Financial Statements and Other Information. (a) Each Borrower and each Guarantor shall, and shall cause each of its and their Subsidiaries to, keep proper books and records in which true and complete entries shall be made of all dealings or transactions of or in relation to the Collateral and the business of each Borrower, each Guarantor and each of their respective Subsidiaries in accordance with GAAP. Borrowers and Guarantors shall promptly furnish to Administrative and Collateral Agent any and all financial or other information as Administrative and Collateral Agent may reasonably request relating to the Collateral and the assets, business and operations of Borrowers and Guarantors, and to notify the auditors and accountants of Borrowers and Guarantors that Administrative and Collateral Agent is authorized to obtain such information directly from them. Without limiting the foregoing, Borrowers shall furnish or cause to be furnished to Administrative and Collateral Agent, the following: (i) within thirty (30) days after the end of each fiscal month (or within forty-five (45) days if such fiscal month end is also a fiscal quarter end), unaudited consolidated financial statements (including in each case balance sheets, statements of income and loss, statements of cash flow, and statements of shareholders’ equity), all in reasonable detail, fairly presenting the financial position and the results of the operations of BlueLinx and its Subsidiaries as of the end of and through such fiscal month (or quarter), certified to be correct by the chief financial officer of BlueLinx, subject to normal year-end adjustments and lack of footnotes and, if a Compliance Period is then in effect, accompanied by a compliance certificate substantially in the form of Exhibit C hereto, along with a schedule in form reasonably satisfactory to Administrative and Collateral Agent of the calculations used in determining, as of the end of such month (or quarter), whether Borrowers were in compliance with the covenants set forth in Section 9.17 of this Agreement for such month (or quarter); and (ii) within ninety (90) days after the end of each fiscal year, audited consolidated financial statements of BlueLinx and its Subsidiaries (including in each case balance sheets, statements of income and loss, statements of cash flow and statements of shareholders’ equity), and the accompanying notes thereto, all in reasonable detail, fairly presenting the financial position and the results of the operations of BlueLinx and its Subsidiaries as of the end of and for such fiscal year, together with (A) the unqualified opinion of independent certified public accountants, which accountants shall be an independent accounting firm selected by Borrowers and reasonably acceptable to Administrative and Collateral Agent, that such financial statements have been prepared in accordance with GAAP, and present fairly the results of operations and financial condition of BlueLinx and its Subsidiaries as of the end of and for the fiscal year then ended and (B) any management letters that may be issued with regard to the Borrowers or Guarantors.
Appears in 2 contracts
Samples: Loan and Security Agreement (BlueLinx Holdings Inc.), Loan and Security Agreement (BlueLinx Holdings Inc.)
Financial Statements and Other Information. (a) Each Borrower and Deliver to Agent, with copies to each Guarantor shallLender, and shall cause each of its and their Subsidiaries tothe financial statements, keep proper books and records in which true and complete entries shall be made of all dealings or transactions of or in relation to the Collateral and the business of each Borrowerreports, each Guarantor and each of their respective Subsidiaries in accordance with GAAP. Borrowers and Guarantors shall promptly furnish to Administrative and Collateral Agent any and all financial or other information items set forth set forth below at the following times in form satisfactory to Agent: as Administrative and Collateral Agent may reasonably request relating to the Collateral and the assetssoon as available, business and operations of Borrowers and Guarantors, and to notify the auditors and accountants of Borrowers and Guarantors that Administrative and Collateral Agent is authorized to obtain such information directly from them. Without limiting the foregoing, Borrowers shall furnish or cause to be furnished to Administrative and Collateral Agent, the following: (i) but in any event within thirty (30) 30 days after the end of each of the first two months during each of Borrower’s fiscal month quarters (or within forty-five (45) days if each such fiscal month end is also a fiscal quarter enddate, the “Monthly Deadline”), (a) (i) an unaudited consolidated balance sheet, income statement and statement of cash flows covering Borrower’s and its Subsidiaries’ operations during such period, together with (ii) a report showing the figures for the corresponding fiscal period of the immediately preceding fiscal year in comparative form and (iii) a Compliance Certificate; provided, however, that if Borrower has included any of the items listed in clause (a)(i) above in a report filed with the SEC by the applicable Monthly Deadline, then in lieu of the foregoing Borrower may (x) provide Agent written notice (in the Compliance Certificate or elsewhere) no later than 1 Business Day after the applicable Monthly Deadline that Borrower has included such items in a report filed with the SEC and describe in reasonable detail the report and the items included therein and (y) deliver to Agent no later than 1 Business Day after the applicable Monthly Deadline copies of any items listed in clause (a)(i) above that were not included in any report filed with the SEC by the applicable Monthly Deadline and a Compliance Certificate; as soon as available, but in any event within 45 days after the end of each of Borrower’s fiscal quarters during each of Borrower’s fiscal years (each such date, the “Quarterly Deadline”), (b) (i) an unaudited consolidated balance sheet, income statement and statement of cash flows covering Borrower’s and its Subsidiaries’ operations during such period, together with a report showing the figures for the corresponding fiscal period of the immediately preceding fiscal year in comparative form, and (ii) a Compliance Certificate. provided, further, however, that if Borrower has included any of the items listed in clause (b)(i) above in a report filed with the SEC by the applicable Quarterly Deadline, then in lieu of the foregoing Borrower may (x) provide Agent written notice (in the Compliance Certificate or elsewhere) no later than 1 Business Day after the applicable Quarterly Deadline that Borrower has included such items in a report filed with the SEC and describe in reasonable detail the report and the items included therein and (y) deliver to Agent no later than 1 Business Day after the applicable Quarterly Deadline copies of any items listed in clause (b)(i) above that were not included in any report filed with the SEC by the applicable Quarterly Deadline and a Compliance Certificate. As soon as available, but in any event within 90 days after the end of each of Borrower’s fiscal years (each such date, the “Annual Deadline”), (c) (i) consolidated financial statements (including in each case balance sheets, statements of income and loss, statements of cash flow, and statements of shareholders’ equity), all in reasonable detail, fairly presenting the financial position and the results of the operations of BlueLinx Borrower and its Subsidiaries for each such fiscal year, audited by independent certified public accountants reasonably acceptable to Agent and certified, without (A) qualification or exception as to the scope of such audit, or (B) qualification which relates to the treatment or classification of any item and which, as a condition to the removal of such qualification, would require an adjustment to such item, the effect of which would be to cause any noncompliance with any of the end provisions of Article VII of the Agreement, by such accountants to have been prepared in accordance with GAAP (such audited financial statements to include a consolidated balance sheet, income statement, and through statement of cash flows and, if prepared, such accountants’ letter to management), together with a report showing the figures for the immediately preceding fiscal year in comparative form, and (ii) a Compliance Certificate; provided, however, that if Borrower has filed any of the items listed in clause (c)(i) above in its Form 10-K annual report with the SEC by the applicable Annual Deadline, then in lieu of the foregoing Borrower may (1) provide Agent written notice (in the Compliance Certificate or elsewhere) no later than 1 Business Day after the applicable Annual Deadline that Borrower has filed its 10-K with the SEC and (2) deliver to Agent no later than 1 Business Day after the applicable Annual Deadline copies of any items listed in clause (c) above that were not included in the Form 10-K annual report filed with the SEC and a Compliance Certificate. As soon as available, but in any event within 30 days prior to the start of (d) copies of Borrower’s Projections, in form and substance (including as to scope and underlying assumptions) satisfactory to Agent, in its reasonable discretion, for the forthcoming fiscal year, month by month for such fiscal month (or quarter)year, certified to be correct by the chief financial officer of BlueLinx, subject to normal year-end adjustments and lack of footnotes and, if a Compliance Period is then in effect, accompanied by a compliance certificate substantially in the form of Exhibit C hereto, along with a schedule in form reasonably satisfactory to Administrative and Collateral Agent Borrower as being such officer’s good faith estimate of the calculations used in determiningfinancial performance of Borrower during the period covered thereby; provided, however that, notwithstanding the foregoing, each of Borrower’s fiscal years, as of the end of such month (or quarter), whether Borrowers were in compliance with the covenants set forth in Section 9.17 5.18 of this Agreement the Agreement, Borrower shall submit to the Advisory Firm and the Agent a copy of the Borrower’s business plan for such month the fiscal year ending on or about January 1, 2014 by no later than November 30, 2012. If and when filed by Borrower, (or quarter); e) Form 10-Q quarterly reports, Form 10-K annual reports, and Form 8-K current reports, (f) any other filings made by Borrower with the SEC, and (iig) any other information that is provided by Borrower to its shareholders generally. As soon as available, but in any event within ninety (90) days 3 Business Days after the end of each fiscal yearweek of each month (each such date, audited consolidated financial statements the “Weekly Deadline”) (h) (i) a reasonably detailed cash flows forecast for the next successive 13 weeks, (ii) a detailed aging of BlueLinx the Accounts of the Borrower and its Subsidiaries Subsidiaries, at the invoice level on an entity by entity basis, (including iii) a summary aging, by vendor, of Borrower’s and its Subsidiaries’ accounts payable on an entity by entity basis, (iv) a detailed report regarding Borrower and its Subsidiaries’ cash and Cash Equivalents on an entity by entity basis, and (v) bookings and backlog detail, as well as shipments by customer; provided however that if the Borrower is in each case balance sheetscompliance with all of its financial covenants and with the other terms of the Credit Agreement for the quarter ending on or about April 1, statements of income and loss2013, statements of cash flow and statements of shareholders’ equityas evidenced by the Borrower’s Compliance Certificate for such quarter, (x) Borrower shall no longer be required to deliver the deliverables set forth in (h)(i), (h)(ii) or (h)(iii) noted above and (y) with respect to the accompanying notes theretodeliverable set forth in (h)(v) above, all Borrower shall be required to deliver such information by the Monthly Deadline rather than the Weekly Deadline. Promptly after execution, receipt or delivery thereof, (i) copies of any new material contracts, material amendments to material contracts, notices of termination of any material contracts that Borrower executes or receives in reasonable detailconnection with any Material Contract, fairly presenting the financial position and the results notices of material defaults in respect of any Material Contract. provided, however, that if Borrower has included any of the operations of BlueLinx and its Subsidiaries as items listed above in a report filed with the SEC by the applicable time period required for reporting with the SEC, then, in lieu of the end foregoing, Borrower may provide Agent written notice no later than 1 Business Day after the applicable deadline that Borrower has included such items in a report filed with the SEC. upon the request of and for such fiscal year, together with (A) the unqualified opinion of independent certified public accountants, which accountants shall be an independent accounting firm selected by Borrowers and reasonably acceptable to Administrative and Collateral Agent, that such financial statements have been prepared in accordance with GAAP, and present fairly (j) any other information reasonably requested relating to the results of operations and financial condition of BlueLinx and Borrower or its Subsidiaries as of the end of and for the fiscal year then ended and (B) any management letters that may be issued with regard to the Borrowers or GuarantorsSubsidiaries.
Appears in 2 contracts
Samples: Credit Agreement (Powerwave Technologies Inc), Credit Agreement (Powerwave Technologies Inc)
Financial Statements and Other Information. The Borrower will furnish to the Administrative Agent: (a) Each Borrower and each Guarantor shall, and shall cause each of its and their Subsidiaries to, keep proper books and records in which true and complete entries shall be made of all dealings or transactions of or in relation to the Collateral and the business of each Borrower, each Guarantor and each of their respective Subsidiaries in accordance with GAAP. Borrowers and Guarantors shall promptly furnish to Administrative and Collateral Agent any and all financial or other information as Administrative and Collateral Agent may reasonably request relating to the Collateral and the assets, business and operations of Borrowers and Guarantors, and to notify the auditors and accountants of Borrowers and Guarantors that Administrative and Collateral Agent is authorized to obtain such information directly from them. Without limiting the foregoing, Borrowers shall furnish or cause to be furnished to Administrative and Collateral Agent, the following: (i) within thirty (30) 90 days after the end of each fiscal month (or within forty-five (45) days if such fiscal month end is also a fiscal quarter end)Fiscal Year, unaudited its audited consolidated financial statements (including in each case balance sheets, sheet and related statements of income operations, stockholders' equity and loss, statements of cash flow, and statements of shareholders’ equity), all in reasonable detail, fairly presenting the financial position and the results of the operations of BlueLinx and its Subsidiaries flows as of the end of and through for such fiscal month year, setting forth in each case in comparative form the figures for the previous Fiscal Year, all reported on by Deloitte & Touche LLP or other independent public accountants of recognized national standing (without a "going concern" or quarter), certified like qualification or exception and without any qualification or exception as to be correct by the chief scope of such audit) to the effect that such consolidated financial officer statements present fairly in all material respects the financial condition and results of BlueLinx, subject to normal year-end adjustments and lack of footnotes and, if a Compliance Period is then in effect, accompanied by a compliance certificate substantially in the form of Exhibit C hereto, along with a schedule in form reasonably satisfactory to Administrative and Collateral Agent operations of the calculations used Borrower and its consolidated Subsidiaries on a consolidated basis in determining, accordance with GAAP consistently applied (except as of the end of otherwise disclosed in such month (or quarter), whether Borrowers were in compliance with the covenants set forth in Section 9.17 of this Agreement for such month (or quarterfinancial statements); and (iib) within ninety (90) 45 days after the end of each of the first three fiscal yearquarters of each Fiscal Year, audited its consolidated financial balance sheet and related statements of BlueLinx operations, stockholders' equity and its Subsidiaries (including in each case balance sheets, statements of income and loss, statements of cash flow and statements of shareholders’ equity), and the accompanying notes thereto, all in reasonable detail, fairly presenting the financial position and the results of the operations of BlueLinx and its Subsidiaries flows as of the end of and for such fiscal yearquarter and the then elapsed portion of the Fiscal Year, together with setting forth in each case in comparative form the figures for the corresponding period or periods of (A) or, in the unqualified opinion case of independent certified public accountantsthe balance sheet, which accountants shall be an independent accounting firm selected by Borrowers and reasonably acceptable to Administrative and Collateral Agent, that such financial statements have been prepared in accordance with GAAP, and present fairly the results of operations and financial condition of BlueLinx and its Subsidiaries 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 basis in accordance with GAAP consistently applied, subject to normal year-end and audit adjustments and the absence of footnotes; (c) within 30 days after the end of each of the first two fiscal months of each fiscal quarter of the Borrower, the monthly "Operating Cash Flow (EBITDA)" report for such month, substantially in the fiscal year then ended form delivered to the Lenders prior to the Effective Date; (d) concurrently with any delivery of financial statements under clause (a) or (b) above, a certificate of a Financial Officer of the Borrower (i) 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, (ii) in the case of such financial statements under clause (a) or (b) above, setting forth reasonably detailed calculations demonstrating compliance with Sections 6.16, 6.17, 6.18 and 6.19 and determining the Applicable Rate and (Biii) stating whether any management letters that may be issued with regard to change in GAAP or in the Borrowers or Guarantors.application thereof has occurred since the date of the
Appears in 2 contracts
Samples: Credit Agreement (Pathmark Stores Inc), Credit Agreement (Supermarkets General Holdings Corp)
Financial Statements and Other Information. (a) Each Borrower Parent and each Guarantor Borrower shall, and shall cause each of its and their respective Subsidiaries to, keep proper books and records in which true true, current and complete entries shall be made of all dealings or transactions of or in relation to the Collateral and the business of each Borrower, each Guarantor Parent or such Borrower and each of their respective its Subsidiaries in accordance with GAAP. Borrowers and Guarantors shall promptly furnish to Administrative and Collateral Agent any and all financial or other information as Administrative and Collateral Agent may reasonably request relating to the Collateral and the assets, business and operations of Borrowers and Guarantors, and to notify the auditors Parent and accountants of Borrowers and Guarantors that Administrative and Collateral Agent is authorized to obtain such information directly from them. Without limiting the foregoing, Borrowers each Borrower shall furnish or cause to be furnished to Administrative and Collateral Agent, the followingLender: (i) within thirty forty (3040) days after the end of each fiscal month (or within forty-five (45) days if such fiscal month end is also a fiscal quarter end)month, monthly unaudited consolidated financial statements (including in each case balance sheets, statements of income and loss, statements of cash flow, loss and statements of shareholders’ ' equity), all in reasonable detail, fairly presenting the financial position and the results of the operations of BlueLinx Parent and its Subsidiaries as of the end of and through such fiscal month (or quarter), certified to be correct by the chief financial officer of BlueLinx, subject to normal year-end adjustments and lack of footnotes and, if a Compliance Period is then in effect, accompanied by a compliance certificate substantially in the form of Exhibit C hereto, along with a schedule in form reasonably satisfactory to Administrative and Collateral Agent of the calculations used in determining, as of the end of such month (or quarter), whether Borrowers were in compliance with the covenants set forth in Section 9.17 of this Agreement for such month (or quarter); and (ii) within ninety (90) days after the end of each fiscal year, audited consolidated financial statements of BlueLinx Parent and its Subsidiaries (including in each case balance sheets, statements of income and loss, statements of cash flow and statements of shareholders’ ' equity), and the accompanying notes thereto, all in reasonable detail, fairly presenting the financial position and the results of the operations of BlueLinx Parent and its Subsidiaries as of the end of and for such fiscal year, together with (A) the unqualified opinion of independent certified public accountants, which accountants shall be an independent accounting firm selected by Borrowers Parent and reasonably acceptable to Administrative and Collateral AgentLender, that such financial statements have been prepared in accordance with GAAP, and present fairly the results of operations and financial condition of BlueLinx Parent and its Subsidiaries as of the end of and for the fiscal year then ended and (B) any management letters that may be issued with regard to the Borrowers or Guarantorsended.
Appears in 2 contracts
Samples: Loan and Security Agreement (Atlantic Express Transportation Corp), Loan and Security Agreement (Atlantic Express Transportation Corp)
Financial Statements and Other Information. (a) Each Borrower and each Guarantor shall, and shall cause each of its and their Subsidiaries any Subsidiary to, keep proper books and records in which true and complete entries shall be made of all dealings or transactions of or in relation to the Collateral and the business businesses of each Borrower, each Guarantor Borrowers and each of Guarantors and their respective Subsidiaries in accordance with GAAP. GAAP and Borrowers and Guarantors shall promptly furnish to Administrative and Collateral Agent any and all financial or other information as Administrative and Collateral Agent may reasonably request relating to the Collateral and the assets, business and operations of Borrowers and Guarantors, and to notify the auditors and accountants of Borrowers and Guarantors that Administrative and Collateral Agent is authorized to obtain such information directly from them. Without limiting the foregoing, Borrowers shall furnish or cause to be furnished to Administrative and Collateral Agent, the followingLender: (i) within thirty (30) days after the end of each fiscal month (or within forty-five (45) days if such fiscal month end is also a fiscal quarter end)month, monthly unaudited consolidated financial statements and unaudited consolidating financial statements (including in each case balance sheets, statements of income and loss, but not including statements of cash flow, flow and statements of shareholders’ equity' equity on a consolidating basis, which shall only be furnished to Lender within forty-five (45) days after the end of each fiscal quarter), all in reasonable detail, fairly presenting in all material respects the financial position and the results of the operations of BlueLinx Waxman Industries and its Subsidiaries as of the end of and through such fiscal month (or quarter), certified to be correct by the chief financial officer of BlueLinx, subject to normal year-end adjustments and lack of footnotes and, if a Compliance Period is then in effect, accompanied by a compliance certificate substantially in the form of Exhibit C hereto, along with a schedule in form reasonably satisfactory to Administrative and Collateral Agent of the calculations used in determining, as of the end of such month (or quarter), whether Borrowers were in compliance with the covenants set forth in Section 9.17 of this Agreement for such month (or quarter); and (ii) within ninety (90) days after the end of each fiscal year, audited consolidated financial statements and unaudited consolidating financial statements of BlueLinx Waxman Industries and its Subsidiaries (including in each case balance sheets, statements of income and loss, statements of cash flow and statements of shareholders’ ' equity), and the accompanying notes thereto, all in reasonable detail, fairly presenting in all material respects the financial position and the results of the operations of BlueLinx Waxman Industries and its Subsidiaries as of the end of and for such fiscal year, together with (A) the unqualified opinion of independent certified public accountants, which accountants shall be an independent accounting firm selected by Borrowers and reasonably acceptable to Administrative and Collateral AgentLender, that such financial statements have been prepared in accordance with GAAP, and present fairly in all material respects the results of operations and financial condition of BlueLinx Waxman Industries and its Subsidiaries as of the end of and for the fiscal year then ended and (B) any management letters that may be issued with regard to the Borrowers or Guarantorsended.
Appears in 2 contracts
Samples: Loan and Security Agreement (Waxman Industries Inc), Loan and Security Agreement (Waxman Industries Inc)
Financial Statements and Other Information. (a) Each Borrower and each Guarantor shall, and shall cause each of its and their Subsidiaries to, keep proper books and records in which true and complete entries shall be made of all dealings or transactions of or in relation to the Collateral and the business businesses of each Borrower, each Guarantor Guarantors and each of their respective Subsidiaries in accordance with GAAP. Borrowers GAAP and Guarantors shall promptly furnish to Administrative and Collateral Agent any and all financial or other information as Administrative and Collateral Agent may reasonably request relating to the Collateral and the assets, business and operations of Borrowers and Guarantors, and to notify the auditors and accountants of Borrowers and Guarantors that Administrative and Collateral Agent is authorized to obtain such information directly from them. Without limiting the foregoing, Borrowers Borrower shall furnish or cause to be furnished to Administrative and Collateral Agent, the followingLender: (i) within thirty forty-five (3045) days after the end of each fiscal month (or within forty-five (45) days if such fiscal month end is also a fiscal quarter end)month, monthly unaudited consolidated financial statements, and unaudited consolidating financial statements (including in each case balance sheets, statements of income and loss, statements of cash flow, and statements of shareholders’ ' equity), all in reasonable detail, fairly presenting the financial position and the results of the operations of BlueLinx Holdings and its Subsidiaries as of the end of and through such fiscal month (or quarter), certified to be correct by except for the chief financial officer last month of BlueLinx, subject to normal each fiscal year-end adjustments and lack of footnotes and, if a Compliance Period is then in effect, accompanied by a compliance certificate substantially in the form of Exhibit C hereto, along with a schedule in form reasonably satisfactory to Administrative and Collateral Agent of the calculations used in determining, as of the end of such month (or quarter), whether Borrowers were in compliance with the covenants set forth in Section 9.17 of this Agreement for such month (or quarter); ) and (ii) within ninety (90) days after the end of each fiscal year, audited consolidated financial statements and audited consolidating financial statements of BlueLinx Holdings and its Subsidiaries (including in each case balance sheets, statements of income and loss, statements of cash flow and statements of shareholders’ ' equity), and the accompanying notes thereto, all in reasonable detail, fairly presenting the financial position and the results of the operations of BlueLinx Holdings and its Subsidiaries as of the end of and for such fiscal year, together with (A) the unqualified opinion of independent certified public accountants, which accountants shall be an independent accounting firm selected by Borrowers Holdings and reasonably acceptable to Administrative and Collateral AgentLender, that such financial statements have been prepared in accordance with GAAP, and present fairly the results of operations and financial condition of BlueLinx Holdings and its Subsidiaries as of the end of and for the fiscal year then ended and (B) any management letters that may be issued with regard to the Borrowers or Guarantorsended.
Appears in 2 contracts
Samples: Loan and Security Agreement (Anvil Knitwear Inc), Loan and Security Agreement (Anvil Holdings Inc)
Financial Statements and Other Information. (a) Each Borrower and each Guarantor Guarantors shall, and shall cause each of its and their Subsidiaries any Subsidiary to, keep proper books and records in which true and complete entries shall be made of all dealings or transactions of or in relation to the Collateral and the business of each Borrower, each Guarantor Guarantors and each their Subsidiaries in accordance with sound business practices sufficient to permit the preparation of their respective Subsidiaries financial statements in accordance with GAAP. Borrowers Borrower and Guarantors Guarantor shall promptly furnish to Administrative Agent and Collateral Agent any Lenders all such financial and all financial or other information as Administrative and Collateral Agent may shall reasonably request relating to the Collateral and the assets, business and operations of Borrowers Borrower and Guarantors, and to Borrower shall notify the auditors and accountants of Borrowers Borrower and Guarantors that Administrative and Collateral Agent is authorized to obtain such information directly from them. Without limiting the foregoing, Borrowers Borrower and Guarantors shall furnish or cause to be furnished to Administrative and Collateral Agent, the following: (i) within thirty (30) days after the end of each fiscal month (or within forty-five (45) days if such fiscal month end is also a fiscal quarter end)month, monthly unaudited consolidated financial statements statements, (including in each case balance sheets, statements of income and loss, statements of cash flow, and statements of shareholders’ equity), all in reasonable detail, fairly presenting in all material respects the financial position and the results of the operations of BlueLinx Borrower and its Subsidiaries as of the end of and through such fiscal month (or quartertogether with a comparison to the applicable prior year period), certified to be correct by the chief financial officer of BlueLinxBorrower, subject to normal year-end adjustments and lack of no footnotes and, if in the case of financial statements as of the end of a Compliance Period is then in effectfiscal quarter of Borrower, accompanied by a compliance certificate substantially in the form of Exhibit C hereto, along with a schedule in a form reasonably satisfactory to Administrative and Collateral Agent of the calculations used in determining, as of the end of such month (or quarter), whether Borrowers were Borrower and Guarantor are in compliance with the covenants set forth in Section 9.17 9.18 of this Agreement for as of the end of such month (or quarter); quarter and (ii) within ninety (90) days after the end of each fiscal year, audited consolidated financial statements and unaudited consolidating financial statements of BlueLinx Borrower and its Subsidiaries (including in each case balance sheets, statements of income and loss, statements of cash flow flow, and statements of shareholders’ equity), and the accompanying notes thereto, all in reasonable detail, fairly presenting in all material respects the financial position and the results of the operations of BlueLinx Borrower and its Subsidiaries as of the end of and for such fiscal year, together with (A) the unqualified opinion of independent certified public accountantsaccountants with respect to the audited consolidated financial statements, which accountants shall be an KPMG or another independent accounting firm of nationally recognized reputation selected by Borrowers and reasonably acceptable to Administrative and Collateral AgentBorrower, that such audited consolidated financial statements have been prepared in accordance with GAAP, and present fairly in all material respects the results of operations and financial condition of BlueLinx Borrower and its Subsidiaries as of the end of and for the fiscal year then ended and (B) any management letters that may be issued with regard to the Borrowers or Guarantorsended.
Appears in 2 contracts
Samples: Loan and Security Agreement (HHG Distributing, LLC), Loan and Security Agreement (Hhgregg, Inc.)
Financial Statements and Other Information. (a) Each Borrower and each Guarantor shall, and shall cause each of its and their Subsidiaries any Subsidiary to, keep proper books and records in which true and complete entries shall be made of all dealings or transactions of or in relation to the Collateral and the business of each such Borrower, each Guarantor and each of their respective its Subsidiaries in accordance with GAAP. Borrowers and Guarantors shall promptly furnish to Administrative Agent and Collateral Agent any Lenders within a reasonable time all such financial and all financial or other information as Administrative and Collateral Agent may shall reasonably request relating to the Collateral and the assets, business and operations of Borrowers and Guarantors, and to Borrower shall notify the auditors and accountants of Borrowers and Guarantors that Administrative and Collateral Agent is authorized to obtain such information directly from them; provided, that, so long as no Default or Event of Default shall exist or have occurred and be continuing, Agent shall not exercise its right under this Section 9.6 to contact the accountants and auditors directly to obtain information from them not relating to the Collateral without the prior approval of Lead Borrower, which approval shall not be unreasonably withheld, conditioned or delayed. Without limiting the foregoing, Borrowers and Guarantors shall furnish or cause to be furnished to Administrative and Collateral Agent, the following: (i) within thirty (30) days after the end of each fiscal month four (4) week period (or within forty-five (45) days if such after the end of each fiscal month end is also a fiscal quarter endquarter), unaudited consolidated financial statements (including in each case balance sheets, statements of income and loss, statements of cash flowflows, and statements of shareholders’ ' equity), and unaudited consolidating financial statements (including balance sheets and statements of income and loss), all in reasonable detaildetail and substantially in the form of Exhibit D-1 hereto, fairly presenting the financial position and the results of the operations of BlueLinx Parent and its Subsidiaries as of the end of and through such fiscal month four (or quarter)4) week period, certified to be correct by the chief financial officer or vice president of BlueLinxfinance of Parent, subject to normal year-end adjustments and lack of no footnotes and, if a Compliance Period is then in effect, and accompanied by a compliance certificate substantially in the form of Exhibit C E hereto, along with a schedule in a form reasonably satisfactory to Administrative and Collateral Agent in good faith of the calculations used in determining, as of the end of such month four (or quarter)4) week period, whether Borrowers were and Guarantors are in compliance with the covenants set forth in Section 9.17 Sections 9.18 and 9.19 of this Agreement for such month fiscal four (or quarter); 4) week period and (ii) within ninety (90) days after the end of each fiscal year, audited consolidated financial statements of BlueLinx Parent and its Subsidiaries (including in each case balance sheets, statements of income and loss, statements of cash flow flows, and statements of shareholders’ ' equity) and unaudited consolidating financial statements (including balance sheets and statements of income and loss), and the accompanying notes thereto, all in reasonable detaildetail and substantially in the form of Exhibit D-2 hereto, fairly presenting in all material respects the financial position and the results of the operations of BlueLinx Parent and its Subsidiaries as of the end of and for such fiscal year, together with (A) the unqualified 83 opinion of independent certified public accountantsaccountants with respect to the audited consolidated financial statements, which accountants shall be an Deloitte & Touche LLP, another nationally recognized independent accounting firm selected by Borrowers and reasonably acceptable to Administrative Agent or a regional independent accounting firm selected by Borrowers and Collateral acceptable to Agent, that such audited consolidated financial statements have been prepared in accordance with GAAP, and present fairly in all material respects the results of operations and financial condition of BlueLinx Parent and its Subsidiaries as of the end of and for the fiscal year then ended ended. All references to a "fiscal four (4) week period" herein or otherwise in this Agreement or any of the other Financing Agreements shall mean such four (4) or five (5) week periods as calculated in accordance with the current accounting practices of Borrowers and (B) any management letters that may be issued with regard to Guarantors as of the Borrowers or Guarantorsdate hereof.
Appears in 2 contracts
Samples: Loan and Security Agreement (Spartan Stores Inc), Loan and Security Agreement (Spartan Stores Inc)
Financial Statements and Other Information. (a) Each The Borrower and each Guarantor shall, and its Subsidiaries shall cause each of its and their Subsidiaries to, keep proper books and records in which true and complete entries shall be made of all dealings or transactions of or in relation to the Collateral and the business of each Borrower, each Guarantor the Borrower and each its Subsidiaries in accordance with sound business practices sufficient to permit the preparation of their respective Subsidiaries financial statements in accordance with GAAP. Borrowers The Borrower and Guarantors its Subsidiaries shall promptly furnish to the Administrative Agent and Collateral Agent any the Lenders all such financial and all financial or other information as the Administrative and Collateral Agent may shall reasonably request relating to the Collateral and the assets, business and operations of Borrowers the Borrower and Guarantorsits Subsidiaries, and to the Borrower shall notify the auditors and accountants of Borrowers and Guarantors the Borrower that the Administrative and Collateral Agent is authorized to obtain such information directly from them. Without limiting the foregoing, Borrowers the Borrower and its Subsidiaries shall furnish or cause to be furnished to the Administrative and Collateral Agent, the following: (i) within thirty (30) days (or earlier if required by Applicable Law) after the end of each fiscal month (or except for fiscal months which are the end of fiscal quarters, then within forty-five (45) days (or earlier if such required by Applicable Law) after the end of the first three fiscal month quarters and within ninety (90) days (or earlier if required by Applicable Law) after the end is also a of the fourth fiscal quarter), monthly, and with respect to any fiscal quarter end), quarterly unaudited consolidated financial statements statements, (including in each case balance sheets, statements of income and loss, statements of cash flow, and statements of shareholders’ equity), all in reasonable detail, fairly presenting in all material respects the financial position and the results of the operations of BlueLinx the Borrower and its Subsidiaries as of the end of and through such fiscal month (or quartertogether with a comparison to the applicable prior year period), certified to be correct by the chief financial officer of BlueLinxthe Borrower, subject to normal year-end adjustments and lack of no footnotes and, if a Compliance Period is then in effect, accompanied by a compliance certificate substantially in the form case of Exhibit C hereto, along with a schedule in form reasonably satisfactory to Administrative and Collateral Agent of the calculations used in determining, financial statements as of the end of such month (or quarter)a fiscal quarter of the Borrower, whether Borrowers were in compliance with the covenants set forth in Section 9.17 of this Agreement for such month (or quarter); accompanied by an Officer’s Compliance Certificate and (ii) within ninety (90) days (or earlier if required by Applicable Law) after the end of each fiscal year, audited consolidated financial statements and unaudited consolidating financial statements of BlueLinx the Borrower and its Subsidiaries (including in each case balance sheets, statements of income and loss, statements of cash flow flow, and statements of shareholders’ equity), and the accompanying notes thereto, all in reasonable detail, fairly presenting in all material respects the financial position and the results of the operations of BlueLinx the Borrower and its Subsidiaries as of the end of and for such fiscal year, together with (A) the unqualified opinion of independent certified public accountantsaccountants with respect to the audited consolidated financial statements, which accountants shall be an KPMG LLP or another independent accounting firm of nationally recognized reputation selected by Borrowers and reasonably acceptable to Administrative and Collateral Agentthe Borrower, that such audited consolidated financial statements have been prepared in accordance with GAAP, and present fairly in all material respects the results of operations and financial condition of BlueLinx the Borrower and its Subsidiaries as of the end of and for the fiscal year then ended and (B) any management letters that may be issued with regard to the Borrowers or Guarantorsended.
Appears in 2 contracts
Samples: Credit Agreement (Hhgregg, Inc.), Credit Agreement (Hhgregg, Inc.)
Financial Statements and Other Information. Borrower shall furnish to Lender: (ai) Each Borrower as soon as available and each Guarantor shall, and shall cause each of its and their Subsidiaries to, keep proper books and records in which true and complete entries shall be made of all dealings or transactions of or in relation to any event within 30 days after the Collateral and the business end of each month of each fiscal year of Borrower, each Guarantor and each of their respective Subsidiaries its monthly consolidated financial statements, prepared in accordance with GAAP. Borrowers , and, if requested by Lender, its monthly consolidating financial statements, accompanied by a certificate of a Responsible Officer stating that such financial statements fairly present the financial condition of Borrower and Guarantors shall promptly furnish to Administrative and Collateral Agent any and all financial or other information its Subsidiaries as Administrative and Collateral Agent may reasonably request relating to the Collateral at such date and the assets, business and results of operations of Borrowers Borrower and Guarantorsits Subsidiaries for the period ended on such date and have been prepared in accordance with GAAP consistently applied, subject to changes from normal, year-end adjustments and except for the absence of notes, (ii) as soon as available and in any event within 45 days after the end of the first three fiscal quarters of each fiscal year of Borrower, its quarterly consolidated financial statements, prepared in accordance with GAAP, and, if requested by Lender, its quarterly consolidating financial statements, accompanied by a certificate of a Responsible Officer stating that such financial statements fairly present the financial condition of Borrower and its Subsidiaries as at such date and the results of operations of Borrower and its Subsidiaries for the period ended on such date and have been prepared in accordance with GAAP consistently applied, subject to notify changes from normal, year-end adjustments and except for the auditors absence of notes, (iii) as soon as available and accountants of Borrowers and Guarantors that Administrative and Collateral Agent is authorized to obtain such information directly from them. Without limiting the foregoing, Borrowers shall furnish or cause to be furnished to Administrative and Collateral Agent, the following: (i) in any event within thirty (30) 90 days after the end of each fiscal month (or within forty-five (45) days if such fiscal month end is also a fiscal quarter end)year of Borrower, unaudited its consolidated annual financial statements (including statements, prepared in each case balance sheets, statements of income and loss, statements of cash flow, and statements of shareholders’ equity), all in reasonable detail, fairly presenting the financial position and the results of the operations of BlueLinx and its Subsidiaries as of the end of and through such fiscal month (or quarter), certified to be correct by the chief financial officer of BlueLinx, subject to normal year-end adjustments and lack of footnotes accordance with GAAP and, if a Compliance Period is then requested by Lender, consolidating annual financial statements, and in effectthe case of consolidated financial statement, accompanied by a compliance certificate substantially an unqualified report thereon of independent chartered accountants of recognized standing; (iv) as soon as available and in the form of Exhibit C hereto, along with a schedule in form reasonably satisfactory to Administrative and Collateral Agent of the calculations used in determining, as of the end of such month (or quarter), whether Borrowers were in compliance with the covenants set forth in Section 9.17 of this Agreement for such month (or quarter); and (ii) within ninety (90) any event not more than 90 days after the end commencement of each fiscal year, audited consolidated the business plan and financial statements projections of BlueLinx Borrower and its Subsidiaries for such fiscal year; and (including in each case balance sheetsv) such other information respecting the operations, statements properties, business or financial condition of income and loss, statements of cash flow and statements of shareholders’ equity), and the accompanying notes thereto, all in reasonable detail, fairly presenting the financial position and the results of the operations of BlueLinx Borrower and its Subsidiaries as of the end of and for such fiscal year, together with (A) the unqualified opinion of independent certified public accountants, which accountants shall be an independent accounting firm selected by Borrowers and Lender may from time to time reasonably acceptable to Administrative and Collateral Agent, that such financial statements have been prepared in accordance with GAAP, and present fairly the results of operations and financial condition of BlueLinx and its Subsidiaries request or as of the end of and for the fiscal year then ended and (B) any management letters that may be issued with regard to specified in the Borrowers or GuarantorsSchedule.
Appears in 2 contracts
Samples: Loan and Security Agreement (Breakaway Solutions Inc), Loan and Security Agreement (Breakaway Solutions Inc)
Financial Statements and Other Information. (a) Each Borrower and each Guarantor shall, and shall cause each of its and their Subsidiaries any Subsidiary to, keep proper books and records in which true and complete entries shall be made of all dealings or transactions of or in relation to the Collateral and the business of each Borrower, each Guarantor Borrower and each of their respective its Subsidiaries in accordance with GAAP. Borrowers and Guarantors Borrower shall promptly furnish to Administrative Lender all such financial and Collateral Agent any and all financial or other information as Administrative and Collateral Agent may Lender shall reasonably request relating to the Collateral and the assets, business and operations of Borrowers and GuarantorsBorrower, and to notify the auditors and accountants of Borrowers and Guarantors Borrower that Administrative and Collateral Agent Lender is authorized to obtain such information directly from them. Without limiting the foregoing, Borrowers Borrower shall furnish or cause to be furnished to Administrative and Collateral AgentLender, the following: (i) within thirty twenty-five (3025) days after the end of each fiscal month (or within forty-five (45) days if such fiscal month end is also a fiscal quarter end)month, monthly unaudited consolidated financial statements, and unaudited consolidating financial statements (including in each case balance sheets, statements of income and loss, statements of cash flow, and statements of shareholders’ ' equity), all in reasonable detail, fairly presenting the financial position and the results of the operations of BlueLinx Borrower and its Subsidiaries as of the end of and through such fiscal month (or quarter)month, certified to be correct by the chief financial officer of BlueLinxBorrower, subject to normal year-end adjustments and lack of footnotes and, if a Compliance Period is then in effect, accompanied by a compliance certificate substantially in the form of Exhibit C B hereto, along with a schedule in form reasonably satisfactory to Administrative and Collateral Agent Lender of the calculations used in determining, as of the end of such month (or quarter)month, whether Borrowers were Borrower was in compliance with the covenants set forth in Section 9.17 Sections 9.18 and 9.19 of this Agreement for such month (or quarter); and (ii) within ninety (90) days after the end of each fiscal year, audited consolidated financial statements and audited consolidating financial statements of BlueLinx Borrower and its Subsidiaries (including in each case balance sheets, statements of income and loss, statements of cash flow and statements of shareholders’ ' equity), and the accompanying notes thereto, all in reasonable detail, fairly presenting the financial position and the results of the operations of BlueLinx Borrower and its Subsidiaries as of the end of and for such fiscal year, together with (A) the unqualified opinion of independent certified public accountants, which accountants shall be an independent accounting firm selected by Borrowers Borrower and reasonably acceptable to Administrative and Collateral AgentLender, that such financial statements have been prepared in accordance with GAAP, and present fairly the results of operations and financial condition of BlueLinx Borrower and its Subsidiaries as of the end of and for the fiscal year then ended and (B) any management letters that may be issued with regard to the Borrowers or Guarantorsended.
Appears in 2 contracts
Samples: Loan and Security Agreement (American Biltrite Inc), Loan and Security Agreement (Congoleum Corp)
Financial Statements and Other Information. (a) Each Borrower and each Guarantor shall, and shall cause each of its and their Subsidiaries any Subsidiary to, keep proper books and records in which true and complete entries shall be made of all dealings or transactions of or in relation to the Collateral and the business of each Borrower, each Guarantor such Borrower and each of their respective its Subsidiaries in accordance with GAAP. Borrowers and Guarantors shall promptly furnish to Administrative Agent and Collateral Agent any Lenders all such financial and all financial or other information as Administrative and Collateral Agent may shall reasonably request relating to the Collateral and the assets, business and operations of Borrowers and GuarantorsBorrowers, and to Borrowers shall notify the auditors and accountants of Borrowers and Guarantors that Administrative and Collateral Agent is authorized to obtain such information directly from them, provided that, so long as no Default or Event of Default shall exist or have occurred and be continuing, and Agent shall have otherwise received such information hereunder as it may have requested, Agent shall not exercise its right under this Section 9.6 to contact the accountants and auditors directly to obtain information from them not relating to the Collateral without the prior approval of Borrowers, which approval shall not be unreasonably withheld, conditioned or delayed. Without limiting the foregoing, Borrowers shall furnish or cause to be furnished to Administrative and Collateral Agent, the following: (i) within thirty (30) days after the end of each fiscal month (or within forty-five (45) days if such fiscal month end is also a fiscal quarter end)month, monthly unaudited consolidated financial statements, and unaudited consolidating financial statements (including in each case balance sheets, statements of income and loss, statements of cash flow, and statements of shareholders’ equity), all in reasonable detail, fairly presenting in all material respects the financial position and the results of the operations of BlueLinx Borrowers and its their Subsidiaries as of the end of and through such fiscal month (or quarter)month, certified to be correct by the vice-president-finance, chief financial officer, controller, treasurer, assistant treasurer or other appropriate financial or senior officer of BlueLinxBorrowers, subject to normal year-year end adjustments and lack of no footnotes and, if a Compliance Period is then in effect, and accompanied by a compliance certificate substantially in the form of Exhibit C E hereto, along with a schedule in a form reasonably satisfactory to Administrative and Collateral Agent of the calculations used in determining, as of the end of such month (or quarter)month, whether Borrowers were in compliance with the covenants set forth in Section Sections 9.17 and 9.18 of this Agreement for such month (or quarter); and (ii) within ninety (90) days after the end of each fiscal year, audited consolidated financial statements and unaudited consolidating financial statements of BlueLinx Borrowers and its Subsidiaries (including in each case balance sheets, statements of income and loss, statements of cash flow flow, and statements of shareholders’ equity), and the accompanying notes thereto, all in reasonable detail, fairly presenting in all material respects the financial position and the results of the operations of BlueLinx Borrowers and its their Subsidiaries as of the end of and for such fiscal year, together with (A) the unqualified opinion of independent certified public accountantsaccountants with respect to the audited consolidated financial statements, which accountants shall be an independent accounting firm selected by Borrowers and reasonably acceptable to Administrative and Collateral Agent, that such audited consolidated financial statements have been prepared in accordance with GAAP, and present fairly in all material respects the results of operations and financial condition of BlueLinx each Borrower and its Subsidiaries as of the end of and for the fiscal year then ended and (B) any management letters that may be issued with regard to the Borrowers or Guarantorsended.
Appears in 2 contracts
Samples: Loan and Security Agreement (Haynes International Inc), Loan and Security Agreement (Haynes International Inc)
Financial Statements and Other Information. (a) Each Borrower and each Guarantor shall, and shall cause each of its and their Subsidiaries to, keep proper books and records in which true and complete entries shall be made of all dealings or transactions of or in relation to the Collateral and the business of each Borrower, each Guarantor Borrower and each of their respective Subsidiaries its subsidiaries (if any) in accordance with GAAP. Borrowers GAAP and Guarantors shall promptly furnish to Administrative and Collateral Agent any and all financial or other information as Administrative and Collateral Agent may reasonably request relating to the Collateral and the assets, business and operations of Borrowers and Guarantors, and to notify the auditors and accountants of Borrowers and Guarantors that Administrative and Collateral Agent is authorized to obtain such information directly from them. Without limiting the foregoing, Borrowers Borrower shall furnish or cause to be furnished to Administrative and Collateral Agent, the followingLender: (i) within thirty fifteen (3020) days after the end of each fiscal month (or within forty-five (45) days month, monthly unaudited consolidated financial statements, and, if such fiscal month end is also a fiscal quarter end)Borrower has any subsidiaries, unaudited consolidated consolidating financial statements (including in each case balance sheets, statements of income and loss, statements of cash flow, and statements of shareholders’ ' equity), all in reasonable detail, fairly presenting the financial position and the results of the operations of BlueLinx Borrower and its Subsidiaries subsidiaries as of the end of and through such fiscal month (or quarter), certified to be correct by the chief financial officer of BlueLinxmonth, subject to normal year-year end adjustments and lack of footnotes and, if a Compliance Period is then in effect, accompanied by a compliance certificate substantially in the form of Exhibit C hereto, along with a schedule in form reasonably satisfactory to Administrative and Collateral Agent of the calculations used in determining, as of the end of such month (or quarter), whether Borrowers were in compliance with the covenants set forth in Section 9.17 of this Agreement for such month (or quarter); and (ii) within ninety one hundred and twenty (90120) days after the end of each fiscal year, audited consolidated financial statements and, if Borrower has any subsidiaries, audited consolidating financial statements of BlueLinx Borrower and its Subsidiaries subsidiaries (including in each case balance sheets, statements of income and loss, statements of cash flow and statements of shareholders’ ' equity), and the accompanying notes thereto, all in reasonable detail, fairly presenting the financial position and the results of the operations of BlueLinx Borrower and its Subsidiaries subsidiaries as of the end of and for such fiscal year, together with (A) the unqualified opinion of independent certified public chartered accountants, which accountants shall be an independent accounting firm selected by Borrowers Borrower and reasonably acceptable to Administrative and Collateral AgentLender, that such financial statements have been prepared in accordance with GAAP, and present fairly the results of operations and financial condition of BlueLinx Borrower and its Subsidiaries subsidiaries as of the end of and for the fiscal year then ended and (B) any management letters that may be issued with regard to the Borrowers or Guarantorsended.
Appears in 1 contract
Financial Statements and Other Information. (a) Each Borrower and each Guarantor shall, and shall cause each of its and their Subsidiaries to, keep proper books and records in which true and complete entries shall be made of all dealings or transactions of or in relation Promptly deliver to the Collateral Bank and the business of each Borrower, each Guarantor and each of their respective Subsidiaries in accordance with GAAP. Borrowers and Guarantors shall promptly furnish to Administrative and Collateral Agent any and all financial or other information as Administrative and Collateral Agent may reasonably request relating to the Collateral and the assets, business and operations of Borrowers and Guarantors, and to notify the auditors and accountants of Borrowers and Guarantors that Administrative and Collateral Agent is authorized to obtain such information directly from them. Without limiting the foregoing, Borrowers shall furnish or cause to be furnished to Administrative and Collateral Agent, the following: Maryland Industrial Development Financing Authority ("MIDFA") (i) within thirty (30) days after the end of each fiscal month (or within forty-five (45) days if such fiscal month end is also a fiscal quarter end), unaudited consolidated financial statements (including in each case balance sheets, statements of income and loss, statements of cash flow, and statements of shareholders’ equity), all in reasonable detail, fairly presenting the financial position and the results of the operations of BlueLinx and its Subsidiaries as of after the end of each of its first three fiscal quarters, an unaudited consolidating and through such fiscal month (or quarter), certified to be correct by the chief consolidated financial officer of BlueLinx, subject to normal year-end adjustments and lack of footnotes and, if a Compliance Period is then in effect, accompanied by a compliance certificate substantially in the form of Exhibit C hereto, along with a schedule in form reasonably satisfactory to Administrative and Collateral Agent statement of the calculations used in determining, Borrower and each Subsidiary as of the end of such month (or quarter), whether Borrowers were which financial statement shall consist of income and cash flows for the quarter, for the corresponding quarter in compliance the previous fiscal year and for the period from the end of the previous fiscal year, with a consolidating and consolidated balance sheet as of the covenants set forth quarter end all in Section 9.17 of this Agreement for such month (or quarter); detail as the Bank and MIDFA may request, quarterly statements to MIDFA only on MIDFA's request, (ii) within ninety (90) days after the end of each fiscal year, audited consolidating and consolidated financial statements of BlueLinx the Borrower's and each Subsidiary's income and cash flows and its Subsidiaries (including in each case consolidating and consolidated balance sheets, statements of income and loss, statements of cash flow and statements of shareholders’ equity), and the accompanying notes thereto, all in reasonable detail, fairly presenting the financial position and the results of the operations of BlueLinx and its Subsidiaries sheet as of the end of and for such fiscal year, together with setting forth comparative figures for the preceding fiscal year and to be (A) check applicable box, if no box is checked the unqualified opinion of financial statements shall be audited): [x] AUDITED [ ] REVIEWED [ ] COMPILED by an independent certified public accountants, which accountants accountant acceptable to the Bank and MIDFA; all such statements shall be an independent accounting firm selected certified by Borrowers the Borrower's chief financial officer to be correct and reasonably acceptable to Administrative and Collateral Agent, that such financial statements have been prepared in accordance with GAAP, the Borrower's and each Subsidiary's records and to present fairly the results of the Borrower's and each Subsidiary's operations and financial condition of BlueLinx cash flows and its Subsidiaries as financial position at year end; and (iii) with each statement of income, a certificate executed by the Borrower's chief executive and chief financial officers or other such person responsible for the financial management of the end of and for Borrower (A) setting forth the fiscal year then ended and computations required to establish the Borrower's compliance with each financial covenant, if any, during the statement period, (B) any management letters stating that may be issued the signers of the certificate have reviewed this Agreement and the operations and condition (financial or other) of the Borrower and each of its Subsidiaries during the relevant period and (C) stating that no Event of Default occurred during the period, or if an Event of Default did occur, describing its nature, the date(s) of its occurrence or period of existence and what action the Borrower has taken with regard respect thereto. The Borrower shall also promptly provide the Bank and MIDFA with copies of all annual reports, proxy statements and similar information distributed to shareholders, partners or members, and copies of all filings with the Securities and Exchange Commission and the Pension Benefit Guaranty Corporation, and shall provide, in form satisfactory to the Borrowers Bank and MIDFA, such additional information, reports or Guarantorsother information as the Bank and MIDFA may from time to time reasonably request regarding the financial and business affairs of the Borrower or any Subsidiary.
