Financial Reports. The Loan Parties shall, and shall cause each of their Subsidiaries to, maintain proper books of records and accounts reasonably necessary to prepare financial statements required to be delivered pursuant to this Section 8.5 in accordance with GAAP and shall furnish to the Administrative Agent and each Lender: (a) as soon as available, and in any event no later than sixty (60) days after the last day of each Fiscal Quarter of each Fiscal Year of the Borrower, a copy of (i) the company-prepared consolidated balance sheets of Borrower and its Subsidiaries as of the last day of such Fiscal Quarter and the consolidated statements of operations, changes in equity (deficit) and cash flows of Borrower for the Fiscal Quarter and for the Fiscal Year-to-date period then ended, in reasonable detail and, if available, showing in comparative form the figures for the corresponding date and period in the previous Fiscal Year, prepared by the applicable party in accordance with GAAP (subject to the absence of footnote disclosures and year-end audit adjustments) and certified to by a Financial Officer of Borrower and (ii) operating statements, rent roll and accounts receivable aging for each Borrowing Base Property; (b) as soon as available, and in any event no later than one hundred twenty (120) days after the last day of each Fiscal Year of the Borrower, a copy of the consolidated balance sheets of Borrower and its Subsidiaries as of the last day of the Fiscal Year then ended and the consolidated statements of statements of operations, comprehensive loss, shareholders’ equity (deficit) and cash flows of Borrower and its Subsidiaries for the Fiscal Year then ended, and accompanying notes thereto, each in reasonable detail and, if available, showing in comparative form the figures for the previous Fiscal Year, accompanied in the case of the consolidated financial statements by an unqualified opinion of BDO USA, P.C., or another firm of independent public accountants of recognized national standing, selected by ▇▇▇▇▇▇▇▇ and reasonably satisfactory to the Administrative Agent; (c) [reserved]; (d) promptly after the sending or filing thereof, copies of each financial statement, report, notice or proxy statement sent by any Loan Party or any Subsidiary of a Loan Party to its stockholders or other equity holders, and copies of each regular, periodic or special report, registration statement or prospectus filed by any Loan Party or any Subsidiary of a Loan Party with any securities exchange; (e) [reserved]; (f) within ninety (90) days after the end of each Fiscal Year of the Borrower, a copy of the Borrower’s operating budget and projections for the following year including consolidated projections of revenues, expenses and balance sheet on a quarter-by-quarter basis, with such operating budget and projections in reasonable detail prepared by Borrower and in form reasonably satisfactory to the Administrative Agent (which shall include a summary of all significant assumptions made in preparing such projections); (g) notice of any Change of Control; (h) promptly after knowledge thereof shall have come to the attention of any Responsible Officer of any Loan Party, written notice of (i) any threatened or pending litigation or governmental or arbitration proceeding or labor controversy against any Loan Party or any Subsidiary of a Loan Party or any of their Property which, if adversely determined, could reasonably be expected to have a Material Adverse Effect, (ii) the occurrence of any Material Adverse Effect, (iii) the occurrence of any Default or (iv) any change in the information provided in the Beneficial Ownership Certification that would result in a change to the list of beneficial owners identified in of such certification; (i) on the Closing Date and with each of the financial statements delivered pursuant to subsections (a) (other than the last Fiscal Quarter of each Fiscal Year) and (b) above, a compliance certificate (“Compliance Certificate”) in the form attached hereto as Exhibit F signed by a Financial Officer of the Borrower to the effect that to the best of such officer’s knowledge and belief no Default has occurred during the period covered by such statements or, if any such Default has occurred during such period, setting forth a description of such Default and specifying the action, if any, taken by the relevant Loan Party or its Subsidiary to remedy the same. Such certificate shall also set forth the calculations supporting such statements in respect of Section 8.22 (Financial Covenants); and (j) on the Closing Date and with each of the financial statements delivered pursuant to subsections (a) (other than the last Fiscal Quarter of each Fiscal Year) and (b) above, a Borrowing Base Certificate showing the computation of the Borrowing Base Value, in reasonable detail as of the close of business on the last day of such Fiscal Quarter or Fiscal Year, as applicable, prepared by the Borrower and certified to by its chief financial officer or another officer of the Borrower reasonably acceptable to the Administrative Agent; and (k) within a reasonable period of time following any such request therefor, from time to time, (i) such other information regarding the operations, business affairs and financial condition of any Loan Party or any Subsidiary of a Loan Party, or compliance with the terms of any Loan Document, as the Administrative Agent or any Lender may reasonably request or (ii) information and documentation reasonably requested by the Administrative Agent or any Lender for purposes of compliance with applicable “know your customer” requirements under the Patriot Act or other applicable Anti-Corruption Laws and the Beneficial Ownership Regulation. Notwithstanding the foregoing, the filing of the Borrower’s financial statements with the U.S. Securities and Exchange Commission on Form 10-K or Form 10-Q shall satisfy the requirements of Section 8.5(a)(i) and (b), respectively.
Appears in 1 contract
Financial Reports. The Loan Parties shallDuring the Term, and the Lessee shall cause each of their Subsidiaries to, maintain proper books of records and accounts reasonably necessary to prepare financial statements required to be delivered pursuant to this Section 8.5 in accordance with GAAP and shall furnish provide to the Administrative Agent and each LenderLessor the following:
(a) as As soon as available, and in any event no later than sixty within thirty (6030) days after the last day end of each Fiscal Quarter month, unaudited financial statements for the Facility, including a balance sheet as at the end of each Fiscal Year such month and statements of income and retained earnings and of cash flow for such month and for the period from the beginning of the Borrower, a copy of Lease Year. There shall be included with such financial statements (i) a certificate of a Responsible Officer stating in effect that, to the company-best of his knowledge and belief, such financial statements are true and correct and have been prepared consolidated balance sheets of Borrower and its Subsidiaries as of the last day of such Fiscal Quarter and the consolidated statements of operations, changes in equity (deficit) and cash flows of Borrower for the Fiscal Quarter and for the Fiscal Year-to-date period then ended, in reasonable detail and, if available, showing in comparative form the figures for the corresponding date and period in the previous Fiscal Year, prepared by the applicable party in accordance with GAAP (generally accepted accounting principles, consistently applied, subject to the absence of footnote disclosures and changes resulting from year-end audit adjustments) and certified to by a Financial Officer of Borrower adjustments and (ii) operating statements, rent roll a certificate of a Responsible Officer setting forth in detail reasonably satisfactory to the Lessor a calculation of Cash Flow of the Facility for such month and accounts receivable aging for each Borrowing Base Property;the Lease Year through the end of such month.
(b) In addition, as soon as available, available and in any event no later than within one hundred twenty (120) days after the last day end of each Fiscal Year of Lease Year, financial statements for the BorrowerFacility, including a copy of the consolidated balance sheets of Borrower and its Subsidiaries sheet as of the last day end of the Fiscal Year then ended such Lease Year, and the consolidated statements of statements income and retained earnings and of operations, comprehensive loss, shareholders’ equity (deficit) and cash flows of Borrower and its Subsidiaries flow for the Fiscal Year then ended, and accompanying notes thereto, each in reasonable detail and, if available, showing in comparative form the figures for the previous Fiscal such Lease Year, prepared in accordance with generally accepted accounting principles consistently applied and accompanied in by the case of the consolidated financial statements by an unqualified audit opinion of BDO USA, P.C., or another a recognized firm of independent certified public accountants acceptable to the Lessor. There shall be included with such financial statements a certificate of recognized national standing, selected by ▇▇▇▇▇▇▇▇ and a Responsible Officer setting forth in detail reasonably satisfactory to the Administrative Agent;Lessor a calculation of Cash Flow of the Facility for such Lease Year. The Lessor shall have the right at any time to audit the certificate of Cash Flow required to be provided hereunder. Such audit shall be performed by an independent certified public accounting firm selected by the Lessor and shall be at the Lessor's expense, unless such audit results in the upward adjustment of Cash Flow for any Lease Year in an amount equal to two percent (2%) or more of the Cash Flow reflected on the certificate provided to the Lessor by the Lessee, in which case the cost of such audit shall be paid by the Lessee and shall not be considered Greenhouse Expenses. Any payments required to be made as a result of any adjustment to the Cash Flow shall be made within ten (10) Business Days following receipt of the results of the audit.
(c) [reserved];The Lessor shall have the right to review the books and records of the Lessee relating to the Facility for the purpose of verifying the accuracy of the financial statements and calculations of Cash Flow provided pursuant to Sections 12.03(a) and (b). and
(d) promptly after the sending On or filing thereof, copies before January 31 of each financial statementyear during the Term (commencing on January 31, report1999), notice or proxy statement sent by any Loan Party or any Subsidiary a certificate of a Loan Party to its stockholders or other equity holders, and copies of each regular, periodic or special report, registration statement or prospectus filed by any Loan Party or any Subsidiary of a Loan Party with any securities exchange;
(e) [reserved];
(f) within ninety (90) days after the end of each Fiscal Year of the Borrower, a copy of the Borrower’s operating budget and projections for the following year including consolidated projections of revenues, expenses and balance sheet on a quarter-by-quarter basis, with such operating budget and projections in reasonable detail prepared by Borrower and in form reasonably satisfactory to the Administrative Agent (which shall include a summary of all significant assumptions made in preparing such projections);
(g) notice of any Change of Control;
(h) promptly after knowledge thereof shall have come to the attention of any Responsible Officer of any Loan Partythe Lessee stating that such Responsible Officer has made or caused to be made a review of all transactions relating to the Facility and the financial and operating condition of the Lessee for the immediately preceding Lease Year and that, written notice of (i) any threatened or pending litigation or governmental or arbitration proceeding or labor controversy against any Loan Party or any Subsidiary of a Loan Party or any of their Property whichbased on such review, if adversely determined, could reasonably be expected to have a Material Adverse Effect, (ii) the occurrence of any Material Adverse Effect, (iii) the occurrence of any no Default or (iv) any change in the information provided in the Beneficial Ownership Certification that would result in a change to the list Event of beneficial owners identified in of such certification;
(i) on the Closing Date and with each of the financial statements delivered pursuant to subsections (a) (other than the last Fiscal Quarter of each Fiscal Year) and (b) above, a compliance certificate (“Compliance Certificate”) in the form attached hereto as Exhibit F signed by a Financial Officer of the Borrower to the effect that to the best of such officer’s knowledge and belief no Default has occurred during the period covered by such statements or, if any such Default has occurred during such periodyear (or, setting forth if a description Default or Event of such Default and shall have occurred, specifying the action, if any, taken by the relevant Loan Party or its Subsidiary to remedy the same. Such certificate shall also set forth the calculations supporting such statements in respect of Section 8.22 (Financial Covenants); and
(j) on the Closing Date and with each of the financial statements delivered pursuant to subsections (a) (other than the last Fiscal Quarter of each Fiscal Year) and (b) above, a Borrowing Base Certificate showing the computation of the Borrowing Base Value, in reasonable detail as of the close of business on the last day of such Fiscal Quarter or Fiscal Year, as applicable, prepared by the Borrower and certified to by its chief financial officer or another officer of the Borrower reasonably acceptable to the Administrative Agent; and
(k) within a reasonable period of time following any such request therefor, from time to time, (i) such other information regarding the operations, business affairs and financial condition of any Loan Party or any Subsidiary of a Loan Party, or compliance with the terms of any Loan Document, as the Administrative Agent or any Lender may reasonably request or (ii) information and documentation reasonably requested by the Administrative Agent or any Lender for purposes of compliance with applicable “know your customer” requirements under the Patriot Act or other applicable Anti-Corruption Laws nature thereof and the Beneficial Ownership Regulation. Notwithstanding action the foregoing, the filing of the Borrower’s financial statements Lessee has taken or prepares to take with the U.S. Securities and Exchange Commission on Form 10-K or Form 10-Q shall satisfy the requirements of Section 8.5(a)(i) and (brespect thereto), respectively.
Appears in 1 contract
Financial Reports. The Loan Parties Borrower shall, and shall cause each of their its Restricted Subsidiaries to, maintain proper books of records and accounts reasonably necessary to prepare financial statements required to be delivered pursuant to this Section 8.5 8.05 in accordance with GAAP and shall furnish to the Administrative Agent and each Lender, in each case in form and scope reasonably acceptable to the Administrative Agent and the Required Lenders:
(a) as soon as available, and in any event no later than sixty forty-five (6045) days after the last day of each Fiscal Quarter June, September and December of each Fiscal Year of the Borrowerfiscal year, a copy of (i) the company-prepared consolidated balance sheets sheet of Holdings, the Borrower and its Restricted Subsidiaries as of the last day of such Fiscal Quarter fiscal quarter and the consolidated statements of operationsincome, changes in equity (deficit) retained earnings, and cash flows of Holdings, the Borrower and its Restricted Subsidiaries for the Fiscal Quarter fiscal quarter and for the Fiscal Yearfiscal year-to-date period then ended, each in reasonable detail and, if available, showing in comparative form the figures for the corresponding date and period in the previous Fiscal Yearfiscal year, prepared by the applicable party Borrower in accordance with GAAP (subject to the absence of footnote disclosures and year-end audit adjustments) and certified to by a Financial Officer of Borrower and (ii) operating statements, rent roll and accounts receivable aging for each Borrowing Base Propertythe Borrower;
(b) as soon as available, and in any event no later than one hundred twenty ninety (12090) days after the last day of each Fiscal Year fiscal year of the BorrowerHoldings, a copy of the audited consolidated balance sheets sheet of Holdings, the Borrower and its Restricted Subsidiaries as of the last day of the Fiscal Year fiscal year then ended and the consolidated and consolidating statements of statements of operationsincome, comprehensive lossretained earnings, shareholders’ equity (deficit) and cash flows of the Borrower and its Subsidiaries for the Fiscal Year fiscal year then ended, and accompanying notes thereto, each in reasonable detail and, if available, showing in comparative form the figures for the previous Fiscal Yearfiscal year, accompanied in the case of the consolidated financial statements by an unqualified opinion (without any qualification or exception which is of BDO USAa “going concern” or similar nature as to a limitation on the scope of audit (other than such a qualification or exception that is (x) solely with respect to, P.C.or resulting solely from, the upcoming maturity date of any Indebtedness being scheduled to occur within twelve (12) months from the time such opinion is delivered or (y) with respect to, or resulting from, a potential breach of the covenants set forth in Section 8.24 hereof)) of Ernst & Young or another firm of independent public accountants of recognized national standing, selected by ▇▇▇▇▇▇▇▇ and reasonably satisfactory the Borrower, to the Administrative Agenteffect that the consolidated financial statements have been prepared in accordance with GAAP and present fairly in all material respects in accordance with GAAP the consolidated financial condition of Holdings, the Borrower and its Restricted Subsidiaries as of the close of such fiscal year and the results of their operations and cash flows for the fiscal year then ended and that an examination of such accounts in connection with such financial statements has been made in accordance with generally accepted auditing standards and, accordingly, such examination included such tests of the accounting records and such other auditing procedures as were considered necessary in the circumstances;
(c) [reserved];
(d) promptly after the sending or filing thereof, copies of each financial statement, report, notice or proxy statement sent by any Loan Party or any Subsidiary of a Loan Party to its stockholders or other equity holders, and copies of each regular, periodic or special report, registration statement or prospectus (including all Form 10-K, Form 10-Q and Form 8-K reports) filed by any Loan Party or any Restricted Subsidiary of a Loan Party with any securities exchangeexchange or the Securities and Exchange Commission or any successor agency;
(e) [reserved]promptly after receipt thereof, a copy of each notice received from any regulatory agency of competent jurisdiction of any material noncompliance with any applicable law or regulation relating to a Loan Party or any Restricted Subsidiary of a Loan Party or their respective businesses;
(f) within ninety solely to the extent that any direct or indirect parent of Holdings ceases to be a publicly-traded company, as soon as available, and in any event no later than sixty (9060) days after the end of each Fiscal Year fiscal year of the BorrowerHoldings, a copy of the Borrower’s consolidated operating budget plan for Holdings, the Borrower and projections its Restricted Subsidiaries for the following year including consolidated projections then current fiscal year, such operating plan to show the projected revenues and expenses of revenuesHoldings, expenses the Borrower and balance sheet its Restricted Subsidiaries on a quarter-by-quarter basis, with such operating budget and projections plan to be in reasonable detail prepared by Borrower Holdings and in form reasonably satisfactory to the Administrative Agent (which shall include a summary of all significant assumptions made in preparing such projectionsoperating plan);
(g) notice of any Change of Control[reserved];
(h) promptly after knowledge thereof shall have come to the attention of any Responsible Officer of any Loan Party, written notice of (i) any threatened or pending litigation or governmental or arbitration proceeding or labor controversy against any Loan Party or any Restricted Subsidiary of a Loan Party or any of their Property which, if adversely determined, could would reasonably be expected to have a Material Adverse Effect, (ii) the occurrence of any Material Adverse Effect, or (iii) the occurrence of any Default or (iv) any change in the information provided in the Beneficial Ownership Certification that would result in a change to the list Event of beneficial owners identified in of such certificationDefault;
(i) on within five (5) Business Days of the Closing Date and with delivery of each of the financial statements delivered pursuant to subsections (a) (other than the last Fiscal Quarter of each Fiscal Year) and (b) above, a compliance written certificate (“Compliance Certificate”) in the form attached hereto as Exhibit F E signed by a Financial Officer of the Borrower to the effect that to the best of such officer’s knowledge and belief no Default has occurred during the period covered by such statements or, if any such Default has occurred during such period, setting forth a description of such Default and specifying the action, if any, taken by the relevant Loan Party or its Restricted Subsidiary to remedy the same. Such ; such certificate shall also set forth the calculations supporting such statements in respect of Section 8.22 (Financial Covenants); and8.24;
(j) on the Closing Date and with each of the financial statements delivered pursuant to subsections (a) (other than the last Fiscal Quarter of each Fiscal Year) and (b) above, a Borrowing Base Certificate showing the computation of the Borrowing Base Value, in reasonable detail as of the close of business on the last day of such Fiscal Quarter or Fiscal Year, as applicable, prepared by the Borrower and certified to by its chief financial officer or another officer of the Borrower reasonably acceptable to the Administrative Agent; and[reserved];
(k) within a reasonable period of time following any such request thereforpromptly, from time to time, (i) such other information regarding the operations, business affairs and financial condition of any Loan Party or any Restricted Subsidiary of a Loan Party, or compliance with the terms of any Loan Document, as the Administrative Agent or any Lender may reasonably request request; and
(l) concurrently with the delivery of financial statements under clauses (a) and (b) above at a time when there are one or more Unrestricted Subsidiaries, consolidating financial statements reflecting the adjustments necessary to eliminate the accounts of Unrestricted Subsidiaries from such consolidated financial statements. Documents required to be delivered to the Administrative Agent and/or the Lenders pursuant to Section 8.05(a), (b) or (d) (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, shall be deemed to have been delivered on the date on which (i) Holdings or any direct or indirect parent of Holdings posts such documents, or provides a link thereto, on its website on the internet at the following website address ▇▇▇.▇▇▇▇▇▇▇▇▇.▇▇▇, (ii) information such documents are posted on Holdings’ behalf on an internet or intranet website, if any, to which each Lender and documentation reasonably requested the Administrative Agent have access (whether a commercial, third-party website or whether sponsored by the Administrative Agent Agent) or any Lender for purposes of compliance (iii) such documents are posted electronically with applicable “know your customer” requirements under the Patriot Act or other applicable Anti-Corruption Laws and the Beneficial Ownership RegulationSEC’s ▇▇▇▇▇ system. Notwithstanding the foregoing, the filing obligations in paragraphs (a) and (b) of this Section 8.05 may be satisfied with respect to financial information of Holdings, the Borrower’s Borrower and the Restricted Subsidiaries by furnishing (A) the applicable financial statements with of any direct or indirect parent of Holdings (including, for the U.S. Securities and Exchange Commission on avoidance of doubt, Dynatrace, Inc.) or (B) Holdings’ or such parent’s Form 10-K or Form 10-Q Q, as applicable, filed with the SEC, in each case, within the time periods specified in such paragraphs; provided that to the extent such information relates to a parent of Holdings, if and for so long as such parent will have independent assets or operations, such information is accompanied by consolidating information that explains in reasonable detail the differences between the information relating to such parent and its independent assets or operations, on the one hand, and the information relating to Holdings, the Borrower and the Restricted Subsidiaries on a standalone basis, on the other hand, which consolidating information shall satisfy the requirements be certified by a Responsible Officer of Section 8.5(a)(i) and (b), respectivelyHoldings as having been fairly presented in all material respects.
Appears in 1 contract
Sources: Credit Agreement (Dynatrace, Inc.)
Financial Reports. The Loan Parties Borrower shall, and shall cause Parent and each of their Subsidiaries Subsidiary to, maintain proper books a standard system of records and accounts reasonably necessary to prepare financial statements required to be delivered pursuant to this Section 8.5 accounting in accordance with GAAP and shall furnish to the Administrative Agent Agent, each Lender and each Lender:
(a) of their duly authorized representatives such information respecting the business and financial condition of the Borrower and each Subsidiary as the Administrative Agent or such Lender may reasonably request; and without any request, shall furnish to the Administrative Agent for distribution to the Lenders: ●as soon as available, and in any event no later than sixty ninety (6090) days after the last day of each Fiscal Quarter fiscal year of each Fiscal Year of the BorrowerParent, a copy of the consolidated and consolidating balance sheet of Parent and its Subsidiaries as of the last day of the fiscal year then ended and the consolidated and consolidating statements of income, retained earnings, and cash flows of Parent and its Subsidiaries for the fiscal year then ended, and accompanying notes thereto, each in reasonable detail showing in comparative form the figures for the previous fiscal year, accompanied by an unqualified opinion of independent public accountants of recognized national standing, selected by ▇▇▇▇▇▇ and reasonably satisfactory to the Administrative Agent, to the effect that the consolidated financial statements have been prepared in accordance with GAAP and present fairly in accordance with GAAP the consolidated financial condition of Parent and its Subsidiaries as of the close of such fiscal year and the results of their operations and cash flows for the fiscal year then ended and that an examination of such accounts in connection with such financial statements has been made in accordance with generally accepted auditing standards and, accordingly, such examination included such tests of the accounting records and such other auditing procedures as were considered necessary in the circumstances; ●within the period provided in subsection (ia) above, the companywritten statement of the accountants who certified the audit report thereby required that in the course of their audit they have obtained no knowledge of any Default or Event of Default, or, if such accountants have obtained knowledge of any such Default or Event of Default, they shall disclose in such statement the nature and period of the existence thereof; ●as soon as available, and in any event no later than forty-prepared five (45) days after the last day of each fiscal quarter of each fiscal year of Parent (or ninety (90) days after the last day of each fiscal year of Parent), a copy of the consolidated and consolidating balance sheets sheet of Borrower Parent and its Subsidiaries as of the last day of such Fiscal Quarter fiscal quarter and the consolidated and consolidating statements of operationsincome, changes in equity (deficit) retained earnings, and cash flows of Borrower Parent and its Subsidiaries for the Fiscal Quarter fiscal quarter and for the Fiscal Yearfiscal year-to-date period then ended, each in reasonable detail and, if available, showing in comparative form the figures for the corresponding date and period in the previous Fiscal Yearfiscal year, prepared by the applicable party Parent in accordance with GAAP (subject to the absence of footnote disclosures and year-end audit adjustments) and certified to by a Financial Officer of Borrower and (ii) operating statements, rent roll and accounts receivable aging for each Borrowing Base Property;
(b) as soon as available, and in any event no later than one hundred twenty (120) days after the last day of each Fiscal Year of the Borrower, a copy of the consolidated balance sheets of Borrower and its Subsidiaries as of the last day of the Fiscal Year then ended and the consolidated statements of statements of operations, comprehensive loss, shareholders’ equity (deficit) and cash flows of Borrower and its Subsidiaries for the Fiscal Year then ended, and accompanying notes thereto, each in reasonable detail and, if available, showing in comparative form the figures for the previous Fiscal Year, accompanied in the case of the consolidated chief financial statements by an unqualified opinion of BDO USA, P.C., officer or another firm officer of independent public accountants of recognized national standing, selected by ▇▇▇▇▇▇▇▇ and Parent reasonably satisfactory acceptable to the Administrative Agent;
; ●[Intentionally Omitted]; ●with each of the financial statements delivered pursuant to subsections (ca) [reserved];
and (db) above, a Compliance Certificate (“Compliance Certificate”) in the form attached hereto as Exhibit E signed by the chief financial officer of Parent or another officer of Parent reasonably acceptable to the Administrative Agent to the effect that to the best of such officer’s knowledge and belief no Default or Event of Default has occurred during the period covered by such statements or, if any such Default or Event of Default has occurred during such period, setting forth a description of such Default or Event of Default and specifying the action, if any, taken by the Borrower or any Subsidiary to remedy the same. Such certificate shall also set forth the calculations supporting such statements in respect of Section 8.20 hereof; ●promptly after receipt thereof, any additional written reports, management letters or other detailed information contained in writing concerning significant aspects of Parent’s or any Subsidiary’s operations and financial affairs given to it by its independent public accountants; ●promptly after the sending or filing thereof, copies of each financial statement, report, notice or proxy statement sent by any Loan Party Parent or any Subsidiary of a Loan Party to its stockholders or other equity holders, and upon written request from the Administrative Agent, copies of each regular, periodic or special report, registration statement or prospectus (including all Form 10-K, Form 10-Q and Form 8-K reports) filed by any Loan Party Parent or any Subsidiary of a Loan Party with any securities exchange;
(e) [reserved];
(f) within ninety (90) days exchange or the Securities and Exchange Commission or any successor agency; ●promptly after the end of each Fiscal Year of the Borrowerreceipt thereof, a copy of each audit made by any regulatory agency of the Borrower’s operating budget books and projections for the following year including consolidated projections records of revenuesParent or any Subsidiary or of notice of any material noncompliance with any applicable law, expenses and balance sheet on a quarter-by-quarter basisregulation or guideline relating to Parent or any Subsidiary, with such operating budget and projections in reasonable detail prepared by Borrower and in form reasonably satisfactory to the Administrative Agent (which shall include a summary of all significant assumptions made in preparing such projections);
(g) or their respective businesses; ●[Intentionally Omitted]; ●notice of any Change of Control;
(h) ; ●promptly after knowledge thereof shall have come to the attention of any Responsible Officer of any Loan PartyParent, written notice of (i) any threatened (in writing) or pending litigation or governmental or arbitration proceeding or labor controversy against any Loan Party Parent or any Subsidiary of a Loan Party or any of their Property which, if adversely determined, or other assets which could reasonably be expected to have a Material Adverse Effect, (ii) the occurrence of any matter which could reasonably be expected to have a Material Adverse Effect, (iii) the occurrence of any Default or Event of Default hereunder or (iv) any change in the information provided in the Beneficial Ownership Certification that would result in a change to the list of beneficial owners identified in of such certification;
; ●within forty-five (45) days of the end of each of the first three (3) fiscal quarters and within 90 days after the close of the last fiscal quarter of the year (i) on a list of all newly formed or acquired Subsidiaries during such quarter (such list shall contain the Closing Date and with each of the financial statements delivered pursuant information relative to subsections (a) (other than the last Fiscal Quarter of each Fiscal Year) such new Subsidiaries as set forth in Schedule 6.2 hereto); and (bii) above, a compliance certificate (“Compliance Certificate”) in the form attached hereto as Exhibit F signed by copy of any notice of a Financial Officer of the Borrower to the effect that to the best of such officer’s knowledge and belief no Default has occurred during the period covered by such statements or, if any such Default has occurred during such period, setting forth a description of such Default and specifying the action, if any, taken by the relevant Loan Party or its Subsidiary to remedy the same. Such certificate shall also set forth the calculations supporting such statements in respect of Section 8.22 (Financial Covenants); and
(j) on the Closing Date and with each of the financial statements delivered pursuant to subsections (a) (other than the last Fiscal Quarter of each Fiscal Year) and (b) above, a Borrowing Base Certificate showing the computation of the Borrowing Base Value, in reasonable detail as of the close of business on the last day of such Fiscal Quarter or Fiscal Year, as applicable, prepared material default by the Borrower and certified to by its chief financial officer or another officer of the Borrower reasonably acceptable any Guarantor from any ground lessor during such quarter; ●promptly after knowledge thereof shall have come to the attention of any Responsible Officer of Parent, written notice to each Lender ifthe Administrative Agent; and
(k) within a reasonable period of time following any such request therefor, from time to time, Agent if (i) such other information regarding the operations, business affairs and financial condition amounts payable under a Lease of any Loan Party Eligible Property or any Subsidiary of a Loan Partyportion thereof included in the Unencumbered Asset Value is more than sixty (60) days past due, or compliance with the terms of any Loan Document, as the Administrative Agent or any Lender may reasonably request or (ii) amounts payable under an Unencumbered Mortgage Receivable is more than sixty (60) days past due, or (iii) any Unencumbered Asset fails to qualify as an Eligible Asset; and ●promptly after the request of any Lender, any other information and documentation or report reasonably requested by a Lender. provided, however, to the Administrative Agent or any Lender for purposes of compliance with applicable “know your customer” requirements under the Patriot Act or other applicable Anti-Corruption Laws and the Beneficial Ownership Regulation. Notwithstanding the foregoing, the filing of the Borrower’s financial statements extent such items set forth above are filed with the U.S. Securities and Exchange Commission on Form 10-K or Form 10-Q otherwise are publicly available, the Borrower shall satisfy be deemed to have satisfied this covenant once it provides notice to the requirements Administrative Agent of Section 8.5(a)(i) and (b), respectivelysuch availability.
Appears in 1 contract
Sources: Credit Agreement (Alpine Income Property Trust, Inc.)
Financial Reports. The Loan Parties Holdings and the Borrower shall, and shall cause each of their Subsidiaries Restricted Subsidiary to, maintain proper books a standard system of records accounting to permit the preparation of the quarterly and accounts reasonably necessary to prepare annual financial statements required to be delivered pursuant to this Section 8.5 in accordance with GAAP GAAP, and 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 8.22, a statement of reconciliation conforming such financial statements to GAAP, and shall furnish to the Administrative Agent Agent, each Lender and each Lender:of their duly authorized representatives such information respecting the business and financial condition of the Consolidated Group Companies as the Administrative Agent or such Lender may reasonably request and, without any request, shall furnish to the Administrative Agent (for further distribution to the Lenders):
(a) as soon as available, and in any event no On or before the later than sixty of (60i) forty-five (45) days after the last day of each Fiscal Quarter of the first three fiscal quarters of each Fiscal Year of the Borrower, commencing with the second fiscal quarter of Fiscal Year 2017 and (ii) the date on which Parent is required to file (or, if earlier, files) a Form 10-Q under the Exchange Act, a copy of (i) the company-prepared unaudited consolidated balance sheets sheet of Borrower and its Subsidiaries the Consolidated Group Companies as of the last day of such Fiscal Quarter fiscal quarter and the unaudited consolidated statements of operations, changes in equity (deficit) income and cash flows of Borrower the Consolidated Group Companies for the Fiscal Quarter fiscal quarter and for the Fiscal Year-to-Year to date period then ended, each in reasonable detail and, if available, showing in comparative form the figures for the corresponding date and period in the previous Fiscal YearYear and showing in comparative form year to date against budget, prepared by the applicable party Borrower in accordance with GAAP (subject to the absence of footnote disclosures and year-year end audit adjustments) and certified to on behalf of the Borrower by a its Chief Financial Officer or another officer of the Borrower acceptable to the Administrative Agent that such financial statements have been prepared in accordance with GAAP and (ii) operating statementspresent fairly the consolidated financial condition of the Consolidated Group Companies in all material respects, rent roll together with a management discussion and accounts receivable aging for each Borrowing Base Property;analysis; provided, however, that the requirement to provide comparisons to the previous Fiscal Year and to budget shall not apply to the statements of cash flows.
(b) as soon as available, and in any event no On or before the later than of (i) one hundred twenty five (120105) days after the last day of each Fiscal Year of the BorrowerBorrower and (ii) the date on which Parent is required to file (or, if earlier, files) a Form 10-K under the Exchange Act, a copy of the audited consolidated balance sheets sheet of Borrower and its Subsidiaries the Consolidated Group Companies as of the last day of the Fiscal Year then ended and the audited consolidated statements of statements of operationsincome, comprehensive lossretained earnings, shareholders’ equity (deficit) and cash flows of Borrower and its Subsidiaries the Consolidated Group Companies for the Fiscal Year then ended, and accompanying notes thereto, each in reasonable detail and, if available, showing in comparative form the figures for the previous Fiscal YearYear (except with respect to the statements of cash flows) commencing with Fiscal Year 2017, together with a management discussion and analysis accompanied in the case of the consolidated financial statements by an unqualified opinion of BDO USA, P.C., KPMG LLP or another firm of independent public accountants of recognized national standing, standing selected by ▇▇▇▇▇▇▇▇ the Borrower, without going concern or qualification arising out of the scope of the audit and reasonably satisfactory to the Administrative Agent;effect that the consolidated financial statements have been prepared in accordance with GAAP and present fairly in all material respects in accordance with GAAP the consolidated financial condition of the Consolidated Group Companies as of the close of such Fiscal Year and the results of their operations and cash flows for the Fiscal Year then ended and that an examination of such accounts in connection with such financial statements has been made in accordance with generally accepted auditing standards and, accordingly, such examination included such tests of the accounting records and such other auditing procedures as were considered necessary in the circumstances; provided that it shall not be a violation of this clause (b) if the audit and opinion accompanying the financial statements for any Fiscal Year is subject to a “going concern” or like qualification solely as a result of the Revolving Credit Termination Date or final maturity date of any Term Loan being scheduled to occur within twelve months from the date of such audit and opinion or breach or anticipated breach of the financial covenants set forth in Section 8.22.
(c) [reserved];Promptly after receipt thereof, the final management letters delivered to the Borrower by its independent public accountants.
(d) promptly after the sending On or filing thereof, copies of each financial statement, report, notice or proxy statement sent by any Loan Party or any Subsidiary of a Loan Party to its stockholders or other equity holders, and copies of each regular, periodic or special report, registration statement or prospectus filed by any Loan Party or any Subsidiary of a Loan Party with any securities exchange;
before seventy-five (e) [reserved];
(f) within ninety (9075) days after following the end of each Fiscal Year of the Borrower, a copy of the Borrower’s operating budget and projections consolidated business plan for the following year including Fiscal Year, such business plan to show Borrower’s projected consolidated projections of revenues, expenses and balance sheet on a quarter-by-quarter basis, with such operating budget and projections business plan to be in reasonable detail prepared by Borrower and in a reasonable and customary form reasonably satisfactory to the Administrative Agent (which shall include a summary of all significant assumptions made in preparing such projectionsbusiness plan);
; provided that the foregoing may be prepared with respect to Parent on a consolidated basis if, during the entire period of such following Fiscal Year, Parent shall not conduct or engage in any operations or business or incur any indebtedness other than (gi) notice those incidental to its ownership of the Equity Interests of Holdings, (ii) the maintenance of its legal existence and good standing and complying with requirements of law, (iii) any public offering or other issuance of its Equity Interests to the extent not triggering a Change of Control;, (iv) participating in tax, accounting and other administrative matters as a member of the consolidated, combined, unitary or similar group that includes Parent, Holdings and the Borrower, (v) holding any cash or property received in connection with Restricted Payments made by Holdings or contributions to its capital or in exchange for the sale or issuance of Equity Interests, (vi) providing indemnification to directors, officers, employees, members of management and consultants, (vii) preparing reports to governmental authorities and to its shareholders; (viii) engaging in activities typical for a holding company subject to Section 13 or 15(d) of the Exchange Act and (ix) any activities incidental to any of the foregoing.
(he) promptly Promptly after knowledge thereof shall have come to the attention of any Responsible Officer Authorized Representative of any Loan Partythe Borrower, written notice of (i) any threatened or pending litigation or governmental or arbitration proceeding or labor controversy against any Loan Party or any Subsidiary of a Loan Party Restricted Group Company or any of their Property which, if adversely determined, could which would reasonably be expected to have a Material Adverse Effect, ,; (ii) the occurrence of any Material Adverse Effect, Default or Event of Default hereunder,; (iii) the occurrence of any Default event that has resulted in, or could reasonably be expected to result in, a Material Adverse Effect; or (iv) the occurrence of any change in the information provided in the Beneficial Ownership Certification that event for which notice would result in a change to the list of beneficial owners identified in of such certification;be required under Section 8.13 or Section 8.14(c).
(if) on the Closing Date and with With each of the financial statements delivered furnished to the Lenders pursuant to subsections paragraphs (a) (other than the last Fiscal Quarter of each Fiscal Year) and (b) above, a compliance certificate (“Compliance Certificate”) in Certificate signed on behalf of the form attached hereto as Exhibit F signed Borrower by a the Chief Financial Officer of the Borrower or another officer of the Borrower reasonably acceptable to the Administrative Agent (in each case, solely in his or her capacity as an officer of the Borrower and not in his or her individual capacity) to the effect that to the best of such officer’s knowledge and belief knowledge, as at the date of such certificate, no Default has occurred during the period covered by such statements or Event of Default exists or, if any such Default has occurred during such periodor Event of Default exists, setting forth a description of such Default or Event of Default and specifying the action, if any, taken by by, the relevant Loan Party Borrower or its any Restricted Subsidiary to remedy the same. Such same and to the extent any Unrestricted Subsidiary then exists, setting forth the names of all such Unrestricted Subsidiaries and to the extent applicable, such certificate shall also set forth the calculations supporting such statements in respect of Section 8.22 (Financial Covenants); and8.22.
(jg) on At the Closing Date and time such certificate is required to be delivered, the Borrower shall promptly deliver to the Administrative Agent, at the Administrative Agent’s office, information regarding any change in Total Leverage Ratio that would change the then existing Applicable Margin.
(h) Simultaneously with the delivery of each set of the consolidated financial statements delivered pursuant referred to subsections (a) (other than the last Fiscal Quarter of each Fiscal Yearin Sections 8.5(a) and (b) above), a Borrowing Base Certificate showing the computation of related consolidating financial statements reflecting the Borrowing Base Value, in reasonable detail adjustments necessary (as of the close of business on the last day of such Fiscal Quarter or Fiscal Year, as applicable, prepared determined by the Borrower in good faith) to eliminate the accounts of Unrestricted Subsidiaries (if any) (which may be in footnote form only) from such consolidated financial statements.
(i) During the Financial Covenant Suspension Period, (i) from and certified to by its chief financial officer or another officer after the First Amendment Effective Date until the Second Amendment Effective Date, within three (3) Business Days after the week ending April 17, 2020 and every two- week period thereafter (i.e., on a biweekly basis) and (ii) from and after the Second Amendment Effective Date, within three (3) Business Days after the end of the Borrower each month, 13-week cash flow projections in a form reasonably acceptable to the Administrative Agent; and
(k) within a reasonable period , which shall include in any case tabular presentation for the pertinent periods of time following any such request therefor, from time to time, (i) such other information regarding projected and actual cash flows and variance between the operations, business affairs and financial condition of any Loan Party or any Subsidiary of a Loan Party, or compliance with the terms of any Loan Document, as the Administrative Agent or any Lender may reasonably request or (ii) information and documentation reasonably requested by the Administrative Agent or any Lender for purposes of compliance with applicable “know your customer” requirements under the Patriot Act or other applicable Anti-Corruption Laws and the Beneficial Ownership Regulation. Notwithstanding the foregoing, the filing of the Borrower’s financial statements with the U.S. Securities and Exchange Commission on Form 10-K or Form 10-Q shall satisfy the requirements of Section 8.5(a)(i) and (b), respectivelysame.
Appears in 1 contract
Sources: Credit Agreement (Dave & Buster's Entertainment, Inc.)
Financial Reports. The Loan Parties shallServicer shall furnish, or cause to be furnished, to the Administrative Agent:
(i) as soon as available, but in any event within 90 days after the end of each fiscal year of the Servicer (beginning with the fiscal year ended December 31, 2024), a consolidated balance sheet of the Servicer as at the end of such fiscal year, and the related consolidated statements of income or operations, changes in shareholders’ equity, and cash flows for such fiscal year, all in reasonable detail and prepared in accordance with the Applicable Accounting Standard, audited and accompanied by a report and opinion of an independent certified public accountant of nationally recognized standing, which report and opinion shall cause each 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 their Subsidiaries tosuch audit; provided, maintain proper books of records and accounts reasonably necessary to prepare that the financial statements required to be delivered pursuant to this Section 8.5 clause (k)(i) which are made available via E▇▇▇▇, or any successor system of the SEC, in accordance with GAAP and the Servicer’s annual report on Form 10-K, shall furnish be deemed delivered to the Administrative Agent and each Lender:on the date such documents are made so available;
(aii) as soon as available, and but in any event no later than sixty (60) days after the last day of each Fiscal Quarter of each Fiscal Year of the Borrower, a copy of (i) the company-prepared consolidated balance sheets of Borrower and its Subsidiaries as of the last day of such Fiscal Quarter and the consolidated statements of operations, changes in equity (deficit) and cash flows of Borrower for the Fiscal Quarter and for the Fiscal Year-to-date period then ended, in reasonable detail and, if available, showing in comparative form the figures for the corresponding date and period in the previous Fiscal Year, prepared by the applicable party in accordance with GAAP (subject to the absence of footnote disclosures and year-end audit adjustments) and certified to by a Financial Officer of Borrower and (ii) operating statements, rent roll and accounts receivable aging for each Borrowing Base Property;
(b) as soon as available, and in any event no later than one hundred twenty (120) days after the last day of each Fiscal Year of the Borrower, a copy of the consolidated balance sheets of Borrower and its Subsidiaries as of the last day of the Fiscal Year then ended and the consolidated statements of statements of operations, comprehensive loss, shareholders’ equity (deficit) and cash flows of Borrower and its Subsidiaries for the Fiscal Year then ended, and accompanying notes thereto, each in reasonable detail and, if available, showing in comparative form the figures for the previous Fiscal Year, accompanied in the case of the consolidated financial statements by an unqualified opinion of BDO USA, P.C., or another firm of independent public accountants of recognized national standing, selected by ▇▇▇▇▇▇▇▇ and reasonably satisfactory to the Administrative Agent;
(c) [reserved];
(d) promptly after the sending or filing thereof, copies of each financial statement, report, notice or proxy statement sent by any Loan Party or any Subsidiary of a Loan Party to its stockholders or other equity holders, and copies of each regular, periodic or special report, registration statement or prospectus filed by any Loan Party or any Subsidiary of a Loan Party with any securities exchange;
(e) [reserved];
(f) within ninety (90) 60 days after the end of each Fiscal Year of the Borrowerfirst three fiscal quarters of each fiscal year of the Servicer (commencing with the first full fiscal quarter ended after the Closing Date), a copy consolidated balance sheet of the Borrower’s operating budget Servicer as at the end of such fiscal quarter, the related consolidated statements of income or operations for such fiscal quarter and projections for the following portion of the Servicer’s fiscal year including then ended, and the related consolidated projections statements of revenueschanges in shareholders’ equity, expenses and balance sheet on a quarter-by-quarter basiscash flows for the portion of the Servicer’s fiscal year then ended, with such operating budget and projections all in reasonable detail and prepared by Borrower in accordance with the Applicable Accounting Standard, subject only to normal year-end audit adjustments and the absence of footnotes; provided, that the financial statements required to be delivered pursuant to this clause (k)(ii) which are made available via E▇▇▇▇, or any successor system of the SEC, in form reasonably satisfactory the Servicer’s quarterly report on Form 10-Q, shall be deemed delivered to the Administrative Agent (which shall include a summary of all significant assumptions made in preparing such projections);
(g) notice of any Change of Control;
(h) promptly after knowledge thereof shall have come to the attention of any Responsible Officer of any Loan Party, written notice of (i) any threatened or pending litigation or governmental or arbitration proceeding or labor controversy against any Loan Party or any Subsidiary of a Loan Party or any of their Property which, if adversely determined, could reasonably be expected to have a Material Adverse Effect, (ii) the occurrence of any Material Adverse Effect, (iii) the occurrence of any Default or (iv) any change in the information provided in the Beneficial Ownership Certification that would result in a change to the list of beneficial owners identified in of such certification;
(i) on the Closing Date and with each of the financial statements delivered pursuant to subsections (a) (other than the last Fiscal Quarter of each Fiscal Year) and (b) above, a compliance certificate (“Compliance Certificate”) in the form attached hereto as Exhibit F signed by a Financial Officer of the Borrower to the effect that to the best of date such officer’s knowledge and belief no Default has occurred during the period covered by such statements or, if any such Default has occurred during such period, setting forth a description of such Default and specifying the action, if any, taken by the relevant Loan Party or its Subsidiary to remedy the same. Such certificate shall also set forth the calculations supporting such statements in respect of Section 8.22 (Financial Covenants)documents are made so available; and
(jiii) on the Closing Date and with each of the financial statements delivered pursuant to subsections (a) (other than the last Fiscal Quarter of each Fiscal Year) and (b) above, a Borrowing Base Certificate showing the computation of the Borrowing Base Value, in reasonable detail as of the close of business on the last day of such Fiscal Quarter or Fiscal Year, as applicable, prepared by the Borrower and certified to by its chief financial officer or another officer of the Borrower reasonably acceptable to the Administrative Agent; and
(k) within a reasonable period of time promptly following any such request therefor, from time to time, (i) such other information regarding the operations, business affairs and financial condition of any Loan Party the Borrower, Borrower Parent or any Subsidiary of a Loan PartyServicer, or compliance with the terms of any this Agreement and the other Loan DocumentDocuments, as the Administrative Agent or any Lender may reasonably request or (ii) information and documentation reasonably requested by the Administrative Agent or any Lender for purposes of compliance with applicable “know your customer” requirements under the Patriot Act or other applicable Anti-Corruption Laws and the Beneficial Ownership Regulation. Notwithstanding the foregoing, the filing of the Borrower’s financial statements with the U.S. Securities and Exchange Commission on Form 10-K or Form 10-Q shall satisfy the requirements of Section 8.5(a)(i) and (b), respectivelyrequest.
Appears in 1 contract
Financial Reports. The Loan Parties shall(a) Whether or not the Company is subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act, and shall cause each of their Subsidiaries toso long as any Notes are outstanding, maintain proper books of records and accounts reasonably necessary to prepare financial statements required to be delivered pursuant to this Section 8.5 in accordance with GAAP and shall the Company will furnish to the Administrative Agent and each LenderTrustee:
(a) as soon as available, and in any event no later than sixty (60) days after the last day of each Fiscal Quarter of each Fiscal Year of the Borrower, a copy of (i) the company-prepared consolidated balance sheets of Borrower and its Subsidiaries as of the last day of such Fiscal Quarter and the consolidated statements of operations, changes in equity (deficit) and cash flows of Borrower for the Fiscal Quarter and for the Fiscal Year-to-date period then ended, in reasonable detail and, if available, showing in comparative form the figures for the corresponding date and period in the previous Fiscal Year, prepared by the applicable party in accordance with GAAP (subject to the absence of footnote disclosures and year-end audit adjustments) and certified to by a Financial Officer of Borrower and (ii) operating statements, rent roll and accounts receivable aging for each Borrowing Base Property;
(b) as soon as available, and in any event no later than one hundred twenty (120) days after the last day of each Fiscal Year of the Borrower, a copy of the consolidated balance sheets of Borrower and its Subsidiaries as of the last day of the Fiscal Year then ended and the consolidated statements of statements of operations, comprehensive loss, shareholders’ equity (deficit) and cash flows of Borrower and its Subsidiaries for the Fiscal Year then ended, and accompanying notes thereto, each in reasonable detail and, if available, showing in comparative form the figures for the previous Fiscal Year, accompanied in the case of the consolidated financial statements by an unqualified opinion of BDO USA, P.C., or another firm of independent public accountants of recognized national standing, selected by ▇▇▇▇▇▇▇▇ and reasonably satisfactory to the Administrative Agent;
(c) [reserved];
(d) promptly after the sending or filing thereof, copies of each financial statement, report, notice or proxy statement sent by any Loan Party or any Subsidiary of a Loan Party to its stockholders or other equity holders, and copies of each regular, periodic or special report, registration statement or prospectus filed by any Loan Party or any Subsidiary of a Loan Party with any securities exchange;
(e) [reserved];
(f1) within ninety (90) 105 days after the end of each Fiscal Year fiscal year of the BorrowerCompany ending after the Issue Date, a copy the consolidated financial statements of the BorrowerCompany for such year prepared in accordance with GAAP, together with a report thereon by the Company’s operating budget independent auditor, and projections a “Management’s Discussion and Analysis of Financial Condition and Results of Operations” for the following relevant fiscal year including substantially similar to that which would be required to be contained in an annual report on Form 10-K, or any successor or comparable form, under the Exchange Act if the Company had been a reporting company under the Exchange Act, it being understood that, except as noted below, the Company shall not be required to include any consolidating financial information with respect to the Company, any Guarantor or any other Affiliate of the Company, or any separate financial statements or information for the Company, any Guarantor or any other Affiliate of the Company;
(2) within 60 days after the end of each of the first three fiscal quarters in each fiscal year of the Company, the condensed consolidated projections financial statements of revenuesthe Company for such portion of the fiscal year prepared in accordance with GAAP, expenses together with a “Management’s Discussion and balance sheet Analysis of Financial Condition and Results of Operations” for the relevant fiscal quarter substantially similar to that which would be required to be contained in a quarterly report on Form 10-Q, or any successor or comparable form, under the Exchange Act if the Company had been a quarterreporting company under the Exchange Act, it being understood that, except as noted below, the Company shall not be required to include any consolidating financial information with respect to the Company, any Guarantor or any other Affiliate of the Company, or any separate financial statements or information for the Company, any Guarantor or any other Affiliate of the Company; and
(3) within 15 days after the occurrence of the date of filing that would have been required for a Current Report on Form 8-byK, or any successor or comparable form, under the Exchange Act if the Company had been a reporting company under the Exchange Act (or such later time period provided for in such Form 8-quarter basisK), information substantially similar to the information that would be required to be included in such Form 8-K pursuant to Item 1.03 (Bankruptcy or Receivership), Item 2.03 (Creation of a Direct Financial Obligation or an Obligation under an Off-Balance Sheet Arrangement of a Registrant), Item 2.04 (Triggering Events that Accelerate or Increase a Direct Financial Obligation or an Obligation under an Off-Balance Sheet Arrangement), Item 2.05 (Costs Associated with Exit or Disposal Activities), Item 2.06 (Material Impairments), Item 4.01 (Changes in Registrant’s Certifying Accountant), Item 4.02 (Non-Reliance on Previously Issued Financial Statements or a Related Audit Report or Completed Interim Review) or Item 5.01 (Changes in Control of Registrant) of such operating budget form; provided that no such information referenced under this Section 4.17(a)(3) will be required to be made available or furnished if the Company determines in its good faith judgment that such event is not material to the Holders or the business, assets, operations, financial positions or prospects of the Company and projections its Restricted Subsidiaries, taken as a whole; provided, further, the Company may redact any information that it determines in reasonable detail prepared good faith would be reasonably likely to be eligible for confidential treatment by Borrower the Securities and Exchange Commission (the “Commission”) if the Company was a reporting company under the Exchange Act.
(b) In connection with this Section 4.17(a), it is understood that the Company shall not be required to (i) comply with Section 302 and Section 404 of the Sarbanes Oxley Act of 2002, as amended, or related items 307 and 308 of Regulation S-K under the Securities Act, (ii) comply with Rules 3-09, 3-10 and 3-16 of Regulation S-X under the Securities Act, (iii) comply with Regulation G under the Exchange Act or Item 10(e) of Regulation S-K with respect to any “non-GAAP” financial information contained therein or (iv) present compensation or beneficial ownership information. Notwithstanding anything to the contrary in form Section 4.17(a), if the Company has designated any of its Subsidiaries as an Unrestricted Subsidiary, then the annual and quarterly information required by Section 4.17(a)(1) and (2) shall include a reasonably detailed presentation, either on the face of the financial statements or in the footnotes thereto or in a “Management’s Discussion and Analysis of Financial Condition and Results of Operations,” of the financial condition and results of operations of the Company and its Restricted Subsidiaries separate from the financial condition and results of operations of such Unrestricted Subsidiaries.
(c) Substantially concurrently with the furnishing of the reports referred to in Section 4.17(a)(1), (2) and (3) to the Trustee, the Company shall also post copies of such reports on Intralinks or any comparable password-protected online data system which requires a confidentiality acknowledgment, to which access is given to any holder and any beneficial owner of the Notes and to any prospective investors, any securities analysts (to the extent providing research and analysis of investment in the Notes to investors and prospective investors therein) or any market-making financial institutions reasonably satisfactory to the Administrative Agent (which shall include a summary of all significant assumptions made in preparing such projections);
(g) notice of any Change of Control;
(h) promptly after knowledge thereof shall have come to the attention of any Responsible Officer of any Loan Party, written notice of Company who (i) any threatened agree to treat such information as confidential or pending litigation or governmental or arbitration proceeding or labor controversy against any Loan Party or any Subsidiary of a Loan Party or any of their Property which, if adversely determined, could reasonably be expected to have a Material Adverse Effect, (ii) access such information on Intralinks or any comparable password-protected online data system which requires a confidentiality acknowledgment, provided that the occurrence of Company will post such information thereon and make readily available any Material Adverse Effectpassword or login information to any such prospective investors, (iii) the occurrence of any Default securities analysts or (iv) any change in the information provided in the Beneficial Ownership Certification that would result in a change market-making financial institutions. Notwithstanding anything to the list of beneficial owners identified in of such certification;contrary, the Trustee shall not have any obligation to monitor whether the Company timely posts the required documents on Intralinks or any comparable password-protected online data system which requires a confidentiality acknowledgment.
(d) In the event that:
(i) on the Closing Date rules and with each regulations of the financial statements delivered pursuant Commission permit the Company and any direct or indirect parent of the Company to subsections (a) (report at such parent entity’s level on a consolidated basis and such parent entity is not engaged in any business in any material respect other than the last Fiscal Quarter of each Fiscal Year) and (b) aboveincidental to its ownership, a compliance certificate (“Compliance Certificate”) in the form attached hereto as Exhibit F signed by a Financial Officer directly or indirectly, of the Borrower to Capital Stock of the effect Company, or
(ii) any direct or indirect parent of the Company provides a full and unconditional guarantee of the Notes, consolidated reporting at such parent entity’s level in a manner consistent with that to described in this Section 4.17 for the best Company will satisfy this Section 4.17, and the Company may satisfy its obligations in this Section 4.17 by providing the requisite financial and other information of such officer’s knowledge and belief no Default has occurred during the period covered by such statements or, if any such Default has occurred during such period, setting forth a description of such Default and specifying the action, if any, taken by the relevant Loan Party or its Subsidiary to remedy the same. Such certificate shall also set forth the calculations supporting such statements in respect of Section 8.22 (Financial Covenants); and
(j) on the Closing Date and with each parent entity instead of the financial statements delivered pursuant to subsections (a) (other than the last Fiscal Quarter of each Fiscal Year) and (b) above, a Borrowing Base Certificate showing the computation of the Borrowing Base Value, Company; provided that such information is accompanied by consolidating information that explains in reasonable detail as the differences between the information of such parent entity, on the one hand, and the information relating to the Company and its Restricted Subsidiaries, on a stand-alone basis, on the other hand.
(e) For the avoidance of doubt, the Company shall not be required to comply with or otherwise become subject to the reporting requirements of the close of business on the last day of such Fiscal Quarter or Fiscal Year, as applicable, prepared by the Borrower and certified to by its chief financial officer or another officer of the Borrower reasonably acceptable to the Administrative Agent; and
(k) within a reasonable period of time following any such request therefor, from time to time, (i) such other information regarding the operations, business affairs and financial condition of any Loan Party or any Subsidiary of a Loan Party, or compliance with the terms of any Loan Document, as the Administrative Agent or any Lender may reasonably request or (ii) information and documentation reasonably requested by the Administrative Agent or any Lender for purposes of compliance with applicable “know your customer” requirements under the Patriot Act or other applicable Anti-Corruption Laws and the Beneficial Ownership RegulationExchange Act. Notwithstanding the foregoing, the Company may fulfill the requirement to furnish any such information described in Section 4.17(a) by filing of the Borrower’s financial statements information with the U.S. Securities Commission within the time periods specified in the Commission’s rules and Exchange Commission regulations that are then applicable to the Company.
(f) Delivery of such reports, information and documents to the Trustee is for informational purposes only and the Trustee’s receipt of such shall not constitute actual or constructive notice of any information contained therein or determinable from information contained therein, including the Company’s compliance with any of its covenants under this Indenture (as to which the Trustee is entitled to rely exclusively on Form 10-K or Form 10-Q shall satisfy the requirements of Section 8.5(a)(i) and (bOfficer’s Certificates), respectively.
Appears in 1 contract
Sources: Indenture (J2 Global, Inc.)
Financial Reports. The Loan Parties shallBorrower shall cause the Investment Manager to furnish, or cause to be furnished, to the Administrative Agent and each Agent:
(i) as soon as available, but in any event within 120 days after the end of each fiscal year of the Equityholder, a copy of the consolidated and consolidating balance sheet of the Equityholder and its consolidated Subsidiaries as at the end of such year, the related consolidated and consolidating statements of income for such year, and shall cause the related consolidated statements of changes in net assets and of cash flows for such year, setting forth in each of their Subsidiaries tocase in comparative form the figures for the previous year; provided, maintain proper books of records and accounts reasonably necessary to prepare that the financial statements required to be delivered pursuant to this Section 8.5 clause (i) which are made available via E▇▇▇▇, or any successor system of the Securities and Exchange Commission, in accordance with GAAP and the Equityholder’s annual report on Form 10-K, shall furnish be deemed delivered to the Administrative Agent and each Lender:Agent on the date such documents are made so available; and
(aii) as soon as available, available and in any event no later than sixty (60) days after the last day of each Fiscal Quarter of each Fiscal Year of the Borrower, a copy of (i) the company-prepared consolidated balance sheets of Borrower and its Subsidiaries as of the last day of such Fiscal Quarter and the consolidated statements of operations, changes in equity (deficit) and cash flows of Borrower for the Fiscal Quarter and for the Fiscal Year-to-date period then ended, in reasonable detail and, if available, showing in comparative form the figures for the corresponding date and period in the previous Fiscal Year, prepared by the applicable party in accordance with GAAP (subject to the absence of footnote disclosures and year-end audit adjustments) and certified to by a Financial Officer of Borrower and (ii) operating statements, rent roll and accounts receivable aging for each Borrowing Base Property;
(b) as soon as available, and in any event no later than one hundred twenty (120) days after the last day of each Fiscal Year of the Borrower, a copy of the consolidated balance sheets of Borrower and its Subsidiaries as of the last day of the Fiscal Year then ended and the consolidated statements of statements of operations, comprehensive loss, shareholders’ equity (deficit) and cash flows of Borrower and its Subsidiaries for the Fiscal Year then ended, and accompanying notes thereto, each in reasonable detail and, if available, showing in comparative form the figures for the previous Fiscal Year, accompanied in the case of the consolidated financial statements by an unqualified opinion of BDO USA, P.C., or another firm of independent public accountants of recognized national standing, selected by ▇▇▇▇▇▇▇▇ and reasonably satisfactory to the Administrative Agent;
(c) [reserved];
(d) promptly after the sending or filing thereof, copies of each financial statement, report, notice or proxy statement sent by any Loan Party or any Subsidiary of a Loan Party to its stockholders or other equity holders, and copies of each regular, periodic or special report, registration statement or prospectus filed by any Loan Party or any Subsidiary of a Loan Party with any securities exchange;
(e) [reserved];
(f) within ninety (90) 45 days after the end of each Fiscal Year fiscal quarter of the Borrower, a copy of the Borrower’s operating budget and projections for the following each fiscal year including consolidated projections of revenues, expenses and balance sheet on a quarter-by-quarter basis, with such operating budget and projections in reasonable detail prepared by Borrower and in form reasonably satisfactory to the Administrative Agent (which shall include a summary of all significant assumptions made in preparing such projections);
(g) notice of any Change of Control;
(h) promptly after knowledge thereof shall have come to the attention of any Responsible Officer of any Loan Party, written notice of (i) any threatened or pending litigation or governmental or arbitration proceeding or labor controversy against any Loan Party or any Subsidiary of a Loan Party or any of their Property which, if adversely determined, could reasonably be expected to have a Material Adverse Effect, (ii) the occurrence of any Material Adverse Effect, (iii) the occurrence of any Default or (iv) any change in the information provided in the Beneficial Ownership Certification that would result in a change to the list of beneficial owners identified in of such certification;
(i) on the Closing Date and with each of the financial statements delivered pursuant to subsections (a) (other than the last Fiscal Quarter fiscal quarter of each Fiscal Year) fiscal year), an unaudited consolidated and (b) above, a compliance certificate (“Compliance Certificate”) in the form attached hereto as Exhibit F signed by a Financial Officer consolidating balance sheet of the Borrower to Equityholder and its consolidated Subsidiaries as of the effect that to the best end of such officer’s knowledge fiscal quarter and belief no Default has occurred during including the prior comparable period (if any), and the unaudited consolidated and consolidating statements of income of the Equityholder and its consolidated Subsidiaries for such fiscal quarter and for the period covered by such statements or, if any such Default has occurred during such period, setting forth a description commencing at the end of the previous fiscal year and ending with the end of such Default fiscal quarter, and specifying the actionunaudited consolidated statements of cash flows of the Equityholder and its consolidated Subsidiaries for the period commencing at the end of the previous fiscal year and ending with the end of such fiscal quarter; provided, if any, taken by the relevant Loan Party or its Subsidiary to remedy the same. Such certificate shall also set forth the calculations supporting such statements in respect of Section 8.22 (Financial Covenants); and
(j) on the Closing Date and with each of that the financial statements required to be delivered pursuant to subsections (a) (other than the last Fiscal Quarter of each Fiscal Year) and (b) above, a Borrowing Base Certificate showing the computation of the Borrowing Base Value, in reasonable detail as of the close of business on the last day of such Fiscal Quarter or Fiscal Year, as applicable, prepared by the Borrower and certified to by its chief financial officer or another officer of the Borrower reasonably acceptable to the Administrative Agent; and
(k) within a reasonable period of time following any such request therefor, from time to time, (i) such other information regarding the operations, business affairs and financial condition of any Loan Party or any Subsidiary of a Loan Party, or compliance with the terms of any Loan Document, as the Administrative Agent or any Lender may reasonably request or this clause (ii) information and documentation reasonably requested by the Administrative Agent which are made available via E▇▇▇▇, or any Lender for purposes of compliance with applicable “know your customer” requirements under the Patriot Act or other applicable Anti-Corruption Laws and the Beneficial Ownership Regulation. Notwithstanding the foregoing, the filing successor system of the Borrower’s financial statements with the U.S. Securities and Exchange Commission Commission, in the Equityholder’s quarterly report on Form 10-K or Form 10-Q Q, shall satisfy be deemed delivered to the requirements of Section 8.5(a)(i) Administrative Agent and (b), respectivelyeach Agent on the date such documents are made so available.
Appears in 1 contract
Sources: Loan Financing and Servicing Agreement (FS Investment Corp III)
Financial Reports. The Loan Parties shall, and Borrower shall cause each maintain a standard system of their Subsidiaries to, maintain proper books of records and accounts reasonably necessary to prepare financial statements required to be delivered pursuant to this Section 8.5 accounting in accordance with GAAP and shall furnish to the Administrative Agent Bank and each Lenderits duly authorized representatives such information respecting the business and financial condition of the Borrower as the Bank may reasonably request; and without any request, shall furnish to the Bank:
(a) as soon as available, and in any event no later than sixty (60) within 45 days after the last day of each Fiscal Quarter of each Fiscal Year fiscal quarter of the Borrower, a copy of (i) the company-prepared consolidated balance sheets sheet of the Borrower and its Subsidiaries as of the last day of such Fiscal Quarter period and the consolidated statements of operations, changes in shareholders' equity (deficit) and cash flows of the Borrower for the Fiscal Quarter fiscal quarter and for the Fiscal Year-to-fiscal year to date period then ended, each in reasonable detail and, if available, showing in comparative form the figures for the corresponding date and period in the previous Fiscal Yearfiscal year, prepared by the applicable party Borrower in accordance with GAAP (subject to the absence of footnote disclosures and year-end audit adjustments) and certified to by a Financial Officer of Borrower and (ii) operating statements, rent roll and accounts receivable aging for each Borrowing Base Propertyits chief financial officer or such other officer acceptable to the Bank;
(b) as soon as available, and in any event no later than one hundred twenty (120) within 90 days after the last day close of each Fiscal Year fiscal year of the Borrower, a copy of the consolidated balance sheets sheet of the Borrower and its Subsidiaries as of the last day close of the Fiscal Year then ended such period and the consolidated statements of statements of operations, comprehensive lossshareholders' equity, shareholders’ equity (deficit) and cash flows of the Borrower and its Subsidiaries for the Fiscal Year then endedsuch period, and accompanying notes thereto, each in reasonable detail and, if available, showing in comparative form the figures for the previous Fiscal Yearfiscal year, accompanied in the case of the consolidated financial statements by an unqualified opinion thereon of BDO USA, P.C., Ernst & Young LLP or another firm of independent public accountants of recognized national standing, selected by ▇▇▇▇▇▇▇▇ the Borrower and reasonably satisfactory to the Administrative AgentBank, to the effect that the financial statements have been prepared in accordance with GAAP and present fairly in accordance with GAAP the financial condition of the Borrower as of the close of such fiscal year and the results of its operations and its cash flows for the fiscal year then ended and that an examination of such accounts in connection with such financial statements has been made in accordance with generally accepted auditing standards and, accordingly, such examination included such tests of the accounting records and such other auditing procedures as were considered necessary in the circumstances;
(c) [reserved];within the period provided in subsection (b) above, the written statement of the accountants who certified the financial statements thereby required that in the course of their audit they have obtained no knowledge of any Default or Event of Default, or, if such accountants have obtained knowledge of any such Default or Event of Default, they shall disclose in such statement the nature and period of the existence thereof,
(d) promptly after the sending or filing thereof, copies of each financial statement, report, notice or proxy statement sent by any Loan Party or any Subsidiary of a Loan Party to its stockholders or other equity holdersas soon as available, and copies of each regular, periodic or special report, registration statement or prospectus filed by in any Loan Party or any Subsidiary of a Loan Party with any securities exchange;
(e) [reserved];
(f) event within ninety (90) 7 days after the end of each Fiscal Year of the Borrowerweek, a copy of the Borrower’s operating budget and projections for Verification Letter (as defined in the following year including consolidated projections Operating Guidelines) as of revenues, expenses and balance sheet on a quarter-by-quarter basis, with the last day of such operating budget and projections in reasonable detail prepared by Borrower and in form reasonably satisfactory to the Administrative Agent (which shall include a summary of all significant assumptions made in preparing such projections)week;
(ge) notice promptly after receipt thereof, any additional written reports, management letters or other detailed information contained in writing concerning significant aspects of any Change of Controlthe Borrower's operations and financial affairs given to it by its independent public accountants;
(hf) promptly after knowledge thereof shall have come to the attention of any Responsible Officer responsible officer of any Loan Partythe Borrower, written notice of (i) any threatened or pending litigation or governmental or arbitration proceeding or labor controversy against any Loan Party or any Subsidiary of a Loan Party or any of their Property the Borrower which, if adversely determined, could reasonably be expected to have a Material Adverse Effectwould materially and adversely effect the financial condition, (ii) Properties, business or operations of the occurrence Borrower or of any Material Adverse Effect, (iii) the occurrence of any Default or Event of Default hereunder; and
(ivg) as soon as available, and in any change event within 45 days after the last day of each fiscal quarter of the Borrower, the Borrower shall deliver to the Bank a written certificate in the information provided in the Beneficial Ownership Certification that would result in a change to the list of beneficial owners identified in of such certification;
(i) on the Closing Date and with each of the financial statements delivered pursuant to subsections (a) (other than the last Fiscal Quarter of each Fiscal Year) and (b) above, a compliance certificate (“Compliance Certificate”) in the form foam attached hereto as Exhibit F C signed by a Financial Officer the chief financial officer of the Borrower, or such other officer of the Borrower reasonably satisfactory to the Bank, to the effect that to the best of such officer’s 's knowledge and belief no Default or Event of Default has occurred during the period covered by such statements or, if any such Default or Event of Default has occurred during such period, setting forth a description of such Default or Event of Default and specifying the action, if any, taken by the relevant Loan Party or its Subsidiary Borrower to remedy the same. Such certificate shall also set forth the calculations supporting such statements in respect of Section 8.22 (Financial Covenants); and
(j) on the Closing Date and with each of the financial statements delivered pursuant to subsections (a) (other than the last Fiscal Quarter of each Fiscal Year) and (b) above, a Borrowing Base Certificate showing the computation of the Borrowing Base Value, in reasonable detail as of the close of business on the last day of such Fiscal Quarter or Fiscal Year, as applicable, prepared by the Borrower and certified to by its chief financial officer or another officer of the Borrower reasonably acceptable to the Administrative Agent; and
(k) within a reasonable period of time following any such request therefor, from time to time, (i) such other information regarding the operations, business affairs and financial condition of any Loan Party or any Subsidiary of a Loan Party, or compliance with the terms of any Loan Document, as the Administrative Agent or any Lender may reasonably request or (ii) information and documentation reasonably requested by the Administrative Agent or any Lender for purposes of compliance with applicable “know your customer” requirements under the Patriot Act or other applicable Anti-Corruption Laws and the Beneficial Ownership Regulation. Notwithstanding the foregoing, the filing of the Borrower’s financial statements with the U.S. Securities and Exchange Commission on Form 10-K or Form 10-Q shall satisfy the requirements of Section 8.5(a)(i) and (b), respectively.
Appears in 1 contract
Financial Reports. The Loan Parties Borrower shall, and shall cause each of their Subsidiaries Subsidiary to, maintain proper books a standard system of records and accounts reasonably necessary to prepare financial statements required to be delivered pursuant to this Section 8.5 accounting in accordance with GAAP and shall furnish to Administrative Agent, each Lender, the L/C Issuer and each of their duly authorized representatives such information respecting the business and financial condition of Borrower and each Subsidiary as Administrative Agent or such Lender may reasonably request; and each Lenderwithout any request, shall furnish to Administrative Agent, the Lenders, and L/C Issuer :
(a) as soon as availableavailable after the last day of each of the first three (3) fiscal quarters of each fiscal year of Borrower, and in any event no later than sixty five (605) days after the last day of each Fiscal Quarter of each Fiscal Year of date required to be filed with the BorrowerSecurities and Exchange Commission or any successor agency (after giving effect to any extensions thereof in accordance with applicable law), a copy of (i) the company-prepared consolidated and consolidating balance sheets sheet of Borrower and its Subsidiaries as of the last day of such Fiscal Quarter fiscal quarter and the consolidated and consolidating statements of operationsincome, changes in equity (deficit) retained earnings, and cash flows of Borrower and its Subsidiaries for the Fiscal Quarter fiscal quarter and for the Fiscal Year-to-fiscal year to date period then ended, each in reasonable detail and, if available, showing in comparative form the figures for the corresponding date and period in the previous Fiscal Yearfiscal year, prepared by the applicable party Borrower in accordance with GAAP (subject to the absence of footnote disclosures and year-year end audit adjustments) and certified to by a Financial Officer its chief financial officer or another officer of Borrower and (ii) operating statements, rent roll and accounts receivable aging for each Borrowing Base Propertyacceptable to Administrative Agent;
(b) as soon as availableavailable after the last day of each fiscal year of Borrower, and in any event no later than one hundred twenty ten (12010) days after the last day of each Fiscal Year of date required to be filed with the BorrowerSecurities and Exchange Commission or any successor agency (after giving effect to any extensions thereof in accordance with applicable law), a copy of the consolidated and consolidating balance sheets sheet of Borrower and its Subsidiaries as of the last day of the Fiscal Year fiscal year then ended and the consolidated and consolidating statements of statements of operationsincome, comprehensive lossretained earnings, shareholders’ equity (deficit) and cash flows of Borrower and its Subsidiaries for the Fiscal Year fiscal year then ended, and accompanying notes thereto, each in reasonable detail and, if available, showing in comparative form the figures for the previous Fiscal Yearfiscal year, accompanied in the case of the consolidated financial statements by an unqualified opinion of BDO USA, P.C., or another a firm of independent public accountants of recognized national standing, selected by ▇▇▇▇▇▇▇▇ Borrower and reasonably satisfactory to Administrative Agent and the Administrative AgentRequired Lenders, to the effect that the consolidated financial statements have been prepared in accordance with GAAP and present fairly in accordance with GAAP the consolidated financial condition of Borrower and its Subsidiaries as of the close of such fiscal year and the results of their operations and cash flows for the fiscal year then ended and that an examination of such accounts in connection with such financial statements has been made in accordance with generally accepted auditing standards and, accordingly, such examination included such tests of the accounting records and such other auditing procedures as were considered necessary in the circumstances;
(c) [reserved]within the period provided in subsection (b) above, the written statement of the accountants who certified the audit report thereby required that in the course of their audit they have obtained no knowledge of any Default or Event of Default, or, if such accountants have obtained knowledge of any such Default or Event of Default, they shall disclose in such statement the nature and period of the existence thereof;
(d) promptly after receipt thereof, any additional written reports, management letters or other detailed information contained in writing concerning significant aspects of Borrower’s or any Subsidiary’s operations and financial affairs given to it by its independent public accountants;
(e) promptly after the sending or filing thereof, copies of each financial statement, report, notice or proxy statement sent by any Loan Party Borrower or any Subsidiary of a Loan Party to its stockholders or other equity holders, and copies of each regular, periodic or special report, registration statement or prospectus (including all Form 10 K, Form 10 Q and Form 8 K reports) filed by any Loan Party Borrower or any Subsidiary of a Loan Party with any securities exchange;
(e) [reserved]exchange or the Securities and Exchange Commission or any successor agency;
(f) within ninety promptly after receipt thereof, a copy of each audit made by any regulatory agency of the books and records of Borrower or any Subsidiary or of notice of any material noncompliance with any applicable Law, regulation or guideline relating to Borrower or any Subsidiary, or its business;
(90g) as soon as available, and in any event no later than thirty (30) days after to the end of each Fiscal Year fiscal year of the Borrower, a copy of the Borrower’s operating budget consolidated and projections consolidating business plan for the following year including fiscal year, such business plan to show Borrower’s projected consolidated projections of and consolidating revenues, expenses and balance sheet on a quarter by quarter-by-quarter /month by month basis, with such operating budget and projections business plan to be in reasonable detail prepared by Borrower ▇▇▇▇▇▇▇▇ and in form reasonably satisfactory to the Administrative Agent and the Required Lenders (which shall include a summary of all significant assumptions made in preparing such projectionsbusiness plan);
(g) notice of any Change of Control;
(h) promptly after knowledge thereof shall have come to the attention of any Responsible Officer responsible officer of any Loan Party▇▇▇▇▇▇▇▇, written notice of (i) any threatened or pending litigation or governmental or arbitration proceeding or labor controversy against any Loan Party Borrower or any Subsidiary of a Loan Party or any of their Property which, if adversely determined, could reasonably be expected to have a Material Adverse Effect, Effect or (ii) the occurrence of any Material Adverse Effect, (iii) the occurrence of any Default or (iv) any change in the information provided in the Beneficial Ownership Certification that would result in a change to the list Event of beneficial owners identified in of such certification;Default hereunder; and
(i) on the Closing Date and with each of the financial statements delivered pursuant to subsections (a) (other than the last Fiscal Quarter of each Fiscal Year) and (b) above, a compliance written certificate (“Compliance Certificate”) in the form attached hereto as Exhibit F E signed by a Financial Officer the chief financial officer of the Borrower or another officer of Borrower acceptable to Administrative Agent to the effect that to the best of such officer’s knowledge and belief no Default or Event of Default has occurred during the period covered by such statements or, if any such Default or Event of Default has occurred during such period, setting forth a description of such Default or Event of Default and specifying the action, if any, taken by the relevant Loan Party Borrower or its any Subsidiary to remedy the same. Such certificate shall also set forth the calculations supporting such statements in respect of Section 8.22 (Financial Covenants); and
(j) on the Closing Date and with each of the financial statements delivered pursuant to subsections (a) (other than the last Fiscal Quarter of each Fiscal Year) and (b) above, a Borrowing Base Certificate showing the computation of the Borrowing Base Value, covenants set forth in reasonable detail as of the close of business on the last day of such Fiscal Quarter or Fiscal Year, as applicable, prepared by the Borrower and certified to by its chief financial officer or another officer of the Borrower reasonably acceptable to the Administrative Agent; and
(k) within a reasonable period of time following any such request therefor, from time to time, (i) such other information regarding the operations, business affairs and financial condition of any Loan Party or any Subsidiary of a Loan Party, or compliance with the terms of any Loan Document, as the Administrative Agent or any Lender may reasonably request or (ii) information and documentation reasonably requested by the Administrative Agent or any Lender for purposes of compliance with applicable “know your customer” requirements under the Patriot Act or other applicable Anti-Corruption Laws and the Beneficial Ownership Regulation. Notwithstanding the foregoing, the filing of the Borrower’s financial statements with the U.S. Securities and Exchange Commission on Form 10-K or Form 10-Q shall satisfy the requirements of Section 8.5(a)(i) and (b), respectively7.13 hereof.
Appears in 1 contract
Sources: Credit Agreement (Twin Disc Inc)
Financial Reports. The Loan Parties Borrower shall, and shall cause each of their Subsidiaries Subsidiary to, maintain proper books a system of records and accounts reasonably necessary to prepare financial statements required to be delivered pursuant to this Section 8.5 accounting in accordance with GAAP and shall furnish to the Administrative Agent Agent, each Lender, each L/C Issuer and each Lenderof their duly authorized representatives such information respecting the business and financial condition of the Borrower and each Subsidiary as the Administrative Agent, such Lender or such L/C Issuer may reasonably request (it being understood that the Borrower and its Subsidiaries shall not be required to provide consolidating statements in respect of their operations); and without any request, shall furnish to the Administrative Agent for distribution to the L/C Issuers and the Lenders:
(a) as soon as available, and in any event no later than sixty (60) within 45 days after the last day close of each Fiscal Quarter of each Fiscal Year of the Borrower, a copy of (i) the company-prepared consolidated balance sheets sheet of the Borrower and its Subsidiaries as of the last day of such Fiscal Quarter and the consolidated statements of operationsincome, changes in equity (deficit) retained earnings, and cash flows of the Borrower and its Subsidiaries for the Fiscal Quarter and for the Fiscal Year-to-date period then ended, each in reasonable detail and, if available, showing in comparative form the figures for the corresponding date and period in the previous Fiscal Year, prepared by the applicable party Borrower in accordance with GAAP (subject to the absence of footnote disclosures and year-end audit adjustments) and certified to by a Financial Officer its chief financial officer, treasurer or another officer of the Borrower acceptable to the Administrative Agent; provided, however, that delivery in the time period specified above (or, if longer, the time period allowed by the Securities and (iiExchange Commission for the delivery of the Borrower’s Form 10-Q pursuant to one extension request, provided that in no event shall such time period exceed 65 days after the close of the applicable Fiscal Quarter of the Borrower) operating statements, rent roll of copies of the Borrower’s Quarterly Report on Form 10-Q prepared in compliance with the requirements therefor and accounts receivable aging for each Borrowing Base Propertyfiled with the Securities and Exchange Commission shall be deemed to satisfy the requirements of this Section 8.5(a);
(b) as soon as available, and in any event no later than one hundred twenty (120) within 90 days after the last day close of each Fiscal Year of the Borrower, a copy of the consolidated balance sheets sheet of the Borrower and its Subsidiaries as of the last day of the Fiscal Year then ended and the consolidated statements of statements of operationsincome, comprehensive lossretained earnings, shareholders’ equity (deficit) and cash flows of the Borrower and its Subsidiaries for the Fiscal Year then ended, and accompanying notes thereto, each in reasonable detail and, if available, showing in comparative form the figures for the previous Fiscal Year, accompanied in the case of the consolidated financial statements by an unqualified opinion of BDO USADeloitte & Touche, P.C., L.L.P. or another firm of independent public accountants of recognized national standing, selected by ▇▇▇▇▇▇▇▇ the Borrower and reasonably satisfactory to the Administrative AgentAgent and the Required Lenders, to the effect that the consolidated financial statements have been prepared in accordance with GAAP and present fairly in accordance with GAAP the consolidated financial condition of the Borrower and its Subsidiaries as of the close of such Fiscal Year and the results of their operations and cash flows for the Fiscal Year then ended and that an examination of such accounts in connection with such financial statements has been made in accordance with generally accepted auditing standards and, accordingly, such examination included such tests of the accounting records and such other auditing procedures as were considered necessary in the circumstances; provided, however, that delivery in the time period specified above (or, if longer, the time period allowed by the Securities and Exchange Commission for the delivery of the Borrower’s Form 10-K pursuant to one extension request, provided that in no event shall such time period exceed 110 days after the close of the applicable Fiscal Year of the Borrower) of copies of the Borrower’s Annual Report on Form 10-K prepared in compliance with requirements therefor and filed with the Securities and Exchange Commission shall be deemed to satisfy the requirements of this Section 8.5(b);
(c) [reserved]promptly after receipt thereof, any in writing delivered to the Borrower or any of its Subsidiaries from their independent public accountants which reports any material weaknesses;
(d) promptly after the sending or filing thereof, copies of each financial statement, report, notice or proxy statement sent by any Loan Party or any Subsidiary of a Loan Party the Borrower to its stockholders or other equity holders, and copies of each regular, periodic or special report, registration statement or prospectus (including, if not delivered pursuant to subsections (a) or (b) above, all Form 10-K, Form 10-Q and Form 8-K reports) filed by any Loan Party or any Subsidiary of a Loan Party the Borrower with any securities exchangeexchange or the Securities and Exchange Commission or any successor agency;
(e) [reserved];
(f) as soon as available, and in any event within ninety (90) 90 days after the end beginning of each Fiscal Year of the Borrower, a copy of the Borrower’s operating budget and consolidated financial projections for the following year including Fiscal Year, such consolidated financial projections of revenuesto show the Borrower’s projected income and expenses, expenses and balance sheet and cash flow statement on a quarter-by-quarter basis, with such operating budget and consolidated financial projections to be in reasonable detail prepared by the Borrower and in form similar to those delivered to the Lenders prior to the Closing Date, or otherwise reasonably satisfactory to the Administrative Agent (which shall include a summary of all significant assumptions made in preparing such consolidated financial projections);
(gf) prompt notice of any Change of Control;
(hg) promptly after knowledge thereof shall have come to the attention of any Responsible Officer responsible officer of any Loan Partythe Borrower, written notice of (i) any threatened or pending litigation or governmental or arbitration proceeding or labor controversy against any Loan Party the Borrower or any Subsidiary of a Loan Party or any of their Property which, if adversely determined, could which may reasonably be expected to have a Material Adverse Effect, (ii) the occurrence Effect or of any Material Adverse Effect, (iii) the occurrence of any Default or (iv) any change in the information provided in the Beneficial Ownership Certification that would result in a change to the list Event of beneficial owners identified in of such certificationDefault hereunder;
(ih) on the Closing Date and with each of the financial statements delivered furnished to the Lenders pursuant to subsections (a) (other than the last Fiscal Quarter of each Fiscal Year) and (b) above, a compliance written certificate (“Compliance Certificate”) in the form attached hereto as Exhibit F signed by a Financial Officer the chief financial officer or treasurer of the Borrower or another officer of the Borrower acceptable to the Administrative Agent to the effect that to the best of such officerthe Borrower’s knowledge and belief no Default or Event of Default has occurred during the period covered by such statements or, if any such Default or Event of Default has occurred during such period, setting forth a description of such Default or Event of Default and specifying the action, if any, taken by the relevant Loan Party Borrower or its any Subsidiary to remedy the same. Such certificate shall also set forth the calculations supporting such statements in respect of Section 8.22 (Financial Covenants)hereof; and
(ji) on promptly after the Closing Date occurrence thereof, written notice of any change in the information set forth in Schedule 6.2 hereof relating to any Significant Subsidiary resulting from any transaction not prohibited by this Agreement, except for any such change resulting from a transaction permitted by Sections 8.11 or 8.17 hereof (and with each of the financial statements delivered pursuant to subsections (a) (other than the last Fiscal Quarter of each Fiscal Year) and (b) above, a Borrowing Base Certificate showing the computation of the Borrowing Base Value, in reasonable detail as of the close of business on the last day of such Fiscal Quarter or Fiscal Year, as applicable, prepared by the Borrower and certified to by its chief financial officer or another officer of the Borrower reasonably acceptable to upon the Administrative Agent; and
(k) within a reasonable period ’s receipt of time following any such request therefor, from time notice Schedule 6.2 shall be deemed amended to time, (i) reflect such other information regarding the operations, business affairs and financial condition of any Loan Party or any Subsidiary of a Loan Party, or compliance with the terms of any Loan Document, as the Administrative Agent or any Lender may reasonably request or (ii) information and documentation reasonably requested by the Administrative Agent or any Lender for purposes of compliance with applicable “know your customer” requirements under the Patriot Act or other applicable Anti-Corruption Laws and the Beneficial Ownership Regulation. Notwithstanding the foregoing, the filing of the Borrower’s financial statements with the U.S. Securities and Exchange Commission on Form 10-K or Form 10-Q shall satisfy the requirements of Section 8.5(a)(i) and (bchange), respectively.
Appears in 1 contract
Financial Reports. The Loan Parties Company shall, whether or not required by the rules and regulations of the Commission, so long as any Notes are outstanding under this Indenture, the Company shall cause furnish to the Holders and the Trustee the following information, such information, in each case, to comply in all material respects with the applicable requirements of the specified form:
(a) within 90 days after the end of each fiscal year (or if such day is not a Business Day, on the next succeeding Business Day), all financial information that would be required to be contained in an annual report on Form 10-K, or any successor or comparable form, filed by the Company with the Commission, including a “Management’s Discussion and Analysis of Financial Condition and Results of Operations” and a report on the annual financial statements by the Company’s independent registered public accounting firm;
(b) within 45 days after the end of each of their Subsidiaries tothe first three fiscal quarters of each fiscal year (or if such day is not a Business Day, maintain proper books on the next succeeding Business Day), all financial information that would be required to be contained in a quarterly report on Form 10-Q, or any successor or comparable form, filed by the Company with the Commission, including a “Management’s Discussion and Analysis of records Financial Condition and accounts reasonably necessary to prepare Results of Operations,” and financial statements prepared in accordance with GAAP; and
(c) all information required by current reports that would be required to be filed with the Commission by the Company on Form 8-K, or any successor or comparable form, if the Company were required to file such reports, in each case within five Business Days of the date on which time periods specified in the Commission’s rules and regulations. In addition, the Company shall, for so long as any Notes remain outstanding and constitute “restricted securities” under Rule 144 under the Securities Act, furnish to the Holders of the Notes, beneficial owners and prospective investors, upon their request, the information required to be delivered pursuant to this Section 8.5 in accordance with GAAP and shall furnish Rule 144A(d)(4) under the Securities Act. The Company will be deemed to have furnished such information referred to above (including the immediately preceding paragraph) to the Administrative Agent Trustee and each Lender:
(a) as soon as available, and in the holders if the Company or any event no later than sixty (60) days after the last day of each Fiscal Quarter of each Fiscal Year direct or indirect parent of the Borrower, a copy of (i) Company has filed such information with the company-prepared consolidated balance sheets of Borrower and its Subsidiaries as of Commission via the last day of such Fiscal Quarter and the consolidated statements of operations, changes in equity (deficit) and cash flows of Borrower for the Fiscal Quarter and for the Fiscal Year-to-date period then ended, in reasonable detail and, if available, showing in comparative form the figures for the corresponding date and period in the previous Fiscal Year, prepared by the applicable party in accordance with GAAP (subject to the absence of footnote disclosures and year-end audit adjustments) and certified to by a Financial Officer of Borrower and (ii) operating statements, rent roll and accounts receivable aging for each Borrowing Base Property;
(b) as soon as available, and in any event no later than one hundred twenty (120) days after the last day of each Fiscal Year of the Borrower, a copy of the consolidated balance sheets of Borrower and its Subsidiaries as of the last day of the Fiscal Year then ended and the consolidated statements of statements of operations, comprehensive loss, shareholders’ equity (deficit) and cash flows of Borrower and its Subsidiaries for the Fiscal Year then ended, and accompanying notes thereto, each in reasonable detail and, if available, showing in comparative form the figures for the previous Fiscal Year, accompanied in the case of the consolidated financial statements by an unqualified opinion of BDO USA, P.C., or another firm of independent public accountants of recognized national standing, selected by ▇▇▇▇▇▇▇▇ (or successor) filing system and reasonably satisfactory such information is publicly available. Delivery of such information and reports to the Administrative Agent;
Trustee is for informational purposes only, and the Trustee’s receipt thereof shall not constitute constructive or actual notice of any information contained therein or determinable from the information contained therein, including our compliance with any of the covenants under this Indenture (as to which the Trustee is entitled to rely exclusively on Officer’s Certificates). The Trustee shall have no liability or responsibility for the filing, timeliness or content of such information or reports. The Trustee shall not be obligated to monitor or confirm, on a continuing basis or otherwise, the Company’s compliance with the covenants or with respect to any reports or other documents filed with the SEC or ▇▇▇▇▇ or the Company’s website under this Indenture, or participate in any conference calls. To the extent any such reports referred to in clauses (a) through (c) [reserved];
(d) promptly after the sending under this Section 4.17 is not so filed or filing thereof, copies of each financial statement, report, notice or proxy statement sent by any Loan Party or any Subsidiary of a Loan Party to its stockholders or other equity holders, and copies of each regular, periodic or special report, registration statement or prospectus filed by any Loan Party or any Subsidiary of a Loan Party with any securities exchange;
(e) [reserved];
(f) within ninety (90) days after the end of each Fiscal Year of the Borrower, a copy of the Borrower’s operating budget and projections for the following year including consolidated projections of revenues, expenses and balance sheet on a quarter-by-quarter basis, with such operating budget and projections in reasonable detail prepared by Borrower and in form reasonably satisfactory to the Administrative Agent (which shall include a summary of all significant assumptions made in preparing such projections);
(g) notice of any Change of Control;
(h) promptly after knowledge thereof shall have come to the attention of any Responsible Officer of any Loan Party, written notice of (i) any threatened or pending litigation or governmental or arbitration proceeding or labor controversy against any Loan Party or any Subsidiary of a Loan Party or any of their Property which, if adversely determined, could reasonably be expected to have a Material Adverse Effect, (ii) the occurrence of any Material Adverse Effect, (iii) the occurrence of any Default or (iv) any change in the information provided in the Beneficial Ownership Certification that would result in a change to the list of beneficial owners identified in of such certification;
(i) on the Closing Date and with each of the financial statements delivered pursuant to subsections (a) (other than the last Fiscal Quarter of each Fiscal Year) and (b) above, a compliance certificate (“Compliance Certificate”) in the form attached hereto as Exhibit F signed by a Financial Officer of the Borrower to the effect that to the best of such officer’s knowledge and belief no Default has occurred during the period covered by such statements or, if any such Default has occurred during such period, setting forth a description of such Default and specifying the action, if any, taken by the relevant Loan Party or its Subsidiary to remedy the same. Such certificate shall also set forth the calculations supporting such statements in respect of Section 8.22 (Financial Covenants); and
(j) on the Closing Date and with each of the financial statements delivered pursuant to subsections (a) (other than the last Fiscal Quarter of each Fiscal Year) and (b) above, a Borrowing Base Certificate showing the computation of the Borrowing Base Value, in reasonable detail as of the close of business on the last day of such Fiscal Quarter or Fiscal Yearfurnished, as applicable, prepared by within the Borrower time periods specified above and certified to by its chief financial officer such reports are subsequently filed or another officer of the Borrower reasonably acceptable to the Administrative Agent; and
(k) within a reasonable period of time following any such request therefor, from time to time, (i) such other information regarding the operations, business affairs and financial condition of any Loan Party or any Subsidiary of a Loan Party, or compliance with the terms of any Loan Documentfurnished, as the Administrative Agent or any Lender may reasonably request or (ii) information and documentation reasonably requested by the Administrative Agent or any Lender for purposes of compliance with applicable “know your customer” requirements under the Patriot Act or other applicable Anti-Corruption Laws and the Beneficial Ownership Regulation. Notwithstanding the foregoingapplicable, the filing Company will be deemed to have satisfied its obligations with respect thereto at such time and any Default or Event of the Borrower’s financial statements Default with the U.S. Securities and Exchange Commission on Form 10-K or Form 10-Q respect thereto shall satisfy the requirements of Section 8.5(a)(i) and (b), respectivelybe deemed to have been cured.
Appears in 1 contract
Sources: Indenture (J2 Global, Inc.)
Financial Reports. The Loan Parties shallBorrower shall cause the Investment Manager to furnish, or cause to be furnished, to the Facility Agent and each Agent:
(i) as soon as available, but in any event within 120 days after the end of each fiscal year of TCP Capital Corp., a copy of the consolidated and consolidating balance sheet of TCP Capital Corp. and its consolidated Subsidiaries as at the end of such year, the related consolidated and consolidating statement of income for such year, and shall cause the related consolidated statements of changes in net assets and of cash flows for such year, setting forth in each of their Subsidiaries tocase in comparative form the figures for the previous year; provided, maintain proper books of records and accounts reasonably necessary to prepare that the financial statements required to be delivered pursuant to this Section 8.5 in accordance with GAAP and shall furnish to the Administrative Agent and each Lender:
(a) as soon as available, and in any event no later than sixty (60) days after the last day of each Fiscal Quarter of each Fiscal Year of the Borrower, a copy of clause (i) the company-prepared consolidated balance sheets of Borrower and its Subsidiaries as of the last day of such Fiscal Quarter and the consolidated statements of operations, changes in equity (deficit) and cash flows of Borrower for the Fiscal Quarter and for the Fiscal Year-to-date period then ended, in reasonable detail and, if available, showing in comparative form the figures for the corresponding date and period in the previous Fiscal Year, prepared by the applicable party in accordance with GAAP (subject to the absence of footnote disclosures and year-end audit adjustments) and certified to by a Financial Officer of Borrower and (ii) operating statements, rent roll and accounts receivable aging for each Borrowing Base Property;
(b) as soon as available, and in any event no later than one hundred twenty (120) days after the last day of each Fiscal Year of the Borrower, a copy of the consolidated balance sheets of Borrower and its Subsidiaries as of the last day of the Fiscal Year then ended and the consolidated statements of statements of operations, comprehensive loss, shareholders’ equity (deficit) and cash flows of Borrower and its Subsidiaries for the Fiscal Year then ended, and accompanying notes thereto, each in reasonable detail and, if available, showing in comparative form the figures for the previous Fiscal Year, accompanied in the case of the consolidated financial statements by an unqualified opinion of BDO USA, P.C., or another firm of independent public accountants of recognized national standing, selected by which are made available via ▇▇▇▇▇▇▇▇ and reasonably satisfactory , or any successor system of the Commission, in TCP Capital Corp.’s annual report on Form 10-K, shall be deemed delivered to the Administrative Facility Agent and each Agent, on the date such documents are made so available;
(cii) [reserved];
(d) promptly after the sending or filing thereof, copies of each financial statement, report, notice or proxy statement sent by as soon as available and in any Loan Party or any Subsidiary of a Loan Party to its stockholders or other equity holders, and copies of each regular, periodic or special report, registration statement or prospectus filed by any Loan Party or any Subsidiary of a Loan Party with any securities exchange;
(e) [reserved];
(f) event within ninety (90) 120 days after the end of each Fiscal Year of the Borrowerfiscal year, a copy of the Borrower’s operating budget and projections audited consolidated financial statements for the following prior year for the Equityholder and its consolidated Subsidiaries, including consolidated projections the prior comparable period (if any) from the preceding fiscal year and certified by Independent Accountants (the report of revenueswhich shall be unqualified), expenses and together with consolidating balance sheet and income statement of the Equityholder; provided, that the financial statements required to be delivered pursuant to this clause (ii) which are made available via ▇▇▇▇▇, or any successor system of the Commission, in TCP Capital Corp.’s annual report on a quarterForm 10-by-quarter basisK, with such operating budget and projections in reasonable detail prepared by Borrower and in form reasonably satisfactory shall be deemed delivered to the Administrative Facility Agent (which shall include a summary of all significant assumptions and each Agent, on the date such documents are made in preparing such projections)so available;
(g) notice of any Change of Control;
(h) promptly after knowledge thereof shall have come to the attention of any Responsible Officer of any Loan Party, written notice of (i) any threatened or pending litigation or governmental or arbitration proceeding or labor controversy against any Loan Party or any Subsidiary of a Loan Party or any of their Property which, if adversely determined, could reasonably be expected to have a Material Adverse Effect, (ii) the occurrence of any Material Adverse Effect, (iii) as soon as available and in any event within 45 days after the occurrence end of any Default or (iv) any change in the information provided in the Beneficial Ownership Certification that would result in a change to the list each fiscal quarter of beneficial owners identified in of such certification;
(i) on the Closing Date and with each of the financial statements delivered pursuant to subsections (a) fiscal year (other than the last Fiscal Quarter fiscal quarter of each Fiscal Year) fiscal year), an unaudited consolidated and (b) above, a compliance certificate (“Compliance Certificate”) in the form attached hereto consolidating balance sheet of TCP Capital Corp. and its consolidated Subsidiaries as Exhibit F signed by a Financial Officer of the Borrower end of such fiscal quarter and including the prior comparable period (if any), and the unaudited consolidated and consolidating statements of income of TCP Capital Corp. and its consolidated Subsidiaries for such fiscal quarter and for the period commencing at the end of the previous fiscal year and ending with the end of such fiscal quarter, and the unaudited consolidated statements of cash flows of TCP Capital Corp. and its consolidated Subsidiaries for the period commencing at the end of the previous fiscal year and ending with the end of such fiscal quarter; provided, that the financial statements required to be delivered pursuant to this clause (iii) which are made available via ▇▇▇▇▇, or any successor system of the Commission, in TCP Capital Corp.’s annual report on Form 10-K, shall be deemed delivered to the effect that to Facility Agent and each Agent, on the best of date such officer’s knowledge and belief no Default has occurred during the period covered by such statements or, if any such Default has occurred during such period, setting forth a description of such Default and specifying the action, if any, taken by the relevant Loan Party or its Subsidiary to remedy the same. Such certificate shall also set forth the calculations supporting such statements in respect of Section 8.22 (Financial Covenants)documents are made so available; and
(jiv) on as soon as available and in any event within 45 days after the Closing Date and with end of each fiscal quarter of the financial statements delivered pursuant to subsections (a) each fiscal year (other than the last Fiscal Quarter fiscal quarter of each Fiscal Year) fiscal year), an unaudited consolidated and (b) above, a Borrowing Base Certificate showing the computation consolidating balance sheet of the Borrowing Base Value, in reasonable detail Equityholder and its consolidated Subsidiaries as of the close of business on the last day end of such Fiscal Quarter or Fiscal Yearfiscal quarter and including the prior comparable period (if any), as applicable, prepared by and the Borrower unaudited consolidated and certified to by its chief financial officer or another officer consolidating statement of income of the Borrower reasonably acceptable Equityholder and its consolidated Subsidiaries for such fiscal quarter and for the period commencing at the end of the -65- previous fiscal year and ending with the end of such fiscal quarter, and the unaudited consolidated statement of cash flows of the Equityholder and its consolidated Subsidiaries for the period commencing at the end of the previous fiscal year and ending with the end of such fiscal quarter; provided, that the financial statements required to the Administrative Agent; and
be delivered pursuant to this clause (kiv) within a reasonable period of time following any such request thereforwhich are made available via ▇▇▇▇▇, from time to time, (i) such other information regarding the operations, business affairs and financial condition of any Loan Party or any Subsidiary of a Loan Party, or compliance with the terms of any Loan Document, as the Administrative Agent or any Lender may reasonably request or (ii) information and documentation reasonably requested by the Administrative Agent or any Lender for purposes of compliance with applicable “know your customer” requirements under the Patriot Act or other applicable Anti-Corruption Laws and the Beneficial Ownership Regulation. Notwithstanding the foregoing, the filing successor system of the BorrowerCommission, in TCP Capital Corp.’s financial statements with the U.S. Securities and Exchange Commission annual report on Form 10-K or Form 10-Q K, shall satisfy be deemed delivered to the requirements of Section 8.5(a)(i) Facility Agent and (b)each Agent, respectivelyon the date such documents are made so available.
