Financial Statements, Reports, etc. Furnish to the Administrative Agent (which will promptly furnish such information to the Lenders): (a) within 90 days after the end of each fiscal year (commencing with the fiscal year ending December 31, 2016), a consolidated balance sheet and related statements of operations, cash flows and owners’ equity showing the financial position of the Borrower and its Subsidiaries as of the close of such fiscal year and the consolidated results of their operations during such year and setting forth in comparative form the corresponding figures for the prior fiscal year, which consolidated balance sheet and related statements of operations, cash flows and owners’ equity shall be accompanied by customary management’s discussion and analysis and audited by independent public accountants of recognized national standing and accompanied by an opinion of such accountants (which opinion shall not be qualified as to scope of audit or as to the status of the Borrower or any Material Subsidiary as a going concern, other than solely with respect to, or resulting solely from, an upcoming maturity date under any series of Indebtedness occurring within one year from the time such opinion is delivered or any potential inability to satisfy a financial maintenance covenant on a future date or in a future period) to the effect that such consolidated financial statements fairly present, in all material respects, the financial position and results of operations of the Borrower and its Subsidiaries on a consolidated basis in accordance with GAAP (it being understood that the delivery by the Borrower of annual reports on Form 10-K of the Borrower and its consolidated Subsidiaries shall satisfy the requirements of this Section 5.04(a) to the extent such annual reports include the information specified herein); (b) within 45 days after the end of each of the first three fiscal quarters of each fiscal year (commencing with the fiscal quarter ending June 30, 2016), a consolidated balance sheet and related statements of operations and cash flows showing the financial position of the Borrower and its Subsidiaries as of the close of such fiscal quarter and the consolidated results of their operations during such fiscal quarter and the then-elapsed portion of the fiscal year and, starting with the fiscal quarter ending September 30, 2016, setting forth in comparative form the corresponding figures for the corresponding periods of the prior fiscal year, all of which shall be in reasonable detail, which consolidated balance sheet and related statements of operations and cash flows shall be accompanied by customary management’s discussion and analysis and which consolidated balance sheet and related statements of operations and cash flows shall be certified by a Financial Officer of the Borrower on behalf of the Borrower as fairly presenting, in all material respects, the financial position and results of operations of the Borrower and its Subsidiaries on a consolidated basis in accordance with GAAP (subject to normal year-end audit adjustments and the absence of footnotes) (it being understood that the delivery by the Borrower of quarterly reports on Form 10-Q of the Borrower and its consolidated Subsidiaries shall satisfy the requirements of this Section 5.04(b) to the extent such quarterly reports include the information specified herein);

Appears in 14 contracts

Sources: Incremental Assumption and Amendment Agreement (ADT Inc.), Incremental Assumption and Amendment Agreement (ADT Inc.), Incremental Assumption and Amendment Agreement (ADT Inc.)

Financial Statements, Reports, etc. Furnish to the Administrative Agent (which will promptly furnish such information to the Lenders): (a) within 90 days after the end of each fiscal ~~year (commencing with the fiscal year ending December 31, 2016)~~year, a consolidated balance ~~sheet~~ sheet, related statements of operations and comprehensive loss and related statements of ~~operations,~~ cash flows ~~and owners’ equity~~ showing the financial position of the Borrower and its Subsidiaries as of the close of such fiscal year and the consolidated results of their operations during such year ~~and~~ and, starting with the fiscal year ending December 31, 2017, setting forth in comparative form the corresponding figures for the prior fiscal year, which consolidated balance ~~sheet~~ sheet, related statements of operations and comprehensive loss and related statements of ~~operations,~~ cash flows and owners’ equity shall be accompanied by customary management’s discussion and analysis and audited by independent public accountants of recognized national standing and accompanied by an opinion of such accountants (which opinion shall not be qualified as to scope of audit or as to the status of the Borrower or any Material Subsidiary as a going concern, other than solely with respect to, or resulting solely ~~from,~~ from an upcoming maturity date under ~~any series of Indebtedness~~ this Agreement occurring within one year from the time such opinion is delivered or any potential inability to satisfy a financial maintenance covenant on a future date or in a future period) to the effect that such consolidated financial statements fairly present, in all material respects, the financial position and results of operations of the Borrower and its Subsidiaries on a consolidated basis in accordance with GAAP (it being understood that the delivery by the Borrower or AP Gaming Holdco, Inc. of annual reports on Form 10-K of the Borrower and its consolidated Subsidiaries or AP Gaming Holdco, Inc. and its consolidated Subsidiaries, as applicable, shall satisfy the requirements of this Section 5.04(a) to the extent such annual reports include the information specified herein); (b) within 45 60 days after the end of each of the first three fiscal quarters of each fiscal year (commencing with the fiscal quarter ending June 30, ~~2016~~2017), a consolidated balance sheet and related statements of operations and comprehensive loss and related statements of cash flows showing the financial position of the Borrower and its Subsidiaries as of the close of such fiscal quarter and the consolidated results of their operations during such fiscal quarter and the then-elapsed portion of the fiscal year and, starting with the fiscal quarter ending ~~September~~ June 30, ~~2016,~~ 2017 setting forth in comparative form the corresponding figures for the corresponding periods of the prior fiscal year, all of which shall be in reasonable detail, which consolidated balance sheet and related statements of operations and comprehensive loss and related statements of cash flows shall be accompanied by customary management’s discussion and analysis and ~~which consolidated balance sheet and related statements of operations and cash flows~~ shall be certified by a Financial Officer of the Borrower on behalf of the Borrower as fairly presenting, in all material respects, the financial position and results of operations of the Borrower and its Subsidiaries on a consolidated basis in accordance with GAAP (subject to normal year-end audit adjustments and the absence of footnotes) (it being understood that the delivery by the Borrower or AP Gaming Holdco, Inc. of quarterly reports on Form 10-Q of the Borrower and its consolidated Subsidiaries or AP Gaming Holdco, Inc. and its consolidated Subsidiaries, as applicable, shall satisfy the requirements of this Section 5.04(b) to the extent such quarterly reports include the information specified herein);

Appears in 7 contracts

Sources: Incremental Assumption and Amendment Agreement (PlayAGS, Inc.), Incremental Assumption and Amendment Agreement (PlayAGS, Inc.), Incremental Assumption and Amendment Agreement (PlayAGS, Inc.)

Financial Statements, Reports, etc. Furnish to the Administrative Agent (which will promptly furnish such information to the Lenders): (a) within 90 days after the end of each fiscal year (commencing with the fiscal year ending December 31, ~~2016~~2015), a consolidated balance sheet and related statements of operations, cash flows and owners’ equity showing the financial position of the Borrower and its Subsidiaries as of the close of such fiscal year and the consolidated results of their operations during such year ~~and~~ and, starting with the fiscal year ending December 31, 2015, setting forth in comparative form the corresponding figures for the prior fiscal year, which consolidated balance sheet and related statements of operations, cash flows and owners’ equity shall be ~~accompanied by customary management’s discussion and analysis and~~ audited by independent public accountants of recognized national standing and accompanied by an opinion of such accountants (which opinion shall not be qualified as to scope of audit or as to the status of the Borrower or any Material Subsidiary as a going concern, other than solely with respect to, or resulting solely from, an upcoming maturity date under any series of Indebtedness occurring within one year from the time such opinion is delivered or any potential inability to satisfy a financial maintenance covenant on a future date or in a future period) to the effect that such consolidated financial statements fairly present, in all material respects, the financial position and results of operations of the Borrower and its Subsidiaries on a consolidated basis in accordance with GAAP (it being understood that the delivery by the Borrower of annual reports on Form 10-K of the Borrower and its consolidated Subsidiaries shall satisfy the requirements of this Section 5.04(a) to the extent such annual reports include the information specified herein); (b) within 45 days after the end of each of the first three fiscal quarters of each fiscal year (commencing with the fiscal quarter ending June 30, ~~2016~~2015), a consolidated balance sheet and related statements of operations and cash flows showing the financial position of the Borrower and its Subsidiaries as of the close of such fiscal quarter and the consolidated results of their operations during such fiscal quarter and the then-elapsed portion of the fiscal year ~~and, starting with the fiscal quarter ending September 30, 2016,~~ and setting forth in comparative form the corresponding figures for the corresponding periods of the prior fiscal year, all of which shall be in reasonable detail, ~~which consolidated balance sheet and related statements of operations and cash flows shall be accompanied by customary management’s discussion and analysis and~~ which consolidated balance sheet and related statements of operations and cash flows shall be certified by a Financial Officer of the Borrower on behalf of the Borrower as fairly presenting, in all material respects, the financial position and results of operations of the Borrower and its Subsidiaries on a consolidated basis in accordance with GAAP (subject to normal year-end audit adjustments and the absence of footnotes) (it being understood that the delivery by the Borrower of quarterly reports on Form 10-Q of the Borrower and its consolidated Subsidiaries shall satisfy the requirements of this Section 5.04(b) to the extent such quarterly reports include the information specified herein);

Appears in 5 contracts

Sources: First Lien Credit Agreement (Hostess Brands, Inc.), First Lien Credit Agreement (Hostess Brands, Inc.), First Lien Credit Agreement (Hostess Brands, Inc.)

Appears in 4 contracts

Sources: Second Lien Bridge Credit Agreement (Berry Global Group Inc), Second Lien Bridge Credit Agreement, Second Lien Bridge Credit Agreement (Berry Global Group Inc)

Financial Statements, Reports, etc. ~~Furnish~~ So long as the Minimum Hold Condition is satisfied, furnish to the ~~Administrative Agent~~ Holders (~~which will promptly~~ or, with respect to Section 1.2(b)(iii), use its reasonable best efforts to furnish ~~such information~~ to the ~~Lenders~~Preferred Majority Holder): (ai) within 90 days after the end of each fiscal year (commencing with the fiscal year ending December 31, ~~2016~~2017), a consolidated balance sheet and related statements of operations, cash flows and owners’ equity showing the financial position of the Borrower and its Subsidiaries as of the close of such fiscal year and the consolidated results of their operations during such year and setting forth in comparative form the corresponding figures for the prior fiscal year, which consolidated balance sheet and related statements of operations, cash flows and owners’ equity shall be accompanied by customary management’s discussion and analysis and audited by independent public accountants of recognized national standing and accompanied by an opinion of such accountants (which opinion shall not be qualified as to scope of audit or as to the status of the Borrower or any of its Material ~~Subsidiary~~ Subsidiaries as a going concern, other than solely with respect to, or resulting solely from, an upcoming maturity date under any series of Indebtedness occurring within one year from the time such opinion is delivered or any potential inability to satisfy a financial maintenance covenant on a future date or in a future period) to the effect that such consolidated financial statements fairly present, in all material respects, the financial position and results of operations of the Borrower and its Subsidiaries on a consolidated basis in accordance with GAAP (it being understood that the delivery by the ~~Borrower~~ Company of annual reports on Form 10-K of the Borrower and its consolidated Subsidiaries shall satisfy the requirements of this Section ~~5.04(a~~1.2(b)(i) to the extent such annual reports include the information specified herein), and unaudited consolidating information that explains in reasonable detail the material differences, if any, between the information relating to the Borrower and its Subsidiaries, on the one hand, and the information relating to the Company and its Subsidiaries on a standalone basis, on the other hand; (bii) within 45 days after the end of each of the first three fiscal quarters of each fiscal year (commencing with the fiscal quarter ending ~~June 30~~March 31, ~~2016~~2017), a consolidated balance sheet and related statements of operations and cash flows showing the financial position of the Borrower and its Subsidiaries as of the close of such fiscal quarter and the consolidated results of their operations during such fiscal quarter and the then-elapsed portion of the fiscal year and, starting with the fiscal quarter ending ~~September 30~~March 31, ~~2016~~2017, setting forth in comparative form the corresponding figures for the corresponding periods of the prior fiscal year, all of which shall be in reasonable detail, which consolidated balance sheet and related statements of operations and cash flows shall be accompanied by customary management’s discussion and analysis and which consolidated balance sheet and related statements of operations and cash flows shall be certified by a Financial Officer of the ~~Borrower~~ Company on behalf of the ~~Borrower~~ Company as fairly presenting, in all material respects, the financial position and results of operations of the Borrower and its Subsidiaries on a consolidated basis in accordance with GAAP (subject to normal year-end audit adjustments and the absence of footnotes) (it being understood that the delivery by the ~~Borrower~~ Company of quarterly reports on Form 10-Q of the Borrower and its consolidated Subsidiaries shall satisfy the requirements of this Section ~~5.04(b~~1.2(b)(ii) to the extent such quarterly reports include the information specified herein), and unaudited consolidating information that explains in reasonable detail the material differences, if any, between the information relating to the Borrower and its Subsidiaries, on the one hand, and the information relating to the Company and its Subsidiaries on a standalone basis, on the other hand; (iii) commencing on the date that is one month following the Agreement Date, the standard monthly reporting package showing the financial position of the Borrower and its Subsidiaries, solely to the extent prepared internally by management; (iv) (x) concurrently with any delivery of financial statements under Section 1.2(b)(i) or Section 1.2(b)(ii) above, a certificate of a Financial Officer of the Company (A) certifying that no Event of Default has occurred since the date of the last certificate delivered pursuant to this Section 1.2(b)(iv) or, if such an Event of Default has occurred, specifying the nature and extent thereof and any corrective action taken or proposed to be taken with respect thereto and (B) setting forth computations in reasonable detail satisfactory to the Holders demonstrating compliance with the Financial Covenant and (y) concurrently with any delivery of financial statements under Section 1.2(b)(i) above, if the accounting firm is not restricted from providing such a certificate by its policies office, a certificate of the accounting firm opining on or certifying such statements stating whether they obtained knowledge during the course of their examination of such statements of any Event of Default (which certificate may be limited to accounting matters and disclaim responsibility for legal interpretations); (v) promptly after the same become publicly available, copies of all periodic and other publicly available reports, proxy statements and, to the extent requested by any Holder, other materials filed by the Member, the General Partner, Parent, the Company or any of its Subsidiaries with the Securities and Exchange Commission or, after an Initial Public Offering, distributed to its equity holders generally, as applicable; provided that such reports, proxy statements, filings and other materials required to be delivered pursuant to this Section 1.2(b)(v) shall be deemed delivered for purposes of this Agreement when posted to the website of the Member, the General Partner, Parent, the Company or any of its Subsidiaries or the website of the Securities and Exchange Commission and written notice of such posting has been delivered to the Holders; (vi) within 90 days (or such later date as the Preferred Majority Holder may agree in its reasonable discretion) after the beginning of each fiscal year (commencing with the fiscal year ending December 31, 2017), a consolidated annual budget for such fiscal year consisting of a projected consolidated balance sheet of the Borrower and its Subsidiaries as of the end of the following fiscal year and the related consolidated statements of projected cash flow and projected income (collectively, the “Budget”), which Budget shall in each case be accompanied by the statement of a Financial Officer of the Company to the effect that the Budget is based on assumptions believed by the Company to be reasonable as of the date of delivery thereof, and information that explains in reasonable detail the material differences, if any, between the information relating to the Borrower and its Subsidiaries, on the one hand, and the information relating to the Company and its Subsidiaries on a standalone basis, on the other hand; (vii) promptly, from time to time, such other information regarding the operations, business affairs and financial condition of the Member, the General Partner, Parent, the Company or any of its Subsidiaries, or compliance with the terms of this Agreement, any other Related Agreement or any Loan Document as in each case any Holder may reasonably request (for itself or on behalf of any other such Holder); (viii) in the event that the Member, the General Partner, Parent, the Company or Holdings reports on a consolidated basis, such consolidated reporting at the Member’s, the General Partner’s, Parent’s, the Company’s or Holdings’ level in a manner consistent with that described in Section 1.2(b)(i) and Section 1.2(b)(ii) for the Borrower (together with a reconciliation showing the adjustments necessary to determine compliance by the Company and its Subsidiaries with the Financial Covenant) shall satisfy the requirements of such paragraphs; and (ix) at a time mutually agreed with the Preferred Majority Holder after the delivery of the financial statements required pursuant to Section 1.2(b)(i) and Section 1.2(b)(ii) (but not later than 10 Business Days after such delivery), upon request of the Preferred Majority Holder, the Company shall cause appropriate Financial Officers or other officers with reasonably equivalent duties of the Company to participate in one conference call for the Holders to discuss the financial condition and results of operations of the Company and its Subsidiaries for the most recently ended fiscal period. The Company hereby acknowledges and agrees that all financial statements furnished pursuant to Sections 1.2(b)(i), 1.2(b)(ii) and 1.2(b)(iv) are hereby deemed to be information suitable for distribution, and to be made available, to Public Side Holders as contemplated in the immediately succeeding paragraph and may be treated by the Holders as if the same had been marked “PUBLIC” in accordance with such paragraph. The Company hereby acknowledges that certain of the Holders may be Public Side Holders (i.e., Holders that do not wish to receive Private Holder Information). The Company hereby agrees that it will use commercially reasonable efforts to identify that portion of the materials and/or information provided by or on behalf of the Company hereunder (collectively, “Company Materials”) that may be distributed to Public Side Holders and that (i) all such Company Materials shall be clearly and conspicuously marked “PUBLIC” which, at a minimum, shall mean that the word “PUBLIC” shall appear prominently on the first page thereof and (ii) by marking Company Materials “PUBLIC”, the Company shall be deemed to have authorized the Holders to treat such Company Materials as solely containing information that is Public Holder Information.

Appears in 4 contracts

Sources: Series a Investors Rights Agreement, Series a Investors Rights Agreement (ADT Inc.), Series a Investors Rights Agreement (ADT, Inc.)

Financial Statements, Reports, etc. Furnish to the Administrative Agent (which will promptly furnish such information to the Lenders): (a) within 90 days after the end of each fiscal year ~~(commencing with~~ ending after the ~~fiscal year ending December 31, 2016)~~Closing Date, a consolidated balance sheet and related statements of operations, cash flows and owners’ equity showing the financial position of the ~~Borrower~~ Parent and its Subsidiaries as of the close of such fiscal year and the consolidated results of their operations during such year and setting forth in comparative form the corresponding figures for the prior fiscal year, which consolidated balance sheet and related statements of operations, cash flows and owners’ equity shall be accompanied by customary management’s discussion and analysis and audited by independent public accountants of recognized national standing and accompanied by an opinion of such accountants (which opinion shall not be qualified as to scope of audit or as to the status of the ~~Borrower~~ Parent or any Material Subsidiary as a going concern, other than solely with respect to, or resulting solely from, an upcoming maturity date under any series of Indebtedness incurred under this Agreement occurring within one year from the time such opinion is ~~delivered or any potential inability to satisfy a financial maintenance covenant on a future date or in a future period~~delivered) to the effect that such consolidated financial statements fairly present, in all material respects, the financial position and results of operations of the ~~Borrower~~ Parent and its Subsidiaries on a consolidated basis in accordance with ~~GAAP~~ Applicable Accounting Principles (it being understood that the delivery by the ~~Borrower~~ Parent of annual reports on Form 10-K of the ~~Borrower~~ Parent and its consolidated Subsidiaries shall satisfy the requirements of this Section 5.04(a) to the extent such annual reports include the information specified herein); (b) within 45 days after the end of each of the first three fiscal quarters of each fiscal year (commencing with the first fiscal quarter ending ~~June 30, 2016~~after the Closing Date), a consolidated balance sheet and related statements of operations and cash flows showing the financial position of the ~~Borrower~~ Parent and its Subsidiaries as of the close of such fiscal quarter and the consolidated results of their operations during such fiscal quarter and the then-elapsed portion of the fiscal year ~~and, starting with the fiscal quarter ending September 30, 2016,~~ and setting forth in comparative form the corresponding figures for the corresponding periods of the prior fiscal year, all of which shall be in reasonable detail, which consolidated balance sheet and related statements of operations and cash flows shall be accompanied by customary management’s discussion and analysis and which consolidated balance sheet and related statements of operations and cash flows shall be certified by a Financial Officer of the ~~Borrower~~ Parent on behalf of the ~~Borrower~~ Parent as fairly presenting, in all material respects, the financial position and results of operations of the ~~Borrower~~ Parent and its Subsidiaries on a consolidated basis in accordance with ~~GAAP~~ Applicable Accounting Principles (subject to normal year-end audit adjustments and the absence of footnotes) (it being understood that the delivery by the ~~Borrower~~ Parent of quarterly reports on Form 10-Q of the ~~Borrower~~ Parent and its consolidated Subsidiaries shall satisfy the requirements of this Section 5.04(b) to the extent such quarterly reports include the information specified herein);

Appears in 4 contracts

Sources: Credit Agreement (Mallinckrodt PLC), Credit Agreement (Mallinckrodt PLC), Credit Agreement (Mallinckrodt PLC)

Financial Statements, Reports, etc. Furnish to the Administrative Agent (which will promptly furnish such information to the Lenders): (a1) within 90 days ~~after~~ following the end of each fiscal year ended after the Closing Date (~~commencing with the fiscal year ending December 31, 2016~~i), a consolidated balance sheet and related statements of operations, cash flows and owners’ equity showing the financial position of the Borrower and ~~its~~ the Restricted Subsidiaries as of the close of such fiscal year and the consolidated results of ~~their~~ its operations during such fiscal year ~~and~~ and, in each case, starting with the following fiscal year, setting forth in comparative form the corresponding figures for the prior fiscal year, which consolidated balance sheet and related statements of operations, cash flows and owners’ equity ~~shall~~ will be ~~accompanied by customary management’s discussion and analysis and~~ audited by independent public accountants of recognized national ~~standing~~ standing, or such other accountants as are reasonably acceptable to the Administrative Agent, and accompanied by an opinion of such accountants (which opinion shall not be ~~qualified as~~ subject to ~~scope of audit or as to the status of the Borrower or~~ any ~~Material Subsidiary as a~~ “going concern” statement, explanatory note or like qualification or exception (other than ~~solely with respect to~~a “going concern” statement, explanatory note or like qualification or exception resulting ~~solely from,~~ from an upcoming maturity date ~~under any series of Indebtedness~~ occurring within one year from the time such opinion is delivered or ~~any potential inability to satisfy a financial maintenance~~ anticipated (but not actual) covenant ~~on a future date or in a future period~~non-compliance)) to the effect that such consolidated financial statements fairly present, in all material respects, the financial position and results of operations of the Borrower and ~~its~~ the Restricted Subsidiaries on a consolidated basis in accordance with GAAP (it the applicable financial statements delivered pursuant to this clause (1) being ~~understood that~~ the ~~delivery by~~ “Annual Financial Statements”) and (ii) a management’s discussion and analysis of financial conditions and results of operations, discussing and analyzing the ~~Borrower~~ results of ~~annual reports on Form 10-K~~ operations of the Borrower ~~and its consolidated Subsidiaries shall satisfy~~ for the ~~requirements of this Section 5.04(a) to the extent~~ period covered by such ~~annual reports include the information specified herein)~~Annual Financial Statements; (b2) within 45 days ~~after~~ following the end of each of the first three fiscal quarters of each fiscal ~~year~~ year, (~~commencing with the fiscal quarter ending June 30, 2016),~~ i) a consolidated balance sheet and related statements of operations and cash flows showing the financial position of the Borrower and ~~its~~ the Restricted Subsidiaries as of the close of such fiscal quarter and the consolidated results of ~~their~~ its operations during such fiscal quarter ~~and~~ and, in each case, the then-elapsed portion of the fiscal year ~~and, starting with the fiscal quarter ending September 30, 2016,~~ and setting forth in comparative form the corresponding figures for the corresponding periods of the prior fiscal year, ~~all of which shall be in reasonable detail,~~ which consolidated balance sheet and related statements of operations and cash flows ~~shall be accompanied by customary management’s discussion and analysis and which consolidated balance sheet and related statements of operations and cash flows shall~~ will be certified by a ~~Financial~~ Responsible Officer of the Borrower on behalf of the Borrower as fairly presenting, in all material respects, the financial position and results of operations of the Borrower and ~~its~~ the Restricted Subsidiaries on a consolidated basis in accordance with ~~GAAP (~~GAAP, subject to normal year-end audit adjustments and the absence of footnotes, and (ii) a management’s discussion and analysis of financial condition and results of operations, discussing and analyzing the results of operations of the Borrower for such fiscal quarter (the applicable financial statements delivered pursuant to this clause (2) being the “Quarterly Financial Statements” and, together with the Annual Financial Statements, the “Required Financial Statements”); (3) concurrently with any delivery of Required Financial Statements, a certificate of a Financial Officer of the Borrower: (a) certifying that no Default or Event of Default has occurred and is continuing or, if a Default or Event of Default has occurred and is continuing, specifying the nature and extent thereof and any corrective action taken or proposed to be taken with respect thereto; (b) setting forth the calculation and uses of the Available Amount for the fiscal period then ended if the Borrower has used the Available Amount for any purpose during such fiscal period; (c) certifying a list of all Immaterial Subsidiaries, that each Subsidiary set forth on such list individually qualifies as an Immaterial Subsidiary and that all such Subsidiaries in the aggregate do not exceed the limitation set forth in clause (ii) of the definition of the term “Immaterial Subsidiary”; (d) setting forth, in reasonable detail, the calculation of the Senior Secured First Lien Net Leverage Ratio for the most recent period of four consecutive fiscal quarters as of the close of such fiscal year or such fiscal quarter, as applicable; and (e) certifying a list of all Unrestricted Subsidiaries at such time and that each Subsidiary set forth on such list qualifies as an Unrestricted Subsidiary; (4) promptly after the same become publicly available, copies of all periodic and other publicly available reports, proxy statements and, to the extent requested by the Administrative Agent, other materials publicly filed by Holdings, the Borrower or any Restricted Subsidiary with the SEC or, after an initial public offering, distributed to its stockholders generally, as applicable; (5) within 90 days following the end of each full fiscal year ended after the Closing Date, a consolidated annual budget for such fiscal year in the form customarily prepared by the Borrower (the “Budget”), which Budget will in each case be accompanied by the statement of a Financial Officer of the Borrower on behalf of the Borrower to the effect that the Budget is based on assumptions believed by the Borrower to be reasonable as of the date of delivery thereof; (6) upon the reasonable request of the Collateral Agent, concurrently with the delivery of the Annual Financial Statements, an updated Perfection Certificate (or, to the extent such request relates to specified information contained in the Perfection Certificate, such information) reflecting all changes since the date of the information most recently received pursuant to this paragraph (6) or Section 5.10; (7) promptly, from time to time, such other information regarding the operations, business affairs and financial condition of Holdings, the Borrower or any Restricted Subsidiary, in each case, as the Administrative Agent may reasonably request (for itself or on behalf of any Lender); and (8) on a quarterly basis, at a time mutually agreed with Administrative Agent that is promptly after the delivery of the information required pursuant to clauses (1) and (2) for each fiscal quarter, participate in a conference call for Lenders to discuss the financial condition and results of operations of the Borrower and its Subsidiaries for the most recently-ended period for which financial statements have been delivered. Anything to the contrary notwithstanding, the obligations in clauses (1) and (2) of this Section 5.04 may be satisfied with respect to financial information of the Borrower and the Restricted Subsidiaries by furnishing (1) the applicable financial statements of Holdings (or any other Parent Entity) or (2) the Borrower’s or Holdings’ (or any such other Parent Entity’s), as applicable, Form 10 K or 10 Q, as applicable, filed with the SEC; provided that with respect to each of the foregoing clauses (1) and (2) (a) to the extent such information relates to Holdings (or a Parent Entity), such information is accompanied by consolidating information that explains in reasonable detail the differences between the information relating to Holdings (or such Parent Entity), on the one hand, and the information relating to the Borrower and the Restricted Subsidiaries on a standalone basis, on the other hand, and (b) to the extent such information is in lieu of information required to be provided under Section 5.04(1), such materials are accompanied by a report and opinion of independent public accountants of recognized national standing, or such other accountants as are reasonably acceptable to the Administrative Agent, and accompanied by an opinion of such accountants (which opinion shall not be subject to any “going concern” statement, explanatory note or like qualification or exception (other than a “going concern” statement, explanatory note or like qualification or exception resulting from an upcoming maturity date occurring within one year from the time such opinion is delivered or anticipated (but not actual) covenant non-compliance)) (it being understood and agreed that ~~the delivery by~~ if, in compliance with this paragraph, (x) the Borrower provides audited financial statements of ~~quarterly reports~~ Holdings (or any other Parent Entity) and related report and opinion of accountants with respect thereto in lieu of information required to be provided under Section 5.04(1), no such audited financial information, opinion or report shall be required with respect to the Borrower, (y) the Borrower provides unaudited financial statements of Holdings (or any other Parent Entity) in lieu of information required to be provided under Section 5.04(2), no such unaudited financial information shall be required with respect to the Borrower and (z) the Borrower provides a Budget of Holdings and accompanying statement (or any other Parent Entity) in lieu of information required to be provided under Section 5.04(5), no such Budget shall be required with respect to the Borrower; provided that for the avoidance of doubt, with respect to the foregoing clauses (x), (y) and (z) (i) to the extent such information relates to Holdings (or a Parent Entity), such information is accompanied by consolidating information that explains in reasonable detail the differences between the information relating to Holdings (or such Parent Entity), on ~~Form 10~~the one hand, and the information relating to the Borrower and the Restricted Subsidiaries on a standalone basis, on the other hand, and (ii) to the extent such information is in lieu of information required to be provided under Section 5.04(1), such materials are accompanied by a report and opinion of independent public accountants of recognized national standing, or such other accountants as are reasonably acceptable to the Administrative Agent, and accompanied by an opinion of such accountants (which opinion shall not be subject to any “going concern” statement, explanatory note or like qualification or exception (other than a “going concern” statement, explanatory note or like qualification or exception resulting solely from an upcoming maturity date occurring within one year from the time such opinion is delivered or anticipated (but not actual) covenant non-Q compliance)). The obligations in clauses (1) and (2) of this Section 5.04 may be satisfied by delivery of financial information of the Borrower and its ~~consolidated~~ Subsidiaries ~~shall satisfy~~ so long as such financial statements include a reasonably detailed presentation, either on the ~~requirements~~ face of the financial statements or in the footnotes thereto, of the financial condition and results of operations of the Borrower and the Restricted Subsidiaries separate from the financial condition and results of operations of the Unrestricted Subsidiaries of the Borrower. Documents required to be delivered pursuant to this Section ~~5.04(b) to the extent such quarterly reports include the information specified herein~~5.04 may be delivered electronically in accordance with Section 10.01(5);.

Appears in 3 contracts

Sources: First Lien Term Loan Credit Agreement (BJ's Wholesale Club Holdings, Inc.), First Lien Term Loan Credit Agreement (BJ's Wholesale Club Holdings, Inc.), First Lien Term Loan Credit Agreement (BJ's Wholesale Club Holdings, Inc.)

Appears in 3 contracts

Sources: Term Loan Credit Agreement (Rotech Healthcare Inc), Term Loan Credit Agreement (Rotech Healthcare Inc), Term Loan Credit Agreement (Rotech Healthcare Inc)

Financial Statements, Reports, etc. Furnish to the Administrative Agent (which will promptly furnish such information to the Lenders): (a) within 90 days after the end of each fiscal year (commencing with the first fiscal year ending ~~December 31, 2016~~after the Closing Date), a consolidated balance sheet and related statements of ~~operations~~income, stockholders’ equity, and cash ~~flows and owners’ equity~~ flow showing the financial position of ~~the Borrower~~ Parent and its Subsidiaries as of the close of such fiscal year and the consolidated results of their operations during such year and setting forth in comparative form the corresponding figures for the prior fiscal year, which consolidated balance sheet and related statements of ~~operations~~income, stockholders’ equity, and cash ~~flows and owners’ equity~~ flow shall be accompanied by customary management’s discussion and analysis and audited by independent public accountants of recognized national standing and accompanied by an opinion of such accountants (which opinion shall not be qualified as to scope of audit or as to the status of ~~the Borrower~~ Parent or any Material Subsidiary as a going concern, other than solely with respect to, or resulting solely from, an upcoming maturity date under any series of Indebtedness incurred under this Agreement occurring within one year from the time such opinion is ~~delivered or any potential inability to satisfy a financial maintenance covenant on a future date or in a future period~~delivered) to the effect that such consolidated financial statements fairly present, in all material respects, the financial position and results of operations of ~~the Borrower~~ Parent and its Subsidiaries on a consolidated basis in accordance with GAAP (it being understood that the delivery by the ~~Borrower~~ Parent of annual reports on Form 10-K of ~~the Borrower~~ Parent and its consolidated Subsidiaries shall satisfy the requirements of this Section 5.04(a) to the extent such annual reports include the information specified ~~herein~~herein and are delivered within the time period specified above); (b) within 45 days after the end of each of the first three fiscal quarters of each fiscal year (commencing with the first fiscal quarter ending ~~June 30, 2016~~after the Closing Date), a consolidated balance sheet and related statements of operations and cash flows showing the financial position of ~~the Borrower~~ Parent and its Subsidiaries as of the close of such fiscal quarter and the consolidated results of their operations during such fiscal quarter and the then-elapsed portion of the fiscal year ~~and, starting with the fiscal quarter ending September 30, 2016,~~ and setting forth in comparative form the corresponding figures for the corresponding periods of the prior fiscal ~~year~~year or, to the extent permitted by the SEC, prior fiscal period, all of which shall be in reasonable detail, which consolidated balance sheet and related statements of operations and cash flows shall be accompanied by customary management’s discussion and analysis and which consolidated balance sheet and related statements of operations and cash flows shall be certified by a Financial Officer of ~~the Borrower~~ Parent on behalf of ~~the Borrower~~ Parent as fairly presenting, in all material respects, the financial position and results of operations of ~~the Borrower~~ Parent and its Subsidiaries on a consolidated basis in accordance with GAAP (subject to normal year-end audit adjustments and the absence of footnotes) (it being understood that the delivery by the ~~Borrower~~ Parent of quarterly reports on Form 10-Q of ~~the Borrower~~ Parent and its consolidated Subsidiaries shall satisfy the requirements of this Section 5.04(b) to the extent such quarterly reports include the information specified ~~herein~~herein and are delivered within the time period specified above); (c) on or prior to the tenth Business Day following any delivery of financial statements under clause (a) or (b) above, a certificate of a Financial Officer of Parent (i) certifying that no Event of Default or Default has occurred since the date of the last certificate delivered pursuant to this Section 5.04(c) (or since the Closing Date in the case of the first such certificate) or, if such an Event of Default or Default has occurred, specifying the nature and extent thereof and any corrective action taken or proposed to be taken with respect thereto, (ii) commencing with the end of the first full fiscal quarter after the Closing Date, setting forth computations in reasonable detail satisfactory to the Administrative Agent demonstrating compliance with the Financial Covenants (if applicable) and (iii) setting forth the calculation and uses of the Available Amount for the fiscal period then ended if the Parent shall have used the Available Amount for any purpose during such fiscal period; (d) promptly after the same become publicly available, copies of all periodic and other publicly available reports, proxy statements and, to the extent requested by the Administrative Agent, other materials filed by the Parent or any of the Subsidiaries with the SEC, or distributed to its stockholders generally, as applicable; provided, however, that such reports, proxy statements, filings and other materials required to be delivered pursuant to this clause (d) shall be deemed delivered for purposes of this Agreement when posted to the website of Parent or the website of the SEC; (e) within 90 days after the beginning of each fiscal year that commences after the Closing Date, a consolidated annual budget for such fiscal year consisting of a projected consolidated balance sheet of Parent and its Subsidiaries as of the end of such fiscal year and the related consolidated statements of projected cash flow and projected income (collectively, the “Budget”), which Budget shall in each case be accompanied by the statement of a Financial Officer of Parent to the effect that the Budget is based on assumptions believed by the Parent to be reasonable as of the date of delivery thereof; (f) on or prior to the tenth Business Day following the delivery of financial statements under clause (a) above, an updated Perfection Certificate reflecting all changes since the date of the information most recently received pursuant to this clause (f) or Section 5.10(c) (or a certificate of a Responsible Officer certifying as to the absence of any changes to the previously delivered update, if applicable); and (g) promptly, from time to time, such other information regarding the operations, business affairs and financial condition of Parent or any of the Subsidiaries, or compliance with the terms of any Loan Document as in each case the Administrative Agent may reasonably request (for itself or on behalf of any Lender). The Borrowers hereby acknowledge that (a) the Administrative Agent and/or the Arrangers may, but shall not be obligated to, make available to the Lenders and the Issuing Banks materials and/or information provided by or on behalf of the Borrowers hereunder (collectively, “Borrower Materials”) by posting the Borrower Materials on IntraLinks, Syndtrak, ClearPar, or a substantially similar electronic transmission system (the “Platform”) and (b) certain of the Lenders (each, a “Public Lender”) may have personnel who do not wish to receive material non-public information with respect to the Parent 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 Borrowers hereby agree that (w) the Borrower Materials that are to be distributed to the 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 Borrowers shall be deemed to have authorized the Administrative Agent, the Arrangers, the Issuing Banks and the Lenders to treat such Borrower Materials as not containing any material non-public information (although it may be sensitive and proprietary) with respect to the Parent, its Subsidiaries or any of their respective securities for purposes of United States Federal securities laws (provided, however, that such Borrower Materials shall be treated as set forth in Section 9.16, to the extent such Borrower Materials constitute information subject to the terms thereof); (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 Arrangers shall be entitled to treat any Borrower Materials that are not marked “PUBLIC” as being suitable only for posting on a portion of the Platform not designated “Public Side Information.” The Parent acknowledges and agrees that all financial statements furnished pursuant to paragraphs (a), (b) and (d) above are hereby deemed to be Borrower Materials suitable for distribution, and to be made available, to Public Lenders as contemplated above and may be treated by the Administrative Agent and the Lenders as if the same had been marked “PUBLIC” in accordance with such paragraph (unless the Parent otherwise notifies the Administrative Agent in writing on or prior to delivery thereof).

Appears in 3 contracts

Sources: Credit Agreement (Jazz Pharmaceuticals PLC), Credit Agreement (Jazz Pharmaceuticals PLC), Credit Agreement (Jazz Pharmaceuticals PLC)

Financial Statements, Reports, etc. ~~Furnish~~ Guarantor shall deliver (or cause to ~~the Administrative Agent (which will promptly furnish such information~~ be delivered) to ~~the Lenders):~~Buyer: (a) as soon as available and in any event within 90 forty-five (45) days after the end of each of the first three quarterly fiscal periods of each fiscal year of Guarantor, the unaudited balance sheet and income statement of Guarantor, which shall incorporate its consolidated Subsidiaries (including Pledgor and Seller), as at the end of such period, setting forth in each case in comparative form the figures for the previous year, accompanied by an Officer’s Certificate of Guarantor, which certificate shall state that said consolidated financial statements fairly present the consolidated financial condition and results of operations of Guarantor and its consolidated Subsidiaries in accordance with GAAP, consistently applied, as at the end of, and for, such period (subject to normal year-end audit adjustments); (b) as soon as available and in any event within one hundred twenty (120) days after the end of each fiscal year of Guarantor: (~~commencing with~~ i) the unaudited, balance sheet and income statement of Guarantor, which shall incorporate its consolidated Subsidiaries as at the end of such fiscal year ~~ending December 31~~, ~~2016)~~accompanied by an Officer’s Certificate of Guarantor, a which certificate shall state that said consolidated financial statements fairly present the consolidated financial condition and results of operations of Guarantor and its consolidated Subsidiaries in accordance with GAAP, consistently applied, as at the end of, and for, such period; (ii) the combined, consolidated balance sheet and ~~related statements~~ statement of ~~operations~~equity of REIT, ~~cash flows and owners’ equity showing~~ which shall incorporate its consolidated Subsidiaries, as at the ~~financial position of the Borrower and its Subsidiaries as of the close~~ end of such fiscal year and the related combined, consolidated ~~results~~ statements of ~~their~~ operations ~~during~~ and of cash flows for REIT, which shall incorporate its consolidated Subsidiaries, for such ~~year and setting forth in comparative form the corresponding figures for the prior fiscal~~ year, ~~which consolidated balance sheet and related statements of operations, cash flows and owners’ equity shall be~~ accompanied by ~~customary management’s discussion and analysis and audited by~~ an opinion thereon of Deloitte Consulting LLP or other independent certified public accountants of recognized national ~~standing and accompanied by an opinion of such accountants (~~standing, which opinion shall not be qualified as to scope of audit or ~~as to the status of the Borrower or any Material Subsidiary as a~~ going ~~concern~~concern and shall state that said combined, other than solely with respect to, or resulting solely from, an upcoming maturity date under any series of Indebtedness occurring within one year from the time such opinion is delivered or any potential inability to satisfy a financial maintenance covenant on a future date or in a future period) to the effect that such consolidated financial statements fairly ~~present~~present the combined, ~~in all material respects, the~~ consolidated financial ~~position~~ condition and results of operations of ~~the Borrower and its Subsidiaries on a consolidated basis in accordance with GAAP (it being understood that the delivery by the Borrower of annual reports on Form 10-K of the Borrower~~ REIT and its consolidated Subsidiaries ~~shall satisfy the requirements of this Section 5.04(a) to the extent such annual reports include the information specified herein); (b) within 45 days after~~ as at the end ~~of each of the first three fiscal quarters of each~~ of, and for, such fiscal year (commencing with the fiscal quarter ending June 30, 2016), a consolidated balance sheet and related statements of operations and cash flows showing the financial position of the Borrower and its Subsidiaries as of the close of such fiscal quarter and the consolidated results of their operations during such fiscal quarter and the then-elapsed portion of the fiscal year and, starting with the fiscal quarter ending September 30, 2016, setting forth in comparative form the corresponding figures for the corresponding periods of the prior fiscal year, all of which shall be in reasonable detail, which consolidated balance sheet and related statements of operations and cash flows shall be accompanied by customary management’s discussion and analysis and which consolidated balance sheet and related statements of operations and cash flows shall be certified by a Financial Officer of the Borrower on behalf of the Borrower as fairly presenting, in all material respects, the financial position and results of operations of the Borrower and its Subsidiaries on a consolidated basis in accordance with GAAP (subject to normal year-end audit adjustments and the absence of footnotes) (it being understood that the delivery by the Borrower of quarterly reports on Form 10-Q of the Borrower and its consolidated Subsidiaries shall satisfy the requirements of this Section 5.04(b) to the extent such quarterly reports include the information specified herein)GAAP;

Appears in 3 contracts

Sources: Guaranty Agreement (KKR Real Estate Finance Trust Inc.), Guaranty Agreement (KKR Real Estate Finance Trust Inc.), Guaranty Agreement (KKR Real Estate Finance Trust Inc.)

Financial Statements, Reports, etc. (a) Furnish to the Administrative ~~Agent (~~Agent, which ~~will promptly~~ shall furnish ~~such information~~ to ~~the Lenders):~~each Issuing Bank and each Lender: (ai) within 90 days after the end of each fiscal year (commencing with the fiscal year ~~ending~~ ended December 31, ~~2016~~2018), a the Administrative Borrower’s consolidated balance sheet and related statements of ~~operations~~income, partners’ equity and cash flows ~~and owners’ equity~~ showing the financial ~~position~~ condition of the Administrative Borrower and its consolidated Subsidiaries as of the close of such fiscal year and the ~~consolidated~~ results of ~~their~~ its operations and the operations of such Subsidiaries during such ~~year and setting forth in~~ year, together with comparative ~~form the corresponding~~ figures for the ~~prior~~ immediately preceding fiscal year, ~~which consolidated balance sheet and related statements of operations, cash flows and owners’ equity shall be accompanied by customary management’s discussion and analysis and~~ all audited by KPMG LLP or other independent public accountants of recognized national standing and accompanied by an opinion of such accountants (which opinion shall ~~not~~ be ~~qualified as~~ without a “going concern” or like qualification or exception (except for any such qualification or exception pertaining to ~~scope~~ (x) one or more debt maturities occurring within 12 months of the relevant audit or (y) a breach or anticipated breach of financial covenants) and without any qualification or exception as to the ~~status~~ scope of the Borrower or any Material Subsidiary as a going concern, other than solely with respect to, or resulting solely from, an upcoming maturity date under any series of Indebtedness occurring within one year from the time such ~~opinion is delivered or any potential inability to satisfy a financial maintenance covenant on a future date or in a future period~~audit) to the effect that such consolidated financial statements fairly ~~present, in all material respects,~~ present the financial ~~position~~ condition and results of operations of the Administrative Borrower and its consolidated Subsidiaries on a consolidated basis in all material respects in accordance with GAAP ~~(it being understood that the delivery by the Borrower of annual reports on Form 10-K of the Borrower~~ consistently applied, together with a customary “management discussion and ~~its consolidated Subsidiaries shall satisfy the requirements of this Section 5.04(a) to the extent such annual reports include the information specified herein)~~analysis” provision; (bii) within 45 days after the end of each fiscal quarter (other than the final fiscal quarter of ~~the first three~~ any fiscal ~~quarters of each fiscal year~~ year) (commencing with the fiscal quarter ~~ending June~~ ended September 30, ~~2016~~2018), a the Administrative Borrower’s consolidated balance sheet and related statements of ~~operations~~ income, partners’ equity and cash flows showing the financial ~~position~~ condition of the Administrative Borrower and its consolidated Subsidiaries as of the close of such fiscal quarter and the ~~consolidated~~ results of ~~their~~ its operations and the operations of such Subsidiaries during such fiscal quarter and the ~~then-~~then elapsed portion of the fiscal ~~year and~~year, ~~starting with the fiscal quarter ending September 30, 2016, setting forth in~~ and comparative ~~form the corresponding~~ figures for the ~~corresponding~~ same periods of in the ~~prior~~ immediately preceding fiscal year, all of which shall be in reasonable detail, which consolidated balance sheet and related statements of operations and cash flows shall be accompanied by customary management’s discussion and analysis and which consolidated balance sheet and related statements of operations and cash flows shall be certified by a one of its Financial ~~Officer of the Borrower on behalf of the Borrower~~ Officers as fairly ~~presenting, in all material respects,~~ presenting the financial ~~position~~ condition and results of operations of the Administrative Borrower and its consolidated Subsidiaries on a consolidated basis in all material respects in accordance with GAAP (consistently applied, subject to normal year-end audit ~~adjustments~~ adjustments, together with a customary “management discussion and analysis” provision; (iii) concurrently with any delivery of financial statements under paragraph (i) or (ii) above, a certificate of a Financial Officer (the ~~absence~~ “Compliance Certificate”) in the form of ~~footnotes~~Exhibit J (x) certifying that no Event of Default or Default has occurred and is continuing or, if such an Event of Default or Default has occurred and is continuing, specifying the nature and extent thereof and any corrective action taken or proposed to be taken with respect thereto and (~~it being understood that~~ y) setting forth computations in reasonable detail reasonably satisfactory to the Administrative Agent demonstrating compliance with the Financial Covenants; (iv) concurrently with any delivery ~~by the Borrower~~ of ~~quarterly reports on Form 10-Q~~ financial statements under paragraph (i) above, an annual business plan and budget of the Administrative Borrower and its Restricted Subsidiaries on a consolidated ~~Subsidiaries shall satisfy~~ basis; (v) promptly after the ~~requirements~~ request by any Lender, all documentation and other information that such Lender reasonably requests in order to comply with its ongoing obligations under applicable “know your customer” and anti-money laundering rules and regulations, including the USA PATRIOT Act and the Beneficial Ownership Regulation; (vi) promptly after the occurrence thereof, notice of ~~this Section 5.04(b~~any change in the information provided in the mostly recently delivered Beneficial Ownership Certification (if any) that would result in a change to the ~~extent~~ list of beneficial owners identified in parts (c) or (d) of such Certification; (vii) (x) concurrently with any delivery of financial statements under paragraph (i) or (ii) above, a list of all Secured Hedging Agreements entered into in the relevant fiscal quarter and the relevant Qualified Counterparties party thereto and (y) if reasonably requested by the Administrative Agent, any documentation reasonably necessary to preserve and protect the priority of the Lien of the Collateral Agent for the benefit of the Secured Parties securing the Obligations under the Security Documents as may be contemplated by Section 5.13; and (viii) promptly, from time to time, such other information regarding the operations, business affairs and financial condition of any Borrower or any Restricted Subsidiary, or compliance with the terms of any Loan Document, as the Administrative Agent or any Lender may reasonably request. Information required to be delivered pursuant to Section 5.04(a)(i) and Section 5.04(a)(ii) above shall be deemed to have been delivered if such information, or one or more annual or quarterly reports ~~include~~ containing such information, shall be available on the website of the Securities Exchange Commission at ▇▇▇▇://▇▇▇.▇▇▇.▇▇▇ and the Compliance Certificate delivered pursuant to Section 5.04(a)(iii) provides a statement regarding the availability of such information ~~specified herein);~~on such website.

Appears in 3 contracts

Sources: Credit Agreement (Enviva Inc.), Credit Agreement (Enviva Inc.), Credit Agreement (Enviva Inc.)

Financial Statements, Reports, etc. ~~Furnish~~ In the case of the Borrower, furnish to the Administrative ~~Agent (~~Agent, which ~~will promptly~~ shall furnish ~~such information~~ to ~~the Lenders):~~each Lender: (a) within 90 days after the end of each fiscal ~~year (~~year, commencing with the fiscal year ~~ending~~ ended December 31, 2016), a its consolidated balance sheet and related statements of ~~operations~~income, stockholders’ equity and cash flows ~~and owners’ equity~~ showing the financial ~~position~~ condition of the Borrower and its consolidated Subsidiaries as of the close of such fiscal year and the ~~consolidated~~ results of ~~their~~ its operations and the operations of such Subsidiaries during such ~~year and~~ year, including the notes thereto, all in reasonable detail, setting forth in comparative ~~form the corresponding~~ figures for the ~~prior~~ immediately preceding fiscal year, ~~which consolidated balance sheet~~ and, if applicable, containing disclosure of the effect on the financial position or results of operations of any change in the application of accounting principles and ~~related~~ practices during the year; provided that such financial statements for the fiscal year ending December 31, 2016 may provide such information for the period from the Closing Date until the close of such fiscal year, and a written statement of the Borrower’s management setting forth a discussion of the Borrower’s financial condition and results of operations, ~~cash flows and owners’ equity~~ in each case, for the fiscal year then ended; Such financial statements shall be ~~accompanied by customary management’s discussion and analysis and~~ audited by PricewaterhouseCoopers LLP or other independent public accountants of recognized national standing and accompanied by an opinion of such accountants (which opinion shall not be qualified as to the scope of such audit or as to the status of the Borrower ~~or any Material Subsidiary~~ and its Subsidiaries as a “going concern, other than solely with respect to, or resulting solely from, an upcoming maturity date under any series of Indebtedness occurring within one year from the time such opinion is delivered or any potential inability to satisfy a financial maintenance covenant on a future date or in a future period”) to the effect that such consolidated financial statements fairly ~~present,~~ present in all material ~~respects,~~ respects the financial ~~position~~ condition and results of operations of the Borrower and its Subsidiaries on a consolidated basis in accordance with GAAP consistently (~~it being understood that the delivery by the Borrower of annual reports on Form 10-K of the Borrower and its consolidated Subsidiaries shall satisfy the requirements of this Section 5.04(a~~except as otherwise disclosed therein) ~~to the extent such annual reports include the information specified herein)~~applied; (b) within 45 days (or by such earlier date as the SEC may require for the filing of quarterly reports on Form 10-Q) after the end of each of the first three fiscal quarters of each fiscal ~~year (commencing with the fiscal quarter ending June 30~~year, ~~2016), a~~ its consolidated and consolidating balance sheet and related statements of ~~operations~~ income, stockholders’ equity and cash flows showing the financial ~~position~~ condition of the Borrower and its consolidated Subsidiaries as of the close of such fiscal quarter, together with a customary management discussion and analysis, in each case, for the fiscal quarter then ended and the ~~consolidated results of their operations during such fiscal quarter and the then-~~then elapsed portion of the fiscal year, all in reasonable detail setting forth comparative figures for the same periods in the immediately preceding fiscal year ~~and~~(provided that, ~~starting with~~ for each fiscal quarter from the Closing Date until the fiscal quarter ending prior to September 30, ~~2016~~2017, ~~setting forth in~~ such comparative ~~form~~ figures shall be required for only the ~~corresponding figures for the corresponding periods~~ Cetera Entities) and, if applicable, containing disclosure of the ~~prior fiscal year~~effect on the financial position or results of operations of any change in the application of accounting principles and practices during the period, all of which shall be in reasonable detail, which consolidated balance sheet and related statements of operations and cash flows shall be accompanied by customary management’s discussion and analysis and which consolidated balance sheet and related statements of operations and cash flows shall be certified by a one of its Financial ~~Officer of the Borrower on behalf of the Borrower~~ Officers as fairly ~~presenting,~~ presenting in all material ~~respects,~~ respects the financial ~~position~~ condition and results of operations of the Borrower and its consolidated Subsidiaries on a consolidated basis in accordance with GAAP consistently (except as otherwise disclosed therein) applied, subject to normal year-end audit adjustments and the absence of ~~footnotes~~required footnote disclosures; (c) concurrently with any delivery of financial statements under paragraph (a) or (b) above, a certificate of a Financial Officer substantially in the form of Exhibit F (a “Compliance Certificate”) (~~it being understood~~ i) certifying that no Default or Event of Default has occurred or, if such a Default or Event of Default has occurred, specifying the ~~delivery~~ nature and extent thereof and any corrective action taken or proposed to be taken with respect thereto, (ii) setting forth computations in reasonable detail demonstrating compliance with the covenants contained in Section 6.07 and (iii) setting forth the amount of any Pro Forma Basis calculation not previously set forth in any Pro Forma Basis Adjustment Certificate or any change in the amount of any such Pro Forma Basis calculation set forth in any Pro Forma Basis Adjustment Certificate previously provided and, in either case, in reasonable detail, the calculations and basis therefor; (d) within 90 days after the beginning of each fiscal year of the Borrower beginning with the fiscal year starting January 1, 2017, a detailed consolidated budget for such fiscal year (including projected operations and key cash flows) and, promptly when available, any significant revisions of such budget, which budget shall be in form, scope and detail reasonably satisfactory to the Required Lenders; (e) the Borrower shall, (i) on a date (which shall be a Business Day) following the last day of each of its fiscal years (which date will be specified by the Borrower to the Administrative Agent in writing at least 10 days prior to such date and which date shall be no later than 120 days following the last day of ~~quarterly reports~~ each such fiscal year), hold a meeting (which may be telephonic) and (ii) on ~~Form 10-Q~~ a date (which shall be a Business Day) following the last day of each of the first three fiscal quarters of each fiscal year (which date will be specified by the Borrower to the Administrative Agent in writing at least 7 days prior to such date and which date shall be no later than 60 days following the end of each such fiscal quarter), participate in a conference call, in each case, with the Administrative Agent and the Lenders that choose to attend, to discuss the financial condition and results of operations of the Borrower and its consolidated Subsidiaries ~~shall satisfy~~ for such fiscal year or such fiscal quarter (and for the ~~requirements~~ period from the beginning of ~~this Section 5.04(b~~the current fiscal year to the end of such fiscal quarter), as the case may be; (f) promptly upon filing thereof, copies of any filings (including on Form 10-K, 10-Q or 8-K) or registration statements with, and reports to, the SEC or any analogous Governmental Authority in any relevant jurisdiction by any Company (other than amendments to any registration statement (to the extent such ~~quarterly~~ registration statement, in the form it becomes effective, is delivered to the Administrative Agent), exhibits to any registration statement and, if applicable, any registration statements on Form S-8) and copies of all financial statements, proxy statements, notices and reports ~~include~~ that any Company shall send to the ~~information specified herein~~holders of any publicly issued debt of any Company, in their capacity as such holders, lenders or agents (in each case to the extent not theretofore delivered to the Administrative Agent pursuant to this Agreement); (g) promptly after the request by any Lender, all documentation and other information that such Lender reasonably requests in order to comply with its ongoing obligations under applicable “know your customer” and anti-money laundering rules and regulations, including the USA PATRIOT Act; (h) promptly, from time to time, and subject to the limitations set forth in the last sentence of Section 5.07(a), such other information regarding the operations, business affairs and financial condition of any Company, or compliance with the terms of any Loan Document, as the Administrative Agent or any Lender may reasonably request; (i) promptly provide the Administrative Agent and the Lenders with (A) all Financial and Operational Combined Uniform Single (FOCUS) Reports provided to FINRA or filed with the SEC in respect of each Broker-Dealer; (B) for each Broker-Dealer that does not qualify for an exemption from Rule 15c3-3 under the Exchange Act pursuant to paragraph (k) thereof, a weekly report setting forth the 15c3-3 reserve calculations of such Broker-Dealer, including without limitation, the underlying calculation used to produce such reserve calculations; (C) [reserved]; (D) all other material written presentations and reports with respect to one or more Broker-Dealers provided to any Regulatory Supervising Organization or any of the clearinghouses, clearing banks or clearing brokers through which such Broker-Dealer transacts (together with the Regulatory Supervising Organizations, collectively, the “Relevant Organizations”) with respect to such Broker-Dealer’s net capital, liquidity and compliance with financial responsibility rules; (E) any “early warning” notification of reductions in its level of Regulatory Net Capital delivered by a Broker-Dealer to a Regulatory Supervising Organization, including those under Rule 17a-11 under the Securities Exchange Act of 1934 or FINRA Rule 4120; (F) any notice received by a Broker-Dealer under FINRA Rule 4110; and (G) any written communications received by the Borrower or any other Company from a Relevant Organization with respect to any material investigation or inquiry that could reasonably be expected to lead to an enforcement action against a Company that has not discontinued operations; and (ii) provide the Administrative Agent and the Lenders on a quarterly basis, or such other frequency as may be agreed between the Borrower and the Required Lenders, with an oral report with regard to all communications with the Relevant Organizations relating to the matters described in clause (i) above; To the extent any document required to be delivered pursuant to this Section 5.04 is filed with the SEC electronically and is fully available to the public generally at or prior to the time such document is required to be delivered pursuant to this Section 5.04, such document shall be deemed to have been delivered on the date on which such document is filed and posted unless the Borrower provides the Administrative Agent with prior written notice that such filing is not intended to satisfy any delivery requirement hereunder.

Appears in 3 contracts

Sources: Second Lien Term Loan Agreement, First Lien Term Loan Agreement, First Lien Term Loan Agreement

Financial Statements, Reports, etc. Furnish to the Administrative Agent (which will promptly furnish such information to the Lenders): (a) within 90 120 days after the end of each fiscal ~~year (commencing with the fiscal year ending December 31, 2016)~~year, a consolidated balance sheet and related statements of operations, cash flows and owners’ equity showing the financial position of the Borrower and its Subsidiaries and, if different, the Borrower and the Restricted Subsidiaries, in each case as of the close of such fiscal year and the consolidated results of their operations during such year and setting forth in comparative form the corresponding figures for the prior fiscal ~~year, which consolidated balance sheet and related~~ year (or in lieu of such audited financial statements of ~~operations~~the Borrower and the Restricted Subsidiaries, ~~cash flows~~ a detailed reconciliation, reflecting such financial information for the Borrower and ~~owners’ equity shall be accompanied by customary management’s discussion~~ the Restricted Subsidiaries, on the one hand, and ~~analysis~~ the Borrower and the Subsidiaries, on the other hand, reflecting adjustments necessary to eliminate the accounts of Unrestricted Subsidiaries (if any) from such consolidated financial statements), all (except with respect to such reconciliation) audited by independent ~~public~~ accountants of recognized national standing reasonably acceptable to the Administrative Agent and accompanied by an opinion of such accountants (which opinion shall ~~not~~ be ~~qualified as~~ without a “going concern” or like qualification (other than an exception or explanatory paragraph with respect to ~~scope~~ the maturity of ~~audit~~ the Facilities for an opinion delivered in the fiscal year in which such Indebtedness matures) and without any qualification or exception as to the ~~status~~ scope of the Borrower or any Material Subsidiary as a going concern, other than solely with respect to, or resulting solely from, an upcoming maturity date under any series of Indebtedness occurring within one year from the time such ~~opinion is delivered or any potential inability to satisfy a financial maintenance covenant on a future date or in a future period~~audit) to the effect that such consolidated financial statements fairly present, in all material respects, the financial position and results of operations of the Borrower and its Subsidiaries on a consolidated basis in accordance with GAAP (it being understood that the delivery by the Borrower of annual reports on Form 10-K of the Borrower and its consolidated Subsidiaries shall satisfy the requirements of this Section 5.04(a) to the extent such annual reports include the information specified herein)GAAP; (b) within 45 60 days after the end of each of the first three fiscal quarters of each fiscal ~~year (commencing with the fiscal quarter ending June 30, 2016)~~year, a consolidated balance sheet and related statements of operations and cash flows showing the financial position of the Borrower and its Subsidiaries and, if different, the Borrower and the Restricted Subsidiaries, in each case as of the close of such fiscal quarter and the consolidated results of their operations during such fiscal quarter and the then-elapsed portion of the fiscal year ~~and, starting with the fiscal quarter ending September 30, 2016,~~ and setting forth in comparative form the corresponding figures for the corresponding periods of the prior fiscal ~~year~~year (or in lieu of such unaudited financial statements of the Borrower and the Restricted Subsidiaries, a detailed reconciliation, reflecting such financial information for the Borrower and the Restricted Subsidiaries, on the one hand, and the Borrower and the Subsidiaries, on the other hand, reflecting adjustments necessary to eliminate the accounts of Unrestricted Subsidiaries (if any) from such consolidated financial statements), all of which shall be in reasonable detail, which consolidated balance sheet and related statements of operations and cash flows shall be accompanied by customary management’s discussion and analysis and which consolidated balance sheet and related statements of operations and cash flows shall be certified by Crestwood GP or a Financial Officer of the ~~Borrower~~ Borrower, on behalf of the ~~Borrower~~ Borrower, as fairly presenting, in all material respects, the financial position and results of operations of the Borrower and its Subsidiaries on a consolidated basis in accordance with GAAP (subject to normal year-end audit adjustments and the absence of footnotes); (c) concurrently with any delivery of financial statements under (~~it being understood~~ a) or (b) above, a certificate of Crestwood GP or a Financial Officer of the Borrower (i) certifying that no Event of Default or Default has occurred or, if such an Event of Default or Default has occurred, specifying the nature and extent thereof and any corrective action taken or proposed to be taken with respect thereto, (ii) setting forth a computation of the Financial Performance Covenants in detail reasonably satisfactory to the Administrative Agent and (iii) certifying that the ~~delivery by~~ Mortgage Requirement is satisfied at the end of the applicable fiscal period; (i) upon the consummation of (A) any Permitted Business Acquisition, (B) the acquisition of any Relevant Subsidiary, (C) any Person becoming a Relevant Subsidiary or (D) the contribution to the Borrower of ~~quarterly reports~~ Equity Interests in any Person acquired pursuant to a Group Acquisition, in each case if the aggregate consideration for such transaction (or, in the case of clause (D), such Group Acquisition) exceeds $25.0 million, or upon the reasonable request of the Administrative Agent (but not, in the case of such request, more often than annually), an updated Perfection Certificate (or, to the extent such request relates to specified information contained in the Perfection Certificate, such information) reflecting all changes since the date of the information most recently received pursuant to Section 4.02(e), this Section 5.04(d) or Section 5.10(e) and (ii) concurrently with the delivery of financial statements under Section 5.04(a), a certificate executed by a Responsible Officer of the Borrower certifying compliance with Section 5.02(c) and providing evidence of such compliance, including without limitation copies of any flood hazard determination forms required to be delivered pursuant to Section 5.02(c); (e) promptly, from time to time, such other information regarding the operations, business affairs and financial condition of the Borrower or any of its Relevant Subsidiaries, or compliance with the terms of any Loan Document, or such consolidating financial statements, as in each case the Administrative Agent may reasonably request (for itself or on ~~Form 10-Q~~ behalf of any Lender); and (f) no later than one hundred and twenty (120) days following the first day of each fiscal year of the Borrower, a budget for such fiscal year in form customarily prepared by the Borrower; provided that, if the Holding Company Condition is satisfied as of the date of the relevant financial statements (or in the case of a budget on the first day of the applicable fiscal year), the obligations in clauses (a), (b) and (f) of this Section 5.04 may be satisfied with respect to financial information of the Borrower and ~~its consolidated~~ the Restricted Subsidiaries ~~shall satisfy~~ by furnishing the ~~requirements~~ applicable financial statements of ~~this Section 5.04(b)~~ Crestwood Equity Partners; provided that to the extent such ~~quarterly reports include~~ information relates to Crestwood Equity Partners, the Borrower shall promptly provide to the Administrative Agent, upon request from the Administrative Agent, consolidating or other information that explains in reasonable detail the differences between the information ~~specified herein);~~relating to Crestwood Equity Partners, on the one hand, and the information relating to the Borrower and the Restricted Subsidiaries on a standalone basis, on the other hand; provided further that to the extent any such documents required to be delivered pursuant to Section 5.04 are included in materials filed with the SEC, such documents shall be deemed to have been delivered to the Administrative Agent under this Agreement on the date such documents are made publicly available by the SEC.

Appears in 3 contracts

Sources: Amendment (Crestwood Equity Partners LP), Credit Agreement (Crestwood Midstream Partners LP), Credit Agreement (Crestwood Equity Partners LP)

Financial Statements, Reports, etc. Furnish to the Administrative Agent (~~which~~ who will ~~promptly furnish such information~~ distribute to ~~the Lenders~~each Lender): (a) ~~within 90 days~~ as soon as available but in any event not later than the fifth Business Day after the 90th day following the end of each fiscal year of the Borrower, (~~commencing with the fiscal year ending December 31, 2016), a~~ i) its consolidated balance sheet and related statements of ~~operations~~income, stockholders’ equity and cash flows ~~and owners’ equity~~ showing the financial ~~position~~ condition of the Borrower and its ~~Subsidiaries~~ consolidated subsidiaries as of the close of such fiscal year and the ~~consolidated~~ results of ~~their~~ its operations and the operations of such Persons during such ~~year and setting forth in~~ year, together with comparative ~~form the corresponding~~ figures for the ~~prior~~ immediately preceding fiscal year, ~~which consolidated balance sheet~~ all in reasonable detail and ~~related statements of operations~~prepared in accordance with GAAP, ~~cash flows and owners’ equity shall be accompanied by customary management’s discussion and analysis and~~ all audited by PricewaterhouseCoopers LLP or other independent public accountants of recognized national standing and ~~accompanied by~~ (ii) an opinion of such accountants (which opinion shall ~~not~~ be ~~qualified as to scope of audit~~ without a “going concern” or like qualification or exception and without any qualification or exception as to the ~~status~~ scope of the Borrower or any Material Subsidiary as a going concern, other than solely with respect to, or resulting solely from, an upcoming maturity date under any series of Indebtedness occurring within one year from the time such ~~opinion is delivered or any potential inability to satisfy a financial maintenance covenant on a future date or in a future period~~audit) to the effect that such consolidated financial statements fairly ~~present, in all material respects,~~ present the financial ~~position~~ condition and results of operations of the Borrower and its ~~Subsidiaries~~ consolidated subsidiaries on a consolidated basis in accordance with GAAP (it being ~~understood~~ agreed that the ~~delivery by~~ furnishing of the ~~Borrower of~~ Borrower’s annual ~~reports~~ report on Form 10-K of for such year, as filed with the ~~Borrower and its consolidated Subsidiaries shall~~ SEC, will satisfy the ~~requirements of~~ Borrower’s obligation under this Section ~~5.04(a) to the extent such annual reports include the information specified herein~~5.04(a)(i)); (b) ~~within 45 days~~ as soon as available, but in any event not later than the fifth Business Day after the 45th day following the end of each of the first three fiscal quarters of each fiscal year ~~(commencing with~~ of the ~~fiscal quarter ending June 30~~Borrower, ~~2016), a~~ its consolidated balance sheet and related statements of ~~operations~~ income, stockholders’ equity and cash flows showing the financial ~~position~~ condition of the Borrower and its ~~Subsidiaries~~ consolidated subsidiaries as of the close of such fiscal quarter and the ~~consolidated~~ results of ~~their~~ its operations and the operations of such Persons during such fiscal quarter and the ~~then-~~then elapsed portion of the fiscal ~~year and~~year, ~~starting with the~~ and for each fiscal quarter ~~ending September 30~~occurring after the first anniversary of the Closing Date, ~~2016, setting forth in~~ comparative ~~form the corresponding~~ figures for the ~~corresponding~~ same periods of in the ~~prior~~ immediately preceding fiscal year, all of which shall be in reasonable detail, which consolidated balance sheet and related statements of operations and cash flows shall be accompanied by customary management’s discussion and analysis and which consolidated balance sheet and related statements of operations and cash flows shall be certified by a one of its Financial ~~Officer of the Borrower on behalf of the Borrower~~ Officers as fairly ~~presenting,~~ presenting in all material ~~respects,~~ respects the financial ~~position~~ condition and results of operations of the Borrower and its ~~Subsidiaries~~ consolidated subsidiaries on a consolidated basis in accordance with ~~GAAP (~~GAAP, subject to normal year-end audit adjustments and the absence of ~~footnotes)~~ footnotes (it being ~~understood~~ agreed that the ~~delivery by~~ furnishing of the ~~Borrower of~~ Borrower’s quarterly ~~reports~~ report on Form 10-Q for such quarter, as filed with the SEC will satisfy the Borrower’s obligation under this Section 5.04(b) with respect to such quarter); (c) concurrently with any delivery of Section 5.04 Financials, a certificate of a Financial Officer of the Borrower (i) certifying that to such Financial Officer’s knowledge, no Event of Default or Default has occurred and is continuing or, if such an Event of Default or Default has occurred and is continuing, reasonably specifying the nature thereof, (ii) setting forth (x) to the extent applicable, computations in reasonable detail demonstrating the Total Net Leverage Ratio and the Senior Secured Leverage Ratio as of the date of such financial statements, (y) to the extent applicable, computations in reasonable detail necessary for determining compliance by the Borrower with the provisions of Section 6.11 as of the last day of the fiscal quarter or fiscal year of the Borrower, as the case may be and (z) in the case of a certificate delivered with the financial statements required by paragraph (a) above (commencing with the fiscal year ended December 31, 2008), setting forth the Borrower’s calculation of Excess Cash Flow; (d) as soon as available, but in any event not later than the fifth Business Day after the 90th day after the commencement of each fiscal year of the Borrower, copy of the projections by the Borrower of the operating budget and cash flow budget of the Borrower and its subsidiaries for such fiscal year, such projections to be accompanied by a certificate of a Financial Officer of the Borrower to the effect that such Financial Officer believes such projections to have been prepared on the basis of reasonable assumptions; (e) simultaneously with the delivery of any Section 5.04 Financials, the related consolidating financial statements reflecting the adjustments necessary to eliminate the accounts of Unrestricted Subsidiaries from such consolidated ~~Subsidiaries shall satisfy the requirements of this Section 5.04(b)~~ financial statements (but only to the extent such Unrestricted Subsidiaries would not be considered “minor” under Rule 3-10 of Regulation S-X under the Securities Act); (f) simultaneously with the delivery of any Section 5.04 Financials, management’s discussion and analysis of the important operational and financial developments of the Borrower and its Restricted Subsidiaries during the respect fiscal year or fiscal quarter, as the case may be; it being agreed that the furnishing of the Borrower’s annual report on Form 10-K or quarterly report on Form 10-Q, as filed with the SEC, will satisfy the Borrower’s obligations under this Section 5.04(f); (g) after the request by any Lender (through the Administrative Agent), all documentation and other information that such Lender reasonably requests in order to comply with its ongoing obligations under applicable “know your customer” and anti-money laundering rules and regulations, including the USA PATRIOT Act; and (h) promptly, from time to time, such other information regarding the operations, business, legal or corporate affairs and financial condition of any Loan Party or any Restricted Subsidiary, or compliance with the terms of any Loan Document, as the Administrative Agent or any Lender (through the Administrative Agent) may reasonably request. Information required to be delivered pursuant to this Section 5.04 shall be deemed to have been delivered if such information, or one or more annual or quarterly reports ~~include~~ containing such information, shall have been posted by the Administrative Agent on a SyndTrak, IntraLinks or similar site to which the Lenders have been granted access or shall be available (the “Platform”) on the website of the Securities and Exchange Commission at ▇▇▇▇://▇▇▇.▇▇▇.▇▇▇ or on the website of the Borrower. Information required to be delivered pursuant to this Section may also be delivered by electronic communications pursuant to procedures approved by the Administrative Agent. Each Lender shall be solely responsible for timely accessing posted documents and maintaining its copies of such documents. The Borrower hereby acknowledges that (a) the Administrative Agent will make available to the Lenders materials and/or information ~~specified herein~~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 it will use commercially reasonable efforts to identify that portion of the Borrower Materials that may be distributed to the Public Lenders and that (w) all such Borrower Materials shall 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 and the Lenders to treat such Borrower Materials as not containing any material non-public information (although it may be sensitive and proprietary) with respect to the Borrower or its securities for purposes of United States Federal and state securities laws (provided, however, that to the extent such Borrower Materials constitute Information, they shall be treated as set forth in Section 11.07);; (y) all Borrower Materials marked “PUBLIC” are permitted to be made available through a portion of the Platform designated “Public Investor”; and (z) the Administrative Agent 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 Investor.”