Appears in 1 contract
Financial Statements and Other Information. (a) Each Borrower and each Guarantor shall, and shall cause each of its and their Subsidiaries to, keep proper books and records in which true and complete entries shall be made of all dealings or transactions of or in relation to the Collateral and the business of each Borrower, each Guarantor Borrower and each of their respective its Subsidiaries (if any) in accordance with GAAP. Borrowers and Guarantors Borrower shall promptly furnish to Administrative Lender all such financial and Collateral Agent any and all financial or other information as Administrative and Collateral Agent may Lender shall reasonably request relating to the Collateral and the assets, business and operations of Borrowers and GuarantorsBorrower, and to notify the auditors and accountants of Borrowers and Guarantors Borrower that Administrative and Collateral Agent Lender is authorized to obtain such information directly from them. Without limiting the foregoing, Borrowers Borrower shall furnish or cause to be furnished to Administrative and Collateral AgentLender, the following: (i) within thirty (30) days after the end of each fiscal month (or within forty-five (45) days if such fiscal month end is also a fiscal quarter end)month, monthly unaudited consolidated financial statements, and unaudited consolidating financial statements (including in each case balance sheets, statements of income and loss, statements of cash flow, and statements of shareholders’ ' equity), all in reasonable detail, fairly presenting in accordance with GAAP (subject to normal year-end audit adjustments and the absence of footnotes) the financial position and the results of the operations of BlueLinx Borrower and its Subsidiaries as of the end of and through such fiscal month (or quarter)month, certified to be correct by the chief financial officer, or other officer reasonably acceptable to Lender, of BlueLinxBorrower, subject to normal year-end adjustments and lack of footnotes and, if a Compliance Period is then in effect, accompanied by a compliance certificate substantially in the form of Exhibit C B hereto, along with a schedule in form reasonably satisfactory to Administrative and Collateral Agent Lender of the calculations used in determining, as of the end of such month (or quarter)month, whether Borrowers were Borrower was in compliance with the covenants covenant set forth in Section 9.17 9.18 of this Agreement for such month (or quarter); and (ii) within ninety (90) days after the end of each fiscal year, audited consolidated financial statements and audited consolidating financial statements of BlueLinx Borrower and its Subsidiaries (including in each unaudited case balance sheets, statements of income and loss, statements of cash flow and statements of shareholders’ ' equity), and the accompanying notes thereto, all in reasonable detail, fairly presenting the financial position and the results of the operations of BlueLinx Borrower and its Subsidiaries as of the end of and for such fiscal year, together with (A) the unqualified opinion of independent certified public accountants, which accountants shall be an independent accounting firm selected by Borrowers Borrower and reasonably acceptable to Administrative and Collateral AgentLender, that such financial statements have been prepared in accordance with GAAP, and present fairly the results of operations and financial condition of BlueLinx Borrower and its Subsidiaries as of the end of and for the fiscal year then ended and (B) any management letters that may be issued with regard to the Borrowers or Guarantorsended.
Appears in 1 contract
Financial Statements and Other Information. (a) Each Borrower and each Guarantor shall, and shall cause each of its and their Subsidiaries to, keep proper books and records in which true and complete entries shall be made of all dealings or transactions of or in relation Promptly deliver to the Collateral and the business of each Borrower, each Guarantor and each of their respective Subsidiaries in accordance with GAAP. Borrowers and Guarantors shall promptly furnish to Administrative and Collateral Agent any and all financial or other information as Administrative and Collateral Agent may reasonably request relating to the Collateral and the assets, business and operations of Borrowers and Guarantors, and to notify the auditors and accountants of Borrowers and Guarantors that Administrative and Collateral Agent is authorized to obtain such information directly from them. Without limiting the foregoing, Borrowers shall furnish or cause to be furnished to Administrative and Collateral Agent, the following: Bank (i) within thirty sixty (3060) days after the end of each of its first three fiscal month (or within forty-five (45) days if such fiscal month end is also a fiscal quarter end)quarters, unaudited consolidated an internally prepared financial statements (including in each case balance sheets, statements of income and loss, statements of cash flow, and statements of shareholders’ equity), all in reasonable detail, fairly presenting the financial position and the results statement of the operations of BlueLinx Borrower and its Subsidiaries as of the end of and through such fiscal month (or quarter), certified to be correct by the chief financial officer of BlueLinx, subject to normal year-end adjustments and lack of footnotes and, if a Compliance Period is then in effect, accompanied by a compliance certificate substantially in the form of Exhibit C hereto, along with a schedule in form reasonably satisfactory to Administrative and Collateral Agent of the calculations used in determining, each subsidiary as of the end of such month (or quarter), whether Borrowers were which financial statement shall consist of income and cash flows for the quarter, for the corresponding quarter in compliance the previous fiscal year and for the period from the end of the previous fiscal year, with a consolidating and consolidated balance sheet as of the covenants set forth fiscal quarter end all in Section 9.17 of this Agreement for such month (or quarter)detail as the Bank may request; and (ii) within ninety one hundred twenty (90120) days after the end of each fiscal year, audited internally prepared consolidating and consolidated financial statements of BlueLinx the Borrower’s and each Subsidiary’s income and cash flows and its Subsidiaries (including in each case consolidating and consolidated balance sheets, statements of income and loss, statements of cash flow and statements of shareholders’ equity), and the accompanying notes thereto, all in reasonable detail, fairly presenting the financial position and the results of the operations of BlueLinx and its Subsidiaries sheet as of the end of and for such fiscal year, together with (A) setting forth comparative figures for the unqualified opinion of independent certified public accountants, which accountants preceding fiscal year; all such statements shall be an independent accounting firm selected certified by Borrowers the Borrower’s chief financial officer to be correct and reasonably acceptable to Administrative and Collateral Agent, that such financial statements have been prepared in accordance with GAAP, the Borrower’s and each Subsidiary’s records and to present fairly the results of the Borrower’s and each Subsidiary’s operations and financial condition of BlueLinx cash flows and its financial position at year end; and (iii) with each of the financial statements set forth above in clauses (i) and (ii) statement of income, a certificate executed by the Borrower’s chief executive or chief financial officers or other such person responsible for the financial management of the Borrower (A) setting forth the computations required to establish the Borrower’s compliance with each financial covenant, if any, during the statement period, (B) stating that the signer of the certificate has reviewed this Agreement and the operations and condition (financial or other) of the Borrower and each of its Subsidiaries during the relevant period and (C) stating that no Event of Default occurred during the period, or if an Event of Default did occur, describing its nature, the date(s) of its occurrence or period of existence and what action the Borrower has taken with respect thereto; and (iv) prior to December 31 of each year, Borrower’s operating and capital budgets for the succeeding year. The Borrower shall also promptly provide the Bank with copies of all annual reports, proxy statements and similar information distributed to shareholders, partners or members, and copies of all filings with the Securities and Exchange Commission and the Pension Benefit Guaranty Corporation, and shall provide, in form satisfactory to the Bank, such additional information, reports or other information as the Bank may from time to time reasonably request regarding the financial and business affairs of the Borrower or any Subsidiary. If the Borrower is an individual, the Borrower shall provide annually a personal financial statement in form and detail acceptable to the Bank and such other financial information as the Bank may from time to time reasonably request. Promptly upon the request of the Bank from time to time, Borrower shall supply all additional information requested and permit the Bank’s officers, employees, accountants, attorneys and other agents to (x) visit and inspect each of Borrower’s premises, (y) Upon no less than seven (7) days advance written notice to Borrower Bank may, at Bank’s sole expense, examine, audit, copy and extract from Borrower’s records and (z) discuss Borrower’s or its affiliates’ business, operations, assets, affairs or condition (financial or other) with its responsible officers and independent accountants. Borrower shall cause Corning Natural Gas Holding Corporation (“Holding”) to (i) promptly deliver to the Bank copies of all annual reports, proxy statements and similar information distributed to shareholders, partners or members and of all filings with the Securities and Exchange Commission and the Pension Benefit Guaranty Corporation, and (i) provide in form satisfactory to the Bank: (a) within sixty (60) days after the end of each of its first three fiscal quarters, consolidating and consolidated statements of income and cash flows for the quarter, for the corresponding quarter in the previous fiscal year and for the period from the end of the previous fiscal year, with a consolidating and consolidated balance sheet as of the quarter end; and (b) within one-hundred twenty days (120) after the end of each fiscal year, consolidating and consolidated statements of Holding’s income and cash flows and its consolidating and consolidated balance sheet as of the end of and such fiscal year, setting forth comparative figures for the preceding fiscal year then ended and (B) any management letters that may be issued with regard to be: x audited o reviewed q compiled by an independent certified public accountant acceptable to the Borrowers Bank; all such statements shall be certified by Holding’s chief financial officer or Guarantorspartner to be correct, not misleading and in accordance with Holding’s records and to present fairly the results of Holding’s operations and cash flows and if annual its financial position at year end in conformity with generally accepted accounting principles. If no box is checked, Holding shall deliver financial statements and information in the form and at the times satisfactory to the Bank. Holding represents that its assets are not subject to any liens, encumbrances or contingent liabilities except as fully disclosed to the Bank in such statements. Holding authorizes the Bank from time to time to obtain, verify and review all financial data deemed appropriate by the Bank in connection with the Obligations, including without limitation credit reports from agencies. Holding understands this requirement and has satisfied itself as to its meaning and consequences and acknowledges that it has made its own arrangements for keeping informed of changes or potential changes affecting the Borrower including the Borrower’s financial condition.
Appears in 1 contract
Financial Statements and Other Information. Borrower shall ------------------------------------------- furnish to Lender: (ai) Each Borrower as soon as available and each Guarantor shall, and shall cause each in any event within 45 days after the end of its and their Subsidiaries to, keep proper books and records in which true and complete entries shall be made of all dealings or transactions of or in relation to the Collateral and the business first three fiscal quarters of each Borrowerfiscal year of CAIS Internet or 90 days (in the case of the fourth fiscal quarter), each Guarantor and each the quarterly consolidated financial statements of their respective Subsidiaries CAIS Internet, prepared in accordance with GAAP. Borrowers , and, if requested by Xxxxxx, the quarterly consolidating financial statements of CAIS Internet, accompanied by a certificate of a Responsible Officer of CAIS Internet stating that such financial statements fairly present the financial condition of CAIS Internet and Guarantors shall promptly furnish to Administrative and Collateral Agent any and all financial or other information its Subsidiaries as Administrative and Collateral Agent may reasonably request relating to the Collateral at such date and the assets, business and results of operations of Borrowers CAIS Internet and Guarantorsits Subsidiaries for the period ended on such date and have been prepared in accordance with GAAP consistently applied, subject to changes from normal, year-end adjustments and to notify except for the auditors absence of notes, (ii) as soon as available and accountants of Borrowers and Guarantors that Administrative and Collateral Agent is authorized to obtain such information directly from them. Without limiting the foregoing, Borrowers shall furnish or cause to be furnished to Administrative and Collateral Agent, the following: (i) in any event within thirty (30) 90 days after the end of each fiscal month (or within forty-five (45) days year of CAIS Internet, the consolidated annual financial statements of CAIS Internet, prepared in accordance with GAAP and, if such fiscal month end is also a fiscal quarter end)requested by Xxxxxx, unaudited consolidating annual financial statements of CAIS Internet, and in the case of consolidated financial statements statements, accompanied by an unqualified report thereon of independent certified public accountants of recognized standing; (including iii) as soon as available and in any event not more than 90 days after the commencement of each case balance sheetsfiscal year, statements the business plan and financial projections of income and loss, statements of cash flow, and statements of shareholders’ equity), all in reasonable detail, fairly presenting the financial position and the results of the operations of BlueLinx CAIS Internet and its Subsidiaries for such fiscal year; (iv) promptly after Borrower has knowledge or becomes aware thereof, notice of the occurrence of any Default hereunder; (v) prompt written notice of any condition or event known to Borrower which has resulted, or that could reasonably be expected to result, in a Material Adverse Change; (vi) together with the financial statements required pursuant to clauses (i) and (ii), a Compliance Certificate of a Responsible Officer of CAIS Internet as of the end of and through such fiscal month (or quarter), certified to be correct by the chief financial officer of BlueLinx, subject to normal year-end adjustments and lack of footnotes and, if a Compliance Period is then in effect, accompanied by a compliance certificate substantially in the form of Exhibit C hereto, along with a schedule in form reasonably satisfactory to Administrative and Collateral Agent of the calculations used in determining, as of the end of such month (or quarter), whether Borrowers were in compliance with the covenants set forth in Section 9.17 of this Agreement for such month (or quarter)applicable accounting period; and (iivii) within ninety and (90vi) days after such other information respecting the end of each fiscal yearoperations, audited consolidated financial statements of BlueLinx and its Subsidiaries (including in each case balance sheetsproperties, statements of income and loss, statements of cash flow and statements of shareholders’ equity), and the accompanying notes thereto, all in reasonable detail, fairly presenting the financial position and the results of the operations of BlueLinx and its Subsidiaries as of the end of and for such fiscal year, together with (A) the unqualified opinion of independent certified public accountants, which accountants shall be an independent accounting firm selected by Borrowers and reasonably acceptable to Administrative and Collateral Agent, that such financial statements have been prepared in accordance with GAAP, and present fairly the results of operations and business or financial condition of BlueLinx and Borrower, its Subsidiaries and any Guarantor as of the end of and for the fiscal year then ended and (B) any management letters that Lender may be issued with regard from time to the Borrowers or Guarantorstime reasonably request.
Appears in 1 contract
Samples: Cais Internet Inc
Financial Statements and Other Information. (a) Each Borrower and each Guarantor shall, and shall cause each of its and their Subsidiaries to, keep proper books and records in which true and complete entries shall be made of all dealings or transactions of or in relation to the Collateral and the business of each Borrower, each Guarantor Borrower and each of their respective its Subsidiaries (if any) in accordance with GAAP. Borrowers GAAP and Guarantors shall promptly furnish to Administrative and Collateral Agent any and all financial or other information as Administrative and Collateral Agent may reasonably request relating to the Collateral and the assets, business and operations of Borrowers and Guarantors, and to notify the auditors and accountants of Borrowers and Guarantors that Administrative and Collateral Agent is authorized to obtain such information directly from them. Without limiting the foregoing, Borrowers Borrower shall furnish or cause to be furnished to Administrative and Collateral Agent, the followingLender: (i) within ninety (90) days after the end of each fiscal month coinciding with the end of Borrower's fiscal year, and thirty (30) days after the end of each other fiscal month month, (or within forty-five (45A) days monthly unaudited consolidated financial statements, and, if such fiscal month end is also a fiscal quarter end)Borrower has any Subsidiaries, unaudited consolidated consolidating financial statements (including in each case balance sheets, statements of income and loss, statements of cash flow, loss and statements of shareholders’ ' equity), all in reasonable detail, fairly presenting the financial position and the results of the operations of BlueLinx Borrower and its Subsidiaries as of the end of and through such fiscal month month, and (or quarter)B) a completed Compliance Certificate, certified to be correct by the chief financial officer of BlueLinx, subject to normal year-end adjustments and lack of footnotes and, if a Compliance Period is then in effect, accompanied by a compliance certificate substantially in the form of Exhibit C C-2 hereto, along demonstrating compliance by Borrower with a schedule in form reasonably satisfactory to Administrative and Collateral Agent of the calculations used in determining, Section 9.13 hereof as of the end last day of such month (or quarter)the immediately preceding month, whether Borrowers were in compliance with the covenants set forth in Section 9.17 of this Agreement for such month (or quarter); and (ii) within ninety (90) days after the end of each fiscal year, audited consolidated financial statements and, if Borrower has any Subsidiaries, audited consolidating financial statements of BlueLinx Borrower and its Subsidiaries (including in each case balance sheets, statements of income and loss, statements of cash flow and statements of shareholders’ ' equity), and the accompanying notes thereto, all in reasonable detail, fairly presenting the financial position and the results of the operations of BlueLinx Borrower and its Subsidiaries as of the end of and for such fiscal year, together with (A) the unqualified opinion of independent certified public accountants, which accountants shall be an independent accounting firm selected by Borrowers Borrower and reasonably acceptable to Administrative and Collateral AgentLender, that such financial statements have been prepared in accordance with GAAP, and present fairly the results of operations and financial condition of BlueLinx Borrower and its Subsidiaries as of the end of and for the fiscal year then ended and (B) any management letters that may be issued with regard ended. Lender confirms that, as of the date hereof, the accounting firm of BDO Xxxxxxx, LLP, is acceptable to the Borrowers or GuarantorsLender.
Appears in 1 contract
Financial Statements and Other Information. (a) 9.3.0.1 Each Borrower and each Guarantor shall, and Parent shall cause each of its and their Subsidiaries Obligor to, keep proper books and records in which true and complete entries shall be made of all dealings or transactions of or in relation to the Collateral Collateral, other property which is security for the Obligations and the business of each Borrower, each Guarantor such Borrower and each of their respective Subsidiaries Obligor (if any) in accordance with GAAP. Borrowers GAAP and Guarantors shall promptly furnish to Administrative and Collateral Borrowers' Agent any and all financial or other information as Administrative and Collateral Agent may reasonably request relating to the Collateral and the assets, business and operations of Borrowers and Guarantors, and to notify the auditors and accountants of Borrowers and Guarantors that Administrative and Collateral Agent is authorized to obtain such information directly from them. Without limiting the foregoing, Borrowers shall furnish or cause to be furnished to Administrative and Collateral Agent, the followingLender: (i) within thirty (30) days after the end of each fiscal month (or within forty-five (45) days if except that such fiscal month end is also a fiscal quarter end), unaudited consolidated financial statements (including in each case balance sheets, statements of income and loss, statements of cash flow, and statements of shareholders’ equity), all in reasonable detail, fairly presenting the financial position and the results of the operations of BlueLinx and its Subsidiaries as of the end of and through such fiscal month (or quarter), certified to period shall be correct by the chief financial officer of BlueLinx, subject to normal year-end adjustments and lack of footnotes and, if a Compliance Period is then in effect, accompanied by a compliance certificate substantially in the form of Exhibit C hereto, along with a schedule in form reasonably satisfactory to Administrative and Collateral Agent of the calculations used in determining, as of the end of such month (or quarter), whether Borrowers were in compliance with the covenants set forth in Section 9.17 of this Agreement for such month (or quarter); and (ii) within ninety (90) days after for the end fiscal month of each January and within sixty (60) days for the fiscal yearmonth of February), audited monthly unaudited consolidated financial statements of BlueLinx for Parent, and its consolidated Subsidiaries including, without limitation, consolidated financial statements for all of the Retail Store Subsidiaries as a whole, (including in each case balance sheets, statements of income and loss, statements of cash flow and statements of shareholders’ ' equity), all in reasonable detail, fairly presenting the consolidated financial position and the results of the consolidated operations of Parent and its consolidated Subsidiaries as of the end of and through such fiscal month and within ninety (90) days after the end of each fiscal year, audited consolidated financial statements of Parent (including in each case balance sheets, statements of income and loss, statements of cash flow and statements of shareholders' equity), and the accompanying notes thereto, all in reasonable detail, fairly presenting the consolidated financial position and the results of the consolidated operations of BlueLinx Parent and its Subsidiaries consolidated Subsidiaries, including the other Borrowers, as of the end of and for such fiscal year, together with (A) the unqualified opinion of independent certified public accountants, which accountants shall be an independent accounting firm selected by Borrowers Parent and reasonably acceptable to Administrative and Collateral AgentLender, that such financial statements have been prepared in accordance with GAAP, and present fairly the results of operations and financial condition of BlueLinx Parent and its Subsidiaries consolidated Subsidiaries, as of the end of and for the fiscal year then ended and (B) any management letters that may be issued with regard to the Borrowers or Guarantorsended.
Appears in 1 contract
Financial Statements and Other Information. (a) Each Borrower and each Guarantor shall, and shall cause each of its and their Subsidiaries to, keep proper books and records in which true and complete entries shall be made of all dealings or transactions of or in relation to the Collateral and the business of each Borrower, each Guarantor and each of their respective Subsidiaries its subsidiaries (if any) in accordance with GAAP. Borrowers GAAP and Guarantors shall promptly furnish to Administrative and Collateral Agent any and all financial or other information as Administrative and Collateral Agent may reasonably request relating to the Collateral and the assets, business and operations of Borrowers and Guarantors, and to notify the auditors and accountants of Borrowers and Guarantors that Administrative and Collateral Agent is authorized to obtain such information directly from them. Without limiting the foregoing, Borrowers Guarantor shall furnish or cause to be furnished to Administrative and Collateral Agent, the following: (i) within twenty (20) days after the end of each fiscal month or within thirty (30) days after the end of each a fiscal month (or within forty-five (45) days if such fiscal that is the month end is also of a fiscal quarter end)of SMTC Corporation, monthly unaudited consolidated financial statements and, if Guarantor has any subsidiaries, unaudited consolidated consolidating financial statements (including in each case balance sheets, statements of income and loss, statements of cash flow, flow and statements of shareholders’ equity), all in reasonable detail, fairly presenting the financial position and the results of the operations of BlueLinx Guarantor and its Subsidiaries CAN OBLIGORS GSA subsidiaries as of the end of and through such fiscal month (or quarter), certified to be correct by the chief financial officer of BlueLinx, subject to normal year-end adjustments and lack of footnotes and, if a Compliance Period is then in effect, accompanied by a compliance certificate substantially in the form of Exhibit C hereto, along with a schedule in form reasonably satisfactory to Administrative and Collateral Agent of the calculations used in determining, as of the end of such month (or quarter), whether Borrowers were in compliance with the covenants set forth in Section 9.17 of this Agreement for such month (or quarter)month; and (ii) within ninety (90) days after the end of each fiscal year, audited consolidated financial statements and, if Guarantor has any Subsidiaries, consolidating financial statements of BlueLinx Guarantor and its Subsidiaries subsidiaries (including in each case balance sheets, statements of income and loss, statements of cash flow and statements of shareholders’ equity), and the accompanying notes thereto, all in reasonable detail, fairly presenting the financial position and the results of the operations of BlueLinx Guarantor and its Subsidiaries subsidiaries as of the end of and for such fiscal year, together with (A) the unqualified opinion of independent certified public chartered accountants, which accountants shall be an independent accounting firm selected by Borrowers Guarantor and reasonably acceptable to Administrative and Collateral Agent, that such financial statements have been prepared in accordance with GAAP, and present fairly the results of operations and financial condition of BlueLinx Guarantor and its Subsidiaries subsidiaries as of the end of and for the fiscal year then ended and (B) any management letters that may be issued with regard to the Borrowers or Guarantorsended.
Appears in 1 contract
Financial Statements and Other Information. (a) Each Borrower and each Guarantor shall, and shall cause each of its and their Subsidiaries any Subsidiary to, keep proper books and records in which true and complete entries shall be made of all dealings or transactions of or in relation to the Collateral and the business of each Borrower, each Guarantor Borrower and each of their respective its Subsidiaries in accordance with GAAP. Borrowers and Guarantors Borrower shall promptly furnish to Administrative Agent and Collateral Agent any Lenders all such financial and all financial or other information as Administrative and Collateral Agent may shall reasonably request relating to the Collateral and the assets, business and operations of Borrowers and GuarantorsBorrower, and to Borrower shall notify the auditors and accountants of Borrowers and Guarantors Borrower that Administrative and Collateral Agent is authorized to obtain such information directly from them, PROVIDED THAT, so long as no Default or Event of Default shall exist or have occurred and be continuing, and Agent shall have otherwise received such information hereunder as it may have requested, Agent shall not exercise its right under this Section 9.6 to contact the accountants and auditors directly to obtain information from them not relating to the Collateral without the prior approval of Borrower, which approval shall not be unreasonably withheld, conditioned or delayed. Without limiting the foregoing, Borrowers Borrower shall furnish or cause to be furnished to Administrative and Collateral Agent, the following: (i) within thirty (30) days after the end of each fiscal month (or within forty-five (45) days if such fiscal month end is also a fiscal quarter end)month, monthly unaudited consolidated financial statements, and unaudited consolidating financial statements (including in each case balance sheets, statements of income and loss, statements of cash flow, and statements of shareholders’ equity), all in reasonable detail, fairly presenting in all material respects the financial position and the results of the operations of BlueLinx Borrower and its Subsidiaries as of the end of and through such fiscal month (or quarter)month, certified to be correct by the vice-president-finance, chief financial officer, controller, treasurer, assistant treasurer or other appropriate financial or senior officer of BlueLinxBorrower, subject to normal year-year end adjustments and lack of no footnotes and, if a Compliance Period is then in effect, and accompanied by a compliance certificate substantially in the form of Exhibit C E hereto, along with a schedule in a form reasonably satisfactory to Administrative and Collateral Agent of the calculations used in determining, as of the end of such month (or quarter)month, whether Borrowers were Borrower is in compliance with the covenants set forth in Section Sections 9.17 and 9.18 of this Agreement for such month (or quarter); and (ii) within ninety (90) days after the end of each fiscal year, audited consolidated financial statements and unaudited consolidating financial statements of BlueLinx Borrower and its Subsidiaries (including in each case balance sheets, statements of income and loss, statements of cash flow flow, and statements of shareholders’ equity), and the accompanying notes thereto, all in reasonable detail, fairly presenting in all material respects the financial position and the results of the operations of BlueLinx Borrower and its Subsidiaries as of the end of and for such fiscal year, together with (A) the unqualified opinion of independent certified public accountantsaccountants with respect to the audited consolidated financial statements, which accountants shall be an independent accounting firm selected by Borrowers Borrower and reasonably acceptable to Administrative and Collateral Agent, that such audited consolidated financial statements have been prepared in accordance with GAAP, and present fairly in all material respects the results of operations and financial condition of BlueLinx Borrower and its Subsidiaries as of the end of and for the fiscal year then ended and (B) any management letters that may be issued with regard to the Borrowers or Guarantorsended.
Appears in 1 contract
Samples: Loan and Security Agreement (Haynes International Inc)
Financial Statements and Other Information. (a) Each Borrower and each Guarantor shall, and shall cause each of its and their Subsidiaries any Subsidiary to, keep proper books and records in which true and complete entries shall be made of all dealings or transactions of or in relation to the Collateral and the business of each Borrower, each Guarantor Borrower and each of their respective its Subsidiaries in accordance with GAAP. Borrowers and Guarantors Borrower shall promptly furnish to Administrative Lender all such financial and Collateral Agent any and all financial or other information as Administrative and Collateral Agent may Lender shall reasonably request relating to the Collateral and the assets, business and operations of Borrowers and GuarantorsBorrower, and to notify the auditors and accountants of Borrowers and Guarantors Borrower that Administrative and Collateral Agent Lender is authorized to obtain such information directly from them. Without limiting the foregoing, Borrowers Borrower shall furnish or cause to be furnished to Administrative and Collateral AgentLender, the following: (i) within thirty (30) days after the end of each fiscal month (or within forty-five (45) days if such fiscal month end is also a fiscal quarter end)month, monthly unaudited consolidated financial statements and unaudited consolidating financial statements (including in each case balance sheets, statements of income and loss, statements of cash flow, and statements of shareholders’ partners' equity), all in reasonable detail, fairly presenting the financial position and the results of the operations of BlueLinx Isaacs Inc. and its Subsidiaries as of the end of and through such fiscal month (or quarter)xxxxxl month, certified to be correct by the chief financial officer of BlueLinxIsaacs Inc., subject to normal year-end adjustments and lack of footnotes and, if a Compliance Period is then in effect, accompanied by a accompaniex xx x compliance certificate substantially in the form of Exhibit C B hereto, along with a schedule in form reasonably satisfactory to Administrative and Collateral Agent Lender of the calculations used in determining, as of the end of such month (or quarter)month, whether Borrowers were Borrower was in compliance with the covenants set forth in Section Sections 9.17 and 9.18 of this Agreement for such month (or quarter); and (ii) within ninety (90) days after the end of each fiscal year, audited consolidated financial statements and unaudited consolidating financial statements of BlueLinx Isaacs Inc. and its Subsidiaries (including in each case balance sheetssxxxxx, statements of income and loss, statements of cash flow and statements of shareholders’ partners' equity), and the accompanying notes thereto, all in reasonable detail, fairly presenting the financial position and the results of the operations of BlueLinx Isaacs Inc. and its Subsidiaries as of the end of and for such fiscal yearfisxxx xxar, together with (A) the unqualified opinion of independent certified public accountants, which accountants shall be an independent accounting firm selected by Borrowers Isaacs Inc. and reasonably acceptable to Administrative and Collateral AgentLender, that such financial statements financixx xxxtements have been prepared in accordance with GAAP, and present fairly the results of operations and financial condition of BlueLinx Isaacs Inc. and its Subsidiaries as of the end of and for the fiscal year fiscxx xxxr then ended and (B) any management letters that may be issued with regard to the Borrowers or Guarantorsended.
Appears in 1 contract
Financial Statements and Other Information. (a) Each Borrower and each Guarantor shall, and shall cause each of its and their Subsidiaries to, keep proper books and records in which true and complete entries shall be made of all dealings or transactions of or in relation to the Collateral and the business of each Borrower, each Guarantor Borrower and each of their respective its Subsidiaries (if any) in accordance with GAAP. Borrowers GAAP and Guarantors shall promptly furnish to Administrative and Collateral Agent any and all financial or other information as Administrative and Collateral Agent may reasonably request relating to the Collateral and the assets, business and operations of Borrowers and Guarantors, and to notify the auditors and accountants of Borrowers and Guarantors that Administrative and Collateral Agent is authorized to obtain such information directly from them. Without limiting the foregoing, Borrowers shall furnish or cause to be furnished to Administrative and Collateral Agent, the followingLender: (i) within thirty (30) days after the end of each fiscal month (or within forty-five (45) days if such fiscal month end is also a fiscal quarter end)month, monthly unaudited consolidated financial statements (including in each case balance sheets, statements of income and loss, statements of cash flow, and statements of shareholders’ equity), all in reasonable detail, fairly presenting the financial position and the results of the operations of BlueLinx and its Subsidiaries as of the end of and through such fiscal month (or quarter), certified to be correct by the chief financial officer of BlueLinx, subject to normal year-end adjustments and lack of footnotes and, if a Compliance Period is then in effect, accompanied by a compliance certificate substantially in the form of Exhibit C hereto, along with a schedule in form reasonably satisfactory to Administrative and Collateral Agent of the calculations used in determining, as of the end of such month (or quarter), whether Borrowers were in compliance with the covenants set forth in Section 9.17 of this Agreement for such month (or quarter); and (ii) within ninety (90) days after the end of each fiscal year, audited consolidated consolidating financial statements of BlueLinx GLC and its Subsidiaries (including in each case balance sheets, statements of income and loss, statements of cash flow and statements of shareholders’ ' equity), all in reasonable detail, fairly presenting the financial position and the results of the operations of GLC and its Subsidiaries as of the end of and through such month, (ii) within sixty (60) days after the end of each fiscal quarter, quarterly unaudited consolidated and consolidating financial statements of GLC and its Subsidiaries (including in each case balance sheets, statements of income and loss, statements of cash flow and statements of shareholders' equity), all in reasonable detail, fairly presenting the financial position and the results of the operations of GLC and its Subsidiaries as of the end of and through such fiscal quarter, and (iii) within one hundred twenty (120) days after the end of each fiscal year, audited consolidated and consolidating financial statements of GLC and its Subsidiaries (including in each case balance sheets, statements of income and loss, statements of cash flow and statements of shareholders' equity), and the accompanying notes thereto, all in reasonable detail, fairly presenting the financial position and the results of the operations of BlueLinx GLC and its Subsidiaries as of the end of and for such fiscal year, together with (A) the unqualified opinion of independent certified public accountants, which accountants shall be an a nationally recognized independent accounting firm or, if not, another independent accounting firm selected by Borrowers GLC and reasonably acceptable to Administrative and Collateral AgentLender, that such financial statements have been prepared in accordance with GAAP, and present fairly the results of operations and financial condition of BlueLinx GLC and its Subsidiaries as of the end of and for the fiscal year then ended and (B) any management letters that may be issued with regard to the Borrowers or Guarantorsended.
Appears in 1 contract
Financial Statements and Other Information. (a) Each Borrower and each Guarantor shall, and shall cause each of its and their Subsidiaries any Subsidiary to, keep proper books and records in which true and complete entries shall be made of all dealings or transactions of or in relation to the Collateral and the business of each Borrower, each Guarantor Borrower and each of their respective its Subsidiaries in accordance with GAAP. Borrowers and Guarantors Borrower shall promptly furnish to Administrative Lender all such financial and Collateral Agent any and all financial or other information as Administrative and Collateral Agent may Lender shall reasonably request relating to the Collateral and the assets, business and operations of Borrowers and GuarantorsBorrower, and to shall notify the auditors and accountants of Borrowers and Guarantors Borrower that Administrative and Collateral Agent Lender is authorized to obtain such information directly from them. Without limiting the foregoing, Borrowers Borrower shall furnish or cause to be furnished to Administrative and Collateral AgentLender, the following: (i) within thirty (30) days after the end of each fiscal month (or within forty-five (45) days if such fiscal month end is also a fiscal quarter end)month, monthly unaudited consolidated financial statements and unaudited consolidating financial statements (including in each case balance sheets, statements of income and loss, statements of cash flow, and statements of shareholders’ ' equity), all in reasonable detail, fairly presenting the financial position and the results of the operations of BlueLinx Borrower and its Subsidiaries as of the end of and through such fiscal month (or quarter)month, certified to be correct by the chief financial officer of BlueLinxBorrower, subject to normal year-end adjustments and lack of footnotes and, if a Compliance Period is then in effect, accompanied by a compliance certificate substantially in the form of Exhibit C B hereto, along with a schedule in form reasonably satisfactory to Administrative and Collateral Agent Lender of the calculations used in determining, as of the end of such month (or quarter)month, whether Borrowers were Borrower was in compliance with the covenants covenant set forth in Section 9.17 of this Agreement for such month (or quarter); and (ii) within ninety one hundred five (90105) days after the end of each fiscal year, audited consolidated financial statements and unaudited consolidating financial statements of BlueLinx Borrower and its Subsidiaries (including in each case balance sheets, statements of income and loss, statements of cash flow and statements of shareholders’ ' equity), and the accompanying notes thereto, all in reasonable detail, fairly presenting the financial position and the results of the operations of BlueLinx Borrower and its Subsidiaries as of the end of and for such fiscal year, together with (A) the unqualified opinion (except as otherwise provided below) of independent certified public accountants, which accountants shall be an independent accounting firm selected by Borrowers Borrower and reasonably acceptable to Administrative and Collateral AgentLender, that such financial statements have been prepared in accordance with GAAP, and present fairly the results of operations and financial condition of BlueLinx Borrower and its Subsidiaries as of the end of and for the fiscal year then ended. Notwithstanding the foregoing, the opinion of such certified public accountants for Borrower's fiscal year ended and (B) any management letters that December 31, 2002 may be issued with regard to the Borrowers or Guarantorscontain a going concern qualification.
Appears in 1 contract
Financial Statements and Other Information. (a) Each Borrower and each Guarantor shall, and Borrowers shall cause each of its and their Subsidiaries to, keep proper books and records in which true and complete entries shall be made of all dealings or transactions of or in relation to the Collateral and the business of each Borrower, each Guarantor Borrower and each of their respective its Subsidiaries (if any) in accordance with GAAP. Borrowers and Guarantors shall (i) promptly furnish or cause to Administrative be furnished to Lender all such financial and Collateral Agent any and all financial or other information as Administrative and Collateral Agent Lender may reasonably request relating to the Collateral and the assets, business and operations of Borrowers and Guarantors, and to shall notify the independent public accountants acting as auditors and accountants of to Borrowers and Guarantors that Administrative and Collateral Agent Lender is authorized to obtain such information directly from themsuch accountants. Without limiting the foregoing, foregoing Borrowers shall furnish or cause to be furnished to Administrative and Collateral Agent, the followingLender: (i) within thirty fifteen (3015) days after the end of each fiscal month (or within forty-five (45) days if such fiscal month end is also a fiscal quarter end)month, monthly unaudited consolidated and consolidating financial statements of Borrower and its Subsidiaries (including in each case balance sheets, statements of income and loss, statements of cash flow, and statements of shareholders’ ' equity), all in reasonable detail, fairly presenting the financial position and the results of the operations operation of BlueLinx Borrower and its Subsidiaries as of the end of and through such fiscal month month, (or ii) within forty five (45) days after the end of each fiscal quarter), certified to be correct by unaudited consolidated and consolidating financial statements of Borrower and its Subsidiaries (including the chief financial officer of BlueLinx, subject to normal year-end adjustments and lack of footnotes and, if a Compliance Period is then information specified in effect, accompanied by a compliance certificate substantially in the form of Exhibit C hereto, along with a schedule in form reasonably satisfactory to Administrative and Collateral Agent of the calculations used in determining, as Section 9.6(a)(i) hereof),as of the end of such month (or quarter), whether Borrowers were in compliance with and through the covenants set forth in Section 9.17 of this Agreement for such month (or quarter); fiscal quarter then ended and (iiiii) within ninety (90) days after the end of each fiscal year, drafts of audited consolidated and consolidating financial statements of BlueLinx Borrower and its Subsidiaries (including in and drafts of audited separate financial statements of each case Borrower(including balance sheets, statements of income and loss, statements of cash flow and statements of shareholders’ ' equity), and the accompanying notes thereto, all in reasonable detail, fairly presenting the financial position and the results of the operations of BlueLinx Borrower as of the end of and for such fiscal year and (iv) within one hundred twenty (120) days after the end of each fiscal year, audited consolidated and consolidating financial statements Borrower and its Subsidiaries and separate audited financial statements of each Borrower (including balance sheets, statements of income and loss, statements of cash flow and statements of shareholders' equity), and the accompanying notes thereto, all in reasonable detail, fairly presenting the financial position and the results of the operations of Borrower and its Subsidiaries and of each Borrower separately, as of the end of and for such fiscal year, together with (A) the unqualified opinion of independent certified public accountants, which accountants shall be an independent accounting firm selected by Borrowers Borrower and reasonably acceptable to Administrative and Collateral AgentLender, that such financial statements have been prepared in accordance with GAAP, and present fairly the results of operations and financial condition of BlueLinx and its Subsidiaries Borrower as of the end of and for the fiscal year then ended ended. The financial statements(i) referred to in Section 9.6(a)(i), (ii) and (iii) hereof shall be accompanied by a certificate of the Chief Financial Officer of Borrower to the effect that such financial statements are correct in all material respects, subject to normal year end audit adjustments, (ii) referred to in Section 9.6(a)(ii), (iii) and (iv) hereof shall be accompanied by a certificate of the Chief Financial Officer of Borrower to the effect that Borrower is in compliance with the covenants set forth in Sections 9.14, 9.15 and 9.16 hereof , as of the close of the period to which such financial statements relate, together with a schedule showing the calculations used in determining such compliance and that no Event of Default or event which would with the giving of notice or passage of time, constitute an Event of Default exists and is continuing, (iii) referred to in Section 9.6(a)(iv) hereof shall be accompanied by a certificate of the Chief Financial Officer of Borrower to the effect that Borrower is in compliance with the covenants set forth in Sections 9.14, 9.15, 9.16 and 9.17 hereof , as of the close of the period to which such financial statements relate, together with a schedule showing the calculations used in determining such compliance and that no Event of Default or event which would with the giving of notice or passage of time, constitute an Event of Default exists and is continuing and (iv) referred to in Section 9.6(a)(ii),(iii) and (iv) hereof shall be accompanied by a certificate of the Chief Executive Officer and Chief Financial Officer of Borrower setting forth the Adjusted Net Worth of Borrower as of the respective dates of such financial statements and shall be accompanied by a schedule showing the calculations used in determining such Adjusted Net Worth and the appraisals on which such calculations are based, which appraisals( and the appraisers performing such appraisals) must be acceptable to Lender in all respects; provided that, for purposes of determining Adjusted Net Worth (A) at any time an Event Of Default or act, condition or event which with the giving of notice or passage of time or both would constitute an Event of Default shall exist or (B) on the request of Lender, but not more often than once in any management letters that may be issued with regard two(2) year period, Borrower shall, within fifteen(15) working days after request of Lender therefor furnish to Lender new appraisals of all of the Borrowers or Guarantorsassets of Borrower, in form and substance and from appraisers satisfactory to Lender.
Appears in 1 contract
Financial Statements and Other Information. (a) Each Borrower and each Guarantor shall, and shall cause each of its and their Subsidiaries any Subsidiary to, keep proper books and records in which true and complete entries shall be made of all dealings or transactions of or in relation to the Collateral and the business of each Borrower, each Guarantor Borrower and each of their respective its Subsidiaries in accordance with GAAP, PROVIDED, THAT, the books and records of Foreign Subsidiaries shall be maintained in accordance with accounting procedures and practices that are equivalent to GAAP in effect in its jurisdiction of organization. Borrowers and Guarantors Borrower shall promptly furnish to Administrative Agent and Collateral Agent any Lenders all such financial and all financial or other information as Administrative and Collateral Agent may shall reasonably request relating to the Collateral and the assets, business and operations of Borrowers and GuarantorsBorrower, and to notify the auditors and accountants of Borrowers and Guarantors Borrower that Administrative and Collateral Agent is authorized to obtain such information directly from them. Without limiting the foregoing, Borrowers Borrower shall furnish or cause to be furnished to Administrative and Collateral Agent, the following: (i) within thirty (30) days after the end of each fiscal month (or other than as to any fiscal month that is also the end of a fiscal quarter, and within forty-five (45) days if such after the end of each fiscal month end that is also the end of a fiscal quarter end)quarter, a monthly unaudited consolidated financial statements (including in income statement and balance sheet for Borrower and a monthly unaudited income statement and balance sheet for each case balance sheets, statements of income and loss, statements of cash flow, and statements of shareholders’ equity)Foreign Subsidiary, all in reasonable detail, fairly presenting in all material respects the financial position and the results of the operations of BlueLinx Borrower and its Subsidiaries as of the end of and through such fiscal month (or quarter)month, certified to be correct in all material respects by the chief financial officer of BlueLinxBorrower in such capacity, subject to normal year-end adjustments and lack of no footnotes and, if a Compliance Period is then in effect, and accompanied by a compliance certificate substantially in the form of Exhibit C hereto, along with a schedule in a form reasonably satisfactory to Administrative and Collateral Agent of the calculations used in determining, as of the end of such month (or quarter)month, whether Borrowers were Borrower is in compliance with the covenants covenant set forth in Section 9.17 of this Agreement for such month (or quarter); and (ii) within ninety (90) days after the end of each fiscal year, audited consolidated financial statements and unaudited consolidating financial statements of BlueLinx Borrower and its Subsidiaries (including in each case balance sheets, sheets and statements of income and loss, and only as to the consolidated financial statements, statements of cash flow and statements of shareholders’ ' equity), and the accompanying notes thereto, all in reasonable detail, fairly presenting in all material respects the financial position and the results of the operations of BlueLinx Borrower and its Subsidiaries as of the end of and for such fiscal year, together with (A) the unqualified opinion of independent certified public accountantsaccountants with respect to the audited consolidated financial statements, which accountants shall be an independent accounting firm selected by Borrowers Borrower and reasonably acceptable to Administrative and Collateral Agent, that such audited consolidated financial statements have been prepared in accordance with GAAP, and present fairly in all material respects the results of operations and financial condition of BlueLinx Borrower and its Subsidiaries as of the end of and for the fiscal year then ended and (B) any management letters that may be issued with regard to the Borrowers or Guarantorsended.
Appears in 1 contract
Financial Statements and Other Information. (a) Each Borrower and each Guarantor shall, and shall cause each of its and their Subsidiaries any Subsidiary to, keep proper books and records in which true and complete entries shall be made of all dealings or transactions of or in relation to the Collateral and the business of each Borrower, each Guarantor such Borrower and each of their respective its Subsidiaries in accordance with GAAP. Borrowers and Guarantors shall promptly furnish to Administrative Agent and Collateral Agent any Lenders all such financial and all financial or other information as Administrative and Collateral Agent may shall reasonably request relating to the Collateral and the assets, business and operations of Borrowers and GuarantorsBorrowers, and to notify the auditors and accountants of Borrowers and Guarantors that Administrative and Collateral Agent is authorized to obtain such information directly from them. Without limiting the foregoing, Borrowers shall furnish or cause to be furnished to Administrative and Collateral Agent, the following: (i) within thirty (30) days after the end of each fiscal month (or within forty-five (45) days if such fiscal month other than at the end is also of a fiscal quarter endquarter), monthly unaudited consolidated financial statements (including in each case balance sheets, statements of income and loss, statements of cash flow, and statements of shareholders’ equity), all in reasonable detail, fairly presenting the financial position and the results of the operations of BlueLinx Borrowers and its their Subsidiaries as of the end of and through such fiscal month (or quarter)month, certified to be correct by the chief financial officer of BlueLinx, Borrowers subject to normal year-end adjustments and lack of footnotes andadjustments, if a Compliance Period is then in effect, accompanied by a compliance certificate substantially in the form of Exhibit C hereto, along with a schedule in form reasonably satisfactory to Administrative and Collateral Agent of the calculations used in determining, as of (ii) within forty-five (45) days after the end of such month each fiscal quarter (or quarterother than at the end of the fiscal year), whether Borrowers were unaudited consolidated financial statements (including in compliance with the covenants set forth in Section 9.17 each case balance sheets, statements of this Agreement for such month (or quarter); income and loss, statements of cash flow, and statements of shareholders’ equity) and (iiiii) within ninety (90) days after the end of each fiscal year, audited consolidated financial statements of BlueLinx and its Subsidiaries (including in each case balance sheets, statements of income and loss, statements of cash flow and statements of shareholders’ equity), and the accompanying notes thereto, all in reasonable detail, fairly presenting the financial position and the results of the operations of BlueLinx Borrowers and its their Subsidiaries as of the end of and for such fiscal year, together with (A) the unqualified opinion of independent certified public accountants, which accountants shall be an independent accounting firm selected by Borrowers and reasonably acceptable to Administrative and Collateral Agent, that such financial statements have been prepared in accordance with GAAP, and present fairly the results of operations and financial condition of BlueLinx Borrowers and its their Subsidiaries as of the end of and for the fiscal year then ended ; and (Biv) any management letters that may be issued with regard at such time as available, but in no event later than thirty (30) days prior to the end of each fiscal year (commencing with the fiscal year of Borrowers ending June 30, 2009), projected consolidated financial statements (including in each case, forecasted balance sheets and statements of income and loss, statements of cash flow, and statements of shareholders’ equity, and projected Excess Availability) of Borrowers for the next fiscal year, all in reasonable detail, and in a format consistent with the projections delivered by Borrowers to Agent prior to the date hereof, together with such supporting information as Agent may reasonably request. Such projected financial statements shall be prepared on a quarterly basis for the next succeeding year. Such projections shall represent the reasonable best estimate by Borrowers and Guarantors of the future financial performance of Borrowers for the periods set forth therein and shall have been prepared on the basis of the assumptions set forth therein which Borrowers and Guarantors believe are fair and reasonable as of the date of preparation in light of current and reasonably foreseeable business conditions (it being understood that actual results may differ from those set forth in such projected financial statements). If reasonably requested by Agent, each year Borrowers shall provide to Agent a semi-annual update with respect to such projections or Guarantorsat any time a Default or Event of Default exists or has occurred and is continuing, more frequently as Agent may require.
