its Subsidiaries, Material Subsidiaries and Excluded Subsidiaries, if appropriate and (ii) such financial information as reasonable requested by the Agent, including, but not limited to consolidating financial statements, as is necessary to account for Excluded Indebtedness and Excluded EBITDA for purposes of determining the Consolidated Leverage Ratio.
6.1.4 If requested, within 270 days after the close of each fiscal year of the Borrower, a copy of the actuarial report showing the Unfunded Liabilities of each Single Employer Plan as of the valuation date occurring in such fiscal year, certified by an actuary enrolled under ERISA.
6.1.5 As soon as possible and in any event within ten (10) days after an Authorized Officer knows that any Reportable Event has occurred with respect to any Plan that could reasonably be expected to have a Material Adverse Effect, a statement, signed by an Authorized Officer, describing said Reportable Event and the action which the Borrower proposes to take with respect thereto.
6.1.6 From time to time such additional information regarding the financial position or business of the Borrower and its Subsidiaries as the Agent, at the request of any Lender, may reasonably request, including the support for any pro forma calculations hereunder.
6.1.7 Promptly, promptly upon the filing thereofhereof, copies of all any registration statements (other than the exhibits thereto and any registration statement statements on Form S-8 or its equivalent) and any registration statement in connection with a dividend reinvestment planannual, shareholder purchase plan quarterly or employee benefit plan) monthly reports and other statements and reports on form 10-Kwhich the Borrower shall file with the SEC, 10-Q if any;
(l) notice of any audits pending or 8-K threatened in writing where the amount involved exceeds $1,000,000 with respect to any tax returns filed by the Borrower or the Guarantors promptly following notice of such audit;
(m) promptly upon receipt thereof, copies of any and all notices of default under any loan document securing or their equivalents) which evidencing a mortgage loan made to the Borrower or any of its Subsidiaries files secured by a Lien on Real Estate, if such mortgage loan (i) constitutes Recourse Indebtedness, (ii) constitutes Indebtedness and individually or in the aggregate has an outstanding principal balance in excess of $5,000,000.00, or (iii) has been accelerated;
(n) within five (5) Business Days of receipt, copies of any written claim made with respect to any Non-Recourse Exclusion; and
(o) from time to time such other financial data and information in the possession of the Borrower, the Guarantors or any of their respective Subsidiaries (including without limitation auditors’ management letters, status of litigation or investigations against the Borrower, any Guarantor or any of their respective Subsidiaries and any settlement discussions relating thereto (to the extent that disclosure of any such letters, litigation or investigation status or settlement discussions would not waive any applicable privilege), property inspection and environmental reports and information as to zoning and other legal and regulatory changes affecting the Borrower, any Guarantor or any of their respective Subsidiaries) as the Agent, or a Lender through the Agent, may reasonably request. The Borrower shall cooperate with the Securities and Exchange Commission.
6.1.8 Promptly, Agent in connection with the publication of certain materials and/or information regarding any change in provided by or on behalf of the Borrower’s Debt Rating. Information Documents required to be delivered pursuant to these Sections 6.1.1the Loan Documents shall be delivered by or on behalf of the Borrower to the Agent and the Lenders (collectively, 6.1.2“Information Materials”) pursuant to this Article and the Borrower shall designate Information Materials (a) that are either available to the public or not material with respect to the Borrower and its Subsidiaries or any of their respective securities for purposes of United States federal and state securities laws, as “Public Information” and (b) that are not Public Information as “Private Information.” Any material to be delivered pursuant to this §7.1 may be delivered electronically directly to Agent and the Lenders provided that such material is in a format reasonably acceptable to Agent, and 6.1.7 such material shall be deemed to have been delivered on the date on which the Borrower provides notice to Agent and the Lenders that such information has been posted on upon Agent’s receipt thereof. Upon the Securities and Exchange Commission website on the Internet at ▇▇▇.▇▇▇/▇▇▇▇▇/▇▇▇▇▇▇▇▇.▇▇▇request of Agent, on the Borrower’s IntraLinks site at ▇▇▇▇▇▇▇▇▇▇.▇▇▇ or at another website identified in such notice and accessible by the Lenders without charge; provided that (i) such notice may be included in a certificate delivered pursuant to Section 6.1.3 and such notice or certificate shall also be deemed to have been delivered upon being posted to the Borrower’s IntraLinks site or such other website and (ii) the Borrower shall deliver paper copies thereof to Agent and the Lenders. The Borrower and the Guarantors authorize Agent and Arrangers to disseminate any such materials, including without limitation the Information Materials through the use of Intralinks, SyndTrak or any other electronic information dissemination system, and the Borrower and the Guarantors release Agent, the Arrangers and the Lenders from any liability in connection therewith. Certain of the Lenders (each, a “Public Lender”) may have personnel who do not wish to receive material non-public information referred with respect to the Borrower, its Subsidiaries or its Affiliates, or the respective securities of any of the foregoing, and who may be engaged in Sections 6.1.1investment and other market related activities with respect to such Persons’ securities. The Borrower hereby agrees that it will identify that portion of the Information Materials that may be distributed to the Public Lenders and that (i) all such Information Materials shall be clearly and conspicuously marked “PUBLIC” which, 6.1.2 at a minimum, shall mean that the word “PUBLIC” shall appear prominently on the first page thereof; (ii) by marking Information Materials “PUBLIC,” the Borrower shall be deemed to have authorized the Agent, the Lenders and 6.1.7 the Arrangers to treat such Information Materials as not containing any Lender which requests material non-public information with respect to the Borrower, its Subsidiaries, its Affiliates or their respective securities for purposes of United States Federal and state securities laws (provided, however, that to the extent such deliveryInformation Materials constitute confidential information, they shall be treated as provided in §14.18); (iii) all Information Materials marked “PUBLIC” are permitted to be made available through a portion of any electronic dissemination system designated “Public Investor” or a similar designation; and (iv) the Agent and the Arrangers shall be entitled to treat any Information Materials that are not marked “PUBLIC” as being suitable only for posting on a portion of any electronic dissemination system not designated “Public Investor” or a similar designation.
Appears in 1 contract
Financial Reporting. . The Borrower will maintain, for itself and each Subsidiary, a system of accounting established and administered in accordance with GAAPgenerally accepted accounting principles, and furnish to the Agent and the Lenders:
6.1.1 (i) Within ninety (90) days after the close of each of its fiscal years, financial statements to the extent prepared to comply with SEC requirements, a copy of the Borrower’s report on SEC Form 10-K filed with the SEC for such fiscal year, or, if no such Form 10-K was filed by the Borrower, an unqualified (except for qualifications relating to changes in accounting principles or practices reflecting changes in generally accepted accounting principles and required or approved by the Borrower’s independent certified public accountants) audit report certified by independent certified public accountants acceptable to the Required Lenders, prepared in accordance with GAAP Agreement Accounting Principles on a consolidated basis for itself and its Subsidiaries, including balance sheets as of the end of such period, statements related profit and loss and reconciliation of income surplus statements, and statements a statement of cash flows, setting forth in comparative form figures for the preceding fiscal year, accompanied by an audit report, consistent with the requirements of the Securities and Exchange Commission, of a nationally recognized firm of independent public accountants or other independent public accountants reasonably acceptable to the Required Lenders.
6.1.2 (ii) Within forty-five (45) days after the close of the first three quarterly periods of each of its fiscal years, financial statements prepared in accordance with GAAP (other than with regard to the absence of footnotes and subject to changes resulting from audit and normal year-end audit adjustments to same) on a consolidated basis for itself and its Subsidiaries, includingto the extent prepared to comply with SEC requirements, a copy of the Borrower’s report on SEC Form 10-Q filed with the SEC for such fiscal quarter, or, if no such Form 10-Q was filed by the Borrower, consolidated unaudited balance sheets as at the close of each such period and consolidated unaudited profit and loss and reconciliation of surplus statements of income and a statement of cash flows for the period from the beginning of such fiscal year to the end of such quarter, all certified by its chief financial officer.
(iii) As soon as available, but in any event within ninety (90) days after the beginning of each case setting forth in comparative form figures for the corresponding period fiscal year of the preceding fiscal yearBorrower, and accompanied by a certificate copy of the chief financial officer or treasurer of the Borrower to the effect that such quarterly financial statements fairly present in all material respects the financial condition plan and forecast (including a projected consolidated balance sheet, income statement and funds flow statement) of the Borrower and its Subsidiaries and have been prepared in accordance with GAAP (other than with regard to the absence of footnotes and subject to changes resulting from audit and normal for such fiscal year-end audit adjustments to same).
6.1.3 Together with (iv) Within ten (10) days after the delivery of the Financial Statements required under Section 6.1(i) and within fifteen (15) days after the delivery of the financial statements required under Sections 6.1.1 and 6.1.2Section 6.1(ii), (i) a compliance certificate in substantially the form of Exhibit B A signed by an Authorized its Chief Financial Officer (a) or Treasurer showing the calculations necessary to determine compliance with Section 6.16, (b) this Agreement and stating that no Default or Unmatured Default exists, or if any Default or Unmatured Default exists, stating the nature and status thereof and (c) updating Schedule 1 with respect to its Subsidiaries, Material Subsidiaries and Excluded Subsidiaries, if appropriate and (ii) such financial information as reasonable requested by the Agent, including, but not limited to consolidating financial statements, as is necessary to account for Excluded Indebtedness and Excluded EBITDA for purposes of determining the Consolidated Leverage Ratiothereof.
6.1.4 If requested, within (v) Within 270 days after the close of each fiscal year of the Borroweryear, a copy statement of the actuarial report showing the Unfunded Liabilities of each Single Employer Plan as of the valuation date occurring in such fiscal yearPlan, certified as correct by an actuary enrolled under ERISA.
6.1.5 (vi) As soon as possible and in any event within ten thirty (1030) days after an Authorized Officer the Borrower knows that any Reportable Event has occurred with respect to any Plan that could reasonably be expected to have a Material Adverse EffectEffect has occurred with respect to any Plan, a statement, signed by an Authorized Officerthe chief financial officer of the Borrower, describing said Reportable Event and the action which the Borrower proposes to take with respect thereto.
6.1.6 From time (vii) As soon as possible and in any event within twenty (20) days after receipt by the Borrower, a copy of (a) any notice or claim to time such additional information regarding the financial position effect that the Borrower or business any of its Subsidiaries is or may be liable to any Person as a result of the Borrower and release by the Borrower, any of its Subsidiaries as the AgentSubsidiaries, at the request or any other Person of any Lendertoxic or hazardous waste or substance into the environment, may and (b) any notice alleging any violation of any federal, state or local environmental, health or safety law or regulation by the Borrower or any of its Subsidiaries, which, in either case, could reasonably request, including the support for any pro forma calculations hereunderbe expected to have a Material Adverse Effect.
6.1.7 Promptly(viii) Promptly upon the furnishing thereof to the shareholders of the Borrower, copies of all financial statements, reports and proxy statements so furnished.
(ix) Promptly upon the filing thereof, copies of all registration statements (and annual, quarterly, monthly or other than any registration statement on Form S-8 and any registration statement in connection with a dividend reinvestment plan, shareholder purchase plan or employee benefit plan) and regular reports on form 10-K, 10-Q or 8-K (or their equivalents) which the Borrower or any of its Subsidiaries files with the Securities and Exchange Commission.
6.1.8 Promptly, (x) Such other information regarding (including non-financial information) as the Agent or any change Lender may from time to time reasonably request.
(A) Within five (5) Business Days after each purchase by the Borrower or any of its Subsidiaries of Margin Stock in the Borrower’s Debt Ratingamount of $1,000,000 or more and (B) together with each delivery of a compliance certificate pursuant to Section 6.1(iv), a current list of all Margin Stock (and its current value) held by the Borrower or any of its Subsidiaries. Information required to be delivered pursuant to these Sections 6.1.1clauses (i), 6.1.2(ii), and 6.1.7 (viii) of this Section 6.1 (to the extent any such documents are included in materials otherwise filed with the SEC) shall be deemed to have been delivered on the date (a) on which the Borrower provides notice to the Lenders that such information has been posted on the Securities and Exchange Commission Borrower’s Internet website at the website address listed on the Internet at ▇▇▇.▇▇▇/▇▇▇▇▇/▇▇▇▇▇▇▇▇.▇▇▇, on the Borrower’s IntraLinks site at ▇▇▇▇▇▇▇▇▇▇.▇▇▇ signature page hereof or at another website identified in such notice and accessible by to the Lenders without charge; provided that or (ib) on which such notice may be included in a certificate delivered pursuant to Section 6.1.3 and such notice or certificate shall also be deemed to have been delivered upon being documents are posted to on the Borrower’s IntraLinks site behalf on an Internet or such other intranet website, if any, to which each Lender and the Agent have access (whether a commercial, third-party website and or whether sponsored by the Agent); provided that: (iix) the Borrower shall deliver paper copies of the such information referred to in Sections 6.1.1, 6.1.2 and 6.1.7 to any Lender which that requests such deliverydelivery and (y) the Borrower shall notify the Agent and each Lender (by facsimile or electronic mail) of the posting of any such documents and provide to the Agent by electronic mail electronic versions (i.e., soft copies) of such documents.
Appears in 1 contract
Financial Reporting. The Borrower will maintain, for itself and each Subsidiary, a system of accounting established and administered in accordance with GAAP, and Each Company agrees to furnish to the Agent and the Lenders:
6.1.1 Within (i) within ninety (90) days after the close of each of its fiscal years, financial statements prepared in accordance with GAAP on a consolidated basis for itself and its Subsidiaries, including balance sheets as of the end of such period, statements of income and statements of cash flows, setting forth in comparative form figures for the preceding fiscal year, accompanied by an audit report, consistent with the requirements of the Securities and Exchange Commission, of a nationally recognized firm of independent public accountants or other independent public accountants reasonably acceptable to the Required Lenders.
6.1.2 Within forty-five (45) days after the close of the first three quarterly periods of each of its fiscal years, financial statements prepared in accordance with GAAP (other than with regard to the absence of footnotes and subject to changes resulting from audit and normal year-end audit adjustments to same) on a consolidated basis for itself and its Subsidiaries, including, consolidated unaudited balance sheets as at the close of each such period and consolidated unaudited statements of income and a statement of cash flows for the period from the beginning of such fiscal year to the end of such quarter, in each case setting forth in comparative form figures for the corresponding period of the preceding fiscal year, and accompanied by a certificate of the chief financial officer or treasurer of the Borrower to the effect that such quarterly financial statements fairly present in all material respects the financial condition of the Borrower and its Subsidiaries and have been prepared in accordance with GAAP (other than with regard to the absence of footnotes and subject to changes resulting from audit and normal year-end audit adjustments to same).
6.1.3 Together with the financial statements required under Sections 6.1.1 and 6.1.2, (i) a compliance certificate in substantially the form of Exhibit B signed by an Authorized Officer (a) showing the calculations necessary to determine compliance with Section 6.16, (b) stating that no Default or Unmatured Default exists, or if any Default or Unmatured Default exists, stating the nature and status thereof and (c) updating Schedule 1 with respect to its Subsidiaries, Material Subsidiaries and Excluded Subsidiaries, if appropriate and (ii) such financial information as reasonable requested by the Agent, including, but not limited to consolidating financial statements, as is necessary to account for Excluded Indebtedness and Excluded EBITDA for purposes of determining the Consolidated Leverage Ratio.
6.1.4 If requested, within 270 days after the close of each fiscal year of the BorrowerParent, a copy Consolidated Balance Sheet and a Consolidating Balance Sheet as at the close of such year, and consolidated and consolidating statements of profit and loss and cash flow of the actuarial report showing Parent and its consolidated Subsidiaries for such year, audited by independent public accountants selected by the Unfunded Liabilities Parent and satisfactory to the Agent, together with (x) the unqualified opinion of each Single Employer Plan the accountants preparing such financial statements and (y) if requested by the Agent, such accountants' management practice letter (the Agent acknowledges that as of the valuation Closing Date, the accounting firm of Goldstein, Golub and Kessler is satisfactory to the Agent);
(▇i) wi▇▇▇▇ ▇▇irty (30) days after the end of each month, (x) a Consolidated Balance Sheet and a Consolidating Balance Sheet as at the end of such month, (y) consolidated and consolidating statements of profit and loss and cash flow of the Parent and its consolidated Subsidiaries for such month and for the period commencing on the first day of the current fiscal year through the end of such month, and (z) comparative statements of profit and loss and cash flow of the Parent and its consolidated Subsidiaries for the same month and same fiscal year-to-date occurring period in such the prior fiscal year, certified by an actuary enrolled under ERISA.
6.1.5 As soon as possible and in any event within ten (10) days after an Authorized Officer knows that any Reportable Event has occurred with respect to any Plan that could reasonably be expected to have a Material Adverse Effect, a statement, signed by an Authorized Officer, describing said Reportable Event and the action which the Borrower proposes to take with respect thereto.
6.1.6 From time to time such additional information regarding the treasurer or chief financial position or business officer of the Borrower and its Subsidiaries as Parent (or any other authorized officer satisfactory to the Agent, at );
(iii) as and when filed by the request of any Lender, may reasonably request, including the support for any pro forma calculations hereunder.
6.1.7 Promptly, upon the filing thereofParent, copies of all (x) financial reports, registration statements (and other than any registration statement on Form S-8 and any registration statement in connection with a dividend reinvestment plan, shareholder purchase plan or employee benefit plan) and reports on form 10-K, 10-Q or 8-K (or their equivalents) which documents filed by the Borrower or any of its Subsidiaries files Parent with the U.S. Securities and Exchange Commission.
6.1.8 Promptly, information regarding any change in the Borrower’s Debt Rating. Information required to be delivered pursuant to these Sections 6.1.1, 6.1.2, as and 6.1.7 shall be deemed to have been delivered on the date on which the Borrower provides notice to the Lenders that such information has been posted on the Securities and Exchange Commission website on the Internet at ▇▇▇.▇▇▇/▇▇▇▇▇/▇▇▇▇▇▇▇▇.▇▇▇, on the Borrower’s IntraLinks site at ▇▇▇▇▇▇▇▇▇▇.▇▇▇ or at another website identified in such notice and accessible when filed by the Lenders without charge; provided that (i) such notice may be included in a certificate delivered pursuant to Section 6.1.3 and such notice or certificate shall also be deemed to have been delivered upon being posted to the Borrower’s IntraLinks site or such other website Parent, and (ii) the Borrower shall deliver paper copies annual reports filed pursuant to ERISA in connection with each benefit plan of the information referred Parent subject to ERISA; and
(iv) no later than thirty (30) days prior to the beginning of each fiscal year of the Parent (other than the fiscal year beginning March 31, 2005), monthly projections of the Consolidated Balance Sheet and Consolidating Balance Sheet, and consolidated and consolidating statements of profit and loss and cash flow of the Parent and its consolidated Subsidiaries, as well as monthly projected Net Availability for each Company for such fiscal year, in Sections 6.1.1each case updated to the extent and on the terms set forth in Section 3.1(f). Each financial statement which the Companies are required to submit pursuant to clauses (i) and (ii) above must be accompanied by an officer's certificate substantially in the form set forth on Exhibit C attached hereto, 6.1.2 signed by the treasurer or chief financial officer of the Parent (or any other authorized officer satisfactory to the Agent). In addition, should the Parent modify its accounting principles and 6.1.7 procedures from those in effect on the Closing Date, each Company agrees to any Lender which requests such deliverycause the Parent to prepare and deliver to the Agent and the Lenders statements of reconciliation in form and substance reasonably satisfactory to the Agent.