Appears in 1 contract
Sources: Loan Financing and Servicing Agreement (BlackRock TCP Capital Corp.)
Financial Reports. The Loan Parties shall, and shall cause each of their Subsidiaries to, maintain proper books of records and accounts reasonably necessary to prepare financial statements required to be delivered pursuant to this Section 8.5 in accordance with GAAP and shall furnish to the Administrative Agent and each Lender:
(a) as soon as available, and in any event no later than sixty (60) days after the last day of each Fiscal Quarter of each Fiscal Year of the Borrower, a copy of (i) the company-prepared consolidated balance sheets of Borrower and its Subsidiaries as of the last day of such Fiscal Quarter and the consolidated statements of operations, changes in equity (deficit) and cash flows of Borrower for the Fiscal Quarter and for the Fiscal Year-to-date period then ended, in reasonable detail and, if available, showing in comparative form the figures for the corresponding date and period in the previous Fiscal Year, prepared by the applicable party in accordance with GAAP (subject to the absence of footnote disclosures and year-end audit adjustments) and certified to by a Financial Officer of Borrower and (ii) operating statements, rent roll and accounts receivable aging for each Borrowing Base Property;
(b) as soon as available, and in any event no later than one hundred twenty (120) days after the last day of each Fiscal Year of the Borrower, a copy of the consolidated balance sheets of Borrower and its Subsidiaries as of the last day of the Fiscal Year then ended and the consolidated statements of statements of operations, comprehensive loss, shareholders’ equity (deficit) and cash flows of Borrower and its Subsidiaries for the Fiscal Year then ended, and accompanying notes thereto, each in reasonable detail and, if available, showing in comparative form the figures for the previous Fiscal Year, accompanied in the case of the consolidated financial statements by an unqualified opinion of BDO USA, P.C., or another firm of independent public accountants of recognized national standing, selected by ▇▇▇▇▇▇▇▇ and reasonably satisfactory to the Administrative Agent;
(c) [reserved];
(d) promptly after the sending or filing thereof, copies of each financial statement, report, notice or proxy statement sent by any Loan Party or any Subsidiary of a Loan Party to its stockholders or other equity holders, and copies of each regular, periodic or special report, registration statement or prospectus filed by any Loan Party or any Subsidiary of a Loan Party with any securities exchange;
(e) [reserved];
(f) within ninety (90) days after the end of each Fiscal Year of the Borrower, a copy of the Borrower’s operating budget and projections for the following year including consolidated projections of revenues, expenses and balance sheet on a quarter-by-quarter basis, with such operating budget and projections in reasonable detail prepared by Borrower and in form reasonably satisfactory to the Administrative Agent (which shall include a summary of all significant assumptions made in preparing such projections);
(g) notice of any Change of Control;
(h) promptly after knowledge thereof shall have come to the attention of any Responsible Officer of any Loan Party, written notice of (i) any threatened or pending litigation or governmental or arbitration proceeding or labor controversy against any Loan Party or any Subsidiary of a Loan Party or any of their Property which, if adversely determined, could reasonably be expected to have a Material Adverse Effect, (ii) the occurrence of any Material Adverse Effect, (iii) the occurrence of any Default or (iv) any change in the information provided in the Beneficial Ownership Certification that would result in a change to the list of beneficial owners identified in of such certification;
(i) on the Closing Date and with each of the financial statements delivered pursuant to subsections (a) (other than the last Fiscal Quarter of each Fiscal Year) and (b) above, a compliance certificate (“Compliance Certificate”) in the form attached hereto as Exhibit F E signed by a Financial Officer of the Borrower to the effect that to the best of such officer’s knowledge and belief no Default has occurred during the period covered by such statements or, if any such Default has occurred during such period, setting forth a description of such Default and specifying the action, if any, taken by the relevant Loan Party or its Subsidiary to remedy the same. Such certificate shall also set forth the calculations supporting such statements in respect of Section 8.22 (Financial Covenants); and
(j) on the Closing Date and with each of the financial statements delivered pursuant to subsections (a) (other than the last Fiscal Quarter of each Fiscal Year) and (b) above, a Borrowing Base Certificate showing the computation of the Borrowing Base Value, in reasonable detail as of the close of business on the last day of such Fiscal Quarter or Fiscal Year, as applicable, prepared by the Borrower and certified to by its chief financial officer or another officer of the Borrower reasonably acceptable to the Administrative Agent; and
(k) within a reasonable period of time following any such request therefor, from time to time, (i) such other information regarding the operations, business affairs and financial condition of any Loan Party or any Subsidiary of a Loan Party, or compliance with the terms of any Loan Document, as the Administrative Agent or any Lender may reasonably request or (ii) information and documentation reasonably requested by the Administrative Agent or any Lender for purposes of compliance with applicable “know your customer” requirements under the Patriot Act or other applicable Anti-Corruption Laws and the Beneficial Ownership Regulation. Notwithstanding the foregoing, the filing of the Borrower’s financial statements with the U.S. Securities and Exchange Commission on Form 10-K or Form 10-Q shall satisfy the requirements of Section 8.5(a)(i) and (b), respectively.
Appears in 1 contract
Financial Reports. The Loan Parties shallServicer shall furnish, and shall or cause each of their Subsidiaries to, maintain proper books of records and accounts reasonably necessary to prepare financial statements required to be delivered pursuant to this Section 8.5 in accordance with GAAP and shall furnish furnished, to the Administrative Agent and each LenderFacility Agent:
(ai) as soon as available, available and in any event no later than sixty (60) days after the last day of each Fiscal Quarter of each Fiscal Year of the Borrower, a copy of (i) the company-prepared consolidated balance sheets of Borrower and its Subsidiaries as of the last day of such Fiscal Quarter and the consolidated statements of operations, changes in equity (deficit) and cash flows of Borrower for the Fiscal Quarter and for the Fiscal Year-to-date period then ended, in reasonable detail and, if available, showing in comparative form the figures for the corresponding date and period in the previous Fiscal Year, prepared by the applicable party in accordance with GAAP (subject to the absence of footnote disclosures and year-end audit adjustments) and certified to by a Financial Officer of Borrower and (ii) operating statements, rent roll and accounts receivable aging for each Borrowing Base Property;
(b) as soon as available, and in any event no later than one hundred twenty (120) days after the last day of each Fiscal Year of the Borrower, a copy of the consolidated balance sheets of Borrower and its Subsidiaries as of the last day of the Fiscal Year then ended and the consolidated statements of statements of operations, comprehensive loss, shareholders’ equity (deficit) and cash flows of Borrower and its Subsidiaries for the Fiscal Year then ended, and accompanying notes thereto, each in reasonable detail and, if available, showing in comparative form the figures for the previous Fiscal Year, accompanied in the case of the consolidated financial statements by an unqualified opinion of BDO USA, P.C., or another firm of independent public accountants of recognized national standing, selected by ▇▇▇▇▇▇▇▇ and reasonably satisfactory to the Administrative Agent;
(c) [reserved];
(d) promptly after the sending or filing thereof, copies of each financial statement, report, notice or proxy statement sent by any Loan Party or any Subsidiary of a Loan Party to its stockholders or other equity holders, and copies of each regular, periodic or special report, registration statement or prospectus filed by any Loan Party or any Subsidiary of a Loan Party with any securities exchange;
(e) [reserved];
(f) within ninety (90) 120 days after the end of each Fiscal Year of the Borrowerfiscal year, a copy of the Borrower’s operating budget and projections audited consolidated financial statements for the following prior year for the Servicer and its consolidated Subsidiaries, including consolidated projections the prior comparable period (if any) from the preceding fiscal year and certified by Independent Accountants (the report of revenues, expenses and balance sheet on a quarter-by-quarter basis, with such operating budget and projections in reasonable detail prepared by Borrower and in form reasonably satisfactory to the Administrative Agent (which shall include a summary of all significant assumptions made in preparing such projectionsbe unqualified);
(g) notice of any Change of Control;
(h) promptly after knowledge thereof shall have come to , together with consolidating financial statements for the attention of any Servicer certified by an Responsible Officer of any Loan Partythe Servicer with appropriate knowledge stating that the information set forth therein fairly presents in all material respects the financial condition of the Servicer and its consolidated Subsidiaries as of and for such fiscal year, written notice with all such financial statements being prepared in accordance with GAAP applied consistently throughout the period involved (except for changes in the application of (i) any threatened or pending litigation or governmental or arbitration proceeding or labor controversy against any Loan Party or any Subsidiary of a Loan Party or any of their Property which, if adversely determined, could reasonably be expected to have a Material Adverse Effect, GAAP approved by such accountants in accordance with GAAP and disclosed therein); and
(ii) as soon as available and in any event within 45 days after the occurrence end of any Material Adverse Effect, (iii) the occurrence each fiscal quarter of any Default or (iv) any change in the information provided in the Beneficial Ownership Certification that would result in a change to the list of beneficial owners identified in of such certification;
(i) on the Closing Date and with each of the financial statements delivered pursuant to subsections (a) fiscal year (other than the last Fiscal Quarter fiscal quarter of each Fiscal Year) fiscal year), an unaudited consolidated and consolidating balance sheet of the Servicer and its consolidated Subsidiaries as of the end of such fiscal quarter and including the prior comparable period (b) aboveif any), a compliance certificate (“Compliance Certificate”) in and the form attached hereto as Exhibit F signed unaudited consolidated and consolidating statements of income, and of cash flow, of the Servicer and its consolidated Subsidiaries for such fiscal quarter and for the period commencing at the end of the previous fiscal year and ending with the end of such fiscal quarter, certified by a Financial an Responsible Officer of the Borrower Servicer identifying such documents as being the documents described in this paragraph (ii) and stating that the information set forth therein fairly presents in all material respects the financial condition of the Servicer and its consolidated Subsidiaries as of and for the periods then ended, subject to year-end adjustments and confirming that the effect that to Servicer is in compliance with all financial covenants in the best of such officer’s knowledge and belief no Default has occurred during the period covered by such statements Transaction Documents (or, if any such Default has occurred during such periodthe Servicer is not in compliance, setting forth a description of such Default and specifying the action, if any, taken by the relevant Loan Party or its Subsidiary to remedy the same. Such certificate shall also set forth the calculations supporting such statements in respect of Section 8.22 (Financial Covenantsnature and status thereof); and
(j) on the Closing Date and with each of the financial statements delivered pursuant to subsections (a) (other than the last Fiscal Quarter of each Fiscal Year) and (b) above, a Borrowing Base Certificate showing the computation of the Borrowing Base Value, in reasonable detail as of the close of business on the last day of such Fiscal Quarter or Fiscal Year, as applicable, prepared by the Borrower and certified to by its chief financial officer or another officer of the Borrower reasonably acceptable to the Administrative Agent; and
(k) within a reasonable period of time following any such request therefor, from time to time, (i) such other information regarding the operations, business affairs and financial condition of any Loan Party or any Subsidiary of a Loan Party, or compliance with the terms of any Loan Document, as the Administrative Agent or any Lender may reasonably request or (ii) information and documentation reasonably requested by the Administrative Agent or any Lender for purposes of compliance with applicable “know your customer” requirements under the Patriot Act or other applicable Anti-Corruption Laws and the Beneficial Ownership Regulation. Notwithstanding the foregoing, the filing of the Borrower’s financial statements with the U.S. Securities and Exchange Commission on Form 10-K or Form 10-Q shall satisfy the requirements of Section 8.5(a)(i) and (b), respectively.
Appears in 1 contract
Sources: Loan Financing and Servicing Agreement (Crestline Lending Solutions, LLC)
Financial Reports. The Loan Parties shall, and shall cause each of their Subsidiaries to, maintain proper books of records and accounts reasonably necessary to prepare financial statements required to be delivered pursuant to this Section 8.5 in accordance with GAAP and shall furnish to the Administrative Agent and each Lender:
(ai) as soon as available, and in any event no later than sixty within ninety (6090) days after the last day of each Fiscal Quarter of the first three (3) fiscal quarters of each Fiscal Year fiscal year of the Borrower, commencing with the fiscal quarter ending September 30, 2026, a copy of (i) an unaudited financial report of the company-prepared consolidated balance sheets of Borrower and its consolidated Subsidiaries as of the last day end of such Fiscal Quarter and the consolidated statements of operations, changes in equity (deficit) and cash flows of Borrower for the Fiscal Quarter fiscal quarter and for the Fiscal Year-to-date period portion of the fiscal year then ended, containing balance sheets and statements of income, retained earnings, and cash flow, in reasonable detail and, if available, showing each case setting forth in comparative form the figures for the corresponding date and period of the preceding fiscal year, all in reasonable detail certified by a Responsible Officer of the previous Fiscal Year, Borrower to have been prepared by the applicable party in accordance with GAAP and to fairly and accurately present (subject to the absence of footnote disclosures footnotes and to year-end audit adjustments) the financial condition and certified to by a Financial Officer results of operations of the Borrower and (ii) operating statementsits consolidated Subsidiaries, rent roll as of the dates and accounts receivable aging for each Borrowing Base Propertythe periods indicated therein;
(bii) as soon as available, and in any event no later than within one hundred and twenty (120) days after the last day of each Fiscal Year fiscal year of the Borrower, beginning with the fiscal year ending December 31, 2026, a copy of the consolidated balance sheets annual audited financial report of the Borrower and its consolidated Subsidiaries for such fiscal year containing balance sheets and statements of income, retained earnings, and cash flow as of the last day end of the Fiscal Year then ended such fiscal year and the consolidated statements of statements of operations, comprehensive loss, shareholders’ equity (deficit) and cash flows of Borrower and its Subsidiaries for the Fiscal Year twelve (12)-month period then ended, and accompanying notes thereto, in each in reasonable detail and, if available, showing case setting forth in comparative form the figures for the previous Fiscal Yearpreceding fiscal year, accompanied all in the case reasonable detail and certified by Responsible Officer of the consolidated Borrower to have been prepared in accordance with GAAP and to fairly and accurately present (subject to the absence of footnotes) the financial statements condition and results of operations of the Borrower and accompanied by an unqualified a report and opinion (without a “going concern” or like qualification or exception as to the scope of BDO USA, P.C., such audit other than a “going concern” qualification resulting (i) solely from any Indebtedness maturing within the next twelve (12) months or another firm (ii) any prospective breach of independent public accountants any financial covenant contained in this Agreement) of recognized national standing, selected by ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ and reasonably satisfactory to the Administrative Agent;
(c) [reserved];
(d) promptly after the sending or filing thereof, copies of each financial statement, report, notice or proxy statement sent by any Loan Party LLP or any Subsidiary other independent registered public accounting firm of a Loan Party to its stockholders or other equity holders, and copies of each regular, periodic or special report, registration statement or prospectus filed by any Loan Party or any Subsidiary of a Loan Party with any securities exchange;
(e) [reserved];
(f) within ninety (90) days after the end of each Fiscal Year of the Borrower, a copy of the Borrower’s operating budget and projections for the following year including consolidated projections of revenues, expenses and balance sheet on a quarter-by-quarter basis, with such operating budget and projections in reasonable detail prepared by Borrower and in form reasonably satisfactory to the Administrative Agent (which shall include a summary of all significant assumptions made in preparing such projections);
(g) notice of any Change of Control;
(h) promptly after knowledge thereof shall have come to the attention of any Responsible Officer of any Loan Party, written notice of (i) any threatened or pending litigation or governmental or arbitration proceeding or labor controversy against any Loan Party or any Subsidiary of a Loan Party or any of their Property which, if adversely determined, could reasonably be expected to have a Material Adverse Effect, (ii) the occurrence of any Material Adverse Effect, (iii) the occurrence of any Default or (iv) any change in the information provided in the Beneficial Ownership Certification that would result in a change to the list of beneficial owners identified in of such certification;
(i) on the Closing Date and with each of the financial statements delivered pursuant to subsections (a) (other than the last Fiscal Quarter of each Fiscal Year) and (b) above, a compliance certificate (“Compliance Certificate”) in the form attached hereto as Exhibit F signed by a Financial Officer of the Borrower nationally recognized standing to the effect that to such consolidated financial statements present fairly in all material respects the best financial condition and results of such officer’s knowledge operations of the Borrower and belief no Default has occurred during the period covered by such statements or, if any such Default has occurred during such period, setting forth its Subsidiaries on a description of such Default and specifying the action, if any, taken by the relevant Loan Party or its Subsidiary to remedy the same. Such certificate shall also set forth the calculations supporting such statements consolidated basis in respect of Section 8.22 (Financial Covenants)accordance with GAAP consistently applied; and
(jiii) on concurrently with the Closing Date and with each delivery of the financial statements delivered Compliance Certificate pursuant to subsections (aSection 6.1(b) (other than the last Fiscal Quarter for each fiscal quarter of each Fiscal Year) and (b) abovefiscal year, a Borrowing Base Certificate showing report summarizing, as requested by Administrative Agent or any Lender, (A) the computation gross volume of sales and actual production during such fiscal quarter from all of the Borrowing Base Value, in reasonable detail as Oil and Gas Properties of the close of business on the last day of Loan Parties and current prices being received for such Fiscal Quarter or Fiscal Year, as applicable, prepared by the Borrower and certified to by its chief financial officer or another officer of the Borrower reasonably acceptable to the Administrative Agent; and
(k) within a reasonable period of time following any such request therefor, from time to timeproduction, (iB) detailed determinations of costs and such other information regarding the operations, business affairs and financial condition of any Loan Party or any Subsidiary of a Loan Party, or compliance with the terms of any Loan Document, as the may be reasonably requested by Administrative Agent or any Lender may reasonably request or and (iiiii) information lease operating expenses (separated by category of expense and documentation reasonably requested by the Administrative Agent or any Lender for purposes of compliance with applicable “know your customer” requirements under the Patriot Act or other applicable Anti-Corruption Laws and the Beneficial Ownership Regulation. Notwithstanding the foregoing, the filing of the Borrower’s financial statements with the U.S. Securities and Exchange Commission on Form 10-K or Form 10-Q shall satisfy the requirements of Section 8.5(a)(iTranche) and (b), respectivelySubject Asset Operating Expenses and Management and G&A Expenses paid or incurred during such fiscal quarter.
Appears in 1 contract
Sources: Loan and Security Agreement (PRESIDIO PRODUCTION Co)
Financial Reports. The Loan Parties shallParent will, and shall will cause each of their Subsidiaries Subsidiary to, maintain proper books a standard and modern system of records and accounts reasonably necessary to prepare financial statements required to be delivered pursuant to this Section 8.5 accounting in accordance with GAAP sound accounting practice and shall will furnish to the Lenders and their duly authorized representatives such information respecting the business and financial condition of the Parent and its Subsidiaries as any Lender (acting through the Administrative Agent Agent) may reasonably request; and each Lenderwithout any request, will furnish to the Lenders:
(a) as soon as available, and in any event no later than sixty (60) within 45 days after the last day close of each Fiscal Quarter of each Fiscal Year quarterly fiscal period of the BorrowerParent and the Company, a copy of (i) the company-prepared consolidated balance sheets sheets, statements of Borrower operations and statements of cash flow of the Parent and its Subsidiaries as and of the last day of Company and its Subsidiaries for such Fiscal Quarter and the consolidated statements of operations, changes in equity (deficit) and cash flows of Borrower for the Fiscal Quarter and for the Fiscal Year-to-date period then ended, in reasonable detail and, if available, showing in comparative form the figures for the corresponding date and period in the previous Fiscal Yearperiod, prepared by the applicable party on a consolidated basis in accordance with GAAP GAAP, and the notes thereto, all certified (subject to the absence of footnote disclosures and year-year end audit adjustmentsadjustments which are not expected to be material) by the chief financial officers of the Company and certified to by a Financial Officer of Borrower and (ii) operating statements, rent roll and accounts receivable aging for each Borrowing Base Propertythe Parent;
(b) as soon as available, and in any event no later than one hundred twenty (120) within 90 days after the last day close of each Fiscal Year fiscal year of the BorrowerCompany and the Parent, a copy of the audit report for such year and accompanying financial statements, including balance sheets, statements of operations and statements of cash flow on a consolidated balance sheets of Borrower basis for the Parent and its Subsidiaries as of the last day of the Fiscal Year then ended and the consolidated statements of statements of operations, comprehensive loss, shareholders’ equity (deficit) and cash flows of Borrower Company and its Subsidiaries for the Fiscal Year then endedin accordance with GAAP, and accompanying the notes thereto, each in reasonable detail and, if available, showing in comparative form the figures for the previous Fiscal Year, accompanied in the case of the consolidated financial statements certified without qualification by an unqualified opinion of BDO USA, P.C., or another firm of independent public accountants of recognized national standing, standing selected by ▇▇▇▇▇▇▇▇ the Parent and reasonably the Company and satisfactory to the Administrative AgentRequired Lenders (the "Auditors");
(c) [reserved];
(d) promptly after within the sending or filing thereof, copies of each financial statement, report, notice or proxy statement sent by any Loan Party or any Subsidiary of a Loan Party to its stockholders or other equity holders, and copies of each regular, periodic or special report, registration statement or prospectus filed by any Loan Party or any Subsidiary of a Loan Party with any securities exchange;
(e) [reserved];
(f) within ninety (90) days after the end of each Fiscal Year of the Borrower, a copy of the Borrower’s operating budget and projections for the following year including consolidated projections of revenues, expenses and balance sheet on a quarter-by-quarter basis, with such operating budget and projections in reasonable detail prepared by Borrower and in form reasonably satisfactory to the Administrative Agent (which shall include a summary of all significant assumptions made in preparing such projections);
(g) notice of any Change of Control;
(h) promptly after knowledge thereof shall have come to the attention of any Responsible Officer of any Loan Party, written notice of (i) any threatened or pending litigation or governmental or arbitration proceeding or labor controversy against any Loan Party or any Subsidiary of a Loan Party or any of their Property which, if adversely determined, could reasonably be expected to have a Material Adverse Effect, (ii) the occurrence of any Material Adverse Effect, (iii) the occurrence of any Default or (iv) any change in the information periods provided in the Beneficial Ownership Certification that would result in a change to the list of beneficial owners identified in of such certification;
(i) on the Closing Date and with each of the financial statements delivered pursuant to subsections paragraphs (a) (other than the last Fiscal Quarter of each Fiscal Year) and (b) above, a compliance certificate of an authorized financial officer of the Company stating that such officer has reviewed the provisions of this Agreement and setting forth: (“Compliance Certificate”aa) the information and computations (in sufficient detail) required in order to compute the Leverage Ratio and (in the form attached hereto as Exhibit F signed by a Financial Officer case of the Borrower year end statements only) Excess Cash Flow and to establish whether the effect that Company was in compliance with the requirements of Sections 8.8, 8.9, 8.10, 8.11, 8.12, 8.13, 8.14, 8.15, 8.17 8.18 and 8.20 hereof at the end of the period covered by the financial statements then being furnished, and (ab) to the best of such officer’s knowledge and belief no Default has occurred 's knowledge, whether there exists on the date of the certificate or existed at any time during the period covered by such statements orfinancial statement any Default or Event of Default and, if any such Default has occurred condition or event exists on the date of the certificate or existed during such period, setting forth a description of such Default and specifying the actionnature and period of existence thereof and the action the Company is taking, if any, has taken by the relevant Loan Party or its Subsidiary proposes to remedy the same. Such certificate shall also set forth the calculations supporting such statements in take with respect of Section 8.22 (Financial Covenants)thereto; and
(jd) on within the Closing Date and with each of the financial statements delivered pursuant to subsections (a) (other than the last Fiscal Quarter of each Fiscal Year) and period provided in paragraph (b) above, a Borrowing Base Certificate showing business plan for the computation of Parent and its Subsidiaries for the Borrowing Base Valueensuing fiscal year and projections for the Parent and its Subsidiaries for the ensuing five fiscal years, all in reasonable detail as of the close of business on the last day of such Fiscal Quarter or Fiscal Year, as applicable, prepared by the Borrower and certified to by its chief financial officer or another officer of the Borrower reasonably acceptable to the Administrative Agent; and
(k) within a reasonable period of time following any such request therefor. The Parent will, from time to timeand will cause each Subsidiary to, (i) such other information regarding the operations, business affairs and financial condition permit representatives of any Loan Party or any Subsidiary of a Loan PartyLenders, or compliance with upon reasonable notice and during normal business hours, to examine and make extracts from the terms of any Loan Document, as the Administrative Agent or any Lender may reasonably request or (ii) information books and documentation reasonably requested by the Administrative Agent or any Lender for purposes of compliance with applicable “know your customer” requirements under the Patriot Act or other applicable Anti-Corruption Laws and the Beneficial Ownership Regulation. Notwithstanding the foregoing, the filing records of the Borrower’s financial statements with the U.S. Securities Parent and Exchange Commission on Form 10-K or Form 10-Q its Subsidiaries and to examine their assets and access thereto shall satisfy the requirements of Section 8.5(a)(i) and (b), respectivelybe permitted for such purpose.
Appears in 1 contract
Financial Reports. The Loan Parties shall(a) So long as any Notes remain outstanding:
(1) the Issuer shall provide the Trustee and Noteholders with annual consolidated financial statements audited by the Issuer’s independent public accountants within 90 days after the end of the Issuer’s fiscal year (120 days for the first fiscal year ended after the Issue Date), and shall cause unaudited quarterly consolidated financial statements (including a balance sheet, income statement and cash flow statement for the fiscal quarter or quarters then ended and the corresponding fiscal quarter or quarters from the prior year) within 60 days of the end of each of their Subsidiaries to, maintain proper books the first three fiscal quarters of records each fiscal year (90 days for the first two fiscal quarters ended after the Issue Date). Such annual and accounts reasonably necessary to prepare quarterly financial statements will be prepared in accordance with GAAP and be accompanied by a management’s discussion and analysis of the results of operations and liquidity and capital resources of the Issuer and its Restricted Subsidiaries for the periods presented in a level of detail comparable to the management’s discussion and analysis of financial condition and results of operations of the Issuer and its Restricted Subsidiaries contained in the Offering Memorandum; and
(2) the Issuer shall disclose in writing to the Trustee and noteholders the occurrence of any event concerning the Issuer or its Restricted Subsidiaries that would be required to be reported on Form 8-K if the Issuer were required to file such reports pursuant to Items 1.01, 1.02 (it being understood that the Issuer and its Restricted Subsidiaries shall only be required to disclose events under Items 1.01 and 1.02 of Form 8-K to the extent that such events relate to the entry into, or termination or amendment of, any material definitive agreement in respect of a financing other than any Funding Indebtedness including Securitization Indebtedness, Warehousing Indebtedness or MSR Indebtedness, or acquisition or disposition of a business, and that the exhibits to such form need not be filed and that any filing relating to Non-Funding Indebtedness or other Debt can exclude any pricing information), 1.03, 2.01, 4.01, 4.02, and 5.01, in each case, within 10 days of the occurrence of such event. Notwithstanding the foregoing, with respect to the information provided in clause (a)(1) and (a)(2), (A) such information shall not be required to include (1) as an exhibit, or to include a summary of the terms of, any employment or compensatory arrangement, agreement, plan or understanding between the Issuer and any director, manager or officer, of the Issuer, (2) any information regarding the occurrence of any of the events set forth in clause (a)(2) if the Issuer determines in its good faith judgment that the event that would otherwise be required to be disclosed is not material to the holders of the notes or the business, assets, operations, financial positions or prospects of the Issuer and its Restricted Subsidiaries taken as a whole, (B) no such report shall be required to comply with the Exchange Act, (C) no such report shall be required to comply with Regulation S-K or Regulation S-X including, without limitation, Rules 3-05, 3-09, 3-10, 3-16 or Article 11 thereof, (D) no such report shall be required to provide any information that is not otherwise similar to information currently included in the Offering Memorandum, (E) in no event shall such reports be required to include as an exhibit copies of any agreements, financial statements or other items that would be required to be filed as exhibits under the SEC rules; (F) trade secrets and other information that could cause competitive harm to the Issuer and its Restricted Subsidiaries may be excluded from any disclosures; (G) such financial statements or information shall not be required to contain any “segment reporting”; (H) the Issuer may elect to change its fiscal year end, (I) no acquired business financial statements or pro forma financial statements shall be required to be disclosed; and (J) the Issuer may include any information of the information required above in the quarterly report for the quarter in which the event occurred as permitted by the “safe-harbor” provisions of Form 8-K. The reports required pursuant to clause (a)(1) and (a)(2) above will not be required to reflect any accounting standards or guidance, including those issued by the Financial Standards Accounting Board, applicable only to “public business entities.” The financial statements and related discussion referred to in clause (1) and the current reports referred to in clause (2) shall be made available to Noteholders and prospective investors in the Notes by posting on a password-protected or otherwise secured confidential website maintained by the Issuer. Disclosure of any current reports shall be accompanied by a notice of posting released on Bloomberg or a similar news service reasonably accessible to investors in securities such as the Notes. Notwithstanding the foregoing, the Issuer will be deemed to have furnished such reports referred to above to the Trustee and the holders of the Notes if the Issuer has filed such reports with the SEC via the E▇▇▇▇ filing system (or any successor system) and such reports are publicly available; provided, however, that the Trustee shall have no responsibility whatsoever to determine if such filing has occurred. In addition, the Issuer will make the information and reports available to prospective investors upon request (which prospective investors shall be limited to “qualified institutional buyers” within the meaning of Rule 144A of the Securities Act or non-U.S. persons (as defined in Regulation S under the Securities Act) that certify their status as such to the reasonable satisfaction of the Issuer).
(b) The Issuer will schedule a conference call to be held not more than 15 Business Days following the release of each report containing the financial information referred to in clause (a)(1) of this Section 4.16, at which the Issuer will make available its senior management to discuss the information contained in such report on such conference call; provided that such conference calls shall be permitted to be held jointly with conference calls the Issuer holds for holders of their other Indebtedness. The Issuer will notify Holders of Notes about such calls and provide them and prospective investors in the Notes with call-in information concurrently with and in the same manner as each delivery of financial statements pursuant to the preceding paragraph (a). Notwithstanding the foregoing, if the Issuer (or a Parent Entity, to the extent permitted by this covenant) holds a quarterly conference call for its equity holders within 15 Business Days of filing a report on E▇▇▇▇ (or any successor thereto), the Issuer or such Parent Entity, as applicable, will no longer be required to hold a separate conference call in respect of such report for the Holders.
(c) For so long as any of the Notes remain outstanding and constitute “restricted securities” under Rule 144, to the extent neither the Issuer nor any Parent Entity is subject to Section 13(a) or 15(d) under the Exchange Act, the Issuer will furnish to the Holders of the Notes and prospective investors, upon their request, the information required to be delivered pursuant to this Section 8.5 in accordance with GAAP Rule 144A(d)(4) under the Securities Act.
(d) The disclosure of such reports, information and shall furnish documents to the Administrative Agent Trustee is for informational purposes only and each Lender:the Trustee’s receipt of such shall not constitute constructive notice of any information contained therein or determinable from information contained therein, including the Issuer’s and the Guarantors’ compliance with any of its covenants under this Indenture (as to which the Trustee is entitled to rely exclusively on Officers’ Certificates). The Trustee shall have no obligation whatsoever to determine whether or not such information, documents or reports have been so made available to the Trustee or the Noteholders.
(ae) If, at any time, the Issuer has designated any of its Subsidiaries as soon as availableUnrestricted Subsidiaries, then either on the face of, or in the footnotes to, the financial statements or in the “Management’s Discussion and in any event no later than sixty (60) days after Analysis of Financial Condition and Results of Operations,” or other comparable section, the last day of each Fiscal Quarter of each Fiscal Year Issuer shall provide an analysis and discussion of the Borrowermaterial differences, a copy if any, with respect to the financial condition and results of (i) operations of the company-prepared consolidated balance sheets of Borrower Issuer and its Restricted Subsidiaries as compared to the Issuer and its Subsidiaries (including such Unrestricted Subsidiaries). In addition, the Issuer may satisfy its reporting obligations described in this Section with respect to financial information relating to the Issuer by furnishing financial information relating to any Parent Entity; provided that if and so long as such Parent Entity has material assets (other than Cash, Cash Equivalents and Equity Interests of the last day of such Fiscal Quarter and Issuer or any Parent Entity), the consolidated statements of operations, changes in equity same is accompanied by consolidating information (deficitwhich need not be audited) and cash flows of Borrower for the Fiscal Quarter and for the Fiscal Year-to-date period then ended, that explains in reasonable detail andthe differences between the information relating to such Parent Entity, on the one hand, and the information relating to the Issuer and its Restricted Subsidiaries on a stand-alone basis, on the other hand and would otherwise comply with the requirements of Rule 3-10 of Regulation S-X promulgated by the SEC (or any successor provision). The Issuer will be deemed to have furnished the reports referred to in this Section if available, showing in comparative form the figures for Issuer or any Parent Entity has filed the corresponding date and period in the previous Fiscal Year, prepared by the applicable party in accordance with GAAP (subject reports containing such information relating to the absence of footnote disclosures and year-end audit adjustments) and certified to by a Financial Officer of Borrower and (ii) operating statements, rent roll and accounts receivable aging for each Borrowing Base Property;
(b) as soon as available, and in any event no later than one hundred twenty (120) days after Issuer or such Parent Entity with the last day of each Fiscal Year of SEC via the Borrower, a copy of the consolidated balance sheets of Borrower and its Subsidiaries as of the last day of the Fiscal Year then ended and the consolidated statements of statements of operations, comprehensive loss, shareholders’ equity (deficit) and cash flows of Borrower and its Subsidiaries for the Fiscal Year then ended, and accompanying notes thereto, each in reasonable detail and, if available, showing in comparative form the figures for the previous Fiscal Year, accompanied in the case of the consolidated financial statements by an unqualified opinion of BDO USA, P.C., or another firm of independent public accountants of recognized national standing, selected by ▇▇▇▇E▇▇▇▇ and reasonably satisfactory filing system (or any successor system). Any subsequent restatement of financial statements shall not have any retroactive effect for purposes of calculations previously made pursuant to the Administrative Agent;
covenants contained in this Indenture. The subsequent posting or making available of any materials or conference call required by this covenant shall be deemed automatically to cure any Default resulting from the failure to post or make available such materials or conference call within the required timeframe. Any and all Defaults or Events of Default arising from a failure to furnish or file in a timely manner a report or other information required by this Section 4.16 shall be deemed cured (cand the Issuer shall be deemed to be in compliance with this Section 4.16) [reserved];
(d) promptly after the sending upon furnishing or filing thereof, copies of each financial statement, report, notice or proxy statement sent by any Loan Party or any Subsidiary of a Loan Party to its stockholders such report or other equity holders, and copies of each regular, periodic information as contemplated by this covenant (but without regard to the date on which such report or special report, registration statement other information is so furnished or prospectus filed by any Loan Party or any Subsidiary of a Loan Party with any securities exchange;
(e) [reserved];
(f) within ninety (90) days after filed); provided that such cure shall not otherwise affect the end of each Fiscal Year rights of the Borrower, a copy Holders under Section 6.01 if payment of the Borrower’s operating budget and projections for the following year including consolidated projections of revenues, expenses and balance sheet on a quarter-by-quarter basis, with such operating budget and projections Notes has been accelerated in reasonable detail prepared by Borrower and in form reasonably satisfactory to the Administrative Agent (which shall include a summary of all significant assumptions made in preparing such projections);
(g) notice of any Change of Control;
(h) promptly after knowledge thereof shall have come to the attention of any Responsible Officer of any Loan Party, written notice of (i) any threatened or pending litigation or governmental or arbitration proceeding or labor controversy against any Loan Party or any Subsidiary of a Loan Party or any of their Property which, if adversely determined, could reasonably be expected to have a Material Adverse Effect, (ii) the occurrence of any Material Adverse Effect, (iii) the occurrence of any Default or (iv) any change in the information provided in the Beneficial Ownership Certification that would result in a change to the list of beneficial owners identified in of such certification;
(i) on the Closing Date and with each of the financial statements delivered pursuant to subsections (a) (other than the last Fiscal Quarter of each Fiscal Year) and (b) above, a compliance certificate (“Compliance Certificate”) in the form attached hereto as Exhibit F signed by a Financial Officer of the Borrower to the effect that to the best of such officer’s knowledge and belief no Default has occurred during the period covered by such statements or, if any such Default has occurred during such period, setting forth a description of such Default and specifying the action, if any, taken by the relevant Loan Party or its Subsidiary to remedy the same. Such certificate shall also set forth the calculations supporting such statements in respect of Section 8.22 (Financial Covenants); and
(j) on the Closing Date and with each of the financial statements delivered pursuant to subsections (a) (other than the last Fiscal Quarter of each Fiscal Year) and (b) above, a Borrowing Base Certificate showing the computation of the Borrowing Base Value, in reasonable detail as of the close of business on the last day of such Fiscal Quarter or Fiscal Year, as applicable, prepared by the Borrower and certified to by its chief financial officer or another officer of the Borrower reasonably acceptable to the Administrative Agent; and
(k) within a reasonable period of time following any such request therefor, from time to time, (i) such other information regarding the operations, business affairs and financial condition of any Loan Party or any Subsidiary of a Loan Party, or compliance accordance with the terms of any Loan Document, as the Administrative Agent this Indenture and such acceleration has not been rescinded or any Lender may reasonably request or (ii) information and documentation reasonably requested by the Administrative Agent or any Lender for purposes of compliance with applicable “know your customer” requirements under the Patriot Act or other applicable Anti-Corruption Laws and the Beneficial Ownership Regulationcancelled prior to such cure. Notwithstanding the foregoing, if at any time the filing Issuer or any Parent Entity has made a good faith determination to file a registration statement with the SEC with respect to such entity’s Capital Stock, the Issuer will not be required to disclose any information or take any actions that, in the good faith view of the BorrowerIssuer, would violate applicable securities laws or the SEC’s financial statements with the U.S. Securities and Exchange Commission on Form 10-K or Form 10-Q shall satisfy the requirements of Section 8.5(a)(i) and (b), respectively“gun jumping” rules.
Appears in 1 contract
Sources: Indenture (Home Point Capital Inc.)
Financial Reports. The Loan Parties (A) Holdings and the Borrower shall, and shall cause each of their Subsidiaries Restricted Subsidiary to, maintain proper books a standard system of records accounting to permit the preparation of the quarterly and accounts reasonably necessary to prepare annual financial statements required to be delivered pursuant to this Section 8.5 in accordance with GAAP GAAP, and 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 8.22, a statement of reconciliation conforming such financial statements to GAAP, and shall furnish to the Administrative Agent Agent, each Lender and each Lender:of their duly authorized representatives such information respecting the business and financial condition of the Consolidated Group Companies as the Administrative Agent or such Lender may reasonably request and, without any request, shall furnish to the Administrative Agent (for further distribution to the Lenders):
(a) as soon as available, and in any event no Within the later than sixty of (60i) forty-five (45) days after the last day of each Fiscal Quarter of the first three fiscal quarters of each Fiscal Year of the Borrower, commencing with the second fiscal quarter of Fiscal Year 2017 and (ii) the date on which Parent is required to file (or, if earlier, files) a Form 10-Q under the Exchange Act, a copy of (i) the company-prepared unaudited consolidated balance sheets sheet of Borrower and its Subsidiaries the Consolidated Group Companies as of the last day of such Fiscal Quarter fiscal quarter and the unaudited consolidated statements of operations, changes in equity (deficit) income and cash flows of Borrower the Consolidated Group Companies for the Fiscal Quarter fiscal quarter and for the Fiscal Year-to-Year to date period then ended, each in reasonable detail and, if available, showing in comparative form the figures for the corresponding date and period in the previous Fiscal YearYear and showing in comparative form year to date against budget, prepared by the applicable party Borrower in accordance with GAAP (subject to the absence of footnote disclosures and year-year end audit adjustments) and certified to on behalf of the Borrower by a its Chief Financial Officer or another officer of the Borrower acceptable to the Administrative Agent that such financial statements have been prepared in accordance with GAAP and (ii) operating statementspresent fairly the consolidated financial condition of the Consolidated Group Companies in all material respects, rent roll together with a management discussion and accounts receivable aging for each Borrowing Base Property;analysis; provided, however, that the requirement to provide comparisons to the previous Fiscal Year and to budget shall not apply to the statements of cash flows.
(b) as soon as available, and in any event no Within the later than of (i) one hundred twenty five (120105) days after the last day of each Fiscal Year of the BorrowerBorrower and (ii) the date on which Parent is required to file (or, if earlier, files) a Form 10-K under the Exchange Act, a copy of the audited consolidated balance sheets sheet of Borrower and its Subsidiaries the Consolidated Group Companies as of the last day of the Fiscal Year then ended and the audited consolidated statements of statements of operationsincome, comprehensive lossretained earnings, shareholders’ equity (deficit) and cash flows of Borrower and its Subsidiaries the Consolidated Group Companies for the Fiscal Year then ended, and accompanying notes thereto, each in reasonable detail and, if available, showing in comparative form the figures for the previous Fiscal YearYear (except with respect to the statements of cash flows) commencing with Fiscal Year 2017, together with a management discussion and analysis accompanied in the case of the consolidated financial statements by an unqualified opinion of BDO USA, P.C., KPMG llp or another firm of independent public accountants of recognized national standing, standing selected by ▇▇▇▇▇▇▇▇ the Borrower, without going concern or qualification arising out of the scope of the audit and reasonably satisfactory to the Administrative Agent;effect that the consolidated financial statements have been prepared in accordance with GAAP and present fairly in all material respects in accordance with GAAP the consolidated financial condition of the Consolidated Group Companies as of the close of such Fiscal Year and the results of their operations and cash flows for the Fiscal Year then ended and that an examination of such accounts in connection with such financial statements has been made in accordance with generally accepted auditing standards and, accordingly, such examination included such tests of the accounting records and such other auditing procedures as were considered necessary in the circumstances; provided that it shall not be a violation of this clause (b) if the audit and opinion accompanying the financial statements for any Fiscal Year is subject to a “going concern” or like qualification solely as a result of the Revolving Credit Termination Date or final maturity date of any Term Loan being scheduled to occur within twelve months from the date of such audit and opinion or breach or anticipated breach of the financial covenants set forth in Section 8.22.
(c) [reserved];Promptly after receipt thereof, the final management letters delivered to the Borrower by its independent public accountants.
(d) promptly after the sending or filing thereof, copies of each financial statement, report, notice or proxy statement sent by any Loan Party or any Subsidiary of a Loan Party to its stockholders or other equity holders, and copies of each regular, periodic or special report, registration statement or prospectus filed by any Loan Party or any Subsidiary of a Loan Party with any securities exchange;
Within seventy-five (e) [reserved];
(f) within ninety (9075) days after following the end of each Fiscal Year of the Borrower, a copy of the Borrower’s operating budget and projections consolidated business plan for the following year including Fiscal Year, such business plan to show Borrower’s projected consolidated projections of revenues, expenses and balance sheet on a quarter-by-quarter basis, with such operating budget and projections business plan to be in reasonable detail prepared by Borrower and in a reasonable and customary form reasonably satisfactory to the Administrative Agent (which shall include a summary of all significant assumptions made in preparing such projectionsbusiness plan);
; provided that the foregoing may be prepared with respect to Parent on a consolidated basis if, during the entire period of such following Fiscal Year, Parent shall not conduct or engage in any operations or business or incur any indebtedness other than (gi) notice those incidental to its ownership of the Equity Interests of Holdings, (ii) the maintenance of its legal existence and good standing and complying with requirements of law, (iii) any public offering or other issuance of its Equity Interests to the extent not triggering a Change of Control;, (iv) participating in tax, accounting and other administrative matters as a member of the consolidated, combined, unitary or similar group that includes Parent, Holdings and the Borrower, (v) holding any cash or property received in connection with Restricted Payments made by Holdings or contributions to its capital or in exchange for the sale or issuance of Equity Interests, (vi) providing indemnification to directors, officers, employees, members of management and consultants, (vii) preparing reports to governmental authorities and to its shareholders; (viii) engaging in activities typical for a holding company subject to Section 13 or 15(d) of the Exchange Act and (ix) any activities incidental to any of the foregoing.
(he) promptly Promptly after knowledge thereof shall have come to the attention of any Responsible Officer Authorized Representative of any Loan Partythe Borrower, written notice of (i) any threatened or pending litigation or governmental or arbitration proceeding or labor controversy against any Loan Party or any Subsidiary of a Loan Party Restricted Group Company or any of their Property which, if adversely determined, could which would reasonably be expected to have a Material Adverse Effect, (ii) the occurrence of any Material Adverse EffectDefault or Event of Default hereunder, (iii) the occurrence of any Default event that has resulted in, or could reasonably be expected to result in, a Material Adverse Effect; or (iv) the occurrence of any change in the information provided in the Beneficial Ownership Certification that event for which notice would result in a change to the list of beneficial owners identified in of such certification;be required under Section 8.13 or Section 8.14(c).
(if) on the Closing Date and with With each of the financial statements delivered furnished to the Lenders pursuant to subsections paragraphs (a) (other than the last Fiscal Quarter of each Fiscal Year) and (b) above, a compliance written certificate (“Compliance Certificate”) in substantially the form attached hereto as Exhibit F E signed on behalf of the Borrower by a the Chief Financial Officer of the Borrower or another officer of the Borrower reasonably acceptable to the Administrative Agent (in each case, solely in his or her capacity as an officer of the Borrower and not in his or her individual capacity) to the effect that to the best of such officer’s knowledge and belief knowledge, as at the date of such certificate, no Default has occurred during the period covered by such statements or Event of Default exists or, if any such Default has occurred during such periodor Event of Default exists, setting forth a description of such Default or Event of Default and specifying the action, if any, taken by by, the relevant Loan Party Borrower or its any Restricted Subsidiary to remedy the same. Such same and to the extent any Unrestricted Subsidiary then exists, setting forth the names of all such Unrestricted Subsidiaries and to the extent applicable, such certificate shall also set forth the calculations supporting such statements in respect of Section 8.22 (Financial Covenants); andhereof.
(jg) on At the Closing Date and time such certificate is required to be delivered, the Borrower shall promptly deliver to the Administrative Agent, at the Administrative Agent’s office, information regarding any change in Total Leverage Ratio that would change the then existing Applicable Margin.
(h) Simultaneously with the delivery of each set of the consolidated financial statements delivered pursuant referred to subsections (a) (other than the last Fiscal Quarter of each Fiscal Yearin Section 8.5(a) and (b) above, a Borrowing Base Certificate showing the computation of related consolidating financial statements reflecting the Borrowing Base Value, in reasonable detail adjustments necessary (as of the close of business on the last day of such Fiscal Quarter or Fiscal Year, as applicable, prepared determined by the Borrower and certified in good faith) to by its chief eliminate the accounts of Unrestricted Subsidiaries (if any) (which may be in footnote form only) from such consolidated financial officer or another officer of the Borrower reasonably acceptable to the Administrative Agent; andstatements.
(k) within a reasonable period of time following any such request therefor, from time to time, (i) such Promptly after the request by any Lender, all documentation and other information regarding the operations, business affairs and financial condition of any Loan Party or any Subsidiary of a Loan Party, or compliance that such Lender reasonably requests in order to comply with the terms of any Loan Document, as the Administrative Agent or any Lender may reasonably request or (ii) information and documentation reasonably requested by the Administrative Agent or any Lender for purposes of compliance with its ongoing obligations under applicable “know your customer” requirements under and anti-money laundering rules and regulations, including the Patriot Act or other applicable Anti-Corruption Laws and the Beneficial Ownership Regulation. PATRIOT Act.
(B) Notwithstanding the foregoing, the filing obligations in Sections 8.5(A)(a) and (b) above may be satisfied with respect to any financial statements of the Borrower by furnishing (A) the applicable financial statements of Holdings (or any direct or indirect parent of Holdings) or (B) the Borrower’s financial statements with the U.S. Securities and Exchange Commission on or Holdings’ (or any direct or indirect parent thereof), as applicable, Form 10-K or Form 10-Q shall satisfy Q, as applicable, filed with the requirements of Section 8.5(a)(i) and SEC, in each case, within the time periods specified in such paragraphs; provided that, with respect to paragraph (b), respectivelyto the extent such financial statements relate to Holdings (or a parent thereof), such financial statements shall be accompanied by (i) information that summarizes in detail reasonably satisfactory to the Administrative Agent the differences between the information relating to Holdings (or such parent thereof), on the one hand, and the information relating to Borrower and its Restricted Subsidiaries, on the other hand and (ii) if reasonably requested by the Administrative Agent, unaudited consolidated financial statements of Borrower and its Restricted Subsidiaries. Documents required to be delivered pursuant to this Section 8.5 may be delivered electronically and if so delivered, shall be deemed to have been delivered on the date (i) on which the Borrower posts such documents, or provides a link thereto on the Borrower’s website, (ii) on which such documents are posted on the Borrower’s behalf on IntraLinks/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) and with respect to material non-public information, solely to the extent any Lender chooses to access the same or (iii) on which executed certificates or other documents are faxed to the Administrative Agent (or electronically mailed to an address provided by the Administrative Agent); provided that (a) upon written request by the Administrative Agent, the Borrower shall deliver paper copies of such documents to the Administrative Agent for further distribution to each Lender until a written request to cease delivering paper copies is given by the Administrative Agent and (b) the Borrower shall notify (which may be by facsimile or electronic mail) the Administrative Agent of the posting of any such documents and provide to the Administrative Agent by electronic mail electronic versions (i.e., soft copies) of such documents. Documents required to be delivered pursuant to Section 8.5(a), (b) or (g) (to the extent any such documents are included in materials otherwise filed with the SEC) may be delivered electronically and if so delivered, shall be deemed to have been delivered on the date (i) on which the Borrower posts such documents, or provides a link thereto on the Borrower’s website on the Internet at the website address listed on Schedule 13.8; or (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 or whether sponsored by the Administrative Agent); provided that: (i) the Borrower shall deliver paper copies of such documents to the Administrative Agent 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 and (ii) the Borrower shall notify the Administrative Agent (by facsimile 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. The Borrower hereby acknowledges that (a) the Administrative Agent and/or the Arranger may, but shall not be obligated to, make available to the Lenders and the L/C Issuer materials and/or information provided by or on behalf of the Borrower hereunder (collectively, “Borrower Materials”) by posting the Borrower Materials on 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 Persons’ securities. The Borrower hereby agrees that so long as the Borrower is the issuer of any outstanding debt or equity securities that are registered or issued pursuant to a private offering or is actively contemplating issuing any such securities (w) all Borrower Materials that are to be made available to Public Lenders shall be clearly and conspicuously marked “PUBLIC” which, at a minimum, shall mean that the word “PUBLIC” shall appear prominently on the first page thereof; (x) by marking Borrower Materials “PUBLIC,” the Borrower shall be deemed to have authorized the Administrative Agent, the Arrangers, the L/C Issuer and the Lenders to treat such Borrower Materials as not containing any material non-public information with respect to the Borrower or its securities for purposes of United States Federal and state securities laws (provided that, to the extent such Borrower Materials constitute Information, they shall be treated as set forth in Section 13.25); (y) all Borrower Materials marked “PUBLIC” are permitted to be made available through a portion of the Platform designated “Public Side Information;” and (z) the Administrative Agent and the Arranger shall be entitled to treat any Borrower Materials that are not marked “PUBLIC” as being suitable only for posting on a portion of the Platform not designated “Public Side Information.” Notwithstanding the foregoing, the Borrower shall be under no obligation to m▇▇▇ any Borrower Materials “PUBLIC.”
Appears in 1 contract
Sources: Credit Agreement (Dave & Buster's Entertainment, Inc.)
Financial Reports. The Loan Parties shallServicer shall furnish, and shall or cause each of their Subsidiaries to, maintain proper books of records and accounts reasonably necessary to prepare financial statements required to be delivered pursuant to this Section 8.5 in accordance with GAAP and shall furnish furnished, to the Administrative Agent and each LenderFacility Agent:
(ai) as soon as available, available and in any event no later than sixty (60) days after the last day of each Fiscal Quarter of each Fiscal Year of the Borrower, a copy of (i) the company-prepared consolidated balance sheets of Borrower and its Subsidiaries as of the last day of such Fiscal Quarter and the consolidated statements of operations, changes in equity (deficit) and cash flows of Borrower for the Fiscal Quarter and for the Fiscal Year-to-date period then ended, in reasonable detail and, if available, showing in comparative form the figures for the corresponding date and period in the previous Fiscal Year, prepared by the applicable party in accordance with GAAP (subject to the absence of footnote disclosures and year-end audit adjustments) and certified to by a Financial Officer of Borrower and (ii) operating statements, rent roll and accounts receivable aging for each Borrowing Base Property;
(b) as soon as available, and in any event no later than one hundred twenty (120) days after the last day of each Fiscal Year of the Borrower, a copy of the consolidated balance sheets of Borrower and its Subsidiaries as of the last day of the Fiscal Year then ended and the consolidated statements of statements of operations, comprehensive loss, shareholders’ equity (deficit) and cash flows of Borrower and its Subsidiaries for the Fiscal Year then ended, and accompanying notes thereto, each in reasonable detail and, if available, showing in comparative form the figures for the previous Fiscal Year, accompanied in the case of the consolidated financial statements by an unqualified opinion of BDO USA, P.C., or another firm of independent public accountants of recognized national standing, selected by ▇▇▇▇▇▇▇▇ and reasonably satisfactory to the Administrative Agent;
(c) [reserved];
(d) promptly after the sending or filing thereof, copies of each financial statement, report, notice or proxy statement sent by any Loan Party or any Subsidiary of a Loan Party to its stockholders or other equity holders, and copies of each regular, periodic or special report, registration statement or prospectus filed by any Loan Party or any Subsidiary of a Loan Party with any securities exchange;
(e) [reserved];
(f) within ninety (90) 120 days after the end of each Fiscal Year of the Borrowerfiscal year, a copy of the Borrower’s operating budget and projections audited consolidated financial statements for the following prior year for the Servicer and its consolidated Subsidiaries, including consolidated projections the prior comparable period (if any) from the preceding fiscal year and certified by Independent Accountants (the report of revenues, expenses and balance sheet on a quarter-by-quarter basis, with such operating budget and projections in reasonable detail prepared by Borrower and in form reasonably satisfactory to the Administrative Agent (which shall include a summary of all significant assumptions made in preparing such projectionsbe unqualified);
(g) notice of any Change of Control;
(h) promptly after knowledge thereof shall have come to , together with consolidating financial statements for the attention of any Servicer certified by an Responsible Officer of any Loan Partythe Servicer with appropriate knowledge stating that the information set forth therein fairly presents the financial condition of the Servicer and its consolidated Subsidiaries as of and for such fiscal year, written notice with all such financial statements being prepared in accordance with GAAP applied consistently throughout the period involved (except for changes in the application of GAAP approved by such accountants in accordance with GAAP and disclosed therein) (iit being agreed that financial statements included in the Servicer’s annual reports on Form 10-K for such fiscal year, as filed with the SEC, shall satisfy this subsection 7.5(k)(i) any threatened or pending litigation or governmental or arbitration proceeding or labor controversy against any Loan Party or any Subsidiary of a Loan Party or any of their Property which, if adversely determined, could reasonably be expected with respect to have a Material Adverse Effect, such fiscal year so long as the Servicer delivers such financial statements to the Facility Agent within the time period required above); and
(ii) as soon as available and in any event within 45 days after the occurrence end of any Material Adverse Effect, (iii) the occurrence each fiscal quarter of any Default or (iv) any change in the information provided in the Beneficial Ownership Certification that would result in a change to the list of beneficial owners identified in of such certification;
(i) on the Closing Date and with each of the financial statements delivered pursuant to subsections (a) fiscal year (other than the last Fiscal Quarter fiscal quarter of each Fiscal Year) fiscal year), an unaudited consolidated and consolidating balance sheet of the Servicer and its consolidated Subsidiaries as of the end of such fiscal quarter and including the prior comparable period (b) aboveif any), a compliance certificate (“Compliance Certificate”) in and the form attached hereto as Exhibit F signed unaudited consolidated and consolidating statements of income, and of cash flow, of the Servicer and its consolidated Subsidiaries for such fiscal quarter and for the period commencing at the end of the previous fiscal year and ending with the end of such fiscal quarter, certified by a Financial an Responsible Officer of the Borrower Servicer identifying such documents as being the documents described in this paragraph (ii) and stating that the information set forth therein fairly presents the financial condition of the Servicer and its consolidated Subsidiaries as of and for the periods then ended, subject to year‑end adjustments and confirming that the effect that to Servicer is in compliance with all financial covenants in the best of such officer’s knowledge and belief no Default has occurred during the period covered by such statements Transaction Documents (or, if any such Default has occurred during such periodthe Servicer is not in compliance, setting forth a description of such Default and specifying the action, if any, taken by the relevant Loan Party or its Subsidiary to remedy the same. Such certificate shall also set forth the calculations supporting such statements in respect of Section 8.22 nature and status thereof) (Financial Covenants); and
(j) on the Closing Date and with each of the it being agreed that financial statements delivered pursuant to subsections (a) (other than included in the last Fiscal Quarter of each Fiscal Year) and (b) above, a Borrowing Base Certificate showing the computation of the Borrowing Base Value, in reasonable detail as of the close of business on the last day of such Fiscal Quarter or Fiscal Year, as applicable, prepared by the Borrower and certified to by its chief financial officer or another officer of the Borrower reasonably acceptable to the Administrative Agent; and
(k) within a reasonable period of time following any such request therefor, from time to time, (i) such other information regarding the operations, business affairs and financial condition of any Loan Party or any Subsidiary of a Loan Party, or compliance with the terms of any Loan Document, as the Administrative Agent or any Lender may reasonably request or (ii) information and documentation reasonably requested by the Administrative Agent or any Lender for purposes of compliance with applicable “know your customer” requirements under the Patriot Act or other applicable Anti-Corruption Laws and the Beneficial Ownership Regulation. Notwithstanding the foregoing, the filing of the BorrowerServicer’s financial statements with the U.S. Securities and Exchange Commission quarterly reports on Form 10-K or Form 10-Q for such fiscal quarter, as filed with the SEC, shall satisfy this subsection 7.5(k)(ii) with respect to such fiscal quarter so long as the requirements of Section 8.5(a)(i) and (bServicer delivers such financial statements to the Facility Agent within the time period required above), respectively.
Appears in 1 contract
Sources: Loan Financing and Servicing Agreement (PGIM Private Credit Fund)
Financial Reports. (a) The Loan Parties shallCompany will file with the Trustee, such information, documents and other reports that are required to be filed with the Commission pursuant to Section 13 or 15(d) of the Exchange Act within 15 days after the same would be required to be filed with the Commission. To the extent any such information, documents and reports are filed by the Company electronically on the Commission’s Electronic Data Gathering and Retrieval System (or any successor system), and an automatic e-mail notification thereof to the Trustee is generated, such information, documents and reports shall cause each be deemed filed with the Trustee. Delivery of such reports, information and documents to the Trustee is for informational purposes only and the Trustee’s receipt of such shall not constitute constructive notice of any information contained therein or determinable from information contained therein, including the Company’s compliance with any of its covenants hereunder (as to which the Trustee is entitled to rely exclusively on Officers’ Certificates).
(b) If at any time the Company is not subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act, the Company must provide the Trustee with (and the Trustee shall promptly make available to Holders of the Notes) within 15 days after the time periods specified in those sections for a registrant that is not an accelerated filer or a large accelerated filer:
(1) all quarterly and annual reports that would be required to be filed with the Commission on Forms 10-Q and 10-K if the Company were required to file such reports, including a “Management’s Discussion and Analysis of Financial Condition and Results of Operations” and, with respect to annual information only, a report thereon by the Company’s certified independent accountants, and
(2) all current reports that would be required to be filed with the Commission on Form 8-K if the Company were required to file such reports. In addition, whether or not required by the Commission, the Company will, if the Commission will accept the filing, file a copy of all of the information and reports referred to in clauses (1) and (2) with the Commission for public availability within the time periods specified in the Commission’s rules and regulations for a registrant that is not an accelerated filer or a large accelerated filer (unless the Company is required to file reports under the Exchange Act and are an accelerated filer or a large accelerated filer).
(c) Any failure to comply with this covenant will be automatically cured when the Company files all required reports with the Commission.
(d) For so long as any of the Notes remain outstanding and constitute “restricted securities” under Rule 144, the Company will furnish to the Holders of the Notes and prospective investors, upon their Subsidiaries torequest, maintain proper books of records and accounts reasonably necessary to prepare financial statements the information required to be delivered pursuant to this Section 8.5 in accordance with GAAP and shall furnish to Rule 144A(d)(4) under the Administrative Agent and each Lender:
(a) as soon as available, and in any event no later than sixty (60) days after the last day of each Fiscal Quarter of each Fiscal Year of the Borrower, a copy of (i) the company-prepared consolidated balance sheets of Borrower and its Subsidiaries as of the last day of such Fiscal Quarter and the consolidated statements of operations, changes in equity (deficit) and cash flows of Borrower for the Fiscal Quarter and for the Fiscal Year-to-date period then ended, in reasonable detail and, if available, showing in comparative form the figures for the corresponding date and period in the previous Fiscal Year, prepared by the applicable party in accordance with GAAP (subject to the absence of footnote disclosures and year-end audit adjustments) and certified to by a Financial Officer of Borrower and (ii) operating statements, rent roll and accounts receivable aging for each Borrowing Base Property;
(b) as soon as available, and in any event no later than one hundred twenty (120) days after the last day of each Fiscal Year of the Borrower, a copy of the consolidated balance sheets of Borrower and its Subsidiaries as of the last day of the Fiscal Year then ended and the consolidated statements of statements of operations, comprehensive loss, shareholders’ equity (deficit) and cash flows of Borrower and its Subsidiaries for the Fiscal Year then ended, and accompanying notes thereto, each in reasonable detail and, if available, showing in comparative form the figures for the previous Fiscal Year, accompanied in the case of the consolidated financial statements by an unqualified opinion of BDO USA, P.C., or another firm of independent public accountants of recognized national standing, selected by ▇▇▇▇▇▇▇▇ and reasonably satisfactory to the Administrative Agent;
(c) [reserved];
(d) promptly after the sending or filing thereof, copies of each financial statement, report, notice or proxy statement sent by any Loan Party or any Subsidiary of a Loan Party to its stockholders or other equity holders, and copies of each regular, periodic or special report, registration statement or prospectus filed by any Loan Party or any Subsidiary of a Loan Party with any securities exchange;Securities Act.
(e) [reserved];
(fAll obligors on the Notes will comply with Section 314(a) within ninety (90) days after the end of each Fiscal Year of the Borrower, a copy of the Borrower’s operating budget and projections for the following year including consolidated projections of revenues, expenses and balance sheet on a quarter-by-quarter basis, with such operating budget and projections in reasonable detail prepared by Borrower and in form reasonably satisfactory to the Administrative Agent (which shall include a summary of all significant assumptions made in preparing such projections);
(g) notice of any Change of Control;
(h) promptly after knowledge thereof shall have come to the attention of any Responsible Officer of any Loan Party, written notice of (i) any threatened or pending litigation or governmental or arbitration proceeding or labor controversy against any Loan Party or any Subsidiary of a Loan Party or any of their Property which, if adversely determined, could reasonably be expected to have a Material Adverse Effect, (ii) the occurrence of any Material Adverse Effect, (iii) the occurrence of any Default or (iv) any change in the information provided in the Beneficial Ownership Certification that would result in a change to the list of beneficial owners identified in of such certification;
(i) on the Closing Date and with each of the financial statements delivered pursuant to subsections (a) (other than the last Fiscal Quarter of each Fiscal Year) and (b) above, a compliance certificate (“Compliance Certificate”) in the form attached hereto as Exhibit F signed by a Financial Officer of the Borrower to the effect that to the best of such officer’s knowledge and belief no Default has occurred during the period covered by such statements or, if any such Default has occurred during such period, setting forth a description of such Default and specifying the action, if any, taken by the relevant Loan Party or its Subsidiary to remedy the same. Such certificate shall also set forth the calculations supporting such statements in respect of Section 8.22 (Financial Covenants); and
(j) on the Closing Date and with each of the financial statements delivered pursuant to subsections (a) (other than the last Fiscal Quarter of each Fiscal Year) and (b) above, a Borrowing Base Certificate showing the computation of the Borrowing Base Value, in reasonable detail as of the close of business on the last day of such Fiscal Quarter or Fiscal Year, as applicable, prepared by the Borrower and certified to by its chief financial officer or another officer of the Borrower reasonably acceptable to the Administrative Agent; and
(k) within a reasonable period of time following any such request therefor, from time to time, (i) such other information regarding the operations, business affairs and financial condition of any Loan Party or any Subsidiary of a Loan Party, or compliance with the terms of any Loan Document, as the Administrative Agent or any Lender may reasonably request or (ii) information and documentation reasonably requested by the Administrative Agent or any Lender for purposes of compliance with applicable “know your customer” requirements under the Patriot Act or other applicable Anti-Corruption Laws and the Beneficial Ownership Regulation. Notwithstanding the foregoing, the filing of the Borrower’s financial statements with the U.S. Securities and Exchange Commission on Form 10-K or Form 10-Q shall satisfy the requirements of Section 8.5(a)(i) and (b), respectivelyTrust Indenture Act.
Appears in 1 contract
Sources: Indenture (PHH Corp)
Financial Reports. The Loan Parties Borrower shall, and shall cause each of their Subsidiaries Subsidiary to, maintain proper books a standard system of records and accounts reasonably necessary to prepare financial statements required to be delivered pursuant to this Section 8.5 accounting in accordance with GAAP and shall furnish to the Administrative Agent, each Bank and each of their duly authorized representatives such information respecting the business and financial condition of the Borrower and each Subsidiary as the Agent or such Bank may reasonably request; and without any request, shall furnish to the Agent and each Lenderthe Banks:
(a) as soon as available, and in any event no later than sixty (60) within 30 days after the last day of each Fiscal Quarter calendar month (except with respect to January month-end financial statements in each year, in which case the financial statements required below shall be delivered within 45 days after the last day of each Fiscal Year of the BorrowerJanuary), a copy of (i) the company-prepared consolidated balance sheets sheet of Borrower and its Subsidiaries as of the last day of such Fiscal Quarter month and the consolidated statements of operationsincome, changes in equity (deficit) retained earnings and cash flows of the Borrower and its Subsidiaries for the Fiscal Quarter month and for the Fiscal Yearfiscal year-to-date period then ended, each in reasonable detail andshown in comparative form against the Borrower's business plan for such year, if prepared by the Borrower and certified to by the Borrower's chief financial office, or another officer of the Borrower reasonably acceptable to the Agent;
(b) as soon as available, and in any event within 45 days after the close of each fiscal quarter of each fiscal year of the Borrower, a copy of the consolidated and consolidating balance sheet of the Borrower and its Subsidiaries as of the last day of such period and the consolidated and consolidating statements of income, retained earnings and cash flows of the Borrower and its Subsidiaries for the fiscal quarter and for the fiscal year-to-date period then ended, each in reasonable detail showing in comparative form the figures for the corresponding date and period in the previous Fiscal Yearfiscal year, prepared by the applicable party Borrower in accordance with GAAP (subject to the absence of footnote disclosures and year-end audit adjustments) and certified to by a Financial Officer the Borrower's chief financial officer, or another officer of the Borrower and (ii) operating statements, rent roll and accounts receivable aging for each Borrowing Base Propertyreasonably acceptable to the Agent;
(bc) as soon as available, and in any event no later than one hundred twenty (120) within 90 days after the last day close of each Fiscal Year fiscal year of the BorrowerBorrower (commencing with the fiscal year ended December 31, 1997), a copy of the consolidated and consolidating balance sheets sheet of the Borrower and its Subsidiaries as of the last day of the Fiscal Year period then ended and the consolidated and consolidating statements of statements of operationsincome, comprehensive loss, shareholders’ equity (deficit) retained earnings and cash flows of the Borrower and its Subsidiaries for the Fiscal Year period then ended, and accompanying notes thereto, each in reasonable detail and, if available, showing in comparative form the figures for the previous Fiscal Yearfiscal year, accompanied in the case of by an unqualified opinion on the consolidated financial statements by an unqualified opinion of BDO USA, P.C., Ernst & Young (or its successors) or another firm of independent public accountants of recognized national standing, selected by ▇▇▇▇▇▇▇▇ the Borrower and reasonably satisfactory to the Administrative Agent;
(c) [reserved]Required Banks, to the effect that the consolidated financial statements have been prepared in accordance with GAAP and present fairly, in all material respects, in accordance with GAAP the consolidated financial condition of the Borrower and its Subsidiaries as of the close of such fiscal year and the results of their operations and cash flows for the fiscal year then ended and that an examination of such accounts in connection with such financial statements has been made in accordance with generally accepted auditing standards and, accordingly, such examination included such tests of the accounting records and such other auditing procedures as were considered necessary in the circumstances;
(d) promptly after the sending or filing thereof, copies of each financial statement, report, notice or proxy statement sent by any Loan Party the Borrower or any Subsidiary of a Loan Party to its stockholders or other equity holdersstockholders, and copies of each regular, periodic or special report, registration statement or prospectus (including all Form 10-K, Form 10-Q, and Form 8-K reports and proxy statements) filed by any Loan Party the Borrower or any Subsidiary of a Loan Party with any securities exchangeexchange or the Securities and Exchange Commission or any successor agency;
(e) [reserved]promptly after receipt thereof, a copy of each audit made by any regulatory agency of the books and records of the Borrower or any Subsidiary or of any notice of material noncompliance with any applicable law, regulation, or guideline relating to the Borrower or any Subsidiary or any of their respective businesses;
(f) as soon as available, and in any event within ninety (90) 75 days after the end of each Fiscal Year fiscal year of the BorrowerBorrower (commencing with the fiscal year ended December 31, 1997), a copy of the Borrower’s operating budget 's consolidated and projections consolidating business plan for the following year including fiscal year, such business plan to show the Borrower's projected consolidated projections of and consolidating revenues, expenses expenses, and balance sheet on a quartermonth-by-quarter month basis, with such operating budget and projections business plan to be in reasonable detail prepared by the Borrower and in form reasonably satisfactory to the Administrative Agent (which shall include a summary of all significant assumptions made in preparing such projections)business plan;
(g) notice of any Change of Control;; and
(h) promptly after knowledge thereof shall have come to the attention of any Responsible Officer responsible officer of any Loan Partythe Borrower, written notice of (i) any threatened or pending litigation or governmental or arbitration proceeding or labor controversy against any Loan Party the Borrower or any other Subsidiary of a Loan Party or any of their Property which, if adversely determined, could is reasonably be expected likely to have a Material Adverse Effect, (ii) the occurrence Effect or of any Material Adverse Effect, (iii) the occurrence of any Default or (iv) any change in the information provided in the Beneficial Ownership Certification that would result in a change to the list Event of beneficial owners identified in of such certification;
(i) on the Closing Date and with each Default hereunder. Each of the financial statements delivered furnished to the Banks pursuant to subsections (a) (other than the last Fiscal Quarter of each Fiscal Yearb) and (bc) above, of this Section 8.5 shall be accompanied by a compliance written certificate (“Compliance Certificate”) in the form attached hereto as Exhibit F D signed by a Financial Officer the chief financial officer of the Borrower, or another officer of the Borrower reasonably acceptable to the Agent, to the effect that to the best of such officer’s 's knowledge and belief no Default or Event of Default has occurred during the period covered by such statements or, if any such Default or Event of Default has occurred during such period, setting forth a description of such Default or Event of Default and specifying the action, if any, taken by the relevant Loan Party Borrower or its any Subsidiary to remedy the same. Such certificate shall also set forth the calculations supporting such statements in respect of Section 8.22 (Financial Covenants); and
(j) on the Closing Date Sections 8.7, 8.8, 8.9, 8.10, 8.11 and with each 8.12 of the financial statements delivered pursuant to subsections (a) (other than the last Fiscal Quarter of each Fiscal Year) and (b) above, a Borrowing Base Certificate showing the computation of the Borrowing Base Value, in reasonable detail as of the close of business on the last day of such Fiscal Quarter or Fiscal Year, as applicable, prepared by the Borrower and certified to by its chief financial officer or another officer of the Borrower reasonably acceptable to the Administrative Agent; and
(k) within a reasonable period of time following any such request therefor, from time to time, (i) such other information regarding the operations, business affairs and financial condition of any Loan Party or any Subsidiary of a Loan Party, or compliance with the terms of any Loan Document, as the Administrative Agent or any Lender may reasonably request or (ii) information and documentation reasonably requested by the Administrative Agent or any Lender for purposes of compliance with applicable “know your customer” requirements under the Patriot Act or other applicable Anti-Corruption Laws and the Beneficial Ownership Regulation. Notwithstanding the foregoing, the filing of the Borrower’s financial statements with the U.S. Securities and Exchange Commission on Form 10-K or Form 10-Q shall satisfy the requirements of Section 8.5(a)(i) and (b), respectivelythis Agreement.
Appears in 1 contract
Financial Reports. The Loan Parties shallServicer shall furnish, or cause to be furnished, to the Administrative Agent (who shall forward a copy to each Agent and shall cause the Collateral Agent) and the Facility Agent:
(i) as soon as available and in any event within 105 days after the end of each fiscal year, a copy of their the audited consolidated financial statements for the Equityholder and its consolidated Subsidiaries, together with the unqualified opinion (other than immaterial qualifications) of a firm of nationally-recognized independent certified public accountants, based on an audit using generally accepted auditing standards, that such financial statements were prepared in accordance with GAAP and present fairly in all material respects the financial condition and results of operations of the Equityholder and its consolidated Subsidiaries, as certified by an Executive Officer of the Equityholder stating that the information set forth therein fairly presents the financial condition of each such Person and its consolidated Subsidiaries toin all material respects; provided, maintain proper books of records and accounts reasonably necessary to prepare that after the Conversion Date, so long as the financial statements required to be delivered pursuant to this Section 8.5 in accordance with GAAP and shall furnish to the Administrative Agent and each Lender:
(a) as soon as available, and in any event no later than sixty (60) days after the last day of each Fiscal Quarter of each Fiscal Year of the Borrower, a copy of clause (i) the company-prepared consolidated balance sheets of Borrower and its Subsidiaries as of the last day of such Fiscal Quarter and the consolidated statements of operations, changes in equity (deficit) and cash flows of Borrower for the Fiscal Quarter and for the Fiscal Year-to-date period then ended, in reasonable detail and, if available, showing in comparative form the figures for the corresponding date and period in the previous Fiscal Year, prepared by the applicable party in accordance with GAAP (subject are required to the absence of footnote disclosures and year-end audit adjustments) and certified to by a Financial Officer of Borrower and (ii) operating statements, rent roll and accounts receivable aging for each Borrowing Base Property;
(b) as soon as available, and in any event no later than one hundred twenty (120) days after the last day of each Fiscal Year of the Borrower, a copy of the consolidated balance sheets of Borrower and its Subsidiaries as of the last day of the Fiscal Year then ended and the consolidated statements of statements of operations, comprehensive loss, shareholders’ equity (deficit) and cash flows of Borrower and its Subsidiaries for the Fiscal Year then ended, and accompanying notes thereto, each in reasonable detail and, if available, showing in comparative form the figures for the previous Fiscal Year, accompanied in the case of the consolidated financial statements by an unqualified opinion of BDO USA, P.C., or another firm of independent public accountants of recognized national standing, selected by be made available via ▇▇▇▇▇▇▇▇ and reasonably satisfactory to , or any successor system of the Administrative Agent;Securities Exchange Commission, the foregoing requirement shall be deemed satisfied on the date such documents are made so available; and
(cii) [reserved];
(d) promptly after the sending or filing thereof, copies of each financial statement, report, notice or proxy statement sent by as soon as available and in any Loan Party or any Subsidiary of a Loan Party to its stockholders or other equity holders, and copies of each regular, periodic or special report, registration statement or prospectus filed by any Loan Party or any Subsidiary of a Loan Party with any securities exchange;
(e) [reserved];
(f) event within ninety (90) 60 days after the end of each Fiscal Year of the Borrower, a copy of the Borrower’s operating budget and projections for the following year including consolidated projections of revenues, expenses and balance sheet on a quarter-by-fiscal quarter basis, with such operating budget and projections in reasonable detail prepared by Borrower and in form reasonably satisfactory to the Administrative Agent (which shall include a summary of all significant assumptions made in preparing such projections);
(g) notice of any Change of Control;
(h) promptly after knowledge thereof shall have come to the attention of any Responsible Officer of any Loan Party, written notice of (i) any threatened or pending litigation or governmental or arbitration proceeding or labor controversy against any Loan Party or any Subsidiary of a Loan Party or any of their Property which, if adversely determined, could reasonably be expected to have a Material Adverse Effect, (ii) the occurrence of any Material Adverse Effect, (iii) the occurrence of any Default or (iv) any change in the information provided in the Beneficial Ownership Certification that would result in a change to the list of beneficial owners identified in of such certification;
(i) on the Closing Date and with each of the financial statements delivered pursuant to subsections (a) (other than the last Fiscal Quarter fiscal quarter of each Fiscal Year) and (b) abovefiscal year), a compliance certificate (“Compliance Certificate”) in the form attached hereto as Exhibit F signed by a Financial Officer an unaudited consolidated summary balance sheet of the Borrower Equityholder and its consolidated Subsidiaries as of the end of such fiscal quarter and including the prior comparable period (if any), and an unaudited consolidated line item profit and loss statement of the Equityholder and its consolidated Subsidiaries for such fiscal quarter for the period commencing at the end of the previous fiscal year and ending with the end of such fiscal quarter, to the effect extent produced; provided, that to after the best of such officer’s knowledge and belief no Default has occurred during the period covered by such statements orConversion Date, if any such Default has occurred during such period, setting forth a description of such Default and specifying the action, if any, taken by the relevant Loan Party or its Subsidiary to remedy the same. Such certificate shall also set forth the calculations supporting such statements in respect of Section 8.22 (Financial Covenants); and
(j) on the Closing Date and with each of so long as the financial statements required to be delivered pursuant to subsections (a) (other than the last Fiscal Quarter of each Fiscal Year) and (b) above, a Borrowing Base Certificate showing the computation of the Borrowing Base Value, in reasonable detail as of the close of business on the last day of such Fiscal Quarter or Fiscal Year, as applicable, prepared by the Borrower and certified to by its chief financial officer or another officer of the Borrower reasonably acceptable to the Administrative Agent; and
(k) within a reasonable period of time following any such request therefor, from time to time, (i) such other information regarding the operations, business affairs and financial condition of any Loan Party or any Subsidiary of a Loan Party, or compliance with the terms of any Loan Document, as the Administrative Agent or any Lender may reasonably request or this clause (ii) information and documentation reasonably requested by the Administrative Agent are required to be made available via ▇▇▇▇▇, or any Lender for purposes successor system of compliance with applicable “know your customer” requirements under the Patriot Act or other applicable Anti-Corruption Laws and the Beneficial Ownership Regulation. Notwithstanding the foregoingSecurities Exchange Commission, the filing of foregoing requirement shall be deemed satisfied on the Borrower’s financial statements with the U.S. Securities and Exchange Commission on Form 10-K or Form 10-Q shall satisfy the requirements of Section 8.5(a)(i) and (b), respectivelydate such documents are made so available.
Appears in 1 contract
Sources: Loan Financing and Servicing Agreement (Monroe Capital Enhanced Corporate Lending Fund)
Financial Reports. The Loan Parties shall, and shall cause each of their Subsidiaries to, maintain proper books of records and accounts reasonably necessary to prepare financial statements required to be delivered pursuant to this Section 8.5 in accordance with GAAP and shall Borrower will furnish to the Administrative Agent and each Lender:
(a) as soon as available, and in any event no later than Within sixty (60) days after the last day end of each of the first three quarter-annual periods of each Fiscal Quarter of each Fiscal Year Year, the quarterly Financial Report of the Borrower, a copy of (i) the company-prepared consolidated balance sheets of Borrower and its Subsidiaries as of the last day end of such Fiscal Quarter and the consolidated statements of operations, changes in equity (deficit) and cash flows of Borrower for the Fiscal Quarter and for the Fiscal Year-to-date period then ended, in reasonable detail and, if available, showing in comparative form the figures for the corresponding date and period in the previous Fiscal Yearthat period, prepared on a consolidated basis and accompanied by a certificate, dated the applicable party in accordance with GAAP (subject to the absence date of footnote disclosures and year-end audit adjustments) and certified to furnishing, signed by a Financial Officer of the Borrower to the effect that such Financial Report accurately presents in all Material respects the consolidated financial condition of the Consolidated Companies and that such Financial Report has been prepared in accordance with GAAP consistently applied (ii) operating statementssubject to year end adjustments), rent roll and accounts receivable aging for each Borrowing Base Property;except that such Financial Report need not be accompanied by notes.
(b) as soon as available, and in any event no later than Within one hundred and twenty (120) days after the last day end of each Fiscal Year, the annual Financial Report of the Borrower (with accompanying notes) for that Fiscal Year prepared on a consolidated basis (which Financial Report shall be reported on by the Borrower's independent certified public accountants, such report to state that such Financial Report fairly presents in all Material respects the consolidated financial condition and results of operation of the Consolidated Companies in accordance with GAAP and to be without any Material qualifications or exceptions). The audit opinion in respect of the consolidated Financial Report shall be the unqualified opinion of one of the nationally recognized "Big Six" firms of independent certified public accountants acceptable to Agent and shall be accompanied by a statement of the independent certified public accountants regarding whether a Default or Event of Default has occurred.
(c) Within sixty (60) days after the end of each of its first three quarterly accounting periods and within one hundred and twenty (120) days after the end of each Fiscal Year, a statement certified as true and correct by a Financial Officer of the Borrower, a copy substantially in the form of the consolidated balance sheets of Borrower and its Subsidiaries as of the last day of the Fiscal Year then ended and the consolidated statements of statements of operationsExhibit I hereto, comprehensive loss, shareholders’ equity (deficit) and cash flows of Borrower and its Subsidiaries for the Fiscal Year then ended, and accompanying notes thereto, each with back-up material setting forth in reasonable detail andsuch calculations attached thereto and stating whether any Default or Event of Default has occurred and is continuing, and if availablea Default or Event of Default has occurred and is continuing, showing in comparative form stating the figures for the previous Fiscal Year, accompanied in the case of the consolidated financial statements by an unqualified opinion of BDO USA, P.C., or another firm of independent public accountants of recognized national standing, selected by ▇▇▇▇▇▇▇▇ and reasonably satisfactory to the Administrative Agent;
(c) [reserved];Borrower's intentions with respect thereto.
(d) promptly Within thirty (30) days after the sending or filing thereof, copies end of each financial statementcalendar month, report, notice or proxy statement sent by any Loan Party or any Subsidiary the unaudited monthly Financial Report (excluding statements of a Loan Party to its stockholders or other equity holders, cash flows) of Borrower and copies of each regular, periodic or special report, registration statement or prospectus filed by any Loan Party or any Subsidiary of a Loan Party with any securities exchangethe Consolidated Companies;
(e) [reserved];
(f) within Within ninety (90) days after the end of each Fiscal Year of the Borrower, a copy of the Borrower’s operating budget and projections for the following year including consolidated annual financial projections of revenues, expenses and balance sheet on a quarter-by-quarter basis, with such operating budget and projections in reasonable detail prepared by Borrower and the Consolidated Companies in form reasonably satisfactory a format acceptable to the Administrative Agent Lender (which shall include a summary of all significant assumptions made not be prepared in preparing such projections);
(g) notice of any Change of Control;
(h) promptly after knowledge thereof shall have come to the attention of any Responsible Officer of any Loan Party, written notice of (i) any threatened or pending litigation or governmental or arbitration proceeding or labor controversy against any Loan Party or any Subsidiary of a Loan Party or any of their Property which, if adversely determined, could reasonably be expected to have a Material Adverse Effect, (ii) the occurrence of any Material Adverse Effect, (iii) the occurrence of any Default or (iv) any change in the information provided in the Beneficial Ownership Certification that would result in a change to the list of beneficial owners identified in of such certification;
(i) on the Closing Date and with each of the financial statements delivered pursuant to subsections (a) (other than the last Fiscal Quarter of each Fiscal Year) and (b) above, a compliance certificate (“Compliance Certificate”) in the form attached hereto as Exhibit F signed by a Financial Officer of the Borrower to the effect that to the best of such officer’s knowledge and belief no Default has occurred during the period covered by such statements or, if any such Default has occurred during such period, setting forth a description of such Default and specifying the action, if any, taken by the relevant Loan Party or its Subsidiary to remedy the same. Such certificate shall also set forth the calculations supporting such statements in respect of Section 8.22 (Financial Covenants); and
(j) on the Closing Date and with each of the financial statements delivered pursuant to subsections (a) (other than the last Fiscal Quarter of each Fiscal Year) and (b) above, a Borrowing Base Certificate showing the computation of the Borrowing Base Value, in reasonable detail as of the close of business on the last day of such Fiscal Quarter or Fiscal Year, as applicable, prepared by the Borrower and certified to by its chief financial officer or another officer of the Borrower reasonably acceptable to the Administrative Agent; and
(k) within a reasonable period of time following any such request therefor, from time to time, (i) such other information regarding the operations, business affairs and financial condition of any Loan Party or any Subsidiary of a Loan Party, or compliance with the terms of any Loan Document, as the Administrative Agent or any Lender may reasonably request or (ii) information and documentation reasonably requested by the Administrative Agent or any Lender for purposes of compliance with applicable “know your customer” requirements under the Patriot Act or other applicable Anti-Corruption Laws and the Beneficial Ownership Regulation. Notwithstanding the foregoing, the filing of the Borrower’s financial statements with the U.S. Securities and Exchange Commission on Form 10-K or Form 10-Q shall satisfy the requirements of Section 8.5(a)(i) and (b), respectively.accordance with
Appears in 1 contract
Sources: Credit Agreement (Childrens Comprehensive Services Inc)
Financial Reports. The Loan Parties shall, and shall cause each of their Subsidiaries Subsidiary to, maintain proper books of records and accounts reasonably necessary to prepare financial statements required to be delivered pursuant to this Section 8.5 in accordance with GAAP and shall furnish to the Administrative Agent and each LenderAgent:
(a) as soon as available, and in any event no later than sixty (60) within 45 days after the last day of each Fiscal Quarter of each Fiscal Year fiscal quarter of the Borrower other than the fiscal quarter ending on the last day of the fiscal year of Borrower, a copy copies of (i) the company-prepared consolidated balance sheets sheet of the Borrower and its Subsidiaries as of the last day close of such Fiscal Quarter period and the consolidated statements of operationsincome, changes in equity (deficit) retained earnings, and cash flows of the Borrower and its Subsidiaries for such period and the Fiscal Quarter and for the Fiscal Yearfiscal year-to-date period then ended, each in reasonable detail and, if available, showing in comparative form the figures for the corresponding date and period in the previous Fiscal Yearfiscal year, prepared by the applicable party Borrower in accordance with GAAP (subject to to, in each case, the absence of footnote disclosures footnotes and normal year-end audit adjustments) and certified to by a Financial Officer or such other officer of the Borrower and (ii) operating statements, rent roll and accounts receivable aging for each Borrowing Base Propertyreasonably satisfactory to the Administrative Agent;
(b) as soon as available, and in any event no later than one hundred twenty (120) within 90 days after the last day of each Fiscal Year fiscal year of the Borrower, a copy copies of the consolidated balance sheets sheet of the Borrower and its Subsidiaries as of the last day close of the Fiscal Year then ended such period and the consolidated statements of statements of operationsincome, comprehensive lossretained earnings, shareholders’ equity (deficit) and cash flows of the Borrower and its Subsidiaries for the Fiscal Year then endedsuch period, and accompanying notes thereto, each in reasonable detail and, if available, showing in comparative form the figures for the previous Fiscal Year, accompanied in the case of the consolidated financial statements by an unqualified opinion thereon of BDO USA, P.C., KPMG US LLP or another firm of independent public accountants of recognized national standingstanding to the effect that the financial statements have been prepared in accordance with GAAP and present fairly in all material respects in accordance with GAAP the financial condition of the Borrower and its Subsidiaries as of the close of such fiscal year and the results of their operations and cash flows for the fiscal year then ended and that an examination of such accounts in connection with such financial statements has been made in accordance with generally accepted auditing standards and, selected accordingly, such examination included such tests of the accounting records and such other auditing procedures as were considered necessary in the circumstances;
(c) as soon as available, and in any event within 45 days after the last day of the first three fiscal quarters and 90 days after the end of each fiscal year, the Borrower shall deliver to the Administrative Agent a written certificate (a “Compliance Certificate”) in the form attached hereto as Exhibit D signed by ▇▇▇▇▇▇▇▇ and a Financial Officer of the Borrower, or such other officer of the Borrower reasonably satisfactory to the Administrative Agent;
(c) [reserved];
(d) promptly after the sending or filing thereof, copies of each financial statement, report, notice or proxy statement sent by any Loan Party or any Subsidiary of a Loan Party to its stockholders or other equity holdersas soon as available, and copies of each regular, periodic or special report, registration statement or prospectus filed by in any Loan Party or any Subsidiary of a Loan Party with any securities exchange;
(e) [reserved];
(f) event within ninety (90) 60 days after the end last day of each Fiscal Year fiscal year of the Borrower, a copy of the Borrower’s operating budget and projections of the Borrower for the following year including consolidated projections of revenuesfiscal year, expenses and balance sheet on a quarter-by-quarter basis, with such operating budget and projections in reasonable detail prepared by Borrower and in form and details reasonably satisfactory to the Administrative Agent (which shall include a summary of all significant assumptions made in preparing such projections)Agent;
(g) notice of any Change of Control;
(he) promptly after knowledge thereof shall have come to the attention of any Responsible Officer of any Loan Party, written notice of (i) any threatened or pending litigation or litigation, governmental or arbitration proceeding or labor controversy against any Loan Party or any Party, Pledged Subsidiary of a Loan Party or any of their Property which, if adversely determined, could which would reasonably be expected to have a Material Adverse Effect, (ii) the occurrence of any Material Adverse EffectDefault hereunder, (iii) the occurrence of any Default event or the existence of any condition that would reasonably be expected to have a Material Adverse Effect; or (iv) any change ERISA Event;
(f) promptly after receipt thereof, and in the information provided in the Beneficial Ownership Certification any event within five (5) Business Days after receipt thereof, a copy of each annual FINRA or SEC examination of a Loan Party or any Pledged Subsidiary, or other audits or examinations that are conducted by regulatory authorities which note noncompliance that would result in reasonably be expected to have a change to Material Adverse Effect;
(g) notice of any Change of Control;
(h) promptly after it is filed with the list SEC copies of beneficial owners identified in of such certification;each regular, periodic or special report, registration statement or prospectus (including all Form 10‑K, Form 10‑Q and Form 8‑K reports) filed publicly by any Loan Party or Pledged Subsidiary with any securities exchange or the SEC; and
(i) on the Closing Date and with each of the financial statements delivered pursuant to subsections (a) (other than the last Fiscal Quarter of each Fiscal Year) and (b) above, a compliance certificate (“Compliance Certificate”) in the form attached hereto as Exhibit F signed by a Financial Officer of the Borrower to the effect that to the best of such officer’s knowledge and belief no Default has occurred during the period covered by such statements or, if any such Default has occurred during such period, setting forth a description of such Default and specifying the action, if any, taken by the relevant Loan Party or its Subsidiary to remedy the same. Such certificate shall also set forth the calculations supporting such statements in respect of Section 8.22 (Financial Covenants); and
(j) on the Closing Date and with each of the financial statements delivered pursuant to subsections (a) (other than the last Fiscal Quarter of each Fiscal Year) and (b) above, a Borrowing Base Certificate showing the computation of the Borrowing Base Value, in reasonable detail as of the close of business on the last day of such Fiscal Quarter or Fiscal Year, as applicable, prepared by the Borrower and certified to by its chief financial officer or another officer of the Borrower reasonably acceptable to the Administrative Agent; and
(k) within a reasonable period of time following any such request thereforpromptly, from time to time, (i) such other information regarding the operations, business affairs and financial condition of any Loan Party or any Subsidiary of a Loan PartyPledged Subsidiary, or compliance with the terms of any Loan Document, as the Administrative Agent or any Lender may reasonably request request, or (ii) information and documentation reasonably requested by the Administrative Agent or any Lender for purposes of compliance with applicable “know your customer” requirements under the Patriot Act or other applicable Anti-Corruption Laws and the Beneficial Ownership Regulation. Notwithstanding Documents required to be delivered pursuant to this Section (to the foregoingextent any such documents are included in materials otherwise filed with the SEC) may be delivered electronically and if so delivered, shall be deemed to have been delivered on the filing of date (i) on which the Borrower posts such documents, or provides a link thereto on the Borrower’s financial statements with website on the U.S. Securities Internet; or (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 Exchange Commission on Form 10the Administrative Agent have access (whether a commercial, third-K party website or Form 10-Q shall satisfy whether sponsored by the requirements of Section 8.5(a)(i) Administrative Agent and including the SEC’s website at ▇▇▇.▇▇▇ (bor any successor thereto), respectively).
Appears in 1 contract
Sources: Credit Agreement (Cowen Inc.)
Financial Reports. The Loan Parties Borrower shall, and shall cause each of their Subsidiaries Subsidiary to, maintain proper books a standard system of records and accounts reasonably necessary to prepare financial statements required to be delivered pursuant to this Section 8.5 accounting in accordance with GAAP and shall furnish to the Administrative Agent Agent, and each LenderLender such information respecting the business and financial condition of the Borrower and each Subsidiary as the Administrative Agent or such Lender may reasonably request; and without any request, shall furnish to the Administrative Agent, and the Lenders:
(a) as soon as available, and in any event no later than sixty forty-five (6045) days after the last day of each Fiscal Quarter fiscal quarter of each Fiscal Year fiscal year of the Borrower, a copy of (i) the company-prepared consolidated and consolidating balance sheets sheet of the Borrower and its Subsidiaries as of the last day of such Fiscal Quarter fiscal quarter and the consolidated and consolidating statements of operationsincome, changes in equity (deficit) retained earnings, and cash flows of the Borrower and its Subsidiaries for the Fiscal Quarter fiscal quarter and for the Fiscal Yearfiscal year-to-date period then ended, each in reasonable detail and, if available, showing in comparative form the figures for the corresponding date and period in the previous Fiscal Yearfiscal year, prepared by the applicable party Borrower in accordance with GAAP (subject to the absence of footnote disclosures and year-end audit adjustments) and certified to by a Financial Officer its chief financial officer or another officer of the Borrower and (ii) operating statements, rent roll and accounts receivable aging for each Borrowing Base Propertyacceptable to the Administrative Agent;
(b) as soon as available, and in any event no later than one hundred twenty ninety (12090) days after the last day of each Fiscal Year fiscal year of the Borrower, a copy of the consolidated and consolidating balance sheets sheet of the Borrower and its Subsidiaries as of the last day of the Fiscal Year fiscal year then ended and the consolidated and consolidating statements of statements of operationsincome, comprehensive lossretained earnings, shareholders’ equity (deficit) and cash flows of the Borrower and its Subsidiaries for the Fiscal Year fiscal year then ended, and accompanying notes thereto, each in reasonable detail and, if available, showing in comparative form the figures for the previous Fiscal Yearfiscal year, accompanied in the case of the consolidated financial statements by an unqualified opinion of BDO USA, P.C., KPMG LLP or another firm of independent public accountants of recognized national standing, selected by ▇▇▇▇▇▇▇▇ the Borrower and reasonably satisfactory to the Administrative AgentAgent and the Required Lenders, to the effect that the consolidated financial statements have been prepared in accordance with GAAP and present fairly in accordance with GAAP the consolidated financial condition of the Borrower and its Subsidiaries as of the close of such fiscal year and the results of their operations and cash flows for the fiscal year then ended and that an examination of such accounts in connection with such financial statements has been made in accordance with generally accepted auditing standards and, accordingly, such examination included such tests of the accounting records and such other auditing procedures as were considered necessary in the circumstances;
(c) [reserved]within the period provided in subsection (b) above, the written statement of the accountants who certified the audit report thereby required that in the course of their audit they have obtained no knowledge of any Default or Event of Default, or, if such accountants have obtained knowledge of any such Default or Event of Default, they shall disclose in such statement the nature and period of the existence thereof;
(d) promptly after receipt thereof, any additional written reports, management letters or other detailed information contained in writing concerning significant aspects of the Borrower’s or any Subsidiary’s operations and financial affairs given to it by its independent public accountants;
(e) promptly after the sending or filing thereof, copies of each financial statement, report, notice or proxy statement sent by any Loan Party the Borrower or any Subsidiary of a Loan Party to its stockholders or other equity holders, and copies of each regular, periodic or special report, registration statement or prospectus (including all Form 10-K, Form 10-Q and Form 8-K reports) filed by any Loan Party the Borrower or any Subsidiary of a Loan Party with any securities exchange;
(e) [reserved]exchange or the Securities and Exchange Commission or any successor agency;
(f) within ninety promptly after receipt thereof, a copy of each audit made by any regulatory agency of the books and records of the Borrower or any Subsidiary or of notice of any material noncompliance with any applicable law, regulation or guideline relating to the Borrower or any Subsidiary, or its business;
(90g) as soon as available, and in any event no later than thirty (30) days after the end beginning of each Fiscal Year fiscal year of the Borrower, a copy of the Borrower’s operating budget consolidated and projections consolidating business plan for such fiscal year, such business plan to show the following year including Borrower’s projected consolidated projections of and consolidating revenues, expenses and balance sheet on a quarter-by-quarter basis, with such operating budget and projections business plan to be in reasonable detail prepared by the Borrower and in form reasonably satisfactory to the Administrative Agent and the Required Lenders (which shall include a summary of all significant assumptions made in preparing such projectionsbusiness plan);
(g) notice of any Change of Control;
(h) promptly after knowledge thereof shall have come to the attention of any Responsible Officer of any Loan Party, written notice of (i) any threatened or pending litigation or governmental or arbitration proceeding or labor controversy against any Loan Party or any Subsidiary of a Loan Party or any of their Property which, if adversely determined, could reasonably be expected to have a Material Adverse Effect, (ii) the occurrence of any Material Adverse Effect, (iii) the occurrence of any Default or (iv) any change in the information provided in the Beneficial Ownership Certification that would result in a change to the list of beneficial owners identified in of such certification;
(i) on the Closing Date and with each of the financial statements delivered pursuant to subsections (a) (other than the last Fiscal Quarter of each Fiscal Year) and (b) above, a compliance certificate (“Compliance Certificate”) in the form attached hereto as Exhibit F signed by a Financial Officer of the Borrower to the effect that to the best of such officer’s knowledge and belief no Default has occurred during the period covered by such statements or, if any such Default has occurred during such period, setting forth a description of such Default and specifying the action, if any, taken by the relevant Loan Party or its Subsidiary to remedy the same. Such certificate shall also set forth the calculations supporting such statements in respect of Section 8.22 (Financial Covenants); and
(j) on the Closing Date and with each of the financial statements delivered pursuant to subsections (a) (other than the last Fiscal Quarter of each Fiscal Year) and (b) above, a Borrowing Base Certificate showing the computation of the Borrowing Base Value, in reasonable detail as of the close of business on the last day of such Fiscal Quarter or Fiscal Year, as applicable, prepared by the Borrower and certified to by its chief financial officer or another officer of the Borrower reasonably acceptable to the Administrative Agent; and
(k) within a reasonable period of time following any such request therefor, from time to time, (i) such other information regarding the operations, business affairs and financial condition of any Loan Party or any Subsidiary of a Loan Party, or compliance with the terms of any Loan Document, as the Administrative Agent or any Lender may reasonably request or (ii) information and documentation reasonably requested by the Administrative Agent or any Lender for purposes of compliance with applicable “know your customer” requirements under the Patriot Act or other applicable Anti-Corruption Laws and the Beneficial Ownership Regulation. Notwithstanding the foregoing, the filing of the Borrower’s financial statements with the U.S. Securities and Exchange Commission on Form 10-K or Form 10-Q shall satisfy the requirements of Section 8.5(a)(i) and (b), respectively.