Appears in 1 contract
Financial Statements and Other Information. Borrower will furnish to the Administrative Agent, on behalf of the Lenders: (a) Each Borrower as soon as available and each Guarantor shall, and shall cause each of its and their Subsidiaries to, keep proper books and records in any event on or before the date on which true and complete entries shall be made of all dealings or transactions of or in relation to the Collateral and the business of each Borrower, each Guarantor and each of their respective Subsidiaries in accordance with GAAP. Borrowers and Guarantors shall promptly furnish to Administrative and Collateral Agent any and all such financial or other information as Administrative and Collateral Agent may reasonably request relating to the Collateral and the assets, business and operations of Borrowers and Guarantors, and to notify the auditors and accountants of Borrowers and Guarantors that Administrative and Collateral Agent is authorized to obtain such information directly from them. Without limiting the foregoing, Borrowers shall furnish or cause statements are required to be furnished to Administrative and Collateral Agentor filed with the SEC (or, the following: (i) within thirty (30) days after the end of each fiscal month (or within forty-five (45) days if such fiscal month end is also a fiscal quarter end), unaudited consolidated financial statements (including in each case balance sheets, statements of income and loss, statements of cash flow, and statements of shareholders’ equity), all in reasonable detail, fairly presenting the financial position and the results of the operations of BlueLinx and its Subsidiaries as of the end of and through such fiscal month (or quarter), certified are not required to be correct by the chief financial officer of BlueLinx, subject to normal year-end adjustments and lack of footnotes and, if a Compliance Period is then in effect, accompanied by a compliance certificate substantially in the form of Exhibit C hereto, along with a schedule in form reasonably satisfactory to Administrative and Collateral Agent of the calculations used in determining, as of the end of such month (or quarter), whether Borrowers were in compliance filed with the covenants set forth in Section 9.17 of this Agreement for such month (SEC, on or quarter); and (ii) within ninety (90) before the date that is 120 days after the end of each fiscal year), beginning with the financial statements for the fiscal year ending December 31, 2020, the audited consolidated financial statements balance sheets of BlueLinx the Borrower and its the Subsidiaries (including in each case balance sheets, statements as at the end of income and loss, statements of cash flow and statements of shareholders’ equity)such fiscal year, and the accompanying notes theretorelated consolidated statements of operations, all in reasonable detail, fairly presenting the financial position shareholders’ equity and the results of the operations of BlueLinx and its Subsidiaries as of the end of and cash flows for such fiscal year, setting forth, commencing with the fiscal year ending December 31, 2020, comparative consolidated figures for the preceding fiscal years (or applicable preceding four-quarter periods, in the event of any change in the Borrower’s financial reporting convention that results in a different fiscal year end), all in reasonable detail and prepared in accordance with IFRS, and certified by independent certified public accountants of recognized national standing whose opinion shall not be materially qualified with a “going concern” or like qualification or exception (other than with respect to, or resulting from, (x) the impending maturity of any Indebtedness or (y) any actual or prospective breach of any financial covenant contained in any Indebtedness), together in any event with a certificate of such accounting firm stating that in the course of its regular audit of the business of the Borrower and its consolidated Subsidiaries, which audit was conducted in accordance with generally accepted auditing standards. Notwithstanding the foregoing, the obligations in this Section 5.01(a) may be satisfied with respect to financial information of the Borrower and its Consolidated Subsidiaries by furnishing (A) the unqualified opinion of independent certified public accountants, which accountants shall be an independent accounting firm selected by Borrowers and reasonably acceptable to Administrative and Collateral Agent, that such applicable financial statements have been prepared in accordance with GAAP, and present fairly the results of operations and financial condition of BlueLinx and its Subsidiaries as any direct or indirect parent of the end Borrower or (B) the Borrower’s (or any direct or indirect parent thereof), as applicable, Form 10- K or Form 20-F filed with the SEC; provided that, with respect to each of and for the fiscal year then ended clauses (A) and (B), (i) to the extent such information relates to a parent of the Borrower, such information is accompanied by consolidating information that explains in reasonable detail the differences between the information relating to such parent and its consolidated Subsidiaries, on the one hand, and the information relating to the Borrower and its consolidated 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 the first sentence of this Section 5, Of (a), such materials are accompanied by an auditor’s certificate of an independent registered public accounting firm of recognized national standing, whose opinion shall not be materially qualified with a “going concern” or like qualification or exception (other than with respect to, or resulting from, (x) the impending maturity of any Indebtedness or (y) any management letters that may be issued with regard to the Borrowers actual or Guarantorsprospective breach of any financial covenant contained in any Indebtedness).
Appears in 1 contract
Samples: Execution Version Credit Agreement (Altera Infrastructure L.P.)
Financial Statements and Other Information. (a) Each The Borrower and each Guarantor shall, and shall cause each of its and their Subsidiaries to, keep proper books and records in which true and complete entries shall be made of all dealings or transactions of or in relation will furnish to the Collateral and the business of each Borrower, each Guarantor and each of their respective Subsidiaries in accordance with GAAP. Borrowers and Guarantors Agent (which shall promptly furnish to Administrative and Collateral Agent any and all financial or other information as Administrative and Collateral Agent may reasonably request relating to each of the Collateral and the assets, business and operations of Borrowers and Guarantors, and to notify the auditors and accountants of Borrowers and Guarantors that Administrative and Collateral Agent is authorized to obtain such information directly from them. Without limiting the foregoing, Borrowers shall furnish or cause to be furnished to Administrative and Collateral Agent, the following: Lenders): (i) within thirty (30) 105 days after the end of each fiscal month (or within forty-five (45) days if such fiscal month end is also a fiscal quarter end)year of the Borrower, unaudited its audited consolidated financial statements (including in each case balance sheets, sheet and related statements of income operations, stockholders’ equity and loss, statements of cash flow, and statements of shareholders’ equity), all in reasonable detail, fairly presenting the financial position and the results of the operations of BlueLinx and its Subsidiaries flows as of the end of and through for such year, setting forth in each case in comparative form the figures for the previous fiscal month year, all reported on by Ernst & Young LLP or other independent public accountants of recognized national standing (without a going “concern” or quarter), certified like qualification or exception and without any qualification or material exception as to be correct by the chief scope of such audit) to the 41 NYDOCS02/1089790 effect that such consolidated financial officer statements present fairly in all material respects the financial condition and results of BlueLinx, subject to normal year-end adjustments and lack of footnotes and, if a Compliance Period is then in effect, accompanied by a compliance certificate substantially in the form of Exhibit C hereto, along with a schedule in form reasonably satisfactory to Administrative and Collateral Agent operations of the calculations used Borrower and its consolidated Subsidiaries on a consolidated basis in determining, as accordance with GAAP consistently applied (the furnishing of the end of such month (or quarter), whether Borrowers were in compliance with Borrower’s Form 10-K will satisfy the covenants set forth in Section 9.17 requirements of this Agreement for such month (or quarterSection 5.01(a)(i)); and (ii) within ninety (90) 55 days after the end of each of the first three fiscal yearquarters of each fiscal year of the Borrower, audited its consolidated financial balance sheet and related statements of BlueLinx operations, stockholders’ equity and its Subsidiaries (including in each case balance sheets, statements of income and loss, statements of cash flow and statements of shareholders’ equity), and the accompanying notes thereto, all in reasonable detail, fairly presenting the financial position and the results of the operations of BlueLinx and its Subsidiaries flows as of the end of and for such fiscal quarter and the then elapsed portion of the fiscal year, together 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 basis in accordance with GAAP consistently applied, subject to normal year-end audit adjustments and the absence of footnotes (the furnishing of the Borrower’s Form 10-Q will satisfy the requirements of this Section 5.01(a)(ii)); (iii) concurrently with any delivery of financial statements under clause (i) or (ii) above, a certificate of a Financial Officer of the Borrower (A) certifying as to whether a Default has occurred since the unqualified opinion delivery of independent certified public accountantsthe previous such certificate, which accountants shall or, with respect to the first such certificate, the date hereof and, if such Default has occurred, specifying the details thereof and any action taken or proposed to be an independent taken with respect thereto, (B) setting forth reasonably detailed calculations demonstrating compliance with Sections 5.02(a) and 5.03 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 4.01(d) and, if any such change has occurred, specifying the effect of such change on the financial statements accompanying such certificate; (iv) concurrently with any delivery of financial statements under clause (i) above, a certificate of the accounting firm selected by Borrowers and reasonably acceptable to Administrative and Collateral Agent, that reported on such financial statements have been prepared in accordance stating whether they obtained knowledge during the 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); (v) promptly after the same become publicly available, copies of all periodic and other reports, proxy statements and other material information filed by the Borrower or any Subsidiary, with GAAPthe 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; and present fairly (vi) promptly following any request therefor, such other information regarding the results of operations operations, business affairs and financial condition of BlueLinx the Borrower or any Subsidiary, or compliance with the terms of this Agreement, as the Agent or any Lender may reasonably request. The Borrower shall be deemed to have delivered the financial statements and its Subsidiaries as other information referred to in subclauses (i), (ii) and (v) of this Section 5.01(a), when such filings, financials or other information have been posted on the Internet website of the end of Securities and for Exchange Commission (xxxx://xxx.xxx.xxx) or on the fiscal year then ended and (B) any management letters that may be issued with regard Borrower’s own internet website as previously identified to the Borrowers Agent and Lenders. If the Agent or Guarantors.a Lender requests such filings, financial statements or other information to be delivered to it in hard copies, the Borrower shall furnish to the Agent or such Lender, as applicable, such statements accordingly, provided that no such request shall affect that such filings, financial statements or
Appears in 1 contract
Financial Statements and Other Information. (a) Each Borrower and each Guarantor shall, and shall cause each of its and their Subsidiaries to, keep proper books and records in which true and complete entries shall be made of all dealings or transactions of or in relation to the Collateral and the business of each Borrower, each Guarantor Borrower and each of their respective Subsidiaries its subsidiaries (if any) in accordance with GAAP. Borrowers GAAP and Guarantors shall promptly furnish to Administrative and Collateral Agent any and all financial or other information as Administrative and Collateral Agent may reasonably request relating to the Collateral and the assets, business and operations of Borrowers and Guarantors, and to notify the auditors and accountants of Borrowers and Guarantors that Administrative and Collateral Agent is authorized to obtain such information directly from them. Without limiting the foregoing, Borrowers Borrower shall furnish or cause to be furnished to Administrative and Collateral Agent, the followingLender: (i) within thirty forty-five (3045) days after the end of each fiscal month (or within forty-five (45) days if such fiscal month end is also a fiscal quarter end)month, monthly unaudited consolidated financial statements of Borrower, and unaudited consolidating financial statements of MCI (including in each case balance sheets, statements of income and loss, statements of cash flow, flow and statements of shareholders’ equity), all in reasonable detail, fairly presenting the financial position and the results of the operations of BlueLinx MCI, Borrower and its Subsidiaries their respective Subsidiaries, if any, as of the end of and through such fiscal month (or quarter), certified to be correct by the chief financial officer of BlueLinx, subject to normal year-end adjustments and lack of footnotes and, if a Compliance Period is then in effect, accompanied by a compliance certificate substantially in the form of Exhibit C hereto, along with a schedule in form reasonably satisfactory to Administrative and Collateral Agent of the calculations used in determining, as of the end of such month (or quarter), whether Borrowers were in compliance with the covenants set forth in Section 9.17 of this Agreement for such month (or quarter); and (ii) within ninety one hundred and forty (90140) days after the end of each fiscal yearyear of MCI, audited consolidated financial statements of BlueLinx MCI, Borrower and its Subsidiaries their respective Subsidiaries, if any (including in each case balance sheets, statements of income and loss, statements of cash flow changes in financial position and statements of shareholders’ equity), and the accompanying notes thereto, all in reasonable detail, fairly presenting the financial position and the results of the operations of BlueLinx the applicable Person and its Subsidiaries subsidiaries as of the end of and for such fiscal year, together with (A) the unqualified opinion of independent certified public chartered accountants, which accountants shall be an independent accounting firm selected by Borrowers MCI and reasonably acceptable to Administrative and Collateral AgentLender, that such financial statements have been prepared in accordance with GAAP, and present fairly the results of operations and financial condition of BlueLinx the applicable Person and its Subsidiaries subsidiaries as of the end of and for the fiscal year of MCI then ended ended; and (Biii) any not less than sixty (60) days prior to the end of each fiscal year of Borrower annual financial projections for the next fiscal year of Borrower, which shall be approved by Lender and shall include a projected balance sheet, income statement and statement of cash flow, prepared on a monthly basis for such fiscal year, proposed budgets for operating and capital expenditures, acquisitions and related financing costs for Borrower, details of all management letters that salaries and bonuses, and such other information as may be issued with regard to the Borrowers or Guarantorsrequested by Lender.
Appears in 1 contract
Financial Statements and Other Information. (a) Each Borrower and each Guarantor shall, and shall cause each of its and their Subsidiaries to, keep proper books and records in which true and complete entries shall be made of all dealings or transactions of or in relation to the Collateral and the business of each Borrower, each Guarantor Borrower and each of their respective Subsidiaries its subsidiaries (if any) in accordance with GAAP. Borrowers GAAP and Guarantors shall promptly furnish to Administrative and Collateral Agent any and all financial or other information as Administrative and Collateral Agent may reasonably request relating to the Collateral and the assets, business and operations of Borrowers and Guarantors, and to notify the auditors and accountants of Borrowers and Guarantors that Administrative and Collateral Agent is authorized to obtain such information directly from them. Without limiting the foregoing, Borrowers Borrower shall furnish or cause to be furnished to Administrative and Collateral Agent, the followingLender: (i) within thirty (30) days after the end of each fiscal month (or within forty-five (45) 45 days if such fiscal after the end of a month end which is also a the end of Borrower's fiscal quarter endyear), monthly unaudited consolidated financial statements, and, if Borrower has any subsidiaries, unaudited consolidating financial statements (including in each case balance sheets, statements of income and loss, statements of cash flow, loss and statements of shareholders’ ' equity), all in reasonable detail, fairly presenting the financial position and the results of the operations of BlueLinx Borrower and its Subsidiaries subsidiaries as of the end of and through such fiscal month (or quarter), certified to be correct by the chief financial officer of BlueLinx, subject to normal year-end adjustments and lack of footnotes and, if a Compliance Period is then in effect, accompanied by a compliance certificate substantially in the form of Exhibit C hereto, along with a schedule in form reasonably satisfactory to Administrative and Collateral Agent of the calculations used in determining, as of the end of such month (or quarter), whether Borrowers were in compliance with the covenants set forth in Section 9.17 of this Agreement for such month (or quarter); and (ii) within ninety (90) 105 days after the end of each fiscal year, audited consolidated financial statements and, if Borrower has any subsidiaries, audited consolidating financial statements of BlueLinx Borrower and its Subsidiaries subsidiaries (including in each case balance sheets, statements of income and loss, statements of cash flow and statements of shareholders’ ' equity), and the accompanying notes thereto, all in reasonable detail, fairly presenting the financial position and the results of the operations of BlueLinx Borrower and its Subsidiaries subsidiaries as of the end of and for such fiscal year, together with (A) the unqualified opinion of independent certified public accountants, which accountants shall be an independent accounting firm selected by Borrowers Borrower and reasonably acceptable to Administrative and Collateral AgentLender, that such financial statements have been prepared in accordance with GAAP, and present fairly the results of operations and financial condition of BlueLinx Borrower and its Subsidiaries subsidiaries as of the end of and for the fiscal year then ended and (B) any management letters that may be issued with regard to the Borrowers or Guarantorsended.
Appears in 1 contract
Samples: Loan and Security Agreement (Microtel International Inc)
Financial Statements and Other Information. The Borrowers will furnish to the Administrative Agent and each Lender: (a) Each Borrower and each Guarantor shall, and shall cause each of its and their Subsidiaries to, keep proper books and records in which true and complete entries shall be made of all dealings or transactions of or in relation to the Collateral and the business of each Borrower, each Guarantor and each of their respective Subsidiaries in accordance with GAAP. Borrowers and Guarantors shall promptly furnish to Administrative and Collateral Agent any and all financial or other information as Administrative and Collateral Agent may reasonably request relating to the Collateral and the assets, business and operations of Borrowers and Guarantors, and to notify the auditors and accountants of Borrowers and Guarantors that Administrative and Collateral Agent is authorized to obtain such information directly from them. Without limiting the foregoing, Borrowers shall furnish or cause to be furnished to Administrative and Collateral Agent, the following: (i) within thirty (30) days after the end of each fiscal month (or within forty-five (45) days if such fiscal month end is also a fiscal quarter end), unaudited consolidated financial statements (including in each case balance sheets, statements of income and loss, statements of cash flow, and statements of shareholders’ equity), all in reasonable detail, fairly presenting the financial position and the results of the operations of BlueLinx and its Subsidiaries as of the end of and through such fiscal month (or quarter), certified to be correct by the chief financial officer of BlueLinx, subject to normal year-end adjustments and lack of footnotes and, if a Compliance Period is then in effect, accompanied by a compliance certificate substantially in the form of Exhibit C hereto, along with a schedule in form reasonably satisfactory to Administrative and Collateral Agent of the calculations used in determining, as of the end of such month (or quarter), whether Borrowers were in compliance with the covenants set forth in Section 9.17 of this Agreement for such month (or quarter); and (ii) within ninety (90) days after the end of each fiscal year of the Borrowers, its audited consolidated balance sheet and related statements of operations, stockholders’ equity and cash flows as of the end of and for such year, audited setting forth in each case in comparative form the figures for the previous fiscal year, all reported on by independent public accountants of recognized national standing (without a “going concern” or like qualification, commentary or exception, and without any qualification or exception as to the scope of such audit) to the effect that such consolidated financial statements present fairly in all material respects the financial condition and results of BlueLinx operations of the Borrowers and their consolidated Subsidiaries on a consolidated basis in accordance with GAAP consistently applied; (b) within forty-five (45) days after the end of each of the first three fiscal quarters of each fiscal year of the Borrowers, its Subsidiaries (including in each case consolidated balance sheets, sheet and related statements of income operations, stockholders’ equity and loss, statements of cash flow and statements of shareholders’ equity), and the accompanying notes thereto, all in reasonable detail, fairly presenting the financial position and the results of the operations of BlueLinx and its Subsidiaries flows as of the end of and for such fiscal quarter and the then elapsed portion of such fiscal year, together with setting forth in each case in comparative form the figures for the corresponding period or periods of (Aor, in the case of the balance sheet, as of the end of) the unqualified opinion previous fiscal year, all certified by a Financial Officer of independent certified public accountants, which accountants shall be an independent accounting firm selected by the Borrower Representative as presenting fairly in all material respects the financial condition and results of operations of the Borrowers and reasonably acceptable to Administrative and Collateral Agent, that such financial statements have been prepared their consolidated Subsidiaries on a consolidated basis in accordance with GAAPGAAP consistently applied, subject to normal year-end audit adjustments and present the absence of footnotes; (c) concurrently with any delivery of financial statements under clause (a) or (b) above, a Compliance Certificate (i) certifying, in the case of the financial statements delivered under clause (b) above, as presenting fairly in all material respects the financial condition and results of operations of the Borrowers and their 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, (iii) setting forth reasonably detailed calculations demonstrating compliance with Section 6.12 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; (d) as soon as available, but in any event no later than forty-five (45) days following the end of each fiscal year of the Borrowers, a copy of the plan (including a projected consolidated balance sheet, income statement and cash flow statement) of the Borrowers for each fiscal quarter of the upcoming fiscal year (the “Projections”) in form reasonably satisfactory to the Administrative Agent; (e) promptly after the same become publicly available, copies of all periodic and other reports, proxy statements and other materials filed by any Loan Party or any Subsidiary with the SEC, or any Governmental Authority succeeding to any or all of the functions of the 70 SEC, or with any national securities exchange, or distributed by Borrowers to its shareholders generally, as the case may be; (f) promptly after receipt thereof by any Borrower or any Subsidiary, copies of each notice or other correspondence received from the SEC (or comparable agency in any applicable non-U.S. jurisdiction) concerning any investigation or possible investigation or other inquiry by the SEC or such other agency regarding financial or other operational results of any Borrower or any Subsidiary thereof; (g) promptly following any request therefor, copies of any detailed audit reports, management letters or recommendations submitted to the board of directors (or the audit committee of the board of directors) of any Borrower by independent accountants in connection with the accounts or books of the Borrower or any Subsidiary, or any audit of any of them as the Administrative Agent or any Lender (through the Administrative Agent) may reasonably request; (h) promptly following any request therefor, (x) such other information regarding the operations, business affairs and financial condition of BlueLinx any Loan Party or any Subsidiary, or compliance with the terms of this Agreement, as the Administrative Agent or any Lender (through Administrative Agent) may reasonably request and its Subsidiaries as (y) 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 USA PATRIOT Act and the Beneficial Ownership Regulation; and (i) promptly after any request therefor by the Administrative Agent or any Lender, copies of (i) any documents described in Section 101(k)(1) of ERISA that the Borrowers or any ERISA Affiliate may request with respect to any Multiemployer Plan and (ii) any notices described in Section 101(l)(1) of ERISA that the Borrowers or any ERISA Affiliate may request with respect to any Multiemployer Plan; provided that if the Borrowers or any ERISA Affiliate has not requested such documents or notices from the administrator or sponsor of the end applicable Multiemployer Plan, the Borrowers or the applicable ERISA Affiliate shall promptly make a request for such documents and notices from such administrator or sponsor and shall provide copies of such documents and for notices promptly after receipt thereof. Documents required to be delivered pursuant to Section 5.01(a), (b) or (e) (to the fiscal year then ended 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 such materials are publicly available as posted on the Electronic Data Gathering, Analysis and Retrieval system (XXXXX); or (ii) on which such documents are posted on the Borrowers’ behalf on an Internet or intranet website, if any, to which each Lender and the Administrative Agent have access (whether a commercial, third-party website or whether made available by the Administrative Agent); provided that: (A) upon written request by the Administrative Agent (or any Lender through the Administrative Agent) to the Borrower Representative, the Borrower Representative shall deliver paper copies of such documents to the Administrative Agent or such Lender until a written request to cease delivering paper copies is given by the Administrative Agent or such Lender and (B) the Borrower Representative shall notify the Administrative Agent and each Lender (by facsimile or through Electronic System) of the posting of any management letters that may be issued with regard such documents and provide to the Administrative Agent through Electronic System electronic versions (i.e., soft copies) of such documents. The Administrative Agent shall have no obligation to request the delivery of or to maintain paper copies of the documents referred to above, and in any event shall have no responsibility to monitor compliance by the Borrowers or Guarantors.with any such request by a Lender for delivery, and each Lender shall be solely responsible for timely accessing 71
Appears in 1 contract
Samples: Execution Version Credit Agreement (Lawson Products Inc/New/De/)
Financial Statements and Other Information. (a) Each Borrower and each Guarantor shall, and shall cause each of its and their Subsidiaries to, keep proper books and records in which true and complete entries shall be made of all dealings or transactions of or in relation to the Collateral and the business of each Borrower, each Guarantor Borrower and each of their respective Subsidiaries its subsidiaries (if any) in accordance with GAAP. Borrowers GAAP and Guarantors shall promptly furnish to Administrative and Collateral Agent any and all financial or other information as Administrative and Collateral Agent may reasonably request relating to the Collateral and the assets, business and operations of Borrowers and Guarantors, and to notify the auditors and accountants of Borrowers and Guarantors that Administrative and Collateral Agent is authorized to obtain such information directly from them. Without limiting the foregoing, Borrowers Borrower shall furnish or cause to be furnished to Administrative and Collateral Agent, the followingLenders: (i) within thirty forty- five (3045) days after the end of each fiscal month (or within forty-five (45) days month, monthly unaudited consolidated financial statements, and, if such fiscal month end is also a fiscal quarter end)Borrower has any subsidiaries, unaudited consolidated consolidating financial statements (including in each case balance sheets, sheets and statements of income and loss, and, in the case of the third, sixth, ninth and twelfth months of Borrower's fiscal year, and such other months as, at any time after the occurrence and during the continuance of an Event of Default, a Majority of Lenders shall request, statements of cash flow, and statements of shareholders’ ' equity), all in reasonable detail, fairly presenting the financial position and the results of the operations of BlueLinx Borrower and its Subsidiaries subsidiaries as of the end of and through such fiscal month (or quarter), certified to be correct by the chief financial officer of BlueLinx, subject to normal year-end adjustments and lack of footnotes and, if a Compliance Period is then in effect, accompanied by a compliance certificate substantially in the form of Exhibit C hereto, along with a schedule in form reasonably satisfactory to Administrative and Collateral Agent of the calculations used in determining, as of the end of such month (or quarter), whether Borrowers were in compliance with the covenants set forth in Section 9.17 of this Agreement for such month (or quarter); and (ii) within ninety (90) days after the end of each fiscal year, audited consolidated financial statements and, if Borrower has any subsidiaries, audited consolidating financial statements of BlueLinx Borrower and its Subsidiaries subsidiaries (including in each case balance sheets, statements of income and loss, statements of cash flow and statements of shareholders’ ' equity), and the accompanying notes thereto, all in reasonable detail, fairly presenting the financial position and the results of the operations of BlueLinx Borrower and its Subsidiaries subsidiaries as of the end of and for such fiscal year, together with (A) the unqualified opinion of independent certified public accountants, which accountants shall be (A) one of the national accounting firms presently considered as one of the five largest (or their successor), or (B) an independent accounting firm selected by Borrowers Borrower and reasonably acceptable to Administrative and Collateral Agenta Majority of Lenders, that such financial statements have been prepared in accordance with GAAP, and present fairly the results of operations and financial condition of BlueLinx Borrower and its Subsidiaries subsidiaries as of the end of and for the fiscal year then ended and (B) any management letters that may be issued with regard to the Borrowers or Guarantorsended.
Appears in 1 contract
Financial Statements and Other Information. (a) Each Borrower and each Guarantor shall, and shall cause each of its and their Subsidiaries to, keep proper books and records in which true and complete entries shall be made of all dealings or transactions of or in relation to the Collateral and the business of each Borrower, each Guarantor Borrower and each of their respective its Subsidiaries in accordance with GAAP. Borrowers and Guarantors Borrower shall promptly furnish to Administrative and Collateral Agent any and all financial or other information as Administrative and Collateral Agent may reasonably request relating to the Collateral and the assets, business and operations of Borrowers and GuarantorsBorrower, and to notify the auditors and accountants of Borrowers and Guarantors Borrower that Administrative and Collateral Agent is authorized to obtain such information directly from them. Without limiting the foregoing, Borrowers Borrower shall furnish or cause to be furnished to Administrative and Collateral Agent, the following: (i) within thirty (30) days after the end of each fiscal month (or within forty-five (45) days if such fiscal month end is also a fiscal quarter end), unaudited consolidated financial statements (including in each case balance sheets, statements of income and loss, statements of cash flow, and statements of shareholders’ equity), all in reasonable detail, fairly presenting the financial position and the results of the operations of BlueLinx Borrower and its Subsidiaries as of the end of and through such fiscal month (or quarter), certified to be correct by the chief financial officer of BlueLinxBorrower, subject to normal year-end adjustments and lack of footnotes and, if a Compliance Period is then in effect, accompanied by a compliance certificate substantially in the form of Exhibit C hereto, along with a schedule in form reasonably satisfactory to Administrative and Collateral Agent of the calculations used in determining, as of the end of such month (or quarter), whether Borrowers were Borrower was in compliance with the covenants set forth in Section 9.17 of this Agreement for such month (or quarter); and (ii) within ninety (90) days after the Closing Date for fiscal year 2003 and within ninety (90) days after the end of such fiscal year for each fiscal yearyear thereafter, audited consolidated financial statements of BlueLinx Borrower and its Subsidiaries (including in each case balance sheets, statements of income and loss, statements of cash flow and statements of shareholders’ equity), and the accompanying notes thereto, all in reasonable detail, fairly presenting the financial position and the results of the operations of BlueLinx Borrower and its Subsidiaries as of the end of and for such fiscal year, together with (A) the unqualified opinion of independent certified public accountants, which accountants shall be an independent accounting firm selected by Borrowers Borrower and reasonably acceptable to Administrative and Collateral Agent, that such financial statements have been prepared in accordance with GAAP, and present fairly the results of operations and financial condition of BlueLinx Borrower and its Subsidiaries as of the end of and for the fiscal year then ended and (B) any management letters that may be issued with regard to the Borrowers or GuarantorsBorrower.
Appears in 1 contract
Samples: Loan and Security Agreement (BlueLinx Holdings Inc.)
Financial Statements and Other Information. (a) Each Borrower and each Guarantor shall, and shall cause each of its and their Subsidiaries any Subsidiary to, keep proper books and records in which true and complete entries shall be made of all dealings or transactions of or in relation to the Collateral and the business of each Borrower, each Guarantor Borrower and each of their respective its Subsidiaries in accordance with GAAP. Borrowers and Guarantors Borrower shall promptly furnish to Administrative Lender all such financial and Collateral Agent any and all financial or other information as Administrative and Collateral Agent may Lender shall reasonably request relating to the Collateral and the assets, business and operations of Borrowers and GuarantorsBorrower, and to notify the auditors and accountants of Borrowers and Guarantors Borrower that Administrative and Collateral Agent Lender is authorized to obtain such information directly from them. Without limiting the foregoing, Borrowers Borrower shall furnish or cause to be furnished to Administrative and Collateral AgentLender, the following: (i) within thirty (30) days after the end of each fiscal month (or within forty-five (45) days if such fiscal month end is also a fiscal quarter end)month, monthly unaudited consolidated financial statements and unaudited consolidating financial statements (including in each case balance sheets, statements of income and loss, statements of cash flow, and statements of shareholders’ ' equity), all in reasonable detail, fairly presenting the financial position and the results of the operations of BlueLinx Borrower and its Subsidiaries as of the end of and through such fiscal month (or quarter)month, certified to be correct by the chief financial officer of BlueLinxBorrower, subject to normal year-end adjustments and lack of footnotes and, if a Compliance Period is then in effect, accompanied by a compliance certificate substantially in the form of Exhibit C B hereto, along with a schedule in form reasonably satisfactory to Administrative and Collateral Agent Lender of the calculations used in determining, as of the end of such month (or quarter)month, whether Borrowers were Borrower was in compliance with the covenants set forth in Section 9.17 Sections 9.17, 9.18 and 9.19 of this Agreement for such month (or quarter); and (ii) within ninety (90) days after the end of each fiscal year, audited consolidated financial statements and unaudited consolidating financial statements of BlueLinx Borrower and its Subsidiaries (including in each case balance sheets, statements of income and loss, statements of cash flow and statements of shareholders’ ' equity), and the accompanying notes thereto, all in reasonable detail, fairly presenting the financial position and the results of the operations of BlueLinx Borrower and its Subsidiaries as of the end of and for such fiscal year, together with (A) the unqualified opinion of independent certified public accountants, which accountants shall be an independent accounting firm selected by Borrowers Borrower and reasonably acceptable to Administrative and Collateral AgentLender, that such financial statements have been prepared in accordance with GAAP, and present fairly the results of operations and financial condition of BlueLinx Borrower and its Subsidiaries as of the end of and for the fiscal year then ended and (B) any management letters that may be issued with regard to the Borrowers or Guarantorsended.
Appears in 1 contract
Samples: Loan and Security Agreement (Impax Laboratories Inc)
Financial Statements and Other Information. The Borrower shall furnish to the Administrative Agent (and the Administrative Agent agrees to promptly deliver or make available to the Lenders): (a) Each as soon as available, and in any event within 90 days after the close of each Fiscal Year (provided that such period may be extended upon election by the Borrower to the date such financial statements are otherwise required to be filed with the SEC pursuant to Applicable Laws after giving effect to all available extension and cure periods), balance sheets as of the end of such Fiscal Year (commencing with the Fiscal Year ending December 31, 2020) and the related statements of income, cash flow and shareholders’ equity for such Fiscal Year, on a consolidated basis for the Borrower and each Guarantor shallits consolidated 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 reasonably acceptable to the Administrative Agent, and shall cause each of its and their Subsidiaries to, keep proper books and records set forth in which true and complete entries shall be made of all dealings or transactions of or in relation to comparative form corresponding figures for the Collateral and the business of each Borrower, each Guarantor and each of their respective Subsidiaries in accordance with GAAP. Borrowers and Guarantors shall promptly furnish to Administrative and Collateral Agent any and all financial or other information preceding Fiscal Year; (b) as Administrative and Collateral Agent may reasonably request relating to the Collateral and the assets, business and operations of Borrowers and Guarantorssoon as available, and to notify the auditors and accountants of Borrowers and Guarantors that Administrative and Collateral Agent is authorized to obtain such information directly from them. Without limiting the foregoing, Borrowers shall furnish or cause to be furnished to Administrative and Collateral Agent, the following: (i) in any event within thirty (30) 45 days after the end of each fiscal month of the first three Fiscal Quarters (or within forty-five (45) days if provided that such fiscal month end is also a fiscal quarter endperiod may be extended upon election by the Borrower to the date such financial statements are otherwise required to be filed with the SEC pursuant to Applicable Laws after giving effect to all available extension and cure periods), unaudited consolidated financial statements (including in each case balance sheets, statements of income and loss, statements of cash flow, and statements of shareholders’ equity), all in reasonable detail, fairly presenting the financial position and the results of the operations of BlueLinx and its Subsidiaries sheets as of the end of such Fiscal Quarter and through the related statements of income, cash flow and shareholders’ equity for such fiscal month (Fiscal Quarter and for the portion of the Fiscal Year 83 then elapsed, on a consolidated basis for the Borrower and its consolidated Subsidiaries, setting forth in comparative form corresponding figures for the preceding Fiscal Year and certified by a Responsible Officer of the Borrower with relevant knowledge or quarter), certified to be correct by responsibility of the chief Borrower as prepared in accordance with GAAP and fairly presenting in all material respects the financial officer position and results of BlueLinxoperations for such Fiscal Quarter and period, subject to normal year-end adjustments and lack the absence of footnotes andfootnotes; (c) concurrently with the delivery of financial statements under clause (a) or (b) above, a duly completed Compliance Certificate signed by a Responsible Officer of the Borrower, which shall include as an attachment thereto (i) a calculation of Consolidated Interest Expense for the applicable trailing four Fiscal Quarters, including the component figures thereof, and (ii) a separate set of financial statements (which may be unaudited) eliminating the financial position and results of operations of the Unrestricted Subsidiaries, if a Compliance Period is then in effect, accompanied by a compliance certificate substantially in the form of Exhibit C hereto, along with a schedule in form reasonably satisfactory to Administrative and Collateral Agent of the calculations used in determiningany, as of the end applicable date and for the applicable period then ended; (d) concurrently with delivery of financial statements under clause (a) above, copies of all detailed audit reports, final management letters and other material reports submitted to the Borrower by their accountants in connection with such month financial statements; (or quarter), whether Borrowers were in compliance with the covenants set forth in Section 9.17 of this Agreement for such month (or quarter); and (iie) within ninety (90) not later than 30 days after the end of each fiscal yearFiscal Year, audited projections of the Borrower’s consolidated financial statements (i) results of BlueLinx operations for the next Fiscal Year, month by month, (ii) balance sheets and its Subsidiaries (including in each case balance sheets, statements of income and loss, statements of cash flow and statements of shareholders’ equity)for the next Fiscal Year, quarter by quarter, and the accompanying notes thereto(iii) balance sheet, all in reasonable detail, fairly presenting the financial position and the results of the operations of BlueLinx and its Subsidiaries as of the end of and for such fiscal year, together with (A) the unqualified opinion of independent certified public accountants, which accountants shall be an independent accounting firm selected by Borrowers and reasonably acceptable to Administrative and Collateral Agent, that such financial statements have been prepared in accordance with GAAP, and present fairly the results of operations and financial condition cash flow for the next three Fiscal Years, year by year; (f) promptly after the furnishing thereof, copies of BlueLinx and any statement or report furnished to any holder of debt securities of any Loan Party or any of its Subsidiaries pursuant to the terms of any indenture, loan or credit agreement and not otherwise required to be furnished to the Lenders pursuant to this Section 6.2; (g) as of soon as available, but in any event within 30 days after the end of each Fiscal Year of the Borrower, a report summarizing the insurance coverage (specifying type, amount and carrier) in effect for each Loan Party and containing such additional information concerning such insurance coverage as the fiscal year then ended Administrative Agent, or any Lender through the Administrative Agent, may reasonably specify; (h) promptly, and in any event within ten (10) Business Days after receipt thereof by any Loan Party or any Subsidiary thereof, copies of each notice or other correspondence received from the SEC (or comparable agency in any applicable non-U.S. jurisdiction) concerning any investigation or possible investigation by such agency regarding financial or other operational results of any Loan Party or any Subsidiary thereof; (i) 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, without limitation, the Act and the Beneficial Ownership Regulation; (j) promptly after the sending or filing thereof, copies of any annual report to be filed in connection with each Plan or Foreign Plan; and (Bk) such other reports and information (financial or otherwise) as the Administrative Agent may reasonably request in connection with any management letters that Collateral or the financial condition or business of the Borrower or any other Loan Party. Documents required to be delivered pursuant to Section 6.2(a), (b) or (j) (to the extent any such documents are included in materials otherwise filed with the SEC) may be issued with regard delivered electronically and, if so delivered, shall be deemed to have been delivered on the Borrowers date on which such documents are (i) posted on the Borrower’s behalf on an Internet or Guarantors.intranet website, if any, to which each Lender and the Administrative Agent have access (whether a commercial, third-party website or whether sponsored by the Administrative Agent); or (ii) available on the SEC’s website on the Internet at xxx.xxx.xxx; provided that the Borrower shall notify the Administrative Agent (which shall notify each Lender) of the posting of any such documents. 84
Appears in 1 contract
Financial Statements and Other Information. (a) Each Furnish the Bank a copy of the report of the certified audit of the Borrower and each Guarantor shall, and shall cause each of its and their Subsidiaries to, keep proper books and records in which true and complete entries shall be made of all dealings or transactions of or in relation to the Collateral and the business of each Borrower, each Guarantor and each of their respective Subsidiaries in accordance with GAAP. Borrowers and Guarantors shall promptly furnish to Administrative and Collateral Agent any and all financial or other information as Administrative and Collateral Agent may reasonably request relating to the Collateral and the assets, business and operations of Borrowers and Guarantors, and to notify the auditors and accountants of Borrowers and Guarantors that Administrative and Collateral Agent is authorized to obtain such information directly from them. Without limiting the foregoing, Borrowers shall furnish or cause to be furnished to Administrative and Collateral Agent, the following: (i) within thirty (30) days after the end of for each fiscal month (or within forty-five (45) days if such fiscal month end is also year prepared by a fiscal quarter end), unaudited consolidated financial statements (including in each case certified public accountant of recognized standing and a balance sheets, sheet and related statements of income and loss, statements of retained earnings and cash flow, and statements of shareholders’ equity), all in reasonable detail, fairly presenting the financial position and the results flow of the operations of BlueLinx Borrower and its Subsidiaries as of the end of and through such fiscal month (or quarter), certified to be correct by the chief financial officer of BlueLinx, subject to normal year-end adjustments and lack of footnotes and, if a Compliance Period is then in effect, accompanied by a compliance certificate substantially in the form of Exhibit C hereto, along with a schedule in form reasonably satisfactory to Administrative and Collateral Agent of the calculations used in determining, as of the end of such month (or quarter), whether Borrowers were in compliance with the covenants set forth in Section 9.17 of this Agreement for such month (or quarter); and (ii) within ninety (90) days after the end of each fiscal year, audited consolidated financial statements of BlueLinx and its Subsidiaries (including in each case balance sheets, statements of income and loss, statements of cash flow and statements of shareholders’ equity), and the accompanying notes thereto, all in reasonable detail, fairly presenting the financial position and the results of the operations of BlueLinx and its Subsidiaries as of the end of and for such fiscal year, together with (A) each quarter certified as to fairness of presentation by an officer of the unqualified opinion of independent certified public accountants, which accountants shall be an independent accounting firm selected by Borrowers and reasonably acceptable to Administrative and Collateral Agent, that such Borrower and/or the respective Subsidiaries. All financial statements have been will be consolidated financial statements, and all annual and quarterly financial statements will be prepared in accordance with GAAPgenerally accepted accounting principles, and present fairly will be in a form satisfactory to the results Bank. The annual audits and quarterly statements shall be in the format required for filing with the Securities and Exchange Commission. The Borrower will further furnish the Bank within 20 days of operations the end of each fiscal month a balance sheet and financial condition related statements of BlueLinx income and its retained earnings of the Borrower and of the Subsidiaries (but excluding Fargeot) as of the end of and for such month certified as to fairness of presentation by an officer of the Borrower and/or the respective Subsidiaries. The Borrower will furnish to the Bank with such monthly financial statements an accounts receivable aging, an accounts receivable reconciliation, a detailed inventory listing and an accounts payable aging, all certified by an officer of the Borrower and/or the respective Subsidiaries. The engagement of the certified public accountant will require the reporting of any and all Defaults and Events of Default as of the last day of the fiscal year then ended and (B) any management letters that may be issued with regard of the Borrower which have come to the Borrowers attention of such accountant or Guarantorsthat no Defaults or Events of Default have come to its attention as of such date. Quarterly financial statements will be accompanied by an officer's compliance certificate, in the form attached hereto as Exhibit D, which shall also indicate whether a Default or Event of Default has occurred and, if so, stating the facts with respect thereto and whether the same has been cured prior to the date of such certificate. In the event that any certificate furnished under this paragraph shall state that a Default or Event of Default has occurred and is continuing, such certificate shall be accompanied by a statement executed by the chief financial officer of the Borrower as to the action taken and proposed to be taken by the Borrower to cure such Default or Event of Default. Annual and quarterly statements shall, be delivered to the Bank within 120 days and 60 days, respectively, after the close of the fiscal period. The Borrower will also furnish the Bank promptly after sending or filing thereof, copies of all financial statements and reports which it sends to its stockholders and copies of all regular and periodic reports and registration statements which it files with the Securities and Exchange Commission. The Borrower will furnish the Bank within a reasonable period of time such additional information and financial statements as the Bank may from time to time request. The Borrower will furnish to the Bank weekly a certificate in the form of Exhibit E signed by its chief financial officer setting forth the calculation of the Borrowing Base as of the end of the week most recently ended. The Borrower will also furnish to the Bank weekly a sales journal and cash receipts journal.
Appears in 1 contract
Financial Statements and Other Information. (a) Each The Borrower and each Guarantor shall, and shall cause each of its and their Subsidiaries to, keep proper books and records in which true and complete entries shall be made of all dealings or transactions of or in relation will furnish to the Collateral Administrative Agent (and the business of each Borrower, each Guarantor and each of their respective Subsidiaries in accordance with GAAP. Borrowers and Guarantors Administrative Agent shall promptly furnish to Administrative and Collateral Agent any and all financial or other information as Administrative and Collateral Agent may reasonably request relating provide the same to the Collateral and the assets, business and operations of Borrowers and Guarantors, and to notify the auditors and accountants of Borrowers and Guarantors that Administrative and Collateral Agent is authorized to obtain such information directly from them. Without limiting the foregoing, Borrowers shall furnish or cause to be furnished to Administrative and Collateral Agent, the following: Lenders): within one hundred five (i) within thirty (30105) days after the end of each fiscal month year of the Borrower (or within fortyor, if earlier, by the date that the Annual Report on Form 10-five (45) days if K of the Borrower for such fiscal month end is also a fiscal quarter endyear would be required to be filed under the rules and regulations of the SEC, giving effect to any automatic extension available thereunder for the filing of such form), unaudited its audited consolidated financial statements (including in each case balance sheets, sheet and related statements of income operations, stockholders’ equity and loss, statements of cash flow, and statements of shareholders’ equity), all in reasonable detail, fairly presenting the financial position and the results of the operations of BlueLinx and its Subsidiaries as of the end of and through such fiscal month (or quarter), certified to be correct by the chief financial officer of BlueLinx, subject to normal year-end adjustments and lack of footnotes and, if a Compliance Period is then in effect, accompanied by a compliance certificate substantially in the form of Exhibit C hereto, along with a schedule in form reasonably satisfactory to Administrative and Collateral Agent of the calculations used in determining, as of the end of such month (or quarter), whether Borrowers were in compliance with the covenants set forth in Section 9.17 of this Agreement for such month (or quarter); and (ii) within ninety (90) days after the end of each fiscal year, audited consolidated financial statements of BlueLinx and its Subsidiaries (including in each case balance sheets, statements of income and loss, statements of cash flow and statements of shareholders’ equity), and the accompanying notes thereto, all in reasonable detail, fairly presenting the financial position and the results of the operations of BlueLinx and its Subsidiaries flows as of the end of and for such year, setting forth in each case in comparative form the figures for the previous fiscal year, together all reported on by Ernst & Young LLP or other independent public accountants of recognized national standing (without a “going concern” or like qualification or exception (other than a “going concern” qualification resulting solely from (i) an upcoming maturity date under any Indebtedness occurring within one year from the time such opinion is delivered or (ii) a breach or anticipated breach of financial covenants) and without any qualification or exception as to the scope of such audit) to the effect that such consolidated financial statements present fairly in all material respects the financial condition and results of operations of the Borrower and its consolidated Subsidiaries on a consolidated basis in accordance with (A) GAAP consistently applied except for inconsistencies resulting from changes in accounting principles and methods agreed to by the unqualified opinion of Borrower’s independent certified public accountants, which accountants shall together with a customary management discussion and analysis; within fifty (50) days after the end of each of the first three fiscal quarters of each fiscal year of the Borrower (or, if earlier, by the date that the Quarterly Report on Form 10-Q of the Borrower for such fiscal quarter would be an independent accounting firm selected by Borrowers required to be filed under the rules and reasonably acceptable regulations of the SEC, giving effect to Administrative any automatic extension available thereunder for the filing of such form), its consolidated balance sheet and Collateral Agentrelated statements of operations, that such financial statements have been prepared in accordance with GAAP, stockholders’ equity and present fairly the results of operations and financial condition of BlueLinx and its Subsidiaries cash flows as of the end of and for the then elapsed portion of the fiscal year then ended and, with respect to the statement of operations only, for such fiscal quarter, 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 basis in accordance with GAAP consistently applied, subject to normal year-end audit adjustments and the absence of footnotes except for inconsistencies resulting from changes in accounting principles and methods agreed to by the Borrower’s independent public accountants, together with a customary management discussion and analysis; concurrently with any delivery of financial statements under clause (a) or (b) above, a certificate of a Financial Officer of the Borrower (i) certifying as to whether a Default or Event of Default has occurred and, if a Default or Event of Default has occurred, specifying the details thereof and any action taken or proposed to be taken with respect thereto, (ii) setting forth reasonably detailed calculations demonstrating compliance with Section 6.11 and (iii) stating whether any material 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; [reserved]; as soon as available, but in any event not more than fifteen (15) days after being approved by the board of directors of the Borrower, and in no event later than November 15th of each fiscal year of the Borrower, a copy of the plan and forecast (including a projected consolidated balance sheet, income statement and funds flow statement) of the Borrower for the upcoming fiscal year in form previously delivered to the Administrative Agent; 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 SEC, or any Governmental Authority succeeding to any or all of the functions of the SEC, if any, or with any national securities exchange, or distributed by the Borrower to its shareholders generally, if any, as the case may be; concurrently with any delivery of financial statements under clause (a) above, a Perfection Certificate Supplement; and 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. Documents required to be delivered pursuant to Section 5.01(a), (b) or (f) (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 such materials are publicly available as posted on the Electronic Data Gathering, Analysis and Retrieval system (XXXXX); or (ii) on which such documents are posted on the Borrower’s behalf on an Internet or intranet website, if any, to which each Lender and the Administrative Agent have access (whether a commercial, third-party website or whether made available by the Administrative Agent); provided that: (A) upon written request by the Administrative Agent (or any Lender through the Administrative Agent) to the Borrower, the Borrower shall deliver paper copies of such documents to the Administrative Agent or such Lender until a written request to cease delivering paper copies is given by the Administrative Agent or such Lender and (B) the Borrower shall notify the Administrative Agent and each Lender (by telecopier or electronic mail) of the posting of any management letters that may be issued with regard such documents and provide to the Borrowers Administrative Agent by electronic mail electronic versions (i.e., soft copies) of such documents. The Administrative Agent shall have no obligation to request the delivery of or Guarantorsto maintain paper copies of the documents referred to above, and in any event shall have no responsibility to monitor compliance by the Borrower with any such request by a Lender for delivery, and each Lender shall be solely responsible for timely accessing posted documents or requesting delivery of paper copies of such document to it and maintaining its copies of such documents Notwithstanding anything contained herein, in every instance the Borrower shall be required to provide paper copies of the compliance certificates required by clause (c) of this Section 5.01 to the Administrative Agent.