Appears in 3 contracts

Sources: Term Loan Agreement (CDW Finance Corp), Term Loan Agreement (CDW Corp), Term Loan Agreement (CDW Finance Corp)

Financial Statements, Reports, etc. Furnish to the Administrative Agent (which will promptly furnish such information to the Lenders): (a) ~~within 90~~ Within 105 days ~~after~~ (or such other time period as specified in the SEC’s rules and regulations with respect to non-accelerated filers for the filing of annual reports on Form 10-K), following the end of each fiscal year (commencing with the fiscal year ending December 31, ~~2016~~2007), a consolidated balance sheet and related statements of operations, cash flows and owners’ equity showing the financial position of the Borrower and its Subsidiaries as of the close of such fiscal year and the consolidated results of ~~their~~ its operations during such year ~~and~~ and, starting with the fiscal year ending December 31, 2007, setting forth in comparative form the corresponding figures for the prior fiscal year, which consolidated balance sheet and related statements of operations, cash flows and owners’ equity shall be ~~accompanied by customary management’s discussion and analysis and~~ audited by independent public accountants of recognized national standing and accompanied by an opinion of such accountants (which ~~opinion~~ shall not be qualified as to scope of audit or as to the status of the Borrower or any Material Subsidiary as a going concern, other than solely with respect to, or resulting solely from, an upcoming maturity date under any series of Indebtedness occurring within one year from the time such opinion is delivered or any potential inability to satisfy a financial maintenance covenant on a future date or in a future period) to the effect that such consolidated financial statements fairly present, in all material respects, the financial position and results of operations of the Borrower and its Subsidiaries on a consolidated basis in accordance with GAAP (it being understood that the delivery by the Borrower of annual reports on Form 10-K of the Borrower and its consolidated Subsidiaries shall satisfy the requirements of this Section 5.04(a) to the extent such annual reports include the information specified herein); (b) Within 60 days (or such other time period as specified in the SEC’s rules and regulations with respect to non-accelerated filers for the filing of quarterly reports on Form 10-Q) (or, in the case of the first fiscal quarter for which quarterly financial statements are required to be delivered hereunder, within 45 75 days ~~after~~ following the end of such fiscal quarter), following the end of each of the first three fiscal quarters of each fiscal ~~year (commencing with the fiscal quarter ending June 30, 2016)~~year, a consolidated balance sheet and related statements of operations and cash flows showing the financial position of the Borrower and its Subsidiaries as of the close of such fiscal quarter and the consolidated results of ~~their~~ its operations during such fiscal quarter and the then-elapsed portion of the fiscal year ~~and, starting with the fiscal quarter ending September 30, 2016,~~ and setting forth in comparative form the corresponding figures for the corresponding periods of the prior fiscal year, all of which shall be in reasonable ~~detail, which consolidated balance sheet and related statements of operations and cash flows shall be accompanied by customary management’s discussion and analysis~~ detail and which consolidated balance sheet and related statements of operations and cash flows shall be certified by a Financial Officer of Holdings or the Borrower on behalf of Holdings or the Borrower as fairly presenting, in all material respects, the financial position and results of operations of the Borrower and its Subsidiaries on a consolidated basis in accordance with GAAP (subject to normal year-end audit adjustments and the absence of footnotes) (it being understood that the delivery by the Borrower of quarterly reports on Form 10-Q of the Borrower and its consolidated Subsidiaries shall satisfy the requirements of this Section 5.04(b) to the extent such quarterly reports include the information specified herein);

Appears in 3 contracts

Sources: Amendment Agreement (CAESARS ENTERTAINMENT Corp), Amendment Agreement (CAESARS ENTERTAINMENT Corp), Credit Agreement (Harrahs Entertainment Inc)

Appears in 2 contracts

Sources: Credit Agreement (Hexion Specialty Chemicals, Inc.), Credit Agreement (Hexion Specialty Chemicals, Inc.)

Financial Statements, Reports, etc. Furnish to the Administrative Agent (which will promptly furnish such information to the Lenders): (a) within 90 120 days after the Fiscal Year end ~~of each fiscal year~~ (commencing with the ~~fiscal year~~ Fiscal Year ending on December 3125, ~~2016~~2021), or such later date as reasonably agreed by the Administrative Agent, a consolidated cash flow statement, balance sheet and related statements of ~~operations, cash flows and owners’ equity~~ income showing the financial position of the Borrower and its Subsidiaries as of the close of such ~~fiscal year~~ Fiscal Year and the consolidated results of their operations during such year and setting forth in comparative form the corresponding figures for the prior ~~fiscal year~~Fiscal Year, which consolidated cash flow statement, balance sheet and related statements of ~~operations, cash flows and owners’ equity~~ income shall be accompanied by customary management’s discussion and ~~analysis and~~ analysis. The financial statements shall be audited by independent public accountants of recognized national standing and accompanied by an opinion of such accountants (which opinion shall not be qualified as to scope of audit or as to the status of the Borrower or any Material Subsidiary as a going concern, other than solely with respect to, or resulting solely from, (x) an upcoming maturity date under any series of ~~Indebtedness occurring within one year from the time such opinion is delivered~~ Indebtedness, (y) any actual or ~~any~~ potential inability to satisfy a financial maintenance covenant ~~on a future date~~ or ~~in a future period~~(z) the activities, operations, financial results, assets or liabilities of Unrestricted Subsidiaries) to the effect that such consolidated financial statements fairly present, in all material respects, the financial position and results of operations of the Borrower and its Subsidiaries on a consolidated basis in accordance with GAAP (it being understood and agreed that the delivery or public filing by ~~the Borrower~~ Parent (or other applicable Parent Entity) of annual reports on Form 10-K (or any successor or comparable form) of ~~the Borrower~~ Parent and its consolidated ~~Subsidiaries~~ subsidiaries shall be deemed to be delivery to all Lenders of such annual reports and shall satisfy the requirements of this Section 5.04(a) to the extent such annual reports include the information specified ~~herein~~in this Section 5.04(a)); (b) within 45 days after the end of each of the first three fiscal quarters of each ~~fiscal year (commencing with~~ Fiscal Year, or such later date as reasonably agreed by the ~~fiscal quarter ending June 30, 2016)~~Administrative Agent, a consolidated balance sheet and related statements of ~~operations and cash flows~~ income showing the financial position of the Borrower and its Subsidiaries as of the close of such fiscal quarter and the consolidated results of their operations during such fiscal quarter and the then-elapsed portion of the ~~fiscal year and, starting with the fiscal quarter ending September 30, 2016,~~ Fiscal Year and setting forth in comparative form the corresponding figures for the corresponding periods of the prior ~~fiscal year~~Fiscal Year, all of which shall be in reasonable detail, which consolidated balance sheet and related statements of ~~operations~~ profit and ~~cash flows~~ loss shall be accompanied by customary management’s discussion and analysis and which consolidated balance sheet and related statements of ~~operations and cash flows~~ income shall be certified by a Financial Officer of the Borrower on behalf of the Borrower as fairly presenting, in all material respects, the financial position and results of operations of the Borrower and its Subsidiaries on a consolidated basis in accordance with GAAP (subject to normal year-end audit adjustments and the absence of footnotes) (it being understood and agreed that the delivery or public filing by ~~the Borrower~~ Parent (or other applicable Parent Entity) of quarterly reports on Form 10-Q (or any successor or comparable form) of ~~the Borrower~~ Parent and its consolidated ~~Subsidiaries~~ subsidiaries shall be deemed to be delivery to all Lenders of such quarterly reports and shall satisfy the requirements of this Section 5.04(b) to the extent such quarterly reports include the information specified ~~herein~~in this Section 5.04(b)); (c) concurrently with any delivery of financial statements under clause (a) or (b) above, a Compliance Certificate (i) certifying that no Event of Default or Default has occurred and is continuing since the date of the last Compliance Certificate delivered pursuant to this Section 5.04(c) or, if such an Event of Default or Default has occurred and is continuing, specifying the nature and extent thereof and any corrective action taken or proposed to be taken with respect thereto and (ii) setting forth computations in reasonable detail demonstrating compliance with the Financial Covenant (only to the extent the Financial Covenant is required to be tested for such fiscal quarter). (d) promptly after the same become publicly available, copies of all periodic and other publicly available reports, proxy statements and, to the extent requested by the Administrative Agent, other materials filed by Parent, Holdings the Borrower or any of its Subsidiaries with the SEC (or equivalent regulatory body in the relevant jurisdiction), or after an initial public offering, distributed to its stockholders generally, as applicable; provided, however, that such reports, proxy statements, filings and other materials required to be delivered pursuant to this clause (d) shall be deemed delivered to all Lenders for purposes of this Agreement when posted to the website of the Borrower (or Holdings or any Parent Entity) or the website of the SEC (or equivalent regulatory body in the relevant jurisdiction); (e) [reserved]; (f) upon the reasonable request of the Administrative Agent not more frequently than once a year, an updated Perfection Certificate (or, to the extent such request relates to specified information contained in the Perfection Certificate, such information) reflecting all changes since the date of the information most recently received pursuant to this clause (f) or Section 5.10(f); (g) promptly from time to time, such other customary information regarding the operations, business affairs and financial condition of the Borrower or any of the Subsidiaries, or compliance with the terms of any Loan Document as in each case the Administrative Agent may reasonably request (for itself or on behalf of any Lender) and to the extent such information is reasonably available to Borrower; (h) no later than ten (10) Business Days after delivery thereof (or such reasonable period after receipt of such financial statements as may be agreed by the Administrative Agent), if required under any Permitted Securitization Financings to which any Securitization Entities are party, copies of (x) unaudited consolidated balance sheets and unaudited consolidated statements of operations and income and cash flows for such Securitization Entities for each of the fiscal periods specified thereunder and (y) audited consolidated balance sheets and audited consolidated statements of operations and income, changes in members’ equity and cash flows of such Securitization Entities for each fiscal year, in each case of clauses (x) and (y), specified thereunder in a manner as required pursuant to such Permitted Securitization Financings; and (i) promptly following the delivery of financial statements under clause (a) and (b) above or, if later, promptly following such date of delivery of the quarterly noteholders’ report (if any) to noteholders for the applicable quarterly fiscal period under any Permitted Securitization Financing, a copy of such quarterly noteholders’ report. The Borrower hereby acknowledges and agrees that all financial statements furnished pursuant to clauses (a), (b) and (d) above are hereby deemed to be Borrower Materials suitable for distribution, and to be made available, to Public Lenders as contemplated by Section 9.17 and may be treated by the Administrative Agent and the Lenders as if the same had been marked “PUBLIC” in accordance with such paragraph (unless the Borrower otherwise notifies the Administrative Agent in writing on or prior to delivery thereof).

Appears in 2 contracts

Sources: Credit Agreement (Driven Brands Holdings Inc.), Credit Agreement (Driven Brands Holdings Inc.)

Appears in 2 contracts

Sources: Credit Agreement (Norwegian Cruise Line Holdings Ltd.), Credit Agreement (Norwegian Cruise Line Holdings Ltd.)

Appears in 2 contracts

Sources: Credit Agreement (School Specialty Inc), Credit Agreement (School Specialty Inc)

Financial Statements, Reports, etc. Furnish to the Administrative Agent (which will promptly furnish such information to the Lenders): (1) within 120 days following the end of the fiscal year ending on the earlier of (a) on or about January 30, 2016 or (b) the fiscal year ended after the Closing Date, and within 90 days ~~after~~ following the end of each fiscal year ~~(commencing with the fiscal year ending December 31, 2016)~~thereafter, a consolidated balance sheet and related statements of operations, cash flows and owners’ equity showing the financial position of the Borrower and ~~its~~ the Restricted Subsidiaries as of the close of such fiscal year and the consolidated results of ~~their~~ its operations during such fiscal year ~~and~~ and, in each case, starting with the following fiscal year, setting forth in comparative form the corresponding figures for the prior fiscal year, which consolidated balance sheet and related statements of operations, cash flows and owners’ equity ~~shall~~ will be ~~accompanied by customary management’s discussion and analysis and~~ audited by independent public accountants of recognized national ~~standing~~ standing, or such other accountants as are reasonably acceptable to the Administrative Agent, and accompanied by an opinion of such accountants (which opinion shall not be ~~qualified as~~ subject to ~~scope of audit or as to the status of the Borrower or~~ any ~~Material Subsidiary as a~~ “going concern” statement, explanatory note or like qualification or exception (other than ~~solely with respect to~~a “going concern” statement, explanatory note or like qualification or exception resulting solely ~~from,~~ from an upcoming maturity date ~~under any series of Indebtedness~~ occurring within one year from the time such opinion is delivered or ~~any potential inability to satisfy a financial maintenance~~ anticipated (but not actual) covenant ~~on a future date or in a future period~~non-compliance)) to the effect that such consolidated financial statements fairly present, in all material respects, the financial position and results of operations of the Borrower and ~~its~~ the Restricted Subsidiaries on a consolidated basis in accordance with GAAP (it the applicable financial statements delivered pursuant to this clause (1) being ~~understood that~~ the delivery by the Borrower of annual reports on Form 10-K of the Borrower and its consolidated Subsidiaries shall satisfy the requirements of this Section 5.04(a) to the extent such annual reports include the information specified herein“Annual Financial Statements”); (b2) within 60 days following the end of the fiscal quarters ending on or about April 30, 2016 and on or about July 31, 2016, and, thereafter, within 45 days ~~after~~ following the end of each of the first three fiscal quarters of each fiscal ~~year (commencing with the fiscal quarter ending June 30, 2016)~~year, a consolidated balance sheet and related statements of operations and cash flows showing the financial position of the Borrower and ~~its~~ the Restricted Subsidiaries as of the close of such fiscal quarter and the consolidated results of ~~their~~ its operations during such fiscal quarter ~~and~~ and, in each case, the then-elapsed portion of the fiscal year ~~and, starting with the fiscal quarter ending September 30, 2016,~~ and setting forth in comparative form the corresponding figures for the corresponding periods of the prior fiscal year, ~~all of which shall be in reasonable detail,~~ which consolidated balance sheet and related statements of operations and cash flows ~~shall be accompanied by customary management’s discussion and analysis and which consolidated balance sheet and related statements of operations and cash flows shall~~ will be certified by a ~~Financial~~ Responsible Officer of the Borrower on behalf of the Borrower as fairly presenting, in all material respects, the financial position and results of operations of the Borrower and ~~its~~ the Restricted Subsidiaries on a consolidated basis in accordance with ~~GAAP (~~GAAP, subject to normal year-end audit adjustments and the absence of ~~footnotes~~footnotes (the applicable financial statements delivered pursuant to this clause (2) being the “Quarterly Financial Statements” and, together with the Annual Financial Statements, the “Required Financial Statements”); (3) concurrently with any delivery of Required Financial Statements, a certificate of a Financial Officer of the Company: (a) certifying that no Default or Event of Default has occurred and is continuing or, if a Default or Event of Default has occurred and is continuing, specifying the nature and extent thereof and any corrective action taken or proposed to be taken with respect thereto; (b) setting forth the calculation and uses of the Available Amount for the fiscal period then ended if the Borrower has used the Available Amount for any purpose during such fiscal period; (c) certifying a list of all Immaterial Subsidiaries, that each Subsidiary set forth on such list individually qualifies as an Immaterial Subsidiary and that all such Subsidiaries in the aggregate do not exceed the limitation set forth in clause (ii) of the definition of the term “Immaterial Subsidiary;” (d) setting forth, in reasonable detail, the calculation of the Senior Secured First Lien Net Leverage Ratio for the most recent period of four consecutive fiscal quarters as of the close of such fiscal year or such fiscal quarter, as applicable; and (e) certifying a list of all Unrestricted Subsidiaries at such time and that each Subsidiary set forth on such list qualifies as an Unrestricted Subsidiary; (4) promptly after the same become publicly available, copies of all periodic and other publicly available reports, proxy statements and, to the extent requested by the Administrative Agent, other materials publicly filed by Holdings, the Borrower or any Restricted Subsidiary with the SEC or, after an initial public offering, distributed to its stockholders generally, as applicable; (5) within 120 days following the end of the fiscal year ending on or about January 30, 2017, and within 90 days following the end of each full fiscal year ended thereafter, a consolidated annual budget for such fiscal year in the form customarily prepared by the Borrower (the “Budget”), which Budget will in each case be accompanied by the statement of a Financial Officer of the Borrower on behalf of the Borrower to the effect that the Budget is based on assumptions believed by the Borrower to be reasonable as of the date of delivery thereof; (6) upon the reasonable request of the Collateral Agent, concurrently with the delivery of the Annual Financial Statements, an updated Perfection Certificate (or, to the extent such request relates to specified information contained in the Perfection Certificate, such information) reflecting all changes since the date of the information most recently received pursuant to this paragraph (6) or Section 5.10; (7) promptly, from time to time, such other information regarding the operations, business affairs and financial condition of Holdings, the Borrower or any Restricted Subsidiary, in each case, as the Administrative Agent may reasonably request (for itself or on behalf of any Lender); and (8) promptly upon request by the Administrative Agent (so long as the following are obtainable using commercially reasonable measures), copies of any documents described in Section 101(k)(1) of ERISA that the Borrower or any of its ERISA Affiliates may request with respect to any Multiemployer Plan; provided that if the Borrower or any of its ERISA Affiliates has not requested such documents from the administrator or sponsor of the applicable Multiemployer Plan, the Borrower or the applicable ERISA Affiliate shall promptly make a request for such documents or notices from such administrator or sponsor and shall provide copies of such documents and notices promptly after receipt thereof. Anything to the contrary notwithstanding, the obligations in clauses (1) and (2) of this Section 5.04 may be satisfied with respect to financial information of the Borrower and the Restricted Subsidiaries by furnishing (1) the applicable financial statements of Holdings (or any other Parent Entity) or (2) the Borrower’s or Holdings’ (or any such other Parent Entity’s), as applicable, Form 10-K or 10-Q, as applicable, filed with the SEC; provided that with respect to each of the foregoing clauses (1) and (2) (a) to the extent such information relates to Holdings (or a Parent Entity), such information is accompanied by consolidating information that explains in reasonable detail the differences between the information relating to Holdings (or such Parent Entity), on the one hand, and the information relating to the Borrower and the Restricted Subsidiaries on a standalone basis, on the other hand, and (b) to the extent such information is in lieu of information required to be provided under Section 5.04(1), such materials are accompanied by a report and opinion of independent public accountants of recognized national standing, or such other accountants as are reasonably acceptable to the Administrative Agent, and accompanied by an opinion of such accountants (which opinion shall not be subject to any “going concern” statement, explanatory note or like qualification or exception (other than a “going concern” statement, explanatory note or like qualification or exception resulting solely from an upcoming maturity date occurring within one year from the time such opinion is delivered or anticipated (but not actual) covenant non-compliance)) (it being understood and agreed that ~~the delivery by~~ if, in compliance with this paragraph, (x) the Borrower provides audited financial statements of ~~quarterly reports on Form 10-Q~~ Holdings (or any other Parent Entity) and related report and opinion of accountants with respect thereto in lieu of information required to be provided under Section 5.04(1), no such audited financial information, opinion or report shall be required with respect to the Borrower, (y) the Borrower provides unaudited financial statements of Holdings (or any other Parent Entity) in lieu of information required to be provided under Section 5.04(2), no such unaudited financial information shall be required with respect to the Borrower and ~~its consolidated Subsidiaries~~ (z) the Borrower provides a Budget of Holdings and accompanying statement (or any other Parent Entity) in lieu of information required to be provided under Section 5.04(5), no such Budget shall ~~satisfy~~ be required with respect to the ~~requirements~~ Borrower; provided that for the avoidance of ~~this Section 5.04(b~~doubt, with respect to the foregoing clauses (x), (y) and (z) (i) to the extent such ~~quarterly reports include~~ information relates to Holdings (or a Parent Entity), such information is accompanied by consolidating information that explains in reasonable detail the differences between the information ~~specified herein~~relating to Holdings (or such Parent Entity);, on the one hand, and the information relating to the Borrower and the Restricted Subsidiaries on a standalone basis, on the other hand, and (ii) to the extent such information is in lieu of information required to be provided under Section 5.04(1), such materials are accompanied by a report and opinion of independent public accountants of recognized national standing, or such other accountants as are reasonably acceptable to the Administrative Agent, and accompanied by an opinion of such accountants (which opinion shall not be subject to any “going concern” statement, explanatory note or like qualification or exception (other than a “going concern” statement, explanatory note or like qualification or exception resulting solely from an upcoming maturity date occurring within one year from the time such opinion is delivered or anticipated (but not actual) covenant non-compliance). The obligations in clauses (1) and (2) of this

Appears in 2 contracts

Sources: Term Loan Credit Agreement (PET Acquisition LLC), Term Loan Credit Agreement (PET Acquisition LLC)

Financial Statements, Reports, etc. ~~Furnish~~ The Borrower will furnish, or cause to be furnished, to the ~~Administrative~~ Agent ~~(which will promptly furnish such information to the Lenders):~~and each Lender: (a) as soon as available, and in any event within 30 days after the end of each fiscal month-end, (i) financial statements, including monthly Borrower prepared consolidated and consolidating balance sheets, profit and loss statements and statements of cash flow, for the Borrower and each Permitted Asset on a practice-by-practice or unit-by-unit basis (ii) a summary of accounts receivable aging for the Borrower and its Subsidiaries and (iii) a certificate of a Financial Officer of the Borrower setting forth computations in reasonable detail satisfactory to the Agent demonstrating compliance with the covenant contained in Section 6.13(d); (b) as soon as available, and in any event within 90 days after the end of each ~~fiscal year~~ Fiscal Year, financial statements including (~~commencing with the fiscal year ending December 31, 2016), a~~ i) its consolidated and consolidating balance sheet and related consolidated and consolidating statements of ~~operations~~operations and cash flows, ~~cash flows and owners’ equity~~ showing the consolidated and consolidating financial position of the Borrower and its Consolidated Subsidiaries as of the close of such ~~fiscal year~~ Fiscal Year and the consolidated and consolidating results of their operations and cash flows during such ~~year and~~ year, in each case setting forth in comparative form the ~~corresponding~~ figures for the ~~prior fiscal year~~preceding Fiscal Year, ~~which consolidated balance sheet and related statements of operations, cash flows and owners’ equity shall be accompanied by customary management’s discussion and analysis and~~ all audited by a nationally recognized independent public ~~accountants of recognized national standing~~ accounting firm and accompanied by an opinion of such accountants (which ~~opinion~~ shall not be qualified ~~as to scope of audit or as to the status of the Borrower or~~ in any Material Subsidiary as a going concern, other than solely with respect to, or resulting solely from, an upcoming maturity date under any series of Indebtedness occurring within one year from the time such opinion is delivered or any potential inability to satisfy a financial maintenance covenant on a future date or in a future periodmaterial respect) to the effect that such ~~consolidated~~ financial statements fairly ~~present, in all material respects,~~ present the consolidated financial position and consolidated results of operations and cash flows of the ~~Borrower and~~ Borrower, its Consolidated Subsidiaries ~~on a consolidated basis~~ in accordance with GAAP consistently applied, and (~~it being understood that the delivery~~ ii) annual Borrower prepared statements of cash flow for each Permitted Asset on a practice-by-practice or unit-by-unit basis, certified by the ~~Borrower of annual reports on Form 10-K~~ Chief Financial Officer of the ~~Borrower and its consolidated Subsidiaries shall satisfy the requirements of this Section 5.04(a) to the extent such annual reports include the information specified herein)~~Borrower; (bc) as soon as available, and in any event within 45 days after the end of each of the first three fiscal quarters of each ~~fiscal year~~ Fiscal Year, financial statements including (~~commencing with the fiscal quarter ending June 30, 2016), a~~ i) Borrower prepared consolidated and consolidating balance ~~sheet~~ sheets and related consolidated and consolidating statements of operations and cash ~~flows~~ flows, showing the consolidated and consolidating financial position of the Borrower and its ~~Subsidiaries~~ Consolidated Subsidiaries, the consolidated and consolidating results of operations and cash flows during such fiscal quarter and the then elapsed portion of such Fiscal Year and the consolidated and consolidating cash flows for the then elapsed portion of such Fiscal Year and (ii) quarterly statements of cash flow for each Permitted Asset on a practice-by-practice basis or unit by unit basis, as of the close of such fiscal ~~quarter and~~ quarter, all certified by one of its Financial Officers as fairly presenting the consolidated financial position and consolidated results of their operations during such fiscal quarter and the then-elapsed portion of the fiscal year and, starting with the fiscal quarter ending September 30, 2016, setting forth in comparative form the corresponding figures for the corresponding periods of the prior fiscal year, all of which shall be in reasonable detail, which consolidated balance sheet and related statements of operations and cash flows shall be accompanied by customary management’s discussion and analysis and which consolidated balance sheet and related statements of operations and cash flows shall be certified by a Financial Officer of the ~~Borrower on behalf of the Borrower as fairly presenting~~Borrower, ~~in all material respects, the financial position~~ its Consolidated Subsidiaries and ~~results of operations of the Borrower and its Subsidiaries on a consolidated basis~~ in accordance with GAAP (consistently applied, subject to normal year-end audit ~~adjustments~~ adjustments; (d) concurrently with any delivery of financial statements under paragraph (a), (b) or (c) above, an Officer's Certificate of the Borrower certifying that no Default or Event of Default has occurred or, if such a Default or Event of Default has occurred, specifying the nature and extent thereof and any corrective action taken or proposed to be taken with respect thereto; (e) concurrently with any delivery of financial statements under paragraph (b) or (c) above, a certificate of a Financial Officer of the ~~absence~~ Borrower, substantially in the form of ~~footnotes~~Exhibit G hereto, (i) setting forth computations in reasonable detail satisfactory to the Agent demonstrating compliance with the covenants contained in Sections 6.13 and 6.14, (~~it being understood that~~ ii) stating 60 whether, since the ~~delivery~~ date of the most recent Required Financial Statements previously delivered, there has been any material change in the generally accepted accounting principles applied in the preparation of the Borrower's financial statements and, if so, describing such change, and (iii) a comparison of the actual results during the period covered by such financial statements to those originally budgeted by the Borrower prior to the beginning of the applicable Fiscal Year, along with management's discussion and analysis of variances (including variances between actual results for such period and actual results for the same period in the previous Fiscal Year); (f) promptly upon completion, but in any event not later than 30 days prior to the commencement of each Fiscal Year, a copy of projections by the Borrower of ~~quarterly reports~~ its consolidated balance sheet and related consolidated statements of operations and cash flows for such Fiscal Year (including all material assumptions to such projections) and its statement of cash flows for each Permitted Asset on ~~Form 10~~a practice-Q by-practice or unit-by-unit basis, and a budget for such Fiscal Year, all in form customarily prepared by the Borrower's management, such projected financial statements to be accompanied by a certificate of a Financial Officer to the effect that such projected financial statements have been prepared in good faith, based on assumptions that the Borrower believes to be reasonable and based on the best information available to the Borrower and that such Financial Officer has no reason to believe they are misleading in any material respect in light of the circumstances existing at the time of preparation thereof; PROVIDED, THAT, notwithstanding anything to the contrary contained herein or in any other Loan Document, the Borrower's provision of projections in accordance with this Amended Agreement or any other Loan Document shall not for any reason be deemed to be or constitute a representation by the Borrower or any of its Subsidiaries as to such information except to the extent expressly provided above in this subsection (f); (g) [Intentionally Omitted]; (h) as soon as available, and in any event within 15 days of receipt, any final management letter issued or provided by the auditors of the Borrower or any Subsidiary; (i) promptly, from time to time, such other information regarding the operations, business affairs and financial condition of the Holdings or any of its Subsidiaries, any Permitted Asset, or compliance with the terms of any Loan Document, as the Agent or any Lender may reasonably request; (j) promptly, from time to time, but not more frequently than once per calendar year absent an Event of Default, request in writing the opinion of in-house counsel or, at the Borrower's option, outside healthcare counsel as to the absence, except as disclosed in the opinion, of such counsel's actual knowledge of any actual, threatened or asserted violation of any Fraud and Abuse Law on the part of the Borrower, Holdings, any Subsidiary and/or the Providers. Absent the existence of an Event of Default, such opinions shall require no special diligence on the part of the opining attorney(s), but shall only require a report of matters then actually known to such attorneys, unless the Agent specifically requests investigation be made by the opining attorneys; PROVIDED, THAT, the Agent may only request that such an investigation be made if the Agent has actual knowledge of an actual or reasonably likely violation of a Fraud and Abuse Law by the Borrower, Holdings, any Subsidiary or the Providers, or if the Agent has a reasonable basis to believe any such violation has occurred or will occur. Such opinions shall be in form and substance reasonably acceptable to the Agent, shall be delivered to the Agent at Borrower's expense within 30 days of the date of request and shall address specifically any facts inquired of in the Agent's request. In any opinion delivered under this subsection (j), the opining attorney(s), provided they have made due inquiry pursuant to requests of the Agent as permitted above, may conclusively rely on an Officer's Certificate; and (k) promptly, from time to time, such information and financial statements, reports, public information and notices (including of default) regarding the operations, business affairs and financial conditions of USPI and its ~~consolidated~~ Subsidiaries, or compliance with the terms of any Indebtedness of USPI and its Subsidiaries, as USPI and its Subsidiaries ~~shall satisfy~~ are required to (whether or not the ~~requirements of this Section 5.04(b~~requirement is waived by the lenders under the Chase Credit Agreement) or delivers under the Chase Credit Agreement dated June 29, 1999 not including any amendments or modifications thereto (including, without limitation, the deliveries required pursuant to Sections 5.01 and 5.02 thereof), and as the ~~extent such quarterly reports include~~ Agent or the ~~information specified herein);~~Lenders may otherwise reasonably request.

Appears in 2 contracts

Sources: Credit Agreement (United Surgical Partners International Inc), Credit Agreement (United Surgical Partners International Inc)

Financial Statements, Reports, etc. Furnish to the Administrative Agent (which will promptly furnish such information to the Lenders): (a) ~~within~~ Within 90 days ~~after~~ (or such other time period as specified in the ~~end~~ SEC’s rules and regulations with respect to non-accelerated filers for the filing of annual reports on Form 10-K), for each fiscal year (commencing with the fiscal year ending ~~December 31~~February 2, ~~2016~~2008), a consolidated balance sheet and related statements of operations, cash flows and owners’ equity showing the financial position of the Borrower and ~~its~~ the Subsidiaries as of the close of such fiscal year and the consolidated results of their operations during such year ~~and~~ and, starting with the fiscal year ending February 2, 2008, setting forth in comparative form the corresponding figures for the prior fiscal year, which consolidated balance sheet and related statements of operations, cash flows and owners’ equity shall be ~~accompanied by customary management’s discussion and analysis and~~ audited by independent public accountants of recognized national standing and accompanied by an opinion of such accountants (which ~~opinion~~ shall not be qualified as to scope of audit or as to the status of the Borrower or any Material Subsidiary as a going concern, other than solely with respect to, or resulting solely from, an upcoming maturity date under any series of Indebtedness occurring within one year from the time such opinion is delivered or any potential inability to satisfy a financial maintenance covenant on a future date or in a future period) to the effect that such consolidated financial statements fairly present, in all material respects, the financial position and results of operations of the Borrower and ~~its~~ the Subsidiaries on a consolidated basis in accordance with ~~GAAP~~ GAAP, subject to exceptions consistent with the presentation of financial information contained in the Notes Offering Memorandum (it being understood that the ~~delivery by~~ filing with the ~~Borrower~~ Securities and Exchange Commission of annual reports on Form ~~10-~~10 K of the Borrower and its consolidated ~~Subsidiaries~~ Subsidiaries, or delivery by the Borrower of such reports to the Administrative Agent, shall satisfy the requirements of this Section 5.04(a) to the extent such annual reports include the information specified herein); (b) ~~within~~ Within 45 days ~~after~~ (or such other time period as specified in the ~~end~~ SEC’s rules and regulations with respect to non-accelerated filers for the filing of quarterly reports on Form 10 Q), for each of the first three fiscal quarters of each fiscal ~~year (commencing with the fiscal quarter ending June 30, 2016)~~year, a consolidated balance sheet and related statements of operations and cash flows showing the financial position of the Borrower and ~~its~~ the Subsidiaries as of the close of such fiscal quarter and the consolidated results of their operations during such fiscal quarter and the ~~then-~~then elapsed portion of the fiscal year ~~and, starting with the fiscal quarter ending September 30, 2016,~~ and setting forth in comparative form the corresponding figures for the corresponding periods of the prior fiscal year, all of which shall be in reasonable ~~detail, which consolidated balance sheet and related statements of operations and cash flows shall be accompanied by customary management’s discussion and analysis~~ detail and which consolidated balance sheet and related statements of operations and cash flows shall be certified by a Financial Officer of the Borrower on behalf of the Borrower as fairly presenting, in all material respects, the financial position and results of operations of the Borrower and ~~its~~ the Subsidiaries on a consolidated basis in accordance with GAAP (subject to normal year-end audit adjustments and the absence of footnotes) , and to exceptions consistent with the presentation of financial information contained in the Notes Offering Memorandum (it being understood that the ~~delivery by~~ filing with the ~~Borrower~~ Securities and Exchange Commission of quarterly reports on Form ~~10-~~10 Q of the Borrower and its consolidated ~~Subsidiaries~~ Subsidiaries, or delivery by the Borrower of such reports to the Administrative Agent, shall satisfy the requirements of this Section 5.04(b) to the extent such quarterly reports include the information specified herein);

Appears in 2 contracts

Sources: Credit Agreement (Claires Stores Inc), Amendment No. 3 and Waiver (Claires Stores Inc)

Financial Statements, Reports, etc. Furnish to the Administrative Agent (which will promptly furnish such information to the Lenders): (a) ~~within~~ Within 90 days ~~after~~ (or such other time period as specified in the ~~end~~ SEC’s rules and regulations for the filing of annual reports on Form 10-K), for each fiscal year (commencing with the fiscal year ending December 31, ~~2016~~2008), a consolidated balance sheet and related statements of operations, cash flows and owners’ equity showing the financial position of the Borrower and its Subsidiaries as of the close of such fiscal year and the consolidated results of ~~their~~ its operations during such year ~~and~~ and, starting with the fiscal year ending December 31, 2008, setting forth in comparative form the corresponding figures for the prior fiscal year, which consolidated balance sheet and related statements of operations, cash flows and owners’ equity shall be ~~accompanied by customary management’s discussion and analysis and~~ audited by independent public accountants of recognized national standing and accompanied by an opinion of such accountants (which ~~opinion~~ shall not be qualified as to scope of audit or as to the status of the Borrower or any Material Subsidiary as a going concern, other than solely with respect to, or resulting solely from, an upcoming maturity date under any series of Indebtedness occurring within one year from the time such opinion is delivered or any potential inability to satisfy a financial maintenance covenant on a future date or in a future period) to the effect that such consolidated financial statements fairly present, in all material respects, the financial position and results of operations of the Borrower and its Subsidiaries on a consolidated basis in accordance with GAAP (it being understood that the delivery by the Borrower of annual reports on Form 10-K of the Borrower and its consolidated Subsidiaries shall satisfy the requirements of this Section 5.04(a) to the extent such annual reports include the information specified herein); (b) ~~within~~ Within 45 days ~~after~~ (or such other time period as specified in the SEC’s rules and regulations for the filing of quarterly reports on Form 10 Q) (or, in the case of the first fiscal quarter for which quarterly financial statements are required to be delivered hereunder, within 75 days following the end of such fiscal quarter), for each of the first three fiscal quarters of each fiscal ~~year (commencing with the fiscal quarter ending June 30, 2016)~~year, a consolidated balance sheet and related statements of operations and cash flows showing the financial position of the Borrower and its Subsidiaries as of the close of such fiscal quarter and the consolidated results of ~~their~~ its operations during such fiscal quarter and the ~~then-~~then elapsed portion of the fiscal year ~~and, starting with the fiscal quarter ending September 30, 2016,~~ and setting forth in comparative form the corresponding figures for the corresponding periods of the prior fiscal year, all of which shall be in reasonable ~~detail, which consolidated balance sheet and related statements of operations and cash flows shall be accompanied by customary management’s discussion and analysis~~ detail and which consolidated balance sheet and related statements of operations and cash flows shall be certified by a Financial Officer of the Borrower on behalf of the Borrower as fairly presenting, in all material respects, the financial position and results of operations of the Borrower and its Subsidiaries on a consolidated basis in accordance with GAAP (subject to normal ~~year-~~year end audit adjustments and the absence of footnotes) (it being understood that the delivery by the Borrower of quarterly reports on Form ~~10-~~10 Q of the Borrower and its consolidated Subsidiaries shall satisfy the requirements of this Section 5.04(b) to the extent such quarterly reports include the information specified herein);

Appears in 2 contracts

Sources: Credit Agreement (Verso Paper Corp.), Credit Agreement (Verso Paper Corp.)

Financial Statements, Reports, etc. ~~Furnish~~ In the case of the Borrower, furnish to the Administrative ~~Agent (~~Agent, which will ~~promptly furnish such information~~ distribute to ~~the Lenders):~~each Lender: (a) within 90 days after the end of each fiscal year (commencing with the fiscal year ending December 31, 2016), a consolidated balance sheet and related statements of operations, cash flows and owners’ equity showing the financial position of the Borrower and its Subsidiaries as of the close of such fiscal year and the consolidated results of their operations during such year and setting forth in comparative form the corresponding figures for the prior fiscal year, which consolidated balance sheet and related statements of operations, cash flows and owners’ equity shall be accompanied by customary management’s discussion and analysis and audited by independent public accountants of recognized national standing and accompanied by an opinion of such accountants (which opinion shall not be qualified as to scope of audit or as to the status of the Borrower or any Material Subsidiary as a going concern, other than solely with respect to, or resulting solely from, an upcoming maturity date under any series of Indebtedness occurring within one year from the time such opinion is delivered or any potential inability to satisfy a financial maintenance covenant on a future date or in a future period) to the effect that such consolidated financial statements fairly present, in all material respects, the financial position and results of operations of the Borrower and its Subsidiaries on a consolidated basis in accordance with GAAP (it being understood that the delivery by the Borrower of annual reports on Form 10-K of the Borrower and its consolidated Subsidiaries shall satisfy the requirements of this Section 5.04(a) to the extent such annual reports include the information specified herein); (b) within 45 days after the end of each fiscal quarter (or, if such fiscal quarter end is also the end of the ~~first three~~ Borrower’s fiscal ~~quarters~~ year, 90 days after the end of ~~each~~ such fiscal ~~year (commencing with the fiscal quarter ending June 30, 2016~~year), a the Borrower’s consolidated and consolidating balance sheet and related consolidated and consolidating statements of ~~operations~~ income and cash ~~flows~~ flows, showing the financial ~~position~~ condition of the Borrower and its ~~Subsidiaries~~ consolidated subsidiaries as of the close of such fiscal quarter and the ~~consolidated~~ results of their operations ~~during~~ and cash flows for such fiscal quarter and the ~~then-~~then elapsed portion of the fiscal year ~~and, starting~~ with ~~the fiscal quarter ending September 30, 2016, setting forth in~~ comparative ~~form the corresponding~~ figures for the ~~corresponding~~ same periods of in the ~~prior~~ immediately preceding fiscal year, all of which shall be in reasonable detail, which consolidated balance sheet and related statements of operations and cash flows shall be accompanied by customary management’s discussion and analysis and which consolidated balance sheet and related statements of operations and cash flows shall be certified by a Financial Officer of the Borrower ~~on behalf of the Borrower~~ as fairly ~~presenting, in all material respects,~~ presenting the financial ~~position~~ condition and results of operations and cash flows of the Borrower and its ~~Subsidiaries~~ consolidated subsidiaries on a consolidated and consolidating basis in accordance with GAAP (consistently applied, subject to normal year-end audit adjustments and the absence of ~~footnotes) (it being understood~~ certain footnotes provided, however, that such obligation shall be satisfied if the Borrower timely files with the SEC all quarterly and annual reports that the ~~delivery by~~ Borrower is required to file with the ~~Borrower of quarterly reports~~ SEC on ~~Form~~ Forms 10-Q and 10-K, provided, further, that the availability of the foregoing materials on the SEC’s ▇▇▇▇▇ service (or its successor) will be deemed to satisfy the Borrower’s delivery obligation; (b) concurrently with any delivery, or deemed delivery, of financial statements under paragraph (a) above, a certificate of a Responsible Officer certifying that no Event of Default or Default has occurred or, if such an Event of Default or Default has occurred, specifying the nature and extent thereof and any corrective action taken or proposed to be taken with respect thereto; (c) promptly, following a request by any Lender, all documentation and other information that such Lender reasonably requests in order to comply with its ongoing obligations under applicable “know your customer” and anti-money laundering rules and regulations, including the USA Patriot Act; and (d) promptly, from time to time, such other information regarding the operations, business affairs and financial condition of the Borrower ~~and~~ or any of its ~~consolidated Subsidiaries shall satisfy~~ subsidiaries, or compliance with the ~~requirements~~ terms of ~~this Section 5.04(b) to~~ any Loan Document, as the ~~extent such quarterly reports include the information specified herein);~~Administrative Agent or any Lender may reasonably request.

Appears in 2 contracts

Sources: Credit Agreement (Alon USA Energy, Inc.), Credit Agreement (Alon Refining Krotz Springs, Inc.)

Financial Statements, Reports, etc. Furnish to the Administrative Agent (which will promptly furnish such information to the Lenders): (a) within 90 days ~~after~~ (or such other time period as specified in the SEC’s rules and regulations with respect to non-accelerated filers for the filing of annual reports on Form 10-K), following the end of each ~~fiscal year~~ Fiscal Year (commencing with the ~~fiscal year~~ Fiscal Year ending ~~December~~ January 31, ~~2016~~2011), a consolidated balance sheet and related statements of operations, cash flows and owners’ equity showing the financial position of the Borrower and its Subsidiaries as of the close of such ~~fiscal year~~ Fiscal Year and the consolidated results of ~~their~~ its operations during such year ~~and~~ and, starting with the Fiscal Year ending January 31, 2011, setting forth in comparative form the corresponding figures for the prior ~~fiscal year~~Fiscal Year, which consolidated balance sheet and related statements of operations, cash flows and owners’ equity shall be ~~accompanied by customary management’s discussion and analysis and~~ audited by independent public accountants of recognized national standing and accompanied by an opinion of such accountants (which ~~opinion~~ shall not be qualified as to scope of audit or as to ~~the status of the Borrower or any Material Subsidiary as a~~ “going concern~~, other than solely with respect to,~~ ” or ~~resulting solely from, an upcoming maturity date under any series of Indebtedness occurring within one year from the time such opinion is delivered~~ similar qualification or ~~any potential inability to satisfy a financial maintenance covenant on a future date or in a future period~~exception) to the effect that such consolidated financial statements fairly present, in all material respects, the financial position and results of operations of the Borrower and its Subsidiaries on a consolidated basis in accordance with GAAP (it being understood that the delivery by the Borrower of annual reports on Form 10-K of the Borrower and its consolidated Subsidiaries shall satisfy the requirements of this Section 5.04(a) to the extent such annual reports include the information specified herein); (b) within 45 days (or such other time period as specified in the SEC’s rules and regulations with respect to non-accelerated filers for the filing of quarterly reports on Form 10-Q) (or, in the case of the first Fiscal Quarter after the Closing Date financial statements are required to be delivered hereunder, within 60 days following the end of such Fiscal Quarter), following the end of each of the first three ~~fiscal quarters~~ Fiscal Quarters of each ~~fiscal year (commencing with the fiscal quarter ending June 30, 2016)~~Fiscal Year, a consolidated balance sheet and related statements of operations and cash flows showing the financial position of the Borrower and its Subsidiaries as of the close of such ~~fiscal quarter~~ Fiscal Quarter and the consolidated results of ~~their~~ its operations during such ~~fiscal quarter~~ Fiscal Quarter and the then-elapsed portion of the ~~fiscal year and, starting with the fiscal quarter ending September 30, 2016,~~ Fiscal Year and setting forth in comparative form the corresponding figures for the corresponding periods of the prior ~~fiscal year~~Fiscal Year, all of which shall be in reasonable ~~detail, which consolidated balance sheet and related statements of operations and cash flows shall be accompanied by customary management’s discussion and analysis~~ detail and which consolidated balance sheet and related statements of operations and cash flows shall be certified by a Financial Officer of the Borrower on behalf of the Borrower as fairly presenting, in all material respects, the financial position and results of operations of the Borrower and its Subsidiaries on a consolidated basis in accordance with GAAP (subject to normal year-end audit adjustments and the absence of footnotes) (it being understood that the delivery by the Borrower of quarterly reports on Form 10-Q of the Borrower and its consolidated Subsidiaries shall satisfy the requirements of this Section 5.04(b) to the extent such quarterly reports include the information specified herein);

Appears in 2 contracts

Sources: Credit Agreement (Aeroways, LLC), Credit Agreement (Cke Restaurants Inc)

Financial Statements, Reports, etc. Furnish to the Administrative Agent (which will promptly furnish such information to the Lenders): (a1) within 90 days ~~after~~ following the end of each fiscal ~~year (~~year, commencing with the fiscal year ~~ending~~ ended December 31, ~~2016)~~2018, a consolidated balance sheet and related statements of operations, cash flows and owners’ equity showing the financial position of the Borrower and ~~its~~ the Restricted Subsidiaries as of the close of such fiscal year and the consolidated results of ~~their~~ its operations during such fiscal year ~~and~~ and, in each case, commencing with the fiscal year ending December 31, 2019, setting forth in comparative form the corresponding figures for the prior fiscal year, which consolidated balance sheet and related statements of operations, cash flows and owners’ equity ~~shall~~ will be ~~accompanied by customary management’s discussion and analysis and~~ prepared in accordance with GAAP, audited by any independent public accountants of recognized national ~~standing~~ standing, or such other accountants as are reasonably acceptable to the Administrative Agent, and accompanied by an opinion of such accountants (which opinion shall not be ~~qualified as~~ subject to ~~scope of audit or as to the status of the Borrower or~~ any ~~Material Subsidiary as a~~ “going concern” statement, explanatory note or like qualification or exception (other than ~~solely with respect to~~a “going concern” statement, explanatory note or ~~resulting solely from~~like qualification or exception relating to an anticipated, but not actual, financial covenant default or an upcoming maturity ~~date under any series of Indebtedness occurring within one year from~~ date) (the ~~time such opinion is delivered or any potential inability to satisfy a financial maintenance covenant on a future date or in a future period) to the effect that such consolidated~~ applicable financial statements ~~fairly present, in all material respects,~~ delivered pursuant to this clause (1) being the financial position and results of operations of the Borrower and its Subsidiaries on a consolidated basis in accordance with GAAP (it being understood that the delivery by the Borrower of annual reports on Form 10-K of the Borrower and its consolidated Subsidiaries shall satisfy the requirements of this Section 5.04(a) to the extent such annual reports include the information specified herein“Annual Financial Statements”); (b2) ~~within 45 days after the end of each of~~ for the first three fiscal quarters of each fiscal ~~year (~~year, commencing with the fiscal quarter ended March 31, 2018, (a) within 71 days following the Closing Date, for the fiscal quarter ending March 31, 2018, (i) (A) a consolidated balance sheet for the Borrower and its Restricted Subsidiaries (excluding, for the avoidance of doubt, Impax and its subsidiaries) as of the close of such fiscal quarter and (B) the consolidated results of its operations and cash flows for the Borrower and its Restricted Subsidiaries (excluding, for the avoidance of doubt, Impax and its subsidiaries) during such fiscal quarter and the then-elapsed portion of the fiscal year and (ii) (A) a consolidated balance sheet for Impax and its Restricted Subsidiaries (excluding, for the avoidance of doubt, the Borrower and its subsidiaries), as of the close of such fiscal quarter and (B) the consolidated results of operations and cash flows for Impax and its Restricted Subsidiaries (excluding, for the avoidance of doubt, the Borrower and its subsidiaries) during such fiscal quarter and the then-elapsed portion of the fiscal year; (b) for the fiscal quarter ending June 30, ~~2016)~~2018, within 45 days of such fiscal quarter end, (A) a consolidated balance sheet ~~and related statements of operations and cash flows showing the financial position of~~ for the Borrower and its Restricted Subsidiaries as of the close of such fiscal quarter and (B) the consolidated statement of operations and cash flows for the Borrower and its Restricted Subsidiaries (which will include Impax and its Restricted Subsidiaries for the period from the Closing Date to such fiscal quarter end) during such fiscal quarter and the then-elapsed portion of the fiscal year; and (ii) an unaudited pro forma condensed combined statement of operations for the Borrower and its Restricted Subsidiaries (which will include Impax and its Restricted Subsidiaries) during such fiscal quarter (which pro forma financial statements will be certified by a Responsible Officer of the Borrower on behalf of the Borrower as having been prepared in good faith, based on assumptions believed by the Borrower to be reasonable as of the date of delivery thereof, and present fairly in all material respects on a pro forma basis the estimated results of operations of the Borrower and its Restricted Subsidiaries during such fiscal quarter end); and (c) for each such fiscal quarter thereafter, within 45 days of such fiscal quarter end, (A) a consolidated balance sheet for the Borrower and the Restricted Subsidiaries as of the close of such fiscal quarter and (B) the consolidated results of ~~their~~ operations and cash flows for the Borrower and the Restricted Subsidiaries during such fiscal quarter and the then-elapsed portion of the fiscal year and, ~~starting~~ commencing with the fiscal quarter ending September 30, ~~2016~~2019, setting forth in comparative form the corresponding figures for the corresponding periods of the prior fiscal year, ~~all of which shall be~~ in ~~reasonable detail~~each case (other than the preceding clause (ii)), which consolidated balance sheet and related statements of operations and cash flows shall be accompanied by customary management’s discussion and analysis and which consolidated balance sheet and related statements of operations and cash flows shall be certified by a ~~Financial~~ Responsible Officer of the Borrower on behalf of the Borrower as fairly presenting, in all material respects, the financial position and results of operations of the Borrower and the Restricted Subsidiaries (or Impax and its ~~Subsidiaries~~ Restricted Subsidiaries, as applicable) on a consolidated basis in accordance with ~~GAAP (~~GAAP, subject to normal year-end audit adjustments and the absence of ~~footnotes~~footnotes (the applicable financial statements delivered pursuant to this clause (2) being the “Quarterly Financial Statements” and, together with the Annual Financial Statements, the “Required Financial Statements”). (~~it being understood that~~ 3) no later than five (5) days after the delivery of any Required Financial Statements, a certificate of a Financial Officer of the Borrower: (a) certifying that no Default or Event of Default has occurred and is continuing or, if a Default or Event of Default has occurred and is continuing, specifying the nature and extent thereof and any corrective action taken or proposed to be taken with respect thereto; (b) upon the occurrence and during the continuance of a Covenant Trigger Event, setting forth in reasonable detail calculations of the Fixed Charge Coverage Ratio for the most recent period of four consecutive fiscal quarters as of the close of the fiscal year or fiscal quarter, as applicable; (c) certifying a list of all Immaterial Subsidiaries, that each Subsidiary set forth on such list individually qualifies as an Immaterial Subsidiary and that all such Subsidiaries in the aggregate do not exceed the limitation set forth in clause (ii) of the definition of the term “Immaterial Subsidiary;” and (d) certifying a list of all Unrestricted Subsidiaries at such time and that each Subsidiary set forth on such list qualifies as an Unrestricted Subsidiary; (4) promptly after the same become publicly available, copies of all periodic and other publicly available reports, proxy statements and, to the extent requested by the Administrative Agent, other materials publicly filed by the Borrower or any Restricted Subsidiary with the SEC or, after an initial public offering, distributed to its stockholders generally, as applicable, and in any case not otherwise required to be delivered to the Administrative Agent pursuant to any Loan Document; (5) within 60 days following the end of ~~quarterly reports~~ each fiscal year, commencing with the fiscal year ending December 31, 2018, a consolidated annual budget for such fiscal year in the form customarily prepared by the Borrower (the “Budget”), which Budget will in each case be accompanied by the statement of a Financial Officer of the Borrower on behalf of the Borrower to the effect that the Budget is based on assumptions believed by the Borrower to be reasonable as of the date of delivery thereof; provided that no Budget will be required to be delivered with respect to the fiscal year ending December 31, 2018; (6) upon the reasonable written request of the Collateral Agent, concurrently with the delivery of the Annual Financial Statements, an updated Perfection Certificate (or, to the extent such request relates to specified information contained in the Perfection Certificate, such information) reflecting all changes since the date of the information most recently received pursuant to this paragraph (6) or Section 5.10, as applicable; (7) promptly, from time to time, such other information regarding the operations, business affairs and financial condition of the Borrower or any Restricted Subsidiary, in each case, as the Administrative Agent may reasonably request (for itself or on behalf of any Lender) in writing; (8) promptly upon reasonable written request by the Administrative Agent (so long as the following are obtainable using commercially reasonable measures), copies of any documents described in Section 101(k)(1) of ERISA that the Borrower or any of its ERISA Affiliates may request with respect to any Multiemployer Plan; provided that if the Borrower or any of its ERISA Affiliates has not requested such documents from the administrator or sponsor of the applicable Multiemployer Plan, the Borrower or the applicable ERISA Affiliate shall promptly make a request for such documents or notices from such administrator or sponsor and shall provide copies of such documents and notices promptly after receipt thereof; and (9) a Borrowing Base Certificate from the Borrower on the Initial Borrowing Base Date and, thereafter, as soon as available but in any event on or before the 20th day after the end of each calendar month (or, if such date is not a Business Day, the next succeeding Business Day) (or on a more frequent basis at the discretion of the Borrower; provided that once a more frequent basis is elected it must be continued for no less than 30 days after the date of such election), with such supplemental information and supporting materials as the Administrative Agent may reasonably request and with supplemental information regarding the amount of Eligible Cash held with institutions other than the Administrative Agent being provided to the Administrative Agent on a bi-weekly basis (or, at any time that no Loans are then outstanding and the aggregate stated amounts of all then-outstanding Letters of Credit is less than $10 million, on a monthly basis); provided, that after the occurrence and during the continuance of an Increased Reporting Period, the Borrower shall be required to deliver a Borrowing Base Certificate on a weekly basis. Notwithstanding the foregoing, the Administrative Agent may not require the Borrower to deliver a Borrowing Base Certificate more frequently than weekly, and in the case of such weekly reporting the Borrowing Base Certificate will be due on Wednesday of each week (or, if Wednesday is not a Business Day, on the next succeeding Business Day) calculated as of the close of business on Saturday of the immediately preceding calendar week. Anything to the contrary notwithstanding, the obligations in clauses (1) and (2) of this Section 5.04 may be satisfied with respect to financial information of the Borrower and the Restricted Subsidiaries by furnishing (1) the applicable financial statements of any Parent Entity or (2) the Borrower’s (or any such other Parent Entity’s), as applicable, Form 10-Q K or 10-Q, as applicable, filed with the SEC; provided that with respect to each of the foregoing clauses (1) and (2) (a) to the extent such information relates to a Parent Entity, such information is accompanied by consolidating information (which need not be audited) that explains in reasonable detail the differences between the information relating to such Parent Entity, on the one hand, and the information relating to the Borrower and the Restricted Subsidiaries on a standalone basis, on the other hand, and (b) to the extent such information is in lieu of information required to be provided under Section 5.04(1), such materials are prepared in accordance with GAAP and accompanied by a report and opinion of any independent public accountants of recognized national standing, or such other accountants as are reasonably acceptable to the Administrative Agent, and accompanied by an opinion of such accountants (which opinion shall not be subject to any “going concern” statement, explanatory note or like qualification or exception (other than a “going concern” statement, explanatory note or like qualification or exception relating to an anticipated, but not actual, financial covenant default or an upcoming maturity date). The obligations in clauses (1) and (2) of this Section 5.04 may be satisfied by delivery of financial information of the Borrower and its ~~consolidated~~ Subsidiaries ~~shall satisfy~~ so long as such financial statements include a reasonably detailed presentation (which need not be audited), either on the ~~requirements~~ face of the financial statements or in the footnotes thereto, of the financial condition and results of operations of the Borrower and the Restricted Subsidiaries separate from the financial condition and results of operations of the Unrestricted Subsidiaries of the Borrower. Documents required to be delivered pursuant to this Section ~~5.04(b) to the extent such quarterly reports include the information specified herein~~5.04 may be delivered electronically in accordance with Section 10.01(5);.

Appears in 2 contracts

Sources: Revolving Credit Agreement (Amneal Pharmaceuticals, Inc.), Revolving Credit Agreement (Amneal Pharmaceuticals, Inc.)

Financial Statements, Reports, etc. Furnish to the Administrative Agent (which will promptly furnish such information to the Lenders): (a) within 90 days after the end of each fiscal year of the Borrower (~~commencing with~~ or such earlier date on which the ~~fiscal year ending December 31, 2016~~Borrower is required to file a Form 10-K under the Exchange Act), a consolidated balance sheet and related statements of operations, cash flows and owners’ ' equity showing the financial position of the Borrower and ~~its~~ the Subsidiaries as of the close of such fiscal year and the consolidated results of their operations during such year and setting forth in comparative form the corresponding figures for the prior fiscal year, which consolidated balance sheet and related statements of operations, cash flows and owners’ ' equity shall be ~~accompanied by customary management’s discussion and analysis and~~ audited by independent public accountants of recognized national standing and accompanied by an opinion of such accountants (which ~~opinion~~ shall not be qualified ~~as to scope of audit or as to the status of the Borrower or~~ in any Material Subsidiary as a going concern, other than solely with respect to, or resulting solely from, an upcoming maturity date under any series of Indebtedness occurring within one year from the time such opinion is delivered or any potential inability to satisfy a financial maintenance covenant on a future date or in a future periodmaterial respect) to the effect that such consolidated financial statements fairly present, in all material respects, the financial position and results of operations of the Borrower and its Subsidiaries on a consolidated basis in accordance with GAAP (it being ~~understood~~ understand that the ~~delivery~~ information required by clause (a) may be furnished in the ~~Borrower~~ form of ~~annual reports on~~ a Form 10-~~K of the Borrower and its consolidated Subsidiaries shall satisfy the requirements of this Section 5.04(a) to the extent such annual reports include the information specified herein~~K); (b) within 45 days after the end of each of the first three fiscal quarters of each fiscal ~~year~~ year, (~~commencing with~~ or such earlier date on which the ~~fiscal quarter ending June 30, 2016~~Borrower is required to file a Form 10-Q under the Exchange Act), a consolidated balance sheet and related statements of operations and cash flows showing the financial position of the Borrower and its Subsidiaries as of the close of such fiscal quarter and the consolidated results of ~~their~~ its operations during such fiscal quarter and the then-elapsed portion of the fiscal year ~~and, starting with the fiscal quarter ending September 30, 2016,~~ and setting forth in comparative form the corresponding figures for the corresponding periods of the prior fiscal year, all of which shall be in reasonable ~~detail, which consolidated balance sheet and related statements of operations and cash flows shall be accompanied by customary management’s discussion and analysis~~ detail and which consolidated balance sheet and related statements of operations and cash flows shall be certified by a Financial Officer of the Borrower on behalf of the Borrower as fairly presenting, in all material respects, the financial position and results of operations of the Borrower and ~~its~~ the Subsidiaries on a consolidated basis in accordance with GAAP (subject to normal year-end audit adjustments and the absence of footnotes) (it being understood that the information required by this clause (b) may be furnished in the form of a 10-Q); (c) concurrently with any delivery of financial statements under paragraph (a) or (b) above, a certificate of a Financial Officer of the Borrower (i) certifying that no Event of Default or Default has occurred or, if such an Event of Default or Default has occurred, specifying the nature and extent thereof and any corrective action taken or proposed to be taken with respect thereto and (ii) commencing with the fiscal quarter ending September 30, 2006, setting forth computations in reasonable detail satisfactory to the Administrative Agent demonstrating compliance with the Financial Performance Covenants; (d) promptly after the same become publicly available, copies of all periodic and other publicly available reports, proxy statements and, to the extent requested by the Administrative Agent, other materials filed by the Borrower or any Subsidiary with the SEC, or after an initial public offering, distributed to its stockholders generally, as applicable; (e) within 90 days after the beginning of each fiscal year, a detailed consolidated quarterly ~~reports on Form 10-Q~~ budget for such fiscal year (including a projected consolidated balance sheet of the Borrower and ~~its~~ the Subsidiaries as of the end of the following fiscal year, and the related consolidated ~~Subsidiaries~~ statements of projected cash flow and projected income) and, as soon as available, significant revisions, if any, of such budget and quarterly projections with respect to such fiscal year, including a description of underlying assumptions with respect thereto (collectively, the "Budget"), which Budget shall ~~satisfy~~ in each case be accompanied by the ~~requirements~~ statement of ~~this Section 5.04(b~~a Financial Officer of the Borrower to the effect that, to the best of his or her knowledge, the Budget is a reasonable estimate for the period covered thereby; (f) upon the reasonable request of the Administrative Agent, an updated Perfection Certificate (or, to the extent such ~~quarterly reports include~~ request relates to specified information contained in the Perfection Certificate, such information) reflecting all changes since the date of the information ~~specified herein~~most recently received pursuant to this paragraph (f) or Section 5.10(f); (g) promptly, a copy of all reports submitted to the board of directors (or any committee thereof) of the Borrower or any Subsidiary in connection with any material interim or special audit made by independent accountants of the books of the Borrower or such Subsidiary (excluding any reports which have been identified as confidential); (h) promptly following a request therefor, all documentation and other information that the Administrative Agent reasonably requests on its own behalf or on behalf of any Lender in order to comply with ongoing obligations under applicable "know your customer" and anti-money laundering rules and regulations, including the Act; and (i) promptly, from time to time, such other information regarding the operations, business affairs and financial condition of the Borrower or any Subsidiary, or compliance with the terms of any Loan Document, or such consolidated financial statements, as in each case the Administrative Agent may reasonably request on its own behalf or on behalf of any Lender.

Appears in 2 contracts

Sources: Credit Agreement (Nuance Communications, Inc.), Credit Agreement (Nuance Communications, Inc.)

Financial Statements, Reports, etc. Furnish to the Administrative Agent (which will promptly furnish such information to the Lenders): (a) ~~within 90~~ Within 120 days ~~after~~ following the end of each fiscal year (commencing with the fiscal year ending December 31, ~~2016)~~2018) and within 135 days for the fiscal year ending December 31, 2017, a combined or consolidated balance sheet and related statements of operations, cash flows and owners’ equity showing the financial position of the Borrower and ~~its~~ the Subsidiaries as of the close of such fiscal year and the combined or consolidated results of their operations during such year and setting forth in comparative form the corresponding figures for the prior fiscal year, commencing with the fiscal year ending December 31, 2018, which combined or consolidated balance sheet and related statements of operations, cash flows and owners’ equity shall be ~~accompanied by customary management’s discussion and analysis and~~ prepared in accordance in all material respects with GAAP audited by independent public accountants of recognized national standing and accompanied by an opinion of such accountants (which opinion shall not be qualified as to scope of audit or as to the status of the Borrower or any Material Subsidiary as a going ~~concern,~~ concern (other than solely with respect to, or resulting solely ~~from,~~ from (x) an upcoming maturity date under any series of Indebtedness occurring within one year from the time such opinion is ~~delivered~~ delivered, (y) a prospective or actual Default or Event of Default under Section 6.10 or any ~~potential inability to satisfy a~~ other financial maintenance covenant ~~on a future date~~ in any agreement governing Indebtedness of the Borrower or ~~in a future period~~any Subsidiary, or (z) the activities, operations, financial results, assets or liabilities of any Unrestricted Subsidiary) to the effect that such combined or consolidated financial statements fairly present, in all material respects, the financial position and results of operations of the Borrower and ~~its~~ the Subsidiaries on a combined or consolidated basis in accordance with GAAP (it being understood that the delivery by the Borrower of annual reports on Form 10-K of the Borrower and its consolidated Subsidiaries shall satisfy the requirements of this Section 5.04(a) to the extent such annual reports include the information specified herein)GAAP; (b) Within 60 days (or, in the case of the first two fiscal quarters for which quarterly financial statements are required to be delivered hereunder, within 45 75 days ~~after~~ following the end of such fiscal quarter), following the end of each of the first three fiscal quarters of each fiscal year (commencing with the fiscal quarter ending ~~June 30~~on or around March 31, ~~2016~~2018), a combined or consolidated balance sheet and related statements of operations and cash flows showing the financial position of the Borrower and ~~its~~ the Subsidiaries as of the close of such fiscal quarter and the combined or consolidated results of their operations during such fiscal quarter and the then-elapsed portion of the fiscal year ~~and, starting with~~ (occurring after the ~~fiscal quarter ending September 30, 2016,~~ Closing Date) and setting forth in comparative form the corresponding figures for the corresponding periods of the prior fiscal year, commencing with the fiscal year ending December 31, 2019, all of which shall be in reasonable ~~detail, which consolidated balance sheet and related statements of operations and cash flows shall be accompanied by customary management’s discussion and analysis~~ detail and which combined or consolidated balance sheet and related statements of operations and cash flows shall be certified in writing by a Financial Officer ~~of the Borrower on behalf~~ of the Borrower as fairly presenting, in all material respects, the financial position and results of operations of the Borrower and ~~its~~ the Subsidiaries on a combined or consolidated basis in accordance with GAAP (subject to normal year-end audit adjustments and the absence of footnotes); (c) Within five Business Days of any delivery of financial statements under paragraphs (a) or (b) above, (A) (~~it being understood~~ i) a certificate of a Financial Officer of the Borrower certifying that (x) no Event of Default or Default has occurred or, if such an Event of Default or Default has occurred, specifying the nature and extent thereof and any corrective action taken or proposed to be taken with respect thereto (y) the amount of Excluded Contributions as of the last day of such financial statements, and (z) the amount of Net Proceeds subject to the Borrower’s right to reinvestment pursuant to the definition of “Net Proceeds” and (ii) if applicable, setting forth computations calculating the Financial Performance Covenant and (B) a customary management discussion and analysis and (y) concurrently with any delivery of financial statements under paragraph (a) above, if the accounting firm is not restricted from providing such a certificate by its policies, a certificate of the accounting firm opining on or certifying such statements stating whether they obtained knowledge during the course of their examinations of such statements of any Default or Event of Default (which certificate may be limited to accounting matters and disclaim responsibility for legal interpretations); (d) promptly after the same become publicly available, copies of all periodic and other publicly available reports, proxy statements and, to the extent requested by the Administrative Agent, other materials filed by the Borrower or any of ~~quarterly reports on Form 10-Q~~ the Subsidiaries with the SEC, or distributed to its stockholders generally, as applicable; (e) within 120 days after the beginning of each fiscal year (or such later date as the Administrative Agent may agree), a reasonably detailed combined or consolidated annual budget for such fiscal year (including a projected combined or consolidated balance sheet of the Borrower and ~~its~~ the Subsidiaries as of the end of the following fiscal year, and the related combined or consolidated statements of projected cash flow and projected income), including a description of underlying assumptions with respect thereto (collectively, the “Budget”), which Budget shall in each case be accompanied by the statement of a Financial Officer of the Borrower to the effect that, the Budget is based on assumptions believed by such Financial Officer to be reasonable as of the date of delivery thereof; (f) promptly after receipt thereof, copies of any Tenant Financial Statements received by the Borrower; (g) concurrently with the delivery of financial statements pursuant to Section 5.04(a), an updated Perfection Certificate (or, to the extent such request relates to specified information contained in the Perfection Certificate, such information) reflecting all changes since the date of the information most recently received pursuant to this paragraph (g) or Section 5.10(f); (h) promptly, from time to time, such other information regarding the operations, business affairs and financial condition of the Borrower or any of the Subsidiaries ~~shall~~ (including without limitation with regard to compliance with the USA PATRIOT Act), or compliance with the terms of any Loan Document, as in each case the Administrative Agent may reasonably request (for itself or on behalf of the Lenders), in each case other than information that (x) constitutes non-registered intellectual property, non-financial trade secrets or non-financial proprietary information, (y) in respect of which disclosure to the Administrative Agent or any Lender (or their respective representatives or contractors) is prohibited by law or any binding agreement, or (z) is subject to attorney-client or similar privilege or constitutes attorney work product; and (i) (i) in the event that in respect of the First Priority Senior Secured Notes, the Second Priority Senior Secured Notes or any Permitted Refinancing Indebtedness with respect thereto, the rules and regulations of the SEC permit Parent or any Parent Entity to report at Parent or such Parent Entity’s level on a combined or consolidated basis such combined or consolidated reporting at Parent or such Parent Entity’s level in a manner consistent with that described in paragraphs (a) and (b) of this Section 5.04 for the Borrower will satisfy the requirements of such paragraphs and (ii) notwithstanding the foregoing, it is understood and agreed that until such time as Parent shall have filed a registration statement with the SEC with respect to the First Priority Senior Secured Notes or the Second Priority Senior Secured Notes, the combined or consolidated financial statements required by this Section ~~5.04(b~~5.04 may be satisfied by the delivery of financial statements that are prepared on a basis consistent with the presentation thereof under “Exhibit G” in the Disclosure Statement. Notwithstanding the foregoing, the obligations in clauses (a), (b), (c) and (d) of this Section 5.04 may be satisfied with respect to financial information of the Borrower and the Subsidiaries by furnishing (A) the applicable financial statements of the Parent Entity or (B) the Form 10-K or 10-Q or other applicable SEC filing of the Parent Entity, filed with the SEC; provided that, with respect to each of subclauses (A) and (B) of this Section 5.04, to the extent such ~~quarterly reports include~~ information relates to a parent of the Parent, such information is accompanied by an unaudited consolidated income statement and balance sheet that explains in reasonable detail the differences between the information ~~specified herein);~~relating to such parent, on the one hand, and the information relating to the Borrower and the Subsidiaries on a standalone basis, on the other hand.

Appears in 2 contracts

Sources: First Lien Credit Agreement (Vici Properties Inc.), First Lien Credit Agreement (Vici Properties Inc.)

