Borrowing Base Certificates Prior to the occurrence of a Reporting Trigger Event (and after a Reporting Trigger Event has not existed for 30 consecutive days), Borrowers shall, by the 12th Business Day of each month, deliver to Agent (and Agent shall promptly deliver same to Lenders) a Borrowing Base Certificate prepared as of the close of business of the previous month, and at such other times as Agent may reasonably request. After the occurrence of a Reporting Trigger Event and until such time as a Reporting Trigger Event has not existed for 30 consecutive days, Borrowers shall, on or before 10:00 p.m. on the second Business Day of each week, deliver to Agent (and Agent shall promptly deliver same to Lenders) a Borrowing Base Certificate prepared as of the close of business of Friday of the immediately preceding week, and at such other times as Agent may reasonably request. All calculations of Availability in any Borrowing Base Certificate shall originally be made by Borrowers and signed by a Senior Officer or the Controller of Borrower Agent or its general partner, provided that Agent may in its Permitted Discretion from time to time review and adjust any such calculation (a) to reflect its reasonable estimate of declines in value of any Collateral, due to collections received in the Dominion Account or otherwise; and (b) to the extent the calculation is not made in accordance with this Agreement or does not accurately reflect the Availability Reserve. Furthermore, Borrower shall, on or before the Inventory Structuring Transaction Commencement Date applicable to each Permitted Inventory Structuring Transaction, deliver to Agent (and Agent shall deliver to Lenders) an updated Borrowing Base Certificate prepared as of the close of business of the month immediately preceding such Inventory Structuring Transaction Commencement Date, adjusted to exclude from the Borrowing Base (i) all Accounts of such Inventory Structuring Subsidiary owed by the applicable Inventory Structuring Counterparty, (ii) all Accounts of such Inventory Structuring Subsidiary which constitute or consist of insurance proceeds of any Hydrocarbon Inventory at any Inventory Structuring Location or any proceeds of such insurance proceeds, (iii) all Inventory of such Inventory Structuring Subsidiary at any Inventory Structuring Location, and (iv) without duplication of the foregoing, any cash or Cash Equivalents pledged to secured the obligations with respect to such Permitted Inventory Structuring Transaction. On or after the Inventory Structuring Transaction Termination Date with respect to any Permitted Inventory Structuring Transaction, Borrower Agent may deliver to Agent (and Agent shall deliver to Lenders) an updated Borrowing Base Certificate prepared as of the close of business of the immediately preceding month, adjusted to include in the Borrowing Base any Collateral previously excluded solely as a result of being subject to such Permitted Inventory Structuring Transaction, together with a certificate certifying that the Inventory Structuring Transaction Termination Date with respect to such Permitted Inventory Structuring Transaction has occurred, and such Collateral shall be eligible for inclusion in the Borrowing Base (subject to the requirements otherwise set forth in this Agreement).
Initial Borrowing Base Certificate Duly executed originals of an initial Borrowing Base Certificate from Borrower, dated the Closing Date, reflecting information concerning Eligible Accounts and Eligible Inventory of Borrower as of a date not more than seven (7) days prior to the Closing Date.
Borrower Financial Statements Borrower has delivered to Lender copies of regulatory financial statements on the appropriate regulatory form filed by Borrower (the “Borrower 2008 Financial Statements”) for the 12 months ended December 31, 2008. The Borrower 2008 Financial Statements are true and correct in all material respects, are prepared in accordance with the respective books of account and records of Borrower and its Subsidiaries and have been prepared in accordance with applicable banking regulations, rules and guidelines and with GAAP on a basis consistent with prior periods, and fairly and accurately present in all material respects the financial condition of Borrower and its assets and liabilities and the results of its operations as at, and for the period ending at, such date. In addition, Borrower has delivered to Lender copies of its regulatory financial statements filed by Borrower for the period ended June 30, 2009 (“Interim Financial Statements” and together with the Borrower 2008 Financial Statements, the “Borrower Financial Statements”). The Interim Financial Statements are true and correct in all material respects, are prepared in accordance with the respective books of account and records of Borrower and its Subsidiaries and have been prepared in accordance with applicable banking regulations, rules and guidelines and with GAAP, without footnotes and subject to year end adjustments, on a basis consistent with prior periods, and, to the best of Borrower’s knowledge, fairly and accurately present in all material respects the financial condition of Borrower and its assets and liabilities and the results of its operations as at, and for the period ending at, such date. The Borrower Financial Statements contain and reflect provisions for taxes, reserves and other liabilities of Borrower in accordance with applicable banking regulations, rules and guidelines, respectively. Borrower does not have any material debt, liability or obligation of any nature (whether accrued, contingent, absolute or otherwise) which is not provided for or disclosed in the Borrower Financial Statements.