Appears in 1 contract
Samples: Security Agreement (Ugi Corp /Pa/)
Financial Statements and Other Information. (a) Each Borrower and each Guarantor shall, and shall cause each of its and their Subsidiaries Subsidiary to, keep proper books and records in which true and complete entries shall be made of all dealings or transactions of or in relation to the Collateral and the business of each Borrower, each Guarantor Borrower and each of their respective its Subsidiaries in accordance with GAAP. Borrowers and Guarantors Borrower shall promptly furnish to Administrative Agent and Collateral Agent any Lenders all such financial and all financial or other information as Administrative and Collateral Agent may shall reasonably request relating to the Collateral and the assets, business and operations of Borrowers and GuarantorsBorrower, and to Borrower shall notify the auditors and accountants of Borrowers and Guarantors Borrower that Administrative and Collateral Agent is authorized to obtain such information directly from them. Without limiting the foregoing, Borrowers Borrower shall furnish or cause to be furnished to Administrative and Collateral Agent, the following: (i) within thirty (30) days after the end of each fiscal month (or within forty-five (45) days if such fiscal month end is also a fiscal quarter end)month, monthly unaudited consolidated financial statements, and unaudited consolidating financial statements (including in each case balance sheets, statements of income and loss, statements of cash flow, and statements of shareholders’ equity), all in reasonable detail, fairly presenting the financial position and the results of the operations of BlueLinx Borrower and its Subsidiaries as of the end of and through such fiscal month (or quarter)month, certified to be correct by the chief financial officer of BlueLinxBorrower, subject to normal year-end adjustments and lack of no footnotes and, if a Compliance Period is then in effect, and accompanied by a compliance certificate substantially in the form of Exhibit C hereto, along with a schedule in a form reasonably satisfactory to Administrative and Collateral Agent of the calculations used in determining, as of the end of such month (or quarter)month, whether Borrowers were Borrower is in compliance with the covenants set forth in Section 9.17 of this Agreement for such month (or quarter); and (ii) within ninety (90) days after the end of each fiscal year, audited consolidated financial statements and unaudited consolidating financial statements of BlueLinx Borrower and its Subsidiaries (including in each case balance sheets, statements of income and loss, statements of cash flow flow, and statements of shareholders’ equity), and the accompanying notes thereto, all in reasonable detail, fairly presenting the financial position and the results of the operations of BlueLinx Borrower and its Subsidiaries as of the end of and for such fiscal year, together with (A) the unqualified opinion of independent certified public accountantsaccountants with respect to the audited consolidated financial statements, which accountants shall be an independent accounting firm selected by Borrowers Borrower and reasonably acceptable to Administrative and Collateral Agent, that such audited consolidated financial statements have been prepared in accordance with GAAP, and present fairly the results of operations and financial condition of BlueLinx Borrower and its Subsidiaries as of the end of and for the fiscal year then ended and (B) any management letters that may be issued with regard to the Borrowers or Guarantorsended.
Appears in 1 contract
Samples: Loan and Security Agreement (Reptron Electronics Inc)
Financial Statements and Other Information. Borrower shall furnish to Lender: (ai) Each Borrower as soon as available and each Guarantor shall, and shall cause each in any event within 45 days after the end of its and their Subsidiaries to, keep proper books and records in which true and complete entries shall be made of all dealings or transactions of or in relation to the Collateral and the business first three fiscal quarters of each Borrowerfiscal year of Holdings or 90 days (in the case of the fourth fiscal quarter), each Guarantor and each of their respective Subsidiaries its quarterly consolidated financial statements, prepared in accordance with GAAP. Borrowers , and, if requested by Lender, its quarterly consolidating financial statements, accompanied by a certificate of a Responsible Officer of Holdings stating that such consolidated financial statements fairly present the financial condition of Holdings and Guarantors shall promptly furnish to Administrative and Collateral Agent any and all financial or other information its Subsidiaries as Administrative and Collateral Agent may reasonably request relating to the Collateral at such date and the assets, business and results of operations of Borrowers Holdings and Guarantorsits Subsidiaries for the period ended on such date in accordance with GAAP and have been prepared in accordance with GAAP consistently applied, subject to changes from normal, year-end adjustments and to notify except for the auditors absence of notes, (ii) as soon as available and accountants of Borrowers and Guarantors that Administrative and Collateral Agent is authorized to obtain such information directly from them. Without limiting the foregoing, Borrowers shall furnish or cause to be furnished to Administrative and Collateral Agent, the following: (i) in any event within thirty (30) 90 days after the end of each fiscal month (or within forty-five (45) days year of Holdings, its consolidated annual financial statements, prepared in accordance with GAAP and, if such fiscal month end is also a fiscal quarter end)requested by Lender, unaudited consolidating annual financial statements, and in the case of consolidated financial statements statements, accompanied by an unqualified report thereon of independent certified public accountants of recognized standing; (including iii) as soon as available and in any event not more than 90 days after the commencement of each case balance sheetsfiscal year, statements the business plan and financial projections of income and loss, statements of cash flow, and statements of shareholders’ equity), all in reasonable detail, fairly presenting the financial position and the results of the operations of BlueLinx Holdings and its Subsidiaries for such fiscal year; (iv) promptly after Borrower has knowledge or becomes aware thereof, notice of (A) the occurrence of any Default hereunder, and (B) any default or event of default under any Financing Documents; (v) prompt written notice of any condition or event which has resulted, or that could reasonably be expected to result, in a Material Adverse Change; (vi) together with the financial statements required pursuant to clauses (i) and (ii), a Compliance Certificate of a Responsible Officer of Holdings as of the end of and through such fiscal month (or quarter), certified to be correct by the chief financial officer of BlueLinx, subject to normal year-end adjustments and lack of footnotes and, if a Compliance Period is then in effect, accompanied by a compliance certificate substantially in the form of Exhibit C hereto, along with a schedule in form reasonably satisfactory to Administrative and Collateral Agent of the calculations used in determining, as of the end of such month (or quarter), whether Borrowers were in compliance with the covenants set forth in Section 9.17 of this Agreement for such month (or quarter)applicable accounting period; and (iivii) within ninety (90) days after such other information respecting the end of each fiscal yearoperations, audited consolidated financial statements of BlueLinx and its Subsidiaries (including in each case balance sheetsproperties, statements of income and loss, statements of cash flow and statements of shareholders’ equity), and the accompanying notes thereto, all in reasonable detail, fairly presenting the financial position and the results of the operations of BlueLinx and its Subsidiaries as of the end of and for such fiscal year, together with (A) the unqualified opinion of independent certified public accountants, which accountants shall be an independent accounting firm selected by Borrowers and reasonably acceptable to Administrative and Collateral Agent, that such financial statements have been prepared in accordance with GAAP, and present fairly the results of operations and business or financial condition of BlueLinx and Holdings, its Subsidiaries and any Guarantor as of the end of and for the fiscal year then ended and (B) any management letters that Lender may be issued with regard from time to the Borrowers or Guarantorstime reasonably request.
Appears in 1 contract
Samples: Convergent Communications Inc /Co
Financial Statements and Other Information. (a) Each The Borrower and each Guarantor shall, and shall cause each of its and their Subsidiaries to, keep proper books and records in which true and complete entries shall be made of all dealings or transactions of or in relation Agent will furnish to the Collateral and the business of each Borrower, each Guarantor and each of their respective Subsidiaries in accordance with GAAP. Borrowers and Guarantors shall promptly furnish to Administrative and Collateral Agent any and all financial or other information as Administrative and Collateral Agent may reasonably request relating for distribution to the Collateral and the assets, business and operations of Borrowers and Guarantors, and to notify the auditors and accountants of Borrowers and Guarantors that Administrative and Collateral Agent is authorized to obtain such information directly from them. Without limiting the foregoing, Borrowers shall furnish or cause to be furnished to Administrative and Collateral Agent, the followingLenders: (i%3) as soon as available, but in any event within thirty ninety (3090) days (or to the extent that the SEC grants an extension of such period, such longer period as may be extended by the SEC, not to exceed one-hundred and five (105) days) after the end of each fiscal month year of the Parent Entity, the audited consolidated balance sheet of the Parent Entity and its Consolidated Subsidiaries and related statements of operations, stockholders’ equity and cash flows as of the end of and for such year, setting forth in each case in comparative form the figures for the previous fiscal year, all reported on by Ernst & Young LLP or other independent public accountants of recognized national standing (without a “going concern” or like qualification or exception and without any qualification or exception as to the scope of such audit) to the effect that such consolidated financial statements present fairly in all material respects the financial position and results of operations of the Parent Entity and its Consolidated Subsidiaries on a consolidated basis in accordance with GAAP; (%3) as soon as available, but in any event within forty-five (45) days if such fiscal month end is also a fiscal quarter end), unaudited consolidated financial statements (including in each case balance sheets, statements of income and loss, statements of cash flow, and statements of shareholders’ equity), all in reasonable detail, fairly presenting the financial position and the results of the operations of BlueLinx and its Subsidiaries as of the end of and through such fiscal month (or quarter)to the extent that the SEC grants an extension of such period, certified to such longer period as may be correct extended by the chief financial officer of BlueLinxSEC, subject not to normal year-end adjustments and lack of footnotes and, if a Compliance Period is then in effect, accompanied by a compliance certificate substantially in the form of Exhibit C hereto, along with a schedule in form reasonably satisfactory to Administrative and Collateral Agent of the calculations used in determining, as of the end of such month exceed sixty (or quarter), whether Borrowers were in compliance with the covenants set forth in Section 9.17 of this Agreement for such month (or quarter); and (ii60) within ninety (90days) days after the end of each of the first three fiscal yearquarters of each fiscal year of the Parent Entity, audited the unaudited consolidated financial balance sheet of the Parent Entity and its Consolidated Subsidiaries and related statements of BlueLinx operations and its Subsidiaries (including in each case balance sheets, statements of income and loss, statements of cash flow and statements of shareholders’ equity), and the accompanying notes thereto, all in reasonable detail, fairly presenting the financial position and the results of the operations of BlueLinx and its Subsidiaries flows as of the end of and for such fiscal quarter and the then elapsed portion of the fiscal year, together with setting forth in each case in comparative form the figures for the corresponding period or periods of (Aor, in the case of the balance sheet, as of the end of) the unqualified opinion previous fiscal year, all certified by one of independent certified public accountants, which accountants shall be an independent accounting firm selected by Borrowers the Parent Entity’s Financial Officers as presenting fairly in all material respects the financial position and reasonably acceptable to Administrative results of operations of the Parent Entity and Collateral Agent, that such financial statements have been prepared its Consolidated Subsidiaries on a consolidated basis in accordance with GAAP, subject to normal year-end audit adjustments and present fairly the results absence of operations and financial condition of BlueLinx and its Subsidiaries as of the end of and for the fiscal year then ended and (B) any management letters that may be issued with regard to the Borrowers or Guarantors.footnotes;
Appears in 1 contract
Financial Statements and Other Information. (a) Each Borrower Parent and each Guarantor Borrower shall, and shall cause each of its and their respective Subsidiaries to, keep proper books and records in which true true, current and complete entries shall be made of all dealings or transactions of or in relation to the Collateral and the business of each Borrower, each Guarantor Parent or such Borrower and each of their respective its Subsidiaries in accordance with GAAP. Borrowers and Guarantors shall promptly furnish to Administrative and Collateral Agent any and all financial or other information as Administrative and Collateral Agent may reasonably request relating to the Collateral and the assets, business and operations of Borrowers and Guarantors, and to notify the auditors Parent and accountants of Borrowers and Guarantors that Administrative and Collateral Agent is authorized to obtain such information directly from them. Without limiting the foregoing, Borrowers each Borrower shall furnish or cause to be furnished to Administrative and Collateral Agent, the followingLender: (i) within thirty forty five (3045) days (or fifty (50) days if Parent or Borrowers have received a filing extension from the Securities and Exchange Commission (the "SEC")) after the end of each fiscal month (or within forty-five (45) days if such fiscal month end is also a fiscal quarter end)month, monthly unaudited consolidated financial statements (including in each case balance sheets, statements of income and loss, statements of cash flow, loss and statements of shareholders’ ' equity), all in reasonable detail, fairly presenting the financial position and the results of the operations of BlueLinx Parent and its Subsidiaries as of the end of and through such fiscal month (or quarter), certified to be correct by the chief financial officer of BlueLinx, subject to normal year-end adjustments and lack of footnotes and, if a Compliance Period is then in effect, accompanied by a compliance certificate substantially in the form of Exhibit C hereto, along with a schedule in form reasonably satisfactory to Administrative and Collateral Agent of the calculations used in determining, as of the end of such month (or quarter), whether Borrowers were in compliance with the covenants set forth in Section 9.17 of this Agreement for such month (or quarter); and (ii) within ninety (90) days (or one hundred five (105) days if Parent or Borrowers have received a filing extension from the SEC) after the end of each fiscal year, audited consolidated financial statements of BlueLinx Parent and its Subsidiaries (including in each case balance sheets, statements of income and loss, statements of cash flow and statements of shareholders’ ' equity), and the accompanying notes thereto, all in reasonable detail, fairly presenting the financial position and the results of the operations of BlueLinx Parent and its Subsidiaries as of the end of and for such fiscal year, together with (A) the unqualified opinion of independent certified public accountants, which accountants shall be an independent accounting firm selected by Borrowers Parent and reasonably acceptable to Administrative and Collateral AgentLender, that such financial statements have been prepared in accordance with GAAP, and present fairly the results of operations and financial condition of BlueLinx Parent and its Subsidiaries as of the end of and for the fiscal year then ended and (B) any management letters that may be issued with regard to the Borrowers or Guarantorsended.
Appears in 1 contract
Samples: Loan and Security Agreement (Atlantic Express Transportation Corp)
Financial Statements and Other Information. (a) Each Borrower and each Guarantor shall, and shall cause each of its and their Subsidiaries any Subsidiary to, keep proper books and records in which true and complete entries shall be made of all dealings or transactions of or in relation to the Collateral and the business of each Borrower, each Guarantor such Borrower and each of their respective its Subsidiaries in accordance with GAAP. Borrowers and Guarantors shall promptly furnish to Administrative Agent and Collateral Agent any Lenders all such financial and all financial or other information as Administrative and Collateral Agent may shall reasonably request relating to the Collateral and the assets, business and operations of Borrowers and GuarantorsBorrowers, and to Borrower shall notify the auditors and accountants of Borrowers and Guarantors that Administrative and Collateral Agent is authorized to obtain such information directly from them. Without limiting the foregoing, Borrowers shall furnish or cause to be furnished to Administrative and Collateral Agent, the following: (i) within thirty (30) days after the end of each fiscal month month, monthly unaudited consolidated financial statements (or including in each case, statements of income and loss and, upon Agent's request, a trial balance, all in reasonable detail, fairly presenting the results of the operations of Borrowers and their Subsidiaries as of the end of and through such fiscal month, certified to be correct by the chief financial officer of Borrowers, subject to normal year-end adjustments and no footnotes and accompanied by a compliance certificate substantially in the form of Exhibit C hereto, and, at Agent's request, such information as Agent may reasonably request with respect to Borrowers' liability reflected on such monthly financial statements in respect of Borrowers' self-insurance program covering employee health and workmen's compensation claims ("Self-insurance Liability"), (ii) within forty-five (45) days if such after the end of each fiscal month end is also a fiscal quarter end)quarter, quarterly unaudited consolidated financial statements (including in each case balance sheets, statements of income and loss, statements of cash flow and statements of shareholder's equity), all in reasonable detail, fairly presenting the financial position and the results of the operations of Borrowers and their Subsidiaries as of the end of each and through such fiscal quarter, together with a summary report by retail store location of sales and operating profits for each such retail store location (which may be delivered to Agent in EXCEL spreadsheet format and downloaded by Borrower by means of the ESSBASE system), in each case certified to be correct by the chief financial officer of Borrowers, accompanied by a compliance certificate substantially in the form of Exhibit C hereto, and a copy of Borrowers' internally prepared analysis with respect to Borrowers' Self-insurance Liability reflected on such quarterly financial statements and (iii) within ninety (90) days after the end of each fiscal year, audited consolidated financial statements of Borrowers and their Subsidiaries (including in each case balance sheets, statements of income and loss, statements of cash flow, and statements of shareholders’ equity), all in reasonable detail, fairly presenting the financial position and the results of the operations of BlueLinx and its Subsidiaries as of the end of and through such fiscal month (or quarter), certified to be correct by the chief financial officer of BlueLinx, subject to normal year-end adjustments and lack of footnotes and, if a Compliance Period is then in effect, accompanied by a compliance certificate substantially in the form of Exhibit C hereto, along with a schedule in form reasonably satisfactory to Administrative and Collateral Agent of the calculations used in determining, as of the end of such month (or quarter), whether Borrowers were in compliance with the covenants set forth in Section 9.17 of this Agreement for such month (or quarter); and (ii) within ninety (90) days after the end of each fiscal year, audited consolidated financial statements of BlueLinx and its Subsidiaries (including in each case balance sheets, statements of income and loss, statements of cash flow and statements of shareholders’ ' equity), and the accompanying notes thereto, all in reasonable detail, fairly presenting the financial position and the results of the operations of BlueLinx Borrowers and its their Subsidiaries as of the end of and for such fiscal year, together with (A) the unqualified opinion of independent certified public accountantsaccountants with respect to the audited consolidated financial statements, which accountants shall be an independent accounting firm selected by Borrowers and reasonably acceptable to Administrative and Collateral Agent, that such audited consolidated financial statements have been prepared in accordance with GAAP, and present fairly the results of operations and financial condition of BlueLinx Borrowers and its their Subsidiaries as of the end of and for the fiscal year then ended and (B) any management letters that together with such information as Agent may be issued reasonably request with regard respect to the Borrowers or GuarantorsBorrowers' liability reflected on such audited financial statements with respect to Borrowers' Self-insurance Liability.
Appears in 1 contract
Financial Statements and Other Information. (a) Each Borrower and each Guarantor shall, and shall cause each of its and their Subsidiaries any Subsidiary to, keep proper books and records in which true and complete entries shall be made of all dealings or transactions of or in relation to the Collateral and the business of each such Borrower, each Guarantor and each of their respective its Subsidiaries in accordance with GAAP. Borrowers and Guarantors shall promptly furnish to Administrative Agent and Collateral Agent any Lenders all such financial and all financial or other information as Administrative and Collateral Agent may shall reasonably request relating to the Collateral and the assets, business and operations of Borrowers and Guarantors, and to Borrowers and Guarantors shall notify the auditors and accountants of Borrowers and Guarantors that Administrative and Collateral Agent is authorized to obtain such information directly from them. Without limiting the foregoing, Borrowers and Guarantors shall furnish or cause to be furnished to Administrative and Collateral Agent, the following: (i) within thirty forty (3040) days after the end of each fiscal month (or within forty-five except, that, in the case of any fiscal month that is the last month of a fiscal quarter, fifty (4550) days if after the end of such fiscal month end is also a fiscal quarter endmonth), monthly unaudited consolidated financial statements, and unaudited consolidating financial statements (including in each case balance sheets, statements of income and loss, statements of cash flow, and statements of shareholders’ equity), all in reasonable detail, fairly presenting the financial position and the results of the operations of BlueLinx Parent and its Subsidiaries as of the end of and through such fiscal month (or quarter)month, certified to be correct by the chief financial officer or chief accounting officer of BlueLinxParent, subject to normal year-end adjustments and lack of no footnotes and, if a Compliance Period is then in effect, and accompanied by a compliance certificate substantially in the form of Exhibit C hereto, along with a schedule in a form reasonably satisfactory to Administrative and Collateral Agent of the calculations used in determining, as of the end of such month (or quarter)month, whether Borrowers were and Guarantors are in compliance with the covenants covenant set forth in Section 9.17 of this Agreement for such month (or quarter); and (ii) within ninety (90) days after the end of each fiscal year, audited consolidated financial statements and unaudited consolidating financial statements of BlueLinx Parent and its Subsidiaries (including in each case balance sheets, statements of income and loss, statements of cash flow flow, and statements of shareholders’ equity), and the accompanying notes thereto, all in reasonable detail, fairly presenting the financial position and the results of the operations of BlueLinx Parent and its Subsidiaries as of the end of and for such fiscal year, together with (A) the unqualified opinion of independent certified public accountantsaccountants with respect to the audited consolidated financial statements, which accountants shall be an independent accounting firm selected by Borrowers and reasonably acceptable to Administrative and Collateral Agent, that such audited consolidated financial statements have been prepared in accordance with GAAP, and present fairly the results of operations and financial condition of BlueLinx Parent and its Subsidiaries as of the end of and for the fiscal year then ended and (B) any management letters that may be issued with regard to the Borrowers or Guarantorsended.
Appears in 1 contract
Samples: Loan and Security Agreement (Perry Ellis International Inc)
Financial Statements and Other Information. (a) Each Borrower and each Guarantor The Loan Parties shall, and or shall cause each of its and their Subsidiaries the appropriate Person to, keep proper books deliver: as soon as available and records in which true and complete entries shall be made of all dealings or transactions of or in relation to the Collateral and the business of each Borrower, each Guarantor and each of their respective Subsidiaries in accordance with GAAP. Borrowers and Guarantors shall promptly furnish to Administrative and Collateral Agent any and all financial or other information as Administrative and Collateral Agent may reasonably request relating to the Collateral and the assets, business and operations of Borrowers and Guarantors, and to notify the auditors and accountants of Borrowers and Guarantors that Administrative and Collateral Agent is authorized to obtain such information directly from them. Without limiting the foregoing, Borrowers shall furnish or cause to be furnished to Administrative and Collateral Agent, the following: (i) event within thirty (30) 120 days after the end of each fiscal month Fiscal Year of Borrower, (i) a copy of the annual audit report and audited financial statements for such Fiscal Year for Borrower and its direct and indirect Subsidiaries, containing a consolidated balance sheet of Borrower and its direct and indirect Subsidiaries, as of the end of such Fiscal Year and the related consolidated statements of income, stockholders’ equity and cash flows (together with all footnotes thereto) of Borrower and its direct and indirect Subsidiaries, for such Fiscal Year, setting forth in each case in comparative form the figures for the previous Fiscal Year, all in reasonable detail and reported on by an independent public accountant acceptable to the Lender (without a “going concern” or like qualification, exception or explanation and without any qualification or exception as to scope of such audit) to the effect that such financial statements present fairly in all material respects the financial condition and the results of operations of Borrower and its direct and indirect Subsidiaries, for such Fiscal Year on a consolidated basis in accordance with GAAP and that the examination by such accountants in connection with such consolidated financial statements has been made in accordance with generally accepted auditing standards and (ii) copies of internally prepared consolidating balance sheet and consolidating statement of income for Borrower and its direct and indirect Subsidiaries as of the end of such Fiscal Year certified by Borrower’s Financial Officer; as soon as available and in any event within forty-five (45) days if such fiscal month end is also a fiscal quarter end), unaudited consolidated financial statements (including in each case balance sheets, statements of income and loss, statements of cash flow, and statements of shareholders’ equity), all in reasonable detail, fairly presenting the financial position and the results of the operations of BlueLinx and its Subsidiaries as of after the end of each Fiscal Quarter, an internally prepared consolidated and through such fiscal month (or quarter), certified to be correct by the chief financial officer consolidating balance sheet of BlueLinx, subject to normal year-end adjustments Borrower and lack of footnotes and, if a Compliance Period is then in effect, accompanied by a compliance certificate substantially in the form of Exhibit C hereto, along with a schedule in form reasonably satisfactory to Administrative its direct and Collateral Agent of the calculations used in determiningindirect Subsidiaries, as of the end of such month Fiscal Quarter and the related unaudited consolidated and consolidating statement of income and unaudited consolidated statement of cash flows of Borrower and its direct and indirect Subsidiaries for the then elapsed portion of such Fiscal Year, setting forth in each case in comparative form the figures (or quarter)as applicable) for the corresponding Fiscal Quarter, whether Borrowers were in compliance the corresponding portion of Borrower’s previous Fiscal Year and Borrower’s budget, certified to Lender by the Financial Officer of Borrower; concurrently with the covenants set forth delivery of the financial statements referred to in Section 9.17 subparagraphs (a) and (b) above, a Compliance Certificate signed by the Financial Officer of this Agreement for such month Borrower and containing a covenant compliance worksheet in form and substance acceptable to Lender; within seven (7) days of filing thereof with the Securities and Exchange Commission, Borrower shall submit to Lender true and complete copies of all reports or quarter)other filings filed with the Securities Exchange Commission; and upon occurrence, prompt written notice of any change (i) in any of the Loan Parties’ organizational name, (ii) within ninety in the jurisdiction of organization or formation of any Loan Party, (90iii) days after in any Loan Party’s identity or form of organization or (iv) in any Loan Party’s Federal Taxpayer Identification Number. The Loan Parties agree not to effect or permit any change referred to in the end of each fiscal yearpreceding sentence unless all filings have been made under the UCC or otherwise that are required in order for the Lender to continue at all times following such change to have a valid, audited consolidated financial statements of BlueLinx legal and its Subsidiaries (including perfected security interest in each case balance sheetsall the Collateral; and promptly following any request therefor by Lender, statements of income and loss, statements of cash flow and statements of shareholders’ equity), and the accompanying notes thereto, all in reasonable detail, fairly presenting the financial position and such other information regarding the results of the operations of BlueLinx and its Subsidiaries as of the end of and for such fiscal yearoperations, together with (A) the unqualified opinion of independent certified public accountants, which accountants shall be an independent accounting firm selected by Borrowers and reasonably acceptable to Administrative and Collateral Agent, that such financial statements have been prepared in accordance with GAAP, and present fairly the results of operations business affairs and financial condition of BlueLinx the Loan Parties and its Subsidiaries their respective direct or indirect Subsidiaries, as of the end of and for the fiscal year then ended and (B) any management letters that Lender may be issued with regard to the Borrowers or Guarantorsreasonably request.
Appears in 1 contract
Financial Statements and Other Information. (a) Each Borrower and each Guarantor shall, and shall cause each of its and their Subsidiaries to, keep proper books and records in which true and complete entries shall be made of all dealings or transactions of or in relation to the Collateral and the business of each Borrower, each Guarantor Borrower and each of their respective its Subsidiaries (if any) in accordance with GAAP. Borrowers GAAP and Guarantors shall promptly furnish to Administrative and Collateral Agent any and all financial or other information as Administrative and Collateral Agent may reasonably request relating to the Collateral and the assets, business and operations of Borrowers and Guarantors, and to notify the auditors and accountants of Borrowers and Guarantors that Administrative and Collateral Agent is authorized to obtain such information directly from them. Without limiting the foregoing, Borrowers Borrower shall furnish or cause to be furnished to Administrative and Collateral Agent, the followingLender: (i) within thirty (30) days after the end of each fiscal month (or within forty-five (45) days if such fiscal month end is also a fiscal quarter end)month, monthly unaudited consolidated financial statements (including in each case balance sheets, statements of income and loss, statements of cash flow, and statements of shareholders’ equity), all in reasonable detail, fairly presenting the financial position and the results of the operations of BlueLinx and its Subsidiaries as of the end of and through such fiscal month (or quarter), certified to be correct by the chief financial officer of BlueLinx, subject to normal year-end adjustments and lack of footnotes and, if a Compliance Period is then in effect, accompanied by a compliance certificate substantially in the form of Exhibit C hereto, along with a schedule in form reasonably satisfactory to Administrative and Collateral Agent of the calculations used in determining, as of the end of such month (or quarter), whether Borrowers were in compliance with the covenants set forth in Section 9.17 of this Agreement for such month (or quarter); and (ii) within ninety (90) days after the end of each fiscal year, audited consolidated financial statements of BlueLinx and its Subsidiaries (including in each case balance sheets, statements of income and loss, statements of cash flow and statements of shareholders’ ' equity), and the accompanying notes thereto, all in reasonable detail, fairly presenting the financial position and the results of the operations of BlueLinx Borrower and its Subsidiaries as of the end of and through such fiscal month; (ii) within one hundred and twenty (120) days after the end of each fiscal year, audited consolidated financial statements of Borrower and its Subsidiaries (including in each case balance sheets, statements of income and loss, statements of changes in financial position and statements of shareholders' equity), and the accompanying notes thereto, including any consolidating worksheets prepared on a quarterly basis in connection therewith, all in reasonable detail, fairly presenting the financial position and the results of the operations of Borrower and its Subsidiaries as of the end of and for such fiscal year, together with (A) the unqualified opinion of independent certified public chartered accountants, which accountants shall be an independent accounting firm selected by Borrowers Borrower and reasonably acceptable to Administrative and Collateral AgentLender, that such financial statements have been prepared in accordance with GAAP, and present fairly the results of operations and financial condition of BlueLinx Borrower and its Subsidiaries as of the end of and for the fiscal year then ended ended; (iii) by January 15 of each year, projections for such fiscal year; and (Biv) any management letters as Lender may from time to time reasonably request, and provided that may be issued with regard to Borrower prepares such information in the Borrowers or Guarantorsordinary course of business, budgets, forecasts, business plans, cash flows and other information respecting the Collateral and the business of Borrower.
Appears in 1 contract
Samples: Loan Agreement (Imax Corp)
Financial Statements and Other Information. (a) Each Borrower and each Guarantor shall, and shall cause each of its and their Subsidiaries to, keep proper books and records in which true and complete entries shall be made of all dealings or transactions of or in relation to the Collateral and the business of each BorrowerBorrower and its subsidiaries (if any), each Guarantor which shall be reconciled and each of their respective Subsidiaries in accordance with GAAP. Borrowers and Guarantors shall promptly furnish to Administrative and Collateral Agent any and all financial or other information as Administrative and Collateral Agent may reasonably request relating conformed to the Collateral requirements of GAAP no less frequently than quarterly and the assets, business and operations of Borrowers and Guarantors, and to notify the auditors and accountants of Borrowers and Guarantors that Administrative and Collateral Agent is authorized to obtain such information directly from them. Without limiting the foregoing, Borrowers Borrower shall furnish or cause to be furnished to Administrative and Collateral Agent, the followingLender: (i) within thirty forty (3040) days after the end of each fiscal month month, other than the end of the third, sixth, ninth and twelfth fiscal months, in each fiscal year, and within ninety (or within forty-five (4590) days if such after the end of the twelfth fiscal month end is also a in each fiscal quarter end)year, monthly unaudited consolidated financial statements of US Borrower and its subsidiaries, if any, (including including, in each case case, balance sheets, statements of income and loss, statements of cash flow, sheets and statements of shareholders’ equityoperations), all in reasonable detail, fairly presenting the financial position and the results of the operations of BlueLinx Borrower and its Subsidiaries subsidiaries as of the end of and through such fiscal month month, (or ii) within forty-five (45) days after the end of each fiscal quarter, unaudited consolidated financial statements of US Borrower and its subsidiaries (including, in each case, balance sheets and statements of operations), certified to be correct by fairly presenting the chief financial officer results of BlueLinx, subject to normal year-end adjustments operations of Borrower and lack of footnotes and, if a Compliance Period is then in effect, accompanied by a compliance certificate substantially in the form of Exhibit C hereto, along with a schedule in form reasonably satisfactory to Administrative and Collateral Agent of the calculations used in determining, its subsidiaries as of the end of and through such month (or fiscal quarter), whether Borrowers were in compliance with the covenants set forth in Section 9.17 of this Agreement for such month (or quarter); and (iiiii) within ninety (90) days after the end of each fiscal year, audited consolidated financial statements of BlueLinx US Borrower and its Subsidiaries subsidiaries (including in each case balance sheets, statements of income and lossoperations, statements of cash flow changes in financial position and statements of shareholders’ ' equity), and the accompanying notes thereto, all in reasonable detail, fairly presenting the financial position and the results of the operations of BlueLinx US Borrower and its Subsidiaries subsidiaries as of the end of and for such fiscal year, together with (A) the unqualified opinion of independent certified public chartered accountants, which accountants shall be an independent accounting firm of nationally recognized standing selected by Borrowers and reasonably acceptable to Administrative and Collateral AgentUS Borrower, that such financial statements have been prepared in accordance conformity with GAAP, and present fairly fairly, in all material respects, the results of operations and financial condition of BlueLinx US Borrower and its Subsidiaries subsidiaries as of the end of and for the fiscal year then ended ended. 41 (b) Borrower shall promptly notify Lender in writing of the details of (i) any loss, damage, investigation, action, suit, proceeding or claim relating to the Collateral or any other property which is security for the Obligations involving an amount in excess of the Canadian Dollar Equivalent of US$37,500 or which has resulted in, or could reasonably be expected to result in, any Material Adverse Effect and (Bii) the occurrence of any management letters that may be issued Event of Default or event which, with regard to the Borrowers passage of time or Guarantorsgiving of notice or both, would constitute an Event of Default.
Appears in 1 contract
Financial Statements and Other Information. (a) Each Borrower and each Guarantor shall, and shall cause each of its and their Subsidiaries any Subsidiary to, keep proper books and records in which true and complete entries shall be made of all dealings or transactions of or in relation to the Collateral and the business of each such Borrower, each Guarantor and each of their respective its Subsidiaries in accordance with GAAP. Borrowers and Guarantors shall promptly furnish to Administrative Agent and Collateral Agent any Lenders all such financial and all financial or other information as Administrative and Collateral Agent may shall reasonably request relating to the Collateral and the assets, business and operations of Borrowers and Guarantors, . Borrowers and to Guarantors shall notify the auditors and accountants of Borrowers and Guarantors that Administrative and Collateral Agent is authorized to obtain such information directly from themsuch auditors and accountants; provided that, so long as no Default or Event of Default shall exist or have occurred and be continuing, Agent shall not exercise its right under this Section 9.6 to contact the accountants and auditors directly to obtain information from them not relating to the Collateral without the prior approval of Administrative Borrower, which approval shall not be unreasonably withheld, conditioned or delayed. Without limiting the foregoing, Borrowers and Guarantors shall furnish or cause to be furnished to Administrative and Collateral Agent, the following: (i) within thirty (30) days after the end of each fiscal month (or within except that, in the case of any fiscal month that is the last month of a fiscal quarter, forty-five (45) days if after the end of such fiscal month end is also a fiscal quarter endmonth), (A) monthly unaudited consolidated financial statements of Parent and its Subsidiaries (including in each case balance sheets, statements of income and loss and statements of cash flow), and unaudited consolidating income statements of Parent and its Subsidiaries, all in reasonable detail, fairly presenting the financial position and the results of the operations of Parent and its Subsidiaries as of the end of and through such fiscal month, certified as being fairly stated in all material respects by the chief financial officer, controller or treasurer of Parent, subject to normal year-end adjustments and no footnotes and accompanied by a compliance certificate substantially in the form of Exhibit D hereto, along with a schedule in a form reasonably satisfactory to Agent of the calculations used in determining, as of the end of such month, whether Borrowers and Guarantors are in compliance with the covenant set forth in Section 9.17 of this Agreement for such month and (B) inventory reports by location and category (and including inventory in transit reports to the extent that such Inventory is Eligible Inventory or Inventory purchased with Letter of Credit Accommodations), in form and substance reasonably satisfactory to Agent (and including in such reports a rollforward from the prior month indicating the additions to, and withdrawals from, the Inventory) and (ii) within ninety (90) days after the end of each fiscal year, audited consolidated financial statements of Parent and its Subsidiaries (including in each case balance sheets, statements of income and loss, statements of cash flow, and statements of shareholders’ equity), all in reasonable detail, fairly presenting the financial position and the results of the operations of BlueLinx and its Subsidiaries as of the end of and through such fiscal month (or quarter), certified to be correct by the chief financial officer of BlueLinx, subject to normal year-end adjustments and lack of footnotes and, if a Compliance Period is then in effect, accompanied by a compliance certificate substantially in the form of Exhibit C hereto, along with a schedule in form reasonably satisfactory to Administrative and Collateral Agent of the calculations used in determining, as of the end of such month (or quarter), whether Borrowers were in compliance with the covenants set forth in Section 9.17 of this Agreement for such month (or quarter); and (ii) within ninety (90) days after the end of each fiscal year, audited consolidated financial statements of BlueLinx and its Subsidiaries (including in each case balance sheets, statements of income and loss, statements of cash flow and statements of shareholders’ ' equity), and the accompanying notes thereto, all in reasonable detail, fairly presenting the financial position and the results of the operations of BlueLinx Parent and its Subsidiaries as of the end of and for such fiscal year, together with (A) the unqualified opinion of independent certified public accountantsaccountants with respect to the audited consolidated financial statements, which accountants shall be an either KPMG LLP or another independent accounting firm selected by Borrowers and reasonably acceptable to Administrative and Collateral Agent, that such audited consolidated financial statements have been prepared in accordance with GAAP, and present fairly the results of operations and financial condition of BlueLinx Parent and its Subsidiaries as of the end of and for the fiscal year then ended and (B) any management letters that may be issued with regard to the Borrowers or Guarantorsended.
Appears in 1 contract
Financial Statements and Other Information. (a) Each Borrower and each Guarantor shall, and shall cause each of its and their Subsidiaries to, keep proper books and records in which true and complete entries shall be made of all dealings or transactions of or in relation Promptly deliver to the Collateral and the business of each Borrower, each Guarantor and each of their respective Subsidiaries in accordance with GAAP. Borrowers and Guarantors shall promptly furnish to Administrative and Collateral Agent any and all financial or other information as Administrative and Collateral Agent may reasonably request relating to the Collateral and the assets, business and operations of Borrowers and Guarantors, and to notify the auditors and accountants of Borrowers and Guarantors that Administrative and Collateral Agent is authorized to obtain such information directly from them. Without limiting the foregoing, Borrowers shall furnish or cause to be furnished to Administrative and Collateral Agent, the following: Bank (i) within thirty sixty (3060) days after the end of each of its first three fiscal month (or within forty-five (45) days if such fiscal month end is also a fiscal quarter end)quarters, an unaudited consolidated financial statements (including in each case balance sheets, statements of income and loss, statements of cash flow, and statements of shareholders’ equity), all in reasonable detail, fairly presenting the financial position and the results statement of the operations of BlueLinx Borrower and its Subsidiaries as of the end of and through such fiscal month (or quarter), certified to be correct by the chief financial officer of BlueLinx, subject to normal year-end adjustments and lack of footnotes and, if a Compliance Period is then in effect, accompanied by a compliance certificate substantially in the form of Exhibit C hereto, along with a schedule in form reasonably satisfactory to Administrative and Collateral Agent of the calculations used in determining, each Subsidiary as of the end of such month quarter, which financial statement shall consist of income and cash flows for the quarter, for the corresponding quarter in the previous fiscal year and for the period from the end of the previous fiscal year, with a consolidated balance sheet as of the quarter end all in such detail as the Bank may request (or quarter), whether Borrowers were which delivery requirement shall be satisfied in compliance full by the Borrower’s filing of its quarterly financial statements as part of its Quarterly Report on Form 10-Q with the covenants set forth in Section 9.17 of this Agreement for such month (or quarterSecurities and Exchange Commission on the EXXXX filing system); and (ii) within ninety (90) days after the end of each fiscal year, audited consolidated financial statements of BlueLinx the Borrower’s and each Subsidiary’s income and cash flows and its Subsidiaries (including in each case consolidated balance sheets, statements of income and loss, statements of cash flow and statements of shareholders’ equity), and the accompanying notes thereto, all in reasonable detail, fairly presenting the financial position and the results of the operations of BlueLinx and its Subsidiaries sheet as of the end of and for such fiscal year, together setting forth comparative figures for the preceding fiscal year and to be (check applicable box, if no box is checked the financial statements shall be audited): ☒ audited ☐ reviewed ☐ compiled by an independent certified public accountant acceptable to the Bank (for the avoidance of doubt, the Bank acknowledges and agrees that Freed Mxxxxx CPAs, P.C. shall be an acceptable independent certified public accountant) (which delivery requirement shall be satisfied in full by the Borrower’s filing of its annual audited financial statements as part of its Annual Report on Form 10-K with the Securities and Exchange Commission on the EXXXX filing system); and (iii) within sixty (60) days after the end of each of its first three fiscal quarters and within ninety (90) days after the end of each fiscal year, (A) a certificate executed by the unqualified opinion Borrower’s chief executive and chief financial officers or other such person responsible for the financial management of independent certified public accountantsthe Borrower in the form attached hereto as Exhibit A (a) setting forth the computations required to establish the Borrower’s compliance with each financial covenant, which accountants shall be an independent accounting firm selected by Borrowers if any, during the statement period, (b) stating that the signers of the certificate have reviewed this Agreement and reasonably acceptable to Administrative and Collateral Agent, that such financial statements have been prepared in accordance with GAAP, and present fairly the results of operations and condition (financial condition or other) of BlueLinx the Borrower and each of its Subsidiaries as during the relevant period and (c) stating that no Event of Default occurred during the end period, or if an Event of Default did occur, describing its nature, the date(s) of its occurrence or period of existence and for what action the fiscal year then ended Borrower has taken with respect thereto; and (B) any a completed Borrowing Base Certificate in the form attached hereto as Exhibit B executed by the Borrower’s chief executive and chief financial officers or other such person responsible for the financial management letters that may be issued with regard of the Borrower. The Borrower shall provide, in form satisfactory to the Borrowers Bank, such additional information, reports or Guarantorsother information as the Bank may from time to time reasonably request regarding the financial and business affairs of the Borrower or any Subsidiary.
Appears in 1 contract
Samples: Credit Agreement (Rand Capital Corp)
Financial Statements and Other Information. (a) Each Borrower and each Guarantor shall, and shall cause each of its and their Subsidiaries any Subsidiary to, keep proper books and records in which true and complete entries shall be made of all dealings or transactions of or in relation to the Collateral and the business of each Borrower, each Guarantor such Borrower and each of their respective its Subsidiaries in accordance with GAAP. Borrowers and Guarantors shall promptly furnish to Administrative Agent and Collateral Agent any Lenders all such financial and all financial or other information as Administrative and Collateral Agent may shall reasonably request relating to the Collateral and the assets, business and operations of Borrowers and GuarantorsBorrowers, and to Borrower shall notify the auditors and accountants of Borrowers and Guarantors that Administrative and Collateral Agent is authorized to obtain such information directly from them, provided, that, Agent shall give Borrowers notice concurrently with Agent's request for any such information. Without limiting the foregoing, Borrowers shall furnish or cause to be furnished to Administrative and Collateral Agent, the following: (i) within thirty (30) days after the end of each fiscal month (or within forty-five (45) days if such after the end of a fiscal month end that is also the end of a fiscal quarter endquarter, as applicable), monthly unaudited consolidated financial statements, and unaudited consolidating financial statements (including in each case balance sheets, statements of income and loss, statements of cash flow, and statements of shareholders’ ' equity), all in reasonable detail, fairly presenting the financial position and the results of the operations of BlueLinx Borrowers and its their Subsidiaries as of the end of and through such fiscal month (or quarter)month, certified to be correct by the chief financial officer of BlueLinxeach Borrower, subject to normal year-end adjustments and lack of no footnotes and, if a Compliance Period is then in effect, and accompanied by a compliance certificate substantially in the form of Exhibit C hereto, along with a schedule in a form reasonably satisfactory to Administrative and Collateral Agent of the calculations used in determining, as of the end of such month (or quarter)month, whether Borrowers were are in compliance with the covenants set forth in Section 9.17 Sections 9.17, 9.18, 9.19 and 9.20 of this Agreement for such month (or quarter); and (ii) within ninety one hundred twenty (90120) days after the end of each fiscal year, audited consolidated financial statements and unaudited consolidating financial statements of BlueLinx Borrowers and its their Subsidiaries (including in each case balance sheets, statements of income and loss, statements of cash flow flow, and statements of shareholders’ ' equity), and the accompanying notes thereto, all in reasonable detail, fairly presenting in all material respects the financial position and the results of the operations of BlueLinx Borrowers and its their Subsidiaries as of the end of and for such fiscal year, together with (A) the unqualified opinion of independent certified public accountantsaccountants with respect to the audited consolidated financial statements, which accountants shall be an independent accounting firm selected by Borrowers and reasonably acceptable to Administrative and Collateral Agent, that such audited consolidated financial statements have been prepared in accordance with GAAP, and present fairly the results of operations and financial condition of BlueLinx Borrowers and its their respective Subsidiaries as of the end of and for the fiscal year then ended and (B) any management letters that may be issued with regard to the Borrowers or Guarantorsended.
Appears in 1 contract
Samples: Loan and Security Agreement (Lexington Precision Corp)
Financial Statements and Other Information. (a) Each Borrower and each Guarantor shall, shall and shall cause each of its and their Subsidiaries to, to keep proper books and records in which true and complete entries shall be made of all dealings or transactions of or in relation to the Collateral and the business of each Borrower, each Guarantor Borrower and each of their respective its Subsidiaries (if any) in accordance with GAAP. Borrowers GAAP and Guarantors shall promptly furnish to Administrative and Collateral Agent any and all financial or other information as Administrative and Collateral Agent may reasonably request relating to the Collateral and the assets, business and operations of Borrowers and Guarantors, and to notify the auditors and accountants of Borrowers and Guarantors that Administrative and Collateral Agent is authorized to obtain such information directly from them. Without limiting the foregoing, Borrowers Borrower shall furnish or cause to be furnished to Administrative and Collateral Agent, the followingLender: (i) within (A) forty-five (45) days after the end of each fiscal month that is also the end of a fiscal quarter and (B) thirty (30) days after the end of each other fiscal month (or within forty-five (45) days month, monthly unaudited consolidated financial statements, and, if such fiscal month end is also a fiscal quarter end)Borrower has any subsidiaries, unaudited consolidated consolidating financial statements (including in each case balance sheets, statements of income and loss, statements of cash flow, flow and statements of shareholders’ ' equity), all in reasonable detail, fairly presenting the financial position and the results of the operations of BlueLinx Borrower and its Subsidiaries as of the end of and through such fiscal month (or quarter)month, certified to be correct by the chief financial officer of BlueLinx, subject to normal year-end adjustments and lack of footnotes and, if a Compliance Period is then in effect, accompanied by a compliance certificate substantially in the form of Exhibit C hereto, along with a schedule in form reasonably satisfactory to Administrative and Collateral Agent of the calculations used in determining, as of the end of such month (or quarter), whether Borrowers were in compliance with the covenants set forth in Section 9.17 of this Agreement for such month (or quarter); and (ii) within ninety (90) days after the end of each fiscal year, audited consolidated financial statements and, if Borrower has any subsidiaries, audited consolidating financial statements of BlueLinx Borrower and its Subsidiaries (including in each case balance sheets, statements of income and loss, statements of cash flow and statements of shareholders’ ' equity), and the accompanying notes thereto, all in reasonable detail, fairly presenting the financial position and the results of the operations of BlueLinx Borrower and its Subsidiaries as of the end of and for such fiscal year, together with (A) the unqualified opinion of independent certified public accountants, which accountants shall be an independent accounting firm selected by Borrowers Borrower and reasonably acceptable to Administrative and Collateral AgentLender, that such financial statements have been prepared in accordance with GAAP, and present fairly the results of operations and financial condition of BlueLinx Borrower and its Subsidiaries as of the end of and for the fiscal year then ended and (B) any management letters that may be issued with regard to the Borrowers or Guarantorsended.
Appears in 1 contract
Financial Statements and Other Information. (a) Each Borrower and each Guarantor shall, and shall cause each of its and their Subsidiaries to, keep proper books and records in which true and complete entries shall be made of all dealings or transactions of or in relation to the Collateral and the business of each Borrower, each Guarantor such Borrower and each of their respective Subsidiaries its subsidiaries (if any) in accordance with GAAP. Borrowers GAAP and Guarantors shall promptly furnish to Administrative and Collateral Agent any and all financial or other information as Administrative and Collateral Agent may reasonably request relating to the Collateral and the assets, business and operations of Borrowers and Guarantors, and to notify the auditors and accountants of Borrowers and Guarantors that Administrative and Collateral Agent is authorized to obtain such information directly from them. Without limiting the foregoing, Borrowers each Borrower shall furnish or cause to be furnished to Administrative and Collateral Agent, the followingLender: (i) within thirty (30) days after the end of each fiscal month month, (or within forty-five (45A) days if such fiscal month end is also a fiscal quarter end), monthly unaudited consolidated financial statements of such Borrower, and, if such Borrower has any subsidiaries, unaudited consolidating financial statements of such Borrower and its subsidiaries (including in each case balance sheets, sheets and statements of income and loss, statements of cash flow, and statements of shareholders’ equity), all in reasonable detaildetail satisfactory to Lender, fairly presenting the financial position and the results of the operations of BlueLinx such Borrower and its Subsidiaries subsidiaries as of the end of and through such fiscal month and (B) a monthly report setting forth the amount of any transfer of money or property to another Borrower during the preceding fiscal month; (ii) within thirty (30) days after the end of each fiscal quarter), certified a consolidated balance sheet of such Borrower, which shall reflect in each case, without limitation, any outstanding indebtedness owed to be correct or owing by another Borrower, all in detail satisfactory of Lender, fairly presenting the chief financial officer of BlueLinx, subject to normal year-end adjustments position and lack of footnotes and, if a Compliance Period is then in effect, accompanied by a compliance certificate substantially in the form of Exhibit C hereto, along with a schedule in form reasonably satisfactory to Administrative and Collateral Agent results of the calculations used in determining, operations of such Borrower as of the end of such month (or quarter), whether Borrowers were in compliance with the covenants set forth in Section 9.17 of this Agreement and for such month (or fiscal quarter); and (iiiii) within ninety (90) days after the end of each fiscal year, (A) audited consolidated financial statements of BlueLinx and its Subsidiaries such Borrower (including in each case balance sheets, sheets and statements of income and loss, statements of cash flow and statements of shareholders’ equity), and the accompanying notes thereto, all in reasonable detaildetail satisfactory to Lender, fairly presenting the financial position and the results of the operations of BlueLinx and its Subsidiaries such Borrower as of the end of and for such fiscal year, together with (A) the unqualified opinion of independent certified public accountants, which accountants shall be an independent accounting firm selected by Borrowers and reasonably acceptable to Administrative and Collateral AgentLender, that such financial statements have been prepared in accordance with GAAP, and present fairly the results of operations and financial condition of BlueLinx such Borrower and its Subsidiaries subsidiaries as of the end of and for the fiscal year then ended and (B) if such Borrower has any management letters that may be issued with regard subsidiaries, unaudited consolidating financial statements of such Borrower and its subsidiaries (including in each case balance sheets and statements of income and loss), all in detail satisfactory to Lender, fairly presenting the Borrowers or Guarantors.financial position and the
Appears in 1 contract
Financial Statements and Other Information. The Borrower will furnish to the Administrative Agent for distribution to each Lender (provided that, the Administrative Agent shall not be required to distribute any document or report to any Lender to the extent such distribution would cause the Administrative Agent to breach or violate any agreement that it has with (92) another Person (including any non-reliance or non-disclosure letter with any Approved Third-Party Appraiser)): (a) Each within 90 days after the end of each fiscal year of the Borrower (commencing with the fiscal year ending September 30, 2017), the audited consolidated statements of assets and liabilities and the related audited consolidated statements of operations, audited consolidated statements of changes in net assets, audited consolidated statements of cash flows and related audited consolidated schedule of investments of the Borrower and its Subsidiaries on a consolidated basis as of the end of and for such year, setting forth in each Guarantor shall, and shall cause each of its and their Subsidiaries to, keep proper books and records case in which true and complete entries shall be made of all dealings or transactions of or in relation comparative form the figures for the previous fiscal year (to the Collateral extent full fiscal year information is available), all reported on by PricewaterhouseCoopers or other independent public accountants of recognized national standing to the effect that such consolidated financial statements present fairly in all material respects the financial condition and results of operations of the business of each Borrower, each Guarantor Borrower and each of their respective its Subsidiaries on a consolidated basis in accordance with GAAPGAAP consistently applied (which report shall be unqualified as to going concern and scope of audit and shall not contain any explanatory paragraph or paragraph of emphasis with respect to going concern); provided that the requirements set forth in this clause (a) may be fulfilled by providing to the Administrative Agent for distribution to each Lender the report filed by the Borrower with the SEC on Form 10-K for the applicable fiscal year; (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 ending December 31, 2017), the consolidated statements of assets and liabilities and the related consolidated statements of operations, consolidated statements of changes in net assets, consolidated statements of cash flows and related consolidated schedule of investments of the Borrower and its Subsidiaries on a consolidated basis as of the end of and for such fiscal quarter and the then elapsed portion of the fiscal year, setting forth in each case in comparative form the figures for (or, in the case of the statement of assets and liabilities, as of the end of) the corresponding period or periods of the previous fiscal year (to the extent such information is available for the previous fiscal year), all certified by a Financial Officer of the Borrower as presenting fairly in all material respects the financial condition and results of operations of the Borrower and its Subsidiaries on a consolidated basis in accordance with GAAP consistently applied, subject to normal year-end audit adjustments and the absence of footnotes; provided that the requirements set forth in this clause (b) may be fulfilled by providing to the Administrative Agent for distribution to each Lender the report filed by the Borrower with the SEC on Form 10-Q for the applicable quarterly period; (c) concurrently with any delivery of financial statements under clause (a) or (b) of this Section, a certificate of a Financial Officer of the Borrower (i) to the extent the requirements in clauses (a) and (b) of this Section are not fulfilled by the Borrower delivering the applicable report delivered to (or filed with) the SEC, certifying that such statements are consistent with the financial statements filed by the Borrower with the SEC, (ii) certifying as to whether the Borrower has knowledge that a Default or Event of Default has occurred and, if a Default or Event of Default has occurred, specifying the details thereof and any action taken or proposed to be taken with respect thereto, (iii) setting forth reasonably detailed calculations (which reconcile to the financial statements) demonstrating compliance with Sections 6.01(h) and (k), 6.03(e) and (i), 6.04(k), 6.05(b), 6.07 and 6.13, (iv) stating whether any change in GAAP as applied by (or in the application of GAAP by) the (93) Borrower has occurred since the Original Effective Date (but only if the Borrower has not previously reported such change to the Administrative Agent) and, if any such change has occurred (and has not been previously reported to the Administrative Agent), specifying the effect of such change on the financial statements accompanying such certificate and (v) attaching a list of Subsidiaries and Immaterial Subsidiaries as of the date of delivery of such certificate or a confirmation that there is no change in such information since the date of the last such list; (d) as soon as available and in any event not later than the last Business Day of the next succeeding month after the end of each monthly accounting period (ending on the last day of each calendar month) of the Borrower and its Subsidiaries, commencing with the monthly accounting period ending November 30, 2017, a Borrowing Base Certificate as of the last day of such accounting period (which Borrowing Base Certificate shall include: an Excel schedule containing information substantially similar to the information included on the Excel schedule included in the Borrowing Base Certificate delivered to the Administrative Agent on the RestatementAmendment No. Borrowers 4 Effective Date, a reasonably detailed calculation of the Senior Coverage Ratio as of such date and Guarantors the Applicable Margin as of such date); (e) promptly but no later than two Business Days after any Financial Officer of the Borrower shall at any time have knowledge (based upon facts and circumstances known to him) that there is a Borrowing Base Deficiency, a Borrowing Base Certificate as at the date such Financial Officer has knowledge of such Borrowing Base Deficiency indicating the amount of the Borrowing Base Deficiency as at the date such Financial Officer obtained knowledge of such deficiency and the amount of the Borrowing Base Deficiency as of the date not earlier than two Business Days prior to the date the Borrowing Base Certificate is delivered pursuant to this paragraph; (f) promptly furnish upon receipt thereof copies of all significant and non-routine written reports submitted to Administrative the management or Board of Directors of the Borrower by the Borrower’s independent public accountants in connection with each annual, interim or special audit or review of any type of the financial statements or related internal control systems of the Borrower or any of its Subsidiaries delivered by such accountants to the management or board of directorsBoard of Directors of the Borrower (other than the periodic reports that the Borrower’s independent auditors provide, in the ordinary course, to the audit committee of the Borrower’s Board of Directors); (g) to the extent not previously delivered, within 45 days after the end of each fiscal quarter of the Borrower, all final internal and Collateral Agent any and all financial or other information as Administrative and Collateral Agent may reasonably request external valuation reports relating to the Collateral Eligible Portfolio Investments (including all valuation reports delivered by an Approved Third-Party Appraiser in connection with the quarterly appraisals of Unquoted Investments in accordance with Section 5.12(b)(ii)(B)) and the assets, business and operations a summary of Borrowers and Guarantorsany applicable internal underwriting memoranda for all Eligible Portfolio Investments included in such valuation reports, and any other information relating to notify the auditors and accountants of Borrowers and Guarantors that Eligible Portfolio Investments as reasonably requested by the Administrative and Collateral Agent is authorized or any Lender; (h) to obtain such information directly from them. Without limiting the foregoingextent not otherwise provided by each Custodian, Borrowers shall furnish or cause to be furnished to Administrative and Collateral Agent, the following: (i) within thirty (30) days after the end of each fiscal month month, full, correct and complete updated copies of custody reports (or within forty-five including, to the extent available, (45i) days if such fiscal month end is also a fiscal quarter end), unaudited consolidated financial statements (including activity reports with respect to Cash and Cash Equivalents included in each case balance sheets, statements of income and loss, statements of cash flow, and statements of shareholders’ equity), all in reasonable detail, fairly presenting the financial position and the results calculation of the operations of BlueLinx and its Subsidiaries as of the end of and through such fiscal month (or quarter)Borrowing Base, certified to be correct by the chief financial officer of BlueLinx, subject to normal year-end adjustments and lack of footnotes and, if a Compliance Period is then in effect, accompanied by a compliance certificate substantially in the form of Exhibit C hereto, along with a schedule in form reasonably satisfactory to Administrative and Collateral Agent of the calculations used in determining, as of the end of such month (or quarter), whether Borrowers were in compliance with the covenants set forth in Section 9.17 of this Agreement for such month (or quarter); and (ii) within ninety (90) days after the end an itemized list of each fiscal year, audited consolidated financial statements of BlueLinx and its Subsidiaries (including in each case balance sheets, statements of income and loss, statements of cash flow and statements of shareholders’ equity), account and the accompanying notes thereto, all amounts therein with respect to Cash and Cash Equivalents included in reasonable detail, fairly presenting the financial position and the results calculation of the operations of BlueLinx and its Subsidiaries as of the end of and for such fiscal year, together with (A) the unqualified opinion of independent certified public accountants, which accountants shall be an independent accounting firm selected by Borrowers and reasonably acceptable to Administrative and Collateral Agent, that such financial statements have been prepared in accordance with GAAP, and present fairly the results of operations and financial condition of BlueLinx and its Subsidiaries as of the end of and for the fiscal year then ended Borrowing Base and (Biii) any management letters that may be issued with regard to the Borrowers or Guarantors.an (94)
Appears in 1 contract
Financial Statements and Other Information. (a) Each Borrower and each Guarantor shall, and shall cause each of its and their Subsidiaries to, keep proper books and records in which true and complete entries shall be made of all dealings or transactions of or in relation to the Collateral and the business of each Borrower, each Guarantor and each of their respective Subsidiaries in accordance with GAAP. Borrowers and Guarantors shall promptly furnish to Administrative and Collateral Agent any and all financial or other information as Administrative and Collateral Agent may reasonably request relating to the Collateral and the assets, business and operations of Borrowers and Guarantors, and to notify the auditors and accountants of Borrowers and Guarantors that Administrative and Collateral Agent is authorized to obtain such information directly from them. Without limiting the foregoing, Borrowers shall furnish or cause to be furnished to Administrative and Collateral Agent, the followingLender: (i1) within thirty (30) Not later than 120 days after the end of each subsequent fiscal month (or within forty-five (45) days if such fiscal month end is also a fiscal quarter end)year, unaudited consolidated and consolidating financial statements (including in each case of the Borrower, to include balance sheets, sheets and statements of income and loss, statements of cash flow, and statements of shareholders’ stockholders' equity), all in reasonable detail, fairly presenting prepared in accordance with generally accepted accounting principles and certified by an independent accounting firm acceptable to Lender and accompanied by a duly completed Compliance Certificate in the form of Exhibit J attached hereto executed on behalf of Borrower by its chief financial position officer; (2) Not later than 30 days after and the results of the operations of BlueLinx and its Subsidiaries as of the end of and through such fiscal each month (or quarterother than the final month of each fiscal year), consolidated financial statements of Borrower, to include balance sheets and statements of income and stockholders' equity, all in reasonable detail, prepared in accordance with generally accepted accounting principles (subject to changes resulting from year-end adjustments), and certified to be correct by the chief financial officer of BlueLinx, subject to normal year-end adjustments Borrower and lack of footnotes and, if a Compliance Period is then in effect, accompanied by a compliance certificate substantially duly completed Compliance Certificate in the form of Exhibit C hereto, along with a schedule in form reasonably satisfactory to Administrative and Collateral Agent J attached hereto executed on behalf of Borrower by its chief financial officer; (3) Promptly upon becoming aware of the calculations used in determiningexistence of any Default or Event of Default, as a written notice specifying the nature and period of existence thereof and what action Borrower is taking or proposes to take with respect thereto; (4)Promptly upon becoming aware that the holder of any other evidence of indebtedness or security of any Credit Party has given notice or taken any other action with respect to a claimed default or event of default or event which, with the giving of notice or passage of time, or both, would constitute a default, a written notice specifying the notice given or action taken by such holder and the nature of the end claimed default or event and what action Borrower is taking or proposes to take with respect thereto; (5) Promptly upon transmission thereof, copies of such month (or quarter)all financial statements, whether Borrowers were in compliance proxy statements, notices and reports as Borrower shall send to its public shareholders, if any, and copies of all registration statements and all other reports which Borrower may file from time to time with the covenants set forth in Section 9.17 of this Agreement for such month (Securities and Exchange Commission or quarter)any comparable state securities regulatory agency; and (ii6) within ninety (90) days after From time to time upon request of Lender, such other information relating to the end of each fiscal yearoperations, audited consolidated financial statements of BlueLinx and its Subsidiaries (including in each case balance sheetsbusiness, statements of income and loss, statements of cash flow and statements of shareholders’ equity), and the accompanying notes thereto, all in reasonable detail, fairly presenting the financial position and the results of the operations of BlueLinx and its Subsidiaries as of the end of and for such fiscal year, together with (A) the unqualified opinion of independent certified public accountants, which accountants shall be an independent accounting firm selected by Borrowers and reasonably acceptable to Administrative and Collateral Agent, that such financial statements have been prepared in accordance with GAAP, and present fairly the results of operations and financial condition of BlueLinx and its Subsidiaries any Credit Party as of the end of and for the fiscal year then ended and (B) any management letters that Lender may be issued with regard to the Borrowers or Guarantorsreasonably request.
Appears in 1 contract
Samples: Loan Agreement (Cryolife Inc)
Financial Statements and Other Information. (a) Each Borrower and each Guarantor Loan Party shall, and shall cause each of its and their Subsidiaries to, keep proper books and records in which true and complete entries required by GAAP (where applicable) shall be made of all dealings or business transactions of or in relation to the Collateral Collateral, and the business of each Borrower, each Guarantor and each of their respective Subsidiaries such Person in accordance with GAAPGAAP or its foreign equivalent, as applicable. Borrowers Each Loan Party shall, and Guarantors shall cause each of its Subsidiaries to, promptly furnish to Administrative Agent and Collateral Term Loan Agent any all such financial and all financial or other information as Administrative and Collateral Agent may shall reasonably request relating to the Collateral and the assets, business and operations of Borrowers each Loan Parties and Guarantorstheir Subsidiaries, and to notify the auditors and accountants of Borrowers and Guarantors each such Person that Administrative and Collateral Agent is authorized to obtain such information directly from them. Without limiting the foregoing, Borrowers Loan Parties shall furnish or cause to be furnished to Administrative Agent and Collateral Term Loan Agent, the following: (i) within thirty (30) days after the end of each fiscal month month, (or within forty-five (45A) days if such fiscal month end is also a fiscal quarter end), monthly unaudited consolidated financial statements, and unaudited consolidating financial statements (including in each case balance sheets, statements of income and loss, loss and statements of cash flow, and statements of shareholders’ equity), all in reasonable detail, fairly presenting in all material respects the financial position and the results of the operations of BlueLinx Parent and its Subsidiaries on a consolidated basis as of the end of and through such fiscal month (or quarter)month, certified to be correct by the chief financial officer of BlueLinxan Authorized Officer, subject to normal year-end adjustments and lack of no footnotes and, if a Compliance Period is then in effect, and accompanied by a compliance certificate substantially in the form of Exhibit C heretohereto and (B) a separate report setting forth for each Loan Party and each Subsidiary of each Loan Party, along the beginning balance, ending balance and net change with a schedule in form reasonably satisfactory respect to Administrative Advances and Collateral Agent of the calculations used in determiningintercompany balances for each such Person, as of the end of such month (or quarter), whether Borrowers were in compliance with the covenants set forth in Section 9.17 of this Agreement for such month (or quarter); and (ii) within ninety one hundred and twenty (90120) days after the end of each fiscal year or, if earlier, within three (3) days following the date on which Borrowers filed its annual report on Form 10-K with the Securities and Exchange Commission after the end of such fiscal year, audited consolidated financial statements and unaudited consolidating financial statements of BlueLinx Parent and its Subsidiaries (including in each case balance sheets, statements of income and loss, loss and statements of cash flow and statements of shareholders’ equityflow), and the accompanying notes thereto, all in reasonable detail, fairly presenting in all material respects the financial position and the results of the operations of BlueLinx Parent and its Subsidiaries on a consolidated basis as of the end of and for such fiscal year, together with (A) the unqualified opinion of independent certified public accountantsaccountants with respect to the audited consolidated financial statements, which accountants shall be Ernst & Young, LLP or an independent accounting firm selected by Borrowers Parent and reasonably acceptable to Administrative and Collateral Agent, that such audited consolidated financial statements have been prepared in accordance with GAAP, and present fairly in all material respects the results of operations and financial condition of BlueLinx Parent and its Subsidiaries on a consolidated basis as of the end of and for the fiscal year then ended and (B) any management letters that may be issued with regard to the Borrowers or Guarantorsended.
Appears in 1 contract
Samples: Loan and Security Agreement (Remy International, Inc.)
Financial Statements and Other Information. (a) Each Borrower and each Guarantor shall, and shall cause each of its and their Subsidiaries to, keep proper books and records in which true and complete entries shall be made of all dealings or transactions of or in relation to the Collateral and the business of each Borrower, each Guarantor Borrower and each of their respective Subsidiaries its subsidiaries (if any) in accordance with GAAP. Borrowers GAAP and Guarantors shall promptly furnish to Administrative and Collateral Agent any and all financial or other information as Administrative and Collateral Agent may reasonably request relating to the Collateral and the assets, business and operations of Borrowers and Guarantors, and to notify the auditors and accountants of Borrowers and Guarantors that Administrative and Collateral Agent is authorized to obtain such information directly from them. Without limiting the foregoing, Borrowers Borrower shall furnish or cause to be furnished to Administrative and Collateral Agent, the followingLender: (i) within thirty (30) days after the end of each fiscal month (or within forty-five (45) days calendar month, monthly unaudited consolidated financial statements, and, if such fiscal month end is also a fiscal quarter end)Borrower has any subsidiaries, unaudited consolidated consolidating financial statements (including in each case balance sheets, statements of income and loss, statements of cash flow, and statements of shareholders’ ' equity), all prepared in accordance with GAAP (or with footnote disclosure information acceptable to Lender) and in reasonable detail, fairly presenting the financial position and the results of the operations of BlueLinx Borrower and its Subsidiaries subsidiaries as of the end of and through such fiscal month (or quarter), certified to be correct by the chief financial officer of BlueLinx, subject to normal year-end adjustments and lack of footnotes and, if a Compliance Period is then in effect, accompanied by a compliance certificate substantially in the form of Exhibit C hereto, along with a schedule in form reasonably satisfactory to Administrative and Collateral Agent of the calculations used in determining, as of the end of such month (or quarter), whether Borrowers were in compliance with the covenants set forth in Section 9.17 of this Agreement for such month (or quarter); and (ii) within ninety (90) days after the end of each fiscal year, audited consolidated financial statements and, if Borrower has any subsidiaries, audited consolidating financial statements of BlueLinx Borrower and its Subsidiaries subsidiaries (including in each case balance sheets, statements of income and loss, statements of cash flow and statements of shareholders’ ' equity), and the accompanying notes thereto, all in reasonable detail, fairly presenting the financial position and the results of the operations of BlueLinx Borrower and its Subsidiaries subsidiaries as of the end of and for such fiscal year, together with (A) the unqualified opinion of independent certified public accountants, which accountants shall be an independent accounting firm selected by Borrowers Borrower and reasonably acceptable to Administrative and Collateral AgentLender, that such financial statements have been prepared in accordance with GAAP, and present fairly the results of operations and financial condition of BlueLinx Borrower and its Subsidiaries subsidiaries as of the end of and for the fiscal year then ended and (B) any management letters that may be issued with regard to the Borrowers or Guarantorsended.
Appears in 1 contract
Financial Statements and Other Information. (a) Each Borrower and each Guarantor shall, and Borrowers shall cause each of its and their Subsidiaries to, keep proper books and records in which true and complete entries shall be made of all dealings or transactions of or in relation to the Collateral and the business of each Borrower, each Guarantor Crown and each of their respective its consolidated Subsidiaries in accordance with GAAP. Borrowers GAAP and Guarantors shall promptly furnish to Administrative and Collateral Agent any and all financial or other information as Administrative and Collateral Agent may reasonably request relating to the Collateral and the assets, business and operations of Borrowers and Guarantors, and to notify the auditors and accountants of Borrowers and Guarantors that Administrative and Collateral Agent is authorized to obtain such information directly from them. Without limiting the foregoing, Borrowers Crown shall furnish or cause to be furnished to Administrative and Collateral Agent, the following: within fifty (i) within thirty (3050) days after the end of each of the first three fiscal month (or within forty-five (45) days if such fiscal month end is also a fiscal quarter end)quarters, quarterly unaudited consolidated financial statements (including in each case balance sheets, statements of income operations and loss, statements of cash flow, and statements of shareholders’ equityflows), all in reasonable detail, fairly presenting the financial position and the results of the operations of BlueLinx Crown and its consolidated Subsidiaries as of the end of and through such fiscal month (or quarter), certified to be correct by the chief financial officer of BlueLinx, subject to normal customary year-end adjustments (with separate statements for Tiara Insurance Company, a Vermont corporation ("Tiara")) and lack of footnotes and, if a Compliance Period is then in effect, accompanied by a compliance certificate substantially in the form of Exhibit C hereto, along with a schedule in form reasonably satisfactory to Administrative and Collateral Agent of the calculations used in determining, as of the end of such month within ninety-five (or quarter), whether Borrowers were in compliance with the covenants set forth in Section 9.17 of this Agreement for such month (or quarter); and (ii) within ninety (9095) days after the end of each fiscal year, audited consolidated financial statements of BlueLinx Crown and its consolidated Subsidiaries (with separate audited year-end statements for Tiara within one hundred eighty-five (185) days after the end of each fiscal year) (including in each case balance sheets, statements of income and lossoperations, statements of cash flow flows and statements of shareholders’ ' equity), and the accompanying notes thereto, all in reasonable detail, fairly presenting the financial position and the results of the operations of BlueLinx Crown and its consolidated Subsidiaries as of the end of and for such fiscal year, together with (A) the unqualified opinion of independent certified public accountants, which accountants shall be an independent accounting firm selected by Borrowers Crown and reasonably acceptable to Administrative and Collateral Agent, that such financial statements have been prepared in accordance conformity with GAAP, and present fairly fairly, in all material respects, the consolidated financial position and the consolidated results of operations and financial condition cash flows of BlueLinx Crown and its consolidated Subsidiaries as of the end of and for the fiscal year then ended and (B) any management letters that may be issued with regard to the Borrowers or Guarantorsended.
Appears in 1 contract
Samples: Loan and Security Agreement (Crown Central Petroleum Corp /Md/)
Financial Statements and Other Information. (a) Each Borrower Whether or not required by the rules and each Guarantor shallregulations of the Commission, and the Company shall cause each of its and their Subsidiaries to, keep proper books and records in which true and complete entries shall be made of all dealings or transactions of or in relation furnish to the Collateral and the business of each Borrower, each Guarantor and each of their respective Subsidiaries in accordance with GAAP. Borrowers and Guarantors shall promptly furnish to Administrative and Collateral Agent any and all financial or other information as Administrative and Collateral Agent may reasonably request relating to the Collateral and the assets, business and operations of Borrowers and Guarantors, and to notify the auditors and accountants of Borrowers and Guarantors that Administrative and Collateral Agent is authorized to obtain such information directly from them. Without limiting the foregoing, Borrowers shall furnish or cause to be furnished to Administrative and Collateral Agent, the following4% Holders: (i) within thirty all quarterly and annual financial information that would be required to be contained in a filing with the Commission on Forms 10-Q and 10-K if the Company were required to file such Forms, including a “Management’s Discussion and Analysis of Financial Condition and Results of Operations” that describes the financial condition and results of operations of the Company and its consolidated subsidiaries (30) days after the end of each fiscal month (or within forty-five (45) days if such fiscal month end is also a fiscal quarter end), unaudited consolidated financial statements (including in each case balance sheets, statements of income and loss, statements of cash flow, and statements of shareholders’ equity), all showing in reasonable detail, fairly presenting either on the face of the financial position statements or in the footnotes thereto and in Management’s Discussion and Analysis of Financial Condition and Results of Operations, the financial condition and results of the operations of BlueLinx the Company and its Restricted Subsidiaries (as defined in the Indenture) separate from the financial condition and results of operations of the end Unrestricted Subsidiaries (as defined in the Indenture) of and through such fiscal month (or quarter)the Company, certified if any) and, with respect to be correct the annual information only, a report thereon by the chief financial officer of BlueLinx, subject to normal year-end adjustments and lack of footnotes and, if a Compliance Period is then in effect, accompanied by a compliance certificate substantially in the form of Exhibit C hereto, along with a schedule in form reasonably satisfactory to Administrative and Collateral Agent of the calculations used in determining, as of the end of such month (or quarter), whether Borrowers were in compliance with the covenants set forth in Section 9.17 of this Agreement for such month (or quarter)Company’s certified independent accountants; and (ii) within ninety (90) days after all current reports that would be required to be filed with the end of each fiscal yearCommission on Form 8-K if the Company were required to file such reports, audited consolidated financial statements of BlueLinx and its Subsidiaries (including in each case balance sheetswithin the time periods specified in the Commission’s rules and regulations. Notwithstanding the foregoing, statements the Company may satisfy such requirements prior to the effectiveness of income and lossthe registration statement contemplated by the Registration Rights Agreement, statements dated as of cash flow and statements of shareholders’ equityNovember 13, 2012 (the “Registration Rights Agreement”), among the Company, the guarantors named therein and the accompanying notes thereto, all in reasonable detail, fairly presenting the financial position and the results holders of the operations 10.5% Senior Secured Notes due 2017, by filing with the Commission such registration statement within the time period required for such filing as specified in the Registration Rights Agreement, to the extent that any such registration statement contains substantially the same information as would be required to be filed by the Company if it were subject to the reporting requirements of BlueLinx and its Subsidiaries as Section 13 or 15(d) of the end of and for such fiscal year, together with (A) the unqualified opinion of independent certified public accountants, which accountants shall be an independent accounting firm selected by Borrowers and reasonably acceptable to Administrative and Collateral Agent, that such financial statements have been prepared in accordance with GAAP, and present fairly the results of operations and financial condition of BlueLinx and its Subsidiaries as of the end of and for the fiscal year then ended and (B) any management letters that may be issued with regard to the Borrowers or GuarantorsExchange Act.
Appears in 1 contract
Samples: Stockholders’ Agreement (Broadview Networks Holdings Inc)
Financial Statements and Other Information. (a) Each Borrower and each Guarantor Borrowers shall, and shall cause each of its and their Subsidiaries any Subsidiary to, keep proper books and records in which true and complete entries shall be made of all dealings or transactions of or in relation to the Collateral and the business of each Borrower, each Guarantor Borrowers and each of their respective Subsidiaries in accordance with GAAP. Borrowers and Guarantors shall promptly furnish to Administrative Agent and Collateral Agent any Lenders all such financial and all financial or other information as Administrative and Collateral Agent may shall reasonably request relating to the Collateral and the assets, business and operations of Borrowers and GuarantorsBorrowers, and to notify the auditors and accountants of Borrowers and Guarantors Borrower that Administrative and Collateral Agent is authorized to obtain such information directly from them. Without limiting the foregoing, Borrowers shall furnish or cause to be furnished to Administrative Agent and Collateral Agenteach Lender, the following: (i) within thirty (30) days after the end of each fiscal month (or within forty-five (45) days if such fiscal month end is also a fiscal quarter end)month, monthly unaudited consolidated financial statements (including in each case balance sheets, statements of income and loss, statements of cash flow, and statements of shareholders’ ' equity), all in reasonable detail, fairly presenting the financial position and the results of the operations of BlueLinx Parent and its Subsidiaries as of the end of and through such fiscal month (or quarter)month, certified to be correct by the chief financial officer of BlueLinxParent, subject to normal year-end adjustments and lack of footnotes and, if a Compliance Period is then in effect, accompanied by a compliance certificate substantially in the form of Exhibit C B hereto, along with a schedule in form reasonably satisfactory to Administrative and Collateral Agent of the calculations used in determining, as of the end of such month (or quarter)month, whether Borrowers were Parent was in compliance with the covenants set forth in Section 9.17 Sections 9.17, and 9.18 of this Agreement for such month month, (or ii) within forty-five (45) days after the end of each fiscal quarter, quarterly unaudited consolidated financial statements (including in each case balance sheets, statements of income and loss, statements of cash flow, and statements of shareholders' equity), all in reasonable detail, fairly presenting the financial position and the results of operations of Parent and its Subsidiaries as of the end of and through such fiscal quarter, certified to be correct by the chief financial officer of Parent, subject to normal year-end adjustments; and (iiiii) within ninety (90) days after the end of each fiscal year, audited consolidated financial statements of BlueLinx Parent and its Subsidiaries (including in each case balance sheets, statements of income and loss, statements of cash flow and statements of shareholders’ ' equity), and the accompanying notes thereto, all in reasonable detail, fairly presenting the financial position and the results of the operations of BlueLinx Parent and its Subsidiaries as of the end of and for such fiscal year, together with (A) the unqualified opinion of independent certified public accountants, which accountants shall be an independent accounting firm selected by Borrowers Parent and reasonably acceptable to Administrative and Collateral Agent, that such financial statements have been prepared in accordance with GAAP, and present fairly the results of operations and financial condition of BlueLinx Parent, and its Subsidiaries as of the end of and for the fiscal year then ended and (B) any management letters that may be issued with regard to the Borrowers or Guarantorsended.
Appears in 1 contract
Financial Statements and Other Information. (a) Each Borrower and each Guarantor shall, and shall cause each of its and their Subsidiaries to, keep proper books and records in which true and complete entries shall be made of all dealings or transactions of or in relation to the Collateral and the business of each Borrower, each Guarantor such Borrower and each of their respective its Subsidiaries in accordance with GAAP. Borrowers and Guarantors Each Borrower shall promptly furnish to Administrative Agent and Collateral Agent any Lenders all such financial and all financial or other information as Administrative and Collateral Agent may shall reasonably request relating to the Collateral and the assets, business and operations of Borrowers and Guarantorssuch Borrower, and to notify the auditors and accountants of Borrowers and Guarantors such Borrower that Administrative and Collateral Agent is authorized to obtain such information directly from them. Without limiting the foregoing, Borrowers shall furnish or cause to be furnished to Administrative and Collateral Agent, the following: (i) within thirty (30) days after the end of each fiscal month (or unless such month is the last month of a fiscal quarter, and then within forty-five (45) days after the end of such month, and if such fiscal month end is also a fiscal quarter endthe initial public offering of Parent occurs, concurrently with each delivery of its 10-Q for any period), monthly unaudited consolidated financial statements, and unaudited consolidating financial statements (including in each case balance sheets, statements of income and loss, statements of cash flow, and statements of shareholders’ ' equity), all in reasonable detail, fairly presenting the financial position and the results of the operations of BlueLinx Borrowers and its their Subsidiaries as of the end of and through such fiscal month (or quarter)month, certified to be correct by the chief financial officer of BlueLinxBorrowers, subject to normal year-end adjustments and lack of no footnotes and, if a Compliance Period is then in effect, and accompanied by a compliance certificate substantially in the form of Exhibit EXHIBIT C hereto, along with a schedule in a form reasonably satisfactory to Administrative and Collateral Agent of the calculations used in determining, as of the end of such month (or quarter)month, whether Borrowers were Borrower are in compliance with the covenants set forth in Section SECTIONS 9.17 and 9.19 of this Agreement for such month (or quarter); and (ii) within ninety (90) days after the end of each fiscal yearFiscal Year, audited consolidated financial statements and unaudited consolidating financial statements of BlueLinx Borrowers and its their Subsidiaries (including in each case balance sheets, statements of income and loss, statements of cash flow flow, and statements of shareholders’ ' equity), and the accompanying notes thereto, all in reasonable detail, fairly presenting the financial position and the results of the operations of BlueLinx Borrowers and its their Subsidiaries as of the end of and for such fiscal yearFiscal Year, together with (A) the unqualified opinion (which shall not contain a "going concern" qualification) of independent certified public accountantsaccountants with respect to the audited consolidated financial statements, which accountants shall be an independent accounting firm selected by Borrowers and reasonably acceptable to Administrative and Collateral Agent, that such audited consolidated financial statements have been prepared in accordance with GAAP, and present fairly the results of operations and financial condition of BlueLinx Borrowers and its their Subsidiaries as of the end of and for the fiscal year Fiscal Year then ended and (B) any management letters that may be issued with regard to the Borrowers or Guarantorsended.
Appears in 1 contract
Financial Statements and Other Information. (a) Each Borrower and each Guarantor Borrowers shall, and shall cause each of its and their Subsidiaries any Subsidiary to, keep proper books and records in which true and complete entries shall be made of all dealings or transactions of or in relation to the Collateral and the business of each Borrower, each Guarantor Borrowers and each of their respective Subsidiaries in accordance with GAAP. Borrowers and Guarantors shall promptly furnish to Administrative and Collateral Agent Lender any financial or and all financial or other information as Administrative and Collateral Agent Lender may reasonably request relating to the Collateral and the assets, business and operations of Borrowers and GuarantorsBorrowers, and to notify the auditors and accountants of Borrowers and Guarantors that Administrative and Collateral Agent Lender is authorized to obtain such information directly from them. Without limiting the foregoing, Borrowers shall furnish or cause to be furnished to Administrative and Collateral AgentLender, the following: (i) within thirty forty-five (3045) days after the end of each of the first three (3) fiscal month quarters in each fiscal year and within ninety (or within forty-five (4590) days if such fiscal month after the end is also a of the fourth fiscal quarter end)in each fiscal year, quarterly unaudited consolidated financial statements (including in each case balance sheets, statements of income and loss, statements of cash flow, and statements of shareholders’ ' equity), and unaudited non-consolidating financial statements (including balance sheets and statements of income and loss), all in reasonable detail, fairly presenting the financial position and the results of the operations of BlueLinx Borrowers and its their Subsidiaries as of the end of and through such fiscal month (or quarter), certified to be correct by the chief financial officer of BlueLinxParent, subject to normal year-end adjustments and lack of footnotes and, if a Compliance Period is then in effect, accompanied by a compliance certificate substantially in the form of Exhibit C B hereto, along with a schedule in form reasonably satisfactory to Administrative Lender during any Availability Compliance Period (related to an Availability Triggering Event or Compliance Triggering Event) of the calculations used in determining, as of the end of such month, whether Borrowers were in compliance with the covenant set forth in Sections 9.18 of this Agreement for such quarter, (ii) during any Availability Compliance Period (related to an Availability Triggering Event or Compliance Triggering Event), on the last Business Day of any month therein and Collateral Agent at any other date as determined by Borrowers in their sole discretion, Borrowers will deliver to Lender an Availability Compliance Report, along with a schedule in form and substance reasonably satisfactory to Lender, of the calculations used in determining, as of the end of such month and such other date determined by Borrowers in their sole discretion, whether U.S. Excess Availability is at least Twenty Million Dollars (or quarter$20,000,000) and Canadian Compliance Excess Availability is at least One Million Dollars ($1,000,000), whether Borrowers were in compliance with the covenants set forth in Section 9.17 of this Agreement for such month (or quarter); and (iiiii) within ninety (90) days after the end of each fiscal year, audited consolidated financial statements of BlueLinx and its Subsidiaries (including in each case balance sheets, statements of income and loss, statements of cash flow and statements of shareholders’ ' equity) and unaudited consolidating financial statements of Borrowers and its Subsidiaries (including balance sheets and statements of income and loss), and the accompanying notes thereto, all in reasonable detail, fairly presenting the financial position and the results of the operations of BlueLinx Borrowers and its their Subsidiaries as of the end of and for such fiscal year, together with (A) the unqualified opinion of independent certified public accountants, which accountants shall be an independent accounting firm selected by Borrowers and reasonably acceptable to Administrative and Collateral AgentLender, that such financial statements have been prepared in accordance with GAAP, and present fairly the results of operations and financial condition of BlueLinx Borrowers and its their Subsidiaries as of the end of and for the fiscal year then ended and (B) any management letters that may be issued with regard to the Borrowers or Guarantorsended.
Appears in 1 contract
Financial Statements and Other Information. (a) Each Borrower and each Guarantor shall, and shall cause each of its and their Subsidiaries to, keep proper books and records in which true and complete entries shall be made of all dealings or transactions of or in relation to the Collateral and the business of each Borrower, each Guarantor Borrower and each of their respective Subsidiaries its subsidiaries (if any) in accordance with GAAP. Borrowers GAAP and Guarantors shall promptly furnish to Administrative and Collateral Agent any and all financial or other information as Administrative and Collateral Agent may reasonably request relating to the Collateral and the assets, business and operations of Borrowers and Guarantors, and to notify the auditors and accountants of Borrowers and Guarantors that Administrative and Collateral Agent is authorized to obtain such information directly from them. Without limiting the foregoing, Borrowers Borrower shall furnish or cause to be furnished to Administrative and Collateral Agent, the followingLender: (i) within thirty (30) days after the end of each fiscal month (or within forty-five (45) days month, monthly unaudited consolidated financial statements, and, if such fiscal month end is also a fiscal quarter end)Borrower has any subsidiaries, unaudited consolidated consolidating financial statements (including in each case balance sheets, statements of income and loss, statements of cash flow, loss and statements of shareholders’ ' equity), all in reasonable detail, fairly presenting the financial position and the results of the operations of BlueLinx Borrower and its Subsidiaries subsidiaries as of the end of and through such fiscal month month, (or quarter), certified to be correct by the chief financial officer of BlueLinx, subject to normal yearii) within forty-end adjustments and lack of footnotes and, if a Compliance Period is then in effect, accompanied by a compliance certificate substantially in the form of Exhibit C hereto, along with a schedule in form reasonably satisfactory to Administrative and Collateral Agent of the calculations used in determining, as of five (45) days after the end of such month each fiscal quarter, a store-by-store profitability report for each of Borrower's retail locations, and (or quarter), whether Borrowers were in compliance iii) simultaneously with the covenants set forth in Section 9.17 delivery of this Agreement for the same to the Securities and Exchange Commission (or, if Borrower is not then required to deliver such month (or quarter); financial statements to the Securities and (ii) Exchange Commission, within ninety (90) days after the end of each fiscal year), audited consolidated financial statements and, if Borrower has any subsidiaries, audited consolidating financial statements of BlueLinx Borrower and its Subsidiaries subsidiaries (including in each case balance sheets, statements of income and loss, statements of cash flow and statements of shareholders’ ' equity), and the accompanying notes thereto, all in reasonable detail, fairly presenting the financial position and the results of the operations of BlueLinx Borrower and its Subsidiaries subsidiaries as of the end of and for such fiscal year, together with (A) the unqualified opinion of independent certified public accountants, which accountants shall be an independent accounting firm selected by Borrowers Borrower and reasonably acceptable to Administrative and Collateral AgentLender, that such financial statements have been prepared in accordance with GAAP, and present fairly the results of operations and financial condition of BlueLinx Borrower and its Subsidiaries subsidiaries as of the end of and for the fiscal year then ended and (B) any management letters that may be issued with regard to the Borrowers or Guarantorsended.
Appears in 1 contract
Samples: Loan and Security Agreement (Wherehouse Entertainment Inc /New/)
Financial Statements and Other Information. Holdings and Borrower shall furnish to Agent: (ai) Each Borrower (A) as soon as available and each Guarantor shall, and shall cause each of its and their Subsidiaries to, keep proper books and records in which true and complete entries shall be made of all dealings or transactions of or in relation to any event within 30 days after the Collateral and the business end of each calendar month, Borrower's consolidated unaudited financial statements for such month, each Guarantor and each of their respective Subsidiaries prepared in accordance with GAAP. Borrowers and Guarantors shall promptly furnish to Administrative and Collateral Agent any and all , and, if requested by Agent, its consolidating financial or other information as Administrative and Collateral Agent may reasonably request relating to the Collateral and the assets, business and operations of Borrowers and Guarantorsstatements for such month, and to notify the auditors (B) as soon as available and accountants of Borrowers and Guarantors that Administrative and Collateral Agent is authorized to obtain such information directly from them. Without limiting the foregoing, Borrowers shall furnish or cause to be furnished to Administrative and Collateral Agent, the following: (i) within thirty (30) in any event with 45 days after the end of each fiscal month quarter of each fiscal year of Holdings (or within forty-five (45) days if such excluding the fourth fiscal month end is also a fiscal quarter endquarter), Holdings' consolidated unaudited consolidated financial statements (including for such quarter prepared in accordance with GAAP, and, if requested by Agent, its consolidating financial statements for such quarter, accompanied in each case balance sheets, by a certificate of a Responsible Officer of Holdings stating that such financial statements of income and loss, statements of cash flow, and statements of shareholders’ equity), all in reasonable detail, fairly presenting present the financial position condition of Holdings, Borrower and their respective Subsidiaries as at such date and the results of the operations of BlueLinx Holdings, Borrower and its their respective Subsidiaries as of for the end of period ended on such date and through such fiscal month (or quarter), certified to be correct by the chief financial officer of BlueLinxhave been prepared in accordance with GAAP consistently applied, subject to normal changes from normal, year-end adjustments and lack except for the absence of footnotes andnotes, if a Compliance Period is then in effect, accompanied by a compliance certificate substantially in the form of Exhibit C hereto, along with a schedule in form reasonably satisfactory to Administrative and Collateral Agent of the calculations used in determining, as of the end of such month (or quarter), whether Borrowers were in compliance with the covenants set forth in Section 9.17 of this Agreement for such month (or quarter); and (ii) as soon as available and in any event within ninety (90) 90 days after the end of each fiscal year of Holdings, its consolidated annual financial statements, prepared in accordance with GAAP and, if requested by Agent, consolidating annual financial statements, and in the case of consolidated financial statements, accompanied by an unqualified report thereon of independent certified public accountants of recognized standing; (iii) as soon as available and in any event not more than 90 days after the commencement of each fiscal year, audited consolidated the business plan and financial projections of Holdings, Borrower and their respective Subsidiaries for such fiscal year; (iv) promptly after Holdings or Borrower has knowledge or becomes aware thereof, notice of the occurrence of any Default or Event of Default hereunder; (v) prompt written notice of any condition or event which has resulted, or that could reasonably be expected to result, in a Material Adverse Change; (vi) together with the financial statements of BlueLinx and its Subsidiaries required pursuant to clauses (including in each case balance sheets, statements of income and loss, statements of cash flow and statements of shareholders’ equityi)and (ii), and the accompanying notes thereto, all in reasonable detail, fairly presenting the financial position and the results a Compliance Certificate of the operations a Responsible Officer of BlueLinx and its Subsidiaries Borrower as of the end of the applicable accounting period; and for (vii) such fiscal yearother information respecting the operations, together with (A) the unqualified opinion of independent certified public accountantsproperties, which accountants shall be an independent accounting firm selected by Borrowers and reasonably acceptable to Administrative and Collateral Agent, that such financial statements have been prepared in accordance with GAAP, and present fairly the results of operations and business or financial condition of BlueLinx Holdings, Borrower, their respective Subsidiaries and its Subsidiaries any Guarantor as of the end of and for the fiscal year then ended and (B) any management letters that Agent may from time to time reasonably request or as may be issued with regard to specified in the Borrowers or GuarantorsSchedule.
Appears in 1 contract
Financial Statements and Other Information. (a) Each Borrower and each Guarantor shall, and Debtor shall cause each of its and their Subsidiaries to, keep proper books and records in which true and complete entries shall be made of all dealings or transactions of or in relation to the Collateral and the business of each Borrower, each Guarantor and each of their respective Subsidiaries such Debtor in accordance with GAAP. Borrowers and Guarantors Each Debtor shall promptly furnish to Administrative Secured Party all such financial and Collateral Agent any and all financial or other information as Administrative and Collateral Agent may Secured Party shall reasonably request relating to the Collateral and the assets, business and operations of Borrowers and Guarantorssuch Debtor, and to notify the auditors and accountants of Borrowers and Guarantors such Debtor that Administrative and Collateral Agent Secured Party is authorized to obtain such information directly from them. Without limiting the foregoing, Borrowers each Debtor shall furnish or cause to be furnished to Administrative and Collateral AgentSecured Party, the following: (i) within thirty twenty (3020) days after the end of each fiscal month (or within forty-five (45) days if such fiscal month end is also a fiscal quarter end)month, monthly unaudited consolidated financial statements and unaudited consolidating financial statements (including in each case balance sheets, statements of income and loss, statements of cash flow, and statements of shareholders’ equity), all in reasonable detail, fairly presenting the financial position and the results of the operations of BlueLinx and its Subsidiaries such Debtor as of the end of and through such fiscal month (or quarter)month, certified to be correct by the chief financial officer of BlueLinxsuch Debtor, subject to normal year-end adjustments and lack of footnotes and, if a Compliance Period is then in effect, accompanied by a compliance certificate substantially in the form of Exhibit C heretoadjustments, along with a schedule in form reasonably satisfactory to Administrative and Collateral Agent Secured Party of the calculations used in determining, as of the end of such month (or quarter)month, whether Borrowers were such Debtor was in compliance with the covenants set forth in Section 9.17 Sections 5.13 and 5.14 of this Agreement for such month (or quarter); and (ii) within ninety (90) days after the end of each fiscal year, audited consolidated financial statements and audited consolidating financial statements of BlueLinx and its Subsidiaries each Debtor (including in each case balance sheets, statements of income and loss, statements of cash flow and statements of shareholders’ equity), and the accompanying notes thereto, all in reasonable detail, fairly presenting the financial position and the results of the operations of BlueLinx and its Subsidiaries such Debtor as of the end of and for such fiscal year, together with (A) the unqualified opinion of independent certified public accountants, which accountants shall be an independent accounting firm selected by Borrowers such Debtor and reasonably acceptable to Administrative and Collateral AgentSecured Party, that such financial statements have been prepared in accordance with GAAP, and present fairly the results of operations and financial condition of BlueLinx such Debtor and its their Subsidiaries as of the end of and for the fiscal year then ended and (B) any management letters that may be issued with regard to the Borrowers or Guarantorsended.
Appears in 1 contract
Financial Statements and Other Information. (a) Each Borrower and each Guarantor shall, and Debtor shall cause each of its and their Subsidiaries to, keep proper books and records in which true and complete entries shall be made of all dealings or transactions of or in relation to the Collateral and the business of each Borrower, each Guarantor and each of their respective Subsidiaries such Debtor in accordance with GAAP. Borrowers and Guarantors Each Debtor shall promptly furnish to Administrative Secured Party all such financial and Collateral Agent any and all financial or other information as Administrative and Collateral Agent may Secured Party shall reasonably request relating to the Collateral and the assets, business and operations of Borrowers and Guarantorssuch Debtor, and to notify the auditors and accountants of Borrowers and Guarantors such Debtor that Administrative and Collateral Agent Secured Party is authorized to obtain such information directly from them. Without limiting the foregoing, Borrowers each Debtor shall furnish or cause to be furnished to Administrative and Collateral AgentSecured Party, the following: (i) within thirty twenty (3020) days after the end of each fiscal month (or within forty-five (45) days if such fiscal month end is also a fiscal quarter end)month, monthly unaudited consolidated financial statements and unaudited consolidating financial statements (including in each case balance sheets, statements of income and loss, statements of cash flow, and statements of shareholders’ equity), all in reasonable detail, fairly presenting the financial position and the results of the operations of BlueLinx and its Subsidiaries such Debtor as of the end of and through such fiscal month (or quarter)month, certified to be correct by the chief financial officer of BlueLinxsuch Debtor, subject to normal year-end adjustments and lack of footnotes and, if a Compliance Period is then in effect, accompanied by a compliance certificate substantially in the form of Exhibit C heretoadjustments, along with a schedule in form reasonably satisfactory to Administrative and Collateral Agent Secured Party of the calculations used in determining, as of the end of such month (or quarter)month, whether Borrowers were such Debtor was in compliance with the covenants set forth in Section 9.17 Sections 5.13 and 5.14 of this Agreement for such month (or quarter); and (ii) within ninety (90) days after the end of each fiscal year, audited consolidated financial statements and audited consolidating financial statements of BlueLinx and its Subsidiaries each Debtor (including in each case balance sheets, statements of income and loss, statements of cash flow and statements of shareholders’ equity), and the accompanying notes US OBLIGORS GSA thereto, all in reasonable detail, fairly presenting the financial position and the results of the operations of BlueLinx and its Subsidiaries such Debtor as of the end of and for such fiscal year, together with (A) the unqualified opinion of independent certified public accountants, which accountants shall be an independent accounting firm selected by Borrowers such Debtor and reasonably acceptable to Administrative and Collateral AgentSecured Party, that such financial statements have been prepared in accordance with GAAP, and present fairly the results of operations and financial condition of BlueLinx such Debtor and its their Subsidiaries as of the end of and for the fiscal year then ended and (B) any management letters that may be issued with regard to the Borrowers or Guarantorsended.