Appears in 1 contract
Financial Reports. The Loan Parties Borrowers shall, and the Public Hub Company shall cause each of their Subsidiaries Subsidiary to, maintain proper books of records and its accounts reasonably necessary to prepare financial statements required to be delivered pursuant to this Section 8.5 in accordance with GAAP and shall furnish to the Administrative Agent and each Lender such information respecting the business and financial condition of the Hub Group as the Administrative Agent or any Lender may reasonably request; and without any request, shall furnish to the Administrative Agent and each Lender:
(a) as soon as available, and in any event no later than sixty (60) within 45 days after the last day close of the first three fiscal quarters of each Fiscal Quarter of each Fiscal Year fiscal year of the BorrowerPublic Hub Company, a copy of (i) the company-prepared consolidated balance sheets sheet of Borrower and its Subsidiaries the Hub Group as of the last day of such Fiscal Quarter period and the consolidated statements of operationsincome, changes in equity (deficit) retained earnings and cash flows of Borrower the Hub Group for the Fiscal Quarter quarter and for the Fiscal Yearfiscal year-to-date period then ended, each in reasonable detail and, if available, showing in comparative form the figures for the corresponding date and period in the previous Fiscal Yearfiscal year, prepared by the applicable party Public Hub Company in accordance with GAAP (subject to the absence of footnote disclosures and year-end audit adjustments) and certified to by a Financial Officer of Borrower and (ii) operating statements, rent roll and accounts receivable aging for each Borrowing Base Propertyits president or chief financial officer;
(b) as soon as available, and in any event no later than one hundred twenty (120) within 90 days after the last day close of each Fiscal Year annual accounting period of the BorrowerPublic Hub Company, a copy of the consolidated balance sheets sheet of Borrower and its Subsidiaries the Hub Group as of the last day close of the Fiscal Year then ended such period and the consolidated statements of statements of operationsincome, comprehensive loss, shareholders’ equity (deficit) retained earnings and cash flows of Borrower and its Subsidiaries the Hub Group for the Fiscal Year then endedsuch period, and accompanying notes thereto, each in reasonable detail and, if available, showing in comparative form the figures for the previous Fiscal Yearfiscal year, accompanied in the case of the consolidated financial statements by an unqualified opinion audit report thereon of BDO USA, P.C., Ernst & Young LLP or another firm of independent public accountants of recognized national standing, selected by ▇▇▇▇▇▇▇▇ and reasonably satisfactory to the Administrative Agenteffect that the consolidated financial statements have been prepared in accordance with GAAP and present fairly in all material respects in accordance with GAAP the consolidated financial condition of the Hub Group as of the close of such fiscal year and the results of its operations and cash flows for the fiscal year then ended and that an examination of such accounts in connection with such consolidated financial statements has been made in accordance with generally accepted auditing standards and, accordingly, such examination included such tests of the accounting records and such other auditing procedures as were considered necessary in the circumstances;
(c) [reserved]promptly after receipt thereof, any management letters identifying a material weakness or a significant deficiency in internal controls given to the Public Hub Company by its independent public accountants;
(d) promptly after the sending or filing thereof, copies of each financial statement, report, notice or proxy statement sent by any Loan Party or any Subsidiary of a Loan Party to its stockholders or other equity holders, all Form 10-K and copies of each regular, periodic or special report, registration statement or prospectus Form 10-Q reports filed by any Loan Party or any Subsidiary of a Loan Party the Public Hub Company with any securities exchangeexchange or the SEC;
(e) [reserved];
if and when the Public Hub Company or any members of its Controlled Group is required to give notice to the PBGC of any “reportable event” (fas defined in Section 4043 of ERISA) within ninety (90) days after with respect to any Plan which would reasonably be expected to constitute grounds for a distress or PBGC-initiated termination of such Plan under Title IV of ERISA, or knows that the end plan administrator of each Fiscal Year any Plan has given or is required to give notice of the Borrowerany such reportable event, a copy of the Borrower’s operating budget and projections for the following year including consolidated projections notice of revenues, expenses and balance sheet on a quarter-by-quarter basis, with such operating budget and projections in reasonable detail prepared by Borrower and in form reasonably satisfactory reportable event given or required to be given to the Administrative Agent (which shall include a summary of all significant assumptions made in preparing such projections)PBGC;
(g) notice of any Change of Control;
(hf) promptly after knowledge thereof shall have come to the attention of any Responsible Officer responsible executive officer of any Loan PartyBorrower, written notice of (i) any threatened or pending litigation or governmental or arbitration proceeding or labor controversy against any Loan Party the Public Hub Company or any Subsidiary other member of a Loan Party or any of their Property the Hub Group which, if reasonably likely to be adversely determined, could reasonably be expected to have would materially and adversely affect the financial condition, Properties, business or operations of the Public Hub Company or the Hub Group taken as a Material Adverse Effectwhole, (ii) the occurrence of any Material Adverse Effect, Change of Control Event or (iii) the occurrence of any Default or (iv) any change in the information provided in the Beneficial Ownership Certification that would result in a change to the list Event of beneficial owners identified in of such certificationDefault hereunder;
(ig) on promptly upon the Closing Date filing thereof, written notice of the filing of any registration statements and any annual, quarterly or monthly reports which the Public Hub Company shall have filed with the SEC; and
(h) with each of the financial statements delivered furnished to the Administrative Agent and the Lenders pursuant to subsections (a) (other than the last Fiscal Quarter of each Fiscal Year) and (b) aboveof this Section, a compliance written certificate (“Compliance Certificate”) in substantially the same form attached hereto as Exhibit F (a “Compliance Certificate”) signed by a Financial Officer the chief executive officer, president, chief financial officer or controller of the Borrower Public Hub Company to the effect that to the best of such officer’s knowledge and belief no Default or Event of Default has occurred during the period covered by such statements or, if any such Default or Event of Default has occurred during such period, setting forth a description of such Default or Event of Default and specifying the action, if any, taken by the relevant Loan Party or its Subsidiary Public Hub Company to remedy the same. Such certificate shall also set forth the calculations supporting such statements in respect of Section 8.22 (Financial Covenants); and
(j) on the Closing Date and with each 8.15 of the financial statements this Agreement. Documents required to be delivered pursuant to subsections Section 8.4(a), (ab), (d) or (g) (other than to the last Fiscal Quarter of each Fiscal Yearextent any such documents are included in materials otherwise filed with the SEC) may be delivered electronically and (b) aboveif so delivered, a Borrowing Base Certificate showing the computation of the Borrowing Base Value, in reasonable detail as of the close of business shall be deemed to have been delivered on the last day of date (i) on which either (A) such Fiscal Quarter materials are publicly available as posted on the Electronic Data Gathering, Analysis and Retrieval system (▇▇▇▇▇) or Fiscal Year(B) the Public Hub Company posts such documents, as applicableor provides a link thereto on the Public Hub Company's website on the Internet at the website address ▇▇▇▇://▇▇▇.▇▇▇▇▇▇▇▇.▇▇▇; or (ii) on which such documents are posted on the Public Hub Company's behalf on an Internet or intranet website, prepared if any, to which each Lender and the Administrative Agent have access (whether a commercial, third-party website or whether sponsored by the Borrower and certified to by its chief financial officer or another officer of the Borrower reasonably acceptable to the Administrative Agent); and
provided that (kx) within a reasonable period upon request by the Administrative Agent, the Public Hub Company shall deliver paper copies of time following any such request therefor, from time documents to time, (i) such other information regarding the operations, business affairs and financial condition of any Loan Party or any Subsidiary of a Loan Party, or compliance with the terms of any Loan Document, as the Administrative Agent or any Lender may reasonably that requests the Public Hub Company to deliver such paper copies until a written request or (ii) information and documentation reasonably requested to cease delivering paper copies is given by the Administrative Agent or any such Lender for purposes of compliance with applicable “know your customer” requirements under and (y) the Patriot Act Public Hub Company shall notify the Administrative Agent and each Lender (by telecopy or other applicable Antie-Corruption Laws and the Beneficial Ownership Regulation. Notwithstanding the foregoing, the filing mail) of the Borrower’s financial statements with posting of any such documents and provide to the U.S. Securities and Exchange Commission on Form 10Administrative Agent by e-K or Form 10-Q shall satisfy the requirements mail electronic versions (i.e., soft copies) of Section 8.5(a)(i) and (b), respectivelysuch documents.
Appears in 1 contract
Sources: Credit Agreement (Hub Group, Inc.)
Financial Reports. The Loan Parties Holdings and the Borrower shall, and shall cause each of their Subsidiaries Borrower Subsidiary to, maintain proper books a standard system of records and accounts reasonably necessary to prepare financial statements required to be delivered pursuant to this Section 8.5 accounting in accordance with GAAP and shall furnish to the Administrative Agent, each Lender, and each of their duly authorized representatives such information respecting the business and financial condition of Holdings, the Borrower and each Borrower Subsidiary as the Administrative Agent or such Lender may reasonably request; and without any request, shall furnish to the Administrative Agent and each Lenderthe Lenders:
(a) as soon as available, and in any event no later than sixty (60) 30 days after the last day of each Fiscal Quarter calendar month, a listing of each Fiscal Year of all Sellers with the amount outstanding under the applicable Repurchase Agreement or Loan Receivable together with the Borrower's internal risk rating relating to such Sellers, a copy of (i) in each case prepared by the company-prepared consolidated balance sheets of Borrower and its Subsidiaries as of the last day end of such Fiscal Quarter and the consolidated statements of operations, changes in equity (deficit) and cash flows of Borrower for the Fiscal Quarter and for the Fiscal Year-to-date such period then ended, in reasonable detail and, if available, showing in comparative form the figures for the corresponding date and period in the previous Fiscal Year, prepared by the applicable party in accordance with GAAP (subject to the absence of footnote disclosures and year-end audit adjustments) and certified to by a Financial Officer its chief financial officer or another officer of the Borrower and (ii) operating statements, rent roll and accounts receivable aging for each Borrowing Base Propertyacceptable to the Administrative Agent;
(b) as soon as available, and in any event no later than one hundred twenty (120) 45 days after the last day of each Fiscal Year fiscal quarter of each fiscal year of the Borrower, a copy of the consolidated balance sheets sheet of the Borrower and the Borrower Subsidiaries as of the last day of such fiscal quarter and the consolidated statements of income of the Borrower and the Borrower Subsidiaries for the fiscal quarter and for the fiscal year‑to‑date period then ended, each in reasonable detail showing in comparative form the figures for the corresponding date and period in the previous fiscal year, prepared by the Borrower in accordance with GAAP (subject to the absence of footnote disclosures and year‑end audit adjustments) and certified to by its chief financial officer or another officer of the Borrower acceptable to the Administrative Agent;
(c) as soon as available, and in any event no later than 45 days after the last day of each fiscal quarter of each fiscal year of Holdings, a copy of the consolidated balance sheet of Holdings and its Subsidiaries as of the last day of such fiscal quarter and the consolidated statements of income, retained earnings, and cash flows of Holdings and its Subsidiaries for the fiscal quarter and for the fiscal year‑to‑date period then ended, each in reasonable detail showing in comparative form the figures for the corresponding date and period in the previous fiscal year, prepared by Holdings in accordance with GAAP (subject to the absence of footnote disclosures and year‑end audit adjustments) and certified to by its chief financial officer or another officer of Holdings acceptable to the Administrative Agent;
(d) as soon as available, and in any event no later than 90 days after the last day of each fiscal year of Holdings, a copy of the consolidated balance sheet of Holdings and its Subsidiaries as of the last day of the Fiscal Year fiscal year then ended and the consolidated statements of statements of operationsincome, comprehensive lossretained earnings, shareholders’ equity (deficit) and cash flows of Borrower Holdings and its Subsidiaries for the Fiscal Year fiscal year then ended, and accompanying notes thereto, each in reasonable detail and, if available, showing in comparative form the figures for the previous Fiscal Yearfiscal year, accompanied in the case of the consolidated financial statements by an unqualified opinion of BDO USA, P.C., or another a firm of independent public accountants of recognized national standing, selected by ▇▇▇▇▇▇▇▇ Holdings and reasonably satisfactory to the Administrative AgentAgent and the Required Lenders, to the effect that the consolidated financial statements have been prepared in accordance with GAAP and present fairly in accordance with GAAP the consolidated financial condition of Holdings and its Subsidiaries as of the close of such fiscal year and the results of their operations and cash flows for the fiscal year then ended and that an examination of such accounts in connection with such financial statements has been made in accordance with generally accepted auditing standards and, accordingly, such examination included such tests of the accounting records and such other auditing procedures as were considered necessary in the circumstances;
(ce) [reserved]promptly after receipt thereof, any additional written reports, management letters or other detailed information contained in writing concerning significant aspects of Holdings, the Borrower's or any Borrower Subsidiary's operations and financial affairs given to it by its independent public accountants;
(df) if requested by the Administrative Agent or any Lender, promptly after the sending or filing thereof, copies of each financial statement, report, notice or proxy statement sent by any Loan Party Holdings, the Borrower or any Borrower Subsidiary of a Loan Party to its stockholders or other equity holders, and copies of each regular, periodic or special report, registration statement or prospectus (including all Form 10‑K, Form 10‑Q and Form 8‑K reports) filed by Holdings, the Borrower or any Loan Party Borrower Subsidiary with any securities exchange or the Securities and Exchange Commission or any successor agency;
(g) promptly after receipt thereof, a copy of each audit made by any regulatory agency of the books and records of Holdings, the Borrower or any Subsidiary or of a Loan Party notice of any material noncompliance with any securities exchangeapplicable law, regulation or guideline relating to Holdings, the Borrower or any Borrower Subsidiary, or its business;
(eh) [reserved];
(f) within ninety (90) days after at the end of each Fiscal Year of Business Day during which any Obligations are outstanding hereunder, the BorrowerBorrower shall, a copy of the Borrower’s operating budget and projections for the following year including consolidated projections of revenuesshall cause its Affiliates, expenses and balance sheet on a quarter-by-quarter basis, with such operating budget and projections in reasonable detail prepared by Borrower and in form reasonably satisfactory to deliver to the Administrative Agent (which shall include a summary daily ▇▇▇▇-to-market reports of the Hedging Value of all significant assumptions made Hedging Agreements in preparing such projections)the Eligible Hedge Accounts;
(gi) notice of any Change of Control;
(hj) promptly after knowledge thereof shall have come to the attention of any Responsible Officer responsible officer of any Loan PartyHoldings, or the Borrower, written notice of (i) any threatened or pending litigation or governmental or arbitration proceeding or labor controversy against any Loan Party Holdings, the Borrower or any Borrower Subsidiary of a Loan Party or any of their Property which, if adversely determined, could reasonably be expected to have a Material Adverse Effect, ; (ii) the occurrence of any Material Adverse Effect, Default or Event of Default hereunder; or (iii) the occurrence of any Default event or (iv) the existence of any change in the information provided in the Beneficial Ownership Certification condition that would result in could reasonably be expected to have a change to the list of beneficial owners identified in of such certificationMaterial Adverse Effect;
(ik) promptly after any change or other modification of the Borrower's internal risk rating on any Seller, the Closing Date and Borrower shall deliver to the Administrative Agent notice of any such change or modification of the change in such Seller's internal risk rating; and
(l) with each of the financial statements delivered pursuant to subsections (a) (other than the last Fiscal Quarter of each Fiscal Year) and subsection (b) above, a compliance written certificate (“Compliance Certificate”) in the form attached hereto as Exhibit F D signed by a Financial Officer the chief financial officer of the Borrower or another officer of the Borrower acceptable to the Administrative Agent to the effect that to the best of such officer’s 's knowledge and belief no Default or Event of Default has occurred during the period covered by such statements or, if any such Default or Event of Default has occurred during such period, setting forth a description of such Default or Event of Default and specifying the action, if any, taken by Holdings, the relevant Loan Party Borrower or its any Borrower Subsidiary to remedy the same. Such certificate shall also set forth the calculations supporting such statements in respect of Section 8.22 (Financial Covenants); and
(j) on the Closing Date and with each of the financial statements delivered pursuant to subsections (a) (other than the last Fiscal Quarter of each Fiscal Year) and (b) above, a Borrowing Base Certificate showing the computation of the Borrowing Base Value, in reasonable detail as of the close of business on the last day of such Fiscal Quarter or Fiscal Year, as applicable, prepared by the Borrower and certified to by its chief financial officer or another officer of the Borrower reasonably acceptable to the Administrative Agent; and
(k) within a reasonable period of time following any such request therefor, from time to time, (i) such other information regarding the operations, business affairs and financial condition of any Loan Party or any Subsidiary of a Loan Party, or compliance with the terms of any Loan Document, as the Administrative Agent or any Lender may reasonably request or (ii) information and documentation reasonably requested by the Administrative Agent or any Lender for purposes of compliance with applicable “know your customer” requirements under the Patriot Act or other applicable Anti-Corruption Laws and the Beneficial Ownership Regulation. Notwithstanding the foregoing, the filing of the Borrower’s financial statements with the U.S. Securities and Exchange Commission on Form 10-K or Form 10-Q shall satisfy the requirements of Section 8.5(a)(i) and (b), respectivelyhereof.
Appears in 1 contract
Sources: Credit Agreement (Intl Fcstone Inc.)
Financial Reports. The Loan Parties shallParent will, and shall will cause each of their Subsidiaries Subsidiary to, maintain proper books a standard and modern system of records and accounts reasonably necessary to prepare financial statements required to be delivered pursuant to this Section 8.5 accounting in accordance with GAAP sound accounting practice and shall will furnish to the Lenders and their duly authorized representatives such information respecting the business and financial condition of the Parent and its Subsidiaries as any Lender (acting through the Administrative Agent Agent) may reasonably request; and each Lenderwithout any request, will furnish to the Lenders:
(a) as soon as available, and in any event no later than sixty (60) within 45 days after the last day close of each Fiscal Quarter of each Fiscal Year quarterly fiscal period of the BorrowerParent and the Company, a copy of (i) the company-prepared consolidated balance sheets sheets, statements of Borrower operations and statements of cash flow of the Parent and its Subsidiaries as and of the last day of Company and its Subsidiaries for such Fiscal Quarter and the consolidated statements of operations, changes in equity (deficit) and cash flows of Borrower for the Fiscal Quarter and for the Fiscal Year-to-date period then ended, in reasonable detail and, if available, showing in comparative form the figures for the corresponding date and period in the previous Fiscal Yearperiod, prepared by the applicable party on a consolidated basis in accordance with GAAP GAAP, and the notes thereto, all certified (subject to the absence of footnote disclosures and year-year end audit adjustmentsadjustments which are not expected to be material) by the chief financial officers of the Company and certified to by a Financial Officer of Borrower and (ii) operating statements, rent roll and accounts receivable aging for each Borrowing Base Propertythe Parent;
(b) as soon as available, and in any event no later than one hundred twenty (120) within 90 days after the last day close of each Fiscal Year fiscal year of the BorrowerCompany and the Parent, a copy of the audit report for such year and accompanying financial statements, including balance sheets, statements of operations and statements of cash flow on a consolidated balance sheets of Borrower basis for the Parent and its Subsidiaries as of the last day of the Fiscal Year then ended and the consolidated statements of statements of operations, comprehensive loss, shareholders’ equity (deficit) and cash flows of Borrower Company and its Subsidiaries for the Fiscal Year then endedin accordance with GAAP, and accompanying the notes thereto, each in reasonable detail and, if available, showing in comparative form the figures for the previous Fiscal Year, accompanied in the case of the consolidated financial statements certified without qualification by an unqualified opinion of BDO USA, P.C., or another firm of independent public accountants of recognized national standing, standing selected by ▇▇▇▇▇▇▇▇ the Parent and reasonably the Company and satisfactory to the Administrative AgentMajority Lenders (the "Auditors");
(c) [reserved];
(d) promptly after within the sending or filing thereof, copies of each financial statement, report, notice or proxy statement sent by any Loan Party or any Subsidiary of a Loan Party to its stockholders or other equity holders, and copies of each regular, periodic or special report, registration statement or prospectus filed by any Loan Party or any Subsidiary of a Loan Party with any securities exchange;
(e) [reserved];
(f) within ninety (90) days after the end of each Fiscal Year of the Borrower, a copy of the Borrower’s operating budget and projections for the following year including consolidated projections of revenues, expenses and balance sheet on a quarter-by-quarter basis, with such operating budget and projections in reasonable detail prepared by Borrower and in form reasonably satisfactory to the Administrative Agent (which shall include a summary of all significant assumptions made in preparing such projections);
(g) notice of any Change of Control;
(h) promptly after knowledge thereof shall have come to the attention of any Responsible Officer of any Loan Party, written notice of (i) any threatened or pending litigation or governmental or arbitration proceeding or labor controversy against any Loan Party or any Subsidiary of a Loan Party or any of their Property which, if adversely determined, could reasonably be expected to have a Material Adverse Effect, (ii) the occurrence of any Material Adverse Effect, (iii) the occurrence of any Default or (iv) any change in the information periods provided in the Beneficial Ownership Certification that would result in a change to the list of beneficial owners identified in of such certification;
(i) on the Closing Date and with each of the financial statements delivered pursuant to subsections paragraphs (a) (other than the last Fiscal Quarter of each Fiscal Year) and (b) above, a compliance certificate (“Compliance Certificate”) in the form attached hereto as Exhibit F signed by a Financial Officer of an authorized financial officer of the Borrower Company stating that such officer has reviewed the provisions of this Agreement and setting forth: (i) the information and computations (in sufficient detail) required to establish whether the effect that Company was in compliance with the requirements of Sections 7.08, 7.09, 7.10, 7.11, 7.12 and 7.13 hereof at the end of the period covered by the financial statements then being furnished, and (ii) to the best of such officer’s knowledge and belief no Default has occurred 's knowledge, whether there exists on the date of the certificate or existed at any time during the period covered by such financial statements orany Default or Event of Default and, if any such Default has occurred condition or event exists on the date of the certificate or existed during such period, setting forth a description of such Default and specifying the actionnature and period of existence thereof and the action the Company is taking, if anyhas taken or proposes to take with respect thereto;
(d) no later than the date provided to any lender under the Senior Credit Facility, taken by the relevant Loan Party or its Subsidiary to remedy the same. Such any certificate shall also set forth the calculations supporting such statements in respect of Section 8.22 compliance with the covenants in the Senior Credit Facility (Financial Covenants)including computations with respect thereto) or the existence of a default or event of default thereunder; and
(je) on within the Closing Date and with each of the financial statements delivered pursuant to subsections (a) (other than the last Fiscal Quarter of each Fiscal Year) and period provided in paragraph (b) above, a Borrowing Base Certificate showing business plan for the computation of Parent and its Subsidiaries for the Borrowing Base Valueensuing fiscal year and projections for the Parent and its Subsidiaries for the ensuing five fiscal years, all in reasonable detail as of the close of business on the last day of such Fiscal Quarter or Fiscal Year, as applicable, prepared by the Borrower and certified to by its chief financial officer or another officer of the Borrower reasonably acceptable to the Administrative Agent; and
(k) within a reasonable period of time following any such request therefor. The Parent will, from time to timeand will cause each Subsidiary to, (i) such other information regarding the operations, business affairs and financial condition permit representatives of any Loan Party or any Subsidiary of a Loan PartyLenders, or compliance with upon reasonable notice and during normal business hours, to examine and make extracts from the terms of any Loan Document, as the Administrative Agent or any Lender may reasonably request or (ii) information books and documentation reasonably requested by the Administrative Agent or any Lender for purposes of compliance with applicable “know your customer” requirements under the Patriot Act or other applicable Anti-Corruption Laws and the Beneficial Ownership Regulation. Notwithstanding the foregoing, the filing records of the Borrower’s financial statements with the U.S. Securities Parent and Exchange Commission on Form 10-K or Form 10-Q its Subsidiaries and to examine their assets and access thereto shall satisfy the requirements of Section 8.5(a)(i) and (b), respectivelybe permitted for such purpose.
Appears in 1 contract
Sources: Senior Subordinated Credit Agreement (Pro Fac Cooperative Inc)
Financial Reports. The Loan Parties Borrower shall, and shall cause Trade Street REIT and each of their Subsidiaries Subsidiary to, maintain proper books a standard system of records and accounts reasonably necessary to prepare financial statements required to be delivered pursuant to this Section 8.5 accounting in accordance with GAAP and shall furnish to the Administrative Agent Agent, each Lender and each Lenderof their duly authorized representatives such information respecting the business and financial condition of Trade Street REIT, the Borrower and each Subsidiary as the Administrative Agent or such Lender may reasonably request; and without any request, shall furnish to the Administrative Agent for distribution to the Lenders:
(a) as soon as available, and in any event no later than sixty ninety (6090) days after the last day each fiscal year of the Borrower, a copy of the consolidated and consolidating balance sheet of Trade Street REIT, the Borrower and its Subsidiaries as of the last day of the fiscal year then ended and the consolidated and consolidating statements of income, retained earnings, and cash flows of Trade Street REIT, the Borrower and its Subsidiaries for the fiscal year then ended, and accompanying notes thereto, each in reasonable detail showing in comparative form the figures for the previous fiscal year, accompanied by an unqualified opinion of independent public accountants of recognized national standing, selected by the Borrower and reasonably satisfactory to the Administrative Agent, to the effect that the consolidated financial statements have been prepared in accordance with GAAP and present fairly in accordance with GAAP the consolidated financial condition of Trade Street REIT, the Borrower and its Subsidiaries as of the close of such fiscal year and the results of their operations and cash flows for the fiscal year then ended and that an examination of such accounts in connection with such financial statements has been made in accordance with GAAP and, accordingly, such examination included such tests of the accounting records and such other auditing procedures as were considered necessary in the circumstances;
(b) within the period provided in subsection (a) above, the written statement of the accountants who certified the audit report thereby required that in the course of their audit they have obtained no knowledge of any Default or Event of Default, or, if such accountants have obtained knowledge of any such Default or Event of Default, they shall disclose in such statement the nature and period of the existence thereof;
(c) as soon as available, and in any event no later than forty-five (45) days after the last day of each Fiscal Quarter fiscal quarter of each Fiscal Year fiscal year of the Borrower, a copy of (i) the company-prepared consolidated and consolidating balance sheets sheet of the Borrower and its Subsidiaries as of the last day of such Fiscal Quarter fiscal quarter and the consolidated and consolidating statements of operationsincome, changes in equity (deficit) retained earnings, and cash flows of the Borrower and its Subsidiaries for the Fiscal Quarter fiscal quarter and for the Fiscal Yearfiscal year-to-date period then ended, each in reasonable detail and, if available, showing in comparative form the figures for the corresponding date and period in the previous Fiscal Yearfiscal year, prepared by the applicable party Borrower in accordance with GAAP (subject to the absence of footnote disclosures and year-end audit adjustments) and certified to by a Financial Officer its chief financial officer or another officer of the Borrower and (ii) operating statements, rent roll and accounts receivable aging for each Borrowing Base Propertyreasonably acceptable to the Administrative Agent;
(bd) as soon as available, and in any event no later than one hundred twenty within forty-five (12045) days after the last day of each Fiscal Year of the Borrower, a copy of the consolidated balance sheets of Borrower and its Subsidiaries as of Quarter (or ninety (90) days after the last day of each Fiscal Year) a Borrowing Base Certificate showing the Fiscal Year then ended and computation of the consolidated statements of statements of operations, comprehensive loss, shareholders’ equity (deficit) and cash flows of Borrower and its Subsidiaries for the Fiscal Year then ended, and accompanying notes thereto, each Borrowing Base in reasonable detail and, if available, showing in comparative form the figures for the previous Fiscal Year, accompanied in the case as of the consolidated close of business on the last day of such fiscal quarter, prepared by the Borrower and certified to by its chief financial statements by an unqualified opinion of BDO USA, P.C., officer or another firm officer of independent public accountants of recognized national standing, selected by ▇▇▇▇▇▇▇▇ and reasonably satisfactory the Borrower acceptable to the Administrative Agent;
(ce) [reserved]as soon as available, and in any event within forty-five (45) days after the last day of each Fiscal Quarter (or ninety (90) days after the last day of each Fiscal Year), a Compliance Certificate (“Compliance Certificate”) in the form attached hereto as Exhibit D signed by the chief financial officer of the Borrower or another officer of the Borrower reasonably acceptable to the Administrative Agent to the effect that to the best of such officer’s knowledge and belief no Default or Event of Default has occurred during the period covered by such statements or, if any such Default or Event of Default has occurred during such period, setting forth a description of such Default or Event of Default and specifying the action, if any, taken by Trade Street REIT, the Borrower or any Subsidiary to remedy the same. Such certificate shall also set forth the calculations supporting such statements in respect of Section 8.20 hereof;
(df) promptly after receipt thereof, any additional written reports, management letters or other detailed information contained in writing concerning significant aspects of Trade Street REIT’s, the Borrower’s or any Subsidiary’s operations and financial affairs given to it by its independent public accountants;
(g) promptly after the sending or filing thereof, copies of each financial statement, report, notice or proxy statement sent by any Loan Party the Borrower or any Subsidiary of a Loan Party to its stockholders or other equity holders, and upon written request from the Administrative Agent, copies of each regular, periodic or special report, registration statement or prospectus (including all Form 10-K, Form 10-Q and Form 8-K reports) filed by any Loan Party the Borrower or any Subsidiary of a Loan Party with any securities exchangeexchange or the Securities and Exchange Commission or any successor agency;
(eh) [reserved]promptly after receipt thereof, a copy of each audit made by any regulatory agency of the books and records of Trade Street REIT, the Borrower or any Subsidiary, if any, to the extent as may be disclosed as a matter of law, or of notice of any material noncompliance with any applicable law, regulation or guideline relating to Trade Street REIT, the Borrower or any Subsidiary, or its business;
(fi) as soon as available, and in any event within ninety sixty (9060) days after the end of each Fiscal Year fiscal year of the Borrower, a copy of the Borrower’s operating budget and projections for the following year including consolidated projections of revenues, expenses and balance sheet on a quarter-by-quarter basis, with such operating budget and projections in reasonable detail prepared by the Borrower and in form reasonably satisfactory to the Administrative Agent (which shall include a summary of all significant assumptions made in preparing such projectionsbudget);
(gj) notice of any Change of Control;
(hk) promptly after knowledge thereof shall have come to the attention of any Responsible Officer of any Loan Partythe Borrower, written notice of (i) any threatened (in writing) or pending litigation or governmental or arbitration proceeding or labor controversy against any Loan Party Trade Street REIT, the Borrower or any Subsidiary of a Loan Party or any of their Property which, if adversely determined, which could reasonably be expected to have a Material Adverse Effect, (ii) the occurrence of any matter which could reasonably be expected to have a Material Adverse Effect, Effect or (iii) the occurrence of any Default or (iv) any change in the information provided in the Beneficial Ownership Certification that would result in a change to the list Event of beneficial owners identified in of such certificationDefault hereunder;
(il) on the Closing Date as soon as available, and with each of the financial statements delivered pursuant to subsections in any event within forty-five (a45) (other than days after the last day of each Fiscal Quarter (or ninety (90) days after the last day of each Fiscal Year) and (b) above, a compliance certificate (“Compliance Certificate”) in the form attached hereto as Exhibit F signed by a Financial Officer list of the Borrower to the effect that to the best of such officer’s knowledge and belief no Default has occurred during the period covered by such statements or, if any such Default has occurred all newly formed or acquired Subsidiaries during such period, setting forth a description of quarter (such Default and specifying list shall contain the action, if any, taken by the relevant Loan Party or its Subsidiary information relative to remedy the same. Such certificate shall also such new Subsidiaries as set forth the calculations supporting such statements in respect of Section 8.22 (Financial CovenantsSchedule 6.2 hereto); and
(jm) on promptly after the Closing Date and with each request of the financial statements delivered pursuant to subsections (a) (other than the last Fiscal Quarter of each Fiscal Year) and (b) aboveany Lender, a Borrowing Base Certificate showing the computation of the Borrowing Base Value, in reasonable detail as of the close of business on the last day of such Fiscal Quarter or Fiscal Year, as applicable, prepared by the Borrower and certified to by its chief financial officer or another officer of the Borrower reasonably acceptable to the Administrative Agent; and
(k) within a reasonable period of time following any such request therefor, from time to time, (i) such other information regarding the operations, business affairs and financial condition of any Loan Party or any Subsidiary of a Loan Party, or compliance with the terms of any Loan Document, as the Administrative Agent or any Lender may reasonably request or (ii) information and documentation report reasonably requested by a Lender. provided, however, to the Administrative Agent or any Lender for purposes of compliance with applicable “know your customer” requirements under the Patriot Act or other applicable Anti-Corruption Laws and the Beneficial Ownership Regulation. Notwithstanding the foregoing, the filing of the Borrower’s financial statements extent such items set forth above are filed with the U.S. Securities and Exchange Commission on Form 10-K or Form 10-Q otherwise are publicly available, the Borrower shall satisfy be deemed to have satisfied this covenant upon such filing with the requirements Securities and Exchange Commission or once it provides notice to the Administrative Agent of Section 8.5(a)(i) and (b), respectivelysuch public availability.
Appears in 1 contract
Financial Reports. The Loan Related Parties shall, and shall cause each of their Subsidiaries to, maintain proper books of records and accounts reasonably necessary to prepare financial statements required to be delivered pursuant to this Section 8.5 in accordance with GAAP and shall furnish to Lender and its duly authorized representatives such information respecting the Administrative Agent business and each financial condition of the Related Parties as Lender may reasonably request, and without any request, the following financial statements and reports, in a form satisfactory to Lender:
(a) as As soon as available, and in any event no later than sixty (60) days after the last day of each Fiscal Quarter of each Fiscal Year of the Borrower, a copy of within:
(i) twenty (20) calendar days of the company-prepared consolidated balance sheets close of Borrower and its Subsidiaries each month, for the period ending as of the last day of the immediately preceding calendar month: (1) a Compliance Certificate in the form and substance of Exhibit C attached hereto; and (2) a report of all sales tax payments made by Borrowers for all consumer loans originating in such Fiscal Quarter month in form and substance reasonably acceptable to Lender; and
(ii) within five (5) calendar days of the close of each month for the period ending as of the last day of the immediately preceding calendar month, a Statement of Accounts Receivable showing the detailed aging of each Existing Receivable, and otherwise in a form acceptable to Lender in its sole discretion.
(b) On the second (2nd) Business Day of each calendar week, for the period ending as of the last Business Day of the immediately preceding calendar week, a Statement of Accounts Receivable showing the detailed aging of each Existing Receivable, and otherwise in a form acceptable to Lender in its sole discretion.
(c) As soon as available, and in any event within twenty (20) calendar days after the close of each month a copy of the consolidated and consolidating balance sheet of Carbiz Parent and its consolidated Subsidiaries as of the close of the preceding month, and the consolidated and consolidating statements of operationsincome, changes in equity (deficit) retained earnings and cash flows of Borrower Carbiz Parent and its consolidating Subsidiaries for the Fiscal Quarter and for the Fiscal Year-to-date period then endedpreceding month, each in reasonable detail and, if available, showing in comparative form the figures for the corresponding date and period in the previous Fiscal Yearfiscal year (to the extent available to compare), prepared by the applicable party in accordance with GAAP GAAP, consistently applied, provided that Lender hereby agrees to hold such financial statements as confidential in accordance with Lender’s customary procedures for handling confidential information, except that disclosure of such information may be made (subject i) to the absence of footnote disclosures its respective agents, employees, Subsidiaries, Affiliates, attorneys, auditors, professional consultants, rating agencies, insurance industry associations and year-end audit adjustments) and certified to by a Financial Officer of Borrower and portfolio management services, (ii) operating statementsto prospective transferees or purchasers of any interest in the Loans or commitments to lend hereunder in accordance with applicable securities laws, rent roll (iii) as required by law, subpoena, judicial order or similar order and accounts receivable aging in connection with any litigation, (iv) as may be required in connection with the examination, audit or similar investigation of a Related Party and (v) to a Person that is a trustee, investment advisor, collateral manager, servicer, noteholder or secured party in a securitization in connection with the administration, servicing and reporting on the assets serving as collateral for each Borrowing Base Property;such securitization.
(bd) as As soon as available, and in any event no later than one hundred twenty within ninety (12090) calendar days after the last day close of each Fiscal Year fiscal year of the BorrowerCarbiz Parent and its consolidating Subsidiaries, a copy of the consolidated and consolidating balance sheets of Borrower Carbiz Parent and its consolidating Subsidiaries as of the last day close of the Fiscal Year then ended such period and the consolidated and consolidating statements of statements of operationsincome, comprehensive loss, shareholders’ equity (deficit) retained earnings and cash flows of Borrower Carbiz Parent and its consolidating Subsidiaries for the Fiscal Year then endedsuch period, and accompanying notes all supporting schedules and footnotes thereto, each all in reasonable detail andreasonably satisfactory to Lender, if availableprepared in accordance with GAAP, showing in comparative form the figures for the previous Fiscal Year, accompanied in the case of the consolidated consistently applied. All such annual financial statements shall be audited by an unqualified opinion of BDO USACherry Bekaert & Holland, P.C.L.L.P., or another such other firm of independent public accountants of recognized national standing, selected by ▇▇▇▇▇▇▇▇ Carbiz Parent and reasonably satisfactory to the Administrative Agent;
(c) [reserved];
(d) promptly after the sending or filing thereofLender, copies of each financial statement, report, notice or proxy statement sent by any Loan Party or any Subsidiary of a Loan Party to its stockholders or other equity holdersin accordance with GAAP, and copies shall be accompanied by the written statement of each regularthe accountants who prepared the audited financial statements, periodic or special report, registration statement or prospectus filed by certifying whether such accountants have obtained knowledge of any Event of Default under the Loan Party or any Subsidiary of a Loan Party with any securities exchangeDocuments;
(e) [reserved]No later than the date on which they are provided to the Board of Directors of Carbiz Parent, all reports, budgets, financial information, financial statements, forecasts or other materials provided to the Board of Directors of Carbiz Parent;
(f) As soon as available, and in any event within ninety forty-five (9045) calendar days after the end of each Fiscal Year calendar year, financial statements of each Validity Guarantor as of the Borrowerclose of such period, a copy of the Borrower’s operating budget and projections for the following year including consolidated projections of revenues, expenses and balance sheet on a quarter-by-quarter basis, with such operating budget and projections in reasonable detail prepared by Borrower and personal financial statement shall be in form reasonably and detail satisfactory to the Administrative Agent (which shall include a summary of all significant assumptions made in preparing such projections)Lender;
(g) notice Promptly after receipt thereof, any additional written reports, management letters or other detailed information contained in writing concerning significant aspects of any Change Related Party’s or any of Controltheir subsidiary’s operations or concerning significant aspects of any Related Party’s or any of their subsidiary’s financial affairs, given to it by its independent public accountants;
(h) promptly Promptly after receipt thereof and in no event more than five (5) Business Days thereafter, a copy of each audit or other report made by any state or federal agency of the books and records or assets of any Related Party of their compliance or non-compliance with applicable laws relating to the underwriting, origination, servicing and/or collection of loans;
(i) Promptly (but never more than five (5) Business Days) after knowledge thereof shall have come to the attention of any Responsible Officer responsible officer of any Loan PartyBorrower, written notice of (i) any threatened or pending litigation or governmental or arbitration proceeding or labor controversy against any Loan Related Party or any Subsidiary of a Loan Party or any of their Property which, if adversely determined, could reasonably be expected to would have a Material Adverse Effectmaterial adverse effect on the business, operations or financial condition of any Related Party, or (ii) the occurrence of any Material Adverse Effect, (iii) the occurrence of any Default or (iv) any change in the information provided in the Beneficial Ownership Certification that would result in a change to the list Event of beneficial owners identified in of such certificationDefault hereunder;
(ij) on As soon as available, a copy of all federal and state tax returns filed by each Related Party during the Closing Date current fiscal year and with each fiscal year hereafter; and
(k) Timely, and in any event, within ten (10) calendar days of a request therefor from Lender, such other information (whether financial or otherwise), analyses or materials regarding any Related Party as Lender shall reasonably require. Each of the financial statements delivered furnished to Lender pursuant to subsections (a) (other than the last Fiscal Quarter of each Fiscal Yearc) and (bd) above, of this Section shall be accompanied by a compliance written certificate (“Compliance Certificate”) in the form attached hereto as Exhibit F signed by a the Chief Financial Officer or other authorized representative of the Borrower Borrowers, as the case may be, to the effect that to the best of such officerthe Chief Financial Officer’s or applicable authorized representative’s knowledge and belief no Default or Event of Default has occurred during the period covered by such statements or, if any such Default or Event of Default has occurred during such period, setting forth a description of such Default or Event of Default and specifying the action, if any, taken by the relevant Loan Party or its Subsidiary to remedy the same. Such certificate shall also set forth the calculations supporting such statements in respect of Section 8.22 (Financial Covenants); and
(j) on the Closing Date and with each of the financial statements delivered pursuant to subsections (a) (other than the last Fiscal Quarter of each Fiscal Year) and (b) above, a Borrowing Base Certificate showing the computation of the Borrowing Base Value, in reasonable detail as of the close of business on the last day of such Fiscal Quarter or Fiscal Year, as applicable, prepared by the Borrower and certified to by its chief financial officer or another officer of the Borrower reasonably acceptable to the Administrative Agent; and
(k) within a reasonable period of time following any such request therefor, from time to time, (i) such other information regarding the operations, business affairs and financial condition of any Loan Party or any Subsidiary of a Loan Party, or compliance with the terms of any Loan Document, as the Administrative Agent or any Lender may reasonably request or (ii) information and documentation reasonably requested by the Administrative Agent or any Lender for purposes of compliance with applicable “know your customer” requirements under the Patriot Act or other applicable Anti-Corruption Laws and the Beneficial Ownership Regulation. Notwithstanding the foregoing, the filing of the Borrower’s financial statements with the U.S. Securities and Exchange Commission on Form 10-K or Form 10-Q shall satisfy the requirements of Section 8.5(a)(i) and (b), respectively.
Appears in 1 contract
Financial Reports. The Loan Parties Borrower shall, and shall cause each of their Subsidiaries Subsidiary to, (x) maintain proper true and complete books of records record and accounts reasonably necessary to prepare financial statements required to be delivered pursuant to this Section 8.5 account, in which appropriate entries in conformity with GAAP in accordance with GAAP customary business practice shall be made, (y) furnish to the Administrative Agent such information respecting the business and shall financial condition of the Borrower and its Subsidiaries as the Administrative Agent may reasonably request and (z) without any request, furnish to the Administrative Agent and each Lenderthe Lenders:
(a) as soon as available, and in any event no later than sixty (60) 45 days after the last day of each Fiscal Quarter the first three fiscal quarters of each Fiscal Year fiscal year of the Borrower, a copy of (i) the company-prepared consolidated balance sheets sheet of the Borrower and its Subsidiaries as of the last day of such Fiscal Quarter fiscal quarter and the related consolidated statements of operationscomprehensive income (loss), changes in equity (deficit) and cash flows of the Borrower and its Subsidiaries for the Fiscal Quarter fiscal quarter and for the Fiscal Yearfiscal year-to-date period then ended, each in reasonable detail and, if available, showing in comparative form the figures for the corresponding date and period in the previous Fiscal Yearfiscal year, prepared by the applicable party Borrower in accordance with GAAP (subject to the absence of footnote disclosures and year-end audit adjustments) and certified to by a Financial Officer its chief financial officer or another officer of the Borrower and (ii) operating statements, rent roll and accounts receivable aging for each Borrowing Base Propertyacceptable to the Administrative Agent;
(b) as soon as available, and in any event no later than one hundred twenty (120) 90 days after the last day of each Fiscal Year fiscal year of the Borrower, a copy of the consolidated balance sheets sheet of the Borrower and its Subsidiaries as of the last day of the Fiscal Year fiscal year then ended and the related consolidated statements of statements of operationscomprehensive income (loss), comprehensive lossstockholders’ equity, shareholders’ equity (deficit) and cash flows of the Borrower and its Subsidiaries for the Fiscal Year fiscal year then ended, and accompanying notes thereto, each in reasonable detail and, if available, showing in comparative form the figures for the previous Fiscal Yearfiscal year, accompanied by an opinion (without a “going concern” qualification or exception or qualification as to the scope of the audit, other than a “going concern” statement that is due to the impending maturity of this Agreement or any other Debt or due to the anticipated occurrence of the Revolving Credit Termination Date (as defined in the case Revolving Credit Agreement), in each case, in the following 12 months) of the consolidated financial statements by an unqualified opinion of BDO USA, P.C., Ernst & Young LLP or another firm of independent public accountants of recognized national standing, selected by ▇▇▇▇▇▇▇▇ and reasonably satisfactory the Borrower, to the Administrative Agenteffect that the consolidated financial statements have been prepared in accordance with GAAP and present fairly in all material respects in accordance with GAAP the consolidated financial condition of the Borrower and its Subsidiaries as of the close of such fiscal year and the results of their operations and cash flows for the fiscal year then ended and that an examination of such accounts in connection with such financial statements has been made in accordance with generally accepted auditing standards and, accordingly, such examination included such tests of the accounting records and such other auditing procedures as were considered necessary in the circumstances;
(c) [reserved];
(d) promptly after the sending or filing thereof, copies of each financial statement, report, notice or proxy statement sent by any Loan Party or any Subsidiary of a Loan Party to its stockholders or other equity holders, and copies of each regular, periodic or special report, registration statement or prospectus filed by any Loan Party or any Subsidiary of a Loan Party with any securities exchange;
(e) [reserved];
(f) within ninety (90) days after the end of each Fiscal Year of the Borrower, a copy of the Borrower’s operating budget and projections for the following year including consolidated projections of revenues, expenses and balance sheet on a quarter-by-quarter basis, with such operating budget and projections in reasonable detail prepared by Borrower and in form reasonably satisfactory to the Administrative Agent (which shall include a summary of all significant assumptions made in preparing such projections);
(g) notice of any Change of Control;
(hd) promptly after knowledge thereof shall have come to of the attention of any Responsible Officer of any Loan PartyBorrower, written notice of (i) any threatened or pending litigation or governmental or arbitration proceeding or labor controversy against any Loan Party the Borrower or any Subsidiary of a Loan Party or any of their Property which, if adversely determined, could would reasonably be expected to have a Material Adverse Effect, Effect or (ii) the occurrence of any Material Adverse Effect, (iii) the occurrence of any Default or (iv) any change in the information provided in the Beneficial Ownership Certification that would result in a change to the list Event of beneficial owners identified in of such certification;Default hereunder; and
(ie) on the Closing Date and with each of the financial statements delivered pursuant to subsections (a) (other than the last Fiscal Quarter of each Fiscal Year) and (b) above, a compliance written certificate (“Compliance Certificate”) in the form attached hereto as Exhibit F E signed by a Financial Officer the chief financial officer of the Borrower or another officer of the Borrower acceptable to the Administrative Agent to the effect that to the best no Default or Event of such officer’s knowledge and belief no Default has occurred during the period covered by such statements or, if any such Default or Event of Default has occurred during such period, setting forth a description of such Default or Event of Default and specifying the action, if any, taken by the relevant Loan Party Borrower or its any Subsidiary to remedy the same. Such certificate shall also set forth the calculations supporting such statements in respect of Section 8.22 (Financial Covenants); and
(j) on 8.20 hereof. Delivery within the Closing Date and with each of the financial statements delivered pursuant to subsections period specified above in clauses (a) (other than the last Fiscal Quarter of each Fiscal Year) and (b) above, a Borrowing Base Certificate showing the computation of the Borrowing Base Value, in reasonable detail as of the close of business on the last day of such Fiscal Quarter or Fiscal Year, as applicable, prepared by the Borrower and certified to by its chief financial officer or another officer of the Borrower reasonably acceptable to the Administrative Agent; and
(k) within a reasonable period of time following any such request therefor, from time to time, (i) such other information regarding the operations, business affairs and financial condition of any Loan Party or any Subsidiary of a Loan Party, or compliance with the terms of any Loan Document, as the Administrative Agent or any Lender may reasonably request or (ii) information and documentation reasonably requested by the Administrative Agent or any Lender for purposes of compliance with applicable “know your customer” requirements under the Patriot Act or other applicable Anti-Corruption Laws and the Beneficial Ownership Regulation. Notwithstanding the foregoing, the filing of the Borrower’s financial statements quarterly report on Form 10-Q (with the U.S. Securities and Exchange Commission respect to clause (a)) or annual report on Form 10-K (with respect to clause (b)), in each case, prepared in compliance with the requirements therefor and filed with the Securities and Exchange Commission shall be deemed to have satisfied the requirements of clause (a) or (b) above, as applicable. The Borrower will be deemed to have made such delivery if it has timely made such Form 10-Q shall satisfy or 10-K, as applicable, available on “▇▇▇▇▇” and on its homepage on the requirements worldwide web (at the date of Section 8.5(a)(ithis Agreement located at ▇▇▇.▇▇▇▇▇▇▇.▇▇▇) and shall have given the Administrative Agent prior notice (b), respectively.which shall contain an electronic
Appears in 1 contract
Financial Reports. The Loan Parties Borrower shall, and shall cause each of their Subsidiaries Subsidiary to, maintain proper books a system of records and accounts reasonably necessary to prepare financial statements required to be delivered pursuant to this Section 8.5 accounting in accordance with GAAP and shall furnish to the Administrative Agent Agent, each Lender and each Lenderof their duly authorized representatives such information respecting the business and financial condition of the Borrower and each Subsidiary as the Administrative Agent or such Lender may reasonably request (it being understood that the Borrower and its Subsidiaries shall not be required to provide consolidating statements in respect of their operations); and without any request, shall furnish to the Administrative Agent for distribution to the Lenders:
(a) as soon as available, and in any event no later than sixty (60) within 25 days after the last day of each fiscal month, a Borrowing Base Certificate showing the computation of the Borrowing Base in reasonable detail as of the close of business on the last day of such month prepared by the Borrower and certified to by its chief financial officer, treasurer or another officer of the Borrower acceptable to the Administrative Agent.
(b) as soon as available, and in any event within 45 days after the close of each Fiscal Quarter of each Fiscal Year of the Borrower, a copy of (i) the company-prepared consolidated balance sheets sheet of the Borrower and its Subsidiaries as of the last day of such Fiscal Quarter and the consolidated statements of operationsincome, changes in equity (deficit) retained earnings, and cash flows of the Borrower and its Subsidiaries for the Fiscal Quarter and for the Fiscal Year-to-date period then ended, each in reasonable detail and, if available, showing in comparative form the figures for the corresponding date and period in the previous Fiscal Year, prepared by the applicable party Borrower in accordance with GAAP (subject to the absence of footnote disclosures and year-end audit adjustments) and certified to by a Financial Officer its chief financial officer, treasurer or another officer of the Borrower acceptable to the Administrative Agent; provided, however, that delivery in the time period specified above (or, if longer, the time period allowed by the Securities and (iiExchange Commission for the delivery of the Borrower’s Form 10-Q pursuant to one extension request, provided that in no event shall such time period exceed 65 days after the close of the applicable Fiscal Quarter of the Borrower) operating statements, rent roll of copies of the Borrower’s Quarterly Report on Form 10- Q prepared in compliance with the requirements therefor and accounts receivable aging for each Borrowing Base Propertyfiled with the Securities and Exchange Commission shall be deemed to satisfy the requirements of this Section 8.5(b);
(bc) as soon as available, and in any event no later than one hundred twenty (120) within 90 days after the last day close of each Fiscal Year of the Borrower, a copy of the consolidated balance sheets sheet of the Borrower and its Subsidiaries as of the last day of the Fiscal Year then ended and the consolidated statements of statements of operationsincome, comprehensive lossretained earnings, shareholders’ equity (deficit) and cash flows of the Borrower and its Subsidiaries for the Fiscal Year then ended, and accompanying notes thereto, each in reasonable detail and, if available, showing in comparative form the figures for the previous Fiscal Year, accompanied in the case of the consolidated financial statements by an unqualified opinion of BDO USADeloitte & Touche, P.C., L.L.P. or another firm of independent public accountants of recognized national standing, selected by ▇▇▇▇▇▇▇▇ the Borrower and reasonably satisfactory to the Administrative Agent;
Agent and the Required Lenders, to the effect that the consolidated financial statements have been prepared in accordance with GAAP and present fairly in accordance with GAAP the consolidated financial condition of the Borrower and its Subsidiaries as of the close of such Fiscal Year and the results of their operations and cash flows for the Fiscal Year then ended and that an examination of such accounts in connection with such financial statements has been made in accordance with generally accepted auditing standards and, accordingly, such examination included such tests of the accounting records and such other auditing procedures as were considered necessary in the circumstances; provided, however, that delivery in the time period specified above (cor, if longer, the time period allowed by the Securities and Exchange Commission for the delivery of the Borrower’s Form 10-K pursuant to one extension request, provided that in no event shall such time period exceed 110 days after the close of the applicable Fiscal Year of the Borrower) [reserved]of copies of the Borrower’s Annual Report on Form 10-K prepared in compliance with requirements therefor and filed with the Securities and Exchange Commission shall be deemed to satisfy the requirements of this Section 8.5(c);
(d) promptly after receipt thereof, any in writing delivered to the Borrower or any of its Subsidiaries from their independent public accountants which reports any material weaknesses;
(e) promptly after the sending or filing thereof, copies of each financial statement, report, notice or proxy statement sent by any Loan Party or any Subsidiary of a Loan Party the Borrower to its stockholders or other equity holders, and copies of each regular, periodic or special report, registration statement or prospectus (including, if not delivered pursuant to subsections (b) or (c) above, all Form 10-K, Form 10-Q and Form 8-K reports) filed by any Loan Party or any Subsidiary of a Loan Party the Borrower with any securities exchange;
(e) [reserved]exchange or the Securities and Exchange Commission or any successor agency;
(f) as soon as available, and in any event within ninety (90) 90 days after the end beginning of each Fiscal Year of the Borrower, a copy of the Borrower’s operating budget and consolidated financial projections for the following year including Fiscal Year, such consolidated financial projections of revenuesto show the Borrower’s projected income and expenses, expenses and balance sheet and cash flow statement on a quarter-by-quarter basis, with such operating budget and consolidated financial projections to be in reasonable detail prepared by the Borrower and in form similar to those delivered to the Lenders prior to the Closing Date, or otherwise reasonably satisfactory to the Administrative Agent (which shall include a summary of all significant assumptions made in preparing such consolidated financial projections);
(g) notice of any Change of Control;
(h) promptly after knowledge thereof shall have come to the attention of any Responsible Officer responsible officer of any Loan Partythe Borrower, written notice of (i) any threatened or pending litigation or governmental or arbitration proceeding or labor controversy against any Loan Party the Borrower or any Subsidiary of a Loan Party or any of their Property which, if adversely determined, could which may reasonably be expected to have a Material Adverse Effect, (ii) the occurrence Effect or of any Material Adverse Effect, (iii) the occurrence of any Default or (iv) any change in the information provided in the Beneficial Ownership Certification that would result in a change to the list Event of beneficial owners identified in of such certification;Default hereunder; and
(i) on the Closing Date and with each of the financial statements delivered furnished to the Lenders pursuant to subsections (a) (other than the last Fiscal Quarter of each Fiscal Yearb) and (bc) above, a compliance written certificate (“Compliance Certificate”) in the form attached hereto as Exhibit F signed by a Financial Officer the chief financial officer or treasurer of the Borrower or another officer of the Borrower acceptable to the Administrative Agent to the effect that to the best of such officerthe Borrower’s knowledge and belief no Default or Event of Default has occurred during the period covered by such statements or, if any such Default or Event of Default has occurred during such period, setting forth a description of such Default or Event of Default and specifying the action, if any, taken by the relevant Loan Party Borrower or its any Subsidiary to remedy the same. Such certificate shall also set forth the calculations supporting such statements in respect of Section 8.22 (Financial Covenants); and
(j) on the Closing Date and with each of the financial statements delivered pursuant to subsections (a) (other than the last Fiscal Quarter of each Fiscal Year) and (b) above, a Borrowing Base Certificate showing the computation of the Borrowing Base Value, in reasonable detail as of the close of business on the last day of such Fiscal Quarter or Fiscal Year, as applicable, prepared by the Borrower and certified to by its chief financial officer or another officer of the Borrower reasonably acceptable to the Administrative Agent; and
(k) within a reasonable period of time following any such request therefor, from time to time, (i) such other information regarding the operations, business affairs and financial condition of any Loan Party or any Subsidiary of a Loan Party, or compliance with the terms of any Loan Document, as the Administrative Agent or any Lender may reasonably request or (ii) information and documentation reasonably requested by the Administrative Agent or any Lender for purposes of compliance with applicable “know your customer” requirements under the Patriot Act or other applicable Anti-Corruption Laws and the Beneficial Ownership Regulation. Notwithstanding the foregoing, the filing of the Borrower’s financial statements with the U.S. Securities and Exchange Commission on Form 10-K or Form 10-Q shall satisfy the requirements of Section 8.5(a)(i) and (b), respectivelyhereof.
Appears in 1 contract
Financial Reports. The Loan Parties shall, and Borrower shall cause each maintain a standard system of their Subsidiaries to, maintain proper books of records and accounts reasonably necessary to prepare financial statements required to be delivered pursuant to this Section 8.5 accounting in accordance with good business practices, that reflects the application of GAAP and Borrower shall furnish to Lender the Administrative Agent and each Lenderfollowing:
(a) as soon as available, and in any event no later than sixty Within thirty (6030) days after the last day end of each Fiscal Quarter monthly period (or comparable fiscal accounting period of Borrower), monthly and year-to-date financial and operating statements for Borrower as of the end of the preceding month and profit and loss statements covering that period, certified by Borrower to be a true -21- and accurate representation of its operations and financial condition during that period and at its end.
(b) Not later than thirty-one (31) days after the end of each Fiscal Year of the Borrowerfiscal year, a copy of (i) the company-prepared consolidated balance sheets of Borrower and Borrower's monthly financial projections relating to its Subsidiaries as of the last day of such Fiscal Quarter and the consolidated statements of operations, changes in equity (deficit) and cash flows of Borrower business operations for the Fiscal Quarter new fiscal year and annual financial projections relating to the Borrower's business operations for the Fiscal Year-to-date new fiscal year, certified by Borrower to be representative of its projected operation and projected financial condition during the period then ended, in reasonable detail and, if available, showing in comparative form the figures for the corresponding date and period in the previous Fiscal Year, prepared by the applicable party in accordance with GAAP (subject to the absence of footnote disclosures and year-end audit adjustments) and certified to by a Financial Officer of Borrower and (ii) operating statements, rent roll and accounts receivable aging for each Borrowing Base Property;
(b) as soon as available, and in any event no later than one hundred twenty (120) days after the last day of each Fiscal Year of the Borrower, a copy of the consolidated balance sheets of Borrower and its Subsidiaries as of the last day of the Fiscal Year then ended and the consolidated statements of statements of operations, comprehensive loss, shareholders’ equity (deficit) and cash flows of Borrower and its Subsidiaries for the Fiscal Year then ended, and accompanying notes thereto, each in reasonable detail and, if available, showing in comparative form the figures for the previous Fiscal Year, accompanied in the case of the consolidated financial statements by an unqualified opinion of BDO USA, P.C., or another firm of independent public accountants of recognized national standing, selected by ▇▇▇▇▇▇▇▇ and reasonably satisfactory to the Administrative Agent;covered.
(c) [reserved];
(d) promptly after the sending or filing thereof, copies of each financial statement, report, notice or proxy statement sent by any Loan Party or any Subsidiary of a Loan Party to its stockholders or other equity holders, and copies of each regular, periodic or special report, registration statement or prospectus filed by any Loan Party or any Subsidiary of a Loan Party with any securities exchange;
(e) [reserved];
(f) within Within ninety (90) days after the end of each Fiscal Year fiscal year of Borrower, financial statements which accurately and completely reflect Borrower's assets, liabilities and net worth, as of the end of the fiscal year, together with profit and loss statements for the fiscal year, all prepared in accordance with GAAP together with an opinion thereon (which shall not be limited by reason of any limitation imposed by Borrower) of independent certified public accountants of national standing selected by Borrower and acceptable to Lender to the effect that such financial statements have been prepared in accordance with GAAP and that their examination of such accounts in connection with such financial statements has been made in accordance with generally accepted auditing standards and, accordingly, included such tests of the accounting records and such other auditing procedures as were considered necessary under the circumstances.
(d) With each statement submitted by Borrower under subparagraphs (a) and (c) above, a certificate signed by an Authorized Officer, in the form of Exhibit "A" attached hereto, stating that no Event of Default exists and no event has occurred and no condition exists that, after notice or passage of time, or both, would constitute an Event of Default.
(e) A statement of litigation matters involving Borrower that could cause any materially adverse effect upon the operations of the Borrower or in which the amount in controversy or exposure to the Borrower is in excess of a Material Amount, such statement to be furnished within fifteen (15) days after date of service of such litigation or the occurrence of any such change.
(f) Within thirty (30) days of each fiscal quarter of Borrower, a copy certificate signed by an Authorized Officer in the form of Exhibit "B" attached hereto (the Borrower’s operating budget and projections for the following year including consolidated projections of revenues, expenses and balance sheet on a quarter-by-quarter basis, with such operating budget and projections in reasonable detail prepared by Borrower and in form reasonably satisfactory to the Administrative Agent (which shall include a summary of all significant assumptions made in preparing such projections"Compliance Certificate");.
(g) notice of any Change of Control;
(h) promptly after knowledge thereof shall have come to the attention of any Responsible Officer of any Loan Party, written notice of (i) any threatened or pending litigation or governmental or arbitration proceeding or labor controversy against any Loan Party or any Subsidiary of a Loan Party or any of their Property which, if adversely determined, could reasonably be expected to have a Material Adverse Effect, (ii) the occurrence of any Material Adverse Effect, (iii) the occurrence of any Default or (iv) any change in the information provided in the Beneficial Ownership Certification that would result in a change to the list of beneficial owners identified in of such certification;
(i) on the Closing Date and with each of the financial statements delivered pursuant to subsections (a) (other than the last Fiscal Quarter of each Fiscal Year) and (b) above, a compliance certificate (“Compliance Certificate”) in the form attached hereto as Exhibit F signed by a Financial Officer of the Borrower to the effect that to the best of such officer’s knowledge and belief no Default has occurred during the period covered by such statements or, if any such Default has occurred during such period, setting forth a description of such Default and specifying the action, if any, taken by the relevant Loan Party or its Subsidiary to remedy the same. Such certificate shall also set forth the calculations supporting such statements in respect of Section 8.22 (Financial Covenants); and
(j) on the Closing Date and with each of the financial statements delivered pursuant to subsections (a) (other than the last Fiscal Quarter of each Fiscal Year) and (b) above, a Borrowing Base Certificate showing the computation of the Borrowing Base Value, in reasonable detail as of the close of business on the last day of such Fiscal Quarter or Fiscal Year, as applicable, prepared by the Borrower and certified to by its chief financial officer or another officer of the Borrower reasonably acceptable to the Administrative Agent; and
(k) within a reasonable period of time following any such request therefor, from time to time, (i) such other information regarding the operations, business affairs and financial condition of any Loan Party or any Subsidiary of a Loan Party, or compliance with the terms of any Loan Document, as the Administrative Agent or any Lender may reasonably request or (ii) information and documentation reasonably requested by the Administrative Agent or any Lender for purposes of compliance with applicable “know your customer” requirements under the Patriot Act or other applicable Anti-Corruption Laws and the Beneficial Ownership Regulation. Notwithstanding the foregoing, the filing of the Borrower’s financial statements with the U.S. Securities and Exchange Commission on Form 10-K or Form 10-Q shall satisfy the requirements of Section 8.5(a)(i) and (b), respectivelyrequest.
Appears in 1 contract
Financial Reports. The Loan Parties Borrower shall, and shall cause each of their Subsidiaries Subsidiary to, maintain proper books a standard system of records and accounts reasonably necessary to prepare financial statements required to be delivered pursuant to this Section 8.5 accounting in accordance with GAAP and shall furnish to the Administrative Agent, each Bank and each of their duly authorized representatives such information respecting the business and financial condition of the Borrower and each Subsidiary as the Agent or such Bank may reasonably request; and without any request, shall furnish to the Agent and each Lenderthe Banks:
(a) as soon as available, and in any event no later than sixty (60) within 30 days after the last day of each Fiscal Quarter calendar month (except with respect to January month-end financial statements in each year, in which case the financial statements required below shall be delivered within 45 days after the last day of each Fiscal Year of the BorrowerJanuary), a copy of (i) the company-prepared consolidated balance sheets sheet of Borrower and its Subsidiaries as of the last day of such Fiscal Quarter month and the consolidated statements of operationsincome, changes in equity (deficit) retained earnings and cash flows of the Borrower and its Subsidiaries for the Fiscal Quarter month and for the Fiscal Yearfiscal year-to-date period then ended, each in reasonable detail andshown in comparative form against the Borrower's business plan for such year, if prepared by the Borrower and certified to by the Borrower's chief financial officer, or another officer of the Borrower reasonably acceptable to the Agent;
(b) as soon as available, and in any event within 45 days after the close of each fiscal quarter of each fiscal year of the Borrower, a copy of the consolidated and consolidating balance sheet of the Borrower and its Subsidiaries as of the last day of such period and the consolidated and consolidating statements of income, retained earnings and cash flows of the Borrower and its Subsidiaries for the fiscal quarter and for the fiscal year-to-date period then ended, each in reasonable detail showing in comparative form the figures for the corresponding date and period in the previous Fiscal Yearfiscal year, prepared by the applicable party Borrower in accordance with GAAP (subject to the absence of footnote disclosures and year-end audit adjustments) and certified to by a Financial Officer the Borrower's chief financial officer, or another officer of the Borrower and (ii) operating statements, rent roll and accounts receivable aging for each Borrowing Base Propertyreasonably acceptable to the Agent;
(bc) as soon as available, and in any event no later than one hundred twenty (120) within 90 days after the last day close of each Fiscal Year fiscal year of the Borrower, a copy of the consolidated and consolidating balance sheets sheet of the Borrower and its Subsidiaries as of the last day of the Fiscal Year period then ended and the consolidated and consolidating statements of statements of operationsincome, comprehensive loss, shareholders’ equity (deficit) retained earnings and cash flows of the Borrower and its Subsidiaries for the Fiscal Year period then ended, and accompanying notes thereto, each in reasonable detail and, if available, showing in comparative form the figures for the previous Fiscal Yearfiscal year, accompanied in the case of by an unqualified opinion on the consolidated financial statements by an unqualified opinion of BDO USA, P.C., Ernst & Young (or its successors) or another firm of independent public accountants of recognized national standing, selected by ▇▇▇▇▇▇▇▇ the Borrower and reasonably satisfactory to the Administrative Agent;
(c) [reserved]Required Banks, to the effect that the consolidated financial statements have been prepared in accordance with GAAP and present fairly, in all material respects, in accordance with GAAP the consolidated financial condition of the Borrower and its Subsidiaries as of the close of such fiscal year and the results of their operations and cash flows for the fiscal year then ended and that an examination of such accounts in connection with such financial statements has been made in accordance with generally accepted auditing standards and, accordingly, such examination included such tests of the accounting records and such other auditing procedures as were considered necessary in the circumstances;
(d) promptly after the sending or filing thereof, copies of each financial statement, report, notice or proxy statement sent by any Loan Party the Borrower or any Subsidiary of a Loan Party to its stockholders or other equity holdersstockholders, and copies of each regular, periodic or special report, registration statement or prospectus (including all Form 10-K, Form 10-Q, and Form 8-K reports and proxy statements) filed by any Loan Party the Borrower or any Subsidiary of a Loan Party with any securities exchangeexchange or the Securities and Exchange Commission or any successor agency;
(e) [reserved]promptly after receipt thereof, a copy of each audit made by any regulatory agency of the books and records of the Borrower or any Subsidiary or of any notice of material noncompliance with any applicable law, regulation, or guideline relating to the Borrower or any Subsidiary or any of their respective businesses;
(f) as soon as available, and in any event within ninety (90) 75 days after the end of each Fiscal Year fiscal year of the Borrower, a copy of the Borrower’s operating budget 's consolidated and projections consolidating business plan for the following year including fiscal year, such business plan to show the Borrower's projected consolidated projections of and consolidating revenues, expenses expenses, and balance sheet on a quartermonth-by-quarter month basis, with such operating budget and projections business plan to be in reasonable detail prepared by the Borrower and in form reasonably satisfactory to the Administrative Agent (which shall include a summary of all significant assumptions made in preparing such projections)business plan;
(g) notice of any Change of Control;; and
(h) promptly after knowledge thereof shall have come to the attention of any Responsible Officer responsible officer of any Loan Partythe Borrower, written notice of (i) any threatened or pending litigation or governmental or arbitration proceeding or labor controversy against any Loan Party the Borrower or any other Subsidiary of a Loan Party or any of their Property which, if adversely determined, could is reasonably be expected likely to have a Material Adverse Effect, (ii) the occurrence Effect or of any Material Adverse Effect, (iii) the occurrence of any Default or (iv) any change in the information provided in the Beneficial Ownership Certification that would result in a change to the list Event of beneficial owners identified in of such certification;
(i) on the Closing Date and with each Default hereunder. Each of the financial statements delivered furnished to the Banks pursuant to subsections (a) (other than the last Fiscal Quarter of each Fiscal Yearb) and (bc) above, of this Section 8.5 shall be accompanied by a compliance written certificate (“Compliance Certificate”) in the form attached hereto as Exhibit F H signed by a Financial Officer the chief financial officer of the Borrower, or another officer of the Borrower reasonably acceptable to the Agent, to the effect that to the best of such officer’s 's knowledge and belief no Default or Event of Default has occurred during the period covered by such statements or, if any such Default or Event of Default has occurred during such period, setting forth a description of such Default or Event of Default and specifying the action, if any, taken by the relevant Loan Party Borrower or its any Subsidiary to remedy the same. Such certificate shall also set forth the calculations supporting such statements in respect of Section 8.22 (Financial Covenants); and
(j) on the Closing Date Sections 8.7, 8.8, 8.9, 8.10, 8.11 and with each 8.12 of the financial statements delivered pursuant to subsections (a) (other than the last Fiscal Quarter of each Fiscal Year) and (b) above, a Borrowing Base Certificate showing the computation of the Borrowing Base Value, in reasonable detail as of the close of business on the last day of such Fiscal Quarter or Fiscal Year, as applicable, prepared by the Borrower and certified to by its chief financial officer or another officer of the Borrower reasonably acceptable to the Administrative Agent; and
(k) within a reasonable period of time following any such request therefor, from time to time, (i) such other information regarding the operations, business affairs and financial condition of any Loan Party or any Subsidiary of a Loan Party, or compliance with the terms of any Loan Document, as the Administrative Agent or any Lender may reasonably request or (ii) information and documentation reasonably requested by the Administrative Agent or any Lender for purposes of compliance with applicable “know your customer” requirements under the Patriot Act or other applicable Anti-Corruption Laws and the Beneficial Ownership Regulation. Notwithstanding the foregoing, the filing of the Borrower’s financial statements with the U.S. Securities and Exchange Commission on Form 10-K or Form 10-Q shall satisfy the requirements of Section 8.5(a)(i) and (b), respectivelythis Agreement.
Appears in 1 contract
Financial Reports. The Loan Parties Borrower shall, and shall cause each of their Subsidiaries Subsidiary to, maintain proper books a standard system of records and accounts reasonably necessary to prepare financial statements required to be delivered pursuant to this Section 8.5 accounting in accordance with GAAP and shall furnish to the Administrative Agent Agent, each Lender, the L/C Issuer and each Lender:of their duly authorized representatives such information respecting the business and financial condition of the Borrower and each Subsidiary as the Administrative Agent or such Lender may reasonably request; and without any request, shall furnish to the Administrative Agent for distribution to the Lenders, and L/C Issuer:
(a) as soon as available, and in any event no later than sixty ninety (6090) days after the last day each fiscal year of the Borrower, a copy of the consolidated and consolidating balance sheet of the Borrower and its Subsidiaries as of the last day of the fiscal year then ended and the consolidated and consolidating statements of income, retained earnings, and cash flows of the Borrower and its Subsidiaries for the fiscal year then ended, and accompanying notes thereto, each in reasonable detail showing in comparative form the figures for the previous fiscal year, accompanied by an unqualified opinion of independent public accountants of recognized national standing, selected by the Borrower and reasonably satisfactory to the Administrative Agent, to the effect that the consolidated financial statements have been prepared in accordance with GAAP and present fairly in accordance with GAAP the consolidated financial condition of the Borrower and its Subsidiaries as of the close of such fiscal year and the results of their operations and cash flows for the fiscal year then ended and that an examination of such accounts in connection with such financial statements has been made in accordance with generally accepted auditing standards and, accordingly, such examination included such tests of the accounting records and such other auditing procedures as were considered necessary in the circumstances;
(b) within the period provided in subsection (a) above, the written statement of the accountants who certified the audit report thereby required that in the course of their audit they have obtained no knowledge of any Default or Event of Default, or, if such accountants have obtained knowledge of any such Default or Event of Default, they shall disclose in such statement the nature and period of the existence thereof;
(c) as soon as available, and in any event no later than forty-five (45) days after the last day of each Fiscal Quarter fiscal quarter of each Fiscal Year fiscal year of the Borrower, a copy of (i) the company-prepared consolidated and consolidating balance sheets sheet of the Borrower and its Subsidiaries as of the last day of such Fiscal Quarter fiscal quarter and the consolidated and consolidating statements of operationsincome, changes in equity (deficit) retained earnings, and cash flows of the Borrower and its Subsidiaries for the Fiscal Quarter fiscal quarter and for the Fiscal Yearfiscal year-to-date period then ended, each in reasonable detail and, if available, showing in comparative form the figures for the corresponding date and period in the previous Fiscal Yearfiscal year, prepared by the applicable party Borrower in accordance with GAAP (subject to the absence of footnote disclosures and year-end audit adjustments) and certified to by a Financial Officer its chief financial officer, chief accounting officer or another officer of the Borrower and (ii) operating statements, rent roll and accounts receivable aging for each Borrowing Base Property;reasonably acceptable to the Administrative Agent;
(bd) as soon as available, and in any event no later than one hundred twenty within forty-five (12045) days after the last day of each Fiscal Year of the Borrower, a copy of the consolidated balance sheets of Borrower and its Subsidiaries as of Quarter (or ninety (90) days after the last day of each Fiscal Year) a Borrowing Base Certificate showing the Fiscal Year then ended and computation of the consolidated statements of statements of operations, comprehensive loss, shareholders’ equity (deficit) and cash flows of Borrower and its Subsidiaries for the Fiscal Year then ended, and accompanying notes thereto, each Borrowing Base in reasonable detail and, if available, showing in comparative form the figures for the previous Fiscal Year, accompanied in the case as of the consolidated close of business on the last day of such fiscal quarter, prepared by the Borrower and certified to by its chief financial statements by an unqualified opinion of BDO USAofficer, P.C., chief accounting officer or another firm officer of independent public accountants of recognized national standing, selected by ▇▇▇▇▇▇▇▇ and reasonably satisfactory the Borrower acceptable to the Administrative Agent;
(e) with each of the financial statements delivered pursuant to subsections (a) and (b) above, a Compliance Certificate (“Compliance Certificate”) in the form attached hereto as Exhibit E signed by the chief financial officer, chief accounting officer or another officer of the Borrower reasonably acceptable to the Administrative Agent to the effect that to the best of such officer’s knowledge and belief no Default or Event of Default has occurred during the period covered by such statements or, if any such Default or Event of Default has occurred during such period, setting forth a description of such Default or Event of Default and specifying the action, if any, taken by the Borrower or any Subsidiary to remedy the same. Such certificate shall also set forth the calculations supporting such statements in respect of Section 8.20 hereof;
(f) promptly after receipt thereof, any additional written reports, management letters or other detailed information contained in writing concerning significant aspects of the Borrower’s or any Subsidiary’s operations and financial affairs given to it by its independent public accountants;
(c) [reserved];
(dg) promptly after the sending or filing thereof, copies of each financial statement, report, notice or proxy statement sent by any Loan Party the Borrower or any Subsidiary of a Loan Party to its stockholders or other equity holders, and upon written request from the Administrative Agent, copies of each regular, periodic or special report, registration statement or prospectus (including all Form 10-K, Form 10-Q and Form 8-K reports) filed by any Loan Party the Borrower or any Subsidiary of a Loan Party with any securities exchange;exchange or the Securities and Exchange Commission or any successor agency;
(eh) [reserved];
(f) within ninety (90) days promptly after the end of each Fiscal Year of the Borrowerreceipt thereof, a copy of each audit made by any regulatory agency of the Borrower’s operating budget books and projections for records of the following year including consolidated projections Borrower or any Subsidiary or of revenuesnotice of any material noncompliance with any applicable law, expenses and balance sheet on a quarter-by-quarter basis, with such operating budget and projections in reasonable detail prepared by Borrower and in form reasonably satisfactory regulation or guideline relating to the Administrative Agent (which shall include a summary of all significant assumptions made in preparing such projections);Borrower or any Subsidiary, or its business;
(gi) reserved;
(j) notice of any Change of Control;;
(hk) promptly after knowledge thereof shall have come to the attention of any Responsible Officer of any Loan Partythe Borrower, written notice of (i) any threatened (in writing) or pending litigation or governmental or arbitration proceeding or labor controversy against any Loan Party the Borrower or any Subsidiary of a Loan Party or any of their Property which, if adversely determined, or other assets which could reasonably be expected to have a Material Adverse Effect, (ii) the occurrence of any matter which could reasonably be expected to have a Material Adverse Effect, (iii) the occurrence of any Default or Event of Default hereunder or (iv) any change in the information provided in the Beneficial Ownership Certification that would result in a change to the list of beneficial owners identified in of such certification;
(il) on within forty-five (45) days of the Closing Date and with end of each of the financial statements delivered pursuant to subsections first three (a3) fiscal quarters and within ninety (other than 90) days after the close of the last Fiscal Quarter fiscal quarter of each Fiscal Yearthe year (i) a list of all newly formed or acquired Subsidiaries during such quarter (such list shall contain the information relative to such new Subsidiaries as set forth in Schedule 6.2 hereto); (ii) a list of newly executed Significant Leases during such quarter; (iii) a copy of any notice of a material default or any other material notice (including without limitation property condition reviews) received by the Borrower or any Guarantor from any ground lessor under a Significant Lease during such quarter and (biv) above, a compliance certificate schedule showing for such quarter
(“Compliance Certificate”A) any Significant Lease that was or is continuing to be in default with respect to monthly contractual rent payments in excess of sixty (60) days;
(m) promptly after knowledge thereof shall have come to the form attached hereto as Exhibit F signed by a Financial attention of any Responsible Officer of the Borrower Borrower, written notice to each Lender ifthe Administrative Agent if (i) amounts payable under a Significant Lease of any Eligible Property or portion thereof included in the effect that Borrowing Base Value is more than sixty (60) days past due, (ii) amounts payable under a Borrowing Base Mortgage Receivable is more than sixty (60) days past due, or (iii) any Borrowing Base Asset fails to the best of such officer’s knowledge and belief no Default has occurred during the period covered by such statements or, if any such Default has occurred during such period, setting forth a description of such Default and specifying the action, if any, taken by the relevant Loan Party or its Subsidiary to remedy the same. Such certificate shall also set forth the calculations supporting such statements in respect of Section 8.22 (Financial Covenants)qualify as an Eligible Asset; and
(jn) on promptly after the Closing Date and with each request of the financial statements delivered pursuant to subsections (a) (other than the last Fiscal Quarter of each Fiscal Year) and (b) aboveany Lender, a Borrowing Base Certificate showing the computation of the Borrowing Base Value, in reasonable detail as of the close of business on the last day of such Fiscal Quarter or Fiscal Year, as applicable, prepared by the Borrower and certified to by its chief financial officer or another officer of the Borrower reasonably acceptable to the Administrative Agent; and
(k) within a reasonable period of time following any such request therefor, from time to time, (i) such other information regarding the operations, business affairs and financial condition of any Loan Party or any Subsidiary of a Loan Party, or compliance with the terms of any Loan Document, as the Administrative Agent or any Lender may reasonably request or (ii) information and documentation report reasonably requested by a Lender. provided, however, to the Administrative Agent or any Lender for purposes of compliance with applicable “know your customer” requirements under the Patriot Act or other applicable Anti-Corruption Laws and the Beneficial Ownership Regulation. Notwithstanding the foregoing, the filing of the Borrower’s financial statements extent such items set forth above are filed with the U.S. Securities and Exchange Commission on Form 10-K or Form 10-Q otherwise are publicly available, the Borrower shall satisfy be deemed to have satisfied this covenant once it provides notice to the requirements Administrative Agent of Section 8.5(a)(i) and (b), respectivelysuch availability.
Appears in 1 contract
Sources: Second Amended and Restated Credit Agreement (CTO Realty Growth, Inc.)
Financial Reports. The Loan Parties Borrower shall, and shall cause each of their Subsidiaries Subsidiary to, maintain proper books a standard system of records and accounts reasonably necessary to prepare financial statements required to be delivered pursuant to this Section 8.5 accounting in accordance with GAAP and shall furnish to the Administrative Agent Agent, each Lender, the L/C Issuer and each Lenderof their duly authorized representatives such information respecting the business and financial condition of the Borrower and each Subsidiary as the Administrative Agent or such Lender may reasonably request; and without any request, shall furnish to the Administrative Agent for distribution to the Lenders, and L/C Issuer:
(a) as soon as available, and in any event no later than sixty ninety (6090) days after the last day each fiscal year of the Borrower, a copy of the consolidated and consolidating balance sheet of the Borrower and its Subsidiaries as of the last day of the fiscal year then ended and the consolidated and consolidating statements of income, retained earnings, and cash flows of the Borrower and its Subsidiaries for the fiscal year then ended, and accompanying notes thereto, each in reasonable detail showing in comparative form the figures for the previous fiscal year, accompanied by an unqualified opinion of independent public accountants of recognized national standing, selected by the Borrower and reasonably satisfactory to the Administrative Agent, to the effect that the consolidated financial statements have been prepared in accordance with GAAP and present fairly in accordance with GAAP the consolidated financial condition of the Borrower and its Subsidiaries as of the close of such fiscal year and the results of their operations and cash flows for the fiscal year then ended and that an examination of such accounts in connection with such financial statements has been made in accordance with generally accepted auditing standards and, accordingly, such examination included such tests of the accounting records and such other auditing procedures as were considered necessary in the circumstances;
(b) within the period provided in subsection (a) above, the written statement of the accountants who certified the audit report thereby required that in the course of their audit they have obtained no knowledge of any Default or Event of Default, or, if such accountants have obtained knowledge of any such Default or Event of Default, they shall disclose in such statement the nature and period of the existence thereof;
(c) as soon as available, and in any event no later than forty-five (45) days after the last day of each Fiscal Quarter fiscal quarter of each Fiscal Year fiscal year of the Borrower, a copy of (i) the company-prepared consolidated and consolidating balance sheets sheet of the Borrower and its Subsidiaries as of the last day of such Fiscal Quarter fiscal quarter and the consolidated and consolidating statements of operationsincome, changes in equity (deficit) retained earnings, and cash flows of the Borrower and its Subsidiaries for the Fiscal Quarter fiscal quarter and for the Fiscal Yearfiscal year-to-date period then ended, each in reasonable detail and, if available, showing in comparative form the figures for the corresponding date and period in the previous Fiscal Yearfiscal year, prepared by the applicable party Borrower in accordance with GAAP (subject to the absence of footnote disclosures and year-end audit adjustments) and certified to by a Financial Officer its chief financial officer, chief accounting officer or another officer of the Borrower and (ii) operating statements, rent roll and accounts receivable aging for each Borrowing Base Propertyreasonably acceptable to the Administrative Agent;
(bd) as soon as available, and in any event no later than one hundred twenty within forty-five (12045) days after the last day of each Fiscal Year of the Borrower, a copy of the consolidated balance sheets of Borrower and its Subsidiaries as of Quarter (or ninety (90) days after the last day of each Fiscal Year) a Borrowing Base Certificate showing the Fiscal Year then ended and computation of the consolidated statements of statements of operations, comprehensive loss, shareholders’ equity (deficit) and cash flows of Borrower and its Subsidiaries for the Fiscal Year then ended, and accompanying notes thereto, each Borrowing Base in reasonable detail and, if available, showing in comparative form the figures for the previous Fiscal Year, accompanied in the case as of the consolidated close of business on the last day of such fiscal quarter, prepared by the Borrower and certified to by its chief financial statements by an unqualified opinion of BDO USAofficer, P.C., chief accounting officer or another firm officer of independent public accountants of recognized national standing, selected by ▇▇▇▇▇▇▇▇ and reasonably satisfactory the Borrower acceptable to the Administrative Agent;
(ce) [reserved]with each of the financial statements delivered pursuant to subsections (a) and (b) above, a Compliance Certificate (“Compliance Certificate”) in the form attached hereto as Exhibit E signed by the chief financial officer of the Borrower, chief accounting officer or another officer of the Borrower reasonably acceptable to the Administrative Agent to the effect that to the best of such officer’s knowledge and belief no Default or Event of Default has occurred during the period covered by such statements or, if any such Default or Event of Default has occurred during such period, setting forth a description of such Default or Event of Default and specifying the action, if any, taken by the Borrower or any Subsidiary to remedy the same. Such certificate shall also set forth the calculations supporting such statements in respect of Section 8.20 hereof;
(df) promptly after receipt thereof, any additional written reports, management letters or other detailed information contained in writing concerning significant aspects of the Borrower’s or any Subsidiary’s operations and financial affairs given to it by its independent public accountants;
(g) promptly after the sending or filing thereof, copies of each financial statement, report, notice or proxy statement sent by any Loan Party the Borrower or any Subsidiary of a Loan Party to its stockholders or other equity holders, and upon written request from the Administrative Agent, copies of each regular, periodic or special report, registration statement or prospectus (including all Form 10-K, Form 10-Q and Form 8-K reports) filed by any Loan Party the Borrower or any Subsidiary of a Loan Party with any securities exchangeexchange or the Securities and Exchange Commission or any successor agency;
(eh) [reserved];
(f) within ninety (90) days promptly after the end of each Fiscal Year of the Borrowerreceipt thereof, a copy of each audit made by any regulatory agency of the Borrower’s operating budget books and projections for records of the following year including consolidated projections Borrower or any Subsidiary or of revenuesnotice of any material noncompliance with any applicable law, expenses and balance sheet on a quarter-by-quarter basis, with such operating budget and projections in reasonable detail prepared by Borrower and in form reasonably satisfactory regulation or guideline relating to the Administrative Agent (which shall include a summary of all significant assumptions made in preparing such projections)Borrower or any Subsidiary, or its business;
(gi) reserved;
(j) notice of any Change of Control;
(hk) promptly after knowledge thereof shall have come to the attention of any Responsible Officer of any Loan Partythe Borrower, written notice of (i) any threatened (in writing) or pending litigation or governmental or arbitration proceeding or labor controversy against any Loan Party the Borrower or any Subsidiary of a Loan Party or any of their Property which, if adversely determined, which could reasonably be expected to have a Material Adverse Effect, (ii) the occurrence of any matter which could reasonably be expected to have a Material Adverse EffectEffect or, (iii) the occurrence of any Default or Event of Default hereunder or (iv) any change in the information provided in the Beneficial Ownership Certification that would result in a change to the list of beneficial owners identified in of such certification;
(il) on within forty-five (45) days of the Closing Date and with end of each of the financial statements delivered pursuant to subsections first three (a3) fiscal quarters and within ninety (other than 90) days after the close of the last Fiscal Quarter fiscal quarter of each Fiscal Yearthe year (i) a list of all newly formed or acquired Subsidiaries during such quarter (such list shall contain the information relative to such new Subsidiaries as set forth in Schedule 6.2 hereto); (ii) a list of newly executed Significant Leases during such quarter; (iii) a copy of any notice of a material default or any other material notice (including without limitation property condition reviews) received by the Borrower or any Guarantor from any ground lessor under a Significant Lease during such quarter and (biv) above, a compliance certificate schedule showing for such quarter (“Compliance Certificate”A) any Significant Lease that was or is continuing to be in default with respect to monthly contractual rent payments in excess of sixty (60) days;
(m) promptly after knowledge thereof shall have come to the form attached hereto as Exhibit F signed by a Financial attention of any Responsible Officer of the Borrower Borrower, written notice to each Lender if amounts payable under a Significant Lease of any Eligible Property or portion thereof included in the effect that to the best of such officer’s knowledge and belief no Default has occurred during the period covered by such statements or, if any such Default has occurred during such period, setting forth a description of such Default and specifying the action, if any, taken by the relevant Loan Party or its Subsidiary to remedy the same. Such certificate shall also set forth the calculations supporting such statements in respect of Section 8.22 Borrowing Base Value is more than sixty (Financial Covenants)60) days past due; and
(jn) on promptly after the Closing Date and with each request of the financial statements delivered pursuant to subsections (a) (other than the last Fiscal Quarter of each Fiscal Year) and (b) aboveany Lender, a Borrowing Base Certificate showing the computation of the Borrowing Base Value, in reasonable detail as of the close of business on the last day of such Fiscal Quarter or Fiscal Year, as applicable, prepared by the Borrower and certified to by its chief financial officer or another officer of the Borrower reasonably acceptable to the Administrative Agent; and
(k) within a reasonable period of time following any such request therefor, from time to time, (i) such other information regarding the operations, business affairs and financial condition of any Loan Party or any Subsidiary of a Loan Party, or compliance with the terms of any Loan Document, as the Administrative Agent or any Lender may reasonably request or (ii) information and documentation report reasonably requested by a Lender. provided, however, to the Administrative Agent or any Lender for purposes of compliance with applicable “know your customer” requirements under the Patriot Act or other applicable Anti-Corruption Laws and the Beneficial Ownership Regulation. Notwithstanding the foregoing, the filing of the Borrower’s financial statements extent such items set forth above are filed with the U.S. Securities and Exchange Commission on Form 10-K or Form 10-Q otherwise are publicly available, the Borrower shall satisfy be deemed to have satisfied this covenant once it provides notice to the requirements Administrative Agent of Section 8.5(a)(i) and (b), respectivelysuch availability.
Appears in 1 contract
Financial Reports. The Loan Parties shall, and shall cause each of their Subsidiaries to, maintain proper books of records and accounts reasonably necessary to prepare financial statements required to be delivered pursuant to this Section 8.5 in accordance with GAAP and shall furnish to the Administrative Agent and each Lender:
(a) as soon as available, and in any event no later than sixty (60) days after the last day of each Fiscal Quarter of each Fiscal Year of the Borrower, a copy of (i) the company-prepared consolidated and consolidating balance sheets sheet of Borrower and its Subsidiaries as of the last day of such Fiscal Quarter and the consolidated and consolidating statements of operationsincome, changes in equity (deficit) retained earnings, and cash flows of Borrower for the Fiscal Quarter and for the Fiscal Year-to-date period then ended, in reasonable detail and, if available, showing in comparative form the figures for the corresponding date and period in the previous Fiscal Year, prepared by the applicable party in accordance with GAAP (subject to the absence of footnote disclosures and year-end audit adjustments) and certified to by a Financial Officer of Borrower and (ii) operating statements, rent roll and accounts receivable aging for each Borrowing Base Property;
(b) as soon as available, and in any event no later than one hundred twenty (120) days after the last day of each Fiscal Year of the Borrower, a copy of the consolidated and consolidating balance sheets sheet of Borrower and its Subsidiaries as of the last day of the Fiscal Year then ended and the consolidated and consolidating statements of statements of operationsincome, comprehensive lossretained earnings, shareholders’ equity (deficit) and cash flows of Borrower and its Subsidiaries for the Fiscal Year then ended, and accompanying notes thereto, each in reasonable detail and, if available, showing in comparative form the figures for the previous Fiscal Year, accompanied in the case of the consolidated financial statements by an unqualified opinion of RSM US LLP, BDO USA, P.C., or another firm of independent public accountants of recognized national standing, selected by ▇▇▇▇▇▇▇▇ and reasonably satisfactory to the Administrative Agent, to the effect that the consolidated financial statements have been prepared in accordance with GAAP and present fairly in accordance with GAAP the consolidated financial condition of Borrower and its Subsidiaries as of the close of such Fiscal Year and the results of their operations and cash flows for the Fiscal Year then ended and that an examination of such accounts in connection with such financial statements has been made in accordance with generally accepted auditing standards and, accordingly, such examination included such tests of the accounting records and such other auditing procedures as were considered necessary in the circumstances;
(c) [reserved]promptly after receipt thereof, any additional written reports, management letters or other detailed information contained in writing concerning significant aspects of any Loan Party’s or any of its Subsidiary’s operations and financial affairs given to it by its independent public accountants;
(d) promptly after the sending or filing thereof, copies of each financial statement, report, notice or proxy statement sent by any Loan Party or any Subsidiary of a Loan Party to its stockholders or other equity holders, and copies of each regular, periodic or special report, registration statement or prospectus (including the Annual Reports, Annual Information Forms, Management Proxy Circulars, Interim Financial Statements, and Material Change Reports) filed by any Loan Party or any Subsidiary of a Loan Party with any securities exchangeexchange or any successor agency;
(e) [reserved]promptly after receipt thereof, a copy of each audit made by any regulatory agency of the books and records of any Loan Party or any Subsidiary of a Loan Party or of notice of any material noncompliance with any applicable law, regulation or guideline relating to any Loan Party or any Subsidiary of a Loan Party or their respective business;
(f) within ninety (90) days after the end of each Fiscal Year of the Borrower, a copy of the Borrower’s operating budget and projections for the following year including consolidated projections of revenues, expenses and balance sheet on a quarter-by-quarter basis, with such operating budget and projections in reasonable detail prepared by Borrower and in form reasonably satisfactory to the Administrative Agent (which shall include a summary of all significant assumptions made in preparing such projections);
(g) notice of any Change of Control;
(h) promptly after knowledge thereof shall have come to the attention of any Responsible Officer of any Loan Party, written notice of (i) any threatened or pending litigation or governmental or arbitration proceeding or labor controversy against any Loan Party or any Subsidiary of a Loan Party or any of their Property which, if adversely determined, could reasonably be expected to have a Material Adverse Effect, (ii) the occurrence of any Material Adverse Effect, (iii) the occurrence of any Default or (iv) any change in the information provided in the Beneficial Ownership Certification that would result in a change to the list of beneficial owners identified in of such certification;
(i) on the Closing Date and with each of the financial statements delivered pursuant to subsections (a) (other than the last Fiscal Quarter of each Fiscal Year) and (b) above, a compliance certificate (“Compliance Certificate”) in the form attached hereto as Exhibit F signed by a Financial Officer of the Borrower to the effect that to the best of such officer’s knowledge and belief no Default has occurred during the period covered by such statements or, if any such Default has occurred during such period, setting forth a description of such Default and specifying the action, if any, taken by the relevant Loan Party or its Subsidiary to remedy the same. Such certificate shall also set forth the calculations supporting such statements in respect of Section 8.22 (Financial Covenants); and
(j) on the Closing Date and with each of the financial statements delivered pursuant to subsections (a) (other than the last Fiscal Quarter of each Fiscal Year) and (b) above, a Borrowing Base Certificate showing the computation of the Borrowing Base Value, in reasonable detail as of the close of business on the last day of such Fiscal Quarter or Fiscal Year, as applicable, prepared by the Borrower and certified to by its chief financial officer or another officer of the Borrower reasonably acceptable to the Administrative Agent; and
(k) within a reasonable period of time following any such request therefor, from time to time, (i) such other information regarding the operations, business affairs and financial condition of any Loan Party or any Subsidiary of a Loan Party, or compliance with the terms of any Loan Document, as the Administrative Agent or any Lender may reasonably request or (ii) information and documentation reasonably requested by the Administrative Agent or any Lender for purposes of compliance with applicable “know your customer” requirements under the Patriot Act or other applicable Anti-Corruption Laws and the Beneficial Ownership Regulation. Notwithstanding the foregoing, the filing of the Borrower’s financial statements with the U.S. Securities and Exchange Commission on Form 10-K or Form 10-Q shall satisfy the requirements of Section 8.5(a)(i) and (b), respectively.
Appears in 1 contract
Financial Reports. The Loan Parties Borrower shall, and shall cause each of their Subsidiaries Subsidiary to, maintain proper books a standard system of records and accounts reasonably necessary to prepare financial statements required to be delivered pursuant to this Section 8.5 accounting in accordance with GAAP and shall furnish to the Administrative Agent, each Lender and each of their duly authorized representatives such information respecting the business and financial condition of the Borrower and each Subsidiary as the Agent or such Lender may reasonably request; and without any request, shall furnish to the Agent and each Lenderthe Lenders:
(a) by no later than Tuesday of each week, a report summarizing Weekly Excess Cash Flow as of the last Business Day of the prior week (including a statement as to whether Weekly Excess Cash Flow was applied to the Bridge Loans or Revolving Loans, as the case may be, or invested pursuant to the terms of Section 8.29 hereof), in form and substance and with such detail reasonably required by the Agent, prepared by the Borrower and certified to by its chief financial officer, or another officer of the Borrower reasonably acceptable to the Agent;
(b) by no later than Tuesday of every other week (commencing November 21, 2000), a reconciliation of cash sources and uses from the prior two weeks and comparing the same to the Borrower's current operating budget, in form and substance and with such detail reasonably required by the Agent, prepared by the Borrower and certified to by its chief financial officer, or another officer of the Borrower reasonably acceptable to the Agent;
(c) as soon as available, and in any event no later than sixty (60) within 25 days after the last day of each Fiscal Quarter of each Fiscal Year of the Borrowercalendar month, a copy of (i) the company-prepared consolidated balance sheets sheet of the Borrower and its Subsidiaries as of the last day of such Fiscal Quarter month and the consolidated statements of operationsincome, changes in equity (deficit) retained earnings and cash flows of the Borrower and its Subsidiaries for the Fiscal Quarter month and for the Fiscal Yearfiscal year-to-date period then ended, together with a monthly balance sheet, income statement and statement of cash flows by each Borrower's business segments as of the last day of such month and an accounts receivable and accounts payable aging report as of the last day of such month, each in reasonable detail andshowing in the case of the balance sheet, if income statement, and statement of cash flows in comparative form the figures for the corresponding date and period in the previous fiscal year, prepared by the Borrower in accordance with GAAP and certified to by the Borrower's chief financial officer, or another officer of the Borrower reasonably acceptable to the Agent;
(d) as soon as available, and in any event within 45 days after the last day of each fiscal quarter, a copy of the consolidated and consolidating balance sheet of the Borrower and its Subsidiaries as of the last day of such fiscal quarter and the consolidated and consolidating statements of income, retained earnings and cash flows of the Borrower and its Subsidiaries for the fiscal quarter and for the fiscal year-to-date period then ended, each in reasonable detail showing in comparative form the figures for the corresponding date and period in the previous Fiscal Yearfiscal year, prepared by the applicable party Borrower in accordance with GAAP (subject to the absence of footnote disclosures and year-end audit adjustments) and certified to by a Financial Officer the Borrower's chief financial officer, or another officer of the Borrower and (ii) operating statements, rent roll and accounts receivable aging for each Borrowing Base Propertyreasonably acceptable to the Agent;
(be) as soon as available, and in any event no later than one hundred twenty (120) within 90 days after the last day close of each Fiscal Year fiscal year of the Borrower, a copy of the consolidated and consolidating balance sheets sheet of the Borrower and its Subsidiaries as of the last day of the Fiscal Year fiscal year then ended and the consolidated and consolidating statements of statements of operationsincome, comprehensive loss, shareholders’ equity (deficit) retained earnings and consolidated cash flows of the Borrower and its Subsidiaries for the Fiscal Year fiscal year then ended, and accompanying notes thereto, each in reasonable detail and, if available, showing in comparative form the figures for the previous Fiscal Yearfiscal year, accompanied in the case of by an unqualified opinion on the consolidated financial statements by an unqualified opinion of BDO USA, P.C., Ernst & Young LLP (or its successors) or another firm of independent public accountants of recognized national standing, selected by ▇▇▇▇▇▇▇▇ the Borrower and reasonably satisfactory to the Administrative AgentRequired Lenders, to the effect that the consolidated financial statements have been prepared in accordance with GAAP and present fairly, in all material respects, in accordance with GAAP the consolidated financial condition of the Borrower and its Subsidiaries as of the close of such fiscal year and the results of their operations and cash flows for the fiscal year then ended and that an examination of such accounts in connection with such financial statements has been made in accordance with generally accepted auditing standards and, accordingly, such examination included such tests of the accounting records and such other auditing procedures as were considered necessary in the circumstances;
(c) [reserved];
(df) promptly after the sending or filing thereof, copies of each financial statement, report, notice or proxy statement sent by any Loan Party the Borrower or any Subsidiary of a Loan Party to its stockholders or other equity holdersstockholders, and copies of each regular, periodic or special report, registration statement or prospectus (including all Form 10-K, Form 10-Q, and Form 8-K reports and proxy statements) filed by any Loan Party the Borrower or any Subsidiary of a Loan Party with any securities exchangeexchange or the Securities and Exchange Commission or any successor agency;
(eg) [reserved]promptly after receipt thereof, a copy of each audit made by any regulatory agency of the books and records of the Borrower or any Subsidiary or of any notice of material noncompliance with any applicable law, regulation, or guideline relating to the Borrower or any Subsidiary or any of their respective businesses;
(fh) as soon as available, and in any event within ninety (90) 75 days after the end of each Fiscal Year fiscal year of the Borrower, a copy of the Borrower’s 's consolidated and consolidating operating budget and projections for the following year including fiscal year, such operating budget to show the Borrower's projected consolidated projections of and consolidating revenues, expenses expenses, and balance sheet on a quartermonth-by-quarter month basis, with such operating budget and projections to be in reasonable detail prepared by the Borrower and in form reasonably satisfactory to the Administrative Agent (which shall include a summary of all significant assumptions made in preparing such projections)business plan;
(gi) notice of any Change of Control;; and
(hj) promptly after knowledge thereof shall have come to the attention of any Responsible Officer responsible officer of any Loan Partythe Borrower, written notice of (i) any threatened or pending litigation or governmental or arbitration proceeding or labor controversy against any Loan Party the Borrower or any Subsidiary of a Loan Party or any of their Property which, which if adversely determined, could individually or in the aggregate, is reasonably be expected likely to have a Material Adverse Effect, (ii) the occurrence Effect or of any Material Adverse Effect, (iii) the occurrence of any Default or (iv) any change in the information provided in the Beneficial Ownership Certification that would result in a change to the list Event of beneficial owners identified in of such certification;
(i) on the Closing Date and with each Default hereunder. Each of the financial statements delivered furnished to the Lenders pursuant to subsections (a) (other than the last Fiscal Quarter of each Fiscal Yeard) and (be) above, of this Section 8.5 shall be accompanied by a compliance written certificate (“Compliance Certificate”) in the form attached hereto as Exhibit F H signed by a Financial Officer the chief financial officer of the Borrower, or another officer of the Borrower reasonably acceptable to the Agent, to the effect that to the best of such officer’s 's knowledge and belief no Default or Event of Default has occurred during the period covered by such statements or, if any such Default or Event of Default has occurred during such period, setting forth a description of such Default or Event of Default and specifying the action, if any, taken by the relevant Loan Party Borrower or its any Subsidiary to remedy the same. Such On a quarterly basis, within 45 days after the last day of each fiscal quarter of the Borrower, such certificate shall also set forth the calculations supporting such statements in respect of Section 8.22 (Financial Covenants); and
(j) on the Closing Date Sections 8.25, 8.26, and with each 8.27 of the financial statements delivered pursuant to subsections (a) (other than the last Fiscal Quarter of each Fiscal Year) and (b) above, a Borrowing Base Certificate showing the computation of the Borrowing Base Value, in reasonable detail as of the close of business on the last day of such Fiscal Quarter or Fiscal Year, as applicable, prepared by the Borrower and certified to by its chief financial officer or another officer of the Borrower reasonably acceptable to the Administrative Agent; and
(k) within a reasonable period of time following any such request therefor, from time to time, (i) such other information regarding the operations, business affairs and financial condition of any Loan Party or any Subsidiary of a Loan Party, or compliance with the terms of any Loan Document, as the Administrative Agent or any Lender may reasonably request or (ii) information and documentation reasonably requested by the Administrative Agent or any Lender for purposes of compliance with applicable “know your customer” requirements under the Patriot Act or other applicable Anti-Corruption Laws and the Beneficial Ownership Regulation. Notwithstanding the foregoing, the filing of the Borrower’s financial statements with the U.S. Securities and Exchange Commission on Form 10-K or Form 10-Q shall satisfy the requirements of Section 8.5(a)(i) and (b), respectivelythis Agreement.
Appears in 1 contract
Financial Reports. The Loan Parties Borrower shall, and shall cause each of their Subsidiaries Subsidiary to, maintain proper books a standard system of records and accounts reasonably necessary to prepare financial statements required to be delivered pursuant to this Section 8.5 accounting in accordance with GAAP and shall furnish to the Administrative Agent, each Lender and each of their duly authorized representatives such information respecting the business and financial condition of the Borrower and each Subsidiary as the Administrative Agent or such Lender may reasonably request; and without any request, shall furnish to the Administrative Agent and each Lenderthe Lenders:
(a) as soon as available, and in any event no later than sixty (60) within 45 days after the last day close of each Fiscal Quarter of the first three fiscal quarters of each Fiscal Year fiscal year of the Borrower, a copy of (i) the company-prepared consolidated balance sheets sheet of the Borrower and its Subsidiaries as of the last day of such Fiscal Quarter fiscal quarter and the consolidated statements of operationsincome, changes in equity (deficit) retained earnings, and cash flows of the Borrower and its Subsidiaries for the Fiscal Quarter fiscal quarter and for the Fiscal Yearfiscal year-to-date period then ended, each in reasonable detail and, if available, showing in comparative form the figures for the corresponding date and period in the previous Fiscal Yearfiscal year, prepared by the applicable party Borrower in accordance with GAAP (subject to the absence of footnote disclosures and year-end audit adjustments) and certified to by a Financial Officer its chief financial officer or another officer of the Borrower and (ii) operating statements, rent roll and accounts receivable aging for each Borrowing Base Propertyreasonably acceptable to the Administrative Agent;
(b) as soon as available, and in any event no later than one hundred twenty (120) within 90 days after the last day close of each Fiscal Year fiscal year of the Borrower, a copy of the consolidated balance sheets sheet of the Borrower and its Subsidiaries as of the last day of the Fiscal Year fiscal year then ended and the consolidated statements of statements of operationsincome, comprehensive lossretained earnings, shareholders’ equity (deficit) and cash flows of the Borrower and its Subsidiaries for the Fiscal Year fiscal year then ended, and accompanying notes thereto, each in reasonable detail and, if available, showing in comparative form the figures for the previous Fiscal Yearfiscal year, accompanied in the case of the consolidated financial statements by an unqualified opinion of BDO USA, P.C., PricewaterhouseCoopers LLP or another firm of independent public accountants of recognized national standing, selected by ▇▇▇▇▇▇▇▇ the Borrower and reasonably satisfactory to the Administrative Agent;, to the effect that the consolidated financial statements have been prepared in accordance with GAAP and present fairly in accordance with GAAP the consolidated financial condition of the Borrower and its Subsidiaries as of the close of such fiscal year and the results of their operations and cash flows for the fiscal year then ended and that an examination of such accounts in connection with such financial statements has been made in accordance with generally accepted auditing standards and, accordingly, such examination included such tests of the accounting records and such other auditing procedures as were considered necessary in the circumstances; provided that such opinion may be limited in form, scope and substance to the extent required by applicable accounting rules or guidelines as in effect from time to time.
(c) [reserved]within the period provided in subsection (b) above, the written statement of the accountants who certified the audit report thereby required that in the course of their audit they have obtained no knowledge of any Default or Event of Default, or, if such accountants have obtained knowledge of any such Default or Event of Default, they shall disclose in such statement the nature and period of the existence thereof; provided that such written statement may be limited in form, scope and substance to the extent required by applicable accounting rules or guidelines as in effect from time to time;
(d) promptly after receipt thereof, any additional final written reports, management letters or other detailed information contained in writing concerning significant aspects of the Borrower’s or any Subsidiary’s operations and financial affairs given to it by its independent public accountants;
(e) promptly after the sending or filing thereof, copies of each financial statement, report, notice or proxy statement sent by any Loan Party the Borrower or any Subsidiary of a Loan Party to its stockholders or other equity holders, and copies of each regular, periodic or special report, registration statement or prospectus (including all Form 10-K, Form 10-Q and Form 8-K reports) filed by any Loan Party the Borrower or any Subsidiary of a Loan Party with any securities exchange;
(e) [reserved]exchange or the Securities and Exchange Commission or any successor agency;
(f) promptly after receipt thereof, a copy of each final audit made by any regulatory agency of the books and records of the Borrower or any Subsidiary or of notice of any material noncompliance with any applicable law, regulation or guideline relating to the Borrower or any Subsidiary, or its business;
(g) as soon as available, and in any event within ninety (90) 30 days after prior to the end of each Fiscal Year fiscal year of the Borrower, a copy of the Borrower’s operating budget and projections consolidated business plan for the following year including fiscal year, such business plan to show the Borrower’s projected consolidated projections of revenues, expenses and balance sheet on a quarter-by-quarter quarter/month-by-month basis, with such operating budget and projections business plan to be in reasonable detail prepared by the Borrower and in form reasonably satisfactory to the Administrative Agent (which shall include a summary of all significant assumptions made in preparing such projectionsbusiness plan);
(gh) notice of any Change of in Control;
(hi) promptly after knowledge Knowledge thereof shall have come to the attention of any Responsible Authorized Officer of any Loan Partythe Borrower, written notice of (i) any threatened or pending litigation or governmental or arbitration proceeding or labor controversy against any Loan Party the Borrower or any Subsidiary of a Loan Party or any of their Property which, if adversely determined, could reasonably be expected to have a Material Adverse Effect, (ii) the occurrence Effect or of any Material Adverse Effect, (iii) the occurrence of any Default or (iv) any change in the information provided in the Beneficial Ownership Certification that would result in a change to the list Event of beneficial owners identified in of such certification;Default hereunder; and
(ij) on the Closing Date and with each of the financial statements delivered furnished to the Lenders pursuant to subsections (a) (other than the last Fiscal Quarter of each Fiscal Year) and (b) above, a compliance written certificate (“Compliance Certificate”) in the form attached hereto as Exhibit F signed by a Financial Officer the chief financial officer of the Borrower or another officer of the Borrower reasonably acceptable to the Administrative Agent to the effect that to the best of such officer’s knowledge Knowledge and belief no Default or Event of Default has occurred during the period covered by such statements or, if any such Default or Event of Default has occurred during such period, setting forth a description of such Default or Event of Default and specifying the action, if any, taken by the relevant Loan Party Borrower or its any Subsidiary to remedy the same. Such certificate shall also set forth the calculations supporting such statements in respect of Section 8.22 (Financial Covenants); and
(j) on the Closing Date Sections 8.22, 8.23, 8.24 and with each of the financial statements delivered pursuant to subsections (a) (other than the last Fiscal Quarter of each Fiscal Year) and (b) above, a Borrowing Base Certificate showing the computation of the Borrowing Base Value, in reasonable detail as of the close of business on the last day of such Fiscal Quarter or Fiscal Year, as applicable, prepared by the Borrower and certified to by its chief financial officer or another officer of the Borrower reasonably acceptable to the Administrative Agent; and
(k) within a reasonable period of time following any such request therefor, from time to time, (i) such other information regarding the operations, business affairs and financial condition of any Loan Party or any Subsidiary of a Loan Party, or compliance with the terms of any Loan Document, as the Administrative Agent or any Lender may reasonably request or (ii) information and documentation reasonably requested by the Administrative Agent or any Lender for purposes of compliance with applicable “know your customer” requirements under the Patriot Act or other applicable Anti-Corruption Laws and the Beneficial Ownership Regulation. Notwithstanding the foregoing, the filing of the Borrower’s financial statements with the U.S. Securities and Exchange Commission on Form 10-K or Form 10-Q shall satisfy the requirements of Section 8.5(a)(i) and (b), respectively8.25 hereof.
Appears in 1 contract
Sources: Credit Agreement (CTS Corp)
Financial Reports. The Loan Parties shallEquityholder shall furnish, and shall or cause each of their Subsidiaries to, maintain proper books of records and accounts reasonably necessary to prepare financial statements required to be delivered pursuant to this Section 8.5 in accordance with GAAP and shall furnish furnished, to the Administrative Agent and each LenderFacility Agent:
(ai) as soon as available, available and in any event no later than sixty (60) days after the last day of each Fiscal Quarter of each Fiscal Year of the Borrower, a copy of (i) the company-prepared consolidated balance sheets of Borrower and its Subsidiaries as of the last day of such Fiscal Quarter and the consolidated statements of operations, changes in equity (deficit) and cash flows of Borrower for the Fiscal Quarter and for the Fiscal Year-to-date period then ended, in reasonable detail and, if available, showing in comparative form the figures for the corresponding date and period in the previous Fiscal Year, prepared by the applicable party in accordance with GAAP (subject to the absence of footnote disclosures and year-end audit adjustments) and certified to by a Financial Officer of Borrower and (ii) operating statements, rent roll and accounts receivable aging for each Borrowing Base Property;
(b) as soon as available, and in any event no later than one hundred twenty (120) days after the last day of each Fiscal Year of the Borrower, a copy of the consolidated balance sheets of Borrower and its Subsidiaries as of the last day of the Fiscal Year then ended and the consolidated statements of statements of operations, comprehensive loss, shareholders’ equity (deficit) and cash flows of Borrower and its Subsidiaries for the Fiscal Year then ended, and accompanying notes thereto, each in reasonable detail and, if available, showing in comparative form the figures for the previous Fiscal Year, accompanied in the case of the consolidated financial statements by an unqualified opinion of BDO USA, P.C., or another firm of independent public accountants of recognized national standing, selected by ▇▇▇▇▇▇▇▇ and reasonably satisfactory to the Administrative Agent;
(c) [reserved];
(d) promptly after the sending or filing thereof, copies of each financial statement, report, notice or proxy statement sent by any Loan Party or any Subsidiary of a Loan Party to its stockholders or other equity holders, and copies of each regular, periodic or special report, registration statement or prospectus filed by any Loan Party or any Subsidiary of a Loan Party with any securities exchange;
(e) [reserved];
(f) within ninety (90) 120 days after the end of each Fiscal Year of the Borrowerfiscal year, a copy of the Borrower’s operating budget and projections audited consolidated financial statements for the following prior year for the Equityholder and its consolidated Subsidiaries, including the prior comparable period (if any) from the preceding fiscal year and certified by Independent Accountants (the report of which shall be unqualified), together with consolidating financial statements for the Equityholder certified by an Executive Officer of the Equityholder with appropriate knowledge stating that the information set forth therein fairly presents the financial condition of the Equityholder and its consolidated projections Subsidiaries as of revenues, expenses and balance sheet on a quarter-by-quarter basisfor such fiscal year, with all such operating budget financial statements being prepared in accordance with GAAP applied consistently throughout the period involved (except for changes in the application of GAAP approved by such accountants in accordance with GAAP and projections in reasonable detail prepared by Borrower and in form reasonably satisfactory to the Administrative Agent (which shall include a summary of all significant assumptions made in preparing such projectionsdisclosed therein);; and
(g) notice of any Change of Control;
(h) promptly after knowledge thereof shall have come to the attention of any Responsible Officer of any Loan Party, written notice of (i) any threatened or pending litigation or governmental or arbitration proceeding or labor controversy against any Loan Party or any Subsidiary of a Loan Party or any of their Property which, if adversely determined, could reasonably be expected to have a Material Adverse Effect, (ii) as soon as available and in any event within 45 days after the occurrence end of any Material Adverse Effect, (iii) the occurrence each fiscal quarter of any Default or (iv) any change in the information provided in the Beneficial Ownership Certification that would result in a change to the list of beneficial owners identified in of such certification;
(i) on the Closing Date and with each of the financial statements delivered pursuant to subsections (a) fiscal year (other than the last Fiscal Quarter fiscal quarter of each Fiscal Year) fiscal year), an unaudited consolidated and consolidating balance sheet of the Equityholder and its consolidated Subsidiaries as of the end of such fiscal quarter and including the prior comparable period (b) aboveif any), a compliance certificate (“Compliance Certificate”) in and the form attached hereto as Exhibit F signed unaudited consolidated and consolidating statements of income of the Equityholder and its consolidated Subsidiaries for such fiscal quarter and for the period commencing at the end of the previous fiscal year and ending with the end of such fiscal quarter, certified by a Financial an Executive Officer of the Borrower Equityholder identifying such documents as being the documents described in this paragraph (ii) and stating that the information set forth therein fairly presents the financial condition of the Equityholder and its consolidated Subsidiaries as of and for the periods then ended, subject to year-end adjustments and confirming that the effect that to Equityholder is in compliance with all financial covenants in the best of such officer’s knowledge and belief no Default has occurred during the period covered by such statements Transaction Documents (or, if any such Default has occurred during such periodthe Equityholder is not in compliance, setting forth a description of such Default and specifying the action, if any, taken by the relevant Loan Party or its Subsidiary to remedy the same. Such certificate shall also set forth the calculations supporting such statements in respect of Section 8.22 (Financial Covenantsnature and status thereof); and
(j) on the Closing Date and with each of the financial statements delivered pursuant to subsections (a) (other than the last Fiscal Quarter of each Fiscal Year) and (b) above, a Borrowing Base Certificate showing the computation of the Borrowing Base Value, in reasonable detail as of the close of business on the last day of such Fiscal Quarter or Fiscal Year, as applicable, prepared by the Borrower and certified to by its chief financial officer or another officer of the Borrower reasonably acceptable to the Administrative Agent; and
(k) within a reasonable period of time following any such request therefor, from time to time, (i) such other information regarding the operations, business affairs and financial condition of any Loan Party or any Subsidiary of a Loan Party, or compliance with the terms of any Loan Document, as the Administrative Agent or any Lender may reasonably request or (ii) information and documentation reasonably requested by the Administrative Agent or any Lender for purposes of compliance with applicable “know your customer” requirements under the Patriot Act or other applicable Anti-Corruption Laws and the Beneficial Ownership Regulation. Notwithstanding the foregoing, the filing of the Borrower’s financial statements with the U.S. Securities and Exchange Commission on Form 10-K or Form 10-Q shall satisfy the requirements of Section 8.5(a)(i) and (b), respectively.
Appears in 1 contract
Sources: Loan Financing and Servicing Agreement (Silver Point Specialty Lending Fund)
Financial Reports. The Each Loan Parties Party shall, and shall cause each of their its Subsidiaries to, maintain proper books of records and accounts reasonably necessary to prepare financial statements required to be delivered pursuant to this Section 8.5 in accordance with GAAP in all material respects and shall furnish to the Administrative Agent and each LenderAgent:
(a) as soon as available, and in any event no later than sixty (60x) forty-five (45) days after the last day of each Fiscal Quarter of the first three fiscal quarters of each Fiscal Year fiscal year of the Borrower and (y) thirty (30) days after the last day of each calendar month not coinciding with the end of fiscal quarter of the Borrower, a copy of (i) the company-prepared consolidated and consolidating balance sheets sheet of Borrower the Loan Parties and its their Subsidiaries as of the last day of such Fiscal Quarter fiscal quarter or such month, as applicable, and the consolidated and consolidating statements of operationsincome, changes in equity (deficit) retained earnings, and cash flows of Borrower the Loan Parties and their Subsidiaries for the Fiscal Quarter fiscal quarter or month, as applicable, and for the Fiscal Yearfiscal year-to-date period then ended, each in reasonable detail and, if available, showing in comparative form the figures for the corresponding date and period in the previous Fiscal Yearfiscal year, prepared by the applicable party Borrower in accordance with GAAP in all material respects (subject to the absence of footnote disclosures and year-end audit adjustments) and certified to by a Financial Officer of the Borrower; provided, however, that the Borrower may satisfy the requirement to deliver financial statements pursuant to clause (y) above by delivering to the Administrative Agent a copy of the Borrower’s internally prepared ODBC file covering the Loan Parties and their Subsidiaries for such month, which file need not be prepared in accordance with GAAP, but which file shall, in any event, be prepared consistent with the Borrower’s past practice and contain all the financial statements required by clause (iiy) operating statements, rent roll above other than a statement of cash flows (or otherwise be in form and accounts receivable aging for each Borrowing Base Propertysubstance satisfactory to the Administrative Agent);
(b) as soon as available, and in any event no later than one hundred twenty ninety (12090) days after the last day of each Fiscal Year fiscal year of the Borrower, Borrower ending thereafter (i) a copy of the consolidated and consolidating balance sheets sheet of Borrower the Loan Parties and its their Subsidiaries as of the last day of the Fiscal Year fiscal year then ended and the consolidated and consolidating statements of statements of operationsincome, comprehensive lossretained earnings, shareholders’ equity (deficit) and cash flows of Borrower the Loan Parties and its their Subsidiaries for the Fiscal Year fiscal year then ended, and accompanying notes thereto, together with a reconciliation of such financial statements showing only the balance sheet and the related consolidated and consolidating statements of income, retained earnings and cash flows for the Loan Parties and their Subsidiaries, each in reasonable detail and, if available, showing in comparative form the figures for the previous Fiscal Yearfiscal year, accompanied in the case of the consolidated financial statements by an unqualified opinion of BDO USA, P.C., or another a firm of independent public accountants of recognized national standing, selected by ▇▇▇▇▇▇▇▇ the Borrower and reasonably satisfactory to the Administrative Agent, to the effect that the consolidated financial statements have been prepared in accordance with GAAP in all material respects and present fairly in accordance with GAAP in all material respects the consolidated financial condition of the Loan Parties and their Subsidiaries as of the close of such fiscal year and the results of their operations and cash flows for the fiscal year then ended and (ii) a copy of the Borrower’s internally prepared ODBC file covering the Loan Parties and their Subsidiaries for such fiscal year, which file need not be prepared in accordance with GAAP, but which file shall, in any event, be prepared consistent with the Borrower’s past practice and contain all the financial statements required by this Section 8.22(b) other than a statement of cash flows (or otherwise be in form and substance satisfactory to the Administrative Agent);
(c) [reserved]with each of the quarterly financial statements delivered pursuant to subsection (a) above and each of the annual financial statements delivered pursuant to subsection (b) above, a written certificate in the form attached hereto as Exhibit F signed by a Financial Officer of the Borrower to the effect that to no Default or Event of Default has occurred during the period covered by such statements or, if any such Default or Event of Default has occurred during such period, setting forth a description of such Default or Event of Default and specifying the action, if any, taken by the relevant Loan Party or its Subsidiary to remedy the same, and, in any event including reasonably detailed calculations supporting such statements in respect of any financial covenants tested under Section 8.22 (Financial Covenants) as of the end of such fiscal quarter to which such quarterly financial statements relate; provided, however, that notwithstanding the foregoing, it is understood and agreed that for each Test Period ending following the First Amendment Effective Date, the Borrower shall deliver and include in such certificate, the calculations set forth on such Exhibit for both the Total Net Leverage Ratio and Fixed Charge Coverage Ratio even if Section 8.22 does not require that such covenant be maintained or tested for a particular Test Period, in which case the Borrower may denote in its calculations for such covenant that the results thereof are neither tested nor applicable for determining compliance under Section 8.22 with respect to such covenant;
(d) promptly after the sending or filing receipt thereof, copies any additional material written reports, management letters or other detailed information contained in writing concerning material aspects of each financial statement, report, notice or proxy statement sent by any Loan Party Party’s or any Subsidiary of a Loan Party its Subsidiary’s operations and financial affairs given to it by its stockholders or other equity holders, and copies of each regular, periodic or special report, registration statement or prospectus filed by any Loan Party or any Subsidiary of a Loan Party with any securities exchangeindependent public accountants;
(e) [reserved];
as soon as available, and in any event no later than thirty (f) within ninety (9030) days after approval by the Board of Directors of the Borrower after the end of each Fiscal Year fiscal year of the Borrower, a copy of the Borrower’s operating budget and projections an updated projection model for the following year including consolidated projections of revenuesLoan Parties and their Subsidiaries, expenses and balance sheet on a quarter-by-quarter basis, with such operating budget and projections in reasonable detail prepared by Borrower and in form reasonably satisfactory to the Administrative Agent (which shall include a summary of all significant assumptions made in preparing such projectionsmodel);
(f) the Borrower shall deliver within eight (8) days of the last day of each calendar month ending following the First Amendment Effective Date, a written certificate in the form attached hereto as Exhibit E signed by a Financial Officer of the Borrower reporting Liquidity as of the last Business Day of such most recently ended calendar month together with documentation acceptable to the Administrative Agent allowing verification of such reported Liquidity; provided, however, that notwithstanding the foregoing, it is understood and agreed that for each calendar month following the First Amendment Effective Date, the Borrower shall deliver such certificate even if Section 8.22(c) does not require that Liquidity be maintained or tested for a particular calendar month, in which case the Borrower may denote in such certificate that the results thereof are neither tested nor applicable for determining compliance under Section 8.22(c) with respect to such covenant;
(g) prompt notice of any Change of Control;
(h) promptly after knowledge thereof shall have come to the attention of any Responsible Officer of any Loan Party, written notice of (i) any threatened or pending litigation or governmental or arbitration proceeding or labor controversy against any Loan Party or any Subsidiary of a Loan Party or any of their Property which, if adversely determined, could would reasonably be expected to have a Material Adverse Effect, (ii) the occurrence expiration, termination or suspension of any material permit, license or approval, the loss of which would have a Material Adverse Effect, or (iii) the occurrence of any Default or Event of Default;
(ivi) prompt notice of any change in the information provided in the Beneficial Ownership Certification delivered to any Lender that would result in a change to the list of beneficial owners identified in of such certification;
(i) on the Closing Date and with each of the financial statements delivered pursuant to subsections (a) (other than the last Fiscal Quarter of each Fiscal Year) and (b) above, a compliance certificate (“Compliance Certificate”) in the form attached hereto as Exhibit F signed by a Financial Officer of the Borrower to the effect that to the best of such officer’s knowledge and belief no Default has occurred during the period covered by such statements or, if any such Default has occurred during such period, setting forth a description of such Default and specifying the action, if any, taken by the relevant Loan Party or its Subsidiary to remedy the same. Such certificate shall also set forth the calculations supporting such statements in respect of Section 8.22 (Financial Covenants); and
(j) on the Closing Date and with each of the financial statements delivered pursuant to subsections (a) (other than the last Fiscal Quarter of each Fiscal Year) and (b) above, a Borrowing Base Certificate showing the computation of the Borrowing Base Value, in reasonable detail as of the close of business on the last day of such Fiscal Quarter or Fiscal Year, as applicable, prepared by the Borrower and certified to by its chief financial officer or another officer of the Borrower reasonably acceptable to the Administrative Agent; and
(k) within a reasonable period of time following any such request thereforpromptly, from time to time, (i) such other information regarding the operations, business affairs and financial condition of any Loan Party or any Subsidiary of a Loan Party, or compliance with the terms of any Loan Document, as (x) the Administrative Agent or any Lender may reasonably request or (iiy) information and documentation reasonably requested as may be required by the Administrative Agent or any Lender for purposes of compliance with applicable “know your customer” requirements under the Patriot Act or other applicable Anti-Corruption Laws and the Beneficial Ownership Regulation. Notwithstanding the foregoing, the filing of the Borrower’s financial statements with the U.S. Securities and Exchange Commission on Form 10-K or Form 10-Q shall satisfy the requirements of Section 8.5(a)(i) and (b), respectivelyFirst Amendment Side Letter.
Appears in 1 contract
Financial Reports. The Loan Parties shallUntil such time that the Corporation has a class of its equity securities registered under the Exchange Act and is required to file reports thereunder pursuant to Sections 13 or 15(d) of the Exchange Act, and except with respect to the obligation set forth in Section 2.7(e)(i) hereunder which shall cause survive such time, the Corporation shall furnish each of their Subsidiaries to, maintain proper books of records and accounts reasonably necessary to prepare the Investors with the financial statements required to be delivered pursuant to this Section 8.5 in accordance with GAAP and shall furnish to the Administrative Agent and each Lenderinformation described below:
(a) as soon as available, and in any event no later than sixty (60) Within 20 days after the last day of each Fiscal Quarter of each Fiscal Year month (the "Target Month") (or such other calendar period as is approved by the Board), financial statements, including a balance sheet as of the Borrowerlast date of such Target Month, a copy statement of income (ior monthly operating expenses) for such month, together with a cumulative statement of income from the company-prepared consolidated balance sheets first day of Borrower and its Subsidiaries as of the current year to the last day of such Fiscal Quarter month, which statements shall be prepared from the books and records of the Corporation, a cash flow analysis, together with cumulative cash flow analyses from the first day of the current year to the last day of such month, and a comparison between the actual monthly operating expenses and the consolidated statements of operations, changes in equity (deficit) projected figures for such month and cash flows of Borrower for the Fiscal Quarter and for the Fiscal Year-to-date period then ended, in reasonable detail and, if available, showing in comparative form the comparable figures for the corresponding date and period in the previous Fiscal Yearprior year, prepared by the applicable party in accordance with GAAP (subject to the absence provisions of footnote disclosures and year-end audit adjustments) and certified to by a Financial Officer of Borrower and (ii) operating statements, rent roll and accounts receivable aging for each Borrowing Base Property;Section 2.9 hereof.
(b) as soon as availableUpon receipt of a request from any of the Investors prior to the end of a quarterly accounting period, and in any event no later than one hundred twenty (120) the Corporation shall deliver to each of the Investors, within 45 days after the last day end of each Fiscal Year such quarterly accounting period, unaudited financial statements for such quarterly accounting period, certified by the Chief Financial Officer or the Treasurer of the BorrowerCorporation, a copy as presenting fairly the financial condition and results of operations of the consolidated balance sheets of Borrower Corporation and its Subsidiaries as having been prepared on a basis consistent with the accounting principles reflected in the Corporation's annual audited financial statements, accompanied by a report, signed by the Chief Financial Officer or the Treasurer of the last day Corporation, summarizing the operating and financial highlights of the Fiscal Year then ended Corporation for such quarterly accounting period, which report shall include (a) a comparison between the actual quarterly operating and financial results, the Budget (as defined in Section 2.8 hereof) and the consolidated statements results of statements of operations, comprehensive loss, shareholders’ equity (deficit) and cash flows of Borrower and its Subsidiaries the similar quarterly accounting period for the Fiscal Year then endedprior fiscal year of the Corporation, together with an explanation of material variances from the Budget and such similar quarterly accounting period, as the case may be, and accompanying notes thereto, each in reasonable detail and, if available, showing in comparative form the figures for the previous Fiscal Year, accompanied (b) a narrative analysis of operations and trends in the case business of the consolidated financial statements by an unqualified opinion of BDO USA, P.C., or another firm of independent public accountants of recognized national standing, selected by ▇▇▇▇▇▇▇▇ and reasonably satisfactory to the Administrative Agent;Corporation during such quarterly accounting period.
(c) [reserved];
(d) promptly after the sending or filing thereof, copies of each financial statement, report, notice or proxy statement sent by any Loan Party or any Subsidiary of a Loan Party to its stockholders or other equity holders, and copies of each regular, periodic or special report, registration statement or prospectus filed by any Loan Party or any Subsidiary of a Loan Party with any securities exchange;
(e) [reserved];
(f) within ninety (90) Within 90 days after the end of each Fiscal Year fiscal year of the BorrowerCorporation, a copy audited financial statements of the Borrower’s operating budget and projections for the following year including consolidated projections of revenuesCorporation, expenses and balance sheet on a quarter-by-quarter basis, with such operating budget and projections in reasonable detail prepared by Borrower and in form reasonably satisfactory to the Administrative Agent (which shall include an income statement and a summary statement of all significant assumptions made cash flow for such fiscal year and a balance sheet as of the last day thereof, each prepared in preparing accordance with generally accepted accounting principles consistently applied, and accompanied by the report of such projections);independent certified public accountants as shall have been approved by the Board.
(gd) notice If for any period the Corporation shall have any subsidiary or subsidiaries whose accounts are consolidated with those of any Change the Corporation, then the financial statements delivered for such period pursuant to paragraphs (a), (b) and (c) of Control;this Section 2.7 shall be the consolidated and consolidating financial statements of the Corporation for all such consolidated subsidiaries.
(he) promptly after knowledge thereof shall have come to the attention of any Responsible Officer of any Loan Party, written notice of (i) any threatened or pending litigation or governmental or arbitration proceeding or labor controversy against any Loan Party or any Subsidiary of a Loan Party or any of their Property which, if adversely determined, could reasonably be expected to have a Material Adverse Effect, (ii) the occurrence of any Material Adverse Effect, (iii) the occurrence of any Default or (iv) any change in the information provided in the Beneficial Ownership Certification that would result in a change to the list of beneficial owners identified in of such certification;Promptly upon becoming available:
(i) on copies of all financial statements, reports, press releases, notices, proxy statements and other documents sent by the Closing Date and with each of the financial statements delivered pursuant Corporation to subsections (a) (other than the last Fiscal Quarter of each Fiscal Year) and (b) above, a compliance certificate (“Compliance Certificate”) in the form attached hereto as Exhibit F signed by a Financial Officer of the Borrower its Stockholders or released to the effect that to the best public and copies of such officer’s knowledge all regular and belief no Default has occurred during the period covered by such statements or, if any such Default has occurred during such period, setting forth a description of such Default and specifying the actionperiodic reports, if any, taken filed by the relevant Loan Party Corporation with the Commission or its Subsidiary to remedy the same. Such certificate shall also set forth the calculations supporting such statements in respect of Section 8.22 (Financial Covenants)any securities exchange or self-regulatory organization; and
(jii) on the Closing Date and with each any other financial or other information available to management of the financial statements delivered pursuant to subsections (a) (other than the last Fiscal Quarter of each Fiscal Year) and (b) above, a Borrowing Base Certificate showing the computation Corporation that any of the Borrowing Base Value, in reasonable detail as of the close of business on the last day of such Fiscal Quarter or Fiscal Year, as applicable, prepared by the Borrower and certified to by its chief financial officer or another officer of the Borrower reasonably acceptable to the Administrative Agent; and
(k) within a reasonable period of time following any such request therefor, from time to time, (i) such other information regarding the operations, business affairs and financial condition of any Loan Party or any Subsidiary of a Loan Party, or compliance with the terms of any Loan Document, as the Administrative Agent or any Lender may reasonably request or (ii) information and documentation Investors shall have reasonably requested by the Administrative Agent or any Lender for purposes of compliance with applicable “know your customer” requirements under the Patriot Act or other applicable Anti-Corruption Laws and the Beneficial Ownership Regulation. Notwithstanding the foregoing, the filing of the Borrower’s financial statements with the U.S. Securities and Exchange Commission on Form 10-K or Form 10-Q shall satisfy the requirements of Section 8.5(a)(i) and (b), respectivelya timely basis.
Appears in 1 contract
Financial Reports. The Loan Parties Each of the Parent and the Company shall, and shall cause each of their Subsidiaries Subsidiary to, maintain proper books a standard system of records and accounts reasonably necessary to prepare financial statements required to be delivered pursuant to this Section 8.5 accounting in accordance with GAAP and shall furnish to the Administrative Agent and its duly authorized representatives such information respecting the business and financial condition of each of the Parent and the Company and the Subsidiaries as the Administrative 61 Agent or any Lender may reasonably request; and without any request, shall furnish to the Administrative Agent (with sufficient copies for each Lender:, and with the Administrative Agent to promptly distribute the same to each Lender, provided that the Company shall be required to furnish the Administrative Agent only one copy of the information required pursuant to Section 8.5(d) below and the Administrative Agent shall furnish each Lender such information in summary form unless such Lender requests otherwise):
(a) as soon as available, and in any event no later than sixty the third Business Day of each calendar week, a Borrowing Base certificate in the form attached hereto as Exhibit C-1 showing the computation of the Borrowing Base consisting of Eligible Accounts in reasonable detail as of the close of business on the last day of the immediately preceding week, together with such other information as such certificate requires, each prepared by the Company and certified to by the chief financial officer of the Company (60provided however, if and so long as excess availability under the Revolving Credit has been not less than $10,000,000 at all times since the beginning of the then most recently completed calendar week, then the Company need not furnish a Borrowing Base Certificate for such week's close, but shall instead furnish the Administrative Agent as soon as available, and in any event no later than fifteen (15) days after the last day of each Fiscal Quarter of each Fiscal Year the month in which such week was completed, a Borrowing Base Certificate showing the computation of the Borrower, a copy of (i) the company-prepared consolidated balance sheets of Borrower and its Subsidiaries Borrowing Base as of the close of business on the last day of such Fiscal Quarter and the consolidated statements of operations, changes in equity (deficit) and cash flows of Borrower for the Fiscal Quarter and for the Fiscal Year-to-date period then ended, in reasonable detail and, if available, showing in comparative form the figures for the corresponding date and period in the previous Fiscal Year, prepared by the applicable party in accordance with GAAP (subject to the absence of footnote disclosures and year-end audit adjustments) and certified to by a Financial Officer of Borrower and (ii) operating statements, rent roll and accounts receivable aging for each Borrowing Base Propertymonth);
(b) as soon as available, and in any event no later than one hundred twenty (12020) days after the last day of each Fiscal Year calendar month, a Borrowing Base Certificate in the form attached hereto as Exhibit C-2 showing the computation of the BorrowerBorrowing Base consisting of Eligible Inventory in reasonable detail as of the close of business on the last day of the immediately preceding month, together with such other information as such certificate requires, each prepared by the Company and certified to by the chief financial officer of the Company;
(c) as soon as available, and in any event within thirty (30) days after the close of each monthly accounting period of the Parent, a copy of the consolidated and consolidating balance sheets sheet of Borrower the Parent, the Company and its the Subsidiaries as of the close of such period and the consolidated and the consolidating statements of income, retained earnings and cash flows of the Parent, the Company and the Subsidiaries for such period, each in reasonable detail showing in comparative form the figures for the corresponding date and period in the previous fiscal year as 62 well as showing in comparative form the year-to-date comparisons to the Parent's current business plan/operating budget, prepared by the Parent in accordance with GAAP and certified to by the chief financial officer of the Parent;
(d) as soon as available, and in any event within twenty (20) days after the close of each monthly accounting period of the Company, an accounts receivable and accounts payable aging, an accounts receivable concentration and reconciliation report and an inventory report (broken down by category), each as of the close of such period and in reasonable detail prepared by the Company and certified to by the chief financial officer of the Company;
(e) as soon as available, and in any event within 90 days after the close of each annual accounting period of the Parent, a copy of the consolidated and consolidating balance sheet of the Parent, the Company and the Subsidiaries as of the last day of the Fiscal Year period then ended and the consolidated and consolidating statements of statements of operationsincome, comprehensive loss, shareholders’ equity (deficit) retained earnings and cash flows of Borrower the Parent, the Company and its the Subsidiaries for the Fiscal Year period then ended, and accompanying notes thereto, each in reasonable detail and, if available, showing in comparative form the figures for the previous Fiscal Yearfiscal year, accompanied in the case of the consolidated financial statements by an unqualified opinion thereon of BDO USA, P.C., KPMG Peat Marwick or another firm of independent public accountants of recognized national standing, selected by ▇▇▇▇▇▇▇▇ the Parent and reasonably satisfactory to the Administrative Agent;
(c) [reserved];
(d) promptly after Required Lenders, to the sending or filing thereofeffect that the financial statements have been prepared in accordance with GAAP and present fairly in accordance with GAAP the consolidated financial condition of the Parent, copies the Company and its Subsidiaries as of each the close of such fiscal year and the results of their operations and cash flows for the fiscal year then ended and that an examination of such accounts in connection with such financial statementstatements has been made in accordance with generally accepted auditing standards and, reportaccordingly, notice or proxy statement sent by any Loan Party or any Subsidiary such examination included such tests of a Loan Party to its stockholders or the accounting records and such other equity holders, and copies of each regular, periodic or special report, registration statement or prospectus filed by any Loan Party or any Subsidiary of a Loan Party with any securities exchange;
(e) [reserved]auditing procedures as were considered necessary in the circumstances;
(f) promptly after receipt thereof, any additional written reports, management letters or other detailed information contained in writing concerning significant aspects of the Parent's, the Company's or any Subsidiary's operations and financial affairs given to it by its independent public accountants;
(g) as soon as available, and in any event within ninety (90) 30 days after the end of each Fiscal Year fiscal year of the BorrowerParent, a copy of the Borrower’s operating budget Parent's consolidated and projections consolidating business plan for the following year including fiscal year, such business plan to show the Parent's 63 projected consolidated projections of and consolidating revenues, expenses expenses, and balance sheet on a quartermonth-by-quarter month basis, with such operating budget and projections business plan to be in reasonable detail prepared by Borrower the Parent and in form reasonably satisfactory to the Administrative Agent (which shall include a summary of all significant assumptions made in preparing such projections);
(g) notice of any Change of ControlRequired Lenders;
(h) promptly after knowledge thereof shall have come to the attention of any Responsible Officer responsible officer of any Loan Partythe Parent or the Company, written notice of (ix) any threatened or pending litigation or governmental or arbitration proceeding or labor controversy against any Loan Party the Parent, the Company or any Subsidiary of a Loan Party or any of their Property which, if adversely determined, could reasonably be expected to have would adversely effect the financial condition, Properties, business or operations of the Parent, the Company and their Subsidiaries taken as a Material Adverse Effect, whole or (ii) the occurrence of any Material Adverse Effect, (iiiy) the occurrence of any Default or Event of Default hereunder or (ivz) the shutdown of any change in the information provided in the Beneficial Ownership Certification that would result in a change to the list of beneficial owners identified in of such certification;▇▇▇▇▇▇▇▇▇ plant; and
(i) on promptly after sending or filing thereof, copies of all proxy statements, financial statements and reports which the Closing Date Parent sends to its shareholders, and copies of all other regular, periodic and special reports and all registration statements which the Parent files with each the SEC or any successor thereto, or with any national securities exchange; Each of the financial statements delivered furnished to the Lenders pursuant to subsections subsection (ac) (other than of this Section coinciding with the last Fiscal Quarter close of each Fiscal Year) and (b) above, any fiscal quarter of the Parent shall be accompanied by a compliance written certificate (“Compliance Certificate”) in the form attached hereto as Exhibit F D signed by a Financial Officer the chief financial officer of the Borrower Parent to the effect that to the best of such the chief financial officer’s 's knowledge and belief no Default or Event of Default has occurred during the period covered by such statements or, if any such Default or Event of Default has occurred during such period, setting forth a description of such Default or Event of Default and specifying the action, if any, taken by the relevant Loan Party or its Subsidiary Company to remedy the same. Such written certificate shall also set forth financial data and computations evidencing the calculations supporting such statements in respect of Section 8.22 (Financial Covenants); and
(j) on the Closing Date and with each of the financial statements delivered pursuant to subsections (a) (other than the last Fiscal Quarter of each Fiscal Year) and (b) above, a Borrowing Base Certificate showing the computation of the Borrowing Base Value, in reasonable detail as of the close of business on the last day of such Fiscal Quarter or Fiscal Year, as applicable, prepared by the Borrower and certified to by its chief financial officer or another officer of the Borrower reasonably acceptable to the Administrative Agent; and
(k) within a reasonable period of time following any such request therefor, from time to time, (i) such other information regarding the operations, business affairs and financial condition of any Loan Party or any Subsidiary of a Loan Party, or Company's compliance with the terms of any Loan Document, as the Administrative Agent or any Lender may reasonably request or (ii) information and documentation reasonably requested by the Administrative Agent or any Lender for purposes of compliance with applicable “know your customer” requirements under the Patriot Act or other applicable Anti-Corruption Laws and the Beneficial Ownership Regulation. Notwithstanding the foregoing, the filing of the Borrower’s financial statements with the U.S. Securities and Exchange Commission certain covenants hereof specified on Form 10-K or Form 10-Q shall satisfy the requirements of Section 8.5(a)(i) and (b), respectivelySchedule I to Exhibit D hereof.
Appears in 1 contract
Sources: Credit Agreement (WLR Foods Inc)
Financial Reports. The Loan Parties shall, and shall cause each of their Subsidiaries to, maintain proper books of records and accounts reasonably necessary to prepare financial statements required to be delivered pursuant to this Section 8.5 in accordance with GAAP and shall furnish to the Administrative Agent and each Lender:
(a) The consolidated balance sheet of Borrower as soon as availableat December 31, 2015, and in any event no later than sixty (60) days after the last day of each Fiscal Quarter of each Fiscal Year of the Borrower, a copy of (i) the company-prepared consolidated balance sheets of Borrower and its Subsidiaries as of the last day of such Fiscal Quarter and the related consolidated statements of operationsincome, changes in equity (deficit) retained earnings and cash flows of Borrower for the Fiscal Quarter and for the Fiscal Year-to-date period then ended, in reasonable detail and, if available, showing in comparative form the figures for the corresponding date and period in the previous Fiscal Year, prepared by the applicable party in accordance with GAAP (subject to the absence of footnote disclosures and year-end audit adjustments) and certified to by a Financial Officer of Borrower and (ii) operating statements, rent roll and accounts receivable aging for each Borrowing Base Property;
(b) as soon as available, and in any event no later than one hundred twenty (120) days after the last day of each Fiscal Year of the Borrower, a copy of the consolidated balance sheets of Borrower and its Subsidiaries as of the last day of the Fiscal Year then ended and the consolidated statements of statements of operations, comprehensive loss, shareholders’ equity (deficit) and cash flows of Borrower and its Subsidiaries for the Fiscal Year fiscal year then ended, and accompanying notes thereto, each in reasonable detail and, if available, showing in comparative form the figures for the previous Fiscal Year, accompanied in the case of the consolidated which financial statements are accompanied by an unqualified opinion the audit report of BDO USASchulman, P.C.Lobel, or another firm of independent public accountants of recognized national standingZand, selected by ▇Katzen, W▇▇▇▇▇▇▇ & B▇▇▇▇▇▇▇ LLP, independent public accountants, and reasonably satisfactory the unaudited interim consolidated balance sheet of Borrower as at June 30, 2016, and the related consolidated statements of income, retained earnings and cash flows of Borrower for the six (6) months then ended, heretofore furnished to Collateral Agent, fairly present the Administrative Agent;
(c) [reserved];
(d) promptly after consolidated financial condition of Borrower as at said dates and the sending or filing thereofconsolidated results of their operations and cash flows for the periods then ended in conformity with GAAP applied on a consistent basis. Neither Borrower nor any Subsidiary has any contingent liabilities which are material to it other than as indicated on such financial statements and, copies with respect to future periods, neither Borrower nor any Subsidiary has any contingent liabilities which are material to it other than as indicated on the financial statements furnished pursuant to Section 6.5. As of each financial statementthe dates of the Financial Statements, report, notice or proxy statement sent by any no Loan Party had any known obligation, indebtedness or any Subsidiary of a Loan Party to its stockholders liability (whether accrued, absolute, contingent or other equity holdersotherwise, and copies of each regularwhether due or to become due), periodic which was not reflected or special report, registration statement or prospectus filed by any Loan Party or any Subsidiary of a Loan Party with any securities exchange;
(e) [reserved];
(f) within ninety (90) days after reserved against in the end of each Fiscal Year balance sheets which are part of the BorrowerFinancial Statements, a copy except for those incurred in the ordinary course of business and which are fully reflected on the books of account of the Borrower’s operating budget and projections for the following year including consolidated projections of revenues, expenses and balance sheet on a quarter-by-quarter basis, with such operating budget and projections in reasonable detail prepared by Borrower and in form reasonably satisfactory to the Administrative Agent (which shall include a summary of all significant assumptions made in preparing such projections);
(g) notice of any Change of Control;
(h) promptly after knowledge thereof shall have come to the attention of any Responsible Officer of any Loan Party, written notice of (i) any threatened as applicable, or pending litigation or governmental or arbitration proceeding or labor controversy against any Loan Party or any Subsidiary of a Loan Party or any of their Property which, if adversely determinedindividually or in the aggregate, could not reasonably be expected to have a Material Adverse Effect, (ii) the occurrence of any Material Adverse Effect, (iii) the occurrence of any Default or (iv) any change in the information provided in the Beneficial Ownership Certification that would result in a change . Except as previously disclosed to the list of beneficial owners identified in of such certification;
(i) on the Closing Date and with each Collateral Agent, all of the financial statements delivered pursuant to subsections (a) (other than the last Fiscal Quarter of each Fiscal Year) and (b) above, a compliance certificate (“Compliance Certificate”) in the form attached hereto as Exhibit F signed by a Financial Officer of the Borrower SEC Reports filed prior to the effect that to the best date of such officer’s knowledge and belief no Default has occurred during the period covered by such statements orthis Agreement, if any such Default has occurred during such period, setting forth a description of such Default and specifying the action, if any, taken by the relevant Loan Party or its Subsidiary to remedy the same. Such certificate shall also set forth the calculations supporting such statements in respect of Section 8.22 (Financial Covenants); and
(j) on the Closing Date and with each of the financial statements delivered pursuant to subsections (a) (other than the last Fiscal Quarter of each Fiscal Year) and (b) above, a Borrowing Base Certificate showing the computation of the Borrowing Base Value, in reasonable detail as of the close of business on the last day of such Fiscal Quarter or Fiscal Yeartheir respective dates thereof, complied in all material respects, as applicable, prepared with the Act and the Exchange Act. All of the SEC Reports filed on or after the Closing Date, as of their respective dates thereof, will comply in all material respects, as applicable, with the Act and the Exchange Act.
(b) The balance sheet of each of Agama Solutions Inc. and Stratitude as at December 31, 2014 and December 31, 2015, and the related statements of income, retained earnings and cash flows of each of Agama Solutions Inc. and Stratitude for the fiscal years then ended, and accompanying notes thereto, which financial statements are accompanied by a quality of earnings report, the unaudited interim income statement of each of Agama Solutions Inc. and Stratitude for each of the calendar months ending as of July 31, 2016 and August 31, 2016, and the unaudited interim consolidated income statement of Borrower and certified to by its chief financial officer or another officer of the Borrower reasonably acceptable Subsidiaries as at August 31, 2016, in each case heretofore furnished to the Administrative Agent; and
(k) within a reasonable period of time following any such request therefor, from time to time, (i) such other information regarding fairly present the operations, business affairs and consolidated financial condition of any Loan Party or Agama Solutions Inc., Stratitude and/or Borrower and its Subsidiaries, as applicable, as at said dates and the consolidated results of their operations and cash flows for the periods then ended in conformity with GAAP applied on a consistent basis. Neither Borrower nor any Subsidiary of a Loan Party, or compliance with the terms of has any Loan Document, contingent liabilities which are material to it other than as the Administrative Agent or any Lender may reasonably request or (ii) information and documentation reasonably requested by the Administrative Agent or any Lender for purposes of compliance with applicable “know your customer” requirements under the Patriot Act or other applicable Anti-Corruption Laws and the Beneficial Ownership Regulation. Notwithstanding the foregoing, the filing of the Borrower’s indicated on such financial statements and, with respect to future periods, neither Borrower nor any Subsidiary has any contingent liabilities which are material to it other than as indicated on the U.S. Securities and Exchange Commission on Form 10-K or Form 10-Q shall satisfy the requirements of financial statements furnished pursuant to Section 8.5(a)(i) and (b), respectively6.5.
Appears in 1 contract
Sources: Senior Subordinated Credit Agreement (Quadrant 4 System Corp)
Financial Reports. □The Loan Parties Borrower shall, and shall cause each of their Subsidiaries other Obligor to, maintain proper books a standard system of records and accounts reasonably necessary to prepare financial statements required to be delivered pursuant to this Section 8.5 accounting in accordance with GAAP IFRS and shall furnish to the Administrative Agent Agent, the following information respecting the business and financial condition of the Borrower and each Lenderother Obligor:
(a) as soon as available, and in any event no later than sixty (60) 60 days after the last day of each Fiscal Quarter of each Fiscal Year of the BorrowerQuarter, a copy of (i) the company-unaudited, company prepared consolidated balance sheets of Borrower and its Subsidiaries as Consolidated financial statements of the last day of such Fiscal Quarter and the consolidated statements of operations, changes in equity (deficit) and cash flows of Borrower for the such Fiscal Quarter and for the Fiscal Year-to-Year to date period then ended, each in reasonable detail and, if available, showing in comparative form (other than during the first Fiscal Year) the figures for the corresponding date and period periods in the previous Fiscal Year, together with management discussion and analysis for such period describing any material variances in actual financial results in comparison to the prior fiscal period and/or financial forecast and budget, prepared by the applicable party Borrower in accordance with GAAP (subject to the absence of footnote disclosures and year-end audit adjustments) IFRS and certified to by a Financial Officer its chief financial officer or another officer of the Borrower and (ii) operating statements, rent roll and accounts receivable aging for each Borrowing Base Propertyacceptable to the Administrative Agent;
(b) as soon as available, and in any event no later than one hundred twenty (120) 60 days after the last day of each Fiscal Year Quarter, a written certificate in substantially the form attached hereto as Exhibit D or otherwise reasonably satisfactory to the Administrative Agent, signed on behalf of the BorrowerBorrower by the chief financial officer of the Borrower or another officer of the Borrower acceptable to the Administrative Agent (a "Compliance Certificate") to the effect that after making due enquiry, the Borrower is in compliance with all covenants under this Agreement, that all representations and warranties are true and correct as of the date of such Compliance Certificate (except where a representation or warranty is expressly given as of a specified date), and that no Default or Event of Default has occurred during the period covered by such statements or, if any such Default or Event of Default has occurred during such period, setting forth a description of such Default or Event of Default and specifying the action, if any, taken by the Borrower or any other Obligor to remedy the same. Such Compliance Certificate shall also set forth the calculations supporting such statements in respect of Section 8.4 hereof;
(c) as soon as available, and in any event no later than 120 days after the last day of each Fiscal Year, a copy of the consolidated balance sheets of Borrower and its Subsidiaries as Consolidated audited financial statements of the last day of the Borrower for such Fiscal Year then ended and the consolidated statements of statements of operations, comprehensive loss, shareholders’ equity (deficit) and cash flows of Borrower and its Subsidiaries for the Fiscal Year then endedYear, and accompanying notes thereto, each in reasonable detail and, if available, showing in comparative form the figures for the previous Fiscal Year, Year accompanied in the case of the consolidated financial statements by an unqualified opinion (as to scope of BDO USA, P.C., or another audit and going concern) of a firm of independent public accountants of recognized national standing, selected by ▇▇▇▇▇▇▇▇ and reasonably satisfactory the Borrower to the Administrative Agent;
(c) [reserved]effect that the financial statements have been prepared in accordance with IFRS and present fairly in all material respects the Consolidated financial condition of the Borrower as of the close of such Fiscal Year and the results of the Consolidated operations and cash flows of the Borrower for such Fiscal Year;
(d) promptly after the sending or filing thereof, copies of each financial statement, report, notice or proxy statement sent by any Loan Party or any Subsidiary of a Loan Party to its stockholders or other equity holdersas soon as available, and copies of each regular, periodic or special report, registration statement or prospectus filed by in any Loan Party or any Subsidiary of a Loan Party with any securities exchange;
(e) [reserved];
(f) within ninety (90) event no later than 60 days after the end of each Fiscal Year of the BorrowerYear, a copy of the Borrower’s operating 's Consolidated financial forecast and budget and projections for the following year including consolidated projections of Fiscal Year, such financial forecast and budget to show the Borrower's projected Consolidated revenues, expenses expenses, cash flow and balance sheet on a quarter-month- by-quarter month basis, with such operating financial forecast and budget and projections to be in reasonable detail prepared by the Borrower and in form reasonably satisfactory to the Administrative Agent (which shall include a summary of all significant assumptions made in preparing such projectionsfinancial forecast);
(ge) as soon as available and in any event within 60 days after the last day of each of its Fiscal Quarters, a Borrowing Base Certificate in the form of Exhibit G attached hereto, certified by the Chief Financial Officer of the Borrower or such other senior officer acceptable to the Administrative Agent, which certificate shall include a detailed list of aged accounts receivables, aged accounts payable and inventory;
(f) promptly upon the occurrence thereof, notice of any Change of Control;
(g) as soon as available and in any event within 60 days after the last day of each of its Fiscal Quarters, if any of the information disclosed in the Schedules attached hereto is no longer accurate, an officer's certificate of the Borrower attaching copies of all applicable revised Schedules required to ensure that such information remains accurate as of the last day of such Fiscal Quarter;
(h) promptly after knowledge thereof shall have come to the attention of any Responsible Officer responsible officer of any Loan Partythe Borrower, written notice of (i) any threatened or pending litigation or governmental governmental, regulatory or arbitration proceeding or labor labour controversy or fine, penalty or other similar monetary obligation against any Loan Party or imposed upon the Borrower or any Subsidiary of a Loan Party other Obligor or any of their Property which, if adversely determined, could reasonably be expected to have a Material Adverse Effect, Effect or could reasonably be expected to give rise to a Default or Event of Default or (ii) the occurrence of any Material Adverse Effect, (iii) the occurrence of any Default or (iv) any change in the information provided in the Beneficial Ownership Certification that would result in a change to the list Event of beneficial owners identified in of such certification;
(i) on the Closing Date and with each of the financial statements delivered pursuant to subsections (a) (other than the last Fiscal Quarter of each Fiscal Year) and (b) above, a compliance certificate (“Compliance Certificate”) in the form attached hereto as Exhibit F signed by a Financial Officer of the Borrower to the effect that to the best of such officer’s knowledge and belief no Default has occurred during the period covered by such statements or, if any such Default has occurred during such period, setting forth a description of such Default and specifying the action, if any, taken by the relevant Loan Party or its Subsidiary to remedy the same. Such certificate shall also set forth the calculations supporting such statements in respect of Section 8.22 (Financial Covenants)hereunder; and
(j) on the Closing Date and with each of the financial statements delivered pursuant to subsections (a) (other than the last Fiscal Quarter of each Fiscal Year) and (b) above, a Borrowing Base Certificate showing the computation of the Borrowing Base Value, in reasonable detail as of the close of business on the last day of such Fiscal Quarter or Fiscal Year, as applicable, prepared by the Borrower and certified to by its chief financial officer or another officer of the Borrower reasonably acceptable to the Administrative Agent; and
(k) within a reasonable period of time following any such request therefor, from time to time, (i) such other information regarding the operations, business affairs financial and financial condition of any Loan Party or any Subsidiary of a Loan Party, or compliance with the terms of any Loan Document, operating statements and reports as the Administrative Agent or any Lender may reasonably request or (ii) information and documentation reasonably requested by the Administrative Agent or any Lender for purposes of compliance with applicable “know your customer” requirements under the Patriot Act or other applicable Anti-Corruption Laws and the Beneficial Ownership Regulation. Notwithstanding the foregoing, the filing of the Borrower’s financial statements with the U.S. Securities and Exchange Commission on Form 10-K or Form 10-Q shall satisfy the requirements of Section 8.5(a)(i) and (b), respectivelyrequest.
Appears in 1 contract
Sources: Credit Agreement
Financial Reports. The Loan Parties shall, and shall cause each of their Subsidiaries to, maintain proper books of records and accounts reasonably necessary to prepare To the extent the following financial statements required are produced, the Servicer shall furnish, or cause to be delivered pursuant to this Section 8.5 in accordance with GAAP and shall furnish furnished, to the Administrative Agent and each LenderFacility Agent:
(ai) as soon as available, available and in any event no later than sixty (60) days after the last day of each Fiscal Quarter of each Fiscal Year of the Borrower, a copy of (i) the company-prepared consolidated balance sheets of Borrower and its Subsidiaries as of the last day of such Fiscal Quarter and the consolidated statements of operations, changes in equity (deficit) and cash flows of Borrower for the Fiscal Quarter and for the Fiscal Year-to-date period then ended, in reasonable detail and, if available, showing in comparative form the figures for the corresponding date and period in the previous Fiscal Year, prepared by the applicable party in accordance with GAAP (subject to the absence of footnote disclosures and year-end audit adjustments) and certified to by a Financial Officer of Borrower and (ii) operating statements, rent roll and accounts receivable aging for each Borrowing Base Property;
(b) as soon as available, and in any event no later than one hundred twenty (120) days after the last day of each Fiscal Year of the Borrower, a copy of the consolidated balance sheets of Borrower and its Subsidiaries as of the last day of the Fiscal Year then ended and the consolidated statements of statements of operations, comprehensive loss, shareholders’ equity (deficit) and cash flows of Borrower and its Subsidiaries for the Fiscal Year then ended, and accompanying notes thereto, each in reasonable detail and, if available, showing in comparative form the figures for the previous Fiscal Year, accompanied in the case of the consolidated financial statements by an unqualified opinion of BDO USA, P.C., or another firm of independent public accountants of recognized national standing, selected by ▇▇▇▇▇▇▇▇ and reasonably satisfactory to the Administrative Agent;
(c) [reserved];
(d) promptly after the sending or filing thereof, copies of each financial statement, report, notice or proxy statement sent by any Loan Party or any Subsidiary of a Loan Party to its stockholders or other equity holders, and copies of each regular, periodic or special report, registration statement or prospectus filed by any Loan Party or any Subsidiary of a Loan Party with any securities exchange;
(e) [reserved];
(f) within ninety (90) 120 days after the end of each Fiscal Year of the Borrowerfiscal year, a copy of the Borrower’s operating budget and projections audited consolidated financial statements for the following prior year for the Equityholder and its consolidated Subsidiaries, including the prior comparable period (if any) from the preceding fiscal year and certified by Independent Accountants (the report of which shall be unqualified), together with consolidating financial statements for each such Person certified by an Executive Officer of such Person with appropriate knowledge stating that the information set forth therein fairly presents the financial condition of such Person and its consolidated projections Subsidiaries as of revenues, expenses and balance sheet on a quarter-by-quarter basisfor such fiscal year, with all such operating budget financial statements being prepared in accordance with GAAP applied consistently throughout the period involved (except for changes in the application of GAAP approved by such accountants in accordance with GAAP and projections in reasonable detail prepared by Borrower and in form reasonably satisfactory to the Administrative Agent (which shall include a summary of all significant assumptions made in preparing such projectionsdisclosed therein);; and
(g) notice of any Change of Control;
(h) promptly after knowledge thereof shall have come to the attention of any Responsible Officer of any Loan Party, written notice of (i) any threatened or pending litigation or governmental or arbitration proceeding or labor controversy against any Loan Party or any Subsidiary of a Loan Party or any of their Property which, if adversely determined, could reasonably be expected to have a Material Adverse Effect, (ii) as soon as available and in any event within 45 days after the occurrence end of any Material Adverse Effect, (iii) the occurrence each fiscal quarter of any Default or (iv) any change in the information provided in the Beneficial Ownership Certification that would result in a change to the list of beneficial owners identified in of such certification;
(i) on the Closing Date and with each of the financial statements delivered pursuant to subsections (a) fiscal year (other than the last Fiscal Quarter fiscal quarter of each Fiscal Year) fiscal year), an unaudited consolidated and (b) above, a compliance certificate (“Compliance Certificate”) in the form attached hereto as Exhibit F signed by a Financial Officer consolidating balance sheet of the Borrower to the effect that to the best of such officer’s knowledge Equityholder and belief no Default has occurred during the period covered by such statements or, if any such Default has occurred during such period, setting forth a description of such Default and specifying the action, if any, taken by the relevant Loan Party or its Subsidiary to remedy the same. Such certificate shall also set forth the calculations supporting such statements in respect of Section 8.22 (Financial Covenants); and
(j) on the Closing Date and with each of the financial statements delivered pursuant to subsections (a) (other than the last Fiscal Quarter of each Fiscal Year) and (b) above, a Borrowing Base Certificate showing the computation of the Borrowing Base Value, in reasonable detail respective consolidated Subsidiaries as of the close of business on the last day end of such Fiscal Quarter or Fiscal Yearfiscal quarter and including the prior comparable period (if any), as applicableand the unaudited consolidated and consolidating statements of income, prepared by and of cash flow, of such Person and its consolidated Subsidiaries for such fiscal quarter and for the Borrower and certified to by its chief financial officer or another officer period commencing at the end of the Borrower reasonably acceptable to previous fiscal year and ending with the Administrative Agent; and
end of such fiscal quarter, certified by an Executive Officer of such Person identifying such documents as being the documents described in this paragraph (kii) within a reasonable period of time following any such request therefor, from time to time, (i) such other and stating that the information regarding set forth therein fairly presents the operations, business affairs and financial condition of any Loan Party or any Subsidiary such Person and its consolidated Subsidiaries as of a Loan Partyand for the periods then ended, or compliance with the terms of any Loan Document, as the Administrative Agent or any Lender may reasonably request or (ii) information and documentation reasonably requested by the Administrative Agent or any Lender for purposes of compliance with applicable “know your customer” requirements under the Patriot Act or other applicable Antisubject to year-Corruption Laws and the Beneficial Ownership Regulation. Notwithstanding the foregoing, the filing of the Borrower’s financial statements with the U.S. Securities and Exchange Commission on Form 10-K or Form 10-Q shall satisfy the requirements of Section 8.5(a)(i) and (b), respectivelyend adjustments.
Appears in 1 contract
Sources: Loan Financing and Servicing Agreement (Stellus Private Credit BDC)
Financial Reports. The Loan Parties Borrower shall, and shall cause each of their Subsidiaries Subsidiary to, maintain proper books a standard system of records and accounts reasonably necessary to prepare financial statements required to be delivered pursuant to this Section 8.5 accounting in accordance with GAAP and shall furnish to the Administrative Agent Agent, each Lender, the L/C Issuer and each Lenderof their duly authorized representatives such information respecting the business and financial condition of the Borrower and each Subsidiary as the Administrative Agent or such Lender may reasonably request; and without any request, shall furnish to the Administrative Agent for distribution to the Lenders and L/C Issuer:
(a) as soon as available, and in any event no later than sixty ninety (6090) days after the last day each Fiscal Year of the Borrower (commencing with the 2026 Fiscal Year), a copy of the consolidated balance sheet of the Borrower and its Subsidiaries as of the last day of the Fiscal Year then ended and the consolidated statements of income, retained earnings, and cash flows of the Borrower and its Subsidiaries for the Fiscal Year then ended, and accompanying notes thereto, each in reasonable detail showing in comparative form the figures for the previous Fiscal Year, accompanied by an unqualified opinion of independent public accountants of recognized national standing, selected by the Borrower and reasonably satisfactory to the Administrative Agent (the Administrative Agent hereby approving PFK O’▇▇▇▇▇▇ D▇▇▇▇▇, the independent public accountants engaged by the Borrower as of the Closing Date), to the effect that the consolidated financial statements have been prepared in accordance with GAAP and present fairly in all material respects in accordance with GAAP the consolidated financial condition of the Borrower and its Subsidiaries as of the close of such Fiscal Year and the results of their operations and cash flows for the Fiscal Year then ended and that an examination of such accounts in connection with such financial statements has been made in accordance with generally accepted auditing standards and, accordingly, such examination included such tests of the accounting records and such other auditing procedures as were considered necessary in the circumstances;
(b) within the period provided in subsection (a) above, the written statement of the accountants who certified the audit report thereby required that in the course of their audit they have obtained no knowledge of any Default or Event of Default, or, if such accountants have obtained knowledge of any such Default or Event of Default, they shall disclose in such statement the nature and period of the existence thereof;
(c) as soon as available, and in any event no later than forty-five (45) days after the last day of each of the first three Fiscal Quarter Quarters of each Fiscal Year of the BorrowerBorrower (commencing with the Fiscal Quarter ended on June 30, 2026), a copy of (i) the company-prepared consolidated balance sheets sheet of the Borrower and its Subsidiaries as of the last day of such Fiscal Quarter and the consolidated statements of operationsincome, changes in equity (deficit) retained earnings, and cash flows of the Borrower and its Subsidiaries for the Fiscal Quarter and for the Fiscal Year-to-date period then ended, each in reasonable detail andshowing, if available, showing in comparative form form, the figures for the corresponding date and period in the previous Fiscal Year, prepared by the applicable party Borrower in accordance with GAAP (subject to the absence of footnote disclosures and year-end audit adjustments) and certified to by a Financial Officer of Borrower and (ii) operating statements, rent roll and accounts receivable aging for each Borrowing Base Property;
(b) as soon as available, and in any event no later than one hundred twenty (120) days after the last day of each Fiscal Year its chief financial officer or another officer of the Borrower, a copy of the consolidated balance sheets of Borrower and its Subsidiaries as of the last day of the Fiscal Year then ended and the consolidated statements of statements of operations, comprehensive loss, shareholders’ equity (deficit) and cash flows of Borrower and its Subsidiaries for the Fiscal Year then ended, and accompanying notes thereto, each in reasonable detail and, if available, showing in comparative form the figures for the previous Fiscal Year, accompanied in the case of the consolidated financial statements by an unqualified opinion of BDO USA, P.C., or another firm of independent public accountants of recognized national standing, selected by ▇▇▇▇▇▇▇▇ and reasonably satisfactory acceptable to the Administrative Agent;
(cd) [reservedintentionally deleted];
(de) with each of the financial statements delivered pursuant to subsections (a) and (c) above, a compliance certificate (“Compliance Certificate”) in the form attached hereto as Exhibit E signed by the chief financial officer of the Borrower or another officer of the Borrower reasonably acceptable to the Administrative Agent to the effect that to such officer’s knowledge and belief no Default or Event of Default has occurred during the period covered by such statements or, if any such Default or Event of Default has occurred during such period, setting forth a description of such Default or Event of Default and specifying the action, if any, taken or being taken by the Borrower or any Subsidiary to remedy the same. Such certificate shall also set forth the calculations supporting such statements in respect of Section 8.21 hereof;
(f) promptly after receipt thereof, any additional written reports, management letters or other detailed information contained in writing concerning significant aspects of the Borrower’s or any Subsidiary’s operations and financial affairs given to it by its independent public accountants;
(g) promptly after the sending or filing thereof, copies of each financial statement, report, notice or proxy statement sent by any Loan Party the Borrower or any Subsidiary of a Loan Party to its stockholders or other equity holders, and upon written request from the Administrative Agent, copies of each regular, periodic or special report, registration statement or prospectus (including all Form 10-K, Form 10-Q and Form 8-K reports) filed by any Loan Party the Borrower or any Subsidiary of a Loan Party with any securities exchangeexchange or the Securities and Exchange Commission or any successor agency;
(eh) [reserved]promptly after receipt thereof, a copy of each audit made by any regulatory agency of the books and records of the Borrower or any Subsidiary or of notice of any material noncompliance with any applicable Legal Requirements relating to the Borrower or any Subsidiary, or its business;
(fi) as soon as available, and in any event within ninety thirty (9030) days after the end of each Fiscal Year of the Borrower, a copy of the Borrower’s operating budget and projections for the following year including consolidated projections of revenues, expenses and balance sheet on a quarter-by-quarter basis, with such operating budget and projections in reasonable detail prepared by the Borrower and in form reasonably satisfactory to the Administrative Agent (which shall include a summary of all significant assumptions made in preparing such projectionsbudget);
(gj) notice of any Change of Control;
(hk) promptly after knowledge thereof shall have come to the attention of any Responsible Officer of any Loan Partythe Borrower obtaining knowledge thereof, written notice of (i) any threatened (in writing) or pending litigation or governmental or arbitration proceeding or labor controversy against any Loan Party the Borrower or any Subsidiary of a Loan Party or any of their Property which, if adversely determined, which could reasonably be expected to have a Material Adverse Effect, (ii) the occurrence of any other matter which could reasonably be expected to have a Material Adverse Effect, (iii) the occurrence of any Default or Event of Default, or (iv) any change in the information provided in the Beneficial Ownership Certification that would result in a change to the list of beneficial owners identified in of such certification;
(il) on the Closing Date and with each of the financial statements delivered pursuant to subsections (a) (other than the last Fiscal Quarter of each Fiscal Year) and (bc) above, if there have been any changes to the organizational chart of the Borrower and the Subsidiaries during the most recently ended Fiscal Quarter, a compliance certificate revised organizational chart, together with a summary of the changes;
(“Compliance Certificate”m) in the form attached hereto as Exhibit F signed by a Financial promptly after any Responsible Officer of the Borrower obtaining knowledge thereof, written notice of any change in the information provided in the Beneficial Ownership Certification that would result in a change to the effect that to the best list of beneficial owners identified in parts (c) or (d) of such officer’s knowledge and belief no Default has occurred during the period covered by such statements or, if any such Default has occurred during such period, setting forth a description of such Default and specifying the action, if any, taken by the relevant Loan Party or its Subsidiary to remedy the same. Such certificate shall also set forth the calculations supporting such statements in respect of Section 8.22 (Financial Covenants)certification; and
(jn) on promptly after the Closing Date and with each request of the financial statements delivered pursuant to subsections (a) (any Lender, any other than the last Fiscal Quarter of each Fiscal Year) and (b) above, information or report reasonably requested by a Borrowing Base Certificate showing the computation of the Borrowing Base Value, in reasonable detail as of the close of business on the last day of Lender provided that any such Fiscal Quarter requested information or Fiscal Year, as applicable, prepared report is available or can be generated by the Borrower and certified to by its chief financial officer or another officer of the Borrower reasonably acceptable using commercially reasonable efforts; provided, however, to the Administrative Agent; and
(k) within a reasonable period of time following any extent such request therefor, from time to time, (i) such other information regarding the operations, business affairs and financial condition of any Loan Party or any Subsidiary of a Loan Party, or compliance items set forth above are filed with the terms of any Loan Document, as the Administrative Agent or any Lender may reasonably request or (ii) information and documentation reasonably requested by the Administrative Agent or any Lender for purposes of compliance with applicable “know your customer” requirements under the Patriot Act or other applicable Anti-Corruption Laws and the Beneficial Ownership Regulation. Notwithstanding the foregoing, the filing of the Borrower’s financial statements with the U.S. Securities and Exchange Commission on Form 10-K or Form 10-Q otherwise are publicly available, the Borrower shall satisfy be deemed to have satisfied this covenant once it provides notice to the requirements Administrative Agent of Section 8.5(a)(i) and (b), respectivelysuch availability.
Appears in 1 contract
Financial Reports. The Loan Parties Borrower shall, and shall cause each of their Subsidiaries Subsidiary to, maintain proper books a standard system of records and accounts reasonably necessary to prepare financial statements required to be delivered pursuant to this Section 8.5 accounting in accordance with GAAP and shall furnish to the Administrative Agent Agent, each Lender, the L/C Issuer and each Lenderof their duly authorized representatives such information respecting the business and financial condition of the Borrower and each Subsidiary as the Administrative Agent or such Lender may reasonably request; and without any request, shall furnish to the Administrative Agent for distribution to the Lenders, and L/C Issuer:
(a) as soon as available, and in any event no later than sixty ninety (6090) days after the last day each fiscal year of the Borrower, a copy of the consolidated and consolidating balance sheet of the Borrower and its Subsidiaries as of the last day of the fiscal year then ended and the consolidated and consolidating statements of income, retained earnings, and cash flows of the Borrower and its Subsidiaries for the fiscal year then ended, and accompanying notes thereto, each in reasonable detail showing in comparative form the figures for the previous fiscal year, accompanied by an unqualified opinion of independent public accountants of recognized national standing, selected by the Borrower and reasonably satisfactory to the Administrative Agent, to the effect that the consolidated financial statements have been prepared in accordance with GAAP and present fairly in accordance with GAAP the consolidated financial condition of the Borrower and its Subsidiaries as of the close of such fiscal year and the results of their operations and cash flows for the fiscal year then ended and that an examination of such accounts in connection with such financial statements has been made in accordance with generally accepted auditing standards and, accordingly, such examination included such tests of the accounting records and such other auditing procedures as were considered necessary in the circumstances;
(b) within the period provided in subsection (a) above, the written statement of the accountants who certified the audit report thereby required that in the course of their audit they have obtained no knowledge of any Default or Event of Default, or, if such accountants have obtained knowledge of any such Default or Event of Default, they shall disclose in such statement the nature and period of the existence thereof;
(c) as soon as available, and in any event no later than forty-five (45) days after the last day of each Fiscal Quarter fiscal quarter of each Fiscal Year fiscal year of the Borrower, a copy of (i) the company-prepared consolidated and consolidating balance sheets sheet of the Borrower and its Subsidiaries as of the last day of such Fiscal Quarter fiscal quarter and the consolidated and consolidating statements of operationsincome, changes in equity (deficit) retained earnings, and cash flows of the Borrower and its Subsidiaries for the Fiscal Quarter fiscal quarter and for the Fiscal Yearfiscal year-to-date period then ended, each in reasonable detail and, if available, showing in comparative form the figures for the corresponding date and period in the previous Fiscal Yearfiscal year, prepared by the applicable party Borrower in accordance with GAAP (subject to the absence of footnote disclosures and year-end audit adjustments) and certified to by a Financial Officer its chief financial officer or another officer of the Borrower and (ii) operating statements, rent roll and accounts receivable aging for each Borrowing Base Propertyreasonably acceptable to the Administrative Agent;
(bd) as soon as available, and in any event no later than one hundred twenty within forty-five (12045) days after the last day of each Fiscal Year of the Borrower, a copy of the consolidated balance sheets of Borrower and its Subsidiaries as of Quarter (or ninety (90) days after the last day of each Fiscal Year) a Borrowing Base Certificate showing the Fiscal Year then ended and computation of the consolidated statements of statements of operations, comprehensive loss, shareholders’ equity (deficit) and cash flows of Borrower and its Subsidiaries for the Fiscal Year then ended, and accompanying notes thereto, each Borrowing Base in reasonable detail and, if available, showing in comparative form the figures for the previous Fiscal Year, accompanied in the case as of the consolidated close of business on the last day of such fiscal quarter, prepared by the Borrower and certified to by its chief financial statements by an unqualified opinion of BDO USA, P.C., officer or another firm officer of independent public accountants of recognized national standing, selected by ▇▇▇▇▇▇▇▇ and reasonably satisfactory the Borrower acceptable to the Administrative Agent;
(ce) [reserved]with each of the financial statements delivered pursuant to subsections (a) and (b) above, a Compliance Certificate (“Compliance Certificate”) in the form attached hereto as Exhibit E signed by the chief financial officer of the Borrower or another officer of the Borrower reasonably acceptable to the Administrative Agent to the effect that to the best of such officer’s knowledge and belief no Default or Event of Default has occurred during the period covered by such statements or, if any such Default or Event of Default has occurred during such period, setting forth a description of such Default or Event of Default and specifying the action, if any, taken by the Borrower or any Subsidiary to remedy the same. Such certificate shall also set forth the calculations supporting such statements in respect of Section 8.20 hereof;
(df) promptly after receipt thereof, any additional written reports, management letters or other detailed information contained in writing concerning significant aspects of the Borrower’s or any Subsidiary’s operations and financial affairs given to it by its independent public accountants;
(g) promptly after the sending or filing thereof, copies of each financial statement, report, notice or proxy statement sent by any Loan Party the Borrower or any Subsidiary of a Loan Party to its stockholders or other equity holders, and upon written request from the Administrative Agent, copies of each regular, periodic or special report, registration statement or prospectus (including all Form 10-K, Form 10-Q and Form 8-K reports) filed by any Loan Party the Borrower or any Subsidiary of a Loan Party with any securities exchangeexchange or the Securities and Exchange Commission or any successor agency;
(eh) [reserved]promptly after receipt thereof, a copy of each audit made by any regulatory agency of the books and records of the Borrower or any Subsidiary or of notice of any material noncompliance with any applicable law, regulation or guideline relating to the Borrower or any Subsidiary, or its business;
(fi) as soon as available, and in any event within ninety thirty (9030) days after the end of each Fiscal Year fiscal year of the Borrower, a copy of the Borrower’s operating budget and projections for the following year including consolidated projections of revenues, expenses and balance sheet on a quarter-by-quarter basis, with such operating budget and projections in reasonable detail prepared by the Borrower and in form reasonably satisfactory to the Administrative Agent (which shall include a summary of all significant assumptions made in preparing such projectionsbudget);
(gj) notice of any Change of Control;
(hk) promptly after knowledge thereof shall have come to the attention of any Responsible Officer of any Loan Partythe Borrower, written notice of (i) any threatened (in writing) or pending litigation or governmental or arbitration proceeding or labor controversy against any Loan Party the Borrower or any Subsidiary of a Loan Party or any of their Property which, if adversely determined, which could reasonably be expected to have a Material Adverse Effect, (ii) the occurrence of any matter which could reasonably be expected to have a Material Adverse Effect, Effect or (iii) the occurrence of any Default or (iv) any change in the information provided in the Beneficial Ownership Certification that would result in a change to the list Event of beneficial owners identified in of such certificationDefault hereunder;
(il) on within forty-five (45) days of the Closing Date and with end of each of the financial statements delivered pursuant to subsections first three (a3) (other than the last Fiscal Quarter of each Fiscal Year) fiscal quarters and (b) above, a compliance certificate (“Compliance Certificate”) in the form attached hereto as Exhibit F signed by a Financial Officer of the Borrower to the effect that to the best of such officer’s knowledge and belief no Default has occurred during the period covered by such statements or, if any such Default has occurred during such period, setting forth a description of such Default and specifying the action, if any, taken by the relevant Loan Party or its Subsidiary to remedy the same. Such certificate shall also set forth the calculations supporting such statements in respect of Section 8.22 (Financial Covenants); and
(j) on the Closing Date and with each of the financial statements delivered pursuant to subsections (a) (other than the last Fiscal Quarter of each Fiscal Year) and (b) above, a Borrowing Base Certificate showing the computation of the Borrowing Base Value, in reasonable detail as of within 90 days after the close of business on the last day of such Fiscal Quarter or Fiscal Year, as applicable, prepared by the Borrower and certified to by its chief financial officer or another officer fiscal quarter of the Borrower reasonably acceptable to the Administrative Agent; and
(k) within a reasonable period of time following any such request therefor, from time to time, year (i) a list of all newly formed or acquired Subsidiaries during such other quarter (such list shall contain the information regarding the operations, business affairs and financial condition of any Loan Party or any Subsidiary of a Loan Party, or compliance with the terms of any Loan Document, relative to such new Subsidiaries as the Administrative Agent or any Lender may reasonably request or set forth in Schedule 6.2 hereto); (ii) information and documentation reasonably requested by the Administrative Agent or any Lender for purposes a list of compliance with applicable “know your customer” requirements under the Patriot Act or other applicable Anti-Corruption Laws and the Beneficial Ownership Regulation. Notwithstanding the foregoing, the filing newly executed Significant Leases during such quarter (upon receipt of the Borrower’s financial statements with the U.S. Securities and Exchange Commission on Form 10-K or Form 10-Q which Schedule 6.25 shall satisfy the requirements of Section 8.5(a)(i) and (bbe deemed amended to include references to such Significant Lease), respectively.;
Appears in 1 contract
Sources: Credit Agreement
Financial Reports. The Loan Parties shallAbsence of Certain Changes or Events.
(i) GAFC's Annual Report on Form 10-K for the fiscal years ended September 30, 2004, 2005 and 2006, and shall cause each all other reports, registration statements, definitive proxy statements or information statements filed or to be filed by it or any of their its Subsidiaries tosubsequent to September 30, maintain proper books 2003, under the Securities Act or under Section 13(a), 13(c), 14 or 15(d) of records the Exchange Act in the form filed or to be filed (collectively "GAFC'S SEC DOCUMENTS"), as of the date filed, (A) as to form complied or will comply in all material respects with the applicable requirements under the Securities Act or the Exchange Act, as the case may be, and accounts reasonably necessary (B) did not and will not contain any untrue statement of a material fact or omit to prepare financial statements state a material fact required to be delivered pursuant stated therein or necessary to this Section 8.5 make the statements therein, in accordance with GAAP and shall furnish to light of the Administrative Agent circumstances under which they were made, not misleading; and each Lender:
(a) as soon as available, and in any event no later than sixty (60) days after the last day of each Fiscal Quarter of each Fiscal Year of the Borrower, a copy of (i) the company-prepared consolidated balance sheets or statements of Borrower condition of GAFC contained in or incorporated by reference into any of GAFC's SEC Documents (including the related notes and schedules thereto) fairly presents, or will fairly present, the financial position of GAFC and its Subsidiaries as of its date, and each of the last day statements of such Fiscal Quarter income or results of operations and changes in stockholders' equity and cash flows or equivalent statements of GAFC in any of GAFC's SEC Documents (including any related notes and schedules thereto) fairly presents, or will fairly present, the consolidated statements results of operations, changes in stockholders' equity (deficit) and cash flows flows, as the case may be, of Borrower for the Fiscal Quarter and for the Fiscal Year-to-date period then ended, in reasonable detail and, if available, showing in comparative form the figures for the corresponding date and period in the previous Fiscal Year, prepared by the applicable party in accordance with GAAP (subject to the absence of footnote disclosures and year-end audit adjustments) and certified to by a Financial Officer of Borrower and (ii) operating statements, rent roll and accounts receivable aging for each Borrowing Base Property;
(b) as soon as available, and in any event no later than one hundred twenty (120) days after the last day of each Fiscal Year of the Borrower, a copy of the consolidated balance sheets of Borrower and its Subsidiaries as of the last day of the Fiscal Year then ended and the consolidated statements of statements of operations, comprehensive loss, shareholders’ equity (deficit) and cash flows of Borrower GAFC and its Subsidiaries for the Fiscal Year then endedperiods to which they relate, and accompanying notes theretoin each case were prepared in accordance with generally accepted accounting principles consistently applied during the periods involved, except in each in reasonable detail andcase as may be noted therein, if available, showing in comparative form the figures for the previous Fiscal Year, accompanied and subject to normal year-end audit adjustments in the case of unaudited statements.
(ii) GAFC's Disclosure Schedule lists, and GAFC has delivered or previously made available to Summit, copies of the consolidated documentation creating or governing all securitization transactions and "off-balance sheet arrangements" (as defined in Item 303(c) of Regulation S-K) effected by GAFC or its Subsidiaries, since September 30, 2006. BDO S▇▇▇▇▇▇, LLP, which has expressed its opinion with respect to the financial statements of GAFC and its Subsidiaries (including the related notes) included in the GAFC SEC Documents is and has been throughout the periods covered by an unqualified opinion such financial statements (A) a registered public accounting firm (as defined in Section 2(a)(12) of BDO USA, P.C., or another firm of independent public accountants of recognized national standing, selected by the S▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002, (B) "independent" with respect to GAFC within the meaning of Regulation S-X and reasonably satisfactory to the Administrative Agent;
(c) [reserved];
(d) promptly after the sending or filing thereof, copies of each financial statement, report, notice or proxy statement sent by any Loan Party or any Subsidiary of a Loan Party to its stockholders or other equity holders, and copies of each regular, periodic or special report, registration statement or prospectus filed by any Loan Party or any Subsidiary of a Loan Party C in compliance with any securities exchange;
(e) [reserved];
(f) within ninety (90) days after the end of each Fiscal Year of the Borrower, a copy of the Borrower’s operating budget and projections for the following year including consolidated projections of revenues, expenses and balance sheet on a quarter-by-quarter basis, with such operating budget and projections in reasonable detail prepared by Borrower and in form reasonably satisfactory to the Administrative Agent (which shall include a summary of all significant assumptions made in preparing such projections);
subsection (g) notice through (l) of any Change Section 10A of Control;the Exchange Act and the related rules of the SEC and the Public Accounting Oversight Board.
(hiii) promptly after knowledge thereof shall have come Except as disclosed on Disclosure Schedule 6.03(g), GAFC has on a timely basis filed all forms, reports and documents required to be filed by it with the SEC since September 30, 2004. GAFC's Disclosure Schedule lists, and, except to the attention extent available in full without redaction on the SEC's web site through the Electronic Data Gathering, Analysis and Retrieval System ("E▇▇▇▇") two days prior to the date of any Responsible Officer of any Loan Partythis Agreement, written notice GAFC has delivered or previously made available to Summit copies in the form filed with the SEC of (iA) GAFC's Annual Reports on Form 10-K for each fiscal year of the Company beginning since September 30, 2003, (B) it Quarterly Reports on form 10-Q for each of the first three fiscal quarters in each of the fiscal years of the GAFC referred to in clause (A) above, (C) all proxy statements relating to GAFC's meetings of stockholders (whether annual or special) held, and all information statements relating to stockholder consents since the beginning of the first fiscal year referred to in clause above, (D) all certifications and statements required by (x) the SEC's Order dated June 27, 2002, pursuant to Section 21(a)(1) of the Exchange Act (File No. 4-460), (y) Rule 13a-14 or 15d-14 under the Exchange Act or (z) 18 U.S.C. ss.1350 (Section 906 of the S▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002) with respect to any threatened report referred to above, (E) all other forms, reports, registration statements and other documents (other than preliminary materials if the corresponding definitive materials have been provided to Summit pursuant to this Section 6.03(g)(iii), filed by GAFC with the SEC since the beginning of the first fiscal year referred above, and (E) all comment letters received by GAFC from the Staff of the SEC since December 31, 2004, and all responses to such comment letters by or pending litigation on behalf of GAFC.
(iv) Except as Previously Disclosed, GAFC maintains disclosure controls and procedures required by Rule 13a-15 or governmental 15d-15 under the Exchange Act; such controls and procedures are effective to ensure that all material information concerning GAFC and its subsidiaries is made known on a timely basis to the individuals responsible for the preparation of the Company's filings with the SEC and other public disclosure documents. GAFC's Disclosure Schedule lists, and GAFC has delivered to Summit copies of, all written descriptions of, and all policies, manuals and other documents promulgating, such disclosure controls and procedures. To GAFC's knowledge, each director and executive officer of GAFC has filed with the SEC on a timely basis all statements required by Section 16(a) of the Exchange Act and the rules and regulations thereunder since September 30, 2004. As used in this Section 6.03(q), the term "file" shall be broadly construed to include any manner in which a document or arbitration proceeding information is furnished, supplied or labor controversy against otherwise made available to the SEC.
(v) Since September 30, 2006, GAFC and its Subsidiaries have not incurred any Loan Party liability other than in the ordinary course of business consistent with past practice or for legal, accounting, and financial advisory fees and out-of-pocket expenses in connection with the transactions contemplated by this Agreement.
(vi) Since September 30, 2006, (A) GAFC and its Subsidiaries have conducted their respective businesses in the ordinary and usual course consistent with past practice (excluding matters related to this Agreement and the transactions contemplated hereby) and (B) no event has occurred or circumstance arisen that, individually or taken together with all other facts, circumstances and events (described in any Subsidiary paragraph of a Loan Party Section 6.03 or any of their Property whichotherwise), if adversely determined, could is reasonably be expected likely to have a Material Adverse Effect, (ii) the occurrence of any Material Adverse Effect, (iii) the occurrence of any Default or (iv) any change in the information provided in the Beneficial Ownership Certification that would result in a change Effect with respect to the list of beneficial owners identified in of such certification;
(i) on the Closing Date and with each of the financial statements delivered pursuant to subsections (a) (other than the last Fiscal Quarter of each Fiscal Year) and (b) above, a compliance certificate (“Compliance Certificate”) in the form attached hereto as Exhibit F signed by a Financial Officer of the Borrower to the effect that to the best of such officer’s knowledge and belief no Default has occurred during the period covered by such statements or, if any such Default has occurred during such period, setting forth a description of such Default and specifying the action, if any, taken by the relevant Loan Party or its Subsidiary to remedy the same. Such certificate shall also set forth the calculations supporting such statements in respect of Section 8.22 (Financial Covenants); and
(j) on the Closing Date and with each of the financial statements delivered pursuant to subsections (a) (other than the last Fiscal Quarter of each Fiscal Year) and (b) above, a Borrowing Base Certificate showing the computation of the Borrowing Base Value, in reasonable detail as of the close of business on the last day of such Fiscal Quarter or Fiscal Year, as applicable, prepared by the Borrower and certified to by its chief financial officer or another officer of the Borrower reasonably acceptable to the Administrative Agent; and
(k) within a reasonable period of time following any such request therefor, from time to time, (i) such other information regarding the operations, business affairs and financial condition of any Loan Party or any Subsidiary of a Loan Party, or compliance with the terms of any Loan Document, as the Administrative Agent or any Lender may reasonably request or (ii) information and documentation reasonably requested by the Administrative Agent or any Lender for purposes of compliance with applicable “know your customer” requirements under the Patriot Act or other applicable Anti-Corruption Laws and the Beneficial Ownership Regulation. Notwithstanding the foregoing, the filing of the Borrower’s financial statements with the U.S. Securities and Exchange Commission on Form 10-K or Form 10-Q shall satisfy the requirements of Section 8.5(a)(i) and (b), respectivelyGAFC.