Appears in 1 contract
Financial Reporting. The Borrower will maintain, for itself and each Subsidiary, a system of accounting established and administered in accordance with GAAP, and furnish to the Agent and the Lenders:
6.1.1 (i) Within ninety (90) 90 days after the close of each of its fiscal years, financial statements an unqualified (except for qualifications relating to changes in accounting GAAP or practices reflecting changes in generally accepted accounting principles and required or approved by the Borrower's independent certified public accountants) audit report certified by independent certified public accountants reasonably acceptable to the Lenders, prepared in accordance with GAAP on a consolidated and consolidating basis (consolidating statements need not be certified by such accountants and shall be in a form reasonably satisfactory to the Administrative Agent) for itself and its Subsidiaries, including balance sheets as of the end of such period, statements related profit and loss and reconciliation of income surplus statements, and statements a statement of cash flows, setting forth in comparative form figures for the preceding fiscal year, accompanied by an audit report, consistent with the requirements of the Securities and Exchange Commission, of a nationally recognized firm of independent public accountants or other independent public accountants reasonably acceptable to the Required Lendersany management letter prepared by said accountants.
6.1.2 (ii) Within forty-five (45) 45 days after the close of the first three quarterly periods of each of its fiscal years, financial statements prepared in accordance with GAAP (other than with regard to the absence of footnotes and subject to changes resulting from audit and normal year-end audit adjustments to same) on a consolidated basis for itself and its Subsidiaries, including, consolidated and consolidating unaudited balance sheets as at the close of each such period and consolidated unaudited and consolidating profit and loss and reconciliation of surplus statements of income and a statement of cash flows for the period from the beginning of such fiscal year to the end of such quarter, all certified by its chief financial officer.
(iii) As soon as available, but in any event within 30 days after the beginning of each case setting forth in comparative form figures for the corresponding period fiscal year of the preceding fiscal yearBorrower, and accompanied by a certificate copy of the chief financial officer or treasurer of the Borrower to the effect that such quarterly financial statements fairly present in all material respects the financial condition plan and forecast (including a projected consolidated and consolidating balance sheet, income statement and funds flow statement) of the Borrower and its Subsidiaries for such fiscal year; provided, however, that the preceding plan and have been prepared forecast shall be required to be delivered only if, as of September 30 of the year immediately preceding the year in accordance with GAAP (other which such plan and forecast would otherwise be required to be delivered, the Leverage Ratio is greater than with regard 2.00 to the absence of footnotes and subject to changes resulting from audit and normal year-end audit adjustments to same)1.0.
6.1.3 (iv) Together with the financial statements required under Sections 6.1.1 6.1(i) and 6.1.2(ii), (i) a compliance certificate in substantially the form of Exhibit B signed by an Authorized Officer (a) its chief financial officer showing the calculations necessary to determine compliance with Section 6.16, (b) this Agreement and stating that no Default or Unmatured Default exists, or if any Default or Unmatured Default exists, stating the nature and status thereof and (c) updating Schedule 1 with respect to its Subsidiaries, Material Subsidiaries and Excluded Subsidiaries, if appropriate and (ii) such financial information as reasonable requested by the Agent, including, but not limited to consolidating financial statements, as is necessary to account for Excluded Indebtedness and Excluded EBITDA for purposes of determining the Consolidated Leverage Ratiothereof.
6.1.4 If requested, within 270 days after the close of each fiscal year of the Borrower, a copy of the actuarial report showing the Unfunded Liabilities of each Single Employer Plan as of the valuation date occurring in such fiscal year, certified by an actuary enrolled under ERISA.
6.1.5 (v) As soon as possible and in any event within ten (10) days 10 Business Days after an Authorized Officer the Borrower knows that any Reportable Event has occurred with respect to any Plan that could reasonably be expected to have a Material Adverse EffectSingle Employer Plan, a statement, signed by an Authorized Officerthe chief financial officer of the Borrower, describing said Reportable Event and the action which the Borrower proposes to take with respect thereto.
6.1.6 From time (vi) As soon as possible and in any event within 10 days after receipt by the Borrower, a copy of (a) any written notice or written claim to time such additional information regarding the financial position effect that the Borrower or business any of its Subsidiaries is or may be liable to any Person as a result of the Borrower and release by the Borrower, any of its Subsidiaries as the AgentSubsidiaries, at the request or any other Person of any Lendertoxic or hazardous waste or substance into the environment, may and (b) any written notice alleging any violation of any federal, state or local environmental, health or safety law or regulation by the Borrower or any of its Subsidiaries, which, in either case, could reasonably request, including the support for any pro forma calculations hereunderbe expected to have a Material Adverse Effect.
6.1.7 Promptly(vii) Promptly upon the furnishing thereof to the shareholders of the Borrower, copies of all financial statements, reports and proxy statements so furnished.
(viii) Promptly upon the filing thereof, copies notice of the filing to the Administrative Agent of all registration statements (other than any registration statement on Form S-8 and any registration statement in connection with a dividend reinvestment plan, shareholder purchase plan or employee benefit plan) periodic and current reports on form forms 10-K, 10-Q or and 8-K (or their equivalents) which the Borrower or any of its Subsidiaries files with the Securities and Exchange Commission.
6.1.8 Promptly, (ix) Such other information regarding (including non-financial information) as the Administrative Agent or any change in the Borrower’s Debt RatingLender may from time to time reasonably request. Information If any information which is required to be delivered pursuant to these Sections 6.1.1, 6.1.2, and 6.1.7 shall be deemed to have been delivered on the date on which the Borrower provides notice furnished to the Lenders that such information has been posted on the Securities and Exchange Commission website on the Internet at ▇▇▇.▇▇▇/▇▇▇▇▇/▇▇▇▇▇▇▇▇.▇▇▇, on the Borrower’s IntraLinks site at ▇▇▇▇▇▇▇▇▇▇.▇▇▇ under this Section 6.1 is required by law or at another website identified in such notice and accessible regulation to be filed by the Lenders without charge; provided that (i) such notice may be included in Borrower with a certificate delivered pursuant to Section 6.1.3 and such notice or certificate shall also be deemed to have been delivered upon being posted government body on an earlier date, then the information required hereunder shall, to the Borrower’s IntraLinks site or extent reasonably practicable under the circumstances, be furnished to the Lenders at such other website and (ii) the Borrower shall deliver paper copies of the information referred to in Sections 6.1.1, 6.1.2 and 6.1.7 to any Lender which requests such deliveryearlier date.
Appears in 1 contract
Sources: Credit Agreement (Viad Corp)
Financial Reporting. The Borrower will maintain, for itself and each Subsidiary, a system of accounting established and administered in accordance with GAAPthe Agreement Accounting Principles, and furnish to the Administrative Agent and in sufficient copies for each of the Lenders:
6.1.1 (i) Within ninety one hundred twenty (90120) days after the close of each of its fiscal yearsyears (or, financial statements if earlier, within thirty (30) days after the Borrower is required to file its Annual Report on Form 10-K with the Securities and Exchange Commission for such fiscal year), an unqualified (except for qualifications relating to changes in Agreement Accounting Principles or practices reflecting changes in Agreement Accounting Principles and required or approved by the Borrower’s independent registered public accountants) audit report certified by independent registered public accountants reasonably acceptable to the Lenders, prepared in accordance with GAAP the Agreement Accounting Principles on a consolidated and consolidating basis (consolidating statements need not be certified by such accountants) for itself and its Subsidiaries, including balance sheets as of the end of such period, statements related profit and loss and reconciliation of income surplus statements, and statements a statement of cash flows, setting forth in comparative form figures for . Delivery by the preceding fiscal year, accompanied by an audit report, consistent Borrower to the Administrative Agent of copies of the Borrower’s Annual Report on Form 10-K filed with the requirements of the Securities and Exchange Commission, of a nationally recognized firm of independent public accountants or other independent public accountants reasonably acceptable Commission for any year shall satisfy the Borrower’s obligation under this clause (i) with respect to the Required Lenderssuch year.
6.1.2 (ii) Within forty-five sixty (4560) days after the close of the first three quarterly periods of each of its fiscal yearsyears (or, financial statements prepared in accordance if earlier, within fifteen (15) days after the Borrower is required to file its Quarterly Report on Form 10-Q for with GAAP (other than with regard to the absence of footnotes Securities and subject to changes resulting from audit and normal year-end audit adjustments to same) on a consolidated basis Exchange Commission for itself and its Subsidiaries, includingsuch period), consolidated and consolidating unaudited balance sheets as at the close of each such period the first three quarterly periods of each of its fiscal years, for itself and its Subsidiaries and consolidated unaudited and consolidating profit and loss and reconciliation of surplus statements of income and a statement of cash flows for the period from the beginning of such fiscal year to the end of such quarter, in each case setting forth in comparative form figures for the corresponding period of the preceding fiscal year, and accompanied all certified by a certificate of the chief financial officer or treasurer of an Authorized Officer. Delivery by the Borrower to the effect that such quarterly financial statements fairly present in all material respects the financial condition Administrative Agent of copies of the Borrower Borrower’s Quarterly Report on Form 10-Q filed with the Securities and its Subsidiaries and have been prepared in accordance Exchange Commission for any quarter shall satisfy the Borrower’s obligation under this clause (ii) with GAAP (other than with regard respect to the absence of footnotes and subject to changes resulting from audit and normal year-end audit adjustments to same)such quarter.
6.1.3 (iii) Together with the financial statements required under Sections 6.1.1 6.1(i) and 6.1.2(ii), (iA) a compliance certificate in substantially the form of Exhibit B signed by an Authorized Officer (a) showing the calculations necessary to determine compliance with Section 6.16, (b) this Agreement and stating that no Default or Unmatured Default exists, or if any Default or Unmatured Default exists, stating the nature and status thereof and (cB) updating Schedule 1 with respect to its Subsidiaries, Material Subsidiaries and Excluded Subsidiaries, if appropriate and (iia calculation of the Indebtedness secured by Liens permitted under Section 6.11(xiii) in such financial information as reasonable requested by the Agent, including, but not limited to consolidating financial statements, form as is necessary reasonably satisfactory to account for Excluded Indebtedness and Excluded EBITDA for purposes of determining the Consolidated Leverage RatioAdministrative Agent.
6.1.4 If requested, within 270 days after the close of each fiscal year of the Borrower, a copy of the actuarial report showing the Unfunded Liabilities of each Single Employer Plan as of the valuation date occurring in such fiscal year, certified by an actuary enrolled under ERISA.
6.1.5 (iv) As soon as possible and in any event within ten (10) days after an Authorized Officer the Borrower knows that any Reportable Event has occurred with respect to any Plan that could reasonably be expected to have a Material Adverse EffectPlan, a statement, signed by an Authorized Officer, describing said Reportable Event and the action which the Borrower proposes to take with respect thereto.
6.1.6 From time (v) As soon as possible and in any event within ten (10) days after receipt by the Borrower, a copy of (a) any notice or claim to time such additional information regarding the financial position effect that the Borrower or business any of its Subsidiaries is or may be liable to any Person as a result of the release by the Borrower, any of its Subsidiaries, or any other Person of any toxic or hazardous waste or substance into the environment, and (b) any notice alleging any violation of any federal, state or local environmental, health or safety law or regulation by the Borrower or any of its Subsidiaries, which, in either case, could reasonably be expected to have a Material Adverse Effect.
(vi) Promptly upon the furnishing thereof to (a) any shareholders of the Borrower (other than the Parent) or (b) the shareholders of the Parent, copies of all financial statements and its Subsidiaries as the Agent, at the request of any Lender, may reasonably request, including the support for any pro forma calculations hereunderreports so furnished.
6.1.7 Promptly, (vii) Promptly upon the filing thereof, copies of all registration statements (and annual, quarterly, monthly or other than any registration statement on Form S-8 and any registration statement in connection with a dividend reinvestment plan, shareholder purchase plan or employee benefit plan) and regular reports on form 10-K, 10-Q or 8-K (or their equivalents) which the Borrower or any of its Subsidiaries files with the Securities and Exchange Commission.
6.1.8 Promptly, (viii) Such other information regarding (including nonfinancial information) as the Administrative Agent or any Lender may from time to time reasonably request.
(ix) Promptly after M▇▇▇▇’▇ or S&P shall have announced a change in the Borrower’s Debt Rating. Information required to be delivered pursuant to these Sections 6.1.1, 6.1.2, and 6.1.7 shall be rating established or deemed to have been delivered on established for the date on which the Borrower provides Index Debt, written notice to the Lenders that of such information has been posted on the Securities and Exchange Commission website on the Internet at ▇▇▇rating change.▇▇▇/▇▇▇▇▇/▇▇▇▇▇▇▇▇.▇▇▇, on the Borrower’s IntraLinks site at ▇▇▇▇▇▇▇▇▇▇.▇▇▇ or at another website identified in such notice and accessible by the Lenders without charge; provided that (i) such notice may be included in a certificate delivered pursuant to Section 6.1.3 and such notice or certificate shall also be deemed to have been delivered upon being posted to the Borrower’s IntraLinks site or such other website and (ii) the Borrower shall deliver paper copies of the information referred to in Sections 6.1.1, 6.1.2 and 6.1.7 to any Lender which requests such delivery.
Appears in 1 contract
Financial Reporting. The Borrower will maintain, for itself and each Subsidiary, a system of accounting established and administered in accordance with GAAP, and shall furnish to the Agent Administrative Agent, the Facility Servicer and the Lenders:each Lender
6.1.1 Within ninety (90i) within 120 days after the close of each of its fiscal years, financial statements prepared in accordance with GAAP on a consolidated basis for itself and its Subsidiaries, including balance sheets as of the end of such period, statements of income and statements of cash flows, setting forth in comparative form figures for the preceding fiscal year, accompanied by an audit report, consistent with the requirements of the Securities and Exchange Commission, of a nationally recognized firm of independent public accountants or other independent public accountants reasonably acceptable to the Required Lenders.
6.1.2 Within forty-five (45) days after the close of the first three quarterly periods of each of its fiscal years, financial statements prepared in accordance with GAAP (other than with regard to the absence of footnotes and subject to changes resulting from audit and normal year-end audit adjustments to same) on a consolidated basis for itself and its Subsidiaries, including, consolidated unaudited balance sheets as at the close of each such period and consolidated unaudited statements of income and a statement of cash flows for the period from the beginning of such fiscal year to the end of such quarter, in each case setting forth in comparative form figures for the corresponding period of the preceding fiscal year, and accompanied by a certificate of the chief financial officer or treasurer of the Borrower to the effect that such quarterly financial statements fairly present in all material respects the financial condition of the Borrower and its Subsidiaries and have been prepared in accordance with GAAP (other than with regard to the absence of footnotes and subject to changes resulting from audit and normal year-end audit adjustments to same).
6.1.3 Together with the financial statements required under Sections 6.1.1 and 6.1.2, (i) a compliance certificate in substantially the form of Exhibit B signed by an Authorized Officer (a) showing the calculations necessary to determine compliance with Section 6.16, (b) stating that no Default or Unmatured Default exists, or if any Default or Unmatured Default exists, stating the nature and status thereof and (c) updating Schedule 1 with respect to its Subsidiaries, Material Subsidiaries and Excluded Subsidiaries, if appropriate and (ii) such financial information as reasonable requested by the Agent, including, but not limited to consolidating financial statements, as is necessary to account for Excluded Indebtedness and Excluded EBITDA for purposes of determining the Consolidated Leverage Ratio.
6.1.4 If requested, within 270 days after the close of each fiscal year of the Borrower, a copy commencing with the fiscal year ended December 31, 2020, audited consolidated statements of the actuarial report showing the Unfunded Liabilities Borrower of each Single Employer Plan assets, liabilities and capital, and audited balance sheet, consolidated statements of operations and cash flow, audited by a firm of nationally recognized independent public accountants, as of the valuation date occurring in end of such fiscal year;
(ii) within 45 days after the end of each fiscal quarter (A) an unaudited financial report of the Borrower containing a balance sheet, certified consolidated statement of assets, liabilities and capital, and a consolidated statement of operations for the most recent fiscal quarter, (B) a Quarterly LTV Certificate, including the report of an independent third party as agreed to by the Majority Lenders, delivered to the Borrower for such fiscal quarter, (C) a report by an actuary enrolled under ERISA.independent third party reasonably acceptable to the Majority Lenders setting forth the Value of the Eligible Portfolio Assets and Specified CLO Assets as of the end of such fiscal quarter and (D) a calculation of the Debt Service Coverage Ratio for such fiscal quarter, including a breakdown of NOI and outstanding principal balance for each Eligible Portfolio Asset that is a First Lien Senior Secured Portfolio Asset as of the end of such quarter;
6.1.5 As soon as possible and in any event (iii) within ten (10) 120 days after an Authorized Officer knows that any Reportable Event has occurred the end of each fiscal year of the Sponsor, commencing with respect the fiscal year ended December 31, 2020, audited consolidated statements of the Sponsor of assets, liabilities and capital, and audited balance sheet, consolidated statements of operations and cash flow, audited by a firm of nationally recognized independent public accountants, as of the end of such fiscal year; and
(iv) no later than three Business Days prior to any Plan that could reasonably be expected to have a Material Adverse Effect, a statement, signed by an Authorized Officer, describing said Reportable Event and the action Reporting Date for which the Borrower proposes is requesting a distribution pursuant to take with respect thereto.
6.1.6 From time to time such additional information regarding the financial position or business Section 2.08(a)(vi), a statement of the Borrower amounts to be so distributed , which amounts shall not exceed the amount necessary for the Sponsor to maintain its status as a real estate investment trust for federal income tax purposes and to avoid income and excise tax under Section 857 and 4981 of the Code (after giving effect to any other available funds of the Sponsor and its Subsidiaries as the Agent, at the request of any Lender, may reasonably request, including the support for any pro forma calculations hereunder.
6.1.7 Promptly, upon the filing thereof, copies of all registration statements (other than any registration statement on Form S-8 and any registration statement in connection with a dividend reinvestment plan, shareholder purchase plan or employee benefit plan) and reports on form 10-K, 10-Q or 8-K (or their equivalents) which the Borrower or any of its Subsidiaries files with the Securities and Exchange Commission.
6.1.8 Promptly, information regarding any change in the Borrower’s Debt RatingAffiliates). Information The documents required to be delivered pursuant to these Sections 6.1.1this Section 5.01(p) (to the extent any such documents are included in materials otherwise filed with the SEC) may be delivered electronically and, 6.1.2if so delivered, and 6.1.7 shall be deemed to have been delivered on the date on which the Borrower provides notice to the Lenders that such information has been materials are publicly available as posted on the Securities Electronic Data Gathering, Analysis and Exchange Commission website on the Internet at ▇▇▇.▇▇▇/Retrieval system (▇▇▇▇▇/▇▇▇▇▇▇▇▇.▇▇▇, on the Borrower’s IntraLinks site at ▇▇▇▇▇▇▇▇▇▇.▇▇▇ or at another website identified in such notice and accessible ); provided that: (A) upon written request by the Lenders without charge; provided that (i) such notice may be included in a certificate delivered pursuant to Section 6.1.3 and such notice or certificate shall also be deemed to have been delivered upon being posted to the Borrower’s IntraLinks site or such other website and (ii) Administrative Agent, the Borrower shall deliver paper copies of such documents to the information Administrative Agent or any Lender upon its request to the Borrower to deliver such paper copies until a written request to cease delivering paper copies is given by the Administrative Agent or such Lender and (B) the Borrower shall notify the Administrative Agent and each Lender (by telecopier or electronic mail) of the posting of any such documents and provide to the Administrative Agent by electronic mail electronic versions (i.e., soft copies) of such documents. The Administrative Agent shall have no obligation to request the delivery of or to maintain paper copies of the documents referred to above, and in Sections 6.1.1any event shall have no responsibility to monitor compliance by the Borrower with any such request by a Lender for delivery, 6.1.2 and 6.1.7 each Lender shall be solely responsible for timely accessing posted documents or requesting delivery of paper copies of such document to any Lender which requests it and maintaining its copies of such deliverydocuments.