Appears in 1 contract
Financial Statements and Other Information. The Borrower will furnish to the Administrative Agent (which shall, in turn, provide such information to the Lenders): (a) Each Borrower as soon as available and each Guarantor shall, and shall cause each of its and their Subsidiaries to, keep proper books and records in which true and complete entries shall be made of all dealings or transactions of or in relation to the Collateral and the business of each Borrower, each Guarantor and each of their respective Subsidiaries in accordance with GAAP. Borrowers and Guarantors shall promptly furnish to Administrative and Collateral Agent any and all financial or other information as Administrative and Collateral Agent may reasonably request relating to the Collateral and the assets, business and operations of Borrowers and Guarantors, and to notify the auditors and accountants of Borrowers and Guarantors that Administrative and Collateral Agent is authorized to obtain such information directly from them. Without limiting the foregoing, Borrowers shall furnish or cause to be furnished to Administrative and Collateral Agent, the following: (i) within thirty (30) days after the end of each fiscal month (or event within forty-five (45) days if such after the end of the first three (3) fiscal month end is also a quarters of each fiscal year (commencing with the fiscal quarter end)ending June 30, unaudited 2024) (i) the consolidated financial statements (including in each case balance sheets, statements sheets of income and loss, statements of cash flow, and statements of shareholders’ equity), all in reasonable detail, fairly presenting the financial position and the results of the operations of BlueLinx Holdings and its Subsidiaries as of the end of and through such fiscal month quarter and (or quarter)ii) the related consolidated statements of income, certified to be correct by shareholders’ equity and cash flows of Holdings and its Subsidiaries for such quarter and the chief financial officer of BlueLinx, subject to normal year-end adjustments and lack of footnotes and, if a Compliance Period is then in effect, accompanied by a compliance certificate substantially in the form of Exhibit C hereto, along with a schedule in form reasonably satisfactory to Administrative and Collateral Agent portion of the calculations used in determining, as of fiscal year through the end of such month fiscal quarter, in each case prepared in all material respects in accordance with GAAP consistently applied, all in reasonable detail and setting forth in comparative form the figures for the corresponding period in the preceding fiscal year, together with (or quarter)iii) a certificate of a Responsible Officer of the Borrower stating that (x) such financial statements fairly present in all material respects the financial condition of Holdings and its Subsidiaries as at such date and (y) the results of operations of Holdings and its Subsidiaries for the period ended on such date have been prepared in all material respects in accordance with GAAP consistently applied, whether Borrowers were in compliance subject to changes resulting from normal, year-end audit adjustments and except for the absence of notes; provided that documents required to be furnished pursuant to this Section 8.01(a) shall be deemed furnished on the date that such documents are publicly available on “XXXXX” (with the covenants set forth in Section 9.17 of this Agreement for such month (or quarterrelated certificate separately delivered); (b) as soon as available and (ii) in any event within ninety (90) days after the end of each fiscal year, audited year (i) the consolidated financial statements balance sheets of BlueLinx and its Subsidiaries (including in each case balance sheets, statements of income and loss, statements of cash flow and statements of shareholders’ equity), and the accompanying notes thereto, all in reasonable detail, fairly presenting the financial position and the results of the operations of BlueLinx Holdings and its Subsidiaries as of the end of such fiscal year and (ii) the related consolidated statements of income, shareholders’ equity and cash flows of Holdings and its Subsidiaries for such fiscal year, together in each case prepared in all material respects in accordance with (A) GAAP consistently applied, all in reasonable detail and setting forth in comparative form the unqualified figures for the previous fiscal year, accompanied by a report and opinion thereon of PricewaterhouseCoopers LLP, Ernst & Young LLP or another firm of independent certified public accountants, which accountants shall be an independent accounting firm selected by Borrowers and of recognized national standing reasonably acceptable to the Administrative and Collateral Agent, that such financial statements have been which report and opinion shall be prepared in accordance with GAAPgenerally accepted auditing standards and such report and opinion shall not be subject to any “going concern” or like qualification or exception or emphasis of matter of going concern footnote or any qualification or exception as to the scope of such audit, and present fairly in the results case of operations and such consolidated financial condition of BlueLinx and its Subsidiaries as statements, certified by a Responsible Officer of the end of and for Borrower; provided that documents required to be furnished pursuant to this Section 8.01(b) shall be deemed furnished on the fiscal year then ended and (B) any management letters date that may be issued with regard to the Borrowers or Guarantors.such documents are publicly available on “XXXXX”;
Appears in 1 contract
Financial Statements and Other Information. (a) Each Borrower and each Guarantor shall, and shall cause each of its and their Subsidiaries any Subsidiary to, keep proper books and records in which true and complete entries shall be made of all dealings or transactions of or in relation to the Collateral and the business of each Borrower, each Guarantor Borrower and each of their respective its Subsidiaries in accordance with GAAP. Borrowers and Guarantors Borrower shall promptly furnish to Administrative Lender all such financial and Collateral Agent any and all financial or other information as Administrative and Collateral Agent may Lender shall reasonably request relating to the Collateral and the assets, business and operations of Borrowers and GuarantorsBorrower, and to notify the auditors and accountants of Borrowers and Guarantors Borrower that Administrative and Collateral Agent Lender is authorized to obtain such information directly from them; provided, that, so long as no Default or Event of Default shall exist or have occurred and be continuing, Lender shall not exercise its rights under this Section 9.6 to contact the auditors and accountants directly to obtain information from them not relating to the Collateral without the prior approval of Borrower, which approval shall not be unreasonably withheld, conditioned or delayed. Without limiting the foregoing, Borrowers Borrower shall furnish or cause to be furnished to Administrative and Collateral AgentLender, the following: (i) at all times after the making of the initial Loan hereunder or that Excess Availability is less than $5,000,000 or a Default or Event of Default shall exist or have occurred or be continuing, within thirty (30) days after the end of each fiscal month (or within except in the case of any fiscal month that is the last month of a fiscal quarter, then in such case, forty-five (45) days if after the end of such fiscal month end is also a fiscal quarter endmonth), monthly unaudited consolidated financial statements and unaudited consolidating financial statements (including in each case balance sheets, statements of income and loss, statements of cash flow, and statements of shareholders’ ' equity), all in reasonable detail, fairly presenting the financial position and the results of the operations of BlueLinx Borrower and its Subsidiaries as of the end of and through such fiscal month (or quarter)month, certified to be correct by the chief financial officer of BlueLinxBorrower, subject to normal year-end adjustments and lack of footnotes and, if a Compliance Period is then in effect, accompanied by a compliance certificate substantially in the form of Exhibit C B hereto, along with a schedule in form reasonably satisfactory to Administrative and Collateral Agent Lender of the calculations used in determining, as of the end of such month (or quarter)month, whether Borrowers were Borrower was in compliance with the covenants covenant set forth in Section 9.17 of this Agreement for such month month, (ii) at all times prior to the date of the making of the initial Loan hereunder, and as long as Excess Availability is greater than $5,000,000 and no Default or Event of Default shall exist or have occurred and be continuing, within forty-five (45) days after the end of each fiscal quarter, quarterly unaudited consolidated financial statements and unaudited consolidating financial statements (including in each case balance sheets, statements of income and loss, statements of cash flow, and statements of shareholders' equity); , all in reasonable detail, fairly presenting the financial position and the results of the operations of Borrower and its Subsidiaries as of the end of and through such fiscal quarter, certified to be correct by the chief financial officer of Borrower, subject to normal year-end adjustments and accompanied by a compliance certificate substantially in the form of Exhibit B hereto, along with a schedule in form reasonably satisfactory to Lender of the calculations used in determining, as of the end of such quarter, whether Borrower was in compliance with the covenant set forth in Section 9.17 of this Agreement for such quarter and (iiiii) within ninety (90) days after the end of each fiscal year, audited consolidated financial statements and unaudited consolidating financial statements of BlueLinx Borrower and its Subsidiaries (including in each case balance sheets, statements of income and loss, statements of cash flow and statements of shareholders’ ' equity), and the accompanying notes thereto, all in reasonable detail, fairly presenting the financial position and the results of the operations of BlueLinx Borrower and its Subsidiaries as of the end of and for such fiscal year, together with (A) the unqualified opinion of independent certified public accountants, which accountants shall be an independent accounting firm selected by Borrowers Borrower and reasonably acceptable to Administrative and Collateral AgentLender, that such financial statements have been prepared in accordance with GAAP, and present fairly in all material respects the results of operations and financial condition of BlueLinx Borrower and its Subsidiaries as of the end of and for the fiscal year then ended and (B) any management letters that may be issued with regard to the Borrowers or Guarantorsended.
Appears in 1 contract
Samples: Loan and Security Agreement (Hirsch International Corp)
Financial Statements and Other Information. (a) Each Borrower and each Guarantor shall, and shall cause each of its and their Subsidiaries to, keep proper books and records in which true and complete entries shall be made of all dealings or transactions of or in relation to the Collateral and the business of each Borrower, each Guarantor and each of their respective Subsidiaries Borrower in accordance with GAAPGAAP and permit representatives of any Lender to visit and inspect any of its properties and examine and make abstracts from any of its books and records at any reasonable time and as often as may reasonably be desired. Borrowers and Guarantors Borrower shall promptly furnish to Administrative Agent and Collateral Agent any Lenders all such financial and all financial or other information as Administrative Agent and Collateral Agent may any Lender shall reasonably request relating to the Collateral and the assets, business and operations of Borrowers and GuarantorsBorrower, and to Borrower shall notify the auditors and accountants of Borrowers Borrower that Agent and Guarantors that Administrative and Collateral Agent is Lenders are authorized to obtain such information directly from them. Without limiting the foregoing, Borrowers Borrower shall furnish or cause to be furnished to Administrative Agent and Collateral AgentLenders, the following: (i) within thirty (30) days after the end of each fiscal month (or within forty-five (45) days if such fiscal month end is also month, a fiscal quarter end)list and description of all investments in cash and Cash Equivalents, monthly unaudited consolidated financial statements, and unaudited consolidating financial statements (including in each case balance sheets, statements of income and loss, statements of cash flow, and statements of shareholders’ equity), all in reasonable detail, fairly presenting in all material respects the financial position and the results of the operations of BlueLinx and its Subsidiaries Borrower as of the end of and through such fiscal month (or quarter)month, certified to be correct by the chief financial officer of BlueLinxBorrower, subject to normal year-end adjustments and lack of no footnotes and, if a Compliance Period is then in effect, and accompanied by a compliance certificate substantially in the form of Exhibit C hereto, along with a schedule in form reasonably satisfactory to Administrative and Collateral Agent of the calculations used in determining, as of the end of such month (or quarter), whether Borrowers were in compliance with the covenants set forth in Section 9.17 of this Agreement for such month (or quarter); hereto and (ii) within ninety (90) days after the end of each fiscal year, audited consolidated financial statements and unaudited consolidating financial statements of BlueLinx and its Subsidiaries Borrower (including in each case balance sheets, statements of income and loss, statements of cash flow flow, and statements of shareholders’ equity), and the accompanying notes thereto, all in reasonable detail, fairly presenting in all material respects the financial position and the results of the operations of BlueLinx and its Subsidiaries Borrower as of the end of and for such fiscal year, together with (A) the unqualified opinion of independent certified public accountantsaccountants with respect to the audited consolidated financial statements, which accountants shall be an independent accounting firm selected by Borrowers Borrower and reasonably acceptable to Administrative Agent and Collateral AgentRequired Lenders, that such audited consolidated financial statements have been prepared in accordance with GAAP, and present fairly in all material respects the results of operations and financial condition of BlueLinx and its Subsidiaries Borrower as of the end of and for the fiscal year then ended and (B) any management letters that may be issued with regard to the Borrowers or Guarantorsended.
Appears in 1 contract
Samples: Possession Term Loan and Security Agreement (Trailer Bridge Inc)
Financial Statements and Other Information. (a) Each Borrower and each Guarantor shall, and shall cause each of its and their Subsidiaries to, keep proper books and records in which true and complete entries shall be made of all dealings or transactions of or in relation to the Collateral and the business of each Borrower, each Guarantor and each of their respective Subsidiaries in accordance with GAAP. Borrowers and Guarantors shall promptly furnish to Administrative and Collateral Agent any and all financial or other information as Administrative and Collateral Agent may reasonably request relating to the Collateral and the assets, business and operations of Borrowers and Guarantors, and to notify the auditors and accountants of Borrowers and Guarantors that Administrative and Collateral Agent is authorized to obtain such information directly from them. Without limiting the foregoing, Borrowers shall furnish submit or cause to be furnished submitted to Administrative and Collateral Agent, the following: Bank (i) within thirty (30) days after the end of each fiscal month (or Borrower’s internally prepared quarterly financial statements on a consolidated and consolidating basis within forty-five (45) days if such fiscal month end is also a after the close of each fiscal quarter end)in each fiscal year, unaudited consolidated including a balance sheet as of the close of such period, an income statement, and such other statements containing financial information which Bank reasonably may require, prepared in accordance with GAAP and attested to by an authorized officer of Borrower; (ii) Borrower’s audited fiscal year-end financial statements (including in each case balance sheetsform, statements of income preparation and loss, statements of cash flow, substance acceptable to Bank) on a consolidated and statements of shareholders’ equity), all in reasonable detail, fairly presenting the financial position and the results of the operations of BlueLinx and its Subsidiaries as of the end of and through such fiscal month (or quarter), certified to be correct by the chief financial officer of BlueLinx, subject to normal year-end adjustments and lack of footnotes and, if a Compliance Period is then in effect, accompanied by a compliance certificate substantially in the form of Exhibit C hereto, along with a schedule in form reasonably satisfactory to Administrative and Collateral Agent of the calculations used in determining, as of the end of such month (or quarter), whether Borrowers were in compliance with the covenants set forth in Section 9.17 of this Agreement for such month (or quarter); and (ii) consolidating basis within ninety (90) days after the end close of each of its fiscal yearyears, audited consolidated financial statements of BlueLinx and its Subsidiaries (including in each case a balance sheets, statements of income and loss, statements of cash flow and statements of shareholders’ equity), and the accompanying notes thereto, all in reasonable detail, fairly presenting the financial position and the results of the operations of BlueLinx and its Subsidiaries sheet as of the end close of such period, an income statement, a reconciliation of stockholders’ equity, and for such fiscal yeara statement of cash flows, together with (A) the unqualified opinion of all certified by an independent certified public accountants, which accountants shall be an independent accounting firm selected by Borrowers and reasonably accountant acceptable to Administrative Bank and Collateral Agent, that such financial statements have been prepared analyzed in accordance with GAAP; (iii) each guarantor’s annual financial statements within ninety (90) days after the close of each of Borrower’s fiscal years; (iv) together with each delivery of financial statements required above, the compliance certificate of Borrower substantially in the form of Exhibit B hereto signed by a Responsible Officer of Borrower stating, among other things, that no event has occurred which constitutes an event of default or would constitute an event of default but for the requirement that notice be given, or time elapse or both, under any loans, notes, debentures, bonds, leases, or other obligations of Borrower then outstanding, including, but not limited to, this Credit Agreement (such certificate shall publish the accounting calculations used to determine compliance or noncompliance with Borrower’s financial obligations and financial covenants, including those provided in this Credit Agreement), or, if any such event of default or defaults exists, specifying the nature thereof; (v) if requested by Bank, copies of Borrower’s consolidated annual tax returns (and all related schedules, forms and attachments) within thirty (30) days following the filing thereof with the Internal Revenue Service; (vi) an annual budget of Borrower, in a monthly format (in form and content satisfactory to Bank in its sole discretion), consisting of a balance sheet and related statements of income, retained earnings, and present fairly cash flow, to be provided within thirty (30) days prior to the results year end for the upcoming year; (vii) an annual capital expenditure budget; and (viii) such other financial and related information when and as requested by Bank regarding Borrower, the Collateral and any endorser, guarantor or surety of operations and financial condition of BlueLinx and its Subsidiaries as any of the end Liabilities of and for the fiscal year then ended and (B) any management letters that may be issued with regard Borrower to the Borrowers or GuarantorsBank.
Appears in 1 contract
Samples: Revolving Credit and Security Agreement (Universal Power Group Inc.)
Financial Statements and Other Information. (a) Each Borrower and each Guarantor shallshall keep, and shall cause each of its and their Subsidiaries toto keep, keep proper books and records in which true and complete entries shall be made of all dealings or transactions of or in relation to the Collateral and the business of each Borrower, each Guarantor Borrower and each of their respective its Subsidiaries (if any) in accordance with GAAP. Borrowers GAAP and Guarantors shall promptly furnish to Administrative and Collateral Agent any and all financial or other information as Administrative and Collateral Agent may reasonably request relating to the Collateral and the assets, business and operations of Borrowers and Guarantors, and to notify the auditors and accountants of Borrowers and Guarantors that Administrative and Collateral Agent is authorized to obtain such information directly from them. Without limiting the foregoing, Borrowers Borrower shall furnish or cause to be furnished to Administrative and Collateral Agent, the followingLender: (i) within thirty (30) days after the end of each fiscal month (or within forty-five (45) days month, monthly unaudited consolidated financial statements, and, if such fiscal month end is also a fiscal quarter end)Borrower has any Subsidiaries, unaudited consolidated consolidating financial statements (including in each case balance sheets, statements of income and loss, statements of cash flow, and statements of shareholders’ ' equity), all in reasonable detail, fairly presenting the financial position and the results of the operations of BlueLinx Borrower and its Subsidiaries as of the end of and through such fiscal month (or quarter), certified to be correct by the chief financial officer of BlueLinx, subject to normal year-end adjustments and lack of footnotes and, if a Compliance Period is then in effect, accompanied by a compliance certificate substantially in the form of Exhibit C hereto, along with a schedule in form reasonably satisfactory to Administrative and Collateral Agent of the calculations used in determining, as of the end of such month (or quarter), whether Borrowers were in compliance with the covenants set forth in Section 9.17 of this Agreement for such month (or quarter)month; and (ii) within ninety (90) days after the end of each fiscal year, audited consolidated financial statements and, if Borrower has any Subsidiaries, unaudited consolidating financial statements of BlueLinx Borrower and its Subsidiaries (including in each case balance sheets, statements of income and loss, statements of cash flow and statements of shareholders’ ' equity), and the accompanying notes thereto, all in reasonable detail, fairly presenting the financial position and the results of the operations of BlueLinx Borrower and its Subsidiaries as of the end of and for such fiscal year, together with (A) the unqualified opinion of independent certified public accountants, which accountants shall be an independent accounting firm selected by Borrowers Borrower and reasonably acceptable to Administrative and Collateral AgentLender, that such financial statements have been prepared in accordance with GAAP, and present fairly the results of operations and financial condition of BlueLinx Borrower and its Subsidiaries as of the end of and for the fiscal year then ended ended; (iii) prior to the beginning of each fiscal year, budgeted financial statements prepared in substantially the form of and on the same basis as that prepared for 1997, which is attached hereto as Exhibit D (the "Budgeted Financial Statements"); and (Biv) any management letters that may be issued with regard as early as Borrower elects, a comparison of actual results of operations to the Borrowers or Guarantorsbudgeted income statements set forth in the Budgeted Financial Statements for the nine (9) month period ending September 30 of such year (the "Comparison Income Statement").
Appears in 1 contract
Financial Statements and Other Information. The Borrower will furnish to the Administrative Agent (for distribution to each Lender): (a) Each Borrower and each Guarantor shall, and shall cause each of its and their Subsidiaries to, keep proper books and records in which true and complete entries shall be made of all dealings or transactions of or in relation to the Collateral and the business of each Borrower, each Guarantor and each of their respective Subsidiaries in accordance with GAAP. Borrowers and Guarantors shall promptly furnish to Administrative and Collateral Agent any and all financial or other information as Administrative and Collateral Agent may reasonably request relating to the Collateral and the assets, business and operations of Borrowers and Guarantors, and to notify the auditors and accountants of Borrowers and Guarantors that Administrative and Collateral Agent is authorized to obtain such information directly from them. Without limiting the foregoing, Borrowers shall furnish or cause to be furnished to Administrative and Collateral Agent, the following: (i) within thirty (30) days after the end of each fiscal month (or within forty-five (45) days if such fiscal month end is also a fiscal quarter end), unaudited consolidated financial statements (including in each case balance sheets, statements of income and loss, statements of cash flow, and statements of shareholders’ equity), all in reasonable detail, fairly presenting the financial position and the results of the operations of BlueLinx and its Subsidiaries as of the end of and through such fiscal month (or quarter), certified to be correct by the chief financial officer of BlueLinx, subject to normal year-end adjustments and lack of footnotes and, if a Compliance Period is then in effect, accompanied by a compliance certificate substantially in the form of Exhibit C hereto, along with a schedule in form reasonably satisfactory to Administrative and Collateral Agent of the calculations used in determining, as of the end of such month (or quarter), whether Borrowers were in compliance with the covenants set forth in Section 9.17 of this Agreement for such month (or quarter); and (ii) within ninety (90) days after the end of each fiscal yearyear of the Borrower (or such longer period permitted pursuant to any orders, declarations, laws, regulations or letters issued by the SEC or any other government or regulatory authority, not to exceed one hundred twenty (120) days after the end of each fiscal year of the Borrower), the audited consolidated financial statements statement of BlueLinx assets and liabilities, statement of operations, statement of changes in net assets, statement of cash flows and schedule of investments of the Borrower and its Subsidiaries (including in each case balance sheets, statements of income and loss, statements of cash flow and statements of shareholders’ equity), and the accompanying notes thereto, all in reasonable detail, fairly presenting the financial position and the results of the operations of BlueLinx and its consolidated Subsidiaries as of the end of and for such fiscal year, setting forth in each case in comparative form the figures for the previous fiscal year, all certified by independent public accountants of recognized national standing together with (A) the unqualified an opinion of independent certified public accountants, which accountants shall be an independent such accounting firm selected by Borrowers and reasonably acceptable to Administrative and Collateral Agent, that such consolidated financial statements have been prepared present 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 GAAPGAAP consistently (except as disclosed therein) applied; provided that the requirements set forth in this clause (a) may be fulfilled by providing to the Administrative Agent the report of the Borrower to the SEC on Form 10-K for the applicable fiscal year; (b) within forty five (45) days after the end of each of the first three (3) fiscal quarters of the Borrower (or such longer period permitted pursuant to any orders, declarations, laws, regulations or letters issued by the SEC or any other government or regulatory authority, not to exceed seventy-five (75) days after the end of each of the first three (3) fiscal quarters of each fiscal year of the Borrower), the consolidated statement of assets and present fairly liabilities, statement of operations, statement of changes in net assets, statement of cash flows and schedule of investments of the results of operations and financial condition of BlueLinx Borrower and its consolidated Subsidiaries as of the end of and for such fiscal quarter and the then elapsed portion of the fiscal year then ended year, setting forth in each case in comparative form the figures for (or, in the case of the balance sheet, statements of operations, statement of changes in net assets, statement of cash flows and schedule of investments, as of the end of) the corresponding period or periods of the previous fiscal year, all certified by a Financial Officer of the Borrower 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 (except as disclosed therein) applied, subject to year-end audit adjustments, the absence of footnotes and as otherwise described therein; provided that the requirements set forth in this clause (b) may be fulfilled by providing to the Administrative Agent the report of the Borrower to the SEC on Form 10-Q for the applicable quarterly period; (c) concurrently with any delivery of financial statements under clause (a) or (b) of this Section 5.01, a certificate of a Financial Officer of the Borrower (i) certifying as to whether the Borrower has knowledge that a Default or Event of Default has occurred and is continuing with respect to the Borrower during the applicable period and, if a Default or Event of Default has occurred and is continuing with respect to the Borrower during the most recent period covered by such financial statements (or has occurred and is continuing from a prior period), specifying the details thereof and any action taken or proposed to be taken with respect thereto, (ii) setting forth reasonably detailed calculations demonstrating compliance with Sections 6.01, 6.02, 6.04 and 6.07 and (Biii) stating whether any management letters change in GAAP as applied by (or in the application of GAAP by) the Borrower has occurred since the Effective Date (but only if the Borrower has not previously reported such change to the Administrative Agent and if such change has had a material effect on the financial statements or to the extent not previously disclosed on a Form 10-K or Form 10Q previously filed with the SEC), and, if any such change has occurred, specifying the effect (unless such effect has been previously reported), as determined by the Borrower, of such change on the financial statements accompanying such certificate; provided that the requirements set forth in this clause (c)(iii) may be issued with regard fulfilled by providing to the Borrowers or Guarantors.Administrative Agent the report of the Borrower to the SEC on Form 10-Q for the applicable quarterly period; (d) as soon as available and in any event not later than twenty (20) days after the end of each monthly accounting period (ending on the last day of each calendar month) of the Borrower and its Subsidiaries, a Borrowing Base Certificate as at the last day of such accounting period;
Appears in 1 contract
Samples: Secured Revolving Credit Agreement (Nuveen Churchill Direct Lending Corp.)
Financial Statements and Other Information. (a) Each The Borrower and each the Parent Guarantor shall, and shall cause each of its and their Subsidiaries to, keep proper books and records in which true and complete entries shall be made of all dealings or transactions of or in relation will furnish to the Collateral and the business of Administrative Agent for distribution to each Borrower, each Guarantor and each of their respective Subsidiaries in accordance with GAAP. Borrowers and Guarantors shall promptly furnish to Administrative and Collateral Agent any and all financial or other information as Administrative and Collateral Agent may reasonably request relating to the Collateral and the assets, business and operations of Borrowers and Guarantors, and to notify the auditors and accountants of Borrowers and Guarantors that Administrative and Collateral Agent is authorized to obtain such information directly from them. Without limiting the foregoing, Borrowers shall furnish or cause to be furnished to Administrative and Collateral Agent, the followingLender: (ia)(i) prior to a Qualified Change of Control, within thirty (30) 90 days after the end of each fiscal month year of the Parent Guarantor, (x) the audited consolidated balance sheet and related statements of income, changes in Shareholders’ Equity and cash flows of the Parent Guarantor and its consolidated Subsidiaries as of the end of and for such year, setting forth in comparative form the figures for the previous fiscal year, all reported on 55 by Xxxxx Xxxxxxxx LLP or other independent public accountants of recognized national standing to the effect that such consolidated financial statements present fairly in all material respects the financial condition and results of operations of the Parent Guarantor and its consolidated Subsidiaries on a consolidated basis in accordance with GAAP consistently applied; provided that the requirements set forth in this clause (a)(i) with respect to the Parent Guarantor may be fulfilled by providing to the Administrative Agent for distribution to the Lenders the report filed by the Parent Guarantor with the SEC on Form 10-K for the applicable fiscal year, and (y) within 90 days after the end of each fiscal year of the Borrower, the audited consolidated balance sheet and related statements of income, changes in Shareholders’ Equity of the Borrower and its consolidated Subsidiaries as of the end of and for such year, setting forth in comparative form the figures for the previous fiscal year, all certified by a Financial Officer of the Borrower, 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 the absence of footnotes, and (ii) after a Qualified Change of Control, within 90 days after the end of each fiscal year of the Borrower, the audited consolidated balance sheet and related statements of operations, assets and liabilities, changes in Shareholders’ Equity and cash flows of the Borrower and its consolidated Subsidiaries as of the end of and for such year, setting forth in comparative form the figures for the previous fiscal year, all reported on by Xxxxx Xxxxxxxx LLP or other independent public accountants of recognized national standing to the effect that such consolidated financial statements present fairly in all material respects the financial condition and results of operations of the Borrower and its consolidated Subsidiaries on a consolidated basis in accordance with GAAP consistently applied; provided that the requirements set forth in this clause (a)(ii) with respect to the Borrower may be fulfilled by providing to the Administrative Agent for distribution to the Lenders the report filed by the Borrower with the SEC on Form 10-K for the applicable fiscal year; (b)within 45 days after the end of each of the first three fiscal quarters of each fiscal year of the Borrower and the Parent Guarantor, the consolidated balance sheet and related statements of income or operations, assets and liabilities, as applicable, changes in Shareholders’ Equity and cash flows of the Borrower, the Parent Guarantor and their respective consolidated Subsidiaries as of the end of and for such fiscal quarter and the then elapsed portion of the fiscal year, setting forth in each case in comparative form the figures for (or, in the case of the balance sheet, as of the end of) the corresponding period or periods of the previous fiscal year, all certified by a Financial Officer of the Borrower or the Parent Guarantor, as applicable, as presenting fairly in all material respects the financial condition and results of operations of the Borrower, the Parent Guarantor and their consolidated Subsidiaries on a consolidated basis in accordance with GAAP consistently applied, subject to normal year-end audit adjustments and the absence of footnotes; provided that the requirements set forth in this clause (b) with respect to the Parent Guarantor (and after a Qualified Change of Control, of the Borrower) may be fulfilled by providing to the Administrative Agent for distribution to the Lenders the report filed by the Parent Guarantor (and after a Qualified Change of Control, of the Borrower) with the SEC on Form 10-Q for the applicable quarterly period; 56 (c)concurrently with any delivery of financial statements under clause (a) or (b) of this Section, a certificate of a Financial Officer of the Borrower or the Parent Guarantor, as applicable (i) certifying as to whether the Borrower or the Parent Guarantor, as applicable, has knowledge that a Default has occurred or is occurring during the applicable period and, if a Default has occurred or is occurring, specifying the details thereof and any action taken or proposed to be taken with respect thereto, (ii) setting forth reasonably detailed calculations demonstrating compliance with Sections 6.01(b) and (g), 6.02(d), 6.04(d), 6.05(b) and (e) and 6.07 and (iii) to the extent not previously disclosed on a Form 10-K or Form 10-Q previously filed by the Parent Guarantor with the SEC, stating whether any change in GAAP as applied by (or within in the application of GAAP by) the Borrower or the Parent Guarantor, as applicable, 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 as determined by the Borrower or the Parent Guarantor, as applicable, of such change on the financial statements accompanying such certificate; (d)as soon as available and in any event not later than the last Business Day of the calendar month following each monthly accounting period (ending on the last day of each calendar month) of the Borrower, a Borrowing Base Certificate as at the last day of such accounting period presenting the Borrower’s computation (and including the rationale for any industry reclassification and a comparison to show changes from the Borrowing Base Certificate from the immediately prior period) and including a certification of a Financial Officer as to compliance with Section 6.03(d) and 6.04(d) during the period covered by such Borrowing Base Certificate; (e)promptly but no later than five Business Days after the Borrower shall at any time have knowledge that there is a Borrowing Base Deficiency, a Borrowing Base Certificate as at the date the Borrower has knowledge of such Borrowing Base Deficiency indicating the amount of the Borrowing Base Deficiency as at the date the Borrower obtained knowledge of such deficiency and the amount of the Borrowing Base Deficiency as of the date not earlier than one Business Day prior to the date the Borrowing Base Certificate is delivered pursuant to this paragraph; (f)promptly upon receipt thereof, copies of (x) all significant and non-routine reports and (y) reports stating that material weaknesses exist in the Borrower’s or the Parent Guarantor’s internal controls or procedures or any other matter that could reasonably be expected to result in a Material Adverse Effect submitted to management or the board of directors of Borrower or the Parent Guarantor by the Borrower’s or the Parent Guarantor’s independent public accountants in connection with each annual, interim or special audit or review of any type of the financial statements or related internal control systems of the Borrower or any of its Subsidiaries or of the Parent Guarantor delivered by such accountants to the management or board of directors of the Borrower or the Parent Guarantor; (g)[Reserved]; 57 (h)promptly following any request therefor, such other information regarding the operations, business affairs and financial condition of the Borrower or any of its Subsidiaries or of the Parent Guarantor, or compliance with the terms of this Agreement and the other Loan Documents, as the Administrative Agent or any Lender may reasonably request; (i)within 45 days after the end of each fiscal quarter of the Borrower and upon the request of any Lender, all external valuation reports relating to the Portfolio Investments delivered by the Approved Third-Party Appraiser in connection with the quarterly appraisals of Unquoted Investments (provided that any recipient of such reports executes and delivers any non-reliance letter, release, confidentiality agreement or similar agreements required by such Approved Third-Party Appraiser); (j)within 45 days after the end of each fiscal quarter of the Borrower and upon the request of any Lender, any report that the Borrower receives from the Custodian listing the Portfolio Investments, as of the end of such fiscal quarter, held in the Collateral Account; provided that the Borrower shall use its commercially reasonable efforts to cause the Custodian to provide such report; (k)within forty-five (45) days if such fiscal month end is also a fiscal quarter end), unaudited consolidated financial statements (including in each case balance sheets, statements of income and loss, statements of cash flow, and statements of shareholders’ equity), all in reasonable detail, fairly presenting the financial position and the results of the operations of BlueLinx and its Subsidiaries as of after the end of and through such the first three (3) fiscal month (or quarter), certified to be correct by the chief financial officer quarters of BlueLinx, subject to normal year-end adjustments and lack of footnotes and, if a Compliance Period is then in effect, accompanied by a compliance certificate substantially in the form of Exhibit C hereto, along with a schedule in form reasonably satisfactory to Administrative and Collateral Agent each fiscal year of the calculations used in determining, as of the end of such month (or quarter), whether Borrowers were in compliance with the covenants set forth in Section 9.17 of this Agreement for such month (or quarter); Borrower and (ii) within ninety (90) days after the end of each fiscal yearyear of the Borrower, audited consolidated financial statements a schedule setting forth in reasonable detail with respect to each Portfolio Investment where there has been a realized gain or loss in the most recently completed fiscal quarter, (i) the cost basis of BlueLinx and its Subsidiaries such Portfolio Investment, (including in each case balance sheets, statements ii) the proceeds received with respect to such Portfolio Investment representing repayments of income and loss, statements of cash flow and statements of shareholders’ equity)principal during the most recently ended fiscal quarter, and (iii) any other amounts received with respect to such Portfolio Investment representing exit fees or prepayment penalties during the accompanying notes theretomost recently ended fiscal quarter; (l)within forty-five (45) days after the end of the first three (3) fiscal quarters of each fiscal year of the Borrower and ninety (90) days after the end of each fiscal year of the Borrower, all a schedule setting forth in reasonable detaildetail with respect to each Portfolio Investment, fairly presenting (i) the financial position aggregate amount of all capitalized paid-in-kind interest for such Portfolio Investment during the most recently ended fiscal quarter and (ii) the results aggregate amount of all paid-in-kind interest collected during the most recently ended fiscal quarter; (m)within forty-five (45) days after the end of the operations first three (3) fiscal quarters of BlueLinx each fiscal year of the Borrower and its Subsidiaries ninety (90) days after the end of each fiscal year of the Borrower, a schedule setting forth in reasonable detail with respect to each Portfolio Investment, (i) the amortized cost of each Portfolio Investment as of the end of and for such fiscal yearquarter, together with (Aii) the unqualified opinion fair market value of independent certified public accountants, which accountants shall be an independent accounting firm selected by Borrowers and reasonably acceptable to Administrative and Collateral Agent, that such financial statements have been prepared in accordance with GAAP, and present fairly the results of operations and financial condition of BlueLinx and its Subsidiaries each Portfolio Investment as of the end of such fiscal quarter, and for (iii) the unrealized gains or losses as of the end of such fiscal quarter; and (n)within forty-five (45) days after the end of the first three (3) fiscal quarters of each fiscal year then of the Borrower and ninety (90) days after the end of each fiscal year 58 of the Borrower, a schedule setting forth in reasonable detail with respect to each Portfolio Investment the change in unrealized gains and losses for such quarter. Such schedule will report the change in unrealized gains and losses by Portfolio Investment by showing the unrealized gain or loss for each Portfolio Investment as of the last day of the preceding fiscal quarter compared to the unrealized gain or loss for such Portfolio Investment as of the last day of the most recently ended fiscal quarter. Notwithstanding anything in this Section 5.01 to the contrary, the Borrower and the Parent Guarantor shall be deemed to have satisfied the requirements of this Section 5.01 (other than Sections 5.01(c), (d) and (Be)) if the reports, documents and other information of the type otherwise so required are publicly available when required to be filed on XXXXX at the xxx.xxx.xxx website or any management letters that may be issued with regard successor service provided by the Securities and Exchange Commission, provided notice of such availability is provided to the Borrowers Administrative Agent at or Guarantorsprior to the time period required by this Section 5.01. SECTION 5.02.
Appears in 1 contract
Samples: www.sec.gov
Financial Statements and Other Information. The Borrowers will furnish to the Agent: (a) Each Borrower as soon as available and each Guarantor shall, and shall cause each of its and their Subsidiaries to, keep proper books and records in which true and complete entries shall be made of all dealings or transactions of or in relation to the Collateral and the business of each Borrower, each Guarantor and each of their respective Subsidiaries in accordance with GAAP. Borrowers and Guarantors shall promptly furnish to Administrative and Collateral Agent any and all financial or other information as Administrative and Collateral Agent may reasonably request relating to the Collateral and the assets, business and operations of Borrowers and Guarantors, and to notify the auditors and accountants of Borrowers and Guarantors that Administrative and Collateral Agent is authorized to obtain such information directly from them. Without limiting the foregoing, Borrowers shall furnish or cause to be furnished to Administrative and Collateral Agent, the following: (i) within thirty (30) days after the end of each fiscal month (or within forty-five (45) days if such fiscal month end is also a fiscal quarter end), unaudited consolidated financial statements (including in each case balance sheets, statements of income and loss, statements of cash flow, and statements of shareholders’ equity), all in reasonable detail, fairly presenting the financial position and the results of the operations of BlueLinx and its Subsidiaries as of the end of and through such fiscal month (or quarter), certified to be correct by the chief financial officer of BlueLinx, subject to normal year-end adjustments and lack of footnotes and, if a Compliance Period is then in effect, accompanied by a compliance certificate substantially in the form of Exhibit C hereto, along with a schedule in form reasonably satisfactory to Administrative and Collateral Agent of the calculations used in determining, as of the end of such month (or quarter), whether Borrowers were in compliance with the covenants set forth in Section 9.17 of this Agreement for such month (or quarter); and (ii) event within ninety (90) days after the end of each fiscal yearyear of the Parent Borrower, the audited consolidated financial balance sheet and related statements of BlueLinx earnings, shareholders’ equity and cash flows of the Parent Borrower and its Subsidiaries (including together with an unaudited reconciliation, reflecting total assets, Inventory, capital expenditures and cash for the Parent Borrower and its Subsidiaries, on the one hand, and the Specified Subsidiaries, on the other hand) as of the end of and for such year, setting forth in each case in comparative form the figures for the previous fiscal year, all reported on by KPMG LLP or another independent registered public accounting firm of recognized national standing (without a “going concern” or like qualification or exception and without any qualification or exception as to the scope of such audit) to the effect that such consolidated financial statements present fairly, in all material respects, the financial condition and results of operations and cash flows of the Parent Borrower and its Subsidiaries on a consolidated basis in accordance with GAAP; (b) as soon as available and in any event within forty-five (45) days after the end of each of the first three fiscal quarters of each fiscal year of the Parent Borrower, the consolidated balance sheets, sheet and related statements of income and lossearnings, statements of cash flow and statements of shareholders’ equity)equity and cash flows of the Parent Borrower and its Subsidiaries (together with an unaudited reconciliation, reflecting total assets, Inventory, capital expenditures and cash for the Parent Borrower and its Subsidiaries, on the one hand, and the accompanying notes theretoSpecified Subsidiaries, all in reasonable detail, fairly presenting on the financial position and the results of the operations of BlueLinx and its Subsidiaries other hand) as of the end of and for such fiscal quarter and the then elapsed portion of the fiscal year, together with setting forth in each case in comparative form the figures for (Aor, in the case of the balanc e sheet, as of the end of) the unqualified opinion corresponding period or periods of independent the previous fiscal year, all certified public accountantsby a Financial Officer of the Parent Borrower as presenting fairly, which accountants shall be an independent accounting firm selected by Borrowers in all material respects, the financial condition and reasonably acceptable to Administrative results of operations and Collateral Agent, that such financial statements have been prepared cash flows of the Parent Borrower and its Subsidiaries on a consolidated basis in accordance with GAAP, subject to normal year-end audit adjustments and present fairly the results absence of operations and certain footnotes; (c) concurrently with any delivery of financial condition statements under clause (a) or (b) of BlueLinx and its Subsidiaries as this Section, a certificate executed by a Financial Officer of the end Parent Borrower (i) certifying as to whether, to the best knowledge of such Financial Officer (following due inquiry), a Default has occurred and, if a Default has occurred, specifying the details thereof and for the fiscal year then ended any action taken or proposed to be taken with respect thereto, (ii) setting forth reasonably detailed calculations demonstrating compliance with Section 7.08 (if a Trigger Period is in effect) and (Biii) stating whether any management letters that may be issued with regard to change in GAAP or in the Borrowers or Guarantors.application thereof has occurred since the date of the Parent
Appears in 1 contract
Samples: Credit Agreement (Dillard's, Inc.)
Financial Statements and Other Information. (a) Each Borrower and each Guarantor shall, and shall cause each of its and their Subsidiaries to, keep proper books and records in which true and complete entries shall be made of all dealings or transactions of or in relation to the Collateral and the business businesses of each BorrowerBorrowers, each Guarantor Guarantors and each of their respective Subsidiaries (if any) in accordance with GAAP. GAAP and Borrowers and Guarantors shall promptly furnish to Administrative and Collateral Agent any and all financial or other information as Administrative and Collateral Agent may reasonably request relating to the Collateral and the assets, business and operations of Borrowers and Guarantors, and to notify the auditors and accountants of Borrowers and Guarantors that Administrative and Collateral Agent is authorized to obtain such information directly from them. Without limiting the foregoing, Borrowers shall furnish or cause to be furnished to Administrative and Collateral Agent, the following: (i) within thirty thirty-five (3035) days after the end of each fiscal month (or within forty-five (45) days if such fiscal month end is also a fiscal quarter end)month, monthly unaudited consolidated and consolidating financial statements of Administrative Borrower and its Subsidiaries (including in each case balance sheets, statements of income and loss, statements of cash flow, and statements of shareholders’ equitydepreciation and amortization, capital expenditures and debt reduction), all in reasonable detail, fairly presenting the financial position and the results of the operations of BlueLinx Administrative Borrower and its Subsidiaries as of the end of and through such fiscal month (or quarter)month, certified to be correct by the chief financial officer of BlueLinxAdministrative Borrower, subject to normal year-end adjustments adjustments, and lack of footnotes and, if a Compliance Period is then in effect, accompanied by a compliance certificate substantially in the form of Exhibit C B hereto, along with a schedule in form reasonably satisfactory to Administrative and Collateral Agent of the calculations used in determining, as of the end of such month (or quarter)month, whether Borrowers were in compliance with the covenants set forth in Sections 9.10(n) and (p) and Section 9.17 9.13 of this Agreement for such month month, (or ii) within forty-five (45) days after the end of each fiscal quarter, quarterly unaudited consolidated financial statements of Administrative Borrower and its Subsidiaries (including balance sheet, statement of income and loss and statement of cash flow); , all in reasonable detail, fairly presenting the financial position and the results of operations of Administrative Borrower and its Subsidiaries as of the end of and through such fiscal quarter, subject to normal year-end adjustments, and (iiiii) within ninety (90) days after the end of each fiscal year, audited consolidated financial statements of BlueLinx Administrative Borrower and its Subsidiaries (including in each case balance sheetssheet, statements statement of income and loss, statements statement of cash flow and statements of shareholders’ equity), and the accompanying notes thereto, all in reasonable detail, fairly presenting the financial position and the results of the operations of BlueLinx Administrative Borrower and its Subsidiaries as of the end of and for such fiscal year, together with (A) the unqualified opinion of independent certified public accountants, which accountants shall be an independent accounting firm selected by Borrowers Administrative Borrower and reasonably acceptable to Administrative and Collateral Agent, that such audited financial statements have been prepared in accordance with GAAP, and present fairly the results of operations and financial condition of BlueLinx Administrative Borrower and its Subsidiaries as of the end of and for the fiscal year then ended ended; provided, that, notwithstanding anything contained in this Section 9.6(a) to the contrary, Borrowers hereby agree that they shall deliver the audited consolidated financial statements and associated documentation that would otherwise be required under Clause (a)(iii) above (A) for the 2006 fiscal year, on or before December 31, 2008, (B) for the 2007 fiscal year, on or before March 31, 2009, and (C) for the 2008 fiscal year, on or before June 30, 2009, and the Agent and Lenders agree that the failure of Borrowers to deliver any management letters that may be issued with regard such audited consolidated financial statements and associated documentation prior to the Borrowers or Guarantorsapplicable date set forth in this proviso shall not constitute an Event of Default hereunder. Notwithstanding the foregoing, prior to the time Administrative Borrower completes its 2008 audit, the financial statements and other information provided under this Section 9.6(a) shall be subject to adjustments pertaining to the restatement of the Administrative Borrower’s financial statements.
Appears in 1 contract
Samples: Loan and Security Agreement (Bell Microproducts Inc)
Financial Statements and Other Information. The Borrowers will furnish to the Agent: (a) Each Borrower as soon as available and each Guarantor shall, and shall cause each of its and their Subsidiaries to, keep proper books and records in which true and complete entries shall be made of all dealings or transactions of or in relation to the Collateral and the business of each Borrower, each Guarantor and each of their respective Subsidiaries in accordance with GAAP. Borrowers and Guarantors shall promptly furnish to Administrative and Collateral Agent any and all financial or other information as Administrative and Collateral Agent may reasonably request relating to the Collateral and the assets, business and operations of Borrowers and Guarantors, and to notify the auditors and accountants of Borrowers and Guarantors that Administrative and Collateral Agent is authorized to obtain such information directly from them. Without limiting the foregoing, Borrowers shall furnish or cause to be furnished to Administrative and Collateral Agent, the following: (i) within thirty (30) days after the end of each fiscal month (or within forty-five (45) days if such fiscal month end is also a fiscal quarter end), unaudited consolidated financial statements (including in each case balance sheets, statements of income and loss, statements of cash flow, and statements of shareholders’ equity), all in reasonable detail, fairly presenting the financial position and the results of the operations of BlueLinx and its Subsidiaries as of the end of and through such fiscal month (or quarter), certified to be correct by the chief financial officer of BlueLinx, subject to normal year-end adjustments and lack of footnotes and, if a Compliance Period is then in effect, accompanied by a compliance certificate substantially in the form of Exhibit C hereto, along with a schedule in form reasonably satisfactory to Administrative and Collateral Agent of the calculations used in determining, as of the end of such month (or quarter), whether Borrowers were in compliance with the covenants set forth in Section 9.17 of this Agreement for such month (or quarter); and (ii) event within ninety (90) days after the end of each fiscal yearyear of the Parent Borrower, the audited consolidated financial balance sheet and related statements of BlueLinx earnings, shareholders’ equity and cash flows of the Parent Borrower and its Subsidiaries (including together with an unaudited reconciliation, reflecting total assets, Inventory, capital expenditures and cash for the Parent Borrower and its Subsidiaries, on the one hand, and the Specified Subsidiaries, on the other hand) as of the end of and for such year, setting forth in each case in comparative form the figures for the previous fiscal year, all reported on by KPMG LLP or another independent registered public accounting firm of recognized national standing (without a “going concern” or like qualification or exception and without any qualification or exception as to the scope of such audit) to the effect that such consolidated financial statements present fairly, in all material respects, the financial condition and results of operations and cash flows of the Parent Borrower and its Subsidiaries on a consolidated basis in accordance with GAAP; (b) as soon as available and in any event within forty-five (45) days after the end of each of the first three fiscal quarters of each fiscal year of the Parent Borrower, the consolidated balance sheets, sheet and related statements of income and lossearnings, statements of cash flow and statements of shareholders’ equity)equity and cash flows of the Parent Borrower and its Subsidiaries (together with an unaudited reconciliation, reflecting total assets, Inventory, capital expenditures and cash for the Parent Borrower and its Subsidiaries, on the one hand, and the accompanying notes theretoSpecified Subsidiaries, on the other hand) as of the end of and for such fiscal quarter and the then elapsed portion of the fiscal year, setting forth in each case in comparative form the figures for (or, in the case of the balance sheet, as of the end of) the corresponding period or periods of the previous fiscal year, all certified by a Financial Officer of the Parent Borrower as presenting fairly, in reasonable detailall material respects, fairly presenting the financial position condition and the results of operations and cash flows of the operations of BlueLinx Parent 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; (c) concurrently with any delivery of financial statements under clause (a) or (b) of this Section, a certificate executed by a Financial Officer of the Parent Borrower (i) certifying as to whether, to the best knowledge of such Financial Officer (following due inquiry), 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, (ii) setting forth reasonably detailed calculations demonstrating compliance with Section 7.08 (if a Trigger Period is in effect) and (iii) stating whether any change in GAAP or in the application thereof has occurred since the date of the Parent 100 Borrower’s audited financial statements referred to in Section 4.04 and, if any such change has occurred, specifying the effect of such change on the financial statements accompanying such certificate; (d) within forty-five (45) days after the commencement of each fiscal year of the Parent Borrower, a detailed consolidated budget by quarter for such fiscal year (including a projected consolidated balance sheet and related statements of projected operations and cash flow as of the end of and for such fiscal year) and, together promptly when available, any significant revisions of such budget; (e) within five (5) days after the end of each month, a certificate in the form of Exhibit D or any other form reasonably acceptable to the Agent (a “Borrowing Base Certificate”) showing the Borrowing Base as of the close of business on the last day of the immediately preceding month and supporting information reasonably requested by the Agent in connection therewith, each such Borrowing Base Certificate to be certified as complete and correct on behalf of the Borrowers by a Financial Officer of the Parent Borrower; provided, that, at any time an Activation Period exists, a Borrowing Base Certificate (showing the Borrowing Base as of the close of business on the last day of the immediately preceding week) shall be furnished weekly on Wednesday of each week; (f) promptly after the same become publicly available, copies of all periodic and other reports, proxy statements and other materials filed by the Parent Borrower 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, as the case may be; (Ag) promptly upon receipt thereof, copies of all reports submitted to the unqualified opinion of Parent Borrower by independent certified public accountants in connection with each annual, interim or special audit of the books of the Parent Borrower and its Subsidiaries made by such accountants, which including any management letter commenting on the Borrowers’ internal controls submitted by such accountants to management in connection with their annual audit; (h) promptly (but in any event within two (2) Business Days) after delivering any Borrowing Base Certificate pursuant to Section 6.01(e), the Parent Borrower shall be an independent accounting firm selected by notify the Administrative Agent of the Consolidated Cash Balance as the close of business on the date such Borrowing Base Certificate was delivered and whether the Borrowers are required to make a payment pursuant to Section 2.21(c); and reasonably acceptable to Administrative and Collateral Agent(i) promptly following any request therefor, that (i) such financial statements have been prepared other information regarding the operations, changes in accordance with GAAPownership of Equity Interests, and present fairly the results of operations business affairs and financial condition of BlueLinx and its Subsidiaries any Borrower or any Subsidiary, or compliance with the terms of this Agreement or any other Loan Document, as of the end of and for the fiscal year then ended Agent or any Lender may reasonably request, and (Bii) information and documentation reasonably requested by the Agent or any management letters that may be issued Lender for purposes of compliance with regard to applicable “know your customer” and anti-money laundering rules and regulations, including the Borrowers or Guarantors.USA PATRIOT Act and the Beneficial Ownership Regulation. 101
Appears in 1 contract
Samples: Credit Agreement (Dillard's, Inc.)