Financial Statements, Reports, etc. Furnish to the Administrative Agent (which will promptly furnish such information to the Lenders): (a) within 90 days (or such shorter period as the SEC shall specify for the filing of Annual Reports on Form 10-K) after the end of each fiscal ~~year (~~year, commencing with the fiscal year ~~ending~~ ended December 31, ~~2016)~~2011, a consolidated balance sheet and related statements of operations, cash flows and owners’ equity showing the financial position of the Borrower and ~~its~~ the Subsidiaries as of the close of such fiscal year and the consolidated results of their operations during such year and setting forth in comparative form the corresponding figures for the prior fiscal year, ~~which consolidated balance sheet and related statements of operations, cash flows and owners’ equity shall be accompanied by customary management’s discussion and analysis and~~ all audited by independent public accountants of recognized national standing reasonably acceptable to the Administrative Agent and accompanied by an opinion of such accountants (which ~~opinion~~ shall not be qualified ~~as to scope of audit or as to the status of the Borrower or~~ in any Material Subsidiary as a going concern, other than solely with respect to, or resulting solely from, an upcoming maturity date under any series of Indebtedness occurring within one year from the time such opinion is delivered or any potential inability to satisfy a financial maintenance covenant on a future date or in a future periodmaterial respect) to the effect that such consolidated financial statements (A) have been prepared in accordance with GAAP and (B) present fairly ~~present, in all material respects,~~ and accurately the consolidated financial ~~position~~ condition and results of operations and cash flows of the Borrower and its ~~Subsidiaries on a consolidated basis in accordance with GAAP~~ subsidiaries as of the dates and for the periods to which they relate (it being understood that the delivery by the Borrower of ~~annual reports~~ Annual Reports on Form 10-K of the Borrower and its consolidated Subsidiaries shall satisfy the requirements of this Section 5.04(a) to the extent such ~~annual reports~~ Annual Reports include the information specified herein); (b) commencing with the fiscal quarter ended June 30, 2011, within 45 days (or such shorter period as the SEC shall specify for the filing of Quarterly Reports on Form 10-Q) after the end of each of the first three fiscal quarters of each fiscal ~~year (commencing with the fiscal quarter ending June 30, 2016)~~year, a consolidated balance sheet and related statements of operations and cash flows showing the financial position of the Borrower and ~~its~~ the Subsidiaries as of the close of such fiscal quarter and the consolidated results of their operations during such fiscal quarter and the then-elapsed portion of the fiscal year ~~and, starting with the fiscal quarter ending September 30, 2016,~~ and setting forth in comparative form the corresponding figures for the corresponding periods of the prior fiscal year, all of which shall be in reasonable detail, which consolidated balance sheet and related statements of operations and cash flows shall be accompanied by customary management’s discussion and analysis and which consolidated balance sheet and related statements of operations and cash flows shall be certified by a Financial Officer of the ~~Borrower~~ Borrower, on behalf of the ~~Borrower~~ Borrower, as (A) having been prepared in accordance with GAAP and (B) presenting fairly ~~presenting, in all material respects,~~ and accurately the consolidated financial ~~position~~ condition and results of operations and cash flows of the Borrower and its ~~Subsidiaries on a consolidated basis~~ subsidiaries as of the dates and for the periods to which they relate, subject, in ~~accordance with GAAP~~ the case of clauses (~~subject~~ A) and (B), to the absence of footnotes and to normal year-end audit ~~adjustments and the absence of footnotes)~~ (it being understood that the delivery by the Borrower of ~~quarterly reports~~ Quarterly Reports on Form 10-Q of the Borrower and its consolidated Subsidiaries shall satisfy the requirements of this Section 5.04(b) to the extent such ~~quarterly reports~~ Quarterly Reports include the information specified herein); (c) (x) concurrently with any delivery of financial statements under (a) or (b) above, a certificate of a Financial Officer of the Borrower (i) certifying that no Event of Default or Default has occurred or, if such an Event of Default or Default has occurred, specifying the nature and extent thereof and any corrective action taken or proposed to be taken with respect thereto and (ii) commencing with the fiscal period ending June 30, 2011, setting forth computations in reasonable detail satisfactory to the Administrative Agent demonstrating compliance with the covenants contained in Sections 6.10 and 6.11 and (y) concurrently with any delivery of financial statements under (a) above, a certificate of the accounting firm opining on or certifying such statements stating whether they obtained knowledge during the course of their examination of such statements of any Event of Default resulting from a breach of Section 6.10 or 6.11 (which certificate may be limited to accounting matters and disclaim responsibility for legal interpretations); (d) promptly after the same become publicly available, copies of all periodic and other publicly available reports, proxy statements and, to the extent requested by the Administrative Agent, other materials filed by the Borrower or any of its Subsidiaries with the SEC or distributed to the stockholders of the Borrower generally, as applicable; (e) if, as a result of any change in accounting principles and policies from those as in effect on the Third Amendment Effective Date, the consolidated financial statements of the Borrower and the Subsidiaries delivered pursuant to paragraphs (a) or (b) above will differ in any material respect from the consolidated financial statements that would have been delivered pursuant to such clauses had no such change in accounting principles and policies been made, then, 30 days after the first delivery of financial statements pursuant to paragraphs (a) and (b) above following such change, a schedule prepared by a Financial Officer on behalf of the Borrower reconciling such changes to what the financial statements would have been without such changes; (f) within 90 days after the beginning of each fiscal year, an operating and capital expenditure budget, in form satisfactory to the Administrative Agent prepared by the Borrower for each of the four fiscal quarters of such fiscal year prepared in reasonable detail, of the Borrower and the Subsidiaries, accompanied by the statement of a Financial Officer of the Borrower to the effect that, to the best of his knowledge, the budget is a reasonable estimate for the period covered thereby; (g) concurrently with the delivery of financial statements under clause (a) above and otherwise upon the reasonable request of the Administrative Agent, updated Perfection Certificates (or, to the extent such request relates to specified information contained in the Perfection Certificates, such information) reflecting all changes since the date of the information most recently received pursuant to this paragraph (g); (h) promptly, from time to time, such other information regarding the operations, business affairs and financial condition of the Borrower or any of its Subsidiaries, or compliance with the terms of any Loan Document, or such consolidating financial statements, as in each case the Administrative Agent may reasonably request (for itself or on behalf of any Lender); (i) promptly upon request by the Administrative Agent, copies of: (i) each Schedule B (Actuarial Information) to the annual report (Form 5500 Series) filed with the Internal Revenue Service with respect to a Plan; (ii) the most recent actuarial valuation report for any Plan; (iii) all notices received from a Multiemployer Plan sponsor or any governmental agency concerning an ERISA Event; and (iv) such other documents or governmental reports or filings relating to any Plan or Multiemployer Plan as the Administrative Agent shall reasonably request; and (j) deliver to the Administrative Agent for prompt further distribution to each Lender, simultaneously with the delivery of each set of consolidated financial statements referred to in Sections 5.04(a) and (b), a summary consolidating statement of income (loss) from continuing operations, net income (loss), revenue, EBITDA, assets, liabilities and any net increase (decrease) in cash and equivalents, of Unrestricted Subsidiaries for the relevant period and use commercially reasonable efforts to make senior officers of the Borrower available to discuss such information or the information specified in Section 5.04(a) promptly after such information is delivered to the Administrative Agent. Documents required to be delivered pursuant to Section 5.04(a), 5.04(b) or 5.04(d) (to the extent any such documents are included in materials otherwise filed with the SEC) may be delivered electronically and if so delivered, shall be deemed to have been delivered on the date (i) on which the Borrower posts such documents, or provides a link thereto on the Borrower’s website on the Internet, at ▇▇▇.▇▇▇▇▇▇▇.▇▇▇; provided that the Borrower shall notify the Administrative Agent and each Lender (by telecopier or electronic mail) of the posting of any such documents and provide to the Administrative Agent by electronic mail electronic versions (i.e., soft copies) of such documents.

Appears in 2 contracts

Sources: Credit Agreement (Massey Energy Co), Credit Agreement (Alpha Natural Resources, Inc.)

Financial Statements, Reports, etc. Furnish to the Administrative Agent (which will promptly furnish such information to the Lenders): (a) ~~within~~ Within 90 days ~~after~~ (or such other time period as specified in the ~~end~~ SEC’s rules and regulations for the filing of annual reports on Form 10-K), for each fiscal year (commencing with the fiscal year ending December 31, ~~2016~~2006), a consolidated balance sheet and related statements of operations, cash flows and owners’ equity showing the financial position of the Borrower and its Subsidiaries as of the close of such fiscal year and the consolidated results of ~~their~~ its operations during such year ~~and~~ and, starting with the fiscal year ending December 31, 2006, setting forth in comparative form the corresponding figures for the prior fiscal year, which consolidated balance sheet and related statements of operations, cash flows and owners’ equity shall be ~~accompanied by customary management’s discussion and analysis and~~ audited by independent public accountants of recognized national standing and accompanied by an opinion of such accountants (which ~~opinion~~ shall not be qualified as to scope of audit or as to the status of the Borrower or any Material Subsidiary as a going concern, other than solely with respect to, or resulting solely from, an upcoming maturity date under any series of Indebtedness occurring within one year from the time such opinion is delivered or any potential inability to satisfy a financial maintenance covenant on a future date or in a future period) to the effect that such consolidated financial statements fairly present, in all material respects, the financial position and results of operations of the Borrower and its Subsidiaries on a consolidated basis in accordance with GAAP (it being understood that the delivery by the Borrower of annual reports on Form ~~10-~~10 K of the Borrower and its consolidated Subsidiaries shall satisfy the requirements of this Section 5.04(a) to the extent such annual reports include the information specified herein); (b) ~~within~~ Within 45 days ~~after~~ (or such other time period as specified in the SEC’s rules and regulations for the filing of quarterly reports on Form 10-Q) (or, in the case of the first fiscal quarter for which quarterly financial statements are required to be delivered hereunder, within 75 days following the end of such fiscal quarter), for each of the first three fiscal quarters of each fiscal ~~year (commencing with the fiscal quarter ending June 30, 2016)~~year, a consolidated balance sheet and related statements of operations and cash flows showing the financial position of the Borrower and its Subsidiaries as of the close of such fiscal quarter and the consolidated results of ~~their~~ its operations during such fiscal quarter and the then-elapsed portion of the fiscal year ~~and, starting with the fiscal quarter ending September 30, 2016,~~ and setting forth in comparative form the corresponding figures for the corresponding periods of the prior fiscal year, all of which shall be in reasonable ~~detail, which consolidated balance sheet and related statements of operations and cash flows shall be accompanied by customary management’s discussion and analysis~~ detail and which consolidated balance sheet and related statements of operations and cash flows shall be certified by a Financial Officer of the Borrower on behalf of the Borrower as fairly presenting, in all material respects, the financial position and results of operations of the Borrower and its Subsidiaries on a consolidated basis in accordance with GAAP (subject to normal year-end audit adjustments and the absence of footnotes) (it being understood that the delivery by the Borrower of quarterly reports on Form 10-Q of the Borrower and its consolidated Subsidiaries shall satisfy the requirements of this Section 5.04(b) to the extent such quarterly reports include the information specified herein);

Appears in 2 contracts

Sources: Credit Agreement (Verso Paper Holdings LLC), Credit Agreement (Verso Sartell LLC)

Financial Statements, Reports, etc. ~~Furnish~~ In the case of the Borrower, furnish to the Administrative ~~Agent (~~Agent, which ~~will promptly~~ shall furnish ~~such information~~ to ~~the Lenders):~~each Lender: (a) ~~within~~ no later than the date that is the earlier of (i) the date by which the Annual Report on Form 10-K of the Borrower for each fiscal year is required to be filed under the rules and regulations of the SEC and (ii) 90 days after the end of ~~each~~ such fiscal ~~year (commencing with the fiscal year ending December 31~~year, ~~2016), a~~ its consolidated balance ~~sheet~~ sheets and related statements of operations, stockholders’ equity and cash flows ~~and owners’ equity~~ showing the financial ~~position~~ condition of the Borrower and its consolidated Subsidiaries as of the close of such fiscal year and the ~~consolidated~~ results of ~~their~~ its operations and the operations of such Subsidiaries during such ~~year and setting forth in~~ year, together with comparative ~~form the corresponding~~ figures for the ~~prior~~ immediately preceding fiscal year, ~~which consolidated balance sheet and related statements of operations, cash flows and owners’ equity shall be accompanied by customary management’s discussion and analysis and~~ all audited by PricewaterhouseCoopers LLP or other independent public accountants of recognized national standing reasonably acceptable to the Required Lenders and accompanied by an opinion of such accountants (which ~~opinion~~ shall not be qualified ~~as to scope of audit~~ in any material respect (it being agreed that any “going concern” or like qualification or exception or exception as to the ~~status~~ scope of ~~the Borrower or any Material Subsidiary as~~ such audit shall be deemed to be a going concern, other than solely with respect to, or resulting solely from, an upcoming maturity date under any series of Indebtedness occurring within one year from the time such opinion is delivered or any potential inability to satisfy a financial maintenance covenant on a future date or in a future periodmaterial qualification)) to the effect that such consolidated financial statements fairly ~~present,~~ present in all material ~~respects,~~ respects the financial ~~position~~ condition and results of operations of the Borrower and its consolidated Subsidiaries on a consolidated basis in accordance with GAAP ~~(it being understood that the delivery by the Borrower of annual reports on Form 10-K of the Borrower~~ consistently applied, together with a customary “management discussion and ~~its consolidated Subsidiaries shall satisfy the requirements of this Section 5.04(a) to the extent such annual reports include the information specified herein)~~analysis” provision; (b) ~~within 45 days after~~ no later than the ~~end~~ date that is the earlier of (i) the date by which the Quarterly Report on Form 10-Q of the Borrower for each of the first three fiscal quarters of each fiscal year is required to be filed under the rules and regulations of the SEC and (~~commencing with~~ ii) 45 days after the end of such fiscal ~~quarter ending June 30~~quarter, ~~2016), a~~ its consolidated balance ~~sheet~~ sheets and related statements of ~~operations~~ operations, stockholders’ equity and cash flows showing the financial ~~position~~ condition of the Borrower and its consolidated Subsidiaries as of the close of such fiscal quarter and the ~~consolidated~~ results of ~~their~~ its operations and the operations of such Subsidiaries during such fiscal quarter and the ~~then-~~then elapsed portion of the fiscal ~~year~~ year, and, ~~starting~~ other than with respect to quarterly reports during the remainder of the first fiscal ~~quarter ending September 30~~year after the Amendment No. 1 Effective Date, ~~2016, setting forth in~~ comparative ~~form the corresponding~~ figures for the ~~corresponding~~ same periods of in the ~~prior~~ immediately preceding fiscal year, all of which shall be in reasonable detail, which consolidated balance sheet and related statements of operations and cash flows shall be accompanied by customary management’s discussion and analysis and which consolidated balance sheet and related statements of operations and cash flows shall be certified by a one of its Financial ~~Officer of the Borrower on behalf of the Borrower~~ Officers as fairly ~~presenting,~~ presenting in all material ~~respects,~~ respects the financial ~~position~~ condition and results of operations of the Borrower and its consolidated Subsidiaries on a consolidated basis in accordance with GAAP (consistently applied, subject to normal year-end audit ~~adjustments~~ adjustments, together with a customary “management discussion and analysis” provision; (c) concurrently with any delivery of financial statements under paragraph (a) or (b) above, a certificate of a Financial Officer in the ~~absence~~ form of ~~footnotes~~Exhibit H (i) certifying that no Event of Default or Default has occurred or, if such an Event of Default or Default has occurred, specifying the nature and extent thereof and any corrective action taken or proposed to be taken with respect thereto and (~~it being understood~~ ii) setting forth computations in reasonable detail satisfactory to the Administrative Agent demonstrating compliance with the covenants contained in Sections 6.10, 6.11 and 6.12 and, in the case of a certificate delivered with the financial statements required by paragraph (a) above, setting forth the Borrower’s calculation of Excess Cash Flow; (d) concurrently with any delivery of financial statements under paragraph (a) above, a certificate of the accounting firm that reported on such statements (which certificate may be prepared in accordance with professional accounting standards and may be limited to accounting matters and disclaim responsibility for legal interpretations) stating that in performing the audit necessary therefor, no knowledge was obtained of the existence of any Event of Default or Default with respect to Sections 6.10, 6.11 or 6.12 or, if such knowledge was obtained, specifying the existence thereof in reasonable detail; (e) on or prior to each date of delivery by of financial statements under paragraph (a) above, the Borrower shall provide to each Lender a business plan for the following two years, in a form satisfactory to the Administrative Agent; (f) promptly after the same become publicly available, copies of ~~quarterly~~ all reports (excluding, in any event, copies of press releases) which the Borrower sends to its stockholders, and copies of all registration statements, reports on Form 10-K, Form 10-Q or Form 8-K (or, in each case, any successor form) and other material reports which the Borrower or any Subsidiary files with the SEC or any successor or analogous Governmental Authority (other than public offerings of securities under employee benefit plans or dividend reinvestment plans); (g) promptly after the receipt thereof by the Borrower or any Subsidiary, a copy of any “management letter” received by any such person from its certified public accountants and the management’s response thereto; (h) promptly after the request by any Lender, all documentation and other information that such Lender reasonably requests in order to comply with its ongoing obligations under applicable “know your customer” and anti-money laundering rules and regulations, including the Patriot Act; and (i) promptly, from time to time, such other information regarding the operations, business affairs and financial condition of the Borrower ~~and its consolidated Subsidiaries shall satisfy~~ or any Subsidiary, or compliance with the ~~requirements~~ terms of ~~this Section 5.04(b) to~~ any Loan Document, as the ~~extent such quarterly reports include the information specified herein);~~Administrative Agent or any Lender may reasonably request.

Appears in 2 contracts

Sources: Credit Agreement (King Pharmaceuticals Inc), Credit Agreement (Alpharma Inc)

Appears in 2 contracts

Sources: First Lien Credit Agreement (McGraw-Hill Interamericana, Inc.), First Lien Credit Agreement (McGraw-Hill Global Education LLC)

Appears in 2 contracts

Sources: Incremental Assumption Agreement (AP Gaming Holdco, Inc.), First Lien Credit Agreement (AP Gaming Holdco, Inc.)

Financial Statements, Reports, etc. Furnish to the Administrative Agent (which will promptly furnish such information to the Lenders): (a) ~~within~~ no later than 90 days (or, in the case of the fiscal year ending February 2, 2019, 120 days) after the end of each fiscal year (commencing with the fiscal year ending ~~December 31~~February 2, ~~2016~~2019), a consolidated balance sheet and related statements of operations, cash flows and owners’ equity showing the financial position of the Lead Borrower and ~~its~~ the Subsidiaries as of the close of such fiscal year and the consolidated results of ~~their~~ its operations during such year ~~and~~ setting forth in comparative form the corresponding figures for the prior fiscal year, which consolidated balance sheet and related statements of operations, cash flows and owners’ equity shall be accompanied by customary management’s discussion and analysis (commencing with the fiscal year ending February 1, 2020) and audited by independent public accountants of recognized national standing and accompanied by an opinion of such accountants (which ~~opinion~~ shall not be qualified as to scope of audit or as to the status of the Lead Borrower or any ~~Material Subsidiary~~ subsidiary as a going ~~concern,~~ concern (other than ~~solely with respect to,~~ any going concern qualification or ~~resulting solely from, an upcoming maturity date under~~ matter of emphasis arising as a result of the anticipated breach of any ~~series of Indebtedness occurring within one year from the time such opinion is delivered or any potential inability to satisfy a~~ financial ~~maintenance covenant on a future date or in a future period~~covenant)) to the effect that such consolidated financial statements fairly present, in all material respects, the financial position and results of operations of the Lead Borrower and ~~its Subsidiaries~~ the subsidiaries on a consolidated basis in accordance with GAAP (it being understood that the ~~delivery by~~ filing with the ~~Borrower~~ SEC of annual reports on Form 10-K of the Lead Borrower and its consolidated ~~Subsidiaries~~ subsidiaries, or delivery by the Lead Borrower of such reports, shall satisfy the requirements of this Section 5.04(a) to the extent such annual reports include the information specified herein); (b) ~~within~~ no later than 45 days after the end of each of the first three (3) fiscal quarters of each fiscal year (commencing with the fiscal quarter ending ~~June 30~~May 4, ~~2016~~2019), a consolidated balance sheet and related statements of operations and cash flows showing the financial position of the Lead Borrower and ~~its Subsidiaries~~ the subsidiaries as of the close of such fiscal quarter and the consolidated results of ~~their~~ its operations during such fiscal quarter and the ~~then-~~then elapsed portion of the fiscal year ~~and, starting with the fiscal quarter ending September 30, 2016,~~ and setting forth in comparative form the corresponding figures for the corresponding periods of the prior fiscal year, all of which shall be in reasonable ~~detail,~~ detail and which consolidated balance sheet and related statements of operations and cash flows shall be accompanied by customary management’s discussion and analysis (commencing with the fiscal quarter ending August 3, 2019) and ~~which consolidated balance sheet and related statements of operations and cash flows shall be~~ certified by a Financial Officer of the Lead Borrower on behalf of the Lead Borrower as fairly presenting, in all material respects, the financial position and results of operations of the Lead Borrower and ~~its Subsidiaries~~ the subsidiaries on a consolidated basis in accordance with GAAP (subject to normal year-end audit adjustments and the absence of footnotes) (it being understood that the ~~delivery by~~ filing with the ~~Borrower~~ SEC of quarterly reports on Form 10-Q of the Lead Borrower and its consolidated ~~Subsidiaries~~ subsidiaries, or the delivery by the Lead Borrower of such reports, shall satisfy the requirements of this Section 5.04(b) to the extent such quarterly reports include the information specified herein); (c) concurrently with any delivery of financial statements under paragraphs (a) or (b) above, a certificate of a Financial Officer of the Lead Borrower (i) certifying that no Event of Default or Default has occurred or, if such an Event of Default or Default has occurred, specifying the nature and extent thereof and any corrective action taken or proposed to be taken with respect thereto, (ii) to the extent that compliance with the financial covenant under Section 6.11 is (or was) required in respect of the period covered by such financial statements, certifying as to (and containing reasonably detailed calculations demonstrating) compliance with such financial covenant as of the last day of the applicable Test Period, (iii) certifying a list of names of all Immaterial Subsidiaries, that each subsidiary set forth on such list individually qualifies as an Immaterial Subsidiary and that all such Subsidiaries in the aggregate do not exceed the limitation set forth in clause (b) of the definition of the term “Immaterial Subsidiary”, and (iv) certifying a list of names of all Unrestricted Subsidiaries and that each subsidiary set forth on such list qualifies as an Unrestricted Subsidiary; (d) within 15 days after filed with the SEC, any reports of the Lead. Borrower filed on Form 8-K (it being understood that the filing with the SEC of reports on Form 8-K of the Lead Borrower and its Subsidiaries, or the delivery by the Lead Borrower of such reports, shall satisfy the requirements of this Section 5.04(d)); (e) concurrently with any delivery of financial statements under paragraphs (a) or (b) above, the related consolidated financial statements reflecting the adjustments necessary (as determined by the Administrative Agent and the Lead Borrower in good faith) to eliminate the accounts of Unrestricted Subsidiaries (if any) from such consolidated financial statements; (f) within 90 days after the beginning of each fiscal year, a reasonably detailed consolidated annual budget for such fiscal year (including a projected consolidated balance sheet of the Lead Borrower and the Subsidiaries as of the end of the following fiscal year, and the related statement or schedule of projected cash flow and projected income), including a description of underlying assumptions with respect thereto (collectively, the “Budget”), which Budget shall in each case be accompanied by the statement of a Financial Officer of the Lead Borrower to the effect that the Budget it based on assumptions believed by such Financial Officer to be reasonable as of the date of delivery thereof.

Appears in 2 contracts

Sources: Abl Credit Agreement (Claire's Holdings LLC), Abl Credit Agreement (Claire's Holdings LLC)

Financial Statements, Reports, etc. Furnish to the Administrative Agent (which will promptly furnish such information to the Lenders): (1) within 120 days following the end of the fiscal year ending on the earlier of (a) on or about January 30, 2016 or (b) the fiscal year ended after the Closing Date, and within 90 days ~~after~~ following the end of each fiscal year ~~(commencing with the fiscal year ending December 31, 2016)~~thereafter, a consolidated balance sheet and related statements of operations, cash flows and owners’ equity showing the financial position of the Borrower and ~~its~~ the Restricted Subsidiaries as of the close of such fiscal year and the consolidated results of ~~their~~ its operations during such fiscal year ~~and~~ and, in each case, starting with the following fiscal year, setting forth in comparative form the corresponding figures for the prior fiscal year, which consolidated balance sheet and related statements of operations, cash flows and owners’ equity ~~shall~~ will be ~~accompanied by customary management’s discussion and analysis and~~ audited by independent public accountants of recognized national ~~standing~~ standing, or such other accountants as are reasonably acceptable to the Administrative Agent, and accompanied by an opinion of such accountants (which opinion shall not be ~~qualified as~~ subject to ~~scope of audit or as to the status of the Borrower or~~ any ~~Material Subsidiary as a~~ “going concern” statement, explanatory note or like qualification or exception (other than ~~solely with respect to~~a “going concern” statement, explanatory note or like qualification or exception resulting solely ~~from,~~ from an upcoming maturity date ~~under any series of Indebtedness~~ occurring within one year from the time such opinion is delivered or ~~any potential inability to satisfy a financial maintenance~~ anticipated (but not actual) covenant ~~on a future date or in a future period~~non-compliance)) to the effect that such consolidated financial statements fairly present, in all material respects, the financial position and results of operations of the Borrower and ~~its~~ the Restricted Subsidiaries on a consolidated basis in accordance with GAAP (it the applicable financial statements delivered pursuant to this clause (1) being ~~understood that~~ the delivery by the Borrower of annual reports on Form 10-K of the Borrower and its consolidated Subsidiaries shall satisfy the requirements of this Section 5.04(a) to the extent such annual reports include the information specified herein“ Annual Financial Statements”); (b2) within 60 days following the end of the fiscal quarters ending on or about April 30, 2016 and on or about July 31, 2016, and, thereafter, within 45 days ~~after~~ following the end of each of the first three fiscal quarters of each fiscal ~~year (commencing with the fiscal quarter ending June 30, 2016)~~year, a consolidated balance sheet and related statements of operations and cash flows showing the financial position of the Borrower and ~~its~~ the Restricted Subsidiaries as of the close of such fiscal quarter and the consolidated results of ~~their~~ its operations during such fiscal quarter ~~and~~ and, in each case, the then-elapsed portion of the fiscal year ~~and, starting with the fiscal quarter ending September 30, 2016,~~ and setting forth in comparative form the corresponding figures for the corresponding periods of the prior fiscal year, ~~all of which shall be in reasonable detail,~~ which consolidated balance sheet and related statements of operations and cash flows ~~shall be accompanied by customary management’s discussion and analysis and which consolidated balance sheet and related statements of operations and cash flows shall~~ will be certified by a ~~Financial~~ Responsible Officer of the Borrower on behalf of the Borrower as fairly presenting, in all material respects, the financial position and results of operations of the Borrower and ~~its~~ the Restricted Subsidiaries on a consolidated basis in accordance with ~~GAAP (~~GAAP, subject to normal year-end audit adjustments and the absence of ~~footnotes~~footnotes (the applicable financial statements delivered pursuant to this clause (2) being the “ Quarterly Financial Statements” and, together with the Annual Financial Statements, the “Required Financial Statements”); (3) concurrently with any delivery of Required Financial Statements, a certificate of a Financial Officer of the Company: (a) certifying that no Default or Event of Default has occurred and is continuing or, if a Default or Event of Default has occurred and is continuing, specifying the nature and extent thereof and any corrective action taken or proposed to be taken with respect thereto; (b) setting forth the calculation and uses of the Available Amount for the fiscal period then ended if the Borrower has used the Available Amount for any purpose during such fiscal period; (c) certifying a list of all Immaterial Subsidiaries, that each Subsidiary set forth on such list individually qualifies as an Immaterial Subsidiary and that all such Subsidiaries in the aggregate do not exceed the limitation set forth in clause (ii) of the definition of the term “Immaterial Subsidiary;” (d) setting forth, in reasonable detail, the calculation of the Senior Secured First Lien Net Leverage Ratio for the most recent period of four consecutive fiscal quarters as of the close of such fiscal year or such fiscal quarter, as applicable; and (e) certifying a list of all Unrestricted Subsidiaries at such time and that each Subsidiary set forth on such list qualifies as an Unrestricted Subsidiary; (4) promptly after the same become publicly available, copies of all periodic and other publicly available reports, proxy statements and, to the extent requested by the Administrative Agent, other materials publicly filed by Holdings, the Borrower or any Restricted Subsidiary with the SEC or, after an initial public offering, distributed to its stockholders generally, as applicable; (5) within 120 days following the end of the fiscal year ending on or about January 30, 2017, and within 90 days following the end of each full fiscal year ended thereafter, a consolidated annual budget for such fiscal year in the form customarily prepared by the Borrower (the “ Budget”), which Budget will in each case be accompanied by the statement of a Financial Officer of the Borrower on behalf of the Borrower to the effect that the Budget is based on assumptions believed by the Borrower to be reasonable as of the date of delivery thereof; (6) upon the reasonable request of the Collateral Agent, concurrently with the delivery of the Annual Financial Statements, an updated Perfection Certificate (or, to the extent such request relates to specified information contained in the Perfection Certificate, such information) reflecting all changes since the date of the information most recently received pursuant to this paragraph (6) or Section 5.10; (7) promptly, from time to time, such other information regarding the operations, business affairs and financial condition of Holdings, the Borrower or any Restricted Subsidiary, in each case, as the Administrative Agent may reasonably request (for itself or on behalf of any Lender); and (8) promptly upon request by the Administrative Agent (so long as the following are obtainable using commercially reasonable measures), copies of any documents described in Section 101(k)(1) of ERISA that the Borrower or any of its ERISA Affiliates may request with respect to any Multiemployer Plan; provided that if the Borrower or any of its ERISA Affiliates has not requested such documents from the administrator or sponsor of the applicable Multiemployer Plan, the Borrower or the applicable ERISA Affiliate shall promptly make a request for such documents or notices from such administrator or sponsor and shall provide copies of such documents and notices promptly after receipt thereof. Anything to the contrary notwithstanding, the obligations in clauses (1) and (2) of this Section 5.04 may be satisfied with respect to financial information of the Borrower and the Restricted Subsidiaries by furnishing (1) the applicable financial statements of Holdings (or any other Parent Entity) or (2) the Borrower’s or Holdings’ (or any such other Parent Entity’s), as applicable, Form 10-K or 10-Q, as applicable, filed with the SEC; provided that with respect to each of the foregoing clauses (1) and (2) (a) to the extent such information relates to Holdings (or a Parent Entity), such information is accompanied by consolidating information that explains in reasonable detail the differences between the information relating to Holdings (or such Parent Entity), on the one hand, and the information relating to the Borrower and the Restricted Subsidiaries on a standalone basis, on the other hand, and (b) to the extent such information is in lieu of information required to be provided under Section 5.04(1), such materials are accompanied by a report and opinion of independent public accountants of recognized national standing, or such other accountants as are reasonably acceptable to the Administrative Agent, and accompanied by an opinion of such accountants (which opinion shall not be subject to any “going concern” statement, explanatory note or like qualification or exception (other than a “going concern” statement, explanatory note or like qualification or exception resulting solely from an upcoming maturity date occurring within one year from the time such opinion is delivered or anticipated (but not actual) covenant non-compliance)) (it being understood and agreed that ~~the delivery by~~ if, in compliance with this paragraph, (x) the Borrower provides audited financial statements of ~~quarterly reports~~ Holdings (or any other Parent Entity) and related report and opinion of accountants with respect thereto in lieu of information required to be provided under Section 5.04(1), no such audited financial information, opinion or report shall be required with respect to the Borrower, (y) the Borrower provides unaudited financial statements of Holdings (or any other Parent Entity) in lieu of information required to be provided under Section 5.04(2), no such unaudited financial information shall be required with respect to the Borrower and (z) the Borrower provides a Budget of Holdings and accompanying statement (or any other Parent Entity) in lieu of information required to be provided under Section 5.04(5), no such Budget shall be required with respect to the Borrower; provided that for the avoidance of doubt, with respect to the foregoing clauses (x), (y) and (z) (i) to the extent such information relates to Holdings (or a Parent Entity), such information is accompanied by consolidating information that explains in reasonable detail the differences between the information relating to Holdings (or such Parent Entity), on ~~Form 10~~the one hand, and the information relating to the Borrower and the Restricted Subsidiaries on a standalone basis, on the other hand, and (ii) to the extent such information is in lieu of information required to be provided under Section 5.04(1), such materials are accompanied by a report and opinion of independent public accountants of recognized national standing, or such other accountants as are reasonably acceptable to the Administrative Agent, and accompanied by an opinion of such accountants (which opinion shall not be subject to any “going concern” statement, explanatory note or like qualification or exception (other than a “going concern” statement, explanatory note or like qualification or exception resulting solely from an upcoming maturity date occurring within one year from the time such opinion is delivered or anticipated (but not actual) covenant non-Q compliance). The obligations in clauses (1) and (2) of this Section 5.04 may be satisfied by delivery of financial information of the Borrower and its ~~consolidated~~ Subsidiaries ~~shall satisfy~~ so long as such financial statements include a reasonably detailed presentation, either on the ~~requirements~~ face of the financial statements or in the footnotes thereto, of the financial condition and results of operations of the Borrower and the Restricted Subsidiaries separate from the financial condition and results of operations of the Unrestricted Subsidiaries of the Borrower. Documents required to be delivered pursuant to this Section ~~5.04(b) to the extent such quarterly reports include the information specified herein~~5.04 may be delivered electronically in accordance with Section 10.01(5);.

Appears in 2 contracts

Sources: Term Loan Credit Agreement (PET Acquisition LLC), Term Loan Credit Agreement (PET Acquisition LLC)

Appears in 2 contracts

Sources: Credit Agreement (Dollar Tree Inc), Credit Agreement (Dollar Tree Inc)

Financial Statements, Reports, etc. ~~Furnish~~ In the case of the Borrower, deliver to the Administrative Agent ~~(which will promptly furnish such information~~ for prompt further distribution to ~~the Lenders):~~each Lender: (a) within 90 days after the end of each fiscal year of the Borrower (beginning with the fiscal year ending December 31, 2019), a consolidated balance sheet of the Borrower and its Subsidiaries as at the end of such fiscal year, and the related consolidated statements of operations, changes in shareholders’ equity and cash flows for such fiscal year, setting forth in each case in comparative form the figures for the previous fiscal year, all in reasonable detail and prepared in accordance with GAAP, audited and accompanied by a report and opinion of KPMG LLP, any other independent registered public accounting firm of nationally recognized standing or any other independent registered public accounting firm approved by the Administrative Agent and the Required Lenders (such approval not to be unreasonably withheld, conditioned or delayed), which report and opinion (i) shall be prepared in accordance with generally accepted auditing standards, (ii) shall not be subject to qualifications or exceptions as to the scope of such audit, (iii) shall be without a “going concern” disclosure or like qualification or exception (other than with respect to, or disclosure or an exception or qualification solely resulting from, (x) the impending maturity of any Indebtedness, (y) any prospective or actual default under any financial covenant or (z) the impact of COVID 19 on the business of the Borrower and its Subsidiaries) and (iv) shall be accompanied with customary management discussion and analysis; (b) within 45 days after the end of each of the first three (3) fiscal quarters of each fiscal year of the Borrower (commencing with the fiscal quarter ended September 30, 2019), a consolidated balance sheet of the Borrower and its Subsidiaries as at the end of such fiscal quarter, and the related (x) consolidated statements of income or operations for such fiscal quarter and for the portion of the fiscal year then ended and (y) consolidated statements of cash flows for such fiscal quarter and the portion of the fiscal year then ended, setting forth in each case in comparative form the figures for the corresponding fiscal quarter of the previous fiscal year and the corresponding portion of the previous fiscal year, all in reasonable detail and certified by a Responsible Officer of the Borrower as fairly presenting in all material respects the financial condition, results of operations and cash flows of the Borrower and its Subsidiaries in accordance with GAAP, subject only to normal year-end audit adjustments and the absence of footnotes and accompanied by customary management discussion and analysis; and (c) within 90 days after the end of each fiscal year (commencing with the fiscal year ending December 31, ~~2016)~~2019) of the Borrower, a reasonably detailed consolidated budget for the following fiscal year on a quarterly basis (including a projected consolidated balance sheet ~~and related statements of operations, cash flows and owners’ equity showing the financial position~~ of the Borrower and its Subsidiaries as of the ~~close~~ end of ~~such fiscal year and~~ the ~~consolidated results of their operations during such year and setting forth in comparative form the corresponding figures for the prior~~ following fiscal year, ~~which~~ the related consolidated ~~balance sheet and related~~ statements of ~~operations,~~ projected cash flows and ~~owners’ equity~~ projected income and a summary of the material underlying assumptions applicable thereto) (collectively, the “Projections”), which Projections shall in each case be accompanied by ~~customary management’s discussion and analysis and audited by independent public accountants~~ a certificate of ~~recognized national standing and accompanied by an opinion~~ a Responsible Officer stating that such Projections have been prepared in good faith on the basis of the assumptions stated therein, which assumptions were believed to be reasonable at the time of preparation of such ~~accountants (which opinion shall not be qualified~~ Projections, it being understood by the Agents and the Lenders that such projections as to ~~scope~~ future events (i) are not to be viewed as facts, (ii)(A) are subject to significant uncertainties and contingencies, which may be beyond the control of ~~audit~~ the Borrower and its Restricted Subsidiaries, (B) no assurance is given by the Borrower and its Restricted Subsidiaries that the results or as forecast in any such projections will be realized and (C) the actual results may differ from the forecast results set forth in such projections and such differences may be material and (iii) are not a guarantee of performance and that actual results during the period or periods covered by any such projections may vary significantly from the projected results and such differences may be material. Notwithstanding the foregoing, the obligations in paragraphs (a) and (b) of this Section 6.01 or Section 6.02(b) may be satisfied with respect to information of the ~~status~~ Borrower and the Subsidiaries by furnishing within the time period specified in the applicable paragraph (A) the applicable financial statements of the Borrower or (B) the Borrower’s Form 10-K or 10-Q, as applicable, filed with the SEC; provided that, with respect to clauses (A) and (B), to the extent such information is in lieu of information required to be provided under Section 6.01(a), such materials are accompanied by a report and opinion of KPMG LLP, any ~~Material Subsidiary~~ other independent registered public accounting firm of nationally recognized standing or any other independent registered public accounting firm approved by the Administrative Agent and the Required Lenders (such approval not to be unreasonably withheld, conditioned or delayed), which report and opinion (i) shall be prepared in accordance with generally accepted auditing standards, (ii) shall not be subject to qualifications or exceptions as to the scope of such audit and (iii) shall be without a “going concern, ” disclosure or like qualification or exception (other than ~~solely~~ with respect to, or disclosure or an exception or qualification solely resulting ~~solely~~ from, ~~an upcoming~~ (A) the impending maturity ~~date~~ of any Indebtedness, (B) any prospective or actual default under any ~~series~~ financial covenant or (C) the impact of ~~Indebtedness occurring within one year from~~ COVID 19 on the time such opinion is delivered or any potential inability to satisfy a financial maintenance covenant on a future date or in a future period) to the effect that such consolidated financial statements fairly present, in all material respects, the financial position and results of operations business of the Borrower and its ~~Subsidiaries~~ Subsidiaries). Documents required to be delivered pursuant to Section 6.01(a), (b), (c) and (d) or Section 6.02(b) or (c) may be delivered electronically and if so delivered, shall be deemed to have been delivered on the earliest date on which (i) Borrower posts such documents, or provides a ~~consolidated basis in accordance with GAAP~~ link thereto on Borrower’s website on the Internet and provides notice thereof to the Administrative Agent; (~~it being understood that~~ ii) such documents are posted on Borrower’s behalf on IntraLinks/IntraAgency or another website, if any, to which each Lender and the ~~delivery~~ Administrative Agent have access (whether a commercial, third-party website or whether sponsored by the Administrative Agent), or (iii) such financial statements and/or other documents are posted on the SEC’s website on the internet at ▇▇▇.▇▇▇.▇▇▇; provided that: (i) promptly following written request by the Administrative Agent, the Borrower shall deliver paper copies of ~~annual reports on Form 10-K~~ 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 (ii) 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. Each Lender shall be solely responsible for timely accessing posted documents or requesting delivery of paper copies of such documents from the Administrative Agent and maintaining its copies of such documents. Notwithstanding anything contained herein, in every instance the Borrower ~~and its consolidated Subsidiaries~~ shall ~~satisfy~~ be required to provide paper copies of the ~~requirements of this~~ Compliance Certificates required by Section ~~5.04(a~~6.02(a) to the ~~extent~~ Administrative Agent; provided, however, that if such ~~annual reports include~~ Compliance Certificate is first delivered by electronic means, the information specified herein); (b) within 45 days after the end of each of the first three fiscal quarters of each fiscal year (commencing with the fiscal quarter ending June 30, 2016), a consolidated balance sheet and related statements of operations and cash flows showing the financial position of the Borrower and its Subsidiaries as of the close date of such fiscal quarter and the consolidated results of their operations during such fiscal quarter and the then-elapsed portion of the fiscal year and, starting with the fiscal quarter ending September 30, 2016, setting forth in comparative form the corresponding figures for the corresponding periods of the prior fiscal year, all of which shall be in reasonable detail, which consolidated balance sheet and related statements of operations and cash flows shall be accompanied by customary management’s discussion and analysis and which consolidated balance sheet and related statements of operations and cash flows shall be certified by a Financial Officer of the Borrower on behalf of the Borrower as fairly presenting, in all material respects, the financial position and results of operations of the Borrower and its Subsidiaries on a consolidated basis in accordance with GAAP (subject to normal year-end audit adjustments and the absence of footnotes) (it being understood that the delivery by electronic means shall constitute the ~~Borrower~~ date of ~~quarterly reports on Form 10-Q~~ delivery for purposes of ~~the Borrower and its consolidated Subsidiaries shall satisfy the requirements of this~~ compliance with Section ~~5.04(b) to the extent such quarterly reports include the information specified herein~~6.02(a);.

Appears in 2 contracts

Sources: Credit Agreement (Yellow Corp), Credit Agreement (Yellow Corp)

Financial Statements, Reports, etc. ~~Furnish~~ In the case of the Borrower, furnish to the Administrative ~~Agent (~~Agent, which ~~will promptly~~ shall furnish ~~such information~~ to ~~the Lenders):~~each Lender: (a) within 90 120 days after the end of each fiscal ~~year (commencing with the fiscal year ending December 31~~year, ~~2016), a~~ its consolidated balance sheet and related statements of ~~operations~~income, stockholders’ equity and cash flows ~~and owners’ equity~~ showing the financial ~~position~~ condition of the Borrower and its consolidated Subsidiaries as of the close of such fiscal year and the ~~consolidated~~ results of ~~their~~ its operations and the operations of such Subsidiaries during such ~~year and setting forth in~~ year, together with comparative ~~form the corresponding~~ figures for the ~~prior~~ immediately preceding fiscal year, ~~which consolidated balance sheet and related statements of operations, cash flows and owners’ equity shall be accompanied by customary management’s discussion and analysis and~~ all audited by Deloitte & Touche LLP or other independent public accountants of recognized national standing and accompanied by an opinion of such accountants (which opinion shall not ~~be qualified~~ include (i) an explanatory paragraph expressing substantial doubt about the ability of the Borrower and its consolidated Subsidiaries to continue as ~~to scope of audit~~ a going concern or (ii) any qualification or exception as to the ~~status~~ scope of ~~the Borrower or any Material Subsidiary as a going concern~~such audit, other than solely ~~with respect to, or resulting solely from, an~~ as a result of the upcoming maturity ~~date under~~ of any ~~series of Indebtedness occurring within one year from the time such opinion is delivered~~ Obligations or any ~~potential~~ prospective inability to satisfy ~~a financial maintenance covenant~~ the covenants set forth in Section 6.10 on a future date or in for a future period) to the effect that such consolidated financial statements fairly ~~present, in all material respects,~~ present the financial ~~position~~ condition and results of operations of the Borrower and its consolidated Subsidiaries on a consolidated basis in accordance with GAAP ~~(it being understood that the delivery by the Borrower of annual reports on Form 10-K of the Borrower~~ consistently applied, together with a customary “management discussion and ~~its consolidated Subsidiaries shall satisfy the requirements of this Section 5.04(a) to the extent such annual reports include the information specified herein)~~analysis” provision; (b) within 45 60 days after ~~the end of~~ each ~~of the first three~~ fiscal ~~quarters~~ quarter of each fiscal ~~year (commencing with the fiscal quarter ending June 30~~year, ~~2016), a~~ its consolidated balance sheet and related statements of ~~operations~~ income, stockholders’ equity and cash flows showing the financial ~~position~~ condition of the Borrower and its consolidated Subsidiaries as of the close of such fiscal quarter and the ~~consolidated~~ results of ~~their~~ its operations and the operations of such Subsidiaries during such fiscal quarter and the ~~then-~~then elapsed portion of the fiscal ~~year and~~year, ~~starting with the fiscal quarter ending September 30, 2016, setting forth in~~ and comparative ~~form the corresponding~~ figures for the ~~corresponding~~ same periods of in the ~~prior~~ immediately preceding fiscal year, all of which shall be in reasonable detail, which consolidated balance sheet and related statements of operations and cash flows shall be accompanied by customary management’s discussion and analysis and which consolidated balance sheet and related statements of operations and cash flows shall be certified by a one of its Financial ~~Officer of the Borrower on behalf of the Borrower~~ Officers as fairly ~~presenting, in all material respects,~~ presenting the financial ~~position~~ condition and results of operations of the Borrower and its consolidated Subsidiaries on a consolidated basis in accordance with GAAP (consistently applied, subject to normal year-end audit ~~adjustments~~ adjustments, together with, commencing with the fiscal quarter ended March 31, 2021, a customary “management discussion and analysis” provision; (c) commencing with the ~~absence~~ fiscal month ending January 31, 2021, within 30 days after the end of ~~footnotes)~~ each fiscal month (~~it being understood that~~ or with respect to each fiscal month ending on or prior to December 31, 2021, 45 days), its consolidated balance sheet and related statements of income and cash flows showing the ~~delivery by the Borrower of quarterly reports on Form 10-Q~~ financial condition of the Borrower and its consolidated Subsidiaries during such fiscal month and the then elapsed portion of the fiscal year, all certified by one of its Financial Officers as fairly presenting the financial condition and results of operations of the Borrower and its consolidated Subsidiaries on a consolidated basis in accordance with GAAP consistently applied, subject to normal year-end audit adjustments; (d) concurrently with any delivery of financial statements under clause (a) or (b) above, a certificate of a Financial Officer in the form of Exhibit E (i) certifying that no Event of Default or Default has occurred or, if such an Event of Default or Default has occurred, specifying the nature and extent thereof and any corrective action taken or proposed to be taken with respect thereto and (ii) setting forth computations in reasonable detail satisfactory to the Administrative Agent demonstrating compliance with the covenants contained in Section 6.10; (e) within the time periods required by the Applicable Insurance Regulatory Authority, the Statutory Financial Statement of such Regulated Insurance Company for such fiscal year as filed with the Applicable Insurance Regulatory Authority in such Regulated Insurance Company’s state of domicile, as certified by one of its Financial Officers as fairly presenting the financial condition and results of operations of such Regulated Insurance Company in accordance with SAP, all audited by Deloitte & Touche LLP or other independent public accountants of recognized national standing and accompanied by an opinion of such accountants (which opinion shall not include (i) an explanatory paragraph expressing substantial doubt about the ability of such Regulated Insurance Company to continue as a going concern or (ii) any qualification or exception as to the scope of such audit, other than solely as a result of the upcoming maturity of any Obligations or the prospective inability to satisfy the ~~requirements~~ covenants set forth in Section 6.10 on a future date or for a future period) to the effect that such financial statements fairly present the financial condition and results of ~~this Section 5.04(b)~~ operations of such Regulated Insurance Company, but only to the extent such ~~quarterly reports include~~ Regulated Insurance Company is required by applicable law to obtain, or otherwise elects to obtain, such an audit and opinion; (f) within the time periods required by the Applicable Regulatory Authority, the Statutory Financial Statement of such Regulated Insurance Company for such fiscal quarter as filed with the Applicable Insurance Regulatory Authority in such Regulated Insurance Company’s state of domicile, as certified by one of its Financial Officers as fairly presenting the financial condition and results of operations of such Regulated Insurance Company in accordance with SAP; (g) within 60 days after the beginning of each fiscal year of the Borrower, a detailed consolidated budget for such fiscal year (including a projected consolidated balance sheet and related statements of projected operations and cash flows as of the end of and for such fiscal year and setting forth the assumptions used for purposes of preparing such budget) and, promptly when available and to the extent prepared by the Borrower, any significant revisions of such budget; (h) promptly after the same become publicly available, copies of all periodic and other reports, proxy statements and other materials filed by the Borrower or any Subsidiary with the Securities and Exchange Commission, or any Governmental Authority succeeding to any or all of the functions of said Commission, or with any national securities exchange, or distributed to its shareholders, as the case may be; (i) promptly after the receipt thereof by the Borrower or any of its Subsidiaries, a copy of any “management letter” received by any such Person from its certified public accountants and the management’s response thereto; (j) promptly after the request by any Lender, all documentation and other information ~~specified~~ that such Lender reasonably requests in order to comply with its ongoing obligations under applicable “know your customer” and anti-money laundering rules and regulations, including the USA PATRIOT Act; and (k) promptly, from time to time, such other information regarding the operations, business affairs and financial condition of the Borrower or any Subsidiary, or compliance with the terms of any Loan Document, as the Administrative Agent or any Lender may reasonably request. Notwithstanding anything to the contrary herein);, nothing in this Article V shall require the Borrower to provide such information (x) in respect of which disclosure is prohibited by applicable law or (y) which is subject to attorney-client or similar privilege or constitutes attorney work product.

Appears in 2 contracts

Sources: Credit Agreement (Oscar Health, Inc.), Credit Agreement (Oscar Health, Inc.)

Financial Statements, Reports, etc. Furnish to the Administrative Agent (which will promptly furnish such information to the Lenders): (a) within 120 days after the end of the fiscal year ending December 31, 2016 and within 90 days after the end of each fiscal year ~~(commencing with the fiscal year ending December 31, 2016)~~thereafter, a consolidated balance sheet and related statements of operations, cash flows and owners’ equity showing the financial position of the Borrower and its Subsidiaries as of the close of such fiscal year and the consolidated results of their operations during such year ~~and~~ and, starting with the fiscal year ending December 31, 2016, setting forth in comparative form the corresponding figures for the prior fiscal year, which consolidated balance sheet and related statements of operations, cash flows and owners’ equity shall be accompanied by customary management’s discussion and analysis and audited by independent public accountants of recognized national standing and accompanied by an opinion of such accountants (which opinion shall not be qualified as to scope of audit or as to the status of the Borrower or any Material Subsidiary as a going concern, other than solely with respect to, or resulting solely from, an upcoming maturity date under any series of Indebtedness occurring within one year from the time such opinion is delivered or any potential inability to satisfy a financial maintenance covenant on a future date or in a future period) to the effect that such consolidated financial statements fairly present, in all material respects, the financial position and results of operations of the Borrower and its Subsidiaries on a consolidated basis in accordance with GAAP (it being understood that the delivery by the Borrower of annual reports on Form 10-K (or any successor or comparable form) of the Borrower and its consolidated Subsidiaries shall satisfy the requirements of this Section 5.04(a) to the extent such annual reports include the information specified herein); (b) within 45 60 days after the end of each of the first three fiscal quarters of each fiscal year (commencing with the fiscal quarter ending ~~June~~ September 30, 2016), a consolidated balance sheet and related statements of operations and cash flows showing the financial position of the Borrower and its Subsidiaries as of the close of such fiscal quarter and the consolidated results of their operations during such fiscal quarter and the then-elapsed portion of the fiscal year and, starting with the fiscal quarter ending September 30, ~~2016~~2017, setting forth in comparative form the corresponding figures for the corresponding periods of the prior fiscal year, all of which shall be in reasonable detail, which consolidated balance sheet and related statements of operations and cash flows shall be accompanied by customary management’s discussion and analysis and which consolidated balance sheet and related statements of operations and cash flows shall be certified by a Financial Officer of the Borrower on behalf of the Borrower as fairly presenting, in all material respects, the financial position and results of operations of the Borrower and its Subsidiaries on a consolidated basis in accordance with GAAP (subject to normal year-end audit adjustments and the absence of footnotes) (it being understood that the delivery by the Borrower of quarterly reports on Form 10-Q (or any successor or comparable form) of the Borrower and its consolidated Subsidiaries shall satisfy the requirements of this Section 5.04(b) to the extent such quarterly reports include the information specified herein); provided, that with respect to the fiscal quarter ending September 30, 2016, the requirements under this clause (b) shall be satisfied if the Borrower, at its option, delivers the unaudited consolidated financial statements of the Company for the fiscal quarter ended September 30, 2016 substantially in the form of the unaudited consolidated financial statements of the Company delivered pursuant to Section 4.02(g) of the Original Credit Agreement; (c) (x) concurrently with any delivery of financial statements under clause (a) or (b) above, a certificate of a Financial Officer of the Borrower (i) certifying that no Event of Default or Default has occurred since the date of the last certificate delivered pursuant to this Section 5.04(c) or, if such an Event of Default or Default has occurred, specifying the nature and extent thereof and any corrective action taken or proposed to be taken with respect thereto, (ii) commencing with the end of the first full fiscal quarter ending after the Closing Date, setting forth computations in reasonable detail demonstrating compliance with the Financial Covenant and (iii) setting forth the calculation and uses of the Cumulative Credit for the fiscal period then ended if the Borrower shall have used the Cumulative Credit for any purpose during such fiscal period and (y) concurrently with any delivery of financial statements under clause (a) above, if the accounting firm is not restricted from providing such a certificate by its policies office, a certificate of the accounting firm opining on or certifying such statements stating whether they obtained knowledge during the course of their examination of such statements of any Default or Event of Default (which certificate may be limited to accounting matters and disclaim responsibility for legal interpretations); (d) promptly after the same become publicly available, copies of all periodic and other publicly available reports, proxy statements and, to the extent requested by the Administrative Agent, other materials filed by Holdings (prior to a Qualified IPO), the Borrower or any of the Subsidiaries with the SEC, or after an initial public offering, distributed to its stockholders generally, as applicable; provided, however, that such reports, proxy statements, filings and other materials required to be delivered pursuant to this clause (d) shall be deemed delivered for purposes of this Agreement when posted to the website of the Borrower (or Holdings or any Parent Entity referred to in Section 5.04(i)) or the website of the SEC and written notice of such posting has been delivered to the Administrative Agent; (e) within 90 days (or such later date as the Administrative Agent may agree in its reasonable discretion) after the beginning of each fiscal year (commencing with the fiscal year ending December 31, 2017), a consolidated annual budget for such fiscal year consisting of a projected consolidated balance sheet of the Borrower and its Subsidiaries as of the end of the following fiscal year and the related consolidated statements of projected cash flow and projected income (collectively, the “Budget”), which Budget shall in each case be accompanied by the statement of a Financial Officer of the Borrower to the effect that the Budget is based on assumptions believed by the Borrower to be reasonable as of the date of delivery thereof; (f) upon the reasonable request of the Administrative Agent not more frequently than once a year, an updated Perfection Certificate (or, to the extent such request relates to specified information contained in the Perfection Certificate, such information) reflecting all changes since the date of the information most recently received pursuant to this clause (f) or Section 5.10(f); (g) promptly, from time to time, such other customary information regarding the operations, business affairs and financial condition of Holdings, the Borrower or any of the Subsidiaries, or compliance with the terms of any Loan Document as in each case the Administrative Agent may reasonably request (for itself or on behalf of any Lender); (h) no later than 10 Business Days after the delivery of the financial statements required pursuant to clauses (a) and (b) of this Section 5.04, commencing with the financial statements for the first full fiscal period ending after the Closing Date, upon request of the Administrative Agent, the Borrower shall hold a customary conference call for Lenders; and (i) in the event that Holdings or any Parent Entity reports on a consolidated basis, such consolidated reporting at Holdings or such Parent Entity’s level in a manner consistent with that described in clauses (a) and (b) of this Section 5.04 for the Borrower (together with a reconciliation showing the adjustments necessary to determine compliance by the Borrower and its Subsidiaries with the Financial Covenant) will satisfy the requirements of such paragraphs. The Borrower hereby acknowledges and agrees that all financial statements furnished pursuant to clauses (a), (b) and (d) above are hereby deemed to be Borrower Materials suitable for distribution, and to be made available, to Public Lenders as contemplated by Section 9.17 and may be treated by the Administrative Agent and the Lenders as if the same had been marked “PUBLIC” in accordance with such paragraph (unless the Borrower otherwise notifies the Administrative Agent in writing on or prior to delivery thereof).

Appears in 2 contracts

Sources: Incremental Assumption and Amendment Agreement (Rackspace Technology, Inc.), Incremental Assumption Agreement (Rackspace Technology, Inc.)

Financial Statements, Reports, etc. ~~Furnish~~ The Borrower shall furnish to the Administrative Agent ~~(which will promptly furnish~~ and each Lender the following, each in such ~~information to~~ form and such detail as the ~~Lenders):~~Administrative Agent or the Required Lenders shall reasonably request: (ai) ~~within 90~~ As soon as available and in no event later than forty-five (45) days after the ~~end~~ last day of each ~~fiscal year (commencing with~~ of the ~~fiscal year ending December 31, 2016)~~first three Fiscal Quarters of each Fiscal Year of the Borrower, a ~~consolidated balance sheet and related statements~~ copy of ~~operations, cash flows and owners’ equity showing~~ the ~~financial position~~ Financial Statements of the Borrower and its Subsidiaries as of the close of such fiscal year and the consolidated results of their operations during such year and setting forth in comparative form the corresponding figures for the prior fiscal year, which consolidated balance sheet and related statements of operations, cash flows and owners’ equity shall be accompanied by customary management’s discussion and analysis and audited by independent public accountants of recognized national standing and accompanied by an opinion of such accountants (which opinion shall not be qualified as to scope of audit or as to the status of the Borrower or any Material Subsidiary as a going concern, other than solely with respect to, or resulting solely from, an upcoming maturity date under any series of Indebtedness occurring within one year from the time such opinion is delivered or any potential inability to satisfy a financial maintenance covenant on a future date or in a future period) to the effect that such consolidated financial statements fairly present, in all material respects, the financial position and results of operations of the Borrower and its Subsidiaries prepared on a consolidated ~~basis in accordance with GAAP (it being understood that the delivery by~~ and, at any time during which the Borrower ~~of annual reports on Form 10-K of the Borrower~~ has any Material Subsidiaries, consolidating, basis) for such Fiscal Quarter and its consolidated Subsidiaries shall satisfy the requirements of this Section 5.04(a) to the extent such annual reports include the information specified herein); (b) within 45 days after the end of each of the first three fiscal quarters of each fiscal year (commencing with the fiscal quarter ending June 30, 2016), a consolidated balance sheet and related statements of operations and cash flows showing the financial position of the Borrower and its Subsidiaries as of the close of such fiscal quarter and the consolidated results of their operations during such fiscal quarter and the then-elapsed portion of the fiscal year and, starting with the fiscal quarter ending September 30, 2016, setting forth in comparative form the corresponding figures for the ~~corresponding periods of the prior fiscal year~~Fiscal Year to date, all of which shall be in reasonable detail, which consolidated balance sheet and related statements of operations and cash flows shall be accompanied by customary management’s discussion and analysis and which consolidated balance sheet and related statements of operations and cash flows shall be certified by a ~~Financial~~ Responsible Officer of the Borrower ~~on behalf of the Borrower as~~ to present fairly ~~presenting,~~ in all material ~~respects,~~ respects the financial ~~position and~~ condition, results of operations ~~of the Borrower~~ and ~~its Subsidiaries on a consolidated basis~~ other information reflected therein and to have been prepared in accordance with GAAP (subject to normal year-end audit adjustments and the absence of footnotes); (ii) As soon as available and in no event later than one hundred twenty (~~it being understood that~~ 120) days after the ~~delivery by~~ close of each Fiscal Year of the ~~Borrower~~ Borrower, (A) copies of ~~quarterly reports on Form 10-Q~~ the audited Financial Statements of the Borrower and its Subsidiaries (prepared on a consolidated and, at any time during which the Borrower has any Material Subsidiaries, consolidating, basis) for such Fiscal Year, audited by PricewaterhouseCoopers or any other firm of independent certified public accountants reasonably acceptable to the Administrative Agent, and (B) copies of the unqualified opinions (or opinions containing such qualifications as to events or conditions that the Administrative Agent and the Required Lenders have agreed in writing could not reasonably be expected to result in a Material Adverse Effect) and, to the extent delivered, management letters delivered by such accountants in connection with all such Financial Statements; (iii) As soon as available and in any event within 45 days after the end of each Fiscal Quarter (including the end of each Fiscal Year), a compliance certificate of executed by a Responsible Officer of the Borrower in substantially the form of Exhibit N (a "Compliance Certificate") which (A) states that no Default has occurred and is continuing, or, if any such Default has occurred and is continuing, a statement as to the nature thereof and what action Borrower proposes to take with respect thereto and (B) sets forth in reasonable detail, as of the last day of the most recently ended Fiscal Quarter or Fiscal Year (as the case may be), the calculation of the financial ratios and tests provided in Section 5.03 to the extent compliance with such financial ratios and tests is required to be tested as of the end of the applicable accounting period; (iv) As soon as available, and in any event not later than forty-five (45) days following the end of each Fiscal Year of the Borrower, the Projections of the Loan Parties for the next Fiscal Year (prepared on a consolidated and, at any time during which the Borrower has any Material Subsidiaries, consolidating, basis), including, in each case, projected balance sheets, statements of income and retained earnings and statements of cash flow of the Loan Parties, all in reasonable detail, in form reasonably satisfactory to the Administrative Agent and in any event to include projected Capital Expenditures and quarterly projections of the Borrower’s compliance with each of the covenants set forth in Section 5.03 of this Agreement; (v) The following information with respect to the Borrower and its Subsidiaries: (A) As soon as practicable after the end of each Fiscal Quarter, and in any event no later than the last day of the immediately succeeding calendar month, a quarterly comparable store sales report prepared with respect to the portion of the Fiscal Year ended with such Fiscal Quarter, which report shall contain a listing of Stores owned and/or operated by the Borrower and its Subsidiaries during such period (including currently existing Stores, Store relocations and acquired Stores) opened and operating for 13 months or longer; and (B) To the Administrative Agent only, promptly after the Administrative Agent’s reasonable request therefor, copies of each monthly account statement (showing account balance and monthly account activity) for all deposit and investment accounts of the Borrower and its Subsidiaries that are included as part of the Collateral; provided, however, that the Lenders agree that the financial statements/reports provided pursuant to Sections 5.01(a)(iv) and 5.01(a)(v)(A) and (B) above shall ~~satisfy~~ not be used by the ~~requirements~~ Lenders to declare an Event of Default as to the financial covenants set forth in Section 5.03. (vi) On or before the date the next Compliance Certificate is required to be delivered by the Borrower, copies of each annual report, proxy or financial statement or other report or communication sent to the stockholders of the Borrower, and copies of all annual, regular, periodic and special reports (including without limitation reports submitted in connection with the filing of any Form 10-K or 10-Q by the Borrower) and registration statements which the Borrower may file or be required to file with the Securities and Exchange Commission under Section 13 or 15(d) of the Securities Exchange Act of 1934, as amended, and not otherwise required to be delivered to the Lenders pursuant to other provisions of this Section ~~5.04(b~~5.01(a); (vii) As soon as possible and in no event later than five (5) Business Days after any Responsible Officer of any Loan Party knows of the occurrence or existence of (A) any Reportable Event under any Employee Benefit Plan or Multiemployer Plan, (B) any actual litigation, suits, claims or disputes against the Borrower or any of its Subsidiaries involving potential monetary damages payable by any Loan Party of $5,000,000 or more (alone or in the aggregate), or (C) any other event or condition which is reasonably likely to have a Material Adverse Effect, the statement of a Responsible Officer of the Borrower setting forth details of such event or condition and the action which the Borrower proposes to take with respect thereto; (viii) As soon as available and in no event later than five (5) Business Days after they are filed, copies of all IRS Form 5500 reports for all Employee Benefit Plans required to file such form; (ix) Promptly after request by the Administrative Agent, copies of any other material report or other material document not otherwise described in this Section 5.01(a) that was filed by the Borrower with any Governmental Authority; (x) As soon as possible and in no event later than five (5) Business Days after the occurrence of any event or circumstance that would require a prepayment pursuant to Section 2.06(c)(iii), the statement of a Responsible Officer of the Borrower setting forth the details thereof; (xi) As soon as possible and in no event later than ten (10) Business Days after the establishment or acquisition by the Borrower or any of its Subsidiaries of any new Subsidiary or any new Equity Securities of any existing Subsidiary, written notice thereof; (xii) As soon as possible and in no event later than thirty (30) days after the receipt thereof by the Borrower or any of its Subsidiaries, a copy of any notice, summons, citations or other written communications concerning any actual, alleged, suspected or threatened material violation of any Environmental Law, or any material liability of the Borrower or any of its Subsidiaries for Environmental Damages; (xiii) To the Administrative Agent only, as soon as practicable, and in any event within five (5) Business Days after a Responsible Officer of the Borrower becomes aware of the existence of any condition or event which constitutes a Default or Event of Default, telephonic notice specifying the nature and period of existence thereof, and, to the ~~extent~~ Administrative Agent and each of the Lenders, no more than two (2) Business Days after such ~~quarterly~~ telephonic notice, written notice again specifying the nature and period of existence thereof and specifying what action the Borrower is taking or proposes to take with respect thereto; and (xiv) Such other instruments, agreements, certificates, statements, documents and information relating to any material adverse change in the operations or condition (financial or otherwise) of the Borrower or its Subsidiaries, and compliance by the Borrower with the terms of this Agreement and the other Credit Documents as the Administrative Agent may from time to time reasonably request. Reports required to be delivered pursuant to Sections 5.01(a)(i), (ii) and (iv) may be delivered electronically and if so, shall be deemed to have been delivered on the date on which the Borrower posts such reports ~~include~~ prior to 5:00 p.m., electronically on IntraLinks/IntraAgency or other relevant website to which the ~~information specified herein~~Administrative Agent and the Lenders have access (whether a commercial, third-party website or whether sponsored by the Administrative Agent) or by electronic mail to the Administrative Agent; provided, however, that: (1) the Borrower shall deliver paper copies of such reports to the Administrative Agent and the Lenders upon written request therefor; (2) the Borrower shall notify (which may be by facsimile or electronic mail) the Administrative Agent of the posting of any such reports and provide to the Administrative Agent by electronic mail versions (i.e. soft copies) of such reports upon written request therefor; (3) the Borrower shall reimburse the Administrative Agent for all costs and expenses incurred by the Administrative Agent in creating and maintaining such IntraLinks/IntraAgency or other relevant website in accordance with Section 8.02; and (4) in every instance the Borrower shall provide to the Administrative Agent paper copies of the Compliance Certificates required pursuant to Section 5.01(a)(iii);.

Appears in 2 contracts

Sources: Credit Agreement, Credit Agreement (Wild Oats Markets Inc)

Appears in 2 contracts

Sources: Credit Agreement (Calpine Corp), Credit Agreement (Calpine Corp)

Financial Statements, Reports, etc. ~~Furnish~~ In the case of the Borrower, furnish to the Administrative Agent (which ~~will promptly~~ shall furnish such ~~information~~ statements, certificates or other documents received pursuant to ~~the Lenders~~this Section 5.04 to each Lender and Issuing Bank): (a) within 90 days after the end of each fiscal ~~year (commencing with the fiscal year ending December 31~~year, ~~2016), a~~ its consolidated balance sheet and related statements of ~~operations~~income, stockholders' equity and cash flows ~~and owners’ equity~~ showing the financial ~~position~~ condition of the Borrower and its consolidated Subsidiaries as of the close of such fiscal year and the ~~consolidated~~ results of ~~their~~ its operations and the operations of such Subsidiaries during such ~~year and setting forth in~~ year, together with comparative ~~form the corresponding~~ figures for the ~~prior~~ immediately preceding fiscal year, ~~which consolidated balance sheet and related statements of operations, cash flows and owners’ equity shall be accompanied by customary management’s discussion and analysis and~~ all audited by Arthur Andersen LLP or other independent public accountants of ~~recognized national~~ ▇▇▇▇▇n▇▇▇▇ ▇▇▇ional standing and accompanied by an opinion of such accountants (which ~~opinion~~ shall not be qualified ~~as to scope of audit or as to the status of the Borrower or~~ in any Material Subsidiary as a going concern, other than solely with respect to, or resulting solely from, an upcoming maturity date under any series of Indebtedness occurring within one year from the time such opinion is delivered or any potential inability to satisfy a financial maintenance covenant on a future date or in a future periodmaterial respect) to the effect that such consolidated financial statements fairly ~~present, in all material respects,~~ present the financial ~~position~~ condition and results of operations of the Borrower and its consolidated Subsidiaries on a consolidated basis in accordance with GAAP (it being understood that the delivery by the Borrower of annual reports on Form 10-K of the Borrower and its consolidated Subsidiaries shall satisfy the requirements of this Section 5.04(a) to the extent such annual reports include the information specified herein)consistently applied; (b) within 45 days after the end of each of the first three fiscal quarters of each fiscal ~~year (commencing with the fiscal quarter ending June 30~~year, ~~2016), a~~ its consolidated balance sheet and related statements of ~~operations~~ income, stockholders' equity and cash flows showing the financial ~~position~~ condition of the Borrower and its consolidated Subsidiaries as of the close of such fiscal quarter and the ~~consolidated~~ results of ~~their~~ its operations and the operations of such Subsidiaries during such fiscal quarter and the ~~then-~~then elapsed portion of the fiscal ~~year and~~year, ~~starting with the fiscal quarter ending September 30, 2016, setting forth in~~ and comparative ~~form the corresponding~~ figures for the ~~corresponding~~ same periods of in the ~~prior~~ immediately preceding fiscal year, all of which shall be in reasonable detail, which consolidated balance sheet and related statements of operations and cash flows shall be accompanied by customary management’s discussion and analysis and which consolidated balance sheet and related statements of operations and cash flows shall be certified by a one of its Financial ~~Officer of the Borrower on behalf of the Borrower~~ Officers as fairly ~~presenting, in all material respects,~~ presenting the financial ~~position~~ condition and results of operations of the Borrower and its consolidated Subsidiaries on a consolidated basis in accordance with GAAP (consistently applied, subject to normal year-end audit adjustments; (c) concurrently with any delivery of financial statements under paragraph (a) or (b) above, a certificate of a Financial Officer opining on or certifying such statements (i) certifying that no Event of Default or Default has occurred or, if such an Event of Default or Default has occurred, specifying the nature and extent thereof and any corrective action taken or proposed to be taken with respect thereto and (ii) setting forth computations in reasonable detail satisfactory to the Administrative Agent demonstrating compliance with the covenants contained in Sections 6.11, 6.12, 6.13 and 6.14 and (x) in the case of a certificate delivered with the financial statements required by paragraph (b) above for the second fiscal quarter of each year, setting forth the Borrower's calculation of Excess Cash Flow, and (y) in the case of the certificate delivered pursuant to this paragraph (c) with the financial statements under paragraph (a) above for the fiscal year ended December 31, 2001, a reasonably detailed schedule showing the pro forma adjustments made to calculate Consolidated EBITDA for the fiscal quarters ended March 31, 2001 and ~~the absence of footnotes) (it being understood that the delivery~~ June 30, 2001, as contemplated by the ~~Borrower of quarterly reports on Form 10-Q~~ last sentence of the ~~Borrower and its consolidated Subsidiaries~~ definition of Consolidated EBITDA (which shall ~~satisfy~~ include all pro forma adjustments resulting from the ~~requirements~~ 2001 Cost Reduction Plan calculated as contemplated pursuant to Schedule 5.04(d)(1)), (d) concurrently with any delivery of ~~this Section 5.04(b~~financial statements under clause (a) above, a certificate of the accounting firm that reported on such financial statements stating whether they obtained knowledge during the course of their examination of such financial statements of any Default or Event of Default (which certificate may be limited to the extent required by accounting rules or guidelines); and in the case of the certificate delivered pursuant to this paragraph (d) with the financial statements under paragraph (a) above for the fiscal year ended December 31, 2001, such ~~quarterly reports include~~ report of such accounting firm shall be substantially in the form of Schedule 5.04(d)(2) and shall be accompanied by the additional report of such accounting firm in the form of 5.04(d)(3). (e) no later than 45 days after the end of each fiscal year of the Borrower, a detailed consolidated budget for the then current fiscal year (including a projected consolidated balance sheet and related statements of projected operations and cash flows as of the end of and for such fiscal year and setting forth the assumptions used for purposes of preparing such budget) and, promptly when available, any significant revisions of such budget; (f) promptly after the same become publicly available, copies of all periodic and other reports, proxy statements and other materials filed by Holdings, the Borrower or any Subsidiary with the Securities and Exchange Commission, or any Governmental Authority succeeding to any or all of the functions of said Commission, or with any national securities exchange, or distributed to its shareholders, as the case may be; (g) promptly after the receipt thereof by Holdings or the Borrower or any of their respective subsidiaries, a copy of any "management letter" received by any such person from its certified public accountants and the management's response thereto; and (h) promptly, from time to time, such other information ~~specified herein);~~regarding the operations, business affairs and financial condition of Holdings, the Borrower or any Subsidiary, or compliance with the terms of any Loan Document, as the Administrative Agent or any Lender may reasonably request.

Appears in 2 contracts

Sources: Credit Agreement (Cb Richard Ellis Services Inc), Credit Agreement (Cb Richard Ellis Services Inc)

Financial Statements, Reports, etc. Furnish to the Administrative Agent (which will promptly furnish such information to the ~~Lenders~~Lenders and L/C Issuers): (a) ~~within~~ Within 90 days (or such later day that Parent is permitted to file a Form 10-K pursuant to the Exchange Act after giving effect to Rule 12b-25 thereunder, but in any event within 105 days) following the end of each fiscal year (commencing with the fiscal year ending December 31, ~~2016~~2022), a consolidated balance sheet and related statements of operations, cash flows and ~~owners~~stockholders’ equity showing the financial position of ~~the Borrower~~ Parent and its ~~Subsidiaries~~ subsidiaries as of the close of such fiscal year and the consolidated results of ~~their~~ its operations during such year and setting forth in comparative form the corresponding figures for the prior fiscal year, which consolidated balance sheet and related statements of operations, cash flows and ~~owners~~stockholders’ equity shall be ~~accompanied by customary management’s discussion and analysis and~~ audited by independent public accountants of recognized national standing and accompanied by an opinion of such accountants (which ~~opinion~~ shall not be qualified as to scope of audit or as to the status of Parent, the Borrower or any Material Subsidiary as a going concern, ~~other than~~ but may contain a going concern or like qualification that is solely ~~with respect to, or resulting solely from,~~ due to (i) an upcoming maturity date ~~under~~ of any ~~series of Indebtedness occurring within one year from the time such opinion is delivered or any~~ Facility and/or (ii) a potential inability to satisfy a financial maintenance covenant ~~on a future date or in a future period~~under any series of Indebtedness) to the effect that such consolidated financial statements fairly present, in all material respects, the financial position and results of operations of ~~the Borrower~~ Parent and its ~~Subsidiaries~~ subsidiaries on a consolidated basis in accordance with GAAP (it being understood that the delivery by ~~the Borrower~~ Parent of annual reports on Form 10-K of ~~the Borrower~~ Parent and its consolidated ~~Subsidiaries~~ subsidiaries shall satisfy the requirements of this Section 5.04(a) to the extent such annual reports include the information specified herein); (b) ~~within~~ Within 45 days ~~after~~ following the end of each of the first three fiscal quarters of each fiscal year (commencing with the fiscal quarter ending ~~June 30~~March 31, ~~2016~~2023), a consolidated balance sheet and related statements of operations and cash flows showing the financial position of ~~the Borrower~~ Parent and its ~~Subsidiaries~~ subsidiaries as of the close of such fiscal quarter and the consolidated results of ~~their~~ its operations during such fiscal quarter and the then-elapsed portion of the fiscal year ~~and, starting with the fiscal quarter ending September 30, 2016,~~ and setting forth in comparative form the corresponding figures for the corresponding periods of the prior fiscal year, all of which shall be in reasonable ~~detail, which consolidated balance sheet and related statements of operations and cash flows shall be accompanied by customary management’s discussion and analysis~~ detail and which consolidated balance sheet and related statements of operations and cash flows shall be certified by a Financial Officer of ~~the Borrower on behalf of the Borrower~~ Parent as fairly presenting, in all material respects, the financial position and results of operations of ~~the Borrower~~ Parent and its ~~Subsidiaries~~ subsidiaries on a consolidated basis in accordance with GAAP (subject to normal year-end audit adjustments and the absence of footnotes) (it being understood that the delivery by ~~the Borrower~~ Parent of quarterly reports on Form 10-Q of ~~the Borrower~~ Parent and its consolidated ~~Subsidiaries~~ subsidiaries shall satisfy the requirements of this Section 5.04(b) to the extent such quarterly reports include the information specified herein);

Appears in 2 contracts

Sources: Credit Agreement (EVERTEC, Inc.), Credit Agreement (EVERTEC, Inc.)