Appears in 1 contract
Sources: Loan and Servicing Agreement (Exantas Capital Corp.)
Financial Reporting. The Borrower will maintain, for itself and each Subsidiary, a system of accounting established and administered in accordance with GAAPthe Agreement Accounting Principles, and furnish to the Administrative Agent and in sufficient copies for each of the Lenders:
6.1.1 (i) Within ninety one hundred twenty (90120) days after the close of each of its fiscal yearsyears (or, financial statements if earlier, within thirty (30) days after the Borrower is required to file its Annual Report on Form 10-K with the Securities and Exchange Commission for such fiscal year), an unqualified (except for qualifications relating to changes in Agreement Accounting Principles or practices reflecting changes in Agreement Accounting Principles and required or approved by the Borrower’s independent certified public accountants) audit report certified by independent certified public accountants reasonably acceptable to the Lenders, prepared in accordance with GAAP the Agreement Accounting Principles on a consolidated and consolidating basis (consolidating statements need not be certified by such accountants) for itself and its Subsidiaries, including balance sheets as of the end of such period, statements related profit and loss and reconciliation of income surplus statements, and statements a statement of cash flows, setting forth in comparative form figures for . Delivery by the preceding fiscal year, accompanied by an audit report, consistent Borrower to the Administrative Agent of copies of the Borrower’s Annual Report on Form 10-K filed with the requirements of the Securities and Exchange Commission, of a nationally recognized firm of independent public accountants or other independent public accountants reasonably acceptable Commission for any year shall satisfy the Borrower’s obligation under this clause (i) with respect to the Required Lenderssuch year.
6.1.2 (ii) Within forty-five sixty (4560) days after the close of the first three quarterly period of each of its fiscal years (or, if earlier, within fifteen (15) days after the Borrower is required to file its Quarterly Report on Form 10-Q for with the Securities and Exchange Commission for such period), consolidated and consolidating unaudited balance sheets as at the close of each the first three quarterly periods of each of its fiscal years, financial statements prepared in accordance with GAAP (other than with regard to the absence of footnotes and subject to changes resulting from audit and normal year-end audit adjustments to same) on a consolidated basis for itself and its Subsidiaries, including, consolidated unaudited balance sheets as at the close of each such period Subsidiaries and consolidated unaudited and consolidating profit and loss and reconciliation of surplus statements of income and a statement of cash flows for the period from the beginning of such fiscal year to the end of such quarter, in each case setting forth in comparative form figures for the corresponding period of the preceding fiscal year, and accompanied all certified by a certificate of the chief financial officer or treasurer of an Authorized Officer. Delivery by the Borrower to the effect that such quarterly financial statements fairly present in all material respects the financial condition Administrative Agent of copies of the Borrower Borrower’s Quarterly Report on Form 10-Q filed with the Securities and its Subsidiaries and have been prepared in accordance Exchange Commission for any quarter shall satisfy the Borrower’s obligation under the clause (ii) with GAAP (other than with regard respect to the absence of footnotes and subject to changes resulting from audit and normal year-end audit adjustments to same)such quarter.
6.1.3 (iii) Together with the financial statements required under Sections 6.1.1 6.1(i) and 6.1.2(ii), (iA) a compliance certificate in substantially the form of Exhibit B signed by an Authorized Officer (a) showing the calculations necessary to determine compliance with Section 6.16, (b) this Agreement and stating that no Default or Unmatured Default exists, or if any Default or Unmatured Default exists, stating the nature and status thereof and (cB) updating Schedule 1 with respect to its Subsidiaries, Material Subsidiaries and Excluded Subsidiaries, if appropriate and (iia calculation of the Indebtedness secured by Liens permitted under Section 6.11(xiii) in such financial information as reasonable requested by the Agent, including, but not limited to consolidating financial statements, form as is necessary reasonably satisfactory to account for Excluded Indebtedness and Excluded EBITDA for purposes of determining the Consolidated Leverage RatioAdministrative Agent.
6.1.4 If requested, within 270 days after the close of each fiscal year of the Borrower, a copy of the actuarial report showing the Unfunded Liabilities of each Single Employer Plan as of the valuation date occurring in such fiscal year, certified by an actuary enrolled under ERISA.
6.1.5 (iv) As soon as possible and in any event within ten (10) days after an Authorized Officer the Borrower knows that any Reportable Event has occurred with respect to any Plan that could reasonably be expected to have a Material Adverse EffectPlan, a statement, signed by an Authorized Officer, describing said Reportable Event and the action which the Borrower proposes to take with respect thereto.
6.1.6 From time (v) As soon as possible and in any event within ten (10) days after receipt by the Borrower, a copy of (a) any notice or claim to time such additional information regarding the financial position effect that the Borrower or business any of its Subsidiaries is or may be liable to any Person as a result of the Borrower and release by the Borrower, any of its Subsidiaries as the AgentSubsidiaries, at the request or any other Person of any Lendertoxic or hazardous waste or substance into the environment, may and (b) any notice alleging any violation of any federal, state or local environmental, health or safety law or regulation by the Borrower or any of its Subsidiaries, which, in either case, could reasonably request, including the support for any pro forma calculations hereunderbe expected to have a Material Adverse Effect.
6.1.7 Promptly(vi) Promptly upon the furnishing thereof to the shareholders of the Borrower, copies of all financial statements, reports and proxy statements so furnished.
(vii) Promptly upon the filing thereof, copies of all registration statements (and annual, quarterly, monthly or other than any registration statement on Form S-8 and any registration statement in connection with a dividend reinvestment plan, shareholder purchase plan or employee benefit plan) and regular reports on form 10-K, 10-Q or 8-K (or their equivalents) which the Borrower or any of its Subsidiaries files with the Securities and Exchange Commission.
6.1.8 Promptly, (viii) Such other information regarding any change in (including nonfinancial information) as the Borrower’s Debt Rating. Information required to be delivered pursuant to these Sections 6.1.1, 6.1.2, and 6.1.7 shall be deemed to have been delivered on the date on which the Borrower provides notice to the Lenders that such information has been posted on the Securities and Exchange Commission website on the Internet at ▇▇▇.▇▇▇/▇▇▇▇▇/▇▇▇▇▇▇▇▇.▇▇▇, on the Borrower’s IntraLinks site at ▇▇▇▇▇▇▇▇▇▇.▇▇▇ Administrative Agent or at another website identified in such notice and accessible by the Lenders without charge; provided that (i) such notice may be included in a certificate delivered pursuant to Section 6.1.3 and such notice or certificate shall also be deemed to have been delivered upon being posted to the Borrower’s IntraLinks site or such other website and (ii) the Borrower shall deliver paper copies of the information referred to in Sections 6.1.1, 6.1.2 and 6.1.7 to any Lender which requests such deliverymay from time to time reasonably request.
Appears in 1 contract
Sources: Credit Agreement (Idacorp Inc)
Financial Reporting. The Borrower will maintain, for itself and each Subsidiary, a system of accounting established and administered in accordance with GAAP, and furnish to the Agent and the Lenders:
6.1.1 Within ninety (90i) As soon as available, but in any event not later than 45 days after the close of each of its fiscal years, financial statements prepared in accordance with GAAP on a consolidated basis for itself and its Subsidiaries, including balance sheets as of the end of such period, statements of income and statements of cash flows, setting forth in comparative form figures for the preceding fiscal year, accompanied by an audit report, consistent with the requirements of the Securities and Exchange Commission, of a nationally recognized firm of independent public accountants or other independent public accountants reasonably acceptable to the Required Lenders.
6.1.2 Within forty-five (45) days after the close of the first three quarterly periods fiscal quarters of each of its fiscal yearsyear, financial statements prepared in accordance with GAAP (other than with regard to the absence of footnotes for Parent Guarantor, Borrower and subject to changes resulting from audit and normal year-end audit adjustments to same) on a consolidated basis for itself and its Borrower’s Subsidiaries, including, an unaudited consolidated unaudited balance sheets sheet as at of the close of each such period and the related unaudited consolidated unaudited statements of income and retained earnings and of cash flows of Parent Guarantor, Borrower and Borrower’s Subsidiaries for such period and the portion of the fiscal year through the end of such period, setting forth in each case in comparative form the figures for the previous year, all certified by an Authorized Officer;
(ii) As soon as available, but in any event not later than 45 days after the close of each fiscal quarter, for Parent Guarantor, Borrower and Borrower’s Subsidiaries, the following reports in form and substance reasonably satisfactory to the Administrative Agent, all certified by the entity’s chief financial officer or chief accounting officer: an updated rent roll and operating statement for each Borrowing Base Property and such other information on all Projects as may be reasonably requested;
(iii) As soon as available, but in any event not later than 90 days after the close of each fiscal year, for Parent Guarantor, Borrower and Borrower’s Subsidiaries audited financial statements, including a statement consolidated balance sheet as at the end of such year and the related consolidated statements of income and retained earnings and of cash flows for the period from the beginning of such fiscal year to the end of such quarteryear, setting forth in each case setting forth in comparative form the figures for the corresponding period previous year, without a “going concern” or like qualification or exception, or qualification arising out of the preceding fiscal year, and accompanied by a certificate scope of the chief financial officer or treasurer audit, prepared by independent certified public accountants of the Borrower nationally recognized standing reasonably acceptable to the effect that such quarterly financial statements fairly present in all material respects the financial condition of the Borrower and its Subsidiaries and have been prepared in accordance with GAAP Administrative Agent;
(other than with regard to the absence of footnotes and subject to changes resulting from audit and normal year-end audit adjustments to same).
6.1.3 iv) Together with the quarterly and annual financial statements required under Sections 6.1.1 and 6.1.2hereunder, (i) a compliance certificate in substantially the form of Exhibit B C hereto signed by an Authorized Officer (a) showing the calculations and computations necessary to determine compliance with Section 6.16this Agreement and stating that, (b) stating that to such officer’s knowledge, no Default or Unmatured Default exists, or if if, to such officer’s knowledge, any Default or Unmatured Default exists, stating the nature and status thereof and thereof;
(cv) updating Schedule 1 with respect to its Subsidiaries, Material Subsidiaries and Excluded Subsidiaries, if appropriate and (ii) such financial information as reasonable requested by the Agent, including, but not limited to consolidating financial statements, as is necessary to account for Excluded Indebtedness and Excluded EBITDA for purposes of determining the Consolidated Leverage Ratio.
6.1.4 If requested, within 270 days after the close of each fiscal year of the Borrower, a copy of the actuarial report showing the Unfunded Liabilities of each Single Employer Plan as of the valuation date occurring in such fiscal year, certified by an actuary enrolled under ERISA.
6.1.5 As soon as possible and in any event within ten (10) 10 days after receipt by an Authorized Officer knows of Borrower, a copy of (a) any notice or claim to the effect that Borrower or any of its Subsidiaries is or may be liable to any Person as a result of the release by Borrower, any of its Subsidiaries, or any other Person of any toxic or hazardous waste or substance into the environment, and (b) any notice alleging any violation of any federal, state or local environmental, health or safety law or regulation by Borrower or any of its Subsidiaries, which, in either case, is reasonably expected to have a Material Adverse Effect;
(vi) Promptly upon becoming aware of the same and to the extent Parent Guarantor, Borrower, or any of its Subsidiaries, are aware of the same, notice of the commencement of any proceeding or investigation by or before any Governmental Authority and any action or proceeding in any court or other tribunal or before any arbitrator against or in any other way relating adversely to, or adversely affecting, Parent Guarantor, Borrower, any of its Subsidiaries or any of their respective properties, assets or businesses which involve claims individually or in the aggregate in excess of $5,000,000, and notice of the receipt of notice that any Reportable Event United States income tax returns of Parent Guarantor, Borrower or any of its Subsidiaries are being audited;
(vii) Promptly upon becoming available, a copy of any amendment to a formation document of Borrower;
(viii) Promptly upon becoming aware of the same, notice of any change in the senior management of Parent Guarantor, Borrower, or any of its Subsidiaries, any change in the business, assets, liabilities, financial condition, results of operations or business prospects of Borrower, or any of its Subsidiaries which has occurred with respect to any Plan that could or is reasonably be expected to have a Material Adverse Effect, or any other event or circumstance which has had or is reasonably be expected to have a statement, signed by an Authorized Officer, describing said Reportable Event and the action which the Borrower proposes to take with respect thereto.Material Adverse Effect;
6.1.6 From time to time such additional information regarding the financial position or business (ix) Promptly upon becoming aware of entry of the Borrower and its Subsidiaries as the Agentsame, at the request notice of any Lenderorder, may reasonably requestjudgment or decree in excess of $5,000,000 having been entered against Parent Guarantor, including the support for any pro forma calculations hereunder.
6.1.7 PromptlyBorrower, upon the filing thereof, copies of all registration statements (other than any registration statement on Form S-8 and any registration statement in connection with a dividend reinvestment plan, shareholder purchase plan or employee benefit plan) and reports on form 10-K, 10-Q or 8-K (or their equivalents) which the Borrower or any of its Subsidiaries files with or any of their respective properties or assets;
(x) Promptly upon receipt of the Securities and Exchange Commission.
6.1.8 Promptlysame, information regarding notice if Parent Guarantor, Borrower, or any change in the Borrower’s Debt Rating. Information required to of its Subsidiaries shall receive any notification from any Governmental Authority alleging a violation of any Applicable Law or any inquiry which is reasonably be delivered pursuant to these Sections 6.1.1, 6.1.2, and 6.1.7 shall be deemed expected to have been delivered on a Material Adverse Effect; and
(xi) Such other information (including, without limitation, financial statements for Parent Guarantor, Borrower and non-financial information) as the date on which the Borrower provides notice to the Lenders that such information has been posted on the Securities and Exchange Commission website on the Internet at ▇▇▇.▇▇▇/▇▇▇▇▇/▇▇▇▇▇▇▇▇.▇▇▇, on the Borrower’s IntraLinks site at ▇▇▇▇▇▇▇▇▇▇.▇▇▇ Administrative Agent or at another website identified in such notice and accessible by the Lenders without charge; provided that (i) such notice may be included in a certificate delivered pursuant to Section 6.1.3 and such notice or certificate shall also be deemed to have been delivered upon being posted to the Borrower’s IntraLinks site or such other website and (ii) the Borrower shall deliver paper copies of the information referred to in Sections 6.1.1, 6.1.2 and 6.1.7 to any Lender which requests such deliverymay from time to time reasonably request.
Appears in 1 contract
Sources: Senior Revolving Credit Agreement (Terreno Realty Corp)
Financial Reporting. The Borrower will maintain, for itself and each Subsidiary, a system of accounting established and administered in accordance with GAAPthe Agreement Accounting Principles, and furnish to the Administrative Agent and in sufficient copies for each of the Lenders:
6.1.1 (i) Within ninety one hundred twenty (90120) days after the close of each of its fiscal yearsyears (or, financial statements if earlier, within thirty (30) days after the Borrower is required to file its Annual Report on Form 10-K with the Securities and Exchange Commission for such fiscal year), an unqualified (except for qualifications relating to changes in Agreement Accounting Principles or practices reflecting changes in Agreement Accounting Principles and required or approved by the Borrower’s independent certified public accountants) audit report certified by independent certified public accountants reasonably acceptable to the Lenders, prepared in accordance with GAAP the Agreement Accounting Principles on a consolidated and consolidating basis (consolidating statements need not be certified by such accountants) for itself and its Subsidiaries, including balance sheets as of the end of such period, statements related profit and loss and reconciliation of income surplus statements, and statements a statement of cash flows, setting forth in comparative form figures for . Delivery by the preceding fiscal year, accompanied by an audit report, consistent Borrower to the Administrative Agent of copies of the Borrower’s Annual Report on Form 10-K filed with the requirements of the Securities and Exchange Commission, of a nationally recognized firm of independent public accountants or other independent public accountants reasonably acceptable Commission for any year shall satisfy the Borrower’s obligation under this clause (i) with respect to the Required Lenderssuch year.
6.1.2 (ii) Within forty-five sixty (4560) days after the close of the first three (3) quarterly period of each of its fiscal years (or, if earlier, within fifteen (15) days after the Borrower is required to file its Quarterly Report on Form 10-Q for with the Securities and Exchange Commission for such period), consolidated and consolidating unaudited balance sheets as at the close of each the first three (3) quarterly periods of each of its fiscal years, financial statements prepared in accordance with GAAP (other than with regard to the absence of footnotes and subject to changes resulting from audit and normal year-end audit adjustments to same) on a consolidated basis for itself and its Subsidiaries, including, consolidated unaudited balance sheets as at the close of each such period Subsidiaries and consolidated unaudited and consolidating profit and loss and reconciliation of surplus statements of income and a statement of cash flows for the period from the beginning of such fiscal year to the end of such quarter, in each case setting forth in comparative form figures for the corresponding period of the preceding fiscal year, and accompanied all certified by a certificate of the chief financial officer or treasurer of an Authorized Officer. Delivery by the Borrower to the effect that such quarterly financial statements fairly present in all material respects the financial condition Administrative Agent of copies of the Borrower Borrower’s Quarterly Report on Form 10-Q filed with the Securities and its Subsidiaries and have been prepared in accordance Exchange Commission for any quarter shall satisfy the Borrower’s obligation under this clause (ii) with GAAP (other than with regard respect to the absence of footnotes and subject to changes resulting from audit and normal year-end audit adjustments to same)such quarter.
6.1.3 (iii) Together with the financial statements required under Sections 6.1.1 6.1(i) and 6.1.2(ii), (iA) a compliance certificate in substantially the form of Exhibit B A signed by an Authorized Officer (a) showing the calculations necessary to determine compliance with Section 6.16, (b) this Agreement and stating that no Default or Unmatured Default exists, or if any Default or Unmatured Default exists, stating the nature and status thereof and (cB) updating Schedule 1 with respect to its Subsidiaries, Material Subsidiaries and Excluded Subsidiaries, if appropriate and (iia calculation of the Indebtedness secured by Liens permitted under Section 6.11(xiii) in such financial information as reasonable requested by the Agent, including, but not limited to consolidating financial statements, form as is necessary reasonably satisfactory to account for Excluded Indebtedness and Excluded EBITDA for purposes of determining the Consolidated Leverage RatioAdministrative Agent.
6.1.4 If requested, within 270 days after the close of each fiscal year of the Borrower, a copy of the actuarial report showing the Unfunded Liabilities of each Single Employer Plan as of the valuation date occurring in such fiscal year, certified by an actuary enrolled under ERISA.
6.1.5 (iv) As soon as possible practicable and in any event within ten (10) days after an Authorized Officer the Borrower knows that of the occurrence of any Reportable ERISA Event has occurred with respect to any Plan that could reasonably be expected to have a Material Adverse Effect, Effect (x) a statement, signed by written statement of an Authorized Officer, describing said Reportable Officer of the Borrower specifying the details of such ERISA Event and the action which that the Borrower or ERISA Affiliate has taken and proposes to take with respect thereto, (y) a copy of any notice with respect to such ERISA Event that may be required to be filed with the PBGC and (z) a copy of any notice delivered by the PBGC to the Borrower or an ERISA Affiliate with respect to such ERISA Event.
6.1.6 From time (v) As soon as practicable and in any event within ten (10) days after receipt by the Borrower, a copy of (a) any notice or claim to time such additional information regarding the financial position effect that the Borrower or business any of its Subsidiaries is or may be liable to any Person as a result of the Borrower and release by the Borrower, any of its Subsidiaries as the AgentSubsidiaries, at the request or any other Person of any Lendertoxic or hazardous waste or substance into the environment, may and (b) any notice alleging any violation of any federal, state or local environmental, health or safety law or regulation by the Borrower or any of its Subsidiaries, which, in either case, could reasonably request, including the support for any pro forma calculations hereunderbe expected to have a Material Adverse Effect.