Financial Statements and Other Information. (a) Each Borrower and each Guarantor shall, and shall cause each of its and their Subsidiaries to, keep proper books and records in which true and complete entries shall be made of all dealings or transactions of or in relation to the Collateral and the business of each Borrower, each Guarantor Parent and each of their respective its Recourse Subsidiaries (if any) in accordance with GAAP. Borrowers GAAP and Guarantors shall promptly furnish to Administrative and Collateral Agent any and all financial or other information as Administrative and Collateral Agent may reasonably request relating to the Collateral and the assets, business and operations of Borrowers and Guarantors, and to notify the auditors and accountants of Borrowers and Guarantors that Administrative and Collateral Agent is authorized to obtain such information directly from them. Without limiting the foregoing, Borrowers Borrower shall furnish or cause to be furnished to Administrative and Collateral Agent, the followingLender: (i) within thirty forty-five (3045) days after the end of each fiscal month (or within forty-five (45) days if such fiscal month end is also a fiscal quarter end)month, monthly unaudited consolidated financial statements (including in each case statements, and unaudited consolidating balance sheets, statements of income and loss, statements of cash flow, and statements of shareholders’ equity), all in reasonable detail, fairly presenting the financial position and the results of the operations of BlueLinx Parent and its Recourse Subsidiaries as of the end of and through such fiscal month (or quarter), certified to be correct by the chief financial officer of BlueLinx, subject to normal year-end adjustments and lack of footnotes and, if a Compliance Period is then in effect, accompanied by a compliance certificate substantially in the form of Exhibit C hereto, along with a schedule in form reasonably satisfactory to Administrative and Collateral Agent of the calculations used in determining, as of the end of such month (or quarter), whether Borrowers were in compliance with the covenants set forth in Section 9.17 of this Agreement for such month (or quarter); and (ii) within ninety forty-five (9045) days after the end of each fiscal yearquarter, audited unaudited consolidated financial statements of BlueLinx and its Subsidiaries (including in each case balance sheets, statements of income and loss, statements of cash flow and statements of shareholders’ equity), and the accompanying notes thereto, all in reasonable detail, fairly presenting the financial position and the results of the operations of BlueLinx Parent and its Recourse Subsidiaries as of the end of and for such fiscal quarter and (iii) within ninety (90) days after the end of each fiscal year, audited consolidated financial statements (including balance sheets, statements of income and loss, statements of cash flow and statements of shareholders’ equity), and the accompanying notes thereto, all in reasonable detail, fairly presenting the financial position and the results of the operations of Parent and its Recourse Subsidiaries as of the end of and for such fiscal year, together with (A) the unqualified opinion of independent certified public accountants, which accountants shall be an independent accounting firm selected by Borrowers Borrower and reasonably acceptable to Administrative and Collateral AgentLender, that such financial statements have been prepared in accordance with GAAP, and present fairly the results of operations and financial condition of BlueLinx Parent and its Recourse Subsidiaries as of the end of and for the fiscal year then ended ended. (b) Borrower shall promptly notify Lender in writing of the details of (i) any loss, damage, investigation, action, suit, proceeding or claim relating to the Collateral or any other property which is security for the Obligations or which is in excess of $250,000 and (Bii) the occurrence of any management letters that Event of Default. (c) Borrower shall promptly after the sending or filing thereof furnish or cause to be furnished to Lender copies of all reports which Parent sends to its stockholders generally and copies of all reports and registration statements which Borrower files with the Securities and Exchange Commission, any national securities exchange or the National Association of Securities Dealers, Inc. Page 57 (d) Borrower shall furnish or cause to be furnished to Lender such budgets, forecasts, projections and other information respecting the Collateral and the business of Borrower, as Lender may, from time to time, reasonably request. Lender is hereby authorized to deliver a copy of any financial statement or any other information relating to the business of Borrower to any court or other government agency or to any participant or assignee or prospective participant or assignee as permitted by Section 12.4 below. Any documents, schedules, invoices or other papers delivered to Lender may be issued with regard destroyed or otherwise disposed of by Lender one (1) year after the same are delivered to the Borrowers or Guarantors.Lender, except as otherwise designated by Borrower to Lender in writing. 9.7
Appears in 1 contract
Financial Statements and Other Information. (a) Each Borrower and each Guarantor shall, and shall cause each of its and their Subsidiaries to, keep proper books and records in which true and complete entries shall be made of all dealings or transactions of or in relation to the Collateral and the business of each Borrower, each Guarantor Borrower and each of their respective its Subsidiaries (if any) in accordance with GAAP. Borrowers GAAP and Guarantors shall promptly furnish to Administrative and Collateral Agent any and all financial or other information as Administrative and Collateral Agent may reasonably request relating to the Collateral and the assets, business and operations of Borrowers and Guarantors, and to notify the auditors and accountants of Borrowers and Guarantors that Administrative and Collateral Agent is authorized to obtain such information directly from them. Without limiting the foregoing, Borrowers Borrower shall furnish or cause to be furnished to Administrative and Collateral Agent, the following: (i) within thirty (30) days after the end of each fiscal month (or within forty-five (45) days month, monthly unaudited consolidated financial statements, and, if such fiscal month end is also a fiscal quarter end)Borrower has any Subsidiaries, unaudited consolidated consolidating financial statements (including in each case balance sheets, statements of income and loss, statements of cash flow, flow and statements of shareholders’ ' equity), all in reasonable detail, fairly presenting the financial position and the results of the operations of BlueLinx Borrower and its Subsidiaries as of the end of and through such fiscal month (or quarter), certified to be correct by the chief financial officer of BlueLinx, subject to normal year-end adjustments and lack of footnotes and, if a Compliance Period is then in effect, accompanied by a compliance certificate substantially in the form of Exhibit C hereto, along with a schedule in form reasonably satisfactory to Administrative and Collateral Agent of the calculations used in determining, as of the end of such month (or quarter), whether Borrowers were in compliance with the covenants set forth in Section 9.17 of this Agreement for such month (or quarter); and (ii) within ninety (90) days after the end of each fiscal year, audited consolidated financial statements and, if Borrower has any Subsidiaries, audited consolidating financial statements of BlueLinx Borrower and its Subsidiaries (including in each case balance sheets, statements of income and loss, statements of cash flow and statements of shareholders’ ' equity), and the accompanying notes thereto, all in reasonable detail, fairly presenting the financial position and the results of the operations of BlueLinx Borrower and its Subsidiaries as of the end of and for such fiscal year, together with (A) the unqualified opinion of independent certified public accountants, which accountants shall be an independent accounting firm selected by Borrowers Borrower and reasonably acceptable to Administrative and Collateral Agent, that such financial statements have been prepared in accordance with GAAP, and present fairly the results of operations and financial condition of BlueLinx Borrower and its Subsidiaries as of the end of and for the fiscal year then ended and (B) any management letters that may be issued with regard to the Borrowers or Guarantorsended.
Appears in 1 contract
Financial Statements and Other Information. The Borrower will furnish to the Agents: (a) Each Borrower and each Guarantor shallwithin ninety (90) days (or, and shall cause each of its and their Subsidiaries to, keep proper books and records in which true and complete entries shall be made of all dealings or transactions of or in relation solely with respect to the Collateral and Fiscal Year ended February 1, 2020, one hundred eighty (180) days) after the business end of each BorrowerFiscal Year of the Parent, its Consolidated balance sheet and related statements of operations, stockholders’ equity and cash flows as of the end of and for such year, setting forth in each Guarantor case in comparative form the figures for the previous Fiscal Year, all audited and each reported on by Deloitte & Touche or another independent public accountants of their respective recognized national standing (without a “going concern” or like qualification or exception and without a qualification or exception as to the scope of such audit) to the effect that such Consolidated financial statements present fairly in all material respects the financial condition and results of operations of the Parent and its Subsidiaries on a Consolidated basis in accordance with GAAP. Borrowers GAAP consistently applied; (b) within forty-five (45) days after the end of each fiscal quarter of the Parent, its Consolidated balance sheet and Guarantors shall promptly furnish to Administrative related statements of operations, stockholders’ equity and Collateral Agent any cash flows, as of the end of and all financial or other information as Administrative and Collateral Agent may reasonably request relating to the Collateral for such fiscal quarter and the assetselapsed portion of the Fiscal Year, business setting forth in each case in comparative form the figures for the previous Fiscal Year and the figures as set forth in the projections delivered pursuant to Section 5.01(e) hereof, all certified by one of its Responsible Officers as presenting in all material respects the financial condition and results of operations of Borrowers the Parent and Guarantorsits Subsidiaries on a Consolidated basis in accordance with GAAP consistently applied, subject to normal year end audit adjustments and to notify the auditors and accountants absence of Borrowers and Guarantors that Administrative and Collateral Agent is authorized to obtain such information directly from them. Without limiting the foregoing, Borrowers shall furnish or cause to be furnished to Administrative and Collateral Agent, the following: footnotes; (ic) within thirty (30) days after the end of each fiscal month (or within forty-five (45) days if such fiscal month end is also a fiscal quarter end)Fiscal Month of the Parent, unaudited consolidated financial statements (including in each case its Consolidated balance sheets, sheet and related statements of income operations, stockholders’ equity and losscash flows, statements of cash flow, and statements of shareholders’ equity), all in reasonable detail, fairly presenting the financial position and the results of the operations of BlueLinx and its Subsidiaries as of the end of and through such fiscal month (or quarter), certified to be correct by the chief financial officer of BlueLinx, subject to normal year-end adjustments and lack of footnotes and, if a Compliance Period is then in effect, accompanied by a compliance certificate substantially in the form of Exhibit C hereto, along with a schedule in form reasonably satisfactory to Administrative and Collateral Agent of the calculations used in determining, as of the end of such month (or quarter), whether Borrowers were in compliance with the covenants set forth in Section 9.17 of this Agreement for such month (or quarter); and (ii) within ninety (90) days after the end of each fiscal year, audited consolidated financial statements of BlueLinx and its Subsidiaries (including in each case balance sheets, statements of income and loss, statements of cash flow and statements of shareholders’ equity), and the accompanying notes thereto, all in reasonable detail, fairly presenting the financial position and the results of the operations of BlueLinx and its Subsidiaries as of the end of and for such fiscal yearFiscal Month and the elapsed portion of the Fiscal Year, together with (Asetting forth in each case in comparative form the figures for the previous Fiscal Year and the figures as set forth in the projections delivered pursuant to Section 5.01(e) hereof, all certified by one of its Responsible Officers as presenting in all material respects the unqualified opinion financial condition and results of independent certified public accountants, which accountants shall be an independent accounting firm selected by Borrowers operations of the Parent and reasonably acceptable to Administrative and Collateral Agent, that such financial statements have been prepared its Subsidiaries on a Consolidated basis in accordance with GAAPGAAP consistently applied, subject to normal year-end audit adjustments and present fairly the results absence of operations and financial condition of BlueLinx and its Subsidiaries as of the end of and for the fiscal year then ended and (B) any management letters that may be issued with regard to the Borrowers or Guarantors.footnotes; 101
Appears in 1 contract
Samples: Credit Agreement (Stage Stores Inc)
Financial Statements and Other Information. (a) Each Borrower and each Guarantor shall, and shall cause each of its and their Subsidiaries any Subsidiary to, keep proper books and records in which true and complete entries shall be made of all dealings or transactions of or in relation to the Collateral and the business businesses of each Borrower, each Guarantor Borrowers and each of Guarantors and their respective Subsidiaries in accordance with GAAP. GAAP and Borrowers and Guarantors shall promptly furnish to Administrative and Collateral Agent any and all financial or other information as Administrative and Collateral Agent may reasonably request relating to the Collateral and the assets, business and operations of Borrowers and Guarantors, and to notify the auditors and accountants of Borrowers and Guarantors that Administrative and Collateral Agent is authorized to obtain such information directly from them. Without limiting the foregoing, Borrowers shall furnish or cause to be furnished to Administrative and Collateral Agent, the following: (i) within thirty (30) days after the end of each fiscal month (or within forty-five (45) days if such fiscal month end is also a fiscal quarter end)month, monthly unaudited consolidated financial statements (including in each case balance sheets, statements of income and loss, statements of cash flow, and statements of shareholders’ equity), all in reasonable detail, fairly presenting the financial position and the results of the operations of BlueLinx and its Subsidiaries as of the end of and through such fiscal month (or quarter), certified to be correct by the chief financial officer of BlueLinx, subject to normal year-end adjustments and lack of footnotes and, if a Compliance Period is then in effect, accompanied by a compliance certificate substantially in the form of Exhibit C hereto, along with a schedule in form reasonably satisfactory to Administrative and Collateral Agent of the calculations used in determining, as of the end of such month (or quarter), whether Borrowers were in compliance with the covenants set forth in Section 9.17 of this Agreement for such month (or quarter); and (ii) within ninety (90) days after the end of each fiscal year, audited consolidated financial statements of BlueLinx and its Subsidiaries (including in each case balance sheets, statements of income and loss, statements of cash flow and statements of shareholders’ equity' equity on a consolidated basis) and unaudited consolidating balance sheets and income statements (it being understood that such consolidating balance sheet and income statements will be prepared for (A) PAI, (B) Canadian Borrower, (C) PCI Carolina, (D) PCAC, (E) All-Pure (consolidated with TCP), (F) Kemwater and the accompanying notes thereto(G) all other Borrowers and Guarantors as a whole), all in reasonable detail, fairly presenting in all material respects the financial position and the results of the operations of BlueLinx PAI and its Subsidiaries as of the end of and through such fiscal month, (ii) within ninety (90) days after the end of each fiscal year, audited consolidated financial statements (including in each case balance sheets, statements of income and loss, statements of cash flow and statements of shareholders' equity on a consolidated basis), and the accompanying notes thereto, and unaudited consolidating financial statements of PAI and its Subsidiaries (as described in clause (a)(i) above), all in reasonable detail, fairly presenting in all material respects the financial position and the results of the operations of PAI and its Subsidiaries as of the end of and for such fiscal year, together with (A) the unqualified opinion of independent certified public or chartered accountants, as appropriate, which accountants shall be an independent accounting firm selected by Borrowers and reasonably acceptable to Administrative and Collateral Agent, that such financial statements have been prepared in accordance with GAAP, and present fairly in all material respects the results of operations and financial condition of BlueLinx PAI and its Subsidiaries as of the end of and for the fiscal year then ended and (Biii) any management letters that within thirty (30) days after the end of each fiscal quarter, the amount of the Fixed Charge Coverage Ratio of PAI and its Subsidiaries for the two (2) full immediately preceding fiscal quarters showing the manner of the calculation thereof in such detail as Agent may be issued require, together with regard the certificate of a senior executive officer of PAI, in form and substance satisfactory to Agent as to the Borrowers or Guarantorsaccuracy and completeness of such calculation.
Appears in 1 contract
Samples: Loan and Security Agreement (Pioneer Americas Inc /Tx)
Financial Statements and Other Information. (a) Each Borrower and each Guarantor shall, and Borrowers shall cause each of its and their Subsidiaries to, keep proper books and records in which true and complete entries shall be made of all dealings or transactions of or in relation to the Collateral and the business of each Borrower, each Guarantor Borrowers and each of their respective Subsidiaries (if any) in accordance with GAAP. Borrowers GAAP and Guarantors shall promptly furnish to Administrative and Collateral Agent any and all financial or other information as Administrative and Collateral Agent may reasonably request relating to the Collateral and the assets, business and operations of Borrowers and Guarantors, and to notify the auditors and accountants of Borrowers and Guarantors that Administrative and Collateral Agent is authorized to obtain such information directly from them. Without limiting the foregoing, Borrowers shall furnish or cause to be furnished to Administrative Agents and Collateral Agent, the followingLenders: (i) within thirty (30) days after the end of each fiscal month (or within forty-five (45) days month, monthly unaudited consolidated financial statements, and, if such fiscal month end is also a fiscal quarter end)Borrowers have any Subsidiaries, unaudited consolidated consolidating financial statements (including in each case balance sheets, statements of income and loss, statements of cash flow, and statements of shareholders’ ' equity), all in reasonable detail, fairly presenting the financial position and the results of the operations of BlueLinx Borrowers and its their Subsidiaries as of the end of and through such fiscal month (or quarter), certified to be correct by the chief financial officer of BlueLinx, subject to normal year-end adjustments and lack of footnotes and, if a Compliance Period is then in effect, accompanied by a compliance certificate substantially in the form of Exhibit C hereto, along with a schedule in form reasonably satisfactory to Administrative and Collateral Agent of the calculations used in determining, as of the end of such month (or quarter), whether Borrowers were in compliance with the covenants set forth in Section 9.17 of this Agreement for such month (or quarter); and (ii) within ninety (90) days after the end of each fiscal year, audited consolidated financial statements and, if Borrowers have any Subsidiaries, audited consolidating financial statements of BlueLinx Borrowers and its their Subsidiaries (including in each case balance sheets, statements of income and loss, statements of cash flow and statements of shareholders’ ' equity), and the accompanying notes thereto, all in reasonable detail, fairly presenting the financial position and the results of the operations of BlueLinx Borrowers and its their Subsidiaries as of the end of and for such fiscal year, together with (A) the unqualified opinion of independent certified public accountants, which accountants shall be an independent accounting firm selected by Borrowers and reasonably acceptable to Administrative and Collateral AgentAgents, that such financial statements have been prepared in accordance with GAAP, and present fairly the results of operations and financial condition of BlueLinx Borrowers and its their Subsidiaries as of the end of and for the fiscal year then ended and (B) any management letters that may be issued with regard to the Borrowers or Guarantorsended.
Appears in 1 contract
Financial Statements and Other Information. (a) Each Borrower and each Guarantor shall, and shall cause each of its and their Subsidiaries any Subsidiary to, keep proper books and records in which true and complete entries shall be made of all dealings or transactions of or in relation to the Collateral and the business of each Borrower, each Guarantor such Borrower and each of their respective its Subsidiaries in accordance with GAAP. Borrowers and Guarantors shall promptly furnish to Administrative Agent and Collateral Agent any Lenders all such financial and all financial or other information as Administrative and Collateral Agent may shall reasonably request relating to the Collateral and the assets, business and operations of Borrowers and GuarantorsBorrowers, and to Borrower shall notify the auditors and accountants of Borrowers and Guarantors that Administrative and Collateral Agent is authorized to obtain such information directly from them, provided, that, Agent shall give Borrowers notice concurrently with Agent's request for any such information. Without limiting the foregoing, Borrowers shall furnish or cause to be furnished to Administrative and Collateral Agent, the following: (i) within thirty (30) days after the end of each fiscal month (or within forty-five (45) days if such after the end of a fiscal month end that is also the end of a fiscal quarter endquarter, as applicable), monthly unaudited consolidated financial statements, and unaudited consolidating financial statements (including in each case balance sheets, statements of income and loss, statements of cash flow, and statements of shareholders’ ' equity), all in reasonable detail, fairly presenting the financial position and the results of the operations of BlueLinx Borrowers and its their Subsidiaries as of the end of and through such fiscal month (or quarter)month, certified to be correct by the chief financial officer of BlueLinxeach Borrower, subject to normal year-end adjustments and lack of no footnotes and, if a Compliance Period is then in effect, and accompanied by a compliance certificate substantially in the form of Exhibit C hereto, along with a schedule in a form reasonably satisfactory to Administrative and Collateral Agent of the calculations used in determining, (A) as of the end of such month (or quarter)month, whether Borrowers were are in compliance with the covenants set forth in Section 9.17 Sections 9.17, 9.18, 9.19 and 9.20 of this Agreement for such month and (or B) as of the end of each quarter); , whether Borrowers are in compliance with the conditions set forth in Section 9.9(b) of this Agreement for such quarter and (ii) within ninety one hundred twenty (90120) days after the end of each fiscal year, audited consolidated financial statements and unaudited consolidating financial statements of BlueLinx Borrowers and its their Subsidiaries (including in each case balance sheets, statements of income and loss, statements of cash flow flow, and statements of shareholders’ ' equity), and the accompanying notes thereto, all in reasonable detail, fairly presenting in all material respects the financial position and the results of the operations of BlueLinx Borrowers and its their Subsidiaries as of the end of and for such fiscal year, together with (A) the unqualified opinion of independent certified public accountantsaccountants with respect to the audited consolidated financial statements, which accountants shall be an independent accounting firm selected by Borrowers and reasonably acceptable to Administrative and Collateral Agent, that such audited consolidated financial statements have been prepared in accordance with GAAP, and present fairly the results of operations and financial condition of BlueLinx Borrowers and its their respective Subsidiaries as of the end of and for the fiscal year then ended and (B) any management letters that may be issued with regard to the Borrowers or Guarantorsended.
Appears in 1 contract
Samples: Loan and Security Agreement (Lexington Precision Corp)
Financial Statements and Other Information. The Borrowers will furnish to the Administrative Agent and each Lender: (a) Each Borrower and each Guarantor shall, and shall cause each of its and their Subsidiaries to, keep proper books and records in which true and complete entries shall be made of all dealings or transactions of or in relation to the Collateral and the business of each Borrower, each Guarantor and each of their respective Subsidiaries in accordance with GAAP. Borrowers and Guarantors shall promptly furnish to Administrative and Collateral Agent any and all financial or other information as Administrative and Collateral Agent may reasonably request relating to the Collateral and the assets, business and operations of Borrowers and Guarantors, and to notify the auditors and accountants of Borrowers and Guarantors that Administrative and Collateral Agent is authorized to obtain such information directly from them. Without limiting the foregoing, Borrowers shall furnish or cause to be furnished to Administrative and Collateral Agent, the following: (i) within thirty (30) 90 days after the end of each fiscal month year of the Company, (or within forty-five (45i) days if such fiscal month end is also a fiscal quarter end), unaudited its audited consolidated financial statements (including in each case balance sheets, sheet and related statements of income operations, stockholders’ equity and loss, statements of cash flow, and statements of shareholders’ equity), all in reasonable detail, fairly presenting the financial position and the results of the operations of BlueLinx and its Subsidiaries flows as of the end of and through for such year, setting forth in each case in comparative form the figures for the previous fiscal year, all reported on by KPMG LLP or other independent public accountants of recognized national standing (without a “going concern” or like qualification or exception and without any qualification or exception as to the scope of such audit) to the effect that such consolidated financial statements present fairly in all material respects the financial condition and results of operations of the Company and its consolidated Subsidiaries on a consolidated basis in accordance with GAAP consistently applied, and (ii) consolidating balance sheets setting forth such information separately for the Company and for each Borrower as of the end of such fiscal month (or quarter)year and consolidating statements of operations setting forth such information separately for the Company and for each Borrower for such fiscal year, certified such consolidating balance sheet and consolidating statements of operations to be correct certified by the chief financial officer of BlueLinx, subject to normal year-end adjustments the Company as fairly presenting the financial condition and lack results of footnotes and, if a Compliance Period is then in effect, accompanied by a compliance certificate substantially in the form of Exhibit C hereto, along with a schedule in form reasonably satisfactory to Administrative and Collateral Agent operations of the calculations used in determining, Company and each Borrower as of the end of of, and for, such month fiscal period in accordance with GAAP; (or quarter), whether Borrowers were in compliance with the covenants set forth in Section 9.17 of this Agreement for such month (or quarter); and (iib) within ninety (90) 45 days after the end of each of the first three fiscal yearquarters of each fiscal year of the Company, audited (i) its consolidated financial balance sheet and related statements of BlueLinx operations, stockholders’ equity and its Subsidiaries (including in each case balance sheets, statements of income and loss, statements of cash flow and statements of shareholders’ equity), and the accompanying notes thereto, all in reasonable detail, fairly presenting the financial position and the results of the operations of BlueLinx and its Subsidiaries flows as of the end of and for such fiscal quarter (except in the case of the statements of stockholders’ equity and cash flows) and the then elapsed portion of the fiscal year, together with setting forth in each case (Aexcept in the case of stockholders’ equity) in comparative form the unqualified opinion figures for the corresponding period or periods of independent certified public accountants(or, which accountants shall be an independent accounting firm selected by Borrowers and reasonably acceptable to Administrative and Collateral Agentin the case of the balance sheet, that such financial statements have been prepared in accordance with GAAP, and present fairly the results of operations and financial condition of BlueLinx and its Subsidiaries 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 for results of operations of the fiscal year then ended Company and (B) any management letters that may be issued with regard to the Borrowers or Guarantors.its consolidated Subsidiaries on a consolidated basis in 49
Appears in 1 contract
Financial Statements and Other Information. (a) Each Borrower and each Guarantor shall, and shall cause each of its and their Subsidiaries any Subsidiary to, keep proper books and records in which true and complete entries shall be made of all dealings or transactions of or in relation to the Collateral and the business of each such Borrower, each Guarantor and each of their respective its Subsidiaries in accordance with GAAP. Borrowers and Guarantors shall promptly furnish to Administrative Agent and Collateral Agent any Lenders all such financial and all financial or other information as Administrative and Collateral Agent may shall reasonably request relating to the Collateral and the assets, business and operations of Borrowers and Guarantors, and to notify the auditors and accountants of Borrowers and Guarantors that Administrative and Collateral Agent is authorized to obtain such information directly from themthem PROVIDED, THAT, at all times prior to the occurrence of an Event of Default, Agent shall notify Parent prior to contacting such auditors and accountants. Without limiting the foregoing, Borrowers and Guarantors shall furnish or cause to be furnished to Administrative and Collateral Agent, the following: (i) within thirty (30) days after the end of each fiscal month (or within forty-five (45) days if such fiscal month end is also a fiscal quarter end)month, monthly unaudited consolidated financial statements, and unaudited consolidating financial statements (including in each case balance sheets, statements of income and loss, statements of cash flow, and statements of shareholders’ ' equity), all in reasonable detail, fairly presenting presenting, in all material respects, the financial position and the results of the operations of BlueLinx Parent and its Subsidiaries as of the end of and through such fiscal month (or quarter)month, certified to be correct by the chief financial officer of BlueLinxParent, subject to normal year-end adjustments and lack of no footnotes and, if a Compliance Period is then in effect, and accompanied by a compliance certificate substantially in the form of Exhibit C D hereto, along with a schedule in a form reasonably satisfactory to Administrative and Collateral Agent of the calculations used in determining, as of the end of such month (or each fiscal quarter), whether Borrowers were and Guarantors are in compliance with the covenants set forth in Section 9.17 of this Agreement for such month (or quarter); and (ii) within ninety (90) days after the end of each fiscal year, audited consolidated financial statements and unaudited consolidating financial statements of BlueLinx Parent and its Subsidiaries (including in each case balance sheets, statements of income and loss, statements of cash flow flow, and statements of shareholders’ ' equity), and the accompanying notes thereto, all in reasonable detail, fairly presenting presenting, in all material respects, the financial position and the results of the operations of BlueLinx Parent and its Subsidiaries as of the end of and for such fiscal year, together with (A) the unqualified opinion of independent certified public accountantsaccountants (which shall not contain a "going concern" or other similar exception) with respect to the audited consolidated financial statements, which accountants shall be an independent accounting firm selected by Borrowers and reasonably acceptable to Administrative and Collateral Agent, that such audited consolidated financial statements have been prepared in accordance with GAAP, and present fairly fairly, in all material respects, the results of operations and financial condition of BlueLinx Parent and its Subsidiaries as of the end of and for the fiscal year then ended and (B) any management letters that may be issued with regard to the Borrowers or Guarantorsended.
Appears in 1 contract
Samples: Loan and Security Agreement (Thane International Inc)
Financial Statements and Other Information. (a) Each Borrower and each Guarantor shall, and shall cause each of its and their Subsidiaries to, keep proper books and records in which true and complete entries shall be made of all dealings or transactions of or in relation to the Collateral and the business of each Borrower, each Guarantor Borrower and each of their respective Subsidiaries its subsidiaries (if any) in accordance with GAAP. Borrowers GAAP and Guarantors shall promptly furnish to Administrative and Collateral Agent any and all financial or other information as Administrative and Collateral Agent may reasonably request relating to the Collateral and the assets, business and operations of Borrowers and Guarantors, and to notify the auditors and accountants of Borrowers and Guarantors that Administrative and Collateral Agent is authorized to obtain such information directly from them. Without limiting the foregoing, Borrowers Borrower shall furnish or cause to be furnished to Administrative and Collateral Agent, the followingLender: (i) within thirty (30) days after the end of each fiscal month (or within forty-five (45) days if such other than the last fiscal month end is also of a fiscal quarter end)quarter, monthly unaudited consolidated financial statements, and, if Borrower has any subsidiaries, unaudited consolidated consolidating financial statements (including in each case balance sheets, statements of income and loss, statements of cash flow, loss and statements of shareholders’ ' equity), all in reasonable detail, fairly presenting the financial position and the results of the operations of BlueLinx Borrower and its Subsidiaries subsidiaries as of the end of and through such fiscal month (or quarter), certified to be correct by the chief financial officer of BlueLinxmonth, subject to normal year-end adjustments and lack adjustments, (ii) within forty- five (45) days after the end of footnotes each fiscal quarter or sixty (60) days after the end of each fiscal year, quarterly or annual (as the case may be) unaudited consolidated financial statements and, if a Compliance Period is then Borrower has any subsidiaries, unaudited consolidating financial statements (including in effecteach case balance sheets, accompanied by a compliance certificate substantially statements of income and loss and statements of shareholders' equity), all in reasonable detail, fairly presenting the form of Exhibit C hereto, along with a schedule in form reasonably satisfactory to Administrative financial position and Collateral Agent the results of the calculations used in determining, operations of Borrower and its subsidiaries as of the end of and through such month (or quarter)fiscal period, whether Borrowers were subject, in compliance with the covenants set forth in Section 9.17 case of this Agreement for such month (or quarter); quarterly reports, to normal year-end adjustments and (iiiii) within ninety (90) days after the end of each fiscal year, audited consolidated financial statements and, if Borrower has any subsidiaries, unaudited consolidating financial statements of BlueLinx Borrower and its Subsidiaries subsidiaries (including in each case balance sheets, statements of income and loss, statements of cash flow and statements of shareholders’ ' equity), and the accompanying notes thereto, all in reasonable detail, fairly presenting the financial position and the results of the operations of BlueLinx Borrower and its Subsidiaries subsidiaries as of the end of and for such fiscal year, together with (A) the unqualified opinion of independent certified public accountants, which accountants shall be an independent accounting firm selected by Borrowers Borrower and reasonably acceptable to Administrative and Collateral AgentLender, that such financial statements have been prepared in accordance with GAAP, and present fairly the results of operations and financial condition of BlueLinx Borrower and its Subsidiaries subsidiaries as of the end of and for the fiscal year then ended ended. Notwithstanding the foregoing, Borrower need not comply with the reporting obligations in (i) above for any month when, as of the end of that monthly period, the following conditions are satisfied: (i) no Event of Default or event, which with the passage of any applicable grace or cure period, the giving of notice, or both, would result in an Event of Default is then outstanding, (ii) the condition set forth in Section 1.45 (iv) (the definition of Permitted Dividends) shall be satisfied, and (Biii) any management letters that may be issued the Adjusted Tangible Net Worth as of the end of such month is greater than $120,000,000. If a change in GAAP shall occur after the date hereof which would affect the calculation of Adjusted Tangible Net Worth were it not for the last sentence of the definition thereof, Borrower shall also include with regard each set of financial statements delivered pursuant to this Section 9.6(a) a detailed reconciliation showing the Borrowers or Guarantorsproper calculation of Adjusted Tangible Net Worth at the end of such period.
Appears in 1 contract
Samples: Loan and Security Agreement (Chiquita Brands International Inc)
Financial Statements and Other Information. The Borrower will furnish to the Administrative Agent (for distribution to each Lender): (a) Each Borrower and each Guarantor shall, and shall cause each of its and their Subsidiaries to, keep proper books and records in which true and complete entries shall be made of all dealings or transactions of or in relation to the Collateral and the business of each Borrower, each Guarantor and each of their respective Subsidiaries in accordance with GAAP. Borrowers and Guarantors shall promptly furnish to Administrative and Collateral Agent any and all financial or other information as Administrative and Collateral Agent may reasonably request relating to the Collateral and the assets, business and operations of Borrowers and Guarantors, and to notify the auditors and accountants of Borrowers and Guarantors that Administrative and Collateral Agent is authorized to obtain such information directly from them. Without limiting the foregoing, Borrowers shall furnish or cause to be furnished to Administrative and Collateral Agent, the following: (i) within thirty (30) days after the end of each fiscal month (or within forty-five (45) days if such fiscal month end is also a fiscal quarter end), unaudited consolidated financial statements (including in each case balance sheets, statements of income and loss, statements of cash flow, and statements of shareholders’ equity), all in reasonable detail, fairly presenting the financial position and the results of the operations of BlueLinx and its Subsidiaries as of the end of and through such fiscal month (or quarter), certified to be correct by the chief financial officer of BlueLinx, subject to normal year-end adjustments and lack of footnotes and, if a Compliance Period is then in effect, accompanied by a compliance certificate substantially in the form of Exhibit C hereto, along with a schedule in form reasonably satisfactory to Administrative and Collateral Agent of the calculations used in determining, as of the end of such month (or quarter), whether Borrowers were in compliance with the covenants set forth in Section 9.17 of this Agreement for such month (or quarter); and (ii) within ninety (90) days after the end of each fiscal yearyear of the Borrower (or such longer period permitted pursuant to any orders, declarations, laws, regulations or letters issued by the SEC or any other government or regulatory authority, not to exceed one hundred twenty (120) days after the end of each fiscal year of the Borrower), the audited consolidated financial statements statement of BlueLinx assets and liabilities, statement of operations, statement of changes in net assets, statement of cash flows and schedule of investments of the Borrower and its Subsidiaries (including in each case balance sheets, statements of income and loss, statements of cash flow and statements of shareholders’ equity), and the accompanying notes thereto, all in reasonable detail, fairly presenting the financial position and the results of the operations of BlueLinx and its consolidated Subsidiaries as of the end of and for such fiscal year, setting forth in each case in comparative form the figures for the previous fiscal year, all certified by independent public accountants of recognized national standing together with (A) the unqualified an opinion of independent certified public accountants, which accountants shall be an independent such accounting firm selected by Borrowers and reasonably acceptable to Administrative and Collateral Agent, that such consolidated financial statements have been prepared present 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 GAAPGAAP consistently (except as disclosed therein) applied; provided that the requirements set forth in this clause (a) may be fulfilled by providing to the Administrative Agent the report of the Borrower to the SEC on Form 10-K for the applicable fiscal year; (b) within forty five (45) days after the end of each of the first three (3) fiscal quarters of the Borrower (or such longer period permitted pursuant to any orders, declarations, laws, regulations or letters issued by the SEC or any other government or regulatory authority, not to exceed seventy-five (75) days after the end of each of the first three (3) fiscal quarters of each fiscal year of the Borrower), the consolidated statement of assets and present fairly liabilities, statement of operations, statement of changes in net assets, statement of cash flows and schedule of investments of the results of operations and financial condition of BlueLinx Borrower and its consolidated Subsidiaries as of the end of and for such fiscal quarter and the then elapsed portion of the fiscal year then ended year, setting forth in each case in comparative form the figures for (or, in the case of the balance sheet, statements of operations, statement of changes in net assets, 117 Revolving Credit Agreement statement of cash flows and schedule of investments, as of the end of) the corresponding period or periods of the previous fiscal year, all certified by a Financial Officer of the Borrower 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 (except as disclosed therein) applied, subject to year-end audit adjustments, the absence of footnotes and as otherwise described therein; provided that the requirements set forth in this clause (b) may be fulfilled by providing to the Administrative Agent the report of the Borrower to the SEC on Form 10-Q for the applicable quarterly period; (c) concurrently with any delivery of financial statements under clause (a) or (b) of this Section 5.01, a certificate of a Financial Officer of the Borrower (i) certifying as to whether the Borrower has knowledge that a Default or Event of Default has occurred and is continuing with respect to the Borrower during the applicable period and, if a Default or Event of Default has occurred and is continuing with respect to the Borrower during the most recent period covered by such financial statements (or has occurred and is continuing from a prior period), specifying the details thereof and any action taken or proposed to be taken with respect thereto, (ii) setting forth reasonably detailed calculations demonstrating compliance with Sections 6.01, 6.02, 6.04 and 6.07 and (Biii) stating whether any management letters change in GAAP as applied by (or in the application of GAAP by) the Borrower has occurred since the Effective Date (but only if the Borrower has not previously reported such change to the Administrative Agent and if such change has had a material effect on the financial statements or to the extent not previously disclosed on a Form 10-K or Form 10Q previously filed with the SEC), and, if any such change has occurred, specifying the effect (unless such effect has been previously reported), as determined by the Borrower, of such change on the financial statements accompanying such certificate; provided that the requirements set forth in this clause (c)(iii) may be issued with regard fulfilled by providing to the Borrowers Administrative Agent the report of the Borrower to the SEC on Form 10-Q for the applicable quarterly period; (d) as soon as available and in any event not later than twenty (20) days after the end of each monthly accounting period (ending on the last day of each calendar month) of the Borrower and its Subsidiaries, a Borrowing Base Certificate as at the last day of such accounting period; (e) promptly but no later than five (5) Business Days after any Responsible Officer of the Borrower shall at any time have knowledge that there is a Borrowing Base Deficiency, a Borrowing Base Certificate as at the date such Responsible Officer of the Borrower has knowledge of such Borrowing Base Deficiency indicating the amount of the Borrowing Base Deficiency as at the date such Responsible Officer of the Borrower obtained knowledge of such deficiency and the amount of the Borrowing Base Deficiency as of the date not earlier than one (1) Business Day prior to the date the Borrowing Base Certificate is delivered pursuant to this clause I; (f) promptly upon receipt thereof copies of all significant written reports submitted to management or Guarantors.the board of directors of the Borrower by the Borrower’s independent public accountants in connection with each annual, interim or special audit or review of any type of the financial statements or related internal control systems of the Borrower or any of its Subsidiaries delivered by such accountants to the management or board of directors of the
Appears in 1 contract
Samples: Secured Revolving Credit Agreement (Nuveen Churchill Direct Lending Corp.)
Financial Statements and Other Information. The Borrower will furnish to the Administrative Agent and each Lender: (a) Each Borrower and each Guarantor shall, and shall cause each of its and their Subsidiaries to, keep proper books and records in which true and complete entries shall be made of all dealings or transactions of or in relation to the Collateral and the business of each Borrower, each Guarantor and each of their respective Subsidiaries in accordance with GAAP. Borrowers and Guarantors shall promptly furnish to Administrative and Collateral Agent any and all financial or other information as Administrative and Collateral Agent may reasonably request relating to the Collateral and the assets, business and operations of Borrowers and Guarantors, and to notify the auditors and accountants of Borrowers and Guarantors that Administrative and Collateral Agent is authorized to obtain such information directly from them. Without limiting the foregoing, Borrowers shall furnish or cause to be furnished to Administrative and Collateral Agent, the following: (i) within thirty (30) 105 days after the end of each fiscal month (or within forty-five (45) days if such fiscal month end is also a fiscal quarter end)Fiscal Year, unaudited its audited consolidated financial statements (including in each case balance sheets, sheet and related statements of income operations, stockholders' equity and loss, statements of cash flow, and statements of shareholders’ equity), all in reasonable detail, fairly presenting the financial position and the results of the operations of BlueLinx and its Subsidiaries flows as of the end of and through for such fiscal month year, setting forth in each case in comparative form the figures for the previous Fiscal Year, all reported on by Coopers & Xxxxxxx L.L.P. or other independent public accountants of recognized national standing (without a "going concern" or quarter), certified like qualification or exception and without any qualification or exception as to be correct by the chief scope of such audit) to the effect that such consolidated financial officer statements present fairly in all material respects the financial condition and results of BlueLinx, subject to normal year-end adjustments and lack of footnotes and, if a Compliance Period is then in effect, accompanied by a compliance certificate substantially in the form of Exhibit C hereto, along with a schedule in form reasonably satisfactory to Administrative and Collateral Agent operations of the calculations used Borrower and its consolidated Subsidiaries on a consolidated basis in determining, as of the end of such month accordance with GAAP consistently applied; (or quarter), whether Borrowers were in compliance with the covenants set forth in Section 9.17 of this Agreement for such month (or quarter); and (iib) within ninety (90) 60 days after the end of each of the first three fiscal yearquarters of each Fiscal Year, audited its consolidated financial balance sheet and related statements of BlueLinx operations, stockholders' equity and its Subsidiaries (including in each case balance sheets, statements of income and loss, statements of cash flow and statements of shareholders’ equity), and the accompanying notes thereto, all in reasonable detail, fairly presenting the financial position and the results of the operations of BlueLinx and its Subsidiaries flows as of the end of and for such fiscal yearquarter and the then elapsed portion of the Fiscal Year, together with setting forth in each case in comparative form the figures for the corresponding period or periods of (Aor, in the case of the balance sheet, as of the end of) the unqualified opinion previous Fiscal Year, all certified by one of independent certified public accountantsits 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 basis in accordance with GAAP consistently applied, which accountants shall subject to normal year-end audit adjustments and the absence of footnotes; (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 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 an independent taken with respect thereto, (ii) setting forth reasonably detailed calculations of the financial covenants set forth in Sections 6.6 and 6.7 and (iii) 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 3.4 and, if any such change has occurred, specifying the effect of such change on the financial statements accompanying such certificate; (d) concurrently with any delivery of financial statements under clause (a) above, a certificate of the accounting firm selected by Borrowers and reasonably acceptable to Administrative and Collateral Agent, that reported on such financial statements have been prepared in accordance stating whether they obtained knowledge during the 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); (e) promptly after the same become publicly available, copies of all periodic and other reports, proxy statements and other materials filed (excluding exhibits) by the Borrower or any Subsidiary with GAAPthe 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 by the Borrower to its shareholders generally, as the case may be; and present fairly (f) promptly following any request therefor, such other information regarding the results of operations operations, business affairs and financial condition of BlueLinx and its Subsidiaries the Borrower or any Subsidiary, or compliance with the terms of this Agreement, as of the end of and for Administrative Agent or any Lender through the fiscal year then ended and (B) any management letters that Administrative Agent may be issued with regard to the Borrowers or Guarantors.reasonably request. 5.2
Appears in 1 contract
Samples: Credit Agreement (Food Lion Inc)
Financial Statements and Other Information. (a1) Each Borrower and each Guarantor shall, and shall cause each of its and their Subsidiaries to, keep proper books and records in which true and complete entries shall be made of all dealings or transactions of or in relation to the Collateral and the business of each Borrower, each Guarantor Borrower and each of their respective its Subsidiaries (if any) in accordance with GAAP. Borrowers GAAP and Guarantors shall promptly furnish to Administrative and Collateral Agent any and all financial or other information as Administrative and Collateral Agent may reasonably request relating to the Collateral and the assets, business and operations of Borrowers and Guarantors, and to notify the auditors and accountants of Borrowers and Guarantors that Administrative and Collateral Agent is authorized to obtain such information directly from them. Without limiting the foregoing, Borrowers Borrower shall furnish or cause to be furnished to Administrative and Collateral Agent, the following: (ia) within thirty (30) days after the end of each fiscal month (or other than a month which is the last month of a fiscal quarter) and within forty-five fifty (4550) days if after the month which is the last month of a fiscal quarter, monthly unaudited consolidated financial statements (including in each case balance sheets and statements of income and loss, all in reasonable detail, fairly presenting the financial position and the results of the operations of Borrower and its subsidiaries as of the end of and through such fiscal month subject to year-end is also adjustments and the absence of footnotes) together with a calculation of Adjusted Net Worth as of the end of such month; and (b) within one hundred and twenty (120) days after the end of the fiscal quarter end)year ending December 31, 2000, financial statements for the fiscal year ending December 31, 2000, together with an unaudited balance sheet as at December 31, 2000 and a review engagement report of Deloitte & Touche LLP or another independent chartered accountant firm selected by Borrower and reasonably acceptable to Agent; and (c) within one hundred and twenty (120) days after the end of each fiscal year commencing with the fiscal year ending December 31, 2001, audited consolidated financial statements (including in each case balance sheets, statements of income and loss, statements of cash flow, changes in financial position and statements of shareholders’ ' equity), all in reasonable detail, fairly presenting the financial position and the results of the operations of BlueLinx and its Subsidiaries as of the end of and through such fiscal month (or quarter), certified to be correct by the chief financial officer of BlueLinx, subject to normal year-end adjustments and lack of footnotes ) and, if a Compliance Period is then in effectBorrower has any Subsidiaries, accompanied by a compliance certificate substantially in the form of Exhibit C hereto, along with a schedule in form reasonably satisfactory to Administrative and Collateral Agent of the calculations used in determining, as of the end of such month (or quarter), whether Borrowers were in compliance with the covenants set forth in Section 9.17 of this Agreement for such month (or quarter); and (ii) within ninety (90) days after the end of each fiscal year, audited consolidated unaudited consolidating financial statements of BlueLinx Borrower and its Subsidiaries (including in each case balance sheets, statements of income and loss, statements of cash flow and statements of shareholders’ equity), subsidiaries and the accompanying notes thereto, all in reasonable detail, fairly presenting the financial position and the results of the operations of BlueLinx Borrower and its Subsidiaries subsidiaries as of the end of and for such fiscal yearyear (subject in the case of such consolidating financial statements to the absence of footnotes), together with (A) the unqualified opinion of Deloitte & Touche LLP or another firm of independent certified public chartered accountants, which accountants shall be an independent accounting firm selected by Borrowers Borrower and reasonably acceptable to Administrative and Collateral Agent, that such audited consolidated financial statements have been prepared in accordance with GAAP, and present fairly the results of operations and financial condition of BlueLinx Borrower and its Subsidiaries subsidiaries as of the end of and for the fiscal year then ended and (B) any management letters that may be issued with regard to the Borrowers or Guarantorsended.
Appears in 1 contract
Samples: Loan Agreement (Merisel Inc /De/)
Financial Statements and Other Information. (a) Each Borrower and each Guarantor shall, and shall cause each of its and their Subsidiaries any Subsidiary to, keep proper books and records in which true and complete entries shall be made of all dealings or transactions of or in relation to the Collateral and the business of each such Borrower, each Guarantor and each of their respective its Subsidiaries (on a consolidated basis) in accordance with GAAP. Borrowers and Guarantors shall promptly furnish to Administrative Lender all such financial and Collateral Agent any and all financial or other information as Administrative and Collateral Agent may Lender shall reasonably request relating to the Collateral and the assets, business and operations of Borrowers and Guarantors, and to notify the auditors and accountants of Borrowers and Guarantors that Administrative and Collateral Agent Lender is authorized to obtain such information directly from them. Without limiting the foregoing, Borrowers and Guarantors shall furnish or cause to be furnished to Administrative and Collateral AgentLender, the following: (i) within thirty (30) days after the end of each fiscal month (or unless such month is also the end of a fiscal quarter then within forty-five (45) days if such fiscal month after the end is also a fiscal quarter endthereof), monthly unaudited consolidated financial statements, and unaudited consolidating financial statements (including in each case balance sheets, statements of income and loss, statements of cash flow, and statements of shareholders’ equity), all in reasonable detail, fairly presenting in all material respects the financial position and the results of the operations of BlueLinx Parent and its Subsidiaries as of the end of and through such fiscal month (or quarter)month, certified to be correct by the chief financial officer of BlueLinxParent (in his or her capacity as such and not individually), subject to normal year-end adjustments and lack of no footnotes and, if a Compliance Period is then in effect, and accompanied by a compliance certificate substantially in the form of Exhibit C A hereto, along with and in the event that Excess Availability shall be less than $4,000,000, a schedule in a form reasonably satisfactory to Administrative and Collateral Agent Lender of the calculations used in determining, as of the end of such month (or quarter)month, whether Borrowers were and Guarantors are in compliance with the covenants covenant set forth in Section 9.17 of this Agreement for such month (or quarter); and (ii) within ninety (90) days after the end of each fiscal year, audited consolidated financial statements and unaudited consolidating financial statements of BlueLinx Parent and its Subsidiaries (including in each case balance sheets, sheets and statements of income and loss, statements of cash flow flow, and statements of shareholders’ ' equity), and the accompanying notes thereto, all in reasonable detail, fairly presenting in all material respects the financial position and the results of the operations of BlueLinx Parent and its Subsidiaries as of the end of and for such fiscal year, together with (A) the unqualified opinion of independent certified public accountantsaccountants with respect to the audited consolidated financial statements, which accountants shall be an independent accounting firm selected by Borrowers and reasonably acceptable to Administrative and Collateral AgentLender, that such audited consolidated financial statements have been prepared in accordance with GAAP, and present fairly the results of operations and financial condition of BlueLinx Parent and its Subsidiaries as of the end of and for the fiscal year then ended and (B) any management letters that may be issued with regard to the Borrowers or Guarantorsended.