Financial Statements; Borrowing Base and Other Information The Borrowers will furnish to the Administrative Agent and each Lender:
Borrowing Base Certificate The Administrative Agent shall have received a Borrowing Base Certificate which calculates the Borrowing Base as of the end of the month immediately preceding the Effective Date.
Financial Statements, Reports, Certificates Borrower shall deliver the following to Bank: (i) as soon as available, but in any event within twenty five (25) days after the end of each calendar month, a company prepared consolidated and consolidating balance sheet and income statement covering Borrower’s operations during such period, in a form reasonably acceptable to Bank and certified by a Responsible Officer; (ii) as soon as available, but in any event within one hundred fifty (150) days after the end of Borrower’s fiscal year (beginning with the 2010 fiscal year), audited consolidated and consolidating financial statements of Borrower prepared in accordance with GAAP, consistently applied, together with an opinion which is unqualified or otherwise consented to in writing by Bank on such financial statements of an independent certified public accounting firm reasonably acceptable to Bank; (iii) if applicable, copies of all statements, reports and notices sent or made available generally by Borrower to its security holders or to any holders of Subordinated Debt and all reports on Forms 10-K and 10-Q filed with the Securities and Exchange Commission; (iv) promptly upon receipt of notice thereof, a report of any legal actions pending or threatened against Borrower or any Subsidiary that could reasonably be expected to result in damages or costs to Borrower or any Subsidiary of One Hundred Thousand Dollars ($100,000) or more; (v) promptly upon receipt, each management letter prepared by Borrower’s independent certified public accounting firm regarding Borrower’s management control systems; (vi) no later than twenty five (25) days prior to the end of each fiscal year of Borrower, an annual business plan including a monthly operating budget; (vii) such other budgets, sales projections, operating plans or other financial information generally prepared by Borrower in the ordinary course of business as Bank may reasonably request from time to time; and (viii) within thirty (30) days of the last day of each fiscal quarter, a report signed by Borrower, in form reasonably acceptable to Bank, listing any applications or registrations that Borrower has made or filed in respect of any Patents, Copyrights or Trademarks and the status of any outstanding applications or registrations, as well as any material change in Borrower’s Intellectual Property Collateral, including but not limited to any subsequent ownership right of Borrower in or to any Trademark, Patent or Copyright not specified in Exhibits A, B, and C of any Intellectual Property Security Agreement delivered to Bank by Borrower in connection with this Agreement.