6.1.7 Promptly(vi) Promptly upon the furnishing thereof to the shareholders of the Borrower, copies of all financial statements and reports so furnished.
(vii) Promptly upon the filing thereof, copies of all registration statements (and annual, quarterly, monthly or other than any registration statement on Form S-8 and any registration statement in connection with a dividend reinvestment plan, shareholder purchase plan or employee benefit plan) and regular reports on form 10-K, 10-Q or 8-K (or their equivalents) which the Borrower or any of its Subsidiaries files with the Securities and Exchange Commission.
6.1.8 Promptly, (viii) Such other information regarding any change in (including nonfinancial information) as the Borrower’s Debt Rating. Information required to be delivered pursuant to these Sections 6.1.1, 6.1.2, and 6.1.7 shall be deemed to have been delivered on the date on which the Borrower provides notice to the Lenders that such information has been posted on the Securities and Exchange Commission website on the Internet at ▇▇▇.▇▇▇/▇▇▇▇▇/▇▇▇▇▇▇▇▇.▇▇▇, on the Borrower’s IntraLinks site at ▇▇▇▇▇▇▇▇▇▇.▇▇▇ Administrative Agent or at another website identified in such notice and accessible by the Lenders without charge; provided that (i) such notice may be included in a certificate delivered pursuant to Section 6.1.3 and such notice or certificate shall also be deemed to have been delivered upon being posted to the Borrower’s IntraLinks site or such other website and (ii) the Borrower shall deliver paper copies of the information referred to in Sections 6.1.1, 6.1.2 and 6.1.7 to any Lender which requests such deliverymay from time to time reasonably request.
Appears in 1 contract
Sources: Credit Agreement (Idaho Power Co)
Financial Reporting. The Borrower will maintain, for itself and each Subsidiaryits Subsidiaries, a system of accounting established and administered in accordance with GAAPgenerally accepted accounting principles, consistently applied, and will furnish to the Agent and the Lenders:
6.1.1 Within (i) As soon as practicable and in any event within ninety (90) days after the close of each of its fiscal yearsFiscal Years, financial statements an unqualified audit report certified by independent certified public accountants, acceptable to the Lenders, prepared in accordance with GAAP generally accepted accounting principles on a consolidated basis for itself and its Subsidiaries, including balance sheets as of the end of such period, period and related statements of income income, retained earnings and cash flows accompanied by (A) any management letter prepared by said accountants and (B) a certificate of said accountants that, in the course of their examination necessary for their certification of the foregoing, they have obtained no knowledge of any Default or Unmatured Default, or if, in the opinion of such accountants, any Default or Unmatured Default shall exist, stating the nature and status thereof.
(ii) If the Closing Date has not occurred, as soon as practicable upon the same being made available by the Company to the Borrower, an unqualified audit report for the fiscal year of the Company ending September 30, 2010 certified by nationally recognized independent certified accountants, prepared in accordance with generally accepted accounting principles on a consolidated basis for the Company and its subsidiaries, including balance sheets as of the end of such period and related statements of income, retained earnings and cash flows, setting forth flows for such period; provided that the Borrower shall use commercially reasonable efforts to obtain such audit report from the Company promptly following the due date for delivery thereof in comparative form figures for the preceding fiscal year, accompanied by an audit report, consistent accordance with the requirements of the Securities and Exchange Commission, of a nationally recognized firm of independent public accountants or other independent public accountants reasonably acceptable to the Required LendersMerger Agreement.
6.1.2 Within forty-five (45i) As soon as practicable and in any event within 45 days after the close of the first three quarterly periods Fiscal Quarters of each of its fiscal yearsFiscal Years, financial statements prepared in accordance with GAAP (other than with regard to the absence of footnotes and subject to changes resulting from audit and normal year-end audit adjustments to same) on a consolidated basis for itself and its Subsidiaries, including, consolidated unaudited balance sheets as at the close of each such period and consolidated unaudited statements of income income, retained earnings and a statement cash flows for the period from the beginning of such Fiscal Year to the end of such quarter, all certified by its president or chief financial officer.
(ii) If the Closing Date has not occurred, as soon as practicable upon the same being made available by the Company to the Borrower, for the Company and its subsidiaries, consolidated unaudited balance sheets as of the close of any fiscal quarter of the Company ending during the period beginning on the Effective Date and ending on the Closing Date, and consolidated statements of income, retained earnings and cash flows for the period from the beginning of such fiscal year to the end of such fiscal quarter, in each case setting forth in comparative form figures for all certified by the corresponding period of the preceding fiscal year, and accompanied by a certificate of the Company’s president or chief financial officer or treasurer of provided that the Borrower shall use commercially reasonable efforts to obtain such unaudited balance sheets from the effect that such quarterly financial statements fairly present in all material respects Company promptly following the financial condition of the Borrower and its Subsidiaries and have been prepared due date for delivery thereof in accordance with GAAP (other than with regard to the absence of footnotes and subject to changes resulting from audit and normal year-end audit adjustments to same)Merger Agreement.
6.1.3 (c) Together with the financial statements required under Sections 6.1.1 by clauses (a)(i) and 6.1.2(b)(i) above, (i) a compliance certificate in substantially the form of Exhibit B hereto signed by an Authorized Officer the Borrower’s president or chief financial officer (ai) showing the calculations necessary to determine compliance with Section 6.166.12(k), 6.16(e), 6.17 and 6.19(h), provided that in the event of any change in generally accepted accounting principles used in the preparation of such financial statements, the Borrower shall also provide, if necessary for the determination of compliance with Section 6.17, a statement of reconciliation conforming such financial statements to Agreement Accounting Principles, and (bii) stating that no Default or Unmatured Default exists, or if any Default or Unmatured Default exists, stating the nature and status thereof and (c) updating Schedule 1 with respect to its Subsidiaries, Material Subsidiaries and Excluded Subsidiaries, if appropriate and (ii) such financial information as reasonable requested by the Agent, including, but not limited to consolidating financial statements, as is necessary to account for Excluded Indebtedness and Excluded EBITDA for purposes of determining the Consolidated Leverage Ratiothereof.
6.1.4 If requested(d) Promptly upon learning thereof, notice that a Single Employer Plan of the Borrower or any member of the Controlled Group is in “at risk” status within the meaning of Section 303 of ERISA or Section 430(i)(4) of the Code, and within 270 days after the close of each fiscal year Fiscal Year, a statement of the Borrower, a copy of the actuarial report showing the Unfunded Liabilities Funded Target Attainment Percentage of each Single Employer Plan as of the valuation date occurring in such fiscal yearPlan, certified as correct by an actuary enrolled under ERISA.
6.1.5 (e) As soon as possible and in any event within ten (10) days after an Authorized Officer the Borrower knows that any Reportable Termination Event has occurred with respect to any Plan that could reasonably be expected to have a Material Adverse EffectPlan, a statement, signed by an Authorized Officerthe chief financial officer of the Borrower, describing said Reportable Termination Event and the action which the Borrower proposes to take with respect thereto.
6.1.6 From time ; provided that no such notice shall be required to time be given unless either (i) such additional information regarding the financial position or business Termination Event could reasonably be expected to result in liabilities of the Borrower in excess of $25,000,000 or (ii) the occurrence of such Termination Event would trigger a requirement to deliver notice under Section 6.1(e) of the Existing Credit Facility or Section 20.7(b) of the Euro Facility.
(f) As soon as possible and its Subsidiaries as in any event within ten (10) days after the AgentBorrower learns thereof, at notice of the request assertion or commencement of any Lenderclaims, action, suit or proceeding against or affecting the Borrower or any Subsidiary which may reasonably request, including the support for any pro forma calculations hereunderbe expected to have a Material Adverse Effect.
6.1.7 Promptly(g) Promptly upon learning thereof, notice of any change in the credit rating of the Borrower’s senior unsecured long term debt by S&P or ▇▇▇▇▇’▇.
(h) Promptly upon the furnishing thereof to the shareholders of the Borrower, copies of all financial statements, reports and proxy statements so furnished (or links to pages on the Borrower’s website where such information may be accessed).
(i) Promptly upon the filing thereof, copies of all registration statements (and annual, quarterly, monthly or other than any registration statement on Form S-8 and any registration statement in connection with a dividend reinvestment plan, shareholder purchase plan or employee benefit plan) and regular reports on form 10-K, 10-Q or 8-K (or their equivalents) which the Borrower or any of its Subsidiaries files with the Securities and Exchange Commission.
6.1.8 Promptly, information regarding any change in the Borrower’s Debt Rating. Information required Commission (or links to be delivered pursuant to these Sections 6.1.1, 6.1.2, and 6.1.7 shall be deemed to have been delivered on the date on which the Borrower provides notice to the Lenders that such information has been posted on the Securities and Exchange Commission website on the Internet at ▇▇▇.▇▇▇/▇▇▇▇▇/▇▇▇▇▇▇▇▇.▇▇▇, pages on the Borrower’s IntraLinks site at ▇▇▇▇▇▇▇▇▇▇.▇▇▇ or at another website identified in where such notice and accessible by the Lenders without charge; provided that (i) such notice information may be included in a certificate delivered pursuant to Section 6.1.3 accessed).
(j) Such other information (including, without limitation, non financial information and such notice information required under the USA PATRIOT Act) as the Administrative Agent or certificate shall also be deemed to have been delivered upon being posted to the Borrower’s IntraLinks site or such other website and (ii) the Borrower shall deliver paper copies of the information referred to in Sections 6.1.1, 6.1.2 and 6.1.7 to any Lender which requests such deliverymay from time to time reasonably request.
Appears in 1 contract
Sources: Credit Agreement (Aon Corp)
Financial Reporting. The Borrower will maintain, for itself and each Subsidiary, a system of accounting established and administered in accordance with GAAP, and furnish to the Agent and the Lenders:
6.1.1 Within ninety (90i) As soon as available, but in any event not later than 45 days after the close of each of its fiscal yearsquarter, financial statements prepared in accordance with GAAP on a consolidated basis for itself the Borrower and its Subsidiaries, including a copy of Borrower’s Financial Statements in the form filed under 10-Q which shall include an unaudited consolidated balance sheets sheet as of the end of such period, statements of income and statements of cash flows, setting forth in comparative form figures for the preceding fiscal year, accompanied by an audit report, consistent with the requirements of the Securities and Exchange Commission, of a nationally recognized firm of independent public accountants or other independent public accountants reasonably acceptable to the Required Lenders.
6.1.2 Within forty-five (45) days after the close of the first three quarterly periods of each of its fiscal years, financial statements prepared in accordance with GAAP (other than with regard to the absence of footnotes and subject to changes resulting from audit and normal year-end audit adjustments to same) on a consolidated basis for itself and its Subsidiaries, including, consolidated unaudited balance sheets as at the close of each such period and the related unaudited consolidated unaudited statements of income and a statement retained earnings and of cash flows for the period from the beginning of such fiscal year to the end of such quarter, in each case setting forth in comparative form figures for the corresponding period of the preceding fiscal year, and accompanied by a certificate of the chief financial officer or treasurer of the Borrower to the effect that such quarterly financial statements fairly present in all material respects the financial condition of the Borrower and its Subsidiaries for such period and have been prepared the portion of the fiscal year through the end of such period, setting forth in accordance with GAAP each case in comparative form the figures for the previous year, all certified by the Borrower’s chief financial officer or chief accounting officer;
(ii) As soon as available, but in any event not later than 45 days after the close of each fiscal quarter, for the Borrower and its Subsidiaries, a copy of the Borrower’s Quarterly Financial Supplement and other than with regard schedules as may be required containing the following reports in form and substance reasonably satisfactory to the absence Lenders, all certified by the entity’s chief financial officer or chief accounting officer: a statement of footnotes Funds From Operations, a statement detailing Consolidated Outstanding Indebtedness, Consolidated Secured Indebtedness, Consolidated Unsecured Indebtedness, Consolidated Cash Flow and subject an Asset Schedule listing all assets and their net operating income with a breakdown between Unencumbered Assets and other assets, and newly acquired Projects, Borrower will provide such other information as may be reasonably requested;
(iii) As soon as available, but in any event not later than 90 days after the close of each fiscal year, for the Borrower and its Subsidiaries, audited financial statements in the form filed as 10-K, including a consolidated balance sheet as at the end of such year and the related consolidated statements of income and retained earnings and of cash flows for such year, setting forth in each case in comparative form the figures for the previous year, without a “going concern” or like qualification or exception, or qualification arising out of the scope of the audit, prepared by PricewaterhouseCoopers (or other independent certified public accountants of nationally recognized standing reasonably acceptable to changes resulting from audit and normal year-end audit adjustments to sameAdministrative Agent).;
6.1.3 (iv) Together with the quarterly and annual financial statements required under Sections 6.1.1 and 6.1.2hereunder, (i) a compliance certificate in substantially the form of Exhibit B Compliance Certificate signed by an Authorized Officer (a) the Borrower’s chief financial officer or chief accounting officer showing the calculations and computations necessary to determine compliance with Section 6.16this Agreement and stating that, (b) stating that to such officer’s knowledge, no Default or Unmatured Default exists, or if if, to such officer’s knowledge, any Default or Unmatured Default exists, stating the nature and status thereof and thereof;
(cv) updating Schedule 1 with respect to its Subsidiaries, Material Subsidiaries and Excluded Subsidiaries, if appropriate and (ii) such financial information as reasonable requested by the Agent, including, but not limited to consolidating financial statements, as is necessary to account for Excluded Indebtedness and Excluded EBITDA for purposes of determining the Consolidated Leverage Ratio.
6.1.4 If requested, within 270 days after the close of each fiscal year of the Borrower, a copy of the actuarial report showing the Unfunded Liabilities of each Single Employer Plan as of the valuation date occurring in such fiscal year, certified by an actuary enrolled under ERISA.
6.1.5 As soon as possible and in any event within ten (10) 10 days after an Authorized Officer a responsible officer of the Borrower knows that any Reportable Event has occurred with respect to any Plan that could reasonably be expected to have a Material Adverse EffectPlan, a statement, signed by an Authorized Officerthe chief financial officer of the Borrower, describing said Reportable Event and the action which the Borrower proposes to take with respect thereto.;
6.1.6 From time to time such additional information regarding the financial position or business (vi) As soon as possible and in any event within 10 days after receipt by a responsible officer of the Borrower, a copy of (a) any notice or claim to the effect that the Borrower and or any of its Subsidiaries is or may be liable to any Person as a result of the Agentrelease by the Borrower, at the request any of its Subsidiaries, or any other Person of any Lendertoxic or hazardous waste or substance into the environment, may reasonably requestand (b) any notice alleging any violation of any federal, including state or local environmental, health or safety law or regulation by the support for Borrower or any pro forma calculations hereunder.of its Subsidiaries, which, in either case, could have a Material Adverse Effect;
6.1.7 Promptly(vii) Promptly upon the furnishing thereof to the shareholders of the Borrower, copies of all financial statements, reports and proxy statements so furnished;
(viii) Promptly upon the filing thereof, copies of all registration statements (and annual, quarterly, monthly or other than any registration statement on Form S-8 reports and any registration statement in connection with a dividend reinvestment plan, shareholder purchase plan or employee benefit plan) and reports on form 10-K, 10-Q or 8-K (or their equivalents) other public information which the Borrower or any of its Subsidiaries files with the Securities and Exchange Commission.;
6.1.8 Promptly(ix) Prompt written notice of any default or event of default under any of the Subject Property Loan Documents together with copies of any such notices of default or event of default;
(x) If required by Administrative Agent, information regarding concurrently with the delivery of the financial statements referred to in Sections 6.1(i) and 6.1(iii), a list of all the Subject Properties owned by any change in the Borrower’s Debt Rating. Information required to be delivered pursuant to these Sections 6.1.1, 6.1.2, and 6.1.7 shall be deemed to have been delivered on the date on which Subsidiary of the Borrower provides notice as of the last day of such fiscal quarter setting forth the following information with respect to the Lenders that each such information has been posted on the Securities and Exchange Commission website on the Internet at ▇▇▇.▇▇▇/▇▇▇▇▇/▇▇▇▇▇▇▇▇.▇▇▇, on the Borrower’s IntraLinks site at ▇▇▇▇▇▇▇▇▇▇.▇▇▇ or at another website identified in Subject Property as of such notice and accessible by the Lenders without charge; provided that date: (i) such notice may be included in a certificate delivered pursuant to Section 6.1.3 and such notice or certificate shall also be deemed to have been delivered upon being posted to the Borrower’s IntraLinks site or such other website and location; (ii) the Borrower shall deliver paper copies Net Operating Income for such Subject Property during such fiscal quarter, and (iii) a list of the Subject Property Indebtedness for such Subject Property in the form of Schedule 2; and
(xi) Such other information referred to in Sections 6.1.1(including, 6.1.2 without limitation, financial statements for the Borrower and 6.1.7 to non-financial information) as the Administrative Agent or any Lender which requests such deliverymay from time to time reasonably request.
Appears in 1 contract
Sources: Secured Term Loan Agreement (Developers Diversified Realty Corp)
Financial Reporting. The Borrower will maintain, for itself and each Subsidiary, a system of accounting established and administered in accordance with GAAPgenerally accepted accounting principles, consistently applied, and will furnish to the Agent and the Lenders:
6.1.1 Within ninety (90a) As soon as practicable and in any event within one hundred (100) days after the close of each of its fiscal yearsFiscal Years, financial statements an unqualified audit report certified by independent certified public accountants acceptable to the Required Lenders, prepared in accordance with GAAP Agreement Accounting Principles on a consolidated and consolidating basis and setting forth in comparative form figures for the preceding Fiscal Year for itself and its SubsidiariesConsolidated Subsidiaries and on a stand alone basis for the Borrower, including balance sheets as of the end of such period, period and related statements of income income, stockholders’ equity and statements of cash flows, setting forth in comparative form figures for the preceding fiscal year, flows accompanied by an audit report, consistent with any management letter prepared by said accountants; provided that no annual report other than the requirements of the Securities and Exchange Commission, of a nationally recognized firm of independent public accountants or other independent public accountants reasonably acceptable report on Form 10K needs to the Required Lendersbe delivered.
6.1.2 Within forty-five (45b) As soon as practicable and in any event within fifty (50) days after the close of the first three quarterly periods Fiscal Quarters of each of its fiscal yearsFiscal Years, financial statements prepared in accordance with GAAP (other than with regard to the absence of footnotes and subject to changes resulting from audit and normal year-end audit adjustments to same) on a consolidated basis for itself and its Subsidiaries, including, consolidated and consolidating unaudited balance sheets as at the close of each such period and consolidated unaudited statements of income and a consolidating statement of income, stockholders’ equity and cash flows for the period from the beginning of such fiscal year Fiscal Year to the end of such quarter, quarter setting forth in each case setting forth in comparative form figures for the corresponding period of in the preceding fiscal yearprior Fiscal Year, all prepared in accordance with Agreement Accounting Principles and in reasonable detail, and accompanied all signed by a certificate its chief financial officer.
(c) As soon as available and in any event (i) within seventy (70) days after the close of each Fiscal Year of each Insurance Subsidiary, the Annual Statement of such Insurance Subsidiary for such Fiscal Year as filed with the insurance commissioner (or similar authority) in such Insurance Subsidiary’s state of domicile, together with (ii) within seventy (70) days after the close of each Fiscal Year of each Insurance Subsidiary, the signature thereof of the chief financial officer or treasurer of the Borrower stating that such Annual Statement presents the financial condition and results of operations of such Insurance Subsidiary in accordance with SAP, (iii) on or prior to each June 1 after the close of each Fiscal Year of each Insurance Subsidiary, the opinion of a firm of certified public accountants reasonably satisfactory to the effect that Required Lenders, who shall have examined such Annual Statement and whose opinion shall not be qualified as to the scope of audit or as to the status of such Insurance Subsidiary as a going concern, and (iv) within one hundred twenty (120) days after the close of each Fiscal Year of each Insurance Subsidiary, a written review of and opinion of an accounting or actuarial firm or internal actuary, as delivered to the Department, reasonably satisfactory to the Required Lenders on the methodology and assumptions used to calculate the Loss Reserves of such Insurance Subsidiary at the end of such Fiscal Year (as shown on the Annual Statement of such Insurance Subsidiary prepared in accordance with SAP).
(d) As soon as available and in any event on or prior to each May 1 after the close of each Fiscal Year of the Insurance Subsidiaries, the Consolidated Annual Statement of the Insurance Subsidiaries for such Fiscal Year, prepared in accordance with SAP and filed with the New York Insurance Department.
(e) As soon as available and in any event within fifty (50) days after the close of each of the first three Fiscal Quarters in each Fiscal Year of each Insurance Subsidiary, quarterly financial statements fairly of such Insurance Subsidiary (prepared in accordance with SAP) for such Fiscal Quarter and as filed with the insurance commissioner (or similar authority) in such Insurance Subsidiary’s state of domicile, together with the signature thereon of the chief financial officer of the Borrower stating that such financial statements present in all material respects the financial condition and results of operations of such Insurance Subsidiary in accordance with SAP.
(f) As soon as available, but in any event within 120 days after the beginning of each Fiscal Year, a copy of the plan and forecast of the Borrower and its Subsidiaries and have been for such Fiscal Year in the form customarily prepared in accordance with GAAP (other than with regard to by the absence of footnotes and subject to changes resulting from audit and normal year-end audit adjustments to same)Borrower.
6.1.3 (g) Together with the financial statements required under Sections 6.1.1 by clauses (a) and 6.1.2(b) above, (i) a compliance certificate in substantially the form of Exhibit B hereto signed by an Authorized Officer (a) its chief financial officer showing the calculations necessary to determine compliance with Section 6.16, (b) this Agreement and stating that no Default or Unmatured Default exists, or if any Default or Unmatured Default exists, stating the nature and status thereof and (c) updating Schedule 1 with respect to its Subsidiaries, Material Subsidiaries and Excluded Subsidiaries, if appropriate and (ii) such financial information as reasonable requested by the Agent, including, but not limited to consolidating financial statements, as is necessary to account for Excluded Indebtedness and Excluded EBITDA for purposes of determining the Consolidated Leverage Ratiothereof.
6.1.4 If requested, within 270 days after the close of each fiscal year of the Borrower, a copy of the actuarial report showing the Unfunded Liabilities of each Single Employer Plan as of the valuation date occurring in such fiscal year, certified by an actuary enrolled under ERISA.
6.1.5 (h) As soon as possible and in any event within ten (10) 10 days after an Authorized Officer the Borrower knows that any Reportable Termination Event has occurred with respect to any Plan that could reasonably be expected to have a Material Adverse EffectPlan, a statement, signed by an Authorized Officerthe chief financial officer of the Borrower, describing said Reportable Termination Event and the action which the Borrower proposes to take with respect thereto.
6.1.6 From time (i) As soon as possible and in any event within 10 days after receipt by the Borrower, a copy of (i) any notice or claim to time such additional information regarding the financial position effect that the Borrower or business any of its Subsidiaries is or may be liable to any Person as a result of the Borrower and release by the Borrower, any of its Subsidiaries as the AgentSubsidiaries, at the request or any other Person of any Lendertoxic or hazardous waste or substance into the environment, and (ii) any notice alleging any violation of any federal, state or local environmental, health or safety law or regulation by the Borrower or any of its Subsidiaries.
(j) As soon as possible and in any event within 10 days after the Borrower learns thereof, notice of the assertion or commencement of any claims, action, suit or proceeding against or affecting the Borrower or any Subsidiary which may reasonably request, including the support for any pro forma calculations hereunderbe expected to have a Material Adverse Effect.
6.1.7 Promptly(k) Promptly upon the furnishing thereof to the shareholders of the Borrower, copies of all financial statements, reports and proxy statements so furnished; provided that no annual report other than the report on Form 10K needs to be delivered.
(l) Promptly upon the filing thereof, copies of all registration statements (and annual, quarterly, monthly or other than any registration statement on Form S-8 and any registration statement in connection with a dividend reinvestment plan, shareholder purchase plan or employee benefit plan) and regular reports on form 10-K, 10-Q or 8-K (or their equivalents) which the Borrower or any of its Subsidiaries files with the Securities and Exchange Commission.
6.1.8 (m) Promptly and in any event within ten (10) days after learning thereof, notification of (i) any tax assessment, demand, notice of proposed deficiency or notice of deficiency received by the Borrower or any Consolidated Person or (ii) the filing of any tax Lien or commencement of any judicial proceeding by or against any such Consolidated Person, if any such assessment, demand, notice, Lien or judicial proceeding relates to tax liabilities in excess of $2,500,000.
(n) Promptly, information regarding and in any change event within five days after (i) learning thereof, notification of any changes after the date hereof in the Borrower’s Debt Rating. Information required to be delivered pursuant to these Sections 6.1.1, 6.1.2, and 6.1.7 shall be deemed to have been delivered on the date on which the Borrower provides notice to the Lenders that such information has been posted on the Securities and Exchange Commission website on the Internet at ▇▇▇.▇▇▇/S&P Rating or Borrower’s ▇▇▇▇▇/’▇ Rating or in the A.M. Best Rating in respect of any Insurance Subsidiary and (ii) receipt thereof, copies of any ratings analysis by A.M. Best & Co. relating to any Insurance Subsidiary.
(o) Copies of any actuarial certificates prepared with respect to any Insurance Subsidiary, promptly after the receipt thereof, and not later than 90 days after each Fiscal Year, an actuarial opinion with respect to each Insurance Subsidiary in form and substance reasonably satisfactory to the Agent and the Required Lenders from an accounting or actuarial firm or internal actuary, as delivered to the Department, reasonably satisfactory to the Agent and the Required Lenders.
(p) Promptly upon the filing thereof, copies of all filings and annual, quarterly, monthly or other regular reports which the Borrower or any of its Subsidiaries files with the NAIC or any insurance commission or department or analogous Governmental Authority (including, without limitation, any filing made by the Borrower or any Subsidiary pursuant to any insurance holding company act or related rules or regulations), but excluding routine or non-material filings with the NAIC, any insurance commissioner or department or analogous Governmental Authority.
(q) In addition to the requirements of clause (c)(iv) above, as promptly as reasonably practicable following the request of the Required Lenders, a report prepared by an accounting or actuarial firm or internal actuary, as delivered to the Department, reviewing the adequacy of Loss Reserves of each Insurance Subsidiary, which firm shall be provided access to or copies of all reserve analyses and valuations relating to the insurance business of each Insurance Subsidiary in the possession of or available to the Borrower or its Subsidiaries; provided, that, in the event that the written review required to be provided to the Lenders in respect of any Fiscal Year pursuant to clause (c)(iv) above is provided by an independent actuarial consulting firm reasonably satisfactory to the Agent, or a written review of an independent actuarial consulting firm reasonably satisfactory to the Agent satisfying the requirements set forth in clause (c)(iv) is otherwise delivered to the Lenders at any time other than pursuant to such clause, then the Required Lenders may not request a report pursuant to this paragraph (q) until one year after the delivery date of such report unless, at the time of such request, a Default is in existence.
(r) Such other information as the Agent or any Lender may from time to time reasonably request. The Borrower may provide information required under Sections 7.1(a), (b), (k), and (l) by posting such information on ▇▇▇▇▇▇▇▇.▇▇▇, on the Borrower’s IntraLinks site at ▇▇▇▇▇▇▇▇▇▇.▇▇▇ or at another website identified in such and giving notice and accessible by the Lenders without charge; provided that (i) such notice may be included in a certificate delivered pursuant to Section 6.1.3 and such notice or certificate shall also be deemed to have been delivered upon being posted to the Borrower’s IntraLinks site or Agent of such other website and (ii) the Borrower shall deliver paper copies of the information referred to in Sections 6.1.1, 6.1.2 and 6.1.7 to any Lender which requests such deliveryposting.
Appears in 1 contract
Financial Reporting. The Borrower Visa Inc. will maintain, for itself and each Subsidiary, a system of accounting established and administered in accordance with GAAP, and furnish or cause to be furnished to the Administrative Agent and (for distribution to the Lenders:):
6.1.1 Within ninety (90a) within 50 days after the close end of each of its the first three quarters of each fiscal yearsyear of Visa Inc., financial statements prepared in accordance with GAAP on a consolidated basis for itself balance sheet of Visa Inc. and its Subsidiaries, including balance sheets Subsidiaries as of the end of such period, quarter and consolidated statements of income and statements of cash flows, setting forth in comparative form figures for the preceding fiscal year, accompanied by an audit report, consistent with the requirements of the Securities and Exchange Commission, of a nationally recognized firm of independent public accountants or other independent public accountants reasonably acceptable to the Required Lenders.
6.1.2 Within forty-five (45) days after the close of the first three quarterly periods of each of its fiscal years, financial statements prepared in accordance with GAAP (other than with regard to the absence of footnotes and subject to changes resulting from audit and normal year-end audit adjustments to same) on a consolidated basis for itself and its Subsidiaries, including, consolidated unaudited balance sheets as at the close of each such period and consolidated unaudited statements of income and a statement of cash flows of Visa Inc. and its Subsidiaries for the period from commencing at the beginning end of such the previous fiscal year to and ending with the end of such quarter, all in each case setting forth in comparative form figures for the corresponding period reasonable detail and duly certified (subject to year-end audit adjustments and absence of the preceding fiscal year, and accompanied footnotes) by a certificate of the chief financial officer or treasurer of the Borrower to the effect that such quarterly financial statements fairly present in all material respects the financial condition of the Borrower and its Subsidiaries and have an Authorized Officer as having been prepared in accordance with GAAP (other than with regard to the absence of footnotes and subject to changes resulting from audit and normal year-end audit adjustments to same).GAAP;
6.1.3 Together with the financial statements required under Sections 6.1.1 and 6.1.2, (i) a compliance certificate in substantially the form of Exhibit B signed by an Authorized Officer (a) showing the calculations necessary to determine compliance with Section 6.16, (b) stating that no Default or Unmatured Default exists, or if any Default or Unmatured Default exists, stating the nature and status thereof and (c) updating Schedule 1 with respect to its Subsidiaries, Material Subsidiaries and Excluded Subsidiaries, if appropriate and (ii) such financial information as reasonable requested by the Agent, including, but not limited to consolidating financial statements, as is necessary to account for Excluded Indebtedness and Excluded EBITDA for purposes of determining the Consolidated Leverage Ratio.
6.1.4 If requested, within 270 90 days after the close end of each fiscal year of the BorrowerVisa Inc., a copy of the actuarial annual audit report showing the Unfunded Liabilities for such year for Visa Inc. and its Subsidiaries (and, if its fiscal year-end financial statements are then being audited, of each Single Employer Plan as of the valuation date occurring in Visa International, Visa U.S.A., VEL and their respective Subsidiaries), containing a consolidated balance sheet of such fiscal year, certified by an actuary enrolled under ERISA.
6.1.5 As soon as possible and in any event within ten (10) days after an Authorized Officer knows that any Reportable Event has occurred with respect to any Plan that could reasonably be expected to have a Material Adverse Effect, a statement, signed by an Authorized Officer, describing said Reportable Event and the action which the Borrower proposes to take with respect thereto.
6.1.6 From time to time such additional information regarding the financial position or business of the Borrower and its Subsidiaries as of the Agentend of such fiscal year and consolidated statements of income and of cash flows of such Borrower and its Subsidiaries for such fiscal year reported on without a “going concern” or like qualification or exception, at or qualification arising out of the request scope of any Lenderthe audit, may reasonably request, including by KPMG LLP or other independent certified public accountants of nationally recognized standing in accordance with generally accepted auditing standards;
(c) promptly after the support for any pro forma calculations hereunder.
6.1.7 Promptly, upon the filing thereofsame are available, copies of each annual report, proxy or financial statement or other report or communication sent to the holders of the equity interests of Visa Inc. and copies of all annual, regular, periodic and special reports and registration statements (other than any registration statement on Form S-8 and any registration statement in connection with a dividend reinvestment plan, shareholder purchase plan or employee benefit plan) and reports on form 10-K, 10-Q or 8-K (or their equivalents) which the Borrower or any of its Subsidiaries Visa Inc. files with the Securities and Exchange Commission.
6.1.8 Promptly, information regarding any change in Commission under Section 13 or 15(d) of the Borrower’s Debt Rating. Information Securities Exchange Act of 1934 and not otherwise required to be delivered pursuant to these Sections 6.1.1, 6.1.2, and 6.1.7 shall be deemed to have been delivered on the date on which the Borrower provides notice to the Lenders pursuant hereto;
(d) promptly and in any event within 10 Business Days after any Borrower or any ERISA Affiliate knows or has reason to know that any ERISA Event has occurred, a statement of an Authorized Officer of such information has been posted on the Securities and Exchange Commission website on the Internet at ▇▇▇.▇▇▇/▇▇▇▇▇/▇▇▇▇▇▇▇▇.▇▇▇, on the Borrower’s IntraLinks site at ▇▇▇▇▇▇▇▇▇▇.▇▇▇ or at another website identified in Borrower describing such notice and accessible by the Lenders without charge; provided that (i) such notice may be included in a certificate delivered pursuant to Section 6.1.3 and such notice or certificate shall also be deemed to have been delivered upon being posted to the Borrower’s IntraLinks site or such other website and (ii) the Borrower shall deliver paper copies of the information referred to in Sections 6.1.1, 6.1.2 and 6.1.7 to any Lender which requests such delivery.ERISA Event;
Appears in 1 contract
Financial Reporting. The Borrower Parent will maintain, for itself and each Subsidiary, a system of accounting established and administered in accordance with GAAPgenerally accepted accounting principles, and furnish to the Agent and the Lenders:
6.1.1 Within ninety (90a) within 90 days after the close end of each fiscal year, the Parent's consolidated balance sheet and related statement of income and cash flows, showing the financial condition of the Borrower, the Parent and its fiscal years, financial statements prepared in accordance with GAAP Subsidiaries on a consolidated basis for itself and its Subsidiaries, including balance sheets as of the end close of such periodfiscal year and the results of their respective operations during such year, statements the consolidated statement of income and statements of cash flows, setting forth in comparative form figures the Parent to be audited for the preceding fiscal year, accompanied Parent by an audit report, consistent with the requirements of the Securities Deloitte and Exchange Commission, of a nationally recognized firm of independent public accountants Touche LP or other independent public accountants reasonably acceptable to the Required Lenders.
6.1.2 Within forty-five of recognized national standing and accompanied by an opinion of such accountants (45) days after the close of the first three quarterly periods of each of its fiscal years, financial statements prepared which shall not be qualified in accordance with GAAP (any material respect other than with regard respect to the absence of footnotes Chapter 11 Cases or a going concern qualification) and subject to changes resulting from audit and normal year-end audit adjustments to same) on a consolidated basis for itself and its Subsidiaries, including, consolidated unaudited balance sheets as at the close of each such period and consolidated unaudited statements of income and a statement of cash flows for the period from the beginning of such fiscal year to the end of such quarter, in each case setting forth in comparative form figures for the corresponding period be certified by an Authorized Officer of the preceding fiscal year, and accompanied by a certificate of the chief financial officer or treasurer of the Borrower Parent to the effect that such quarterly consolidated financial statements fairly present the financial condition and results of operations of the Borrower, the Parent and its Subsidiaries on a consolidated basis in accordance with Agreement Accounting Principles. Such delivery shall be accompanied by any management letter prepared by such accountants;
(b) within 45 days after the end of each of the first three fiscal quarters, the Parent's consolidated balance sheets and related statements of income and cash flows, showing the financial condition of the Borrower, the Parent and its Subsidiaries on a consolidated basis as of the close of such fiscal quarter and the results of their operations during such fiscal quarter and the then elapsed portion of the fiscal year, each certified by an Authorized Officer as fairly presenting in all material respects the financial condition and results of operations of the Borrower, the Parent and its Subsidiaries on a consolidated basis in accordance with Agreement Accounting Principles, subject to normal year-end audit adjustments and the absence of footnotes;
(i) concurrently with any delivery of financial statements under (a) and (b) above, a certificate of an Authorized Officer (A) certifying that no Default or Unmatured Default, or, if such a Default or Unmatured Default has occurred, specifying the nature and extent thereof and any corrective action taken or proposed to be taken with respect thereto and (B) setting forth computations in reasonable detail satisfactory to the Agent demonstrating compliance with the provisions of Sections 6.22, 6.24, 6.25 and 6.35 and (ii) concurrently with any delivery of financial statements under (a) above, a certificate (which certificate may be limited to accounting matters and disclaim responsibility for legal interpretations) of the accountants auditing the consolidated financial statements delivered under (a) above certifying that, in the course of the regular audit of the business of the Borrower, the Parent and its Subsidiaries, such accountants have obtained no knowledge that a Default has occurred and is continuing, or if, in the opinion of such accountants, a Default has occurred and is continuing, specifying the nature thereof and all relevant facts with respect thereto;
(d) as soon as available, but no more than 30 days after the end of each fiscal month (i) the consolidated and unaudited monthly cash flow reports, consolidated balance sheets and related statements of income of the Borrower and its Subsidiaries on a consolidated basis and as of the close of such fiscal month and the results of their operations during such month and the then elapsed portion of the fiscal quarter, (ii) an updated 13-week rolling cash flow projection together with a weekly reconciliation of such cash flows to actual weekly results, and (iii) a monthly report detailing professional fees and expenses that have been prepared billed and paid or billed but unpaid to date, the accumulated "hold-back" of professional fees and expenses to date, material adverse events or changes (if any) to the financial condition, operations, business, properties, assets or prospects of the Borrower and the Credit Parties taken as a whole and material litigation (if any), each certified by an Authorized Officer of the Parent as fairly presenting in all material respects the financial condition and results of operations of the Borrower, the Parent and its Subsidiaries on a consolidated basis in accordance with GAAP (other than with regard to the absence of footnotes and Agreement Accounting Principles, subject to changes resulting from audit and normal year-end audit adjustments to same).and the absence of footnotes;
6.1.3 Together with the financial statements required under Sections 6.1.1 and 6.1.2, (ie) a compliance certificate in substantially the form of Exhibit B signed by an Authorized Officer (a) showing the calculations necessary to determine compliance with Section 6.16, (b) stating that no Default or Unmatured Default exists, or if any Default or Unmatured Default exists, stating the nature and status thereof and (c) updating Schedule 1 with respect to its Subsidiaries, Material Subsidiaries and Excluded Subsidiaries, if appropriate and (ii) such financial information as reasonable requested by the Agent, including, but not limited to consolidating financial statements, as is necessary to account for Excluded Indebtedness and Excluded EBITDA for purposes of determining the Consolidated Leverage Ratio.
6.1.4 If requested, within 270 days after the close of each fiscal year of the Borrower, a copy of the actuarial report showing the Unfunded Liabilities of each Single Employer Plan as of the valuation date occurring in such fiscal year, certified by an actuary enrolled under ERISA.