Appears in 1 contract
Sources: Agreement and Plan of Reorganization (Greater Atlantic Financial Corp)
Financial Reports. The Loan Parties shall, and shall cause each of their Subsidiaries to, maintain proper books of records and accounts reasonably necessary to prepare financial statements required to be delivered pursuant to this Section 8.5 in accordance with GAAP and Borrower shall furnish to the Administrative Administration Agent with sufficient copies for itself, the Syndication Agent and each Lender:
(a) as soon as available, promptly upon availability and in any event no later than sixty (60) within 90 days after the last day end of each Fiscal Quarter its fiscal year, its annual audited financial statements (including a balance sheet and statements of each Fiscal Year of profit and loss and cash flow for such fiscal year) prepared on a consolidated basis and annual unaudited financial statements prepared separately for the Borrower, a copy of (i) the company-prepared consolidated balance sheets of Borrower and each of its Subsidiaries as of the last day of such Fiscal Quarter and the consolidated statements of operations, changes in equity (deficit) and cash flows of Borrower for the Fiscal Quarter and for the Fiscal Year-to-date period then endedSubsidiaries, in reasonable detail andeach case in accordance with GAAP, if available, showing and setting forth in comparative form the corresponding figures for the corresponding date and period of the preceding fiscal period, all in reasonable detail, together, in the previous Fiscal Year, prepared by case of the applicable party in accordance with GAAP (subject to the absence of footnote disclosures and year-end audit adjustments) and certified to by a Financial Officer of Borrower and (ii) operating Borrower's audited financial statements, rent roll and accounts receivable aging for each Borrowing Base Propertywith the Auditor's report to directors, shareholders or lenders, as appropriate, thereon, which report shall contain no qualifications;
(b) as soon as available, promptly upon availability and in any event no later than one hundred twenty (120) within 90 days after the last day end of each Fiscal Year of the Borrowerits fiscal year, a copy of the consolidated balance sheets of Borrower and its Subsidiaries as of the last day of the Fiscal Year then ended and the consolidated statements of statements of operations, comprehensive loss, shareholders’ equity (deficit) and cash flows of Borrower and its Subsidiaries for the Fiscal Year then endedannual audited Special Purpose Financial Statements, and accompanying notes thereto, each in reasonable detail and, if available, showing setting forth in comparative form form, the corresponding figures for the previous Fiscal Year, accompanied corresponding period of the preceding fiscal period and the corresponding figures for the corresponding period set forth in the case of Financial Forecast, all in reasonable detail, together with the consolidated financial statements by an unqualified opinion of BDO USAAuditor's report to directors or lenders, P.C.as appropriate, or another firm of independent public accountants of recognized national standingthereon, selected by ▇▇▇▇▇▇▇▇ and reasonably satisfactory which report shall be substantially in the form delivered to the Administrative AgentLenders under the 1999 Credit Agreement and shall otherwise contain no qualifications;
(c) [reserved];
(d) promptly after the sending or filing thereof, copies of each financial statement, report, notice or proxy statement sent by upon availability and in any Loan Party or any Subsidiary of a Loan Party to its stockholders or other equity holders, and copies of each regular, periodic or special report, registration statement or prospectus filed by any Loan Party or any Subsidiary of a Loan Party with any securities exchange;
(e) [reserved];
(f) event within ninety (90) 45 days after the end of each Fiscal Year of its first three fiscal quarters in each fiscal year, its unaudited quarterly Special Purpose Financial Statements and unaudited quarterly financial statements (including a balance sheet and statements of profit and loss and cash flow) for such quarterly fiscal period, prepared on a consolidated basis and separately for the Borrower and each of its Lasco, Raritan, Sayreville, Recycling and Corporate operating units, in each case in accordance with GAAP, setting forth in comparative form the corresponding figures for the corresponding period of the preceding fiscal period, and the corresponding figures for the corresponding period set forth in the Financial Forecast all in reasonable detail and accompanied by a management discussion and analysis of variances between actual results and the Financial Forecast and of significant matters, including, without limitation of labour negotiations, pending and current litigation and general market conditions, and market positioning of the Borrower, a copy of the Borrower’s operating budget and projections for the following year including consolidated projections of revenues, expenses and balance sheet on a quarter-by-quarter basis, with such operating budget and projections in reasonable detail prepared by Borrower and in form reasonably satisfactory to the Administrative Agent (which shall include a summary of all significant assumptions made in preparing such projections);
(gd) notice of any Change of Control;
at the times referred to in (h) promptly after knowledge thereof shall have come to the attention of any Responsible Officer of any Loan Party, written notice of (i) any threatened or pending litigation or governmental or arbitration proceeding or labor controversy against any Loan Party or any Subsidiary of a Loan Party or any of their Property which, if adversely determined, could reasonably be expected to have a Material Adverse Effecta), (ii) the occurrence of any Material Adverse Effect, (iii) the occurrence of any Default or (iv) any change in the information provided in the Beneficial Ownership Certification that would result in a change to the list of beneficial owners identified in of such certification;
(i) on the Closing Date and with each of the financial statements delivered pursuant to subsections (a) (other than the last Fiscal Quarter of each Fiscal Yearb) and (bc) above, a compliance certificate (“Compliance Certificate”) in the form attached hereto as Exhibit F signed by a Financial Officer of the Borrower to the effect that to the best of such officer’s knowledge and belief no Default has occurred during the period covered by such statements or, if any such Default has occurred during such period, setting forth a description of such Default and specifying the action, if any, taken by the relevant Loan Party or its Subsidiary to remedy the same. Such certificate shall also set forth the calculations supporting such statements in respect of Section 8.22 (Financial Covenants); and;
(je) on promptly upon availability and in any event within 25 days after the Closing Date and with end of each of the financial statements delivered pursuant to subsections (a) (month other than December and within 45 days after the last Fiscal Quarter end of each Fiscal Year) and (b) above, a Borrowing Base Certificate showing the computation of the Borrowing Base Value, in reasonable detail as of the close of business on the last day of such Fiscal Quarter or Fiscal Year, as applicable, prepared by the Borrower and certified to by its chief financial officer or another officer of the Borrower reasonably acceptable to the Administrative Agent; and
(k) within a reasonable period of time following any such request therefor, from time to timeDecember, (i) unaudited monthly financial statements (including a balance sheet and statements of profit and loss and cash flow) for such other information regarding the operations, business affairs and financial condition of any Loan Party or any Subsidiary of a Loan Party, or compliance with the terms of any Loan Document, as the Administrative Agent or any Lender may reasonably request or (ii) information and documentation reasonably requested by the Administrative Agent or any Lender month for purposes of compliance with applicable “know your customer” requirements under the Patriot Act or other applicable Anti-Corruption Laws and the Beneficial Ownership Regulation. Notwithstanding the foregoing, the filing each of the Borrower’s financial statements 's Lasco, Raritan, Sayreville and Recycling operating units, in each case in accordance with GAAP, setting forth in comparative form the U.S. Securities corresponding figures for the corresponding period of the preceding fiscal period, and Exchange Commission on Form 10-K or Form 10-Q shall satisfy the requirements corresponding figures for the corresponding period set forth in the Financial Forecast all in reasonable detail and accompanied by a management discussion and analysis of Section 8.5(a)(i) variances between actual results and (b)the Financial Forecast and of significant matters, respectively.including, without limitation of labour negotiations, pending and current litigation, pension and trade cases and general market conditions and market positioning of the Borrower;
Appears in 1 contract
Financial Reports. The Loan Parties shall, and shall cause each of their Subsidiaries to, maintain proper books of records and accounts reasonably necessary to prepare financial statements required to be delivered pursuant to this Section 8.5 in accordance with GAAP and shall furnish to the Administrative Agent and each Lender:
(a) as soon as available, and in any event no later than sixty (60) 45 days after the last day of each Fiscal Quarter March, June and September of each Fiscal Year of the Borrowerfiscal year, a copy of (i) the company-prepared consolidated balance sheets sheet of the Borrower and its Subsidiaries as of the last day of such Fiscal Quarter fiscal quarter and the consolidated statements of operationsincome, changes in equity (deficit) retained earnings, and cash flows of the Borrower and its Subsidiaries for the Fiscal Quarter fiscal quarter and for the Fiscal Year-to-date fiscal year‑to‑date period then ended, each in reasonable detail and, if available, showing in comparative form the figures for the corresponding date and period in the previous Fiscal Yearfiscal year, prepared by the applicable party Borrower in accordance with GAAP (subject to the absence of footnote disclosures and year-end year‑end audit adjustments) and certified to by a Financial Officer of Borrower and (ii) operating statements, rent roll and accounts receivable aging for each Borrowing Base Propertythe Borrower;
(b) as soon as available, and in any event no later than one hundred twenty (120) 90 days after the last day of each Fiscal Year fiscal year of the Borrower, a copy of the consolidated and consolidating balance sheets sheet of the Borrower and its Subsidiaries as of the last day of the Fiscal Year fiscal year then ended and the consolidated and consolidating statements of statements of operationsincome, comprehensive lossretained earnings, shareholders’ equity (deficit) and cash flows of the Borrower and its Subsidiaries for the Fiscal Year fiscal year then ended, and accompanying notes thereto, each in reasonable detail and, if available, showing in comparative form the figures for the previous Fiscal Yearfiscal year, accompanied in the case of the consolidated financial statements by an unqualified opinion (without any qualification or exception which is of BDO USA, P.C., a “going concern” or similar nature as to a limitation on the scope of audit) of KPMG LLP or another firm of independent public accountants of recognized national standing, selected by ▇▇▇▇▇▇▇▇ and reasonably satisfactory the Borrower, to the Administrative Agenteffect that the consolidated financial statements have been prepared in accordance with GAAP and present fairly in all material respects in accordance with GAAP the consolidated financial condition of the Borrower and its Subsidiaries as of the close of such fiscal year and the results of their operations and cash flows for the fiscal year then ended and that an examination of such accounts in connection with such financial statements has been made in accordance with generally accepted auditing standards and, accordingly, such examination included such tests of the accounting records and such other auditing procedures as were considered necessary in the circumstances;
(c) [reserved]promptly after receipt thereof, any additional written reports that detail any material weakness in the Borrower’s internal controls given to it by its independent public accountants;
(d) promptly after the sending or filing thereof, copies of each financial statement, report, notice or proxy statement sent by any Loan Party or any Subsidiary of a Loan Party to its stockholders or other equity holders, and copies of each regular, periodic or special report, registration statement or prospectus (including all Form 10‑K, Form 10‑Q and Form 8‑K reports) filed by any Loan Party or any Subsidiary of a Loan Party with any securities exchangeexchange or the Securities and Exchange Commission or any successor agency;
(e) [reserved]promptly after receipt thereof, a copy of each notice received from any regulatory agency of competent jurisdiction of any material noncompliance with any applicable law or regulation relating to a Loan Party or any Subsidiary of a Loan Party or their respective businesses;
(f) within ninety (90) as soon as available, and in any event no later than 60 days after the end of each Fiscal Year fiscal year of the Borrower, a copy of the Borrower’s consolidated operating budget and projections plan for the following year including consolidated projections Borrower and its Subsidiaries for the then current fiscal year, such operating plan to show the projected revenues and expenses of revenues, expenses the Borrower and balance sheet its Subsidiaries on a quarter-by-quarter quarter‑by‑quarter basis, with such operating budget and projections plan to be in reasonable detail prepared by the Borrower and in form reasonably satisfactory to the Administrative Agent (which shall include a summary of all significant assumptions made in preparing such projectionsoperating plan);
(g) notice of any Change of Control;
(h) promptly after knowledge thereof shall have come to the attention of any Responsible Officer of any Loan Party, written notice of (i) any threatened or pending litigation or governmental or arbitration proceeding or labor controversy against any Loan Party or any Subsidiary of a Loan Party or any of their Property which, if adversely determined, could would reasonably be expected to have a Material Adverse Effect, (ii) the occurrence of any Material Adverse Effect, or (iii) the occurrence of any Default or (iv) any change in the information provided in the Beneficial Ownership Certification that would result in a change to the list of beneficial owners identified in of such certificationDefault;
(i) on the Closing Date and with each of the financial statements delivered pursuant to subsections (a) (other than the last Fiscal Quarter of each Fiscal Year) and (b) above, a compliance written certificate (“Compliance Certificate”) in the form attached hereto as Exhibit F E signed by a Financial Officer of the Borrower to the effect that to the best of such officer’s knowledge and belief no Default has occurred during the period covered by such statements or, if any such Default has occurred during such period, setting forth a description of such Default and specifying the action, if any, taken by the relevant Loan Party or its Subsidiary to remedy the same. Such certificate shall also set forth the calculations supporting such statements in respect of Section 8.22 8.23 (Financial Covenants); and;
(j) on (i) notice of any investment made pursuant to Section 8.9(e) and notice of the Closing Date repayment of any such investment, (ii) notice of the incurrence of any Indebtedness permitted by Section 8.7(g) and with each Section 8.7(p), which such notice shall include a pro forma calculation of the financial statements delivered pursuant to subsections (acovenant set forth in Section 8.23(b) (other than the last Fiscal Quarter of each Fiscal Yearif such Indebtedness constitutes Subordinated Debt) and or in Section 8.23(a) (b) above, a Borrowing Base Certificate showing the computation of the Borrowing Base Value, in reasonable detail as of the close of business on the last day of if such Fiscal Quarter or Fiscal Year, as applicable, prepared by the Borrower and certified to by its chief financial officer or another officer of the Borrower reasonably acceptable to the Administrative AgentIndebtedness does not constitute Subordinated Debt); and
(k) within a reasonable period of time following any such request thereforpromptly, from time to time, (i) such other information regarding the operations, business affairs and financial condition of any Loan Party or any Subsidiary of a Loan Party, or compliance with the terms of any Loan Document, as the Administrative Agent or any Lender may reasonably request request. Documents required to be delivered pursuant to Section 8.5(a), (b) or (d) (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, shall be deemed to have been delivered on the date on which (i) the Borrower posts such documents, or provides a link thereto, on the Borrower’s website on the internet at the following website address ▇▇▇.▇▇▇▇▇▇▇▇▇.▇▇▇; or (ii) information such documents are posted on the Borrower’s behalf on an internet or intranet website, if any, to which each Lender and documentation reasonably requested the Administrative Agent have access (whether a commercial, third-party website or whether sponsored by the Administrative Agent or any Lender for purposes of compliance with applicable “know your customer” requirements under the Patriot Act or other applicable Anti-Corruption Laws and the Beneficial Ownership Regulation. Notwithstanding the foregoing, the filing of the Borrower’s financial statements with the U.S. Securities and Exchange Commission on Form 10-K or Form 10-Q shall satisfy the requirements of Section 8.5(a)(i) and (bAgent), respectively.
Appears in 1 contract
Sources: Credit Agreement (Envestnet, Inc.)
Financial Reports. The Loan Parties shallServicer shall furnish, and shall or cause each of their Subsidiaries to, maintain proper books of records and accounts reasonably necessary to prepare financial statements required to be delivered pursuant to this Section 8.5 in accordance with GAAP and shall furnish furnished, to the Administrative Agent and each LenderFacility Agent:
(ai) as soon as available, available and in any event no later than sixty (60) days after the last day of each Fiscal Quarter of each Fiscal Year of the Borrower, a copy of (i) the company-prepared consolidated balance sheets of Borrower and its Subsidiaries as of the last day of such Fiscal Quarter and the consolidated statements of operations, changes in equity (deficit) and cash flows of Borrower for the Fiscal Quarter and for the Fiscal Year-to-date period then ended, in reasonable detail and, if available, showing in comparative form the figures for the corresponding date and period in the previous Fiscal Year, prepared by the applicable party in accordance with GAAP (subject to the absence of footnote disclosures and year-end audit adjustments) and certified to by a Financial Officer of Borrower and (ii) operating statements, rent roll and accounts receivable aging for each Borrowing Base Property;
(b) as soon as available, and in any event no later than one hundred twenty (120) days after the last day of each Fiscal Year of the Borrower, a copy of the consolidated balance sheets of Borrower and its Subsidiaries as of the last day of the Fiscal Year then ended and the consolidated statements of statements of operations, comprehensive loss, shareholders’ equity (deficit) and cash flows of Borrower and its Subsidiaries for the Fiscal Year then ended, and accompanying notes thereto, each in reasonable detail and, if available, showing in comparative form the figures for the previous Fiscal Year, accompanied in the case of the consolidated financial statements by an unqualified opinion of BDO USA, P.C., or another firm of independent public accountants of recognized national standing, selected by ▇▇▇▇▇▇▇▇ and reasonably satisfactory to the Administrative Agent;
(c) [reserved];
(d) promptly after the sending or filing thereof, copies of each financial statement, report, notice or proxy statement sent by any Loan Party or any Subsidiary of a Loan Party to its stockholders or other equity holders, and copies of each regular, periodic or special report, registration statement or prospectus filed by any Loan Party or any Subsidiary of a Loan Party with any securities exchange;
(e) [reserved];
(f) within ninety (90) 120 days after the end of each Fiscal Year of the Borrowerfiscal year, a copy of the Borrower’s operating budget and projections audited consolidated financial statements for the following prior year for the Servicer, inclusive of its consolidated Subsidiaries, including the prior comparable period (if any) from the preceding fiscal year and certified by Independent Accountants (the report of which shall be unqualified), and certified by an Executive Officer of the Servicer with appropriate knowledge stating that the information set forth therein fairly presents the financial condition of the Servicer and its consolidated projections Subsidiaries as of revenues, expenses and balance sheet on a quarter-by-quarter basisfor such fiscal year, with all such operating budget financial statements being prepared in accordance with GAAP applied consistently throughout the period involved (except for changes in the application of GAAP approved by such accountants in accordance with GAAP and projections disclosed therein) (it being agreed that financial statements included in reasonable detail prepared by Borrower and in form reasonably satisfactory the Servicer’s annual reports on Form 10-K for such fiscal year, as filed with the SEC, shall USActive 58353885.2 satisfy this Section 7.5(k)(i) with respect to such fiscal year so long as the Servicer delivers such financial statements to the Administrative Facility Agent (which shall include a summary of all significant assumptions made in preparing such projectionswithin the time period required above);; and
(g) notice of any Change of Control;
(h) promptly after knowledge thereof shall have come to the attention of any Responsible Officer of any Loan Party, written notice of (i) any threatened or pending litigation or governmental or arbitration proceeding or labor controversy against any Loan Party or any Subsidiary of a Loan Party or any of their Property which, if adversely determined, could reasonably be expected to have a Material Adverse Effect, (ii) as soon as available and in any event within 45 days after the occurrence end of any Material Adverse Effect, (iii) the occurrence each fiscal quarter of any Default or (iv) any change in the information provided in the Beneficial Ownership Certification that would result in a change to the list of beneficial owners identified in of such certification;
(i) on the Closing Date and with each of the financial statements delivered pursuant to subsections (a) fiscal year (other than the last Fiscal Quarter fiscal quarter of each Fiscal Year) fiscal year), an unaudited consolidated balance sheet of the Servicer, inclusive of its consolidated Subsidiaries, as of the end of such fiscal quarter and including the prior comparable period (b) aboveif any), a compliance certificate (“Compliance Certificate”) in and the form attached hereto as Exhibit F signed unaudited consolidated statements of income, and of cash flow, of the Servicer and its consolidated Subsidiaries for such fiscal quarter and for the period commencing at the end of the previous fiscal year and ending with the end of such fiscal quarter, certified by a Financial an Executive Officer of the Borrower Servicer identifying such documents as being the documents described in this paragraph (ii) and stating that the information set forth therein fairly presents the financial condition of the Servicer and its consolidated Subsidiaries as of and for the periods then ended, subject to year‑end adjustments and confirming that the effect that to Servicer is in compliance with all financial covenants in the best of such officer’s knowledge and belief no Default has occurred during the period covered by such statements Transaction Documents (or, if any such Default has occurred during such periodthe Servicer is not in compliance, setting forth a description of such Default and specifying the action, if any, taken by the relevant Loan Party or its Subsidiary to remedy the same. Such certificate shall also set forth the calculations supporting such statements in respect of Section 8.22 nature and status thereof) (Financial Covenants); and
(j) on the Closing Date and with each of the it being agreed that financial statements delivered pursuant to subsections (a) (other than included in the last Fiscal Quarter of each Fiscal Year) and (b) above, a Borrowing Base Certificate showing the computation of the Borrowing Base Value, in reasonable detail as of the close of business on the last day of such Fiscal Quarter or Fiscal Year, as applicable, prepared by the Borrower and certified to by its chief financial officer or another officer of the Borrower reasonably acceptable to the Administrative Agent; and
(k) within a reasonable period of time following any such request therefor, from time to time, (i) such other information regarding the operations, business affairs and financial condition of any Loan Party or any Subsidiary of a Loan Party, or compliance with the terms of any Loan Document, as the Administrative Agent or any Lender may reasonably request or (ii) information and documentation reasonably requested by the Administrative Agent or any Lender for purposes of compliance with applicable “know your customer” requirements under the Patriot Act or other applicable Anti-Corruption Laws and the Beneficial Ownership Regulation. Notwithstanding the foregoing, the filing of the BorrowerServicer’s financial statements with the U.S. Securities and Exchange Commission quarterly reports on Form 10-K or Form 10-Q for such fiscal quarter, as filed with the SEC, shall satisfy this subsection 7.5(k)(ii) with respect to such fiscal quarter so long as the requirements of Section 8.5(a)(i) and (bServicer delivers such financial statements to the Facility Agent within the time period required above), respectively.
Appears in 1 contract
Sources: Loan Financing and Servicing Agreement (MSD Investment Corp.)
Financial Reports. The Loan Parties Borrower shall, and shall cause each of their Subsidiaries Subsidiary to, maintain proper books a standard system of records and accounts reasonably necessary to prepare financial statements required to be delivered pursuant to this Section 8.5 accounting in accordance with GAAP and shall furnish to the Administrative Agent Agent, each Lender and each Lenderof their duly authorized representatives such information respecting the business and financial condition of the Borrower and each Subsidiary as the Administrative Agent or such Lender may reasonably request; and without any request, shall furnish to the Administrative Agent for distribution to the Lenders:
(ai) as soon as available, and in any event no later than sixty ninety (6090) days after the last day each fiscal year of the Borrower, a copy of the consolidated and consolidating balance sheet of the Borrower and its Subsidiaries as of the last day of the fiscal year then ended and the consolidated and consolidating statements of income, retained earnings, and cash flows of the Borrower and its Subsidiaries for the fiscal year then ended, and accompanying notes thereto, each in reasonable detail showing in comparative form the figures for the previous fiscal year, accompanied by an unqualified opinion of independent public accountants of recognized national standing, selected by the Borrower and reasonably satisfactory to the Administrative Agent, to the effect that the consolidated financial statements have been prepared in accordance with GAAP and present fairly in accordance with GAAP the consolidated financial condition of the Borrower and its Subsidiaries as of the close of such fiscal year and the results of their operations and cash flows for the fiscal year then ended and that an examination of such accounts in connection with such financial statements has been made in accordance with generally accepted auditing standards and, accordingly, such examination included such tests of the accounting records and such other auditing procedures as were considered necessary in the circumstances;
(ii) within the period provided in subsection (a) above, the written statement of the accountants who certified the audit report thereby required that in the course of their audit they have obtained no knowledge of any Default or Event of Default, or, if such accountants have obtained knowledge of any such Default or Event of Default, they shall disclose in such statement the nature and period of the existence thereof;
(iii) as soon as available, and in any event no later than forty-five (45) days after the last day of each Fiscal Quarter fiscal quarter of each Fiscal Year fiscal year of the Borrower, a copy of (i) the company-prepared consolidated and consolidating balance sheets sheet of the Borrower and its Subsidiaries as of the last day of such Fiscal Quarter fiscal quarter and the consolidated and consolidating statements of operationsincome, changes in equity (deficit) retained earnings, and cash flows of the Borrower and its Subsidiaries for the Fiscal Quarter fiscal quarter and for the Fiscal Yearfiscal year-to-date period then ended, each in reasonable detail and, if available, showing in comparative form the figures for the corresponding date and period in the previous Fiscal Yearfiscal year, prepared by the applicable party Borrower in accordance with GAAP (subject to the absence of footnote disclosures and year-end audit adjustments) and certified to by a Financial Officer its chief financial officer, chief accounting officer or another officer of the Borrower and (ii) operating statements, rent roll and accounts receivable aging for each Borrowing Base Propertyreasonably acceptable to the Administrative Agent;
(biv) as soon as available, and in any event no later than one hundred twenty within forty-five (12045) days after the last day of each Fiscal Year of the Borrower, a copy of the consolidated balance sheets of Borrower and its Subsidiaries as of Quarter (or ninety (90) days after the last day of each Fiscal Year) a Borrowing Base Certificate showing the Fiscal Year then ended and computation of the consolidated statements of statements of operations, comprehensive loss, shareholders’ equity (deficit) and cash flows of Borrower and its Subsidiaries for the Fiscal Year then ended, and accompanying notes thereto, each Borrowing Base in reasonable detail and, if available, showing in comparative form the figures for the previous Fiscal Year, accompanied in the case as of the consolidated close of business on the last day of such fiscal quarter, prepared by the Borrower and certified to by its chief financial statements by an unqualified opinion of BDO USAofficer, P.C., chief accounting officer or another firm officer of independent public accountants of recognized national standing, selected by ▇▇▇▇▇▇▇▇ and reasonably satisfactory the Borrower acceptable to the Administrative Agent;
(cv) [reserved]with each of the financial statements delivered pursuant to subsections (a) and (b) above, a Compliance Certificate (“Compliance Certificate”) in the form attached hereto as Exhibit E signed by the chief financial officer, chief accounting officer or another officer of the Borrower reasonably acceptable to the Administrative Agent to the effect that to the best of such officer’s knowledge and belief no Default or Event of Default has occurred during the period covered by such statements or, if any such Default or Event of Default has occurred during such period, setting forth a description of such Default or Event of Default and specifying the action, if any, taken by the Borrower or any Subsidiary to remedy the same. Such certificate shall also set forth the calculations supporting such statements in respect of Section 8.20 hereof;
(dvi) promptly after receipt thereof, any additional written reports, management letters or other detailed information contained in writing concerning significant aspects of the Borrower’s or any Subsidiary’s operations and financial affairs given to it by its independent public accountants;
(vii) promptly after the sending or filing thereof, copies of each financial statement, report, notice or proxy statement sent by any Loan Party the Borrower or any Subsidiary of a Loan Party to its stockholders or other equity holders, and upon written request from the Administrative Agent, copies of each regular, periodic or special report, registration statement or prospectus (including all Form 10-K, Form 10-Q and Form 8-K reports) filed by any Loan Party the Borrower or any Subsidiary of a Loan Party with any securities exchangeexchange or the Securities and Exchange Commission or any successor agency;
(eviii) [reserved];
(f) within ninety (90) days promptly after the end of each Fiscal Year of the Borrowerreceipt thereof, a copy of each audit made by any regulatory agency of the Borrower’s operating budget books and projections for records of the following year including consolidated projections Borrower or any Subsidiary or of revenuesnotice of any material noncompliance with any applicable law, expenses and balance sheet on a quarter-by-quarter basis, with such operating budget and projections in reasonable detail prepared by Borrower and in form reasonably satisfactory regulation or guideline relating to the Administrative Agent (which shall include a summary of all significant assumptions made in preparing such projections)Borrower or any Subsidiary, or its business;
(gix) reserved;
(x) notice of any Change of Control;
(hxi) promptly after knowledge thereof shall have come to the attention of any Responsible Officer of any Loan Partythe Borrower, written notice of (i) any threatened (in writing) or pending litigation or governmental or arbitration proceeding or labor controversy against any Loan Party the Borrower or any Subsidiary of a Loan Party or any of their Property which, if adversely determined, or other assets which could reasonably be expected to have a Material Adverse Effect, (ii) the occurrence of any matter which could reasonably be expected to have a Material Adverse Effect, (iii) the occurrence of any Default or Event of Default hereunder or (iv) any change in the information provided in the Beneficial Ownership Certification that would result in a change to the list of beneficial owners identified in of such certification;
(ixii) on within forty-five (45) days of the Closing Date and with end of each of the financial statements delivered pursuant to subsections first three (a3) fiscal quarters and within ninety (other than 90) days after the close of the last Fiscal Quarter fiscal quarter of each Fiscal Yearthe year (i) a list of all newly formed or acquired Subsidiaries during such quarter (such list shall contain the information relative to such new Subsidiaries as set forth in Schedule 6.2 hereto); (ii) a list of newly executed Significant Leases during such quarter; (iii) a copy of any notice of a material default or any other material notice (including without limitation property condition reviews) received by the Borrower or any Guarantor from any ground lessor under a Significant Lease during such quarter and (biv) above, a compliance certificate schedule showing for such quarter (“Compliance Certificate”A) any Significant Lease that was or is continuing to be in default with respect to monthly contractual rent payments in excess of sixty (60) days;
(xiii) promptly after knowledge thereof shall have come to the form attached hereto as Exhibit F signed by a Financial attention of any Responsible Officer of the Borrower Borrower, written notice to each Lender ifthe Administrative Agent if (i) amounts payable under a Significant Lease of any Eligible Property or portion thereof included in the effect that Borrowing Base Value is more than sixty (60) days past due, (ii) amounts payable under a Borrowing Base Mortgage Receivable is more than sixty (60) days past due, or (iii) any Borrowing Base Asset fails to the best of such officer’s knowledge and belief no Default has occurred during the period covered by such statements or, if any such Default has occurred during such period, setting forth a description of such Default and specifying the action, if any, taken by the relevant Loan Party or its Subsidiary to remedy the same. Such certificate shall also set forth the calculations supporting such statements in respect of Section 8.22 (Financial Covenants)qualify as an Eligible Asset; and
(jxiv) on promptly after the Closing Date and with each request of the financial statements delivered pursuant to subsections (a) (other than the last Fiscal Quarter of each Fiscal Year) and (b) aboveany Lender, a Borrowing Base Certificate showing the computation of the Borrowing Base Value, in reasonable detail as of the close of business on the last day of such Fiscal Quarter or Fiscal Year, as applicable, prepared by the Borrower and certified to by its chief financial officer or another officer of the Borrower reasonably acceptable to the Administrative Agent; and
(k) within a reasonable period of time following any such request therefor, from time to time, (i) such other information regarding the operations, business affairs and financial condition of any Loan Party or any Subsidiary of a Loan Party, or compliance with the terms of any Loan Document, as the Administrative Agent or any Lender may reasonably request or (ii) information and documentation report reasonably requested by a Lender. provided, however, to the Administrative Agent or any Lender for purposes of compliance with applicable “know your customer” requirements under the Patriot Act or other applicable Anti-Corruption Laws and the Beneficial Ownership Regulation. Notwithstanding the foregoing, the filing of the Borrower’s financial statements extent such items set forth above are filed with the U.S. Securities and Exchange Commission on Form 10-K or Form 10-Q otherwise are publicly available, the Borrower shall satisfy be deemed to have satisfied this covenant once it provides notice to the requirements Administrative Agent of Section 8.5(a)(i) and (b), respectively.such availability.
Appears in 1 contract
Financial Reports. The Loan Parties Borrower shall, and shall cause each of their Subsidiaries the Parent to, maintain proper books furnish to FMB and its duly authorized representatives such information respecting the business and financial condition of records and accounts the Borrower as FMB may reasonably necessary to prepare financial statements request; provided however, that in no event shall the Borrower be required to be delivered pursuant to this Section 8.5 in accordance with GAAP disclose any confidential correspondence or reports of supervisory activity; and without any request, shall furnish to the Administrative Agent and each LenderFMB:
(a) as soon as available, and in any event no later than sixty (60) within 45 days after the last day close of each Fiscal Quarter of each Fiscal Year fiscal quarter of the Borrower, a copy of (i) all call reports and other financial statements required to be delivered by the company-prepared consolidated balance sheets of Borrower and its Subsidiaries as of by each Subsidiary to any governmental authority or authorities having jurisdiction over the last day of Borrower or such Fiscal Quarter Subsidiary and the consolidated statements of operations, changes in equity (deficit) and cash flows of Borrower for the Fiscal Quarter and for the Fiscal Year-to-date period then ended, in reasonable detail and, if available, showing in comparative form the figures for the corresponding date and period in the previous Fiscal Year, prepared by the applicable party in accordance with GAAP (subject to the absence of footnote disclosures and year-end audit adjustments) and certified to by a Financial Officer of Borrower and (ii) operating statements, rent roll and accounts receivable aging for each Borrowing Base Propertyall schedules thereto;
(b) as soon as available, and in any event no later than one hundred twenty (120) event, within 120 days after the last day close of each Fiscal Year fiscal year of the Borrower, a copy of the consolidated balance sheets sheet of the Borrower and its Subsidiaries as of the last day close of the Fiscal Year then ended such period and the consolidated statements of statements of operationsincome, comprehensive loss, shareholders’ equity (deficit) retained earnings and cash flows of the Borrower and its Subsidiaries for the Fiscal Year then endedsuch period, and accompanying notes thereto, each in reasonable detail and, if available, showing in comparative form the figures for the previous Fiscal Yearfiscal year, accompanied in the case of the consolidated financial statements by an unqualified opinion thereon of BDO USAMcGladrey & P▇▇▇▇▇, P.C., LLP or another firm of independent public accountants of recognized national standing, selected by ▇▇▇▇▇▇▇▇ the Borrower and reasonably satisfactory to FMB, to the Administrative Agenteffect that the consolidated financial statements have been prepared in accordance with GAAP and present fairly the consolidated financial condition of the Borrower and its Subsidiaries as of the close of such fiscal year and the results of their operations and cash flows for the fiscal year then ended and that an examination of such accounts in connection with such consolidated financial statements has been made in accordance with generally accepted auditing standards and, accordingly, such examination included such tests of the accounting records and such other auditing procedures as were considered necessary in the circumstances;
(c) [reserved]promptly upon the filing thereof (if any), copies of all registration statements, Form 10- K, Form 10- Q, and Form 8- K reports and proxy statements which the Borrower or any Subsidiary files with the Securities and Exchange Commission;
(d) promptly after upon the sending receipt or filing execution thereof, copies of each financial statement, report, (i) notice or proxy statement sent by any Loan Party the Borrower or any Subsidiary that (1) it has received a request or directive from any federal or state regulatory agency which requires it to submit a capital maintenance or restoration plan or restricts the payment of dividends by any Subsidiary to the Borrower or (2) it has submitted a Loan Party capital maintenance or restoration plan to its stockholders any federal or other equity holdersstate regulatory agency or has entered into a memorandum or agreement with any such agency, including, without limitation, any agreement which restricts the payment of dividends by any Subsidiary to the Borrower or otherwise imposes restrictions or requirements on it which are not generally applicable to banks or thrifts or their holding companies, and (ii) copies of each regularany such plan, periodic memorandum, or special reportagreement, registration statement unless disclosure is prohibited by the terms thereof and, after the Borrower or prospectus filed by any Loan Party such Subsidiary has in good faith attempted to obtain the consent of such regulatory agency, such agency will not consent to the disclosure of such plan, memorandum, or any Subsidiary of a Loan Party with any securities exchangeagreement to FMB;
(e) [reserved];
(f) within ninety (90) days after the end of each Fiscal Year of the Borrower, a copy of the Borrower’s operating budget and projections for the following year including consolidated projections of revenues, expenses and balance sheet on a quarter-by-quarter basis, with such operating budget and projections in reasonable detail prepared by Borrower and in form reasonably satisfactory to the Administrative Agent (which shall include a summary of all significant assumptions made in preparing such projections);
(g) notice of any Change of Control;
(h) promptly after knowledge thereof shall have come to the attention of any Responsible Officer responsible officer of any Loan Partythe Borrower, written notice of (i) any notice received by the Borrower which would prevent the Borrower from making payments on the Note or otherwise affect the Borrower’s ability to fulfill its Obligations hereunder or of any threatened or pending litigation or governmental or arbitration proceeding or labor controversy against any Loan Party the Borrower or any Subsidiary of a Loan Party or any of their Property which, if adversely determined, could would reasonably be expected to have a Material Adverse Effect, (ii) the occurrence of any Material Adverse Effect, (iii) the occurrence of any Default or (iv) any change in the information provided in the Beneficial Ownership Certification that would result in a change to the list of beneficial owners identified in of such certification;; and
(if) on the Closing Date as soon as available, and with each of the financial statements delivered pursuant to subsections (a) (other than in any event within 45 days after the last Fiscal Quarter day of each Fiscal Year) and (b) abovecalendar quarter, the Borrower shall deliver to FMB a compliance written certificate (“Compliance Certificate”) in the form attached hereto as Exhibit F B signed by a Financial Officer the chief financial officer of the Borrower, or such other officer of the Borrower satisfactory to FMB, to the effect that to the best of such officer’s knowledge and belief no Default or Event of Default has occurred during the period covered by such statements or, if any such Default or Event of Default has occurred during such period, setting forth a description of such Default or Event of Default and specifying the action, if any, taken by the relevant Loan Party or its Subsidiary Borrower to remedy the same. Such certificate shall also set forth the calculations supporting such statements in respect of Section 8.22 (Financial Covenants); and
(j) on the Closing Date and with each of the financial statements delivered pursuant to subsections (a) (other than the last Fiscal Quarter of each Fiscal Year) and (b) above, a Borrowing Base Certificate showing the computation of the Borrowing Base Value, in reasonable detail as of the close of business on the last day of such Fiscal Quarter or Fiscal Year, as applicable, prepared by the Borrower and certified to by its chief financial officer or another officer of the Borrower reasonably acceptable to the Administrative Agent; and
(k) within a reasonable period of time following any such request therefor, from time to time, (i) such other information regarding the operations, business affairs and financial condition of any Loan Party or any Subsidiary of a Loan Party, or compliance with the terms of any Loan Document, as the Administrative Agent or any Lender may reasonably request or (ii) information and documentation reasonably requested by the Administrative Agent or any Lender for purposes of compliance with applicable “know your customer” requirements under the Patriot Act or other applicable Anti-Corruption Laws and the Beneficial Ownership Regulation. Notwithstanding the foregoing, the filing of the Borrower’s financial statements with the U.S. Securities and Exchange Commission on Form 10-K or Form 10-Q shall satisfy the requirements of Section 8.5(a)(i) and (b), respectively.
Appears in 1 contract
Financial Reports. The Loan Parties Borrower shall, and shall cause Parent and each of their Subsidiaries Subsidiary to, maintain proper books a standard system of records and accounts reasonably necessary to prepare financial statements required to be delivered pursuant to this Section 8.5 accounting in accordance with GAAP and shall furnish to the Administrative Agent Agent, each Lender and each Lender:
(a) of their duly authorized representatives such information respecting the business and financial condition of the Borrower and each Subsidiary as the Administrative Agent or such Lender may reasonably request; and without any request, shall furnish to the Administrative Agent for distribution to the Lenders: ●as soon as available, and in any event no later than sixty ninety (6090) days after the last day of each Fiscal Quarter fiscal year of each Fiscal Year of the BorrowerParent, a copy of the consolidated and consolidating balance sheet of Parent and its Subsidiaries as of the last day of the fiscal year then ended and the consolidated and consolidating statements of income, retained earnings, and cash flows of Parent and its Subsidiaries for the fiscal year then ended, and accompanying notes thereto, each in reasonable detail showing in comparative form the figures for the previous fiscal year, accompanied by an unqualified opinion of independent public accountants of recognized national standing, selected by Parent and reasonably satisfactory to the Administrative Agent, to the effect that the consolidated financial statements have been prepared in accordance with GAAP and present fairly in accordance with GAAP the consolidated financial condition of Parent and its Subsidiaries as of the close of such fiscal year and the results of their operations and cash flows for the fiscal year then ended and that an examination of such accounts in connection with such financial statements has been made in accordance with generally accepted auditing standards and, accordingly, such examination included such tests of the accounting records and such other auditing procedures as were considered necessary in the circumstances; ●within the period provided in subsection (ia) above, the companywritten statement of the accountants who certified the audit report thereby required that in the course of their audit they have obtained no knowledge of any Default or Event of Default, or, if such accountants have obtained knowledge of any such Default or Event of Default, they shall disclose in such statement the nature and period of the existence thereof; ●as soon as available, and in any event no later than forty-prepared five (45) days after the last day of each fiscal quarter of each fiscal year of Parent (or ninety (90) days after the last day of each fiscal year of Parent), a copy of the consolidated and consolidating balance sheets sheet of Borrower Parent and its Subsidiaries as of the last day of such Fiscal Quarter fiscal quarter and the consolidated and consolidating statements of operationsincome, changes in equity (deficit) retained earnings, and cash flows of Borrower Parent and its Subsidiaries for the Fiscal Quarter fiscal quarter and for the Fiscal Yearfiscal year-to-date period then ended, each in reasonable detail and, if available, showing in comparative form the figures for the corresponding date and period in the previous Fiscal Yearfiscal year, prepared by the applicable party Parent in accordance with GAAP (subject to the absence of footnote disclosures and year-end audit adjustments) and certified to by a Financial Officer of Borrower and (ii) operating statements, rent roll and accounts receivable aging for each Borrowing Base Property;
(b) as soon as available, and in any event no later than one hundred twenty (120) days after the last day of each Fiscal Year of the Borrower, a copy of the consolidated balance sheets of Borrower and its Subsidiaries as of the last day of the Fiscal Year then ended and the consolidated statements of statements of operations, comprehensive loss, shareholders’ equity (deficit) and cash flows of Borrower and its Subsidiaries for the Fiscal Year then ended, and accompanying notes thereto, each in reasonable detail and, if available, showing in comparative form the figures for the previous Fiscal Year, accompanied in the case of the consolidated chief financial statements by an unqualified opinion of BDO USA, P.C., officer or another firm officer of independent public accountants of recognized national standing, selected by ▇▇▇▇▇▇▇▇ and Parent reasonably satisfactory acceptable to the Administrative Agent;
; ●[Intentionally Omitted]; ●with each of the financial statements delivered pursuant to subsections (ca) [reserved];
and (db) above, a Compliance Certificate (“Compliance Certificate”) in the form attached hereto as Exhibit E signed by the chief financial officer of Parent or another officer of Parent reasonably acceptable to the Administrative Agent to the effect that to the best of such officer’s knowledge and belief no Default or Event of Default has occurred during the period covered by such statements or, if any such Default or Event of Default has occurred during such period, setting forth a description of such Default or Event of Default and specifying the action, if any, taken by the Borrower or any Subsidiary to remedy the same. Such certificate shall also set forth the calculations supporting such statements in respect of Section 8.20 hereof; ●promptly after receipt thereof, any additional written reports, management letters or other detailed information contained in writing concerning significant aspects of Parent’s or any Subsidiary’s operations and financial affairs given to it by its independent public accountants; ●promptly after the sending or filing thereof, copies of each financial statement, report, notice or proxy statement sent by any Loan Party Parent or any Subsidiary of a Loan Party to its stockholders or other equity holders, and upon written request from the Administrative Agent, copies of each regular, periodic or special report, registration statement or prospectus (including all Form 10-K, Form 10-Q and Form 8-K reports) filed by any Loan Party Parent or any Subsidiary of a Loan Party with any securities exchange;
(e) [reserved];
(f) within ninety (90) days exchange or the Securities and Exchange Commission or any successor agency; ●promptly after the end of each Fiscal Year of the Borrowerreceipt thereof, a copy of each audit made by any regulatory agency of the Borrower’s operating budget books and projections for the following year including consolidated projections records of revenuesParent or any Subsidiary or of notice of any material noncompliance with any applicable law, expenses and balance sheet on a quarter-by-quarter basisregulation or guideline relating to Parent or any Subsidiary, with such operating budget and projections in reasonable detail prepared by Borrower and in form reasonably satisfactory to the Administrative Agent (which shall include a summary of all significant assumptions made in preparing such projections);
(g) or their respective businesses; ●[Intentionally Omitted]; ●notice of any Change of Control;
(h) ; ●promptly after knowledge thereof shall have come to the attention of any Responsible Officer of any Loan PartyParent, written notice of (i) any threatened (in writing) or pending litigation or governmental or arbitration proceeding or labor controversy against any Loan Party Parent or any Subsidiary of a Loan Party or any of their Property which, if adversely determined, or other assets which could reasonably be expected to have a Material Adverse Effect, (ii) the occurrence of any matter which could reasonably be expected to have a Material Adverse Effect, (iii) the occurrence of any Default or Event of Default hereunder or (iv) any change in the information provided in the Beneficial Ownership Certification that would result in a change to the list of beneficial owners identified in of such certification;
; ●within forty-five (45) days of the end of each of the first three (3) fiscal quarters and within 90 days after the close of the last fiscal quarter of the year (i) on a list of all newly formed or acquired Subsidiaries during such quarter (such list shall contain the Closing Date and with each of the financial statements delivered pursuant information relative to subsections (a) (other than the last Fiscal Quarter of each Fiscal Year) such new Subsidiaries as set forth in Schedule 6.2 hereto), and (bii) above, a compliance certificate (“Compliance Certificate”) in the form attached hereto as Exhibit F signed by copy of any notice of a Financial Officer of the Borrower to the effect that to the best of such officer’s knowledge and belief no Default has occurred during the period covered by such statements or, if any such Default has occurred during such period, setting forth a description of such Default and specifying the action, if any, taken by the relevant Loan Party or its Subsidiary to remedy the same. Such certificate shall also set forth the calculations supporting such statements in respect of Section 8.22 (Financial Covenants); and
(j) on the Closing Date and with each of the financial statements delivered pursuant to subsections (a) (other than the last Fiscal Quarter of each Fiscal Year) and (b) above, a Borrowing Base Certificate showing the computation of the Borrowing Base Value, in reasonable detail as of the close of business on the last day of such Fiscal Quarter or Fiscal Year, as applicable, prepared material default by the Borrower and certified to by its chief financial officer or another officer of the Borrower reasonably acceptable any Guarantor from any ground lessor during such quarter; ●promptly after knowledge thereof shall have come to the attention of any Responsible Officer of Parent, written notice to each Lender ifthe Administrative Agent; and
(k) within a reasonable period of time following any such request therefor, from time to time, Agent if (i) such other information regarding the operations, business affairs and financial condition amounts payable under a Lease of any Loan Party Eligible Property or any Subsidiary of a Loan Partyportion thereof included in the Unencumbered Asset Value is more than sixty (60) days past due, or compliance with the terms of any Loan Document, as the Administrative Agent or any Lender may reasonably request or (ii) amounts payable under an Unencumbered Mortgage Receivable is more than sixty (60) days past due, or (iii) any Unencumbered Asset fails to qualify as an Eligible Asset; and ●promptly after the request of any Lender, any other information and documentation or report reasonably requested by a Le▇▇▇▇; provided, however, to the Administrative Agent or any Lender for purposes of compliance with applicable “know your customer” requirements under the Patriot Act or other applicable Anti-Corruption Laws and the Beneficial Ownership Regulation. Notwithstanding the foregoing, the filing of the Borrower’s financial statements extent such items set forth above are filed with the U.S. Securities and Exchange Commission on Form 10-K or Form 10-Q otherwise are publicly available, the Borrower shall satisfy be deemed to have satisfied this covenant once it provides notice to the requirements Administrative Agent of Section 8.5(a)(i) and (b), respectivelysuch availability.
Appears in 1 contract
Sources: Credit Agreement (Alpine Income Property Trust, Inc.)
Financial Reports. The Loan Parties Borrower shall, and shall cause each of their Subsidiaries Subsidiary to, maintain proper books a standard system of records and accounts reasonably necessary to prepare financial statements required to be delivered pursuant to this Section 8.5 accounting in accordance with GAAP and shall furnish to the Administrative Agent Agent, each Lender, the L/C Issuer and each Lenderof their duly authorized representatives such information respecting the business and financial condition of the Borrower and each Subsidiary as the Administrative Agent or such Lender may reasonably request; and without any request, shall furnish to the Administrative Agent for distribution to the Lenders and L/C Issuer:
(a) as soon as available, and in any event no later than sixty ninety (6090) days after the last day each Fiscal Year of the Borrower (commencing with the 2017 Fiscal Year), a copy of the consolidated balance sheet of the Borrower and its Subsidiaries as of the last day of the Fiscal Year then ended and the consolidated statements of income, retained earnings, and cash flows of the Borrower and its Subsidiaries for the Fiscal Year then ended, and accompanying notes thereto, each in reasonable detail showing in comparative form the figures for the previous Fiscal Year, accompanied by an unqualified opinion of independent public accountants of recognized national standing, selected by the Borrower and reasonably satisfactory to the Administrative Agent (the Administrative Agent hereby approving PFK O’▇▇▇▇▇▇ D▇▇▇▇▇, the independent public accountants engaged by the Borrower as of the Closing Date), to the effect that the consolidated financial statements have been prepared in accordance with GAAP and present fairly in all material respects in accordance with GAAP the consolidated financial condition of the Borrower and its Subsidiaries as of the close of such Fiscal Year and the results of their operations and cash flows for the Fiscal Year then ended and that an examination of such accounts in connection with such financial statements has been made in accordance with generally accepted auditing standards and, accordingly, such examination included such tests of the accounting records and such other auditing procedures as were considered necessary in the circumstances;
(b) within the period provided in subsection (a) above, the written statement of the accountants who certified the audit report thereby required that in the course of their audit they have obtained no knowledge of any Default or Event of Default, or, if such accountants have obtained knowledge of any such Default or Event of Default, they shall disclose in such statement the nature and period of the existence thereof;
(c) as soon as available, and in any event no later than forty-five (45) days after the last day of each of the first three Fiscal Quarter Quarters of each Fiscal Year of the BorrowerBorrower (commencing with the Fiscal Quarter ending on June 30, 2017), a copy of (i) the company-prepared consolidated balance sheets sheet of the Borrower and its Subsidiaries as of the last day of such Fiscal Quarter and the consolidated statements of operationsincome, changes in equity (deficit) retained earnings, and cash flows of the Borrower and its Subsidiaries for the Fiscal Quarter and for the Fiscal Year-to-date period then ended, each in reasonable detail andshowing, if available, showing in comparative form form, the figures for the corresponding date and period in the previous Fiscal Year, prepared by the applicable party Borrower in accordance with GAAP (subject to the absence of footnote disclosures and year-end audit adjustments) and certified to by a Financial Officer its chief financial officer or another officer of the Borrower and (ii) operating statements, rent roll and accounts receivable aging for each Borrowing Base Propertyreasonably acceptable to the Administrative Agent;
(bd) as soon as available, and in any event no later than one hundred twenty within (120i) forty-five (45) days after the last day of each of the first three Fiscal Quarters of each Fiscal Year of (commencing with the BorrowerFiscal Quarter ending on June 30, a copy of the consolidated balance sheets of Borrower 2013) and its Subsidiaries as of (ii) ninety (90) days after the last day of the last Fiscal Quarter of each Fiscal Year then ended and (commencing with the consolidated statements 2013 Fiscal Year), a Borrowing Base Certificate showing the computation of statements of operations, comprehensive loss, shareholders’ equity (deficit) and cash flows of Borrower and its Subsidiaries for the Fiscal Year then ended, and accompanying notes thereto, each Borrowing Base in reasonable detail and, if available, showing in comparative form the figures for the previous Fiscal Year, accompanied in the case as of the consolidated close of business on the last day of such Fiscal Quarter, prepared by the Borrower and certified to by its chief financial statements by an unqualified opinion of BDO USA, P.C., officer or another firm officer of independent public accountants of recognized national standing, selected by ▇▇▇▇▇▇▇▇ and the Borrower reasonably satisfactory acceptable to the Administrative Agent;
(e) with each of the financial statements delivered pursuant to subsections (a) and (c) [reserved]above, a compliance certificate (“Compliance Certificate”) in the form attached hereto as Exhibit E signed by the chief financial officer of the Borrower or another officer of the Borrower reasonably acceptable to the Administrative Agent to the effect that to such officer’s knowledge and belief no Default or Event of Default has occurred during the period covered by such statements or, if any such Default or Event of Default has occurred during such period, setting forth a description of such Default or Event of Default and specifying the action, if any, taken or being taken by the Borrower or any Subsidiary to remedy the same. Such certificate shall also set forth the calculations supporting such statements in respect of Section 8.20 hereof;
(df) promptly after receipt thereof, any additional written reports, management letters or other detailed information contained in writing concerning significant aspects of the Borrower’s or any Subsidiary’s operations and financial affairs given to it by its independent public accountants;
(g) promptly after the sending or filing thereof, copies of each financial statement, report, notice or proxy statement sent by any Loan Party the Borrower or any Subsidiary of a Loan Party to its stockholders or other equity holders, and upon written request from the Administrative Agent, copies of each regular, periodic or special report, registration statement or prospectus (including all Form 10-K, Form 10-Q and Form 8-K reports) filed by any Loan Party the Borrower or any Subsidiary of a Loan Party with any securities exchangeexchange or the Securities and Exchange Commission or any successor agency;
(eh) [reserved]promptly after receipt thereof, a copy of each audit made by any regulatory agency of the books and records of the Borrower or any Subsidiary or of notice of any material noncompliance with any applicable Legal Requirements relating to the Borrower or any Subsidiary, or its business;
(fi) as soon as available, and in any event within ninety thirty (9030) days after the end of each Fiscal Year of the Borrower, a copy of the Borrower’s operating budget and projections for the following year including consolidated projections of revenues, expenses and balance sheet on a quarter-by-quarter basis, with such operating budget and projections in reasonable detail prepared by the Borrower and in form reasonably satisfactory to the Administrative Agent (which shall include a summary of all significant assumptions made in preparing such projectionsbudget);
(gj) notice of any Change of Control;
(hk) promptly after knowledge thereof shall have come to the attention of any Responsible Officer of any Loan Partythe Borrower obtaining knowledge thereof, written notice of (i) any threatened (in writing) or pending litigation or governmental or arbitration proceeding or labor controversy against any Loan Party the Borrower or any Subsidiary of a Loan Party or any of their Property which, if adversely determined, which could reasonably be expected to have a Material Adverse Effect, (ii) the occurrence of any other matter which could reasonably be expected to have a Material Adverse Effect, Effect or (iii) the occurrence of any Default or (iv) any change in the information provided in the Beneficial Ownership Certification that would result in a change to the list Event of beneficial owners identified in of such certificationDefault;
(il) on the Closing Date and with each of the financial statements delivered pursuant to subsections (a) (other than the last Fiscal Quarter of each Fiscal Year) and (bc) above, a compliance certificate (“Compliance Certificate”) in if there have been any changes to the form attached hereto as Exhibit F signed by a Financial Officer organizational chart of the Borrower to and the effect that to the best of such officer’s knowledge and belief no Default has occurred Subsidiaries during the period covered by such statements ormost recently ended Fiscal Quarter, if any such Default has occurred during such perioda revised organizational chart, setting forth together with a description summary of such Default and specifying the action, if any, taken by the relevant Loan Party or its Subsidiary to remedy the same. Such certificate shall also set forth the calculations supporting such statements in respect of Section 8.22 (Financial Covenants)changes; and
(jm) on promptly after the Closing Date and with each request of the financial statements delivered pursuant to subsections (a) (any Lender, any other than the last Fiscal Quarter of each Fiscal Year) and (b) above, information or report reasonably requested by a Borrowing Base Certificate showing the computation of the Borrowing Base Value, in reasonable detail as of the close of business on the last day of Lender provided that any such Fiscal Quarter requested information or Fiscal Year, as applicable, prepared report is available or can be generated by the Borrower and certified to by its chief financial officer or another officer of the Borrower reasonably acceptable using commercially reasonable efforts; provided, however, to the Administrative Agent; and
(k) within a reasonable period of time following any extent such request therefor, from time to time, (i) such other information regarding the operations, business affairs and financial condition of any Loan Party or any Subsidiary of a Loan Party, or compliance items set forth above are filed with the terms of any Loan Document, as the Administrative Agent or any Lender may reasonably request or (ii) information and documentation reasonably requested by the Administrative Agent or any Lender for purposes of compliance with applicable “know your customer” requirements under the Patriot Act or other applicable Anti-Corruption Laws and the Beneficial Ownership Regulation. Notwithstanding the foregoing, the filing of the Borrower’s financial statements with the U.S. Securities and Exchange Commission on Form 10-K or Form 10-Q otherwise are publicly available, the Borrower shall satisfy be deemed to have satisfied this covenant once it provides notice to the requirements Administrative Agent of Section 8.5(a)(i) and (b), respectivelysuch availability.
Appears in 1 contract
Financial Reports. The Loan Parties Borrower shall, and shall cause each of their Subsidiaries Subsidiary to, maintain proper books a standard system of records and accounts reasonably necessary to prepare financial statements required to be delivered pursuant to this Section 8.5 accounting in accordance with GAAP and shall furnish to the Administrative Agent Agent, each Lender, the L/C Issuer and each Lenderof their duly authorized representatives such information respecting the business and financial condition of the Borrower and each Subsidiary as the Administrative Agent or such Lender may reasonably request; and without any request, shall furnish to the Administrative Agent for distribution to the Lenders and L/C Issuer:
(a) as soon as available, and in any event no later than sixty ninety (6090) days after the last day each Fiscal Year of the Borrower (commencing with the 2017 Fiscal Year), a copy of the consolidated balance sheet of the Borrower and its Subsidiaries as of the last day of the Fiscal Year then ended and the consolidated statements of income, retained earnings, and cash flows of the Borrower and its Subsidiaries for the Fiscal Year then ended, and accompanying notes thereto, each in reasonable detail showing in comparative form the figures for the previous Fiscal Year, accompanied by an unqualified opinion of independent public accountants of recognized national standing, selected by the Borrower and reasonably satisfactory to the Administrative Agent (the Administrative Agent hereby approving PFK O’▇▇▇▇▇▇ D▇▇▇▇▇, the independent public accountants engaged by the Borrower as of the Closing Date), to the effect that the consolidated financial statements have been prepared in accordance with GAAP and present fairly in all material respects in accordance with GAAP the consolidated financial condition of the Borrower and its Subsidiaries as of the close of such Fiscal Year and the results of their operations and cash flows for the Fiscal Year then ended and that an examination of such accounts in connection with such financial statements has been made in accordance with generally accepted auditing standards and, accordingly, such examination included such tests of the accounting records and such other auditing procedures as were considered necessary in the circumstances;
(b) within the period provided in subsection (a) above, the written statement of the accountants who certified the audit report thereby required that in the course of their audit they have obtained no knowledge of any Default or Event of Default, or, if such accountants have obtained knowledge of any such Default or Event of Default, they shall disclose in such statement the nature and period of the existence thereof;
(c) as soon as available, and in any event no later than forty-five (45) days after the last day of each of the first three Fiscal Quarter Quarters of each Fiscal Year of the BorrowerBorrower (commencing with the Fiscal Quarter ending on June 30, 2017), a copy of (i) the company-prepared consolidated balance sheets sheet of the Borrower and its Subsidiaries as of the last day of such Fiscal Quarter and the consolidated statements of operationsincome, changes in equity (deficit) retained earnings, and cash flows of the Borrower and its Subsidiaries for the Fiscal Quarter and for the Fiscal Year-to-date period then ended, each in reasonable detail andshowing, if available, showing in comparative form form, the figures for the corresponding date and period in the previous Fiscal Year, prepared by the applicable party Borrower in accordance with GAAP (subject to the absence of footnote disclosures and year-end audit adjustments) and certified to by a Financial Officer its chief financial officer or another officer of the Borrower and (ii) operating statements, rent roll and accounts receivable aging for each Borrowing Base Propertyreasonably acceptable to the Administrative Agent;
(bd) as soon as available, and in any event no later than one hundred twenty within (120i) forty-five (45) days after the last day of each of the first three Fiscal Quarters of each Fiscal Year of (commencing with the BorrowerFiscal Quarter ending on June 30, a copy of the consolidated balance sheets of Borrower 2017) and its Subsidiaries as of (ii) ninety (90) days after the last day of the last Fiscal Quarter of each Fiscal Year then ended and (commencing with the consolidated statements 2017 Fiscal Year), a Borrowing Base Certificate showing the computation of statements of operations, comprehensive loss, shareholders’ equity (deficit) and cash flows of Borrower and its Subsidiaries for the Fiscal Year then ended, and accompanying notes thereto, each Borrowing Base in reasonable detail and, if available, showing in comparative form the figures for the previous Fiscal Year, accompanied in the case as of the consolidated close of business on the last day of such Fiscal Quarter, prepared by the Borrower and certified to by its chief financial statements by an unqualified opinion of BDO USA, P.C., officer or another firm officer of independent public accountants of recognized national standing, selected by ▇▇▇▇▇▇▇▇ and the Borrower reasonably satisfactory acceptable to the Administrative Agent;
(e) with each of the financial statements delivered pursuant to subsections (a) and (c) [reserved]above, a compliance certificate (“Compliance Certificate”) in the form attached hereto as Exhibit E signed by the chief financial officer of the Borrower or another officer of the Borrower reasonably acceptable to the Administrative Agent to the effect that to such officer’s knowledge and belief no Default or Event of Default has occurred during the period covered by such statements or, if any such Default or Event of Default has occurred during such period, setting forth a description of such Default or Event of Default and specifying the action, if any, taken or being taken by the Borrower or any Subsidiary to remedy the same. Such certificate shall also set forth the calculations supporting such statements in respect of Section 8.20 hereof;
(df) promptly after receipt thereof, any additional written reports, management letters or other detailed information contained in writing concerning significant aspects of the Borrower’s or any Subsidiary’s operations and financial affairs given to it by its independent public accountants;
(g) promptly after the sending or filing thereof, copies of each financial statement, report, notice or proxy statement sent by any Loan Party the Borrower or any Subsidiary of a Loan Party to its stockholders or other equity holders, and upon written request from the Administrative Agent, copies of each regular, periodic or special report, registration statement or prospectus (including all Form 10-K, Form 10-Q and Form 8-K reports) filed by any Loan Party the Borrower or any Subsidiary of a Loan Party with any securities exchangeexchange or the Securities and Exchange Commission or any successor agency;
(eh) [reserved]promptly after receipt thereof, a copy of each audit made by any regulatory agency of the books and records of the Borrower or any Subsidiary or of notice of any material noncompliance with any applicable Legal Requirements relating to the Borrower or any Subsidiary, or its business;
(fi) as soon as available, and in any event within ninety thirty (9030) days after the end of each Fiscal Year of the Borrower, a copy of the Borrower’s operating budget and projections for the following year including consolidated projections of revenues, expenses and balance sheet on a quarter-by-quarter basis, with such operating budget and projections in reasonable detail prepared by the Borrower and in form reasonably satisfactory to the Administrative Agent (which shall include a summary of all significant assumptions made in preparing such projectionsbudget);
(gj) notice of any Change of Control;
(hk) promptly after knowledge thereof shall have come to the attention of any Responsible Officer of any Loan Partythe Borrower obtaining knowledge thereof, written notice of (i) any threatened (in writing) or pending litigation or governmental or arbitration proceeding or labor controversy against any Loan Party the Borrower or any Subsidiary of a Loan Party or any of their Property which, if adversely determined, which could reasonably be expected to have a Material Adverse Effect, (ii) the occurrence of any other matter which could reasonably be expected to have a Material Adverse Effect, Effect or (iii) the occurrence of any Default or Event of Default;
(ivl) with each of the financial statements delivered pursuant to subsections (a) and (c) above, if there have been any changes to the organizational chart of the Borrower and the Subsidiaries during the most recently ended Fiscal Quarter, a revised organizational chart, together with a summary of the changes;
(m) promptly after any Responsible Officer of the Borrower obtaining knowledge thereof, written notice of any change in the information provided in the Beneficial Ownership Certification that would result in a change to the list of beneficial owners identified in parts (c) or (d) of such certification;
(i) on the Closing Date and with each of the financial statements delivered pursuant to subsections (a) (other than the last Fiscal Quarter of each Fiscal Year) and (b) above, a compliance certificate (“Compliance Certificate”) in the form attached hereto as Exhibit F signed by a Financial Officer of the Borrower to the effect that to the best of such officer’s knowledge and belief no Default has occurred during the period covered by such statements or, if any such Default has occurred during such period, setting forth a description of such Default and specifying the action, if any, taken by the relevant Loan Party or its Subsidiary to remedy the same. Such certificate shall also set forth the calculations supporting such statements in respect of Section 8.22 (Financial Covenants); and
(jn) on promptly after the Closing Date and with each request of the financial statements delivered pursuant to subsections (a) (any Lender, any other than the last Fiscal Quarter of each Fiscal Year) and (b) above, information or report reasonably requested by a Borrowing Base Certificate showing the computation of the Borrowing Base Value, in reasonable detail as of the close of business on the last day of Lender provided that any such Fiscal Quarter requested information or Fiscal Year, as applicable, prepared report is available or can be generated by the Borrower and certified to by its chief financial officer or another officer of the Borrower reasonably acceptable using commercially reasonable efforts; provided, however, to the Administrative Agent; and
(k) within a reasonable period of time following any extent such request therefor, from time to time, (i) such other information regarding the operations, business affairs and financial condition of any Loan Party or any Subsidiary of a Loan Party, or compliance items set forth above are filed with the terms of any Loan Document, as the Administrative Agent or any Lender may reasonably request or (ii) information and documentation reasonably requested by the Administrative Agent or any Lender for purposes of compliance with applicable “know your customer” requirements under the Patriot Act or other applicable Anti-Corruption Laws and the Beneficial Ownership Regulation. Notwithstanding the foregoing, the filing of the Borrower’s financial statements with the U.S. Securities and Exchange Commission on Form 10-K or Form 10-Q otherwise are publicly available, the Borrower shall satisfy be deemed to have satisfied this covenant once it provides notice to the requirements Administrative Agent of Section 8.5(a)(i) and (b), respectivelysuch availability.
Appears in 1 contract
Financial Reports. The Loan Parties Borrower shall, and shall cause each of their Subsidiaries Subsidiary to, maintain proper books a standard system of records and accounts reasonably necessary to prepare financial statements required to be delivered pursuant to this Section 8.5 accounting in accordance with GAAP and shall furnish to the Administrative Agent Agent, each Lender, the L/C Issuer and each Lenderof their duly authorized representatives such information respecting the business and financial condition of the Borrower and each Subsidiary as the Administrative Agent or such Lender may reasonably request; and without any request, shall furnish to the Administrative Agent for distribution to the Lenders, and L/C Issuer:
(a) as soon as available, and in any event no later than sixty ninety (6090) days after the last day each fiscal year of the Borrower, a copy of the consolidated and consolidating balance sheet of the Borrower and its Subsidiaries as of the last day of the fiscal year then ended and the consolidated and consolidating statements of income, retained earnings, and cash flows of the Borrower and its Subsidiaries for the fiscal year then ended, and accompanying notes thereto, each in reasonable detail showing in comparative form the figures for the previous fiscal year, accompanied by an unqualified opinion of independent public accountants of recognized national standing, selected by the Borrower and reasonably satisfactory to the Administrative Agent, to the effect that the consolidated financial statements have been prepared in accordance with GAAP and present fairly in accordance with GAAP the consolidated financial condition of the Borrower and its Subsidiaries as of the close of such fiscal year and the results of their operations and cash flows for the fiscal year then ended and that an examination of such accounts in connection with such financial statements has been made in accordance with generally accepted auditing standards and, accordingly, such examination included such tests of the accounting records and such other auditing procedures as were considered necessary in the circumstances;
(b) within the period provided in subsection (a) above, the written statement of the accountants who certified the audit report thereby required that in the course of their audit they have obtained no knowledge of any Default or Event of Default, or, if such accountants have obtained knowledge of any such Default or Event of Default, they shall disclose in such statement the nature and period of the existence thereof;
(c) as soon as available, and in any event no later than forty-five (45) days after the last day of each Fiscal Quarter fiscal quarter of each Fiscal Year fiscal year of the Borrower, a copy of (i) the company-prepared consolidated and consolidating balance sheets sheet of the Borrower and its Subsidiaries as of the last day of such Fiscal Quarter fiscal quarter and the consolidated and consolidating statements of operationsincome, changes in equity (deficit) retained earnings, and cash flows of the Borrower and its Subsidiaries for the Fiscal Quarter fiscal quarter and for the Fiscal Yearfiscal year-to-date period then ended, each in reasonable detail and, if available, showing in comparative form the figures for the corresponding date and period in the previous Fiscal Yearfiscal year, prepared by the applicable party Borrower in accordance with GAAP (subject to the absence of footnote disclosures and year-end audit adjustments) and certified to by a Financial Officer its chief financial officer or another officer of the Borrower and (ii) operating statements, rent roll and accounts receivable aging for each Borrowing Base Propertyreasonably acceptable to the Administrative Agent;
(bd) as soon as available, and in any event no later than one hundred twenty within forty-five (12045) days after the last day of each Fiscal Year of the Borrower, a copy of the consolidated balance sheets of Borrower and its Subsidiaries as of Quarter (or ninety (90) days after the last day of each Fiscal Year) a Borrowing Base Certificate showing the Fiscal Year then ended and computation of the consolidated statements of statements of operations, comprehensive loss, shareholders’ equity (deficit) and cash flows of Borrower and its Subsidiaries for the Fiscal Year then ended, and accompanying notes thereto, each Borrowing Base in reasonable detail and, if available, showing in comparative form the figures for the previous Fiscal Year, accompanied in the case as of the consolidated close of business on the last day of such fiscal quarter, prepared by the Borrower and certified to by its chief financial statements by an unqualified opinion of BDO USA, P.C., officer or another firm officer of independent public accountants of recognized national standing, selected by ▇▇▇▇▇▇▇▇ and reasonably satisfactory the Borrower acceptable to the Administrative Agent;
(ce) [reserved]with each of the financial statements delivered pursuant to subsections (a) and (b) above, a Compliance Certificate (“Compliance Certificate”) in the form attached hereto as Exhibit E signed by the chief financial officer of the Borrower or another officer of the Borrower reasonably acceptable to the Administrative Agent to the effect that to the best of such officer’s knowledge and belief no Default or Event of Default has occurred during the period covered by such statements or, if any such Default or Event of Default has occurred during such period, setting forth a description of such Default or Event of Default and specifying the action, if any, taken by the Borrower or any Subsidiary to remedy the same. Such certificate shall also set forth the calculations supporting such statements in respect of Section 8.20 hereof;
(df) promptly after receipt thereof, any additional written reports, management letters or other detailed information contained in writing concerning significant aspects of the Borrower’s or any Subsidiary’s operations and financial affairs given to it by its independent public accountants;
(g) promptly after the sending or filing thereof, copies of each financial statement, report, notice or proxy statement sent by any Loan Party the Borrower or any Subsidiary of a Loan Party to its stockholders or other equity holders, and upon written request from the Administrative Agent, copies of each regular, periodic or special report, registration statement or prospectus (including all Form 10-K, Form 10-Q and Form 8-K reports) filed by any Loan Party the Borrower or any Subsidiary of a Loan Party with any securities exchangeexchange or the Securities and Exchange Commission or any successor agency;
(eh) [reserved]promptly after receipt thereof, a copy of each audit made by any regulatory agency of the books and records of the Borrower or any Subsidiary or of notice of any material noncompliance with any applicable law, regulation or guideline relating to the Borrower or any Subsidiary, or its business;
(fi) as soon as available, and in any event within ninety thirty (9030) days after the end of each Fiscal Year fiscal year of the Borrower, a copy of the Borrower’s operating budget and projections for the following year including consolidated projections of revenues, expenses and balance sheet on a quarter-by-quarter basis, with such operating budget and projections in reasonable detail prepared by the Borrower and in form reasonably satisfactory to the Administrative Agent (which shall include a summary of all significant assumptions made in preparing such projectionsbudget);
(gj) notice of any Change of Control;
(hk) promptly after knowledge thereof shall have come to the attention of any Responsible Officer of any Loan Partythe Borrower, written notice of (i) any threatened (in writing) or pending litigation or governmental or arbitration proceeding or labor controversy against any Loan Party the Borrower or any Subsidiary of a Loan Party or any of their Property which, if adversely determined, which could reasonably be expected to have a Material Adverse Effect, (ii) the occurrence of any matter which could reasonably be expected to have a Material Adverse Effect, Effect or (iii) the occurrence of any Default or Event of Default hereunder;
(l) within forty-five (45) days of the end of each of the first three (3) fiscal quarters and within 90 days after the close of the last fiscal quarter of the year (i) a list of all newly formed or acquired Subsidiaries during such quarter (such list shall contain the information relative to such new Subsidiaries as set forth in Schedule 6.2 hereto); (ii) a list of newly executed Significant Leases during such quarter (upon receipt of which Schedule 6.25 shall be deemed amended to include references to such Significant Lease); (iii) a copy of any notice of a material default or any other material notice (including without limitation property condition reviews) received by the Borrower or any Guarantor from any ground lessor under a Significant Lease during such quarter and (iv) a schedule showing for such quarter (A) any change Significant Lease that was or is continuing to be in the information provided default with respect to monthly contractual rent payments in the Beneficial Ownership Certification that would result in a change to the list excess of beneficial owners identified in of such certification60 days;
(im) on promptly after knowledge thereof shall have come to the Closing Date and with each attention of the financial statements delivered pursuant to subsections (a) (other than the last Fiscal Quarter of each Fiscal Year) and (b) above, a compliance certificate (“Compliance Certificate”) in the form attached hereto as Exhibit F signed by a Financial any Responsible Officer of the Borrower Borrower, written notice to each Lender if amounts payable under a Lease of any Eligible Property or portion thereof included in the effect that to the best of such officer’s knowledge and belief no Default has occurred during the period covered by such statements or, if any such Default has occurred during such period, setting forth a description of such Default and specifying the action, if any, taken by the relevant Loan Party or its Subsidiary to remedy the same. Such certificate shall also set forth the calculations supporting such statements in respect of Section 8.22 Borrowing Base Value is more than sixty (Financial Covenants)60) days past due; and
(jn) on promptly after the Closing Date and with each request of the financial statements delivered pursuant to subsections (a) (other than the last Fiscal Quarter of each Fiscal Year) and (b) aboveany Lender, a Borrowing Base Certificate showing the computation of the Borrowing Base Value, in reasonable detail as of the close of business on the last day of such Fiscal Quarter or Fiscal Year, as applicable, prepared by the Borrower and certified to by its chief financial officer or another officer of the Borrower reasonably acceptable to the Administrative Agent; and
(k) within a reasonable period of time following any such request therefor, from time to time, (i) such other information regarding the operations, business affairs and financial condition of any Loan Party or any Subsidiary of a Loan Party, or compliance with the terms of any Loan Document, as the Administrative Agent or any Lender may reasonably request or (ii) information and documentation report reasonably requested by a Lender. provided, however, to the Administrative Agent or any Lender for purposes of compliance with applicable “know your customer” requirements under the Patriot Act or other applicable Anti-Corruption Laws and the Beneficial Ownership Regulation. Notwithstanding the foregoing, the filing of the Borrower’s financial statements extent such items set forth above are filed with the U.S. Securities and Exchange Commission on Form 10-K or Form 10-Q otherwise are publicly available, the Borrower shall satisfy be deemed to have satisfied this covenant once it provides notice to the requirements Administrative Agent of Section 8.5(a)(i) and (b), respectivelysuch availability.
Appears in 1 contract
Financial Reports. The Loan Parties shallUntil such time that the Corporation has a class of its equity securities registered under the Exchange Act and is required to file reports thereunder pursuant to Sections 13 or 15(d) of the Exchange Act, and except with respect to the obligation set forth in Section 2.7(e)(i) hereunder which shall cause survive such time, the Corporation shall furnish each of their Subsidiaries to, maintain proper books of records and accounts reasonably necessary to prepare the Major Investors with the financial statements required to be delivered pursuant to this Section 8.5 in accordance with GAAP and shall furnish to the Administrative Agent and each Lenderinformation described below:
(a) as soon as available, and in any event no later than sixty (60) Within 30 days after the last day of each Fiscal Quarter of each Fiscal Year month (the “Target Month”) (or such other calendar period as is approved by the Board), financial statements, including a balance sheet as of the Borrowerlast date of such Target Month, a copy statement of income (ior monthly operating expenses) for such month, together with a cumulative statement of income from the company-prepared consolidated balance sheets first day of Borrower and its Subsidiaries as of the current year to the last day of such Fiscal Quarter month, which statements shall be prepared from the books and records of the Corporation, a cash flow analysis, together with cumulative cash flow analyses from the first day of the current year to the last day of such month, and a comparison between the actual monthly operating expenses and the consolidated statements of operations, changes in equity (deficit) projected figures for such month and cash flows of Borrower for the Fiscal Quarter and for the Fiscal Year-to-date period then ended, in reasonable detail and, if available, showing in comparative form the comparable figures for the corresponding date and period in the previous Fiscal Yearprior year, prepared by the applicable party in accordance with GAAP (subject to the absence provisions of footnote disclosures and year-end audit adjustments) and certified to by a Financial Officer of Borrower and (ii) operating statements, rent roll and accounts receivable aging for each Borrowing Base Property;Section 2.9 hereof.
(b) as soon as availableUpon receipt of a request from any of the Major Investors prior to the end of a quarterly accounting period, and in any event no later than one hundred twenty (120) the Corporation shall deliver to each of the Major Investors, within 45 days after the last day end of each Fiscal Year such quarterly accounting period, unaudited financial statements for such quarterly accounting period, certified by the Chief Financial Officer or the Treasurer of the BorrowerCorporation, a copy as presenting fairly the financial condition and results of operations of the consolidated balance sheets of Borrower Corporation and its Subsidiaries as having been prepared on a basis consistent with the accounting principles reflected in the Corporation’s annual audited financial statements, accompanied by a report, signed by the Chief Financial Officer or the Treasurer of the last day Corporation, summarizing the operating and financial highlights of the Fiscal Year then ended Corporation for such quarterly accounting period, which report shall include (a) a comparison between the actual quarterly operating and financial results, the Budget (as defined in Section 2.8 hereof) and the consolidated statements results of statements of operations, comprehensive loss, shareholders’ equity (deficit) and cash flows of Borrower and its Subsidiaries the similar quarterly accounting period for the Fiscal Year then endedprior fiscal year of the Corporation, together with an explanation of material variances from the Budget and such similar quarterly accounting period, as the case may be, and accompanying notes thereto, each in reasonable detail and, if available, showing in comparative form the figures for the previous Fiscal Year, accompanied (b) a narrative analysis of operations and trends in the case business of the consolidated financial statements by an unqualified opinion of BDO USA, P.C., or another firm of independent public accountants of recognized national standing, selected by ▇▇▇▇▇▇▇▇ and reasonably satisfactory to the Administrative Agent;Corporation during such quarterly accounting period.
(c) [reserved];
(d) promptly after the sending or filing thereof, copies of each financial statement, report, notice or proxy statement sent by any Loan Party or any Subsidiary of a Loan Party to its stockholders or other equity holders, and copies of each regular, periodic or special report, registration statement or prospectus filed by any Loan Party or any Subsidiary of a Loan Party with any securities exchange;
(e) [reserved];
(f) within ninety (90) Within 90 days after the end of each Fiscal Year fiscal year of the BorrowerCorporation, a copy audited financial statements of the Borrower’s operating budget and projections for the following year including consolidated projections of revenuesCorporation, expenses and balance sheet on a quarter-by-quarter basis, with such operating budget and projections in reasonable detail prepared by Borrower and in form reasonably satisfactory to the Administrative Agent (which shall include an income statement and a summary statement of all significant assumptions made cash flow for such fiscal year and a balance sheet as of the last day thereof, each prepared in preparing accordance with generally accepted accounting principles consistently applied, and accompanied by the report of such projections);independent certified public accountants as shall have been approved by the Board.
(gd) notice If for any period the Corporation shall have any subsidiary or subsidiaries whose accounts are consolidated with those of any Change the Corporation, then the financial statements delivered for such period pursuant to paragraphs (a), (b) and (c) of Control;this Section 2.7 shall be the consolidated and consolidating financial statements of the Corporation for all such consolidated subsidiaries.
(he) promptly after knowledge thereof shall have come to the attention of any Responsible Officer of any Loan Party, written notice of (i) any threatened or pending litigation or governmental or arbitration proceeding or labor controversy against any Loan Party or any Subsidiary of a Loan Party or any of their Property which, if adversely determined, could reasonably be expected to have a Material Adverse Effect, (ii) the occurrence of any Material Adverse Effect, (iii) the occurrence of any Default or (iv) any change in the information provided in the Beneficial Ownership Certification that would result in a change to the list of beneficial owners identified in of such certification;Promptly upon becoming available:
(i) on copies of all financial statements, reports, press releases, notices, proxy statements and other documents sent by the Closing Date and with each of the financial statements delivered pursuant Corporation to subsections (a) (other than the last Fiscal Quarter of each Fiscal Year) and (b) above, a compliance certificate (“Compliance Certificate”) in the form attached hereto as Exhibit F signed by a Financial Officer of the Borrower its Stockholders or released to the effect that to the best public and copies of such officer’s knowledge all regular and belief no Default has occurred during the period covered by such statements or, if any such Default has occurred during such period, setting forth a description of such Default and specifying the actionperiodic reports, if any, taken filed by the relevant Loan Party Corporation with the Commission or its Subsidiary to remedy the same. Such certificate shall also set forth the calculations supporting such statements in respect of Section 8.22 (Financial Covenants)any securities exchange or self-regulatory organization; and
(jii) on the Closing Date and with each any other financial or other information available to management of the financial statements delivered pursuant to subsections (a) (other than the last Fiscal Quarter of each Fiscal Year) and (b) above, a Borrowing Base Certificate showing the computation Corporation that any of the Borrowing Base Value, in reasonable detail as of the close of business on the last day of such Fiscal Quarter or Fiscal Year, as applicable, prepared by the Borrower and certified to by its chief financial officer or another officer of the Borrower reasonably acceptable to the Administrative Agent; and
(k) within a reasonable period of time following any such request therefor, from time to time, (i) such other information regarding the operations, business affairs and financial condition of any Loan Party or any Subsidiary of a Loan Party, or compliance with the terms of any Loan Document, as the Administrative Agent or any Lender may reasonably request or (ii) information and documentation Major Investors shall have reasonably requested by the Administrative Agent or any Lender for purposes of compliance with applicable “know your customer” requirements under the Patriot Act or other applicable Anti-Corruption Laws and the Beneficial Ownership Regulation. Notwithstanding the foregoing, the filing of the Borrower’s financial statements with the U.S. Securities and Exchange Commission on Form 10-K or Form 10-Q shall satisfy the requirements of Section 8.5(a)(i) and (b), respectivelya timely basis.
Appears in 1 contract
Financial Reports. The Loan Parties shallExcept as otherwise provided below, and each Obligor shall cause each maintain a standard system of their Subsidiaries to, maintain proper books of records and accounts reasonably necessary to prepare financial statements required to be delivered pursuant to this Section 8.5 accounting in accordance with GAAP IFRS and shall promptly furnish to the Lenders and the Administrative Agent and each Lendertheir duly authorized representatives, as soon as available, and in any event not more than forty-five (45) days after the day such request is made in writing by the Administrative Agent, such information respecting its business and financial condition as the Lenders and the Administrative Agent may reasonably request; and without limiting the foregoing, it shall provide the following information to the Lenders and the Administrative Agent:
(ai) as soon as available, and in any event no later than sixty within forty-five (6045) days after the last day close of each Fiscal Quarter quarterly accounting period of each Fiscal Year of Champion and the Borrower, Borrower (or more frequently if requested by the Administrative Agent) a copy of (i) the company-prepared consolidated balance sheets of Borrower and its Subsidiaries Unaudited Financial Statements as of the last day of such Fiscal Quarter and the consolidated statements of operations, changes in equity (deficit) and cash flows of Borrower for the Fiscal Quarter and for the Fiscal Year-to-date quarterly accounting period then ended, in reasonable detail and, if available, showing in comparative form the figures for the corresponding date and period in the previous Fiscal Year, prepared by such Obligor in such format and detail as is required by the applicable party in accordance with GAAP (subject to the absence of footnote disclosures and year-end audit adjustments) Administrative Agent and certified to by a Financial Officer an Authorized Representative of Borrower and (ii) operating statements, rent roll and accounts receivable aging for each Borrowing Base Propertythe Borrower;
(bii) as soon as available, and in any event no later than one hundred twenty within ninety (12090) days after the last day of each Fiscal Year of each of Champion and the Borrower, a copy of the Financial Statements for such Fiscal Year, certified by an Authorized Representative of Champion and accompanied by an unqualified opinion of the Auditor, confirming that such Financial Statements have been prepared in accordance with IFRS and present fairly in accordance with IFRS the consolidated balance sheets and unconsolidated financial condition of Borrower and its Subsidiaries the Obligors as of the last day close of such Fiscal Year and the results of their operations and cash flows for the Fiscal Year then ended and the consolidated statements that an examination of statements of operations, comprehensive loss, shareholders’ equity (deficit) and cash flows of Borrower and its Subsidiaries for the Fiscal Year then ended, and accompanying notes thereto, each such accounts in reasonable detail connection with such Financial Statements has been made in accordance with generally accepted auditing standards and, if availableaccordingly, showing in comparative form such examination included such tests of the figures for the previous Fiscal Year, accompanied accounting records and such other auditing procedures as were considered necessary in the case of the consolidated financial statements by an unqualified opinion of BDO USA, P.C., or another firm of independent public accountants of recognized national standing, selected by ▇▇▇▇▇▇▇▇ and reasonably satisfactory to the Administrative Agentcircumstances;
(ciii) [reserved]promptly after receipt thereof, any additional written reports, management letters or other detailed information contained in writing concerning significant aspects of the operations and financial affairs of any Obligor relevant to the preparation of the Financial Statements;
(div) promptly after the sending or filing thereof, copies of each financial statement, report, notice or proxy statement sent by any Loan Party or any Subsidiary of a Loan Party to its stockholders or other equity holdersas soon as available, and copies of each regular, periodic or special report, registration statement or prospectus filed by in any Loan Party or any Subsidiary of a Loan Party with any securities exchange;
(e) [reserved];
(f) within event not less than ninety (90) days after prior to the end of each Fiscal Year of the BorrowerYear, a copy life of mine financial projection (as calculated in accordance with and set out in the Borrower’s operating budget Financial Model) and projections the Financial Model for the following year including consolidated projections of revenues, expenses and balance sheet on a quarter-by-quarter basis, with such operating budget and projections in reasonable detail prepared by Borrower and in form reasonably satisfactory to the Administrative Agent (which shall include a summary of all significant assumptions made in preparing such projections)next Fiscal Year;
(g) notice of any Change of Control;
(hv) promptly after knowledge thereof shall have come to the attention of any Responsible Officer officer or director of any Loan PartyObligor, written notice of (i) any threatened or pending litigation or governmental or arbitration proceeding or labor labour controversy against the Borrower, any Loan Party Obligor or any Subsidiary of a Loan Party or any of their Property whichwith respect to the Project that, if adversely determined, could reasonably be expected to would have a Material Adverse Effect, (ii) the occurrence or of any Material Adverse Effect, (iii) the occurrence of any Default or (iv) any change in the information provided in the Beneficial Ownership Certification that would result in a change to the list Event of beneficial owners identified in of such certification;
(i) on the Closing Date and with each of the financial statements delivered pursuant to subsections (a) (other than the last Fiscal Quarter of each Fiscal Year) and (b) above, a compliance certificate (“Compliance Certificate”) in the form attached hereto as Exhibit F signed by a Financial Officer of the Borrower to the effect that to the best of such officer’s knowledge and belief no Default has occurred during the period covered by such statements or, if any such Default has occurred during such period, setting forth a description of such Default and specifying the action, if any, taken by the relevant Loan Party or its Subsidiary to remedy the same. Such certificate shall also set forth the calculations supporting such statements in respect of Section 8.22 (Financial Covenants)Default; and
(jvi) on promptly after knowledge thereof shall come to the Closing Date and with each attention of any officer or director of any Obligor, written notice of any Default or Event of Default. Each of the financial statements delivered pursuant to subsections (a) (other than the last Fiscal Quarter Financial Statements of each Fiscal Year) and (b) above, a Borrowing Base Certificate showing the computation of the Borrowing Base Value, in reasonable detail as of the close of business on the last day of such Fiscal Quarter or Fiscal Year, as applicable, prepared by the Borrower and certified to by its chief financial officer or another officer of the Borrower reasonably acceptable any Obligor furnished to the Administrative Agent; and
(k) within a reasonable period of time following any such request therefor, from time to time, (i) such other information regarding the operations, business affairs Lenders and financial condition of any Loan Party or any Subsidiary of a Loan Party, or compliance with the terms of any Loan Document, as the Administrative Agent or any Lender may reasonably request or pursuant to this Section 10.4(a) shall be accompanied by a Compliance Certificate (ii) information and documentation reasonably requested by which such certificate shall include for greater certainty the Administrative Agent or any Lender for purposes of compliance with applicable “know your customer” requirements requisite financial covenant calculations under the Patriot Act or other applicable Anti-Corruption Laws and the Beneficial Ownership Regulation. Notwithstanding the foregoing, the filing of the Borrower’s financial statements with the U.S. Securities and Exchange Commission on Form 10-K or Form 10-Q shall satisfy the requirements of Section 8.5(a)(i) and (bthis Agreement), respectively.
Appears in 1 contract
Sources: Credit Agreement
Financial Reports. The Loan Parties shall, and shall cause each of their Subsidiaries to, maintain proper books of records and accounts reasonably necessary to prepare financial statements required to be delivered pursuant to this Section 8.5 in accordance with GAAP and Borrower shall furnish to Agent each of the Administrative Agent and each Lenderfollowing:
(ai) as soon as available, available and in any event no later than sixty within thirty (6030) calendar days after the last day end of each Fiscal Quarter calendar month, the unaudited financial statements of each Fiscal Year of the Borrower, consisting of a copy balance sheet and statements of (i) the company-prepared consolidated balance sheets of Borrower and its Subsidiaries income as of the last day end of such Fiscal Quarter and the consolidated statements of operationsimmediately preceding calendar month; provided, changes in equity (deficit) and cash flows of Borrower for the Fiscal Quarter and for the Fiscal Year-to-date period then endedhowever, in reasonable detail and, if available, showing in comparative form the figures for the corresponding date and period in the previous Fiscal Year, prepared by the applicable party in accordance with GAAP (subject to the absence of footnote disclosures extent such financial statements are publicly filed with the United States Securities and year-end audit adjustments) and certified Exchange Commission or otherwise made publicly available within such time period, then the foregoing requirement shall be deemed to by a Financial Officer of Borrower and (ii) operating statements, rent roll and accounts receivable aging for each Borrowing Base Propertybe satisfied;
(bii) as soon as available, available and in any event no later than within forty five (45) calendar days after the end of each calendar quarter, the unaudited financial statements of Enova, consisting of a balance sheet and statements of income as of the end of the immediately preceding calendar month; provided, however, to the extent such financial statements are publicly filed with the United States Securities and Exchange Commission or otherwise made publicly available within such time period, then the foregoing requirement shall be deemed to be satisfied;
(iii) as soon as available and in any event within one hundred twenty (120) days after the last day of each Fiscal Year of the Borrower, a copy of the consolidated balance sheets of Borrower and its Subsidiaries as of the last day of the Fiscal Year then ended and the consolidated statements of statements of operations, comprehensive loss, shareholders’ equity (deficit) and cash flows of Borrower and its Subsidiaries for the Fiscal Year then ended, and accompanying notes thereto, each in reasonable detail and, if available, showing in comparative form the figures for the previous Fiscal Year, accompanied in the case of the consolidated financial statements by an unqualified opinion of BDO USA, P.C., or another firm of independent public accountants of recognized national standing, selected by ▇▇▇▇▇▇▇▇ and reasonably satisfactory to the Administrative Agent;
(c) [reserved];
(d) promptly after the sending or filing thereof, copies of each financial statement, report, notice or proxy statement sent by any Loan Party or any Subsidiary of a Loan Party to its stockholders or other equity holders, and copies of each regular, periodic or special report, registration statement or prospectus filed by any Loan Party or any Subsidiary of a Loan Party with any securities exchange;
(e) [reserved];
(f) within ninety (90) calendar days after the end of each Fiscal Year fiscal year commencing with the fiscal year ending December 31, 2018, the audited financial statements of Enova and its subsidiaries, on a consolidated and consolidating basis, including the notes thereto, consisting of a balance sheet at the end of such completed fiscal year and the related statements of income, retained earnings, cash flows and owners’ equity for such completed fiscal year, which financial statements shall be prepared and certified without any “going concern” or like qualification or exception (other than solely as a result of the Borrowerfinal maturity date of any Loans being scheduled to occur within twelve (12) months from the date of such opinion) by an independent certified public accounting firm acceptable to Agent in its reasonable discretion and accompanied by related management letters, a copy of the Borrower’s operating budget and projections for the following year including consolidated projections of revenuesif available; provided, expenses and balance sheet on a quarter-by-quarter basishowever, with such operating budget and projections in reasonable detail prepared by Borrower and in form reasonably satisfactory to the Administrative Agent (which extent such financial statements are publicly filed with the United States Securities and Exchange Commission or otherwise made publicly available within such time period, then the foregoing requirement shall include a summary of all significant assumptions made in preparing such projections);be deemed to be satisfied; and
(g) notice of any Change of Control;
(h) promptly after knowledge thereof shall have come to the attention of any Responsible Officer of any Loan Party, written notice of (i) any threatened or pending litigation or governmental or arbitration proceeding or labor controversy against any Loan Party or any Subsidiary of a Loan Party or any of their Property which, if adversely determined, could reasonably be expected to have a Material Adverse Effect, (ii) the occurrence of any Material Adverse Effect, (iii) the occurrence of any Default or (iv) any change in within fifteen (15) calendar days after the information provided in the Beneficial Ownership Certification that would result in a change to the list of beneficial owners identified in of such certification;
(i) on the Closing Date and with each of the financial statements delivered pursuant to subsections (a) (other than the last Fiscal Quarter end of each Fiscal Year) and (b) abovecalendar month, Borrower shall also deliver a compliance certificate (each, being a “Compliance Certificate”) in the form attached hereto as Exhibit F signed executed by a Financial Responsible Officer stating that (1) such Person has reviewed the relevant terms of the Borrower to Loan Documents and the effect that to the best condition of such officer’s knowledge and belief Borrower, (2) no Default, Event of Default or Early Wind-Down Trigger Event has occurred during the period covered by such statements or is continuing or, if any such Default of the foregoing has occurred during such periodor is continuing, setting forth a description of such Default and specifying the actionnature and status and period of existence thereof and the steps taken or proposed to be taken with respect thereto, if any, taken by the relevant Loan Party or its Subsidiary to remedy the same. Such certificate shall also set forth the calculations supporting such statements and (3) that Borrower is in respect of Section 8.22 (Financial Covenants); and
(j) on the Closing Date and compliance with each all of the financial covenants set forth in Section 6.15 hereof, with supporting calculations.
(v) All such financial statements delivered pursuant to subsections shall be prepared in accordance with GAAP consistently applied with prior periods (a) (other than the last Fiscal Quarter of each Fiscal Year) and (b) above, a Borrowing Base Certificate showing the computation of the Borrowing Base Value, in reasonable detail as of the close of business on the last day of such Fiscal Quarter or Fiscal Yearsubject, as applicableto interim statements, prepared by to lack of footnotes and year-end adjustments and booking the Borrower and certified to by its chief financial officer or another officer of the Borrower reasonably acceptable to the Administrative Agent; and
(k) within a reasonable period of time following any such request therefor, from time to time, (i) such other information regarding the operations, business affairs and financial condition of any Loan Party or any Subsidiary of a Loan Party, or compliance with the terms of any Loan Document, as the Administrative Agent or any Lender may reasonably request or (ii) information and documentation reasonably requested by the Administrative Agent or any Lender for purposes of compliance with applicable “know your customer” requirements under the Patriot Act or other applicable Anti-Corruption Laws and the Beneficial Ownership Regulation. Notwithstanding the foregoing, the filing of the Borrower’s financial statements with the U.S. Securities and Exchange Commission on Form 10-K or Form 10-Q shall satisfy the requirements of Section 8.5(a)(i) and (bReceivables at cost), respectively.
Appears in 1 contract
Sources: Loan and Security Agreement (Enova International, Inc.)
Financial Reports. The Loan Parties Borrower shall, and shall cause each of their Subsidiaries the Parent to, maintain proper books furnish to ▇▇▇▇▇▇ and its duly authorized representatives such information respecting the business and financial condition of records and accounts the Borrower as ▇▇▇▇▇▇ may reasonably necessary to prepare financial statements request; provided however, that in no event shall the Borrower be required to be delivered pursuant to this Section 8.5 in accordance with GAAP disclose any confidential correspondence or reports of supervisory activity; and without any request, shall furnish to the Administrative Agent and each Lender▇▇▇▇▇▇:
(a) as soon as available, and in any event no later than sixty (60) within 60 days after the last day of each Fiscal Quarter of each Fiscal Year of the Borrowercalendar quarter, a copy of (i) the company-prepared consolidated balance sheets of FDIC Call Reports for the Borrower and its Subsidiaries as each bank subsidiary of the last day of such Fiscal Quarter and the consolidated statements of operations, changes in equity (deficit) and cash flows of Borrower for the Fiscal Quarter and for the Fiscal Year-to-date period then ended, in reasonable detail and, if available, showing in comparative form the figures for the corresponding date and period in the previous Fiscal Year, prepared by the applicable party in accordance with GAAP (subject to the absence of footnote disclosures and year-end audit adjustments) and certified to by a Financial Officer of Borrower and (ii) operating statements, rent roll and accounts receivable aging for each Borrowing Base Property;Borrower.
(b) as soon as publicly available, and in any event no later than one hundred twenty (120) within 90 days after the last day close of each Fiscal Year fiscal year of the BorrowerParent, a copy of the consolidated and consolidating balance sheets sheet of Borrower the Parent and its Subsidiaries subsidiaries as of the last day close of the Fiscal Year then ended such period and the consolidated and consolidating statements of statements of operationsincome, comprehensive lossretained earnings, shareholders’ equity (deficit) and cash flows of Borrower the Parent and its Subsidiaries subsidiaries for the Fiscal Year then endedsuch period, and accompanying notes thereto, each in reasonable detail and, if available, showing in comparative form the figures for the previous Fiscal Yearfiscal year, accompanied in the case of the consolidated financial statements by an unqualified opinion of BDO USA, P.C., thereon or another a firm of independent public accountants of recognized national standing, selected by the Parent and satisfactory to ▇▇▇▇▇▇▇▇ and reasonably satisfactory , to the Administrative Agenteffect that the financial statements have been prepared in accordance with GAAP and present fairly in accordance with GAAP the consolidated financial condition of the Parent and its subsidiaries as of the close of such fiscal year and the results of their operations and cash flows for the fiscal year then ended and that an examination of such accounts in connection with such financial statements has been made in accordance with generally accepted auditing standards and, accordingly, such examination included such tests of the accounting records and such other auditing procedures as were considered necessary in the circumstances;
(c) [reserved];
(d) promptly after the sending or filing thereof, copies of each financial statement, report, notice or proxy statement sent by any Loan Party or any Subsidiary of a Loan Party to its stockholders or other equity holders, and copies of each regular, periodic or special report, registration statement or prospectus filed by any Loan Party or any Subsidiary of a Loan Party with any securities exchange;
(e) [reserved];
(f) within ninety (90) days after the end of each Fiscal Year of the Borrower, a copy of the Borrower’s operating budget and projections for the following year including consolidated projections of revenues, expenses and balance sheet on a quarter-by-quarter basis, with such operating budget and projections in reasonable detail prepared by Borrower and in form reasonably satisfactory to the Administrative Agent (which shall include a summary of all significant assumptions made in preparing such projections);
(g) notice of any Change of Control;
(h) promptly after knowledge thereof shall have come to the attention of any Responsible Officer responsible officer of any Loan Partythe Borrower, written notice of (i) any notice received by the Borrower which would prevent the Borrower from making prepayments on the Note or otherwise affect the Borrower’s ability to fulfill its Obligations hereunder or of any threatened or pending litigation or governmental or arbitration proceeding or labor controversy against any Loan Party or any Subsidiary of a Loan Party or any of their Property the Borrower which, if adversely determined, could reasonably be expected to have a Material Adverse Effectwould adversely effect the financial condition, (ii) Properties, business or operations of the occurrence Borrower or of any Material Adverse Effect, (iii) the occurrence of any Default or (iv) any change in the information provided in the Beneficial Ownership Certification that would result in a change to the list Event of beneficial owners identified in of such certification;Default hereunder; and
(id) on the Closing Date as soon as available, and with each of the financial statements delivered pursuant to subsections (a) (other than in any event within 60 days after the last Fiscal Quarter day of each Fiscal Year) and (b) above, calendar quarter the Borrower shall deliver to ▇▇▇▇▇▇ a compliance written certificate (“Compliance Certificate”) in the form attached hereto as Exhibit F B signed by a Financial Officer the chief financial officer of the Borrower, or such other officer of the Borrower satisfactory to ▇▇▇▇▇▇, to the effect that to the best of such officer’s knowledge and belief no Default or Event of Default has occurred during the period covered by such statements or, if any such Default or Event of Default has occurred during such period, setting forth a description of such Default or Event of Default and specifying the action, if any, taken by the relevant Loan Party or its Subsidiary Borrower to remedy the same. Such certificate shall also set forth the calculations supporting such statements in respect of Section 8.22 (Financial Covenants); and
(j) on the Closing Date and with each of the financial statements delivered pursuant to subsections (a) (other than the last Fiscal Quarter of each Fiscal Year) and (b) above, a Borrowing Base Certificate showing the computation of the Borrowing Base Value, in reasonable detail as of the close of business on the last day of such Fiscal Quarter or Fiscal Year, as applicable, prepared by the Borrower and certified to by its chief financial officer or another officer of the Borrower reasonably acceptable to the Administrative Agent; and
(k) within a reasonable period of time following any such request therefor, from time to time, (i) such other information regarding the operations, business affairs and financial condition of any Loan Party or any Subsidiary of a Loan Party, or compliance with the terms of any Loan Document, as the Administrative Agent or any Lender may reasonably request or (ii) information and documentation reasonably requested by the Administrative Agent or any Lender for purposes of compliance with applicable “know your customer” requirements under the Patriot Act or other applicable Anti-Corruption Laws and the Beneficial Ownership Regulation. Notwithstanding the foregoing, the filing of the Borrower’s financial statements with the U.S. Securities and Exchange Commission on Form 10-K or Form 10-Q shall satisfy the requirements of Section 8.5(a)(i) and (b), respectively.
Appears in 1 contract
Financial Reports. The Loan Parties shallServicer shall furnish, and shall or cause each of their Subsidiaries to, maintain proper books of records and accounts reasonably necessary to prepare financial statements required to be delivered pursuant to this Section 8.5 in accordance with GAAP and shall furnish furnished, to the Administrative Agent and each LenderFacility Agent:
(ai) as soon as available, available and in any event no later than sixty (60) days after the last day of each Fiscal Quarter of each Fiscal Year of the Borrower, a copy of (i) the company-prepared consolidated balance sheets of Borrower and its Subsidiaries as of the last day of such Fiscal Quarter and the consolidated statements of operations, changes in equity (deficit) and cash flows of Borrower for the Fiscal Quarter and for the Fiscal Year-to-date period then ended, in reasonable detail and, if available, showing in comparative form the figures for the corresponding date and period in the previous Fiscal Year, prepared by the applicable party in accordance with GAAP (subject to the absence of footnote disclosures and year-end audit adjustments) and certified to by a Financial Officer of Borrower and (ii) operating statements, rent roll and accounts receivable aging for each Borrowing Base Property;
(b) as soon as available, and in any event no later than one hundred twenty (120) days after the last day of each Fiscal Year of the Borrower, a copy of the consolidated balance sheets of Borrower and its Subsidiaries as of the last day of the Fiscal Year then ended and the consolidated statements of statements of operations, comprehensive loss, shareholders’ equity (deficit) and cash flows of Borrower and its Subsidiaries for the Fiscal Year then ended, and accompanying notes thereto, each in reasonable detail and, if available, showing in comparative form the figures for the previous Fiscal Year, accompanied in the case of the consolidated financial statements by an unqualified opinion of BDO USA, P.C., or another firm of independent public accountants of recognized national standing, selected by ▇▇▇▇▇▇▇▇ and reasonably satisfactory to the Administrative Agent;
(c) [reserved];
(d) promptly after the sending or filing thereof, copies of each financial statement, report, notice or proxy statement sent by any Loan Party or any Subsidiary of a Loan Party to its stockholders or other equity holders, and copies of each regular, periodic or special report, registration statement or prospectus filed by any Loan Party or any Subsidiary of a Loan Party with any securities exchange;
(e) [reserved];
(f) within ninety (90) 120 days after the end of each Fiscal Year of the Borrowerfiscal year, a copy of the Borrower’s operating budget and projections audited consolidated financial statements for the following prior year for the Servicer, inclusive of its consolidated Subsidiaries, including the prior comparable period (if any) from the preceding fiscal year and certified by Independent Accountants (the report of which shall be unqualified), and certified by an Executive Officer of the Servicer with appropriate knowledge stating that the information set forth therein fairly presents the financial condition of the Servicer and its consolidated projections Subsidiaries as of revenues, expenses and balance sheet on a quarter-by-quarter basisfor such fiscal year, with all such operating budget financial statements being prepared in accordance with GAAP applied consistently throughout the period involved (except for changes in the application of GAAP approved by such accountants in accordance with GAAP and projections disclosed therein) (it being agreed that financial statements included in reasonable detail prepared by Borrower and in form reasonably satisfactory the Servicer’s annual reports on Form 10-K for such fiscal year, as filed with the SEC, shall satisfy this Section 7.5(k)(i) with respect to such fiscal year so long as the Servicer delivers such financial statements to the Administrative Facility Agent (which shall include a summary of all significant assumptions made in preparing such projectionswithin the time period required above);; and
(g) notice of any Change of Control;
(h) promptly after knowledge thereof shall have come to the attention of any Responsible Officer of any Loan Party, written notice of (i) any threatened or pending litigation or governmental or arbitration proceeding or labor controversy against any Loan Party or any Subsidiary of a Loan Party or any of their Property which, if adversely determined, could reasonably be expected to have a Material Adverse Effect, (ii) as soon as available and in any event within 45 days after the occurrence end of any Material Adverse Effect, (iii) the occurrence each fiscal quarter of any Default or (iv) any change in the information provided in the Beneficial Ownership Certification that would result in a change to the list of beneficial owners identified in of such certification;
(i) on the Closing Date and with each of the financial statements delivered pursuant to subsections (a) fiscal year (other than the last Fiscal Quarter fiscal quarter of each Fiscal Year) fiscal year), an unaudited consolidated and consolidating balance sheet of the Servicer, inclusive of its consolidated Subsidiaries, as of the end of such fiscal quarter and including the prior comparable period (b) aboveif any), a compliance certificate (“Compliance Certificate”) in and the form attached hereto as Exhibit F signed unaudited consolidated and consolidating statements of income, and of cash flow, of the Servicer and its consolidated Subsidiaries for such fiscal quarter and for the period commencing at the end of the previous fiscal year and ending with the end of such fiscal quarter, certified by a Financial an Executive Officer of the Borrower Servicer identifying such documents as being the documents described in this paragraph (ii) and stating that the information set forth therein fairly presents the financial condition of the Servicer and its consolidated Subsidiaries as of and for the periods then ended, subject to year-end adjustments and confirming that the effect that to Servicer is in compliance with all financial covenants in the best of such officer’s knowledge and belief no Default has occurred during the period covered by such statements Transaction Documents (or, if any such Default has occurred during such periodthe Servicer is not in compliance, setting forth a description of such Default and specifying the action, if any, taken by the relevant Loan Party or its Subsidiary to remedy the same. Such certificate shall also set forth the calculations supporting such statements in respect of Section 8.22 nature and status thereof) (Financial Covenants); and
(j) on the Closing Date and with each of the it being agreed that financial statements delivered pursuant to subsections (a) (other than included in the last Fiscal Quarter of each Fiscal Year) and (b) above, a Borrowing Base Certificate showing the computation of the Borrowing Base Value, in reasonable detail as of the close of business on the last day of such Fiscal Quarter or Fiscal Year, as applicable, prepared by the Borrower and certified to by its chief financial officer or another officer of the Borrower reasonably acceptable to the Administrative Agent; and
(k) within a reasonable period of time following any such request therefor, from time to time, (i) such other information regarding the operations, business affairs and financial condition of any Loan Party or any Subsidiary of a Loan Party, or compliance with the terms of any Loan Document, as the Administrative Agent or any Lender may reasonably request or (ii) information and documentation reasonably requested by the Administrative Agent or any Lender for purposes of compliance with applicable “know your customer” requirements under the Patriot Act or other applicable Anti-Corruption Laws and the Beneficial Ownership Regulation. Notwithstanding the foregoing, the filing of the BorrowerServicer’s financial statements with the U.S. Securities and Exchange Commission quarterly reports on Form 10-K or Form 10-Q for such fiscal quarter, as filed with the SEC, shall satisfy this Section 7.5(k)(ii) with respect to such fiscal quarter so long as the requirements of Section 8.5(a)(i) and (bServicer delivers such financial statements to the Facility Agent within the time period required above), respectively.