Financial Statements, Reports, etc. Furnish to the Administrative Agent (~~which will promptly furnish such information to the Lenders~~with sufficient copies for each Lender): (a) ~~within~~ as soon as available and in any event before the earlier to occur of 90 days ~~after~~ following the end of ~~each~~ a fiscal year ~~(commencing~~ of the Company and the date such statements are required to be filed with the ~~fiscal year ending December 31~~Securities and Exchange Commission after giving effect to any permitted extension pursuant to Rule 12b-25 of the Securities and Exchange Commission as it may be amended or replaced and which is applied for by the Company, ~~2016), a consolidated balance sheet and related~~ audited Consolidated financial statements of ~~operations, cash flows and owners’ equity showing~~ the ~~financial position of the Borrower~~ Company and its Subsidiaries as which shall include consolidated and consolidating balance sheets, income statements and statements of cash flow for the ~~close of~~ Company and its Subsidiaries for such fiscal year and ~~the consolidated results~~ as of ~~their operations during such year~~ and ~~setting forth in comparative form the corresponding figures~~ for the prior fiscal ~~year, which consolidated balance sheet and related~~ year (provided that in the case of consolidating statements of ~~operations,~~ cash flows ~~and owners’ equity~~ only, such consolidating statements shall be ~~accompanied by customary management’s discussion and analysis and audited by independent public accountants of recognized national standing and~~ prepared on a Segment Level Basis), accompanied by an unqualified opinion thereon of ~~such accountants (which opinion shall not be qualified as to scope of audit~~ KPMG, LLP or as another nationally recognized independent registered public accounting firm reasonably acceptable to the ~~status of~~ Lenders (the Borrower or any Material Subsidiary as a going concern, other than solely with respect to, or resulting solely from, an upcoming maturity date under any series of Indebtedness occurring within one year from the time such opinion is delivered or any potential inability to satisfy a financial maintenance covenant on a future date or in a future period) to the effect that such consolidated financial statements fairly present, in all material respects, the financial position and results of operations of the Borrower and its Subsidiaries on a consolidated basis in accordance with GAAP (it being understood that the delivery by the Borrower of annual reports on Form 10-K of the Borrower and its consolidated Subsidiaries shall satisfy the requirements of this Section 5.04(a) to the extent such annual reports include the information specified herein“Auditor”); (b) ~~within 45~~ as soon as available and in any event before the earlier to occur of 50 days ~~after~~ following the end of each of the first three fiscal quarters of ~~each fiscal year (commencing~~ the Company and the date such statements are required to be filed with the ~~fiscal quarter ending June 30~~Securities and Exchange Commission after giving effect to any permitted extension pursuant to Rule 12b-25 as it may be amended or replaced and which is applied for by the Company, ~~2016), a~~ interim management-prepared consolidated ~~balance sheet~~ and ~~related~~ consolidating financial statements of ~~operations and cash flows showing~~ the ~~financial position of the Borrower~~ Company and its Subsidiaries which shall include consolidated balance sheets, income statements and statements of cash flow for the Company and its Subsidiaries (provided that in the case of consolidating statements of cash flows only, such consolidating statements shall be prepared on a Segment Level Basis) (and, in each instance, such financial information shall be in substantially the same format and presentation as reflected in the financial statements publicly filed by the Company with the Securities and Exchange Commission as of the ~~close~~ Closing Date), with respect to each such 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 consolidated results of their operations during such fiscal quarter and the then-elapsed portion of the fiscal year and~~quarter, ~~starting with the fiscal quarter ending September 30, 2016, setting forth~~ all in reasonable detail stating in comparative form the ~~corresponding~~ respective figures for the corresponding ~~periods of~~ date and period in the ~~prior~~ previous fiscal year, all prepared by or under the supervision of which shall be in reasonable detail, which consolidated balance sheet and related statements of operations and cash flows shall be accompanied by customary management’s discussion and analysis and which consolidated balance sheet and related statements of operations and cash flows shall be certified by a the Chief Financial Officer of the ~~Borrower on behalf of the Borrower as fairly presenting, in all material respects, the financial position and results of operations of the Borrower and its Subsidiaries on a consolidated basis~~ Company in accordance with ~~GAAP~~ Generally Accepted Accounting Principles (subject to normal year-end audit adjustments and the absence of complete footnotes); (c) a certificate prepared and signed by the Chief Financial Officer with each delivery required by clauses (~~it being understood~~ a) and (b) stating whether the Chief Financial Officer shall have obtained actual knowledge of any Default or Event of Default hereunder and demonstrating that as of the last day of the relevant fiscal year or quarter, as applicable, the Company was in compliance with the financial condition covenants set forth in Section 7.12 hereof which certificate shall include detail reasonably acceptable to the Administrative Agent, including, if applicable, detail regarding the effect of any accounting rule changes applicable to the Company; (d) simultaneously with the delivery of the financial statements pursuant to clause (a) above, (i) a copy of the management letter, if any, prepared by the Auditor, (ii) annual financial projections (including a balance sheet, income statement and statement of cash flow) of the Company and its Subsidiaries, on a Consolidated basis, for the then current fiscal year, which projections shall be prepared in a manner consistent with the interim management-prepared Consolidated financial statements described in Section 6.03(b) above and (iii) a certificate or certificates of insurance from an independent insurance broker or brokers confirming that the ~~delivery~~ insurance required to be maintained by the ~~Borrower~~ Company and the Guarantors pursuant to Section 6.01 hereof is in full force and effect as of ~~quarterly~~ such date; and (e) if applicable, promptly and in any event, within five (5) days after filing thereof, copies of all regular and periodic financial information, proxy materials and other information and reports ~~on Form 10-Q~~ which the Company or any Guarantor shall file with the Securities and Exchange Commission; (f) promptly after submission to any government or regulatory agency, all documents and information furnished to such government or regulatory agency other than such documents and information prepared in the normal course of business and which could not reasonably be expected to result in a Material Adverse Effect; (g) simultaneously with the delivery thereof to the Trustee (under and as defined in the Indenture), copies of all notices delivered by the Company to the Trustee pursuant to the Indenture; and (h) promptly, from time to time, such other information regarding the operations, business affairs and condition (financial or otherwise) of the ~~Borrower~~ Company or any Subsidiary of the Company as any Lender may reasonably request, which information would include, without limitation, accounts receivable agings, accounts payable agings, analysts reports and projections. The Company may satisfy its ~~consolidated Subsidiaries shall satisfy the~~ requirements of under this Section ~~5.04(b)~~ 6.03 by making the applicable financial statement, other filing or notice, available by link or otherwise on its corporate website provided that such website continues to be maintained and that there then exist no circumstances which would prevent access to the ~~extent~~ website on more than a temporary basis not in excess of one Business Day. The Company shall notify the Administrative Agent and the Lenders of all such ~~quarterly reports include~~ postings and shall provide written copies, sufficient for delivery to the ~~information specified herein);~~Lenders, of any financial statement, filing or notice to the Administrative Agent upon request.

Appears in 2 contracts

Sources: Credit Agreement (Comtech Telecommunications Corp /De/), Credit Agreement (Comtech Telecommunications Corp /De/)

Financial Statements, Reports, etc. Furnish to the Administrative Agent (which will promptly furnish such information to the Lenders): (a) ~~within 90~~ Within 95 days after the end of each fiscal year (~~commencing with~~ or, in the case of the fiscal year ending December 31, ~~2016~~2012, within 120 days after the end of such fiscal year), a consolidated balance sheet and related statements of operations, cash flows and owners’ equity showing the financial position of the ~~Borrower~~ Ultimate Parent and its Subsidiaries as of the close of such fiscal year and the consolidated results of ~~their~~ its operations during such year and setting forth in comparative form the corresponding figures for the prior fiscal year, which consolidated balance sheet and related statements of operations, cash flows and owners’ equity shall be ~~accompanied by customary management’s discussion and analysis and~~ audited by independent public accountants of recognized national standing and accompanied by an opinion of such accountants (which opinion shall not be qualified as to scope of audit or as to the status of the Borrower or any Material Subsidiary as a going concern, other than solely with respect to, or resulting solely from, an upcoming maturity date under any series of Indebtedness occurring within one year from the time such opinion is delivered or any potential inability to satisfy a financial maintenance covenant on a future date or in a future period) to the effect that such consolidated financial statements fairly present, in all material respects, the financial position and results of operations of the Borrower and its Subsidiaries on a consolidated basis in accordance with ~~GAAP (it being understood that~~ the delivery by the Borrower of annual reports on Form 10-K of the Borrower and its consolidated Subsidiaries shall satisfy the requirements of this Section 5.04(a) to the extent such annual reports include the information specified herein)Applicable Accounting Rules; (b) within 45 50 days after the end of each of the first three fiscal quarters of each fiscal year ~~(commencing~~ beginning with the fiscal quarter ending June 30, ~~2016~~2012 (or, in the case of the fiscal quarters ending June 30, 2012, September 30, 2012 and March 31, 2013, within 60 days after the end of such fiscal quarter), (i) a consolidated balance sheet and related statements of operations and cash flows showing the financial position of the Borrower and its Subsidiaries as of the close of such fiscal quarter and the consolidated results of ~~their~~ its operations during such fiscal quarter and the ~~then-~~then elapsed portion of the fiscal year ~~and, starting with the fiscal quarter ending September 30, 2016,~~ and setting forth in comparative form the corresponding figures for the corresponding periods of the prior fiscal year, ~~all of which shall be in reasonable detail, which consolidated balance sheet~~ and ~~related statements of operations and cash flows shall be accompanied by customary~~ (ii) management’s discussion and analysis of significant operational and financial developments of the Borrower and its Subsidiaries during such quarterly period, and which consolidated balance sheet and related statements of operations and cash flows shall be certified by a Financial Officer of the Borrower on behalf of the Borrower as fairly presenting, in all material respects, the financial position and results of operations of the Borrower and its Subsidiaries on a consolidated basis in accordance with ~~GAAP~~ the Applicable Accounting Rules (subject to normal year-end audit adjustments and the absence of footnotes); (c) within 35 days after the end of each of the each fiscal month of each fiscal year (~~it being understood that~~ including the ~~delivery by~~ last fiscal month of each fiscal year) beginning with the ~~Borrower~~ fiscal month ending June 30, 2012, a consolidated balance sheet and related statements of ~~quarterly reports on Form 10-Q~~ operations and cash flows showing the financial position of the Borrower and its Subsidiaries as of the close of such fiscal month and the consolidated results of its operations during such fiscal month and the then elapsed portion of the fiscal year and setting forth in comparative form the corresponding figures for the corresponding periods of the prior fiscal year, and which consolidated balance sheet and related statements of operations and cash flows shall be certified by a Financial Officer of the Borrower on behalf of the Borrower as fairly presenting, in all material respects, the financial position and results of operations of the Borrower and its Subsidiaries on a consolidated basis in accordance with the Applicable Accounting Rules (subject to normal year-end audit adjustments and the absence of footnotes); (d) concurrently with any delivery of financial statements under paragraphs (a) or (b) above, a certificate of a Financial Officer of the Borrower (i) certifying that no Event of Default or Default has occurred or, if such an Event of Default or Default has occurred, specifying the nature and extent thereof and any corrective action taken or proposed to be taken with respect thereto, (ii) setting forth computations in reasonable detail satisfactory to the Administrative Agent of the Fixed Charge Coverage Ratio, (iii) setting forth computations in reasonable detail satisfactory to the Administrative Agent of the Average Quarterly Excess Availability, (iv) certifying a list of names of all Immaterial Subsidiaries, that each Subsidiary set forth on such list individually qualifies as an Immaterial Subsidiary and that all such Subsidiaries in the aggregate do not exceed the limitation set forth in clause (ii) of the definition of the term Immaterial Subsidiary, (v) certifying a list of names of all Unrestricted Subsidiaries, that each Subsidiary set forth on such list individually qualifies as an Unrestricted Subsidiary and (vi) setting forth a list and related amounts of all Availability Cure Contributions and repayments thereof during the relevant period; (e) within 90 days after the beginning of each fiscal year, a reasonably detailed consolidated annual budget for each fiscal quarter during such fiscal year (including a projected consolidated balance sheet of the Borrower and its Subsidiaries as of the end of the following fiscal year, and the related consolidated statements of projected cash flow and projected income), including a description of underlying assumptions with respect thereto (collectively, the “Budget”), which Budget shall ~~satisfy~~ in each case be accompanied by the ~~requirements~~ statement of ~~this Section 5.04(b~~a Financial Officer of the Borrower to the effect that the Budget is based on assumptions believed by such Financial Officer to be reasonable as of the date of delivery thereof; (f) upon the reasonable request of the Administrative Agent, an updated Perfection Certificate (or, to the extent such ~~quarterly reports include~~ request relates to specified information contained in the Perfection Certificate, such information) reflecting all changes since the date of the information ~~specified herein~~most recently received pursuant to this paragraph (f) or Section 6.10(f); (g) (i) promptly, from time to time, such other information regarding the operations, business affairs and financial condition of the Holdcos, the Borrower or any of its Subsidiaries, or compliance with the terms of any Loan Document, or such consolidating financial statements as in each case the Administrative Agent may reasonably request (for itself or on behalf of any Lender) and (ii) prior written notice in the event that the Borrower changes its fiscal year end; (h) [Reserved]; (i) promptly upon request by the Administrative Agent, copies of: (i) each Schedule B (Actuarial Information) to the most recent annual report (Form 5500 Series) filed with the Internal Revenue Service with respect to a Plan; (ii) the most recent actuarial valuation report for any Plan; (iii) all notices received from a Multiemployer Plan sponsor, a plan administrator or any governmental agency, or provided to any Multiemployer Plan by the Holdcos, the Borrower, a Subsidiary or any ERISA Affiliate, concerning an ERISA Event; and (iv) such other documents or governmental reports or filings relating to any Plan or Multiemployer Plan as the Administrative Agent shall reasonably request; and (j) Borrowing Base Certificates, at the times specified in Section 6.14.

Appears in 2 contracts

Sources: Abl Credit Agreement (Constellium Holdco B.V.), Abl Credit Agreement (Constellium Holdco B.V.)

Financial Statements, Reports, etc. Furnish to the Administrative Agent (which will promptly furnish such information to the Lenders): (a) within 90 days after the end of each fiscal ~~year (~~year, commencing ~~with the fiscal year ending December~~ January 31, ~~2016)~~2015, a consolidated balance sheet and related statements of operations, cash flows and owners’ equity showing the financial position of the Borrower and its Subsidiaries as of the close of such fiscal year and the consolidated results of their operations during such year and setting forth in comparative form the corresponding figures for the prior fiscal year, which consolidated balance sheet and related statements of operations, cash flows and owners’ equity shall be accompanied by customary management’s discussion and analysis and audited by independent public accountants of recognized national standing and accompanied by an opinion of such accountants (which opinion shall not be qualified as to scope of audit or as to the status of the Borrower or any Material Subsidiary as a going concern, other than solely with respect to, or resulting solely from, an upcoming maturity date under any series of Indebtedness incurred under this Agreement occurring within one year from the time such opinion is ~~delivered or any potential inability to satisfy a financial maintenance covenant on a future date or in a future period~~delivered) to the effect that such consolidated financial statements fairly present, in all material respects, the financial position and results of operations of the Borrower and its Subsidiaries on a consolidated basis in accordance with GAAP (it being understood that the delivery by the Borrower of annual reports on Form ~~10-K~~ 10‑K of the Borrower and its consolidated Subsidiaries shall satisfy the requirements of this Section 5.04(a) to the extent such annual reports include the information specified ~~herein~~herein and are delivered within the time period specified above); (b) within 45 days after the end of each of the first three fiscal quarters of each fiscal year (commencing with the first fiscal quarter ending ~~June 30, 2016~~after the Effective Date), a consolidated balance sheet and related statements of operations and cash flows showing the financial position of the Borrower and its Subsidiaries as of the close of such fiscal quarter and the consolidated results of their operations during such fiscal quarter and the then-elapsed portion of the fiscal year ~~and, starting with the fiscal quarter ending September 30, 2016,~~ and setting forth in comparative form the corresponding figures for the corresponding periods of the prior fiscal year, all of which shall be in reasonable detail, which consolidated balance sheet and related statements of operations and cash flows shall be accompanied by customary management’s discussion and analysis and which consolidated balance sheet and related statements of operations and cash flows shall be certified by a Financial Officer of the Borrower on behalf of the Borrower as fairly presenting, in all material respects, the financial position and results of operations of the Borrower and its Subsidiaries on a consolidated basis in accordance with GAAP (subject to normal year-end audit adjustments and the absence of footnotes) (it being understood that the delivery by the Borrower of quarterly reports on Form 10-Q of the Borrower and its consolidated Subsidiaries shall satisfy the requirements of this Section 5.04(b) to the extent such quarterly reports include the information specified ~~herein~~herein and are delivered within the time period specified above); (c) (x) concurrently with any delivery of financial statements under clause (a) or (b) above, a certificate of a Financial Officer of the Borrower (i) certifying that no Event of Default or Default has occurred since the date of the last certificate delivered pursuant to this Section 5.04(c) (or since the Closing Date in the case of the first such certificate) or, if such an Event of Default or Default has occurred, specifying the nature and extent thereof and any corrective action taken or proposed to be taken with respect thereto, (ii) commencing with the end of the first full fiscal quarter after the Closing Date, setting forth computations in reasonable detail satisfactory to the Administrative Agent demonstrating compliance with the Financial Covenant (if applicable) and (iii) setting forth the calculation and uses of the Available Amount for the fiscal period then ended if the Borrower shall have used the Available Amount for any purpose during such fiscal period and (y) concurrently with any delivery of financial statements under clause (a) above, if the accounting firm is not restricted from providing such a certificate by its policies office, a certificate of the accounting firm opining on or certifying such statements stating whether they obtained knowledge during the course of their examination of such statements of any Default or Event of Default (which certificate may be limited to accounting matters and disclaim responsibility for legal interpretations); (d) promptly after the same become publicly available, copies of all periodic and other publicly available reports, proxy statements and, to the extent requested by the Administrative Agent, other materials filed by the Borrower or any of the Subsidiaries with the SEC, or distributed to its stockholders generally, as applicable; provided, however, that such reports, proxy statements, filings and other materials required to be delivered pursuant to this clause (d) shall be deemed delivered for purposes of this Agreement when posted to the website of the Borrower or the website of the SEC and written notice of such posting has been delivered to the Administrative Agent; (e) within 90 days after the beginning of each fiscal year that commences after the Closing Date, a consolidated annual budget for such fiscal year consisting of a projected consolidated balance sheet of the Borrower and its Subsidiaries as of the end of such fiscal year and the related consolidated statements of projected cash flow and projected income (collectively, the “Budget”), which Budget shall in each case be accompanied by the statement of a Financial Officer of the Borrower to the effect that the Budget is based on assumptions believed by the Borrower to be reasonable as of the date of delivery thereof; provided, however, that the Budget relating to the fiscal year that ends January 31, 2016, shall be provided within 120 days of the Closing Date; (f) concurrently with the delivery of financial statements under clause (a) above, an updated Perfection Certificate reflecting all changes since the date of the information most recently received pursuant to this clause (f) or Section 5.10(c) (or a certificate of a Responsible Officer certifying as to the absence of any changes to the previously delivered update, if applicable); and (g) promptly, from time to time, such other information regarding the operations, business affairs and financial condition of the Borrower or any of the Subsidiaries, or compliance with the terms of any Loan Document as in each case the Administrative Agent may reasonably request (for itself or on behalf of any Lender). The Borrower acknowledges and agrees that all financial statements furnished pursuant to paragraphs (a), (b) and (d) above are hereby deemed to be Borrower Materials suitable for distribution, and to be made available, to Public Lenders as contemplated by Section 9.17 and may be treated by the Administrative Agent and the Lenders as if the same had been marked “PUBLIC” in accordance with such paragraph (unless the Borrower otherwise notifies the Administrative Agent in writing on or prior to delivery thereof).

Appears in 2 contracts

Sources: Credit Agreement (Dollar Tree Inc), Credit Agreement (Dollar Tree Inc)

Financial Statements, Reports, etc. Furnish to the Administrative Agent (which will promptly furnish such information to the Lenders): (a1) within 90 days ~~after~~ following the end of each fiscal ~~year (~~year, commencing with the fiscal year ~~ending~~ ended December 31, ~~2016)~~2018, a consolidated balance sheet and related statements of operations, cash flows and owners’ equity showing the financial position of the Borrower and ~~its~~ the Restricted Subsidiaries as of the close of such fiscal year and the consolidated results of ~~their~~ its operations during such fiscal year ~~and~~ and, in each case, commencing with the fiscal year ending December 31, 2019, setting forth in comparative form the corresponding figures for the prior fiscal year, which consolidated balance sheet and related statements of operations, cash flows and owners’ equity ~~shall~~ will be ~~accompanied by customary management’s discussion and analysis and~~ prepared in accordance with GAAP, audited by any independent public accountants of recognized national ~~standing~~ standing, or such other accountants as are reasonably acceptable to the Administrative Agent, and accompanied by an opinion of such accountants (which opinion shall not be ~~qualified as~~ subject to ~~scope of audit or as to the status of the Borrower or~~ any ~~Material Subsidiary as a~~ “going concern” statement, explanatory note or like qualification or exception (other than ~~solely with respect to~~a “going concern” statement, explanatory note or ~~resulting solely from~~like qualification or exception relating to an anticipated, but not actual, financial covenant default or an upcoming maturity ~~date under any series of Indebtedness occurring within one year from~~ date) (the ~~time such opinion is delivered or any potential inability to satisfy a financial maintenance covenant on a future date or in a future period) to the effect that such consolidated~~ applicable financial statements ~~fairly present, in all material respects,~~ delivered pursuant to this clause (1) being the financial position and results of operations of the Borrower and its Subsidiaries on a consolidated basis in accordance with GAAP (it being understood that the delivery by the Borrower of annual reports on Form 10-K of the Borrower and its consolidated Subsidiaries shall satisfy the requirements of this Section 5.04(a) to the extent such annual reports include the information specified herein“Annual Financial Statements”); (b2) ~~within 45 days after the end of each of~~ for the first three fiscal quarters of each fiscal ~~year (~~year, commencing with the fiscal quarter ended March 31, 2018, (a) within 71 days following the Closing Date, for the fiscal quarter ending March 31, 2018, (i) (A) a consolidated balance sheet for the Borrower and its Restricted Subsidiaries (excluding, for the avoidance of doubt, Impax and its subsidiaries) as of the close of such fiscal quarter and (B) the consolidated results of its operations and cash flows for the Borrower and its Restricted Subsidiaries (excluding, for the avoidance of doubt, Impax and its subsidiaries) during such fiscal quarter and the then-elapsed portion of the fiscal year and (ii) (A) a consolidated balance sheet for Impax and its Restricted Subsidiaries (excluding, for the avoidance of doubt, the Borrower and its subsidiaries), as of the close of such fiscal quarter and (B) the consolidated results of operations and cash flows for Impax and its Restricted Subsidiaries (excluding, for the avoidance of doubt, the Borrower and its subsidiaries) during such fiscal quarter and the then-elapsed portion of the fiscal year; (b) for the fiscal quarter ending June 30, ~~2016)~~2018, within 45 days of such fiscal quarter end, (A) a consolidated balance sheet ~~and related statements of operations and cash flows showing the financial position of~~ for the Borrower and its Restricted Subsidiaries as of the close of such fiscal quarter and (B) the consolidated statement of operations and cash flows for the Borrower and its Restricted Subsidiaries (which will include Impax and its Restricted Subsidiaries for the period from the Closing Date to such fiscal quarter end) during such fiscal quarter and the then-elapsed portion of the fiscal year; and (ii) an unaudited pro forma condensed combined statement of operations for the Borrower and its Restricted Subsidiaries (which will include Impax and its Restricted Subsidiaries) during such fiscal quarter (which pro forma financial statements will be certified by a Responsible Officer of the Borrower on behalf of the Borrower as having been prepared in good faith, based on assumptions believed by the Borrower to be reasonable as of the date of delivery thereof, and present fairly in all material respects on a pro forma basis the estimated results of operations of the Borrower and its Restricted Subsidiaries during such fiscal quarter end); and (c) for each such fiscal quarter thereafter, within 45 days of such fiscal quarter end, (A) a consolidated balance sheet for the Borrower and the Restricted Subsidiaries as of the close of such fiscal quarter and (B) the consolidated results of ~~their~~ operations and cash flows for the Borrower and the Restricted Subsidiaries during such fiscal quarter and the then-elapsed portion of the fiscal year and, ~~starting~~ commencing with the fiscal quarter ending September 30, ~~2016~~2019, setting forth in comparative form the corresponding figures for the corresponding periods of the prior fiscal year, ~~all of which shall be~~ in ~~reasonable detail~~each case (other than the preceding clause (ii)), which consolidated balance sheet and related statements of operations and cash flows shall be accompanied by customary management’s discussion and analysis and which consolidated balance sheet and related statements of operations and cash flows shall be certified by a ~~Financial~~ Responsible Officer of the Borrower on behalf of the Borrower as fairly presenting, in all material respects, the financial position and results of operations of the Borrower and the Restricted Subsidiaries (or Impax and its ~~Subsidiaries~~ Restricted Subsidiaries, as applicable) on a consolidated basis in accordance with ~~GAAP (~~GAAP, subject to normal year-end audit adjustments and the absence of ~~footnotes~~footnotes (the applicable financial statements delivered pursuant to this clause (2) being the “Quarterly Financial Statements” and, together with the Annual Financial Statements, the “Required Financial Statements”). (~~it being understood that~~ 3) no later than five (5) days after the delivery of any Required Financial Statements, a certificate of a Financial Officer of the Borrower: (a) certifying that no Default or Event of Default has occurred and is continuing or, if a Default or Event of Default has occurred and is continuing, specifying the nature and extent thereof and any corrective action taken or proposed to be taken with respect thereto; (b) setting forth the calculation and uses of the Available Amount for the fiscal period then ended if the Borrower has used the Available Amount for any purpose during such fiscal period; (c) certifying a list of all Immaterial Subsidiaries, that each Subsidiary set forth on such list individually qualifies as an Immaterial Subsidiary and that all such Subsidiaries in the aggregate do not exceed the limitation set forth in clause (ii) of the definition of the term “Immaterial Subsidiary;” (d) setting forth, in reasonable detail, the calculation of the First Lien Net Leverage Ratio for the most recent period of four consecutive fiscal quarters as of the close of such fiscal year or such fiscal quarter, as applicable; (e) certifying a list of all Unrestricted Subsidiaries at such time and that each Subsidiary set forth on such list qualifies as an Unrestricted Subsidiary; and (f) with respect to the Financial Officer certificate delivered with regard to Annual Financial Statements only, setting forth the calculation of Excess Cash Flow for such Excess Cash Flow Period. (4) promptly after the same become publicly available, copies of all periodic and other publicly available reports, proxy statements and, to the extent requested by the Administrative Agent, other materials publicly filed by the Borrower or any Restricted Subsidiary with the SEC or, after an initial public offering, distributed to its stockholders generally, as applicable, and in any case not otherwise required to be delivered to the Administrative Agent pursuant to any Loan Document; (5) within 60 days following the end of ~~quarterly reports~~ each fiscal year, commencing with the fiscal year ending December 31, 2018, a consolidated annual budget for such fiscal year in the form customarily prepared by the Borrower (the “Budget”), which Budget will in each case be accompanied by the statement of a Financial Officer of the Borrower on behalf of the Borrower to the effect that the Budget is based on assumptions believed by the Borrower to be reasonable as of the date of delivery thereof; provided that no Budget will be required to be delivered with respect to the fiscal year ending December 31, 2018; (6) upon the reasonable written request of the Collateral Agent, concurrently with the delivery of the Annual Financial Statements, an updated Perfection Certificate (or, to the extent such request relates to specified information contained in the Perfection Certificate, such information) reflecting all changes since the date of the information most recently received pursuant to this paragraph (6) or Section 5.10, as applicable; (7) promptly, from time to time, such other information regarding the operations, business affairs and financial condition of the Borrower or any Restricted Subsidiary, in each case, as the Administrative Agent may reasonably request (for itself or on behalf of any Lender) in writing; and (8) promptly upon reasonable written request by the Administrative Agent (so long as the following are obtainable using commercially reasonable measures), copies of any documents described in Section 101(k)(1) of ERISA that the Borrower or any of its ERISA Affiliates may request with respect to any Multiemployer Plan; provided that if the Borrower or any of its ERISA Affiliates has not requested such documents from the administrator or sponsor of the applicable Multiemployer Plan, the Borrower or the applicable ERISA Affiliate shall promptly make a request for such documents or notices from such administrator or sponsor and shall provide copies of such documents and notices promptly after receipt thereof. Anything to the contrary notwithstanding, the obligations in clauses (1) and (2) of this Section 5.04 may be satisfied with respect to financial information of the Borrower and the Restricted Subsidiaries by furnishing (1) the applicable financial statements of any Parent Entity or (2) the Borrower’s (or any such other Parent Entity’s), as applicable, Form 10-Q K or 10-Q, as applicable, filed with the SEC; provided that with respect to each of the foregoing clauses (1) and (2) (a) to the extent such information relates to a Parent Entity, such information is accompanied by consolidating information (which need not be audited) that explains in reasonable detail the differences between the information relating to such Parent Entity, on the one hand, and the information relating to the Borrower and the Restricted Subsidiaries on a standalone basis, on the other hand, and (b) to the extent such information is in lieu of information required to be provided under Section 5.04(1), such materials are prepared in accordance with GAAP and accompanied by a report and opinion of any independent public accountants of recognized national standing, or such other accountants as are reasonably acceptable to the Administrative Agent, and accompanied by an opinion of such accountants (which opinion shall not be subject to any “going concern” statement, explanatory note or like qualification or exception (other than a “going concern” statement, explanatory note or like qualification or exception relating to an anticipated, but not actual, financial covenant default or an upcoming maturity date). The obligations in clauses (1) and (2) of this Section 5.04 may be satisfied by delivery of financial information of the Borrower and its ~~consolidated~~ Subsidiaries ~~shall satisfy~~ so long as such financial statements include a reasonably detailed presentation (which need not be audited), either on the ~~requirements~~ face of the financial statements or in the footnotes thereto, of the financial condition and results of operations of the Borrower and the Restricted Subsidiaries separate from the financial condition and results of operations of the Unrestricted Subsidiaries of the Borrower. Documents required to be delivered pursuant to this Section ~~5.04(b) to the extent such quarterly reports include the information specified herein~~5.04 may be delivered electronically in accordance with Section 10.01(5);.

Appears in 2 contracts

Sources: Term Loan Credit Agreement (Amneal Pharmaceuticals, Inc.), Term Loan Credit Agreement (Impax Laboratories, LLC)

Financial Statements, Reports, etc. Furnish to the Administrative Agent (which will promptly furnish such information to the Lenders): (a) within 90 days after the end of each fiscal ~~year (~~year, commencing with the first fiscal year ending ~~December 31, 2016)~~after the Spinoff Date, a consolidated balance sheet and related statements of operations, cash flows and owners’ equity showing the financial position of ~~the Borrower~~ Parent and its Subsidiaries as of the close of such fiscal year and the consolidated results of their operations during such year and setting forth in comparative form the corresponding figures for the prior fiscal year, which consolidated balance sheet and related statements of operations, cash flows and owners’ equity shall be accompanied by customary management’s discussion and analysis and audited by independent public accountants of recognized national standing and accompanied by an opinion of such accountants (which opinion shall not be qualified as to scope of audit or as to the status of ~~the Borrower~~ Parent or any Material Subsidiary as a going concern, other than solely with respect to, or resulting solely from, an upcoming maturity date under any ~~series of~~ Indebtedness incurred under this Agreement occurring within one year from the time such opinion is ~~delivered or any potential inability to satisfy a financial maintenance covenant on a future date or in a future period~~delivered) to the effect that such consolidated financial statements fairly present, in all material respects, the financial position and results of operations of ~~the Borrower~~ Parent and its Subsidiaries on a consolidated basis in accordance with GAAP (it being understood that the delivery by ~~the Borrower~~ Parent of annual reports on Form 10-K of ~~the Borrower~~ Parent and its consolidated Subsidiaries shall satisfy the requirements of this Section 5.04(a) to the extent such annual reports include the information specified ~~herein~~herein and are delivered within the time period specified above); (b) within 45 days after the end of each of the first three fiscal quarters of each fiscal year (commencing with the first fiscal quarter ending ~~June 30, 2016~~after the Spinoff Date), a consolidated balance sheet and related statements of operations and cash flows showing the financial position of ~~the Borrower~~ Parent and its Subsidiaries as of the close of such fiscal quarter and the consolidated results of their operations during such fiscal quarter and the then-elapsed portion of the fiscal year ~~and, starting with the fiscal quarter ending September 30, 2016,~~ and setting forth in comparative form the corresponding figures for the corresponding periods of the prior fiscal year, all of which shall be in reasonable detail, which consolidated balance sheet and related statements of operations and cash flows shall be accompanied by customary management’s discussion and analysis and which consolidated balance sheet and related statements of operations and cash flows shall be certified by a Financial Officer of ~~the Borrower~~ Parent on behalf of ~~the Borrower~~ Parent as fairly presenting, in all material respects, the financial position and results of operations of ~~the Borrower~~ Parent and its Subsidiaries on a consolidated basis in accordance with GAAP (subject to normal year-end audit adjustments and the absence of footnotes) (it being understood that the delivery by ~~the Borrower~~ Parent of quarterly reports on Form 10-Q of ~~the Borrower~~ Parent and its consolidated Subsidiaries shall satisfy the requirements of this Section 5.04(b) to the extent such quarterly reports include the information specified ~~herein~~herein and are delivered within the time period specified above);

Appears in 2 contracts

Sources: Credit Agreement (Johnson Controls Inc), Credit Agreement (Adient LTD)

Financial Statements, Reports, etc. Furnish to the Administrative Agent (which will promptly furnish such information to the Lenders): (a) within 90 ninety (90) days ~~after~~ following the end of each fiscal year (~~commencing~~ or, if later, when required to be filed with the ~~fiscal year ending December 31, 2016~~SEC pursuant to Rule 12b-25 of the Exchange Act), a consolidated balance sheet and related statements of operations, cash flows and owners’ equity showing the financial position of the Borrower and its Subsidiaries as of the close of such fiscal year and the consolidated results of ~~their~~ its operations during such year and setting forth in comparative form the corresponding figures for the prior fiscal year, which consolidated balance sheet and related statements of operations, cash flows and owners’ equity shall be ~~accompanied by customary management’s discussion and analysis and~~ audited by independent public accountants of recognized national standing and accompanied by an opinion of such accountants (which opinion shall not be qualified as to scope of audit or as to the status of the Borrower or any Material Subsidiary as a going concern, other than solely with respect to, or resulting solely ~~from,~~ from an upcoming maturity date under any series of Indebtedness occurring within one year from the time such opinion is ~~delivered or any potential inability to satisfy a financial maintenance covenant on a future date or in a future period~~delivered) to the effect that such consolidated financial statements fairly present, in all material respects, the financial position and results of operations of the Borrower and its Subsidiaries on a consolidated basis in accordance with GAAP (it being understood that the delivery by Holdings or the Borrower of annual reports on Form 10-K of ~~the Borrower~~ Holdings and its consolidated Subsidiaries (including delivery by way of providing to the Administrative Agent the URL link to Holdings’ website or SEC’s website where such reports are posted) shall satisfy the requirements of this Section 5.04(a) to the extent such annual reports include the information specified herein); (b) within 45 sixty (60) days ~~after~~ following the end of each of the first three fiscal quarters of each fiscal year (~~commencing~~ or, if later, when required to be filed with the ~~fiscal quarter ending June 30, 2016~~SEC pursuant to Rule 12b-25 of the Exchange Act), a consolidated balance sheet and related statements of operations and cash flows showing the financial position of the Borrower and its Subsidiaries as of the close of such fiscal quarter and the consolidated results of ~~their~~ its operations during such fiscal quarter and the then-elapsed portion of the fiscal year ~~and, starting with the fiscal quarter ending September 30, 2016,~~ and setting forth in comparative form the corresponding figures for the corresponding periods of the prior fiscal year, all of which shall be in reasonable ~~detail, which consolidated balance sheet and related statements of operations and cash flows shall be accompanied by customary management’s discussion and analysis~~ detail and which consolidated balance sheet and related statements of operations and cash flows shall be certified by a Financial Officer of the Borrower on behalf of the Borrower as fairly presenting, in all material respects, the financial position and results of operations of the Borrower and its Subsidiaries on a consolidated basis in accordance with GAAP (subject to normal year-end audit adjustments and the absence of footnotes) (it being understood that the delivery by Holdings or the Borrower of quarterly reports on Form 10-Q of ~~the Borrower~~ Holdings and its consolidated Subsidiaries (including delivery by way of providing to the Administrative Agent the URL link to Holdings’ website or SEC’s website where such reports are posted) shall satisfy the requirements of this Section 5.04(b) to the extent such quarterly reports include the information specified herein);

Appears in 2 contracts

Sources: Credit Agreement (Sprouts Farmers Market, Inc.), Credit Agreement (Sprouts Farmers Market, Inc.)

Financial Statements, Reports, etc. Furnish to the Administrative Agent (which will promptly furnish such information (excluding information furnished pursuant to Section 5.04(h)) to the Lenders): (a) within 90 120 days (or, with respect to the fiscal year ending December 31, 2024, 150 days) after the end of each fiscal year of the Parent and the Borrower (~~commencing~~ which period for delivery may be extended by the Administrative Agent at the direction of the Lender Representative (and notified by the Lender Representative to the other Lenders)), starting with the fiscal year ending December 31, ~~2016)~~2024, a ~~consolidated~~ balance sheet and related statements of operations, cash flows and owners’ equity showing the financial position of the ~~Borrower~~ Parent and ~~its Subsidiaries~~ the Borrower, as of the close of such fiscal year and the ~~consolidated~~ results of ~~their~~ its operations during such year and setting forth in comparative ~~form~~ form, commencing with the fiscal year ending December 31, 2025, the corresponding figures for the prior fiscal year, ~~which consolidated balance sheet and related statements of operations, cash flows and owners’ equity shall be accompanied by customary management’s discussion and analysis and~~ all audited by independent ~~public~~ accountants of recognized national standing reasonably acceptable to the Administrative Agent at the direction of the Required Lenders and accompanied by an opinion of such accountants (which ~~opinion~~ shall not be qualified ~~as to scope of audit or as to the status of the Borrower or~~ in any ~~Material Subsidiary as a going concern,~~ material respect (other than ~~solely with respect to,~~ resulting from (x) the impending maturity of any Indebtedness or ~~resulting solely from, an upcoming maturity date under~~ (y) any ~~series~~ actual or prospective breach of ~~Indebtedness occurring within one year from the time such opinion is delivered or~~ any ~~potential inability to satisfy a~~ financial ~~maintenance~~ covenant ~~on a future date or~~ contained in ~~a future period~~any Indebtedness)) to the effect that such ~~consolidated~~ financial statements fairly present, in all material respects, the financial position and results of operations of the ~~Borrower~~ Parent and ~~its Subsidiaries on a consolidated basis~~ the Borrower, in accordance with GAAP (it being understood that the delivery by the Borrower of annual reports on Form 10-K of the Borrower and its consolidated Subsidiaries shall satisfy the requirements of this Section 5.04(a) to the extent such annual reports include the information specified herein)GAAP; (b) within 45 60 days after the end of each of the first three full fiscal quarters of each fiscal year ~~(commencing~~ of the Parent and the Borrower, starting with the fiscal quarter ~~ending June~~ ended on September 30, ~~2016)~~2024, a ~~consolidated~~ balance sheet and related statements of operations and cash flows showing the financial position of the ~~Borrower~~ Parent and ~~its Subsidiaries~~ the Borrower, as of the close of such fiscal quarter and the ~~consolidated~~ results of ~~their~~ its operations during such fiscal quarter and the then-elapsed portion of the fiscal year ~~and~~and setting forth in comparative form, ~~starting~~ commencing with the fiscal quarter ending September 30, ~~2016~~2025, ~~setting forth in comparative form~~ the corresponding figures for the corresponding periods of the prior fiscal year, all of which shall be in reasonable detail, which consolidated balance sheet and related statements of operations and cash flows shall be accompanied by customary management’s discussion and analysis and which consolidated balance sheet and related statements of operations and cash flows shall be certified by a Financial Officer of the ~~Borrower~~ Parent and the Borrower, on behalf of the ~~Borrower~~ Parent and the Borrower, as fairly presenting, in all material respects, the financial position and results of operations of the ~~Borrower~~ Parent and ~~its Subsidiaries on a consolidated basis~~ Borrower, in accordance with GAAP (subject to normal year-end audit adjustments and the absence of footnotes); (c) promptly after the same become publicly available, copies of all periodic and other available reports, proxy statements and, other materials filed by the Parent and the Borrower with the SEC, or after an initial public offering, distributed to its stockholders generally, if and as applicable; (~~it being understood that~~ d) promptly upon the request by the Administrative Agent (acting at the direction of the Required Lenders), copies of: (i) each Schedule B (Actuarial Information) to the annual report (Form 5500 Series) filed with the Internal Revenue Service with respect to a Plan; (ii) the most recent actuarial valuation report for any Plan; and (iii) such other documents or governmental reports or filings relating to any Plan or Multiemployer Plan; (e) within 5 Business Days after the delivery of the financial statements pursuant to Sections 5.04(a) and (b), a Compliance Certificate certifying as to (i) the accuracy of, and a reconciliation with respect to, the Projected Contracted Cash Flows previously provided, (ii) compliance with the terms of the Master Services Agreements and any Additional Services Agreement and (iii) concurrently with the delivery of the financial statements pursuant to Sections 5.04(a) and (b), the accuracy of such financial statements; (f) solely to the extent the Closing Date has occurred, account statements for the Collateral Accounts on a monthly basis provided within two (2) weeks after the end of each calendar month; (g) promptly, from time to time, such other information regarding the operations, business affairs and financial condition of the Borrower, the Parent or the Project, or compliance with the terms of any Loan Document, in each case of this Section 5.04(g), as the Administrative Agent (on behalf of itself or any Lender) may reasonably request, including documentation and other information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including, without limitation, the PATRIOT Act and the Beneficial Ownership Regulation; and (h) prior to a Qualified IPO, no later than ten (10) Business Days prior to any Quarterly Payment Date (commencing with the first Quarterly Payment Date with respect to the first full Quarterly Date to occur after the Commitment Termination Date), a summary of projected cash revenues (to be based on billing rates, start dates, end dates and other applicable terms of all IG Contracts and Non-IG Contracts) in a manner substantially consistent with how such summary is illustrated in Exhibit M. Notwithstanding the foregoing, the obligations in clauses (a) and (b) of this Section 5.04 may be satisfied with respect to financial information of the Borrower by furnishing (A) the applicable financial statements of ~~quarterly reports on~~ any direct or indirect parent of the Borrower or (B) the Borrower’s (or any direct or indirect parent thereof), as applicable, Form 10-Q K or 10-Q, as applicable, filed with the SEC; provided that, with respect to each of ~~the Borrower~~ subclauses (A) and ~~its consolidated Subsidiaries shall satisfy the requirements~~ (B) of this ~~Section 5.04(b)~~ paragraph, to the extent such ~~quarterly reports include~~ information relates to a parent of the Borrower, such information is accompanied by consolidating or other information that explains in reasonable detail the differences between the information ~~specified herein);~~relating to such parent, on the one hand, and the information relating to the Borrower on a standalone basis, on the other hand; provided that the Administrative Agent shall have no obligation to monitor any such filings and the Borrower shall provide electronic copies to the Administrative Agent (which shall furnish to the Lenders) upon request.

Appears in 2 contracts

Sources: Credit Agreement (CoreWeave, Inc.), Credit Agreement (CoreWeave, Inc.)

Appears in 2 contracts

Sources: Credit Agreement (Plains All American Pipeline Lp), Credit Agreement (Plains Gp Holdings Lp)

Financial Statements, Reports, etc. Furnish to the Administrative Agent (which will promptly furnish such information to the Lenders): (a) within 90 days (or, if applicable, such shorter period as the SEC shall specify for the filing of annual reports on Form 10-K or on any applicable equivalent form) after the end of each fiscal year ~~(commencing with the fiscal year ending December 31, 2016),~~ a consolidated balance sheet and related statements of operations, cash flows and owners’ equity showing the financial position of the ~~Borrower~~ Company and its Subsidiaries as of the close of such fiscal year and the consolidated results of their operations during such fiscal year and setting forth in comparative form the corresponding figures for the prior fiscal year, which consolidated balance ~~sheet~~ sheets and related statements of operations, cash flows and owners’ equity shall be ~~accompanied by customary management’s discussion and analysis and~~ audited by PricewaterhouseCoopers, LLP or other independent public accountants of recognized national standing and accompanied by an opinion of such accountants (which opinion shall not be qualified as to scope of audit or as to the status of the ~~Borrower~~ Company or any Material Subsidiary as a going concern; provided that for the fiscal years ending December 31, ~~other than solely with respect to~~2020 and December 31, ~~or resulting solely from~~2021, ~~an upcoming maturity date under~~ any ~~series of Indebtedness occurring within one year from the time~~ such opinion may contain a going concern explanatory paragraph or like qualification that is ~~delivered~~ due to the impending maturity of any Indebtedness within twelve months of the date of delivery of such audit or any actual or potential inability to satisfy a any financial ~~maintenance covenant on a future date or in a future period~~covenant) to the effect that such consolidated financial statements fairly present, in all material respects, the financial position and results of operations of the ~~Borrower~~ Company and its Subsidiaries on a consolidated basis in accordance with GAAP (it being understood that the delivery by the ~~Borrower~~ Company of annual reports on Form 10-K or the equivalent of the ~~Borrower~~ Company and its consolidated Subsidiaries shall satisfy the requirements of this ~~Section 5.04(a~~(a) to the extent such annual reports include the information specified herein); (b) within 45 days (or, if applicable, such shorter period as the SEC shall specify for the filing of quarterly reports on Form 10-Q or on any applicable equivalent form) after the end of each of the first three fiscal quarters of each fiscal ~~year (commencing with the fiscal quarter ending June 30, 2016)~~year, a consolidated balance sheet and related statements of operations and cash flows showing the financial position of the ~~Borrower~~ Company and its Subsidiaries as of the close of such fiscal quarter and the consolidated results of their operations during such fiscal quarter and the then-elapsed portion of the fiscal year ~~and, starting with the fiscal quarter ending September 30, 2016,~~ and setting forth in comparative form the corresponding figures for the corresponding periods of the prior fiscal year, all of which shall be in reasonable ~~detail, which consolidated balance sheet and related statements of operations and cash flows shall be accompanied by customary management’s discussion and analysis~~ detail and which consolidated balance sheet and related statements of operations and cash flows shall be certified by a Financial Officer of the ~~Borrower~~ Company on behalf of the ~~Borrower~~ Company, as fairly presenting, in all material respects, the financial position and results of operations of the ~~Borrower~~ Company and its ~~Subsidiaries~~ Subsidiaries, on a consolidated basis in accordance with GAAP (subject to normal year-end audit adjustments and the absence of footnotes) (it being understood that the delivery by the ~~Borrower~~ Company of quarterly reports on Form 10-Q of the ~~Borrower~~ Company and its consolidated Subsidiaries shall satisfy the requirements of this ~~Section 5.04(b~~(b) to the extent such quarterly reports include the information specified herein); (c) (x) concurrently with any delivery of financial statements under paragraphs (a) or (b) above, a certificate of a Financial Officer of the Company (i) certifying that no Event of Default or Default has occurred or, if such an Event of Default or Default has occurred, specifying the nature and extent thereof and any corrective action taken or proposed to be taken with respect thereto, (ii) setting forth computations in reasonable detail demonstrating compliance with the covenants set forth in Sections 6.12, 6.13, 6.14, and 6.15, (iii) setting forth the calculation and uses of the Cumulative Credit for the fiscal period then ended if the Company shall have used the Cumulative Credit for any purpose during such fiscal period, and (iv) certifying a list of names of all Immaterial Subsidiaries, that each Subsidiary set forth on such list individually qualifies as an Immaterial Subsidiary and that all such Subsidiaries in the aggregate do not exceed the limitation set forth in clause (b) of the definition of the term “Immaterial Subsidiary,” and (y) concurrently with any delivery of financial statements under paragraph (a) above, if the accounting firm is not restricted from providing such a certificate by the policies of its applicable office, a certificate of the accounting firm opining on or certifying such statements stating whether they obtained knowledge during the course of their examination of such statements of any Default or Event of Default (which certificate may be limited to accounting matters and disclaim responsibility for legal interpretations); (d) promptly after the same become publicly available, copies of all periodic and other publicly available reports, proxy statements and, to the extent requested by the Administrative Agent, other materials filed by the Company or any Subsidiary with the SEC, or after an initial public offering, distributed to its stockholders generally, as applicable; provided, however, that such reports, proxy statements, filings and other materials required to be delivered pursuant to this clause (d) or any other clause of this Section 5.04 shall be deemed delivered for purposes of this Agreement when posted to the website of the Company or the SEC; (e) within 90 days after the beginning of each fiscal year, a reasonably detailed consolidated quarterly budget for such fiscal year (including a projected consolidated balance sheet of the Company and its Subsidiaries as of the end of the following fiscal year, and the related consolidated statements of projected cash flow and projected income), including a description of underlying assumptions with respect thereto (collectively, the “Budget”), which Budget shall in each case be accompanied by the statement of a Financial Officer of the Company to the effect that the Budget is based on assumptions believed by such Financial Officer to be reasonable as of the date of delivery thereof; (f) promptly, from time to time, such other information (i) regarding the operations, business affairs and financial condition of the Company or any of the Subsidiaries, (ii) regarding compliance with the terms of any Loan Document, (iii) regarding such consolidating financial statements or (iv) required under the USA PATRIOT Act or the Beneficial Ownership Regulation, as in each case the Administrative Agent may reasonably request (for itself or on behalf of any Lender); (g) in the event that (x) any Parent Entity reports on a consolidated basis then, such consolidated reporting at such Parent Entity’s level in a manner consistent with that described in paragraphs (a) and (b) of this Section 5.04 for the Company (together with a reconciliation showing the adjustments necessary to determine compliance by the Company and its Subsidiaries with the covenants set forth in Sections 6.12, 6.13, 6.14, and 6.15 and consolidating information that explains in reasonable detail the differences between the information relating to such direct or indirect parent and its Subsidiaries, on the one hand, and the information relating to the Company and its Subsidiaries, on the other hand) will satisfy the requirements of such paragraphs.

Appears in 2 contracts

Sources: Credit Agreement (Norwegian Cruise Line Holdings Ltd.), Credit Agreement (Norwegian Cruise Line Holdings Ltd.)

Appears in 2 contracts

Sources: Credit Agreement (Presidio, Inc.), Credit Agreement (Presidio, Inc.)

Financial Statements, Reports, etc. Furnish to the Administrative Agent (~~which~~ and the Administrative Agent will promptly furnish such information to the Lenders): (a) ~~within~~ Within 90 days (or such longer time period as specified in the SEC’s rules and regulations for the filing of annual reports on Form 10-K) after the end of each fiscal year ~~(commencing with~~ of the ~~fiscal year ending December 31, 2016)~~Borrower, a ~~consolidated~~ balance sheet and related statements of operations, cash flows and owners’ equity showing the financial position of the Borrower and ~~its~~ the other Subsidiaries of Holdings on an Adjusted Consolidated Basis, as of the close of such fiscal year and the ~~consolidated~~ results of their operations on an Adjusted Consolidated Basis during such year and setting forth in comparative form the corresponding figures for the prior fiscal year, which ~~consolidated~~ balance sheet and related statements of operations, cash flows and owners’ equity shall be ~~accompanied by customary management’s discussion and analysis and~~ audited by Deloitte & Touche LLP or other independent public accountants of recognized national standing and accompanied by an opinion of such accountants (which ~~opinion~~ shall ~~not~~ be ~~qualified~~ unqualified as to the scope of audit or as to the status of ~~the Borrower or~~ any ~~Material Subsidiary~~ Loan Party or, as applicable, any Parent Entity as a “going concern, other than solely with respect to, or resulting solely from, an upcoming maturity date under any series of Indebtedness occurring within one year from the time such opinion is delivered or any potential inability to satisfy a financial maintenance covenant on a future date or in a future period”) to the effect that such ~~consolidated~~ financial statements fairly present, in all material respects, the financial position and results of operations and cash flows of the Borrower and ~~its~~ the other Subsidiaries of Holdings on ~~a consolidated basis~~ an Adjusted Consolidated Basis in accordance with ~~GAAP~~ GAAP, accompanied by a customary management’s discussion and analysis of the financial condition and results of operations of the Borrower and the other Subsidiaries of Holdings (it being understood that the delivery by the Borrower of annual reports on Form 10-K of the ~~Borrower and its consolidated Subsidiaries~~ Borrower, Holdings or any Parent Entity shall satisfy the requirements of this Section 5.04(a) to the extent such annual reports include the information specified herein); (b) ~~within~~ Within 45 days (or such longer time period as specified in the SEC’s rules and regulations with respect to non-accelerated filers for the filing of quarterly reports on Form 10-Q) after the end of each of the first three fiscal quarters of each fiscal year ~~(commencing with~~ of the ~~fiscal quarter ending June 30, 2016)~~Borrower, a ~~consolidated~~ balance sheet and related statements of operations and cash flows ~~showing~~ showing, on an Adjusted Consolidated Basis, the financial position of the Borrower and ~~its~~ the other Subsidiaries of Holdings as of the close of such fiscal quarter and the ~~consolidated~~ results of their operations on an Adjusted Consolidated Basis during such fiscal quarter and the ~~then-~~then elapsed portion of the fiscal year ~~and, starting with the fiscal quarter ending September 30, 2016,~~ and setting forth in comparative form the corresponding figures for the corresponding periods of the prior fiscal year, all of which shall be in reasonable ~~detail, which consolidated balance sheet and related statements of operations and cash flows shall be accompanied by customary management’s discussion and analysis~~ detail and which ~~consolidated~~ balance sheet and related statements of operations and cash flows shall be certified by a Financial Officer of the ~~Borrower~~ Borrower, on behalf of the ~~Borrower~~ Borrower, as fairly presenting, in all material respects, the financial position and results of operations and cash flows of the Borrower and ~~its~~ the other Subsidiaries of Holdings on ~~a consolidated basis~~ an Adjusted Consolidated Basis in accordance with GAAP (subject to normal year-end audit adjustments and the absence of footnotes) ), accompanied by a customary management’s discussion and analysis of the financial condition and results of operations of the Borrower and the other Subsidiaries of Holdings (it being understood that the delivery by the Borrower of quarterly reports on Form 10-Q of the ~~Borrower and its consolidated Subsidiaries~~ Borrower, Holdings or any Parent Entity shall satisfy the requirements of this Section 5.04(b) to the extent such quarterly reports include the information specified herein); (c) If an Availability Triggering Event has occurred and is continuing, within 30 days (or, in the case of a fiscal month that ends on the same day as the end of a fiscal quarter, 45 days) after the end of each fiscal month of each fiscal year of the Borrower, a balance sheet and related statements of operations and cash flows showing the financial position of the Borrower and the other Subsidiaries of Holdings on an Adjusted Consolidated Basis, as of the close of such fiscal month and the results of their operations on an Adjusted Consolidated Basis during such fiscal month and which balance sheet and related statements of operations and cash flows shall be certified by a Financial Officer of the Borrower, on behalf of the Borrower, as fairly presenting, in all material respects, the financial position and results of operations and cash flows of the Borrower and the other Subsidiaries of Holdings on an Adjusted Consolidated Basis in accordance with GAAP (subject to normal year-end audit adjustments and the absence of footnotes); (d) Concurrently with any delivery of financial statements under Section 5.04(a), (b) and (c) above, a certificate of a Financial Officer of the Borrower substantially in the form of Exhibit K, (i) certifying that no Event of Default or Default has occurred or, if such an Event of Default or Default has occurred, specifying the nature and extent thereof and any corrective action taken or proposed to be taken with respect thereto, (ii) if the EBITDA attributable to Unrestricted Subsidiaries exceeds $5.0 million in the aggregate, attaching a reconciliation schedule in reasonable detail showing (A) EBITDA attributable to Unrestricted Subsidiaries and (B) any adjustments to the financial information provided in the financial statements delivered concurrently with such certificate necessary to make the computations with respect to Section 6.10, (iii) setting forth computations in reasonable detail with respect to Section 6.10, whether or not a Covenant Triggering Event has occurred and is continuing, and demonstrating the calculation of Excess Availability as of the end of the period covered by such financial statements or fiscal month, (iv) certifying a list of names of all Immaterial Subsidiaries, that each Subsidiary set forth on such list individually qualifies as an Immaterial Subsidiary and that all such Subsidiaries in the aggregate do not exceed the limitation set forth in clause (b) of the definition of the term “Immaterial Subsidiary”, and (v) certifying a list of names of all Unrestricted Subsidiaries and that each Subsidiary set forth on such list qualifies as an Unrestricted Subsidiary; (e) Promptly after the same become publicly available, copies of all periodic and other publicly available reports, proxy statements and, to the extent requested by the Administrative Agent, other materials filed by Holdings, the Borrower, any of the Subsidiaries or any Parent Entity with the SEC or distributed to its stockholders generally, as applicable; provided, however, that such reports, proxy statements, filings and other materials required to be delivered pursuant to this Section 5.04(e) shall be deemed delivered for purposes of this Agreement when posted to the website of the Borrower or available on the SEC’s ▇▇▇▇▇ service (or any successor thereto); (f) Within 90 days after the beginning of each fiscal year of the Borrower, a reasonably detailed annual budget (prepared on a quarterly basis), on an Adjusted Consolidated Basis, for such fiscal year (including a projected balance sheet of the Borrower and the other Subsidiaries of Holdings as of the end of the following fiscal year, and the related statements of projected cash flow and projected income on an Adjusted Consolidated Basis), including a description of underlying assumptions with respect thereto (collectively, the “Budget”), which Budget shall in each case be accompanied by the statement of a Financial Officer of the Borrower substantially in the form of Exhibit L to the effect that, the Budget has been prepared in good faith based on assumptions believed by such Financial Officer to be reasonable as of the date of delivery thereof; (g) Promptly, from time to time, such other information regarding the operations, business affairs, assets and financial condition of Holdings, the Borrower or any of the Subsidiaries, or compliance with the terms of any Loan Document as the Administrative Agent may reasonably request (in each case, for itself or on behalf of any Lender); (h) On or before the date set forth therein with respect thereto, the information and reports specified on Schedule 5.04(h); (i) On or before the fifteenth Business Day of each month, a Borrowing Base Certificate from the Borrower substantially in the form of Exhibit D as of the last day of the immediately preceding month, with such supporting materials as the Administrative Agent shall reasonably request. Notwithstanding the foregoing, after the occurrence and during the continuance of an Availability Triggering Event, the Borrower shall execute and deliver to the Administrative Agent Borrowing Base Certificates weekly on or before the fifth Business Day following the end of the week. In the event that an Availability Triggering Event has occurred, the Borrower shall deliver Borrowing Base Certificates on a weekly basis for a minimum of four weeks, regardless of whether an Availability Triggering Event is continuing during such period. The Borrower may, at its option, deliver Borrowing Base Certificates more frequently than required by the foregoing provisions of this Section 5.04(i), but only if the Borrower continues to deliver Borrowing Base Certificates at the same increased frequency for four weeks. The Administrative Agent, the Lenders and the Borrower hereby acknowledge that (i) information with respect to any Eligible Accounts or Eligible Inventory included in any Borrowing Base Certificate delivered by the Borrower as of any day other than the last day of a month may include the Borrower’s good faith estimates of such items, and (ii) the Administrative Agent may, in its Permitted Discretion, establish a reserve in respect of any estimated amounts included in such calculation; (j) Within 90 days after the beginning of each fiscal year, or as the Administrative Agent may request (but not more than once in any fiscal year unless an Availability Triggering Event has occurred and is continuing), an updated Perfection Certificate reflecting all changes since the date of the information most recently received pursuant to this paragraph (j), Section 4.02 or Section 5.10(e); and (k) At the time of consummation of any Asset Sale in a single transaction or series of related transactions consisting of Collateral having a value in excess of $25.0 million (other than in the ordinary course of business), an updated Borrowing Base Certificate reflecting such Asset Sale. In the event that Holdings or any Parent Entity reports on a consolidated basis, such consolidated reporting at the level of Holdings or such Parent Entity in a manner consistent with that described in paragraphs (a), (b) and (c) of this Section 5.04 for the Borrower and the other Subsidiaries of Holdings will satisfy the requirements of such paragraphs; provided that, in the event that (i) the Borrower delivers financial statements of Holdings or any Parent Entity and (ii) more than 10% of the total assets of Holdings or such Parent Entity and its consolidated subsidiaries as set forth in such financial statements are held by subsidiaries of such person that are not Loan Parties, then the Borrower shall provide consolidating schedules with respect to such financial statements at the time such financial statements are delivered pursuant to paragraphs (a), (b) and (c) of this Section 5.04.

Appears in 2 contracts

Sources: Credit Agreement (Verso Corp), Credit Agreement (Verso Corp)

Financial Statements, Reports, etc. Furnish to the Administrative Agent (which will promptly furnish such information to the Lenders): (a) within 90 days after the end of each fiscal ~~year (~~year, commencing with the first fiscal year ending ~~December 31, 2016)~~after the Closing Date, a consolidated balance sheet and related statements of operations, cash flows and owners’ equity showing the financial position of ~~the Borrower~~ Parent and its Subsidiaries as of the close of such fiscal year and the consolidated results of their operations during such year and setting forth in comparative form the corresponding figures for the prior fiscal year, which consolidated balance sheet and related statements of operations, cash flows and owners’ equity shall be accompanied by customary management’s discussion and analysis and audited by independent public accountants of recognized national standing and accompanied by an opinion of such accountants (which opinion shall not be qualified as to scope of audit or as to the status of ~~the Borrower~~ Parent or any Material Subsidiary as a going concern, other than solely with respect to, or resulting solely from, an upcoming maturity date under any ~~series of~~ Indebtedness incurred under this Agreement or the ABL Credit Agreement occurring within one year from the time such opinion is ~~delivered or any potential inability to satisfy a financial maintenance covenant on a future date or in a future period~~delivered) to the effect that such consolidated financial statements fairly present, in all material respects, the financial position and results of operations of ~~the Borrower~~ Parent and its Subsidiaries on a consolidated basis in accordance with GAAP (it being understood that the delivery by ~~the Borrower~~ Parent of annual reports on Form 10-K of ~~the Borrower~~ Parent and its consolidated Subsidiaries shall satisfy the requirements of this Section 5.04(a) to the extent such annual reports include the information specified ~~herein~~herein and are delivered within the time period specified above); (b) within 45 days after the end of each of the first three fiscal quarters of each fiscal year (commencing with the first fiscal quarter ending ~~June 30, 2016~~after the Closing Date), a consolidated balance sheet and related statements of operations and cash flows showing the financial position of ~~the Borrower~~ Parent and its Subsidiaries as of the close of such fiscal quarter and the consolidated results of their operations during such fiscal quarter and the then-elapsed portion of the fiscal year ~~and, starting with the fiscal quarter ending September 30, 2016,~~ and setting forth in comparative form the corresponding figures for the corresponding periods of the prior fiscal year, all of which shall be in reasonable detail, which consolidated balance sheet and related statements of operations and cash flows shall be accompanied by customary management’s discussion and analysis and which consolidated balance sheet and related statements of operations and cash flows shall be certified by a Financial Officer of ~~the Borrower~~ Parent on behalf of ~~the Borrower~~ Parent as fairly presenting, in all material respects, the financial position and results of operations of ~~the Borrower~~ Parent and its Subsidiaries on a consolidated basis in accordance with GAAP (subject to normal year-end audit adjustments and the absence of footnotes) (it being understood that the delivery by ~~the Borrower~~ Parent of quarterly reports on Form 10-Q of ~~the Borrower~~ Parent and its consolidated Subsidiaries shall satisfy the requirements of this Section 5.04(b) to the extent such quarterly reports include the information specified ~~herein~~herein and are delivered within the time period specified above); (c) (x) concurrently with any delivery of financial statements under clause (a) or (b) above, a certificate of a Financial Officer of Parent (i) certifying that no Event of Default or Default has occurred since the date of the last certificate delivered pursuant to this Section 5.04(c) (or since the Closing Date in the case of the first such certificate) or, if such an Event of Default or Default has occurred, specifying the nature and extent thereof and any corrective action taken or proposed to be taken with respect thereto, (ii) in the case of any certificate delivered simultaneously with the delivery of the financial statements referred to in clause (a) above commencing with respect to the fiscal year ending September 30, 2021, setting forth in reasonable detail the calculations for Excess Cash Flow for such period and (iii) setting forth the calculation and uses of the Available Amount for the fiscal period then ended if the Available Amount has been used for any purpose during such fiscal period and (y) concurrently with any delivery of financial statements under clause (a) above, if the accounting firm is not restricted from providing such a certificate by its policies office, a certificate of the accounting firm opining on or certifying such statements stating whether they obtained knowledge during the course of their examination of such statements of any Default or Event of Default (which certificate may be limited to accounting matters and disclaim responsibility for legal interpretations); (d) promptly after the same become publicly available, copies of all periodic and other publicly available reports, proxy statements and, to the extent requested by the Administrative Agent, other materials filed by Parent or any of the Subsidiaries with the SEC, or distributed to its stockholders or shareholders generally, as applicable; provided, however, that such reports, proxy statements, filings and other materials required to be delivered pursuant to this clause (d) shall be deemed delivered for purposes of this Agreement when posted to the website of Parent or the Borrowers or the website of the SEC and written notice of such posting has been delivered to the Administrative Agent; (e) within 90 days after the beginning of each fiscal year that commences after the Closing Date, a consolidated annual budget for such fiscal year consisting of a projected consolidated balance sheet of Parent and its Subsidiaries as of the end of such fiscal year and the related consolidated statements of projected cash flow and projected income (collectively, the “Budget”), which Budget shall in each case be accompanied by the statement of a Financial Officer of Parent to the effect that the Budget is based on assumptions believed by Parent to be reasonable as of the date of delivery thereof; (f) concurrently with the delivery of financial statements under clause (a) above, an updated Perfection Certificate reflecting all changes since the date of the information most recently received pursuant to this clause (f) or Section 5.10(c) (or a certificate of a Responsible Officer certifying as to the absence of any changes to the previously delivered update, if applicable); (g) promptly following any request therefor, information and documentation reasonably requested by the Administrative Agent or any Lender for purposes of compliance with applicable “know your customer” and anti-money laundering rules and regulations, including the PATRIOT Act and the Beneficial Ownership Regulation; and (h) promptly, from time to time, such other information regarding the operations, business affairs and financial condition of Parent or any of the Subsidiaries, or compliance with the terms of any Loan Document as in each case the Administrative Agent may reasonably request (for itself or on behalf of any Lender). The Borrowers acknowledge and agree that all financial statements furnished pursuant to paragraphs (a), (b) and (d) above are hereby deemed to be Borrower Materials suitable for distribution, and to be made available, to Public Lenders as contemplated by Section 9.17 and may be treated by the Administrative Agent and the Lenders as if the same had been marked “PUBLIC” in accordance with such paragraph (unless the Borrower Representative otherwise notifies the Administrative Agent in writing on or prior to delivery thereof).

Appears in 2 contracts

Sources: Term Loan Credit Agreement (Adient PLC), Term Loan Credit Agreement (Adient PLC)

Financial Statements, Reports, etc. Furnish to the Administrative Agent ~~(which will promptly furnish such information~~ for distribution to the Lenders):: (a) During any Sweep Period, within 90 30 days after the end of each of the first two fiscal ~~year~~ months in each fiscal quarter of Equistar, unaudited consolidated financial statements (~~commencing with the fiscal year ending December 31, 2016),~~ which shall include a ~~consolidated~~ balance sheet and ~~related~~ income statement, as well as statements of ~~operations, cash flows and owners~~partners’ equity and cash flow) showing the financial ~~position~~ condition and results of operation of Equistar and its Consolidated Subsidiaries as of the ~~Borrower~~ end of and ~~its Subsidiaries~~ for such fiscal month and that portion of the current Fiscal Year ending as of the close of such ~~fiscal year~~ month, in each case certified by a Principal Financial Officer as being the same monthly financial statements generated in accordance with Equistar’s normal procedures and submitted to management of Equistar. The Administrative Agent and the Lenders acknowledge that any monthly unaudited consolidated ~~results~~ financial statements furnished pursuant to this Section 5.05(a) will not be accompanied by the footnotes and other disclosures that would be necessary for fair presentation in accordance with GAAP. (b) Subject to the last paragraph of ~~their operations during such year and setting forth in comparative form~~ this Section 5.05, within 55 days after the ~~corresponding figures for~~ end of each of the ~~prior~~ first three fiscal ~~year~~quarters of each Fiscal Year, unaudited consolidated financial statements (which ~~consolidated~~ shall include a balance sheet and ~~related~~ income statement, as well as statements of ~~operations, cash flows and owners~~partners’ equity ~~shall be accompanied by customary management’s discussion~~ and ~~analysis~~ cash flow) showing the financial condition and ~~audited by independent public accountants~~ results of ~~recognized national standing~~ operations of Equistar and ~~accompanied by an opinion of such accountants (which opinion shall not be qualified~~ its Consolidated Subsidiaries as ~~to scope of audit or as to the status~~ of the ~~Borrower or any Material Subsidiary~~ end of and for such fiscal quarter, in each case certified by a Principal Financial Officer as a going concern, other than solely with respect to, or resulting solely from, an upcoming maturity date under any series of Indebtedness occurring within one year from the time such opinion is delivered or any potential inability to satisfy a financial maintenance covenant on a future date or in a future period) to the effect that such consolidated financial statements fairly presentpresenting fairly, in all material respects, the financial position and results of operations of ~~the Borrower~~ Equistar and its Consolidated Subsidiaries ~~on a consolidated basis~~ and as having been prepared in accordance with ~~GAAP (it being understood that~~ the ~~delivery by~~ rules and regulations of the ~~Borrower of annual~~ SEC applicable to quarterly reports on Form 10-~~K of~~ Q. (c) Subject to the ~~Borrower and its consolidated Subsidiaries shall satisfy the requirements~~ last paragraph of this Section ~~5.04(a) to the extent such annual reports include the information specified herein); (b)~~ 5.05, within 45 100 days after the end of each ~~of the first three fiscal quarters of each fiscal year~~ Fiscal Year, consolidated and consolidating financial statements (~~commencing with the fiscal quarter ending June 30, 2016),~~ which shall include a ~~consolidated~~ balance sheet and ~~related~~ income statement, as well as statements of ~~operations~~ partners’ equity and cash ~~flows~~ flows) showing the financial position of the Borrower and its Subsidiaries as of the close of such fiscal quarter and the consolidated results of their operations during such fiscal quarter and the then-elapsed portion of the fiscal year and, starting with the fiscal quarter ending September 30, 2016, setting forth in comparative form the corresponding figures for the corresponding periods of the prior fiscal year, all of which shall be in reasonable detail, which consolidated balance sheet and related statements of operations and cash flows shall be accompanied by customary management’s discussion and analysis and which consolidated balance sheet and related statements of operations and cash flows shall be certified by a Financial Officer of the Borrower on behalf of the Borrower as fairly presenting, in all material respects, the financial position condition and results of operations of Equistar and its Consolidated Subsidiaries as of the ~~Borrower~~ end of and for such Fiscal Year. The consolidated financial statements of Equistar and its Consolidated Subsidiaries delivered pursuant to this paragraph will be audited and reported on by independent public accountants of recognized standing and shall be accompanied by a statement of such firm of independent public accountants (i) stating whether during the course of their examination of such financial statements they obtained knowledge of any Default existing on the date of such statements and (ii) confirming the calculations set forth in the officer’s certificate delivered simultaneously therewith pursuant to (e) below (which statement may be limited to the extent required by accounting rules or guidelines including the rules and guidelines of the public accounting firm giving such statement). (d) Subject to the last paragraph of this Section 5.05, promptly after the same shall have been filed or furnished as described below, copies of such registration statements, annual, periodic and other reports, and such proxy statements and other information, if any, as shall be filed by Equistar or any Subsidiary with the SEC pursuant to the requirements of the Securities Act of 1933 or the Securities Exchange Act of 1934 or the rules promulgated thereunder. (e) Concurrently with (b) and (c) above, a certificate of a Principal Financial Officer, (i) certifying compliance, as of the dates of the financial statements being furnished at such time and for the periods then ended, with the covenants set forth in Sections 6.01 and 6.11 and demonstrating compliance with the covenant set forth in Section 6.02, when applicable, and the provisions of Section 7.01(o); (ii) certifying that to the best knowledge of such Principal Financial Officer no Default has occurred and is continuing or, if a Default has occurred and is continuing, specifying the nature and extent thereof and any corrective action taken or proposed to be taken with respect thereto; and (iii) solely in the case of (c) above, certifying that except as previously notified to the Administrative Agent pursuant to Section 5.12 there has been no change in any Loan Party’s name, form of organization, jurisdiction of organization and organizational number or Federal Taxpayer Identification Number. (f) Within five Business Days of the date of receipt of Net Cash Proceeds in excess of $10,000,000 in respect of any Asset Sale or a series of related Asset Sales, or the receipt of Major Casualty Proceeds, a certificate of a Principal Financial Officer setting forth in reasonable detail the amount of such Net Cash Proceeds or Major Casualty Proceeds. (g) Not later than the earlier of (i) 15 days after Equistar has received the approval of its Partnership Governance Committee and (ii) 30 days after the commencement of each Fiscal Year, the Annual Plan. For purposes hereof, “Annual Plan” shall mean, for any Fiscal Year before the Termination Date, the financial projections of Equistar and its Subsidiaries ~~on a consolidated basis in accordance with GAAP (subject to normal year-end audit adjustments and the absence~~ for such Fiscal Year prepared by management of ~~footnotes) (it being understood that the delivery by the Borrower of quarterly reports on Form 10-Q~~ Equistar for approval of the ~~Borrower~~ Partnership Governance Committee and ~~its consolidated Subsidiaries shall satisfy~~ substantially in the ~~requirements of this Section 5.04(b)~~ form heretofore provided to the ~~extent such quarterly reports include the information specified herein~~Administrative Agent pursuant to Section 4.02(o);.

Appears in 2 contracts

Sources: Credit Agreement (Equistar Chemicals Lp), Credit Agreement (Lyondell Chemical Co)

Financial Statements, Reports, etc. Furnish to the Administrative Agent ~~(which will promptly furnish such information to the Lenders):~~and each Lender: (a) ~~within 90~~ Within ninety (90) days after the end of each ~~fiscal year (commencing with~~ Fiscal Year of the ~~fiscal year ending December 31~~Borrower, ~~2016), a~~ its audited consolidated and unaudited consolidating balance sheet and related statements of operations, stockholders’ equity and cash flows ~~and owners’ equity showing the financial position of the Borrower and its Subsidiaries~~ as of the ~~close~~ end of and for such ~~fiscal year and the consolidated results of their operations during such year and~~ year, setting forth in each case in comparative form the ~~corresponding~~ figures for the ~~prior fiscal year~~previous Fiscal Year, ~~which consolidated balance sheet and related statements~~ all reported on (in the case of ~~operations, cash flows and owners’ equity shall be accompanied~~ audited statements) by ~~customary management’s discussion and analysis and audited by~~ Ernst & Young LLP or other independent public accountants of recognized national standing (without a “going concern” or like qualification or exception and ~~accompanied by an opinion of such accountants (which opinion shall not be qualified as to scope of audit~~ without any qualification or exception as to the ~~status~~ scope of the Borrower or any Material Subsidiary as a going concern, other than solely with respect to, or resulting solely from, an upcoming maturity date under any series of Indebtedness occurring within one year from the time such ~~opinion is delivered or any potential inability to satisfy a financial maintenance covenant on a future date or in a future period~~audit) to the effect that such consolidated financial statements present fairly ~~present,~~ in all material ~~respects,~~ respects the financial ~~position~~ condition and results of operations of the Borrower and its consolidated Subsidiaries on a consolidated basis in accordance with GAAP consistently applied (it being understood and agreed that ~~the delivery by the Borrower~~ unaudited consolidating financial information provided pursuant to this subsection (a) shall, in respect of annual reports on Form 10-K of the Borrower and its consolidated Subsidiaries shall satisfy the requirements of this Section 5.04(a) to the extent such annual reports include the information specified hereinSubsidiaries, only show individually Significant Subsidiaries); (b) ~~within 45~~ Within forty-five (45) days after the end of each of the first three ~~fiscal quarters~~ Fiscal Quarters of ~~each fiscal year (commencing with~~ the ~~fiscal quarter ending June 30~~Borrower, ~~2016), a~~ its consolidated and consolidating balance sheet and related statements of ~~operations~~ operations, stockholders’ equity and cash flows ~~showing the financial position of the Borrower and its Subsidiaries~~ as of the ~~close~~ end of and for such ~~fiscal quarter~~ Fiscal Quarter and the ~~consolidated results of their operations during such fiscal quarter and the then-~~then elapsed portion of the ~~fiscal year and, starting with the fiscal quarter ending September 30, 2016~~Fiscal Year, setting forth in each case in comparative form the ~~corresponding~~ figures for the corresponding period or periods of (or, in the ~~prior fiscal year~~case of the balance sheet, as of the end of) the previous Fiscal Year, all of which shall be in reasonable detail, which consolidated balance sheet and related statements of operations and cash flows shall be accompanied by customary management’s discussion and analysis and which consolidated balance sheet and related statements of operations and cash flows shall be certified by a one of its Financial ~~Officer of the Borrower on behalf of the Borrower~~ Officers as presenting fairly ~~presenting,~~ in all material ~~respects,~~ respects the financial ~~position~~ condition and results of operations of the Borrower and its consolidated Subsidiaries on a consolidated and consolidating basis in accordance with GAAP consistently applied, subject to normal year-end audit adjustments and the absence of footnotes (it being understood and agreed that unaudited consolidating financial information provided pursuant to this subsection (b) shall, in respect of Subsidiaries, only show individually Significant Subsidiaries); (c) Within thirty (30) days after the end of each calendar month of the Borrower, excluding the months of January, March, June, September and December, its consolidated and consolidating balance sheet and related statements of operations, stockholders’ equity and cash flows as of the end of and for such calendar month and the then elapsed portion of the Fiscal Year, setting forth in each case in comparative form the figures for the corresponding period or periods of (or, in the case of the balance sheet, as of the end of) the previous Fiscal Year, all certified by one of its Financial Officers as presenting fairly in all material respects the financial condition and results of operations of the Borrower and its consolidated Subsidiaries on a consolidated and consolidating basis in accordance with GAAP consistently applied, subject to normal year-end audit adjustments and the absence of footnotes (it being understood and agreed that unaudited consolidating financial information provided pursuant to this subsection (c) shall, in respect of Subsidiaries, only show individually Significant Subsidiaries); (d) Concurrently with any delivery of financial statements under clauses (a), (b), or (c), a Compliance Certificate (i) certifying, in the case of the financial statements delivered under clause (b) or (c), as presenting fairly in all material respects the financial condition and results of operations of the Borrower and its consolidated Subsidiaries on a consolidated basis in accordance with GAAP (consistently applied, subject to normal year-end audit adjustments and the absence of footnotes, (ii) certifying as to whether a Default has occurred and, if a Default has occurred, specifying the details thereof and any action taken or proposed to be taken with respect thereto, (~~it being understood~~ iii) setting forth reasonably detailed calculations of the Fixed Charge Coverage Ratio, the aggregate amount of Capital Expenditures and EBITDA (and, if applicable, Indebtedness) for the most recently ended Test Period and demonstrating compliance with Section 6.10 and (iv) stating whether any change in GAAP or in the application thereof has occurred since the date of the audited financial statements referred to in Section 3.04 and, if any such change has occurred, specifying the effect of such change on the financial statements accompanying such certificate; (e) Concurrently with any delivery of financial statements under clause (a) above, a certificate of the accounting firm that reported on such financial statements stating whether they obtained knowledge during the ~~delivery~~ course of their examination of such financial statements of any Default (which certificate may be limited to the extent required by accounting rules or guidelines); (f) As soon as available, but in any event not later than the fifteenth calendar day of each Fiscal Year of the Borrower, a copy of the plan and forecast (including a projected consolidated and consolidating balance sheet, income statement and funds flow statement) of the Borrower for each month of the upcoming Fiscal Year (the “Projections”) in a form heretofore provided to the Administrative Agent; (g) Promptly after the same become publicly available, copies of all periodic and other reports, proxy statements and other materials filed by the Borrower or any Subsidiary with the Securities and Exchange Commission, or any Governmental Authority succeeding to any or all of ~~quarterly reports on Form 10-Q~~ the functions of said Commission, or with any national securities exchange, or distributed by the Borrower to its shareholders generally, as the case may be; (h) Promptly following any request therefor, such other information regarding the operations, business affairs and financial condition of the Borrower or any Subsidiary, or compliance with the terms of this Agreement, as the Administrative Agent, the Collateral Agent or any Lender may reasonably request; (i) Copies of all Borrowing Base Certificates (as defined in the First Lien Credit Agreement), appraisals and ~~its consolidated Subsidiaries shall satisfy~~ field examinations or similar reports or information as and when provided under the ~~requirements~~ First Lien Loan Documents; (j) Monthly, a report specifying the amounts outstanding under Sections 6.01(l) and (m). (k) Concurrently with any delivery of financial statements under Section 5.01(a), a certificate of a Financial Officer setting forth the information required pursuant to the Security Agreement or confirming that there has been no change in such information since the date of the Security Agreement; (l) Concurrently with any delivery of financial statements under Section 5.01(a), an accurate organizational chart as required by Section 3.15(a), or confirmation that there are no changes to Exhibit A to the Security Agreement; (m) Provide copies of any Organizational Documents that have been amended or modified in accordance with the terms hereof within 15 days after such amendment or modification and deliver a copy of any notice of default given or received by any Company under any Organizational Document within 15 days after such Company gives or receives such notice; Documents required to be delivered pursuant to clauses (a) and (b) of this Section ~~5.04(b~~5.01 may be delivered electronically and if so delivered, shall be deemed to have been delivered on the date on which such documents are filed for public availability on the Securities and Exchange Commission’s Electronic Data Gathering and Retrieval System; provided that Borrower shall notify (which may be by facsimile or electronic mail) the Administrative Agent of the filing of any such documents and provide to the ~~extent~~ Administrative Agent by electronic mail electronic versions (i.e., soft copies) of such ~~quarterly reports include the information specified herein);~~documents.

Appears in 2 contracts

Sources: Senior Secured Credit Agreement (Lifetime Brands, Inc), Senior Secured Credit Agreement (Lifetime Brands, Inc)

Financial Statements, Reports, etc. Furnish to the Administrative Agent (which will promptly furnish such information to the Lenders): (1) within 120 days following the end of the fiscal year ending on the earlier of (a) on or about January 30, 2016 or (b) the fiscal year ended after the Closing Date, and within 90 days ~~after~~ following the end of each fiscal year ~~(commencing with the fiscal year ending December 31, 2016)~~thereafter, a consolidated balance sheet and related statements of operations, cash flows and owners’ equity showing the financial position of the Borrower and ~~its~~ the Restricted Subsidiaries as of the close of such fiscal year and the consolidated results of ~~their~~ its operations during such fiscal year ~~and~~ and, in each case, starting with the following fiscal year, setting forth in comparative form the corresponding figures for the prior fiscal year, which consolidated balance sheet and related statements of operations, cash flows and owners’ equity ~~shall~~ will be ~~accompanied by customary management’s discussion and analysis and~~ audited by independent public accountants of recognized national ~~standing~~ standing, or such other accountants as are reasonably acceptable to the Administrative Agent, and accompanied by an opinion of such accountants (which opinion shall not be ~~qualified as~~ subject to ~~scope of audit or as to the status of the Borrower or~~ any ~~Material Subsidiary as a~~ “going concern” statement, explanatory note or like qualification or exception (other than ~~solely with respect to~~a “going concern” statement, explanatory note or like qualification or exception resulting solely ~~from,~~ from an upcoming maturity date ~~under any series of Indebtedness~~ occurring within one year from the time such opinion is delivered or ~~any potential inability to satisfy a financial maintenance~~ anticipated (but not actual) covenant ~~on a future date or in a future period~~non-compliance)) to the effect that such consolidated financial statements fairly present, in all material respects, the financial position and results of operations of the Borrower and ~~its~~ the Restricted Subsidiaries on a consolidated basis in accordance with GAAP (it the applicable financial statements delivered pursuant to this clause (1) being ~~understood that~~ the delivery by the Borrower of annual reports on Form 10-K of the Borrower and its consolidated Subsidiaries shall satisfy the requirements of this Section 5.04(a) to the extent such annual reports include the information specified herein“Annual Financial Statements”); (b2) within 60 days following the end of the fiscal quarters ending on or about April 30, 2016 and on or about July 31, 2016, and, thereafter, within 45 days ~~after~~ following the end of each of the first three fiscal quarters of each fiscal ~~year (commencing with the fiscal quarter ending June 30, 2016)~~year, a consolidated balance sheet and related statements of operations and cash flows showing the financial position of the Borrower and ~~its~~ the Restricted Subsidiaries as of the close of such fiscal quarter and the consolidated results of ~~their~~ its operations during such fiscal quarter ~~and~~ and, in each case, the then-elapsed portion of the fiscal year ~~and, starting with the fiscal quarter ending September 30, 2016,~~ and setting forth in comparative form the corresponding figures for the corresponding periods of the prior fiscal year, ~~all of which shall be in reasonable detail,~~ which consolidated balance sheet and related statements of operations and cash flows ~~shall be accompanied by customary management’s discussion and analysis and which consolidated balance sheet and related statements of operations and cash flows shall~~ will be certified by a ~~Financial~~ Responsible Officer of the Borrower on behalf of the Borrower as fairly presenting, in all material respects, the financial position and results of operations of the Borrower and ~~its~~ the Restricted Subsidiaries on a consolidated basis in accordance with ~~GAAP (~~GAAP, subject to normal year-end audit adjustments and the absence of ~~footnotes~~footnotes (the applicable financial statements delivered pursuant to this clause (2) being the “Quarterly Financial Statements” and, together with the Annual Financial Statements, the “Required Financial Statements”); (3) concurrently with any delivery of Required Financial Statements, a certificate of a Financial Officer of the Company: (a) certifying that no Default or Event of Default has occurred and is continuing or, if a Default or Event of Default has occurred and is continuing, specifying the nature and extent thereof and any corrective action taken or proposed to be taken with respect thereto; (b) setting forth the calculation and uses of the Available Amount for the fiscal period then ended if the Borrower has used the Available Amount for any purpose during such fiscal period; (c) certifying a list of all Immaterial Subsidiaries, that each Subsidiary set forth on such list individually qualifies as an Immaterial Subsidiary and that all such Subsidiaries in the aggregate do not exceed the limitation set forth in clause (ii) of the definition of the term “Immaterial Subsidiary;” (d) setting forth, in reasonable detail, the calculation of the Senior Secured First Lien Net Leverage Ratio for the most recent period of four consecutive fiscal quarters as of the close of such fiscal year or such fiscal quarter, as applicable; and (e) certifying a list of all Unrestricted Subsidiaries at such time and that each Subsidiary set forth on such list qualifies as an Unrestricted Subsidiary; (4) promptly after the same become publicly available, copies of all periodic and other publicly available reports, proxy statements and, to the extent requested by the Administrative Agent, other materials publicly filed by Holdings, the Borrower or any Restricted Subsidiary with the SEC or, after an initial public offering, distributed to its stockholders generally, as applicable; (5) within 120 days following the end of the fiscal year ending on or about January 30, 2017, and within 90 days following the end of each full fiscal year ended thereafter, a consolidated annual budget for such fiscal year in the form customarily prepared by the Borrower (the “Budget”), which Budget will in each case be accompanied by the statement of a Financial Officer of the Borrower on behalf of the Borrower to the effect that the Budget is based on assumptions believed by the Borrower to be reasonable as of the date of delivery thereof; (6) upon the reasonable request of the Collateral Agent, concurrently with the delivery of the Annual Financial Statements, an updated Perfection Certificate (or, to the extent such request relates to specified information contained in the Perfection Certificate, such information) reflecting all changes since the date of the information most recently received pursuant to this paragraph (6) or Section 5.10; (7) promptly, from time to time, such other information regarding the operations, business affairs and financial condition of Holdings, the Borrower or any Restricted Subsidiary, in each case, as the Administrative Agent may reasonably request (for itself or on behalf of any Lender); and (8) promptly upon request by the Administrative Agent (so long as the following are obtainable using commercially reasonable measures), copies of any documents described in Section 101(k)(1) of ERISA that the Borrower or any of its ERISA Affiliates may request with respect to any Multiemployer Plan; provided that if the Borrower or any of its ERISA Affiliates has not requested such documents from the administrator or sponsor of the applicable Multiemployer Plan, the Borrower or the applicable ERISA Affiliate shall promptly make a request for such documents or notices from such administrator or sponsor and shall provide copies of such documents and notices promptly after receipt thereof. Anything to the contrary notwithstanding, the obligations in clauses (1) and (2) of this Section 5.04 may be satisfied with respect to financial information of the Borrower and the Restricted Subsidiaries by furnishing (1) the applicable financial statements of Holdings (or any other Parent Entity) or (2) the Borrower’s or Holdings’ (or any such other Parent Entity’s), as applicable, Form 10-K or 10-Q, as applicable, filed with the SEC; provided that with respect to each of the foregoing clauses (1) and (2) (a) to the extent such information relates to Holdings (or a Parent Entity), such information is accompanied by consolidating information that explains in reasonable detail the differences between the information relating to Holdings (or such Parent Entity), on the one hand, and the information relating to the Borrower and the Restricted Subsidiaries on a standalone basis, on the other hand, and (b) to the extent such information is in lieu of information required to be provided under Section 5.04(1), such materials are accompanied by a report and opinion of independent public accountants of recognized national standing, or such other accountants as are reasonably acceptable to the Administrative Agent, and accompanied by an opinion of such accountants (which opinion shall not be subject to any “going concern” statement, explanatory note or like qualification or exception (other than a “going concern” statement, explanatory note or like qualification or exception resulting solely from an upcoming maturity date occurring within one year from the time such opinion is delivered or anticipated (but not actual) covenant non-compliance)) (it being understood and agreed that ~~the delivery by~~ if, in compliance with this paragraph, (x) the Borrower provides audited financial statements of ~~quarterly reports~~ Holdings (or any other Parent Entity) and related report and opinion of accountants with respect thereto in lieu of information required to be provided under Section 5.04(1), no such audited financial information, opinion or report shall be required with respect to the Borrower, (y) the Borrower provides unaudited financial statements of Holdings (or any other Parent Entity) in lieu of information required to be provided under Section 5.04(2), no such unaudited financial information shall be required with respect to the Borrower and (z) the Borrower provides a Budget of Holdings and accompanying statement (or any other Parent Entity) in lieu of information required to be provided under Section 5.04(5), no such Budget shall be required with respect to the Borrower; provided that for the avoidance of doubt, with respect to the foregoing clauses (x), (y) and (z) (i) to the extent such information relates to Holdings (or a Parent Entity), such information is accompanied by consolidating information that explains in reasonable detail the differences between the information relating to Holdings (or such Parent Entity), on ~~Form 10~~the one hand, and the information relating to the Borrower and the Restricted Subsidiaries on a standalone basis, on the other hand, and (ii) to the extent such information is in lieu of information required to be provided under Section 5.04(1), such materials are accompanied by a report and opinion of independent public accountants of recognized national standing, or such other accountants as are reasonably acceptable to the Administrative Agent, and accompanied by an opinion of such accountants (which opinion shall not be subject to any “going concern” statement, explanatory note or like qualification or exception (other than a “going concern” statement, explanatory note or like qualification or exception resulting solely from an upcoming maturity date occurring within one year from the time such opinion is delivered or anticipated (but not actual) covenant non-Q compliance). The obligations in clauses (1) and (2) of this Section 5.04 may be satisfied by delivery of financial information of the Borrower and its ~~consolidated~~ Subsidiaries ~~shall satisfy~~ so long as such financial statements include a reasonably detailed presentation, either on the ~~requirements~~ face of the financial statements or in the footnotes thereto, of the financial condition and results of operations of the Borrower and the Restricted Subsidiaries separate from the financial condition and results of operations of the Unrestricted Subsidiaries of the Borrower. Documents required to be delivered pursuant to this Section ~~5.04(b) to the extent such quarterly reports include the information specified herein~~5.04 may be delivered electronically in accordance with Section 10.01(5);.

Appears in 2 contracts

Sources: Term Loan Credit Agreement (PET Acquisition LLC), Term Loan Credit Agreement (PET Acquisition LLC)

Financial Statements, Reports, etc. Furnish to the Administrative Agent (which will promptly furnish such information to the ~~Lenders~~Lenders and L/C Issuers): (a) ~~within~~ Within 90 days (or such later day that Parent is permitted to file a Form 10-K pursuant to the Exchange Act after giving effect to Rule 12b-25 thereunder, but in any event within 105 days) following the end of each fiscal year (commencing with the fiscal year ending December 31, ~~2016~~2018), a consolidated balance sheet and related statements of operations, cash flows and ~~owners~~stockholders’ equity showing the financial position of ~~the Borrower~~ Parent and its ~~Subsidiaries~~ subsidiaries as of the close of such fiscal year and the consolidated results of ~~their~~ its operations during such year and setting forth in comparative form the corresponding figures for the prior fiscal year, which consolidated balance sheet and related statements of operations, cash flows and ~~owners~~stockholders’ equity shall be ~~accompanied by customary management’s discussion and analysis and~~ audited by independent public accountants of recognized national standing and accompanied by an opinion of such accountants (which ~~opinion~~ shall not be qualified as to scope of audit or as to the status of Parent, the Borrower or any Material Subsidiary as a going concern, ~~other than~~ but may contain a going concern or like qualification that is solely ~~with respect to, or resulting solely from,~~ due to an upcoming maturity date ~~under~~ of any ~~series of Indebtedness occurring~~ Facility within one year from the time such opinion is ~~delivered or any potential inability to satisfy a financial maintenance covenant on a future date or in a future period~~delivered) to the effect that such consolidated financial statements fairly present, in all material respects, the financial position and results of operations of ~~the Borrower~~ Parent and its ~~Subsidiaries~~ subsidiaries on a consolidated basis in accordance with GAAP (it being understood that the delivery by ~~the Borrower~~ Parent of annual reports on Form 10-K of ~~the Borrower~~ Parent and its consolidated ~~Subsidiaries~~ subsidiaries shall satisfy the requirements of this Section 5.04(a) to the extent such annual reports include the information specified herein); (b) ~~within~~ Within 45 days ~~after~~ following the end of each of the first three fiscal quarters of each fiscal year (commencing with the fiscal quarter ending ~~June 30~~March 31, ~~2016~~2019), a consolidated balance sheet and related statements of operations and cash flows showing the financial position of ~~the Borrower~~ Parent and its ~~Subsidiaries~~ subsidiaries as of the close of such fiscal quarter and the consolidated results of ~~their~~ its operations during such fiscal quarter and the then-elapsed portion of the fiscal year ~~and, starting with the fiscal quarter ending September 30, 2016,~~ and setting forth in comparative form the corresponding figures for the corresponding periods of the prior fiscal year, all of which shall be in reasonable ~~detail, which consolidated balance sheet and related statements of operations and cash flows shall be accompanied by customary management’s discussion and analysis~~ detail and which consolidated balance sheet and related statements of operations and cash flows shall be certified by a Financial Officer of ~~the Borrower on behalf of the Borrower~~ Parent as fairly presenting, in all material respects, the financial position and results of operations of ~~the Borrower~~ Parent and its ~~Subsidiaries~~ subsidiaries on a consolidated basis in accordance with GAAP (subject to normal year-end audit adjustments and the absence of footnotes) (it being understood that the delivery by ~~the Borrower~~ Parent of quarterly reports on Form 10-Q of ~~the Borrower~~ Parent and its consolidated ~~Subsidiaries~~ subsidiaries shall satisfy the requirements of this Section 5.04(b) to the extent such quarterly reports include the information specified herein);

Appears in 2 contracts

Sources: Credit Agreement (EVERTEC, Inc.), Credit Agreement (EVERTEC, Inc.)

Financial Statements, Reports, etc. Furnish to the Administrative Agent (which will promptly furnish such information to the Lenders): (1) within 120 days following the end of the fiscal year ending on the earlier of (a) on or about January 30, 2016 or (b) the fiscal year ended after the Closing Date, and within 90 days ~~after~~ following the end of each fiscal year ~~(commencing with the fiscal year ending December 31, 2016)~~thereafter, a consolidated balance sheet and related statements of operations, cash flows and owners’ equity showing the financial position of the Borrower and ~~its~~ the Restricted Subsidiaries as of the close of such fiscal year and the consolidated results of ~~their~~ its operations during such fiscal year ~~and~~ and, in each case, starting with the following fiscal year, setting forth in comparative form the corresponding figures for the prior fiscal year, which consolidated balance sheet and related statements of operations, cash flows and owners’ equity ~~shall~~ will be ~~accompanied by customary management’s discussion and analysis and~~ audited by independent public accountants of recognized national ~~standing~~ standing, or such other accountants as are reasonably acceptable to the Administrative Agent, and accompanied by an opinion of such accountants (which opinion shall not be ~~qualified as~~ subject to ~~scope of audit or as to the status of the Borrower or~~ any ~~Material Subsidiary as a~~ “going concern” statement, explanatory note or like qualification or exception (other than ~~solely with respect to~~a “going concern” statement, explanatory note or like qualification or exception resulting solely ~~from,~~ from an upcoming maturity date ~~under any series of Indebtedness~~ occurring within one year from the time such opinion is delivered or ~~any potential inability to satisfy a financial maintenance~~ anticipated (but not actual) covenant ~~on a future date or in a future period~~non-compliance)) to the effect that such consolidated financial statements fairly present, in all material respects, the financial position and results of operations of the Borrower and ~~its~~ the Restricted Subsidiaries on a consolidated basis in accordance with GAAP (it the applicable financial statements delivered pursuant to this clause (1) being ~~understood that~~ the delivery by the Borrower of annual reports on Form 10-K of the Borrower and its consolidated Subsidiaries shall satisfy the requirements of this Section 5.04(a) to the extent such annual reports include the information specified herein“Annual Financial Statements”); (b2) within 60 days following the end of the fiscal quarters ending on or about April 30, 2016 and on or about July 31, 2016, and, thereafter, within 45 days ~~after~~ following the end of each of the first three fiscal quarters of each fiscal ~~year (commencing with the fiscal quarter ending June 30, 2016)~~year, a consolidated balance sheet and related statements of operations and cash flows showing the financial position of the Borrower and ~~its~~ the Restricted Subsidiaries as of the close of such fiscal quarter and the consolidated results of ~~their~~ its operations during such fiscal quarter ~~and~~ and, in each case, the then-elapsed portion of the fiscal year ~~and, starting with the fiscal quarter ending September 30, 2016,~~ and setting forth in comparative form the corresponding figures for the corresponding periods of the prior fiscal year, ~~all of which shall be in reasonable detail,~~ which consolidated balance sheet and related statements of operations and cash flows ~~shall be accompanied by customary management’s discussion and analysis and which consolidated balance sheet and related statements of operations and cash flows shall~~ will be certified by a ~~Financial~~ Responsible Officer of the Borrower on behalf of the Borrower as fairly presenting, in all material respects, the financial position and results of operations of the Borrower and ~~its~~ the Restricted Subsidiaries on a consolidated basis in accordance with ~~GAAP (~~GAAP, subject to normal year-end audit adjustments and the absence of ~~footnotes~~footnotes (the applicable financial statements delivered pursuant to this clause (2) being the “Quarterly Financial Statements” and, together with the Annual Financial Statements, the “Required Financial Statements”); (3) concurrently with any delivery of Required Financial Statements, a certificate of a Financial Officer of the Company: (a) certifying that no Default or Event of Default has occurred and is continuing or, if a Default or Event of Default has occurred and is continuing, specifying the nature and extent thereof and any corrective action taken or proposed to be taken with respect thereto; (b) setting forth in reasonable detail calculations of the Fixed Charge Coverage Ratio for the most recent period of four consecutive fiscal quarters as of the close of the fiscal year or fiscal quarter, as applicable; (c) certifying a list of all Immaterial Subsidiaries, that each Subsidiary set forth on such list individually qualifies as an Immaterial Subsidiary and that all such Subsidiaries in the aggregate do not exceed the limitation set forth in clause (ii) of the definition of the term “Immaterial Subsidiary;” and (d) certifying a list of all Unrestricted Subsidiaries at such time and that each Subsidiary set forth on such list qualifies as an Unrestricted Subsidiary; (4) promptly after the same become publicly available, copies of all periodic and other publicly available reports, proxy statements and, to the extent requested by the Administrative Agent, other materials publicly filed by Holdings, the Borrower or any Restricted Subsidiary with the SEC or, after an initial public offering, distributed to its stockholders generally, as applicable; (5) within 120 days following the end of the fiscal year ending on or about January 30, 2017 and within 90 days following the end of each full fiscal year ended thereafter, a consolidated annual budget for such fiscal year in the form customarily prepared by the Borrower (the “Budget”), which Budget will in each case be accompanied by the statement of a Financial Officer of the Borrower on behalf of the Borrower to the effect that the Budget is based on assumptions believed by the Borrower to be reasonable as of the date of delivery thereof; (6) upon the reasonable request of the Collateral Agent, concurrently with the delivery of the Annual Financial Statements, an updated Perfection Certificate (or, to the extent such request relates to specified information contained in the Perfection Certificate, such information) reflecting all changes since the date of the information most recently received pursuant to this paragraph (6) or Section 5.10; (7) promptly, from time to time, such other information regarding the operations, business affairs and financial condition of Holdings, the Borrower or any Restricted Subsidiary, in each case, as the Administrative Agent may reasonably request (for itself or on behalf of any Lender); (8) promptly upon request by the Administrative Agent (so long as the following are obtainable using commercially reasonable measures), copies of any documents described in Section 101(k)(1) of ERISA that the Borrower or any of its ERISA Affiliates may request with respect to any Multiemployer Plan; provided that if the Borrower or any of its ERISA Affiliates has not requested such documents from the administrator or sponsor of the applicable Multiemployer Plan, the Borrower or the applicable ERISA Affiliate shall promptly make a request for such documents or notices from such administrator or sponsor and shall provide copies of such documents and notices promptly after receipt thereof; and (9) on or before the 15th Business Day of each month from and after the Closing Date, a Borrowing Base Certificate from the Borrower as of the last day of the immediately preceding month, with such supporting materials as the Administrative Agent may reasonably request (which requests may be more frequent with respect to information regarding Qualified Cash); provided that, after the occurrence and during the continuance of a Liquidity Condition or a Designated Event of Default, the Administrative Agent may require the Borrower to deliver the Borrowing Base Certificate more frequently as reasonably determined by the Administrative Agent. Notwithstanding the foregoing, the Administrative Agent may not require the Borrower to deliver a Borrowing Base Certificate more frequently than weekly, and in the case of such weekly reporting the Borrowing Base Certificate will be due on Wednesday of each week (or, if Wednesday is not a Business Day, on the next succeeding Business Day) calculated as of the close of business on Saturday of the immediately preceding calendar week. Anything to the contrary notwithstanding, the obligations in clauses (1) and (2) of this Section 5.04 may be satisfied with respect to financial information of the Borrower and the Restricted Subsidiaries by furnishing (1) the applicable financial statements of Holdings (or any other Parent Entity) or (2) the Borrower’s or Holdings’ (or any such other Parent Entity’s), as applicable, Form 10-K or 10-Q, as applicable, filed with the SEC; provided that with respect to each of the foregoing clauses (1) and (2)(a) to the extent such information relates to Holdings (or a Parent Entity), such information is accompanied by consolidating information that explains in reasonable detail the differences between the information relating to Holdings (or such Parent Entity), on the one hand, and the information relating to the Borrower and the Restricted Subsidiaries on a standalone basis, on the other hand, and (b) to the extent such information is in lieu of information required to be provided under Section 5.04(1), such materials are accompanied by a report and opinion of independent public accountants of recognized national standing, or such other accountants as are reasonably acceptable to the Administrative Agent, and accompanied by an opinion of such accountants (which opinion shall not be subject to any “going concern” statement, explanatory note or like qualification or exception (other than a “going concern” statement, explanatory note or like qualification or exception resulting solely from an upcoming maturity date occurring within one year from the time such opinion is delivered or anticipated (but not actual) covenant non-compliance)) (it being understood and agreed that ~~the delivery by~~ if, in compliance with this paragraph, (x) the Borrower provides audited financial statements of ~~quarterly reports~~ Holdings (or any other Parent Entity) and related report and opinion of accountants with respect thereto in lieu of information required to be provided under Section 5.04(1), no such audited financial information, opinion or report shall be required with respect to the Borrower, (y) the Borrower provides unaudited financial statements of Holdings (or any other Parent Entity) in lieu of information required to be provided under Section 5.04(2), no such unaudited financial information shall be required with respect to the Borrower and (z) the Borrower provides a Budget of Holdings and accompanying statement (or any other Parent Entity) in lieu of information required to be provided under Section 5.04(5), no such Budget shall be required with respect to the Borrower; provided that for the avoidance of doubt, with respect to the foregoing clauses (x), (y) and (z) (i) to the extent such information relates to Holdings (or a Parent Entity), such information is accompanied by consolidating information that explains in reasonable detail the differences between the information relating to Holdings (or such Parent Entity), on ~~Form 10~~the one hand, and the information relating to the Borrower and the Restricted Subsidiaries on a standalone basis, on the other hand, and (ii) to the extent such information is in lieu of information required to be provided under Section 5.04(1), such materials are accompanied by a report and opinion of independent public accountants of recognized national standing, or such other accountants as are reasonably acceptable to the Administrative Agent, and accompanied by an opinion of such accountants (which opinion shall not be subject to any “going concern” statement, explanatory note or like qualification or exception (other than a “going concern” statement, explanatory note or like qualification or exception resulting solely from an upcoming maturity date occurring within one year from the time such opinion is delivered or anticipated (but not actual) covenant non-Q compliance). The obligations in clauses (1) and (2) of this Section 5.04 may be satisfied by delivery of financial information of the Borrower and its ~~consolidated~~ Subsidiaries ~~shall satisfy~~ so long as such financial statements include a reasonably detailed presentation, either on the ~~requirements~~ face of the financial statements or in the footnotes thereto, of the financial condition and results of operations of the Borrower and the Restricted Subsidiaries separate from the financial condition and results of operations of the Unrestricted Subsidiaries of the Borrower. Documents required to be delivered pursuant to this Section ~~5.04(b) to the extent such quarterly reports include the information specified herein~~5.04 may be delivered electronically in accordance with Section 10.01(5);.

Appears in 2 contracts

Sources: Revolving Credit Agreement (PET Acquisition LLC), Revolving Credit Agreement (PET Acquisition LLC)

Financial Statements, Reports, etc. Furnish to the Administrative Agent ~~(which will promptly furnish such information~~ for distribution to ~~the Lenders):~~each Lender: (a) within 90 120 days after the end of each fiscal ~~year (commencing with~~ year, the ~~fiscal year ending December 31, 2016), a~~ consolidated balance sheet and related statements of ~~operations~~comprehensive income, changes in stockholders’ equity and cash flows ~~and owners’ equity~~ showing the financial ~~position~~ condition and results of operations of the Borrower and its consolidated Subsidiaries as of the close of and during such fiscal year ~~and the~~ on a consolidated ~~results of their operations during such year and setting forth in comparative form the corresponding figures for the prior fiscal year~~basis, ~~which consolidated balance sheet and related statements of operations, cash flows and owners’ equity shall be accompanied by customary management’s discussion and analysis and~~ audited by independent certified public accountants of recognized national standing and accompanied by an opinion of such accountants (which ~~opinion~~ shall not be ~~qualified as~~ subject to ~~scope of audit or as to the status of the Borrower or any Material Subsidiary as~~ (i) a “going concern” or like qualification, exception or emphasis (other than ~~solely~~ with respect to, or resulting ~~solely~~ from, (A) an upcoming maturity date ~~under~~ of any ~~series~~ Indebtedness of ~~Indebtedness~~ the Borrower and its Subsidiaries occurring within one year from the time such opinion is ~~delivered or~~ delivered, (B) solely with respect to the Term Facility, any actual breach of the financial maintenance covenant set forth in Section 6.10 or, with respect to any Indebtedness, any potential inability to satisfy a financial maintenance covenant on a future date or in a future ~~period~~period or (C) the activities of Unrestricted Subsidiaries) or (ii) a qualification, exception or emphasis as to the scope of the relevant audit) to the effect that such consolidated financial statements ~~fairly present, in all material respects, the financial position and results of operations of the Borrower and its Subsidiaries on a consolidated basis~~ have been prepared in accordance with GAAP ~~(it being understood that~~ and present fairly in all material respects the ~~delivery by the Borrower~~ consolidated financial position and consolidated results of ~~annual reports on Form 10-K~~ operations, stockholders’ equity and cash flows of the Borrower and its consolidated Subsidiaries in accordance with GAAP consistently applied, together with comparative figures for the immediately preceding fiscal year, together with a “management discussion and analysis of financial condition and result of operations” in reasonably customary form and substance (it being understood that all of the foregoing information may be furnished in the form of a Form 10-K and only the information required by such Form 10-K shall ~~satisfy the requirements of~~ be required by this Section 5.04(a~~) to the extent such annual reports include the information specified herein~~)); (b) within 45 days after the end of each of the first three fiscal quarters of each fiscal ~~year (commencing with~~ year, the ~~fiscal quarter ending June 30, 2016), a~~ consolidated balance sheet and related statements of ~~operations~~ comprehensive income and change in cash flows showing the financial ~~position~~ condition of the Borrower and its consolidated Subsidiaries as of the close of such fiscal quarter and the ~~consolidated~~ results of ~~their~~ operations of the Borrower and its consolidated Subsidiaries during such fiscal quarter and the ~~then-~~then elapsed portion of the fiscal ~~year and~~year, ~~starting with the fiscal quarter ending September 30, 2016, setting forth in~~ and comparative ~~form the corresponding~~ figures for the ~~corresponding~~ same periods of in the ~~prior~~ immediately preceding fiscal year, all of which shall be in reasonable detail, which consolidated balance sheet and related statements of operations and cash flows shall be accompanied by customary management’s discussion and analysis and which consolidated balance sheet and related statements of operations and cash flows shall be certified by a one of its Financial ~~Officer of the Borrower on behalf of the Borrower~~ Officers as fairly ~~presenting,~~ presenting in all material ~~respects,~~ respects the financial ~~position~~ condition and results of operations of the Borrower and its consolidated Subsidiaries on a consolidated basis in accordance with GAAP (consistently applied, subject to normal year-end audit adjustments ~~and the absence of footnotes)~~ (it being understood that all of the ~~delivery by~~ foregoing information may be furnished in the ~~Borrower~~ form of ~~quarterly reports on~~ a Form 10-Q and only the information required by such Form 10-Q shall be required by this Section 5.04(b)); (c) concurrently with any delivery of financial statements under paragraph (a) or (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; (d) concurrently with any delivery of financial statements under paragraph (a) or (b) above, a Compliance Certificate (i) certifying that no Event of Default or Default has occurred or, if such an Event of Default or Default has occurred, specifying the nature and extent thereof and any corrective action taken or proposed to be taken with respect thereto and (ii) setting forth computations in detail reasonably satisfactory to the Administrative Agent demonstrating compliance with the financial maintenance covenant contained in Section 6.10 only to the extent then in effect and, in the case of a certificate delivered with the financial statements required by paragraph (a) above with respect to a fiscal year ending on or after December 31, 2019, setting forth the Borrower’s calculation of Excess Cash Flow; (e) prior to the consummation of a Qualified Public Offering, within 90 days after the end of each fiscal year of the Borrower (beginning with the fiscal year ending December 31, 2018), a detailed consolidated budget for the then-current fiscal year (including a projected consolidated balance sheet and related statements of projected operations and cash flows as of the end of and for such then-current fiscal year and setting forth the assumptions used for purposes of preparing such budget) and, promptly when available, any significant revisions of such budget; (f) promptly after the same become publicly available, copies of all periodic and other reports, proxy statements and other materials filed by Holdings, the Borrower or any other Subsidiary with the Securities and Exchange Commission, or any Governmental Authority succeeding to any or all of the functions of the Securities and Exchange Commission, or with any national securities exchange, or distributed to its ~~consolidated~~ shareholders, as the case may be; (g) promptly after the receipt thereof by Holdings, the Borrower or any other Subsidiary, a copy of any “management letter” received by any such person from its certified public accountants and the management’s response thereto; (h) promptly after the request by any Lender, all documentation and other information that such Lender reasonably requests in order to comply with its ongoing obligations under applicable “know your customer” and anti-money laundering rules and regulations, including the USA PATRIOT Act; (i) promptly after the reasonable request by the Administrative Agent or any Lender, copies of (i) any documents described in Section 101(k)(1) of ERISA that Holdings, the Borrower, the other Restricted Subsidiaries or any of their ERISA Affiliates may request with respect to any Multiemployer Plan and (ii) any notices described in Section 101(l)(1) of ERISA that Holdings, the Borrower, the other Restricted Subsidiaries or any of their ERISA Affiliates may request with respect to any Multiemployer Plan; provided that if Holdings, the Borrower, the other Restricted Subsidiaries or any of their ERISA Affiliates has not requested such documents or notices from the administrator or sponsor of the applicable Multiemployer Plan, Holdings, the Borrower, the other Restricted Subsidiaries or the applicable ERISA Affiliate shall ~~satisfy~~ promptly make a request for such documents or notices from such administrator or sponsor and shall provide copies of such documents and notices promptly after receipt thereof; and (j) promptly, from time to time, (i) such other information regarding the ~~requirements~~ operations, business affairs and financial condition of Holdings, the Borrower or any other Restricted Subsidiary, or compliance with the terms of any Loan Document, and (ii) information and documentation necessary for purposes of compliance with the Beneficial Ownership Regulation, in each case, as the Administrative Agent or any Lender, acting through the Administrative Agent, may reasonably request. Information required to be delivered pursuant to this Section ~~5.04(b)~~ 5.04 shall be deemed to have been delivered if such information, or one or more annual or quarterly reports containing such information, shall have been posted by the Administrative Agent on SyndTrak, IntraLinks or a similar site to which the Lenders have been granted access; provided that upon written request by the Administrative Agent, Holdings shall deliver paper copies of such documents to the ~~extent~~ Administrative Agent for further distribution to each Lender until a written request to cease delivering paper copies is given by the Administrative Agent. Information required to be delivered pursuant to this Section 5.04 may also be delivered by electronic communications pursuant to procedures approved by the Administrative Agent. Each Lender shall be solely responsible for timely accessing posted documents and maintaining its copies of such ~~quarterly reports include the information specified herein);~~documents.

Appears in 2 contracts

Sources: Credit Agreement (AssetMark Financial Holdings, Inc.), Credit Agreement (AssetMark Financial Holdings, Inc.)

Financial Statements, Reports, etc. ~~Furnish~~ Keep adequate records and books of account with respect to its business activities, in which proper entries are made in accordance with GAAP reflecting all financial transactions; and furnish to the Administrative Agent (which ~~will promptly~~ shall furnish ~~such information~~ to ~~the Lenders):~~each Lender: (a) as soon as available, and in any event within 90 105 days after the ~~end~~ close of each fiscal year (commencing with the fiscal year ending December 31, ~~2016~~2014), ~~a consolidated~~ balance ~~sheet~~ sheets as of the end of such fiscal year and the related statements of operations, cash ~~flows~~ flow and ~~owners~~members’ ~~equity showing the financial position~~ surplus for such fiscal year, on a consolidated basis for Holdings and its subsidiaries, which consolidated statements shall be audited and certified (without qualification) by a firm of independent certified public accountants of recognized standing selected by the Borrower and ~~its Subsidiaries as of~~ reasonably acceptable to the ~~close of such fiscal year~~ Administrative Agent (it being agreed that Deloitte & Touche LLP is acceptable to the Administrative Agent), and ~~the consolidated results of their operations during such year and setting~~ shall set forth in comparative form ~~the~~ corresponding figures for the ~~prior~~ preceding fiscal year, ~~which consolidated balance sheet and related statements of operations, cash flows and owners’ equity shall be accompanied by customary management’s~~ together with a “management discussion and ~~analysis~~ analysis” in form consistent with the “management discussion and ~~audited by independent public accountants~~ analysis” delivered in respect of ~~recognized national standing and accompanied by an opinion of such accountants~~ the Existing Notes (which ~~opinion shall not~~ may be qualified as to scope of audit or as to the status of the Borrower or any Material Subsidiary as a going concern, other than solely with respect to, or resulting solely from, an upcoming maturity date under any series of Indebtedness occurring within one year from the time such opinion is delivered or any potential inability to satisfy a financial maintenance covenant on a future date or set forth in a ~~future period) to~~ separate document and not included with the ~~effect that such consolidated~~ audited financial statements fairly present, in all material respects, the financial position and results of operations of the Borrower and its Subsidiaries on a consolidated basis in accordance with GAAP (it being understood that the delivery by the Borrower of annual reports on Form 10-K of the Borrower and its consolidated Subsidiaries shall satisfy the requirements of this Section 5.04(a) to the extent such annual reports include the information specified hereinstatements); (b) within 45 days after the end of each of the first three fiscal quarters of each fiscal ~~year (commencing with the fiscal quarter ending June 30~~year, ~~2016), a~~ its consolidated balance sheet and related statements of ~~operations~~ operations, cash flow and ~~cash flows~~ members’ surplus showing the financial ~~position~~ condition of ~~the Borrower~~ Holdings and its ~~Subsidiaries~~ consolidated subsidiaries as of the close of such fiscal quarter and the ~~consolidated~~ results of ~~their~~ its operations and the operations of such Subsidiaries during such fiscal quarter and the ~~then-~~then elapsed portion of the fiscal ~~year~~ year, and, ~~starting~~ other than with respect to quarterly reports during the remainder of the first fiscal ~~quarter ending September 30~~year after the Closing Date, ~~2016, setting forth in~~ comparative ~~form the corresponding~~ figures for the ~~corresponding~~ same periods of in the ~~prior~~ immediately preceding fiscal year, ~~all of~~ which financial statements shall ~~be in reasonable detail, which consolidated balance sheet and related statements of operations and cash flows~~ have been subject to a SAS 100 review (or other similar review by Holdings’s accountants if otherwise available) or shall ~~be accompanied by customary management’s discussion and analysis and which consolidated balance sheet and related statements of operations and cash flows shall be~~ have been certified by ~~a Financial Officer of the Borrower on behalf of the Borrower~~ Holdings’s chief financial officer as fairly ~~presenting, in all material respects,~~ presenting the financial ~~position~~ condition and results of operations of ~~the Borrower~~ Holdings and its ~~Subsidiaries~~ consolidated subsidiaries on a consolidated basis in accordance with GAAP (consistently applied, subject to normal year-end audit adjustments and the absence of footnotes~~) (it being understood that~~ , together with a “management discussion and analysis” in form consistent with the ~~delivery by the Borrower of quarterly reports on Form 10-Q~~ “management discussion and analysis” delivered in respect of the ~~Borrower~~ Existing Notes (which may be set forth in a separate document and ~~its consolidated Subsidiaries shall satisfy~~ not included with the ~~requirements of this Section 5.04(b~~quarterly financial statements); (c) to the extent furnished to lenders under the Revolving Credit Facility, substantially concurrently with such ~~quarterly~~ furnishing, the financial statements required by Section 4.1(a)(i) of the Revolving Credit Facility; (d) concurrently with the delivery of financial statements under clauses (a) and (b) above, (i) a Compliance Certificate executed by the chief financial officer of the Borrower (A) certifying that no Event of Default or, to the knowledge of the chief financial officer, no Default has occurred or, if such an Event of Default or Default has occurred, specifying the nature and extent thereof and any corrective action taken or proposed to be taken with respect thereto and (B) setting forth computations in reasonable detail satisfactory to the Administrative Agent of the Available Amount (and the application of amounts thereof, if any, during the period covered by such financial statements) and in the case of a certificate delivered with the financial statements required by paragraph (a) above, setting forth the Borrower’s calculation of Excess Cash Flow and (ii) in the case of a certificate delivered with the financial statements required by paragraph (a) above, beginning with the certificate delivered in respect of the fiscal year ending December 31, 2015, a Perfection Certificate Supplement or a certificate of a Financial Officer of the Borrower confirming that there has been no change in such information since the date of the Perfection Certificate or latest Perfection Certificate Supplement delivered pursuant to the Guarantee and Collateral Agreement; (e) not later than 30 days following the receipt thereof, copies of all management letters and other material reports ~~include~~ submitted to Holdings or its subsidiaries by its accountants in connection with such financial statements, if any; (f) not later than 45 days after the beginning of each fiscal year, projections of the Holding’s consolidated balance sheets and related statements of operations and cash flow for the next fiscal year, quarter by quarter; (g) promptly after the sending or filing thereof, copies of (i) any proxy statements, financial statements or reports that any Loan Party or any Restricted Subsidiary has made generally available to its members and (ii) any regular, periodic and special reports or registration statements or prospectuses that any Loan Party or any Restricted Subsidiary files with the U.S. Securities and Exchange Commission or any other Governmental Authority, or any securities exchange; provided, however, that with respect to each of the items to be furnished to the Administrative Agent and the Lenders pursuant to this clause (g), each such item shall be deemed to be so furnished to the extent it is posted to a secure, password-protected website to which the Administrative Agent has been granted access and such Loan Party has provided the Administrative Agent and the Lenders with written notice that such item has been posted; (h) [reserved]; (i) promptly after the request by any Lender, all documentation and other information ~~specified herein~~that such Lender reasonably requests in order to comply with its ongoing obligations under applicable “know your customer” and anti-money laundering rules and regulations, including the USA PATRIOT Act; (j) within 120 days after the beginning of each fiscal year, at the request of the Administrative Agent or of the Required Lenders and, upon reasonable prior notice, hold a telephonic conference call with all Lenders who choose to participate, at the expense of the participating Lenders, at which meeting the financial results of the previous fiscal year, the financial condition of Holdings and its subsidiaries and the projections presented for the current fiscal year of Holdings shall be reviewed; (k) [reserved;] (l) at any time that any of the Borrower’s Subsidiaries is an Unrestricted Subsidiary (other than with respect to ▇▇▇▇ Rental Finance Corp.), then the financial statements required by Sections 5.04(a) and (b) shall attach unaudited consolidating financial statements with respect to such Unrestricted Subsidiary (or, in the case of financial statements required by Section 5.04(a), audited consolidating financial statements if required by GAAP) unless (i) such Unrestricted Subsidiary owns tangible assets that have an aggregate fair market value of less than 2.5% of the Consolidated Tangible Assets as of the last day of the most recent fiscal quarter for which financial statements have been delivered pursuant to Section 5.04(a) or (b) and has revenues that would account for less than 2.5% of the total consolidated revenues of Holdings for the last four fiscal quarters ended as of the last day of the most recent fiscal quarter for which financial statements have been delivered pursuant to Section 5.04(a) or (b) and (ii) taken together, all such Unrestricted Subsidiaries collectively own tangible assets that have an aggregate fair market value of less than 5.0% of the Consolidated Tangible Assets as of the last day of the most recent fiscal quarter for which financial statements have been delivered pursuant to Section 5.04(a) or (b) and collectively have revenue that would account for less than 5.0% of the total consolidated revenues of Holdings for the last four fiscal quarters ended as of the last day of the most recent fiscal quarter for which financial statements have been delivered pursuant to Section 5.04(a) or (b); (m) [reserved]; and (n) such other reports and information (financial or otherwise) as the Administrative Agent may reasonably request from time to time in connection with any Collateral or any Loan Party’s financial condition or business. The Borrower hereby acknowledges and agrees that all financial statements and certificates furnished pursuant to paragraphs (a) and (b) above are hereby deemed to be Borrower Materials suitable for distribution, and to be made available, to Public Lenders as contemplated by the fourth paragraph of Section 9.01 and may be treated by the Administrative Agent and the Lenders as if the same had been marked “PUBLIC” in accordance with such paragraph.

Appears in 2 contracts

Sources: Second Lien Credit Agreement (Neff Corp), Second Lien Credit Agreement (Neff Corp)

Financial Statements, Reports, etc. Furnish to the Administrative Agent (which will promptly furnish such information to the Lenders): (a) within 90 days after the end of each fiscal ~~year (commencing with the fiscal year ending December 31, 2016)~~year, a consolidated balance sheet and related statements of operations, cash flows and owners’ equity showing the financial position of the Borrower and its Subsidiaries as of the close of such fiscal year and the consolidated results of their operations during such year and setting forth in comparative form the corresponding figures for the prior fiscal year, which consolidated balance sheet and related statements of operations, cash flows and owners’ equity shall be accompanied by customary management’s discussion and analysis and audited by independent public accountants of recognized national standing and accompanied by an opinion of such accountants (which opinion shall not be qualified as to scope of audit or as to the status of the Borrower or any Material Subsidiary as a going concern, other than solely with respect to, or resulting solely from, an upcoming maturity date under any series of Indebtedness ~~occurring within one year from the time such opinion is delivered~~ or any potential inability to satisfy a financial maintenance covenant on a future date or in a future period) to the effect that such consolidated financial statements fairly present, in all material respects, the financial position and results of operations of the Borrower and its Subsidiaries on a consolidated basis in accordance with GAAP (it being understood that the delivery by the Borrower of annual reports on Form 10-K (or any successor or comparable form) of the Borrower and its consolidated Subsidiaries shall satisfy the requirements of this Section 5.04(a) to the extent such annual reports include the information specified herein); (b) within 45 60 days after the end of each of the first three fiscal quarters of each fiscal ~~year (commencing with the fiscal quarter ending June 30, 2016)~~year, a consolidated balance sheet and related statements of operations and cash flows showing the financial position of the Borrower and its Subsidiaries as of the close of such fiscal quarter and the consolidated results of their operations during such fiscal quarter and the then-elapsed portion of the fiscal year ~~and, starting with the fiscal quarter ending September 30, 2016,~~ and setting forth in comparative form the corresponding figures for the corresponding periods of the prior fiscal year, all of which shall be in reasonable detail, which consolidated balance sheet and related statements of operations and cash flows shall be accompanied by customary management’s discussion and analysis and which consolidated balance sheet and related statements of operations and cash flows shall be certified by a Financial Officer of the Borrower on behalf of the Borrower as fairly presenting, in all material respects, the financial position and results of operations of the Borrower and its Subsidiaries on a consolidated basis in accordance with GAAP (subject to normal year-end audit adjustments and the absence of footnotes) (it being understood that the delivery by the Borrower of quarterly reports on Form 10-Q (or any successor or comparable form) of the Borrower and its consolidated Subsidiaries shall satisfy the requirements of this Section 5.04(b) to the extent such quarterly reports include the information specified herein);

Appears in 2 contracts

Sources: Incremental Assumption and Amendment Agreement (Rackspace Technology, Inc.), First Lien Credit Agreement (Rackspace Technology, Inc.)

Financial Statements, Reports, etc. Furnish to the Administrative Agent (~~which~~ who will ~~promptly furnish such information~~ distribute to ~~the Lenders~~each Lender): (a) after the Effective Date, within 90 days after the end of each fiscal year (~~commencing with~~ or, in the case of the fiscal year ~~ending December 31~~in which the Effective Date occurs, ~~2016~~120 days), a its consolidated balance sheet and related statements of ~~operations,~~ income and cash flows ~~and owners’ equity~~ showing the financial ~~position~~ condition of the Borrower and its ~~Subsidiaries~~ consolidated subsidiaries as of the close of such fiscal year and the ~~consolidated~~ results of ~~their~~ its operations and the operations of such Persons during such ~~year and setting forth in~~ year, together with comparative ~~form the corresponding~~ figures for the ~~prior~~ immediately preceding fiscal year, ~~which consolidated balance sheet~~ all in reasonable detail and ~~related statements of operations~~prepared in accordance with GAAP, ~~cash flows and owners’ equity shall be accompanied by customary management’s discussion and analysis and~~ all audited by KPMG LLP or other independent public accountants of recognized national standing and accompanied by an opinion of such accountants (which opinion shall ~~not~~ be ~~qualified as to scope of audit~~ without a “going concern” or like qualification or exception and without any qualification or exception as to the ~~status~~ scope of ~~the Borrower or any Material Subsidiary as a going concern,~~ such audit (other than solely with respect to, or solely resulting ~~solely~~ from, an upcoming ~~maturity date~~ Maturity Date under ~~any series of Indebtedness~~ this Agreement occurring within ~~one year~~ twelve months from the time such opinion is ~~delivered or any potential inability to satisfy a financial maintenance covenant on a future date or in a future period~~delivered)) to the effect that such consolidated financial statements fairly ~~present,~~ present in all material ~~respects,~~ respects the financial ~~position~~ condition and results of operations of the Borrower and its ~~Subsidiaries~~ consolidated subsidiaries on a consolidated basis in accordance with GAAP (it being understood that the delivery by the Borrower of annual reports on Form 10-K of the Borrower and its consolidated Subsidiaries shall satisfy the requirements of this Section 5.04(a) to the extent such annual reports include the information specified herein)GAAP; (b) after the Effective Date, within 45 days (or, in the case of the fiscal quarter in which the Effective Date occurs and the first full fiscal quarter ending after the Effective Date, 60 days) after the end of each of the first three fiscal quarters of each fiscal ~~year (commencing with the fiscal quarter ending June 30~~year, ~~2016), a~~ its consolidated balance sheet and related statements of ~~operations~~ income and cash flows showing the financial ~~position~~ condition of the Borrower and its ~~Subsidiaries~~ consolidated subsidiaries as of the close of such fiscal quarter and the ~~consolidated~~ results of ~~their~~ its operations and the operations of such Persons during such fiscal quarter and the ~~then-~~then elapsed portion of the fiscal ~~year and~~year, ~~starting with the~~ and for each fiscal quarter ~~ending September 30~~occurring after the first anniversary of the Effective Date, ~~2016, setting forth in~~ comparative ~~form the corresponding~~ figures for the ~~corresponding~~ same periods of in the ~~prior~~ immediately preceding fiscal year, all of which shall be in reasonable detail, which consolidated balance sheet and related statements of operations and cash flows shall be accompanied by customary management’s discussion and analysis and which consolidated balance sheet and related statements of operations and cash flows shall be certified by a Financial Officer ~~of the Borrower on behalf of the Borrower~~ as fairly ~~presenting,~~ presenting in all material ~~respects,~~ respects the financial ~~position~~ condition and results of operations of the Borrower and its ~~Subsidiaries~~ consolidated subsidiaries on a consolidated basis in accordance with ~~GAAP (~~GAAP, subject to normal year-end audit adjustments and the absence of footnotes; (c) concurrently with any delivery of Section 5.04 Financials, a certificate of a Financial Officer of the Borrower (~~it being understood~~ i) certifying that to such Financial Officer’s knowledge, no Event of Default or Default has occurred and is continuing or, if such an Event of Default or Default has occurred and is continuing, reasonably specifying the nature thereof and (ii) setting forth (x) to the extent applicable, computations in reasonable detail of the Adjusted Consolidated First Lien Leverage Ratio as of the last day of the fiscal quarter or year, as the case may be, covered by such Section 5.04 Financials and demonstrating compliance with Section 6.10 and (y) in the case of a certificate delivered with the financial statements required by paragraph (a) above, setting forth the Borrower’s calculation of Excess Cash Flow; (d) within 90 days after the commencement of each fiscal year of the Borrower that begins after the Effective Date, a detailed consolidated budget for such fiscal year, including a projected consolidated balance sheet and related statements of projected operations and cash flows as of the end of and for such fiscal year and setting forth the material assumptions used for purposes of preparing such budget; (e) simultaneously with the delivery by of the ~~Borrower~~ Section 5.04 Financials, the related consolidating financial statements reflecting the adjustments necessary to eliminate the accounts of ~~quarterly reports on Form 10~~Unrestricted Subsidiaries from such consolidated financial statements (but only to the extent such Unrestricted Subsidiaries would not be considered “minor” under Rule 3-Q 10 of Regulation S-X under the Securities Act); (f) simultaneously with the delivery of the Section 5.04 Financial Statements, management’s discussion and analysis of the important operational and financial developments of the Borrower and its ~~consolidated~~ Restricted Subsidiaries during the respect fiscal year or fiscal quarter, as the case may be; (g) after the request by any Lender (through the Administrative Agent), all documentation and other information that such Lender reasonably requests in order to comply with its ongoing obligations under applicable “know your customer” and anti-money laundering rules and regulations, including the USA PATRIOT Act; (h) promptly, from time to time, such other information regarding the operations, business, legal or corporate affairs and financial condition of the Borrower or any Restricted Subsidiary, or compliance with the terms of any Loan Document, as the Administrative Agent or any Lender (through the Administrative Agent) may reasonably request; (i) concurrently with the delivery of the Pricing Certificate, the Borrower shall ~~satisfy~~ deliver to the ~~requirements~~ Collateral Agent a certificate executed by a Responsible Officer of ~~this Section 5.04(b~~the Borrower attaching updated versions of the Schedules (other than Schedule IV) to the ~~extent~~ Guarantee and Collateral Agreement or in the alternative, setting forth any and all changes to (or confirming that there has been no change in) the information set forth in or contemplated by such Schedules since the date of the most recent certificate delivered pursuant to this paragraph (i); and (j) within the time frame set forth in Section 7.02, on each occasion permitted therein, a Notice of Intent to Cure if a Cure Right will be exercised thereunder. Information required to be delivered pursuant to this Section 5.04 shall be deemed to have been delivered if such information, or one or more annual or quarterly reports ~~include~~ containing such information, shall have been posted by the ~~information specified herein);~~Administrative Agent on a SyndTrak, IntraLinks or similar site to which the Lenders have been granted access or shall be available on the website of the Securities and Exchange Commission at ▇▇▇▇://▇▇▇.▇▇▇.▇▇▇ or on the website of the Borrower. Information required to be delivered pursuant to this Section 5.04 may also be delivered by electronic communications pursuant to procedures approved by the Administrative Agent. Each Lender shall be solely responsible for timely accessing posted documents and maintaining its copies of such documents. Notwithstanding the foregoing, if (i) the Borrower’s financial statements are consolidated with any Parent’s financial statements or (ii) any Parent is subject to periodic reporting requirements of the Securities Exchange Act of 1934 and the Borrower is not, then the requirement to deliver consolidated financial statements of the Borrower and its Restricted Subsidiaries (and the related opinion from independent public accountants) pursuant to Section 5.04(a) and (b) may be satisfied by delivering consolidated financial statements of such Parent (and the related opinion from independent public accountants) accompanied by a schedule showing, in reasonable detail, consolidating adjustments, if any, attributable solely to such Parent and any of their Subsidiaries that are not the Borrower or any of its Restricted Subsidiaries.

Appears in 2 contracts

Sources: Credit Agreement (Ceridian HCM Holding Inc.), Credit Agreement (Ceridian HCM Holding Inc.)

Appears in 2 contracts

Sources: Credit Agreement (Verso Paper Corp.), Credit Agreement (Verso Paper Corp.)

Financial Statements, Reports, etc. Furnish to the Administrative Agent (which will promptly furnish such information to the Lenders): (a1) within 90 105 days ~~after~~ following the end of each fiscal year ended after the Closing Date (~~commencing with the fiscal year ending December 31, 2016~~i), a consolidated balance sheet and related statements of operations, cash flows and owners’ equity showing the financial position of the Borrower and ~~its~~ the Restricted Subsidiaries as of the close of such fiscal year and the consolidated results of ~~their~~ its operations during such fiscal year ~~and~~ and, in each case, starting with the following fiscal year, setting forth in comparative form the corresponding figures for the prior fiscal year, which consolidated balance sheet and related statements of operations, cash flows and owners’ equity ~~shall~~ will be ~~accompanied by customary management’s discussion and analysis and~~ audited by independent public accountants of recognized national ~~standing~~ standing, or such other accountants as are reasonably acceptable to the Administrative Agent, and accompanied by an opinion of such accountants (which opinion shall not be ~~qualified as~~ subject to ~~scope of audit or as to the status of the Borrower or~~ any ~~Material Subsidiary as a~~ “going concern” statement, explanatory note or like qualification or exception (other than ~~solely with respect to~~a “going concern” statement, explanatory note or like qualification or exception resulting solely ~~from,~~ from an upcoming maturity date ~~under any series of Indebtedness~~ occurring within one year from the time such opinion is delivered or ~~any potential inability to satisfy a financial maintenance~~ anticipated (but not actual) covenant ~~on a future date or in a future period~~non-compliance)) to the effect that such consolidated financial statements fairly present, in all material respects, the financial position and results of operations of the Borrower and ~~its~~ the Restricted Subsidiaries on a consolidated basis in accordance with GAAP (it the applicable financial statements delivered pursuant to this clause (1) being ~~understood that~~ the ~~delivery by~~ “Annual Financial Statements”) and (ii) a management’s discussion and analysis of financial condition and results of operations, discussing and analyzing the ~~Borrower~~ results of ~~annual reports on Form 10-K~~ operations of the Borrower ~~and its consolidated Subsidiaries shall satisfy~~ for the ~~requirements of this Section 5.04(a) to the extent~~ period covered by such ~~annual reports include the information specified herein)~~Annual Financial Statements; (b2) within 45 60 days ~~after~~ following the end of each of the first three fiscal quarters of each fiscal ~~year~~ year, (~~commencing with the fiscal quarter ending June 30, 2016),~~ i) a consolidated balance sheet and related statements of operations and cash flows showing the financial position of the Borrower and ~~its~~ the Restricted Subsidiaries as of the close of such fiscal quarter and the consolidated results of ~~their~~ its operations during such fiscal quarter ~~and~~ and, in each case, the then-elapsed portion of the fiscal year ~~and, starting with the fiscal quarter ending September 30, 2016,~~ and setting forth in comparative form the corresponding figures for the corresponding periods of the prior fiscal year, ~~all of which shall be in reasonable detail,~~ which consolidated balance sheet and related statements of operations and cash flows ~~shall be accompanied by customary management’s discussion and analysis and which consolidated balance sheet and related statements of operations and cash flows shall~~ will be certified by a ~~Financial~~ Responsible Officer of the Borrower on behalf of the Borrower as fairly presenting, in all material respects, the financial position and results of operations of the Borrower and ~~its~~ the Restricted Subsidiaries on a consolidated basis in accordance with ~~GAAP (~~GAAP, subject to normal year-end audit adjustments and the absence of footnotes, and (ii) a management’s discussion and analysis of financial condition and results of operations, discussing and analyzing the results of operations of the Borrower for such fiscal quarter (the applicable financial statements delivered pursuant to this clause (2) being the “Quarterly Financial Statements” and, together with the Annual Financial Statements, the “Required Financial Statements”); (3) concurrently with any delivery of Required Financial Statements, a certificate of a Financial Officer of the Company: (a) certifying that no Default or Event of Default has occurred and is continuing or, if a Default or Event of Default has occurred and is continuing, specifying the nature and extent thereof and any corrective action taken or proposed to be taken with respect thereto; (i) setting forth the calculation and uses of the Available Amount for the fiscal period then ended if the Borrower has used the Available Amount for any purpose during such fiscal period; (ii) certifying a list of all Immaterial Subsidiaries, that each Subsidiary set forth on such list individually qualifies as an Immaterial Subsidiary and that all such Subsidiaries in the aggregate do not exceed the limitation set forth in clause (ii) of the definition of the term “Immaterial Subsidiary”; (iii) setting forth, in reasonable detail, the calculation of the Senior Secured First Lien Net Leverage Ratio for the most recent period of four consecutive fiscal quarters as of the close of such fiscal year or such fiscal quarter, as applicable; and (iv) certifying a list of all Unrestricted Subsidiaries at such time and that each Subsidiary set forth on such list qualifies as an Unrestricted Subsidiary; (4) promptly after the same become publicly available, copies of all periodic and other publicly available reports, proxy statements and, to the extent requested by the Administrative Agent, other materials publicly filed by Holdings, the Borrower or any Restricted Subsidiary with the SEC or, after an initial public offering, distributed to its stockholders generally, as applicable; (5) within 105 days following the end of each full fiscal year ended after the Closing Date, a consolidated annual budget for such fiscal year in the form customarily prepared by the Borrower (the “Budget”), which Budget will in each case be accompanied by the statement of a Financial Officer of the Borrower on behalf of the Borrower to the effect that the Budget is based on assumptions believed by the Borrower to be reasonable as of the date of delivery thereof; (6) upon the reasonable request of the Collateral Agent, concurrently with the delivery of the Annual Financial Statements, an updated Perfection Certificate (or, to the extent such request relates to specified information contained in the Perfection Certificate, such information) reflecting all changes since the date of the information most recently received pursuant to this paragraph (6) or Section 5.10; (7) promptly, from time to time, such other information regarding the operations, business affairs and financial condition of Holdings, the Borrower or any Restricted Subsidiary, in each case, as the Administrative Agent may reasonably request (for itself or on behalf of any Lender); and (8) promptly upon request by the Administrative Agent (so long as the following are obtainable using commercially reasonable measures), copies of any documents described in Section 101(k)(1) of ERISA that the Borrower or any of its ERISA Affiliates may request with respect to any Multiemployer Plan; provided that if the Borrower or any of its ERISA Affiliates has not requested such documents from the administrator or sponsor of the applicable Multiemployer Plan, the Borrower or the applicable ERISA Affiliate shall promptly make a request for such documents or notices from such administrator or sponsor and shall provide copies of such documents and notices promptly after receipt thereof. Anything to the contrary notwithstanding, the obligations in clauses (1) and (2) of this Section 5.04 may be satisfied with respect to financial information of the Borrower and the Restricted Subsidiaries by furnishing (1) the applicable financial statements of Holdings (or any other Parent Entity) or (2) the Borrower’s or Holdings’ (or any such other Parent Entity’s), as applicable, Form 10 K or 10 Q, as applicable, filed with the SEC; provided that with respect to each of the foregoing clauses (1) and (2) (a) to the extent such information relates to Holdings (or a Parent Entity), such information is accompanied by consolidating information that explains in reasonable detail the differences between the information relating to Holdings (or such Parent Entity), on the one hand, and the information relating to the Borrower and the Restricted Subsidiaries on a standalone basis, on the other hand, and (b) to the extent such information is in lieu of information required to be provided under Section 5.04(1), such materials are accompanied by a report and opinion of independent public accountants of recognized national standing, or such other accountants as are reasonably acceptable to the Administrative Agent, and accompanied by an opinion of such accountants (which opinion shall not be subject to any “going concern” statement, explanatory note or like qualification or exception (other than a “going concern” statement, explanatory note or like qualification or exception resulting solely from an upcoming maturity date occurring within one year from the time such opinion is delivered or anticipated (but not actual) covenant non-compliance)) (it being understood and agreed that ~~the delivery by~~ if, in compliance with this paragraph, (x) the Borrower provides audited financial statements of ~~quarterly reports~~ Holdings (or any other Parent Entity) and related report and opinion of accountants with respect thereto in lieu of information required to be provided under Section 5.04(1), no such audited financial information, opinion or report shall be required with respect to the Borrower, (y) the Borrower provides unaudited financial statements of Holdings (or any other Parent Entity) in lieu of information required to be provided under Section 5.04(2), no such unaudited financial information shall be required with respect to the Borrower and (z) the Borrower provides a Budget of Holdings and accompanying statement (or any other Parent Entity) in lieu of information required to be provided under Section 5.04(5), no such Budget shall be required with respect to the Borrower; provided that for the avoidance of doubt, with respect to the foregoing clauses (x), (y) and (z) (i) to the extent such information relates to Holdings (or a Parent Entity), such information is accompanied by consolidating information that explains in reasonable detail the differences between the information relating to Holdings (or such Parent Entity), on ~~Form 10~~the one hand, and the information relating to the Borrower and the Restricted Subsidiaries on a standalone basis, on the other hand, and (ii) to the extent such information is in lieu of information required to be provided under Section 5.04(1), such materials are accompanied by a report and opinion of independent public accountants of recognized national standing, or such other accountants as are reasonably acceptable to the Administrative Agent, and accompanied by an opinion of such accountants (which opinion shall not be subject to any “going concern” statement, explanatory note or like qualification or exception (other than a “going concern” statement, explanatory note or like qualification or exception resulting solely from an upcoming maturity date occurring within one year from the time such opinion is delivered or anticipated (but not actual) covenant non-Q compliance)). The obligations in clauses (1) and (2) of this Section 5.04 may be satisfied by delivery of financial information of the Borrower and its ~~consolidated~~ Subsidiaries ~~shall satisfy~~ so long as such financial statements include a reasonably detailed presentation, either on the ~~requirements~~ face of the financial statements or in the footnotes thereto, of the financial condition and results of operations of the Borrower and the Restricted Subsidiaries separate from the financial condition and results of operations of the Unrestricted Subsidiaries of the Borrower. Documents required to be delivered pursuant to this Section ~~5.04(b) to the extent such quarterly reports include the information specified herein~~5.04 may be delivered electronically in accordance with Section 10.01(5);.

Appears in 2 contracts

Sources: Term Loan Credit Agreement (Leslie's, Inc.), Term Loan Credit Agreement (Leslie's, Inc.)