6.1.5 As soon as possible possible, and in any event within ten 30 days of the Closing Date, a consolidated proforma balance sheet of the Parent's and its Subsidiaries' financial condition as of the Petition Date;
(10f) promptly after the same become publicly available, copies of all periodic and other reports, proxy statements and other materials filed by it with the Securities and Exchange Commission, or any governmental authority succeeding to any of or all the functions of said commission, or with any national securities exchange, as the case may be;
(g) as soon as available and in any event (A) within 30 days after an Authorized Officer the Borrower or any of its ERISA Affiliates knows or has reason to know that any Reportable Termination Event has occurred described in clause (i) of the definition of Termination Event with respect to any Single Employer Plan of the Borrower or such ERISA Affiliate has occurred and (B) within 10 Business Days after the Borrower or any of its ERISA Affiliates knows or has reason to know that could reasonably be expected any other Termination Event with respect to have a Material Adverse Effectany such Plan has occurred, a statement, signed by statement of an Authorized Officer, Officer of the Borrower describing said Reportable the full details of such Termination Event and the action action, if any, which the Borrower or such ERISA Affiliate is required or proposes to take with respect thereto., together with any notices required or proposed to be given to or filed with or by the Borrower, the ERISA Affiliate, the PBGC, a Plan participant or the Plan administrator with respect thereto;
6.1.6 From (h) promptly and in any event within 10 Business Days after receipt thereof by the Borrower or any of its ERISA Affiliates from the PBGC copies of each notice received by the Borrower or any such ERISA Affiliate of the PBGC's intention to terminate any Single Employer Plan of the Borrower or such ERISA Affiliate or to have a trustee appointed to administer any such Plan;
(i) if requested by Agent promptly and in any event within 30 days after the filing thereof with the Internal Revenue Service, copies of each Schedule B (Actuarial Information) to the annual report (Form 5500 Series) with respect to each Single Employer Plan of the Borrower or any of its ERISA Affiliates;
(j) within 10 Business Days after notice is given or required to be given to the PBGC under Section 302(f)(4)(A) of ERISA of the failure of the Borrower or any of its ERISA Affiliates to make timely payments to a Plan, a copy of any such notice filed and a statement of an Authorized Officer of the Borrower setting forth (A) sufficient information necessary to determine the amount of the lien under Section 302(f)(3) of ERISA, (B) the reason for the failure to make the required payments and (C) the action, if any, which the Borrower or any of its ERISA Affiliates proposed to take with respect thereto;
(k) promptly and in any event within 10 Business Days after receipt thereof by the Borrower or any ERISA Affiliate from a Multiemployer Plan sponsor, a copy of each notice received by the Borrower or any ERISA Affiliate concerning (A) the imposition of Withdrawal Liability by a Multiemployer Plan, (B) the determination that a Multiemployer Plan is, or is expected to be, in reorganization within the meaning of Title IV of ERISA, (C) the termination of a Multiemployer Plan within the meaning of Title IV of ERISA, or (D) the amount of liability incurred, or which may be incurred, by the Borrower or any ERISA Affiliate in connection with any event described in clause (A), (B) or (C) above;
(l) promptly, from time to time time, such additional other information regarding the operations, business affairs and condition (financial position or business and otherwise) and Collateral of the Borrower and its Subsidiaries or any Credit Party, or compliance with the terms of any material loan or financing agreement as the Agent, at the request of any Lender, may reasonably request, including ;
(m) furnish to the support for any pro forma calculations hereunder.
6.1.7 Promptly, upon Lenders and their counsel promptly after the filing thereofsame is available, copies of all registration statements (pleadings, motions, applications, judicial information, financial information and other than any registration statement documents filed by or on Form S-8 and any registration statement in connection with a dividend reinvestment plan, shareholder purchase plan or employee benefit plan) and reports on form 10-K, 10-Q or 8-K (or their equivalents) which behalf of the Borrower or any of the Credit Parties with the Bankruptcy Court in the Chapter 11 Cases, or distributed by or on behalf of the Borrower or any of the Credit Parties to any official committee appointed in the Chapter 11 Cases;
(n) on the fifth Business Day following the end of each seven-day reporting period (or, with respect to the final report to be delivered in any two-month period, following the end of such two-month period), a slot utilization report conforming to the Slot Reporting Guidelines for the most recently completed reporting period, showing, for each airport and time allotment set forth in Schedule 6.1(n) as amended from time to time, the percentage utilization for the Slots for such airport during such time allotment for the cumulative period ending on the last day of such reporting period, certified by an Authorized Officer of the Borrower and stating that the Borrower is conducting its operations and monitoring Slot usage in a manner such that the Borrower should be able to meet the Use or Lose Rule for such Slots with respect to the applicable two-month FAA reporting period;
(o) as soon as available, but in any event within 30 days prior to the beginning of each fiscal year of the Borrower, a copy of the plan and forecast (including a projected consolidated balance sheet, income statement and funds flow statement) of the Parent and its Subsidiaries files for the immediately succeeding fiscal year;
(p) no later than 12:00 noon (Chicago time) on Friday of each week, a variance report identifying the variance to actual thirteen (13) week cash flow projections of each Credit Party and their Subsidiaries for the immediately succeeding thirteen (13) week period, accompanied by such supporting detail and documentation as shall be requested by Agent in its reasonable discretion;
(q) as soon as possible and in any event within 10 days after receipt by any Credit Party, a copy of (a) any notice or claim to the effect that such Credit Party or any of its Subsidiaries is or may be liable to any Person as a result of the release by such Credit Party, any of its Subsidiaries, or any other Person of any toxic or hazardous waste or substance into the environment, and (b) any notice alleging any violation of any federal, state or local environmental, health or safety law or regulation by any Credit Party or any of its Subsidiaries, which, in either case, could reasonably be expected to have a Material Adverse Effect;
(r) promptly upon becoming aware thereof, notice of (a) any dispute, litigation, investigation or proceeding which may exist at any time between any Credit Party or any of its Subsidiaries and any other Person which could reasonably be expected to result, either individually or in the aggregate, in a Material Adverse Effect, or (b) the commencement of or any material development in, any litigation or proceeding affecting any Credit Party in which, if adversely determined, could reasonably be expected to have a Material Adverse Effect or in which the relief sought is an injunction or other stay of the performance of this Agreement or any Loan Document; and
(s) simultaneously with the Securities furnishing thereof to the Additional DIP Lenders, all reports, documents, certificates and Exchange Commission.
6.1.8 Promptly, other information regarding any change in the Borrower’s Debt Rating. Information required to be delivered furnished to the Additional DIP Lenders pursuant to these Sections 6.1.1, 6.1.2, and 6.1.7 shall be deemed to have been delivered on the date on which the Borrower provides notice to the Lenders that such information has been posted on the Securities and Exchange Commission website on the Internet at ▇▇▇Additional DIP Credit Agreement.▇▇▇/▇▇▇▇▇/▇▇▇▇▇▇▇▇.▇▇▇, on the Borrower’s IntraLinks site at ▇▇▇▇▇▇▇▇▇▇.▇▇▇ or at another website identified in such notice and accessible by the Lenders without charge; provided that (i) such notice may be included in a certificate delivered pursuant to Section 6.1.3 and such notice or certificate shall also be deemed to have been delivered upon being posted to the Borrower’s IntraLinks site or such other website and (ii) the Borrower shall deliver paper copies of the information referred to in Sections 6.1.1, 6.1.2 and 6.1.7 to any Lender which requests such delivery.
Appears in 1 contract
Sources: Credit Agreement (Ual Corp /De/)
Financial Reporting. The Borrower will maintain, for itself and each Subsidiary, a system of accounting established and administered in accordance with GAAPthe Agreement Accounting Principles, and furnish to the Administrative Agent and in sufficient copies for each of the Lenders:
6.1.1 (i) Within ninety one hundred twenty (90120) days after the close of each of its fiscal yearsyears (or, financial statements if earlier, within thirty (30) days after the Borrower is required to file its Annual Report on Form 10-K with the Securities and Exchange Commission for such fiscal year), an unqualified (except for qualifications relating to changes in Agreement Accounting Principles or practices reflecting changes in Agreement Accounting Principles and required or approved by the Borrower’s independent certified public accountants) audit report certified by independent certified public accountants reasonably acceptable to the Lenders, prepared in accordance with GAAP the Agreement Accounting Principles on a consolidated and consolidating basis (consolidating statements need not be certified by such accountants) for itself and its Subsidiaries, including balance sheets as of the end of such period, statements related profit and loss and reconciliation of income surplus statements, and statements a statement of cash flows, setting forth in comparative form figures for . Delivery by the preceding fiscal year, accompanied by an audit report, consistent Borrower to the Administrative Agent of copies of the Parent’s Annual Report on Form 10-K filed with the requirements of the Securities and Exchange Commission, of a nationally recognized firm of independent public accountants or other independent public accountants reasonably acceptable Commission for any year shall satisfy the Borrower’s obligation under this clause (i) with respect to the Required Lenderssuch year.
6.1.2 (ii) Within forty-five sixty (4560) days after the close of the first three (3) quarterly period of each of its fiscal years (or, if earlier, within fifteen (15) days after the Borrower is required to file its Quarterly Report on Form 10-Q for with the Securities and Exchange Commission for such period), consolidated and consolidating unaudited balance sheets as at the close of each the first three (3) quarterly periods of each of its fiscal years, financial statements prepared in accordance with GAAP (other than with regard to the absence of footnotes and subject to changes resulting from audit and normal year-end audit adjustments to same) on a consolidated basis for itself and its Subsidiaries, including, consolidated unaudited balance sheets as at the close of each such period Subsidiaries and consolidated unaudited and consolidating profit and loss and reconciliation of surplus statements of income and a statement of cash flows for the period from the beginning of such fiscal year to the end of such quarter, in each case setting forth in comparative form figures for the corresponding period of the preceding fiscal year, and accompanied all certified by a certificate of the chief financial officer or treasurer of an Authorized Officer. Delivery by the Borrower to the effect that such quarterly financial statements fairly present in all material respects the financial condition Administrative Agent of copies of the Borrower Borrower’s Quarterly Report on Form 10-Q filed with the Securities and its Subsidiaries and have been prepared in accordance Exchange Commission for any quarter shall satisfy the Borrower’s obligation under this clause (ii) with GAAP (other than with regard respect to the absence of footnotes and subject to changes resulting from audit and normal year-end audit adjustments to same)such quarter.
6.1.3 (iii) Together with the financial statements required under Sections 6.1.1 6.1(i) and 6.1.2(ii), (iA) a compliance certificate in substantially the form of Exhibit B A signed by an Authorized Officer (a) showing the calculations necessary to determine compliance with Section 6.16, (b) this Agreement and stating that no Default or Unmatured Default exists, or if any Default or Unmatured Default exists, stating the nature and status thereof and (cB) updating Schedule 1 with respect to its Subsidiaries, Material Subsidiaries and Excluded Subsidiaries, if appropriate and (iia calculation of the Indebtedness secured by Liens permitted under Section 6.11(xiii) in such financial information as reasonable requested by the Agent, including, but not limited to consolidating financial statements, form as is necessary reasonably satisfactory to account for Excluded Indebtedness and Excluded EBITDA for purposes of determining the Consolidated Leverage RatioAdministrative Agent.
6.1.4 If requested, within 270 days after the close of each fiscal year of the Borrower, a copy of the actuarial report showing the Unfunded Liabilities of each Single Employer Plan as of the valuation date occurring in such fiscal year, certified by an actuary enrolled under ERISA.
6.1.5 (iv) As soon as possible practicable and in any event within ten (10) days after an Authorized Officer the Borrower knows that of the occurrence of any Reportable ERISA Event has occurred with respect to any Plan that could reasonably be expected to have a Material Adverse Effect, Effect (x) a statement, signed by written statement of an Authorized Officer, describing said Reportable Officer of the Borrower specifying the details of such ERISA Event and the action which that the Borrower or ERISA Affiliate has taken and proposes to take with respect thereto, (y) a copy of any notice with respect to such ERISA Event that may be required to be filed with the PBGC and (z) a copy of any notice delivered by the PBGC to the Borrower or an ERISA Affiliate with respect to such ERISA Event.
6.1.6 From time (v) As soon as practicable and in any event within ten (10) days after receipt by the Borrower, a copy of (a) any notice or claim to time such additional information regarding the financial position effect that the Borrower or business any of its Subsidiaries is or may be liable to any Person as a result of the Borrower and release by the Borrower, any of its Subsidiaries as the AgentSubsidiaries, at the request or any other Person of any Lendertoxic or hazardous waste or substance into the environment, may and (b) any notice alleging any violation of any federal, state or local environmental, health or safety law or regulation by the Borrower or any of its Subsidiaries, which, in either case, could reasonably request, including the support for any pro forma calculations hereunderbe expected to have a Material Adverse Effect.
6.1.7 Promptly(vi) Promptly upon the furnishing thereof to the shareholders of the Borrower, copies of all financial statements and reports so furnished.
(vii) Promptly upon the filing thereof, copies of all registration statements (and annual, quarterly, monthly or other than any registration statement on Form S-8 and any registration statement in connection with a dividend reinvestment plan, shareholder purchase plan or employee benefit plan) and regular reports on form 10-K, 10-Q or 8-K (or their equivalents) which the Borrower or any of its Subsidiaries files with the Securities and Exchange Commission.
6.1.8 Promptly(viii) Promptly upon the request thereof, such other information regarding and documentation required under applicable “know your customer” rules and regulations, the PATRIOT Act or any change applicable Anti-Money Laundering Laws or Anti-Corruption Laws, in the Borrower’s Debt Rating. Information required each case as from time to be delivered pursuant to these Sections 6.1.1, 6.1.2, and 6.1.7 shall be deemed to have been delivered on the date on which the Borrower provides notice to the Lenders that such information has been posted on the Securities and Exchange Commission website on the Internet at ▇▇▇.▇▇▇/▇▇▇▇▇/▇▇▇▇▇▇▇▇.▇▇▇, on the Borrower’s IntraLinks site at ▇▇▇▇▇▇▇▇▇▇.▇▇▇ or at another website identified in such notice and accessible time reasonably requested by the Lenders without charge; provided that Administrative Agent or any Lender.
(iix) such notice may be included in a certificate delivered pursuant to Section 6.1.3 and such notice Such other information (including nonfinancial information) as the Administrative Agent or certificate shall also be deemed to have been delivered upon being posted to the Borrower’s IntraLinks site or such other website and (ii) the Borrower shall deliver paper copies of the information referred to in Sections 6.1.1, 6.1.2 and 6.1.7 to any Lender which requests such deliverymay from time to time reasonably request.
Appears in 1 contract
Sources: Credit Agreement
Financial Reporting. The Borrower will maintain, for itself and each Subsidiary, a system of accounting established and administered in accordance with GAAP, and furnish to the Agent and the LendersAdministrative Agent:
6.1.1 Within ninety (90i) days after the close of each of its fiscal years, financial statements prepared in accordance with GAAP on a consolidated basis for itself and its Subsidiaries, including balance sheets as of the end of such period, statements of income and statements of cash flows, setting forth in comparative form figures for the preceding fiscal year, accompanied by an audit report, consistent with the requirements of the Securities and Exchange Commission, of a nationally recognized firm of independent public accountants or other independent public accountants reasonably acceptable to the Required Lenders.
6.1.2 Within Not later than forty-five (45) days after the close of each of the first three quarterly periods (3) fiscal quarters of each of its fiscal yearsyear, financial statements prepared in accordance commencing with GAAP (other than with regard to the absence of footnotes and subject to changes resulting from audit and normal year-end audit adjustments to same) on a consolidated basis fiscal quarter ended June 30, 2022, for itself the Borrower and its Subsidiaries, including, a copy of Borrower’s financial statements in the form filed under 10-Q which shall include an unaudited consolidated unaudited balance sheets sheet as at of the close of each such period and the related unaudited consolidated unaudited statements of income and a statement retained earnings and of cash flows for the period from the beginning of such fiscal year to the end of such quarter, in each case setting forth in comparative form figures for the corresponding period of the preceding fiscal year, and accompanied by a certificate of the chief financial officer or treasurer of the Borrower to the effect that such quarterly financial statements fairly present in all material respects the financial condition of the Borrower and its Subsidiaries for such period and have been prepared the portion of the fiscal year through the end of such period, setting forth in accordance with GAAP each case in comparative form the figures for the previous year, all certified by SITE’s chief financial officer or chief accounting officer;
(ii) Not later than forty-five (45) days after the close of each of the first three (3) fiscal quarters, for the Borrower and its Subsidiaries, a copy of the Borrower’s quarterly financial supplement and other than with regard schedules as may be required containing the following reports in form and substance reasonably satisfactory to the absence Lenders, which may be in the form filed as its 10-Q, all certified by SITE’s chief financial officer or chief accounting officer: a statement of footnotes Funds From Operations, a statement detailing Consolidated Outstanding Indebtedness, Consolidated Secured Indebtedness, Consolidated Unsecured Indebtedness, Consolidated Cash Flow and, upon request, an asset schedule listing all consolidated assets and subject their net operating income with a breakdown between Unencumbered Assets and other assets, and Acquisition Assets. Borrower will provide such other information as may be reasonably requested;
(iii) Not later than ninety (90) days after the close of each fiscal year, for the Borrower and its Subsidiaries, (A) audited annual financial statements in the form filed as 10-K, including a consolidated balance sheet as at the end of such year and the related consolidated statements of income and retained earnings and of cash flows for such year, setting forth in each case in comparative form the figures for the previous year, without a “going concern” or like qualification or exception, or qualification arising out of the scope of the audit, prepared by PricewaterhouseCoopers (or other independent certified public accountants of nationally recognized standing reasonably acceptable to changes resulting from audit Administrative Agent) and normal year-end audit adjustments to same).(B) an asset schedule listing all consolidated assets and their net operating income with a breakdown between Unencumbered Assets and other assets, and Acquisition Assets;
6.1.3 (iv) Together with the quarterly and annual financial statements required under Sections 6.1.1 and 6.1.2hereunder, (i) a compliance certificate in substantially the form of Exhibit B C hereto signed by an Authorized Officer (a) SITE’s chief financial officer or chief accounting officer showing the calculations and computations necessary to determine compliance with Section 6.16this Agreement and stating that, (b) stating that to such officer’s knowledge, no Default or Unmatured Default exists, or if if, to such officer’s knowledge, any Default or Unmatured Default exists, stating the nature and status thereof and thereof;
(cv) updating Schedule 1 with respect to its Subsidiaries, Material Subsidiaries and Excluded Subsidiaries, if appropriate and (ii) such financial information as reasonable requested by the Agent, including, but not limited to consolidating financial statements, as is necessary to account for Excluded Indebtedness and Excluded EBITDA for purposes of determining the Consolidated Leverage Ratio.
6.1.4 If requested, within 270 days after the close of each fiscal year of the Borrower, a copy of the actuarial report showing the Unfunded Liabilities of each Single Employer Plan as of the valuation date occurring in such fiscal year, certified by an actuary enrolled under ERISA.