Appears in 1 contract
Sources: Loan Financing and Servicing Agreement (BC Partners Lending Corp)
Financial Reports. The Loan Parties shall(a) So long as any Notes remain outstanding:
(1) the Company shall provide the Trustee and Noteholders with annual consolidated financial statements audited by the Company’s independent public accountants within 90 days after the end of the Company’s fiscal year (120 days for the first fiscal year ended after the Issue Date), and shall cause unaudited quarterly consolidated financial statements (including a balance sheet, income statement and cash flow statement for the fiscal quarter or quarters then ended and the corresponding fiscal quarter or quarters from the prior year) within 60 days of the end of each of their Subsidiaries to, maintain proper books the first three fiscal quarters of records each fiscal year (90 days for the first two fiscal quarters ended after the Issue Date). Such annual and accounts reasonably necessary to prepare quarterly financial statements will be prepared in accordance with GAAP and be accompanied by a management’s discussion and analysis of the results of operations and liquidity and capital resources of the Company and its Restricted Subsidiaries for the periods presented in a level of detail comparable to the management’s discussion and analysis of financial condition and results of operations of the Company and its Restricted Subsidiaries contained in the Offering Memorandum; and
(2) the Company shall disclose to the Trustee and noteholders the occurrence of any event concerning the Company or its Restricted Subsidiaries that would be required to be reported on Form 8-K if the Company were required to file such reports pursuant to Items 1.01, 1.02 (it being understood that the Company and its Restricted Subsidiaries shall only be required to disclose events under Items 1.01 and 1.02 of Form 8-K to the extent that such events relate to the entry into, or termination or amendment of, any material definitive agreement in respect of a financing other than any Funding Indebtedness including Securitization Indebtedness, Warehousing Indebtedness or MSR Indebtedness, or acquisition or disposition of a business, and that the exhibits to such form need not be filed and that any filing relating to Non-Funding Indebtedness or other Debt can exclude any pricing information), 1.03, 2.01, 4.01, 4.02, and 5.01, in each case, within 10 days of the occurrence of such event. Notwithstanding the foregoing, with respect to the information provided in clause (a)(1) and (a)(2), (A) such information shall not be required to include (1) as an exhibit, or to include a summary of the terms of, any employment or compensatory arrangement, agreement, plan or understanding between the Company and any director, manager or officer, of the Company, (2) any information regarding the occurrence of any of the events set forth in clause (a)(2) if the Company determines in its good faith judgment that the event that would otherwise be required to be disclosed is not material to the holders of the notes or the business, assets, operations, financial positions or prospects of the Company and its Restricted Subsidiaries taken as a whole, (B) no such report shall be required to comply with the Exchange Act, (C) no such report shall be required to comply with Regulation S-K or Regulation S-X including, without limitation, Rules 3-05, 3-09, 3-10, 3-16 or Article 11 thereof, (D) no such report shall be required to provide any information that is not otherwise similar to information currently included in the Offering Memorandum, (E) in no event shall such reports be required to include as an exhibit copies of any agreements, financial statements or other items that would be required to be filed as exhibits under the SEC rules; (F) trade secrets and other information that could cause competitive harm to the Company and its Restricted Subsidiaries may be excluded from any disclosures; (G) such financial statements or information shall not be required to contain any “segment reporting”; (H) the Company may elect to change its fiscal year end, (I) no acquired business financial statements or pro forma financial statements shall be required to be disclosed; and (J) the Company may include any information of the information required above in the quarterly report for the quarter in which the event occurred as permitted by the “safe-harbor” provisions of Form 8-K. The reports required pursuant to clause (a)(1) and (a)(2) above will not be required to reflect any accounting standards or guidance, including those issued by the Financial Standards Accounting Board, applicable only to “public business entities.” The financial statements and related discussion referred to in clause (1) and the current reports referred to in clause (2) shall be made available to Noteholders and prospective investors in the Notes by posting on a password-protected or otherwise secured confidential website maintained by the Company. Disclosure of any current reports shall be accompanied by a notice of posting released on Bloomberg or a similar news service reasonably accessible to investors in securities such as the Notes. Notwithstanding the foregoing, the Company will be deemed to have furnished such reports referred to above to the Trustee and the holders of the Notes if the Company has filed such reports with the SEC via the ▇▇▇▇▇ filing system (or any successor system) and such reports are publicly available; provided, however, that the Trustee shall have no responsibility whatsoever to determine if such filing has occurred. In addition, the Company will make the information and reports available to prospective investors upon request (which prospective investors shall be limited to “qualified institutional buyers” within the meaning of Rule 144A of the Securities Act or non-U.S. persons (as defined in Regulation S under the Securities Act) that certify their status as such to the reasonable satisfaction of the Company).
(b) The Company will schedule a conference call to be held not more than 15 Business Days following the release of each report containing the financial information referred to in clause (a)(1) of this Section 4.16, at which the Company will make available its senior management to discuss the information contained in such report on such conference call; provided that such conference calls shall be permitted to be held jointly with conference calls the Company holds for holders of their other Indebtedness. The Company will notify Holders of Notes about such calls and provide them and prospective investors in the Notes with call-in information concurrently with and in the same manner as each delivery of financial statements pursuant to the preceding paragraph (a). Notwithstanding the foregoing, if the Company (or a Parent Entity, to the extent permitted by this covenant) holds a quarterly conference call for its equity holders within 15 Business Days of filing a report on ▇▇▇▇▇ (or any successor thereto), the Company or such Parent Entity, as applicable, will no longer be required to hold a separate conference call in respect of such report for the Holders.
(c) For so long as any of the Notes remain outstanding and constitute “restricted securities” under Rule 144, to the extent neither the Company nor any Parent Entity is subject to Section 13(a) or 15(d) under the Exchange Act, the Company will furnish to the Holders of the Notes and prospective investors, upon their request, the information required to be delivered pursuant to this Section 8.5 in accordance with GAAP Rule 144A(d)(4) under the Securities Act.
(d) The disclosure of such reports, information and shall furnish documents to the Administrative Agent Trustee is for informational purposes only and each Lender:the Trustee’s receipt of such shall not constitute constructive notice of any information contained therein or determinable from information contained therein, including the Company and the Guarantors’ compliance with any of its covenants under the Indenture (as to which the Trustee is entitled to rely exclusively on Officers’ Certificates). The Trustee shall have no obligation whatsoever to determine whether or not such information, documents or reports have been so made available to the Trustee or the Noteholders.
(ae) If, at any time, the Company has designated any of its Subsidiaries as soon as availableUnrestricted Subsidiaries, then either on the face of the financial statements or in the footnotes to the financial statements and in any event no later than sixty (60) days after “Management’s Discussion and Analysis of Financial Condition and Results of Operations,” or other comparable section, the last day of each Fiscal Quarter of each Fiscal Year Company shall provide an analysis and discussion of the Borrowermaterial differences, a copy if any, with respect to the financial condition and results of (i) operations of the company-prepared consolidated balance sheets of Borrower Company and its Restricted Subsidiaries as compared to the Company and its Subsidiaries as (including such Unrestricted Subsidiaries). In addition, subsequent to the closing of the last day Business Combination, the Company may satisfy its reporting obligations described in this Section with respect to financial information relating to the Company by furnishing financial information relating to any Parent Entity; provided that if and so long as such Parent Entity has material assets (other than Cash, Cash Equivalents and Equity Interests of such Fiscal Quarter and the consolidated statements of operationsCompany or any Parent Entity), changes in equity the same is accompanied by consolidating information (deficitwhich need not be audited) and cash flows of Borrower for the Fiscal Quarter and for the Fiscal Year-to-date period then ended, that explains in reasonable detail andthe differences between the information relating to such Parent Entity, on the one hand, and the information relating to the Company and its Restricted Subsidiaries on a stand-alone basis, on the other hand and would otherwise comply with the requirements of Rule 3-10 of Regulation S-X promulgated by the SEC (or any successor provision). The Company will be deemed to have furnished the reports referred to in this Section if available, showing in comparative form the figures for Company or any Parent Entity has filed the corresponding date and period in the previous Fiscal Year, prepared by the applicable party in accordance with GAAP (subject reports containing such information relating to the absence of footnote disclosures and year-end audit adjustments) and certified to by a Financial Officer of Borrower and (ii) operating statements, rent roll and accounts receivable aging for each Borrowing Base Property;
(b) as soon as available, and in any event no later than one hundred twenty (120) days after Company or such Parent Entity with the last day of each Fiscal Year of SEC via the Borrower, a copy of the consolidated balance sheets of Borrower and its Subsidiaries as of the last day of the Fiscal Year then ended and the consolidated statements of statements of operations, comprehensive loss, shareholders’ equity (deficit) and cash flows of Borrower and its Subsidiaries for the Fiscal Year then ended, and accompanying notes thereto, each in reasonable detail and, if available, showing in comparative form the figures for the previous Fiscal Year, accompanied in the case of the consolidated financial statements by an unqualified opinion of BDO USA, P.C., or another firm of independent public accountants of recognized national standing, selected by ▇▇▇▇▇▇▇▇ and reasonably satisfactory filing system (or any successor system). Any subsequent restatement of financial statements shall not have any retroactive effect for purposes of calculations previously made pursuant to the Administrative Agent;
covenants contained in the indenture. The subsequent posting or making available of any materials or conference call required by this covenant shall be deemed automatically to cure any Default resulting from the failure to post or make available such materials or conference call within the required timeframe. Any and all Defaults or Events of Default arising from a failure to furnish or file in a timely manner a report or other information required by this Section 4.16 shall be deemed cured (cand the Company shall be deemed to be in compliance with this Section 4.16) [reserved];
(d) promptly after the sending upon furnishing or filing thereof, copies of each financial statement, report, notice or proxy statement sent by any Loan Party or any Subsidiary of a Loan Party to its stockholders such report or other equity holders, and copies of each regular, periodic information as contemplated by this covenant (but without regard to the date on which such report or special report, registration statement other information is so furnished or prospectus filed by any Loan Party or any Subsidiary of a Loan Party with any securities exchange;
(e) [reserved];
(f) within ninety (90) days after filed); provided that such cure shall not otherwise affect the end of each Fiscal Year rights of the Borrower, a copy Holders under Section 6.01 if payment of the Borrower’s operating budget and projections for the following year including consolidated projections of revenues, expenses and balance sheet on a quarter-by-quarter basis, with such operating budget and projections Notes has been accelerated in reasonable detail prepared by Borrower and in form reasonably satisfactory to the Administrative Agent (which shall include a summary of all significant assumptions made in preparing such projections);
(g) notice of any Change of Control;
(h) promptly after knowledge thereof shall have come to the attention of any Responsible Officer of any Loan Party, written notice of (i) any threatened or pending litigation or governmental or arbitration proceeding or labor controversy against any Loan Party or any Subsidiary of a Loan Party or any of their Property which, if adversely determined, could reasonably be expected to have a Material Adverse Effect, (ii) the occurrence of any Material Adverse Effect, (iii) the occurrence of any Default or (iv) any change in the information provided in the Beneficial Ownership Certification that would result in a change to the list of beneficial owners identified in of such certification;
(i) on the Closing Date and with each of the financial statements delivered pursuant to subsections (a) (other than the last Fiscal Quarter of each Fiscal Year) and (b) above, a compliance certificate (“Compliance Certificate”) in the form attached hereto as Exhibit F signed by a Financial Officer of the Borrower to the effect that to the best of such officer’s knowledge and belief no Default has occurred during the period covered by such statements or, if any such Default has occurred during such period, setting forth a description of such Default and specifying the action, if any, taken by the relevant Loan Party or its Subsidiary to remedy the same. Such certificate shall also set forth the calculations supporting such statements in respect of Section 8.22 (Financial Covenants); and
(j) on the Closing Date and with each of the financial statements delivered pursuant to subsections (a) (other than the last Fiscal Quarter of each Fiscal Year) and (b) above, a Borrowing Base Certificate showing the computation of the Borrowing Base Value, in reasonable detail as of the close of business on the last day of such Fiscal Quarter or Fiscal Year, as applicable, prepared by the Borrower and certified to by its chief financial officer or another officer of the Borrower reasonably acceptable to the Administrative Agent; and
(k) within a reasonable period of time following any such request therefor, from time to time, (i) such other information regarding the operations, business affairs and financial condition of any Loan Party or any Subsidiary of a Loan Party, or compliance accordance with the terms of any Loan Document, as the Administrative Agent Indenture and such acceleration has not been rescinded or any Lender may reasonably request or (ii) information and documentation reasonably requested by the Administrative Agent or any Lender for purposes of compliance with applicable “know your customer” requirements under the Patriot Act or other applicable Anti-Corruption Laws and the Beneficial Ownership Regulationcancelled prior to such cure. Notwithstanding the foregoing, if at any time the filing Company or any Parent Entity has made a good faith determination to file a registration statement with the SEC with respect to such entity’s Capital Stock, the Company will not be required to disclose any information or take any actions that, in the good faith view of the BorrowerCompany, would violate applicable securities laws or the SEC’s financial statements with the U.S. Securities and Exchange Commission on Form 10-K or Form 10-Q shall satisfy the requirements of Section 8.5(a)(i) and (b), respectively“gun jumping” rules.
Appears in 1 contract
Sources: Indenture (UWM Holdings Corp)
Financial Reports. The Loan Parties shallBorrower shall cause the Investment Manager to furnish, or cause to be furnished, to the Administrative Agent:
(i) as soon as available, but in any event within 120 days after the end of each fiscal year of the Equityholder, a copy of the consolidated and consolidating balance sheet of the Equityholder and its consolidated Subsidiaries as at the end of such year, the related consolidated and consolidating statements of income for such year, and shall cause the related consolidated statements of changes in net assets and of cash flows for such year, setting forth in each of their Subsidiaries tocase in comparative form the figures for the previous year; provided, maintain proper books of records and accounts reasonably necessary to prepare that the financial statements required to be delivered pursuant to this Section 8.5 clause (i) which are made available via E▇▇▇▇, or any successor system of the Securities and Exchange Commission, in accordance with GAAP and the Equityholder’s annual report on Form 10-K, shall furnish be deemed delivered to the Administrative Agent and each Lender:on the date such documents are made so available; and
(aii) as soon as available, available and in any event no later than sixty (60) days after the last day of each Fiscal Quarter of each Fiscal Year of the Borrower, a copy of (i) the company-prepared consolidated balance sheets of Borrower and its Subsidiaries as of the last day of such Fiscal Quarter and the consolidated statements of operations, changes in equity (deficit) and cash flows of Borrower for the Fiscal Quarter and for the Fiscal Year-to-date period then ended, in reasonable detail and, if available, showing in comparative form the figures for the corresponding date and period in the previous Fiscal Year, prepared by the applicable party in accordance with GAAP (subject to the absence of footnote disclosures and year-end audit adjustments) and certified to by a Financial Officer of Borrower and (ii) operating statements, rent roll and accounts receivable aging for each Borrowing Base Property;
(b) as soon as available, and in any event no later than one hundred twenty (120) days after the last day of each Fiscal Year of the Borrower, a copy of the consolidated balance sheets of Borrower and its Subsidiaries as of the last day of the Fiscal Year then ended and the consolidated statements of statements of operations, comprehensive loss, shareholders’ equity (deficit) and cash flows of Borrower and its Subsidiaries for the Fiscal Year then ended, and accompanying notes thereto, each in reasonable detail and, if available, showing in comparative form the figures for the previous Fiscal Year, accompanied in the case of the consolidated financial statements by an unqualified opinion of BDO USA, P.C., or another firm of independent public accountants of recognized national standing, selected by ▇▇▇▇▇▇▇▇ and reasonably satisfactory to the Administrative Agent;
(c) [reserved];
(d) promptly after the sending or filing thereof, copies of each financial statement, report, notice or proxy statement sent by any Loan Party or any Subsidiary of a Loan Party to its stockholders or other equity holders, and copies of each regular, periodic or special report, registration statement or prospectus filed by any Loan Party or any Subsidiary of a Loan Party with any securities exchange;
(e) [reserved];
(f) within ninety (90) 45 days after the end of each Fiscal Year fiscal quarter of the Borrower, a copy of the Borrower’s operating budget and projections for the following each fiscal year including consolidated projections of revenues, expenses and balance sheet on a quarter-by-quarter basis, with such operating budget and projections in reasonable detail prepared by Borrower and in form reasonably satisfactory to the Administrative Agent (which shall include a summary of all significant assumptions made in preparing such projections);
(g) notice of any Change of Control;
(h) promptly after knowledge thereof shall have come to the attention of any Responsible Officer of any Loan Party, written notice of (i) any threatened or pending litigation or governmental or arbitration proceeding or labor controversy against any Loan Party or any Subsidiary of a Loan Party or any of their Property which, if adversely determined, could reasonably be expected to have a Material Adverse Effect, (ii) the occurrence of any Material Adverse Effect, (iii) the occurrence of any Default or (iv) any change in the information provided in the Beneficial Ownership Certification that would result in a change to the list of beneficial owners identified in of such certification;
(i) on the Closing Date and with each of the financial statements delivered pursuant to subsections (a) (other than the last Fiscal Quarter fiscal quarter of each Fiscal Year) fiscal year), an unaudited consolidated and (b) above, a compliance certificate (“Compliance Certificate”) in the form attached hereto as Exhibit F signed by a Financial Officer consolidating balance sheet of the Borrower to Equityholder and its consolidated Subsidiaries as of the effect that to the best end of such officer’s knowledge fiscal quarter and belief no Default has occurred during including the prior comparable period (if any), and the unaudited consolidated and consolidating statements of income of the Equityholder and its consolidated Subsidiaries for such fiscal quarter and for the period covered by such statements or, if any such Default has occurred during such period, setting forth a description commencing at the end of the previous fiscal year and ending with the end of such Default fiscal quarter, and specifying the actionunaudited consolidated statements of cash flows of the Equityholder and its consolidated Subsidiaries for the period commencing at the end of the previous fiscal year and ending with the end of such fiscal quarter; provided, if any, taken by the relevant Loan Party or its Subsidiary to remedy the same. Such certificate shall also set forth the calculations supporting such statements in respect of Section 8.22 (Financial Covenants); and
(j) on the Closing Date and with each of that the financial statements required to be delivered pursuant to subsections (a) (other than the last Fiscal Quarter of each Fiscal Year) and (b) above, a Borrowing Base Certificate showing the computation of the Borrowing Base Value, in reasonable detail as of the close of business on the last day of such Fiscal Quarter or Fiscal Year, as applicable, prepared by the Borrower and certified to by its chief financial officer or another officer of the Borrower reasonably acceptable to the Administrative Agent; and
(k) within a reasonable period of time following any such request therefor, from time to time, (i) such other information regarding the operations, business affairs and financial condition of any Loan Party or any Subsidiary of a Loan Party, or compliance with the terms of any Loan Document, as the Administrative Agent or any Lender may reasonably request or this clause (ii) information and documentation reasonably requested by the Administrative Agent which are made available via E▇▇▇▇, or any Lender for purposes of compliance with applicable “know your customer” requirements under the Patriot Act or other applicable Anti-Corruption Laws and the Beneficial Ownership Regulation. Notwithstanding the foregoing, the filing successor system of the Borrower’s financial statements with the U.S. Securities and Exchange Commission Commission, in the Equityholder’s quarterly report on Form 10-K or Form 10-Q Q, shall satisfy be deemed delivered to the requirements of Section 8.5(a)(i) and (b), respectivelyAdministrative Agent on the sate such documents are made so available.
Appears in 1 contract
Sources: Loan Financing and Servicing Agreement (FS Investment Corp III)
Financial Reports. The Loan Parties Borrower shall, and shall cause each of their Subsidiaries Subsidiary to, maintain proper books a standard system of records and accounts reasonably necessary to prepare financial statements required to be delivered pursuant to this Section 8.5 accounting in accordance with GAAP and shall furnish to the Administrative Agent and its duly authorized representatives such information respecting the business and financial condition of Borrower and each LenderSubsidiary as Administrative Agent or any Lender may reasonably request; and without any request, shall furnish to Administrative Agent:
(a) as soon as available, and in any event no later than sixty the earlier of (60i) 45 days after the last day of each Fiscal Quarter of each Fiscal Year of the first three Fiscal Quarters of Borrower in each fiscal year of Borrower, or (ii) 5 days following the filing of the same with the SEC, a copy of (i) the company-prepared consolidated and consolidating, if applicable, balance sheets sheet of Borrower and its Subsidiaries as of the last day of such Fiscal Quarter period and the consolidated and consolidating, if applicable, statements of operationsincome, changes in equity (deficit) retained earnings, and cash flows of Borrower and its Subsidiaries for the Fiscal Quarter and for the Fiscal Yearfiscal year-to-date period then ended, each in reasonable detail and, if available, showing in comparative form the figures for the corresponding date and period in the previous Fiscal Yearfiscal year, prepared by the applicable party Borrower in accordance with GAAP (subject to the absence of footnote disclosures and year-end audit adjustments) and certified to by a Financial Officer of Borrower and (ii) operating statements, rent roll and accounts receivable aging for each Borrowing Base Propertyor such other officer acceptable to Administrative Agent;
(b) as soon as available, and in any event no later than one hundred twenty the earlier of (120i) days 120 after the last day of each Fiscal Year fiscal year of Borrower, or (ii) 5 days following the filing of the Borrowersame with the SEC, a copy of the consolidated and consolidating, if applicable, balance sheets sheet of Borrower and its Subsidiaries as of the last day close of the Fiscal Year then ended such period and the consolidated and consolidating, if applicable, statements of statements of operationsincome, comprehensive lossretained earnings, shareholders’ equity (deficit) and cash flows of Borrower and its Subsidiaries for the Fiscal Year then endedsuch period, and accompanying notes thereto, each in reasonable detail and, if available, showing in comparative form the figures for the previous Fiscal Yearfiscal year, accompanied in the case of the consolidated financial statements by an unqualified opinion thereon of BDO USA, P.C., ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP or another firm of independent public accountants of recognized national standing, selected by ▇▇▇▇▇▇▇▇ Borrower and reasonably satisfactory to the Administrative Agent, to the effect that the financial statements have been prepared in accordance with GAAP and present fairly in accordance with GAAP the consolidated financial condition of Borrower and its Subsidiaries as of the close of such fiscal year and the results of their operations and cash flows for the fiscal year then ended and that an examination of such accounts in connection with such financial statements has been made in accordance with generally accepted auditing standards and, accordingly, such examination included such tests of the accounting records and such other auditing procedures as were considered necessary in the circumstances;
(c) [reserved]with each of the financial statements delivered pursuant to subsections (a) and (b) above, a written certificate in the form attached hereto as Exhibit G signed by a Financial Officer of Borrower or another officer of Borrower acceptable to Administrative Agent to the effect that to the best of such officer’s knowledge and belief no Default or Event of Default has occurred during the period covered by such statements or, if any such Default or Event of Default has occurred during such period, setting forth a description of such Default or Event of Default and specifying the action, if any, taken by Borrower or any Subsidiary to remedy the same. Such certificate shall also set forth the calculations supporting such statements in respect of Section 6.12 (Financial Covenants);
(d) with each of the financial statements delivered pursuant to subsection (b) above, the written statement of the accountants who certified the audit report thereby required that in the course of their audit they have obtained no knowledge of any Default or Event of Default, or, if such accountants have obtained knowledge of any such Default or Event of Default, they shall disclose in such statement the nature and period of the existence thereof;
(e) as soon as available, and in any event no later than 30 days after the first day of each fiscal year of Borrower, a copy of Borrower’s operating budget for the such fiscal year, such operating budget to show Borrower’s projected consolidated and consolidating balance sheet and statements of income and cash flows on a month by month basis, such operating budget to be in reasonable detail prepared by Borrower and in form satisfactory to Administrative Agent (which shall include a summary of all assumptions made in preparing such operating budget);
(f) promptly after receipt thereof, any additional written reports, management letters or other detailed information contained in writing concerning significant aspects of Borrower’s or any Subsidiary’s operations and financial affairs given to it by its independent public accountants;
(g) promptly after the sending or filing thereof, copies of each financial statement, report, notice or proxy statement sent by any Loan Party Borrower or any Subsidiary of a Loan Party to its stockholders or other equity holders, and copies of each regular, periodic or special report, registration statement or prospectus (including all Form 10 K, Form 10 Q and Form 8 K reports) filed by any Loan Party Borrower or any Subsidiary of a Loan Party with any securities exchangeexchange or the SEC or any successor agency;
(eh) [reserved];
(f) within ninety (90) days promptly after the end of each Fiscal Year of the Borrowerreceipt thereof, a copy of each audit made by any regulatory agency of the Borrower’s operating budget books and projections for the following year including consolidated projections records of revenues, expenses and balance sheet on a quarter-by-quarter basis, with such operating budget and projections in reasonable detail prepared by Borrower and in form reasonably satisfactory to the Administrative Agent (which shall include a summary or any Subsidiary or of all significant assumptions made in preparing such projections);
(g) notice of any Change of Control;material noncompliance with any Applicable Law relating to Borrower or any Subsidiary, or its business; and
(hi) promptly after knowledge thereof shall have come to the attention of any Responsible Officer of any Loan PartyBorrower, written notice of (iA) any threatened or pending litigation or governmental or arbitration proceeding or labor controversy against any Loan Party Borrower or any Subsidiary of a Loan Party or any of their Property which, if adversely determined, could reasonably be expected to have a Material Adverse Effect, Effect or (ii) the occurrence of any Material Adverse Effect, (iiiB) the occurrence of any Default or Event of Default hereunder. Reports, statements and other information required to be delivered by Borrower pursuant to clause (ivg) any change in the information provided in the Beneficial Ownership Certification that would result in a change of this Section 5.5 shall be deemed to the list of beneficial owners identified in of such certification;
(i) have been delivered on the Closing Date and with each of the financial date on which it posts such reports, statements delivered pursuant to subsections (a) (or other than the last Fiscal Quarter of each Fiscal Year) and (b) above, a compliance certificate (“Compliance Certificate”) in the form attached hereto as Exhibit F signed by a Financial Officer of the Borrower to the effect that to the best of such officer’s knowledge and belief no Default has occurred during the period covered by such statements or, if any such Default has occurred during such period, setting forth a description of such Default and specifying the action, if any, taken by the relevant Loan Party or information on its Subsidiary to remedy the same. Such certificate shall also set forth the calculations supporting such statements in respect of Section 8.22 (Financial Covenants); and
(j) website on the Closing Date Internet at ▇▇▇.▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ and with each of the financial when such reports, statements delivered pursuant to subsections (a) (or other than the last Fiscal Quarter of each Fiscal Year) and (b) above, a Borrowing Base Certificate showing the computation of the Borrowing Base Value, in reasonable detail as of the close of business information are posted on the last day of such Fiscal Quarter or Fiscal Year, as applicable, prepared by the Borrower and certified to by its chief financial officer or another officer of the Borrower reasonably acceptable to the Administrative Agent; and
(k) within a reasonable period of time following any such request therefor, from time to time, (i) such other information regarding the operations, business affairs and financial condition of any Loan Party or any Subsidiary of a Loan Party, or compliance with the terms of any Loan Document, as the Administrative Agent or any Lender may reasonably request or (ii) information and documentation reasonably requested by the Administrative Agent or any Lender for purposes of compliance with applicable “know your customer” requirements under the Patriot Act or other applicable Anti-Corruption Laws and the Beneficial Ownership Regulation. Notwithstanding the foregoing, the filing of the BorrowerSEC’s financial statements with the U.S. Securities and Exchange Commission on Form 10-K or Form 10-Q shall satisfy the requirements of Section 8.5(a)(i) and (b), respectivelywebsite at ▇▇▇.▇▇▇.▇▇▇.
Appears in 1 contract
Financial Reports. The Loan Parties shall(a) So long as any Notes remain outstanding:
(1) the Company shall provide the Trustee and Noteholders with annual consolidated financial statements audited by the Company’s independent public accountants within 90 days after the end of the Company’s fiscal year (120 days for the first fiscal year ended after the Issue Date), and shall cause unaudited quarterly consolidated financial statements (including a balance sheet, income statement and cash flow statement for the fiscal quarter or quarters then ended and the corresponding fiscal quarter or quarters from the prior year) within 60 days of the end of each of their Subsidiaries to, maintain proper books the first three fiscal quarters of records each fiscal year (90 days for the first two fiscal quarters ended after the Issue Date). Such annual and accounts reasonably necessary to prepare quarterly financial statements will be prepared in accordance with GAAP and be accompanied by a management’s discussion and analysis of the results of operations and liquidity and capital resources of the Company and its Restricted Subsidiaries for the periods presented in a level of detail comparable to the management’s discussion and analysis of financial condition and results of operations of the Company and its Restricted Subsidiaries contained in the Offering Memorandum; and
(2) the Company shall disclose to the Trustee and noteholders the occurrence of any event concerning the Company or its Restricted Subsidiaries that would be required to be reported on Form 8-K if the Company were required to file such reports pursuant to Items 1.01, 1.02 (it being understood that the Company and its Restricted Subsidiaries shall only be required to disclose events under Items 1.01 and 1.02 of Form 8-K to the extent that such events relate to the entry into, or termination or amendment of, any material definitive agreement in respect of a financing other than any Funding Indebtedness including Securitization Indebtedness, Warehousing Indebtedness or MSR Indebtedness, or acquisition or disposition of a business, and that the exhibits to such form need not be filed and that any filing relating to Non-Funding Indebtedness or other Debt can exclude any pricing information), 1.03, 2.01, 4.01, 4.02, and 5.01, in each case, within 10 days of the occurrence of such event. Notwithstanding the foregoing, with respect to the information provided in clause (a)(1) and (a)(2), (A) such information shall not be required to include (1) as an exhibit, or to include a summary of the terms of, any employment or compensatory arrangement, agreement, plan or understanding between the Company and any director, manager or officer, of the Company, (2) any information regarding the occurrence of any of the events set forth in clause (a)(2) if the Company determines in its good faith judgment that the event that would otherwise be required to be disclosed is not material to the Holders of the Notes or the business, assets, operations, financial positions or prospects of the Company and its Restricted Subsidiaries taken as a whole, (B) no such report shall be required to comply with the Exchange Act, (C) no such report shall be required to comply with Regulation S-K or Regulation S-X including, without limitation, Rules 3-05, 3-09, 3-10, 13-01, 13-02 or Article 11 thereof, (D) no such report shall be required to provide any information that is not otherwise similar to information currently included in the Offering Memorandum, (E) in no event shall such reports be required to include as an exhibit copies of any agreements, financial statements or other items that would be required to be filed as exhibits under the SEC rules; (F) trade secrets and other information that could cause competitive harm to the Company and its Restricted Subsidiaries may be excluded from any disclosures; (G) such financial statements or information shall not be required to contain any “segment reporting”; (H) the Company may elect to change its fiscal year end, (I) no acquired business financial statements or pro forma financial statements shall be required to be disclosed; and (J) the Company may include any information of the information required above in the quarterly report for the quarter in which the event occurred as permitted by the “safe-harbor” provisions of Form 8-K. The financial statements and related discussion referred to in clause (1) and the current reports referred to in clause (2) shall be made available to Noteholders and prospective investors in the Notes by posting on a password-protected or otherwise secured confidential website maintained by the Company. Disclosure of any current reports shall be accompanied by a notice of posting released on Bloomberg or a similar news service reasonably accessible to investors in securities such as the Notes. Notwithstanding the foregoing, the Company will be deemed to have furnished such reports referred to above to the Trustee and the holders of the Notes if the Company has filed such reports with the SEC via the ▇▇▇▇▇ filing system (or any successor system) and such reports are publicly available; provided, however, that the Trustee shall have no responsibility whatsoever to determine if such filing has occurred. In addition, the Company will make the information and reports available to prospective investors upon request (which prospective investors shall be limited to “qualified institutional buyers” within the meaning of Rule 144A of the Securities Act or non-U.S. persons (as defined in Regulation S under the Securities Act) that certify their status as such to the reasonable satisfaction of the Company).
(b) The Company will schedule a conference call to be held not more than 15 Business Days following the release of each report containing the financial information referred to in clause (a)(1) of this Section 4.16, at which the Company will make available its senior management to discuss the information contained in such report on such conference call; provided that such conference calls shall be permitted to be held jointly with conference calls the Company holds for holders of their other Indebtedness. The Company will notify Holders of Notes about such calls and provide them and prospective investors in the Notes with call-in information concurrently with and in the same manner as each delivery of financial statements pursuant to the preceding paragraph (a). Notwithstanding the foregoing, if the Company (or a Parent Entity, to the extent permitted by this covenant) holds a quarterly conference call for its equity holders within 15 Business Days of filing a report on ▇▇▇▇▇ (or any successor thereto), the Company or such Parent Entity, as applicable, will no longer be required to hold a separate conference call in respect of such report for the Holders.
(c) For so long as any of the Notes remain outstanding and constitute “restricted securities” under Rule 144, to the extent neither the Company nor any Parent Entity is subject to Section 13(a) or 15(d) under the Exchange Act, the Company will furnish to the Holders of the Notes and prospective investors, upon their request, the information required to be delivered pursuant to this Section 8.5 in accordance with GAAP Rule 144A(d)(4) under the Securities Act.
(d) The disclosure of such reports, information and shall furnish documents to the Administrative Agent Trustee is for informational purposes only and each Lender:the Trustee’s receipt of such shall not constitute constructive notice of any information contained therein or determinable from information contained therein, including the Company and the Guarantors’ compliance with any of its covenants under this Indenture (as to which the Trustee is entitled to rely exclusively on Officers’ Certificates). The Trustee shall have no obligation whatsoever to determine whether or not such information, documents or reports have been so made available to the Trustee or the Noteholders.
(ae) If, at any time, the Company has designated any of its Subsidiaries as soon as availableUnrestricted Subsidiaries, then either on the face of the financial statements or in the footnotes to the financial statements and in any event no later than sixty (60) days after “Management’s Discussion and Analysis of Financial Condition and Results of Operations,” or other comparable section, the last day of each Fiscal Quarter of each Fiscal Year Company shall provide an analysis and discussion of the Borrowermaterial differences, a copy if any, with respect to the financial condition and results of (i) operations of the company-prepared consolidated balance sheets of Borrower Company and its Restricted Subsidiaries as compared to the Company and its Subsidiaries (including such Unrestricted Subsidiaries). The Company may satisfy its reporting obligations described in this Section with respect to financial information relating to the Company by furnishing financial information relating to any Parent Entity; provided that if and so long as such Parent Entity has material assets (other than Cash, Cash Equivalents and Equity Interests of the last day of such Fiscal Quarter and Company or any Parent Entity), the consolidated statements of operations, changes in equity same is accompanied by consolidating information (deficitwhich need not be audited) and cash flows of Borrower for the Fiscal Quarter and for the Fiscal Year-to-date period then ended, that explains in reasonable detail andthe differences between the information relating to such Parent Entity, on the one hand, and the information relating to the Company and its Restricted Subsidiaries on a stand-alone basis, on the other hand and would otherwise comply with the requirements of Rule 3-10 of Regulation S-X promulgated by the SEC (or any successor provision). The Company will be deemed to have furnished the reports referred to in this Section 4.16 if available, showing in comparative form the figures for Company or any Parent Entity has filed the corresponding date and period in the previous Fiscal Year, prepared by the applicable party in accordance with GAAP (subject reports containing such information relating to the absence of footnote disclosures and year-end audit adjustments) and certified to by a Financial Officer of Borrower and (ii) operating statements, rent roll and accounts receivable aging for each Borrowing Base Property;
(b) as soon as available, and in Company or any event no later than one hundred twenty (120) days after Parent Entity with the last day of each Fiscal Year of SEC via the Borrower, a copy of the consolidated balance sheets of Borrower and its Subsidiaries as of the last day of the Fiscal Year then ended and the consolidated statements of statements of operations, comprehensive loss, shareholders’ equity (deficit) and cash flows of Borrower and its Subsidiaries for the Fiscal Year then ended, and accompanying notes thereto, each in reasonable detail and, if available, showing in comparative form the figures for the previous Fiscal Year, accompanied in the case of the consolidated financial statements by an unqualified opinion of BDO USA, P.C., or another firm of independent public accountants of recognized national standing, selected by ▇▇▇▇▇▇▇▇ and reasonably satisfactory filing system (or any successor system). Any subsequent restatement of financial statements shall not have any retroactive effect for purposes of calculations previously made pursuant to the Administrative Agent;
covenants contained in this Indenture. The subsequent posting or making available of any materials or conference call required by this covenant shall be deemed automatically to cure any Default resulting from the failure to post or make available such materials or conference call within the required timeframe. Any and all Defaults or Events of Default arising from a failure to furnish or file in a timely manner a report or other information required by this Section 4.16 shall be deemed cured (cand the Company shall be deemed to be in compliance with this Section 4.16) [reserved];
(d) promptly after the sending upon furnishing or filing thereof, copies of each financial statement, report, notice or proxy statement sent by any Loan Party or any Subsidiary of a Loan Party to its stockholders such report or other equity holders, and copies of each regular, periodic information as contemplated by this covenant (but without regard to the date on which such report or special report, registration statement other information is so furnished or prospectus filed by any Loan Party or any Subsidiary of a Loan Party with any securities exchange;
(e) [reserved];
(f) within ninety (90) days after filed); provided that such cure shall not otherwise affect the end of each Fiscal Year rights of the Borrower, a copy Holders under Section 6.01 if payment of the Borrower’s operating budget and projections for the following year including consolidated projections of revenues, expenses and balance sheet on a quarter-by-quarter basis, with such operating budget and projections Notes has been accelerated in reasonable detail prepared by Borrower and in form reasonably satisfactory to the Administrative Agent (which shall include a summary of all significant assumptions made in preparing such projections);
(g) notice of any Change of Control;
(h) promptly after knowledge thereof shall have come to the attention of any Responsible Officer of any Loan Party, written notice of (i) any threatened or pending litigation or governmental or arbitration proceeding or labor controversy against any Loan Party or any Subsidiary of a Loan Party or any of their Property which, if adversely determined, could reasonably be expected to have a Material Adverse Effect, (ii) the occurrence of any Material Adverse Effect, (iii) the occurrence of any Default or (iv) any change in the information provided in the Beneficial Ownership Certification that would result in a change to the list of beneficial owners identified in of such certification;
(i) on the Closing Date and with each of the financial statements delivered pursuant to subsections (a) (other than the last Fiscal Quarter of each Fiscal Year) and (b) above, a compliance certificate (“Compliance Certificate”) in the form attached hereto as Exhibit F signed by a Financial Officer of the Borrower to the effect that to the best of such officer’s knowledge and belief no Default has occurred during the period covered by such statements or, if any such Default has occurred during such period, setting forth a description of such Default and specifying the action, if any, taken by the relevant Loan Party or its Subsidiary to remedy the same. Such certificate shall also set forth the calculations supporting such statements in respect of Section 8.22 (Financial Covenants); and
(j) on the Closing Date and with each of the financial statements delivered pursuant to subsections (a) (other than the last Fiscal Quarter of each Fiscal Year) and (b) above, a Borrowing Base Certificate showing the computation of the Borrowing Base Value, in reasonable detail as of the close of business on the last day of such Fiscal Quarter or Fiscal Year, as applicable, prepared by the Borrower and certified to by its chief financial officer or another officer of the Borrower reasonably acceptable to the Administrative Agent; and
(k) within a reasonable period of time following any such request therefor, from time to time, (i) such other information regarding the operations, business affairs and financial condition of any Loan Party or any Subsidiary of a Loan Party, or compliance accordance with the terms of any Loan Document, as the Administrative Agent this Indenture and such acceleration has not been rescinded or any Lender may reasonably request or (ii) information and documentation reasonably requested by the Administrative Agent or any Lender for purposes of compliance with applicable “know your customer” requirements under the Patriot Act or other applicable Anti-Corruption Laws and the Beneficial Ownership Regulationcancelled prior to such cure. Notwithstanding the foregoing, if at any time the filing Company or any Parent Entity has made a good faith determination to file a registration statement with the SEC with respect to such entity’s Capital Stock, the Company will not be required to disclose any information or take any actions that, in the good faith view of the BorrowerCompany, would violate applicable securities laws or the SEC’s financial statements with the U.S. Securities and Exchange Commission on Form 10-K or Form 10-Q shall satisfy the requirements of Section 8.5(a)(i) and (b), respectively“gun jumping” rules.
Appears in 1 contract
Sources: Indenture (UWM Holdings Corp)
Financial Reports. The Loan Parties shall, and Each Member shall cause each of their Subsidiaries to, maintain proper books of records and accounts reasonably necessary be entitled to prepare financial statements required to be delivered pursuant to this Section 8.5 in accordance with GAAP and shall furnish to receive the Administrative Agent and each Lenderfollowing information from the Company:
(a) as soon as available, and in any event no later than sixty Within forty-five (6045) days after the last day end of each Fiscal Quarter of each Fiscal Year of the Borrowerquarterly accounting period, a copy of (i) the company-prepared an unaudited consolidated balance sheets of Borrower and its Subsidiaries sheet as of the last day end of such Fiscal Quarter quarterly accounting period and the an unaudited related consolidated statements income statement, consolidated statement of operationsMembers’ equity, changes in equity (deficit) and consolidated statement of cash flows of Borrower for the Fiscal Quarter and for the Fiscal Yearsuch quarterly accounting period including any footnotes thereto (if any) prepared in accordance with GAAP, consistently applied, together with comparable year-to-date period then ended, in reasonable detail and, if available, showing in comparative form the figures for the corresponding date and period in the previous Fiscal Year, prepared by the applicable party in accordance with GAAP (subject to the absence of footnote disclosures and year-end audit adjustments) and certified to by a Financial Officer of Borrower and (ii) operating statements, rent roll and accounts receivable aging for each Borrowing Base Propertyfigures;
(b) as soon as available, and in any event no later than one hundred twenty (120) days after the last day of each Fiscal Year of the Borrower, a copy of the consolidated balance sheets of Borrower and its Subsidiaries as of the last day of the Fiscal Year then ended and the consolidated statements of statements of operations, comprehensive loss, shareholders’ equity (deficit) and cash flows of Borrower and its Subsidiaries for the Fiscal Year then ended, and accompanying notes thereto, each in reasonable detail and, if available, showing in comparative form the figures for the previous Fiscal Year, accompanied in the case of the consolidated financial statements by an unqualified opinion of BDO USA, P.C., or another firm of independent public accountants of recognized national standing, selected by ▇▇▇▇▇▇▇▇ and reasonably satisfactory to the Administrative Agent;
(c) [reserved];
(d) promptly after the sending or filing thereof, copies of each financial statement, report, notice or proxy statement sent by any Loan Party or any Subsidiary of a Loan Party to its stockholders or other equity holders, and copies of each regular, periodic or special report, registration statement or prospectus filed by any Loan Party or any Subsidiary of a Loan Party with any securities exchange;
(e) [reserved];
(f) within Within ninety (90) days after the end of each Fiscal Year (or such longer period of time as is approved by the Board) an unaudited consolidated balance sheet as of the Borrowerend of such Fiscal Year and the related consolidated income statement, consolidated statement of Members’ equity, and consolidated statement of cash flows including all footnotes thereto for such Fiscal Year prepared in accordance with GAAP, consistently applied, and within one hundred twenty days (120) days after the end of the Fiscal Year an audited consolidated balance sheet as of the end of such Fiscal Year and the related consolidated income statement, consolidated statement of Members’ equity, and consolidated statement of cash flows including all footnotes thereto for such Fiscal Year prepared in accordance with GAAP, consistently applied, a copy of signed audit letter from the BorrowerCompany’s operating budget auditors (who shall be approved by the Board), and projections for the following year including consolidated projections of revenuesauditor’s letter to management ; provided, expenses however, that the information described in this Section 11.3(b) and balance sheet on a quarter-by-quarter basis, with such operating budget and projections in reasonable detail prepared Section 11.3(a) above need not be delivered by Borrower and in form reasonably satisfactory to the Administrative Agent (which shall include a summary of all significant assumptions made in preparing such projections);
(g) notice of any Change of Control;
(h) promptly after knowledge thereof shall have come to the attention of any Responsible Officer of any Loan Party, written notice of Company as long as (i) any threatened or pending litigation or governmental or arbitration proceeding or labor controversy against any Loan Party or any Subsidiary of the Initial Common Member remains a Loan Party or any of their Property which, if adversely determined, could reasonably be expected to have a Material Adverse Effect, (ii) the occurrence of any Material Adverse Effect, (iii) the occurrence of any Default or (iv) any change in the information provided in the Beneficial Ownership Certification that would result in a change public company subject to the list of beneficial owners identified in of such certification;
(i) on the Closing Date and with each periodic reporting requirements of the financial statements delivered pursuant to subsections (a) (other than the last Fiscal Quarter of each Fiscal Year) Exchange Act, and (b) above, a compliance certificate (“Compliance Certificate”) in the form attached hereto as Exhibit F signed by a Financial Officer of the Borrower to the effect that to the best of such officer’s knowledge and belief no Default has occurred during the period covered by such statements or, if any such Default has occurred during such period, setting forth a description of such Default and specifying the action, if any, taken by the relevant Loan Party or its Subsidiary to remedy the same. Such certificate shall also set forth the calculations supporting such statements in respect of Section 8.22 (Financial Covenants); and
(j) on the Closing Date and with each of the financial statements delivered pursuant to subsections (a) (other than the last Fiscal Quarter of each Fiscal Year) and (b) above, a Borrowing Base Certificate showing the computation of the Borrowing Base Value, in reasonable detail as of the close of business on the last day of such Fiscal Quarter or Fiscal Year, as applicable, prepared by the Borrower and certified to by its chief financial officer or another officer of the Borrower reasonably acceptable to the Administrative Agent; and
(k) within a reasonable period of time following any such request therefor, from time to time, (i) such other information regarding the operations, business affairs and financial condition of any Loan Party or any Subsidiary of a Loan Party, or compliance with the terms of any Loan Document, as the Administrative Agent or any Lender may reasonably request or (ii) information regarding the Company which is substantially equivalent in all material respects to that described in this Section 11.3(b) and documentation reasonably requested Section 11.3(a) above is fairly reflected in financial statements and other information timely filed by the Administrative Agent or any Lender for purposes of compliance with applicable “know your customer” requirements under the Patriot Act or other applicable Anti-Corruption Laws and the Beneficial Ownership Regulation. Notwithstanding the foregoing, the filing of the Borrower’s financial statements Initial Common Member with the U.S. Securities and Exchange Commission on Form 10-K pursuant to the Exchange Act.
(c) Such other financial, accounting or Form 10-Q shall satisfy other information relating to the requirements of Section 8.5(a)(iCompany and its Subsidiaries or their respective operations as any Member may reasonably request (taking into account the information otherwise available to such Member) and (b), respectivelyfrom time to time for purposes reasonably related to such Member’s Interest in the Company.
Appears in 1 contract
Financial Reports. The Loan Parties shall, and Lessee shall cause each of their Subsidiaries to, maintain proper books of records and accounts reasonably necessary Airborne to prepare financial statements required to be delivered pursuant to this Section 8.5 in accordance with GAAP and shall furnish to each Participant and the Administrative Agent and each LenderOwner Trustee during the Lease Term:
(a) as soon as available, and in any event no later than sixty (60) days after the last day of each Fiscal Quarter of each Fiscal Year of the Borrower, a copy of (i) the company-prepared consolidated balance sheets of Borrower and its Subsidiaries as of the last day of such Fiscal Quarter and the consolidated statements of operations, changes in equity (deficit) and cash flows of Borrower for the Fiscal Quarter and for the Fiscal Year-to-date period then ended, in reasonable detail and, if available, showing in comparative form the figures for the corresponding date and period in the previous Fiscal Year, prepared by the applicable party in accordance with GAAP (subject to the absence of footnote disclosures and year-end audit adjustments) and certified to by a Financial Officer of Borrower and (ii) operating statements, rent roll and accounts receivable aging for each Borrowing Base Property;
(b) as soon as available, and in any event no later than one hundred twenty (120) days after the last day of each Fiscal Year of the Borrower, a copy of the consolidated balance sheets of Borrower and its Subsidiaries as of the last day of the Fiscal Year then ended and the consolidated statements of statements of operations, comprehensive loss, shareholders’ equity (deficit) and cash flows of Borrower and its Subsidiaries for the Fiscal Year then ended, and accompanying notes thereto, each in reasonable detail and, if available, showing in comparative form the figures for the previous Fiscal Year, accompanied in the case of the consolidated financial statements by an unqualified opinion of BDO USA, P.C., or another firm of independent public accountants of recognized national standing, selected by ▇▇▇▇▇▇▇▇ and reasonably satisfactory to the Administrative Agent;
(c) [reserved];
(d) promptly after the sending or filing thereof, copies of each financial statement, report, notice or proxy statement sent by any Loan Party or any Subsidiary of a Loan Party to its stockholders or other equity holders, and copies of each regular, periodic or special report, registration statement or prospectus filed by any Loan Party or any Subsidiary of a Loan Party with any securities exchange;
(e) [reserved];
(f) within ninety (90) 60 days after the end of each Fiscal Year of the Borrowerfirst three fiscal quarters in each fiscal year of Airborne, unaudited consolidated balance sheets of Airborne and its consolidated subsidiaries as of the end of such quarter and related consolidated statements of income, and cash flows of Airborne and its consolidated 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 certified by a financial officer of Airborne that they fairly present the consolidated financial condition of Airborne and its consolidated subsidiaries as of the dates indicated and the results of their operations and cash flow for the periods indicated in conformity with generally accepted accounting principles applied to quarterly financial statements on a basis consistent with prior quarters (except as otherwise stated therein), subject to normal year-end adjustments; provided that so long as Airborne is subject to the reporting provisions of the Securities Exchange Act of 1934, as amended, delivery to such Persons within such time period of Airborne’s Quarterly Report on Form 10-Q as filed with the SEC shall satisfy the requirements of this paragraph (i);
(ii) within 120 days after the end of each fiscal year of Airborne, a copy of the Borrower’s operating budget annual report for such year for Airborne or the affiliated group of which the Lessee is a member (on a consolidated basis) and projections for the following year including a consolidated projections of revenues, expenses and balance sheet on a quarter-by-quarter basisof Airborne and its consolidated subsidiaries as of the end of such fiscal year and related statements of income, shareholder’s equity and cash flows of the Airborne and its subsidiaries for such fiscal year, in comparative form with such operating budget and projections the preceding fiscal year all in reasonable detail prepared and accompanied by Borrower a report thereon of independent certified public accountants of recognized national standing selected by Airborne which shall state that such consolidated financial statements present fairly the consolidated financial position of Airborne and its subsidiaries as of the dates indicated and the results of their operations and cash flow for the periods indicated in form reasonably satisfactory conformity with generally accepted accounting principles on a basis consistent with prior years (except as otherwise stated therein) and that the examination of such accountants in connection with such consolidated financial statements has been made in accordance with generally accepted auditing standards; provided, that so long as Airborne is subject to the Administrative Agent reporting provisions of the Securities Exchange Act of 1934, as amended, delivery to such Persons within such time period of Airborne Annual Report on Form 10-K as filed with the SEC shall satisfy the requirements of this paragraph (which shall include a summary of all significant assumptions made in preparing such projectionsii);
(giii) notice if not provided pursuant to paragraphs (i) or (ii) above, promptly after filing with the SEC, copies of any Change quarterly reports on Form 10-Q, annual reports on Form 10-K and Annual Reports to Shareholders of ControlAirborne which may be so filed;
(hiv) promptly within 120 days after knowledge thereof shall have come the end of each fiscal year of the Lessee, an Officer’s Certificate of Airborne relating to the attention of any Responsible Officer of any Loan PartyLessee and its consolidated subsidiaries, written notice of (i) any threatened or pending litigation or governmental or arbitration proceeding or labor controversy against any Loan Party or any Subsidiary of a Loan Party or any of their Property which, if adversely determined, could reasonably be expected to have a Material Adverse Effect, (ii) the occurrence of any Material Adverse Effect, (iii) the occurrence of any Default or (iv) any change in the information provided in the Beneficial Ownership Certification that would result in a change to the list of beneficial owners identified in of such certification;
(i) on the Closing Date and with each of the financial statements delivered pursuant to subsections (a) (other than the last Fiscal Quarter of each Fiscal Year) and (b) above, a compliance certificate (“Compliance Certificate”) in the form attached hereto as Exhibit F signed by a Financial Officer of the Borrower to the effect that the signer is familiar with or has reviewed the relevant terms of the Operative Agreements and has made, or caused to be made under his supervision, a review of the best transactions and conditions of the Lessee and its consolidated subsidiaries during the preceding fiscal year and that such review has not disclosed the existence during such period, nor does the signer have knowledge of the existence as of the date of such officer’s knowledge and belief no certificate, of any condition or event which constituted or constitutes a Lease Default has occurred during the period covered by such statements or Lease Event of Default, or, if any such Default has occurred during such periodcondition or event existed or exists, setting forth a description of such Default and specifying the action, if any, nature and period of existence thereof and what action the Lessee has taken by the relevant Loan Party or its Subsidiary is taking or proposes to remedy the same. Such certificate shall also set forth the calculations supporting such statements in take with respect of Section 8.22 (Financial Covenants)thereto; and
(jv) on the Closing Date and with each of the financial statements delivered pursuant to subsections (a) (other than the last Fiscal Quarter of each Fiscal Year) and (b) above, a Borrowing Base Certificate showing the computation of the Borrowing Base Value, in reasonable detail as of the close of business on the last day of such Fiscal Quarter or Fiscal Year, as applicable, prepared by the Borrower and certified to by its chief financial officer or another officer of the Borrower reasonably acceptable to the Administrative Agent; and
(k) within a reasonable period of time following any such request therefor, from time to time, (i) such other financial information regarding relating to the operations, business affairs Lessee and financial condition of non-confidential data or information relating to the transactions hereby contemplated as any Loan Party or any Subsidiary of a Loan Party, or compliance with the terms of any Loan Document, as the Administrative Agent or any Lender such Person may reasonably request or (ii) any such information and documentation reasonably requested by the Administrative Agent or provided to any Lender for purposes of compliance with applicable “know your customer” requirements under the Patriot Act or other applicable Anti-Corruption Laws and the Beneficial Ownership Regulation. Notwithstanding the foregoing, the filing of the Borrower’s financial statements with the U.S. Securities and Exchange Commission on Form 10-K or Form 10-Q shall satisfy the requirements of Section 8.5(a)(i) and (bsuch Person to be provided to each such Person), respectively.
Appears in 1 contract
Financial Reports. The Loan Parties shallUntil such time that the Corporation has a class of its equity securities registered under the Exchange Act and is required to file reports thereunder pursuant to Sections 13 or 15(d) of the Exchange Act, and except with respect to the obligation set forth in Section 2.7(e)(i) hereunder which shall cause survive such time, the Corporation shall furnish each of their Subsidiaries to, maintain proper books of records and accounts reasonably necessary to prepare the Major Investors with the financial statements required to be delivered pursuant to this Section 8.5 in accordance with GAAP and shall furnish to the Administrative Agent and each Lenderinformation described below:
(a) as soon as available, and in any event no later than sixty (60) Within 30 days after the last day of each Fiscal Quarter of each Fiscal Year month (the “Target Month”) (or such other calendar period as is approved by the Board), financial statements, including a balance sheet as of the Borrowerlast date of such Target Month, a copy statement of income (ior monthly operating expenses) for such month, together with a cumulative statement of income from the company-prepared consolidated balance sheets first day of Borrower and its Subsidiaries as of the current year to the last day of such Fiscal Quarter month, which statements shall be prepared from the books and records of the Corporation, a cash flow analysis, together with cumulative cash flow analyses from the first day of the current year to the last day of such month, and a comparison between the actual monthly operating expenses and the consolidated statements of operations, changes in equity (deficit) projected figures for such month and cash flows of Borrower for the Fiscal Quarter and for the Fiscal Year-to-date period then ended, in reasonable detail and, if available, showing in comparative form the comparable figures for the corresponding date and period in the previous Fiscal Yearprior year, prepared by the applicable party in accordance with GAAP (subject to the absence provisions of footnote disclosures and year-end audit adjustments) and certified to by a Financial Officer of Borrower and (ii) operating statements, rent roll and accounts receivable aging for each Borrowing Base Property;Section 2.9 hereof.
(b) as soon as availableUpon receipt of a request from any of the Major Investors prior to the end of a quarterly accounting period, and in any event no later than one hundred twenty (120) the Corporation shall deliver to each of the Major Investors, within 45 days after the last day end of each Fiscal Year such quarterly accounting period, unaudited financial statements for such quarterly accounting period, certified by the Chief Financial Officer or the Treasurer of the BorrowerCorporation, a copy as presenting fairly the financial condition and results of operations of the consolidated balance sheets of Borrower Corporation and its Subsidiaries as having been prepared on a basis consistent with the accounting principles reflected in the Corporation’s annual audited financial statements, accompanied by a report, signed by the Chief Financial Officer or the Treasurer of the last day Corporation, summarizing the operating and financial highlights of the Fiscal Year then ended Corporation for such quarterly accounting period, which report shall include (a) a comparison between the actual quarterly operating and financial results, the Budget (as defined in Section 2.8 hereof) and the consolidated statements results of statements of operations, comprehensive loss, shareholders’ equity (deficit) and cash flows of Borrower and its Subsidiaries the similar quarterly accounting period for the Fiscal Year then endedprior fiscal year of the Corporation, together with an explanation of material variances from the Budget and such similar quarterly accounting period, as the case may be, and accompanying notes thereto, each in reasonable detail and, if available, showing in comparative form the figures for the previous Fiscal Year, accompanied (b) a narrative analysis of operations and trends in the case business of the consolidated financial statements by an unqualified opinion of BDO USA, P.C., or another firm of independent public accountants of recognized national standing, selected by ▇▇▇▇▇▇▇▇ and reasonably satisfactory to the Administrative Agent;Corporation during such quarterly accounting period.
(c) [reserved];
(d) promptly after the sending or filing thereof, copies of each financial statement, report, notice or proxy statement sent by any Loan Party or any Subsidiary of a Loan Party to its stockholders or other equity holders, and copies of each regular, periodic or special report, registration statement or prospectus filed by any Loan Party or any Subsidiary of a Loan Party with any securities exchange;
(e) [reserved];
(f) within ninety (90) Within 90 days after the end of each Fiscal Year fiscal year of the BorrowerCorporation, a copy audited financial statements of the Borrower’s operating budget and projections for the following year including consolidated projections of revenuesCorporation, expenses and balance sheet on a quarter-by-quarter basis, with such operating budget and projections in reasonable detail prepared by Borrower and in form reasonably satisfactory to the Administrative Agent (which shall include an income statement and a summary statement of all significant assumptions made cash flow for such fiscal year and a balance sheet as of the last day thereof, each prepared in preparing accordance with generally accepted accounting principles consistently applied, and accompanied by the report of such projections);independent certified public accountants as shall have been approved by the Board.
(gd) notice of If for any Change of Control;
(h) promptly after knowledge thereof period the Corporation shall have come to any subsidiary or subsidiaries whose accounts are consolidated with those of the attention of any Responsible Officer of any Loan PartyCorporation, written notice of (i) any threatened or pending litigation or governmental or arbitration proceeding or labor controversy against any Loan Party or any Subsidiary of a Loan Party or any of their Property which, if adversely determined, could reasonably be expected to have a Material Adverse Effect, (ii) the occurrence of any Material Adverse Effect, (iii) the occurrence of any Default or (iv) any change in the information provided in the Beneficial Ownership Certification that would result in a change to the list of beneficial owners identified in of such certification;
(i) on the Closing Date and with each of then the financial statements delivered for such period pursuant to subsections paragraphs (a) ), (other than the last Fiscal Quarter of each Fiscal Yearb) and (bc) above, a compliance certificate (“Compliance Certificate”) in of this Section 2.7 shall be the form attached hereto as Exhibit F signed by a Financial Officer consolidated and consolidating financial statements of the Borrower Corporation for all such consolidated subsidiaries.
(e) Promptly upon becoming available: (i) copies of all financial statements, reports, press releases, notices, proxy statements and other documents sent by the Corporation to its Stockholders or released to the effect that to the best public and copies of such officer’s knowledge all regular and belief no Default has occurred during the period covered by such statements or, if any such Default has occurred during such period, setting forth a description of such Default and specifying the actionperiodic reports, if any, taken filed by the relevant Loan Party Corporation with the Commission or its Subsidiary to remedy the same. Such certificate shall also set forth the calculations supporting such statements in respect of Section 8.22 (Financial Covenants)any securities exchange or self-regulatory organization; and
(j) on the Closing Date and with each of the financial statements delivered pursuant to subsections (a) (other than the last Fiscal Quarter of each Fiscal Year) and (b) above, a Borrowing Base Certificate showing the computation of the Borrowing Base Value, in reasonable detail as of the close of business on the last day of such Fiscal Quarter or Fiscal Year, as applicable, prepared by the Borrower and certified to by its chief financial officer or another officer of the Borrower reasonably acceptable to the Administrative Agent; and
(k) within a reasonable period of time following any such request therefor, from time to time, (i) such other information regarding the operations, business affairs and financial condition of any Loan Party or any Subsidiary of a Loan Party, or compliance with the terms of any Loan Document, as the Administrative Agent or any Lender may reasonably request or (ii) information and documentation reasonably requested by the Administrative Agent or any Lender for purposes of compliance with applicable “know your customer” requirements under the Patriot Act or other applicable Anti-Corruption Laws and the Beneficial Ownership Regulation. Notwithstanding the foregoing, the filing of the Borrower’s financial statements with the U.S. Securities and Exchange Commission on Form 10-K or Form 10-Q shall satisfy the requirements of Section 8.5(a)(i) and (b), respectively.
Appears in 1 contract
Sources: Stockholders Agreement
Financial Reports. The Loan Parties shall, Borrowers shall maintain a standard and shall cause each modern system of their Subsidiaries to, maintain proper books of records and accounts reasonably necessary to prepare financial statements required to be delivered pursuant to this Section 8.5 accounting in accordance with GAAP and shall will furnish to the Administrative Agent Lender and each its duly authorized representatives such information respecting its respective business and financial condition as the Lender may reasonably request; and without any request, will furnish to the Lender:
(a) monthly, within 15 days of the last day of the preceding month, a Borrowing Base Certificate in the form attached hereto as Exhibit C showing the computation of the Borrowing Base in reasonable detail as of the close of business on the last day of the preceding month, prepared by Cycle Country Iowa and certified to by the Chief Financial Officer of Cycle Country Iowa;
(b) as soon as available quarterly, and in any event within 45 days after the close of each fiscal quarter, a copy of the statement of financial condition as of the last day of such fiscal quarter and the statements of income of the Borrowers all in reasonable detail for such period then ended, prepared by the Borrowers on a consolidated and consolidating basis in accordance with GAAP, certified to by the Chief Financial Officer of the Borrowers, and reviewed by the Borrowers's independent public accountants;
(c) as soon as available, and in any event no later than sixty (60) within 120 days after the last day close of each Fiscal Quarter of each Fiscal Year fiscal year of the Borrower, a copy of (i) the company-prepared consolidated balance sheets of Borrower and its Subsidiaries as of the last day of such Fiscal Quarter and the consolidated statements of operations, changes in equity (deficit) and cash flows of Borrower for the Fiscal Quarter and for the Fiscal Year-to-date period then ended, in reasonable detail and, if available, showing in comparative form the figures for the corresponding date and period in the previous Fiscal Year, prepared by the applicable party in accordance with GAAP (subject to the absence of footnote disclosures and year-end audit adjustments) and certified to by a Financial Officer of Borrower and (ii) operating statements, rent roll and accounts receivable aging for each Borrowing Base Property;
(b) as soon as available, and in any event no later than one hundred twenty (120) days after the last day of each Fiscal Year of the BorrowerBorrowers, a copy of the consolidated balance sheets audited statement of Borrower and its Subsidiaries financial condition of the Borrowers as of the last day close of the Fiscal Year then ended such fiscal year and the consolidated statements of statements of operationsincome, comprehensive loss, shareholders’ equity (deficit) retained earnings and cash flows of Borrower the Borrowers for such period then ended prepared on a consolidated and its Subsidiaries for the Fiscal Year then endedconsolidating basis , and accompanying notes thereto, each all in reasonable detail and, if available, showing in comparative form the figures for the previous Fiscal Yearfiscal year, accompanied in the case of the consolidated financial statements by an unqualified opinion thereon of BDO USA, P.C., or another a firm of independent public accountants of recognized national standingaccountants, selected by ▇▇▇▇▇▇▇▇ the Borrowers and reasonably satisfactory to the Administrative Agent;
(c) [reserved]Lender, to the effect that the financial statements have been prepared in accordance with GAAP and present fairly in accordance with GAAP the financial condition of the Borrowers as of the close of such fiscal year and the results of operations and cash flows for the fiscal year then ended and that an examination of such accounts in connection with such financial statements has been made in accordance with generally accepted auditing standards and, accordingly, such examination included such tests of the accounting records and such other auditing procedures as were considered necessary in the circumstances;
(d) promptly after the sending or filing thereof, copies of each financial statement, report, notice or proxy statement sent by any Loan Party or any Subsidiary of a Loan Party to its stockholders or other equity holders, and copies of each regular, periodic or special report, registration statement or prospectus filed by any Loan Party or any Subsidiary of a Loan Party with any securities exchange;
(e) [reserved];
(f) within ninety (90) days after the end of each Fiscal Year of the Borrower, a copy of the Borrower’s operating budget and projections for the following year including consolidated projections of revenues, expenses and balance sheet on a quarter-by-quarter basis, with such operating budget and projections in reasonable detail prepared by Borrower and in form reasonably satisfactory to the Administrative Agent (which shall include a summary of all significant assumptions made in preparing such projections);
(g) notice of any Change of Control;
(h) promptly after knowledge thereof shall have come to the attention of any Responsible Officer responsible officer of any Loan Partyeither of the Borrowers, (i) written notice of (i) any threatened or pending litigation or governmental or arbitration proceeding or labor controversy against any Loan Party or any Subsidiary either of a Loan Party or any of their Property the Borrowers which, if adversely determined, could reasonably be expected to have a Material Adverse Effectwould materially adversely effect the financial condition, Properties, business or operations of either of the Borrowers or (ii) the occurrence of any Material Adverse Effect, (iii) the occurrence of any Default or (iv) any change in the information provided in the Beneficial Ownership Certification that would result in a change to the list Event of beneficial owners identified in of such certificationDefault hereunder;
(ie) on within 45 days after the Closing Date and with each of the financial statements delivered pursuant to subsections (a) (other than the last Fiscal Quarter end of each Fiscal Year) and (b) abovefiscal quarter, a compliance certificate (“Compliance Certificate”) Certificate in the form attached hereto as Exhibit F signed D stating the Borrowers' compliance or non-compliance with each of the financial covenants set forth in this Agreement, accompanied by the appropriate calculations;
(f) promptly after receipt thereof, any written reports, management letters or other detailed information contained in writing concerning significant aspects of the Borrowers' operations and financial affairs given to it by its independent public accountants; and
(g) as soon as available and in any event within sixty (60) days prior to the end of each fiscal year of the Borrowers, a copy of the Borrowers's business plan and budget for the following year, such business plan and budget to show the Borrowers's projected revenues, expenses and balance sheet on a month by month basis, and such business plan and budget to be in reasonable detail prepared by the Borrowers and in a form satisfactory to the Lender.
(h) monthly, accompanying each Borrowing Base Certificate, an aging of accounts receivable report in reasonable detail as of the close of business on the last day of such month, prepared by Cycle Country Iowa and certified to by the Chief Financial Officer of the Borrower Borrowers in form satisfactory to the Lender.
(i) with reasonable promptness, such other data and information relating to business, operations, affairs, financial condition, assets or properties of the Borrowers or relating to the ability of the Borrowers to perform their obligations hereunder, under the Notes or the Security Documents as from time to time may be reasonably requested by the Lender. Each of the financial statements furnished to the Lender pursuant to clauses (a) and (b) of this Section shall be accompanied by (i) a written certificate signed by the Chief Financial Officer of the Borrowers to the effect that to the best of such the chief financial officer’s 's knowledge and belief no Default or Event of Default has occurred during the period covered by such statements or, if any such Default or Event of Default has occurred during such period, setting forth a description of such Default or Event of Default and specifying the action, if any, taken by the relevant Loan Party or its Subsidiary Borrowers to remedy the same, and (ii) a certificate of the accountants stating that, in making the audit necessary to the certification of such financial statements, they have obtained no knowledge of any Event of Default or Default or, if any such Event of Default or Default exists, specifying the nature and period of existence thereof. Such certificate shall also set forth the calculations supporting such statements in respect of Section 8.22 (Financial Covenants); and
(j) on the Closing Date and with each of the financial statements delivered pursuant to subsections (a) (other than the last Fiscal Quarter of each Fiscal Year) and (b) above, a Borrowing Base Certificate showing the computation of the Borrowing Base Value, in reasonable detail as of the close of business on the last day of such Fiscal Quarter or Fiscal Year, as applicable, prepared by the Borrower and certified to by its chief financial officer or another officer of the Borrower reasonably acceptable to the Administrative Agent; and
(k) within a reasonable period of time following any such request therefor, from time to time, (i) such other information regarding the operations, business affairs and financial condition of any Loan Party or any Subsidiary of a Loan Party, or compliance with the terms of any Loan Document, as the Administrative Agent or any Lender may reasonably request or (ii) information and documentation reasonably requested by the Administrative Agent or any Lender for purposes of compliance with applicable “know your customer” requirements under the Patriot Act or other applicable Anti-Corruption Laws and the Beneficial Ownership Regulation. Notwithstanding the foregoing, the filing of the Borrower’s financial statements with the U.S. Securities and Exchange Commission on Form 10-K or Form 10-Q shall satisfy the requirements of Section 8.5(a)(i) and (b), respectivelystatements.
Appears in 1 contract
Sources: Secured Credit Agreement (Cycle Country Accessories Corp)
Financial Reports. The Loan Parties Borrower shall, and shall cause each of their Subsidiaries Subsidiary to, maintain proper books a standard system of records and accounts reasonably necessary to prepare financial statements required to be delivered pursuant to this Section 8.5 accounting in accordance with GAAP and shall furnish to the Administrative Agent Agent, and each LenderLender such information respecting the business and financial condition of the Borrower and each Subsidiary as the Administrative Agent or such Lender may reasonably request; and without any request, shall furnish to the Administrative Agent, and the Lenders:
(a) as soon as available, and in any event no later than sixty forty-five (6045) days after the last day of each Fiscal Quarter fiscal quarter of each Fiscal Year fiscal year of the Borrower, a copy of (i) the company-prepared consolidated and consolidating balance sheets sheet of the Borrower and its Subsidiaries as of the last day of such Fiscal Quarter fiscal quarter and the consolidated and consolidating statements of operationsincome, changes in equity (deficit) retained earnings, and cash flows of the Borrower and its Subsidiaries for the Fiscal Quarter fiscal quarter and for the Fiscal Yearfiscal year-to-date period then ended, each in reasonable detail and, if available, showing in comparative form the figures for the corresponding date and period in the previous Fiscal Yearfiscal year, prepared by the applicable party Borrower in accordance with GAAP (subject to the absence of footnote disclosures and year-end audit adjustments) and certified to by a Financial Officer its chief financial officer or another officer of the Borrower and (ii) operating statements, rent roll and accounts receivable aging for each Borrowing Base Propertyacceptable to the Administrative Agent;
(b) as soon as available, and in any event no later than one hundred twenty ninety (12090) days after the last day of each Fiscal Year fiscal year of the Borrower, a copy of the consolidated and consolidating balance sheets sheet of the Borrower and its Subsidiaries as of the last day of the Fiscal Year fiscal year then ended and the consolidated and consolidating statements of statements of operationsincome, comprehensive lossretained earnings, shareholders’ equity (deficit) and cash flows of the Borrower and its Subsidiaries for the Fiscal Year fiscal year then ended, and accompanying notes thereto, each in reasonable detail and, if available, showing in comparative form the figures for the previous Fiscal Yearfiscal year, accompanied in the case of the consolidated financial statements by an unqualified opinion of BDO USA, P.C., KPMG LLP or another firm of independent public accountants of recognized national standing, selected by ▇▇▇▇▇▇▇▇ the Borrower and reasonably satisfactory to the Administrative AgentAgent and the Required Lenders, to the effect that the consolidated financial statements have been prepared in accordance with GAAP and present fairly in accordance with GAAP the consolidated financial condition of the Borrower and its Subsidiaries as of the close of such fiscal year and the results of their operations and cash flows for the fiscal year then ended and that an examination of such accounts in connection with such financial statements has been made in accordance with generally accepted auditing standards and, accordingly, such examination included such tests of the accounting records and such other auditing procedures as were considered necessary in the circumstances;
(c) [reserved]within the period provided in subsection (b) above, the written statement of the accountants who certified the audit report thereby required that in the course of their audit they have obtained no knowledge of any Default or Event of Default, or, if such accountants have obtained knowledge of any such Default or Event of Default, they shall disclose in such statement the nature and period of the existence thereof;
(d) promptly after receipt thereof, any additional written reports, management letters or other detailed information contained in writing concerning significant aspects of the Borrower’s or any Subsidiary’s operations and financial affairs given to it by its independent public accountants;
(e) promptly after the sending or filing thereof, copies of each financial statement, report, notice or proxy statement sent by any Loan Party the Borrower or any Subsidiary of a Loan Party to its stockholders or other equity holders, and copies of each regular, periodic or special report, registration statement or prospectus (including all Form 10-K, Form 10-Q and Form 8-K reports) filed by any Loan Party the Borrower or any Subsidiary of a Loan Party with any securities exchange;
(e) [reserved]exchange or the Securities and Exchange Commission or any successor agency;
(f) within ninety promptly after receipt thereof, a copy of each audit made by any regulatory agency of the books and records of the Borrower or any Subsidiary or of notice of any material noncompliance with any applicable law, regulation or guideline relating to the Borrower or any Subsidiary, or its business;
(90g) as soon as available, and in any event no later than forty-five (45) days after the end beginning of each Fiscal Year fiscal year of the Borrower, a copy of the Borrower’s operating budget consolidated and projections consolidating business plan for such fiscal year, such business plan to show the following year including Borrower’s projected consolidated projections of and consolidating revenues, expenses and balance sheet on a quarter-by-quarter basis, with such operating budget and projections business plan to be in reasonable detail prepared by the Borrower and in form reasonably satisfactory to the Administrative Agent and the Required Lenders (which shall include a summary of all significant assumptions made in preparing such projectionsbusiness plan);
(gh) notice of any Change of Control;
(hi) promptly after knowledge thereof shall have come to the attention of any Responsible Officer responsible officer of any Loan Partythe Borrower, written notice of (i) any threatened or pending litigation or governmental or arbitration proceeding or labor controversy against any Loan Party the Borrower or any Subsidiary of a Loan Party or any of their Property which, if adversely determined, could reasonably be expected to have a Material Adverse Effect, Effect or (ii) the occurrence of any Material Adverse Effect, (iii) the occurrence of any Default or (iv) any change in the information provided in the Beneficial Ownership Certification that would result in a change to the list Event of beneficial owners identified in of such certification;Default hereunder; and
(ij) on the Closing Date and with each of the financial statements delivered pursuant to subsections (a) (other than the last Fiscal Quarter of each Fiscal Year) and (b) above, a compliance written certificate (“Compliance Certificate”) in the form attached hereto as Exhibit F E signed by a Financial Officer the chief financial officer of the Borrower or another officer of the Borrower acceptable to the Administrative Agent to the effect that to the best of such officer’s knowledge and belief no Default or Event of Default has occurred during the period covered by such statements or, if any such Default or Event of Default has occurred during such period, setting forth a description of such Default or Event of Default and specifying the action, if any, taken by the relevant Loan Party Borrower or its any Subsidiary to remedy the same. Such certificate shall also set forth the calculations supporting such statements in respect of Section 8.22 (Financial Covenants); and
(j) on the Closing Date and with each of the financial statements delivered pursuant to subsections (a) (other than the last Fiscal Quarter of each Fiscal Year) and (b) above, a Borrowing Base Certificate showing the computation of the Borrowing Base Value, in reasonable detail as of the close of business on the last day of such Fiscal Quarter or Fiscal Year, as applicable, prepared by the Borrower and certified to by its chief financial officer or another officer of the Borrower reasonably acceptable to the Administrative Agent; and
(k) within a reasonable period of time following any such request therefor, from time to time, (i) such other information regarding the operations, business affairs and financial condition of any Loan Party or any Subsidiary of a Loan Party, or compliance with the terms of any Loan Document, as the Administrative Agent or any Lender may reasonably request or (ii) information and documentation reasonably requested by the Administrative Agent or any Lender for purposes of compliance with applicable “know your customer” requirements under the Patriot Act or other applicable Anti-Corruption Laws and the Beneficial Ownership Regulation. Notwithstanding the foregoing, the filing of the Borrower’s financial statements with the U.S. Securities and Exchange Commission on Form 10-K or Form 10-Q shall satisfy the requirements of Section 8.5(a)(i) and (b), respectivelyhereof.
Appears in 1 contract
Financial Reports. The Loan Parties shall, and shall cause each of their Subsidiaries to, maintain proper books of records and accounts reasonably necessary to prepare financial statements required to be delivered pursuant to this Section 8.5 in accordance with GAAP and shall furnish to the Administrative Agent and each Lender:
(a) as soon as available, and in any event no later than sixty (60) 45 days after the last day of each Fiscal Quarter March, June and September of each Fiscal Year of the Borrowerfiscal year, a copy of (i) the company-prepared consolidated balance sheets sheet of the Borrower and its Subsidiaries as of the last day of such Fiscal Quarter fiscal quarter and the consolidated statements of operationsincome, changes in equity (deficit) retained earnings, and cash flows of the Borrower and its Subsidiaries for the Fiscal Quarter fiscal quarter and for the Fiscal Yearfiscal year-to-date period then ended, each in reasonable detail and, if available, showing in comparative form the figures for the corresponding date and period in the previous Fiscal Yearfiscal year, prepared by the applicable party Borrower in accordance with GAAP (subject to the absence of footnote disclosures and year-end audit adjustments) and certified to by a Financial Officer of Borrower and (ii) operating statements, rent roll and accounts receivable aging for each Borrowing Base Propertythe Borrower;
(b) as soon as available, and in any event no later than one hundred twenty (120) 90 days after the last day of each Fiscal Year fiscal year of the Borrower, a copy of the consolidated and consolidating balance sheets sheet of the Borrower and its Subsidiaries as of the last day of the Fiscal Year fiscal year then ended and the consolidated and consolidating statements of statements of operationsincome, comprehensive lossretained earnings, shareholders’ equity (deficit) and cash flows of the Borrower and its Subsidiaries for the Fiscal Year fiscal year then ended, and accompanying notes thereto, each in reasonable detail and, if available, showing in comparative form the figures for the previous Fiscal Yearfiscal year, accompanied in the case of the consolidated financial statements by an unqualified opinion (without any qualification or exception which is of BDO USA, P.C., a “going concern” or similar nature as to a limitation on the scope of audit) of KPMG LLP or another firm of independent public accountants of recognized national standing, selected by ▇▇▇▇▇▇▇▇ and reasonably satisfactory the Borrower, to the Administrative Agenteffect that the consolidated financial statements have been prepared in accordance with GAAP and present fairly in all material respects in accordance with GAAP the consolidated financial condition of the Borrower and its Subsidiaries as of the close of such fiscal year and the results of their operations and cash flows for the fiscal year then ended and that an examination of such accounts in connection with such financial statements has been made in accordance with generally accepted auditing standards and, accordingly, such examination included such tests of the accounting records and such other auditing procedures as were considered necessary in the circumstances;
(c) [reserved]promptly after receipt thereof, any additional written reports that detail any material weakness in the Borrower’s internal controls given to it by its independent public accountants;
(d) promptly after the sending or filing thereof, copies of each financial statement, report, notice or proxy statement sent by any Loan Party or any Subsidiary of a Loan Party to its stockholders or other equity holders, and copies of each regular, periodic or special report, registration statement or prospectus (including all Form 10-K, Form 10-Q and Form 8-K reports) filed by any Loan Party or any Subsidiary of a Loan Party with any securities exchangeexchange or the Securities and Exchange Commission or any successor agency;
(e) [reserved]promptly after receipt thereof, a copy of each notice received from any regulatory agency of competent jurisdiction of any material noncompliance with any applicable law or regulation relating to a Loan Party or any Subsidiary of a Loan Party or their respective businesses;
(f) within ninety (90) as soon as available, and in any event no later than 60 days after the end of each Fiscal Year fiscal year of the Borrower, a copy of the Borrower’s consolidated operating budget and projections plan for the following year including consolidated projections Borrower and its Subsidiaries for the then current fiscal year, such operating plan to show the projected revenues and expenses of revenues, expenses the Borrower and balance sheet its Subsidiaries on a quarter-by-quarter basis, with such operating budget and projections plan to be in reasonable detail prepared by the Borrower and in form reasonably satisfactory to the Administrative Agent (which shall include a summary of all significant assumptions made in preparing such projectionsoperating plan);
(g) notice of any Change of Control;
(h) promptly after knowledge thereof shall have come to the attention of any Responsible Officer of any Loan Party, written notice of (i) any threatened or pending litigation or governmental or arbitration proceeding or labor controversy against any Loan Party or any Subsidiary of a Loan Party or any of their Property which, if adversely determined, could reasonably be expected to have a Material Adverse Effect, (ii) the occurrence of any Material Adverse Effect, (iii) the occurrence of any Default or (iv) any change in the information provided in the Beneficial Ownership Certification that would result in a change to the list of beneficial owners identified in of such certification;
(i) on the Closing Date and with each of the financial statements delivered pursuant to subsections (a) (other than the last Fiscal Quarter of each Fiscal Year) and (b) above, a compliance certificate (“Compliance Certificate”) in the form attached hereto as Exhibit F signed by a Financial Officer of the Borrower to the effect that to the best of such officer’s knowledge and belief no Default has occurred during the period covered by such statements or, if any such Default has occurred during such period, setting forth a description of such Default and specifying the action, if any, taken by the relevant Loan Party or its Subsidiary to remedy the same. Such certificate shall also set forth the calculations supporting such statements in respect of Section 8.22 (Financial Covenants); and
(j) on the Closing Date and with each of the financial statements delivered pursuant to subsections (a) (other than the last Fiscal Quarter of each Fiscal Year) and (b) above, a Borrowing Base Certificate showing the computation of the Borrowing Base Value, in reasonable detail as of the close of business on the last day of such Fiscal Quarter or Fiscal Year, as applicable, prepared by the Borrower and certified to by its chief financial officer or another officer of the Borrower reasonably acceptable to the Administrative Agent; and
(k) within a reasonable period of time following any such request therefor, from time to time, (i) such other information regarding the operations, business affairs and financial condition of any Loan Party or any Subsidiary of a Loan Party, or compliance with the terms of any Loan Document, as the Administrative Agent or any Lender may reasonably request or (ii) information and documentation reasonably requested by the Administrative Agent or any Lender for purposes of compliance with applicable “know your customer” requirements under the Patriot Act or other applicable Anti-Corruption Laws and the Beneficial Ownership Regulation. Notwithstanding the foregoing, the filing of the Borrower’s financial statements with the U.S. Securities and Exchange Commission on Form 10-K or Form 10-Q shall satisfy the requirements of Section 8.5(a)(i) and (b), respectively.
Appears in 1 contract
Sources: Credit Agreement (Envestnet, Inc.)
Financial Reports. The Loan Parties Borrower shall, and shall cause ARCAF REIT and each of their Subsidiaries Subsidiary to, maintain proper books a standard system of records and accounts reasonably necessary to prepare financial statements required to be delivered pursuant to this Section 8.5 accounting in accordance with GAAP and shall furnish to the Administrative Agent Agent, each Lender, the L/C Issuer and each Lenderof their duly authorized representatives such information respecting the business and financial condition of ARCAF REIT, the Borrower and each Subsidiary as the Administrative Agent or such Lender may reasonably request; and without any request, shall furnish to the Administrative Agent for distribution to the Lenders and L/C Issuer:
(a) as soon as available, and in any event no later than sixty ninety (6090) days after the last day of each Fiscal Quarter of each Fiscal Year of the Borrower, a copy of (i) the company-prepared audited consolidated balance sheets sheet of ARCAF REIT and its Subsidiaries as of the last day of the Fiscal Year then ended and the consolidated statements of income, retained earnings, and cash flows of ARCAF REIT and its Subsidiaries for the Fiscal Year then ended, and accompanying notes thereto, each in reasonable detail showing in comparative form the figures for the previous Fiscal Year, accompanied by an unqualified opinion of G▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP or any other independent public accountants of recognized national standing, selected by the Borrower and Agent (if not G▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP or any of the “Big Four”) reasonably satisfactory to the Administrative, to the effect that the consolidated financial statements have been prepared in accordance with GAAP and present fairly in all material respects in accordance with GAAP the consolidated financial condition of ARCAF REIT and its Subsidiaries as of the close of such Fiscal Year and the results of their operations and cash flows for the Fiscal Year then ended and that an examination of such accounts in connection with such financial statements has been made in accordance with generally accepted auditing standards;
(b) within the period provided in subsection (a) above, the written statement of the accountants who certified the audit report thereby required that in the course of their audit they have obtained no knowledge of any Default or Event of Default, or, if such accountants have obtained knowledge of any such Default or Event of Default, they shall disclose in such statement the nature and period of the existence thereof; provided, however, that such statement shall not be required if the Borrower is not able to obtain such statement using commercially reasonable efforts;
(c) as soon as available, and in any event no later than forty-five (45) days after the last day of each of the first three Fiscal Quarters of each Fiscal Year of the Borrower (commencing with the Fiscal Quarter ending on September 30, 2014March 31, 2017), a copy of the consolidated balance sheet of ARCAF REIT, the Borrower and its Subsidiaries as of the last day of such Fiscal Quarter and the consolidated statements of operationsincome, changes in equity (deficit) retained earnings, and cash flows of Borrower ARCAF REIT and its Subsidiaries for the Fiscal Quarter and for the Fiscal Year-to-date period then ended, each in reasonable detail andshowing, if available, showing in comparative form form, the figures for the corresponding date and period in the previous Fiscal Year, prepared by the applicable party Borrower in accordance with GAAP (subject to the absence of footnote disclosures and year-end audit adjustments) and certified to by a Financial Officer its chief financial officer or another officer of the Borrower and (ii) operating statements, rent roll and accounts receivable aging for each Borrowing Base Propertyreasonably acceptable to the Administrative Agent;
(bd) as soon as available, and in any event no later than one hundred twenty within (120i) forty-five (45) days after the last day of each of the first three Fiscal Quarters of each Fiscal Year of (commencing with the BorrowerFiscal Quarter ending on September 30, a copy of the consolidated balance sheets of Borrower 2014March 31, 2017) and its Subsidiaries as of (ii) ninety (90) days after the last day of the last Fiscal Year then ended and Quarter of each Fiscal Year, an Available Amount Certificate showing the consolidated statements computation of statements of operations, comprehensive loss, shareholders’ equity (deficit) and cash flows of Borrower and its Subsidiaries for the Fiscal Year then ended, and accompanying notes thereto, each Available Amount in reasonable detail and, if available, showing in comparative form the figures for the previous Fiscal Year, accompanied in the case as of the consolidated close of business on the last day of such Fiscal Quarter, prepared by the Borrower and certified to by its chief financial statements by an unqualified opinion of BDO USA, P.C., officer or another firm officer of independent public accountants of recognized national standing, selected by ▇▇▇▇▇▇▇▇ and the Borrower reasonably satisfactory acceptable to the Administrative Agent;
(e) with each of the financial statements delivered pursuant to subsections (a) and (c) [reserved]above, a compliance certificate (“Compliance Certificate”) in the form attached hereto as Exhibit E signed by the chief executive officer, chief financial officer, treasurer or controller of the Borrower or another officer of the Borrower reasonably acceptable to the Administrative Agent to the effect that to such officer’s knowledge and belief no Default or Event of Default has occurred during the period covered by such statements or, if any such Default or Event of Default has occurred during such period, setting forth a description of such Default or Event of Default and specifying the action, if any, taken or being taken by ARCAF REIT, the Borrower or any Subsidiary to remedy the same. Such certificate shall also set forth the calculations supporting such statements in respect of Section 8.20 hereof;
(df) promptly after request by the Administrative Agent, any additional written reports, management letters or other detailed information contained in writing concerning significant aspects of ARCAF REIT’s, the Borrower’s or any Subsidiary’s operations and financial affairs given to it by its independent public accountants and submitted to the board of directors (or similar governing body) of the Borrower;
(g) promptly after the sending or filing thereof, copies of each financial statement, report, notice or proxy statement sent by any Loan Party ARCAF REIT or any Subsidiary of a Loan Party to its stockholders or other equity holders;
(h) promptly after receipt thereof, and copies if any, a copy of each regular, periodic or special report, registration statement or prospectus filed audit made by any Loan Party regulatory agency of the books and records of ARCAF REIT, the Borrower or any Subsidiary or of a Loan Party notice of any material noncompliance with any securities exchangeapplicable Legal Requirements relating to ARCAF REIT, the Borrower or any Subsidiary, or its business;
(ei) [reserved];
as soon as available, and in any event within sixty (f) within ninety (9060) days after the end of each Fiscal Year of the Borrower, a copy of the Borrower’s operating budget and projections for the following year including consolidated projections of revenues, expenses and balance sheet on a quarter-by-quarter basis, with such operating budget and projections in reasonable detail prepared by the Borrower and in form reasonably satisfactory to the Administrative Agent (which shall include a summary of all significant assumptions made in preparing such projections);
(g) notice of any Change of Control;
(h) promptly after knowledge thereof shall have come to the attention of any Responsible Officer of any Loan Party, written notice of (i) any threatened or pending litigation or governmental or arbitration proceeding or labor controversy against any Loan Party or any Subsidiary of a Loan Party or any of their Property which, if adversely determined, could reasonably be expected to have a Material Adverse Effect, (ii) the occurrence of any Material Adverse Effect, (iii) the occurrence of any Default or (iv) any change in the information provided in the Beneficial Ownership Certification that would result in a change to the list of beneficial owners identified in of such certification;
(i) on the Closing Date and with each of the financial statements delivered pursuant to subsections (a) (other than the last Fiscal Quarter of each Fiscal Year) and (b) above, a compliance certificate (“Compliance Certificate”) in the form attached hereto as Exhibit F signed by a Financial Officer of the Borrower to the effect that to the best of such officer’s knowledge and belief no Default has occurred during the period covered by such statements or, if any such Default has occurred during such period, setting forth a description of such Default and specifying the action, if any, taken by the relevant Loan Party or its Subsidiary to remedy the same. Such certificate shall also set forth the calculations supporting such statements in respect of Section 8.22 (Financial Covenants); and
(j) on the Closing Date and with each of the financial statements delivered pursuant to subsections (a) (other than the last Fiscal Quarter of each Fiscal Year) and (b) above, a Borrowing Base Certificate showing the computation of the Borrowing Base Value, in reasonable detail as of the close of business on the last day of such Fiscal Quarter or Fiscal Year, as applicable, prepared by the Borrower and certified to by its chief financial officer or another officer of the Borrower reasonably acceptable to the Administrative Agent; and
(k) within a reasonable period of time following any such request therefor, from time to time, (i) such other information regarding the operations, business affairs and financial condition of any Loan Party or any Subsidiary of a Loan Party, or compliance with the terms of any Loan Document, as the Administrative Agent or any Lender may reasonably request or (ii) information and documentation reasonably requested by the Administrative Agent or any Lender for purposes of compliance with applicable “know your customer” requirements under the Patriot Act or other applicable Anti-Corruption Laws and the Beneficial Ownership Regulation. Notwithstanding the foregoing, the filing of the Borrower’s financial statements with the U.S. Securities and Exchange Commission on Form 10-K or Form 10-Q shall satisfy the requirements of Section 8.5(a)(i) and (b), respectively.
Appears in 1 contract
Financial Reports. The Loan Parties Borrower shall, and shall cause each of their Subsidiaries Subsidiary to, maintain proper books a standard system of records and accounts reasonably necessary to prepare financial statements required to be delivered pursuant to this Section 8.5 accounting in accordance with GAAP and shall furnish to the Administrative Agent, each Lender and each of their duly authorized representatives such information respecting the business and financial condition of the Borrower and each Subsidiary as the Administrative Agent or such Lender may reasonably request; and without any request, shall furnish to the Administrative Agent and each Lenderthe Lenders:
(a) as soon as available, and in any event no later than within sixty (60) days after the last day close of each Fiscal Quarter fiscal quarter of each Fiscal Year fiscal year of the Borrower, a copy of (i) the company-prepared consolidated and consolidating balance sheets sheet of the Borrower and its Subsidiaries as of the last day of such Fiscal Quarter fiscal quarter and the consolidated and consolidating statements of operationsincome, changes in equity (deficit) retained earnings, and cash flows of the Borrower and its Subsidiaries for the Fiscal Quarter fiscal quarter and for the Fiscal Yearfiscal year-to-date period then ended, each in reasonable detail and, if available, showing in comparative form the figures for the corresponding date and period in the previous Fiscal Yearfiscal year, prepared by the applicable party Borrower in accordance with GAAP (subject to the absence of footnote disclosures and year-end audit adjustments) and certified to by a Financial Officer its chief financial officer or another officer of the Borrower and (ii) operating statements, rent roll and accounts receivable aging for each Borrowing Base Propertyacceptable to the Administrative Agent;
(b) as soon as available, and in any event no later than within one hundred twenty (120) days after the last day close of each Fiscal Year fiscal year of the Borrower, a copy of the consolidated and consolidating balance sheets sheet of the Borrower and its Subsidiaries as of the last day of the Fiscal Year fiscal year then ended and the consolidated and consolidating statements of statements of operationsincome, comprehensive lossretained earnings, shareholders’ equity (deficit) and cash flows of the Borrower and its Subsidiaries for the Fiscal Year fiscal year then ended, and accompanying notes thereto, each in reasonable detail and, if available, showing in comparative form the figures for the previous Fiscal Yearfiscal year, accompanied in the case of the consolidated financial statements by an unqualified opinion of BDO USA, P.C., KPMG LLP or another firm of independent public accountants of recognized national standing, selected by ▇▇▇▇▇▇▇▇ the Borrower and reasonably satisfactory to the Administrative AgentAgent and the Required Lenders, to the effect that the consolidated financial statements have been prepared in accordance with GAAP and present fairly in accordance with GAAP the consolidated financial condition of the Borrower and its Subsidiaries as of the close of such fiscal year and the results of their operations and cash flows for the fiscal year then ended and that an examination of such accounts in connection with such financial statements has been made in accordance with generally accepted auditing standards and, accordingly, such examination included such tests of the accounting records and such other auditing procedures as were considered necessary in the circumstances;
(c) [reserved]within the period provided in subsection (b) above, the written statement of the accountants who certified the audit report thereby required that in the course of their audit they have obtained no knowledge of any Default or Event of Default, or, if such accountants have obtained knowledge of any such Default or Event of Default, they shall disclose in such statement the nature and period of the existence thereof;
(d) Within the period provided in paragraph (b) above, financial statements of the character and for the dates and periods as in said paragraph (b) covering each Unrestricted Subsidiary (or groups of Unrestricted Subsidiaries on a consolidated basis).