Appears in 1 contract
Samples: Loan and Security Agreement (Little Switzerland Inc/De)
Financial Statements and Other Information. (a) Each Borrower and each Guarantor shall, and shall cause each of its and their Subsidiaries any Subsidiary to, keep proper books and records in which true and complete entries shall be made of all dealings or transactions of or in relation to the Collateral and the business of each Borrower, each Guarantor Borrower and each of their respective its Subsidiaries in accordance with GAAP. Borrowers and Guarantors Borrower shall promptly furnish to Administrative Agent and Collateral Agent any Lenders all such financial and all financial or other information as Administrative and Collateral Agent may shall reasonably request relating to the Collateral and the assets, business and operations of Borrowers and GuarantorsBorrower, and to notify the auditors and accountants of Borrowers and Guarantors Borrower that Administrative and Collateral Agent is authorized to obtain such information directly from them. Without limiting the foregoing, Borrowers Borrower shall furnish or cause to be furnished to Administrative and Collateral Agent, the following: (i) within thirty (30) days after the end of each fiscal month (or within forty-five (45) days if such fiscal month end is also a fiscal quarter end)Accounting Period, monthly unaudited consolidated financial statements, and unaudited consolidating financial statements (including in each case balance sheets, statements of income and loss, statements of cash flow, and statements of shareholders’ ' equity), all in reasonable detail, fairly presenting the financial position and the results of the operations of BlueLinx Borrower and its Subsidiaries as of the end of and through such fiscal month (or quarter)Accounting Period, certified to be correct prepared in accordance with GAAP by the chief financial officer of BlueLinxBorrower, subject to normal year-end adjustments and lack of no footnotes and, if a Compliance Period is then in effect, and accompanied by a compliance certificate substantially in the form of Exhibit C heretocertificate, along with a schedule in a form reasonably satisfactory to Administrative and Collateral Agent of the calculations used in determining, as of the end of such month (or quarter)month, whether Borrowers were Borrower is in compliance with the covenants set forth in Section Sections 9.17 and 9.18 of this Agreement for such month (or quarter)month; and (ii) within ninety one hundred (90100) days after the end of each fiscal year, audited consolidated financial statements of BlueLinx Borrower and its Subsidiaries (including in each case balance sheets, statements of income and loss, statements of cash flow flow, and statements of shareholders’ ' equity), and the accompanying notes thereto, all in reasonable detail, fairly presenting the financial position and the results of the operations of BlueLinx Borrower and its Subsidiaries as of the end of and for such fiscal year, together with (A) the unqualified opinion of independent certified public accountantsaccountants with respect to the audited consolidated financial statements, which accountants shall be an independent accounting firm selected by Borrowers Borrower and reasonably acceptable to Administrative and Collateral Agent, that such audited consolidated financial statements have been prepared in accordance with GAAP, and present fairly the results of operations and financial condition of BlueLinx Borrower and its Subsidiaries as of the end of and for the fiscal year then ended and (B) any management letters that may be issued with regard to the Borrowers or Guarantorsended.
Appears in 1 contract
Samples: Loan and Security Agreement (Franks Nursery & Crafts Inc)
Financial Statements and Other Information. (a) Each Borrower and each Guarantor shall, and shall cause each of its and their Subsidiaries to, keep proper books and records in which true and complete entries shall be made of all dealings or transactions of or in relation to the Collateral and the business of each Borrower, each Guarantor such Borrower and each of their respective its Subsidiaries in accordance with GAAP. Borrowers and Guarantors shall promptly furnish to Administrative and Collateral Agent any and all financial or other information as Administrative and Collateral Agent may reasonably request relating to the Collateral and the assets, business and operations of Borrowers and Guarantors, and to notify the auditors and accountants of Borrowers and Guarantors that Administrative and Collateral Agent is authorized to obtain such information directly from them. Without limiting the foregoingany other provision of this Agreement, Borrowers shall furnish or cause to be furnished to Administrative and Collateral Agent, the followingLender: (i) within thirty (30) days after the end of each fiscal month (or within forty-five (45) days if such fiscal month end is also a fiscal quarter end)month, monthly unaudited consolidated and consolidating financial statements of each Borrower and of GLC and its Subsidiaries (including in each case balance sheets, statements of income and loss, loss and statements of cash flow, and statements of shareholders’ equity), all in reasonable detail, fairly presenting in all material respects the financial position and the results of the operations of BlueLinx and its Subsidiaries such entities as of the end of and through such fiscal month (or quarter)month, certified to be correct by the chief financial officer of BlueLinxeach such entity, subject to normal year-end adjustments and lack of footnotes and, if a Compliance Period is then in effect, accompanied by a compliance certificate substantially in the form of Exhibit C B hereto, along with a schedule schedule, in form reasonably satisfactory to Administrative and Collateral Agent Lender, of the calculations used in determining, as of the end of such month (or quarter)month, whether Borrowers were in compliance with the covenants set forth in Section 9.17 terms and conditions of this Agreement for such month (or quarter); month, including the covenants set forth in Sections 9.20 and 9.21 hereof, and (ii) within ninety one hundred twenty (90120) days after the end of each fiscal year, audited consolidated financial statements of BlueLinx GLC and its Subsidiaries (including in each case balance sheets, statements of income and loss, statements of cash flow and statements of shareholders’ equity), and the accompanying notes thereto, all in reasonable detail, fairly presenting in all material respects the financial position and the results of the operations of BlueLinx and its Subsidiaries such entities as of the end of and for such fiscal year, together with (A) the unqualified opinion of independent certified public accountants, which accountants shall be an a nationally recognized independent accounting firm or, if not, another independent accounting firm selected by Borrowers such entities and reasonably acceptable to Administrative and Collateral AgentLender, that such financial statements have been prepared in accordance with GAAP, and present fairly in all material respects the results of operations and financial condition of BlueLinx and its Subsidiaries such entities as of the end of and for the fiscal year then ended and (B) any management letters that may be issued with regard to the Borrowers or Guarantorsended.
Appears in 1 contract
Financial Statements and Other Information. (a) Each Borrower and each Guarantor shall, and shall cause each of its and their Subsidiaries any Subsidiary to, keep proper books and records in which true and complete entries shall be made of all dealings or transactions of or in relation to the Collateral and the business of each Borrower, each Guarantor such Borrower and each of their respective its Subsidiaries in accordance with GAAP. Borrowers and Guarantors shall promptly furnish to Administrative Agent and Collateral Agent any Lenders all such financial and all financial or other information as Administrative and Collateral Agent may shall reasonably request relating to the Collateral and the assets, business and operations of Borrowers and GuarantorsBorrowers, and to notify the auditors and accountants of Borrowers and Guarantors that Administrative and Collateral Agent is authorized to obtain such information directly from them. Without limiting the foregoing, Borrowers shall furnish or cause to be furnished to Administrative and Collateral Agent, the following: (i) within thirty (30) days after the end of each fiscal month (or other than at the end of a fiscal quarter), monthly unaudited consolidated financial statements (including in each case balance sheets, statements of income and loss, statements of cash flow, and statements of shareholders' equity), all in reasonable detail, fairly presenting the financial position and the results of the operations of Borrowers and their Subsidiaries as of the end of and through such fiscal month, certified to be correct by the chief financial officer of Borrowers subject to normal year-end adjustments, (ii) within forty-five (45) days if such fiscal month after the end is also a of each fiscal quarter end(other than at the end of the fiscal year), unaudited consolidated financial statements (including in each case balance sheets, statements of income and loss, statements of cash flow, and statements of shareholders’ ' equity), all in reasonable detail, fairly presenting the financial position and the results of the operations of BlueLinx and its Subsidiaries as of the end of and through such fiscal month (or quarter), certified to be correct by the chief financial officer of BlueLinx, subject to normal year-end adjustments and lack of footnotes and, if a Compliance Period is then in effect, accompanied by a compliance certificate substantially in the form of Exhibit C hereto, along with a schedule in form reasonably satisfactory to Administrative and Collateral Agent of the calculations used in determining, as of the end of such month (or quarter), whether Borrowers were in compliance with the covenants set forth in Section 9.17 of this Agreement for such month (or quarter); ) and (iiiii) within ninety (90) days after the end of each fiscal year, audited consolidated financial statements of BlueLinx and its Subsidiaries (including in each case balance sheets, statements of income and loss, statements of cash flow and statements of shareholders’ ' equity), and the accompanying notes thereto, all in reasonable detail, fairly presenting the financial position and the results of the operations of BlueLinx Borrowers and its their Subsidiaries as of the end of and for such fiscal year, together with (A) the unqualified opinion of independent certified public accountants, which accountants shall be an independent accounting firm selected by Borrowers and reasonably acceptable to Administrative and Collateral Agent, that such financial statements have been prepared in accordance with GAAP, and present fairly the results of operations and financial condition of BlueLinx Borrowers and its their Subsidiaries as of the end of and for the fiscal year then ended and (B) any management letters that may be issued with regard to the Borrowers or Guarantorsended.
Appears in 1 contract
Financial Statements and Other Information. (a) Each Borrower and each Guarantor Loan Party shall, and shall cause each of its and their Subsidiaries to, keep proper books and records in which true and complete entries required by GAAP (where applicable) shall be made of all dealings or business transactions of or in relation to the Collateral and Foreign Collateral, as applicable, and the business of each Borrower, each Guarantor and each of their respective Subsidiaries such Person in accordance with GAAPGAAP or its foreign equivalent, as applicable. Borrowers Each Loan Party shall, and Guarantors shall cause each of its Subsidiaries to, promptly furnish to Administrative Agent and Collateral Agent any Fortress all such financial and all financial or other information as Administrative and Collateral Agent may shall reasonably request relating to the Collateral and Foreign Collateral and the assets, business and operations of Borrowers each Loan Parties and Guarantorstheir Subsidiaries, and to notify the auditors and accountants of Borrowers and Guarantors each such Person that Administrative and Collateral Agent is authorized to obtain such information directly from them. Without limiting the foregoing, Borrowers Loan Parties shall furnish or cause to be furnished to Administrative Agent and Collateral AgentFortress, the following: (i) within thirty (30) days after the end of each fiscal month month, (or within forty-five (45A) days if such fiscal month end is also a fiscal quarter end), monthly unaudited consolidated financial statements, and unaudited consolidating financial statements (including in each case balance sheets, statements of income and loss, loss and statements of cash flow, and statements of shareholders’ equity), all in reasonable detail, fairly presenting in all material respects the financial position and the results of the operations of BlueLinx Parent and its Subsidiaries on a consolidated basis as of the end of and through such fiscal month (or quarter)month, certified to be correct by the chief financial officer of BlueLinxan Authorized Officer, subject to normal year-end adjustments and lack of no footnotes and, if a Compliance Period is then in effect, and accompanied by a compliance certificate substantially in the form of Exhibit C hereto, along with a schedule Schedule in a form reasonably satisfactory to Administrative and Collateral Agent of the calculations used in determining, as of the end of such month (or quarter)month, whether Borrowers were the Loan Parties are in compliance with the covenants set forth in Section Sections 9.17 and 9.18 of this Agreement for such month if such reporting is required hereunder and (or quarter); B) a separate report setting forth for each Loan Party and each Subsidiary of each Loan Party, the beginning balance, ending balance and net change with respect to Advances and intercompany balances for each such Person, and (ii) within ninety one hundred and twenty (90120) days after the end of each fiscal year or, if earlier, the date on which Borrowers filed its annual report on Form 10-K with the Securities and Exchange Commission after the end of such fiscal year, audited consolidated financial statements and unaudited consolidating financial statements of BlueLinx Parent and its Subsidiaries (including in each case balance sheets, statements of income and loss, loss and statements of cash flow and statements of shareholders’ equityflow), and the accompanying notes thereto, all in reasonable detail, fairly presenting in all material respects the financial position and the results of the operations of BlueLinx Parent and its Subsidiaries on a consolidated basis as of the end of and for such fiscal year, together with (A) the unqualified opinion of independent certified public accountantsaccountants with respect to the audited consolidated financial statements, which accountants shall be Ernst & Young, LLP or an independent accounting firm selected by Borrowers Parent and reasonably acceptable to Administrative and Collateral Agent, that such audited consolidated financial statements have been prepared in accordance with GAAP, and present fairly in all material respects the results of operations and financial condition of BlueLinx Parent and its Subsidiaries on a consolidated basis as of the end of and for the fiscal year then ended and (B) any management letters that may be issued with regard to the Borrowers or Guarantorsended.
Appears in 1 contract
Samples: Loan and Security Agreement (Delco Remy International Inc)
Financial Statements and Other Information. The Borrower will deliver, or will cause to be delivered, to the Administrative Agent and each Lender: as soon as available and in any event within one hundred five (105) days after the end of each Fiscal Year of the Parent, a copy of the annual audited report for such Fiscal Year for the Parent and its Subsidiaries, containing a consolidated balance sheet of the Parent and its Subsidiaries as of the end of such Fiscal Year and the related consolidated statements of income, stockholders' equity and cash flows (together with all footnotes thereto) of the Parent and its Subsidiaries for such Fiscal Year, setting forth in each case in comparative form the figures for the previous Fiscal Year, all in reasonable detail and reported on by Ernst & Young LLP or other independent public accountants of nationally recognized standing (without a "going concern" or like qualification, exception or explanation and without any qualification or exception as to scope of such audit) to the effect that such financial statements present fairly in all material respects the financial condition and the results of operations of the Parent and its Subsidiaries for such Fiscal Year on a consolidated and consolidating basis in accordance with GAAP and that the examination by such accountants in connection with such consolidated financial statements has been made in accordance with generally accepted auditing standards; as soon as available and in any event within fifty (50) days after the end of each of the first three Fiscal Quarters of the Parent, an unaudited consolidated and consolidating balance sheet of the Parent and its Subsidiaries as of the end of such Fiscal Quarter and the related unaudited consolidated and consolidating statements of income and cash flows of the Parent and its Subsidiaries for such Fiscal Quarter and the then elapsed portion of such Fiscal Year, setting forth in each case in comparative form the figures for the corresponding quarter and the corresponding portion of the Parent's previous Fiscal Year; as soon as available and in any event no later than sixty (60) days after the last day of each Fiscal Year, a Budget of the Parent and its Subsidiaries for the forthcoming Fiscal Year, prepared on a quarter by quarter basis; concurrently with the delivery of the financial statements referred to in paragraphs (a) Each Borrower and each Guarantor shall(b) of this Section 5.1, and shall cause each a Compliance Certificate signed by a Responsible Officer of its and their Subsidiaries to, keep proper books and records in which true and complete entries shall be made of all dealings or transactions of or in relation to the Collateral and the business of each Borrower, each Guarantor and each of their respective Subsidiaries in accordance with GAAP. Borrowers and Guarantors shall promptly furnish to Administrative and Collateral Agent any and all financial or other information as Administrative and Collateral Agent may reasonably request relating to the Collateral and the assets, business and operations of Borrowers and Guarantors, and to notify the auditors and accountants of Borrowers and Guarantors that Administrative and Collateral Agent is authorized to obtain such information directly from them. Without limiting the foregoing, Borrowers shall furnish or cause to be furnished to Administrative and Collateral Agent, the following: (i) certifying as to whether there exists a Default or Event of Default on the date of such certificate, and if a Default or an Event of Default then exists, specifying the details thereof and the action which the Borrower has taken or proposes to take with respect thereto; (ii) setting forth in reasonable detail calculations demonstrating compliance with the financial covenants set forth in ARTICLE VI; and (iii) stating whether any change in GAAP or the application thereof has occurred since the date of the Parent's and its Subsidiaries' audited financial statements referred to in Section 4.5(a) and, if any change has occurred, specifying the effect of such change on the financial statements accompanying such certificate; provided, however, that no action shall be required by the Borrower under this clause (iii) to the extent any such change in GAAP or the application thereof does not affect or apply to the Parent and its Subsidiaries, including the presentation by the Borrower of such financial statements; concurrently with the delivery of the financial statements referred to in paragraphs (a) and (b) in this Section 5.1, a management discussion and analysis of the material operational and financial developments of the Parent and its Subsidiaries during such period relating to such financial statements; concurrently with the delivery of the financial statements referred to in paragraph (a) of this Section 5.1, a list of all sales or other dispositions of assets made pursuant to Section 7.6(d) of this Agreement by the Parent and its Subsidiaries during the Fiscal Year most recently ended, including a description of the type of replacement assets and amount and type of other proceeds, if any, received from such sales or other dispositions; as soon as available and in any event within thirty (30) days after the end of each fiscal month (or within forty-five (45) days if Fiscal Year, a list of current Cruise Line Contracts showing the number of ships served and the contract expiration date for each; and promptly following any request therefor, such fiscal month end is also a fiscal quarter end), unaudited consolidated financial statements (including in each case balance sheets, statements of income and loss, statements of cash flow, and statements of shareholders’ equity), all in reasonable detail, fairly presenting the financial position and other information regarding the results of the operations of BlueLinx and its Subsidiaries as of the end of and through such fiscal month (or quarter)operations, certified to be correct by the chief financial officer of BlueLinx, subject to normal year-end adjustments and lack of footnotes and, if a Compliance Period is then in effect, accompanied by a compliance certificate substantially in the form of Exhibit C hereto, along with a schedule in form reasonably satisfactory to Administrative and Collateral Agent of the calculations used in determining, as of the end of such month (or quarter), whether Borrowers were in compliance with the covenants set forth in Section 9.17 of this Agreement for such month (or quarter); and (ii) within ninety (90) days after the end of each fiscal year, audited consolidated financial statements of BlueLinx and its Subsidiaries (including in each case balance sheets, statements of income and loss, statements of cash flow and statements of shareholders’ equity), and the accompanying notes thereto, all in reasonable detail, fairly presenting the financial position and the results of the operations of BlueLinx and its Subsidiaries as of the end of and for such fiscal year, together with (A) the unqualified opinion of independent certified public accountants, which accountants shall be an independent accounting firm selected by Borrowers and reasonably acceptable to Administrative and Collateral Agent, that such financial statements have been prepared in accordance with GAAP, and present fairly the results of operations business affairs and financial condition of BlueLinx and its Subsidiaries as the Parent or any Subsidiary of the end Parent as the Administrative Agent or any Lender may reasonably request. So long as the Borrower and/or the Parent is required to file periodic reports under Section 13(a) or Section 15(d) of the Securities Exchange Act of 1934, as amended, the Borrower may satisfy its obligation to deliver the financial statements and for the fiscal year then ended management discussion and analysis (to the extent such management discussion and analysis is contained in its Form 10-Ks and Form 10-Qs filed with the U.S. Securities and Exchange Commission) referred to in paragraphs (a), (b) and (Be) any management letters that may be issued of this Section 5.1 by delivering copies of its Form 10-Ks and Form 10-Qs filed with regard the U.S. Securities and Exchange Commission by electronic mail to such e-mail addresses as the Administrative Agent and Lenders shall have provided to the Borrowers Borrower from time to time. In the event that any financial statement delivered pursuant to paragraphs (a) or Guarantors(b) of this Section 5.1 immediately above or any Compliance Certificate is shown to be inaccurate (regardless of whether this Agreement or any Commitment is in effect when such inaccuracy is discovered), and such inaccuracy, if corrected, would have led to the application of a higher Applicable Margin for any period (an "Applicable Period") than the Applicable Margin applied for such Applicable Period, then (i) the Borrower shall immediately deliver to the Administrative Agent a corrected Compliance Certificate for such Applicable Period, (ii) the Applicable Margin for such Applicable Period shall be determined in accordance with the corrected Compliance Certificate, and (iii) the Borrower shall immediately pay to the Administrative Agent the accrued additional interest owing as a result of such increased Applicable Margin for such Applicable Period, which payment shall be promptly applied by the Administrative Agent to the Obligations. This Section 5.1 shall not limit the rights of the Administrative Agent or the Lenders with respect to Section 2.13(c) and ARTICLE VIII.
Appears in 1 contract
Financial Statements and Other Information. The Borrower will deliver, or will cause to be delivered, to the Administrative Agent and each Lender: as soon as available and in any event within one hundred five (105) days after the end of each Fiscal Year of the Parent, a copy of the annual audited report for such Fiscal Year for the Parent and its Subsidiaries, containing a consolidated balance sheet of the Parent and its Subsidiaries as of the end of such Fiscal Year and the related consolidated statements of income, stockholders' equity and cash flows (together with all footnotes thereto) of the Parent and its Subsidiaries for such Fiscal Year, setting forth in each case in comparative form the figures for the previous Fiscal Year, all in reasonable detail and reported on by Ernst & Young LLP or other independent public accountants of nationally recognized standing (without a "going concern" or like qualification, exception or explanation and without any qualification or exception as to scope of such audit) to the effect that such financial statements present fairly in all material respects the financial condition and the results of operations of the Parent and its Subsidiaries for such Fiscal Year on a consolidated and consolidating basis in accordance with GAAP and that the examination by such accountants in connection with such consolidated financial statements has been made in accordance with generally accepted auditing standards; as soon as available and in any event within fifty (50) days after the end of each of the first three Fiscal Quarters of the Parent, an unaudited consolidated and consolidating balance sheet of the Parent and its Subsidiaries as of the end of such Fiscal Quarter and the related unaudited consolidated and consolidating statements of income and cash flows of the Parent and its Subsidiaries for such Fiscal Quarter and the then elapsed portion of such Fiscal Year, setting forth in each case in comparative form the figures for the corresponding quarter and the corresponding portion of the Parent's previous Fiscal Year; as soon as available and in any event no later than sixty (60) days after the last day of each Fiscal Year, a Budget of the Parent and its Subsidiaries for the forthcoming Fiscal Year, prepared on a quarter by quarter basis; concurrently with the delivery of the financial statements referred to in paragraphs (a) Each Borrower and each Guarantor shall(b) of this Section 5.1, and shall cause each a Compliance Certificate signed by a Responsible Officer of its and their Subsidiaries to, keep proper books and records in which true and complete entries shall be made of all dealings or transactions of or in relation to the Collateral and the business of each Borrower, each Guarantor and each of their respective Subsidiaries in accordance with GAAP. Borrowers and Guarantors shall promptly furnish to Administrative and Collateral Agent any and all financial or other information as Administrative and Collateral Agent may reasonably request relating to the Collateral and the assets, business and operations of Borrowers and Guarantors, and to notify the auditors and accountants of Borrowers and Guarantors that Administrative and Collateral Agent is authorized to obtain such information directly from them. Without limiting the foregoing, Borrowers shall furnish or cause to be furnished to Administrative and Collateral Agent, the following: (i) certifying as to whether there exists a Default or Event of Default on the date of such certificate, and if a Default or an Event of Default then exists, specifying the details thereof and the action which the Borrower has taken or proposes to take with respect thereto; (ii) setting forth in reasonable detail calculations demonstrating compliance with the financial covenants set forth in ARTICLE VI; and (iii) stating whether any change in GAAP or the application thereof has occurred since the date of the Parent's and its Subsidiaries' audited financial statements referred to in Section 4.5(a) and, if any change has occurred, specifying the effect of such change on the financial statements accompanying such certificate; provided, however, that no action shall be required by the Borrower under this clause (iii) to the extent any such change in GAAP or the application thereof does not affect or apply to the Parent and its Subsidiaries, including the presentation by the Borrower of such financial statements; concurrently with the delivery of the financial statements referred to in paragraphs (a) and (b) in this Section 5.1, a management discussion and analysis of the material operational and financial developments of the Parent and its Subsidiaries during such period relating to such financial statements; concurrently with the delivery of the financial statements referred to in paragraph (a) of this Section 5.1, a list of all sales or other dispositions of assets made pursuant to Section 7.6(d) of this Agreement by the Parent and its Subsidiaries during the Fiscal Year most recently ended, including a description of the type of replacement assets and amount and type of other proceeds, if any, received from such sales or other dispositions; as soon as available and in any event within thirty (30) days after the end of each fiscal month Fiscal Year, a list of current Cruise Line Contracts showing the number of ships served and the contract expiration date for each; promptly, but in any event within two (2) Business Days (or within forty-such longer period as the Administrative Agent may permit, not to exceed five (455) days if Business Days) of any written claim for release of any funds comprising the Escrow Amount, the Borrower will give written notice to the Administrative Agent of such fiscal month end is also a fiscal quarter end)claim for release; and promptly following any request therefor, unaudited consolidated financial statements (including in each case balance sheets, statements of income and loss, statements of cash flow, and statements of shareholders’ equity), all in reasonable detail, fairly presenting the financial position and such other information regarding the results of the operations of BlueLinx and its Subsidiaries as of the end of and through such fiscal month (or quarter)operations, certified to be correct by the chief financial officer of BlueLinx, subject to normal year-end adjustments and lack of footnotes and, if a Compliance Period is then in effect, accompanied by a compliance certificate substantially in the form of Exhibit C hereto, along with a schedule in form reasonably satisfactory to Administrative and Collateral Agent of the calculations used in determining, as of the end of such month (or quarter), whether Borrowers were in compliance with the covenants set forth in Section 9.17 of this Agreement for such month (or quarter); and (ii) within ninety (90) days after the end of each fiscal year, audited consolidated financial statements of BlueLinx and its Subsidiaries (including in each case balance sheets, statements of income and loss, statements of cash flow and statements of shareholders’ equity), and the accompanying notes thereto, all in reasonable detail, fairly presenting the financial position and the results of the operations of BlueLinx and its Subsidiaries as of the end of and for such fiscal year, together with (A) the unqualified opinion of independent certified public accountants, which accountants shall be an independent accounting firm selected by Borrowers and reasonably acceptable to Administrative and Collateral Agent, that such financial statements have been prepared in accordance with GAAP, and present fairly the results of operations business affairs and financial condition of BlueLinx and its Subsidiaries as the Parent or any Subsidiary of the end Parent as the Administrative Agent or any Lender may reasonably request. So long as the Borrower and/or the Parent is required to file periodic reports under Section 13(a) or Section 15(d) of the Securities Exchange Act of 1934, as amended, the Borrower may satisfy its obligation to deliver the financial statements and for the fiscal year then ended management discussion and analysis (to the extent such management discussion and analysis is contained in its Form 10-Ks and Form 10-Qs filed with the U.S. Securities and Exchange Commission) referred to in paragraphs (a), (b) and (Be) any management letters that may be issued of this Section 5.1 by delivering copies of its Form 10-Ks and Form 10-Qs filed with regard the U.S. Securities and Exchange Commission by electronic mail to such e-mail addresses as the Administrative Agent and Lenders shall have provided to the Borrowers Borrower from time to time. In the event that any financial statement delivered pursuant to paragraphs (a) or Guarantors(b) of this Section 5.1 immediately above or any Compliance Certificate is shown to be inaccurate (regardless of whether this Agreement or any Commitment is in effect when such inaccuracy is discovered), and such inaccuracy, if corrected, would have led to the application of a higher Applicable Margin for any period (an "Applicable Period") than the Applicable Margin applied for such Applicable Period, then (i) the Borrower shall immediately deliver to the Administrative Agent a corrected Compliance Certificate for such Applicable Period, (ii) the Applicable Margin for such Applicable Period shall be determined in accordance with the corrected Compliance Certificate, and (iii) the Borrower shall immediately pay to the Administrative Agent the accrued additional interest owing as a result of such increased Applicable Margin for such Applicable Period, which payment shall be promptly applied by the Administrative Agent to the Obligations. This Section 5.1 shall not limit the rights of the Administrative Agent or the Lenders with respect to Section 2.13(c) and ARTICLE VIII.
Appears in 1 contract
Financial Statements and Other Information. (a) Each Borrower and each Guarantor shall, and shall cause each of its and their Subsidiaries to, keep proper books and records in which true and complete entries shall be made of all dealings or transactions of or in relation to the Collateral and the business of each Borrower, each Guarantor Borrower and each of their respective its Subsidiaries in accordance with GAAP. Borrowers and Guarantors Borrower shall promptly furnish to Administrative Lender all such financial and Collateral Agent any and all financial or other information as Administrative and Collateral Agent may Lender shall reasonably request relating to the Collateral and the assets, business and operations of Borrowers and GuarantorsBorrower, and to shall notify the auditors and accountants of Borrowers and Guarantors Borrower that Administrative and Collateral Agent Lender is authorized to obtain such information directly from themthem provided that Lender cannot obtain any such information from Borrower. Without limiting the foregoing, Borrowers Borrower shall furnish or cause to be furnished to Administrative and Collateral AgentLender, the following: (i) within thirty forty-five (3045) days after the end of each fiscal month (or within forty-five (45) days if such fiscal month end is also a fiscal quarter end)quarter, quarterly unaudited consolidated financial statements and unaudited consolidating financial statements (including in each case balance sheets, statements of income and loss, and statements of cash flow, and statements of shareholders’ equity), all in reasonable detail, fairly presenting the financial position and the results of the operations of BlueLinx Borrower and its Subsidiaries as of the end of and through such fiscal month (or quarter), certified to be correct by the chief financial officer of BlueLinxBorrower, subject to normal year-end adjustments and lack of footnotes and, if a Compliance Period is then in effect, accompanied by a compliance certificate Compliance Certificate substantially in the form of Exhibit C A hereto, along with a schedule in form reasonably satisfactory to Administrative and Collateral Agent Lender of the calculations used in determining, as of the end of such month (or quarter), whether Borrowers were in compliance with the covenants set forth in Section 9.17 Sections 9.16, 9.17, 9.18, and 9.19 of this Agreement for such month (or quarter); quarter and (ii) within ninety seventy-five (9075) days after the end of each fiscal year, audited consolidated financial statements and audited consolidating financial statements of BlueLinx and its Subsidiaries Borrower (including in each case balance sheets, statements of income and loss, and statements of cash flow and statements of shareholders’ equityflow), and the accompanying notes thereto, all in reasonable detail, fairly presenting the financial position and the results of the operations of BlueLinx Borrower and its Subsidiaries as of the end of and for such fiscal year, together with (A) the unqualified opinion of independent certified public accountants, which accountants shall be an independent accounting firm selected by Borrowers Borrower and reasonably acceptable to Administrative and Collateral AgentLender, that such financial statements have been prepared in accordance with GAAP, and present fairly the results of operations and financial condition of BlueLinx Borrower and its Subsidiaries as of the end of and for the fiscal year then ended and (B) any management letters that may be issued with regard to the Borrowers or Guarantorsended.
Appears in 1 contract
Financial Statements and Other Information. (a) Each Borrower and each Guarantor shall, and shall cause each of its and their Subsidiaries to, keep proper books and records in which true and complete entries shall be made of all dealings or transactions of or in relation to the Collateral and the business of each Borrower, each Guarantor Borrower and each of their respective Subsidiaries its subsidiaries (if any) in accordance with GAAP. Borrowers GAAP and Guarantors shall promptly furnish to Administrative and Collateral Agent any and all financial or other information as Administrative and Collateral Agent may reasonably request relating to the Collateral and the assets, business and operations of Borrowers and Guarantors, and to notify the auditors and accountants of Borrowers and Guarantors that Administrative and Collateral Agent is authorized to obtain such information directly from them. Without limiting the foregoing, Borrowers Borrower shall furnish or cause to be furnished to Administrative and Collateral Agent, the following: (i) within thirty twenty-five (3025) days after the end of each fiscal month (or within forty-five (45) days if such fiscal month end is also a fiscal quarter end)month, monthly unaudited consolidated financial statements of Borrowers (including in each case balance sheets, statements of income and loss, and statements of cash flow, and statements of shareholders’ equity), all in reasonable detail, fairly presenting the financial position and the results of the operations of BlueLinx Borrowers and its Subsidiaries their subsidiaries, as applicable, as of the end of and through such fiscal month (or quarter), certified to be correct by the chief financial officer of BlueLinx, subject to normal year-end adjustments and lack of footnotes and, if a Compliance Period is then in effect, accompanied by a compliance certificate substantially in the form of Exhibit C hereto, along with a schedule in form reasonably satisfactory to Administrative and Collateral Agent of the calculations used in determining, as of the end of such month (or quarter), whether Borrowers were in compliance with the covenants set forth in Section 9.17 of this Agreement for such month (or quarter); and (ii) within ninety (90) days after the end of each fiscal year, audited consolidated and upon the request of Agent consolidating financial statements of BlueLinx Borrowers and its Subsidiaries their subsidiaries (including in each case balance sheets, statements of income and loss, statements of cash flow and statements of shareholders’ ' equity), and the accompanying notes thereto, all in reasonable detail, fairly presenting the financial position and the results of the operations of BlueLinx Borrowers and its Subsidiaries their subsidiaries, as applicable, as of the end of and for such fiscal year, together with (A) the unqualified opinion of independent certified public accountants, which accountants shall be an independent accounting firm selected by Borrowers and reasonably acceptable to Administrative and Collateral Agent, that such financial statements have been prepared in accordance with GAAP, and present fairly the results of operations and financial condition of BlueLinx Borrowers and its Subsidiaries their subsidiaries as of the end of and for the fiscal year then ended ended. (b) The Company shall promptly notify Agent in writing of the details of the occurrence of any Default or Event of Default. (c) The Company shall furnish or cause to be furnished to Agent (i) quarterly projections for the current fiscal year within twenty-five (25) days after the first day of such fiscal quarter, commencing with the fourth fiscal quarter of 1997, (ii) annual budgets by January 31 of each year for such fiscal year and (Biii) such other information respecting the business of any Borrower, as Agent may, from time to time, reasonably request. Agent and Lenders are hereby authorized to deliver a copy of any financial statement or any other information relating to the business of any Borrower to any court or other government agency required by law to do so. Each Borrower hereby irrevocably authorizes and directs all accountants or auditors to deliver to Agent, at Borrower's expense, copies of the financial statements of the Borrowers and any reports or management letters that prepared by such accountants or auditors on behalf of the Borrowers and to disclose to Agent such information as they may have regarding the business of the Borrowers. Any documents, schedules, invoices or other papers delivered to Agent may be issued with regard destroyed or otherwise disposed of by Agent one (1) year after the same are delivered to Agent, except as otherwise designated by the Borrowers or Guarantors.Company to Agent in writing. 9.5
Appears in 1 contract
Samples: Bucyrus International Inc
Financial Statements and Other Information. (a) Each Borrower and each Guarantor shall, and shall cause Parent and each of its and their Subsidiaries Restricted Subsidiary to, keep proper books and records in which true and complete entries shall be made of all dealings or transactions of or in relation to the Collateral and the business of each Borrower, each Guarantor Parent and each of their respective its Subsidiaries in accordance with GAAP. Borrowers and Guarantors Borrower shall promptly furnish to Administrative Agent and Collateral Agent any Lenders all such financial and all financial or other information as Administrative and Collateral Agent may shall reasonably request relating to the Collateral and the assets, business and operations of Borrowers Parent, Borrower and Guarantorseach Restricted Subsidiary, and to notify the auditors and accountants of Borrowers and Guarantors Borrower that Administrative and Collateral Agent is authorized to obtain such information directly from them. Without limiting the foregoing, Borrowers Borrower shall furnish or cause to be furnished to Administrative and Collateral Agent, the following: (i) within fifteen (15) days after the end of each fiscal month other than the last month of Borrower's fiscal year and within thirty (30) days after the end of each the last month of Borrower's fiscal month (or within forty-five (45) days if such fiscal month end is also a fiscal quarter end)year, monthly unaudited consolidated and consolidated summary financial statements, and unaudited consolidating financial statements (including in each case balance sheets, statements of income and loss, statements of cash flow, and statements of shareholders’ ' equity), all in reasonable detail, fairly presenting the financial position and the results of the operations of BlueLinx Parent and its Subsidiaries as of the end of and through such fiscal month (or quarter)month, certified to be correct by the chief financial officer of BlueLinxBorrower, subject to normal year-end and quarter-end adjustments and lack of footnotes and, if a Compliance Period is then in effect, accompanied by a compliance certificate substantially in the form of Exhibit C hereto, along with with, if applicable, a schedule in form reasonably satisfactory to Administrative and Collateral Agent of the calculations used in determining, as of the end of such month (or quarter)month, whether Borrowers were Borrower was in compliance with the covenants set forth in Section 9.17 Sections 9.17, 9.18 and 9.19 of this Agreement for such month (or quarter); and (ii) within ninety (90) days after the end of each fiscal year, audited consolidated financial statements of BlueLinx Parent and its Subsidiaries (including in each case balance sheets, statements of income and loss, statements of cash flow and statements of shareholders’ ' equity), and the accompanying notes thereto, all in reasonable detaildetail (accompanied by the unaudited consolidating financial statements used in the preparation thereof), fairly presenting the financial position and the results of the operations of BlueLinx Parent and its Subsidiaries as of the end of and for such fiscal year, together with (A) the unqualified opinion of independent certified public accountants, which accountants shall be an independent accounting firm selected by Borrowers Borrower and reasonably acceptable to Administrative and Collateral Agent, that such audited financial statements have been prepared in accordance with GAAP, and present fairly the results of operations and financial condition of BlueLinx Parent and its Subsidiaries as of the end of and for the fiscal year then ended and (B) any management letters that may be issued with regard to the Borrowers or Guarantorsended.
Appears in 1 contract
Samples: Loan and Security Agreement (Champion Enterprises Inc)
Financial Statements and Other Information. (a) Each Borrower and each Guarantor shall, and shall cause each of its and their Subsidiaries any Subsidiary to, keep proper books and records in which true and complete entries shall be made of all dealings or transactions of or in relation to the Collateral and the business of each Borrower, each Guarantor Borrower and each of their respective its Subsidiaries in accordance with GAAP. Borrowers and Guarantors Borrower shall promptly furnish to Administrative Agent and Collateral Agent any Lenders all such financial and all financial or other information as Administrative and Collateral Agent may shall reasonably request relating to the Collateral and the assets, business and operations of Borrowers and GuarantorsBorrower, and to Borrower shall notify the auditors and accountants of Borrowers and Guarantors Borrower that Administrative and Collateral Agent is authorized to obtain such information directly from them. Without limiting the foregoing, Borrowers Borrower shall furnish or cause to be furnished to Administrative and Collateral Agent, the following: (i) within thirty (30) days after the end of each fiscal month (or within forty-five (45) days if such fiscal month end is also a fiscal quarter end)month, monthly unaudited consolidated financial statements, and unaudited consolidating financial statements (including in each case balance sheets, statements of income and loss, statements of cash flow, and statements of shareholders’ ' equity), all in reasonable detail, fairly presenting in all material respects the financial position and the results of the operations of BlueLinx Borrower and its Subsidiaries as of the end of and through such fiscal month (or quarter)month, certified to be correct by the chief financial officer of BlueLinxBorrower, subject to normal year-end adjustments and lack of no footnotes and, if a Compliance Period is then in effect, and accompanied by a compliance certificate substantially in the form of Exhibit C hereto, along with a schedule in a form reasonably satisfactory to Administrative and Collateral Agent of the calculations used in determining, as of the end of such month (or quarter)month, whether Borrowers were Borrower is in compliance with the covenants set forth in Section Sections 9.17 and 9.18 of this Agreement for such month (or quarter); and (ii) within ninety (90) days after the end of each fiscal year, audited consolidated financial statements and unaudited consolidating financial statements of BlueLinx Borrower and its Subsidiaries (including in each case balance sheets, statements of income and loss, statements of cash flow flow, and statements of shareholders’ ' equity), and the accompanying notes thereto, all in reasonable detail, fairly presenting in all material respects the financial position and the results of the operations of BlueLinx Borrower and its Subsidiaries as of the end of and for such fiscal year, together with (A) the unqualified opinion of independent certified public accountantsaccountants with respect to the audited consolidated financial statements, which accountants shall be an independent accounting firm selected by Borrowers Borrower and reasonably acceptable to Administrative and Collateral Agent, that such audited consolidated financial statements have been prepared in accordance with GAAP, and present fairly in all material respects the results of operations and financial condition of BlueLinx Borrower and its Subsidiaries as of the end of and for the fiscal year then ended and (B) any management letters that may be issued with regard to the Borrowers or Guarantorsended.
Appears in 1 contract
Financial Statements and Other Information. (a) Each Borrower and each Guarantor shall, and shall cause each of its and their Subsidiaries to, keep proper books and records in which true and complete entries shall be made of all dealings or transactions of or in relation Promptly deliver to the Collateral and the business of each Borrower, each Guarantor and each of their respective Subsidiaries in accordance with GAAP. Borrowers and Guarantors shall promptly furnish to Administrative and Collateral Agent any and all financial or other information as Administrative and Collateral Agent may reasonably request relating to the Collateral and the assets, business and operations of Borrowers and Guarantors, and to notify the auditors and accountants of Borrowers and Guarantors that Administrative and Collateral Agent is authorized to obtain such information directly from them. Without limiting the foregoing, Borrowers shall furnish or cause to be furnished to Administrative and Collateral Agent, the following: Bank (i) within thirty (30) days after the end of each fiscal month (or within forty-five (45) days if such fiscal month end is also a fiscal quarter end), unaudited consolidated financial statements (including in each case balance sheets, statements of income and loss, statements of cash flow, and statements of shareholders’ equity), all in reasonable detail, fairly presenting the financial position and the results of the operations of BlueLinx and its Subsidiaries as of after the end of each of its first three fiscal quarters, an unaudited consolidating and through such fiscal month (or quarter), certified to be correct by the chief consolidated financial officer of BlueLinx, subject to normal year-end adjustments and lack of footnotes and, if a Compliance Period is then in effect, accompanied by a compliance certificate substantially in the form of Exhibit C hereto, along with a schedule in form reasonably satisfactory to Administrative and Collateral Agent statement of the calculations used in determining, Borrower and each Subsidiary as of the end of such month (or quarter), whether Borrowers were which financial statement shall consist of income and cash flows for the quarter, for the corresponding quarter in compliance the previous fiscal year and for the period from the end of the previous fiscal year, with a consolidating and consolidated balance sheet as of the covenants set forth quarter end all in Section 9.17 such detail as the Bank may request and an accounts receivable aging summary and a list of this Agreement for such month (or quarter)newly acquired Owned Intellectual Property and Licensed Intellectual Property; and (ii) within ninety one hundred twenty (90120) days after the end of each fiscal year, audited consolidating and consolidated financial statements of BlueLinx the Borrower's and each Subsidiary's income and cash flows and its Subsidiaries (including in each case consolidating and consolidated balance sheets, statements of income and loss, statements of cash flow and statements of shareholders’ equity), and the accompanying notes thereto, all in reasonable detail, fairly presenting the financial position and the results of the operations of BlueLinx and its Subsidiaries sheet as of the end of and for such fiscal year, together with (A) setting forth comparative figures for the unqualified opinion of preceding fiscal year and to be audited by an independent certified public accountants, which accountants accountant acceptable to the Bank; all such statements shall be an independent accounting firm selected certified by Borrowers the Borrower's chief financial officer to be correct and reasonably acceptable to Administrative and Collateral Agent, that such financial statements have been prepared in accordance with GAAP, the Borrower's and each Subsidiary's records and to present fairly the results of the Borrower's and each Subsidiary's operations and financial condition of BlueLinx cash flows and its Subsidiaries as financial position at year end, together with the report to the audit committee and the management representation letter; and (iii) with each statement of income, a certificate executed by the Borrower's chief executive and chief financial officers or other such person responsible for the financial management of the end of and for Borrower (A) setting forth the fiscal year then ended and computations required to establish the Borrower's compliance with each financial covenant, if any, during the statement period, (B) any management letters stating that may be issued the signers of the certificate have reviewed this Agreement and the operations and condition (financial or other) of the Borrower and each of its Subsidiaries during the relevant period and (C) stating that no Event of Default occurred during the period, or if an Event of Default did occur, describing its nature, the date(s) of its occurrence or period of existence and what action the Borrower has taken with regard respect thereto. The Borrower shall also promptly provide the Bank with copies of all annual reports, proxy statements and similar information distributed to stockholders, and copies of all filings with the Securities and Exchange Commission and shall provide, in form satisfactory to the Borrowers Bank, such additional information, reports or Guarantorsother information as the Bank may from time to time reasonably request regarding the financial and business affairs of the Borrower or any Subsidiary, including quarterly receipt of Form 10-QSB as submitted to the Securities and Exchange Commission. In conjunction with the submission of the annual financial statements, the Borrower shall submit detailed projections outlining expected operating results for the next twelve (12) month period.
Appears in 1 contract
Financial Statements and Other Information. (a) Each US Borrower and each Guarantor shall, and shall cause each of its and their Subsidiaries to, keep proper books and records in which true and complete entries shall be made of all dealings or transactions of or in relation to the Collateral and the business of each Borrower, each Guarantor such US Borrower and each of their respective its Subsidiaries in accordance with GAAP. Borrowers GAAP and Guarantors shall promptly furnish to Administrative and Collateral Agent any and all financial or other information as Administrative and Collateral Agent may reasonably request relating to the Collateral and the assets, business and operations of Borrowers and Guarantors, and to notify the auditors and accountants of Borrowers and Guarantors that Administrative and Collateral Agent is authorized to obtain such information directly from them. Without limiting the foregoing, Borrowers each US Borrower shall furnish or cause to be furnished to Administrative and Collateral Agent, the followingLender: (i) within twenty (20) days after the end of each fiscal month or within thirty (30) days after the end of each a fiscal month (or within forty-five (45) days if such fiscal that is the month end is also of a fiscal quarter end)of SMTC Corporation, monthly unaudited consolidated financial statements (including in each case balance sheets, statements of income and loss, statements of cash flow, and statements of shareholders’ equity), all in reasonable detail, fairly presenting the financial position and the results of the operations of BlueLinx and its Subsidiaries as of the end of and through such fiscal month (or quarter), certified to be correct by the chief financial officer of BlueLinx, subject to normal year-end adjustments and lack of footnotes and, if a Compliance Period is then in effect, accompanied by a compliance certificate substantially in the form of Exhibit C hereto, along with a schedule in form reasonably satisfactory to Administrative and Collateral Agent of the calculations used in determining, as of the end of such month (or quarter), whether Borrowers were in compliance with the covenants set forth in Section 9.17 of this Agreement for such month (or quarter); and (ii) within ninety (90) days after the end of each fiscal year, audited consolidated financial statements of BlueLinx Canadian Borrower and its Subsidiaries US Borrowers and unaudited consolidating financial statements of SMTC Corporation (including in each case balance sheets, statements of income and loss, statements of cash flow and statements of shareholders’ equity), all in reasonable detail, fairly presenting the financial position and the results of the operations of US Borrowers, Canadian Borrower and SMTC Corporation and their respective Subsidiaries as of the end of and through such fiscal month; (ii) within ninety (90) days after the end of each fiscal year of SMTC Corporation, audited consolidated financial statements of SMTC Corporation (which includes US Borrowers, Canadian Borrower and their respective Subsidiaries (including in each case balance sheets, statements of income and loss, statements of changes in financial position and statements of shareholders’ equity)), and the accompanying notes thereto, all in reasonable detail, fairly presenting the financial position and the results of the operations of BlueLinx the applicable Person and its Subsidiaries as of the end of and for such fiscal year, together with (A) the unqualified opinion of independent certified public chartered accountants, which accountants shall be an independent accounting firm selected by Borrowers SMTC Corporation and reasonably acceptable to Administrative and Collateral AgentLender, that such financial statements have been prepared in accordance with GAAP, and present fairly the results of operations and financial condition of BlueLinx the applicable Person and its Subsidiaries as of the end of and for the fiscal year then ended ended; and (Biii) any not less than sixty (60) days prior to the end of each fiscal year of SMTC Corporation, annual financial projections for the next fiscal year of SMTC Corporation and its Subsidiaries, which shall be approved by Lender and shall include a projected consolidated balance sheet, income statement and statement of cash flow, prepared on a monthly basis for such fiscal year, proposed budgets for operating and capital expenditures, acquisitions and related financing costs for SMTC Corporation and its Subsidiaries, details of all management letters that salaries and bonuses, and such other information as may be issued with regard to the Borrowers or Guarantorsrequested by Lender.
Appears in 1 contract
Samples: Us Loan Agreement (SMTC Corp)