6.1.5 As soon as possible Promptly and in any event within ten (10) days after an Authorized Officer a responsible officer of SITE knows that any Reportable Event has occurred with respect to any Plan that could reasonably be expected to have a Material Adverse EffectPlan, a statement, signed by an Authorized Officerthe chief financial officer of SITE, describing said Reportable Event and the action which the Borrower proposes to take with respect thereto.;
6.1.6 From time to time such additional information regarding the financial position or business (vi) Promptly and in any event within ten (10) days after receipt by an Authorized Officer of the Borrower, a copy of (a) any notice or claim to the effect that the Borrower and or any of its Subsidiaries is or may be liable to any Person as a result of the Agentrelease by the Borrower, at the request any of its Subsidiaries, or any other Person of any Lendertoxic or hazardous waste or substance into the environment, may (b) any notice alleging any violation of any federal, state or local environmental, health or safety law or regulation by the Borrower or any of its Subsidiaries, and (c) the filing or commencement of any action, suit, proceeding or investigation by or before any Governmental Authority or arbitrator against or affecting the Borrower or any Subsidiary which, in any case, would reasonably requestbe expected to have a Material Adverse Effect;
(vii) Promptly upon the furnishing thereof to the shareholders of the Borrower, including the support for any pro forma calculations hereunder.copies of all financial statements, reports and proxy statements so furnished;
6.1.7 Promptly, (viii) Promptly upon the filing thereof, copies of all registration statements (and annual, quarterly, monthly or other than any registration statement on Form S-8 reports and any registration statement in connection with a dividend reinvestment plan, shareholder purchase plan or employee benefit plan) and reports on form 10-K, 10-Q or 8-K (or their equivalents) other public information which the Borrower or any of its Subsidiaries files with the Securities and Exchange Commission.; and
6.1.8 Promptly(A) Such other information (including, without limitation, financial statements for the Borrower and non-financial information) as the Administrative Agent or any Lender may from time to time reasonably request, (B) information regarding and documentation reasonably requested by the Administrative Agent or any Lender for purposes of compliance with applicable “know your customer” and anti-money laundering rules and regulations, including the Patriot Act and the Beneficial Ownership Regulation, (C) notice of any change in the Borrower’s Debt Ratinginformation provided in any Beneficial Ownership Certification delivered to such Lender that would result in a change to the list of beneficial owners identified in such certification, and (D) such other information regarding sustainability matters and practices of the Borrower or any Subsidiary (including with respect to corporate governance, environmental, social and employee matters, respect for human rights, anti-corruption and anti-bribery) as the Administrative Agent or any Lender may reasonably request for purposes of compliance with any legal or regulatory requirement or internal policies applicable to it. Information Documents required to be delivered pursuant to these Sections 6.1.16.1(i), 6.1.2(ii), (iii), (vii) or (viii) (to the extent any such documents are included in materials otherwise filed with the Securities and 6.1.7 Exchange Commission) may be delivered electronically and if so delivered, shall be deemed to have been delivered on the date (i) on which the Borrower posts such documents, or provides notice to the Lenders that such information has been posted a link thereto, on the Securities and Exchange Commission Borrower’s website on the Internet at ▇▇▇.▇▇▇/▇▇▇▇▇/▇▇▇▇▇▇▇▇.▇▇▇, the website address listed in Article XIII; or (ii) on which such documents are posted on the Borrower’s IntraLinks site at ▇▇▇▇▇▇▇▇▇▇.▇▇▇ behalf on an Internet or at another intranet website, if any, to which each Lender and the Administrative Agent have access (whether a commercial, third-party website identified in such notice and accessible or whether sponsored by the Lenders without charge; provided Administrative Agent). The Administrative Agent shall have no obligation to request the delivery of or to maintain paper copies of the documents referred to above, and in any event shall have no responsibility to monitor compliance by the Borrower with any such request by a Lender for delivery, and each Lender shall be solely responsible for requesting delivery to it or maintaining its copies of such documents. The Borrower hereby acknowledges that (ia) such notice the Administrative Agent and/or the Joint Lead Arrangers will make available to the Lenders materials and/or information provided by or on behalf of the Borrower hereunder (collectively, “Borrower Materials”) by posting the Borrower Materials on the Approved Electronic Platform and (b) certain of the Lenders may be included in “public-side” Lenders (i.e., Lenders that do not wish to receive material non-public information with respect to the Borrower or its securities) (each, a certificate delivered pursuant “Public Lender”). The Borrower hereby agrees that (w) all Borrower Materials that are to Section 6.1.3 be made available to Public Lenders shall be clearly and such notice or certificate conspicuously marked “PUBLIC” which, at a minimum, shall also mean that the word “PUBLIC” shall appear prominently on the first page thereof; (x) by marking Borrower Materials “PUBLIC,” the Borrower shall be deemed to have been delivered upon being posted authorized the Administrative Agent, the Joint Lead Arrangers, and the Lenders to treat such Borrower Materials as not containing any material non-public information with respect to the Borrower’s IntraLinks site Borrower or such other website its securities for purposes of United States Federal and state securities laws; (y) all Borrower Materials marked “PUBLIC” are permitted to be made available through a portion of the Approved Electronic Platform designated “Public Side Information;” and (iiz) the Administrative Agent and the Joint Lead Arrangers shall treat any Borrower shall deliver paper copies Materials that are not marked “PUBLIC” as being suitable only for posting on a portion of the information referred to in Sections 6.1.1, 6.1.2 and 6.1.7 to any Lender which requests such deliveryApproved Electronic Platform not designated “Public Side Information.”
Appears in 1 contract
Financial Reporting. The Borrower will maintain, for itself and each Subsidiary, a system of accounting established and administered in accordance with GAAP, and Credit Parties agree to furnish or cause to be furnished to the Agent and the Lenders:
6.1.1 Within ninety (90i) within one hundred five (105) days after the close of each of its fiscal years, financial statements prepared in accordance with GAAP on a consolidated basis for itself and its Subsidiaries, including balance sheets as of the end of such period, statements of income and statements of cash flows, setting forth in comparative form figures for the preceding fiscal year, accompanied by an audit report, consistent with the requirements of the Securities and Exchange Commission, of a nationally recognized firm of independent public accountants or other independent public accountants reasonably acceptable to the Required Lenders.
6.1.2 Within forty-five (45) days after the close of the first three quarterly periods of each of its fiscal years, financial statements prepared in accordance with GAAP (other than with regard to the absence of footnotes and subject to changes resulting from audit and normal year-end audit adjustments to same) on a consolidated basis for itself and its Subsidiaries, including, consolidated unaudited balance sheets as at the close of each such period and consolidated unaudited statements of income and a statement of cash flows for the period from the beginning of such fiscal year to the end of such quarter, in each case setting forth in comparative form figures for the corresponding period of the preceding fiscal year, and accompanied by a certificate of the chief financial officer or treasurer of the Borrower to the effect that such quarterly financial statements fairly present in all material respects the financial condition of the Borrower and its Subsidiaries and have been prepared in accordance with GAAP (other than with regard to the absence of footnotes and subject to changes resulting from audit and normal year-end audit adjustments to same).
6.1.3 Together with the financial statements required under Sections 6.1.1 and 6.1.2, (i) a compliance certificate in substantially the form of Exhibit B signed by an Authorized Officer (a) showing the calculations necessary to determine compliance with Section 6.16, (b) stating that no Default or Unmatured Default exists, or if any Default or Unmatured Default exists, stating the nature and status thereof and (c) updating Schedule 1 with respect to its Subsidiaries, Material Subsidiaries and Excluded Subsidiaries, if appropriate and (ii) such financial information as reasonable requested by the Agent, including, but not limited to consolidating financial statements, as is necessary to account for Excluded Indebtedness and Excluded EBITDA for purposes of determining the Consolidated Leverage Ratio.
6.1.4 If requested, within 270 days after the close of each fiscal year of the BorrowerCompany, a copy Consolidated Balance Sheet as at the close of such year, and consolidated statements of profit and loss and cash flow of the actuarial report showing Company and its consolidated subsidiaries for such year, audited by independent public accountants selected by the Unfunded Liabilities Company and satisfactory to the Agent, together with (x) the unqualified opinion of the accountants preparing such financial statements and (y) if requested by the Agent, such accountants’ management practice letter;
(ii) within thirty (30) days after the end of each Single Employer Plan month, (x) a Consolidated Balance Sheet as at the end of such month, (y) consolidated statements of profit and loss and cash flow of the valuation Company and its consolidated subsidiaries for such month and for the period commencing on the first day of the current fiscal year through the end of such month, and (z) comparative statements of profit and loss and cash flow of the Company and its consolidated subsidiaries for the same month and same fiscal year-to-date occurring period in such the prior fiscal year, certified by an actuary enrolled under ERISA.a Responsible Officer;
6.1.5 As soon (iii) as possible and when delivered by any Credit Party (but without duplication with any reporting requirement contained in any event within ten (10) days after an Authorized Officer knows that any Reportable Event has occurred with respect to any Plan that could reasonably be expected to have a Material Adverse Effect, a statement, signed by an Authorized Officer, describing said Reportable Event and the action which the Borrower proposes to take with respect thereto.
6.1.6 From time to time such additional information regarding the financial position or business of the Borrower and its Subsidiaries as the Agent, at the request of any Lender, may reasonably request, including the support for any pro forma calculations hereunder.
6.1.7 Promptly, upon the filing thereofthis Financing Agreement), copies of all notices, certificates and reports required to be delivered to Contrarian pursuant to the Contrarian Transaction Documents, including, without limitation, financial covenant compliance certificates and supporting documentation;
(iv) as and when filed by any Credit Party, copies of all (x) financial reports, registration statements (and other than any registration statement on Form S-8 and any registration statement in connection with a dividend reinvestment plan, shareholder purchase plan or employee benefit plan) and reports on form 10-K, 10-Q or 8-K (or their equivalents) which the Borrower or any of its Subsidiaries files documents filed by such Credit Party with the U.S. Securities and Exchange Commission.
6.1.8 Promptly, information regarding any change in the Borrower’s Debt Rating. Information required to be delivered pursuant to these Sections 6.1.1as and when filed by such Credit Party, 6.1.2, and 6.1.7 shall be deemed to have been delivered on the date on which the Borrower provides notice to the Lenders that such information has been posted on the Securities and Exchange Commission website on the Internet at ▇▇▇.▇▇▇/▇▇▇▇▇/▇▇▇▇▇▇▇▇.▇▇▇, on the Borrower’s IntraLinks site at ▇▇▇▇▇▇▇▇▇▇.▇▇▇ or at another website identified in such notice and accessible by the Lenders without charge; provided that (i) such notice may be included in a certificate delivered pursuant to Section 6.1.3 and such notice or certificate shall also be deemed to have been delivered upon being posted to the Borrower’s IntraLinks site or such other website and (ii) annual reports filed pursuant to ERISA in connection with each Plan of such Credit Party; and
(v) no later than thirty (30) days after the Borrower shall deliver paper copies beginning of each fiscal year of the information referred Company, monthly projections of the Consolidated Balance Sheet of the Company and its consolidated subsidiaries, and consolidated statements of profits and loss and cash flow of the Company and its consolidated subsidiaries, as well as monthly projected Net Availability for the Company for such fiscal year. Each annual and quarter-end financial statement which the Credit Parties are required to submit or to cause to be submitted pursuant to clauses (i) and (ii) above must be accompanied by a Compliance Certificate signed by a Responsible Officer. In addition, should any Credit Party modify its accounting principles and procedures from those in Sections 6.1.1effect on the Closing Date, 6.1.2 such Credit Party agrees to prepare and 6.1.7 deliver to any Lender which requests such deliverythe Agent and the Lenders statements of reconciliation in form and substance reasonably satisfactory to the Agent.
Appears in 1 contract
Financial Reporting. The Borrower will maintain, for itself and each Subsidiary, a system of accounting established and administered in accordance with GAAPthe Agreement Accounting Principles, and furnish to the Administrative Agent and in sufficient copies for each of the Lenders:
6.1.1 (i) Within ninety one hundred twenty (90120) days after the close of each of its fiscal yearsyears (or, financial statements if earlier, within thirty (30) days after the Borrower is required to file its Annual Report on Form 10-K with the Securities and Exchange Commission for such fiscal year), an unqualified (except for qualifications relating to changes in Agreement Accounting Principles or practices reflecting changes in Agreement Accounting Principles and required or approved by the Borrower’s independent registered public accountants) audit report certified by independent registered public accountants reasonably acceptable to the Lenders, prepared in accordance with GAAP the Agreement Accounting Principles on a consolidated and consolidating basis (consolidating statements need not be certified by such accountants) for itself and its Subsidiaries, including balance sheets as of the end of such period, statements related profit and loss and reconciliation of income surplus statements, and statements a statement of cash flows, setting forth in comparative form figures for . Delivery by the preceding fiscal year, accompanied by an audit report, consistent Borrower to the Administrative Agent of copies of the Borrower’s Annual Report on Form 10-K filed with the requirements of the Securities and Exchange Commission, of a nationally recognized firm of independent public accountants or other independent public accountants reasonably acceptable Commission for any year shall satisfy the Borrower’s obligation under this clause (i) with respect to the Required Lenderssuch year.
6.1.2 (ii) Within forty-five sixty (4560) days after the close of the first three quarterly periods of each of its fiscal yearsyears (or, financial statements prepared in accordance if earlier, within fifteen (15) days after the Borrower is required to file its Quarterly Report on Form 10-Q for with GAAP (other than with regard to the absence of footnotes Securities and subject to changes resulting from audit and normal year-end audit adjustments to same) on a consolidated basis Exchange Commission for itself and its Subsidiaries, includingsuch period), consolidated and consolidating unaudited balance sheets as at the close of each such period the first three quarterly periods of each of its fiscal years, for itself and its Subsidiaries and consolidated unaudited and consolidating profit and loss and reconciliation of surplus statements of income and a statement of cash flows for the period from the beginning of such fiscal year to the end of such quarter, in each case setting forth in comparative form figures for the corresponding period of the preceding fiscal year, and accompanied all certified by a certificate of the chief financial officer or treasurer of an Authorized Officer. Delivery by the Borrower to the effect that such quarterly financial statements fairly present in all material respects the financial condition Administrative Agent of copies of the Borrower Borrower’s Quarterly Report on Form 10-Q filed with the Securities and its Subsidiaries and have been prepared in accordance Exchange Commission for any quarter shall satisfy the Borrower’s obligation under this clause (ii) with GAAP (other than with regard respect to the absence of footnotes and subject to changes resulting from audit and normal year-end audit adjustments to same)such quarter.
6.1.3 (iii) Together with the financial statements required under Sections 6.1.1 6.1(i) and 6.1.2(ii), (iA) a compliance certificate in substantially the form of Exhibit B signed by an Authorized Officer (a) showing the calculations necessary to determine compliance with Section 6.16, (b) this Agreement and stating that no Default or Unmatured Default exists, or if any Default or Unmatured Default exists, stating the nature and status thereof and (cB) updating Schedule 1 with respect to its Subsidiaries, Material Subsidiaries and Excluded Subsidiaries, if appropriate and (iia calculation of the Indebtedness secured by Liens permitted under Section 6.11(xiii) in such financial information as reasonable requested by the Agent, including, but not limited to consolidating financial statements, form as is necessary reasonably satisfactory to account for Excluded Indebtedness and Excluded EBITDA for purposes of determining the Consolidated Leverage RatioAdministrative Agent.
6.1.4 If requested, within 270 days after the close of each fiscal year of the Borrower, a copy of the actuarial report showing the Unfunded Liabilities of each Single Employer Plan as of the valuation date occurring in such fiscal year, certified by an actuary enrolled under ERISA.
6.1.5 (iv) As soon as possible and in any event within ten (10) days after an Authorized Officer the Borrower knows that any Reportable Event has occurred with respect to any Plan that could reasonably be expected to have a Material Adverse EffectPlan, a statement, signed by an Authorized Officer, describing said Reportable Event and the action which the Borrower proposes to take with respect thereto.
6.1.6 From time (v) As soon as possible and in any event within ten (10) days after receipt by the Borrower, a copy of (a) any notice or claim to time such additional information regarding the financial position effect that the Borrower or business any of its Subsidiaries is or may be liable to any Person as a result of the release by the Borrower, any of its Subsidiaries, or any other Person of any toxic or hazardous waste or substance into the environment, and (b) any notice alleging any violation of any federal, state or local environmental, health or safety law or regulation by the Borrower or any of its Subsidiaries, which, in either case, could reasonably be expected to have a Material Adverse Effect.
(vi) Promptly upon the furnishing thereof to (a) any shareholders of the Borrower (other than the Parent) or (b) the shareholders of the Parent, copies of all financial statements and its Subsidiaries as the Agent, at the request of any Lender, may reasonably request, including the support for any pro forma calculations hereunderreports so furnished.
6.1.7 Promptly, (vii) Promptly upon the filing thereof, copies of all registration statements (and annual, quarterly, monthly or other than any registration statement on Form S-8 and any registration statement in connection with a dividend reinvestment plan, shareholder purchase plan or employee benefit plan) and regular reports on form 10-K, 10-Q or 8-K (or their equivalents) which the Borrower or any of its Subsidiaries files with the Securities and Exchange Commission.
6.1.8 Promptly, (viii) Such other information regarding (including nonfinancial information) as the Administrative Agent or any Lender may from time to time reasonably request.
(ix) Promptly after Moody’s or S&P shall have announced a change in the Borrower’s Debt Rating. Information required to be delivered pursuant to these Sections 6.1.1, 6.1.2, and 6.1.7 shall be rating established or deemed to have been delivered on established for the date on which the Borrower provides Index Debt, written notice to the Lenders that of such information has been posted on the Securities and Exchange Commission website on the Internet at ▇▇▇rating change.▇▇▇/▇▇▇▇▇/▇▇▇▇▇▇▇▇.▇▇▇, on the Borrower’s IntraLinks site at ▇▇▇▇▇▇▇▇▇▇.▇▇▇ or at another website identified in such notice and accessible by the Lenders without charge; provided that (i) such notice may be included in a certificate delivered pursuant to Section 6.1.3 and such notice or certificate shall also be deemed to have been delivered upon being posted to the Borrower’s IntraLinks site or such other website and (ii) the Borrower shall deliver paper copies of the information referred to in Sections 6.1.1, 6.1.2 and 6.1.7 to any Lender which requests such delivery.
Appears in 1 contract
Sources: Term Loan Credit Agreement
Financial Reporting. The Borrower will maintain, for itself and each Subsidiary, a system of accounting established and administered in accordance with GAAPAgreement Accounting Principles, and furnish to the Agent and each of the Lenders:
6.1.1 Within ninety (90i) As soon as available and in any event within 50 days after the close end of each quarterly fiscal period of its each fiscal yearsyear of the Borrower (except the last fiscal quarter), financial Consolidated statements prepared in accordance with GAAP on a consolidated basis for itself of income, retained earnings and cash flow of the Borrower and its SubsidiariesSubsidiaries and Consolidating statements of income and balance sheet of the Borrower, including balance sheets as its Significant Subsidiaries and its Subsidiaries having assets in excess of 5% of the Borrower's Consolidated total assets, each for such period and for the period from the beginning of the respective fiscal year to the end of such period, and the related Consolidated balance sheet of the Borrower and its Subsidiaries as at the end of such period, setting forth in each case in comparative form the corresponding Consolidated figures for the corresponding period in the preceding fiscal year, accompanied by a certificate of an Authorized Officer of the Borrower, which certificate shall state that those Consolidated financial statements fairly present, respectively, the Consolidated financial condition and results of operations of the Borrower and its Subsidiaries and the Consolidating financial condition and results of operations of the Borrower, its Significant Subsidiaries and Subsidiaries having assets in excess of 5% of the Borrower's Consolidated total assets, in each case in accordance with Agreement Accounting Principles, consistently applied, as at the end of, and for, such period (subject to normally recurring audit adjustments).
(ii) As soon as available and in any event within 95 days after the end of each fiscal year of the Borrower, Consolidated statements of income, retained earnings and cash flow of the Borrower and its Subsidiaries and Consolidating statements of income and statements balance sheet of cash flowsthe Borrower, its Significant Subsidiaries and Subsidiaries having assets in excess of 5% of the Borrower's Consolidated total assets, each for such fiscal year and the related Consolidated balance sheet of the Borrower and its Subsidiaries as at the end of such fiscal year, setting forth in each case in comparative form the corresponding Consolidated figures for the preceding fiscal year, accompanied and accompanied, in the case of the Consolidated balance sheet of the Borrower, by an audit report, consistent with the requirements of the Securities and Exchange Commission, of a nationally recognized firm unqualified opinion of independent certified public accountants or other independent public accountants reasonably acceptable to the Required Lenders.