(e) promptly after receipt thereof, any additional written reports, management letters or other detailed information contained in writing concerning significant aspects of the Borrower's or any Subsidiary's operations and financial affairs given to it by its independent public accountants;
(f) promptly after the sending or filing thereof, copies of each financial statement, report, notice or proxy statement sent by any Loan Party the Borrower or any Subsidiary of a Loan Party to its stockholders or other equity holders, and copies of each regular, periodic or special report, registration statement or prospectus (including all Form 10-K, Form 10-Q and Form 8-K reports) filed by any Loan Party the Borrower or any Subsidiary of a Loan Party with any securities exchangeexchange or the Securities and Exchange Commission or any successor agency;
(eg) [reserved]promptly after receipt thereof, a copy of each audit made by any regulatory agency of the books and records of the Borrower or any Subsidiary or of notice of any material noncompliance with any applicable law, regulation or guideline relating to the Borrower or any Subsidiary, or its business;
(fh) within ninety (90) as soon as available, and in any event no later than 30 days after following the end first day of each Fiscal Year fiscal year of the Borrower, a copy of the Borrower’s operating budget 's consolidated and projections consolidating business plan for such fiscal year, such business plan to show the following year including Borrower's projected consolidated projections of and consolidating revenues, expenses and balance sheet on a quarter-by-quarter basis, with such operating budget and projections business plan to be in reasonable detail prepared by the Borrower and in form reasonably satisfactory to the Administrative Agent and the Required Lenders (which shall include a summary of all significant assumptions made in preparing such projectionsbusiness plan);
(gi) notice of any Change of Control;
(hj) promptly after knowledge thereof shall have come to the attention of any Responsible Officer responsible officer of any Loan Partythe Borrower, written notice of (i) any threatened or pending litigation or governmental or arbitration proceeding or labor controversy against any Loan Party the Borrower or any Subsidiary of a Loan Party or any of their Property which, if adversely determined, could reasonably be expected to have a Material Adverse Effect, (ii) the occurrence Effect or of any Material Adverse Effect, (iii) the occurrence of any Default or (iv) any change in the information provided in the Beneficial Ownership Certification that would result in a change to the list Event of beneficial owners identified in of such certification;Default hereunder; and
(ik) on the Closing Date and with each of the financial statements delivered furnished to the Lenders pursuant to subsections (a) (other than the last Fiscal Quarter of each Fiscal Year) and (b) above, a compliance written certificate (“Compliance Certificate”) in the form attached hereto as Exhibit F signed by a Financial Officer the chief financial officer of the Borrower or another officer of the Borrower acceptable to the Administrative Agent to the effect that to the best of such officer’s 's knowledge and belief no Default or Event of Default has occurred during the period covered by such statements or, if any such Default or Event of Default has occurred during such period, setting forth a description of such Default or Event of Default and specifying the action, if any, taken by the relevant Loan Party Borrower or its any Subsidiary to remedy the same. Such certificate shall also set forth the calculations supporting such statements in respect of Section 8.22 (Financial Covenants); and
(j) on the Closing Date and with each of the financial statements delivered pursuant to subsections (a) (other than the last Fiscal Quarter of each Fiscal Year) and (b) above, a Borrowing Base Certificate showing the computation of the Borrowing Base Value, in reasonable detail as of the close of business on the last day of such Fiscal Quarter or Fiscal Year, as applicable, prepared by the Borrower and certified to by its chief financial officer or another officer of the Borrower reasonably acceptable to the Administrative Agent; and
(k) within a reasonable period of time following any such request therefor, from time to time, (i) such other information regarding the operations, business affairs and financial condition of any Loan Party or any Subsidiary of a Loan Party, or compliance with the terms of any Loan Document, as the Administrative Agent or any Lender may reasonably request or (ii) information and documentation reasonably requested by the Administrative Agent or any Lender for purposes of compliance with applicable “know your customer” requirements under the Patriot Act or other applicable Anti-Corruption Laws and the Beneficial Ownership Regulation. Notwithstanding the foregoing, the filing of the Borrower’s financial statements with the U.S. Securities and Exchange Commission on Form 10-K or Form 10-Q shall satisfy the requirements of Section 8.5(a)(i) and (b), respectively8.21 hereof.
Appears in 1 contract
Financial Reports. The Loan Parties shall, and shall cause each of their Restricted Subsidiaries to, maintain proper books of records and accounts reasonably necessary to prepare financial statements required to be delivered pursuant to this Section 8.5 in accordance with GAAP and shall furnish to the Administrative Agent and each Lender, in each case in form and scope reasonably acceptable to the Administrative Agent and the Required Lenders:
(a) as soon as available, and in any event no later than sixty (60) 45 days after the last day of each Fiscal Quarter March, June and September of each Fiscal Year of the Borrowerfiscal year, a copy of (i) the company-prepared consolidated balance sheets sheet of the Borrower and its Subsidiaries as of the last day of such Fiscal Quarter fiscal quarter and the consolidated statements of operationsincome, changes in equity (deficit) retained earnings, and cash flows of the Borrower and its Subsidiaries for the Fiscal Quarter fiscal quarter and for the Fiscal Yearfiscal year-to-date period then ended, each in reasonable detail and, if available, showing in comparative form the figures for the corresponding date and period in the previous Fiscal Yearfiscal year, prepared by the applicable party Borrower in accordance with GAAP (subject to the absence of footnote disclosures and year-end audit adjustments) and certified to by a Financial Officer of Borrower and (ii) operating statements, rent roll and accounts receivable aging for each Borrowing Base Propertythe Borrower;
(b) as soon as available, and in any event no later than one hundred twenty (120) 90 days after the last day of each Fiscal Year fiscal year of the Borrower, a copy of the consolidated and consolidating balance sheets sheet of the Borrower and its Subsidiaries as of the last day of the Fiscal Year fiscal year then ended and the consolidated and consolidating statements of statements of operationsincome, comprehensive lossretained earnings, shareholders’ equity (deficit) and cash flows of the Borrower and its Subsidiaries for the Fiscal Year fiscal year then ended, and accompanying notes thereto, each in reasonable detail and, if available, showing in comparative form the figures for the previous Fiscal Yearfiscal year, accompanied in the case of the consolidated financial statements by an unqualified opinion (without any qualification or exception which is of BDO USAa “going concern” or similar nature as to a limitation on the scope of audit (other than such a qualification or exception that is (x) solely with respect to, P.C.or resulting solely from, the upcoming maturity date of any Indebtedness being scheduled to occur within twelve (12) months from the time such opinion is delivered or (y) with respect to, or resulting from, a potential breach of the covenants set forth in Section 8.24 hereof)) of KPMG LLP or another firm of independent public accountants of recognized national standing, selected by ▇▇▇▇▇▇▇▇ and reasonably satisfactory the Borrower, to the Administrative Agenteffect that the consolidated financial statements have been prepared in accordance with GAAP and present fairly in all material respects in accordance with GAAP the consolidated financial condition of the Borrower and its Subsidiaries as of the close of such fiscal year and the results of their operations and cash flows for the fiscal year then ended and that an examination of such accounts in connection with such financial statements has been made in accordance with generally accepted auditing standards and, accordingly, such examination included such tests of the accounting records and such other auditing procedures as were considered necessary in the circumstances;
(c) [reserved]promptly after receipt thereof, any additional written reports that detail any material weakness in the Borrower’s internal controls given to it by its independent public accountants;
(d) promptly after the sending or filing thereof, copies of each financial statement, report, notice or proxy statement sent by any Loan Party or any Restricted Subsidiary of a Loan Party to its stockholders or other equity holders, and copies of each regular, periodic or special report, registration statement or prospectus (including all Form 10-K, Form 10-Q and Form 8-K reports) filed by any Loan Party or any Restricted Subsidiary of a Loan Party with any securities exchangeexchange or the Securities and Exchange Commission or any successor agency;
(e) [reserved]promptly after receipt thereof, a copy of each notice received from any regulatory agency of competent jurisdiction of any material noncompliance with any applicable law or regulation relating to a Loan Party or any Restricted Subsidiary of a Loan Party or their respective businesses;
(f) within ninety (90) as soon as available, and in any event no later than 75 days after the end of each Fiscal Year fiscal year of the Borrower, a copy of the Borrower’s consolidated operating budget and projections plan for the following year including consolidated projections Borrower and its Restricted Subsidiaries for the then current fiscal year, such operating plan to show the projected revenues and expenses of revenues, expenses the Borrower and balance sheet its Restricted Subsidiaries on a quarter-by-quarter basis, with such operating budget and projections plan to be in reasonable detail prepared by the Borrower and in form reasonably satisfactory to the Administrative Agent (which shall include a summary of all significant assumptions made in preparing such projectionsoperating plan);
(g) notice of any Change of Control;
(h) promptly after knowledge thereof shall have come to the attention of any Responsible Officer of any Loan Party, written notice of (i) any threatened or pending litigation or governmental or arbitration proceeding or labor controversy against any Loan Party or any Restricted Subsidiary of a Loan Party or any of their Property which, if adversely determined, could would reasonably be expected to have a Material Adverse Effect, (ii) the occurrence of any Material Adverse Effect, or (iii) the occurrence of any Default or (iv) any change in the information provided in the Beneficial Ownership Certification that would result in a change to the list Event of beneficial owners identified in of such certificationDefault;
(i) on the Closing Date and with each of the financial statements delivered pursuant to subsections (a) (other than the last Fiscal Quarter of each Fiscal Year) and (b) above, a compliance written certificate (“Compliance Certificate”) in the form attached hereto as Exhibit F E signed by a Financial Officer of the Borrower to the effect that to the best of such officer’s knowledge and belief no Default has occurred during the period covered by such statements or, if any such Default has occurred during such period, setting forth a description of such Default and specifying the action, if any, taken by the relevant Loan Party or its Restricted Subsidiary to remedy the same. Such certificate shall also set forth the calculations supporting such statements in respect of Section 8.22 (Financial Covenants); and8.24;
(j) on the Closing Date notice of any investment made pursuant to Section 8.9(e) and with each notice of the financial statements delivered pursuant to subsections (a) (other than the last Fiscal Quarter repayment of each Fiscal Year) and (b) above, a Borrowing Base Certificate showing the computation of the Borrowing Base Value, in reasonable detail as of the close of business on the last day of any such Fiscal Quarter or Fiscal Year, as applicable, prepared by the Borrower and certified to by its chief financial officer or another officer of the Borrower reasonably acceptable to the Administrative Agent; andinvestment;
(k) within a reasonable period of time following any such request thereforpromptly, from time to time, (i) such other information regarding the operations, business affairs and financial condition of any Loan Party or any Restricted Subsidiary of a Loan Party, or compliance with the terms of any Loan Document, as the Administrative Agent or any Lender may reasonably request or request; and
(iil) information and documentation reasonably requested by concurrently with the Administrative Agent or any Lender for purposes delivery of compliance with applicable “know your customer” requirements under the Patriot Act or other applicable Anti-Corruption Laws and the Beneficial Ownership Regulation. Notwithstanding the foregoing, the filing of the Borrower’s financial statements with the U.S. Securities and Exchange Commission on Form 10-K or Form 10-Q shall satisfy the requirements of Section 8.5(a)(iunder clauses (a) and (b) above at a time when there are one or more Unrestricted Subsidiaries, consolidating financial statements reflecting the adjustments necessary to eliminate the accounts of Unrestricted Subsidiaries from such consolidated financial statements. Documents required to be delivered to the Administrative Agent and/or the Lenders pursuant to Section 8.5(a), respectively(b) or (d) (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, shall be deemed to have been delivered on the date on which (i) the Borrower posts such documents, or provides a link thereto, on the Borrower’s website on the internet at the following website address ▇▇▇.▇▇▇▇▇▇▇▇▇.▇▇▇, (ii) 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 or whether sponsored by the Administrative Agent) or (iii) such documents are posted electronically with the SEC’s ▇▇▇▇▇ system.
Appears in 1 contract
Sources: Credit Agreement (Envestnet, Inc.)
Financial Reports. The Loan Parties Borrower shall, and shall cause each of their Subsidiaries Subsidiary to, maintain proper books a standard system of records and accounts reasonably necessary to prepare financial statements required to be delivered pursuant to this Section 8.5 accounting in accordance with GAAP and shall furnish to the Administrative Agent Agent, each Lender, the L/C Issuer and each Lenderof their duly authorized representatives such information respecting the business and financial condition of the Borrower and each Subsidiary as the Administrative Agent or such Lender may reasonably request; and without any request, shall furnish to the Administrative Agent for distribution to the Lenders and L/C Issuer:
(a) as soon as available, and in any event no later than sixty ninety (6090) days after the last day each Fiscal Year of the Borrower (commencing with the 2022 Fiscal Year), a copy of the consolidated balance sheet of the Borrower and its Subsidiaries as of the last day of the Fiscal Year then ended and the consolidated statements of income, retained earnings, and cash flows of the Borrower and its Subsidiaries for the Fiscal Year then ended, and accompanying notes thereto, each in reasonable detail showing in comparative form the figures for the previous Fiscal Year, accompanied by an unqualified opinion of independent public accountants of recognized national standing, selected by the Borrower and reasonably satisfactory to the Administrative Agent (the Administrative Agent hereby approving PFK O’▇▇▇▇▇▇ D▇▇▇▇▇, the independent public accountants engaged by the Borrower as of the Closing Date), to the effect that the consolidated financial statements have been prepared in accordance with GAAP and present fairly in all material respects in accordance with GAAP the consolidated financial condition of the Borrower and its Subsidiaries as of the close of such Fiscal Year and the results of their operations and cash flows for the Fiscal Year then ended and that an examination of such accounts in connection with such financial statements has been made in accordance with generally accepted auditing standards and, accordingly, such examination included such tests of the accounting records and such other auditing procedures as were considered necessary in the circumstances;
(b) within the period provided in subsection (a) above, the written statement of the accountants who certified the audit report thereby required that in the course of their audit they have obtained no knowledge of any Default or Event of Default, or, if such accountants have obtained knowledge of any such Default or Event of Default, they shall disclose in such statement the nature and period of the existence thereof;
(c) as soon as available, and in any event no later than forty-five (45) days after the last day of each of the first three Fiscal Quarter Quarters of each Fiscal Year of the BorrowerBorrower (commencing with the Fiscal Quarter ended on September 30, 2022), a copy of (i) the company-prepared consolidated balance sheets sheet of the Borrower and its Subsidiaries as of the last day of such Fiscal Quarter and the consolidated statements of operationsincome, changes in equity (deficit) retained earnings, and cash flows of the Borrower and its Subsidiaries for the Fiscal Quarter and for the Fiscal Year-to-date period then ended, each in reasonable detail andshowing, if available, showing in comparative form form, the figures for the corresponding date and period in the previous Fiscal Year, prepared by the applicable party Borrower in accordance with GAAP (subject to the absence of footnote disclosures and year-end audit adjustments) and certified to by a Financial Officer its chief financial officer or another officer of the Borrower and (ii) operating statements, rent roll and accounts receivable aging for each Borrowing Base Propertyreasonably acceptable to the Administrative Agent;
(bd) as soon as available, and in any event no later than one hundred twenty within (120i) forty-five (45) days after the last day of each of the first three Fiscal Quarters of each Fiscal Year of (commencing with the BorrowerFiscal Quarter ended on September 30, a copy of the consolidated balance sheets of Borrower 2022) and its Subsidiaries as of (ii) ninety (90) days after the last day of the last Fiscal Quarter of each Fiscal Year then ended and (commencing with the consolidated statements 2022 Fiscal Year), a Borrowing Base Certificate showing the computation of statements of operations, comprehensive loss, shareholders’ equity (deficit) and cash flows of Borrower and its Subsidiaries for the Fiscal Year then ended, and accompanying notes thereto, each Borrowing Base in reasonable detail and, if available, showing in comparative form the figures for the previous Fiscal Year, accompanied in the case as of the consolidated close of business on the last day of such Fiscal Quarter, prepared by the Borrower and certified to by its chief financial statements by an unqualified opinion of BDO USA, P.C., officer or another firm officer of independent public accountants of recognized national standing, selected by ▇▇▇▇▇▇▇▇ and the Borrower reasonably satisfactory acceptable to the Administrative Agent;
(e) with each of the financial statements delivered pursuant to subsections (a) and (c) [reserved]above, a compliance certificate (“Compliance Certificate”) in the form attached hereto as Exhibit E signed by the chief financial officer of the Borrower or another officer of the Borrower reasonably acceptable to the Administrative Agent to the effect that to such officer’s knowledge and belief no Default or Event of Default has occurred during the period covered by such statements or, if any such Default or Event of Default has occurred during such period, setting forth a description of such Default or Event of Default and specifying the action, if any, taken or being taken by the Borrower or any Subsidiary to remedy the same. Such certificate shall also set forth the calculations supporting such statements in respect of Section 8.20 hereof;
(df) promptly after receipt thereof, any additional written reports, management letters or other detailed information contained in writing concerning significant aspects of the Borrower’s or any Subsidiary’s operations and financial affairs given to it by its independent public accountants;
(g) promptly after the sending or filing thereof, copies of each financial statement, report, notice or proxy statement sent by any Loan Party the Borrower or any Subsidiary of a Loan Party to its stockholders or other equity holders, and upon written request from the Administrative Agent, copies of each regular, periodic or special report, registration statement or prospectus (including all Form 10-K, Form 10-Q and Form 8-K reports) filed by any Loan Party the Borrower or any Subsidiary of a Loan Party with any securities exchangeexchange or the Securities and Exchange Commission or any successor agency;
(eh) [reserved]promptly after receipt thereof, a copy of each audit made by any regulatory agency of the books and records of the Borrower or any Subsidiary or of notice of any material noncompliance with any applicable Legal Requirements relating to the Borrower or any Subsidiary, or its business;
(fi) as soon as available, and in any event within ninety thirty (9030) days after the end of each Fiscal Year of the Borrower, a copy of the Borrower’s operating budget and projections for the following year including consolidated projections of revenues, expenses and balance sheet on a quarter-by-quarter basis, with such operating budget and projections in reasonable detail prepared by the Borrower and in form reasonably satisfactory to the Administrative Agent (which shall include a summary of all significant assumptions made in preparing such projectionsbudget);
(g) notice of any Change of Control;
(h) promptly after knowledge thereof shall have come to the attention of any Responsible Officer of any Loan Party, written notice of (i) any threatened or pending litigation or governmental or arbitration proceeding or labor controversy against any Loan Party or any Subsidiary of a Loan Party or any of their Property which, if adversely determined, could reasonably be expected to have a Material Adverse Effect, (ii) the occurrence of any Material Adverse Effect, (iii) the occurrence of any Default or (iv) any change in the information provided in the Beneficial Ownership Certification that would result in a change to the list of beneficial owners identified in of such certification;
(i) on the Closing Date and with each of the financial statements delivered pursuant to subsections (a) (other than the last Fiscal Quarter of each Fiscal Year) and (b) above, a compliance certificate (“Compliance Certificate”) in the form attached hereto as Exhibit F signed by a Financial Officer of the Borrower to the effect that to the best of such officer’s knowledge and belief no Default has occurred during the period covered by such statements or, if any such Default has occurred during such period, setting forth a description of such Default and specifying the action, if any, taken by the relevant Loan Party or its Subsidiary to remedy the same. Such certificate shall also set forth the calculations supporting such statements in respect of Section 8.22 (Financial Covenants); and
(j) on the Closing Date and with each of the financial statements delivered pursuant to subsections (a) (other than the last Fiscal Quarter of each Fiscal Year) and (b) above, a Borrowing Base Certificate showing the computation of the Borrowing Base Value, in reasonable detail as of the close of business on the last day of such Fiscal Quarter or Fiscal Year, as applicable, prepared by the Borrower and certified to by its chief financial officer or another officer of the Borrower reasonably acceptable to the Administrative Agent; and
(k) within a reasonable period of time following any such request therefor, from time to time, (i) such other information regarding the operations, business affairs and financial condition of any Loan Party or any Subsidiary of a Loan Party, or compliance with the terms of any Loan Document, as the Administrative Agent or any Lender may reasonably request or (ii) information and documentation reasonably requested by the Administrative Agent or any Lender for purposes of compliance with applicable “know your customer” requirements under the Patriot Act or other applicable Anti-Corruption Laws and the Beneficial Ownership Regulation. Notwithstanding the foregoing, the filing of the Borrower’s financial statements with the U.S. Securities and Exchange Commission on Form 10-K or Form 10-Q shall satisfy the requirements of Section 8.5(a)(i) and (b), respectively.
Appears in 1 contract
Financial Reports. The Loan Parties shallServicer shall furnish, and shall or cause each of their Subsidiaries to, maintain proper books of records and accounts reasonably necessary to prepare financial statements required to be delivered pursuant to this Section 8.5 in accordance with GAAP and shall furnish furnished, to the Administrative Agent and each LenderAgent:
(ai) as soon as available, available and in any event no later than sixty (60) days after the last day of each Fiscal Quarter of each Fiscal Year of the Borrower, a copy of (i) the company-prepared consolidated balance sheets of Borrower and its Subsidiaries as of the last day of such Fiscal Quarter and the consolidated statements of operations, changes in equity (deficit) and cash flows of Borrower for the Fiscal Quarter and for the Fiscal Year-to-date period then ended, in reasonable detail and, if available, showing in comparative form the figures for the corresponding date and period in the previous Fiscal Year, prepared by the applicable party in accordance with GAAP (subject to the absence of footnote disclosures and year-end audit adjustments) and certified to by a Financial Officer of Borrower and (ii) operating statements, rent roll and accounts receivable aging for each Borrowing Base Property;
(b) as soon as available, and in any event no later than one hundred twenty (120) days after the last day of each Fiscal Year of the Borrower, a copy of the consolidated balance sheets of Borrower and its Subsidiaries as of the last day of the Fiscal Year then ended and the consolidated statements of statements of operations, comprehensive loss, shareholders’ equity (deficit) and cash flows of Borrower and its Subsidiaries for the Fiscal Year then ended, and accompanying notes thereto, each in reasonable detail and, if available, showing in comparative form the figures for the previous Fiscal Year, accompanied in the case of the consolidated financial statements by an unqualified opinion of BDO USA, P.C., or another firm of independent public accountants of recognized national standing, selected by ▇▇▇▇▇▇▇▇ and reasonably satisfactory to the Administrative Agent;
(c) [reserved];
(d) promptly after the sending or filing thereof, copies of each financial statement, report, notice or proxy statement sent by any Loan Party or any Subsidiary of a Loan Party to its stockholders or other equity holders, and copies of each regular, periodic or special report, registration statement or prospectus filed by any Loan Party or any Subsidiary of a Loan Party with any securities exchange;
(e) [reserved];
(f) within ninety (90) 120 days after the end of each Fiscal Year of the Borrowerfiscal year, a copy of the Borrower’s operating budget and projections audited consolidated financial statements for the following prior year for the Servicer and its consolidated Subsidiaries, including the prior comparable period (if any) from the preceding fiscal year and certified by Independent Accountants and certified by an Executive Officer of the Servicer with appropriate knowledge stating that the information set forth therein fairly presents the financial condition of the Servicer and its consolidated projections Subsidiaries as of revenues, expenses and balance sheet on a quarter-by-quarter basisfor such fiscal year, with all such operating budget financial statements being prepared in accordance with GAAP applied consistently throughout the period involved (except for changes in the application of GAAP approved by such accountants in accordance with GAAP and projections in reasonable detail prepared by Borrower and in form reasonably satisfactory to the Administrative Agent (which shall include a summary of all significant assumptions made in preparing such projectionsdisclosed therein);; and
(g) notice of any Change of Control;
(h) promptly after knowledge thereof shall have come to the attention of any Responsible Officer of any Loan Party, written notice of (i) any threatened or pending litigation or governmental or arbitration proceeding or labor controversy against any Loan Party or any Subsidiary of a Loan Party or any of their Property which, if adversely determined, could reasonably be expected to have a Material Adverse Effect, (ii) as soon as available and in any event within 60 days after the occurrence end of any Material Adverse Effect, (iii) the occurrence each fiscal quarter of any Default or (iv) any change in the information provided in the Beneficial Ownership Certification that would result in a change to the list of beneficial owners identified in of such certification;
(i) on the Closing Date and with each of the financial statements delivered pursuant to subsections (a) fiscal year (other than the last Fiscal Quarter fiscal quarter of each Fiscal Year) fiscal year), an unaudited consolidated balance sheet of the Servicer and its consolidated Subsidiaries as of the end of such fiscal quarter and including the prior comparable period (b) aboveif any), a compliance certificate (“Compliance Certificate”) in and the form attached hereto as Exhibit F signed unaudited consolidated statements of income and of cash flow of the Servicer and its consolidated Subsidiaries for such fiscal quarter and for the period commencing at the end of the previous fiscal year and ending with the end of such fiscal quarter, certified by a Financial an Executive Officer of the Borrower Servicer identifying such documents as being the documents described in this paragraph (ii) and stating that the information set forth therein fairly presents the financial condition of the Servicer and its consolidated Subsidiaries as of and for the periods then ended, subject to year-end adjustments and confirming that the effect that to Servicer is in compliance with all financial covenants in the best of such officer’s knowledge and belief no Default has occurred during the period covered by such statements Transaction Documents (or, if any such Default has occurred during such periodthe Servicer is not in compliance, setting forth a description of such Default and specifying the action, if any, taken by the relevant Loan Party or its Subsidiary to remedy the same. Such certificate shall also set forth the calculations supporting such statements in respect of Section 8.22 (Financial Covenantsnature and status thereof); and
(j) on the Closing Date and with each of the financial statements delivered pursuant to subsections (a) (other than the last Fiscal Quarter of each Fiscal Year) and (b) above, a Borrowing Base Certificate showing the computation of the Borrowing Base Value, in reasonable detail as of the close of business on the last day of such Fiscal Quarter or Fiscal Year, as applicable, prepared by the Borrower and certified to by its chief financial officer or another officer of the Borrower reasonably acceptable to the Administrative Agent; and
(k) within a reasonable period of time following any such request therefor, from time to time, (i) such other information regarding the operations, business affairs and financial condition of any Loan Party or any Subsidiary of a Loan Party, or compliance with the terms of any Loan Document, as the Administrative Agent or any Lender may reasonably request or (ii) information and documentation reasonably requested by the Administrative Agent or any Lender for purposes of compliance with applicable “know your customer” requirements under the Patriot Act or other applicable Anti-Corruption Laws and the Beneficial Ownership Regulation. Notwithstanding the foregoing, the filing of the Borrower’s financial statements with the U.S. Securities and Exchange Commission on Form 10-K or Form 10-Q shall satisfy the requirements of Section 8.5(a)(i) and (b), respectively.
Appears in 1 contract
Sources: Loan Financing and Servicing Agreement (Business Development Corp of America)
Financial Reports. The Loan Parties shall(1) Except as Previously Disclosed in Schedule 5.2(F), (1) Frontier’s audited consolidated balance sheet as of December 31 for the fiscal years 2005 and 2006, and shall cause each the related statements of their Subsidiaries toincome, maintain proper books of records changes in shareholders’ equity and accounts reasonably necessary to prepare cash flows for the fiscal years ended 2004 through 2006, inclusive, as reported in Frontier’s Annual Report on Form 10-K for the fiscal year ended December 31, 2006, filed with the SEC under the Exchange Act, and all subsequent unaudited quarterly financial statements of Frontier, and (2) Frontier Bank’s call report for the fiscal year ended December 31, 2006, in the form filed with the FDIC and the Department (in each such case under the foregoing clauses (1) and (2), the “Frontier Financial Reports”), did not and will not contain any untrue statement of a material fact or omit to state a material fact required to be delivered pursuant stated therein or necessary to this Section 8.5 make the statements made therein, in accordance with GAAP and shall furnish to light of the Administrative Agent circumstances under which they were made, not misleading; and each Lender:
of the balance sheets in or incorporated by reference into the Frontier Financial Reports (aincluding the related notes and schedules thereto) fairly presents and will fairly present the financial position of the entity or entities to which it relates as soon as availableof its date, and in any event no later than sixty (60) days after the last day of each Fiscal Quarter of each Fiscal Year of the Borrower, a copy statements of income and changes in shareholders’ equity and cash flows or equivalent statements in the Frontier Financial Reports (iincluding any related notes and schedules thereto) fairly presents and will fairly present the company-prepared consolidated balance sheets of Borrower and its Subsidiaries as of the last day of such Fiscal Quarter and the consolidated statements results of operations, changes in shareholders’ equity (deficit) and changes in cash flows flows, as the case may be, of Borrower the entity or entities to which it relates for the Fiscal Quarter and for the Fiscal Year-to-date period then endedperiods set forth therein, in reasonable detail and, if available, showing in comparative form the figures for the corresponding date and period in the previous Fiscal Year, prepared by the applicable party each case in accordance with GAAP (during the periods involved, except in each case as may be noted therein, and subject to the absence of footnote disclosures and recurring year-end audit adjustmentsadjustments normal in nature and amount in the case of unaudited statements. No Person has resigned or been dismissed as independent public accountants of Frontier as a result of or in connection with any disagreements with Frontier on a matter of accounting principles or practices, financial statement disclosure or auditing scope or procedure.
(2) and certified Since December 31, 2006, (i) through the date hereof, neither Frontier nor, to by a Financial Officer the knowledge of Borrower the officers of Frontier, any director, officer, employee, auditor, accountant or representative of Frontier has received or otherwise had or obtained knowledge of any material complaint, allegation, assertion or claim, whether written or oral, regarding the accounting or auditing practices, internal controls, procedures, methodologies or methods of Frontier, including any material complaint, allegation, assertion or claim that Frontier has engaged in questionable accounting or auditing practices, and (ii) operating statementsno attorney representing Frontier, rent roll and accounts receivable aging for each Borrowing Base Property;
(b) as soon as availablewhether or not employed by Frontier, and in any event no later than one hundred twenty (120) days after the last day of each Fiscal Year of the Borrower, a copy of the consolidated balance sheets of Borrower and its Subsidiaries as of the last day of the Fiscal Year then ended and the consolidated statements of statements of operations, comprehensive loss, shareholders’ equity (deficit) and cash flows of Borrower and its Subsidiaries for the Fiscal Year then ended, and accompanying notes thereto, each in reasonable detail and, if available, showing in comparative form the figures for the previous Fiscal Year, accompanied in the case of the consolidated financial statements by an unqualified opinion of BDO USA, P.C., or another firm of independent public accountants of recognized national standing, selected by ▇▇▇▇▇▇▇▇ and reasonably satisfactory to the Administrative Agent;
(c) [reserved];
(d) promptly after the sending or filing thereof, copies of each financial statement, report, notice or proxy statement sent by any Loan Party or any Subsidiary has reported evidence of a Loan Party to its stockholders material violation of securities laws, breach of fiduciary duty or other equity holders, and copies of each regular, periodic or special report, registration statement or prospectus filed similar violation by any Loan Party or any Subsidiary of a Loan Party with any securities exchange;
(e) [reserved];
(f) within ninety (90) days after the end of each Fiscal Year of the Borrower, a copy of the Borrower’s operating budget and projections for the following year including consolidated projections of revenues, expenses and balance sheet on a quarter-by-quarter basis, with such operating budget and projections in reasonable detail prepared by Borrower and in form reasonably satisfactory to the Administrative Agent (which shall include a summary of all significant assumptions made in preparing such projections);
(g) notice of any Change of Control;
(h) promptly after knowledge thereof shall have come to the attention of any Responsible Officer of any Loan Party, written notice of (i) any threatened or pending litigation or governmental or arbitration proceeding or labor controversy against any Loan Party or any Subsidiary of a Loan Party Frontier or any of their Property whichits officers, if adversely determineddirectors, could reasonably be expected to have a Material Adverse Effect, (ii) the occurrence of any Material Adverse Effect, (iii) the occurrence of any Default employees or (iv) any change in the information provided in the Beneficial Ownership Certification that would result in a change agents to the list Board of beneficial owners identified in Directors of such certification;
(i) on the Closing Date and with each of the financial statements delivered pursuant Frontier or any committee thereof or to subsections (a) (other than the last Fiscal Quarter of each Fiscal Year) and (b) above, a compliance certificate (“Compliance Certificate”) in the form attached hereto as Exhibit F signed by a Financial Officer of the Borrower to the effect that to the best of such officer’s knowledge and belief no Default has occurred during the period covered by such statements or, if any such Default has occurred during such period, setting forth a description of such Default and specifying the action, if any, taken by the relevant Loan Party director or its Subsidiary to remedy the same. Such certificate shall also set forth the calculations supporting such statements in respect of Section 8.22 (Financial Covenants); and
(j) on the Closing Date and with each of the financial statements delivered pursuant to subsections (a) (other than the last Fiscal Quarter of each Fiscal Year) and (b) above, a Borrowing Base Certificate showing the computation of the Borrowing Base Value, in reasonable detail as of the close of business on the last day of such Fiscal Quarter or Fiscal Year, as applicable, prepared by the Borrower and certified to by its chief financial officer or another officer of the Borrower reasonably acceptable to the Administrative Agent; and
(k) within a reasonable period of time following any such request therefor, from time to time, (i) such other information regarding the operations, business affairs and financial condition of any Loan Party or any Subsidiary of a Loan Party, or compliance with the terms of any Loan Document, as the Administrative Agent or any Lender may reasonably request or (ii) information and documentation reasonably requested by the Administrative Agent or any Lender for purposes of compliance with applicable “know your customer” requirements under the Patriot Act or other applicable Anti-Corruption Laws and the Beneficial Ownership Regulation. Notwithstanding the foregoing, the filing of the Borrower’s financial statements with the U.S. Securities and Exchange Commission on Form 10-K or Form 10-Q shall satisfy the requirements of Section 8.5(a)(i) and (b), respectivelyFrontier.
Appears in 1 contract
Financial Reports. The Loan Parties shallBorrower shall cause the Investment Manager to furnish, or cause to be furnished, to the Administrative Agent:
(i) as soon as available, but in any event within 120 days after the end of each fiscal year of the Equityholder, a copy of the consolidated and consolidating balance sheet of the Equityholder and its consolidated Subsidiaries as at the end of such year, the related consolidated and consolidating statements of income for such year, and shall cause the related consolidated statements of changes in net assets and of cash flows for such year, setting forth in each of their Subsidiaries tocase in comparative form the figures for the previous year; provided, maintain proper books of records and accounts reasonably necessary to prepare that the financial statements required to be delivered pursuant to this Section 8.5 in accordance with GAAP and shall furnish to the Administrative Agent and each Lender:
(a) as soon as available, and in any event no later than sixty (60) days after the last day of each Fiscal Quarter of each Fiscal Year of the Borrower, a copy of clause (i) the company-prepared consolidated balance sheets of Borrower and its Subsidiaries as of the last day of such Fiscal Quarter and the consolidated statements of operations, changes in equity (deficit) and cash flows of Borrower for the Fiscal Quarter and for the Fiscal Year-to-date period then ended, in reasonable detail and, if available, showing in comparative form the figures for the corresponding date and period in the previous Fiscal Year, prepared by the applicable party in accordance with GAAP (subject to the absence of footnote disclosures and year-end audit adjustments) and certified to by a Financial Officer of Borrower and (ii) operating statements, rent roll and accounts receivable aging for each Borrowing Base Property;
(b) as soon as available, and in any event no later than one hundred twenty (120) days after the last day of each Fiscal Year of the Borrower, a copy of the consolidated balance sheets of Borrower and its Subsidiaries as of the last day of the Fiscal Year then ended and the consolidated statements of statements of operations, comprehensive loss, shareholders’ equity (deficit) and cash flows of Borrower and its Subsidiaries for the Fiscal Year then ended, and accompanying notes thereto, each in reasonable detail and, if available, showing in comparative form the figures for the previous Fiscal Year, accompanied in the case of the consolidated financial statements by an unqualified opinion of BDO USA, P.C., or another firm of independent public accountants of recognized national standing, selected by which are made available via ▇▇▇▇▇▇▇▇ and reasonably satisfactory , or any successor system of the Commission, in the Equityholder’s annual report on Form 10-K, shall be deemed delivered to the Administrative Agent;Agent on the sate such documents are made so available; and
(cii) [reserved];
(d) promptly after the sending or filing thereof, copies of each financial statement, report, notice or proxy statement sent by as soon as available and in any Loan Party or any Subsidiary of a Loan Party to its stockholders or other equity holders, and copies of each regular, periodic or special report, registration statement or prospectus filed by any Loan Party or any Subsidiary of a Loan Party with any securities exchange;
(e) [reserved];
(f) event within ninety (90) 45 days after the end of each Fiscal Year fiscal quarter of the Borrower, a copy of the Borrower’s operating budget and projections for the following each fiscal year including consolidated projections of revenues, expenses and balance sheet on a quarter-by-quarter basis, with such operating budget and projections in reasonable detail prepared by Borrower and in form reasonably satisfactory to the Administrative Agent (which shall include a summary of all significant assumptions made in preparing such projections);
(g) notice of any Change of Control;
(h) promptly after knowledge thereof shall have come to the attention of any Responsible Officer of any Loan Party, written notice of (i) any threatened or pending litigation or governmental or arbitration proceeding or labor controversy against any Loan Party or any Subsidiary of a Loan Party or any of their Property which, if adversely determined, could reasonably be expected to have a Material Adverse Effect, (ii) the occurrence of any Material Adverse Effect, (iii) the occurrence of any Default or (iv) any change in the information provided in the Beneficial Ownership Certification that would result in a change to the list of beneficial owners identified in of such certification;
(i) on the Closing Date and with each of the financial statements delivered pursuant to subsections (a) (other than the last Fiscal Quarter fiscal quarter of each Fiscal Year) fiscal year), an unaudited consolidated and (b) above, a compliance certificate (“Compliance Certificate”) in the form attached hereto as Exhibit F signed by a Financial Officer consolidating balance sheet of the Borrower to Equityholder and its consolidated Subsidiaries as of the effect that to the best end of such officer’s knowledge fiscal quarter and belief no Default has occurred during including the prior comparable period (if any), and the unaudited consolidated and consolidating statements of income of the Equityholder and its consolidated Subsidiaries for such fiscal quarter and for the period covered by such statements or, if any such Default has occurred during such period, setting forth a description commencing at the end of the previous fiscal year and ending with the end of such Default fiscal quarter, and specifying the actionunaudited consolidated statements of cash flows of the Equityholder and its consolidated Subsidiaries for the period commencing at the end of the previous fiscal year and ending with the end of such fiscal quarter; provided, if any, taken by the relevant Loan Party or its Subsidiary to remedy the same. Such certificate shall also set forth the calculations supporting such statements in respect of Section 8.22 (Financial Covenants); and
(j) on the Closing Date and with each of that the financial statements required to be delivered pursuant to subsections (a) (other than the last Fiscal Quarter of each Fiscal Year) and (b) above, a Borrowing Base Certificate showing the computation of the Borrowing Base Value, in reasonable detail as of the close of business on the last day of such Fiscal Quarter or Fiscal Year, as applicable, prepared by the Borrower and certified to by its chief financial officer or another officer of the Borrower reasonably acceptable to the Administrative Agent; and
(k) within a reasonable period of time following any such request therefor, from time to time, (i) such other information regarding the operations, business affairs and financial condition of any Loan Party or any Subsidiary of a Loan Party, or compliance with the terms of any Loan Document, as the Administrative Agent or any Lender may reasonably request or this clause (ii) information and documentation reasonably requested by the Administrative Agent which are made available via ▇▇▇▇▇, or any Lender for purposes of compliance with applicable “know your customer” requirements under the Patriot Act or other applicable Anti-Corruption Laws and the Beneficial Ownership Regulation. Notwithstanding the foregoing, the filing successor system of the BorrowerCommission, in the Equityholder’s financial statements with the U.S. Securities and Exchange Commission quarterly report on Form 10-K or Form 10-Q Q, shall satisfy be deemed delivered to the requirements of Section 8.5(a)(i) and (b), respectivelyAdministrative Agent on the sate such documents are made so available.
Appears in 1 contract
Sources: Loan Financing and Servicing Agreement (FS Investment Corp II)
Financial Reports. The Loan Parties shall, and shall cause each of their Subsidiaries to, maintain proper books of records and accounts reasonably necessary to prepare financial statements required to be delivered pursuant to this Section 8.5 in accordance with GAAP and Borrower shall furnish to the Administrative Agent the financial statements and each Lender:reports listed hereinafter (the “Financial Statements”):
(a) as soon as available, and in any event no later than sixty within thirty (6030) days after the last day end of each Fiscal Quarter of each Fiscal Year of the Borrower, a copy of month (i) the company-prepared consolidated balance sheets of Borrower and its Subsidiaries as of other than the last day fiscal month of such Fiscal Quarter any fiscal quarter), unaudited interim and the consolidated statements of operations, changes in equity (deficit) and cash flows of Borrower for the Fiscal Quarter and for the Fiscal Yearyear-to-date period then endedfinancial statements of Parent as of the end of such month (prepared on a consolidated basis), in reasonable detail and, if available, showing in comparative form the figures for the corresponding date including (i) balance sheet and period in the previous Fiscal Year, prepared by the applicable party in accordance with GAAP (subject to the absence related statements of footnote disclosures income and year-end audit adjustments) and certified to cash flows accompanied by a Financial Officer of Borrower report detailing any occurrence that would reasonably be expected to have a Material Adverse Effect, and (ii) operating statements, rent roll a report of agings of accounts receivable and accounts receivable aging payable for each Borrowing Base Propertysuch period, all certified by a Responsible Officer to the effect that they have been prepared in accordance with GAAP, except (A) for the absence of footnotes, (B) that they are subject to normal year-end adjustments, and (C) they do not contain certain non-cash items that are customarily included in quarterly and annual financial statements; provided, that such financial statements pursuant to this clause (a) shall be waived so long as on the last Business Day of the relevant month (x) Parent’s Market Capitalization is in excess of $1,500,000,000 and (y) no Event of Default shall have occurred and be continuing;
(b) as soon as available, and in any event no later than one hundred twenty within forty-five (12045) days after the last day end of each Fiscal Year calendar quarter, unaudited interim and year-to-date financial statements of the Borrower, a copy of the consolidated balance sheets of Borrower and its Subsidiaries Parent as of the last day end of the Fiscal Year then ended such calendar quarter (prepared on a consolidated basis), including balance sheet and the consolidated related statements of statements of operations, comprehensive loss, shareholders’ equity (deficit) income and cash flows of Borrower and its Subsidiaries flows, certified by a Responsible Officer to the effect that they have been prepared in accordance with GAAP, except (i) for the Fiscal Year then endedabsence of footnotes, and accompanying notes thereto(ii) that they are subject to normal year-end adjustments, each in reasonable detail and, if available, showing in comparative form the figures for the previous Fiscal Year, and accompanied in the case of the consolidated financial statements by an unqualified opinion of BDO USA, P.C., or another firm of independent public accountants of recognized national standing, selected by ▇▇▇▇▇▇▇▇ and a report detailing any occurrence that would reasonably satisfactory be expected to the Administrative Agenthave a Material Adverse Effect;
(c) [reserved];
(d) promptly after the sending or filing thereof, copies of each financial statement, report, notice or proxy statement sent by any Loan Party or any Subsidiary of a Loan Party to its stockholders or other equity holders, and copies of each regular, periodic or special report, registration statement or prospectus filed by any Loan Party or any Subsidiary of a Loan Party with any securities exchange;
(e) [reserved];
(f) within ninety (90) days after the end of each Fiscal Year fiscal year, unqualified (other than as to going concern) audited financial statements as of the Borrowerend of such year (prepared on a consolidated basis) of Parent, a copy including balance sheet and related statements of income and cash flows, and setting forth in comparative form the Borrower’s operating budget and projections corresponding figures for the following year including consolidated projections preceding fiscal year, certified by a firm of revenues, expenses and balance sheet on a quarter-by-quarter basis, with such operating budget and projections in reasonable detail prepared independent certified public accountants selected by Borrower and in form reasonably satisfactory acceptable to the Administrative Agent (it being agreed and understood that each of the “Big Four” accounting firms is reasonably acceptable to the Agent), accompanied by any management report from such accountants;
(d) concurrently with the delivery of the financial statements set forth in the preceding clauses (a) through (c) of this Section 7.1, a Compliance Certificate in the form of Exhibit E;
(e) promptly after the sending or filing thereof, as the case may be, copies of any proxy statements, financial statements or reports that Parent has made available to holders of its Common Stock or other shareholders and securities holders and copies of any regular, periodic and special reports or registration statements that Borrower files with the Securities and Exchange Commission or any governmental authority that may be substituted therefor, or any national securities exchange;
(f) promptly after a Responsible Officer obtaining knowledge thereof, written notice of any legal process affecting Collateral or any other property and assets used in Borrower’s or any Subsidiary’s, Physician Group’s or JV Entity’s business in excess of $4,000,000 in the aggregate (not covered by independent third party insurance as to which liability has not been rejected by such insurance carrier), or any Liens thereon; provided, that no notice shall include a summary of all significant assumptions made in preparing such projections)be required with respect to Permitted Liens;
(g) notice financial and business projections promptly following their approval by Parent’s Board, and in any event, within sixty (60) days after the end of any Change of ControlParent’s fiscal year, as well as budgets, operating plans and other financial information reasonably requested by the Agent;
(h) promptly after knowledge thereof shall have come to following the attention of any Responsible Officer of any Loan PartyAgent’s written request therefor, written notice of (i) any threatened or pending litigation or governmental or arbitration proceeding or labor controversy against any Loan Party or any Subsidiary of a Loan Party or any of their Property which, if adversely determined, could reasonably be expected to have a Material Adverse Effect, (ii) the occurrence of any Material Adverse Effect, (iii) the occurrence of any Default or (iv) any change in the information provided in the Beneficial Ownership Certification that would result in a change to the list of beneficial owners identified in of such certification;insurance renewal statements; and
(i) prompt, and in any event, within two (2) Business Days after obtaining knowledge thereof, notice if Borrower or any Subsidiary has knowledge that Borrower, or any Subsidiary or Affiliate of Borrower, is listed on the Closing Date OFAC Lists or (a) is convicted on, (b) pleads nolo contendere to, (c) is indicted on, or (d) is arraigned and with each held over on charges involving money laundering or predicate crimes to money laundering. Borrower shall not make any change in its (a) accounting policies or reporting practices (other than as permitted or required under GAAP so long as such change is not solely contemplated for purposes of the financial statements reporting requirements under this Agreement or pursuant to applicable securities law or regulations of the Securities and Exchange Commission) or (b) fiscal years or fiscal quarters. The fiscal year of Borrower shall end on December 31. The executed Compliance Certificate, and all Financial Statements required to be delivered pursuant to subsections clauses (a) ), (other than the last Fiscal Quarter of each Fiscal Yearb), (c) and (bd) aboveof this Section 7.1 shall be sent via e-mail to ▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇@▇▇▇▇.▇▇▇ with a copy to ▇▇▇▇▇@▇▇▇▇.▇▇▇, a compliance certificate (“Compliance Certificate”) in the form attached hereto as Exhibit F signed by a ▇▇▇▇▇▇@▇▇▇▇.▇▇▇, ▇▇▇▇▇▇▇@▇▇▇▇.▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇@▇▇▇.▇▇▇, ▇▇▇▇▇▇▇@▇▇▇.▇▇▇, ▇▇▇▇▇▇▇▇▇▇@▇▇▇.▇▇▇, ▇▇▇▇▇▇@▇▇▇.▇▇▇, ▇▇▇▇▇@▇▇▇.▇▇▇, ▇▇▇▇▇▇▇▇▇@▇▇▇.▇▇▇; provided, that if e-mail is not available or sending such Financial Officer of the Borrower Statements via e-mail is not possible, they shall be faxed to the effect that to the best of such officer’s knowledge and belief no Default has occurred during the period covered by such statements orAgent at: (▇▇▇) ▇▇▇-▇▇▇▇, if any such Default has occurred during such period, setting forth a description of such Default and specifying the action, if any, taken by the relevant Loan Party or its Subsidiary to remedy the same. Such certificate shall also set forth the calculations supporting such statements in respect of Section 8.22 (Financial Covenants); and
(j) on the Closing Date and with each of the financial statements delivered pursuant to subsections (a) (other than the last Fiscal Quarter of each Fiscal Year) and (b) above, a Borrowing Base Certificate showing the computation of the Borrowing Base Value, in reasonable detail as of the close of business on the last day of such Fiscal Quarter or Fiscal Year, as applicable, prepared by the Borrower and certified to by its chief financial officer or another officer of the Borrower reasonably acceptable to the Administrative Agent; and
(k) within a reasonable period of time following any such request therefor, from time to time, (i) such other information regarding the operations, business affairs and financial condition of any Loan Party or any Subsidiary of a Loan Party, or compliance with the terms of any Loan Document, as the Administrative Agent or any Lender may reasonably request or (ii) information and documentation reasonably requested by the Administrative Agent or any Lender for purposes of compliance with applicable “know your customer” requirements under the Patriot Act or other applicable Anti-Corruption Laws and the Beneficial Ownership Regulationattention Account Manager: Oak Street Health. Notwithstanding the foregoing, the filing of the Borrower’s financial statements with the U.S. Securities and Exchange Commission on Form 10-K or Form 10-Q shall satisfy the requirements of Section 8.5(a)(i) and documents required to be delivered under Sections 7.1(a), (b), respectively(c) or (e) (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, shall be deemed to have been delivered on the date on which Parent emails a link thereto to the Agent; provided that Parent shall directly provide the Agent all Financial Statements required to be delivered pursuant to Section 7.1(a), (b) and (c) hereunder.
Appears in 1 contract
Sources: Loan and Security Agreement (Oak Street Health, Inc.)
Financial Reports. The Loan Parties Borrower shall, and shall cause each of their Subsidiaries Subsidiary to, maintain proper books a standard system of records and accounts reasonably necessary to prepare financial statements required to be delivered pursuant to this Section 8.5 accounting in accordance with GAAP and shall furnish to Bank and its duly authorized representatives such information respecting the Administrative Agent business and financial condition of Borrower and each LenderSubsidiary as Bank may reasonably request; and without any request, shall furnish to Bank:
(a) as soon as available, available and in any event no later than sixty within ninety (6090) days after the last day end of each Fiscal Quarter of each Fiscal Year fiscal year of the BorrowerBorrower (or, if earlier, by the date that the Annual Report on Form 10-K of the Borrower for such fiscal year would be required to be filed under the rules and regulations of the SEC, giving effect to any automatic extension available thereunder for the filing of such form), its audited consolidated and consolidating balance sheet and consolidated and consolidating statements of income, retained earnings, and cash flows of Borrower and its Subsidiaries for such period, and accompanying notes thereto, each in reasonable detail showing in comparative form the figures for the previous fiscal year, accompanied by an unqualified opinion thereon of ▇▇▇▇▇ ▇▇▇▇▇▇ US, LLP or another firm of independent public accountants of recognized national standing, selected by Borrower and satisfactory to Bank, to the effect that the financial statements have been prepared in accordance with GAAP and present fairly in accordance with GAAP the consolidated financial condition of Borrower and its Subsidiaries as of the close of such fiscal year and the results of their operations and cash flows for the fiscal year then ended and that an examination of such accounts in connection with such financial statements has been made in accordance with generally accepted auditing standards and, accordingly, such examination included such tests of the accounting records and such other auditing procedures as were considered necessary in the circumstances;
(b) as soon as available and in any event within forty-five (45) days after the end of the first three (3) fiscal quarters of Borrower (or, if earlier, by the date that the Quarterly Report on Form 10-Q of the Borrower for such fiscal year would be required to be filed under the rules and regulations of the SEC, giving effect to any automatic extension available thereunder for the filing of such form) a copy of (i) the company-prepared consolidated and consolidating balance sheets sheet of Borrower and its Subsidiaries as of the last day of such Fiscal Quarter period and the consolidated and consolidating statements of operationsincome, changes in equity (deficit) retained earnings, and cash flows of Borrower and its Subsidiaries for such fiscal quarter and the Fiscal Quarter and for the Fiscal Yearfiscal year-to-date period then ended, each in reasonable detail and, if available, showing in comparative form the figures for the corresponding date and period in the previous Fiscal Yearfiscal year, prepared by the applicable party Borrower in accordance with GAAP (subject to the absence of footnote disclosures and year-end audit adjustments) and certified to by its chief financial officer or such other officer acceptable to Bank.
(c) with each of the financial statements delivered pursuant to subsections (a) and (b) above, a Financial Officer written certificate in the form attached hereto as Exhibit B signed by the chief financial officer of Borrower or another officer of Borrower acceptable to Bank to the effect that to the best of such officer’s knowledge and belief no Default or Event of Default has occurred during the period covered by such statements or, if any such Default or Event of Default has occurred during such period, setting forth a description of such Default or Event of Default and specifying the action, if any, taken by Borrower or any Subsidiary to remedy the same. Such certificate shall also set forth the calculations supporting such statements in respect of Section 7.12 (iiFinancial Covenants).
(d) operating statements, rent roll and accounts receivable aging for each Borrowing Base PropertyReserved;
(be) as soon as available, and in any event no later than one hundred twenty (120) 30 days after the last day of each Fiscal Year fiscal year of the Borrower, a copy of the Borrower’s consolidated balance sheets of Borrower and its Subsidiaries as of the last day of the Fiscal Year then ended and the consolidated statements of statements of operations, comprehensive loss, shareholders’ equity (deficit) and cash flows of Borrower and its Subsidiaries consolidating business plan for the Fiscal Year then endedfollowing fiscal year, such business plan to show Borrower’s projected consolidated and accompanying notes theretoconsolidating revenues, each expenses and balance sheet on a quarter by quarter/month by month basis, such business plan to be in reasonable detail and, if available, showing prepared by Borrower and in comparative form the figures for the previous Fiscal Year, accompanied in the case of the consolidated financial statements by an unqualified opinion of BDO USA, P.C., or another firm of independent public accountants of recognized national standing, selected by ▇▇▇▇▇▇▇▇ and reasonably satisfactory to the Administrative AgentBank (which shall include a summary of all assumptions made in preparing such business plan);
(cf) [reserved]promptly after receipt thereof, any additional written reports, management letters or other detailed information contained in writing concerning significant aspects of Borrower’s or any Subsidiary’s operations and financial affairs given to it by its independent public accountants;
(dg) promptly after the sending or filing thereof, copies of each financial statement, report, notice or proxy statement sent by any Loan Party Borrower or any Subsidiary of a Loan Party to its stockholders or other equity holders, and copies of each regular, periodic or special report, registration statement or prospectus (including all Form 10 K, Form 10 Q and Form 8 K reports) filed by any Loan Party Borrower or any Subsidiary of a Loan Party with any securities exchangeexchange or the Securities and Exchange Commission or any successor agency;
(eh) [reserved];
(f) within ninety (90) days promptly after the end of each Fiscal Year of the Borrowerreceipt thereof, a copy of each audit made by any regulatory agency, including any Gaming Authority, of the Borrower’s operating budget books and projections for the following year including consolidated projections records of revenues, expenses and balance sheet on a quarter-by-quarter basis, with such operating budget and projections in reasonable detail prepared by Borrower and in form reasonably satisfactory to the Administrative Agent (which shall include a summary or any Gaming Subsidiary or of all significant assumptions made in preparing such projections);
(g) notice of any Change of Control;material noncompliance with any applicable law, regulation or guideline relating to Borrower or any Gaming Subsidiary, or its business; and
(hi) promptly after knowledge thereof shall have come to the attention of any Responsible Officer responsible officer of any Loan Party▇▇▇▇▇▇▇▇, written notice of (i) any threatened in writing or pending litigation or governmental or arbitration proceeding or labor controversy against any Loan Party Borrower or any Subsidiary of a Loan Party or any of their Property which, if adversely determined, could reasonably be expected to have a Material Adverse Effect, Effect or (ii) the occurrence of any Material Adverse Effect, (iii) the occurrence of any Default or (iv) any change in the information provided in the Beneficial Ownership Certification that would result in a change to the list Event of beneficial owners identified in of such certification;Default hereunder.
(i) on the Closing Date and with each 3.4 The Compliance Certificate attached as Schedule 1 of the financial statements delivered pursuant to subsections (a) (other than the last Fiscal Quarter of each Fiscal Year) Credit Agreement is hereby amended and (b) above, a compliance certificate (“Compliance Certificate”) restated in the form attached hereto as Exhibit F signed by a Financial Officer of the Borrower to the effect that to the best of such officer’s knowledge and belief no Default has occurred during the period covered by such statements or, if any such Default has occurred during such period, setting forth a description of such Default and specifying the action, if any, taken by the relevant Loan Party or its Subsidiary to remedy the same. Such certificate shall also set forth the calculations supporting such statements in respect of Section 8.22 (Financial Covenants); and
(j) on the Closing Date and with each of the financial statements delivered pursuant to subsections (a) (other than the last Fiscal Quarter of each Fiscal Year) and (b) above, a Borrowing Base Certificate showing the computation of the Borrowing Base Value, in reasonable detail as of the close of business on the last day of such Fiscal Quarter or Fiscal Year, as applicable, prepared by the Borrower and certified to by its chief financial officer or another officer of the Borrower reasonably acceptable to the Administrative Agent; and
(k) within a reasonable period of time following any such request therefor, from time to time, (i) such other information regarding the operations, business affairs and financial condition of any Loan Party or any Subsidiary of a Loan Party, or compliance entirety with the terms Compliance Certificate attached as Schedule 1 of any Loan Document, as the Administrative Agent or any Lender may reasonably request or (ii) information and documentation reasonably requested by the Administrative Agent or any Lender for purposes of compliance with applicable “know your customer” requirements under the Patriot Act or other applicable Anti-Corruption Laws and the Beneficial Ownership Regulation. Notwithstanding the foregoing, the filing of the Borrower’s financial statements with the U.S. Securities and Exchange Commission on Form 10-K or Form 10-Q shall satisfy the requirements of Section 8.5(a)(i) and (b), respectivelythis Amendment.
Appears in 1 contract
Sources: Loan Agreement (Galaxy Gaming, Inc.)
Financial Reports. The Loan Parties Borrower shall, and shall cause each of their Subsidiaries Subsidiary to, (x) maintain proper true and complete books of records record and accounts reasonably necessary to prepare financial statements required to be delivered pursuant to this Section 8.5 account, in which appropriate entries in conformity with GAAP in accordance with GAAP customary business practice shall be made; and shall, (y) furnish to the Administrative Agent such information respecting the business and financial condition of the Borrower and its Subsidiaries as the Administrative Agent may reasonably request; and (z) without any request, shall furnish to the Administrative Agent and each Lenderthe Lenders:
(a) as soon as available, and in any event no later than sixty (60) 45 days after the last day of each Fiscal Quarter the first three fiscal quarters of each Fiscal Year fiscal year of the Borrower, a copy of (i) the company-prepared consolidated balance sheets sheet of the Borrower and its Subsidiaries as of the last day of such Fiscal Quarter fiscal quarter and the related consolidated statements of operationscomprehensive income (loss), changes in equity (deficit) and cash flows of the Borrower and its Subsidiaries for the Fiscal Quarter fiscal quarter and for the Fiscal Yearfiscal year-to-date period then ended, each in reasonable detail and, if available, showing in comparative form the figures for the corresponding date and period in the previous Fiscal Yearfiscal year, prepared by the applicable party Borrower in accordance with GAAP (subject to the absence of footnote disclosures and year-end audit adjustments) and certified to by a Financial Officer its chief financial officer or another officer of the Borrower and (ii) operating statements, rent roll and accounts receivable aging for each Borrowing Base Propertyacceptable to the Administrative Agent;
(b) as soon as available, and in any event no later than one hundred twenty (120) 90 days after the last day of each Fiscal Year fiscal year of the Borrower, a copy of the consolidated balance sheets sheet of the Borrower and its Subsidiaries as of the last day of the Fiscal Year fiscal year then ended and the related consolidated statements of statements of operationscomprehensive income (loss), comprehensive lossstockholders’ equity, shareholders’ equity (deficit) and cash flows of the Borrower and its Subsidiaries for the Fiscal Year fiscal year then ended, and accompanying notes thereto, each in reasonable detail and, if available, showing in comparative form the figures for the previous Fiscal Yearfiscal year, accompanied by an opinion (without a “going concern” qualification or exception or qualification as to the scope of the audit, other than a “going concern” statement that is due to the impending maturity of this Agreement, the Bridge Facility, or any other Debt or due to the anticipated occurrence of the Revolving Credit Termination Date (as defined in the case Revolving Credit Agreement or any other Permanent Financing), in each case, in the following 12 months) of the consolidated financial statements by an unqualified opinion of BDO USA, P.C., Ernst & Young LLP or another firm of independent public accountants of recognized national standing, selected by ▇▇▇▇▇▇▇▇ and reasonably satisfactory the Borrower, to the Administrative Agenteffect that the consolidated financial statements have been prepared in accordance with GAAP and present fairly in all material respects in accordance with GAAP the consolidated financial condition of the Borrower and its Subsidiaries as of the close of such fiscal year and the results of their operations and cash Table of Contents flows for the fiscal year then ended and that an examination of such accounts in connection with such financial statements has been made in accordance with generally accepted auditing standards and, accordingly, such examination included such tests of the accounting records and such other auditing procedures as were considered necessary in the circumstances;
(c) [reserved];
(d) promptly after the sending or filing thereof, copies of each financial statement, report, notice or proxy statement sent by any Loan Party or any Subsidiary of a Loan Party to its stockholders or other equity holders, and copies of each regular, periodic or special report, registration statement or prospectus filed by any Loan Party or any Subsidiary of a Loan Party with any securities exchange;
(e) [reserved];
(f) within ninety (90) days after the end of each Fiscal Year of the Borrower, a copy of the Borrower’s operating budget and projections for the following year including consolidated projections of revenues, expenses and balance sheet on a quarter-by-quarter basis, with such operating budget and projections in reasonable detail prepared by Borrower and in form reasonably satisfactory to the Administrative Agent (which shall include a summary of all significant assumptions made in preparing such projections);
(g) notice of any Change of Control;
(hd) promptly after knowledge thereof shall have come to of the attention of any Responsible Officer of any Loan PartyBorrower, written notice of (i) any threatened or pending litigation or governmental or arbitration proceeding or labor controversy against any Loan Party the Borrower or any Subsidiary of a Loan Party or any of their Property which, if adversely determined, could would reasonably be expected to have a Material Adverse Effect, Effect or (ii) the occurrence of any Material Adverse Effect, (iii) the occurrence of any Default or (iv) any change in the information provided in the Beneficial Ownership Certification that would result in a change to the list Event of beneficial owners identified in of such certification;Default hereunder; and
(ie) on the Closing Date and with each of the financial statements delivered pursuant to subsections (a) (other than the last Fiscal Quarter of each Fiscal Year) and (b) above, a compliance written certificate (“Compliance Certificate”) in the form attached hereto as Exhibit F E signed by a Financial Officer the chief financial officer of the Borrower or another officer of the Borrower acceptable to the Administrative Agent to the effect that to the best no Default or Event of such officer’s knowledge and belief no Default has occurred during the period covered by such statements or, if any such Default or Event of Default has occurred during such period, setting forth a description of such Default or Event of Default and specifying the action, if any, taken by the relevant Loan Party Borrower or its any Subsidiary to remedy the same. Such certificate shall also set forth the calculations supporting such statements in respect of Section 8.22 (Financial Covenants); and
(j) on 8.20 hereof. Delivery within the Closing Date and with each of the financial statements delivered pursuant to subsections period specified above in clauses (a) (other than the last Fiscal Quarter of each Fiscal Year) and (b) of the Borrower’s quarterly report on Form 10-Q (with respect to clause (a)) or annual report on Form 10-K (with respect to clause (b)), in each case, prepared in compliance with the requirements therefor and filed with the Securities and Exchange Commission shall be deemed to have satisfied the requirements of clause (a) or (b) above, a Borrowing Base Certificate showing the computation of the Borrowing Base Value, in reasonable detail as of the close of business on the last day of applicable. The Borrower will be deemed to have made such Fiscal Quarter delivery if it has timely made such Form 10-Q or Fiscal Year10-K, as applicable, prepared available on “▇▇▇▇▇” and on its homepage on the worldwide web (at the date of this Agreement located at ▇▇▇.▇▇▇▇▇▇▇.▇▇▇) and shall have given the Administrative Agent prior notice (which shall contain an electronic link to the location on ▇▇▇▇▇ or the Borrower’s homepage on the worldwide web where such forms are located) of such availability on ▇▇▇▇▇ and on its home page in connection with each delivery. The Borrower may comply with the requirements of the other clauses of this Section 8.5 by the Borrower publishing such statements and certified to by reports on its chief financial officer internet web site or another officer accessible electronic database and giving the Administrative Agent notice (which shall contain an electronic link to the location on ▇▇▇▇▇ or the Borrower’s homepage on the worldwide web where such forms are located) thereof. The Borrower hereby acknowledges and agrees that (aA) the Administrative Agent and/or the Lead 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 reasonably acceptable hereunder (collectively, “Borrower Materials”) by posting the Borrower Materials on IntraLinks, Syndtrak, ClearPar, or a substantially similar electronic transmission system (thea “Platform”) and (bB) certain of the Lenders (each, a “Public Lender”) may have personnel who do not wish to receive material non- Table of Contents public information with respect to any of 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, (wC) all Borrower Materials that are to be made available to Public Lenders shall be clearly and conspicuously marked “PUBLIC” which, at a minimum, shall mean that the word “PUBLIC” shall appear prominently on the first page thereof;, (xD) by marking Borrower Materials “PUBLIC,” the Borrower shall be deemed to have authorized the Administrative Agent; and
(k) within a reasonable period , the Lead Arrangers and the Lenders to treat such Borrower Materials as not containing any material non-public information with respect to the Borrower or its securities for purposes of time following any United States Federalfederal and state securities laws (; provided, however, that to the extent such request thereforBorrower Materials constitute Information, from time to timethey shall be treated as set forth in Section 13.26);, (iyE) such other information regarding the operationsall Borrower Materials marked “PUBLIC” are permitted to be made available through a portion of thea Platform designated as “Public Side Information;”, business affairs and financial condition of any Loan Party or any Subsidiary of a Loan Party, or compliance with the terms of any Loan Document, as (zF) the Administrative Agent or any Lender may reasonably request or (ii) information and documentation reasonably requested by the Administrative Agent or any Lender for purposes of compliance with applicable “know your customer” requirements under the Patriot Act or other applicable Anti-Corruption Laws and the Beneficial Ownership Regulation. Lead Arrangers shall be entitled to treat any Borrower Materials that are not marked “PUBLIC” as being suitable only for posting on a portion of thea Platform not designated as “Public Side Information.” Notwithstanding the foregoing, the filing of the Borrower’s financial statements with the U.S. Securities and Exchange Commission on Form 10-K or Form 10-Q Borrower shall satisfy the requirements of Section 8.5(a)(i) and (b), respectivelynot be under any obligation to ▇▇▇▇ any Borrower Materials “PUBLIC.”
Appears in 1 contract
Sources: Credit Agreement (J M SMUCKER Co)
Financial Reports. The Loan Parties shall, and shall cause each of their Subsidiaries to, maintain proper books of records and accounts reasonably necessary to prepare financial statements required to be delivered pursuant to this Section 8.5 in accordance with GAAP and Parent shall furnish to Agent the Administrative Agent financial statements and each Lender:reports listed hereinafter (the “Financial Statements”):
(a) as soon as available, practicable (and in any event no later than sixty (60within 30 days) days after the last day of each Fiscal Quarter of each Fiscal Year of the Borrower, a copy of (i) the company-prepared consolidated balance sheets of Borrower and its Subsidiaries as of the last day of such Fiscal Quarter and the consolidated statements of operations, changes in equity (deficit) and cash flows of Borrower for the Fiscal Quarter and for the Fiscal Year-to-date period then ended, in reasonable detail and, if available, showing in comparative form the figures for the corresponding date and period in the previous Fiscal Year, prepared by the applicable party in accordance with GAAP (subject to the absence of footnote disclosures and year-end audit adjustments) and certified to by a Financial Officer of Borrower and (ii) operating statements, rent roll and accounts receivable aging for each Borrowing Base Property;
(b) as soon as available, and in any event no later than one hundred twenty (120) days after the last day of each Fiscal Year of the Borrower, a copy of the consolidated balance sheets of Borrower and its Subsidiaries as of the last day of the Fiscal Year then ended and the consolidated statements of statements of operations, comprehensive loss, shareholders’ equity (deficit) and cash flows of Borrower and its Subsidiaries for the Fiscal Year then ended, and accompanying notes thereto, each in reasonable detail and, if available, showing in comparative form the figures for the previous Fiscal Year, accompanied in the case of the consolidated financial statements by an unqualified opinion of BDO USA, P.C., or another firm of independent public accountants of recognized national standing, selected by ▇▇▇▇▇▇▇▇ and reasonably satisfactory to the Administrative Agent;
(c) [reserved];
(d) promptly after the sending or filing thereof, copies of each financial statement, report, notice or proxy statement sent by any Loan Party or any Subsidiary of a Loan Party to its stockholders or other equity holders, and copies of each regular, periodic or special report, registration statement or prospectus filed by any Loan Party or any Subsidiary of a Loan Party with any securities exchange;
(e) [reserved];
(f) within ninety (90) days after the end of each Fiscal Year calendar month, unaudited interim and year-to-date financial statements as of the Borrowerend of such month (prepared on a consolidated and consolidating basis, a copy of the Borrower’s operating budget and projections for the following year if applicable), including consolidated projections of revenues, expenses and balance sheet on and related statements of income accompanied by a quarter-by-quarter basis, with such operating budget and projections in reasonable detail prepared by Borrower and in form reasonably satisfactory to report detailing any material contingencies (including the Administrative Agent (which shall include a summary of all significant assumptions made in preparing such projections);
(g) notice commencement of any Change of Control;
(hmaterial litigation by or against Borrower) promptly after knowledge thereof shall have come to the attention of any Responsible Officer of any Loan Party, written notice of (i) any threatened or pending litigation or governmental or arbitration proceeding or labor controversy against any Loan Party or any Subsidiary of a Loan Party or any of their Property which, if adversely determined, other occurrence that could reasonably be expected to have a Material Adverse Effect, all certified by Parent’s Chief Executive Officer or Chief Financial Officer;
(iib) as soon as practicable (and in any event within 45 days) after the occurrence end of the last day of each of the first three fiscal quarters of each fiscal year, unaudited interim and year-to-date financial statements as of the end of such calendar quarter (prepared on a consolidated and consolidating basis, if applicable), including balance sheet and related statements of income and cash flows accompanied by a report detailing any material contingencies (including the commencement of any material litigation by or against Borrower) or any other occurrence that could reasonably be expected to have a Material Adverse Effect, (iii) the occurrence of any Default certified by Parent’s Chief Executive Officer or (iv) any change in the information provided in the Beneficial Ownership Certification that would result in a change to the list of beneficial owners identified in of such certification;
(i) on the Closing Date and with each of the financial statements delivered pursuant to subsections (a) (other than the last Fiscal Quarter of each Fiscal Year) and (b) above, a compliance certificate (“Compliance Certificate”) in the form attached hereto as Exhibit F signed by a Chief Financial Officer of the Borrower to the effect that they have been prepared in accordance with GAAP, except (i) for the absence of footnotes, and (ii) that they are subject to the best of such officer’s knowledge and belief no Default has occurred during the period covered by such statements or, if any such Default has occurred during such period, setting forth a description of such Default and specifying the action, if any, taken by the relevant Loan Party or its Subsidiary to remedy the same. Such certificate shall also set forth the calculations supporting such statements in respect of Section 8.22 (Financial Covenants); andnormal year-end adjustments;
(jc) on as soon as practicable (and in any event within ninety (90) days) after the Closing Date and with end of each of the fiscal year, unqualified audited financial statements delivered pursuant to subsections (a) (other than the last Fiscal Quarter of each Fiscal Year) and (b) above, a Borrowing Base Certificate showing the computation of the Borrowing Base Value, in reasonable detail as of the close of business on the last day end of such Fiscal Quarter year (prepared on a consolidated and consolidating basis, if applicable), including balance sheet and related statements of income and cash flows, and setting forth in comparative form the corresponding figures for the preceding fiscal year, certified by a firm of independent certified public accountants selected by Parent and reasonably acceptable to Agent (Agent hereby acknowledges that Ernst & Young LLP is an acceptable firm of independent certified public accountants);
(d) as soon as practicable (and in any event within 30 days) after the end of each month, a Compliance Certificate in the form of Exhibit F;
(e) promptly after the public distribution or Fiscal Yearfiling thereof, as applicablethe case may be, prepared copies of any proxy statements, financial statements or reports that Parent has made available to holders of its Common Stock and, within 30 days of the filing thereof, copies of any regular, periodic and special reports or registration statements that Parent files with the SEC or any governmental authority that may be substituted therefor, or any national securities exchange; provided, however, that the filing of any such proxy statements, financial statements, reports or registration statements with the SEC on E▇▇▇▇ shall be deemed to satisfy this requirement;
(f) promptly following each meeting of Parent’s board of directors, the following shall be made available for inspection by the Borrower Agent at Parent’s premises at reasonable times and certified upon reasonable notice: copies of presentation materials relating to by research, clinical development, regulatory activities, and commercial timelines that Parent provides to its chief financial officer directors in connection with meetings of such board of directors, provided that all in all cases Parent may exclude any information it deems necessary, in Parent’s sole discretion, including, but not limited to, materials related to executive compensation, confidential information, any attorney-client privileged information and any information that would raise a conflict of interest with Agent or another officer Lenders, and materials prepared exclusively for executive sessions of the independent directors and committees of such board of directors;
(g) any budget of the Borrower promptly following its approval by Borrower’s Board of Directors, as well as budgets, operating plans and other financial information reasonably acceptable to the Administrative requested by Agent; and
(kh) within a reasonable period of time following any such request therefor, from time to time, (i) such other information regarding the operations, business affairs and financial condition of any Loan Party immediate notice if Borrower or any Subsidiary of a Loan Partyhas knowledge that Borrower, or compliance with any Subsidiary or Affiliate of Borrower, is listed on the terms of any Loan Document, as the Administrative Agent or any Lender may reasonably request OFAC Lists or (iia) information is convicted on, (b) pleads nolo contendere to, (c) is indicted on, or (d) is arraigned and documentation reasonably requested held over on charges involving money laundering or predicate crimes to money laundering. Borrower shall not (without the consent of Agent, such consent not to be unreasonably withheld or delayed), make any change in its accounting policies or reporting practices, except as required by GAAP. If Borrower makes any change to its fiscal years or fiscal quarters, the Administrative Borrower shall promptly notify Agent of such change. As of the Closing Date, the fiscal year of Borrower ends on December 31. The executed Compliance Certificate may be sent via email to Agent at l▇▇▇▇@▇▇▇▇.▇▇▇, k▇▇▇▇▇▇▇▇@▇▇▇▇.▇▇▇, j▇▇▇▇▇▇@▇▇▇▇.▇▇▇ and j▇▇▇▇▇▇▇@▇▇▇▇.▇▇▇. All Financial Statements required to be delivered to Agent pursuant to clauses (a), (b) and (c) shall be sent via e-mail to f▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇@▇▇▇▇.▇▇▇ with a copy to l▇▇▇▇@▇▇▇▇.▇▇▇, k▇▇▇▇▇▇▇▇@▇▇▇▇.▇▇▇, j▇▇▇▇▇▇@▇▇▇▇.▇▇▇ and j▇▇▇▇▇▇▇@▇▇▇▇.▇▇▇; provided, that if e-mail is not available or any Lender for purposes of compliance with applicable “know your customer” requirements under the Patriot Act or other applicable Antisending such Financial Statements via e-Corruption Laws and the Beneficial Ownership Regulation. mail is not possible, they shall be faxed to Agent at: (▇▇▇) ▇▇▇-▇▇▇▇, attention Account Manager: Albireo Pharma, Inc. Notwithstanding the foregoing, documents required to be delivered pursuant to the filing of terms hereof (to the Borrower’s financial statements extent any such documents are included in materials otherwise filed with the U.S. Securities SEC or posted on the Parent’s website) may be delivered electronically and Exchange Commission if so delivered, shall be deemed to have been delivered on Form 10-K or Form 10-Q shall satisfy the requirements of Section 8.5(a)(i) and (b), respectivelydate on which Parent provides a link thereto to Agent.
Appears in 1 contract
Financial Reports. The Loan Parties shall, and shall cause each of their Subsidiaries to, maintain proper books of records and accounts reasonably necessary to prepare financial statements required to be delivered pursuant to this Section 8.5 in accordance with GAAP and shall furnish to the Administrative Agent and each Lender:
(a) as soon as available, and in any event no later than sixty thirty (6030) days after the last day of each Fiscal Quarter calendar month, a Borrowing Base Certificate showing the computation of the Borrowing Base in reasonable detail as of the close of business on the last day of such month, together with a detailed listing of Eligible Receivables included therein and other Receivables pledged to the Administrative Agent (including, without limitation Receivables not then constituting Eligible Receivables), a summary stratification of Eligible Receivables (including Eligible Receivables by current value, Eligible Receivables by original value, a summary of original term, a summary of remaining term, Eligible Receivables vintage summary, Eligible Receivables obligor industry summary, delinquency summary, Eligible Receivables yield summary, Eligible Receivables by lease/loan summary, and Eligible Receivables by the largest twenty-five (25) obligors), and a Receivables quality report (each in form and substance, and with such detail, as the Administrative Agent may reasonably require), in each case prepared by the Borrower and certified to by a Financial Officer of the Borrower;
(b) as soon as available, and in any event no later than forty-five (45) days after the last day of each Fiscal Year fiscal quarter of each fiscal year of the Borrower, a copy of (i) the company-prepared consolidated balance sheets sheet of Borrower the Loan Parties and its their Subsidiaries as of the last day of such Fiscal Quarter fiscal quarter and the consolidated statements of operations, changes in equity (deficit) income and cash flows retained earnings of Borrower the Loan Parties and their Subsidiaries for the Fiscal Quarter fiscal quarter and for the Fiscal Yearfiscal year-to-date period then ended, each in reasonable detail and, if available, showing in comparative form the figures for the corresponding date and period in the previous Fiscal Yearfiscal year, prepared by the applicable party Borrower in accordance with GAAP (subject to the absence of footnote disclosures and year-end audit adjustments) ), together with a report of the static pool cumulative gross defaults and static pool cumulative net losses prepared by the Borrower, each certified to by a Financial Officer of Borrower and (ii) operating statements, rent roll and accounts receivable aging for each Borrowing Base Propertythe Borrower;
(bc) as soon as available, and in any event no later than one hundred twenty (120) days after the last day of each Fiscal Year fiscal year of the Borrower, a copy of the consolidated balance sheets sheet of Borrower the Loan Parties and its their Subsidiaries as of the last day of the Fiscal Year fiscal year then ended and the consolidated statements of statements of operationsincome, comprehensive lossretained earnings, shareholders’ equity (deficit) and cash flows of Borrower the Loan Parties and its their Subsidiaries for the Fiscal Year fiscal year then ended, and accompanying notes thereto, each in reasonable detail and, if available, showing in comparative form the figures for the previous Fiscal Yearfiscal year, accompanied in the case of the consolidated financial statements by an unqualified opinion of BDO USA, P.C., ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP or another firm of independent public accountants of recognized national standing, selected by ▇▇▇▇▇▇▇▇ the Borrower and reasonably satisfactory to the Administrative Agent;
(c) [reserved], to the effect that the consolidated financial statements have been prepared in accordance with GAAP and present fairly in accordance with GAAP the consolidated financial condition of the Loan Parties and their Subsidiaries as of the close of such fiscal year and the results of their operations and cash flows for the fiscal year then ended;
(d) promptly after receipt thereof, any additional written reports, management letters or other detailed information contained in writing concerning significant aspects of any Loan Party’s or any of its Subsidiary’s operations and financial affairs given to it by its independent public accountants subject, in each case, to applicable confidentiality requirements and/or other similar restrictions on the sharing of information with third parties (provided the Loan Parties shall use commercially reasonable efforts to permit such materials to be shared with the Administrative Agent, the Lenders and their agents and representatives);
(e) promptly after the sending or filing thereof, copies of each financial statement, report, notice or proxy statement sent by any Loan Party or any Subsidiary of a Loan Party to its stockholders or other equity holders, and copies of each regular, periodic or special report, registration statement or prospectus (including all Form 10-K, Form 10-Q and Form 8-K reports) filed by any Loan Party or any Subsidiary of a Loan Party with any securities exchange;
(e) [reserved]exchange or the Securities and Exchange Commission or any successor agency;
(f) within ninety promptly after receipt thereof, a copy of each audit made by any regulatory agency of the books and records of any Loan Party or any Subsidiary of a Loan Party or of notice of any material noncompliance with any applicable law, regulation or guideline relating to any Loan Party or any Subsidiary of a Loan Party or their respective business subject, in each case, to applicable confidentiality requirements and/or other similar restrictions on the sharing of information with third parties (90provided the Loan Parties shall use commercially reasonable efforts to permit such materials to be shared with the Administrative Agent, the Lenders and their agents and representatives);
(g) as soon as available, and in any event no later than one hundred twenty (120) days after the end of each Fiscal Year fiscal year of the Borrower, a copy of the Borrower’s operating budget and projections consolidated business plan for the following year including Loan Parties and their Subsidiaries for the current fiscal year, such business plan to show the projected consolidated projections of revenues, expenses and balance sheet of the Loan Parties and their Subsidiaries on a quarter-by-quarter basis, with such operating budget and projections business plan to be in reasonable detail prepared by the Borrower and in form reasonably satisfactory to the Administrative Agent (which shall include a summary of all significant assumptions made in preparing such projectionsbusiness plan);
(gh) notice of any Change of Control;
(hi) promptly (and, in any event, within three (3) Business Days) after knowledge thereof shall have come to the attention of any Responsible Officer of any Loan Party, written notice of (i) any threatened or pending litigation or governmental or arbitration proceeding or labor controversy against any Loan Party or any Subsidiary of a Loan Party or any of their Property which, if adversely determined, could reasonably be expected to have a Material Adverse Effect, (ii) the occurrence of any Material Adverse Effect, (iii) the occurrence of any Default or Default, (iv) the outstanding balance of the Loans being in excess of the Borrowing Base at such time (which notice shall be accompanied by a current Borrowing Base Certificate), or (v) receipt of notice from the holder of any change in the information provided in the Beneficial Ownership Certification that would result in a change to the list of beneficial owners identified in Subordinated Debt of such certificationholder’s election to require the mandatory redemption or mandatory repayment of all or any part of the Subordinated Debt owed to it;
(ij) on promptly (and, in any event, within three (3) Business Days) after delivery or receipt thereof, copies of all notices (other than any periodic reports and routine notices) given to or by any Loan Party or any Subsidiary with respect to any “event of default,” “servicer termination event,” or “termination event” (or words of like import) pursuant to the Closing Date and purchase, financing or securitization documents relating to any Financing Subsidiary or of any “servicer default” under any servicing agreement entered into with respect to any Indebtedness of any Financing Subsidiary or of any Person terminating the Lockbox Intercreditor Agreement (or any agreement relating to the Lockbox Processing Procedures referred to therein) as to itself or its Property or collateral;
(k) with each of the financial statements delivered pursuant to subsections (a) (other than the last Fiscal Quarter of each Fiscal Yearb) and (bc) above, a compliance certificate (“Compliance Certificate”) in the form attached hereto as Exhibit F Certificate signed by a Financial Officer of the Borrower to the effect that to the best of such officer’s knowledge and belief no Default has occurred during the period covered by such statements or, if any such Default has occurred during such period, setting forth a description of such Default and specifying the action, if any, taken by the relevant Loan Party or its Subsidiary to remedy the same. Such certificate shall also set forth the calculations supporting such statements in respect of Section 8.22 8.25 (Financial Covenants); and
(jl) on the Closing Date and with each of the financial statements delivered pursuant to subsections (a) (other than the last Fiscal Quarter of each Fiscal Year) and (b) above, a Borrowing Base Certificate showing the computation of the Borrowing Base Value, in reasonable detail as of the close of business on the last day of such Fiscal Quarter or Fiscal Year, as applicable, prepared by the Borrower and certified to by its chief financial officer or another officer of the Borrower reasonably acceptable to the Administrative Agent; and
(k) within a reasonable period of time following any such request thereforpromptly, from time to time, (i) such other information regarding the operations, business affairs and financial condition of any Loan Party or any Subsidiary of a Loan Party, or compliance with the terms of any Loan Document, as the Administrative Agent or any Lender may reasonably request or (ii) information and documentation reasonably requested by the Administrative Agent or any Lender for purposes of compliance with applicable “know your customer” requirements under the Patriot Act or other applicable Anti-Corruption Laws and the Beneficial Ownership Regulation. Notwithstanding the foregoing, the filing of the Borrower’s financial statements with the U.S. Securities and Exchange Commission on Form 10-K or Form 10-Q shall satisfy the requirements of Section 8.5(a)(i) and (b), respectivelyrequest.
Appears in 1 contract
Financial Reports. The Loan Parties shall, and Concessionaire shall cause each of their Subsidiaries to, maintain proper books of records and accounts reasonably necessary to prepare financial statements required to be delivered pursuant to this Section 8.5 in accordance with GAAP and shall furnish deliver to the Administrative Agent and each Lender:
(a) as soon as available, and in any event Council no later than sixty 120 (60) days after the last day of each Fiscal Quarter of each Fiscal Year of the Borrower, a copy of (i) the company-prepared consolidated balance sheets of Borrower and its Subsidiaries as of the last day of such Fiscal Quarter and the consolidated statements of operations, changes in equity (deficit) and cash flows of Borrower for the Fiscal Quarter and for the Fiscal Year-to-date period then ended, in reasonable detail and, if available, showing in comparative form the figures for the corresponding date and period in the previous Fiscal Year, prepared by the applicable party in accordance with GAAP (subject to the absence of footnote disclosures and year-end audit adjustments) and certified to by a Financial Officer of Borrower and (ii) operating statements, rent roll and accounts receivable aging for each Borrowing Base Property;
(b) as soon as available, and in any event no later than one hundred twenty (120) days after the last day of each Fiscal Year of the Borrower, a copy of the consolidated balance sheets of Borrower and its Subsidiaries as of the last day of the Fiscal Year then ended and the consolidated statements of statements of operations, comprehensive loss, shareholders’ equity (deficit) and cash flows of Borrower and its Subsidiaries for the Fiscal Year then ended, and accompanying notes thereto, each in reasonable detail and, if available, showing in comparative form the figures for the previous Fiscal Year, accompanied in the case of the consolidated financial statements by an unqualified opinion of BDO USA, P.C., or another firm of independent public accountants of recognized national standing, selected by ▇▇▇▇▇▇▇▇ and reasonably satisfactory to the Administrative Agent;
(c) [reserved];
(d) promptly after the sending or filing thereof, copies of each financial statement, report, notice or proxy statement sent by any Loan Party or any Subsidiary of a Loan Party to its stockholders or other equity holders, and copies of each regular, periodic or special report, registration statement or prospectus filed by any Loan Party or any Subsidiary of a Loan Party with any securities exchange;
(e) [reserved];
(f) within ninety (90twenty) days after the end of each Fiscal Year financial year – 3 (three) copies of the BorrowerConcessionaire’s complete financial statements for each financial year (which are consistent with the books of accounts and prepared in accordance with generally accepted accounting standards), together with an audit report thereon; a copy of any audit letter, management letter or other communication sent by the Borrowerauditors to the Concessionaire’s operating financial statements, expressing a view as to the reasonableness of the systems, management and accounts. A list of insured values applicable to the Concession Assets. The Concessionaire shall deliver to the Council as soon as practicable, but in any event no later than 60 (sixty) days after the end of each quarterly period of each financial year, (except for the last quarterly period of each financial year)- management accounts in respect of the previous quarter; a report on any factors materially and adversely affecting or which might materially and adversely affect the Concessionaire’s business and operation or its financial condition; a list of each of its Lenders and creditors to which the Concessionaire owes a sum in excess of the equivalent of [AMOUNT AND CURRENCY] escalated by CPI including the amounts due to each of them; a statement identifying the capital costs, construction costs and operation and maintenance costs during the respective period. The Concessionaire shall deliver to the Council as soon as practicable, but in any event no later than 30 (thirty) days prior to the end of each financial year, the projected profit and loss account and the budget and projections for the following year including consolidated projections of revenuesyear, expenses and balance sheet on a quarter-by-quarter basis, together with such operating budget and projections in reasonable detail prepared by Borrower and in form reasonably satisfactory an analysis thereof. ANNEXURE X - DRAWDOWN PROCEDURE FOR EXISTING CONSUMER DEPOSITS The Concessionaire shall be entitled to the Administrative Agent (which shall include a summary of all significant assumptions made in preparing such projections);
(g) notice of any Change of Control;
(h) promptly after knowledge thereof shall have come to the attention of any Responsible Officer of any Loan Party, written notice of (i) any threatened or pending litigation or governmental or arbitration proceeding or labor controversy against any Loan Party or any Subsidiary of a Loan Party or any of their Property which, if adversely determined, could reasonably be expected to have a Material Adverse Effect, (ii) the occurrence of any Material Adverse Effect, (iii) the occurrence of any Default or (iv) any change in the information provided in the Beneficial Ownership Certification that would result in a change to the list of beneficial owners identified in of such certification;
(i) on the Closing Date and with each of the financial statements delivered pursuant to subsections (a) (other than the last Fiscal Quarter of each Fiscal Year) and (b) above, a compliance certificate (“Compliance Certificate”) in the form attached hereto as Exhibit F signed by a Financial Officer of the Borrower to the effect that to the best of such officer’s knowledge and belief no Default has occurred during the period covered by such statements or, if any such Default has occurred during such period, setting forth a description of such Default and specifying the action, if any, taken by the relevant Loan Party or its Subsidiary to remedy the same. Such certificate shall also set forth the calculations supporting such statements receive payment in respect of Section 8.22 (Financial Covenants); and
(j) on the Closing Date and with each failure or refusal of a Consumer to make timeous or full payment or to meet other conditions for the Supply of Water Services subject to the delivery to the Council of a certified copy of the financial statements delivered pursuant following – the invoice in respect of the Water Services as set out in [ ]; the letter of demand addressed to subsections (a) (other than the last Fiscal Quarter Consumer as set out in [ ]; notice advising the Consumer of each Fiscal Year) the cutting off of the Supply of Water Services as set out in [ ]; and (b) lapse of the prescribed periods as set out in [ ] and the amount due and payable by the Consumer default. On receipt of the documentation in paragraph 1 above, a Borrowing Base Certificate showing the computation Council shall within 24 (twenty four) hours of receipt of all the prescribed documentation instruct the Bank Manager of the Borrowing Base Value, in reasonable detail as [ ] Branch of [ ] to arrange for the amount due and payable by the Consumer to be electronically transferred to the account notified to the Bank Manager by the Concessionaire. The Bank Manager shall submit a monthly statement of account to both the Concessionaire and the Council indicating all transfers and the credit balance of the close of business on the last day of such Fiscal Quarter or Fiscal Year, as applicable, prepared account. ANNEXURE Y - RECOVERY PERFORMANCE CRITERIA SCHEDULE Performance criteria for billing and cash collection functions to be undertaken by the Borrower and certified to by its chief financial officer or another officer of the Borrower reasonably acceptable to the Administrative Agent; and
(k) within a reasonable period of time following any such request therefor, from time to time, (i) such other information regarding the operations, business affairs and financial condition of any Loan Party or any Subsidiary of a Loan Party, or compliance with the terms of any Loan Document, as the Administrative Agent or any Lender may reasonably request or (ii) information and documentation reasonably requested by the Administrative Agent or any Lender for purposes of compliance with applicable “know your customer” requirements under the Patriot Act or other applicable Anti-Corruption Laws and the Beneficial Ownership Regulation. Notwithstanding the foregoing, the filing of the Borrower’s financial statements with the U.S. Securities and Exchange Commission on Form 10-K or Form 10-Q shall satisfy the requirements of Section 8.5(a)(i) and (b), respectivelyCouncil.
Appears in 1 contract
Financial Reports. The Loan Parties Company shall, and shall cause each of their Subsidiaries Subsidiary to, maintain proper books a standard system of records and accounts reasonably necessary to prepare financial statements required to be delivered pursuant to this Section 8.5 accounting in accordance with GAAP GAAP. The Company and each Borrower shall furnish to the Administrative Agent, each Lender and each of their duly authorized representatives such information respecting the business and financial condition of the Company, the Borrowers and their respective Subsidiaries as the Administrative Agent or such Lender may reasonably request; and without any request, the Company and the Borrowers shall furnish to the Administrative Agent and each Lenderthe Lenders:
(a) as soon as available, and in any event no later than sixty (60) within 45 days after the last day close of each Fiscal Quarter fiscal quarter of each Fiscal Year fiscal year of the BorrowerCompany (or such shorter period as may be required by the SEC for filing quarterly reports with the SEC), a copy of (i) the company-prepared consolidated and consolidating balance sheets sheet of Borrower the Company and its Subsidiaries as of the last day of such Fiscal Quarter fiscal quarter and the consolidated and consolidating statements of operationsincome, changes in equity (deficit) retained earnings, and cash flows of Borrower the Company and its Subsidiaries for the Fiscal Quarter fiscal quarter and for the Fiscal Yearfiscal year-to-date period then ended, each in reasonable detail and, if available, showing in comparative form the figures for the corresponding date and period in the previous Fiscal Yearfiscal year, prepared by the applicable party Company in accordance with GAAP (subject to the absence of footnote disclosures and year-end audit adjustments) and certified to by a Financial Officer its chief financial officer or another officer of Borrower and (ii) operating statements, rent roll and accounts receivable aging for each Borrowing Base Propertythe Company acceptable to the Administrative Agent;
(b) as soon as available, and in any event no later than one hundred twenty (120) within 90 days after the last day close of each Fiscal Year fiscal year of the BorrowerCompany (or such shorter period as may be required by the SEC for filing annual reports with the SEC), a copy of the consolidated and consolidating balance sheets sheet of Borrower the Company and its Subsidiaries as of the last day of the Fiscal Year fiscal year then ended and the consolidated and consolidating statements of statements of operationsincome, comprehensive lossretained earnings, shareholders’ equity (deficit) and cash flows of Borrower the Company and its Subsidiaries for the Fiscal Year fiscal year then ended, and accompanying notes thereto, each in reasonable detail and, if available, showing in comparative form the figures for the previous Fiscal Yearfiscal year, accompanied in the case of the consolidated financial statements by an unqualified opinion of BDO USA, P.C., or another a firm of independent public accountants of recognized national standing, selected by ▇▇▇▇▇▇▇▇ the Company and reasonably satisfactory to the Administrative AgentAgent and the Required Lenders, to the effect that the financial statements have been prepared in accordance with GAAP and present fairly in accordance with GAAP the consolidated financial condition of the Company and its Subsidiaries as of the close of such fiscal year and the results of their operations and cash flows for the fiscal year then ended and that an examination of such accounts in connection with such financial statements has been made in accordance with generally accepted auditing standards and, accordingly, such examination included such tests of the accounting records and such other auditing procedures as were considered necessary in the circumstances;
(c) [reserved]within the period provided in subsection (b) above, the written statement of the accountants who certified the audit report thereby required that in the course of their audit they have obtained no knowledge of any Default or Event of Default, or, if such accountants have obtained knowledge of any such Default or Event of Default, they shall disclose in such statement the nature and period of the existence thereof;
(d) promptly after receipt thereof, any additional written reports, management letters or other detailed information contained in writing concerning significant aspects of the Company's or any Subsidiary's operations and financial affairs given to it by its independent public accountants;
(e) promptly after the sending or filing thereof, copies of each financial statement, report, notice or proxy statement sent by any Loan Party the Company or any Subsidiary of a Loan Party to its stockholders or other equity holders, and copies of each regular, periodic or special report, registration statement or prospectus (including all Form 10-K, Form 10-Q and Form 8-K reports) filed by any Loan Party the Company or any Subsidiary of a Loan Party with any securities exchange;
(e) [reserved]exchange or the SEC;
(f) promptly after receipt thereof, a copy of each audit made by any regulatory agency of the books and records of the Company or any Subsidiary or of notice of any material noncompliance with any applicable law, regulation or guideline relating to the Company or any Subsidiary, or its business;
(g) as soon as available, and in any event within ninety (90) 60 days after the end of each Fiscal Year fiscal year of the BorrowerCompany, a copy of the Borrower’s Company's consolidated and consolidating operating budget and projections for the following year including consolidated projections of revenuesfiscal year, expenses and balance sheet on a quarter-by-quarter basis, with such operating budget and projections in reasonable detail prepared by Borrower the Company and in form reasonably satisfactory to the Administrative Agent (which shall include a summary of all significant assumptions made in preparing such projectionsoperating budget);
(g) notice of any Change of Control;
(h) promptly after knowledge thereof shall have come to the attention of any Responsible Officer of any Loan Party, written notice of (i) any threatened or pending litigation or governmental or arbitration proceeding or labor controversy against any Loan Party or any Subsidiary of a Loan Party or any of their Property which, if adversely determined, could reasonably be expected to have a Material Adverse Effect, (ii) the occurrence of any Material Adverse Effect, (iii) the occurrence of any Default or (iv) any change in the information provided in the Beneficial Ownership Certification that would result in a change to the list of beneficial owners identified in of such certification;
(i) on the Closing Date and with each of the financial statements delivered pursuant to subsections (a) (other than the last Fiscal Quarter of each Fiscal Year) and (b) above, a compliance certificate (“Compliance Certificate”) in the form attached hereto as Exhibit F signed by a Financial Officer of the Borrower to the effect that to the best of such officer’s knowledge and belief no Default has occurred during the period covered by such statements or, if any such Default has occurred during such period, setting forth a description of such Default and specifying the action, if any, taken by the relevant Loan Party or its Subsidiary to remedy the same. Such certificate shall also set forth the calculations supporting such statements in respect of Section 8.22 (Financial Covenants); and
(j) on the Closing Date and with each of the financial statements delivered pursuant to subsections (a) (other than the last Fiscal Quarter of each Fiscal Year) and (b) above, a Borrowing Base Certificate showing the computation of the Borrowing Base Value, in reasonable detail as of the close of business on the last day of such Fiscal Quarter or Fiscal Year, as applicable, prepared by the Borrower and certified to by its chief financial officer or another officer of the Borrower reasonably acceptable to the Administrative Agent; and
(k) within a reasonable period of time following any such request therefor, from time to time, (i) such other information regarding the operations, business affairs and financial condition of any Loan Party or any Subsidiary of a Loan Party, or compliance with the terms of any Loan Document, as the Administrative Agent or any Lender may reasonably request or (ii) information and documentation reasonably requested by the Administrative Agent or any Lender for purposes of compliance with applicable “know your customer” requirements under the Patriot Act or other applicable Anti-Corruption Laws and the Beneficial Ownership Regulation. Notwithstanding the foregoing, the filing of the Borrower’s financial statements with the U.S. Securities and Exchange Commission on Form 10-K or Form 10-Q shall satisfy the requirements of Section 8.5(a)(i) and (b), respectively.