Financial Statements, Reports, etc. ~~Furnish~~ Seller shall deliver, or cause the Parent Guarantor and its subsidiaries to ~~the Administrative Agent (which will promptly furnish such information~~ deliver, to ~~the Lenders):~~Buyer: (a) as soon as available and in any event within 90 forty-five (45) days after the end of each of the first three quarterly fiscal periods of each fiscal year of Parent Guarantor and its consolidated Subsidiaries, the unaudited, consolidated balance sheet of Parent Guarantor and its consolidated Subsidiaries as at the end of such period and the related unaudited, consolidated statements of income and stockholders equity and of cash flows of Parent Guarantor and its consolidated Subsidiaries for such period and the portion of the fiscal year through the end of such period, setting forth in each case in comparative form the figures for the corresponding periods in the previous fiscal year, accompanied by a certificate of a Responsible Officer of Seller, which certificate shall state that said consolidated financial statements fairly present the consolidated financial condition and results of operations of Parent Guarantor and its consolidated Subsidiaries in accordance with GAAP, consistently applied, as at the end of, and for, such period (subject to normal year-end audit adjustments); (b) as soon as available and in any event within ninety (90) days after the end of each fiscal year (of Parent Guarantor, commencing with the fiscal year ending December 31, ~~2016)~~2010, a the consolidated ~~balance sheet and related statements~~ financial statement of ~~operations, cash flows and owners’ equity showing the financial position of the Borrower~~ Parent Guarantor and its consolidated Subsidiaries as of at the ~~close~~ end of such fiscal ~~year and~~ year, prepared in accordance with GAAP, including the consolidated ~~results~~ balance sheets and related consolidated statements of ~~their operations during~~ income and stockholders equity and of cash flows for Parent Guarantor and its consolidated Subsidiaries for such ~~year and~~ year, setting forth in each case in comparative form the ~~corresponding~~ figures for the ~~prior~~ previous fiscal year, ~~which consolidated balance sheet and related statements of operations, cash flows and owners’ equity shall be~~ accompanied by ~~customary management’s discussion and analysis and audited by~~ an opinion thereon of independent certified public accountants of recognized national ~~standing and accompanied by an opinion of such accountants (~~standing, which opinion shall not be qualified as to scope of audit or ~~as to the status of the Borrower or any Material Subsidiary as a~~ going concern, other than solely with respect to, or resulting solely from, an upcoming maturity date under any series of Indebtedness occurring within one year from the time such opinion is delivered or any potential inability to satisfy a financial maintenance covenant on a future date or in a future period) to the effect and shall state that ~~such~~ said annual consolidated financial statements fairly ~~present, in all material respects,~~ present the consolidated financial ~~position~~ condition and results of operations of ~~the Borrower and its Subsidiaries on a consolidated basis in accordance with GAAP (it being understood that the delivery by the Borrower of annual reports on Form 10-K of the Borrower~~ Parent Guarantor and its consolidated Subsidiaries ~~shall satisfy~~ as at the ~~requirements of this Section 5.04(a) to the extent~~ end of, and for, such ~~annual reports include the information specified herein);~~fiscal year in accordance with GAAP (bc) within 45 fifteen (15) days after the end of each ~~of the first three~~ quarterly fiscal ~~quarters~~ period of each fiscal year of Parent Guarantor and its consolidated Subsidiaries, monthly liquidity projections of Parent Guarantor and its consolidated Subsidiaries through the Termination Date, in form reasonably satisfactory to Buyer, (~~commencing~~ d) if generated by Persons other than KBS Debt Holdings, LLC or an affiliate and received by KBS Debt Holdings, LLC or its successor as mezzanine lender under the Senior Mezzanine Loan Agreement, (i) promptly following receipt thereof and in no event later than sixty (60) days following the end of each calendar quarter, unaudited, certified financial statements for each Transaction Asset Obligor under each Transaction Asset that has been conveyed to Buyer under this Agreement, together with property level information, including but not limited to operating statements and occupancy reports, to the extent available after the exercise of commercially reasonable efforts to obtain such information, (ii) a copy of any financial or other report Seller shall receive from the Transaction Asset Obligor with respect to the Transaction Asset within fifteen (15) days after Seller's receipt thereof; and (iii) the Monthly Transaction Asset Statement, solely to the extent required to be delivered pursuant to the definition thereof; within fifteen (15) days following the end of the related calendar month; provided that with respect to information included therein required by third parties pursuant to clause (iv) of the definition of “Monthly Transaction Asset Statement”, within five (5) days after delivery to such third party. (e) following the Lower Tier Entity Foreclosure, within forty-five (45) days after the end of each quarterly fiscal ~~quarter ending June 30~~period of each fiscal year of KBS Acquisition and its consolidated Subsidiaries, ~~2016)~~the unaudited, a consolidated balance sheet of KBS Acquisition and its consolidated Subsidiaries as at the end of such period and the related unaudited, consolidated statements of ~~operations~~ income and stockholders equity and of cash flows ~~showing the financial position~~ of ~~the Borrower~~ KBS Acquisition and its consolidated Subsidiaries ~~as of the close of~~ for such ~~fiscal quarter~~ period and the ~~consolidated results of their operations during such fiscal quarter and the then-elapsed~~ portion of the fiscal year ~~and, starting with~~ through the ~~fiscal quarter ending September 30, 2016~~end of such period, setting forth in each case in comparative form the ~~corresponding~~ figures for the corresponding periods of in the ~~prior~~ previous fiscal year, ~~all~~ accompanied by a certificate of ~~which shall be in reasonable detail~~a Responsible Officer of KBS Acquisition, which certificate shall state that said consolidated ~~balance sheet and related~~ financial statements ~~of operations and cash flows shall be accompanied by customary management’s discussion and analysis and which~~ fairly present the consolidated balance sheet and related statements of operations and cash flows shall be certified by a Financial Officer of the Borrower on behalf of the Borrower as fairly presenting, in all material respects, the financial ~~position~~ condition and results of operations of ~~the Borrower~~ KBS Acquisition and its consolidated Subsidiaries ~~on a consolidated basis~~ in accordance with ~~GAAP~~ GAAP, consistently applied, as at the end of, and for, such period (subject to normal year-end audit ~~adjustments and~~ adjustments); (f) following a Lower Tier Entity Foreclosure, within forty-five (45) days after the ~~absence~~ end of ~~footnotes) (it being understood that the delivery by the Borrower~~ each quarterly fiscal period of ~~quarterly reports on Form 10-Q~~ each fiscal year of ~~the Borrower~~ KBS Acquisition and its consolidated ~~Subsidiaries shall satisfy~~ Subsidiaries, a certificate of a Responsible Officer of KBS Acquisition setting forth the ~~requirements~~ calculation of ~~this Section 5.04(b~~Excess Cash Flow (and the related components thereof) for such period and the application of Excess Cash Flow; (g) within five (5) Business Days after Buyer's request and to the extent such ~~quarterly reports include~~ information or documentation is in the possession of Seller or readily available to Seller, such further information with respect to the operation, assets, liabilities, financial condition or prospects of any real property, the Transaction Asset, and the financial affairs of Seller, any Guarantor, as may be reasonably requested by Buyer, including all business plans prepared by or for Seller or such Parent Guarantor; (h) within five (5) days after the end of each calendar month, a certificate of Seller and Parent Guarantor certifying to compliance with all covenants set forth in the Transaction Documents and setting forth the Liquidity Availability for the related month. (i) within 120 days of KBS Acquisition acquiring control of a property following a Foreclosure, a two-year projected operating budget relating to each such property, including without limitation a description of any tenant improvement requirements relating thereto; (j) as soon as reasonably possible, and in any event within fifteen (15) Business Days after a Responsible Officer of Parent Guarantor knows, or with respect to any Plan or Multiemployer Plan to which Seller or any of its Subsidiaries makes direct contributions, has reason to believe, that any of the events or conditions specified ~~herein~~below with respect to any Plan or Multiemployer Plan has occurred or exists, a statement signed by a senior financial officer of Seller setting forth details respecting such event or condition and the action, if any, that Seller or its ERISA Affiliate proposes to take with respect thereto (and a copy of any report or notice required to be filed with or given to PBGC by Parent Guarantor or an ER1SA Affiliate with respect to such event or condition): (i) any reportable event, as defined in Section 4043(c) of ERISA and the regulations issued thereunder, with respect to a Plan, as to which PBGC has not by regulation waived the requirement of Section 4043(a) of ERISA that it be notified within thirty (30) days of the occurrence of such event (provided that, a failure to meet the minimum funding standard of Section 412 of the Code or Section 302 of ERISA, including without limitation the failure to make on or before its due date a required installment under Section 412(m) of the Code or Section 302(e) of ERISA, shall be a reportable event regardless of the issuance of any waivers in accordance with Section 412(d) of the Code); and any request for a waiver under Section 412(d) of the Code for any Plan; (ii) the distribution under Section 4041(c) of ERISA of a notice of intent to terminate any Plan or any action taken by Seller or any ERISA Affiliate to terminate any Plan; (iii) the institution by PBGC of proceedings under Section 4042 of ERISA for the termination of, or the appointment of a trustee to administer, any Plan, or the receipt by Seller or any ERISA Affiliate of a notice from a Multiemployer Plan that such action has been taken by PBGC with respect to such Multiemployer Plan; (iv) the complete or partial withdrawal from a Multiemployer Plan by Seller or any ERISA Affiliate that results in liability under Section 4201 or 4204 of ERISA (including the obligation to satisfy secondary liability as a result of a purchaser default) or the receipt by Seller or any ERISA Affiliate of notice from a Multiemployer Plan that it is in reorganization or insolvency pursuant to Section 4241 or 4245 of ERISA or that it intends to terminate or has terminated under Section 4041 A of ERISA; (v) the institution of a proceeding by a fiduciary of any Multiemployer Plan against Seller or any ERISA Affiliate to enforce Section 515 of ERISA, which proceeding is not dismissed within thirty (30) days; and (vi) the adoption of an amendment to any Plan that would result in the loss of tax-exempt status of the Plan and trust of which such Plan is a part if Seller or any ERISA Affiliate fails to provide timely security to such Plan if and as required by the provisions of Section 401(a)(29) of the Code or Section 307 of ERISA. Seller will cause Parent Guarantor, to furnish to Buyer, at the time it furnishes each set of financial statements pursuant to paragraphs (a) and (b) above, a certificate of a Responsible Officer of Parent Guarantor to the effect that, to the best of such Responsible Officer's knowledge, Parent Guarantor during such fiscal period or year has observed or performed all of its respective covenants and other agreements, and satisfied every condition, contained in this Agreement and the other Transaction Documents to be observed, performed or satisfied by it, and that such Responsible Officer has obtained no knowledge of any Default, Event of Default or Material Adverse Effect except as specified in such certificate (and, if any Default or Event of Default has occurred and is continuing, describing the same in reasonable detail and describing the action Parent Guarantor has taken or proposes to take with respect thereto).

Appears in 2 contracts

Sources: Master Repurchase Agreement (KBS Real Estate Investment Trust, Inc.), Master Repurchase Agreement (KBS Real Estate Investment Trust, Inc.)

Financial Statements, Reports, etc. Furnish to the Administrative Agent (which will promptly furnish such information to the Lenders): (a) within 90 120 days after the end of each fiscal ~~year (commencing with the fiscal year ending December 31, 2016)~~year, a consolidated balance sheet and related statements of operations, cash flows and owners’ equity showing the financial position of the Borrower and its Subsidiaries and, if different, the Borrower and the Restricted Subsidiaries, in each case as of the close of such fiscal year and the consolidated results of their operations during such year and setting forth in comparative form the corresponding figures for the prior fiscal ~~year, which consolidated balance sheet and related~~ year (or in lieu of such audited financial statements of ~~operations~~the Borrower and the Restricted Subsidiaries, ~~cash flows~~ a detailed reconciliation, reflecting such financial information for the Borrower and ~~owners’ equity shall be accompanied by customary management’s discussion~~ the Restricted Subsidiaries, on the one hand, and ~~analysis~~ the Borrower and the Subsidiaries, on the other hand, reflecting adjustments necessary to eliminate the accounts of Unrestricted Subsidiaries (if any) from such consolidated financial statements), all (except with respect to such reconciliation) audited by independent ~~public~~ accountants of recognized national standing reasonably acceptable to the Administrative Agent and accompanied by an opinion of such accountants (which opinion shall ~~not~~ be ~~qualified as~~ without a “going concern” or like qualification (other than an exception or explanatory paragraph with respect to ~~scope~~ the maturity of ~~audit~~ the Facilities for an opinion delivered in the fiscal year in which such Indebtedness matures) and without any qualification or exception as to the ~~status~~ scope of the Borrower or any Material Subsidiary as a going concern, other than solely with respect to, or resulting solely from, an upcoming maturity date under any series of Indebtedness occurring within one year from the time such ~~opinion is delivered or any potential inability to satisfy a financial maintenance covenant on a future date or in a future period~~audit) to the effect that such consolidated financial statements fairly present, in all material respects, the financial position and results of operations of the Borrower and its Subsidiaries on a consolidated basis in accordance with GAAP (it being understood that the delivery by the Borrower of annual reports on Form 10-K of the Borrower and its consolidated Subsidiaries shall satisfy the requirements of this Section 5.04(a) to the extent such annual reports include the information specified herein)GAAP; (b) within 45 60 days after the end of each of the first three fiscal quarters of each fiscal ~~year (commencing with the fiscal quarter ending June 30, 2016)~~year, a consolidated balance sheet and related statements of operations and cash flows showing the financial position of the Borrower and its Subsidiaries and, if different, the Borrower and the Restricted Subsidiaries, in each case as of the close of such fiscal quarter and the consolidated results of their operations during such fiscal quarter and the then-elapsed portion of the fiscal year ~~and, starting with the fiscal quarter ending September 30, 2016,~~ and setting forth in comparative form the corresponding figures for the corresponding periods of the prior fiscal ~~year~~year (or in lieu of such unaudited financial statements of the Borrower and the Restricted Subsidiaries, a detailed reconciliation, reflecting such financial information for the Borrower and the Restricted Subsidiaries, on the one hand, and the Borrower and the Subsidiaries, on the other hand, reflecting adjustments necessary to eliminate the accounts of Unrestricted Subsidiaries (if any) from such consolidated financial statements), all of which shall be in reasonable detail, which consolidated balance sheet and related statements of operations and cash flows shall be accompanied by customary management’s discussion and analysis and which consolidated balance sheet and related statements of operations and cash flows shall be certified by Crestwood GP or a Financial Officer of the ~~Borrower~~ Borrower, on behalf of the ~~Borrower~~ Borrower, as fairly presenting, in all material respects, the financial position and results of operations of the Borrower and its Subsidiaries on a consolidated basis in accordance with GAAP (subject to normal year-end audit adjustments and the absence of footnotes); (c) concurrently with any delivery of financial statements under (a) or (b) above, a certificate of Crestwood GP or a Financial Officer of the Borrower (i) certifying that no Event of Default or Default has occurred or, if such an Event of Default or Default has occurred, specifying the nature and extent thereof and any corrective action taken or proposed to be taken with respect thereto, (ii) setting forth a computation of the Financial Performance Covenants in detail reasonably satisfactory to the Administrative Agent and (iii) certifying that the Mortgage Requirement is satisfied at the end of the applicable fiscal period; (d) (~~it being understood that~~ i) upon the ~~delivery by~~ consummation of (A) any Permitted Business Acquisition, (B) the acquisition of any Relevant Subsidiary, (C) any Person becoming a Relevant Subsidiary or (D) the contribution to the Borrower of ~~quarterly reports~~ Equity Interests in any Person acquired pursuant to a Group Acquisition, in each case if the aggregate consideration for such transaction (or, in the case of clause (D), such Group Acquisition) exceeds $25.0 million, or upon the reasonable request of the Administrative Agent (but not, in the case of such request, more often than annually), an updated Perfection Certificate (or, to the extent such request relates to specified information contained in the Perfection Certificate, such information) reflecting all changes since the date of the information most recently received pursuant to Section 4.02(e), this Section 5.04(d) or Section 5.10(e) and (ii) concurrently with the delivery of financial statements under Section 5.04(a), a certificate executed by a Responsible Officer of the Borrower certifying compliance with Section 5.02(c) and providing evidence of such compliance, including without limitation copies of any flood hazard determination forms required to be delivered pursuant to Section 5.02(c); (e) promptly, from time to time, such other information regarding the operations, business affairs and financial condition of the Borrower or any of its Relevant Subsidiaries, or compliance with the terms of any Loan Document, or such consolidating financial statements, as in each case the Administrative Agent may reasonably request (for itself or on ~~Form 10-Q~~ behalf of any Lender); and (f) no later than one hundred and twenty (120) days following the first day of each fiscal year of the Borrower, a budget for such fiscal year in form customarily prepared by the Borrower; provided that, if the Holding Company Condition is satisfied as of the date of the relevant financial statements (or in the case of a budget on the first day of the applicable fiscal year), the obligations in clauses (a), (b) and (f) of this Section 5.04 may be satisfied with respect to financial information of the Borrower and ~~its consolidated~~ the Restricted Subsidiaries ~~shall satisfy~~ by furnishing the ~~requirements~~ applicable financial statements of ~~this Section 5.04(b)~~ Crestwood Equity Partners; provided that to the extent such ~~quarterly reports include~~ information relates to Crestwood Equity Partners, the Borrower shall promptly provide to the Administrative Agent, upon request from the Administrative Agent, consolidating or other information that explains in reasonable detail the differences between the information ~~specified herein);~~relating to Crestwood Equity Partners, on the one hand, and the information relating to the Borrower and the Restricted Subsidiaries on a standalone basis, on the other hand; provided further that to the extent any such documents required to be delivered pursuant to Section 5.04 are included in materials filed with the SEC, such documents shall be deemed to have been delivered to the Administrative Agent under this Agreement on the date such documents are made publicly available by the SEC.

Appears in 2 contracts

Sources: Credit Agreement (Crestwood Midstream Partners LP), Credit Agreement (Crestwood Equity Partners LP)

Financial Statements, Reports, etc. ~~Furnish~~ In the case of the Borrower, furnish to the Administrative ~~Agent (~~Agent, which ~~will promptly~~ shall furnish ~~such information~~ to ~~the Lenders):~~each Lender: (a) within 90 days after the end of each fiscal ~~year (commencing with the fiscal year ending December 31~~year, ~~2016), a~~ its consolidated balance sheet and related statements of ~~operations~~income, stockholders’ equity and cash flows ~~and owners’ equity~~ showing the financial ~~position~~ condition of the Borrower and its consolidated Subsidiaries as of the close of such fiscal year and the ~~consolidated~~ results of ~~their~~ its operations and the operations of such Subsidiaries during such ~~year and setting forth in~~ year, together with comparative ~~form the corresponding~~ figures for the ~~prior~~ immediately preceding fiscal year, ~~which consolidated balance sheet and related statements of operations, cash flows and owners’ equity shall be accompanied by customary management’s discussion and analysis and~~ all audited by McGladrey & ▇▇▇▇▇▇, LLP or other independent public accountants of recognized national standing and accompanied by an opinion of such accountants (which opinion shall not ~~be qualified~~ include (i) an explanatory paragraph expressing doubt about the ability of the Borrower and its consolidated Subsidiaries to continue as ~~to scope of audit~~ a going concern or (ii) any qualification or exception as to the ~~status~~ scope of the Borrower or any Material Subsidiary as a going concern, other than solely with respect to, or resulting solely from, an upcoming maturity date under any series of Indebtedness occurring within one year from the time such ~~opinion is delivered or any potential inability to satisfy a financial maintenance covenant on a future date or in a future period~~audit) to the effect that such consolidated financial statements fairly ~~present, in all material respects,~~ present the financial ~~position~~ condition and results of operations of the Borrower and its consolidated Subsidiaries on a consolidated basis in accordance with GAAP (it being understood that the delivery by the Borrower of annual reports on Form 10-K of the Borrower and its consolidated Subsidiaries shall satisfy the requirements of this Section 5.04(a) to the extent such annual reports include the information specified herein)consistently applied; (b) commencing with the fiscal quarter ended March 31, 2011, within 60 days of the end of such fiscal quarter and, thereafter, within 45 days after the end of each of the first three fiscal quarters of each fiscal ~~year (commencing with the fiscal quarter ending June 30~~year, ~~2016), a~~ its consolidated balance sheet and related statements of ~~operations~~ income, stockholders’ equity and cash flows showing the financial ~~position~~ condition of the Borrower and its consolidated Subsidiaries as of the close of such fiscal quarter and the ~~consolidated~~ results of ~~their~~ its operations and the operations of such Subsidiaries during such fiscal quarter and the ~~then-~~then elapsed portion of the fiscal ~~year and~~year, ~~starting with the fiscal quarter ending September 30, 2016, setting forth in~~ and comparative ~~form the corresponding~~ figures for the ~~corresponding~~ same periods of in the ~~prior~~ immediately preceding fiscal year, all of which shall be in reasonable detail, which consolidated balance sheet and related statements of operations and cash flows shall be accompanied by customary management’s discussion and analysis and which consolidated balance sheet and related statements of operations and cash flows shall be certified by a one of its Financial ~~Officer of the Borrower on behalf of the Borrower~~ Officers as fairly ~~presenting, in all material respects,~~ presenting the financial ~~position~~ condition and results of operations of the Borrower and its consolidated Subsidiaries on a consolidated basis in accordance with GAAP (consistently applied, subject to normal year-end audit ~~adjustments~~ adjustments; provided, however, that with respect to the fiscal quarter ending March 31, 2011, the furnished consolidated balance sheets and related statements of income, stockholders’ equity and cash flows shall be those of Checksmart Financial Holdings Corp., shall be delivered together with a “Management’s Discussion and Analysis of Financial Condition and Results of Operations”, with respect to the ~~absence~~ interim financial information contained therein, prepared on a basis substantially consistent with, and with the same level of ~~footnotes~~detail as, the corresponding information included in the Senior Secured Notes Offering Circular or, at the option of the Borrower, the then applicable SEC requirements and shall be certified by a Financial Officer as provided herein; (c) concurrently with any delivery of financial statements under paragraph (a) or (b) of this Section 5.04, a certificate of the accounting firm (in the case of paragraph (a)) or Financial Officer (in the case of paragraph (b)) opining on or certifying such statements (which certificate, when furnished by an accounting firm, may be limited to accounting matters and disclaim responsibility for legal interpretations) (~~it being understood~~ i) certifying that no Event of Default or Default has occurred or, if such an Event of Default or Default has occurred, specifying the ~~delivery~~ nature and extent thereof and any corrective action taken or proposed to be taken with respect thereto and (ii) setting forth computations in reasonable detail satisfactory to the Administrative Agent demonstrating the Leverage Ratio (whether or not compliance with the covenant contained in Section 6.09 is then required); (d) within 90 days after the beginning of each fiscal year of the Borrower, a detailed consolidated budget for such fiscal year (including a projected consolidated balance sheet and related statements of projected operations and cash flows as of the end of and for such fiscal year and setting forth the assumptions used for purposes of preparing such budget) and, promptly when available, any significant revisions of such budget; (e) promptly after the same become publicly available, copies of all periodic and other reports, proxy statements and other materials filed by the Borrower or any Restricted Subsidiary with the Securities and Exchange Commission, or any Governmental Authority succeeding to any or all of ~~quarterly reports on Form 10~~the functions of said Commission, or with any national securities exchange, or distributed to its shareholders, as the case may be; (f) promptly after the receipt thereof by the Borrower or any Subsidiary, a copy of any “management letter” received by any such Person from its certified public accountants and the management’s response thereto; (g) promptly after the request by any Lender, all documentation and other information that such Lender reasonably requests in order to comply with its ongoing obligations under applicable “know your customer” and anti-Q money laundering rules and regulations, including the USA PATRIOT Act; (h) promptly after the request by the Administrative Agent or any Lender, copies of (i) any documents described in Section 101(k)(1) of ERISA that the Borrower or any of its ERISA Affiliates may request with respect to any Multiemployer Plan and (ii) any notices described in Section 101(l)(1) of ERISA that the Borrower or any of its ERISA Affiliates may request with respect to any Multiemployer Plan; provided that if the Borrower or any of its ERISA Affiliates has not requested such documents or notices from the administrator or sponsor of the applicable Multiemployer Plan, the Borrower or the applicable ERISA Affiliate shall promptly make a request for such documents or notices from such administrator or sponsor and shall provide copies of such documents and notices promptly after receipt thereof; and (i) promptly, from time to time, such other information regarding the operations, business affairs and financial condition of the Borrower ~~and its consolidated Subsidiaries shall satisfy~~ or any Subsidiary, or compliance with the ~~requirements~~ terms of ~~this Section 5.04(b) to~~ any Loan Document, as the ~~extent such quarterly reports include the information specified herein);~~Administrative Agent or any Lender may reasonably request.

Appears in 2 contracts

Sources: Revolving Credit Agreement (Reliant Software, Inc.), Revolving Credit Agreement (Community Choice Financial Inc.)

Financial Statements, Reports, etc. Furnish to the Administrative Agent (which will promptly furnish such information to the Lenders): (a) within 90 days after the end of each fiscal year (commencing with the fiscal year ending December 31, ~~2016~~2021), a consolidated balance sheet and related consolidated statements of operations, stockholders’ equity and cash flows ~~and owners’ equity~~ showing the financial position of the ~~Borrower~~ Reporting Entity and its Subsidiaries as of the close of such fiscal year and the consolidated results of their operations during such year and setting forth in comparative form the corresponding figures for the prior fiscal year, which consolidated balance sheet and related statements of operations, stockholders’ equity and cash flows ~~and owners’ equity~~ shall be accompanied by customary management’s discussion and analysis and audited by independent public accountants of recognized national standing and accompanied by an opinion of such accountants (which opinion shall not be qualified as to scope of audit or as to the status of the Borrower or any Material Subsidiary as a going ~~concern~~concern on a consolidated basis, other than ~~solely~~ with respect to, or resulting ~~solely~~ from, an upcoming maturity date under any series of ~~Indebtedness occurring within one year from the time such opinion is delivered~~ indebtedness, any breach of a financial maintenance covenant or any potential inability to satisfy a financial maintenance covenant on a future date or in a future period) to the effect that such consolidated financial statements fairly present, in all material respects, the financial position and results of operations of the ~~Borrower~~ Reporting Entity and its Subsidiaries on a consolidated basis in accordance with GAAP (it being understood that the delivery by the ~~Borrower~~ Reporting Entity of annual reports on Form 10-K (or any successor or comparable form) of the ~~Borrower~~ Reporting Entity and its consolidated Subsidiaries shall satisfy the requirements of this Section 5.04(a) to the extent such annual reports include the information specified herein); (b) within 45 days after the end of each of the first three fiscal quarters of each fiscal year (commencing with the fiscal quarter ending ~~June~~ on September 30, ~~2016~~2021), a condensed consolidated balance sheet and related condensed consolidated statements of operations and cash flows showing the financial position of the ~~Borrower~~ Reporting Entity and its Subsidiaries as of the close of such fiscal quarter and the consolidated results of their operations during such fiscal quarter and the then-elapsed portion of the fiscal year ~~and, starting with the fiscal quarter ending September 30, 2016,~~ and setting forth in comparative form the corresponding figures for the corresponding periods of the prior fiscal year, all of which shall be in reasonable detail, which condensed consolidated balance sheet and related condensed consolidated statements of operations and cash flows shall be accompanied by customary management’s discussion and analysis and ~~which consolidated balance sheet and related statements of operations and cash flows~~ shall be certified by a Financial Officer of the ~~Borrower~~ Reporting Entity on behalf of the ~~Borrower~~ Reporting Entity as fairly presenting, in all material respects, the financial position and results of operations of the ~~Borrower~~ Reporting Entity and its Subsidiaries on a consolidated basis in accordance with GAAP (subject to normal year-end audit adjustments and the absence of footnotes) (it being understood that the delivery by the ~~Borrower~~ Reporting Entity of quarterly reports on Form 10-Q (or any successor or comparable form) of the ~~Borrower~~ Reporting Entity and its consolidated Subsidiaries shall satisfy the requirements of this Section 5.04(b) to the extent such quarterly reports include the information specified herein); provided that, with respect to the Transactions and any acquisition or Investments consummated after the Closing Date, the financial statements delivered pursuant to this clause (b) shall not be required to reflect purchase accounting adjustments relating thereto until the delivery of financial statements under clause (a) above; (c) (x) concurrently with any delivery of financial statements under clause (a) or (b) above, a certificate of a Financial Officer of the Borrower (i) certifying that no Event of Default or Default has occurred since the date of the last certificate delivered pursuant to this Section 5.04(c) or, if such an Event of Default or Default has occurred, specifying the nature and extent thereof and any corrective action taken or proposed to be taken with respect thereto, (ii) commencing with the end of the first full fiscal quarter ending after the Closing Date, setting forth computations in reasonable detail demonstrating compliance with the Financial Covenant and (iii) setting forth the calculation and uses of the Cumulative Credit for the fiscal period then ended if the Borrower shall have used the Cumulative Credit (other than pursuant to clause (a) of the definition of “Cumulative Credit”) for any purpose during such fiscal period and (y) concurrently with any delivery of financial statements under clause (a) above, if the accounting firm is not restricted from providing such a certificate by its policies office, use commercially reasonable efforts to deliver a certificate of the accounting firm opining on or certifying such statements stating whether they obtained knowledge during the course of their examination of such statements of any Default or Event of Default (which certificate may be limited to accounting matters and disclaim responsibility for legal interpretations); (d) promptly after the same become publicly available, copies of all periodic and other publicly available reports, proxy statements and, to the extent requested by the Administrative Agent, other materials filed by Holdings, the Borrower or any of the Subsidiaries with the SEC, or after an initial public offering, distributed to its stockholders generally, as applicable; provided, however, that such reports, proxy statements, filings and other materials required to be delivered pursuant to this clause (d) shall be deemed delivered for purposes of this Agreement when posted to the website of the Borrower or the Borrower (or Holdings or any Parent Entity referred to in Section 5.04(h)) or the website of the SEC; (e) within 90 days (or such later date as the Administrative Agent may agree in its reasonable discretion) after the beginning of each fiscal year (commencing with the fiscal year ending on December 31, 2022), a consolidated annual budget for such fiscal year consisting of a projected consolidated balance sheet of the Borrower and its Subsidiaries as of the end of the following fiscal year and the related consolidated statements of projected cash flow and projected income (collectively, the “Budget”), which Budget shall in each case be accompanied by the statement of a Financial Officer of the Borrower to the effect that the Budget is based on assumptions believed by the Borrower to be reasonable as of the date of delivery thereof;

Appears in 2 contracts

Sources: Credit Agreement (United Parks & Resorts Inc.), Credit Agreement (SeaWorld Entertainment, Inc.)

Financial Statements, Reports, etc. Furnish to the Administrative Agent and, in the case of Section 5.04(f) or (~~which will promptly furnish such information to~~ g), the ~~Lenders):~~applicable Lender: (a) within ~~90 days~~ five Business Days after the ~~end of~~ date in each fiscal year ~~(commencing~~ on which the U.S. Borrower is required to file its Annual Report on Form 10-K with the ~~fiscal year ending December 31, 2016~~SEC (or would be required if the U.S. Borrower is no longer required to file regular and periodic reports with the SEC), a in each case without giving effect to any extension thereof, the audited consolidated balance sheet and related consolidated statements of ~~operations~~income, stockholders’ equity and comprehensive income and cash flows ~~and owners’ equity showing the financial position~~ of the ~~Borrower and~~ U.S. Borrower, showing its ~~Subsidiaries~~ consolidated financial condition as of the close of such fiscal year and the ~~consolidated~~ results of ~~their~~ its operations and the operations of its consolidated subsidiaries during such year and setting forth in each case in comparative form the ~~corresponding~~ figures for the ~~prior~~ previous fiscal year, ~~which consolidated balance sheet and related statements of operations, cash flows and owners’ equity shall be accompanied by customary management’s discussion and analysis and~~ audited by independent public accountants of recognized national standing and accompanied by an opinion of such accountants (which ~~opinion~~ shall not be ~~qualified as~~ subject to ~~scope of audit~~ any “going concern” or like qualification or exception or any qualification or exception as to the ~~status~~ scope of the Borrower or any Material Subsidiary as a going concern, other than solely with respect to, or resulting solely from, an upcoming maturity date under any series of Indebtedness occurring within one year from the time such ~~opinion is delivered or any potential inability to satisfy a financial maintenance covenant on a future date or in a future period~~audit) to the effect that such consolidated financial statements fairly ~~present,~~ present in all material ~~respects,~~ respects the financial ~~position~~ condition and results of operations of the U.S. Borrower and its ~~Subsidiaries~~ consolidated subsidiaries on a consolidated basis in accordance with GAAP (it being understood that the delivery by the Borrower of annual reports on Form 10-K of the Borrower and its consolidated Subsidiaries shall satisfy the requirements of this Section 5.04(a) to the extent such annual reports include the information specified herein)GAAP; (b) within ~~45 days~~ five Business Days after ~~the end of~~ each ~~of the first three fiscal quarters of~~ date in each fiscal year ~~(commencing~~ on which the U.S. Borrower is required to file a Quarterly Report on Form 10-Q with the ~~fiscal quarter ending June 30, 2016~~SEC (or would be required if the U.S. Borrower is no longer required to file regular and periodic reports with the SEC), a in each case without giving effect to any extension thereof, the unaudited consolidated balance ~~sheet~~ sheets and related condensed statements of operations and cash flows ~~showing the financial position~~ of the ~~Borrower and~~ U.S. Borrower, showing its ~~Subsidiaries~~ consolidated financial condition as of the close of such fiscal quarter and the ~~consolidated~~ results of ~~their~~ its operations and the operations of its consolidated subsidiaries during such fiscal quarter and the ~~then-~~then elapsed portion of the fiscal year ~~and, starting with the fiscal quarter ending September 30, 2016,~~ and setting forth in each case in comparative form the ~~corresponding~~ figures for the corresponding ~~periods of~~ period in the ~~prior~~ previous fiscal year, all of which shall be in reasonable detail, which consolidated balance sheet and related statements of operations and cash flows shall be accompanied by customary management’s discussion and analysis and which consolidated balance sheet and related statements of operations and cash flows shall be certified by a one of its Financial ~~Officer of the Borrower on behalf of the Borrower~~ Officers as fairly ~~presenting,~~ presenting in all material ~~respects,~~ respects the financial ~~position~~ condition and results of operations of the U.S. Borrower and its ~~Subsidiaries~~ consolidated subsidiaries on a consolidated basis in accordance with ~~GAAP (~~GAAP, subject to normal year-end audit adjustments and the absence of footnotes; (c) concurrently with any delivery of financial statements under paragraph (~~it being understood~~ a) or (b) above, a certificate in the form of Exhibit G (a “Compliance Certificate”) of a Financial Officer (i) certifying that no Event of Default or Default has occurred or, if such an Event of Default or Default has occurred, specifying the ~~delivery~~ nature and extent thereof and any corrective action taken or proposed to be taken with respect thereto and (ii) setting forth computations in detail reasonably satisfactory to the Agents demonstrating compliance with the covenants contained in Sections 6.10 and 6.11; (d) promptly upon receipt thereof, copies of any audit or other reports delivered to the board of directors of the U.S. Borrower (or the audit committee of such board) by an independent registered public accounting firm in connection with such firm’s audit of the consolidated financial statements of the U.S. Borrower if such reports identify material weaknesses in internal controls over financial reporting of the U.S. Borrower; (e) promptly after the same become publicly available, copies of all periodic and other reports, proxy statements and other materials (other than filings under Section 16 of the Securities Exchange Act of 1934) filed by the U.S. Borrower ~~of quarterly reports on Form 10-Q~~ or any Subsidiary with the SEC, or any Governmental Authority succeeding to any or all of the functions of said Commission, or with any national securities exchange, or distributed to its shareholders, as the case may be, and all press releases; (f) promptly, following a request by any Lender, all documentation and other information that such Lender reasonably requests in order to comply with its ongoing obligations under applicable “know your customer” and Anti-Money Laundering Laws, including the Patriot Act; (g) promptly, following a request by any Lender, an updated organizational chart of the U.S. Borrower and its ~~consolidated Subsidiaries shall satisfy~~ subsidiaries; and (h) promptly, from time to time, such other information regarding the ~~requirements~~ operations, business affairs and financial condition of the Borrowers or any Subsidiary, or compliance with the terms of any Loan Document, as the Applicable Administrative Agent or any Lender may reasonably request. Documents required to be delivered pursuant this Section 5.04 may be delivered electronically and, in the case of Sections 5.04(a), (b) or (e) shall be deemed to have been delivered if such documents, or one or more annual, quarterly or other reports or filings containing such documents (including, in the case of certifications required pursuant to Section 5.04(b), the certifications accompanying any such quarterly report pursuant to Section 302 of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002), (i) shall have been posted or provided a link to on the U.S. Borrower’s website on the Internet at ▇▇▇.▇▇▇▇▇.▇▇▇, (ii) shall be available on the website of the SEC at ▇▇▇▇://▇▇▇.▇▇▇.▇▇▇ or (iii) shall have been posted on the U.S. Borrower’s behalf on SyndTrak or another website, if any, to which each Lender and the Administrative Agents have access (whether a commercial, third-party website or whether sponsored by an Administrative Agent). No Administrative Agent shall have an obligation to request the delivery or to maintain copies of the documents referred to above, and in any event shall have no responsibility to monitor compliance by the U.S. Borrower with any such request for delivery, and each Lender shall be solely responsible for requesting delivery to it or maintaining its copies of such documents. The U.S. Borrower hereby acknowledges that (a) the Agents will make available to the Lenders and the Issuing Banks materials and/or information provided by or on behalf of the Loan Parties hereunder (collectively, the “Borrower Materials”) by posting the Borrower Materials on SyndTrak or another similar electronic system (the “Platform”) and (b) certain of the Lenders may be “public-side” Lenders (i.e., Lenders that do not wish to receive material non-public information with respect to any Loan Party or its securities) (each, a “Public Lender”). If any Borrower Materials are designated by the Loan Parties as “PRIVATE”, such Borrower Materials will not be made available to that portion of the Platform designated “Public Investor,” which is intended to contain only information that (x) prior to any public offering of securities by any Loan Party, is of a type that would be contained in a customary offering circular for an offering of debt securities made in reliance on Rule 144A under the Securities Act or (y) following any public offering of securities by a Loan Party, is either publicly available or not material information (though it may be sensitive and proprietary) with respect to such Loan Party or its securities for purposes of United States Federal and State securities laws. The Agents shall be entitled to treat any Borrower Materials that are not marked “PRIVATE” or “CONFIDENTIAL” as not containing any material non-public information with respect to the Loan Parties or any securities for purposes of United States Federal and state securities laws (provided, however, that to the extent such ~~quarterly reports include the information specified herein~~Borrower Materials constitute Information, they shall be treated as set forth in Section 9.16);.

Appears in 2 contracts

Sources: Syndicated Facility Agreement (Civeo Corp), Syndicated Facility Agreement (Civeo Corp)

Appears in 2 contracts

Sources: Incremental Assumption and Amendment Agreement (ADT Inc.), Incremental Assumption and Amendment Agreement (ADT Inc.)

Financial Statements, Reports, etc. Furnish to the Administrative Agent (which will promptly furnish such information to the Lenders): (1) within 120 days following the end of the fiscal year ending on the earlier of (a) on or about January 30, 2016 or (b) the fiscal year ended after the Closing Date, and within 90 days ~~after~~ following the end of each fiscal year ~~(commencing with the fiscal year ending December 31, 2016)~~thereafter, a consolidated balance sheet and related statements of operations, cash flows and owners’ equity showing the financial position of the Borrower and ~~its~~ the Restricted Subsidiaries as of the close of such fiscal year and the consolidated results of ~~their~~ its operations during such fiscal year ~~and~~ and, in each case, starting with the following fiscal year, setting forth in comparative form the corresponding figures for the prior fiscal year, which consolidated balance sheet and related statements of operations, cash flows and owners’ equity ~~shall~~ will be ~~accompanied by customary management’s discussion and analysis and~~ audited by independent public accountants of recognized national ~~standing~~ standing, or such other accountants as are reasonably acceptable to the Administrative Agent, and accompanied by an opinion of such accountants (which opinion shall not be ~~qualified as~~ subject to ~~scope of audit or as to the status of the Borrower or~~ any ~~Material Subsidiary as a~~ “going concern” statement, explanatory note or like qualification or exception (other than ~~solely with respect to~~a “going concern” statement, explanatory note or like qualification or exception resulting solely ~~from,~~ from an upcoming maturity date ~~under any series of Indebtedness~~ occurring within one year from the time such opinion is delivered or ~~any potential inability to satisfy a financial maintenance~~ anticipated (but not actual) covenant ~~on a future date or in a future period~~non-compliance)) to the effect that such consolidated financial statements fairly present, in all material respects, the financial position and results of operations of the Borrower and ~~its~~ the Restricted Subsidiaries on a consolidated basis in accordance with GAAP (it the applicable financial statements delivered pursuant to this clause (1) being ~~understood that~~ the delivery by the Borrower of annual reports on Form 10-K of the Borrower and its consolidated Subsidiaries shall satisfy the requirements of this Section 5.04(a) to the extent such annual reports include the information specified herein“Annual Financial Statements”); (b2) within 60 days following the end of the fiscal quarters ending on or about April 30, 2016 and on or about July 31, 2016, and, thereafter, within 45 days ~~after~~ following the end of each of the first three fiscal quarters of each fiscal ~~year (commencing with the fiscal quarter ending June 30, 2016)~~year, a consolidated balance sheet and related statements of operations and cash flows showing the financial position of the Borrower and ~~its~~ the Restricted Subsidiaries as of the close of such fiscal quarter and the consolidated results of ~~their~~ its operations during such fiscal quarter ~~and~~ and, in each case, the then-elapsed portion of the fiscal year ~~and, starting with the fiscal quarter ending September 30, 2016,~~ and setting forth in comparative form the corresponding figures for the corresponding periods of the prior fiscal year, ~~all of which shall be in reasonable detail,~~ which consolidated balance sheet and related statements of operations and cash flows ~~shall be accompanied by customary management’s discussion and analysis and which consolidated balance sheet and related statements of operations and cash flows shall~~ will be certified by a ~~Financial~~ Responsible Officer of the Borrower on behalf of the Borrower as fairly presenting, in all material respects, the financial position and results of operations of the Borrower and ~~its~~ the Restricted Subsidiaries on a consolidated basis in accordance with ~~GAAP (~~GAAP, subject to normal year-end audit adjustments and the absence of ~~footnotes~~footnotes (the applicable financial statements delivered pursuant to this clause (2) being the “Quarterly Financial Statements” and, together with the Annual Financial Statements, the “Required Financial Statements”); (3) concurrently with any delivery of Required Financial Statements, a certificate of a Financial Officer of the Company: (a) certifying that no Default or Event of Default has occurred and is continuing or, if a Default or Event of Default has occurred and is continuing, specifying the nature and extent thereof and any corrective action taken or proposed to be taken with respect thereto; (b) setting forth in reasonable detail calculations of the Fixed Charge Coverage Ratio for the most recent period of four consecutive fiscal quarters as of the close of the fiscal year or fiscal quarter, as applicable; (c) certifying a list of all Immaterial Subsidiaries, that each Subsidiary set forth on such list individually qualifies as an Immaterial Subsidiary and that all such Subsidiaries in the aggregate do not exceed the limitation set forth in clause (ii) of the definition of the term “Immaterial Subsidiary;” and (d) certifying a list of all Unrestricted Subsidiaries at such time and that each Subsidiary set forth on such list qualifies as an Unrestricted Subsidiary; (4) promptly after the same become publicly available, copies of all periodic and other publicly available reports, proxy statements and, to the extent requested by the Administrative Agent, other materials publicly filed by Holdings, the Borrower or any Restricted Subsidiary with the SEC or, after an initial public offering, distributed to its stockholders generally, as applicable; (5) within 120 days following the end of the fiscal year ending on or about January 30, 2017 and within 90 days following the end of each full fiscal year ended thereafter, a consolidated annual budget for such fiscal year in the form customarily prepared by the Borrower (the “Budget”), which Budget will in each case be accompanied by the statement of a Financial Officer of the Borrower on behalf of the Borrower to the effect that the Budget is based on assumptions believed by the Borrower to be reasonable as of the date of delivery thereof; (6) upon the reasonable request of the Collateral Agent, concurrently with the delivery of the Annual Financial Statements, an updated Perfection Certificate (or, to the extent such request relates to specified information contained in the Perfection Certificate, such information) reflecting all changes since the date of the information most recently received pursuant to this paragraph (6) or Section 5.10; (7) promptly, from time to time, such other information regarding the operations, business affairs and financial condition of Holdings, the Borrower or any Restricted Subsidiary, in each case, as the Administrative Agent may reasonably request (for itself or on behalf of any Lender); (8) promptly upon request by the Administrative Agent (so long as the following are obtainable using commercially reasonable measures), copies of any documents described in Section 101(k)(1) of ERISA that the Borrower or any of its ERISA Affiliates may request with respect to any Multiemployer Plan; provided that if the Borrower or any of its ERISA Affiliates has not requested such documents from the administrator or sponsor of the applicable Multiemployer Plan, the Borrower or the applicable ERISA Affiliate shall promptly make a request for such documents or notices from such administrator or sponsor and shall provide copies of such documents and notices promptly after receipt thereof; and (9) on or before the 15th Business Day of each month from and after the Closing Date, a Borrowing Base Certificate from the Borrower as of the last day of the immediately preceding month, with such supporting materials as the Administrative Agent may reasonably request (which requests may be more frequent with respect to information regarding Qualified Cash); provided that, after the occurrence and during the continuance of a Liquidity Condition or a Designated Event of Default, the Administrative Agent may require the Borrower to deliver the Borrowing Base Certificate more frequently as reasonably determined by the Administrative Agent. Notwithstanding the foregoing, the Administrative Agent may not require the Borrower to deliver a Borrowing Base Certificate more frequently than weekly, and in the case of such weekly reporting the Borrowing Base Certificate will be due on Wednesday of each week (or, if Wednesday is not a Business Day, on the next succeeding Business Day) calculated as of the close of business on Saturday of the immediately preceding calendar week. Anything to the contrary notwithstanding, the obligations in clauses (1) and (2) of this Section 5.04 may be satisfied with respect to financial information of the Borrower and the Restricted Subsidiaries by furnishing (1) the applicable financial statements of Holdings (or any other Parent Entity) or (2) the Borrower’s or Holdings’ (or any such other Parent Entity’s), as applicable, Form 10-K or 10-Q, as applicable, filed with the SEC; provided that with respect to each of the foregoing clauses (1) and (2)(a) to the extent such information relates to Holdings (or a Parent Entity), such information is accompanied by consolidating information that explains in reasonable detail the differences between the information relating to Holdings (or such Parent Entity), on the one hand, and the information relating to the Borrower and the Restricted Subsidiaries on a standalone basis, on the other hand, and (b) to the extent such information is in lieu of information required to be provided under Section 5.04(1), such materials are accompanied by a report and opinion of independent public accountants of recognized national standing, or such other accountants as are reasonably acceptable to the Administrative Agent, and accompanied by an opinion of such accountants (which opinion shall not be subject to any “going concern” statement, explanatory note or like qualification or exception (other than a “going concern” statement, explanatory note or like qualification or exception resulting solely from an upcoming maturity date occurring within one year from the time such opinion is delivered or anticipated (but not actual) covenant non-compliance)) (it being understood and agreed that ~~the delivery by~~ if, in compliance with this paragraph, (x) the Borrower provides audited financial statements of ~~quarterly reports~~ Holdings (or any other Parent Entity) and related report and opinion of accountants with respect thereto in lieu of information required to be provided under Section 5.04(1), no such audited financial information, opinion or report shall be required with respect to the Borrower, (y) the Borrower provides unaudited financial statements of Holdings (or any other Parent Entity) in lieu of information required to be provided under Section 5.04(2), no such unaudited financial information shall be required with respect to the Borrower and (z) the Borrower provides a Budget of Holdings and accompanying statement (or any other Parent Entity) in lieu of information required to be provided under Section 5.04(5), no such Budget shall be required with respect to the Borrower; provided that for the avoidance of doubt, with respect to the foregoing clauses (x), (y) and (z) (i) to the extent such information relates to Holdings (or a Parent Entity), such information is accompanied by consolidating information that explains in reasonable detail the differences between the information relating to Holdings (or such Parent Entity), on ~~Form 10~~the one hand, and the information relating to the Borrower and the Restricted Subsidiaries on a standalone basis, on the other hand, and (ii) to the extent such information is in lieu of information required to be provided under Section 5.04(1), such materials are accompanied by a report and opinion of independent public accountants of recognized national standing, or such other accountants as are reasonably acceptable to the Administrative Agent, and accompanied by an opinion of such accountants (which opinion shall not be subject to any “going concern” statement, explanatory note or like qualification or exception (other than a “going concern” statement, explanatory note or like qualification or exception resulting solely from an upcoming maturity date occurring within one year from the time such opinion is delivered or anticipated (but not actual) covenant non-Q compliance). The obligations in clauses (1) and (2) of this Section 5.04 may be satisfied by delivery of financial information of the Borrower and its ~~consolidated~~ Subsidiaries ~~shall satisfy~~ so long as such financial statements include a reasonably detailed presentation, either on the ~~requirements~~ face of the financial statements or in the footnotes thereto, of the financial condition and results of operations of the Borrower and the Restricted Subsidiaries separate from the financial condition and results of operations of the Unrestricted Subsidiaries of the Borrower. Documents required to be delivered pursuant to this Section ~~5.04(b) to the extent such quarterly reports include the information specified herein~~5.04 may be delivered electronically in accordance with Section 10.01(5);.

Appears in 2 contracts

Sources: Revolving Credit Agreement (PET Acquisition LLC), Revolving Credit Agreement (PET Acquisition LLC)

Financial Statements, Reports, etc. ~~Furnish~~ In the case of the Borrower, furnish to the Administrative Agent ~~(which will promptly furnish such information~~ for distribution to ~~the Lenders):~~each Lender: (a) within 90 days after the end of each fiscal ~~year (commencing with the fiscal year ending December 31~~year, ~~2016), a~~ its consolidated ~~balance sheet~~ statement of financial condition and related consolidated statements of ~~operations~~income, stockholders’ equity and comprehensive income, and cash flows ~~and owners’ equity~~ showing the consolidated financial position of the Borrower and its consolidated Subsidiaries as of the close of such fiscal year and the consolidated results of ~~their~~ its operations ~~during~~ and the operations of such ~~year and setting forth in~~ Subsidiaries for such fiscal year, together with comparative ~~form the corresponding~~ figures for the ~~prior~~ immediately preceding fiscal year, ~~which consolidated balance sheet and related statements of operations, cash flows and owners’ equity shall be accompanied by customary management’s discussion and analysis and~~ all audited by KPMG LLP or other independent public accountants of recognized national standing and accompanied by an opinion of such accountants (which opinion shall ~~not~~ be ~~qualified as to scope of audit~~ without “going concern” or ~~as to~~ like qualification or exception or any explanatory paragraph expressing doubt about the ~~status~~ ability of the Borrower ~~or any Material Subsidiary~~ and its consolidated subsidiaries to continue as a going concern, ~~other than solely with respect to,~~ and without any qualification or ~~resulting solely from, an upcoming maturity date under any series~~ exception as to the scope of ~~Indebtedness occurring within one year from the time~~ such ~~opinion is delivered or any potential inability to satisfy a financial maintenance covenant on a future date or in a future period~~audit) to the effect that such consolidated financial statements fairly ~~present,~~ present in all material ~~respects,~~ respects the financial ~~position~~ condition and results of operations of the Borrower and its consolidated Subsidiaries on a consolidated basis in accordance with GAAP (consistently applied, together with a customary “management discussion and analysis of financial condition and results of operations” provision; provided that for the fiscal year ended on December 31, 2013, it ~~being~~ is understood and agreed that the ~~delivery~~ Borrower shall also provide a separate consolidated statement of financial condition and related consolidated statements of operations, changes in members’ equity and cash flows with respect to Direct Edge and its subsidiaries, all audited by ~~the Borrower of annual reports on Form 10-K of~~ PricewaterhouseCoopers, and all references in this clause (a) to the Borrower and its ~~consolidated~~ Subsidiaries shall ~~satisfy the requirements of this Section 5.04(a)~~ also be deemed references to ~~the extent~~ Direct Edge and its subsidiaries with respect to such ~~annual reports include the information specified herein)~~financial statements; (b) within 45 (or, in the case of the fiscal quarter ending March 31, 2014, 60) days after the end of each of the first three fiscal quarters of each fiscal ~~year (commencing with the fiscal quarter ending June 30~~year, ~~2016), a~~ its unaudited consolidated ~~balance sheet~~ statement of financial condition and related consolidated statements of ~~operations~~ income and cash flows showing the financial position of the Borrower and its consolidated Subsidiaries as of the close of such fiscal quarter and the ~~consolidated~~ results of ~~their~~ its operations ~~during~~ and the operations of such Subsidiaries during, in the case of such statements of income, such fiscal quarter and the ~~then-~~then elapsed portion of the fiscal ~~year~~ year, and, ~~starting with~~ in the case of such statements of cash flows, the elapsed portion of such fiscal ~~quarter ending September 30~~year, ~~2016, setting forth in~~ and comparative ~~form the corresponding~~ figures for the ~~corresponding~~ same periods of in the ~~prior~~ immediately preceding fiscal year, all of which shall be in reasonable detail, which consolidated balance sheet and related statements of operations and cash flows shall be accompanied by customary management’s discussion and analysis and which consolidated balance sheet and related statements of operations and cash flows shall be certified by a one of its Financial ~~Officer of the Borrower on behalf of the Borrower~~ Officers as fairly ~~presenting,~~ presenting in all material ~~respects,~~ respects the financial ~~position~~ condition and results of operations of the Borrower and its consolidated Subsidiaries on a consolidated basis in accordance with GAAP (consistently applied, subject to normal year-end audit adjustments and the absence of footnotes, together with a customary “management discussion and analysis” provision; provided that for the fiscal quarter ended on March 31, 2014, it is understood and agreed that Direct Edge and its subsidiaries shall be included in such consolidated financial statements only with respect to the period following the Closing Date; (c) concurrently with any delivery of financial statements under paragraph (~~it being understood~~ a) or (b) above, a Compliance Certificate (i) certifying that no Event of Default or Default has occurred and is continuing or, if such an Event of Default or Default has occurred and is continuing, specifying the nature and extent thereof and any corrective action taken or proposed to be taken with respect thereto and (ii) setting forth computations in reasonable detail demonstrating compliance with the covenant contained in Section 6.11 and, in the case of a certificate delivered with the financial statements required by paragraph (a) above for any fiscal year ending on or after December 31, 2014, setting forth the Borrower’s calculation of Excess Cash Flow and attaching a complete schedule of the Inactive Subsidiaries, Broker Dealer Subsidiaries and Registered Securities Exchange Subsidiaries (which schedule shall amend or supplement Schedules 1.01(a) and 1.01(d)); (d) concurrently with any delivery of financial statements under clause (a) above, unless the policies of such accounting firm prohibit the making of such statement at such time, a statement of the accounting firm that reported on such financial statements (which statement may be limited to accounting matters and disclaim responsibility for legal interpretations) confirming that, as of the last day of the immediately preceding fiscal year, in making the examination necessary in connection with such financial statements no knowledge was obtained of any Event of Default with respect to Section 6.11 or, if such knowledge of any such Event of Default or Default was obtained, specifying the extent thereof in reasonable detail; (e) within 45 days after the beginning of each fiscal year of the Borrower (starting with the fiscal year beginning January 1, 2015), a detailed consolidated budget for such fiscal year (including a projected consolidated balance sheet and related statements of projected operations and cash flows as of the end of and for such fiscal year and setting forth the assumptions used for purposes of preparing such budget); (f) if the Borrower becomes a public reporting company, promptly after the same become publicly available, copies of all periodic and other reports, proxy statements and other materials filed by the Borrower with the SEC, or with any national securities exchange, or distributed generally to its shareholders as such, as the case may be; (g) promptly after the receipt thereof by the Borrower or any Subsidiary, a copy of ~~quarterly reports on Form 10~~any “management letter” received by any such Person from its certified public accountants and the management’s response thereto; (h) promptly after the request by any Lender, all documentation and other information that such Lender reasonably requests in order to comply with its ongoing obligations under applicable “know your customer” and anti-Q money laundering rules and regulations, including the USA PATRIOT Act; (i) promptly after the request by the Administrative Agent or any Lender, copies of (i) any documents described in Section 101(k)(1) of ERISA that the Borrower or any of its ERISA Affiliates may request with respect to any Multiemployer Plan and (ii) any notices described in Section 101(l)(1) of ERISA that the Borrower or any of its ERISA Affiliates may request with respect to any Multiemployer Plan; and (j) promptly, from time to time, such other information regarding the operations, business affairs and financial condition of the Borrower ~~and its consolidated Subsidiaries shall satisfy~~ or any Subsidiary, or compliance with the ~~requirements~~ terms of ~~this Section 5.04(b) to~~ any Loan Document, as the ~~extent such quarterly reports include~~ Administrative Agent, at the ~~information specified herein);~~request of any Lender, may reasonably request.

Appears in 2 contracts

Sources: Credit Agreement (BATS Global Markets, Inc.), Credit Agreement (BATS Global Markets, Inc.)

Financial Statements, Reports, etc. Furnish to the Administrative Agent (which will promptly furnish such information to the Lenders): (a) within 90 days after the end of each fiscal year (commencing with the fiscal year ending December 31, ~~2016~~2021), a consolidated balance sheet and related consolidated statements of operations, stockholders’ equity and cash flows ~~and owners’ equity~~ showing the financial position of the ~~Borrower~~ Reporting Entity and its Subsidiaries as of the close of such fiscal year and the consolidated results of their operations during such year and setting forth in comparative form the corresponding figures for the prior fiscal year, which consolidated balance sheet and related statements of operations, stockholders’ equity and cash flows ~~and owners’ equity~~ shall be accompanied by customary management’s discussion and analysis and audited by independent public accountants of recognized national standing and accompanied by an opinion of such accountants (which opinion shall not be qualified as to scope of audit or as to the status of the Borrower or any Material Subsidiary as a going ~~concern~~concern on a consolidated basis, other than ~~solely~~ with respect to, or resulting ~~solely~~ from, an upcoming maturity date under any series of ~~Indebtedness occurring within one year from the time such opinion is delivered~~ indebtedness, any breach of a financial maintenance covenant or any potential inability to satisfy a financial maintenance covenant on a future date or in a future period) to the effect that such consolidated financial statements fairly present, in all material respects, the financial position and results of operations of the ~~Borrower~~ Reporting Entity and its Subsidiaries on a consolidated basis in accordance with GAAP (it being understood that the delivery by the ~~Borrower~~ Reporting Entity of annual reports on Form 10-K (or any successor or comparable form) of the ~~Borrower~~ Reporting Entity and its consolidated Subsidiaries shall satisfy the requirements of this Section 5.04(a) to the extent such annual reports include the information specified herein); (b) within 45 days after the end of each of the first three fiscal quarters of each fiscal year (commencing with the fiscal quarter ending ~~June~~ on September 30, ~~2016~~2021), a condensed consolidated balance sheet and related condensed consolidated statements of operations and cash flows showing the financial position of the ~~Borrower~~ Reporting Entity and its Subsidiaries as of the close of such fiscal quarter and the consolidated results of their operations during such fiscal quarter and the then-elapsed portion of the fiscal year ~~and, starting with the fiscal quarter ending September 30, 2016,~~ and setting forth in comparative form the corresponding figures for the corresponding periods of the prior fiscal year, all of which shall be in reasonable detail, which condensed consolidated balance sheet and related condensed consolidated statements of operations and cash flows shall be accompanied by customary management’s discussion and analysis and ~~which consolidated balance sheet and related statements of operations and cash flows~~ shall be certified by a Financial Officer of the ~~Borrower~~ Reporting Entity on behalf of the ~~Borrower~~ Reporting Entity as fairly presenting, in all material respects, the financial position and results of operations of the ~~Borrower~~ Reporting Entity and its Subsidiaries on a consolidated basis in accordance with GAAP (subject to normal year-end audit adjustments and the absence of footnotes) (it being understood that the delivery by the ~~Borrower~~ Reporting Entity of quarterly reports on Form 10-Q (or any successor or comparable form) of the ~~Borrower~~ Reporting Entity and its consolidated Subsidiaries shall satisfy the requirements of this Section 5.04(b) to the extent such quarterly reports include the information specified herein); provided that, with respect to the Transactions and any acquisition or Investments consummated after the Closing Date, the financial statements delivered pursuant to this clause (b) shall not be required to reflect purchase accounting adjustments relating thereto until the delivery of financial statements under clause (a) above;

Appears in 2 contracts

Sources: Credit Agreement (United Parks & Resorts Inc.), Credit Agreement (SeaWorld Entertainment, Inc.)

Financial Statements, Reports, etc. Furnish to the Administrative Agent (which will promptly furnish such information to the Lenders): (a) within 90 days after the end of each fiscal year (commencing with the first fiscal year ending ~~December 31, 2016~~after the Closing Date), a consolidated balance sheet and related consolidated statements of ~~operations~~income, stockholders’ equity, and cash flows ~~and owners’ equity~~ showing the financial position of ~~the Borrower~~ BGI and its Subsidiaries as of the close of such fiscal year and the consolidated results of their operations during such year and setting forth in comparative form the corresponding figures for the prior fiscal year, which consolidated balance sheet and related consolidated statements of ~~operations~~income, stockholders’ equity, and cash flows ~~and owners’ equity~~ shall be accompanied by customary management’s discussion and analysis and audited by independent public accountants of recognized national standing and accompanied by an opinion of such accountants (which opinion shall not be qualified as to scope of audit or as to the status of ~~the Borrower~~ BGI or any Material Subsidiary as a going concern, other than solely with respect to, or resulting solely from, an upcoming maturity date under any series of Indebtedness incurred under or permitted by this Agreement occurring within one year from the time such opinion is delivered or any potential inability to satisfy a financial maintenance covenant on a future date or in a future period) to the effect that such consolidated financial statements fairly present, in all material respects, the financial position and results of operations of ~~the Borrower~~ BGI and its Subsidiaries on a consolidated basis in accordance with GAAP (it being understood that the delivery by ~~the Borrower~~ BGI of annual reports on Form ~~10-K~~ 10‑K of ~~the Borrower~~ BGI and its consolidated Subsidiaries shall satisfy the requirements of this Section 5.04(a) to the extent such annual reports include the information specified ~~herein~~herein and are delivered within the time period specified above); (b) within 45 60 days after the end of each of the first three fiscal quarters of each fiscal year (commencing with the first fiscal quarter ending ~~June 30, 2016~~after the Closing Date), a consolidated balance sheet and related consolidated statements of ~~operations~~ income and cash flows showing the financial position of ~~the Borrower~~ BGI and its Subsidiaries as of the close of such fiscal quarter and the consolidated results of their operations during such fiscal quarter and the then-elapsed portion of the fiscal year ~~and, starting with the fiscal quarter ending September 30, 2016,~~ and setting forth in comparative form the corresponding figures for the corresponding periods of the prior fiscal year, all of which shall be in reasonable detail, which consolidated balance sheet and related consolidated statements of ~~operations~~ income and cash flows shall be accompanied by customary management’s discussion and analysis and which consolidated balance sheet and related statements of operations and cash flows shall be certified by a Financial Officer of ~~the Borrower~~ BGI on behalf of ~~the Borrower~~ BGI as fairly presenting, in all material respects, the financial position and results of operations of ~~the Borrower~~ BGI and its Subsidiaries on a consolidated basis in accordance with GAAP (subject to normal year-end audit adjustments and the absence of footnotes) (it being understood that the delivery by ~~the Borrower~~ BGI of quarterly reports on Form 10-Q of ~~the Borrower~~ BGI and its consolidated Subsidiaries shall satisfy the requirements of this Section 5.04(b) to the extent such quarterly reports include the information specified ~~herein~~herein and are delivered within the time period specified above); (c) within ten (10) Business Days of any delivery of financial statements under clause (a) or (b) above, a certificate of a Financial Officer of BGI substantially in the form of Exhibit N (i) certifying that no Event of Default or Default has occurred since the date of the last certificate delivered pursuant to this Section 5.04(c) (or since the Closing Date in the case of the first such certificate) or, if such an Event of Default or Default has occurred, specifying the nature and extent thereof and any corrective action taken or proposed to be taken with respect thereto, (ii) commencing with the end of the first full fiscal quarter after the Closing Date, setting forth computations in reasonable detail in a form reasonably satisfactory to the Administrative Agent calculating the Total Net Leverage Ratio and Interest Coverage Ratio demonstrating compliance with the Financial Covenants (if applicable) and (iii) setting forth the calculation and uses of the Available Amount for the fiscal period then ended if BGI shall have used the Available Amount for any purpose during such fiscal period; (d) promptly after the same become publicly available, copies of all periodic and other publicly available reports, proxy statements and, to the extent requested by the Administrative Agent, other materials filed by BGI or any of its Subsidiaries with the SEC, or distributed to its stockholders generally, as applicable; provided, however, that such reports, proxy statements, filings and other materials required to be delivered pursuant to this clause (d) shall be deemed delivered for purposes of this Agreement when posted to the website of BGI or the website of the SEC; (e) [reserved]; (f) [reserved]; and (g) promptly, from time to time, such other customary information regarding the operations, business affairs and financial condition of BGI or any of its Subsidiaries, or compliance with the terms of any Loan Document, as in each case the Administrative Agent may reasonably request (for itself or on behalf of any Lender). BGI acknowledges and agrees that all financial statements furnished pursuant to paragraphs (a), (b) and (d) above are hereby deemed to be Borrower Materials suitable for distribution, and to be made available, to Public Lenders as contemplated by Section 9.17 and may be treated by the Administrative Agent and the Lenders as if the same had been marked “PUBLIC” in accordance with Section 9.17 (unless BGI otherwise notifies the Administrative Agent in writing on or prior to delivery thereof).

Appears in 2 contracts

Sources: Amendment No. 2 (Barnes Group Inc), Credit Agreement (Barnes Group Inc)

Financial Statements, Reports, etc. ~~Furnish~~ In the case of the Borrower, furnish to the Administrative ~~Agent (~~Agent, which ~~will promptly~~ shall furnish ~~such information~~ to ~~the Lenders):~~each Lender: (a) ~~within~~ no later than the date that is the earlier of (i) the date by which the Annual Report on Form 10-K of the Borrower for each fiscal year is required to be filed under the rules and regulations of the SEC and (ii) 90 days after the end of ~~each~~ such fiscal ~~year (commencing with the fiscal year ending December 31~~year, ~~2016), a~~ its consolidated balance ~~sheet~~ sheets and related statements of operations, stockholders’ equity and cash flows ~~and owners’ equity~~ showing the financial ~~position~~ condition of the Borrower and its consolidated Subsidiaries as of the close of such fiscal year and the ~~consolidated~~ results of ~~their~~ its operations and the operations of such Subsidiaries during such ~~year and setting forth in~~ year, together with comparative ~~form the corresponding~~ figures for the ~~prior~~ immediately preceding fiscal year, ~~which consolidated balance sheet and related statements of operations, cash flows and owners’ equity shall be accompanied by customary management’s discussion and analysis and~~ all audited by PricewaterhouseCoopers LLP or other independent public accountants of recognized national standing reasonably acceptable to the Required Lenders and accompanied by an opinion of such accountants (which ~~opinion~~ shall not be qualified ~~as to scope of audit~~ in any material respect (it being agreed that any “going concern” or like qualification or exception or exception as to the ~~status~~ scope of ~~the Borrower or any Material Subsidiary as~~ such audit shall be deemed to be a going concern, other than solely with respect to, or resulting solely from, an upcoming maturity date under any series of Indebtedness occurring within one year from the time such opinion is delivered or any potential inability to satisfy a financial maintenance covenant on a future date or in a future periodmaterial qualification)) to the effect that such consolidated financial statements fairly ~~present,~~ present in all material ~~respects,~~ respects the financial ~~position~~ condition and results of operations of the Borrower and its consolidated Subsidiaries on a consolidated basis in accordance with GAAP ~~(it being understood that the delivery by the Borrower of annual reports on Form 10-K of the Borrower~~ consistently applied, together with a customary “management discussion and ~~its consolidated Subsidiaries shall satisfy the requirements of this Section 5.04(a) to the extent such annual reports include the information specified herein)~~analysis” provision; (b) ~~within 45 days after~~ no later than the ~~end~~ date that is the earlier of (i) the date by which the Quarterly Report on Form 10-Q of the Borrower for each of the first three fiscal quarters of each fiscal year is required to be filed under the rules and regulations of the SEC and (~~commencing with~~ ii) 45 days after the end of such fiscal ~~quarter ending June 30~~quarter, ~~2016), a~~ its consolidated balance ~~sheet~~ sheets and related statements of ~~operations~~ operations, stockholders’ equity and cash flows showing the financial ~~position~~ condition of the Borrower and its consolidated Subsidiaries as of the close of such fiscal quarter and the ~~consolidated~~ results of ~~their~~ its operations and the operations of such Subsidiaries during such fiscal quarter and the ~~then-~~then elapsed portion of the fiscal ~~year~~ year, and, ~~starting~~ other than with respect to quarterly reports during the remainder of the first fiscal ~~quarter ending September 30~~year after the Closing Date, ~~2016, setting forth in~~ comparative ~~form the corresponding~~ figures for the ~~corresponding~~ same periods of in the ~~prior~~ immediately preceding fiscal year, all of which shall be in reasonable detail, which consolidated balance sheet and related statements of operations and cash flows shall be accompanied by customary management’s discussion and analysis and which consolidated balance sheet and related statements of operations and cash flows shall be certified by a one of its Financial ~~Officer of the Borrower on behalf of the Borrower~~ Officers as fairly ~~presenting,~~ presenting in all material ~~respects,~~ respects the financial ~~position~~ condition and results of operations of the Borrower and its consolidated Subsidiaries on a consolidated basis in accordance with GAAP (consistently applied, subject to normal year-end audit ~~adjustments~~ adjustments, together with a customary “management discussion and analysis” provision; (c) concurrently with any delivery of financial statements under paragraph (a) or (b) above, a certificate of a Financial Officer in the ~~absence~~ form of ~~footnotes~~Exhibit H (i) certifying that no Event of Default or Default has occurred or, if such an Event of Default or Default has occurred, specifying the nature and extent thereof and any corrective action taken or proposed to be taken with respect thereto and (~~it being understood~~ ii) setting forth computations in reasonable detail satisfactory to the Administrative Agent demonstrating compliance with the covenants contained in Sections 6.10, 6.11 and 6.12 and, in the case of a certificate delivered with the financial statements required by paragraph (a) above, setting forth the Borrower’s calculation of Excess Cash Flow; (d) concurrently with any delivery of financial statements under paragraph (a) above, a certificate of the accounting firm that reported on such statements (which certificate may be prepared in accordance with professional accounting standards and may be limited to accounting matters and disclaim responsibility for legal interpretations) stating that in performing the audit necessary therefor, no knowledge was obtained of the existence of any Event of Default or Default with respect to Sections 6.10, 6.11 or 6.12 or, if such knowledge was obtained, specifying the existence thereof in reasonable detail; (e) on or prior to each date of delivery by of financial statements under paragraph (a) above, the Borrower shall provide to each Lender a business plan for the following two years, in a form satisfactory to the Administrative Agent; (f) promptly after the same become publicly available, copies of ~~quarterly~~ all reports (excluding, in any event, copies of press releases) which the Borrower sends to its stockholders, and copies of all registration statements, reports on Form 10-K, Form 10-Q or Form 8-K (or, in each case, any successor form) and other material reports which the Borrower or any Subsidiary files with the SEC or any successor or analogous Governmental Authority (other than public offerings of securities under employee benefit plans or dividend reinvestment plans); (g) promptly after the receipt thereof by the Borrower or any Subsidiary, a copy of any “management letter” received by any such person from its certified public accountants and the management’s response thereto; (h) promptly after the request by any Lender, all documentation and other information that such Lender reasonably requests in order to comply with its ongoing obligations under applicable “know your customer” and anti-money laundering rules and regulations, including the Patriot Act; and (i) promptly, from time to time, such other information regarding the operations, business affairs and financial condition of the Borrower ~~and its consolidated Subsidiaries shall satisfy~~ or any Subsidiary, or compliance with the ~~requirements~~ terms of ~~this Section 5.04(b) to~~ any Loan Document, as the ~~extent such quarterly reports include the information specified herein);~~Administrative Agent or any Lender may reasonably request.