6.1.2 Within forty-five (45) days after the close of the first three quarterly periods of each of its fiscal yearsrecognized national standing, financial statements prepared in accordance with GAAP (other than with regard to the absence of footnotes and subject to changes resulting from audit and normal year-end audit adjustments to same) on a consolidated basis for itself and its Subsidiaries, including, consolidated unaudited balance sheets as at the close of each such period and consolidated unaudited statements of income and a statement of cash flows for the period from the beginning of such fiscal year to the end of such quarter, in each case setting forth in comparative form figures for the corresponding period of the preceding fiscal year, and accompanied by a certificate of the chief financial officer or treasurer of the Borrower to the effect which opinion shall state that such quarterly those Consolidated financial statements fairly present in all material respects present, respectively, the Consolidated financial condition and results of operations of the Borrower and its Subsidiaries Subsidiaries, as at the end of, and have been prepared for, such fiscal year in accordance with GAAP (other than with regard to the absence of footnotes and subject to changes resulting from audit and normal year-end audit adjustments to same)Agreement Accounting Principles, consistently applied.
6.1.3 (iii) Together with the financial statements required under in Sections 6.1.1 7.1(i) and 6.1.2(ii), (i) a compliance certificate in substantially the form of Exhibit B hereto (a "Compliance Certificate") signed by an Authorized Officer (a) showing the calculations necessary to determine compliance with Section 6.16, (b) this Agreement and stating that no Default or Unmatured Default exists, or if any Default or Unmatured Default exists, stating the nature and status thereof and (c) updating Schedule 1 with respect to its Subsidiaries, Material Subsidiaries and Excluded Subsidiaries, if appropriate and (ii) such financial information as reasonable requested by the Agent, including, but not limited to consolidating financial statements, as is necessary to account for Excluded Indebtedness and Excluded EBITDA for purposes of determining the Consolidated Leverage Ratiothereof.
6.1.4 If requested, within 270 days after the close of each fiscal year of the Borrower, a copy of the actuarial report showing the Unfunded Liabilities of each Single Employer Plan as of the valuation date occurring in such fiscal year, certified by an actuary enrolled under ERISA.
6.1.5 (iv) As soon as possible and in any event within ten (10) 50 days after the end of each calendar quarter, a report setting forth the aging of the Mortgage Loans and any Mortgage securing a REMIC Certificate and each Operator which operates, leases or has Mortgage Loans in excess of 15% of the Borrower's Total Investments, together with a Borrowing Base Certificate signed by an Authorized Officer showing the calculations necessary to determine compliance with this Agreement and stating that no Default exists, or if any Default exists, stating the nature and status thereof.
(v) As soon as possible and in any event within 10 days after the Borrower knows that any Reportable Event has occurred with respect to any Plan that could reasonably be expected to have a Material Adverse EffectSingle Employer Plan, a statement, signed by an Authorized Officer, describing said Reportable Event and the action which the Borrower proposes to take with respect thereto.
6.1.6 From time (vi) As soon as possible and in any event within 10 days after receipt by the Borrower, a copy of (a) any notice or claim to time such additional information regarding the financial position effect that the Borrower or business any of its Subsidiaries is or may be liable to any Person as a result of the Borrower and release by the Borrower, any of its Subsidiaries as the AgentSubsidiaries, at the request or any other Person of any Lendertoxic or hazardous waste or substance into the environment and (b) any notice alleging any violation of any federal, may reasonably requeststate or local environmental, including health or safety law or regulation by the support for Borrower or any pro forma calculations hereunderof its Subsidiaries, which, in either case, could have a Material Adverse Effect.
6.1.7 Promptly(vii) Promptly upon the furnishing thereof to the shareholders of the Borrower, copies of all financial statements, reports and proxy statements so furnished.
(viii) Promptly upon the filing thereof, copies of all registration statements (and all other than any registration statement on Form S-8 filings and any registration statement in connection with a dividend reinvestment planannual, shareholder purchase plan quarterly, monthly or employee benefit plan) and other regular reports on form 10-K, 10-Q or 8-K (or their equivalents) statutory statements which the Borrower or any of its Subsidiaries files with the Securities and Exchange CommissionSEC or any insurance or regulatory agency.
6.1.8 Promptly(ix) As soon as possible and in any event as soon as the Borrower knows of any litigation or administrative or regulatory proceeding affecting the Borrower where the amount claimed against the Borrower or where the granting of relief requested could have a Material Adverse Effect, information regarding a statement, signed by an Authorized Officer, describing said litigation or proceeding and the action which the Borrower proposes to take with respect thereto.
(x) As soon as possible and in any event within 10 days of any change in the location of any of the Borrower’s Debt Rating. Information required to be delivered pursuant to these Sections 6.1.1's places of business or the establishment of any, 6.1.2or the discontinuance of any existing, places of businesses, notice of the same.
(xi) As soon as available and in any event within 95 days after the end of each fiscal year of any Operator which is not a publicly traded company and which operates 10% or more of the Borrower's Total Investments, statements of income, retained earnings and cash flow of such Operator for such fiscal year and the related balance sheet of such Operator as of the end of such fiscal year, accompanied by an unqualified opinion of independent certified public accountants of recognized national standing, which opinion shall state that such financial statements fairly present the financial condition and results of operations of such Operator as at the end of, and 6.1.7 shall be deemed to have been delivered on for, such fiscal year in accordance with Agreement Accounting Principles, consistently applied.
(xii) As soon as available and in any event within 95 days after the date on which end of each fiscal year of the Borrower, the Borrower's Consolidated financial projections for the next two fiscal years of the Borrower provides notice and its Subsidiaries.
(xiii) As soon as available, but prior to the Lenders that such information has been posted on effective date of any Acquisition of $25,000,000 or more (which is not in the Securities and Exchange Commission website on the Internet at ▇▇▇.▇▇▇/▇▇▇▇▇/▇▇▇▇▇▇▇▇.▇▇▇, on ordinary course of the Borrower’s IntraLinks site at ▇▇▇▇▇▇▇▇▇▇.▇▇▇ or at another website identified in such notice and accessible by the Lenders without charge; provided that (i) such notice may be included in a certificate delivered 's business, but which is permitted pursuant to Section 6.1.3 8.5), historical financial statements of the Person to be acquired and information regarding terms of the Acquisition as the Agent may from time to time reasonably request.
(xiv) Promptly upon request therefor, such notice other statements, lists of property and accounts, budgets, forecasts, reports or certificate shall also be deemed other information (including non-financial information) as the Agent may from time to have been delivered upon being posted time reasonably request, in form satisfactory to the Borrower’s IntraLinks site or such other website and (ii) the Borrower shall deliver paper copies of the information referred to in Sections 6.1.1, 6.1.2 and 6.1.7 to any Lender which requests such deliveryAgent.
Appears in 1 contract
Financial Reporting. The Borrower will maintain, for itself and each Subsidiary, a system of accounting established and administered in accordance with GAAPgenerally accepted accounting principles, and furnish to the Agent and the Lenders:
6.1.1 (i) Within ninety (90) 90 days after the close of each of its fiscal years, financial statements an unqualified (except for qualifications relating to changes in accounting principles or practices reflecting changes in generally accepted accounting principles and required or approved by the Borrower's independent certified public accountants) audit report certified by independent certified public accountants reasonably acceptable to the Lenders, prepared in accordance with GAAP on a consolidated and consolidating (with respect to Material Domestic Subsidiaries only) basis (consolidating statements need not be certified by such accountants) for itself and its Material Domestic Subsidiaries, including balance sheets as of the end of such period, statements related profit and loss and reconciliation of income surplus statements, and statements a statement of cash flows, setting forth in comparative form figures for the preceding fiscal yearflows (on a consolidated basis only), accompanied by an audit report, consistent with the requirements of the Securities and Exchange Commission, of a nationally recognized firm of independent public accountants or other independent public accountants reasonably acceptable to the Required Lendersany management letter prepared by said accountants.
6.1.2 (ii) Within forty-five (45) 45 days after the close of the first three quarterly periods of each of its fiscal years, financial statements prepared in accordance with GAAP (other than with regard to for the absence of footnotes and subject to changes resulting from audit and normal year-end audit adjustments to same) on a consolidated basis for itself Borrower and its Material Domestic Subsidiaries, including, consolidated and consolidating unaudited balance sheets as at the close of each such period and consolidated unaudited and consolidating profit and loss and reconciliation of surplus statements of income and a statement of cash flows (on a consolidated basis only) for the period from the beginning of such fiscal year to the end of such quarter, in each case setting forth in comparative form figures for the corresponding period of the preceding fiscal year, and accompanied all certified by a certificate of the its chief financial officer or treasurer of the Borrower to the effect that such quarterly financial statements fairly present in all material respects the financial condition of the Borrower and its Subsidiaries and have been prepared in accordance with GAAP (other than with regard to the absence of footnotes and subject to changes resulting from audit and normal year-end audit adjustments to same)controller.
6.1.3 (iii) Together with the financial statements required under Sections 6.1.1 6.1(i) and 6.1.2(ii), (i) a compliance certificate in substantially the form of Exhibit B EXHIBIT F signed by an Authorized Officer (a) its chief financial officer or its controller showing the calculations necessary to determine compliance with Section 6.16, (b) this Agreement and stating that no Default or Unmatured Default exists, or if any Default or Unmatured Default exists, stating the nature and status thereof and (c) updating Schedule 1 with respect to its Subsidiaries, Material Subsidiaries and Excluded Subsidiaries, if appropriate and (ii) such financial information as reasonable requested by the Agent, including, but not limited to consolidating financial statements, as is necessary to account for Excluded Indebtedness and Excluded EBITDA for purposes of determining the Consolidated Leverage Ratiothereof.
6.1.4 If requested, within (iv) Within 270 days after the close of each fiscal year of the Borroweryear, a copy statement of the actuarial report showing the Unfunded Liabilities of each Single Employer Plan as of the valuation date occurring in such fiscal yearPlan, certified as correct by an actuary enrolled under ERISA.
6.1.5 (v) As soon as possible and in any event within ten (10) 10 days after an Authorized Officer the Borrower knows that any Reportable Event has occurred with respect to any Plan that could reasonably be expected to have a Material Adverse EffectSingle Employer Plan, a statement, signed by an Authorized Officerthe chief financial officer or controller of the Borrower, describing said Reportable Event and the action which the Borrower proposes to take with respect thereto.
6.1.6 From time (vi) As soon as possible and in any event within 10 days after receipt by the Borrower, a copy of (a) any notice or claim to time such additional information regarding the financial position effect that the Borrower or business any of its Subsidiaries is or may be liable to any Person as a result of the Borrower and release by the Borrower, any of its Subsidiaries as the AgentSubsidiaries, at the request or any other Person of any Lendertoxic or hazardous waste or substance into the environment, may and (b) any notice alleging any violation of any federal, state or local environmental, health or safety law or regulation by the Borrower or any of its Subsidiaries, which, in either case, could reasonably request, including the support for any pro forma calculations hereunderbe expected to have a Material Adverse Effect.
6.1.7 Promptly, (vii) Promptly upon the filing thereof, copies electronic notice to the Agent of the filing of all proxy statements, registration statements (other than any registration statement on Form S-8 and any registration statement in connection with a dividend reinvestment plan, shareholder purchase plan or employee benefit plan) periodic and current reports on form forms 10-K, 10-Q or 10Q and 8-K (or their equivalents) which the Borrower or any of its Subsidiaries files with the Securities and Exchange Commission.
6.1.8 Promptly, (viii) Such other information regarding (including non-financial information) as the Agent or any change in the Borrower’s Debt RatingLender may from time to time reasonably request. Information If any information which is required to be delivered pursuant to these Sections 6.1.1, 6.1.2, and 6.1.7 shall be deemed to have been delivered on the date on which the Borrower provides notice furnished to the Lenders that such information has been posted on the Securities and Exchange Commission website on the Internet at ▇▇▇.▇▇▇/▇▇▇▇▇/▇▇▇▇▇▇▇▇.▇▇▇, on the Borrower’s IntraLinks site at ▇▇▇▇▇▇▇▇▇▇.▇▇▇ under this Section 6.1 is required by law or at another website identified in such notice and accessible regulation to be filed by the Lenders without charge; provided that (i) such notice may Borrower with a government body on an earlier date, then the information required hereunder shall be included in a certificate delivered pursuant to Section 6.1.3 and such notice or certificate shall also be deemed to have been delivered upon being posted furnished to the Borrower’s IntraLinks site or Lenders at such other website and (ii) the Borrower shall deliver paper copies of the information referred to in Sections 6.1.1, 6.1.2 and 6.1.7 to any Lender which requests such deliveryearlier date.
Appears in 1 contract
Financial Reporting. The Borrower will maintain, for itself and each Subsidiary, a system of accounting established and administered in accordance with GAAP, and furnish to the Administrative Agent and on behalf of the Lenders:
6.1.1 (i) Within ninety (90) 90 days after the close of each of its fiscal years, financial statements an unqualified (except for qualifications relating to changes in accounting GAAP or practices reflecting changes in generally accepted accounting principles and required or approved by the Borrower’s independent certified public accountants) audit report certified by independent certified public accountants reasonably acceptable to the Lenders, prepared in accordance with GAAP on a consolidated and consolidating basis (consolidating statements need not be certified by such accountants and shall be in a form reasonably satisfactory to the Administrative Agent) for itself and its Subsidiaries, including balance sheets as of the end of such period, statements related profit and loss and reconciliation of income surplus statements, and statements a statement of cash flows, setting forth in comparative form figures for the preceding fiscal year, accompanied by an audit report, consistent with the requirements of the Securities and Exchange Commission, of a nationally recognized firm of independent public accountants or other independent public accountants reasonably acceptable to the Required Lendersany management letter prepared by said accountants.
6.1.2 (ii) Within forty-five (45) 45 days after the close of the first three quarterly periods of each of its fiscal years, financial statements prepared in accordance with GAAP (other than with regard to the absence of footnotes and subject to changes resulting from audit and normal year-end audit adjustments to same) on a consolidated basis for itself and its Subsidiaries, including, consolidated and consolidating unaudited balance sheets as at the close of each such period and consolidated unaudited and consolidating profit and loss and reconciliation of surplus statements of income and a statement of cash flows for the period from the beginning of such fiscal year to the end of such quarter, all certified by its chief financial officer.
(iii) As soon as available, but in any event within 30 days after the beginning of each case setting forth in comparative form figures for the corresponding period fiscal year of the preceding fiscal yearBorrower, and accompanied by a certificate copy of the chief financial officer or treasurer of the Borrower to the effect that such quarterly financial statements fairly present in all material respects the financial condition plan and forecast (including a projected consolidated and consolidating balance sheet, income statement and funds flow statement) of the Borrower and its Subsidiaries for such fiscal year; provided, however, that the preceding plan and have been prepared forecast shall be required to be delivered only if, as of September 30 of the year immediately preceding the year in accordance with GAAP (other which such plan and forecast would otherwise be required to be delivered, the Leverage Ratio is greater than with regard 2.00 to the absence of footnotes and subject to changes resulting from audit and normal year-end audit adjustments to same)1.0.
6.1.3 (iv) Together with the financial statements required under Sections 6.1.1 6.1(i) and 6.1.2(ii), (i) a compliance certificate in substantially the form of Exhibit B signed by an Authorized Officer (a) its chief financial officer showing the calculations necessary to determine compliance with Section 6.16, (b) this Agreement and stating that no Default or Unmatured Default exists, or if any Default or Unmatured Default exists, stating the nature and status thereof and (c) updating Schedule 1 with respect to its Subsidiaries, Material Subsidiaries and Excluded Subsidiaries, if appropriate and (ii) such financial information as reasonable requested by the Agent, including, but not limited to consolidating financial statements, as is necessary to account for Excluded Indebtedness and Excluded EBITDA for purposes of determining the Consolidated Leverage Ratiothereof.
6.1.4 If requested, within 270 days after the close of each fiscal year of the Borrower, a copy of the actuarial report showing the Unfunded Liabilities of each Single Employer Plan as of the valuation date occurring in such fiscal year, certified by an actuary enrolled under ERISA.
6.1.5 (v) As soon as possible and in any event within ten (10) days 10 Business Days after an Authorized Officer the Borrower knows that any Reportable Event has occurred with respect to any Plan that Single Employer Plan, which Reportable Event could reasonably be expected to have a Material Adverse Effect, a statement, signed by an Authorized Officerthe chief financial officer of the Borrower, describing said Reportable Event and the action which the Borrower proposes to take with respect thereto.
6.1.6 From time (vi) As soon as possible and in any event within 10 Business Days after receipt by the Borrower, a copy of (a) any written notice or written claim to time such additional information regarding the financial position effect that the Borrower or business any of its Subsidiaries is or may be liable to any Person as a result of the Borrower and release by the Borrower, any of its Subsidiaries as the AgentSubsidiaries, at the request or any other Person of any Lendertoxic or hazardous waste or substance into the environment, may and (b) any written notice alleging any violation of any federal, state or local environmental, health or safety law or regulation by the Borrower or any of its Subsidiaries, which, in either case, could reasonably request, including the support for any pro forma calculations hereunderbe expected to have a Material Adverse Effect.
6.1.7 Promptly(vii) Promptly upon the furnishing thereof to the shareholders of the Borrower, copies of all financial statements, reports and proxy statements so furnished.
(viii) Promptly upon the filing thereof, copies notice of the filing to the Administrative Agent of all registration statements (other than any registration statement on Form S-8 and any registration statement in connection with a dividend reinvestment plan, shareholder purchase plan or employee benefit plan) periodic and current reports on form forms 10-K, 10-Q or and 8-K (or their equivalents) which the Borrower or any of its Subsidiaries files with the Securities and Exchange Commission.
6.1.8 Promptly(ix) Such other information (including non-financial information) as the Administrative Agent or any Lender may from time to time reasonably request. If any information which is required to be furnished to the Lenders under this Section 6.1 is required by law or regulation to be filed by the Borrower with a government body on an earlier date, then the information regarding any change in required hereunder shall, to the Borrower’s Debt Ratingextent reasonably practicable under the circumstances, be furnished to the Lenders at such earlier date. Information Documents required to be delivered pursuant to these Sections 6.1.1this Section 6.1 (to the extent any such documents are included in materials otherwise filed with the Securities and Exchange Commission) may be delivered electronically and if so delivered, 6.1.2, and 6.1.7 shall be deemed to have been delivered on the date (i) on which the Borrower posts such documents, or provides notice to the Lenders that such information has been posted on the Securities and Exchange Commission website on the Internet at ▇▇▇.▇▇▇/▇▇▇▇▇/▇▇▇▇▇▇▇▇.▇▇▇, a link thereto on the Borrower’s IntraLinks site at ▇▇▇▇▇▇▇▇▇▇.▇▇▇ website on the Internet; or at another (ii) on which such documents are posted on the Borrower’s behalf on an Internet or intranet website, if any, to which each Lender and the Administrative Agent have access (whether a commercial, third-party website identified in such notice and accessible or whether sponsored by the Lenders without chargeAdministrative Agent); provided that (i) such notice may be included in a certificate delivered pursuant to Section 6.1.3 and such notice or certificate shall also be deemed to have been delivered upon being posted to the Borrower’s IntraLinks site or such other website and (ii) the Borrower shall deliver paper copies of such documents to the information Administrative Agent on behalf of any Lender that requests delivery of such paper copies until a written request to cease delivering paper copies is given by the Administrative Agent or such Lender. Except for the compliance certificates, the Administrative Agent shall have no obligation to request the delivery or to maintain copies of the documents referred to above, and in Sections 6.1.1any event shall have no responsibility to monitor compliance by the Borrower with any such request for delivery, 6.1.2 and 6.1.7 each Lender shall be solely responsible for requesting delivery to any Lender which requests it or maintaining its copies of such deliverydocuments.
Appears in 1 contract
Sources: Credit Agreement (Viad Corp)