Appears in 1 contract
Financial Reports. The Loan Parties Holdings and the Borrower shall, and shall cause each of their Subsidiaries Borrower Subsidiary to, maintain proper books a standard system of records and accounts reasonably necessary to prepare financial statements required to be delivered pursuant to this Section 8.5 accounting in accordance with GAAP and shall furnish to the Administrative Agent, each Lender, and each of their duly authorized representatives such information respecting the business and financial condition of Holdings, the Borrower and each Borrower Subsidiary as the Administrative Agent or such Lender may reasonably request; and without any request, shall furnish to the Administrative Agent and each Lenderthe Lenders:
(a) (i) not less than weekly, calculated as of the last Business Day of the prior week and delivered no later than five (5) days after the end of such week, (ii) at the time of any Credit Event hereunder or upon the release of any Collateral, in the event that a Borrowing Base deficiency would result based on the most recently delivered Borrowing Base Certificate or based on decreases in the Borrowing Base since the most recently delivered Borrowing Base Certificate and (iii) upon the request by the Administrative Agent (on behalf of any Lender), a Borrowing Base Certificate showing the computation of the Borrowing Base in reasonable detail, together with related supporting documents, including a list of (A) counterparties indicating the amount of any outstanding transactions, including a summary of unhedged commodity positions, which shall in any event be consistent with the Credit and Collection Policy and the Market Risk Policy (B) any prepayments, including the amount thereof, made on commodities contracts permitted pursuant to Section 8.9(n), (C) Eligible Receivables indicating the amount (which, for foreign Eligible Receivables, shall be reported at the U.S. Dollar equivalent of such Eligible Receivables as reasonably determined by the Borrower) of such Eligible Receivables, the credit rating of the account debtor, the aging of such Eligible Receivables and whether any such Eligible Receivable has been discounted, in each case prepared by the Borrower and certified to by a Responsible Officer of the Borrower and (D) a schedule of all Repo Transactions for which the Loan Parties have the obligation or an unexpired option to repurchase, or the applicable Repo Provider has an unexpired option to require repurchase, the commodities or other Inventory subject thereto (the “Subject Commodities”) including, without limitation, the following details for each Repo Transaction: (i) type of Subject Commodities; (ii) quantity of Subject Commodities; (iii) purchase price paid by Repo Provider for the Subject Commodities; and (iv) whether under such transaction, (a) such Obligor has the obligation to repurchase, or Repo Provider has option to require the repurchase by such Obligor of, Subject Commodities of the same type and quantity or (b) such Obligor has only the option but not the obligation to repurchase Subject Commodities of the same type and quantity;
(b) as soon as available, and in any event no later than sixty thirty (6030) days after the last day of each Fiscal Quarter of each Fiscal Year of the Borrowercalendar month, a copy of (i) the companyyear-prepared to-date consolidated balance sheets sheet of the Borrower and its Subsidiaries as of the last day of such Fiscal Quarter calendar month and the consolidated statements statement of operations, changes in equity (deficit) income of the Borrower and cash flows of Borrower its Subsidiaries for the Fiscal Quarter and for the Fiscal Year-to-date period calendar month then ended, together with the corresponding consolidating financial statements reflecting the adjustments necessary to eliminate the accounts of Unrestricted Subsidiaries (if any) from such consolidated financial statements, each in reasonable detail and, if available, showing in comparative form the figures for the corresponding date and period in the previous Fiscal Yearfiscal year, prepared by the applicable party Borrower in accordance with GAAP (subject to the absence of footnote disclosures and year-end audit adjustments) and certified to by a Financial Officer its chief financial officer or another officer of the Borrower and (ii) operating statements, rent roll and accounts receivable aging for each Borrowing Base Propertyacceptable to the Administrative Agent;
(bc) as soon as available, and in any event no later than one hundred twenty forty-five (12045) days after the last day of each Fiscal Year fiscal quarter of the Borrowereach fiscal year of Holdings, a copy of the consolidated balance sheets sheet of Borrower Holdings and its Subsidiaries as of the last day of such fiscal quarter and the consolidated statements of income, retained earnings, and cash flows of Holdings and its Subsidiaries for the fiscal quarter and for the fiscal year-to-date period then ended, together with the corresponding consolidating financial statements reflecting the adjustments necessary to 1760912957 eliminate the accounts of Unrestricted Subsidiaries (if any) from such consolidated financial statements, each in reasonable detail showing in comparative form the figures for the corresponding date and period in the previous fiscal year, prepared by Holdings in accordance with GAAP (subject to the absence of footnote disclosures and year-end audit adjustments) and certified to by its chief financial officer or another officer of Holdings acceptable to the Administrative Agent;
(d) as soon as available, and in any event no later than ninety (90) days after the last day of each fiscal year of Holdings, a copy of the consolidated balance sheet of Holdings and its Subsidiaries as of the last day of the Fiscal Year fiscal year then ended and the consolidated statements of statements of operationsincome, comprehensive lossretained earnings, shareholders’ equity (deficit) and cash flows of Borrower Holdings and its Subsidiaries for the Fiscal Year fiscal year then ended, and accompanying notes thereto, together with the corresponding consolidating financial statements reflecting the adjustments necessary to eliminate the accounts of Unrestricted Subsidiaries (if any) from such consolidated financial statements, each in reasonable detail and, if available, showing in comparative form the figures for the previous Fiscal Yearfiscal year, accompanied in the case of the consolidated financial statements by an unqualified opinion (other than qualifications resulting from (x) the impending maturity of BDO USA, P.C., or another any Indebtedness and (y) any actual default under any financial covenant) of a firm of independent public accountants of recognized national standing, standing and selected by ▇▇▇▇▇▇▇▇ and reasonably satisfactory Holdings, to the Administrative Agenteffect that the consolidated financial statements have been prepared in accordance with GAAP and present fairly in accordance with GAAP the consolidated financial condition of Holdings and its Subsidiaries as of the close of such fiscal year and the results of their operations and cash flows for the fiscal year then ended and that an examination of such accounts in connection with such financial statements has been made in accordance with generally accepted auditing standards and, accordingly, such examination included such tests of the accounting records and such other auditing procedures as were considered necessary in the circumstances;
(ce) [reserved]promptly after receipt thereof, any additional written reports, management letters or other detailed information contained in writing in connection with the accounts or books of the Borrower or any Subsidiary, or any audit of any of them given to it by its independent public accountants;
(df) if requested by the Administrative Agent or any Lender, promptly after the sending or filing thereof, copies of each financial statement, report, notice or proxy statement sent by any Loan Party Holdings, the Borrower or any Borrower Subsidiary of a Loan Party to its stockholders or other equity holders, and copies of each regular, periodic or special report, registration statement or prospectus (including all Form 10-K, Form 10-Q and Form 8-K reports) filed by any Loan Party Holdings, the Borrower or any Borrower Subsidiary of a Loan Party with any securities exchangeexchange or the Securities and Exchange Commission or any successor agency;
(eg) [reserved]promptly after receipt thereof, a copy of each audit made by any regulatory agency of the books and records of Holdings, the Borrower or any Borrower Subsidiary or of notice of any material noncompliance with any applicable law, regulation or guideline relating to the Borrower or any Borrower Subsidiary or its business;
(fh) within ninety (90) days after at the end of each Fiscal Year of Business Day during which any Obligations are outstanding hereunder, the BorrowerBorrower shall, a copy of the Borrower’s operating budget and projections for the following year including consolidated projections of revenuesshall cause its Affiliates, expenses and balance sheet on a quarter-by-quarter basis, with such operating budget and projections in reasonable detail prepared by Borrower and in form reasonably satisfactory to deliver to the Administrative Agent (which shall include a summary daily mark-to-market reports of the Net Hedging Value of all significant assumptions made Hedging Agreements in preparing such projections)the Eligible Hedging Accounts;
(gi) notice of any Change of Control;
(hj) promptly after knowledge thereof shall have come to the attention of any Responsible Officer responsible officer of any Loan PartyHoldings, or the Borrower, written notice of (i) any threatened or pending 1760912957 litigation or governmental or arbitration proceeding or labor controversy against any Loan Party Holdings, the Borrower or any Borrower Subsidiary of a Loan Party or any of their Property which, if adversely determined, could reasonably be expected to have a Material Adverse Effect, ; (ii) the occurrence of any Material Adverse Effect, Default or Event of Default hereunder; or (iii) the occurrence of any event or the existence of any condition that could reasonably be expected to have a Material Adverse Effect;
(k) notice of the opening of any and all futures accounts in the name of or for the benefit of the Borrower or any Borrower Subsidiary and such notice shall include the name of the applicable broker and account number;
(l) as soon as available, and in any event no later than sixty (60) days after the end of each fiscal year of the Borrower, a copy of the consolidated and consolidating business plan for the Borrower and the Borrower Subsidiaries for the subsequent fiscal year, such business plan to show the projected consolidated and consolidating revenues, expenses and balance sheet of the Borrower and the Borrower Subsidiaries on a quarter-by-quarter basis, such business plan to be in reasonable detail prepared by the Borrower and in form satisfactory to the Administrative Agent (which shall include a summary of all assumptions made in preparing such business plan);
(m) as soon as available, the Borrower shall deliver an inspection report for each location that stores Qualified Commodities with a Market Value in excess of $5,000,000 at any time, provided, (i) each such location shall be inspected (and a report thereof shall be provided) at least once during any twelve month period, and (ii) each such inspection report shall be prepared by an independent third party acceptable to the Administrative Agent (including an inspection report provided the United States Department of Agriculture or any agriculture department of any State);
(n) as soon as available, and in any event not later than thirty (30) days after the end of each month, a written certificate in the form attached hereto as Exhibit D signed by the chief financial officer of the Borrower or another officer of the Borrower acceptable to the Administrative Agent to the effect that to the best of such officer’s knowledge and belief no Default or Event of Default has occurred during the period covered by such statements or, if any such Default or Event of Default has occurred during such period, setting forth a description of such Default or Event of Default and specifying the action, if any, taken by Holdings, the Borrower or any Borrower Subsidiary to remedy the same. Such certificate shall also set forth (ivi) the calculations supporting such statements in respect of Section 8.22 hereof and (ii) a list of all Unrestricted Subsidiaries, if any, or a certification as to any changes to such list since the delivery of the last such certificate;
(o) promptly upon the occurrence thereof, written notice of any change in the information provided in the Beneficial Ownership Certification that would result in a change to the list of beneficial owners identified in of such certification;
(i) on the Closing Date and with each of the financial statements delivered pursuant to subsections (a) (other than the last Fiscal Quarter of each Fiscal Year) and (b) above, a compliance certificate (“Compliance Certificate”) in the form attached hereto as Exhibit F signed by a Financial Officer of the Borrower to the effect that to the best of such officer’s knowledge and belief no Default has occurred during the period covered by such statements or, if any such Default has occurred during such period, setting forth a description of such Default and specifying the action, if any, taken by the relevant Loan Party or its Subsidiary to remedy the same. Such certificate shall also set forth the calculations supporting such statements in respect of Section 8.22 (Financial Covenants); and
(jp) on promptly after receipt thereof, any notices received under the Closing Date and with Food Security Act.
(q) Notwithstanding anything to the contrary in this Section 8.5, each of the financial statements delivered pursuant to subsections (a) (other than the last Fiscal Quarter of each Fiscal Year) Holdings and (b) above, a Borrowing Base Certificate showing the computation of the Borrowing Base Value, in reasonable detail as of the close of business on the last day of such Fiscal Quarter or Fiscal Year, as applicable, prepared by the Borrower and certified shall have no obligation to by its chief financial officer or another officer of the Borrower reasonably acceptable to the Administrative Agent; and
(k) within a reasonable period of time following disclose any such request therefor, from time to time, information (i) such other information regarding the operations, business affairs and financial condition of any Loan Party that is subject to attorney-client or any Subsidiary of a Loan Party, similar privilege or compliance with the terms of any Loan Document, as the Administrative Agent or any Lender may reasonably request constitutes attorney work product or (ii) information and documentation reasonably requested in respect of which disclosure is prohibited by the Administrative Agent applicable law or any Lender for purposes of compliance with applicable “know your customer” requirements under the Patriot Act or other applicable Anti-Corruption Laws and the Beneficial Ownership Regulation. Notwithstanding the foregoing, the filing of the Borrower’s financial statements with the U.S. Securities and Exchange Commission on Form 10-K or Form 10-Q shall satisfy the requirements of Section 8.5(a)(i) and (b), respectivelyconfidentiality agreement.
Appears in 1 contract
Sources: Credit Agreement (StoneX Group Inc.)
Financial Reports. The Loan Parties shallEquityholder shall furnish, and shall or cause each of their Subsidiaries to, maintain proper books of records and accounts reasonably necessary to prepare financial statements required to be delivered pursuant to this Section 8.5 in accordance with GAAP and shall furnish furnished, to the Administrative Agent and each LenderFacility Agent:
(ai) as soon as available, available and in any event no later than sixty (60) days after the last day of each Fiscal Quarter of each Fiscal Year of the Borrower, a copy of (i) the company-prepared consolidated balance sheets of Borrower and its Subsidiaries as of the last day of such Fiscal Quarter and the consolidated statements of operations, changes in equity (deficit) and cash flows of Borrower for the Fiscal Quarter and for the Fiscal Year-to-date period then ended, in reasonable detail and, if available, showing in comparative form the figures for the corresponding date and period in the previous Fiscal Year, prepared by the applicable party in accordance with GAAP (subject to the absence of footnote disclosures and year-end audit adjustments) and certified to by a Financial Officer of Borrower and (ii) operating statements, rent roll and accounts receivable aging for each Borrowing Base Property;
(b) as soon as available, and in any event no later than one hundred twenty (120) days after the last day of each Fiscal Year of the Borrower, a copy of the consolidated balance sheets of Borrower and its Subsidiaries as of the last day of the Fiscal Year then ended and the consolidated statements of statements of operations, comprehensive loss, shareholders’ equity (deficit) and cash flows of Borrower and its Subsidiaries for the Fiscal Year then ended, and accompanying notes thereto, each in reasonable detail and, if available, showing in comparative form the figures for the previous Fiscal Year, accompanied in the case of the consolidated financial statements by an unqualified opinion of BDO USA, P.C., or another firm of independent public accountants of recognized national standing, selected by ▇▇▇▇▇▇▇▇ and reasonably satisfactory to the Administrative Agent;
(c) [reserved];
(d) promptly after the sending or filing thereof, copies of each financial statement, report, notice or proxy statement sent by any Loan Party or any Subsidiary of a Loan Party to its stockholders or other equity holders, and copies of each regular, periodic or special report, registration statement or prospectus filed by any Loan Party or any Subsidiary of a Loan Party with any securities exchange;
(e) [reserved];
(f) within ninety (90) 120 days after the end of each Fiscal Year of the Borrowerfiscal year, a copy of the Borrower’s operating budget and projections audited consolidated financial statements for the following prior year including for the Equityholder and its consolidated projections Subsidiaries, certified by Independent Accountants (the report of revenues, expenses and balance sheet on a quarter-by-quarter basiswhich shall be unqualified), with all such operating budget financial statements being prepared in accordance with GAAP applied consistently throughout the period involved (except for changes in the application of GAAP approved by such accountants in accordance with GAAP and projections disclosed therein) (it being agreed that financial statements included in reasonable detail prepared by Borrower and in form reasonably satisfactory the Equityholder’s annual reports on Form 10-K for such fiscal year, as filed with the SEC, shall satisfy this Section 7.5(k)(i) with respect to such fiscal year so long as the Equityholder delivers such financial statements to the Administrative Facility Agent (which shall include a summary of all significant assumptions made in preparing such projectionswithin the time period required above);; and
(g) notice of any Change of Control;
(h) promptly after knowledge thereof shall have come to the attention of any Responsible Officer of any Loan Party, written notice of (i) any threatened or pending litigation or governmental or arbitration proceeding or labor controversy against any Loan Party or any Subsidiary of a Loan Party or any of their Property which, if adversely determined, could reasonably be expected to have a Material Adverse Effect, (ii) as soon as available and in any event within 60 days after the occurrence end of any Material Adverse Effect, (iii) the occurrence each fiscal quarter of any Default or (iv) any change in the information provided in the Beneficial Ownership Certification that would result in a change to the list of beneficial owners identified in of such certification;
(i) on the Closing Date and with each of the financial statements delivered pursuant to subsections (a) fiscal year (other than the last Fiscal Quarter fiscal quarter of each Fiscal Year) fiscal year), an unaudited consolidated balance sheet of the Equityholder and (b) aboveits consolidated Subsidiaries as of the end of such fiscal quarter, a compliance certificate (“Compliance Certificate”) in and the form attached hereto as Exhibit F signed unaudited consolidated statements of income, and of cash flow, of the Equityholder and its consolidated Subsidiaries for such fiscal quarter and for the period commencing at the end of the previous fiscal year and ending with the end of such fiscal quarter, certified by a Financial an Executive Officer of the Borrower Equityholder identifying such documents as being the documents described in this paragraph (ii) and stating that the information set forth therein fairly presents the financial condition of the Servicer and its consolidated Subsidiaries as of and for the periods then ended, subject to year-end adjustments and confirming that the effect that to Equityholder is in compliance with all financial covenants in the best of such officer’s knowledge and belief no Default has occurred during the period covered by such statements Transaction Documents (or, if any such Default has occurred during such periodthe Equityholder is not in compliance, setting forth a description of such Default and specifying the action, if any, taken by the relevant Loan Party or its Subsidiary to remedy the same. Such certificate shall also set forth the calculations supporting such statements in respect of Section 8.22 nature and status thereof) (Financial Covenants); and
(j) on the Closing Date and with each of the it being agreed that financial statements delivered pursuant to subsections (a) (other than included in the last Fiscal Quarter of each Fiscal Year) and (b) above, a Borrowing Base Certificate showing the computation of the Borrowing Base Value, in reasonable detail as of the close of business on the last day of such Fiscal Quarter or Fiscal Year, as applicable, prepared by the Borrower and certified to by its chief financial officer or another officer of the Borrower reasonably acceptable to the Administrative Agent; and
(k) within a reasonable period of time following any such request therefor, from time to time, (i) such other information regarding the operations, business affairs and financial condition of any Loan Party or any Subsidiary of a Loan Party, or compliance with the terms of any Loan Document, as the Administrative Agent or any Lender may reasonably request or (ii) information and documentation reasonably requested by the Administrative Agent or any Lender for purposes of compliance with applicable “know your customer” requirements under the Patriot Act or other applicable Anti-Corruption Laws and the Beneficial Ownership Regulation. Notwithstanding the foregoing, the filing of the BorrowerEquityholder’s financial statements with the U.S. Securities and Exchange Commission quarterly reports on Form 10-K or Form 10-Q for such fiscal quarter, as filed with the SEC, shall satisfy this Section 7.5(k)(ii) with respect to such fiscal quarter so long as the requirements of Section 8.5(a)(i) and (bEquityholder delivers such financial statements to the Facility Agent within the time period required above), respectively.
Appears in 1 contract
Sources: Loan Financing and Servicing Agreement (Vista Credit Strategic Lending Corp.)
Financial Reports. The Loan Parties Borrower shall, and shall cause each of their Subsidiaries Subsidiary to, maintain proper books a standard system of records and accounts reasonably necessary to prepare financial statements required to be delivered pursuant to this Section 8.5 accounting in accordance with GAAP and shall furnish to the Administrative Agent, each Lender and each of their duly authorized representatives such information respecting the business and financial condition of the Borrower and each Subsidiary as the Administrative Agent or such Lender may reasonably request; and without any request, shall furnish to the Administrative Agent and each Lenderthe Lenders the following:
(a) as soon as available, and in any event no later than sixty (60) within 45 days after the last day of each Fiscal Quarter Quarter, a Borrowing Base Certificate showing the computation of the Borrowing Base in reasonable detail as of the close of business on the last day of such Fiscal Quarter, prepared by the Borrower and certified to by its chief financial officer or another officer of the Borrower acceptable to the Administrative Agent;
(b) as soon as available, and in any event within 45 days after the close of each of the first three (3) Fiscal Quarters of each Fiscal Year of the Borrower, Borrower a copy of (i) the company-prepared consolidated balance sheets sheet of the Borrower and its Subsidiaries as of the last day of such Fiscal Quarter and the consolidated statements of operationsincome, changes in equity (deficit) and cash flows of the Borrower and its Subsidiaries for the Fiscal Quarter and for the Fiscal Yearfiscal year-to-date period then ended, each in reasonable detail and, if available, showing in comparative form the figures for the corresponding date and period in the previous Fiscal Yearfiscal year, prepared by the applicable party Borrower in accordance with GAAP (subject to the absence of footnote disclosures and year-end audit adjustments) and certified to by a Financial Officer its chief financial officer or another officer of the Borrower and acceptable to the Administrative Agent (ii) operating statements, rent roll and accounts receivable aging for each Borrowing Base Propertythe delivery of the Borrower's Form 10-Q shall satisfy this requirement);
(c) with each of the financial statements furnished to the Lenders pursuant to subsections (b) and (d) hereof, a written certificate ("Compliance Certificate") in the form attached hereto as Exhibit F signed by the chief financial officer of the Borrower or another officer of the Borrower acceptable to the Administrative Agent to the effect that to the best of such officer's knowledge and belief no Default or Event of Default has occurred during the period covered by such statements or, if any such Default or Event of Default has occurred during such period, setting forth a description of such Default or Event of Default and specifying the action, if any, taken by the Borrower or any Subsidiary to remedy the same. Such certificate shall also set forth the calculations supporting such statements in respect of Section 8.21 hereof; and
(d) as soon as available, and in any event no later than one hundred twenty (120) within 90 days after the last day close of each Fiscal Year fiscal year of the Borrower, a copy of the consolidated balance sheets sheet of the Borrower and its Subsidiaries as of the last day of the Fiscal Year fiscal year then ended and the consolidated statements of statements of operationsincome, comprehensive lossretained earnings, shareholders’ equity (deficit) and cash flows of the Borrower and its Subsidiaries for the Fiscal Year fiscal year then ended, and accompanying notes thereto, each in reasonable detail and, if available, showing in comparative form the figures for the previous Fiscal Yearfiscal year, accompanied in the case of the consolidated financial statements by an unqualified opinion of BDO USAErnst & Young, P.C., LLP or another firm of independent public accountants of recognized national standing, selected by ▇▇▇▇▇▇▇▇ the Borrower and reasonably satisfactory to the Administrative AgentAgent and the Required Lenders, to the effect that the consolidated financial statements have been prepared in accordance with GAAP and present fairly in accordance with GAAP the consolidated financial condition of the Borrower and its Subsidiaries as of the close of such fiscal year and the results of their operations and cash flows for the fiscal year then ended and that an examination of such accounts in connection with such financial statements has been made in accordance with generally accepted auditing standards and, accordingly, such examination included such tests of the accounting records and such other auditing procedures as were considered necessary in the circumstances (the delivery of the Borrower's Form 10-K shall satisfy this requirement);
(ce) [reserved]promptly after receipt thereof, any additional written reports, management letters or other detailed information contained in writing concerning significant aspects of the Borrower's or any Subsidiary's operations and financial affairs given to it by its independent public accountants;
(df) promptly after the sending or filing thereof, copies of each financial statement, report, notice or proxy statement sent by any Loan Party the Borrower or any Subsidiary of a Loan Party to its stockholders or other equity holders, and copies of each regular, periodic or special report, registration statement or prospectus (including all Form 10-K, Form 10-Q and Form 8-K reports) filed by any Loan Party the Borrower or any Subsidiary of a Loan Party with any securities exchangeexchange or the Securities and Exchange Commission or any successor agency;
(eg) [reserved];
(f) as soon as available, and in any event within ninety (90) 90 days after the end of each Fiscal Year fiscal year of the Borrower, a copy of the Borrower’s operating budget and projections for the following year including 's consolidated projections of revenues, expenses and balance sheet on a quarter-by-quarter basis, with such operating budget and projections in reasonable detail prepared by the Borrower and in form reasonably satisfactory to the Administrative Agent (which shall include a summary of all significant assumptions made in preparing such projectionsbusiness plan);
(gh) notice of any Change of Control;
(hi) promptly after knowledge thereof shall have come to the attention of any Responsible Officer responsible officer of any Loan Partythe Borrower, written notice of (i) any threatened or pending litigation or governmental or arbitration proceeding or labor controversy against any Loan Party the Borrower or any Subsidiary of a Loan Party or any of their Property which, if adversely determined, could reasonably be expected to have a Material Adverse Effect, (ii) the occurrence Effect or of any Material Adverse Effect, (iii) the occurrence of any Default or (iv) any change in the information provided in the Beneficial Ownership Certification that would result in a change to the list Event of beneficial owners identified in of such certificationDefault hereunder;
(ij) on within 45 days of the Closing Date and with end of each of the financial statements delivered pursuant to subsections (a) (other than first 3 Fiscal Quarters and within 90 days after the close of the last Fiscal Quarter of each Fiscal Yearthe year (i) a list of all newly formed or acquired Subsidiaries during such quarter (such list shall contain the information relative to such new Subsidiaries as set forth in Schedule 6.2 hereto); (ii) a list of newly executed Significant Leases or Qualified Ground Leases during such quarter (upon receipt of which Schedule 1.1 and/or Schedule 6.26 shall be deemed amended to include references to such Significant Lease and/or Qualified Ground Leases); (iii) a copy of any notice of a material default or any other material notice (including without limitation property condition reviews) received by the Borrower or any Guarantor from any ground lessor under a Qualified Ground Lease or a Lease during such quarter and (iv) a schedule showing for such quarter (a) any Significant Lease that was or is continuing to be in default with respect to monthly minimum rent payments in excess of 60 days, and (b) above, a compliance certificate (“Compliance Certificate”) any other Leases that in the form attached hereto as Exhibit F signed by a Financial Officer of aggregate generate more than $4,000,000 in annual contractual rents payable to the Borrower to the effect that to the best of such officer’s knowledge and belief no Default has occurred during the period covered by such statements or, if any such Default has occurred during such period, setting forth a description of such Default and specifying the action, if any, taken by the relevant Loan Party or its Subsidiary Subsidiaries that were or are continuing to remedy the same. Such certificate shall also set forth the calculations supporting such statements be in respect default for a period in excess of Section 8.22 (Financial Covenants); and
(j) 60 days on the Closing Date and with each of the financial statements delivered pursuant to subsections (a) (other than the last Fiscal Quarter of each Fiscal Year) and (b) above, a Borrowing Base Certificate showing the computation of the Borrowing Base Value, in reasonable detail as of the close of business on the last day of monthly minimum rent payments due under such Fiscal Quarter or Fiscal Year, as applicable, prepared by the Borrower and certified to by its chief financial officer or another officer of the Borrower reasonably acceptable to the Administrative AgentLeases; and
(k) within a reasonable period of time following any such request therefor, from time promptly after knowledge thereof shall have come to time, (i) such other information regarding the operations, business affairs and financial condition attention of any Loan Party or any Subsidiary of a Loan Party, or compliance with the terms of any Loan Document, as the Administrative Agent or any Lender may reasonably request or (ii) information and documentation reasonably requested by the Administrative Agent or any Lender for purposes of compliance with applicable “know your customer” requirements under the Patriot Act or other applicable Anti-Corruption Laws and the Beneficial Ownership Regulation. Notwithstanding the foregoing, the filing responsible officer of the Borrower’s financial statements with , written notice to each Lender if a Lease of any Property included in the U.S. Securities and Exchange Commission on Form 10-K or Form 10-Q shall satisfy the requirements of Section 8.5(a)(iBorrowing Base Value is more than thirty (30) and (b), respectivelydays past due.
Appears in 1 contract
Financial Reports. The Loan Parties Borrower shall, and shall cause each of their Subsidiaries Subsidiary to, maintain proper books a standard system of records and accounts reasonably necessary to prepare financial statements required to be delivered pursuant to this Section 8.5 accounting in accordance with GAAP and shall furnish to the Administrative Agent Agent, each Lender, the L/C Issuer and each Lenderof their duly authorized representatives such information respecting the business and financial condition of the Borrower and each Subsidiary as the Administrative Agent or such Lender may reasonably request; and without any request, shall furnish to the Administrative Agent for distribution to the Lenders and L/C Issuer:
(a) as soon as available, and in any event no later than sixty ninety (6090) days after the last day each Fiscal Year of the Borrower (commencing with the 2013 Fiscal Year), a copy of the consolidated and consolidating balance sheet of the Borrower and its Subsidiaries as of the last day of the Fiscal Year then ended and the consolidated and consolidating statements of income, retained earnings, and cash flows of the Borrower and its Subsidiaries for the Fiscal Year then ended, and accompanying notes thereto, each in reasonable detail showing in comparative form the figures for the previous Fiscal Year, accompanied by an unqualified opinion of independent public accountants of recognized national standing, selected by the Borrower and reasonably satisfactory to the Administrative Agent (the Administrative Agent hereby approving PFK O’Conn▇▇ ▇▇▇▇▇s, ▇▇▇ independent public accountants engaged by the Borrower as of the Closing Date), to the effect that the consolidated financial statements have been prepared in accordance with GAAP and present fairly in all material respects in accordance with GAAP the consolidated financial condition of the Borrower and its Subsidiaries as of the close of such Fiscal Year and the results of their operations and cash flows for the Fiscal Year then ended and that an examination of such accounts in connection with such financial statements has been made in accordance with generally accepted auditing standards and, accordingly, such examination included such tests of the accounting records and such other auditing procedures as were considered necessary in the circumstances;
(b) within the period provided in subsection (a) above, the written statement of the accountants who certified the audit report thereby required that in the course of their audit they have obtained no knowledge of any Default or Event of Default, or, if such accountants have obtained knowledge of any such Default or Event of Default, they shall disclose in such statement the nature and period of the existence thereof;
(c) as soon as available, and in any event no later than forty-five (45) days after the last day of each of the first three Fiscal Quarter Quarters of each Fiscal Year of the BorrowerBorrower (commencing with the Fiscal Quarter ending on June 30, 2013), a copy of (i) the company-prepared consolidated and consolidating balance sheets sheet of the Borrower and its Subsidiaries as of the last day of such Fiscal Quarter and the consolidated and consolidating statements of operationsincome, changes in equity (deficit) retained earnings, and cash flows of the Borrower and its Subsidiaries for the Fiscal Quarter and for the Fiscal Year-to-date period then ended, each in reasonable detail andshowing, if available, showing in comparative form form, the figures for the corresponding date and period in the previous Fiscal Year, prepared by the applicable party Borrower in accordance with GAAP (subject to the absence of footnote disclosures and year-end audit adjustments) and certified to by a Financial Officer its chief financial officer or another officer of the Borrower and (ii) operating statements, rent roll and accounts receivable aging for each Borrowing Base Propertyreasonably acceptable to the Administrative Agent;
(bd) as soon as available, and in any event no later than one hundred twenty within (120i) forty-five (45) days after the last day of each of the first three Fiscal Quarters of each Fiscal Year of (commencing with the BorrowerFiscal Quarter ending on June 30, a copy of the consolidated balance sheets of Borrower 2013) and its Subsidiaries as of (ii) ninety (90) days after the last day of the last Fiscal Quarter of each Fiscal Year then ended and (commencing with the consolidated statements 2013 Fiscal Year), a Borrowing Base Certificate showing the computation of statements of operations, comprehensive loss, shareholders’ equity (deficit) and cash flows of Borrower and its Subsidiaries for the Fiscal Year then ended, and accompanying notes thereto, each Borrowing Base in reasonable detail and, if available, showing in comparative form the figures for the previous Fiscal Year, accompanied in the case as of the consolidated close of business on the last day of such Fiscal Quarter, prepared by the Borrower and certified to by its chief financial statements by an unqualified opinion of BDO USA, P.C., officer or another firm officer of independent public accountants of recognized national standing, selected by ▇▇▇▇▇▇▇▇ and the Borrower reasonably satisfactory acceptable to the Administrative Agent;
(e) with each of the financial statements delivered pursuant to subsections (a) and (c) [reserved]above, a compliance certificate (“Compliance Certificate”) in the form attached hereto as Exhibit E signed by the chief financial officer of the Borrower or another officer of the Borrower reasonably acceptable to the Administrative Agent to the effect that to such officer’s knowledge and belief no Default or Event of Default has occurred during the period covered by such statements or, if any such Default or Event of Default has occurred during such period, setting forth a description of such Default or Event of Default and specifying the action, if any, taken or being taken by the Borrower or any Subsidiary to remedy the same. Such certificate shall also set forth the calculations supporting such statements in respect of Section 8.20 hereof;
(df) promptly after receipt thereof, any additional written reports, management letters or other detailed information contained in writing concerning significant aspects of the Borrower’s or any Subsidiary’s operations and financial affairs given to it by its independent public accountants;
(g) promptly after the sending or filing thereof, copies of each financial statement, report, notice or proxy statement sent by any Loan Party the Borrower or any Subsidiary of a Loan Party to its stockholders or other equity holders, and upon written request from the Administrative Agent, copies of each regular, periodic or special report, registration statement or prospectus (including all Form 10-K, Form 10-Q and Form 8-K reports) filed by any Loan Party the Borrower or any Subsidiary of a Loan Party with any securities exchangeexchange or the Securities and Exchange Commission or any successor agency;
(eh) [reserved]promptly after receipt thereof, a copy of each audit made by any regulatory agency of the books and records of the Borrower or any Subsidiary or of notice of any material noncompliance with any applicable Legal Requirements relating to the Borrower or any Subsidiary, or its business;
(fi) as soon as available, and in any event within ninety thirty (9030) days after the end of each Fiscal Year of the Borrower, a copy of the Borrower’s operating budget and projections for the following year including consolidated projections of revenues, expenses and balance sheet on a quarter-by-quarter basis, with such operating budget and projections in reasonable detail prepared by the Borrower and in form reasonably satisfactory to the Administrative Agent (which shall include a summary of all significant assumptions made in preparing such projectionsbudget);
(gj) notice of any Change of Control;
(hk) promptly after knowledge thereof shall have come to the attention of any Responsible Officer of any Loan Partythe Borrower obtaining knowledge thereof, written notice of (i) any threatened (in writing) or pending litigation or governmental or arbitration proceeding or labor controversy against any Loan Party the Borrower or any Subsidiary of a Loan Party or any of their Property which, if adversely determined, which could reasonably be expected to have a Material Adverse Effect, (ii) the occurrence of any other matter which could reasonably be expected to have a Material Adverse Effect, Effect or (iii) the occurrence of any Default or (iv) any change in the information provided in the Beneficial Ownership Certification that would result in a change to the list Event of beneficial owners identified in of such certificationDefault;
(il) on the Closing Date and with each of the financial statements delivered pursuant to subsections (a) (other than the last Fiscal Quarter of each Fiscal Year) and (bc) above, a compliance certificate (“Compliance Certificate”) in if there have been any changes to the form attached hereto as Exhibit F signed by a Financial Officer organizational chart of the Borrower to and the effect that to the best of such officer’s knowledge and belief no Default has occurred Subsidiaries during the period covered by such statements ormost recently ended Fiscal Quarter, if any such Default has occurred during such perioda revised organizational chart, setting forth together with a description summary of such Default and specifying the action, if any, taken by the relevant Loan Party or its Subsidiary to remedy the same. Such certificate shall also set forth the calculations supporting such statements in respect of Section 8.22 (Financial Covenants)changes; and
(jm) on promptly after the Closing Date and with each request of the financial statements delivered pursuant to subsections (a) (any Lender, any other than the last Fiscal Quarter of each Fiscal Year) and (b) above, information or report reasonably requested by a Borrowing Base Certificate showing the computation of the Borrowing Base Value, in reasonable detail as of the close of business on the last day of Lender provided that any such Fiscal Quarter requested information or Fiscal Year, as applicable, prepared report is available or can be generated by the Borrower and certified to by its chief financial officer or another officer of the Borrower reasonably acceptable using commercially reasonable efforts; provided, however, to the Administrative Agent; and
(k) within a reasonable period of time following any extent such request therefor, from time to time, (i) such other information regarding the operations, business affairs and financial condition of any Loan Party or any Subsidiary of a Loan Party, or compliance items set forth above are filed with the terms of any Loan Document, as the Administrative Agent or any Lender may reasonably request or (ii) information and documentation reasonably requested by the Administrative Agent or any Lender for purposes of compliance with applicable “know your customer” requirements under the Patriot Act or other applicable Anti-Corruption Laws and the Beneficial Ownership Regulation. Notwithstanding the foregoing, the filing of the Borrower’s financial statements with the U.S. Securities and Exchange Commission on Form 10-K or Form 10-Q otherwise are publicly available, the Borrower shall satisfy be deemed to have satisfied this covenant once it provides notice to the requirements Administrative Agent of Section 8.5(a)(i) and (b), respectivelysuch availability.
Appears in 1 contract
Financial Reports. The Loan Parties Borrower shall, and shall cause Parent and each of their Subsidiaries Subsidiary to, maintain proper books a standard system of records and accounts reasonably necessary to prepare financial statements required to be delivered pursuant to this Section 8.5 accounting in accordance with GAAP and shall furnish to the Administrative Agent Agent, each Lender, the L/C Issuer and each Lenderof their duly authorized representatives such information respecting the business and financial condition of the Borrower and each Subsidiary as the Administrative Agent or such Lender may reasonably request; and without any request, shall furnish to the Administrative Agent for distribution to the Lenders, and L/C Issuer:
(a) as soon as available, and in any event no later than sixty ninety (6090) days after the last day each fiscal year of Parent, a copy of the consolidated and consolidating balance sheet of Parent and its Subsidiaries as of the last day of the fiscal year then ended and the consolidated and consolidating statements of income, retained earnings, and cash flows of Parent and its Subsidiaries for the fiscal year then ended, and accompanying notes thereto, each in reasonable detail showing in comparative form the figures for the previous fiscal year, accompanied by an unqualified opinion of independent public accountants of recognized national standing, selected by Parent and reasonably satisfactory to the Administrative Agent, to the effect that the consolidated financial statements have been prepared in accordance with GAAP and present fairly in accordance with GAAP the consolidated financial condition of Parent and its Subsidiaries as of the close of such fiscal year and the results of their operations and cash flows for the fiscal year then ended and that an examination of such accounts in connection with such financial statements has been made in accordance with generally accepted auditing standards and, accordingly, such examination included such tests of the accounting records and such other auditing procedures as were considered necessary in the circumstances;
(b) within the period provided in subsection (a) above, the written statement of the accountants who certified the audit report thereby required that in the course of their audit they have obtained no knowledge of any Default or Event of Default, or, if such accountants have obtained knowledge of any such Default or Event of Default, they shall disclose in such statement the nature and period of the existence thereof;
(c) as soon as available, and in any event no later than forty-five (45) days after the last day of each Fiscal Quarter fiscal quarter of each Fiscal Year fiscal year of the BorrowerParent, a copy of (i) the company-prepared consolidated and consolidating balance sheets sheet of Borrower Parent and its Subsidiaries as of the last day of such Fiscal Quarter fiscal quarter and the consolidated and consolidating statements of operationsincome, changes in equity (deficit) retained earnings, and cash flows of Borrower Parent and its Subsidiaries for the Fiscal Quarter fiscal quarter and for the Fiscal Yearfiscal year-to-date period then ended, each in reasonable detail and, if available, showing in comparative form the figures for the corresponding date and period in the previous Fiscal Yearfiscal year, prepared by the applicable party Parent in accordance with GAAP (subject to the absence of footnote disclosures and year-end audit adjustments) and certified to by a Financial Officer its chief financial officer or another officer of Borrower and (ii) operating statements, rent roll and accounts receivable aging for each Borrowing Base PropertyParent reasonably acceptable to the Administrative Agent;
(bd) as soon as available, and in any event no later than one hundred twenty within forty-five (12045) days after the last day of each Fiscal Year of the Borrower, a copy of the consolidated balance sheets of Borrower and its Subsidiaries as of Quarter (or ninety (90) days after the last day of each Fiscal Year) a Borrowing Base Certificate showing the Fiscal Year then ended and computation of the consolidated statements of statements of operations, comprehensive loss, shareholders’ equity (deficit) and cash flows of Borrower and its Subsidiaries for the Fiscal Year then ended, and accompanying notes thereto, each Borrowing Base in reasonable detail and, if available, showing in comparative form the figures for the previous Fiscal Year, accompanied in the case as of the consolidated close of business on the last day of such fiscal quarter, prepared by Parent and certified to by its chief financial statements by an unqualified opinion of BDO USA, P.C., officer or another firm officer of independent public accountants of recognized national standing, selected by ▇▇▇▇▇▇▇▇ and reasonably satisfactory Parent acceptable to the Administrative Agent;
(ce) [reserved]with each of the financial statements delivered pursuant to subsections (a) and (b) above, a Compliance Certificate (“Compliance Certificate”) in the form attached hereto as Exhibit E signed by the chief financial officer of Parent or another officer of Parent reasonably acceptable to the Administrative Agent to the effect that to the best of such officer’s knowledge and belief no Default or Event of Default has occurred during the period covered by such statements or, if any such Default or Event of Default has occurred during such period, setting forth a description of such Default or Event of Default and specifying the action, if any, taken by the Borrower or any Subsidiary to remedy the same. Such certificate shall also set forth the calculations supporting such statements in respect of Section 8.20 hereof;
(df) promptly after receipt thereof, any additional written reports, management letters or other detailed information contained in writing concerning significant aspects of Parent’s or any Subsidiary’s operations and financial affairs given to it by its independent public accountants;
(g) promptly after the sending or filing thereof, copies of each financial statement, report, notice or proxy statement sent by any Loan Party Parent or any Subsidiary of a Loan Party to its stockholders or other equity holders, and upon written request from the Administrative Agent, copies of each regular, periodic or special report, registration statement or prospectus (including all Form 10-K, Form 10-Q and Form 8-K reports) filed by any Loan Party Parent or any Subsidiary of a Loan Party with any securities exchangeexchange or the Securities and Exchange Commission or any successor agency;
(eh) [reserved]promptly after receipt thereof, a copy of each audit made by any regulatory agency of the books and records of Parent or any Subsidiary or of notice of any material noncompliance with any applicable law, regulation or guideline relating to Parent or any Subsidiary, or their respective businesses;
(fi) as soon as available, and in any event within ninety thirty (9030) days after the end of each Fiscal Year fiscal year of the BorrowerParent, a copy of the BorrowerParent’s operating budget and projections for the following year including consolidated projections of revenues, expenses and balance sheet on a quarter-by-quarter basis, with such operating budget and projections in reasonable detail prepared by Borrower Parent and in form reasonably satisfactory to the Administrative Agent (which shall include a summary of all significant assumptions made in preparing such projectionsbudget);
(gj) notice of any Change of Control;
(hk) promptly after knowledge thereof shall have come to the attention of any Responsible Officer of any Loan PartyParent, written notice of (i) any threatened (in writing) or pending litigation or governmental or arbitration proceeding or labor controversy against any Loan Party Parent or any Subsidiary of a Loan Party or any of their Property which, if adversely determined, which could reasonably be expected to have a Material Adverse Effect, (ii) the occurrence of any matter which could reasonably be expected to have a Material Adverse Effect, (iii) the occurrence of any Default or Event of Default hereunder or (iv) any change in the information provided in the Beneficial Ownership Certification that would result in a change to the list of beneficial owners identified in of such certification;
(il) on within forty-five (45) days of the Closing Date and with end of each of the financial statements delivered pursuant to subsections first three (a3) (other than fiscal quarters and within 90 days after the close of the last Fiscal Quarter fiscal quarter of each Fiscal Yearthe year (i) a list of all newly formed or acquired Subsidiaries during such quarter (such list shall contain the information relative to such new Subsidiaries as set forth in Schedule 6.2 hereto); (ii) a list of newly executed Significant Leases during such quarter (upon receipt of which Schedule 6.25 shall be deemed amended to include references to such Significant Lease); (iii) a copy of any notice of a material default or any other material notice (including without limitation property condition reviews) received by the Borrower or any Guarantor from any ground lessor under a Significant Lease during such quarter and (biv) abovea schedule showing for such quarter (A) any Significant Lease that was or is continuing to be in default with respect to monthly contractual rent payments in excess of 60 days;
(m) promptly after knowledge thereof shall have come to the attention of any Responsible Officer of Parent, written notice to each Lender if amounts payable under a compliance certificate (“Compliance Certificate”) Lease of any Eligible Property or portion thereof included in the form attached hereto as Exhibit F signed by a Financial Officer of the Borrower to the effect that to the best of such officer’s knowledge and belief no Default has occurred during the period covered by such statements or, if any such Default has occurred during such period, setting forth a description of such Default and specifying the action, if any, taken by the relevant Loan Party or its Subsidiary to remedy the same. Such certificate shall also set forth the calculations supporting such statements in respect of Section 8.22 Borrowing Base Value is more than sixty (Financial Covenants)60) days past due; and
(jn) on promptly after the Closing Date and with each request of the financial statements delivered pursuant to subsections (a) (other than the last Fiscal Quarter of each Fiscal Year) and (b) aboveany Lender, a Borrowing Base Certificate showing the computation of the Borrowing Base Value, in reasonable detail as of the close of business on the last day of such Fiscal Quarter or Fiscal Year, as applicable, prepared by the Borrower and certified to by its chief financial officer or another officer of the Borrower reasonably acceptable to the Administrative Agent; and
(k) within a reasonable period of time following any such request therefor, from time to time, (i) such other information regarding the operations, business affairs and financial condition of any Loan Party or any Subsidiary of a Loan Party, or compliance with the terms of any Loan Document, as the Administrative Agent or any Lender may reasonably request or (ii) information and documentation report reasonably requested by a Lender. provided, however, to the Administrative Agent or any Lender for purposes of compliance with applicable “know your customer” requirements under the Patriot Act or other applicable Anti-Corruption Laws and the Beneficial Ownership Regulation. Notwithstanding the foregoing, the filing of the Borrower’s financial statements extent such items set forth above are filed with the U.S. Securities and Exchange Commission on Form 10-K or Form 10-Q otherwise are publicly available, the Borrower shall satisfy be deemed to have satisfied this covenant once it provides notice to the requirements Administrative Agent of Section 8.5(a)(i) and (b), respectivelysuch availability.
Appears in 1 contract
Sources: Credit Agreement (Alpine Income Property Trust, Inc.)
Financial Reports. The Loan Parties shallBorrower shall cause the Investment Manager to furnish, or cause to be furnished, to the Administrative Agent and each Agent:
(i) as soon as available, but in any event within 120 days after the end of each fiscal year of the Equityholder, a copy of the consolidated and consolidating balance sheet of the Equityholder and its consolidated Subsidiaries as at the end of such year, the related consolidated and consolidating statements of income for such year, and shall cause the related consolidated statements of changes in net assets and of cash flows for such year, setting forth in each of their Subsidiaries tocase in comparative form the figures for the previous year; provided, maintain proper books of records and accounts reasonably necessary to prepare that the financial statements required to be delivered pursuant to this Section 8.5 clause (i) which are made available via ▇▇▇▇▇, or any successor system of the Securities and Exchange Commission, in accordance with GAAP and the Equityholder’s annual report on Form 10-K, shall furnish be deemed delivered to the Administrative Agent and each Lender:Agent on the date such documents are made so available; and
(aii) as soon as available, available and in any event no later than sixty (60) days after the last day of each Fiscal Quarter of each Fiscal Year of the Borrower, a copy of (i) the company-prepared consolidated balance sheets of Borrower and its Subsidiaries as of the last day of such Fiscal Quarter and the consolidated statements of operations, changes in equity (deficit) and cash flows of Borrower for the Fiscal Quarter and for the Fiscal Year-to-date period then ended, in reasonable detail and, if available, showing in comparative form the figures for the corresponding date and period in the previous Fiscal Year, prepared by the applicable party in accordance with GAAP (subject to the absence of footnote disclosures and year-end audit adjustments) and certified to by a Financial Officer of Borrower and (ii) operating statements, rent roll and accounts receivable aging for each Borrowing Base Property;
(b) as soon as available, and in any event no later than one hundred twenty (120) days after the last day of each Fiscal Year of the Borrower, a copy of the consolidated balance sheets of Borrower and its Subsidiaries as of the last day of the Fiscal Year then ended and the consolidated statements of statements of operations, comprehensive loss, shareholders’ equity (deficit) and cash flows of Borrower and its Subsidiaries for the Fiscal Year then ended, and accompanying notes thereto, each in reasonable detail and, if available, showing in comparative form the figures for the previous Fiscal Year, accompanied in the case of the consolidated financial statements by an unqualified opinion of BDO USA, P.C., or another firm of independent public accountants of recognized national standing, selected by ▇▇▇▇▇▇▇▇ and reasonably satisfactory to the Administrative Agent;
(c) [reserved];
(d) promptly after the sending or filing thereof, copies of each financial statement, report, notice or proxy statement sent by any Loan Party or any Subsidiary of a Loan Party to its stockholders or other equity holders, and copies of each regular, periodic or special report, registration statement or prospectus filed by any Loan Party or any Subsidiary of a Loan Party with any securities exchange;
(e) [reserved];
(f) within ninety (90) 45 days after the end of each Fiscal Year fiscal quarter of the Borrower, a copy of the Borrower’s operating budget and projections for the following each fiscal year including consolidated projections of revenues, expenses and balance sheet on a quarter-by-quarter basis, with such operating budget and projections in reasonable detail prepared by Borrower and in form reasonably satisfactory to the Administrative Agent (which shall include a summary of all significant assumptions made in preparing such projections);
(g) notice of any Change of Control;
(h) promptly after knowledge thereof shall have come to the attention of any Responsible Officer of any Loan Party, written notice of (i) any threatened or pending litigation or governmental or arbitration proceeding or labor controversy against any Loan Party or any Subsidiary of a Loan Party or any of their Property which, if adversely determined, could reasonably be expected to have a Material Adverse Effect, (ii) the occurrence of any Material Adverse Effect, (iii) the occurrence of any Default or (iv) any change in the information provided in the Beneficial Ownership Certification that would result in a change to the list of beneficial owners identified in of such certification;
(i) on the Closing Date and with each of the financial statements delivered pursuant to subsections (a) (other than the last Fiscal Quarter fiscal quarter of each Fiscal Year) fiscal year), an unaudited consolidated and (b) above, a compliance certificate (“Compliance Certificate”) in the form attached hereto as Exhibit F signed by a Financial Officer consolidating balance sheet of the Borrower to Equityholder and its consolidated Subsidiaries as of the effect that to the best end of such officer’s knowledge fiscal quarter and belief no Default has occurred during including the prior comparable period (if any), and the unaudited consolidated and consolidating statements of income of the Equityholder and its consolidated Subsidiaries for such fiscal quarter and for the period covered by such statements or, if any such Default has occurred during such period, setting forth a description commencing at the end of the previous fiscal year and ending with the end of such Default fiscal quarter, and specifying the actionunaudited consolidated statements of cash flows of the Equityholder and its consolidated Subsidiaries for the period commencing at the end of the previous fiscal year and ending with the end of such fiscal quarter; provided, if any, taken by the relevant Loan Party or its Subsidiary to remedy the same. Such certificate shall also set forth the calculations supporting such statements in respect of Section 8.22 (Financial Covenants); and
(j) on the Closing Date and with each of that the financial statements required to be delivered pursuant to subsections (a) (other than the last Fiscal Quarter of each Fiscal Year) and (b) above, a Borrowing Base Certificate showing the computation of the Borrowing Base Value, in reasonable detail as of the close of business on the last day of such Fiscal Quarter or Fiscal Year, as applicable, prepared by the Borrower and certified to by its chief financial officer or another officer of the Borrower reasonably acceptable to the Administrative Agent; and
(k) within a reasonable period of time following any such request therefor, from time to time, (i) such other information regarding the operations, business affairs and financial condition of any Loan Party or any Subsidiary of a Loan Party, or compliance with the terms of any Loan Document, as the Administrative Agent or any Lender may reasonably request or this clause (ii) information and documentation reasonably requested by the Administrative Agent which are made available via ▇▇▇▇▇, or any Lender for purposes of compliance with applicable “know your customer” requirements under the Patriot Act or other applicable Anti-Corruption Laws and the Beneficial Ownership Regulation. Notwithstanding the foregoing, the filing successor system of the Borrower’s financial statements with the U.S. Securities and Exchange Commission Commission, in the Equityholder’s quarterly report on Form 10-K or Form 10-Q Q, shall satisfy be deemed delivered to the requirements of Section 8.5(a)(i) Administrative Agent and (b), respectivelyeach Agent on the satedate such documents are made so available.
Appears in 1 contract
Sources: Loan Financing and Servicing Agreement (FS Investment Corp III)
Financial Reports. The Loan Parties Borrower shall, and shall cause each of their Subsidiaries Subsidiary to, maintain proper books a standard system of records and accounts reasonably necessary to prepare financial statements required to be delivered pursuant to this Section 8.5 accounting in accordance with GAAP and shall furnish to the Administrative Agent Agent, and each LenderLender such information respecting the business and financial condition of the Borrower and each Subsidiary as the Administrative Agent or such Lender may reasonably request; and without any request, shall furnish to the Administrative Agent, and the Lenders:
(a) as soon as available, and in any event no later than sixty forty-five (6045) days after the last day of each Fiscal Quarter fiscal quarter of each Fiscal Year fiscal year of the Borrower, a copy of (i) the company-prepared consolidated and consolidating balance sheets sheet of the Borrower and its Subsidiaries as of the last day of such Fiscal Quarter fiscal quarter and the consolidated and consolidating statements of operationsincome, changes in equity (deficit) retained earnings, and cash flows of the Borrower and its Subsidiaries for the Fiscal Quarter fiscal quarter and for the Fiscal Yearfiscal year-to-date period then ended, each in reasonable detail and, if available, showing in comparative form the figures for the corresponding date and period in the previous Fiscal Yearfiscal year, prepared by the applicable party Borrower in accordance with GAAP (subject to the absence of footnote disclosures and year-end audit adjustments) and certified to by a Financial Officer its chief financial officer or another officer of the Borrower and (ii) operating statements, rent roll and accounts receivable aging for each Borrowing Base Propertyacceptable to the Administrative Agent;
(b) as soon as available, and in any event no later than one hundred twenty ninety (12090) days after the last day of each Fiscal Year fiscal year of the Borrower, a copy of the consolidated and consolidating balance sheets sheet of the Borrower and its Subsidiaries as of the last day of the Fiscal Year fiscal year then ended and the consolidated and consolidating statements of statements of operationsincome, comprehensive lossretained earnings, shareholders’ equity (deficit) and cash flows of the Borrower and its Subsidiaries for the Fiscal Year fiscal year then ended, and accompanying notes thereto, each in reasonable detail and, if available, showing in comparative form the figures for the previous Fiscal Yearfiscal year, accompanied in the case of the consolidated financial statements by an unqualified opinion of BDO USA, P.C., KPMG LLP or another firm of independent public accountants of recognized national standing, selected by ▇▇▇▇▇▇▇▇ the Borrower and reasonably satisfactory to the Administrative AgentAgent and the Required Lenders, to the effect that the consolidated financial statements have been prepared in accordance with GAAP and present fairly in accordance with GAAP the consolidated financial condition of the Borrower and its Subsidiaries as of the close of such fiscal year and the results of their operations and cash flows for the fiscal year then ended and that an examination of such accounts in connection with such financial statements has been made in accordance with generally accepted auditing standards and, accordingly, such examination included such tests of the accounting records and such other auditing procedures as were considered necessary in the circumstances;
(c) [reserved]within the period provided in subsection (b) above, the written statement of the accountants who certified the audit report thereby required that in the course of their audit they have obtained no knowledge of any Default or Event of Default, or, if such accountants have obtained knowledge of any such Default or Event of Default, they shall disclose in such statement the nature and period of the existence thereof;
(d) promptly after receipt thereof, any additional written reports, management letters or other detailed information contained in writing concerning significant aspects of the Borrower’s or any Subsidiary’s operations and financial affairs given to it by its independent public accountants;
(e) promptly after the sending or filing thereof, copies of each financial statement, report, notice or proxy statement sent by any Loan Party the Borrower or any Subsidiary of a Loan Party to its stockholders or other equity holders, and copies of each regular, periodic or special report, registration statement or prospectus (including all Form 10-K, Form 10-Q and Form 8-K reports) filed by any Loan Party the Borrower or any Subsidiary of a Loan Party with any securities exchange;
(e) [reserved]exchange or the Securities and Exchange Commission or any successor agency;
(f) within ninety promptly after receipt thereof, a copy of each audit made by any regulatory agency of the books and records of the Borrower or any Subsidiary or of notice of any material noncompliance with any applicable law, regulation or guideline relating to the Borrower or any Subsidiary, or its business;
(90g) as soon as available, and in any event no later than thirty (30) days after the end beginning of each Fiscal Year fiscal year of the Borrower, a copy of the Borrower’s operating budget consolidated and projections consolidating business plan for such fiscal year, such business plan to show the following year including Borrower’s projected consolidated projections of and consolidating revenues, expenses and balance sheet on a quarter-by-quarter basis, with such operating budget and projections business plan to be in reasonable detail prepared by the Borrower and in form reasonably satisfactory to the Administrative Agent and the Required Lenders (which shall include a summary of all significant assumptions made in preparing such projectionsbusiness plan);
(gh) notice of any Change of Control;
(hi) promptly after knowledge thereof shall have come to the attention of any Responsible Officer responsible officer of any Loan Partythe Borrower, written notice of (i) any threatened or pending litigation or governmental or arbitration proceeding or labor controversy against any Loan Party the Borrower or any Subsidiary of a Loan Party or any of their Property which, if adversely determined, could reasonably be expected to have a Material Adverse Effect, ; (ii) the occurrence of any Default or Event of Default hereunder; or (iii) any condition exists or the occurrence of an event that would reasonably be expected to have a Material Adverse Effect, (iii) the occurrence of any Default or (iv) any change in the information provided in the Beneficial Ownership Certification that would result in a change to the list of beneficial owners identified in of such certification;; and
(ij) on the Closing Date and with each of the financial statements delivered pursuant to subsections (a) (other than the last Fiscal Quarter of each Fiscal Year) and (b) above, a compliance written certificate (“Compliance Certificate”) in the form attached hereto as Exhibit F C signed by a Financial Officer the chief financial officer of the Borrower or another officer of the Borrower acceptable to the Administrative Agent to the effect that to the best of such officer’s knowledge and belief no Default or Event of Default has occurred during the period covered by such statements or, if any such Default or Event of Default has occurred during such period, setting forth a description of such Default or Event of Default and specifying the action, if any, taken by the relevant Loan Party Borrower or its any Subsidiary to remedy the same. Such certificate shall also set forth the calculations supporting such statements in respect of Section 8.22 (Financial Covenants); and
(j) on the Closing Date and with each of the financial statements delivered pursuant to subsections (a) (other than the last Fiscal Quarter of each Fiscal Year) and (b) above, a Borrowing Base Certificate showing the computation of the Borrowing Base Value, in reasonable detail as of the close of business on the last day of such Fiscal Quarter or Fiscal Year, as applicable, prepared by the Borrower and certified to by its chief financial officer or another officer of the Borrower reasonably acceptable to the Administrative Agent; and
(k) within a reasonable period of time following any such request therefor, from time to time, (i) such other information regarding the operations, business affairs and financial condition of any Loan Party or any Subsidiary of a Loan Party, or compliance with the terms of any Loan Document, as the Administrative Agent or any Lender may reasonably request or (ii) information and documentation reasonably requested by the Administrative Agent or any Lender for purposes of compliance with applicable “know your customer” requirements under the Patriot Act or other applicable Anti-Corruption Laws and the Beneficial Ownership Regulation. Notwithstanding the foregoing, the filing of the Borrower’s financial statements with the U.S. Securities and Exchange Commission on Form 10-K or Form 10-Q shall satisfy the requirements of Section 8.5(a)(i) and (b), respectivelyhereof.
Appears in 1 contract
Financial Reports. The Loan Parties Holdings and the Borrower shall, and shall cause each of their Subsidiaries Borrower Subsidiary to, maintain proper books a standard system of records and accounts reasonably necessary to prepare financial statements required to be delivered pursuant to this Section 8.5 accounting in accordance with GAAP and shall furnish to the Administrative Agent, each Lender, and each of their duly authorized representatives such information respecting the business and financial condition of Holdings, the Borrower and each Borrower Subsidiary as the Administrative Agent or such Lender may reasonably request; and without any request, shall furnish to the Administrative Agent and each Lenderthe Lenders:
(a) as soon as available, and in any event no later than sixty (60) 30 days after the last day of each Fiscal Quarter calendar month, a listing of all Sellers with the amount outstanding under the applicable Repurchase Agreement or Loan Receivable together with the Borrower's internal risk rating relating to such Sellers, in each case prepared by the Borrower as of the end of and for such period and certified to by its chief financial officer or another officer of the Borrower acceptable to the Administrative Agent;
(b) as soon as available, and in any event no later than 45 days after the last day of each Fiscal Year fiscal quarter of each fiscal year of the Borrower, a copy of (i) the company-prepared consolidated balance sheets sheet of the Borrower and its the Borrower Subsidiaries as of the last day of such Fiscal Quarter fiscal quarter and the consolidated statements of operations, changes in equity (deficit) income of the Borrower and cash flows of the Borrower Subsidiaries for the Fiscal Quarter fiscal quarter and for the Fiscal Yearfiscal year-to-date period then ended, each in reasonable detail and, if available, showing in comparative form the figures for the corresponding date and period in the previous Fiscal Yearfiscal year, prepared by the applicable party Borrower in accordance with GAAP (subject to the absence of footnote disclosures and year-end audit adjustments) and certified to by a Financial Officer its chief financial officer or another officer of the Borrower and (ii) operating statements, rent roll and accounts receivable aging for each Borrowing Base Propertyacceptable to the Administrative Agent;
(bc) as soon as available, and in any event no later than one hundred twenty (120) 45 days after the last day of each Fiscal Year fiscal quarter of the Borrowereach fiscal year of Holdings, a copy of the consolidated balance sheets sheet of Borrower Holdings and its Subsidiaries as of the last day of such fiscal quarter and the consolidated statements of income, retained earnings, and cash flows of Holdings and its Subsidiaries for the fiscal quarter and for the fiscal year-to-date period then ended, each in reasonable detail showing in comparative form the figures for the corresponding date and period in the previous fiscal year, prepared by Holdings in accordance with GAAP (subject to the absence of footnote disclosures and year-end audit adjustments) and certified to by its chief financial officer or another officer of Holdings acceptable to the Administrative Agent;
(d) as soon as available, and in any event no later than 90 days after the last day of each fiscal year of Holdings, a copy of the consolidated balance sheet of Holdings and its Subsidiaries as of the last day of the Fiscal Year fiscal year then ended and the consolidated statements of statements of operationsincome, comprehensive lossretained earnings, shareholders’ equity (deficit) and cash flows of Borrower Holdings and its Subsidiaries for the Fiscal Year fiscal year then ended, and accompanying notes thereto, each in reasonable detail and, if available, showing in comparative form the figures for the previous Fiscal Yearfiscal year, accompanied in the case of the consolidated financial statements by an unqualified opinion of BDO USA, P.C., or another a firm of independent public accountants of recognized national standing, selected by ▇▇▇▇▇▇▇▇ Holdings and reasonably satisfactory to the Administrative AgentAgent and the Required Lenders, to the effect that the consolidated financial statements have been prepared in accordance with GAAP and present fairly in accordance with GAAP the consolidated financial condition of Holdings and its Subsidiaries as of the close of such fiscal year and the results of their operations and cash flows for the fiscal year then ended and that an examination of such accounts in connection with such financial statements has been made in accordance with generally accepted auditing standards and, accordingly, such examination included such tests of the accounting records and such other auditing procedures as were considered necessary in the circumstances;
(ce) [reserved]promptly after receipt thereof, any additional written reports, management letters or other detailed information contained in writing concerning significant aspects of Holdings, the Borrower's or any Borrower Subsidiary's operations and financial affairs given to it by its independent public accountants;
(df) if requested by the Administrative Agent or any Lender, promptly after the sending or filing thereof, copies of each financial statement, report, notice or proxy statement sent by any Loan Party Holdings, the Borrower or any Borrower Subsidiary of a Loan Party to its stockholders or other equity holders, and copies of each regular, periodic or special report, registration statement or prospectus (including all Form 10-K, Form 10-Q and Form 8-K reports) filed by Holdings, the Borrower or any Loan Party Borrower Subsidiary with any securities exchange or the Securities and Exchange Commission or any successor agency;
(g) promptly after receipt thereof, a copy of each audit made by any regulatory agency of the books and records of Holdings, the Borrower or any Subsidiary or of a Loan Party notice of any material noncompliance with any securities exchangeapplicable law, regulation or guideline relating to Holdings, the Borrower or any Borrower Subsidiary, or its business;
(eh) [reserved];
(f) within ninety (90) days after at the end of each Fiscal Year of Business Day during which any Obligations are outstanding hereunder, the BorrowerBorrower shall, a copy of the Borrower’s operating budget and projections for the following year including consolidated projections of revenuesshall cause its Affiliates, expenses and balance sheet on a quarter-by-quarter basis, with such operating budget and projections in reasonable detail prepared by Borrower and in form reasonably satisfactory to deliver to the Administrative Agent (which shall include a summary daily m▇▇▇-to-market reports of the Hedging Value of all significant assumptions made Hedging Agreements in preparing such projections)the Eligible Hedge Accounts;
(gi) notice of any Change of Control;
(hj) promptly after knowledge thereof shall have come to the attention of any Responsible Officer responsible officer of any Loan PartyHoldings, or the Borrower, written notice of (i) any threatened or pending litigation or governmental or arbitration proceeding or labor controversy against any Loan Party Holdings, the Borrower or any Borrower Subsidiary of a Loan Party or any of their Property which, if adversely determined, could reasonably be expected to have a Material Adverse Effect, ; (ii) the occurrence of any Material Adverse Effect, Default or Event of Default hereunder or (iii) the occurrence of any Default event or (iv) the existence of any change in the information provided in the Beneficial Ownership Certification condition that would result in could reasonably be expected to have a change to the list of beneficial owners identified in of such certificationMaterial Adverse Effect;
(ik) promptly after any change or other modification of the Borrower's internal risk rating on any Seller, the Closing Date and Borrower shall deliver to the Administrative Agent notice of any such change or modification of the change in such Seller's internal risk rating; and
(l) with each of the financial statements delivered pursuant to subsections (a) (other than the last Fiscal Quarter of each Fiscal Year) and subsection (b) above, a compliance written certificate (“Compliance Certificate”) in the form attached hereto as Exhibit F E signed by a Financial Officer the chief financial officer of the Borrower or another officer of the Borrower acceptable to the Administrative Agent to the effect that to the best of such officer’s 's knowledge and belief no Default or Event of Default has occurred during the period covered by such statements or, if any such Default or Event of Default has occurred during such period, setting forth a description of such Default or Event of Default and specifying the action, if any, taken by Holdings, the relevant Loan Party Borrower or its any Borrower Subsidiary to remedy the same. Such certificate shall also set forth the calculations supporting such statements in respect of Section 8.22 (Financial Covenants); and
(j) on the Closing Date and with each of the financial statements delivered pursuant to subsections (a) (other than the last Fiscal Quarter of each Fiscal Year) and (b) above, a Borrowing Base Certificate showing the computation of the Borrowing Base Value, in reasonable detail as of the close of business on the last day of such Fiscal Quarter or Fiscal Year, as applicable, prepared by the Borrower and certified to by its chief financial officer or another officer of the Borrower reasonably acceptable to the Administrative Agent; and
(k) within a reasonable period of time following any such request therefor, from time to time, (i) such other information regarding the operations, business affairs and financial condition of any Loan Party or any Subsidiary of a Loan Party, or compliance with the terms of any Loan Document, as the Administrative Agent or any Lender may reasonably request or (ii) information and documentation reasonably requested by the Administrative Agent or any Lender for purposes of compliance with applicable “know your customer” requirements under the Patriot Act or other applicable Anti-Corruption Laws and the Beneficial Ownership Regulation. Notwithstanding the foregoing, the filing of the Borrower’s financial statements with the U.S. Securities and Exchange Commission on Form 10-K or Form 10-Q shall satisfy the requirements of Section 8.5(a)(i) and (b), respectivelyhereof.
Appears in 1 contract
Sources: Credit Agreement (International Assets Holding Corp)
Financial Reports. (a) Whether or not the Issuer is subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act, the Issuer must provide the Trustee and Holders with, or file electronically with the Commission via the E▇▇▇▇ filing system (or any successor thereto), within the time periods specified in the Commission’s rules and regulations:
(1) all quarterly and annual financial information that would be required to be contained in a filing with the Commission on Forms 10-Q and 10-K if the Issuer were required to file such forms, including a “Management’s Discussion and Analysis of Financial Condition and Results of Operations” and, with respect to annual information only, a report thereon by the Issuer’s certified independent accountants, and
(2) all current reports that would be required to be filed with the Commission on Form 8-K if the Issuer were required to file such reports. In addition, whether or not required by the Commission, the Issuer will, after the effectiveness of an Exchange Offer Registration Statement or Shelf Registration Statement, if the Commission will accept the filing, file a copy of all of the information and reports referred to in clauses (1) and (2) with the Commission for public availability within the time periods specified in the Commission’s rules and regulations. In addition, the Issuer will make the information and reports available to securities analysts and prospective investors upon request. The Loan Parties shallavailability of the foregoing information and reports on the Commission’s E▇▇▇▇ service (or any successor thereto) shall be deemed to satisfy the requirement to make such information and reports so available.
(b) For so long as any of the Notes remain outstanding and constitute “restricted securities” under Rule 144 under the Securities Act, the Issuer will furnish to the Holders of the Notes and shall cause each of prospective investors, upon their Subsidiaries torequest, maintain proper books of records and accounts reasonably necessary to prepare financial statements the information required to be delivered pursuant to this Section 8.5 in accordance with GAAP and shall furnish to Rule 144A(d)(4) under the Administrative Agent and each Lender:
(a) as soon as available, and in any event no later than sixty (60) days after the last day of each Fiscal Quarter of each Fiscal Year of the Borrower, a copy of (i) the company-prepared consolidated balance sheets of Borrower and its Subsidiaries as of the last day Securities Act. The availability of such Fiscal Quarter and information on the consolidated statements of operations, changes in equity (deficit) and cash flows of Borrower for the Fiscal Quarter and for the Fiscal Year-to-date period then ended, in reasonable detail and, if available, showing in comparative form the figures for the corresponding date and period in the previous Fiscal Year, prepared by the applicable party in accordance with GAAP (subject to the absence of footnote disclosures and year-end audit adjustments) and certified to by a Financial Officer of Borrower and (ii) operating statements, rent roll and accounts receivable aging for each Borrowing Base Property;
(b) as soon as available, and in any event no later than one hundred twenty (120) days after the last day of each Fiscal Year of the Borrower, a copy of the consolidated balance sheets of Borrower and its Subsidiaries as of the last day of the Fiscal Year then ended and the consolidated statements of statements of operations, comprehensive loss, shareholders’ equity (deficit) and cash flows of Borrower and its Subsidiaries for the Fiscal Year then ended, and accompanying notes thereto, each in reasonable detail and, if available, showing in comparative form the figures for the previous Fiscal Year, accompanied in the case of the consolidated financial statements by an unqualified opinion of BDO USA, P.C., or another firm of independent public accountants of recognized national standing, selected by ▇▇▇▇Commission’s E▇▇▇▇ and reasonably satisfactory service (or any successor thereto) shall be deemed to satisfy the Administrative Agent;requirement to furnish such information.
(c) [reserved];
(d) promptly after The Issuer will also hold a quarterly conference call to discuss such financial information. Prior to the sending or filing thereofconference call, copies the Issuer shall issue a press release to the appropriate wire services announcing the time and date of each financial statementsuch conference call and, reportunless the call is to be open to the public, notice or proxy statement sent by any Loan Party or any Subsidiary of a Loan Party direct Holders, securities analysts and prospective investors to its stockholders or other equity holders, and copies of each regular, periodic or special report, registration statement or prospectus filed by any Loan Party or any Subsidiary of a Loan Party with any securities exchange;
(e) [reserved];
(f) within ninety (90) days after contact the end of each Fiscal Year office of the Borrower, a copy of the BorrowerIssuer’s operating budget and projections for the following year including consolidated projections of revenues, expenses and balance sheet on a quarter-by-quarter basis, with such operating budget and projections in reasonable detail prepared by Borrower and in form reasonably satisfactory to the Administrative Agent (which shall include a summary of all significant assumptions made in preparing such projections);
(g) notice of any Change of Control;
(h) promptly after knowledge thereof shall have come to the attention of any Responsible Officer of any Loan Party, written notice of (i) any threatened or pending litigation or governmental or arbitration proceeding or labor controversy against any Loan Party or any Subsidiary of a Loan Party or any of their Property which, if adversely determined, could reasonably be expected to have a Material Adverse Effect, (ii) the occurrence of any Material Adverse Effect, (iii) the occurrence of any Default or (iv) any change in the information provided in the Beneficial Ownership Certification that would result in a change to the list of beneficial owners identified in of such certification;
(i) on the Closing Date and with each of the financial statements delivered pursuant to subsections (a) (other than the last Fiscal Quarter of each Fiscal Year) and (b) above, a compliance certificate (“Compliance Certificate”) in the form attached hereto as Exhibit F signed by a Financial Officer of the Borrower to the effect that to the best of such officer’s knowledge and belief no Default has occurred during the period covered by such statements or, if any such Default has occurred during such period, setting forth a description of such Default and specifying the action, if any, taken by the relevant Loan Party or its Subsidiary to remedy the same. Such certificate shall also set forth the calculations supporting such statements in respect of Section 8.22 (Financial Covenants); and
(j) on the Closing Date and with each of the financial statements delivered pursuant to subsections (a) (other than the last Fiscal Quarter of each Fiscal Year) and (b) above, a Borrowing Base Certificate showing the computation of the Borrowing Base Value, in reasonable detail as of the close of business on the last day of such Fiscal Quarter or Fiscal Year, as applicable, prepared by the Borrower and certified to by its chief financial officer or another officer of to obtain access. If the Borrower reasonably acceptable Issuer is holding a conference call open to the Administrative Agent; and
(k) within a reasonable period of time following any such request therefor, from time public to time, (i) such other information regarding discuss the operations, business affairs and most recent quarter’s financial condition of any Loan Party or any Subsidiary of a Loan Party, or compliance with the terms of any Loan Document, as the Administrative Agent or any Lender may reasonably request or (ii) information and documentation reasonably requested by the Administrative Agent or any Lender for purposes of compliance with applicable “know your customer” requirements under the Patriot Act or other applicable Anti-Corruption Laws and the Beneficial Ownership Regulation. Notwithstanding the foregoingperformance, the filing of Issuer will not be required to hold a second, separate call just for the Borrower’s financial statements with the U.S. Securities and Exchange Commission on Form 10-K or Form 10-Q shall satisfy the requirements of Section 8.5(a)(i) and (b), respectivelyHolders.
Appears in 1 contract
Sources: Indenture (DineEquity, Inc)
Financial Reports. The Loan Parties shall(a) So long as any Notes remain outstanding:
(1) the Issuer shall provide the Trustee and Noteholders with annual consolidated financial statements audited by the Issuer’s independent public accountants within 90 days after the end of the Issuer’s fiscal year (120 days for the first fiscal year ended after the Issue Date), and shall cause unaudited quarterly consolidated financial statements (including a balance sheet, income statement and cash flow statement for the fiscal quarter or quarters then ended and the corresponding fiscal quarter or quarters from the prior year) within 60 days of the end of each of their Subsidiaries to, maintain proper books the first three fiscal quarters of records each fiscal year (90 days for the first two fiscal quarters ended after the Issue Date). Such annual and accounts reasonably necessary to prepare quarterly financial statements will be prepared in accordance with GAAP and be accompanied by a management’s discussion and analysis of the results of operations and liquidity and capital resources of the Issuer and its Restricted Subsidiaries for the periods presented in a level of detail comparable to the management’s discussion and analysis of financial condition and results of operations of the Issuer and its Restricted Subsidiaries contained in the Offering Memorandum; and
(2) the Issuer shall disclose in writing to the Trustee and noteholders the occurrence of any event concerning the Issuer or its Restricted Subsidiaries that would be required to be reported on Form 8-K if the Issuer were required to file such reports pursuant to Items 1.01, 1.02 (it being understood that the Issuer and its Restricted Subsidiaries shall only be required to disclose events under Items 1.01 and 1.02 of Form 8-K to the extent that such events relate to the entry into, or termination or amendment of, any material definitive agreement in respect of a financing other than any Funding Indebtedness including Securitization Indebtedness, Warehousing Indebtedness or MSR Indebtedness, or acquisition or disposition of a business, and that the exhibits to such form need not be filed and that any filing relating to Non-Funding Indebtedness or other Debt can exclude any pricing information), 1.03, 2.01, 4.01, 4.02, and 5.01, in each case, within 10 days of the occurrence of such event. Notwithstanding the foregoing, with respect to the information provided in clause (a)(1) and (a)(2), (A) such information shall not be required to include (1) as an exhibit, or to include a summary of the terms of, any employment or compensatory arrangement, agreement, plan or understanding between the Issuer and any director, manager or officer, of the Issuer, (2) any information regarding the occurrence of any of the events set forth in clause (a)(2) if the Issuer determines in its good faith judgment that the event that would otherwise be required to be disclosed is not material to the holders of the notes or the business, assets, operations, financial positions or prospects of the Issuer and its Restricted Subsidiaries taken as a whole, (B) no such report shall be required to comply with the Exchange Act, (C) no such report shall be required to comply with Regulation S-K or Regulation S-X including, without limitation, Rules 3-05, 3-09, 3-10, 3-16 or Article 11 thereof, (D) no such report shall be required to provide any information that is not otherwise similar to information currently included in the Offering Memorandum, (E) in no event shall such reports be required to include as an exhibit copies of any agreements, financial statements or other items that would be required to be filed as exhibits under the SEC rules; (F) trade secrets and other information that could cause competitive harm to the Issuer and its Restricted Subsidiaries may be excluded from any disclosures; (G) such financial statements or information shall not be required to contain any “segment reporting”; (H) the Issuer may elect to change its fiscal year end, (I) no acquired business financial statements or pro forma financial statements shall be required to be disclosed; and (J) the Issuer may include any information of the information required above in the quarterly report for the quarter in which the event occurred as permitted by the “safe-harbor” provisions of Form 8-K. The reports required pursuant to clause (a)(1) and (a)(2) above will not be required to reflect any accounting standards or guidance, including those issued by the Financial Standards Accounting Board, applicable only to “public business entities.” The financial statements and related discussion referred to in clause (1) and the current reports referred to in clause (2) shall be made available to Noteholders and prospective investors in the Notes by posting on a password-protected or otherwise secured confidential website maintained by the Issuer. Disclosure of any current reports shall be accompanied by a notice of posting released on Bloomberg or a similar news service reasonably accessible to investors in securities such as the Notes. Notwithstanding the foregoing, the Issuer will be deemed to have furnished such reports referred to above to the Trustee and the holders of the Notes if the Issuer has filed such reports with the SEC via the ▇▇▇▇▇ filing system (or any successor system) and such reports are publicly available; provided, however, that the Trustee shall have no responsibility whatsoever to determine if such filing has occurred. In addition, the Issuer will make the information and reports available to prospective investors upon request (which prospective investors shall be limited to “qualified institutional buyers” within the meaning of Rule 144A of the Securities Act or non-U.S. persons (as defined in Regulation S under the Securities Act) that certify their status as such to the reasonable satisfaction of the Issuer).
(b) The Issuer will schedule a conference call to be held not more than 15 Business Days following the release of each report containing the financial information referred to in clause (a)(1) of this Section 4.16, at which the Issuer will make available its senior management to discuss the information contained in such report on such conference call; provided that such conference calls shall be permitted to be held jointly with conference calls the Issuer holds for holders of their other Indebtedness. The Issuer will notify Holders of Notes about such calls and provide them and prospective investors in the Notes with call-in information concurrently with and in the same manner as each delivery of financial statements pursuant to the preceding paragraph (a). Notwithstanding the foregoing, if the Issuer (or a Parent Entity, to the extent permitted by this covenant) holds a quarterly conference call for its equity holders within 15 Business Days of filing a report on ▇▇▇▇▇ (or any successor thereto), the Issuer or such Parent Entity, as applicable, will no longer be required to hold a separate conference call in respect of such report for the Holders.
(c) For so long as any of the Notes remain outstanding and constitute “restricted securities” under Rule 144, to the extent neither the Issuer nor any Parent Entity is subject to Section 13(a) or 15(d) under the Exchange Act, the Issuer will furnish to the Holders of the Notes and prospective investors, upon their request, the information required to be delivered pursuant to this Section 8.5 in accordance with GAAP Rule 144A(d)(4) under the Securities Act.
(d) The disclosure of such reports, information and shall furnish documents to the Administrative Agent Trustee is for informational purposes only and each Lender:the Trustee’s receipt of such shall not constitute constructive notice of any information contained therein or determinable from information contained therein, including the Issuer’s and the Guarantors’ compliance with any of its covenants under this Indenture (as to which the Trustee is entitled to rely exclusively on Officers’ Certificates). The Trustee shall have no obligation whatsoever to determine whether or not such information, documents or reports have been so made available to the Trustee or the Noteholders.
(ae) If, at any time, the Issuer has designated any of its Subsidiaries as soon as availableUnrestricted Subsidiaries, then either on the face of, or in the footnotes to, the financial statements or in the “Management’s Discussion and in any event no later than sixty (60) days after Analysis of Financial Condition and Results of Operations,” or other comparable section, the last day of each Fiscal Quarter of each Fiscal Year Issuer shall provide an analysis and discussion of the Borrowermaterial differences, a copy if any, with respect to the financial condition and results of (i) operations of the company-prepared consolidated balance sheets of Borrower Issuer and its Restricted Subsidiaries as compared to the Issuer and its Subsidiaries (including such Unrestricted Subsidiaries). In addition, the Issuer may satisfy its reporting obligations described in this Section with respect to financial information relating to the Issuer by furnishing financial information relating to any Parent Entity; provided that if and so long as such Parent Entity has material assets (other than Cash, Cash Equivalents and Equity Interests of the last day of such Fiscal Quarter and Issuer or any Parent Entity), the consolidated statements of operations, changes in equity same is accompanied by consolidating information (deficitwhich need not be audited) and cash flows of Borrower for the Fiscal Quarter and for the Fiscal Year-to-date period then ended, that explains in reasonable detail andthe differences between the information relating to such Parent Entity, on the one hand, and the information relating to the Issuer and its Restricted Subsidiaries on a stand-alone basis, on the other hand and would otherwise comply with the requirements of Rule 3-10 of Regulation S-X promulgated by the SEC (or any successor provision). The Issuer will be deemed to have furnished the reports referred to in this Section if available, showing in comparative form the figures for Issuer or any Parent Entity has filed the corresponding date and period in the previous Fiscal Year, prepared by the applicable party in accordance with GAAP (subject reports containing such information relating to the absence of footnote disclosures and year-end audit adjustments) and certified to by a Financial Officer of Borrower and (ii) operating statements, rent roll and accounts receivable aging for each Borrowing Base Property;
(b) as soon as available, and in any event no later than one hundred twenty (120) days after Issuer or such Parent Entity with the last day of each Fiscal Year of SEC via the Borrower, a copy of the consolidated balance sheets of Borrower and its Subsidiaries as of the last day of the Fiscal Year then ended and the consolidated statements of statements of operations, comprehensive loss, shareholders’ equity (deficit) and cash flows of Borrower and its Subsidiaries for the Fiscal Year then ended, and accompanying notes thereto, each in reasonable detail and, if available, showing in comparative form the figures for the previous Fiscal Year, accompanied in the case of the consolidated financial statements by an unqualified opinion of BDO USA, P.C., or another firm of independent public accountants of recognized national standing, selected by ▇▇▇▇▇▇▇▇ and reasonably satisfactory filing system (or any successor system). Any subsequent restatement of financial statements shall not have any retroactive effect for purposes of calculations previously made pursuant to the Administrative Agent;
covenants contained in this Indenture. The subsequent posting or making available of any materials or conference call required by this covenant shall be deemed automatically to cure any Default resulting from the failure to post or make available such materials or conference call within the required timeframe. Any and all Defaults or Events of Default arising from a failure to furnish or file in a timely manner a report or other information required by this Section 4.16 shall be deemed cured (cand the Issuer shall be deemed to be in compliance with this Section 4.16) [reserved];
(d) promptly after the sending upon furnishing or filing thereof, copies of each financial statement, report, notice or proxy statement sent by any Loan Party or any Subsidiary of a Loan Party to its stockholders such report or other equity holders, and copies of each regular, periodic information as contemplated by this covenant (but without regard to the date on which such report or special report, registration statement other information is so furnished or prospectus filed by any Loan Party or any Subsidiary of a Loan Party with any securities exchange;
(e) [reserved];
(f) within ninety (90) days after filed); provided that such cure shall not otherwise affect the end of each Fiscal Year rights of the Borrower, a copy Holders under Section 6.01 if payment of the Borrower’s operating budget and projections for the following year including consolidated projections of revenues, expenses and balance sheet on a quarter-by-quarter basis, with such operating budget and projections Notes has been accelerated in reasonable detail prepared by Borrower and in form reasonably satisfactory to the Administrative Agent (which shall include a summary of all significant assumptions made in preparing such projections);
(g) notice of any Change of Control;
(h) promptly after knowledge thereof shall have come to the attention of any Responsible Officer of any Loan Party, written notice of (i) any threatened or pending litigation or governmental or arbitration proceeding or labor controversy against any Loan Party or any Subsidiary of a Loan Party or any of their Property which, if adversely determined, could reasonably be expected to have a Material Adverse Effect, (ii) the occurrence of any Material Adverse Effect, (iii) the occurrence of any Default or (iv) any change in the information provided in the Beneficial Ownership Certification that would result in a change to the list of beneficial owners identified in of such certification;
(i) on the Closing Date and with each of the financial statements delivered pursuant to subsections (a) (other than the last Fiscal Quarter of each Fiscal Year) and (b) above, a compliance certificate (“Compliance Certificate”) in the form attached hereto as Exhibit F signed by a Financial Officer of the Borrower to the effect that to the best of such officer’s knowledge and belief no Default has occurred during the period covered by such statements or, if any such Default has occurred during such period, setting forth a description of such Default and specifying the action, if any, taken by the relevant Loan Party or its Subsidiary to remedy the same. Such certificate shall also set forth the calculations supporting such statements in respect of Section 8.22 (Financial Covenants); and
(j) on the Closing Date and with each of the financial statements delivered pursuant to subsections (a) (other than the last Fiscal Quarter of each Fiscal Year) and (b) above, a Borrowing Base Certificate showing the computation of the Borrowing Base Value, in reasonable detail as of the close of business on the last day of such Fiscal Quarter or Fiscal Year, as applicable, prepared by the Borrower and certified to by its chief financial officer or another officer of the Borrower reasonably acceptable to the Administrative Agent; and
(k) within a reasonable period of time following any such request therefor, from time to time, (i) such other information regarding the operations, business affairs and financial condition of any Loan Party or any Subsidiary of a Loan Party, or compliance accordance with the terms of any Loan Document, as the Administrative Agent this Indenture and such acceleration has not been rescinded or any Lender may reasonably request or (ii) information and documentation reasonably requested by the Administrative Agent or any Lender for purposes of compliance with applicable “know your customer” requirements under the Patriot Act or other applicable Anti-Corruption Laws and the Beneficial Ownership Regulationcancelled prior to such cure. Notwithstanding the foregoing, if at any time the filing Issuer or any Parent Entity has made a good faith determination to file a registration statement with the SEC with respect to such entity’s Capital Stock, the Issuer will not be required to disclose any information or take any actions that, in the good faith view of the BorrowerIssuer, would violate applicable securities laws or the SEC’s financial statements with the U.S. Securities and Exchange Commission on Form 10-K or Form 10-Q shall satisfy the requirements of Section 8.5(a)(i) and (b), respectively“gun jumping” rules.
Appears in 1 contract
Sources: Indenture (Mr. Cooper Group Inc.)
Financial Reports. The Loan Parties shallBorrower shall cause the Investment Manager to furnish, or cause to be furnished, to the Facility Agent and each Agent:
1. as soon as available, but in any event within 120 days after the end of each fiscal year of the Equityholder, a copy of the consolidated and consolidating balance sheet of the Equityholder and its consolidated Subsidiaries as at the end of such year, the related consolidated and consolidating statements of income for such year, and shall cause the related consolidated statements of changes in net assets and of cash flows for such year, setting forth in each of their Subsidiaries tocase in comparative form the figures for the previous year; provided, maintain proper books of records and accounts reasonably necessary to prepare that the financial statements required to be delivered pursuant to this Section 8.5 in accordance with GAAP and shall furnish to the Administrative Agent and each Lender:
(a) as soon as available, and in any event no later than sixty (60) days after the last day of each Fiscal Quarter of each Fiscal Year of the Borrower, a copy of clause (i) the company-prepared consolidated balance sheets of Borrower and its Subsidiaries as of the last day of such Fiscal Quarter and the consolidated statements of operations, changes in equity (deficit) and cash flows of Borrower for the Fiscal Quarter and for the Fiscal Year-to-date period then ended, in reasonable detail and, if available, showing in comparative form the figures for the corresponding date and period in the previous Fiscal Year, prepared by the applicable party in accordance with GAAP (subject to the absence of footnote disclosures and year-end audit adjustments) and certified to by a Financial Officer of Borrower and (ii) operating statements, rent roll and accounts receivable aging for each Borrowing Base Property;
(b) as soon as available, and in any event no later than one hundred twenty (120) days after the last day of each Fiscal Year of the Borrower, a copy of the consolidated balance sheets of Borrower and its Subsidiaries as of the last day of the Fiscal Year then ended and the consolidated statements of statements of operations, comprehensive loss, shareholders’ equity (deficit) and cash flows of Borrower and its Subsidiaries for the Fiscal Year then ended, and accompanying notes thereto, each in reasonable detail and, if available, showing in comparative form the figures for the previous Fiscal Year, accompanied in the case of the consolidated financial statements by an unqualified opinion of BDO USA, P.C., or another firm of independent public accountants of recognized national standing, selected by which are made available via ▇▇▇▇▇▇▇▇ , or any successor system of the Securities and reasonably satisfactory Exchange Commission, in the Equityholder’s annual report on Form 10-K, shall be deemed delivered to the Administrative Agent;Facility Agent and each Agent on the date such documents are made so available; and
(c) [reserved];
(d) promptly after the sending or filing thereof, copies of each financial statement, report, notice or proxy statement sent by 2. as soon as available and in any Loan Party or any Subsidiary of a Loan Party to its stockholders or other equity holders, and copies of each regular, periodic or special report, registration statement or prospectus filed by any Loan Party or any Subsidiary of a Loan Party with any securities exchange;
(e) [reserved];
(f) event within ninety (90) 45 days after the end of each Fiscal Year fiscal quarter of the Borrower, a copy of the Borrower’s operating budget and projections for the following each fiscal year including consolidated projections of revenues, expenses and balance sheet on a quarter-by-quarter basis, with such operating budget and projections in reasonable detail prepared by Borrower and in form reasonably satisfactory to the Administrative Agent (which shall include a summary of all significant assumptions made in preparing such projections);
(g) notice of any Change of Control;
(h) promptly after knowledge thereof shall have come to the attention of any Responsible Officer of any Loan Party, written notice of (i) any threatened or pending litigation or governmental or arbitration proceeding or labor controversy against any Loan Party or any Subsidiary of a Loan Party or any of their Property which, if adversely determined, could reasonably be expected to have a Material Adverse Effect, (ii) the occurrence of any Material Adverse Effect, (iii) the occurrence of any Default or (iv) any change in the information provided in the Beneficial Ownership Certification that would result in a change to the list of beneficial owners identified in of such certification;
(i) on the Closing Date and with each of the financial statements delivered pursuant to subsections (a) (other than the last Fiscal Quarter fiscal quarter of each Fiscal Year) fiscal year), an unaudited consolidated and (b) above, a compliance certificate (“Compliance Certificate”) in the form attached hereto as Exhibit F signed by a Financial Officer consolidating balance sheet of the Borrower to Equityholder and its consolidated Subsidiaries as of the effect that to the best end of such officer’s knowledge fiscal quarter and belief no Default has occurred during including the prior comparable period (if any), and the unaudited consolidated and consolidating statements of income of the Equityholder and its consolidated Subsidiaries for such fiscal quarter and for the period covered by such statements or, if any such Default has occurred during such period, setting forth a description commencing at the end of the previous fiscal year and ending with the end of such Default fiscal quarter, and specifying the actionunaudited consolidated statements of cash flows of the Equityholder and its consolidated Subsidiaries for the period commencing at the end of the previous fiscal year and ending with the end of such fiscal quarter; provided, if any, taken by the relevant Loan Party or its Subsidiary to remedy the same. Such certificate shall also set forth the calculations supporting such statements in respect of Section 8.22 (Financial Covenants); and
(j) on the Closing Date and with each of that the financial statements required to be delivered pursuant to subsections (a) (other than the last Fiscal Quarter of each Fiscal Year) and (b) above, a Borrowing Base Certificate showing the computation of the Borrowing Base Value, in reasonable detail as of the close of business on the last day of such Fiscal Quarter or Fiscal Year, as applicable, prepared by the Borrower and certified to by its chief financial officer or another officer of the Borrower reasonably acceptable to the Administrative Agent; and
(k) within a reasonable period of time following any such request therefor, from time to time, (i) such other information regarding the operations, business affairs and financial condition of any Loan Party or any Subsidiary of a Loan Party, or compliance with the terms of any Loan Document, as the Administrative Agent or any Lender may reasonably request or this clause (ii) information and documentation reasonably requested by the Administrative Agent which are made available via ▇▇▇▇▇, or any Lender for purposes of compliance with applicable “know your customer” requirements under the Patriot Act or other applicable Anti-Corruption Laws and the Beneficial Ownership Regulation. Notwithstanding the foregoing, the filing successor system of the Borrower’s financial statements with the U.S. Securities and Exchange Commission Commission, in the Equityholder’s quarterly report on Form 10-K or Form 10-Q Q, shall satisfy be deemed delivered to the requirements of Section 8.5(a)(i) Facility Agent and (b), respectivelyeach Agent on the date such documents are made so available.
Appears in 1 contract
Sources: Loan Agreement (FS KKR Capital Corp)
Financial Reports. The Loan Parties Borrower shall, and shall cause each of their its Subsidiaries to, maintain proper books of records and accounts reasonably necessary to prepare financial statements required to be delivered pursuant to this Section 8.5 in accordance with GAAP IFRS and shall furnish to the Administrative Agent and each Lender:
(a) as soon as available, and in any event no later than sixty (60) within 45 days after the last day of each Fiscal Quarter of each Fiscal Year fiscal quarter of the Borrower, a copy of (i) financial statements and reports of the company-Borrower for each quarterly accounting period consisting of a balance sheet and a profit and loss statement of the Borrower prepared consolidated balance sheets of by the Borrower and its Subsidiaries as of the last day end of such Fiscal Quarter and the consolidated statements of operations, changes in equity (deficit) and cash flows of Borrower for the Fiscal Quarter and for the Fiscal Year-to-date period then ended, in reasonable detail and, if available, showing in comparative form the figures for the corresponding date and period in the previous Fiscal Year, prepared by the applicable party such calendar quarter in accordance with GAAP IFRS (subject to except for the absence of footnote disclosures footnotes and subject to year-end audit adjustments) and certified to by a Financial Officer of Borrower and (ii) operating statements, rent roll and accounts receivable aging for each Borrowing Base Propertyor such other officer reasonably acceptable to the Administrative Agent;
(b) as soon as available, and in any event no later than one hundred twenty (120) 120 days after the last day of each Fiscal Year fiscal year of the Borrower, a copy of the consolidated balance sheets sheet of the Borrower and its Subsidiaries as of the last day of the Fiscal Year fiscal year then ended and the consolidated and consolidating statements of statements of operationsincome, comprehensive lossretained earnings, shareholders’ equity (deficit) and cash flows of the Borrower and its Subsidiaries for the Fiscal Year fiscal year then ended, and accompanying notes thereto, each in reasonable detail and, if available, showing in comparative form the figures for the previous Fiscal Yearfiscal year, accompanied in the case of the consolidated financial statements by an unqualified opinion thereon of BDO USA, P.C., Ernst & ▇▇▇▇▇ or another firm of independent public accountants of recognized national standing, selected by ▇▇▇▇▇▇▇▇ the Borrower and reasonably satisfactory to the Administrative Agent, to the effect that the consolidated financial statements have been prepared in accordance with IFRS and present fairly in accordance with IFRS the consolidated financial condition of the Borrower and its Subsidiaries as of the close of such fiscal year and the results of their operations and cash flows for the fiscal year then ended and that an examination of such accounts in connection with such financial statements has been made in accordance with generally accepted auditing standards and, accordingly, such examination included such tests of the accounting records and such other auditing procedures as were considered necessary in the circumstances;
(c) [reserved]as soon as available, and in any event no later than 60 days after the last day of each fiscal quarter of each fiscal year of the Ultimate Parent, a copy of the consolidated balance sheet of the Ultimate Parent and its Subsidiaries as of the last day of such fiscal quarter and the consolidated statements of income, retained earnings, and cash flows of the Ultimate Parent and its Subsidiaries for the fiscal quarter and for the fiscal year to date period then ended, each in reasonable detail showing in comparative form the figures for the corresponding date and period in the previous fiscal year, prepared by the Ultimate Parent in accordance with GAAP (subject to the absence of footnote disclosures and year end audit adjustments) and certified to by its chief financial officer or another officer of the Ultimate Parent acceptable to Administrative Agent;
(d) promptly as soon as available, and in any event within 120 days after the sending or filing thereoflast day of each fiscal year of the Ultimate Parent, copies of the consolidated balance sheet of the Ultimate Parent and its Subsidiaries as of the close of such period and the consolidated statements of income, retained earnings, and cash flows of the Ultimate Parent and its Subsidiaries for such period, and accompanying notes thereto, each financial statementin reasonable detail, report, notice accompanied by an unqualified opinion (subject to normal year-end adjustments and except for qualifications relating to changes in accounting principles or proxy statement sent practices reflecting changes in GAAP and required or approved by any Loan Party or any Subsidiary the Ultimate Parent’s independent certified public accountants) thereon of a Loan Party firm of independent public accountants of recognized national standing, selected by the Ultimate Parent and reasonably satisfactory to the Administrative Agent, to the effect that the financial statements have been prepared in accordance with GAAP and present fairly in accordance with GAAP the consolidated financial condition of the Borrower and its stockholders or Subsidiaries as of the close of such fiscal year and the results of their operations and cash flows for the fiscal year then ended and that an examination of such accounts in connection with such financial statements has been made in accordance with generally accepted auditing standards and, accordingly, such examination included such tests of the accounting records and such other equity holders, and copies of each regular, periodic or special report, registration statement or prospectus filed by any Loan Party or any Subsidiary of a Loan Party with any securities exchangeauditing procedures as were considered necessary in the circumstances;
(e) [reserved]as soon as available, and in any event within 90 days after the close of each fiscal year of the Borrower, any additional written reports or management letters or other detailed information contained in writing concerning significant aspects of the Borrower’s or any Subsidiary’s affairs given to its managers (or other governing body) by its independent public accountants in connection with the audit of the Borrower;
(f) within ninety (90) days promptly after the end of each Fiscal Year of the Borrowerreceipt thereof, a copy of any audits, examinations or financial report that may be conducted by the Borrower’s operating budget Regulatory Authority that note noncompliance that could reasonably be expected to have a Material Adverse Effect and projections for the following year including consolidated projections of revenues, expenses and balance sheet on a quarter-by-quarter basis, with such operating budget and projections in reasonable detail prepared by Borrower and in form reasonably satisfactory permitted to the Administrative Agent (which shall include a summary of all significant assumptions made in preparing such projections)be disclosed under applicable law;
(g) notice of any Change of Control;
(h) notice of any Termination Event;
(i) promptly after knowledge thereof shall have come to the attention of any Responsible Officer of any Loan Partythe Borrower, written notice of (i) any threatened or pending litigation or governmental or arbitration proceeding or labor controversy (including any litigation or proceeding brought by the Regulatory Authority) against any Loan Party or the Parent, the Borrower, any Subsidiary of a Loan Party or any of their Property which, if adversely determined, could reasonably be expected to have a Material Adverse Effect, (ii) the occurrence of any Material Adverse Effect, or (iii) the occurrence of any Default or (iv) any change in the information provided in the Beneficial Ownership Certification that would result in a change to the list of beneficial owners identified in of such certificationDefault;
(ij) on as soon as available, and in any event no later than 45 days after the Closing Date and with last day of each fiscal quarter of the financial statements delivered pursuant to subsections (a) (other than the last Fiscal Quarter of each Fiscal Year) and (b) aboveBorrower, a compliance written certificate (“Compliance Certificate”) in the form attached hereto as Exhibit F B signed by a Financial Officer of the Borrower to the effect that to the best of such officer’s knowledge and belief no Default has occurred during the period covered by such statements or, if any such Default has occurred during such period, setting forth a description of such Default and specifying the action, if any, taken by the relevant Loan Party Borrower or its Subsidiary Subsidiaries to remedy the same. Such certificate shall also set forth the calculations supporting such statements in respect of Section 8.22 8.23 (Financial Covenants); and
(j) on the Closing Date and with each of the financial statements delivered pursuant to subsections (a) (other than the last Fiscal Quarter of each Fiscal Year) and (b) above, a Borrowing Base Certificate showing the computation of the Borrowing Base Value, in reasonable detail as of the close of business on the last day of such Fiscal Quarter or Fiscal Year, as applicable, prepared by the Borrower and certified to by its chief financial officer or another officer of the Borrower reasonably acceptable to the Administrative Agent; and
(k) within a reasonable period of time following any such request thereforpromptly, from time to time, (i) such other information regarding the operations, business affairs and financial condition of any Loan Party the Parent, the Borrower or any Subsidiary of a Loan PartySubsidiary, or compliance with the terms of any Loan Document, as the Administrative Agent or any Lender may reasonably request or (ii) information and documentation reasonably requested by the Administrative Agent or any Lender for purposes of compliance with applicable “know your customer” requirements under the Patriot Act or other applicable Anti-Corruption Laws and the Beneficial Ownership Regulation. Notwithstanding the foregoing, the filing of the Borrower’s financial statements with the U.S. Securities and Exchange Commission on Form 10-K or Form 10-Q shall satisfy the requirements of Section 8.5(a)(i) and (b), respectivelyrequest.
Appears in 1 contract