Appears in 1 contract

Sources: Term Loan Credit Agreement (King Pharmaceuticals Inc)

Financial Statements, Reports, etc. Furnish to the Administrative Agent (~~which~~ who will ~~promptly furnish such information~~ distribute to ~~the Lenders~~each Lender): (a) within 90 120 days after the end of each fiscal year of the Borrowers, (~~commencing with~~ i) the ~~fiscal year ending December 31, 2016), a~~ Lead Borrower’s consolidated balance sheet and related statements of ~~operations~~income, stockholders’ equity and cash flows ~~and owners’ equity~~ showing the financial ~~position~~ condition of the Lead Borrower and its ~~Subsidiaries~~ consolidated subsidiaries as of the close of such fiscal year and the ~~consolidated~~ results of ~~their~~ its operations and the operations of such Persons during such ~~year and setting forth in~~ year, together with comparative ~~form the corresponding~~ figures for the ~~prior~~ immediately preceding fiscal year, ~~which consolidated balance sheet~~ all in reasonable detail and ~~related statements of operations~~prepared in accordance with GAAP, ~~cash flows and owners’ equity shall be accompanied by customary management’s discussion and analysis and~~ all audited by RSM US LLP or other independent public accountants of recognized national standing and ~~accompanied by~~ (ii) an opinion of such accountants (which opinion shall ~~not~~ be ~~qualified as to scope of audit or as to the status of the Borrower or any Material Subsidiary as~~ without a “going concern, ” or like qualification or exception (other than solely with respect to, or expressly resulting ~~solely~~ from, (i) an upcoming maturity ~~date under any series~~ of ~~Indebtedness occurring within one year from~~ the ~~time such opinion is delivered~~ Term Loans or termination of the Revolving Credit Agreement or (ii) any potential inability to satisfy a any financial maintenance covenant on a future date or in a future period) and without any qualification or exception as to the scope of such audit) to the effect that such consolidated financial statements fairly ~~present, in all material respects,~~ present the financial ~~position~~ condition and results of operations of the ~~Borrower~~ Borrowers and ~~its Subsidiaries~~ their consolidated subsidiaries on a consolidated basis in accordance with GAAP (it being ~~understood~~ agreed that the ~~delivery by~~ furnishing of the ~~Borrower~~ annual report of ~~annual reports~~ Parent on Form 10-K of for such year, as filed with the ~~Borrower and its consolidated Subsidiaries shall~~ SEC, will satisfy the ~~requirements~~ Borrowers’ obligation under clause (i) of ~~this~~ Section 5.04(a~~) to the extent such annual reports include the information specified herein~~); (b) within 45 days after the end of each of the first three fiscal quarters of each fiscal year ~~(commencing with~~ of the ~~fiscal quarter ending June 30~~Borrowers, ~~2016), a~~ the Lead Borrower’s consolidated balance sheet and related statements of ~~operations~~ income, stockholders’ equity and cash flows showing the financial ~~position~~ condition of the Lead Borrower and its ~~Subsidiaries~~ consolidated subsidiaries as of the close of such fiscal quarter and the ~~consolidated~~ results of ~~their~~ its operations and the operations of such Persons during such fiscal quarter and the ~~then-~~then elapsed portion of the fiscal ~~year and~~year, ~~starting with the~~ and for each fiscal ~~quarter ending September 30~~quarter, ~~2016, setting forth in~~ comparative ~~form the corresponding~~ figures for the ~~corresponding~~ same periods of in the ~~prior~~ immediately preceding fiscal year, all of which shall be in reasonable detail, which consolidated balance sheet and related statements of operations and cash flows shall be accompanied by customary management’s discussion and analysis and which consolidated balance sheet and related statements of operations and cash flows shall be certified by a one of its Financial ~~Officer of the Borrower on behalf of the Borrower~~ Officers as fairly ~~presenting,~~ presenting in all material ~~respects,~~ respects the financial ~~position~~ condition and results of operations of the Lead Borrower and its ~~Subsidiaries~~ consolidated subsidiaries on a consolidated basis in accordance with ~~GAAP (~~GAAP, subject to normal year-end audit adjustments and footnote disclosures (it being agreed that the ~~absence~~ furnishing of ~~footnotes~~the quarterly report of Parent on Form 10-Q for such quarter, as filed with the SEC will satisfy the Borrower’s obligation under this Section 5.04(b) with respect to such quarter); (c) concurrently with any delivery of Section 5.04 Financials, a certificate of a Financial Officer of the Borrowers (i) certifying that to such Financial Officer’s knowledge, no Event of Default or Default has occurred and is continuing or, if such an Event of Default or Default has occurred and is continuing, reasonably specifying the nature thereof, and (ii) during any Trigger Period, setting forth computations in reasonable detail necessary for determining compliance by the Borrowers with the provisions of Section 6.11 as of the last day of the fiscal quarter or fiscal year of the Borrower, as the case may be (such certificate, a “Compliance Certificate”). (d) as soon as available, but in any event not later than the fifth Business Day after the 90th day after the commencement of any fiscal year of the Borrowers immediately following a Trigger Year, copies of projected consolidated balance sheet and related statements of income and cash flows of the Borrowers and the Borrowers’ Subsidiaries for such fiscal year, such projections to be accompanied by a certificate of a Financial Officer of the Lead Borrower to the effect that such projections represent a reasonable good faith estimate of future financial performance by the Borrowers (it being understood that such projections, forecasts and other forward looking information are not to be viewed as facts or guarantees of performance and are subject to significant uncertainties and contingencies, many of which are beyond the control of the Borrowers, that actual results may vary from projected results and such variances may be material and that the Borrowers make no representation as to the attainability of such projections, forecasts and other forward looking information or as to whether such projections, forecasts and other forward looking information will be achieved or will materialize); provided that, for the avoidance of doubt, such projection shall in no event be made available to Public Lenders; (e) simultaneously with the delivery by of any Section 5.04 Financials, the ~~Borrower~~ related consolidating financial statements reflecting the adjustments necessary (which may be in footnote form only) to eliminate the accounts of ~~quarterly reports~~ Unrestricted Subsidiaries (if any) from such consolidated financial statements (but only to the extent such Unrestricted Subsidiaries would not be considered “minor” under Rule 3-10 of Regulation S-X under the Securities Act); (f) simultaneously with the delivery of any Section 5.04 Financials, management’s discussion and analysis of the important operational and financial developments of the Borrowers and Borrowers’ Restricted Subsidiaries during the respect fiscal year or fiscal quarter, as the case may be; it being agreed that the furnishing of Parent’s annual report on Form 10-Q K or quarterly report on Form 10-Q, as filed with the SEC, will satisfy the Borrower’s obligations under this Section 5.04(f); (g) after the request by any Lender (through the Administrative Agent), all documentation and other information that such Lender reasonably requests in order to comply with its ongoing obligations under applicable “know your customer” and anti-money laundering rules and regulations, including the USA PATRIOT Act; (h) on or before twenty (20) days after the end of each calendar month, a Borrowing Base Certificate together with such supporting documents in respect thereof reasonably acceptable to the Administrative Agent, prepared as of the close of business on the last Business Day of the previous month then ended; provided that at any time after daily Excess Availability for five (5) or more consecutive Business Days shall be less than the greater of (i) 12.5% of the Line Cap and (ii) $7,500,000 (and continuing until such time as the daily Excess Availability is equal to or exceeds 12.5% of the Line Cap for a period of thirty (30) consecutive Business Days), Borrowing Base Certificates shall instead be delivered on or before the date that is three (3) Business Days following the end of each calendar week, prepared as of the close of business on the last Business Day of the previous week then ended; provided, further that following the occurrence and during the continuance of an Event of Default, Borrowing Base Certificates shall also be delivered at such other times as may be reasonably requested by the Administrative Agent; (i) on or within fifteen (15) days after November 30 of each calendar year, an updated customer list for the Borrowers and their Subsidiaries, which list shall state the customer’s name, mailing address and phone number and shall be certified as true and correct in all material respects by a Financial Officer of the Borrowers; (j) to the extent the Loan Parties engage in Bundled Solutions with customers in the ordinary course of business and collect amounts owing with respect to such Bundled Solutions on behalf of themselves and the applicable leasing partners, the Borrowers shall, at such time when Excess Availability is less than $7,500,000 for five (5) or more consecutive Business Days until such time as Excess Availability is greater than $7,500,000 for thirty consecutive Business Days, list the portion of the cash held in accounts of the Loan Parties subject to a first priority perfected security interest in favor of the Administrative Agent that has been collected on behalf of the applicable leasing partners on each Borrowing Base Certificate delivered under Section 5.04(h), and such portions of cash shall be excluded from the calculation of Excess Availability; and (k) promptly, from time to time, such other information regarding the operations, business, legal or corporate affairs, Collateral, and financial condition of any Loan Party or any Restricted Subsidiary, or compliance with the terms of any Loan Document, as the Administrative Agent or any Lender (through the Administrative Agent) may reasonably request. Notwithstanding the foregoing, the obligations in Sections 5.04(a), (b) and (d) may be satisfied with respect to financial information of the Borrowers and the Restricted Subsidiaries by furnishing the applicable financial statements of Parent. To the extent such information relates to Parent, (x) Parent (and Parent’s subsidiaries other than the Borrowers and their respective Subsidiaries) does not engage in any business or activities or have any properties or liabilities which Holdings is not permitted to engage in or have under the terms and provisions of this Agreement and the other Loan Documents and (y) such information is accompanied by information that explains in reasonable detail the differences between the information relating to Parent (and Parent’s Subsidiaries other than the Borrower and its Subsidiaries), on the one hand, and the information relating to the Borrowers and their respective Subsidiaries on a standalone consolidated ~~Subsidiaries shall satisfy~~ basis, on the ~~requirements of~~ other hand. Information required to be delivered pursuant to this Section ~~5.04(b~~5.04 shall be deemed to have been delivered if such information, or one or more annual or quarterly reports containing such information, shall have been posted by the Administrative Agent on a SyndTrak, IntraLinks or similar site to which the Lenders have been granted access or shall be available (the “Platform”) on the public website of the SEC (i.e., ▇▇▇▇://▇▇▇.▇▇▇.▇▇▇) or on the public website of the Borrowers (i.e., ▇▇▇▇://▇▇▇.▇▇▇▇▇▇▇▇▇▇▇.▇▇▇). Information required to be delivered pursuant to this Section may also be delivered by electronic communications pursuant to procedures approved by the Administrative Agent. Each Lender shall be solely responsible for timely accessing posted documents and maintaining its copies of such documents. The Borrowers hereby acknowledge that (a) the Administrative Agent will make available to the Lenders materials and/or information provided by or on behalf of the Borrowers 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 MNPI, and who may be engaged in investment and other market-related activities with respect to such Persons’ securities. The Borrowers hereby agree that Borrowers will use commercially reasonable efforts to identify that portion of the Borrower Materials that may be distributed to the Public Lenders and that (w) all such Borrower Materials shall be clearly and conspicuously marked “PUBLIC” which, at a minimum, means that the word “PUBLIC” shall appear prominently on the first page thereof, (x) by marking Borrower Materials “PUBLIC,” the Borrowers shall be deemed to have authorized the Administrative Agent and the Lenders to treat such Borrower Materials as not containing any MNPI (although it may be sensitive and proprietary) (provided, however, that to the extent such ~~quarterly reports include~~ Borrower Materials constitute Information (as defined in Section 9.16), they shall be treated as set forth in Section 9.16), (y) all Borrower Materials marked “PUBLIC” are permitted to be made available through a portion of the Platform designated “Public Investor” and (z) the Administrative Agent 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 Investor.” Notwithstanding the foregoing, the following Borrower Materials shall be deemed to be marked “PUBLIC” unless the Borrowers notify the Administrative Agent promptly that any such document may contain MNPI: (i) the Loan Documents, (ii) notification of changes in the terms of the Term Loan Agreement and (iii) all information ~~specified herein~~delivered pursuant to Sections 5.04(a);, (b), (c), (e) and (f). Each Public Lender agrees to cause at least one individual at or on behalf of such Public Lender to at all times have selected the “Private Side Information” or similar designation on the content declaration screen of the Platform in order to enable such Public Lender or its delegate, in accordance with such Public Lender’s compliance procedures and applicable law, including United States Federal and state securities laws, to make reference to Communications that are not made available through the “Public Side Information” portion of the Platform and that may contain MNPI. It is understood and agreed that the Administrative Agent shall provide each Lender with a copy of any appraisal and field examination report received by the Administrative Agent, which shall be marked as containing “Private Side Information”.

Appears in 1 contract

Sources: Revolving Loan Credit Agreement (ConvergeOne Holdings, Inc.)

Financial Statements, Reports, etc. ~~Furnish~~ In the case of Holdings, furnish to the Administrative Agent ~~(which will promptly furnish such information~~ for distribution to ~~the Lenders):~~each Lender: (a) within 90 days after the end of each fiscal ~~year (commencing~~ year, beginning with the fiscal year ~~ending~~ ended December 31, ~~2016)~~2014, a its consolidated balance sheet and related consolidated statements of ~~operations~~operations and comprehensive income, stockholders’ equity and cash flows ~~and owners’ equity~~ showing the consolidated financial ~~position~~ condition of ~~the Borrower~~ Holdings and its consolidated Subsidiaries as of the close of such fiscal year and the consolidated results of ~~their~~ its operations and the operations of such Subsidiaries during such ~~year and setting forth in~~ fiscal year, together with comparative ~~form the corresponding~~ figures for the ~~prior~~ immediately preceding fiscal year, ~~which consolidated balance sheet and related statements of operations, cash flows and owners’ equity shall be accompanied by customary management’s discussion and analysis and~~ all audited by BDO USA LLP or any other independent registered public accountants of recognized national standing and accompanied by an opinion of such accountants (which opinion shall ~~not~~ be ~~qualified as to scope of audit~~ without a “going concern” or ~~as to the status of the Borrower~~ like qualification or exception or any ~~Material Subsidiary~~ explanatory paragraph expressing doubt about the ability of Holdings and its consolidated Subsidiaries to continue as a going concern, ~~other than solely with respect to,~~ and without any qualification or ~~resulting solely from, an upcoming maturity date under any series~~ exception as to the scope of ~~Indebtedness occurring within one year from the time~~ such ~~opinion is delivered or any potential inability to satisfy a financial maintenance covenant on a future date or in a future period~~audit) to the effect that such consolidated financial statements fairly ~~present,~~ present in all material ~~respects,~~ respects the financial ~~position~~ condition and results of operations of ~~the Borrower~~ Holdings and its consolidated Subsidiaries on a consolidated basis in accordance with GAAP ~~(it being understood that the delivery by the Borrower~~ consistently applied, together with a customary “management discussion and analysis of ~~annual reports on Form 10-K~~ financial condition and results of ~~the Borrower and its consolidated Subsidiaries shall satisfy the requirements of this Section 5.04(a) to the extent such annual reports include the information specified herein)~~operations” narrative; (b) within 45 days after the end of each of the first three fiscal quarters of each fiscal ~~year (commencing~~ year, beginning with the fiscal quarter ending ~~June 30~~March 31, ~~2016)~~2014, a its unaudited consolidated balance sheet and related statements of operations and comprehensive income, stockholders’ equity and cash flows showing the financial ~~position~~ condition of ~~the Borrower~~ Holdings and its consolidated Subsidiaries as of the close of such fiscal quarter and the ~~consolidated~~ results of ~~their~~ its operations and the operations of such Subsidiaries during such fiscal quarter and the ~~then-~~then elapsed portion of the applicable fiscal ~~year and~~year, ~~starting with the fiscal quarter ending September 30, 2016, setting forth in~~ and comparative ~~form the corresponding~~ figures for the ~~corresponding~~ same periods of in the ~~prior~~ immediately preceding fiscal year, all of which shall be in reasonable detail, which consolidated balance sheet and related statements of operations and cash flows shall be accompanied by customary management’s discussion and analysis and which consolidated balance sheet and related statements of operations and cash flows shall be certified by a one of its Financial ~~Officer of the Borrower on behalf of the Borrower~~ Officers as fairly ~~presenting, in all material respects,~~ presenting the financial ~~position~~ condition and results of operations of ~~the Borrower~~ Holdings and its consolidated Subsidiaries on a consolidated basis in accordance with GAAP (consistently applied, subject to normal year-end audit adjustments and the absence of footnotes, together with a customary “management discussion and analysis” narrative; (c) concurrently with any delivery of financial statements under paragraph (~~it being understood~~ a) or (b) above, a Compliance Certificate (i) certifying that no Event of Default or Default has occurred or, if such an Event of Default or Default has occurred, specifying the nature and extent thereof and any corrective action taken or proposed to be taken with respect thereto and (ii) setting forth reasonably detailed calculations of the Total Leverage Ratio and the Secured Leverage Ratio as of the end of and for the period covered by such financial statements (and demonstrating compliance with the Financial Covenant if the Financial Covenant shall then be applicable) and, in the case of a certificate delivered with the financial statements required by paragraph (a) above, setting forth a reasonably detailed calculation of Excess Cash Flow and the Available Basket and attaching a complete schedule of the Inactive Subsidiaries; (d) concurrently with the delivery of financial statements under clause (a) or (b) above, (i) such financial statements (in substantially the same form) prepared on the basis of consolidating the accounts of Holdings, the Borrower and the other Restricted Subsidiaries and treating the Unrestricted Subsidiaries as if they were not consolidated with Holdings and otherwise eliminating all accounts of Unrestricted Subsidiaries, and (ii) a certificate of a Financial Officer of Holdings stating that such financial statements accurately reflect all adjustments necessary to treat the Unrestricted Subsidiaries as if they were not consolidated with Holdings and to otherwise eliminate all accounts of the Unrestricted Subsidiaries and reflect no other adjustments from the related GAAP financial statements (except as otherwise disclosed in such financial statements); (e) within 90 days after the beginning of each fiscal year of Holdings (starting with the fiscal year beginning January 1, 2015), a detailed consolidated budget for such fiscal year (including a projected consolidated balance sheet and related statements of projected operations and cash flows as of the end of and for such fiscal year and setting forth the assumptions used for purposes of preparing such budget); (f) promptly after the same become publicly available, copies of all periodic and other reports, proxy statements and other materials filed by Holdings, the Borrower or any other Restricted Subsidiary with the SEC, or with any national securities exchange, or distributed generally to its shareholders as such, as the case may be; (g) promptly after the receipt thereof by Holdings, the Borrower or any other Restricted Subsidiary, a copy of any “management letter” received by any such Person from its certified public accountants and the management’s response thereto; (h) promptly after the request by any Lender, all documentation and other information that such Lender reasonably requests in order to comply with its ongoing obligations under applicable “know your customer” and anti-money laundering rules and regulations, including the USA PATRIOT Act; (i) promptly after the request by the Administrative Agent or any Lender, copies of (i) any documents described in Section 101(k)(1) of ERISA that the ~~delivery~~ Borrower may have requested from to any Multiemployer Plan within the twenty-four (24) month period preceding such request by the Administrative Agent; provided that with regard to (i) documents or notices Borrower has not requested from the administrator or sponsor of ~~quarterly reports~~ the applicable Multiemployer Plan or (ii) documents or notices described in Section 101(k)(1) of ERISA that Borrower’s ERISA Affiliates may request with respect to any Multiemployer Plan, in each case within the twenty-four (24) month period preceding such request by the Administrative Agent, the Borrower shall promptly make a request for such documents or notices from such administrator or sponsor and shall provide copies of such documents and notices to the Administrative Agent promptly after receipt thereof; (j) promptly, from time to time, such other information regarding the operations, business affairs and financial condition of Holdings, the Borrower or any other Restricted Subsidiary, or compliance with the terms of any Loan Document, as the Administrative Agent may reasonably request; (k) Information required to be delivered pursuant to clause (f) of this Section shall be deemed to have been delivered if such information shall be publicly available on the website of the SEC at ▇▇▇▇://▇▇▇.▇▇▇.▇▇▇. Information required to be delivered pursuant to this Section may also be delivered by electronic communications pursuant to procedures approved by the Administrative Agent; and (l) notwithstanding the foregoing, (i) in the event that Holdings delivers to the Administrative Agent an Annual Report for Holdings on Form 10-K for such fiscal year, as filed with the SEC, within 90 days after the end of such fiscal year, such Form 10-K shall satisfy the requirements of paragraph (a) above; provided that, such Form 10-K, when filed with the SEC, is accompanied by an opinion of BDO USA, LLP or any other independent registered public accounting firm of recognized national standing that satisfies the requirements of paragraph (a) above and (ii) in the event that Holdings delivers to the Administrative Agent a Quarterly Report for Holdings on Form 10-Q for such fiscal quarter, as filed with the SEC, within 45 days after the end of ~~the Borrower and its consolidated Subsidiaries~~ such fiscal quarter, such Form 10-Q shall satisfy the requirements of ~~this Section 5.04(b~~paragraph (b) ~~to the extent such quarterly reports include the information specified herein);~~above.

Appears in 1 contract

Sources: Credit Agreement (Diamond Resorts International, Inc.)

Financial Statements, Reports, etc. Furnish to the Administrative Agent (which will promptly furnish such information to the Lenders): (a) within 90 days after the end of each ~~fiscal year~~ Fiscal Year (commencing with the ~~fiscal year~~ Fiscal Year ending ~~December~~ on or about January 31, ~~2016~~2023), a consolidated balance sheet and related consolidated statements of ~~operations~~income, stockholders’ equity and cash flows ~~and owners’ equity~~ showing the financial position of the ~~Borrower~~ Reporting Entity and its Subsidiaries as of the close of such ~~fiscal year~~ Fiscal Year and the consolidated results of their operations during such year and setting forth in comparative form the corresponding figures for the prior ~~fiscal year~~Fiscal Year, which consolidated balance sheet and related statements of ~~operations~~income, stockholders’ equity and cash flows ~~and owners’ equity~~ shall be accompanied by customary management’s discussion and analysis and audited by independent public accountants of recognized national standing and accompanied by an opinion of such accountants (which opinion shall not be qualified as to scope of audit or as to the status of the Borrower or any Material Subsidiary as a going ~~concern~~concern on a consolidated basis, other than ~~solely~~ with respect to, or resulting ~~solely~~ from, an upcoming maturity date under any series of ~~Indebtedness occurring within one year from the time such opinion is delivered~~ indebtedness, any breach of a financial maintenance covenant or any potential inability to satisfy a financial maintenance covenant on a future date or in a future period) to the effect that such consolidated financial statements fairly present, in all material respects, the financial position and results of operations of the ~~Borrower~~ Reporting Entity and its Subsidiaries on a consolidated basis in accordance with GAAP (it being understood that the delivery by the ~~Borrower~~ Reporting Entity of annual reports on Form 10-K (or any successor or comparable form) of the ~~Borrower~~ Reporting Entity and its consolidated Subsidiaries shall satisfy the requirements of this Section 5.04(a) to the extent such annual reports include the information specified herein); (b) within 45 days after the end of each of the first three ~~fiscal quarters~~ Fiscal Quarters of each ~~fiscal year~~ Fiscal Year (commencing with the ~~fiscal quarter~~ Fiscal Quarter ending ~~June 30~~July 31, ~~2016~~2022), a condensed consolidated balance sheet and related condensed consolidated statements of ~~operations~~ income and cash flows showing the financial position of the ~~Borrower~~ Reporting Entity and its Subsidiaries as of the close of such ~~fiscal quarter~~ Fiscal Quarter and the consolidated results of their operations during such ~~fiscal quarter~~ Fiscal Quarter and the then-elapsed portion of the ~~fiscal year and, starting with the fiscal quarter ending September 30, 2016,~~ Fiscal Year and setting forth in comparative form the corresponding figures for the corresponding periods of the prior ~~fiscal year~~Fiscal Year, all of which shall be in reasonable detail, which condensed consolidated balance sheet and related condensed consolidated statements of ~~operations~~ income and cash flows shall be accompanied by customary management’s discussion and analysis and ~~which consolidated balance sheet and related statements of operations and cash flows~~ shall be certified by a Financial Officer of the ~~Borrower~~ Reporting Entity on behalf of the ~~Borrower~~ Reporting Entity as fairly presenting, in all material respects, the financial position and results of operations of the ~~Borrower~~ Reporting Entity and its Subsidiaries on a consolidated basis in accordance with GAAP (subject to normal year-end audit adjustments and the absence of footnotes) (it being understood that the delivery by the ~~Borrower~~ Reporting Entity of quarterly reports on Form 10-Q (or any successor or comparable form) of the ~~Borrower~~ Reporting Entity and its consolidated Subsidiaries shall satisfy the requirements of this Section 5.04(b) to the extent such quarterly reports include the information specified herein); provided that, with respect to the Transactions and any acquisition or Investments consummated after the Closing Date, the financial statements delivered pursuant to this clause (b) shall not be required to reflect purchase accounting adjustments relating thereto until the delivery of financial statements under clause (a) above; (c) (x) concurrently with any delivery of financial statements under clause (a) or (b) above, a certificate of a Financial Officer of the Borrower (i) certifying that no Event of Default or Default has occurred since the date of the last certificate delivered pursuant to this Section 5.04(c) or, if such an Event of Default or Default has occurred, specifying the nature and extent thereof and any corrective action taken or proposed to be taken with respect thereto, (ii) commencing with the end of the first full Fiscal Quarter ending after the Closing Date, setting forth computations in reasonable detail demonstrating compliance with the Financial Covenant, (iii) setting forth computations in reasonable detail of the Net Total Leverage Ratio for purposes of the definitions of “Applicable Margin” and “Pricing Grid”, and (iv) setting forth the calculation and uses of the Cumulative Credit for the fiscal period then ended if the Borrower shall have used the Cumulative Credit (other than pursuant to clause (a) of the definition of “Cumulative Credit”) for any purpose during such fiscal period and (y) concurrently with any delivery of financial statements under clause (a) above, if the accounting firm is not restricted from providing such a certificate by its policies office, use commercially reasonable efforts to deliver a certificate of the accounting firm opining on or certifying such statements stating whether they obtained knowledge during the course of their examination of such statements of any Default or Event of Default (which certificate may be limited to accounting matters and disclaim responsibility for legal interpretations); (d) promptly after the same become publicly available, copies of all periodic and other publicly available reports, proxy statements and, to the extent requested by the Administrative Agent, other materials filed by Holdings, the Borrower or any of the Subsidiaries with the SEC, or distributed to its stockholders generally, as applicable; provided, however, that such reports, proxy statements, filings and other materials required to be delivered pursuant to this clause (d) shall be deemed delivered for purposes of this Agreement when posted to the website of the Borrower (or Holdings or any Parent Entity referred to in Section 5.04(h)) or the website of the SEC; (e) within 90 days (or such later date as the Administrative Agent may agree in its reasonable discretion) after the beginning of each Fiscal Year (commencing with the Fiscal Year ending on or about January 31, 2023), a consolidated annual budget for such Fiscal Year consisting of a projected consolidated balance sheet of the Borrower and its Subsidiaries as of the end of the following Fiscal Year and the related consolidated statements of projected cash flow and projected income (collectively, the “Budget”), which Budget shall in each case be accompanied by the statement of a Financial Officer of the Borrower to the effect that the Budget is based on assumptions believed by the Borrower to be reasonable as of the date of delivery thereof; (f) upon the reasonable request of the Administrative Agent not more frequently than once a year, an updated Perfection Certificate (or, to the extent such request relates to specified information contained in the Perfection Certificate, such information) reflecting all changes since the date of the information most recently received pursuant to this clause (f) or Section 5.10(f); (g) promptly, from time to time, (i) such other customary information regarding the operations, business affairs and financial condition of Holdings, the Borrower or any of the Subsidiaries, or compliance with the terms of any Loan Document as in each case the Administrative Agent may reasonably request (for itself or on behalf of any Lender) and (ii) information and documentation reasonably requested by the Administrative Agent (for itself or on behalf of any Lender) required under applicable “know your customer” requirements under the USA PATRIOT Act or other applicable anti-money laundering laws and the Beneficial Ownership Regulation; (h) the financial statements, information and other documents required to be provided in clauses (a) and (b) of this Section 5.04 may be those of the Borrower, Holdings or any Parent Entity (any such entity that produces such financial statements, information or other documents, the “Reporting Entity”) so long as, in the case of Holdings or any Parent Entity, such financial statements are accompanied by a reconciliation showing the adjustments necessary to determine compliance by the Borrower and its Subsidiaries with the Financial Covenant; and (i) within ten (10) Business Days of receipt of notice thereof by the Borrower (or such later date agreed by the Administrative Agent in its reasonable discretion), written notice of any announcement of any change in the Borrower’s corporate family rating from M▇▇▇▇’▇ or corporate credit rating from S&P, including outlook. The Borrower hereby acknowledges and agrees that all financial statements furnished pursuant to clauses (a), (b) and (d) above are suitable for distribution, and to be made available, to Public S▇▇▇▇▇ in accordance with Section 9.17 (unless the Borrower otherwise notifies the Administrative Agent in writing on or prior to delivery thereof).

Appears in 1 contract

Sources: Credit Agreement (Dave & Buster's Entertainment, Inc.)

Financial Statements, Reports, etc. ~~Furnish~~ In the case of the Borrower, furnish to the Administrative Agent ~~(which will promptly furnish such information~~ for distribution to ~~the Lenders):~~each Lender: (a) within 90 days after the end of each fiscal year (~~commencing with~~ beginning within 90 days after the end of fiscal year ~~ending December 31, 2016~~2007), a its consolidated balance sheet and related statements of ~~operations~~income, stockholders’ equity and cash flows ~~and owners’ equity~~ showing the financial ~~position of the Borrower and its Subsidiaries~~ condition as of the close of such fiscal year of the Borrower and its consolidated Subsidiaries at such time and the ~~consolidated~~ results of ~~their~~ its operations and the operations of such Subsidiaries during such ~~year and setting forth in~~ year, together with comparative ~~form the corresponding~~ figures for the ~~prior~~ immediately preceding fiscal year, ~~which consolidated balance sheet and related statements of operations, cash flows and owners’ equity shall be accompanied by customary management’s discussion and analysis and~~ all audited by KPMG LLP or other independent public accountants of recognized national standing and accompanied by an opinion of such accountants reasonably satisfactory to the Administrative Agent (which ~~opinion~~ shall not be qualified as in any material respect, except for qualifications relating to ~~scope of audit~~ accounting changes (with which such independent public accountants shall concur) in response to FASB releases or ~~as to the status of the Borrower or any Material Subsidiary as a going concern,~~ other than solely with respect to, or resulting solely from, an upcoming maturity date under any series of Indebtedness occurring within one year from the time such opinion is delivered or any potential inability to satisfy a financial maintenance covenant on a future date or in a future periodauthoritative pronouncements) to the effect that such consolidated financial statements fairly ~~present, in all material respects,~~ present the financial ~~position~~ condition and results of operations of the Borrower and its consolidated Subsidiaries on a consolidated basis in accordance with GAAP (it being understood that the delivery by the Borrower of annual reports on Form 10-K of the Borrower and its consolidated Subsidiaries shall satisfy the requirements of this Section 5.04(a) to the extent such annual reports include the information specified herein)consistently applied; (b) within 45 days after the end of each of the first three fiscal quarters of each fiscal ~~year (commencing with the fiscal quarter ending June 30~~year, ~~2016), a~~ its unaudited consolidated balance sheet and related statements of ~~operations~~ income, stockholders’ equity and cash flows showing the financial ~~position of the Borrower and its Subsidiaries~~ condition as of the close of such fiscal quarter of the Borrower and its consolidated Subsidiaries at such time and the ~~consolidated~~ results of ~~their~~ its operations and the operations of such Subsidiaries during such fiscal quarter and the ~~then-~~then elapsed portion of the fiscal ~~year and~~year, ~~starting with the fiscal quarter ending September 30, 2016, setting forth in~~ and comparative ~~form the corresponding~~ figures for the ~~corresponding~~ same periods of in the ~~prior~~ immediately preceding fiscal year, all of which shall be in reasonable detail, which consolidated balance sheet and related statements of operations and cash flows shall be accompanied by customary management’s discussion and analysis and which consolidated balance sheet and related statements of operations and cash flows shall be certified by a one of its Financial ~~Officer~~ Officers to the effect that such financial statements, while not examined by independent public accountants, reflect in the opinion of the Borrower ~~on behalf of the Borrower as~~ all adjustments necessary to present fairly ~~presenting,~~ in all material ~~respects,~~ respects the financial ~~position~~ condition and results of operations of the Borrower and its consolidated Subsidiaries on a consolidated basis as of the end of and for such periods in accordance with GAAP (consistently applied, subject to normal year-end audit adjustments and the absence of ~~footnotes)~~ footnotes (it being understood that prior to the ~~delivery by~~ Funding Date the requirements under this paragraph (b) shall be satisfied if the Borrower delivers the financial statements required to be delivered by Section 5.04(b) of ~~quarterly reports~~ the Opco Credit Agreement); (c) concurrently with any delivery of financial statements under paragraph (a) above for the year ended December 31, 2007 and each year thereafter, a letter from the accounting firm rendering the opinion on ~~Form 10-Q~~ such statements (which letter may be limited to accounting matters and disclaim responsibility for legal interpretations) stating whether, in connection with their audit examination, anything has come to their attention which would cause them to believe that any Default or Event of Default existed on the date of such financial statements and if such a condition or event has come to their attention and (ii) concurrently with any delivery of financial statements under paragraph (a) or (b) above, a certificate of a Financial Officer of the Borrower (A) certifying that no Event of Default or Default has occurred or, if such an Event of Default or Default has occurred, specifying the nature and ~~its consolidated Subsidiaries shall satisfy~~ extent thereof and any corrective action taken or proposed to be taken with respect thereto, (B) in the ~~requirements~~ case of ~~this Section 5.04(b~~a certificate delivered with the financial statements required by paragraph (a) above, setting forth the Borrower’s calculation of Excess Cash Flow for the applicable fiscal year and the Available Amount as at the end of the applicable fiscal year and (C) disclosing any Holdings Asset Sale or Holdings Recovery Event (other than any Holdings Asset Sale or Holdings Recovery Event not subject to the ~~extent~~ mandatory prepayment provisions set forth in Section 2.13(b) pursuant to the first proviso of the definition of Net Cash Proceeds) that was consummated in the preceding fiscal quarter and specifying the nature thereof and the use of proceeds with respect thereto; (d) promptly after the same become publicly available, copies of all periodic and other reports, proxy statements and other materials filed by the Borrower, the Company or any of their Subsidiaries with the Securities and Exchange Commission, or any Governmental Authority succeeding to any or all of the functions of said Commission, or with any domestic national securities exchange, or distributed to its shareholders generally, as the case may be; (e) promptly after the receipt thereof by the Borrower, the Company or any of their Subsidiaries, a copy of any “management letter” received by any such ~~quarterly reports include~~ Person from its certified public accountants and the management’s response thereto; and (f) promptly, from time to time, such other information ~~specified herein);~~regarding the operations, business affairs and financial condition of the Borrower, the Company or any of their Subsidiaries, or compliance with the terms of any Loan Document, as the Administrative Agent or any Lender (acting through the Administrative Agent) may reasonably request.

Appears in 1 contract

Sources: Credit Agreement (NRG Energy, Inc.)

Financial Statements, Reports, etc. Furnish to the Administrative Agent (which will promptly furnish such information to the Lenders): (a) within 90 days (or, if applicable, such shorter period as the SEC shall specify for the filing of Annual Reports on Form 10-K or, if applicable, such longer period permitted under Rule 12b-25 under the Exchange Act) after the end of each fiscal ~~year~~ year, (~~commencing with the fiscal year ending December 31, 2016),~~ i) a consolidated balance sheet and related statements of operations, cash flows and owners’ equity showing the financial position of the Borrower and its ~~Subsidiaries~~ subsidiaries as of the close of such fiscal year and the consolidated results of ~~their~~ its operations during such year ~~and~~ and, commencing with the fiscal year ending December 31, 2010, setting forth in comparative form the corresponding figures for the prior fiscal year, and (ii) management’s discussion and analysis of significant operational and financial developments during such fiscal year, which consolidated balance sheet and related statements of operations, cash flows and owners’ equity shall be ~~accompanied by customary management’s discussion and analysis and~~ audited by independent public accountants of recognized national standing and accompanied by an opinion of such accountants (which ~~opinion~~ shall not be qualified ~~as to scope of audit or as to the status of the Borrower or~~ in any Material Subsidiary as a going concern, other than solely with respect to, or resulting solely from, an upcoming maturity date under any series of Indebtedness occurring within one year from the time such opinion is delivered or any potential inability to satisfy a financial maintenance covenant on a future date or in a future periodmaterial respect) to the effect that such consolidated financial statements fairly present, in all material respects, the financial position and results of operations of the Borrower and its ~~Subsidiaries~~ subsidiaries on a consolidated basis in accordance with GAAP (it being understood that the delivery by the Borrower of ~~annual reports~~ Annual Reports on Form 10-K of the Borrower and its consolidated ~~Subsidiaries~~ subsidiaries shall satisfy the requirements of this Section ~~5.04(a~~5.04 (a) to the extent such ~~annual reports~~ Annual Reports include the information specified herein); (b) within 45 days (or, if applicable, such shorter period as the SEC shall specify for the filing of Quarterly Reports on Form 10-Q or, if applicable, such longer period permitted under Rule 12b-25 under the Exchange Act) after the end of each of the first three fiscal quarters of each fiscal ~~year (~~year, commencing with the fiscal quarter ending ~~June 30~~March 31, ~~2016~~2010 (it being agreed that such deliverables shall be furnished no later than the date such requirements are complied with under the Senior Notes Indenture), (i) a consolidated balance sheet and related statements of operations and cash flows showing the financial position of the Borrower and its ~~Subsidiaries~~ subsidiaries as of the close of such fiscal quarter and the consolidated results of ~~their~~ its operations during such fiscal quarter and the then-elapsed portion of the fiscal year ~~and, starting with the fiscal quarter ending September 30, 2016,~~ and setting forth in comparative form the corresponding figures for the corresponding periods of the prior fiscal year, and (ii) management’s discussion and analysis of significant operational and financial developments during such quarterly period, all of which shall be in reasonable ~~detail, which consolidated balance sheet and related statements of operations and cash flows shall be accompanied by customary management’s discussion and analysis~~ detail and which consolidated balance sheet and related statements of operations and cash flows shall be certified by a ~~Financial~~ Responsible Officer of the Borrower on behalf of the Borrower as ~~fairly presenting, in all material respects, the financial position and results of operations of the Borrower and its Subsidiaries on a consolidated basis in accordance with GAAP~~ 102 AFFINION – A&R Credit Agreement (subject to normal year-end audit adjustments and the absence of footnotes) (it being understood that the delivery by the Borrower of quarterly reports on Form 10-Q of the Borrower and its consolidated Subsidiaries shall satisfy the requirements of this Section 5.04(bb) to the extent such ~~quarterly reports~~ Quarterly Reports include the information specified herein); (i) concurrently with any delivery of financial statements under paragraph (a) or (b) above, a certificate of a Responsible Officer of the Borrower (A) certifying that no Event of Default or Default has occurred or, if such an Event of Default or Default has occurred, specifying the nature and extent thereof and any corrective action taken or proposed to be taken with respect thereto, (B) setting forth computations in reasonable detail demonstrating compliance with the covenants contained in Sections 6.10 and 6.11, and (C) setting forth the calculation and uses of Available Free Cash Flow Amount for the fiscal period then ended if the Borrower shall have used the Available Free Cash Flow Amount for any purpose during such fiscal period, and (ii) concurrently with any delivery of financial statements under paragraph (a) above, a certificate of the accounting firm opining on or certifying such statements stating whether they obtained knowledge during the course of their examination of such statements of any Default or Event of Default (which certificate may be limited to accounting matters and disclaims responsibility for legal interpretations); (d) promptly after the same become publicly available, copies of all periodic and other publicly available reports, proxy statements and, to the extent requested by the Administrative Agent, other reports and statements filed by Holdings, the Borrower or any of its subsidiaries with the SEC, or after an initial public offering, distributed to its stockholders generally, as applicable; provided, however, that such reports, proxy statements, filings and other materials required to be delivered pursuant to this clause (d) shall be deemed delivered for purposes of this Agreement when posted to the website of the Borrower or any website operated by the SEC containing “▇▇▇▇▇” database information; (e) if, as a result of any change in accounting principles and policies from those applied in the preparation of the financial statements referred to in Section 3.05(a)(ii) for the fiscal year ended December 31, 2009, the consolidated financial statements of the Borrower and its subsidiaries delivered pursuant to paragraph (a) above will differ in any material respect from the consolidated financial statements that would have been delivered pursuant to such clauses had no such change in accounting principles and policies been made, then, together with the first delivery of financial statements pursuant to paragraph (a) above following such change, a schedule prepared by a Responsible Officer on behalf of the Borrower reconciling such changes to what the financial statements would have been without such changes; (f) within 90 days after the beginning of each fiscal year, a detailed consolidated quarterly budget for such fiscal year and, as soon as available, significant revisions, if any, of such budget and quarterly projections with respect to such fiscal year, including a description of underlying assumptions with respect thereto (collectively, the “Budget”); 103 AFFINION – A&R Credit Agreement (g) upon the reasonable request of the Administrative Agent, an updated Perfection Certificate (or, to the extent such request relates to specified information contained in the Perfection Certificate, such information) reflecting all changes since the date of the information most recently received pursuant to this paragraph (g) or Section 5.11(f); (h) promptly, a copy of all reports submitted to the Board of Directors (or any committee thereof) of any of Holdings, the Borrower or any Subsidiary in connection with any material interim or special audit made by independent accountants of the books of Holdings, the Borrower or any Subsidiary; (i) promptly, from time to time, such other information regarding the operations, business affairs and financial condition of Holdings, the Borrower or any of its subsidiaries, or compliance with the terms of any Loan Document, or such consolidating financial statements, as in each case the Administrative Agent may reasonably request (for itself or on behalf of any Lender); and (j) promptly upon request by the Administrative Agent, copies of: (i) each Schedule B (Actuarial Information) to the most recent annual report (Form 5500 Series) filed with the Internal Revenue Service with respect to a Plan; (ii) the most recent actuarial valuation report for any Plan; (iii) all notices received from a Multiemployer Plan sponsor, a plan administrator or any governmental agency, or provided to any Multiemployer Plan by Holdings, the Borrower, a Subsidiary or any ERISA Affiliate, concerning an ERISA Event; and (iv) such other documents or governmental reports or filings relating to any Plan or Multiemployer Plan as the Administrative Agent shall reasonably request.

Appears in 1 contract

Sources: Credit Agreement (Affinion Group, Inc.)

Financial Statements, Reports, etc. Furnish to the Administrative Agent (which will promptly furnish such information to the Lenders): (a) within 90 days after the end of each fiscal ~~year (~~year, commencing with the first fiscal year ending ~~December 31, 2016)~~after the Closing Date, a consolidated balance sheet and related statements of operations, cash flows and owners’ equity showing the financial position of ~~the Borrower~~ Parent and its Subsidiaries as of the close of such fiscal year and the consolidated results of their operations during such year and setting forth in comparative form the corresponding figures for the prior fiscal year, which consolidated balance sheet and related statements of operations, cash flows and owners’ equity shall be accompanied by customary management’s discussion and analysis and audited by independent public accountants of recognized national standing and accompanied by an opinion of such accountants (which opinion shall not be qualified as to scope of audit or as to the status of ~~the Borrower~~ Parent or any Material Subsidiary as a going concern, other than solely with respect to, or resulting solely from, (x) an upcoming maturity date under any ~~series of~~ material Indebtedness occurring within one year from the time such opinion is delivered or (y) any potential inability to satisfy a any financial maintenance covenant included in any Indebtedness of Parent or any Subsidiary on a future date or in a future period) to the effect that such consolidated financial statements fairly present, in all material respects, the financial position and results of operations of ~~the Borrower~~ Parent and its Subsidiaries on a consolidated basis in accordance with GAAP (it being understood that the delivery by ~~the Borrower~~ Parent of annual reports on Form 10-K of ~~the Borrower~~ Parent and its consolidated Subsidiaries shall satisfy the requirements of this Section 5.04(a) to the extent such annual reports include the information specified ~~herein~~herein and are delivered within the time period specified above); (b) within 45 days after the end of each of the first three fiscal quarters of each fiscal year (commencing with the fiscal quarter ending ~~June 30~~October 1, ~~2016~~2020), a consolidated balance sheet ~~and related statements~~ of ~~operations and cash flows showing the financial position of the Borrower~~ Parent and its Subsidiaries as of the ~~close~~ end of such fiscal ~~quarter~~ quarter, and consolidated statement of operations of the ~~consolidated results of their operations during~~ Parent and its Subsidiaries for such fiscal quarter and the then-elapsed portion of the fiscal ~~year and~~year, ~~starting with~~ and consolidated statements of owners’ equity and cash flows for the then-elapsed portion of the fiscal ~~quarter ending September 30~~year, ~~2016,~~ in each case setting forth in comparative form the corresponding figures for the corresponding periods of the prior fiscal year, all of which shall be in reasonable detail, which consolidated balance sheet and related statements of operations and cash flows shall be accompanied by customary management’s discussion and analysis and which consolidated balance sheet and related statements of operations and cash flows shall be certified by a Financial Officer of ~~the Borrower~~ Parent on behalf of ~~the Borrower~~ Parent as fairly presenting, in all material respects, the financial position and results of operations of ~~the Borrower~~ Parent and its Subsidiaries on a consolidated basis in accordance with GAAP (subject to normal year-end audit adjustments and the absence of footnotes) (it being understood that the delivery by ~~the Borrower~~ Parent of quarterly reports on Form 10-Q of ~~the Borrower~~ Parent and its consolidated Subsidiaries shall satisfy the requirements of this Section 5.04(b) to the extent such quarterly reports include the information specified ~~herein~~herein and are delivered within the time period specified above); (c) concurrently with any delivery of financial statements under clause (a) and (b) above, a certificate of a Financial Officer of Parent (i) certifying that no Event of Default or Default has occurred since the date of the last certificate delivered pursuant to this Section 5.04(c) (or since the Closing Date in the case of the first such certificate) or, if such an Event of Default or Default has occurred, specifying the nature and extent thereof and any corrective action taken or proposed to be taken with respect thereto, (ii) in the case of any certificate delivered simultaneously with the delivery of the financial statements referred to in clause (a) above commencing with respect to the fiscal year ending December 31, 2021,2022, setting forth in reasonable detail the calculations for Excess Cash Flow for such period and (iii) setting forth the calculation and uses of the Available Amount for the fiscal period then ended if the Available Amount has been used for any purpose during such fiscal period; (d) promptly after the same become publicly available, copies of all periodic and other publicly available reports, proxy statements and, to the extent requested by the Administrative Agent, other materials filed by Parent or any of the Subsidiaries with the SEC, or distributed to its stockholders or shareholders generally, as applicable; provided, however, that such reports, proxy statements, filings and other materials required to be delivered pursuant to this clause (d) shall be deemed delivered for purposes of this Agreement when posted to the website of Parent or the Borrower or the website of the SEC; (e) within 90 days after the beginning of each fiscal year that commences after the Closing Date, a consolidated annual budget for such fiscal year consisting of a projected consolidated balance sheet of Parent and its Subsidiaries as of the end of such fiscal year and the related consolidated statements of projected cash flow and projected income (collectively, the “Budget”), which Budget shall in each case be accompanied by the statement of a Financial Officer of Parent to the effect that the Budget is based on assumptions believed by Parent to be reasonable as of the date of delivery thereof; (f) promptly following any request therefor, information and documentation reasonably requested by the Administrative Agent or any Lender for purposes of compliance with applicable “know your customer” and anti-money laundering rules and regulations, including the PATRIOT Act and the Beneficial Ownership Regulation; and (g) promptly, from time to time, such other information regarding the operations, business affairs and financial condition of Parent or any of the Subsidiaries, or compliance with the terms of any Loan Document as in each case the Administrative Agent may reasonably request (for itself or on behalf of any Lender). The Borrower acknowledges and agrees that all financial statements furnished pursuant to paragraphs (a), (b) and (d) above are hereby deemed to be Borrower Materials suitable for distribution, and to be made available, to Public Lenders as contemplated by Section 9.17 and may be treated by the Administrative Agent and the Lenders as if the same had been marked “PUBLIC” in accordance with such paragraph (unless the Borrower otherwise notifies the Administrative Agent in writing on or prior to delivery thereof).

Appears in 1 contract

Sources: Term Loan Credit Agreement (Spirit AeroSystems Holdings, Inc.)

Financial Statements, Reports, etc. Furnish to the Administrative Agent (which will promptly furnish such information to the Lenders): (a) within 90 days ~~after~~ following the end of each fiscal year ~~(commencing with the fiscal year ending December 31, 2016)~~of Dutch Borrower, a consolidated balance sheet and related statements of operations, cash flows and owners’ equity showing the financial position of ~~the~~ Dutch Borrower and ~~its~~ the Subsidiaries as of the close of such fiscal year and the consolidated results of ~~their~~ its operations during such year and setting forth in comparative form the corresponding figures for the prior fiscal year, which consolidated balance sheet and related statements of operations, cash flows and owners’ equity shall be ~~accompanied by customary management’s discussion and analysis and~~ audited by independent public accountants of recognized national standing and accompanied by an opinion of such accountants (which ~~opinion~~ shall not be qualified as to scope of ~~audit or as~~ audit, including with respect to ~~the status of the Borrower or~~ any ~~Material Subsidiary as a~~ going ~~concern,~~ concern qualification other than solely with respect to, or resulting solely ~~from,~~ from an upcoming maturity date under ~~any series of Indebtedness~~ this Agreement occurring within one year from the time such opinion is ~~delivered or any potential inability to satisfy a financial maintenance covenant on a future date or in a future period~~delivered) to the effect that such consolidated financial statements fairly present, in all material respects, the financial position and results of operations of ~~the~~ Dutch Borrower and ~~its~~ the Subsidiaries on a consolidated basis in accordance with GAAP (it being understood that the delivery by the Borrower of annual reports on Form 10-K of the Borrower and its consolidated Subsidiaries shall satisfy the requirements of this Section 5.04(a) to the extent such annual reports include the information specified herein)IFRS; (b) within 45 days ~~after~~ following the end of each of the first three fiscal quarters of each fiscal year (commencing with the fiscal quarter ending June 30, ~~2016)~~2015, a consolidated balance sheet and related statements of operations and cash flows showing the financial position of ~~the~~ Dutch Borrower and ~~its~~ the Subsidiaries as of the close of such fiscal quarter and the consolidated results of ~~their~~ its operations during such fiscal quarter and the then-elapsed portion of the fiscal year ~~and, starting with the fiscal quarter ending September 30, 2016,~~ and setting forth in comparative form the corresponding figures for the corresponding periods of the prior fiscal year, all of which shall be in reasonable ~~detail, which consolidated balance sheet and related statements of operations and cash flows shall be accompanied by customary management’s discussion and analysis~~ detail and which consolidated balance sheet and related statements of operations and cash flows shall be certified by a Financial Officer of the ~~Borrower on behalf of the~~ Dutch Borrower as fairly presenting, in all material respects, the financial position and results of operations of ~~the~~ Dutch Borrower and ~~its~~ the Subsidiaries on a consolidated basis in accordance with ~~GAAP~~ IFRS (subject to normal year-end audit adjustments and the absence of footnotes); (c) (~~it being understood that the~~ x) concurrently with any delivery ~~by the Borrower~~ of ~~quarterly reports on Form 10-Q~~ financial statements under paragraphs (a) or (b) above, a certificate of a Financial Officer of the Dutch Borrower (i) certifying that no Event of Default or Default has occurred or, if such an Event of Default or Default has occurred, specifying the nature and extent thereof and any corrective action taken or proposed to be taken with respect thereto and (ii) setting forth computations in reasonable detail satisfactory to the Administrative Agent of the First Lien Leverage Ratio, (y) concurrently with any delivery of financial statements under paragraph (a) above, if the accounting firm is not restricted from providing such a certificate by its ~~consolidated Subsidiaries~~ policies, a certificate of the accounting firm opining on or certifying such statements stating whether they obtained knowledge during the course of their examination of such statements of any Default or Event of Default (which certificate may be limited to accounting matters and disclaim responsibility for legal interpretations) and (z) concurrently with any delivery of financial statements under paragraphs (a) or (b) above, a copy of management’s discussion and analysis with respect to such financial statements, all of which shall ~~satisfy~~ be in form and detail reasonably satisfactory to the ~~requirements~~ Administrative Agent; (d) promptly after the same become publicly available, copies of ~~this Section 5.04(b)~~ all periodic and other publicly available reports, proxy statements and, to the extent requested by the Administrative Agent, other materials filed by Parent, the Borrowers or any of the Subsidiaries with the CSA; provided, however, that such ~~quarterly reports include~~ reports, proxy statements, filings and other materials required to be delivered pursuant to this paragraph (d) shall be deemed delivered for purposes of this Agreement when posted to the website of the Parent or Borrowers; (e) within 120 days after the beginning of each fiscal year, a reasonably detailed consolidated annual budget for such fiscal year and, as soon as available, significant revisions, if any, of such budget and annual projections with respect to such fiscal year, including a description of underlying assumptions with respect thereto (collectively, the “Budget”); which Budget shall in each case be accompanied by the statement of a Financial Officer of Dutch Borrower to the effect that, the Budget is based on assumptions believed by such Financial Officer to be reasonable as of the date of delivery thereof; and (f) promptly, from time to time, such other information ~~specified herein~~regarding the operations, business affairs and financial condition of Parent, Holdings, the Borrowers or any of the Subsidiaries (including without limitation with respect to compliance with the USA PATRIOT Act);, or compliance with the terms of any Loan Document, or such consolidating financial statements of Dutch Borrower or its Subsidiaries, as in each case the Administrative Agent may reasonably request (for itself or on behalf of the Lenders).

Appears in 1 contract

Sources: First Lien Credit Agreement (Amaya Inc.)

Financial Statements, Reports, etc. Furnish to the Administrative Agent (~~which~~ who will ~~promptly furnish such information~~ distribute to ~~the Lenders~~each Lender): (a) after the Effective Date, within 90 days after the end of each fiscal year (~~commencing with~~ or, in the case of the fiscal year ~~ending December 31~~in which the Effective Date occurs, ~~2016~~120 days), a its consolidated balance sheet and related statements of ~~operations,~~ income and cash flows ~~and owners’ equity~~ showing the financial ~~position~~ condition of the Borrower and its ~~Subsidiaries~~ consolidated subsidiaries as of the close of such fiscal year and the ~~consolidated~~ results of ~~their~~ its operations and the operations of such Persons during such ~~year and setting forth in~~ year, together with comparative ~~form the corresponding~~ figures for the ~~prior~~ immediately preceding fiscal year, ~~which consolidated balance sheet~~ all in reasonable detail and ~~related statements of operations~~prepared in accordance with GAAP, ~~cash flows and owners’ equity shall be accompanied by customary management’s discussion and analysis and~~ all audited by KPMG LLP or other independent public accountants of recognized national standing and accompanied by an opinion of such accountants (which opinion shall ~~not~~ be ~~qualified as to scope of audit~~ without a “going concern” or like qualification or exception and without any qualification or exception as to the ~~status~~ scope of such audit (except as resulting from (A) the impending maturity of any Indebtedness prior to the expiry of the ~~Borrower~~ four full fiscal quarter period following the relevant audit date, (B) the breach or anticipated breach of any ~~Material Subsidiary as a going concern, other than solely with respect to,~~ financial covenant and/or (C) the activities or ~~resulting solely from, an upcoming maturity date under~~ operations of any ~~series of Indebtedness occurring within one year from the time such opinion is delivered or any potential inability to satisfy a financial maintenance covenant on a future date or in a future period~~Unrestricted Subsidiaries)) to the effect that such consolidated financial statements fairly ~~present,~~ present in all material ~~respects,~~ respects the financial ~~position~~ condition and results of operations of the Borrower and its ~~Subsidiaries~~ consolidated subsidiaries on a consolidated basis in accordance with GAAP (it being understood that the delivery by the Borrower of annual reports on Form 10-K of the Borrower and its consolidated Subsidiaries shall satisfy the requirements of this Section 5.04(a) to the extent such annual reports include the information specified herein)GAAP; (b) commencing with the fiscal quarter ended March 31, 2018, within 45 days (or, in the case of the fiscal quarter ended March 31, 2018, the fiscal quarter in which the Effective Date occurs and the first full fiscal quarter ending after the Effective Date, 60 days) after the end of each of the first three fiscal quarters of each fiscal ~~year (commencing with the fiscal quarter ending June 30~~year, ~~2016), a~~ its consolidated balance sheet and related statements of ~~operations~~ income and cash flows showing the financial ~~position~~ condition of the Borrower and its ~~Subsidiaries~~ consolidated subsidiaries as of the close of such fiscal quarter and the ~~consolidated~~ results of ~~their~~ its operations and the operations of such Persons during such fiscal quarter and the ~~then-~~then elapsed portion of the fiscal ~~year and~~year, ~~starting with the~~ and for each fiscal quarter ~~ending September 30~~occurring after the first anniversary of the Effective Date, ~~2016, setting forth in~~ comparative ~~form the corresponding~~ figures for the ~~corresponding~~ same periods of in the ~~prior~~ immediately preceding fiscal year, all of which shall be in reasonable detail, which consolidated balance sheet and related statements of operations and cash flows shall be accompanied by customary management’s discussion and analysis and which consolidated balance sheet and related statements of operations and cash flows shall be certified by a Financial Officer ~~of the Borrower on behalf of the Borrower~~ as fairly ~~presenting,~~ presenting in all material ~~respects,~~ respects the financial ~~position~~ condition and results of operations of the Borrower and its ~~Subsidiaries~~ consolidated subsidiaries on a consolidated basis in accordance with ~~GAAP (~~GAAP, subject to normal year-end audit adjustments and the absence of footnotes; (c) concurrently with any delivery of Section 5.04 Financials, a certificate of a Financial Officer of the Borrower setting forth (~~it being understood~~ x) to the extent then in effect, computations in reasonable detail of the Consolidated First Lien Leverage Ratio as of the last day of the fiscal quarter or year, as the case may be, covered by such Section 5.04 Financials and demonstrating compliance with Section 6.10 and (y) in the case of a certificate delivered with the financial statements required by paragraph (a) above, setting forth the Borrower’s calculation of Excess Cash Flow; provided that such calculation shall not be required under this clause (y) to the extent no prepayment would be required under Section 2.13(c) with respect to the Fiscal Year to which such financial statements relate; (d) [reserved]; (e) simultaneously with the delivery of the Section 5.04 Financials, the related consolidating financial statements reflecting the adjustments necessary to eliminate the accounts of Unrestricted Subsidiaries from such consolidated financial statements (but only to the extent such Unrestricted Subsidiaries would not be considered “minor” under Rule 3-10 of Regulation S-X under the Securities Act); (f) [reserved]; (g) after the request by any Lender (through the ~~Borrower of quarterly~~ Administrative Agent), all documentation and other information that such Lender reasonably requests in order to comply with its ongoing obligations under applicable “know your customer” and anti-money laundering rules and regulations, including the USA PATRIOT Act; (h) promptly, from time to time, such other reports ~~on Form 10-Q~~ and information (financial or otherwise) as the Administrative Agent may reasonably request from time to time regarding the financial condition or business of the Borrower and its ~~consolidated Subsidiaries~~ Restricted Subsidiaries; provided, however, that none of the Borrower nor any Restricted Subsidiary shall ~~satisfy~~ be required to disclose or provide any information (a) that constitutes non-financial trade secrets or non-financial proprietary information of the Borrower or any of its subsidiaries or any of their respective customers and/or suppliers, (b) in respect of which disclosure to the Administrative Agent or any Lender (or any of their respective representatives) is prohibited by applicable law, (c) that is subject to attorney-client or similar privilege or constitutes attorney work product or (d) in respect of which the Borrower or any subsidiary owes confidentiality obligations to any third party (provided such confidentiality obligations were not entered into in contemplation of the requirements of this Section ~~5.04(b)~~ 5.04(h)); provided that in the event that the Borrower does not provide information that otherwise would be required to be provided hereunder in reliance on the exclusions in this paragraph relating to violation of any obligation of confidentiality, the Borrower shall use commercially reasonable efforts to provide notice to the ~~extent~~ Administrative Agent promptly upon obtaining knowledge that such information is being withheld (but solely if providing such notice would not violate such obligation of confidentiality); (i) [reserved]; and (j) within the time frame set forth in Section 7.02, on each occasion permitted therein, a Notice of Intent to Cure if a Cure Right will be exercised thereunder. Information required to be delivered pursuant to this Section 5.04 shall be deemed to have been delivered if such information, or one or more annual or quarterly reports ~~include~~ containing such information, shall have been posted by the ~~information specified herein);~~Administrative Agent on a SyndTrak, IntraLinks or similar site to which the Lenders have been granted access or shall be available on the website of the Securities and Exchange Commission at h▇▇▇://▇▇▇.▇▇▇.▇▇▇ or on the website of the Borrower. Information required to be delivered pursuant to this Section 5.04 may also be delivered by electronic communications pursuant to procedures approved by the Administrative Agent. Each Lender shall be solely responsible for timely accessing posted documents and maintaining its copies of such documents. Notwithstanding the foregoing, if (i) the Borrower’s financial statements are consolidated with any Parent’s financial statements or (ii) any Parent is subject to periodic reporting requirements of the Securities Exchange Act of 1934 and the Borrower is not, then the requirement to deliver consolidated financial statements of the Borrower and its Restricted Subsidiaries (and the related opinion from independent public accountants) pursuant to Section 5.04(a) and (b) may be satisfied by delivering consolidated financial statements of such Parent (and the related opinion from independent public accountants) accompanied by a schedule showing, in reasonable detail, consolidating adjustments, if any, attributable solely to such Parent and any of their Subsidiaries that are not the Borrower or any of its Restricted Subsidiaries.

Appears in 1 contract

Sources: Credit Agreement (Ceridian HCM Holding Inc.)

Financial Statements, Reports, etc. ~~Furnish~~ In the case of the Borrower, furnish to the Administrative Agent ~~(which will promptly furnish such information~~ for distribution to the Lenders):: (a) as soon as available and in any event within 90 days after the end of each fiscal ~~year (commencing~~ year, copies of the report filed by the Borrower with the SEC on Form 10-K in respect of such fiscal year, each accompanied by the Borrower’s annual report in respect of such fiscal year ~~ending December 31~~or, ~~2016)~~if the Borrower is not required to file such a report in respect of such fiscal year, a the consolidated balance sheet and related ~~statements~~ consolidated income statement, consolidated statement of ~~operations,~~ cash flows and ~~owners’~~ consolidated statement of equity ~~showing the financial position~~ of the Borrower and its Subsidiaries as of the close of such fiscal ~~year and the consolidated results of their operations during such year and setting forth in comparative form the corresponding figures for the prior fiscal~~ year, ~~which consolidated balance sheet and related statements of operations, cash flows and owners’ equity shall be accompanied by customary management’s discussion and analysis and~~ all audited by independent ~~public~~ accountants of recognized national standing and accompanied by an opinion of such accountants (which opinion shall not be qualified as to scope of audit or as to the status of the Borrower or any Material Subsidiary as a going concern, other than solely with respect to, or resulting solely from, an upcoming maturity date under any series of Indebtedness occurring within one year from the time such opinion is delivered or any potential inability to satisfy a financial maintenance covenant on a future date or in a future period) to the effect that such consolidated financial statements ~~fairly present~~present fairly, in all material respects, the financial ~~position and~~ position, results of operations and cash flows of the Borrower and its Subsidiaries ~~on a consolidated basis~~ in ~~accordance~~ conformity with ~~GAAP~~ GAAP; provided, that documents required to be furnished under this paragraph (~~it being understood that~~ a) shall be deemed furnished when made available via the ~~delivery by the Borrower of annual reports on Form 10-K~~ ▇▇▇▇▇ (or any successor) system of the ~~Borrower and its consolidated Subsidiaries shall satisfy the requirements of this Section 5.04(a) to the extent such annual reports include the information specified herein)~~SEC; (b) as soon as available and in any event within 45 50 days after the end of each of the first three ~~fiscal quarters~~ quarterly periods of each fiscal ~~year (commencing~~ year, copies of the unaudited quarterly reports filed by the Borrower with the ~~fiscal quarter ending June 30~~SEC on Form 10-Q in respect of such quarterly period, ~~2016)~~or if the Borrower is not required to file such a report in respect of such quarterly period, a the unaudited consolidated balance sheet and related ~~statements~~ unaudited consolidated income statement, consolidated statement of ~~operations and~~ cash flows ~~showing the financial position~~ and consolidated statement of equity of the Borrower and its Subsidiaries as of the close of such fiscal ~~quarter and the consolidated results of their operations during such fiscal quarter and the then-elapsed portion of the fiscal year and~~quarter, starting with the fiscal quarter ending September 30, 2016, setting forth in comparative form the corresponding figures for the corresponding periods of the prior fiscal year, all of which shall be in reasonable detail, which consolidated balance sheet and related statements of operations and cash flows shall be accompanied by customary management’s discussion and analysis and which consolidated balance sheet and related statements of operations and cash flows shall be certified by a ~~Financial~~ Responsible Officer ~~of the Borrower on behalf~~ of the Borrower as fairly presenting, in all material respects, the financial ~~position and~~ position, results of operations and cash flows of the Borrower and its Subsidiaries ~~on a consolidated basis~~ in accordance with ~~GAAP (~~GAAP, subject to normal year-end audit ~~adjustments and~~ adjustments; provided, that documents required to be furnished under this paragraph (b) shall be deemed furnished when made available via the ~~absence~~ EDGAR (or any successor) system of ~~footnotes~~the SEC; (c) ~~(it being understood that the~~ concurrently with any delivery of financial statements by the Borrower described in paragraph (a) or (b) above (whether contained in a report filed with the SEC or otherwise), a certificate of ~~quarterly~~ a Responsible Officer of the Borrower substantially in the form of Schedule 6.2(c); (d) promptly after the same become publicly available, copies of (i) all financial statements, notices, reports and proxy materials distributed to stockholders of the Borrower and (ii) all reports on Form 10-K, 10-Q and 8-K (or their equivalents) filed by the Borrower with the SEC (or with any Governmental Authority succeeding to any or all of the functions of the SEC) pursuant to the periodic reporting requirements of the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder; provided, that documents required to be furnished under this paragraph (d) shall be deemed furnished when made available via the EDGAR (or any successor) system of the SEC; (e) promptly, from time to time, such other publicly available documents and information regarding the operations, business affairs and financial condition of the Borrower ~~and its consolidated Subsidiaries shall satisfy~~ (including information relating to “know your customer” or similar identification procedures), or compliance with the ~~requirements~~ terms of this ~~Section 5.04(b~~Agreement and information and documentation reasonably requested by the Administrative Agent or any Lender for purposes of compliance with applicable “know your customer” and anti-money laundering rules and regulations, including the Patriot Act and the Beneficial Ownership Regulation, in each case as the Administrative Agent or any Lender (through the Administrative Agent) may reasonably request; and (f) within ten Business Days after the occurrence thereof, written notice of any change in Status; provided that the failure to provide such notice shall not delay or otherwise affect any change in the Applicable Margin or other amount payable hereunder which is to occur upon a change in Status pursuant to the ~~extent~~ terms of this Agreement. With respect to the documents referred to in paragraphs (a) through (e) above, the Borrower shall furnish such ~~quarterly reports include~~ number of copies as the ~~information specified herein);~~Administrative Agent or the Lenders shall reasonably require for distribution to their personnel in connection with this Agreement.

Appears in 1 contract

Sources: Five Year Revolving Credit Agreement (Kyndryl Holdings, Inc.)

Financial Statements, Reports, etc. ~~Furnish~~ In the case of the Borrower, furnish to ~~the Administrative Agent (which will promptly furnish such information to the Lenders):~~Lender: (a) within 90 75 days after the end of each fiscal year (~~commencing with~~ except for the ~~fiscal~~ year ~~ending~~ ended December 31, ~~2016~~2015, which shall be within 90 days after the end of such fiscal year), a its consolidated balance sheet and related statements of ~~operations~~income, stockholders’ equity and cash flows ~~and owners’ equity~~ showing the financial ~~position~~ condition of the Borrower and its consolidated Subsidiaries as of the close of such fiscal year and the ~~consolidated~~ results of ~~their~~ its operations and the operations of such Subsidiaries during such ~~year and setting forth in~~ year, together with comparative ~~form the corresponding~~ figures for the ~~prior~~ immediately preceding fiscal year, ~~which consolidated balance sheet and related statements of operations, cash flows and owners’ equity shall be accompanied by customary management’s discussion and analysis and~~ all audited by R▇▇▇▇▇▇ R▇▇▇▇▇ LLC or other independent public accountants of recognized national standing and accompanied by an opinion of such accountants (which opinion shall ~~not~~ be ~~qualified as to scope of audit~~ without a “going concern” or like qualification or exception and without any qualification or exception as to the ~~status~~ scope of the Borrower or any Material Subsidiary as a going concern, other than solely with respect to, or resulting solely from, an upcoming maturity date under any series of Indebtedness occurring within one year from the time such ~~opinion is delivered or any potential inability to satisfy a financial maintenance covenant on a future date or in a future period~~audit) to the effect that such consolidated financial statements fairly ~~present, in all material respects,~~ present the financial ~~position~~ condition and results of operations of the Borrower and its consolidated Subsidiaries on a consolidated basis in accordance with GAAP ~~(it being understood that the delivery by the Borrower of annual reports on Form 10-K of the Borrower~~ consistently applied, together with a customary “management discussion and ~~its consolidated Subsidiaries shall satisfy the requirements of this Section 5.04(a) to the extent such annual reports include the information specified herein)~~analysis”; (b) within 45 40 days after the end of each of the first three fiscal quarters of each fiscal ~~year (commencing with the fiscal quarter ending June 30~~year, ~~2016), a~~ its consolidated balance sheet and related statements of ~~operations~~ income, stockholders’ equity and cash flows showing the financial ~~position~~ condition of the Borrower and its consolidated Subsidiaries as of the close of such fiscal quarter and the ~~consolidated~~ results of ~~their~~ its operations and the operations of such Subsidiaries during such fiscal quarter and the ~~then-~~then elapsed portion of the fiscal ~~year~~ year, and, ~~starting~~ other than with respect to quarterly reports during the remainder of the first fiscal ~~quarter ending September 30~~year after the Closing Date, ~~2016, setting forth in~~ comparative ~~form the corresponding~~ figures for the ~~corresponding~~ same periods of in the ~~prior~~ immediately preceding fiscal year, all of which shall be in reasonable detail, which consolidated balance sheet and related statements of operations and cash flows shall be accompanied by customary management’s discussion and analysis and which consolidated balance sheet and related statements of operations and cash flows shall be certified by a one of its Financial ~~Officer of the Borrower on behalf of the Borrower~~ Officers as fairly ~~presenting, in all material respects,~~ presenting the financial ~~position~~ condition and results of operations of the Borrower and its consolidated Subsidiaries on a consolidated basis in accordance with GAAP (consistently applied, subject to normal year-end audit ~~adjustments~~ adjustments, together with a customary “management discussion and analysis”; (c) concurrently with any delivery of financial statements under paragraph (a) or (b) above, a certificate of a Financial Officer in the ~~absence~~ form of ~~footnotes~~Exhibit B certifying that no Event of Default or Default has occurred or, if such an Event of Default or Default has occurred, specifying the nature and extent thereof and any corrective action taken or proposed to be taken with respect thereto; (d) within 60 days after the beginning of each fiscal year of the Borrower, a detailed consolidated budget for such fiscal year (~~it being understood that~~ including a projected consolidated balance sheet and related statements of projected operations and cash flows as of the ~~delivery~~ end of and for such fiscal year and setting forth the assumptions used for purposes of preparing such budget) and, promptly when available, any significant revisions of such budget; (e) promptly after the same become publicly available, copies of all periodic and other reports, proxy statements and other materials filed by the Borrower or any Subsidiary with the Securities and Exchange Commission, or any Governmental Authority succeeding to any or all of ~~quarterly reports on Form 10-Q~~ the functions of said Commission, or with any national securities exchange, or distributed to its shareholders, as the case may be; (f) promptly after the receipt thereof by the Borrower or any of the Subsidiaries, a copy of any “management letter” received by any such Person from its certified public accountants and the management’s response thereto; and (g) promptly, from time to time, such other information regarding the operations, business affairs and financial condition of the Borrower ~~and its consolidated Subsidiaries shall satisfy~~ or any Subsidiary, or compliance with the ~~requirements~~ terms of ~~this Section 5.04(b) to~~ any Loan Document, as the ~~extent such quarterly reports include the information specified herein);~~Lender may reasonably request.

Appears in 1 contract

Sources: Credit Agreement (Electronic Cigarettes International Group, Ltd.)

Financial Statements, Reports, etc. ~~Furnish~~ In the case of the Borrower and the Guarantors, deliver to the ~~Administrative~~ Agent ~~(which will promptly furnish such information to~~ and each of the ~~Lenders):~~Banks: (a) within 90 days after the end of each fiscal ~~year (commencing with~~ year, the ~~fiscal year ending December 31, 2016), a~~ Borrower's consolidated balance sheet and related ~~statements~~ statement of ~~operations~~income and cash flows, ~~cash flows and owners’ equity~~ showing the financial ~~position~~ condition of the Borrower and its Subsidiaries on a consolidated basis as of the close of such fiscal year and the ~~consolidated~~ results of their respective operations during such ~~year and setting forth in comparative form~~ year, the ~~corresponding figures~~ consolidated statement of the Borrower to be audited for the ~~prior fiscal year, which consolidated balance sheet~~ Borrower and ~~related statements of operations, cash flows and owners’ equity shall be accompanied~~ the Guarantors by ~~customary management’s discussion and analysis and audited by~~ Ernst & Young LLP or other independent public accountants of ~~recognized~~ reco▇▇▇▇▇d national standing and accompanied by an opinion of such accountants (which ~~opinion~~ shall not be qualified ~~as to scope of audit or as~~ in any material respect other than with respect to the ~~status~~ Cases or a going concern qualification) and to be certified by a Financial Officer of the Borrower or any Material Subsidiary as a going concern, other than solely with respect to, or resulting solely from, an upcoming maturity date under any series of Indebtedness occurring within one year from the time such opinion is delivered or any potential inability to satisfy a financial maintenance covenant on a future date or in a future period) to the effect that such consolidated financial statements fairly ~~present, in all material respects,~~ present the financial ~~position~~ condition and results of operations of the Borrower and its Subsidiaries on a consolidated basis in accordance with GAAP (it being understood that the delivery by the Borrower of annual reports on Form 10-K of the Borrower and its consolidated Subsidiaries shall satisfy the requirements of this Section 5.04(a) to the extent such annual reports include the information specified herein)GAAP; (b) within 45 days after the end of each of the first three fiscal ~~quarters of each fiscal year (commencing with~~ quarters, the ~~fiscal quarter ending June 30, 2016), a~~ Borrower's consolidated balance ~~sheet~~ sheets and related statements of ~~operations~~ income and cash ~~flows~~ flows, showing the financial ~~position~~ condition of the Borrower and its Subsidiaries on a consolidated basis as of the close of such fiscal quarter and the ~~consolidated~~ results of their operations during such fiscal quarter and the ~~then-~~then elapsed portion of the fiscal ~~year and, starting with the fiscal quarter ending September 30, 2016, setting forth in comparative form the corresponding figures for the corresponding periods of the prior fiscal~~ year, all of which shall be in reasonable detail, which consolidated balance sheet and related statements of operations and cash flows shall be accompanied by customary management’s discussion and analysis and which consolidated balance sheet and related statements of operations and cash flows shall be each certified by a Financial Officer ~~of the Borrower on behalf of the Borrower~~ as fairly ~~presenting, in all material respects,~~ presenting the financial ~~position~~ condition and results of operations of the Borrower and its Subsidiaries on a consolidated basis in accordance with ~~GAAP (~~GAAP, subject to normal year-end audit ~~adjustments and~~ adjustments; (c) commencing with the ~~absence~~ first fiscal month following the closing Date, as soon as practicable, but in no event later than 45 Days after the end of ~~footnotes) (it being understood that~~ each fiscal month of the ~~delivery by the Borrower of quarterly reports on Form 10-Q~~ Borrower, monthly unaudited consolidated balance sheets of the Borrower and its Subsidiaries and related consolidated statements of earnings and cash flows of the Borrower and its Subsidiaries ~~shall satisfy~~ for the ~~requirements~~ prior fiscal month, each certified by a Financial Officer of ~~this Section 5.04(b~~the Borrower; (i) concurrently with any delivery of financial statements under (a) and (b) above, a certificate of a Financial Officer certifying such statements (A) certifying that no Event of Default or event which upon notice or lapse of time or both would constitute an Event of Default has occurred, or, if such an Event of Default or event has occurred, specifying the nature and extent thereof and any corrective action taken or proposed to be taken with respect thereto and (B) setting forth computations in reasonable detail satisfactory to the ~~extent~~ Agent demonstrating compliance with the provisions of Sections 6.04, 6.05 and 6.10 and (ii) concurrently with any delivery of financial statements under (a) above, a certificate (which certificate may be limited to accounting matters and disclaim responsibility for legal interpretations) of the accountants auditing the consolidated financial statements delivered under (a) above certifying that, in the course of the regular audit of the business of the Borrower and its Subsidiaries, such ~~quarterly reports include~~ accountants have obtained no knowledge that an Event of Default has occurred and is continuing, or if, in the ~~information specified herein)~~opinion of such accountants, an Event of Default has occurred and is continuing, specifying the nature thereof and all relevant facts with respect thereto; (e) concurrently with any delivery of financial statements under (c) above, monthly financial projections for the following monthly period in the event that there has been a material variance from the financial projections provided to the Agent for the period reported in such financial statements; (f) as soon as possible, and in any event when the Borrower's and the Guarantors' statement of financial affairs and schedules of assets and liabilities are required to be filed with the Bankruptcy Court, a consolidated pro forma balance sheet of the Borrower's and the Guarantors' financial condition as of the Filing Date;

Appears in 1 contract

Sources: Revolving Credit and Guaranty Agreement (Burlington Industries Inc /De/)

Financial Statements, Reports, etc. ~~Furnish~~ (a) The Borrower will file with the SEC and deliver to the Administrative Agent for distribution to each Lender: (~~which will promptly furnish~~ i) not later than March 31, 2006, an Annual Report on Form 10-K containing audited financial statements of the Borrower for the fiscal year ended December 31, 2005, meeting the requirements of subparagraph (b)(ii) below; and (ii) by the date required under the rules and regulations of the SEC (including extensions granted thereunder), a Quarterly Report on Form 10-Q containing unaudited financial statements meeting the requirements of subparagraph (b) (iii) below with respect to each fiscal quarter ending during the Borrower's fiscal year ending on December 31, 2006, including for each such ~~information~~ fiscal quarter comparative financial statements with respect to the ~~Lenders):~~corresponding fiscal quarter of the Borrower's fiscal year ending on December 31, 2005. (ab) The Borrower shall deliver or cause to be delivered to the Administrative Agent for distribution to each Lender: (i) within 30 days after the end of each fiscal month of the Borrower until the Borrower shall have filed with the SEC and delivered to the Administrative Agent the Annual Report on Form 10-K referred to in subparagraph (a)(i) above, the Monthly Financial Package; (ii) not later than the earlier to occur of (x) 90 days after the end of each fiscal year (commencing with the fiscal year ending December 31, 2016), a consolidated balance sheet and related statements of operations, cash flows and owners’ equity showing the financial position Fiscal Year of the Borrower and ~~its~~ (y) the date on which the Borrower is required to file or files financial statements with respect to the applicable Fiscal Year with the SEC (including extensions granted under the rules and regulations of the SEC), financial statements (including a balance sheet, a statement of income, a statement of stockholders' equity and a statement of cash flows) of the Borrower and the Subsidiaries on a consolidated basis as of the ~~close~~ end of and for such ~~fiscal year and the consolidated results of their operations during such year and setting forth~~ Fiscal Year, together with statements in comparative form as of the end of and for the preceding Fiscal Year as summarized in the Form 10-K of the Borrower filed with the SEC pursuant to Section 13 of the Exchange Act for the corresponding ~~figures for the prior fiscal year~~period, ~~which consolidated balance sheet~~ and ~~related statements of operations, cash flows and owners’ equity shall be~~ accompanied by ~~customary management’s discussion and analysis and audited by~~ a report of PricewaterhouseCoopers LLP or other independent public accountants ~~of recognized national standing~~ acceptable to the Administrative Agent (without a "going concern" or like qualification or exception and ~~accompanied by an opinion~~ without any qualification or exception as to the scope of such ~~accountants (~~audit other than as to matters relating to historical costs of fixed assets), which opinion shall not be qualified as to scope of audit or as to the status of the Borrower or any Material Subsidiary as a going concern, other than solely with respect to, or resulting solely from, an upcoming maturity date under any series of Indebtedness occurring within one year from the time such opinion is delivered or any potential inability to satisfy a financial maintenance covenant on a future date or state in ~~a future period) to the~~ effect that such ~~consolidated~~ financial statements (A) were audited using generally accepted auditing standards, (B) were prepared in accordance with GAAP consistently applied and (C) present fairly ~~present, in all material respects,~~ the financial ~~position~~ condition and results of operations of the Borrower and ~~its~~ the Subsidiaries ~~on a consolidated basis in accordance with GAAP (it being understood that~~ for the delivery by the Borrower of annual reports on Form 10-K of the Borrower and its consolidated Subsidiaries shall satisfy the requirements of this Section 5.04(a) to the extent such annual reports include the information specified herein)period covered; (biii) ~~within~~ not later than the earlier to occur of (x) 45 days after the end of each of the first three ~~fiscal~~ quarters of each Fiscal Year of the Borrower and (y) the date on which the Borrower is required to file (including extensions granted under the rules and regulations of the SEC) or files financial statements with respect to the applicable fiscal ~~year (commencing~~ quarter with the ~~fiscal quarter ending June 30, 2016)~~SEC , a ~~consolidated~~ balance sheet and related statements of ~~operations~~ income and cash flows ~~showing the financial position~~ of the Borrower and ~~its~~ the Subsidiaries as on a consolidated basis for such quarter and for the period beginning on the first day of such Fiscal Year of the ~~close~~ Borrower and ending on the last day of such ~~fiscal quarter and the consolidated results of their operations during such fiscal quarter and the then-elapsed portion of the fiscal year and~~quarter, ~~starting~~ together with ~~the fiscal quarter ending September 30, 2016, setting forth~~ statements in comparative form ~~the corresponding figures~~ for the corresponding ~~periods~~ date or period in the preceding Fiscal Year of the ~~prior fiscal year~~Borrower as summarized in the Form 10-Q of the Borrower filed with the SEC pursuant to Section 13 of the Exchange Act for the corresponding period, ~~all of which shall be in reasonable detail, which consolidated balance sheet~~ and related statements of operations and cash flows shall be accompanied by customary management’s discussion and analysis and which consolidated balance sheet and related statements of operations and cash flows shall be certified by a Financial Officer ~~of the Borrower on behalf of the Borrower~~ as presenting fairly ~~presenting, in all material respects,~~ the financial ~~position~~ condition and results of operations of the Borrower and ~~its~~ the Subsidiaries on a consolidated basis in accordance with GAAP (consistently applied, subject to normal year-end audit adjustments and the absence of footnotes; (iv) concurrently with each delivery of financial statements under clause (~~it being understood that~~ ii) or (iii) above, a certificate of a Financial Officer (A) certifying as to whether a Default has occurred and, if a Default has occurred, specifying the details thereof and any action taken or proposed to be taken with respect thereto; (B) setting forth reasonably detailed calculations demonstrating compliance with Section 6.01(a) and (b); (C) stating whether any change in GAAP or in the application thereof has occurred since December 31, 2005, and, if any such change has occurred, specifying the effect of such change on the financial statements accompanying such certificate; and (D) concurrently with the delivery by of financial statements under clause (ii) above, attaching an updated Schedule 3.04 hereto setting forth as of the ~~Borrower~~ date of ~~quarterly reports on Form 10-Q~~ the balance sheet included in such financial statements a list of all the Subsidiaries and the percentage ownership of the Borrower and the Subsidiaries therein, and identifying, as of such date, each Class A Excluded Subsidiary, Class B Excluded Subsidiary, Class C Excluded Subsidiary, Class D Excluded Subsidiary, Designated Syndicated Person, Class A Excluded Equity Interest and Class B Excluded Equity Interest. (v) not later than March 31, 2006, and thereafter not later than 45 days after the beginning of each Fiscal Year (beginning with Fiscal Year 2007) in respect of such Fiscal Year (A) the annual business plan of the Borrower and the Subsidiaries for such Fiscal Year approved by the Board of Directors of the Borrower, (B) forecasts prepared by management of the Borrower for each fiscal month in such Fiscal Year and (C) forecasts prepared by management of the Borrower for such Fiscal Year and the four Fiscal Years thereafter, including, in each instance described in clauses (B) and (C) above, (x) a projected year-end consolidated balance sheet and income statement and statement of cash flows and (y) a statement of all of the material assumptions on which such forecasts are based; (vi) contemporaneously with the distribution thereof to the Borrower's or any Subsidiary's stockholders or partners or the filing thereof with the SEC, as the case may be, copies of all statements, reports, notices and filings distributed by the Borrower or any Subsidiary to its ~~consolidated~~ stockholders or partners or filed with the SEC (including reports on Forms 10-K, 10-Q and 8-K) or any Governmental Authority succeeding to any or all of the functions of the SEC or with any national securities exchange; (vii) promptly after the occurrence of any ERISA Event that, alone or together with any other ERISA Events that have occurred, could reasonably be expected to result in liability of the Borrower, the Subsidiaries ~~shall satisfy~~ and all ERISA Affiliates in an aggregate amount exceeding $5,000,000, a certificate of a Financial Officer setting forth the ~~requirements~~ details as to such ERISA Event and the action that the Borrower, such Subsidiary or such ERISA Affiliate has taken or will take with respect thereto; (viii) promptly after the Borrower or any Subsidiary becomes aware of the commencement thereof, notice of any investigation, action, suit or proceeding before any Governmental Authority involving the condemnation or taking under the power of eminent domain of any material portion of its property or the revocation or suspension of any material permit, license, certificate of need or other governmental requirement applicable to any of its properties or assets; (ix) within 10 days of the receipt by the Borrower or any Subsidiary, copies of all material deficiency notices, compliance orders or adverse reports issued by any Governmental Authority or accreditation commission having jurisdiction over the licensing, accreditation or operation of any properties or assets of the Borrower or any Subsidiary or by any Governmental Authority or private insurance company pursuant to a provider agreement, which, if not timely complied with or cured, could reasonably be expected to result in the suspension or forfeiture of any license, certification or accreditation necessary in order for such Person to carry on its business as then conducted or the termination of any material insurance or reimbursement program available to such Person; and (x) promptly following any request therefor, such other information regarding the operations, business affairs and financial condition of the Borrower or any Subsidiary, or compliance with the terms of this Agreement, as the Administrative Agent or any Lender may reasonably request. (c) Information required to be delivered pursuant to this Section ~~5.04(b)~~ shall be deemed to have been delivered if such information, or one or more annual, quarterly or other reports containing such information, shall have been posted by the Borrower on the Borrower's website on the Internet at ▇▇▇.▇▇▇▇▇▇▇▇▇▇▇.▇▇▇/▇▇▇▇▇▇▇/▇▇▇▇/▇▇▇/▇▇▇▇▇?▇▇▇▇+▇▇▇▇▇▇▇▇▇&▇=▇▇▇▇▇▇▇.▇▇▇, abouths_nav&2-article.jsp,section_banner,abouths_investrelationsnew, at ▇▇▇.▇▇▇.▇▇▇/▇▇▇▇▇/webusers.htm, on an IntraLinks or similar site to which all of the Lenders have been granted access, or at another website identified to the ~~extent~~ Lenders and accessible by the Lenders without charge (and, in each case, a confirming electronic correspondence shall have been delivered to each Lender providing notice of such ~~quarterly reports include~~ posting); provided that the Borrower shall deliver paper copies of such information ~~specified herein);~~to any Lender that requests such delivery.

Appears in 1 contract

Sources: Credit Agreement (Healthsouth Corp)

Financial Statements, Reports, etc. ~~Furnish~~ Deliver to the Administrative Agent ~~(which will promptly furnish such information to~~ on behalf of the Lenders):: (a) ~~within~~ Within 90 days after the end of each fiscal ~~year (commencing with~~ year, the ~~fiscal year ending December 31, 2016), a~~ Borrower’s consolidated balance sheet and related ~~statements~~ statement of ~~operations~~income and cash flows, ~~cash flows and owners’ equity~~ showing the financial ~~position~~ condition of the Borrower and its Subsidiaries on a consolidated basis as of the close of such fiscal year and the ~~consolidated~~ results of their respective operations during such ~~year and setting forth in comparative form~~ year, the ~~corresponding figures~~ consolidated statement of the Borrower to be audited for the ~~prior fiscal year, which consolidated balance sheet and related statements of operations, cash flows and owners’ equity shall be accompanied~~ Borrower by ~~customary management’s discussion and analysis and audited by~~ Ernst & Young LLP or other independent public accountants of recognized national standing and accompanied by an opinion of such accountants (~~which opinion shall not be qualified as~~ without a “going concern” or like qualification or exception and without any qualification or exception (other than with respect to ~~scope of~~ the 2005 audit or and the 2006 audit) as to the ~~status~~ scope of such audit) and to be certified by a Responsible Officer of the Borrower or any Material Subsidiary as a going concern, other than solely with respect to, or resulting solely from, an upcoming maturity date under any series of Indebtedness occurring within one year from the time such opinion is delivered or any potential inability to satisfy a financial maintenance covenant on a future date or in a future period) to the effect that such consolidated financial statements fairly ~~present,~~ present in all material ~~respects,~~ respects the financial ~~position~~ condition and results of operations of the Borrower and its Subsidiaries on a consolidated basis in accordance with ~~GAAP~~ GAAP. Documents required to be delivered pursuant to this clause (~~it being understood that~~ a) which are made available via E▇▇▇▇, or any successor system of the ~~delivery by~~ SEC, in the ~~Borrower of annual reports~~ Borrower’s Annual Report on Form 10-~~K of~~ K, shall be deemed delivered to the Lenders on the date such documents are made so available; provided that, upon request, the Borrower ~~and its consolidated Subsidiaries~~ shall ~~satisfy the requirements~~ deliver paper copies of ~~this Section 5.04(a)~~ such documents to the ~~extent such annual reports include the information specified herein)~~Administrative Agent; (b) ~~within~~ Within 45 days after the end of each of the first three fiscal quarters of each fiscal ~~year (commencing with~~ year, the ~~fiscal quarter ending June 30, 2016), a~~ Borrower’s consolidated balance ~~sheet~~ sheets and related statements of ~~operations~~ income and cash ~~flows~~ flows, showing the financial ~~position~~ condition of the Borrower and its Subsidiaries on a consolidated basis as of the close of such fiscal quarter and the ~~consolidated~~ results of their operations during such fiscal quarter and the ~~then-~~then elapsed portion of the fiscal ~~year and, starting with the fiscal quarter ending September 30, 2016, setting forth in comparative form the corresponding figures for the corresponding periods of the prior fiscal~~ year, all of which shall be in reasonable detail, which consolidated balance sheet and related statements of operations and cash flows shall be accompanied by customary management’s discussion and analysis and which consolidated balance sheet and related statements of operations and cash flows shall be each certified by a ~~Financial~~ Responsible Officer ~~of the Borrower on behalf~~ of the Borrower as fairly ~~presenting,~~ presenting in all material ~~respects,~~ respects the financial ~~position~~ condition and results of operations of the Borrower and its Subsidiaries on a consolidated basis in accordance with ~~GAAP (~~GAAP, subject to normal year-end audit adjustments and the absence of footnotes. Documents required to be delivered pursuant to this clause (b) ~~(it being understood that~~ which are made available via E▇▇▇▇, or any successor system of the ~~delivery by~~ SEC, in the ~~Borrower of quarterly reports~~ Borrower’s Quarterly Report on Form 10-Q Q, shall be deemed delivered to the Lenders on the date such documents are made so available; provided that, upon request, the Borrower shall deliver paper copies of such documents to the Administrative Agent; (i) concurrently with any delivery of financial statements under (a) and (b) above, a certificate of a Responsible Officer of the Borrower (A) certifying that no Event of Default or event which upon notice or lapse of time or both would constitute an Event of Default has occurred, or, if such an Event of Default or event has occurred, specifying the nature and extent thereof and any corrective action taken or proposed to be taken with respect thereto, (B) setting forth computations in reasonable detail satisfactory to the Administrative Agent demonstrating compliance with the provisions of Sections 6.04, 6.05 and 6.06 and (C) stating whether any change in GAAP or in the application thereof has occurred since the date of the audited financial statements referred to in Section 3.05 and, if any such change has occurred, specifying the effect of such change on the financial statements accompanying such certificate; and (ii) concurrently with any delivery of financial statements under (a) above, a certificate (which certificate may be limited to accounting matters and disclaim responsibility for legal interpretations) of the accountants auditing the consolidated financial statements delivered under (a) above certifying that, in the course of the regular audit of the business of the Borrower and its Subsidiaries, such accountants have obtained no knowledge that an Event of Default pursuant to Section 7.01(c) due to any failure to comply with Section 6.04 or 6.05 has occurred and is continuing or if, in the opinion of such accountants, such an Event of Default has occurred and is continuing, specifying the nature thereof and all relevant facts with respect thereto; (d) promptly after the same become publicly available, copies of all registration statements and all periodic and other reports, proxy statements and other materials filed by it with the SEC, or any governmental authority succeeding to any of or all the functions of said commission, or with any national securities exchange, as the case may be. Documents required to be delivered pursuant to this clause (d) which are made available via E▇▇▇▇, or any successor system of the SEC, shall be deemed delivered when made so available; provided that, upon request, the Borrower shall deliver paper copies of such documents to the Administrative Agent; (e) Within ninety (90) days from the last Business Day of the immediately preceding fiscal year, a detailed consolidated ~~Subsidiaries shall satisfy~~ budget for the ~~requirements~~ following 12-month period (including projected statements of operations and cash flow for such period); (f) as soon as available and in any event within fifteen (15) Business Days after the Borrower or any of its ERISA Affiliates knows or has reason to know that any Termination Event has occurred, a statement of a Responsible Officer of the Borrower describing the full details of such Termination Event and the action, if any, which the Borrower or such ERISA Affiliate is required or proposes to take with respect thereto, together with any notices required or proposed to be given to or filed with or by the Borrower, the ERISA Affiliate, the PBGC, a Plan participant or the Plan administrator with respect thereto; (g) promptly and in any event within fifteen (15) Business Days after receipt thereof by the Borrower or any of its ERISA Affiliates from the PBGC copies of each notice received by the Borrower or any such ERISA Affiliate of the PBGC’s intention to terminate any Single Employer Plan of the Borrower or such ERISA Affiliate or to have a trustee appointed to administer any such Plan; (h) if requested by the Administrative Agent, promptly and in any event within thirty (30) days after the filing thereof with the Internal Revenue Service, copies of each Schedule B (Actuarial Information) to the annual report (Form 5500 Series) with respect to each Plan of the Borrower or any of its ERISA Affiliates; (i) within fifteen (15) Business Days after notice is given or required to be given to the PBGC under Section 302(f)(4)(A) of ERISA of the failure of the Borrower or any of its ERISA Affiliates to make timely payments to a Plan, a copy of any such notice filed and a statement of a Responsible Officer of the Borrower setting forth (i) sufficient information necessary to determine the amount of the lien under Section 302(f)(3) of ERISA, (ii) the reason for the failure to make the required payments and (iii) the action, if any, which the Borrower or any of its ERISA Affiliates proposed to take with respect thereto; (j) promptly and in any event within fifteen (15) Business Days after receipt thereof by the Borrower or any ERISA Affiliate from a Multiemployer Plan sponsor, a copy of each notice received by the Borrower or any ERISA Affiliate concerning (i) the imposition of Withdrawal Liability by a Multiemployer Plan, (ii) the determination that a Multiemployer Plan is, or is expected to be, in reorganization within the meaning of Title IV of ERISA, (iii) the termination of a Multiemployer Plan within the meaning of Title IV of ERISA, or (iv) the amount of liability incurred, or which may be incurred, by the Borrower or any ERISA Affiliate in connection with any event described in clause (i), (ii) or (iii) above; (k) promptly after a Responsible Officer obtains knowledge of (i) the filing or commencement of any action, suit or proceeding by or before any arbitrator or Governmental Authority against or affecting the Borrower or any Subsidiary that could reasonably be expected to result in a Material Adverse Effect; or (ii) the receipt of any environmental audits and reports, whether prepared by personnel of the Borrower or any Guarantor or by independent consultants, which relate to an Environmental Liability which could be expected to have a Material Adverse Effect, notification thereof (together with, in the case of clause (ii) above, copies of such audits and reports), each such notice to be accompanied by a statement of a Responsible Officer of the Borrower setting forth the details of the event or development requiring such notice and any action taken or proposed to be taken with respect thereto; (l) promptly, from time to time, such other information regarding the operations, business affairs and financial condition of the Borrower or any Guarantor as the Administrative Agent, at the request of any Lender, may reasonably request; (m) within (i) twenty (20) Business Days following the end of each calendar month, a certificate of a Responsible Officer of the Borrower or, if applicable, a Guarantor, (x) stating that at all times since the last certificate delivered under this Section ~~5.04(b~~5.01(m) (or, in the case of the first certificate to be delivered after the Closing Date, at all times since the Closing Date) the Borrower or Guarantor, as the case may be, has utilized the Primary Routes and the Primary Foreign Slots in a manner consistent in all material respects with applicable regulations, rules, law, foreign law and contracts in order to preserve their respective rights in and to use each of the Primary Routes and Primary Foreign Slots and (y) setting forth (A) any permanent disposition or transfer by the Borrower or such Guarantor of any Appraised FAA Slot, Primary Foreign Slot or Primary Route and (B) airports associated with additional Primary Routes allocated to or acquired by the Borrower or such Guarantor which airports are not already listed on Schedule 4(g) to the Second Lien SGR Security Agreement or Schedule 4(i) to the Second Lien SGR Security Agreement and (ii) five (5) Business Days following the end of each calendar month, copies of any report filed by the Borrower or any Guarantor in such calendar month with the FAA, DOT or any other applicable Governmental Authority or Airport Authority or any Foreign Aviation Authorities regarding utilization of Primary Routes or Primary Foreign Slots or access to the Primary Supporting Route Facilities, as well as a summary thereof, in a format reasonably acceptable to the Administrative Agent; (n) at any time that Eligible Accounts Receivable shall be included as Eligible Collateral, promptly and in any event within 30 days after the end of each month while Eligible Accounts Receivable are part of Eligible Collateral, an Officer’s Certificate from the Borrower, substantially in the form of Exhibit K, setting forth the amount of Eligible Accounts Receivable as of such date, together with all supporting documents with respect to Eligible Accounts Receivable as the Administrative Agent may reasonably request; (o) promptly after a Responsible Officer obtains knowledge thereof, notice of any Collateral Event; (p) promptly after a Responsible Officer obtains knowledge thereof, notice of any Event of Loss; (q) promptly after a Responsible Officer obtains knowledge of any Visa/MasterCard Dollar Trigger Event, notification thereof (accompanied by a statement of a Responsible Officer of the Borrower setting forth the details of such Visa/MasterCard Dollar Trigger Event). Subject to the next succeeding sentence, information delivered pursuant to this Section 5.01 to the Administrative Agent may be made available by the Administrative Agent to the Lenders by posting such information on the Intralinks website on the Internet at h▇▇▇://▇▇▇.▇▇▇▇▇▇▇▇▇▇.▇▇▇. Information delivered pursuant to this Section 5.01 may also be delivered by electronic communication pursuant to procedures approved by the Administrative Agent pursuant to Section 10.01 hereto. Information required to be delivered pursuant to this Section 5.01 (to the extent not made available as set forth above) shall be deemed to have been delivered to the Administrative Agent on the date on which the Borrower provides written notice to the Administrative Agent that such information has been posted on the Borrower’s website on the Internet at h▇▇▇://▇▇▇.▇▇▇▇▇.▇▇▇ (to the extent such ~~quarterly reports include~~ information has been posted or is available as described in such notice). Information required to be delivered pursuant to this Section 5.01 shall be in a format which is suitable for transmission. Any notice or other communication delivered pursuant to this Section 5.01, or otherwise pursuant to this Agreement, shall be deemed to contain material non-public information unless (i) expressly marked by the ~~information specified herein);~~Borrower as “PUBLIC” or (ii) such notice or communication consists of copies of the Borrower’s public filings with the SEC.

Appears in 1 contract

Sources: Second Lien Term Loan and Guaranty Agreement (Delta Air Lines Inc /De/)

Appears in 1 contract

Sources: Credit and Guaranty Agreement (Delta Air Lines Inc /De/)

Financial Statements, Reports, etc. ~~Furnish~~ In the case of the Borrower, furnish to the Administrative Agent (~~which~~ and the Administrative Agent will ~~promptly~~ furnish ~~such information~~ to ~~the Lenders~~each Lender): (a) within 90 days after the end of each fiscal ~~year (commencing with the fiscal year ending December 31~~year, ~~2016), a~~ its consolidated balance sheet and related statements of ~~operations~~income, stockholders' equity and cash flows ~~and owners’ equity~~ showing the financial ~~position~~ condition of the Borrower and its consolidated Subsidiaries as of the close of such fiscal year and the ~~consolidated~~ results of ~~their~~ its operations and the operations of such Subsidiaries during such ~~year and setting forth in~~ year, together with comparative ~~form the corresponding~~ figures for the ~~prior~~ immediately preceding fiscal year and for the consolidated budget for such fiscal year, ~~which consolidated balance sheet and related statements~~ in the case of ~~operations~~such financial statements, ~~cash flows and owners’ equity shall be accompanied by customary management’s discussion and analysis and~~ audited by ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP or other independent public accountants of recognized national standing and accompanied by an opinion of such accountants (which ~~opinion~~ shall not be qualified ~~as to scope of audit or as to the status of the Borrower or~~ in any Material Subsidiary as a going concern, other than solely with respect to, or resulting solely from, an upcoming maturity date under any series of Indebtedness occurring within one year from the time such opinion is delivered or any potential inability to satisfy a financial maintenance covenant on a future date or in a future periodmaterial respect) to the effect that such consolidated financial statements fairly ~~present,~~ present in all material ~~respects,~~ respects the financial ~~position~~ condition and results of operations of the Borrower and its consolidated Subsidiaries on a consolidated basis in accordance with GAAP (it being understood that the delivery by the Borrower of annual reports on Form 10-K of the Borrower and its consolidated Subsidiaries shall satisfy the requirements of this Section 5.04(a) to the extent such annual reports include the information specified herein)consistently applied; (b) within 45 days after the end of each of the first three fiscal quarters of each fiscal ~~year (commencing with the fiscal quarter ending June 30~~year, ~~2016), a~~ its consolidated balance sheet and related statements of ~~operations~~ income, stockholders' equity and cash flows showing the financial ~~position~~ condition of the Borrower and its consolidated Subsidiaries as of the close of such fiscal quarter and the ~~consolidated~~ results of ~~their~~ its operations and the operations of such Subsidiaries during such fiscal quarter (other than with respect to statements of cash flows) and the ~~then-~~then elapsed portion of the fiscal ~~year and~~year, ~~starting with the fiscal quarter ending September 30, 2016, setting forth in~~ and comparative ~~form the corresponding~~ figures for the ~~corresponding~~ same periods of in the ~~prior~~ immediately preceding fiscal year and for the consolidated budget for such fiscal year, ~~all~~ in the case of ~~which shall be in reasonable detail, which consolidated balance sheet and related~~ such financial statements ~~of operations and cash flows shall be accompanied by customary management’s discussion and analysis and which consolidated balance sheet and related statements of operations and cash flows shall be~~ certified by a one of its Financial ~~Officer of the Borrower on behalf of the Borrower~~ Officers as fairly ~~presenting,~~ presenting in all material ~~respects,~~ respects the financial ~~position~~ condition and results of operations of the Borrower and its consolidated Subsidiaries on a consolidated basis in accordance with GAAP (consistently applied, subject to normal year-end audit adjustments and the absence of footnotes; (c) ~~(it being understood that~~ within 30 days after the ~~delivery by~~ end of the ~~Borrower~~ first two fiscal months of ~~quarterly reports on Form 10-Q~~ each fiscal quarter, its consolidated balance sheet and related statements of income and cash flows showing the financial condition of the Borrower and its consolidated Subsidiaries during such fiscal month and the then elapsed portion of the fiscal year, all certified by one of its Financial Officers as fairly presenting in all material respects the financial condition and results of operations of the Borrower and its consolidated Subsidiaries on a consolidated basis in accordance with GAAP consistently applied, subject to normal year-end audit adjustments and the absence of footnotes; (d) (i) concurrently with any delivery of financial statements under paragraph (a) or (b) above, a certificate of a Financial Officer (A) certifying that no Event of Default or Default has occurred or, if such an Event of Default or Default has occurred, specifying the nature and extent thereof and any corrective action taken or proposed to be taken with respect thereto, (B) setting forth computations in reasonable detail satisfactory to the Administrative Agent demonstrating compliance with the covenants contained in Sections 6.10, 6.11, 6.12 and 6.13 and (C) if either a Private Equity Issuance or an issuance of Equity Interests described in clause (e) of the definition of the term "Equity Issuance" shall ~~satisfy~~ have occurred during the ~~requirements~~ period covered by such certificate, a description of the amount and the use of proceeds thereof, and, in the case of a certificate delivered with the financial statements required by paragraph (a) above, setting forth the Borrower's calculation of Excess Cash Flow and the Borrower's Share of Excess Cash Flow; (ii) concurrently with the delivery of financial statements under paragraph (a) above, a written statement of the accounting firm opining on such statements stating that (A) their audit has included a reading of the terms of this ~~Section 5.04(b)~~ Agreement and the other Loan Documents as they relate to the ~~extent~~ covenants contained in Sections 6.10, 6.11, 6.12 and 6.13, and (B) no Default or Event of Default has occurred with respect to the covenants contained in Sections 6.10, 6.11, 6.12 or 6.13 or accounting matters, or if such a Default or Event of Default has occurred, specifying the nature thereof, provided that such accountants shall not be liable by reason of any failure to obtain knowledge of any such Default or Event of Default that would not be disclosed in the course of their audit examination; and (iii) concurrently with the delivery of financial statements under paragraph (b) above, management's discussion and analysis of the most important operational and financial developments during the quarterly ~~reports include~~ period covered by such statements; (e) within 30 days after the commencement of each fiscal year of the Borrower commencing on or after January 26, 2002, a detailed consolidated budget for such fiscal year (including a projected consolidated balance sheet and related statements of projected operations and cash flows as of the end of and for such fiscal year and setting forth the assumptions used for purposes of preparing such budget) and, promptly when available, any significant revisions of such budget presented to the board of directors of Holdings or the Borrower; (f) promptly after the same become publicly available, copies of all periodic and other reports, proxy statements and other materials filed by Holdings, the Borrower or any Subsidiary with the Securities and Exchange Commission, or any Governmental Authority succeeding to any or all of the functions of said Commission, or with any national securities exchange, as the case may be; (g) promptly after the receipt thereof by Holdings or the Borrower or any of their respective subsidiaries, a copy of any "management letter" from its certified public accountants and the management's response thereto; and (h) promptly, from time to time, such other information ~~specified herein);~~regarding the operations, business affairs and financial condition of Holdings, the Borrower or any Subsidiary, or compliance with the terms of any Loan Document, as the Administrative Agent, on behalf of any Lender, may reasonably request.

Appears in 1 contract

Sources: Credit Agreement (Monterey Carpets Inc)

Financial Statements, Reports, etc. Furnish to the Administrative Agent (which will promptly furnish such information to the Lenders): (a) within 90 days after the end of each fiscal year (commencing with the fiscal year ending December 31, ~~2016~~2015), a consolidated balance sheet and related statements of operations, cash flows and owners’ equity showing the financial position of the Borrower and its Subsidiaries as of the close of such fiscal year and the consolidated results of their operations during such year ~~and~~ and, starting with the fiscal year ending December 31, 2015, setting forth in comparative form the corresponding figures for the prior fiscal year, which consolidated balance sheet and related statements of operations, cash flows and owners’ equity shall be ~~accompanied by customary management’s discussion and analysis and~~ audited by independent public accountants of recognized national standing and accompanied by an opinion of such accountants (which opinion shall not be qualified as to scope of audit or as to the status of the Borrower or any Material Subsidiary as a going concern, other than solely with respect to, or resulting solely from, an upcoming maturity date under any series of Indebtedness occurring within one year from the time such opinion is delivered or any potential inability to satisfy a financial maintenance covenant on a future date or in a future period) to the effect that such consolidated financial statements fairly present, in all material respects, the financial position and results of operations of the Borrower and its Subsidiaries on a consolidated basis in accordance with GAAP (it being understood that the delivery by the Borrower of annual reports on Form 10-K of the Borrower and its consolidated Subsidiaries shall satisfy the requirements of this Section 5.04(a) to the extent such annual reports include the information specified herein); (b) within 45 days after the end of each of the first three fiscal quarters of each fiscal year (commencing with the fiscal quarter ending June 30, ~~2016~~2015), a consolidated balance sheet and related statements of operations and cash flows showing the financial position of the Borrower and its Subsidiaries as of the close of such fiscal quarter and the consolidated results of their operations during such fiscal quarter and the then-elapsed portion of the fiscal year ~~and, starting with the fiscal quarter ending September 30, 2016,~~ and setting forth in comparative form the corresponding figures for the corresponding periods of the prior fiscal year, all of which shall be in reasonable detail, ~~which consolidated balance sheet and related statements of operations and cash flows shall be accompanied by customary management’s discussion and analysis and~~ which consolidated balance sheet and related statements of operations and cash flows shall be certified by a Financial Officer of the Borrower on behalf of the Borrower as fairly presenting, in all material respects, the financial position and results of operations of the Borrower and its Subsidiaries on a consolidated basis in accordance with GAAP (subject to normal year-end audit adjustments and the absence of footnotes) (it being understood that the delivery by the Borrower of quarterly reports on Form 10-Q of the Borrower and its consolidated Subsidiaries shall satisfy the requirements of this Section 5.04(b) to the extent such quarterly reports include the information specified herein); (c) (x) concurrently with any delivery of financial statements under clause (a) or (b) above, a certificate of a Financial Officer of the Borrower (i) certifying that no Event of Default or Default has occurred since the date of the last certificate delivered pursuant to this Section 5.04(c) or, if such an Event of Default or Default has occurred, specifying the nature and extent thereof and any corrective action taken or proposed to be taken with respect thereto, (ii) commencing with the end of the first full fiscal quarter after the Closing Date, setting forth computations in reasonable detail satisfactory to the Administrative Agent demonstrating compliance with the Financial Covenant and (iii) setting forth the calculation and uses of the Cumulative Credit for the fiscal period then ended if the Borrower shall have used the Cumulative Credit for any purpose during such fiscal period and (y) concurrently with any delivery of financial statements under clause (a) above, if the accounting firm is not restricted from providing such a certificate by its policies office, a certificate of the accounting firm opining on or certifying such statements stating whether they obtained knowledge during the course of their examination of such statements of any Default or Event of Default (which certificate may be limited to accounting matters and disclaim responsibility for legal interpretations); (d) promptly after the same become publicly available, copies of all periodic and other publicly available reports, proxy statements and, to the extent requested by the Administrative Agent, other materials filed by Holdings (prior to a Qualified IPO), the Borrower or any of the Subsidiaries with the SEC, or after an initial public offering, distributed to its stockholders generally, as applicable; provided, however, that such reports, proxy statements, filings and other materials required to be delivered pursuant to this clause (d) shall be deemed delivered for purposes of this Agreement when posted to the website of the Borrower (or Holdings or any Parent Entity referred to in Section 5.04(h)) or the website of the SEC and written notice of such posting has been delivered to the Administrative Agent; (e) within 90 days (or such later date as the Administrative Agent may agree in its reasonable discretion) after the beginning of each fiscal year (commencing with the fiscal year ending December 31, 2015), a consolidated annual budget for such fiscal year consisting of a projected consolidated balance sheet of the Borrower and its Subsidiaries as of the end of the following fiscal year and the related consolidated statements of projected cash flow and projected income (collectively, the “Budget”), which Budget shall in each case be accompanied by the statement of a Financial Officer of the Borrower to the effect that the Budget is based on assumptions believed by the Borrower to be reasonable as of the date of delivery thereof; (f) upon the reasonable request of the Administrative Agent not more frequently than once a year, an updated Perfection Certificate (or, to the extent such request relates to specified information contained in the Perfection Certificate, such information) reflecting all changes since the date of the information most recently received pursuant to this clause (f) or Section 5.10(f); (g) promptly, from time to time, such other information regarding the operations, business affairs and financial condition of Holdings, the Borrower or any of the Subsidiaries, or compliance with the terms of any Loan Document as in each case the Administrative Agent may reasonably request (for itself or on behalf of any Lender); and (h) in the event that Holdings or any Parent Entity reports on a consolidated basis, such consolidated reporting at Holdings or such Parent Entity’s level in a manner consistent with that described in clauses (a) and (b) of this Section 5.04 for the Borrower (together with a reconciliation showing the adjustments necessary to determine compliance by the Borrower and its Subsidiaries with the Financial Covenant) will satisfy the requirements of such paragraphs. The Borrower hereby acknowledges and agrees that all financial statements furnished pursuant to paragraphs (a), (b) and (d) above are hereby deemed to be Borrower Materials suitable for distribution, and to be made available, to Public Lenders as contemplated by Section 9.17 and may be treated by the Administrative Agent and the Lenders as if the same had been marked “PUBLIC” in accordance with such paragraph (unless the Borrower otherwise notifies the Administrative Agent in writing on or prior to delivery thereof).

Appears in 1 contract

Sources: First Lien Credit Agreement (Hostess Brands, Inc.)

Financial Statements, Reports, etc. ~~Furnish~~ In the case of Holdings and Borrower, furnish to the Administrative Agent ~~(which will promptly furnish such information to the Lenders):~~and each Lender: (a) within 90 120 days (or for the first fiscal year ending after the Closing Date, 150 days) after the end of each fiscal year ~~(commencing with~~ of the ~~fiscal year ending December 31~~Borrower, ~~2016), a~~ its consolidated balance sheet and related statements of ~~operations~~income, stockholders’ equity and cash flows ~~and owners’ equity~~ showing the financial ~~position~~ condition of Holdings, the Borrower and its consolidated Subsidiaries as of the close of such fiscal year and the ~~consolidated~~ results of ~~their~~ its operations and the operations of Holdings and such Subsidiaries during such ~~year and setting forth in~~ year, together with comparative ~~form the corresponding~~ figures for the ~~prior~~ immediately preceding fiscal ~~year~~year of the Borrower (but for comparative figures for any immediately preceding fiscal year occurring in 2013 or earlier, ~~which consolidated balance sheet and related statements of operations~~such comparative figures do not need to include Holdings), ~~cash flows and owners’ equity shall be accompanied by customary management’s discussion and analysis and~~ all audited by ▇▇▇▇ ▇▇▇▇▇ LLP or other independent public accountants of recognized national standing reasonably acceptable to the Administrative Agent (it being understood and agreed that the “Big Four” accounting firms are acceptable to the Administrative Agent) and accompanied by an opinion of such accountants (which opinion shall ~~not~~ be ~~qualified as to scope of audit~~ without a “going concern” or like qualification or exception and without any qualification or exception as to the ~~status~~ scope of such audit, except as related solely to the maturity of the ~~Borrower~~ Loans or the Revolving Loans (or any ~~Material Subsidiary as~~ loans from a ~~going concern, other than solely with respect to, or resulting solely from, an upcoming maturity date under any series~~ Permitted Refinancing of ~~Indebtedness occurring within one year from~~ the ~~time such opinion is delivered or any potential inability to satisfy a financial maintenance covenant on a future date or in a future~~ Revolving Loans) during the immediately succeeding twelve-month period) to the effect that such consolidated financial statements fairly ~~present,~~ present in all material ~~respects,~~ respects the financial ~~position~~ condition and results of operations of Holdings, the Borrower and its consolidated Subsidiaries on a consolidated basis in accordance with GAAP ~~(it being understood that the delivery~~ or such other accounting principles as consented to by the Borrower of annual reports on Form 10-K of the Borrower and its consolidated Subsidiaries shall satisfy the requirements of this Section 5.04(a) to the extent such annual reports include the information specified herein)Administrative Agent; (b) within 45 days (or for the fiscal quarter ending September 30, 2013, 90 days) after the end of each of the first three fiscal quarters of each fiscal year of the Borrower (commencing with the fiscal quarter ending ~~June~~ September 30, ~~2016~~2013), a its consolidated balance sheet and related statements of ~~operations~~ income, stockholders’ equity and cash flows showing the financial ~~position~~ condition of Holdings, the Borrower and its consolidated Subsidiaries as of the close of such fiscal quarter and the ~~consolidated~~ results of ~~their~~ its operations and the operations of Holdings and such Subsidiaries during such fiscal quarter and the then-elapsed portion of the fiscal year ~~and~~of the Borrower, ~~starting~~ together with the comparative figures for the same periods in the immediately preceding fiscal year of the Borrower (but for comparative figures for any immediately preceding fiscal quarter occurring in the fiscal quarter ending September 30, ~~2016~~2013 or earlier, ~~setting forth in~~ such comparative ~~form the corresponding~~ figures ~~for the corresponding periods~~ do not need to include Holdings), all certified by one of the ~~prior fiscal year~~Financial Officers of Holdings or the Borrower, ~~all of which shall be in reasonable detail~~as the case may be, which consolidated balance sheet and related statements of operations and cash flows shall be accompanied by customary management’s discussion and analysis and which consolidated balance sheet and related statements of operations and cash flows shall be certified by a Financial Officer of the Borrower on behalf of the Borrower as fairly ~~presenting, in all material respects,~~ presenting the financial ~~position~~ condition and results of operations of Holdings, the Borrower and its consolidated Subsidiaries on a consolidated basis in accordance with GAAP (or such other accounting principles as consented to by the Administrative Agent, subject to normal year-end audit adjustments and the absence of footnotes; (c) concurrently with any delivery of financial statements under paragraph (~~it being understood that~~ a) or (b) above, a certificate of the ~~delivery by the Borrower of quarterly reports on Form 10-Q~~ Financial Officer of the Borrower (a “Compliance Certificate”) (i) certifying that no Event of Default has occurred or, if such an Event of Default has occurred, specifying the nature and ~~its consolidated Subsidiaries shall satisfy~~ extent thereof and any corrective action taken or proposed to be taken with respect thereto and (ii) setting forth computations in reasonable detail, together with supporting calculations, demonstrating compliance (or noncompliance) with the ~~requirements~~ covenant contained in Section 6.10; (i) concurrently with any delivery of financial statements under paragraph (a) or (b) above, (A) a list of any Intellectual Property registered with the United States Patent and Trademark Office or the United States Copyright Office acquired since the last such list delivered pursuant to this Section ~~5.04(b~~5.04(d) (or since the Closing Date, in the case of the first such list delivered after the Closing Date); and (B) an updated Schedule 3.28(a) (if necessary); and (ii) concurrently with any delivery of financial statements under paragraph (a) above, a list of any Intellectual Property registered in countries other than the United States; (e) within 30 days after the beginning of each fiscal year of the Borrower, a detailed consolidated budget for such fiscal year presented on a quarter by quarter basis; (f) promptly after the same become publicly available, copies of all periodic and other reports, proxy statements and other materials filed by Holdings, the Borrower or any Subsidiary with any Governmental Authority or securities exchange, or distributed to its shareholders generally in their capacity as shareholders, as the ~~extent~~ case may be; (g) promptly after the receipt thereof by Holdings, the Borrower or any of their Subsidiaries, a copy of any final “management letter” received by any such ~~quarterly reports include~~ Person from its certified public accountants and the management’s response thereto; (h) promptly after the request by any Lender, all documentation and other information ~~specified herein~~that such Lender reasonably requests in order to comply with its ongoing obligations under applicable “know your customer” and anti-money laundering rules and regulations, including the USA PATRIOT Act; and (i) promptly, from time to time, such other information regarding the operations, business affairs and financial condition of Holdings, the Borrower or any Subsidiary (including for purposes of obtaining and maintaining credit ratings in respect of the Borrower);, or compliance with the terms of any Loan Document, in each case, as the Administrative Agent may reasonably request in writing.

Appears in 1 contract

Sources: Credit Agreement (Blackline, Inc.)

Financial Statements, Reports, etc. Furnish to the Administrative Agent (which will promptly furnish such information to the Lenders): (a) ~~within 90~~ Within (i) 105 days after the end of the fiscal year ending December 31, 2007 and (ii) 95 days after the end of each fiscal year ~~(commencing with the fiscal year~~ ending ~~December 31, 2016)~~thereafter, a consolidated balance sheet and related statements of operations, cash flows and owners’ equity showing the financial position of the Borrower and its Subsidiaries as of the close of such fiscal year and the consolidated results of ~~their~~ its operations during such year ~~and~~ and, starting with the fiscal year ending December 31, 2008, setting forth in comparative form the corresponding figures for the prior fiscal year, which consolidated balance sheet and related statements of operations, cash flows and owners’ equity shall be ~~accompanied by customary management’s discussion and analysis and~~ audited by independent public accountants of recognized national standing and accompanied by an opinion of such accountants (which opinion shall not be qualified as to scope of audit or as to the status of the Borrower or any Material Subsidiary as a going concern, other than solely with respect to, or resulting solely from, an upcoming maturity date under any series of Indebtedness occurring within one year from the time such opinion is delivered or any potential inability to satisfy a financial maintenance covenant on a future date or in a future period) to the effect that such consolidated financial statements fairly present, in all material respects, the financial position and results of operations of the Borrower and its Subsidiaries on a consolidated basis in accordance with GAAP (it being understood that the delivery by the Borrower of annual reports on Form 10-K of the Borrower and its consolidated Subsidiaries shall satisfy the requirements of this Section 5.04(a) to the extent such annual reports include the information specified herein); (b) within 45 50 days after the end of each of the first three fiscal quarters of each fiscal year ~~(commencing~~ beginning with the fiscal quarter ending June 30, ~~2016~~2007 (or, in the case of the first two fiscal quarters for which quarterly financial statements are required to be delivered hereunder, within 75 days following the end of such fiscal quarter), (i) a consolidated balance sheet and related statements of operations and cash flows showing the financial position of the Borrower and its Subsidiaries as of the close of such fiscal quarter and the consolidated results of ~~their~~ its operations during such fiscal quarter and the then-elapsed portion of the fiscal year ~~and, starting with the fiscal quarter ending September 30, 2016,~~ and setting forth in comparative form the corresponding figures for the corresponding periods of the prior fiscal year, and (ii) management’s discussion and analysis of significant operational and financial developments during such quarterly period, all of which shall be in reasonable ~~detail, which consolidated balance sheet and related statements of operations and cash flows shall be accompanied by customary management’s discussion and analysis~~ detail and which consolidated balance sheet and related statements of operations and cash flows shall be certified by a Financial Officer of the Borrower on behalf of the Borrower as fairly presenting, in all material respects, the financial position and results of operations of the Borrower and its Subsidiaries on a consolidated basis in accordance with GAAP (subject to normal year-end audit adjustments and the absence of footnotes) (it being understood that the delivery by the Borrower of quarterly reports on Form 10-Q of the Borrower and its consolidated Subsidiaries shall satisfy the requirements of this Section 5.04(b) to the extent such quarterly reports include the information specified herein);

Appears in 1 contract

Sources: Credit Agreement (Noranda Aluminum Acquisition CORP)

Financial Statements, Reports, etc. Furnish to the Administrative Agent (which will promptly furnish such information to the Lenders): (a) within 90 days after the end of each fiscal ~~year (~~year, commencing with the fiscal year ending December 31, ~~2016)~~2017, a consolidated balance sheet and related statements of operations, cash flows and owners’ equity showing the financial position of the Borrower and its Subsidiaries as of the close of such fiscal year and the consolidated results of their operations during such year and setting forth in comparative form the corresponding figures for the prior fiscal year, which consolidated balance sheet and related statements of operations, cash flows and owners’ equity shall be accompanied by customary management’s discussion and analysis and audited by independent public accountants of recognized national standing and accompanied by an opinion of such accountants (which opinion shall not be qualified as to scope of audit or as to the status of the Borrower ~~or any Material Subsidiary~~ as a going ~~concern,~~ concern other than ~~solely~~ with respect ~~to,~~ to or resulting ~~solely~~ from, an upcoming maturity date of any Indebtedness under ~~any series of Indebtedness~~ this Agreement occurring within one year from the time such opinion is ~~delivered or any potential inability to satisfy a financial maintenance covenant on a future date or in a future period~~delivered) to the effect that such consolidated financial statements fairly present, in all material respects, the financial position and results of operations of the Borrower and its Subsidiaries on a consolidated basis in accordance with GAAP (it being understood that the delivery by the Borrower of annual reports on Form 10-K of the Borrower and its consolidated Subsidiaries shall satisfy the requirements of this Section 5.04(a) to the extent such annual reports include the information specified ~~herein~~herein and are delivered within the time period specified above); (b) within 45 days after the end of each of the first three fiscal quarters of each fiscal year (commencing with the first fiscal quarter ~~ending June 30, 2016~~(other than the fourth fiscal quarter of the Borrower’s fiscal year) after the most recent fiscal quarter for which financial statements have been delivered pursuant to Section 4.02(i)), a consolidated balance sheet and related statements of operations and cash flows showing the financial position of the Borrower and its Subsidiaries as of the close of such fiscal quarter and the consolidated results of their operations during such fiscal quarter and the then-elapsed portion of the fiscal year ~~and, starting with the fiscal quarter ending September 30, 2016,~~ and setting forth in comparative form the corresponding figures for the corresponding periods of the prior fiscal year, all of which shall be in reasonable detail, which consolidated balance sheet and related statements of operations and cash flows shall be accompanied by customary management’s discussion and analysis and which consolidated balance sheet and related statements of operations and cash flows shall be certified by a Financial Officer of the Borrower on behalf of the Borrower as fairly presenting, in all material respects, the financial position and results of operations of the Borrower and its Subsidiaries on a consolidated basis in accordance with GAAP (subject to normal year-end audit adjustments and the absence of certain footnotes) (it being understood that the delivery by the Borrower of quarterly reports on Form 10-Q of the Borrower and its consolidated Subsidiaries shall satisfy the requirements of this Section 5.04(b) to the extent such quarterly reports include the information specified ~~herein~~herein and are delivered within the time period specified above); (c) concurrently with any delivery of financial statements under clause (a) or (b) above, a certificate of a Financial Officer of the Borrower (i) certifying that no Event of Default or Default has occurred since the date of the last certificate delivered pursuant to this Section 5.04(c) (or since the Effective Date in the case of the first such certificate) or, if such an Event of Default or Default has occurred, specifying the nature and extent thereof and any corrective action taken or proposed to be taken with respect thereto and (ii) commencing with the end of the first full fiscal quarter after the Closing Date, setting forth computations in reasonable detail satisfactory to the Administrative Agent demonstrating compliance with the Financial Covenants (if applicable); (d) promptly after the same become publicly available, copies of all periodic and other publicly available reports, proxy statements and, to the extent requested by the Administrative Agent, other materials filed by the Borrower or any of the Subsidiaries with the SEC, or distributed to its stockholders generally, as applicable; provided, however, that such reports, proxy statements, filings and other materials required to be delivered pursuant to this clause (d) shall be deemed delivered for purposes of this Agreement when posted to the website of the Borrower or the website of the SEC and written notice of such posting has been delivered to the Administrative Agent; (e) within 90 days after the beginning of each fiscal year that commences after the Effective Date, a consolidated annual budget for such fiscal year consisting of a projected consolidated balance sheet of the Borrower and its Subsidiaries as of the end of such fiscal year and the related consolidated statements of projected cash flow and projected income (collectively, the “Budget”), which Budget shall in each case be accompanied by the statement of a Financial Officer of the Borrower to the effect that the Budget is based on assumptions believed by the Borrower to be reasonable as of the date of delivery thereof; (f) concurrently with the delivery of financial statements under clause (a) above, an updated Perfection Certificate reflecting all changes since the date of the information most recently received pursuant to this clause (f) or Section 4.03, as applicable (or a certificate of a Responsible Officer certifying as to the absence of any changes to the previously delivered update, if applicable); and (g) promptly, from time to time, such other information regarding the operations, business affairs and financial condition of the Borrower or any of the Subsidiaries, or compliance with the terms of any Loan Document as in each case the Administrative Agent may reasonably request (for itself or on behalf of any Lender). The Borrower hereby acknowledges that (a) the Administrative Agent and/or the Arrangers may, but shall not be obligated to, make available to the Lenders and the Issuing Banks materials and/or information provided by or on behalf of the Borrower hereunder (collectively, “Borrower Materials”) by posting the Borrower Materials on IntraLinks, Syndtrak, ClearPar, or a substantially similar electronic transmission system (the “Platform”) and (b) certain of the Lenders (each, a “Public Lender”) may have personnel who do not wish to receive material non-public information with respect to the Borrower or its Affiliates, or the respective securities of any of the foregoing, and who may be engaged in investment and other market-related activities with respect to such persons’ securities. The Borrower hereby agrees that (w) the Borrower Materials that are to be distributed to the 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 Issuing Banks and the Lenders to treat such Borrower Materials as not containing any material non-public information (although it may be sensitive and proprietary) with respect to the Borrower, its Subsidiaries or any of their respective securities for purposes of United States Federal and state securities laws; (y) all Borrower Materials marked “PUBLIC” are permitted to be made available through a portion of the Platform designated “Public Side Information”; and (z) the Administrative Agent and the Arrangers shall be entitled to treat any Borrower Materials that are not marked “PUBLIC” as being suitable only for posting on a portion of the Platform not designated “Public Side Information.”

Appears in 1 contract

Sources: Credit Agreement (Centurylink, Inc)

Appears in 1 contract

Sources: Term Loan Credit Agreement (Magnera Corp)

Financial Statements, Reports, etc. Furnish to the Administrative Agent (which will promptly furnish such information to the Lenders): (a) within 90 120 days after the end of ~~each fiscal year (commencing with~~ the fiscal year ending December 31, ~~2016)~~2022 and with respect to each fiscal year ending thereafter, a consolidated balance sheet and related statements of operations, cash flows and owners’ equity showing the financial position of the Primary Borrower and its Subsidiaries as of the close of such fiscal year and the consolidated results of their operations during such year and setting forth in comparative form the corresponding figures for the prior fiscal year, which consolidated balance sheet and related statements of operations, cash flows and owners’ equity shall be accompanied by customary management’s discussion and analysis and audited by independent public accountants of recognized national standing and accompanied by an opinion of such accountants (which opinion shall not be qualified as to scope of audit or as to the status of ~~the~~ Primary Borrower or any Material Subsidiary as a going concern, other than solely with respect to, or resulting solely from, an upcoming maturity date under any series of Indebtedness occurring within one year from the time such opinion is delivered or any potential inability to satisfy a financial maintenance covenant on a future date or in a future period) to the effect that such consolidated financial statements fairly present, in all material respects, the financial position and results of operations of the Primary Borrower and its Subsidiaries on a consolidated basis in accordance with GAAP (it being understood that the delivery by the Primary Borrower of annual reports on Form 10-K (or any successor or comparable form) of the Primary Borrower and its consolidated Subsidiaries shall satisfy the requirements of this Section 5.04(a) to the extent such annual reports include the information specified herein); (b) (i) within 45 60 days after the end of each of the first three fiscal quarters of each fiscal year (commencing with the fiscal quarter ending ~~June~~ September 30, ~~2016~~2022), a consolidated balance sheet and related statements of operations and cash flows showing the financial position of the Primary Borrower and its Subsidiaries as of the close of such fiscal quarter and the consolidated results of their operations during such fiscal quarter and the then-elapsed portion of the fiscal year and, starting with the fiscal quarter ending ~~September 30~~December 31, ~~2016~~2022, setting forth in comparative form the corresponding figures for the corresponding periods of the prior fiscal year, all of which shall be in reasonable detail, which consolidated balance sheet and related statements of operations and cash flows shall be accompanied by customary management’s discussion and analysis and which consolidated balance sheet and related statements of operations and cash flows shall be certified by a Financial Officer of the ~~Borrower on behalf of the~~ Primary Borrower as fairly presenting, in all material respects, the financial position and results of operations of the Borrower and its Subsidiaries on a consolidated basis in accordance with GAAP (subject to normal year-end audit adjustments and the absence of footnotes) and (ii) within 60 days after the end of each fourth fiscal quarter of each fiscal year (commencing with the fourth fiscal quarter ending December 31, 2022), a consolidated balance sheet and related statements of operations and cash flows showing the financial position of the Borrower and its Subsidiaries as of the close of such fiscal quarter and the consolidated results of their operations during such fiscal quarter, all of which shall be in reasonable detail and shall be accompanied by a certificate of a Financial Officer of the Primary Borrower, as fairly presenting, in all material respects, the financial position and results of operations of the Primary Borrower and its Subsidiaries on a consolidated basis in accordance with GAAP (subject to normal year-end audit adjustments and the absence of footnotes) (it being understood that the delivery by the Primary Borrower of quarterly reports on Form 10-Q (or any successor or comparable form) of the Borrower and its consolidated Subsidiaries shall satisfy the requirements of this Section ~~5.04(b~~5.04(b)(i) or (ii) to the extent such quarterly reports include the information specified herein); (c) Within 45 days after the end of each fiscal month ending after the Closing Date (commencing with the fiscal month ending September 30, 2022 and other than any fiscal month that ends on the same day as the end of a fiscal quarter), an unaudited internally prepared statement of income of the Primary Borrower and its Subsidiaries for such month (including reports on revenues, direct and indirect costs and the resulting “EBITDA” for such month and reports on consolidated cash balances and consolidated Indebtedness balances of the Borrower and its Subsidiaries for such month), all of which shall be in reasonable detail and which unaudited internally prepared statement of income shall be certified by a Financial Officer of the Primary Borrower on behalf of the Primary Borrower as fairly presenting, in all material respects, such financial information; (d) concurrently with any delivery of financial statements under clause (a) or (b) above, a duly executed and completed Compliance Certificate; (e) promptly after the same become publicly available, copies of all periodic and other publicly available reports, proxy statements and, to the extent requested by the Administrative Agent, other materials filed by the Primary Borrower or any of the Subsidiaries with the SEC, or after an initial public offering, distributed to its stockholders generally, as applicable; provided, however, that such reports, proxy statements, filings and other materials required to be delivered pursuant to this clause (e) shall be deemed delivered for purposes of this Agreement when posted to the website of the Primary Borrower or the website of the SEC and written notice of such posting has been delivered to the Administrative Agent; (f) within 90 days (or such later date as the Administrative Agent may agree in its reasonable discretion) after the beginning of each fiscal year (commencing with the fiscal year ending December 31, 2023), a consolidated annual budget for such fiscal year consisting of a projected consolidated balance sheet of the Primary Borrower and its Subsidiaries as of the end of the following fiscal year and the related consolidated statements of projected cash flow and projected income (collectively, the “Budget”), which Budget shall in each case be accompanied by the statement of a Financial Officer of the Primary Borrower to the effect that the Budget is based on assumptions believed by the Primary Borrower to be reasonable as of the date of delivery thereof; (g) upon the reasonable request of the Administrative Agent not more frequently than once a year, an updated Perfection Certificate (or, to the extent such request relates to specified information contained in the Perfection Certificate, such information) reflecting all changes since the date of the information most recently received pursuant to this clause (g) or Section 5.10(f); (h) promptly, from time to time, such other information regarding the operations, business affairs and financial condition of the Primary Borrower or any of the Subsidiaries (including the Co-Borrower), or compliance with the terms of any Loan Document as in each case the Administrative Agent may reasonably request (for itself or on behalf of any Lender); and (i) Promptly upon the delivery or receipt thereof (and in any event not later than five (5) Business Days after such delivery or receipt), copies of any notice of any event of default under the documents governing the Existing Midcap Facility or any Permitted Refinancing Indebtedness thereof and (B) promptly upon the execution thereof (and in any event not later than five (5) Business Days after the date of execution), copies of any amendment, restatement, supplement or other modification to documents governing the Existing Midcap Facility or any Permitted Refinancing Indebtedness, and any reports and borrowing base certificates delivered thereunder, and (ii) (A) upon the delivery or receipt thereof (and in any event not later than five (5) Business Days after such delivery or receipt), copies of any notice of any event of default under any documents governing any Junior Financing and (B) promptly upon the execution thereof (and in any event not later than five (5) Business Days after the date of execution), copies of any amendment, restatement, supplement or other modification to any documents governing any Junior Financing, and (iii) upon the delivery or receipt thereof (and in any event not later than five (5) Business Days after such delivery or receipt), copies of any notice of any event of default under the CSS License Agreement or the CSS Management Agreement and (B) promptly upon the execution thereof (and in any event not later than five (5) Business Days after the date of execution), copies of any amendment, restatement, supplement or other modification to the CSS License Agreement or the CSS Management Agreement. The Primary Borrower hereby acknowledges and agrees that all financial statements furnished pursuant to paragraphs (a), (b)(i) and (e) above are hereby deemed to be Borrower Materials suitable for distribution, and to be made available, to Public Lenders as contemplated by Section 9.17 and may be treated by the Administrative Agent and the Lenders as if the same had been marked “PUBLIC” in accordance with such paragraph (unless the Primary Borrower otherwise notifies the Administrative Agent in writing on or prior to delivery thereof).

Appears in 1 contract

Sources: Credit Agreement (Chicken Soup for the Soul Entertainment, Inc.)

Financial Statements, Reports, etc. Furnish to the Administrative Agent (which will promptly furnish such information to the Lenders): (a) ~~within 90~~ Within 105 days ~~after~~ following the end of each fiscal year (commencing with the fiscal year ending December 31, ~~2016~~2013), a consolidated balance sheet and related statements of operations, cash flows and ~~owners~~stockholders’ equity showing the financial position of ~~the Borrower~~ Evertec and its ~~Subsidiaries~~ subsidiaries as of the close of such fiscal year and the consolidated results of ~~their~~ its operations during such year and setting forth in comparative form the corresponding figures for the prior fiscal year, which consolidated balance sheet and related statements of operations, cash flows and ~~owners~~stockholders’ equity shall be ~~accompanied by customary management’s discussion and analysis and~~ audited by independent public accountants of recognized national standing and accompanied by an opinion of such accountants (which ~~opinion~~ shall not be qualified as to scope of audit or as to the status of Evertec, the Borrower or any Material Subsidiary as a going concern, other than solely with respect to, or resulting solely from, an upcoming maturity date under any series of Indebtedness occurring within one year from the time such opinion is delivered or any potential inability to satisfy a financial maintenance covenant on a future date or in a future period) to the effect that such consolidated financial statements fairly present, in all material respects, the financial position and results of operations of ~~the Borrower~~ Evertec and its ~~Subsidiaries~~ subsidiaries on a consolidated basis in accordance with GAAP (it being understood that the delivery by ~~the Borrower~~ Evertec of annual reports on Form 10-K of ~~the Borrower~~ Evertec and its consolidated Subsidiaries shall satisfy the requirements of this Section 5.04(a) to the extent such annual reports include the information specified herein); (b) ~~within~~ Within 45 ~~days after~~ days, following the end of each of the first three fiscal quarters of each fiscal year (commencing with the fiscal quarter ending ~~June 30~~March 31, ~~2016~~2013), a consolidated balance sheet and related statements of operations and cash flows showing the financial position of ~~the Borrower~~ Evertec and its ~~Subsidiaries~~ subsidiaries as of the close of such fiscal quarter and the consolidated results of ~~their~~ its operations during such fiscal quarter and the then-elapsed portion of the fiscal year ~~and, starting with the fiscal quarter ending September 30, 2016,~~ and setting forth in comparative form the corresponding figures for the corresponding periods of the prior fiscal year, all of which shall be in reasonable ~~detail, which consolidated balance sheet and related statements of operations and cash flows shall be accompanied by customary management’s discussion and analysis~~ detail and which consolidated balance sheet and related statements of operations and cash flows shall be certified by a Financial Officer of ~~the Borrower on behalf of~~ Evertec, Holdings or the Borrower as fairly presenting, in all material respects, the financial position and results of operations of ~~the Borrower~~ Evertec and its ~~Subsidiaries~~ subsidiaries on a consolidated basis in accordance with GAAP (subject to normal year-end audit adjustments and the absence of footnotes) (it being understood that the delivery by ~~the Borrower~~ Evertec of quarterly reports on Form 10-Q of ~~the Borrower~~ Evertec and its consolidated ~~Subsidiaries~~ subsidiaries shall satisfy the requirements of this Section 5.04(b) to the extent such quarterly reports include the information specified herein);

Appears in 1 contract

Sources: Credit Agreement (EVERTEC, Inc.)

Financial Statements, Reports, etc. Furnish to the Administrative Agent (which will promptly furnish such information to the Lenders): (a) within 90 days after the end of each fiscal year ~~(commencing with~~ ending after the ~~fiscal year ending December 31, 2016)~~Closing Date, a consolidated balance sheet and related statements of operations, cash flows and owners’ equity showing the financial position of the ~~Borrower~~ Parent and its Subsidiaries as of the close of such fiscal year and the consolidated results of their operations during such year and setting forth in comparative form the corresponding figures for the prior fiscal year, which consolidated balance sheet and related statements of operations, cash flows and owners’ equity shall be accompanied by customary management’s discussion and analysis and audited by independent public accountants of recognized national standing and accompanied by an opinion of such accountants (which opinion shall not be qualified as to scope of audit or as to the status of the ~~Borrower~~ Parent or any Material Subsidiary as a going concern, other than solely with respect to, or resulting solely from, an upcoming maturity date under any series of Indebtedness incurred under this Agreement occurring within one year from the time such opinion is ~~delivered or any potential inability to satisfy a financial maintenance covenant on a future date or in a future period~~delivered) to the effect that such consolidated financial statements fairly present, in all material respects, the financial position and results of operations of the ~~Borrower~~ Parent and its Subsidiaries on a consolidated basis in accordance with ~~GAAP~~ Applicable Accounting Principles (it being understood that the delivery by the ~~Borrower~~ Parent of annual reports on Form 10-K of the ~~Borrower~~ Parent and its consolidated Subsidiaries shall satisfy the requirements of this Section 5.04(a) to the extent such annual reports include the information specified herein); (b) within 45 days after the end of each of the first three fiscal quarters of each fiscal year (commencing with the first fiscal quarter ending ~~June 30, 2016~~after the Closing Date), a consolidated balance sheet and related statements of operations and cash flows showing the financial position of the ~~Borrower~~ Parent and its Subsidiaries as of the close of such fiscal quarter and the consolidated results of their operations during such fiscal quarter and the then-elapsed portion of the fiscal year ~~and, starting with the fiscal quarter ending September 30, 2016,~~ and setting forth in comparative form the corresponding figures for the corresponding periods of the prior fiscal year, all of which shall be in reasonable detail, which consolidated balance sheet and related statements of operations and cash flows shall be accompanied by customary management’s discussion and analysis and which consolidated balance sheet and related statements of operations and cash flows shall be certified by a Financial Officer of the ~~Borrower~~ Parent on behalf of the ~~Borrower~~ Parent as fairly presenting, in all material respects, the financial position and results of operations of the ~~Borrower~~ Parent and its Subsidiaries on a consolidated basis in accordance with ~~GAAP~~ Applicable Accounting Principles (subject to normal year-end audit adjustments and the absence of footnotes) (it being understood that the delivery by the ~~Borrower~~ Parent of quarterly reports on Form 10-Q of the ~~Borrower~~ Parent and its consolidated Subsidiaries shall satisfy the requirements of this Section 5.04(b) to the extent such quarterly reports include the information specified herein); (c) (x) no later than five (5) days after any financial statements are delivered or required to be delivered under clause (a) or (b) above, a certificate of a Financial Officer of the Parent (i) certifying that no Event of Default or Default has occurred since the date of the last certificate delivered pursuant to this Section 5.04(c) (or since the Closing Date in the case of the first such certificate) or, if such an Event of Default or Default has occurred, specifying the nature and extent thereof and any corrective action taken or proposed to be taken with respect thereto, (ii) commencing with the end of the first full fiscal quarter after the Closing Date, setting forth computations in reasonable detail satisfactory to the Administrative Agent demonstrating compliance with the Financial Covenant and (iii) setting forth the calculation and uses of the Available Amount for the fiscal period then ended if any Borrower shall have used the Available Amount for any purpose during such fiscal period and (y) no later than five (5) days after any financial statements are delivered or required to be delivered under clause (a) above, if the accounting firm is not restricted from providing such a certificate by its policies office, a certificate of the accounting firm opining on or certifying such statements stating whether they obtained knowledge during the course of their examination of such statements of any Default or Event of Default (which certificate may be limited to accounting matters and disclaim responsibility for legal interpretations); (d) promptly after the same become publicly available, copies of all periodic and other publicly available reports, proxy statements and, to the extent requested by the Administrative Agent, other materials filed by the Parent, any Borrower or any of the Subsidiaries with the SEC, or distributed to its stockholders generally, as applicable; provided, however, that such reports, proxy statements, filings and other materials required to be delivered pursuant to this clause (d) shall be deemed delivered for purposes of this Agreement when posted to the website of the Parent or the website of the SEC and written notice of such posting has been delivered to the Administrative Agent; (e) within 90 days after the beginning of each fiscal year that commences after the Closing Date, a consolidated annual budget for such fiscal year consisting of a projected consolidated balance sheet of the Parent and its Subsidiaries as of the end of the following fiscal year and the related consolidated statements of projected cash flow and projected income (collectively, the “Budget”), which Budget shall in each case be accompanied by the statement of a Financial Officer of the Parent to the effect that the Budget is based on assumptions believed by the Parent to be reasonable as of the date of delivery thereof; (f) no later than five (5) days after any financial statements are delivered or required to be delivered under clause (a) above, an updated Perfection Certificate reflecting all changes since the date of the information most recently received pursuant to this clause (f) or Section 5.10(c) (or a certificate of a Responsible Officer certifying as to the absence of any changes to the previously delivered update, if applicable); and (g) promptly, from time to time, such other information regarding the operations, business affairs and financial condition of the Parent, the Borrowers or any of the Subsidiaries, or compliance with the terms of any Loan Document as in each case the Administrative Agent may reasonably request (for itself or on behalf of any Lender). The Borrowers hereby acknowledge and agree that all financial statements furnished pursuant to paragraphs (a), (b) and (d) above are hereby deemed to be Borrower Materials suitable for distribution, and to be made available, to Public Lenders as contemplated by Section 9.17 and may be treated by the Administrative Agent and the Lenders as if the same had been marked “PUBLIC” in accordance with such paragraph (unless the Lux Borrower otherwise notifies the Administrative Agent in writing on or prior to delivery thereof).

Appears in 1 contract

Sources: Incremental Assumption Agreement (Mallinckrodt PLC)

Common use of Financial Statements, Reports, etc Clause in Contracts