Financial Statements, etc The financial statements, including the notes thereto and supporting schedules included in the Registration Statement, the Pricing Disclosure Package and the Prospectus, fairly present the financial position and the results of operations of the Company at the dates and for the periods to which they apply; and such financial statements have been prepared in conformity with U.S. generally accepted accounting principles (“GAAP”), consistently applied throughout the periods involved (provided that unaudited interim financial statements are subject to year-end audit adjustments that are not expected to be material in the aggregate and do not contain all footnotes required by GAAP); and the supporting schedules included in the Registration Statement present fairly the information required to be stated therein. Except as included therein, no historical or pro forma financial statements are required to be included in the Registration Statement, the Pricing Disclosure Package or the Prospectus under the Securities Act or the Securities Act Regulations. The pro forma and pro forma as adjusted financial information and the related notes, if any, included in the Registration Statement, the Pricing Disclosure Package and the Prospectus have been properly compiled and prepared in accordance with the applicable requirements of the Securities Act and the Securities Act Regulations and present fairly the information shown therein, and the assumptions used in the preparation thereof are reasonable and the adjustments used therein are appropriate to give effect to the transactions and circumstances referred to therein. All disclosures contained in the Registration Statement, the Pricing Disclosure Package or the Prospectus regarding “non-GAAP financial measures” (as such term is defined by the rules and regulations of the Commission), if any, comply with Regulation G of the Exchange Act and Item 10 of Regulation S-K of the Securities Act, to the extent applicable. Each of the Registration Statement, the Pricing Disclosure Package and the Prospectus discloses all material off-balance sheet transactions, arrangements, obligations (including contingent obligations), and other relationships of the Company with unconsolidated entities or other persons that may have a material current or future effect on the Company’s financial condition, changes in financial condition, results of operations, liquidity, capital expenditures, capital resources, or significant components of revenues or expenses. Except as disclosed in the Registration Statement, the Pricing Disclosure Package and the Prospectus, (a) neither the Company nor any of its direct and indirect subsidiaries, including each entity disclosed or described in the Registration Statement, the Pricing Disclosure Package and the Prospectus as being a subsidiary of the Company (each, a “Subsidiary” and, collectively, the “Subsidiaries”), has incurred any material liabilities or obligations, direct or contingent, or entered into any material transactions other than in the ordinary course of business, (b) the Company has not declared or paid any dividends or made any distribution of any kind with respect to its capital stock, (c) there has not been any change in the capital stock of the Company or any of its Subsidiaries, or, other than in the course of business, any grants under any stock compensation plan, and (d) there has not been any material adverse change in the Company’s long-term or short-term debt.
Borrowing Base Reports Within thirty (30) days after the last day of each month, aged listings of accounts receivable and accounts payable (by invoice date) (the “Borrowing Base Reports”);
Financial Statements; Projections Each Arranger and the Lenders shall have received (1) the Section 6.12(b) Statements (as defined in the Merger Agreement) for Target’s 2006 fiscal year, (2) unaudited consolidated balance sheets and related statements of income and cash flows of Target and its Subsidiaries (which (x) need not include any information or notes not required by GAAP to be included in interim financial statements, (y) are subject to normal year-end adjustments and (z) need not have been reviewed by Target’s independent auditing firm as provided in Statement on Auditing Standards No. 100) for each fiscal quarter of Target ended after the close of its most recent fiscal year for which financial statements are provided pursuant to the preceding clause (1) and at least 45 days prior to the Closing Date, (3) pro forma consolidated balance sheets and related statements of income of Company and its Subsidiaries (including Target) for the Fiscal Year described in clause (1) above, and for any quarters ended thereafter for which unaudited financial statements are required to be delivered pursuant to clause (2) above, in each case prepared as if the transactions contemplated by this Agreement had been consummated on the last day of the respective period (in the case of balance sheets) or on the first day of the respective period (in the case of income statements) covered thereby, and (4) detailed projected consolidated financial statements of Company and its Subsidiaries for the five Fiscal Years ended after the Closing Date, which projections shall (x) reflect the forecasted consolidated financial condition of Company and its Subsidiaries after giving effect to the transactions contemplated by this Agreement and the related financing thereof and (y) be prepared and approved by Company. It is understood and agreed that the unaudited financial statements required to be delivered pursuant to this subsection 4.1D shall be subject to the Restatement and Related Matters and any impact that any such matters may have on the information set forth in such financial statements except to the extent that any such financial statements are delivered after the date Target has filed with the Securities Exchange Commission restated audited financial statements for its fiscal years ended December 31, 2000 through December 31, 2006.
Financial Statements, Reports Provide Bank with the following by submitting to the Financial Statement Repository or otherwise submitting to Bank:
